SC Administrative Law Court Decisions

This matter came before the Board of Dentistry (Board) for a hearing on June 22, 2001, as a result of a Memorandum of Agreement and Stipulations in which the Appellant waived the filing and service of a Formal Accusation, and advised the Board of his wish to waive formal hearing procedures and dispose of this matter pursuant to S.C. Code Ann. §1-23-320(f)(1986 & Supp. 2000). On July 5, 2001, the Board issued an Order indefinitely suspending the Appellant's license for a period of at least five years. Thereafter, this matter came before me pursuant to S.C. Code Ann. § 1-23-600(D) (1986 & Supp. 2000) of the Administrative Procedures Act upon appeal from that Final Order of the Board. Oral arguments were heard before me at the offices of the Administrative Law Judge Division (Division) in Columbia, South Carolina, on October 9, 2001.

In his appeal, the Appellant asserts that the sanction issued by the Board was:

1. Clearly erroneous;

2. Arbitrary and capricious;

3. Exceeded the Board's authority; and

4. Offends the procedural and due process requirements of the State and Federal Constitutions.

The Appellant pled guilty to three (3) counts of committing lewd acts upon a minor and to one (1) count of contributing to the delinquency of a minor on September 12, 2000, before the Honorable Thomas W. Cooper. The misconduct occurred in Sumter and Clarendon Counties over a three-year period. The Appellant conceded during the guilty plea proceeding that he was restricted from most social organizations, schools, and the Boy Scouts. The circuit court sentenced the Appellant to ten (10) years for each count of committing lewd acts and to three (3) years for contributing to the delinquency of a minor. The sentence was suspended upon the service of five (5) years of probation, under the conditions agreed to in a plea bargain with the solicitor's office.

On September 13, 2000, the Board temporarily suspended the Appellant's license as a result of his conduct, pursuant to S.C. Code Ann. § 1-23-370(c) (1986 & Supp. 2000). ⁽¹⁾ The Order of Suspension required the Appellant to contact Gene Abel, M.D., for a physical and mental evaluation pursuant to S.C. Code Ann. § 40-15-190 (2001). Dr. Abel's diagnosis concluded that the Appellant was a pedophile.

The Appellant admitted in the Memorandum of Agreement and Stipulations that he had pled guilty to three (3) counts of committing lewd acts upon a child under the age of sixteen (16) and one (1) count of contributing to the delinquency of a minor in Indictment Numbers 00-GS-14-039, 00-GS-43-525, and 00-GS-43-447. The Appellant further admitted in the Memorandum of Agreement and Stipulations that he was the subject of a law enforcement investigation which resulted in the seizure of three (3) of his personal computers. Two (2) computers were located in the Appellant's home and one (1) was seized from his dental office. An examination of the hard drives of these computers found thirty-two (32) images of child pornography. An additional thirteen (13) images of highly probable child pornography as defined by a forensic pediatrician employed by the U.S. Attorney were also found. The Appellant stipulated and admitted the aforementioned facts, and further admitted that those facts present grounds for violations of S. C. Code Ann. §§ 40-15-190(A)(2), (9) and (16) (2001), §§ 40-1-110(1)(f), (h) and (j) (2001), and 23A S. C. Code Ann. Regs. 39-11(1-C) (1976). A hearing into this matter was conducted on June 22, 2001, before the Board of Dentistry at which the Appellant did not contest any matters before the Board.

This case is before the Division as an appeal of an agency action. As such, the Administrative Law Judge sits in an appellate capacity under the Administrative Procedures Act (APA), rather than as an independent finder of fact. In South Carolina, the provisions of the APA -- specifically Section 1-23-380(A)(6) -- govern the circumstances in which an appellate body may reverse or modify an agency decision. That section states:

The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

S.C. Code Ann. § 1-23-380(A)(6) (1986 & Supp. 2000).

A decision is supported by "substantial evidence" when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App. 1984). The well-settled case law in this state has also interpreted the "substantial evidence" rule to mean that a decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, 276 S.C. 130, 276 S.E.2d 304 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's finding from being supported by substantial evidence. Waters v. South Carolina Land Resources Conservation Comm'n, 321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).

In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 466 S.E.2d 357 (1996), citing Kearse v. State Health and Human Services Finance Comm'n, 318 S.C. 198, 456 S.E.2d 892 (1995). Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995), citing Gibson v. Florence Country Club, 282 S.C. 384, 318 S.E.2d 365 (1984). Finally, the party challenging an agency action has the burden of proving convincingly that the agency's decision is unsupported by substantial evidence. Waters v. South Carolina Land Resources Conservation Comm'n, 312 S.C. 219, 467 S.E.2d 913 (1996), citing Hamm v. AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994).

The Appellant argues that the sanction of the Board is clearly erroneous in view of reliable evidence. He contends that he is not a threat to the public and should be able to return to his practice. In support of this position, the Appellant argues that Dr. Abel, to whom the Appellant was referred to by the Board, recommended reinstatement of his license under certain parameters. As noted above, the review of the findings supporting the agency's decision is limited to a determination of whether the Board's findings, inferences, conclusions or decisions are "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." Lowe v. Am-Can Transport Services, Inc., 283 S.C. 534, 324 S.E.2d 87 (1984). More importantly, this tribunal cannot substitute its judgment for that of the Board based solely on the possibility that there is room for a difference of intelligent opinion. Chemical Leamen Tank Lines v. S.C. Pub. Serv. Comm'n, 258 S.C. 518, 189 S.E.2d 296 (1972). To the contrary, the Appellant must establish that the record is devoid of evidence that would allow a reasonable mind to reach the Board's conclusion. If such evidence exists, it is irrelevant as to whether the reviewing Court agrees with the position taken by the Board.

In this case, The Appellant pled guilty to three (3) counts of committing lewd acts upon a minor and to one (1) count of contributing to the delinquency of a minor. The Appellant further admitted that an examination of his computers found thirty-two (32) images of child pornography. An additional thirteen (13) images of highly probable child pornography as defined by a forensic pediatrician employed by the U.S. Attorney were also found. Two (2) computers were located in the Appellant's home and one (1) was seized from his dental office. The Appellant further conceded that his new associate would continue to treat children under the age of eighteen (18) and that children would likely accompany their parents to appointments.

Dr. Abel also concluded that the Appellant suffers from pedophilia and will need to be treated throughout his life. Though Dr. Abel did recommend that the Appellant be allowed to return to practice, that recommendation was pursuant to the imposition of a strict set of guidelines involving what the Appellant characterized as a "system of checks and balances." ⁽²⁾

Those guidelines were to insure, in part, that the Appellant not have contact with children. Nevertheless, the protection of the public is dependent upon the success of the safety nets listed in his treatment summary. These checks and balances involved monitoring by the Appellant's staff, Dr. Abel and the Board. For instance, Dr. Abel recommended as a safeguard that the patients be surveyed and the Appellant's staff be questioned. The results of those surveys and questions would be reviewed by the Board or Dr. Abel's staff. The Appellant would also be subjected to periodic polygraph examinations to insure his compliance with the safeguards. It is within the province of the Board to determine if it wished to assume the mantle of that supervision. That determination is even more significant in light of the Appellant's testimony that children of all ages would continue to be seen in his office by other dentists.

Furthermore, though the Board had the discretion to permit expert testimony on the ultimate issue before it, the Board likewise "retains its power and duty to judge both the credibility of the witness and the weight to be given to his opinion." Redman v. Ford Motor Co., 253 S.C. 266, 170 S.E.2d 207 (1969). Therefore, Dr. Abel's opinion was admissible to assist the Board in understanding pedophilia and recidivism or to determine what action to take after making determinations concerning the evidence. However, the Board could accept in full, accept in part or totally reject the recommendations of Dr. Abel. Moreover, Dr. Abel's actions went beyond merely evaluating the Appellant. After his evaluation, Dr. Abel became his treating physician and, as such, could have been perceived as an advocate for the Appellant. ⁽³⁾ His testimony telling the Board specifically what action to take in this case is simply that of a recommendation based on his examination of the Appellant and his years of experience in this area. Though the Board members may not be trained in this field, their duty was to review the evidence concerning this case and then take the appropriate action to protect the public. Dr. Abel's recommendation, even though it was the only expert opinion specifically addressing the appropriate action for the Board to take, is not binding upon the Board and did not override the Board's authority or province to fashion its own determination as to what to do in this case.

Additionally, an article authored by Judith Becker, M.D., was also submitted to the Board concerning the general subject of the recidivism of pedophiles. Dr. Becker made the following conclusions that are relevant to the Board's decision:

• The current measure of recidivism is flawed by various factors. Therefore, "it is extremely difficult to measure recidivism."



• "Numerous individuals may go several years or longer before recidivating . . . ."



• Extra familial offenders who molest boys generally have higher recidivism rates than those who molest girls.



• "Multiple pedophilias can also be a powerful indicator."



• "Twenty seven percent of recidivists in [a] study did not begin to recidivate until the fourth year or after their release or later."



• Recidivism was significant in non-incest individuals even after treatment.

Therefore, I find that the decision of the Board is supported by substantial evidence on the record as a whole.

The Appellant argues that the decision of the Board was arbitrary and capricious. A decision is arbitrary if it is without a rational basis, is based alone on one's will and not upon any course of reasoning and exercise of judgment, is made at pleasure without adequate determining principles, or is governed by no fixed rules or standards. Deese v. South Carolina Bd of Dentistry, 286 S.C. 182, 332 S.E. 2d 539 (S.C. App. 1985). ⁽⁴⁾ The Court found in Deese that the Board's decision was not arbitrary and capricious, notwithstanding allegations that others similarly situated had received lesser sanctions because the suspension of the doctor's license was within sanctions established by law for the dentist's "extensive" violations. The Court found that as judges, it lacked the competence to weigh and evaluate the record with that same expertise. Id. Additionally, in analyzing whether a decision is arbitrary the Court has often reviewed whether the decision is supported by "substantial evidence" to determine if "there is evidence that would allow reasonable minds to reach the conclusion the administrative agency reached." Ruocco v. South Carolina State Bd. of Registration for Professional Engineers and Land Surveyors, 314 S.C. 111, 114, 441 S.E.2d 829, 831 (1994). Obviously, if the sanction is supported by "substantial evidence" and is within the parameters of the sanctions established by law for the violations, the Board could not have acted arbitrarily.

Here, the "substantial evidence" supports the Board's conclusion the Appellant violated S.C. Code Ann. §§ 40-15-190(A)(2), (9) and (16) (2001), §§ 40-1-110(1)(f), (h) and (j)(2001), and 23A S. C. Code Ann. Regs. 39-11(1-C) (1976). Also, as in Ruocco, the record reflects that the Board fairly reviewed the Appellant's case. Furthermore, the Board of Dentistry has the authority to revoke, suspend, or annul a license for any misconduct contained in S.C. Code Ann. § 40-15-190 (2001). ⁽⁵⁾ In Gale v. State Bd. of Medical Examiners of S.C., 282 S.C. 474, 320 S.E.2d 35 (1984), the Court rejected the physician's challenge to the imposed sanction, stating:

As to the lack of justification for the sanction imposed, the Board is not required by [statute] to invoke certain sanctions for certain violations. A showing of any misconduct listed in the [statute] may result in license revocation, suspension, restriction or limitation. The Panel's findings, adopted by the Board and affirmed by the Circuit Judge, are supported by the substantial evidence. Accordingly, we find no abuse of discretion in the imposition of license revocation.

Therefore, for the foregoing reasons, I find that the decision of the Board was not arbitrary and capricious.

The Appellant contends that the Board exceeded its statutory authority by imposing a sanction that is intended to punish the Appellant rather than protect the public. Specifically, the Appellant contends that he can safely practice dentistry under the supervision of his wife and staff members. In Wilson v. State Bd. of Medical Examiners, 305 S.C. 194, 406 S.E.2d 345 (1991), the South Carolina Supreme Court held that "[t]he revocation of a physician's license, however, is designed not to punish the physician . . . but to protect the life, health and welfare of the people at large . . . ." (quoting Levy v. Board of Registration & Discipline, 378 Mass. 519, 528, 392 N.E.2d 1036, 1041 (1979)).

In this case, the sanction imposed by the Board was based upon its concern of recidivism by the Appellant. Specifically, the Board found that: "Recidivism is a serious concern in child molestation cases. No restrictions placed by the Board on the practice environment can assure an absence of contact with children in a dental practice. Adult patients frequently bring children to a dental office when they are treated." The above findings set forth in "Issue I" support the Board's concerns. In particular, the Appellant's own witness, Dr. Abel, indicated that the Appellant should not see children under the age of eighteen (18) and that his opinion on the Appellant's return to practice was limited to the success of the "safety nets" he proposed. Nevertheless, the Appellant testified that there would not be a total absence of children in his dental practice. Under the limitations or restrictions submitted to the Board, the Appellant testified that patients of his employees would continue to bring children to his dental office.

Furthermore, the Board expressed its intent that the sanction was to protect the public. In that regard, the Board concluded that: "The sanction imposed is consistent with the purpose of these proceedings and has been made after weighing the public interest and the need for the continued services of qualified dentists against the countervailing concern that society be protected from professional misconduct." The Board went on to rule that "the sanction imposed is designed not to punish the Respondent, but to protect the public." I find that the sanction herein is a lawful exercise of the Board's authority as set forth in the Dental Practice Act.

In Hamm v. Public Service Com'n of South Carolina, 310 S.C. 13,16, 425 S.E.2d 28, 30 (1992), the South Carolina Supreme Court held that "[t]he Court cannot substitute its judgment for that of the [Board] upon a question as to which there is room for a difference of intelligent opinion." I find that the Appellant's criminal misconduct, the possession of the pornographic pictures on his office computer, and the consequent concern for recidivism constitutes evidence justifying a period of suspension.

The Appellant contends that the sanction imposed in this matter is in conflict with his constitutional rights under the Constitutions of the State of South Carolina and the United States. S.C. Code Ann § 40-1-10 (A) (2001) provides that:

The right of a person to engage in a lawful profession, trade, or occupation of choice is clearly protected by both the Constitution of the United States and the Constitution of the State of South Carolina. The State cannot abridge this right except as a reasonable exercise of its police powers when it is clearly found that abridgement is necessary for the preservation of the health, safety, and welfare of the public.

See also Gwynette v. Myers, 237 S.C. 17, 115 S.E.2d 673 (1960) (The right of a citizen to engage in lawful business . . . is not absolute; it is subject to regulation and control by the state in the exercise of its police power. But that power, though an essential attribute of sovereignty, is also not absolute; it may be exercised only for the protection of the public in its health, safety, morals or general welfare.). Nevertheless, the courts will not interfere with an agency's exercise of its police powers unless its regulations or actions are determined to be unreasonable. Richards v. City of Columbia, 227 S.C. 538, 88 S.E.2d 683 (1955).

S.C. Code Ann § 40-15-10 (2001) gives the Dental Board the authority to "supervise" the practice of dentistry in this State. Furthermore, Section 40-15-190 grants the Board of Dentistry the authority to discipline for acts of misconduct enumerated within that Section. That discipline must be in keeping with the "health, safety, and welfare of the public." See Wilson, supra. Moreover, the Appellant must be provided due process by the Board prior to being disciplined. ⁽⁶⁾ In this case, the Board, after granting the Appellant notice and an opportunity to be heard in a meaningful way, sanctioned the Appellant in keeping with its authority to protect the public.

IT IS THEREFORE ORDERED that the Final Order of the Board of Dentistry is hereby affirmed.

AND IT IS SO ORDERED.

__________________________________

Ralph King Anderson, III

Administrative Law Judge

March 1, 2002

Columbia, South Carolina

1. The Appellant had already surrendered his controlled substances registration.

2. Dr. Abel further testified that if the Appellant commits one additional act of sexual misconduct, he would recommend revoking his license to practice dentistry.

3. Dr. Abel was personally involved in only 30% to 35% of the Appellant's treatment.

4. The Supreme Court has held that "[a]rbitrary conduct is readily definable and includes acts which are unreasonable, capricious or nonrational; not done according to reason or judgment; depending on will alone." Taylor v. Nix, 307 S.C. 551, 555, 416 S.E.2d 619, 621(1992). Therefore, analysis of whether capricious conduct has occurred is subsumed in an analysis of whether arbitrary conduct occurred. Additionally, when examining whether a party's conduct is arbitrary or capricious, the Supreme Court commonly limits its examination to whether arbitrary conduct occurred. See Leventis v. South Carolina Dept. of Health and Environmental Control, 340 S.C. 118, 530 S.E.2d 643 (2000); Deese, supra. Consequently, my analysis is likewise limited to the examination of whether the Board's conduct was arbitrary.

5. In fact, the guilty plea alone provided a reasonable basis for the sanction rendered by the Board.

6. "The requirements of due process include notice, an opportunity to be heard in a meaningful way, and judicial review." Ogburn-Matthews v. Loblolly Partners (Ricefields Subdivision), 332 S.C. 551, 505 S.E.2d 598 (1998). Furthermore, "[a]t a minimum, there must be some tenable connection between the facts and the governmental action." Ogburn-Matthews, Id. (quoting Robert L. Rabin, Some Thoughts on the Relationship Between Fundamental Values and Procedural Safeguards in Constitutional Right to Hearing Cases, 16 San Diego L.Rev. 301, 302-03 (1979).) Additionally, "[t]o prove the denial of due process in an administrative proceeding, a party must show that it was substantially prejudiced by the administrative process." Ogburn-Matthews, Id.