ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This is the second appeal before the Administrative Law Judge Division regarding the sanction
imposed by the State Board of Physical Therapy Examiners against Randall M. Huber for
unprofessional conduct. The first appeal, Randall M. Huber, Jr. P.T. v. South Carolina
Department of Labor, Licensing and Regulation (State Board of Physical Therapy Examiners),
Docket No. 94-ALJ-11-0247-AP, was heard and decided by Chief Judge Marvin F. Kittrell on
April 25, 1995. During the pendency of the appeal, the parties attempted to settle the matter but
a dispute arose concerning how and when Huber could serve the remainder of the suspension
period and the appeal proceeded. Judge Kittrell's Order affirmed the decision of the Board
imposing a 23 day suspension of Huber's license and made some modifications that are not at
issue here.
Thereafter, Huber submitted statements to the Board showing that he refrained from working a
total of thirteen (13) days during three (3) periods in October and November of 1994 and
requested credit towards completion of the suspension. The Board considered this matter on
June 8, 1995. By Order dated June 14, 1995, the Board refused to give credit for the 13 days
and required Mr. Huber to "serve his single 23 day suspension beginning on or before September
15, 1995". The Board held that "Mr. Huber has not served 23 days of suspension in any fashion
prior to May 24, 1995, or indeed prior to June 8, 1995." The Board further stated that it would
allow Appellant to plan his absence from practice to minimize the impact upon his clients.
Huber now appeals the Board's Order not allowing him credit for the 13 days he allegedly served
towards the remaining 23 day period. Huber also has submitted documents to the Division to
show that he has refrained from working another 10 days after the Board issued its Order. He
asks the Division to remand the matter to the Board for it to consider whether to credit these ten
days towards the twenty-three day suspension. The parties agreed to submit the case without oral
argument based solely upon the record and the briefs of counsel. There was no transcript below
and the record consists of numerous letters between the parties regarding the settlement
negotiations, and several other documents indicating the dates Huber did not work. Judicial
notice is taken of the administrative appeal decided by Judge Kittrell noted above.
DISCUSSION
Appellant raises several issues in this appeal, many of which are considered together. The issues
are whether the Board's decision was based upon the facts of the record, whether the requirement
that Appellant serve the suspension in a single 23 day period, not giving credit for 13 days already
completed, was cruel and unusual punishment and an ex post facto increase of his penalty, and
whether the Board was arbitrary and capricious in exercising its discretion. The Board's Order
requiring Huber to complete his suspension in a single 23 day period is supported by substantial
evidence and is not an abuse of discretion. The Board's refusal to grant him credit for the 13 days
does not constitute cruel and unusual punishment or an ex post facto increase of his penalty. The
Board's Order is AFFIRMED and the Appellant is required to complete his suspension in 23
consecutive days before January 31, 1996.
In reviewing the findings of the Board, the Division is limited to determining if substantial rights
of the appellant have been prejudiced because the administrative findings, inferences, conclusions
or decisions are clearly erroneous in view of the reliable, probative and substantial evidence on the
whole record. S.C. Code Ann. § 1-23-380(A)(6)(e) (Supp.1994). In accord with the foregoing
provisions, the Board's decision may only be set aside if unsupported by "substantial evidence".
"'Substantial evidence' is not a mere scintilla of evidence nor the evidence viewed blindly from one
side of the case, but is evidence which, considering the record as a whole would allow reasonable
minds to reach the conclusion that the administrative agency reached or must have reached in
order to justify its action." Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304, 306 (1981).
Application of this standard is appropriate only in those cases where a "manifest or gross error of
law has been committed by the administrative agency. The statute specifically states: 'The court
shall not substitute its judgment for that of the agency as to the weight of the evidence on
questions of fact.'" Lark, supra, 276 S.E.2d at 307. This standard is applicable by the Division to
a final decision in a contested case decided by a professional and occupational licensing board
pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 1994). The evidence in this case supports the
Board's decision. There is ample evidence in the record from which the Board could reach the
conclusion that Huber had not completed any of his suspension as required by all the preceding
Orders. As the tribunal vested with deciding the matter, the Board determined what weight to
give to the various documents submitted and the briefs of Counsel.
Appellant next asserts that the requirement that he serve the suspension in a single 23 day period,
not giving him credit for 13 days already completed, is cruel and unusual punishment and an ex
post facto increase in the sanction imposed by the Board. These arguments are without merit.
The Board clearly has authority to suspend the license for the period imposed and under the
conditions imposed. The Board is not required by the statutes to invoke certain sanctions for
certain violations. Gale v. State Board of Medical Examiners, 282 S.C. 474, 320 S.E.2d 35 (Ct.
App. 1984). A showing of misconduct may result in license revocation, suspension, restriction, or
limitation. The sanction imposed is a result of misconduct and is rehabilitative as opposed to
punitive in nature. A more severe sanction allowed by the statute, was not imposed in this case.
Further, the Board will allow Appellant to schedule his single 23 day suspension in a manner least
intrusive upon his clients. It is not cruel and unusual to require that a 23 days suspension be
carried out in consecutive days. The sanction, clearly authorized for misconduct in violation of
the Physical Therapy Practice Act, is not so excessive under the circumstances to constitute cruel
and unusual punishment. Any increase in the actual number of days under suspension that
Appellant views as an ex post facto increase in the sanction, is a direct result of Appellant's
insistence upon setting the terms of the suspension himself, instead of complying with the terms
set forth by the Board.
Appellant further alleges that the failure to give him credit was arbitrary and capricious and an
abuse of discretion by the Board. An administrative decision is "arbitrary" if it is without 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. S.C. State Board of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App.
1985). The Board was clearly authorized by S.C. Code Ann. § 40-45-200 (Supp. 1994) to
revoke or suspend Huber's license. The sanction was within the parameters of the law and the
Board has the authority to decide the manner and method of imposing its sanction.
The Board also did not abuse its discretion in refusing to give Huber credit. An abuse of
discretion exists where "the ruling of the trial court was without reasonable factual support,
resulted in prejudice to the rights of the appellant, and therefore, in the circumstances, amounted
to error of law." Bridges v. Wyandotte Worsted Co., 239 S.C. 37, 121 S.E.2d 300 (1961). It is
not the role of the Division in reviewing the Order of the Board to substitute its judgment or
discretion for that of the Board. The Board did not abuse its discretion in requiring that Appellant
complete the remainder of the suspension issued by it in a single period. The restriction of his
practice is disciplinary and is a function of the Board in regulating the practice of physical therapy.
The Board will not accept the piecemeal completion of the disciplinary sanction to suit Appellant.
Appellant failed to satisfy those requirements and can not now claim harm because the Board did
not give him credit. Appellant wants to complete the suspension under terms and conditions
imposed by him, not the Board. Moreover, after the Board issued the Order now under appeal,
which clearly states that Appellant is to complete the suspension in a single 23 day period,
Appellant allegedly served an additional ten days, for which he is seeking credit. This is in direct
violation of the Board's Order, and as such, no credit should be granted. There is no evidence in
the record to show that an abuse of discretion has occurred, where factual support for the
decision exists. The Board, therefore, clearly acted within its discretion in refusing to allow credit
for segments completed.
ORDER
Based upon the reasons set forth above, it is hereby,
ORDERED, that the Order of the State Board of Physical Therapy Examiners is hereby
AFFIRMED. The time for the completion of the single 23 day suspension has past under the
Board's Order. Therefore, the Board's Order is extended and Appellant must complete the single
23 day suspension by January 31, 1996. Further, Appellant's request to remand the case to the
Board is DENIED.
AND SO IT IS ORDERED.
_________________________
ALISON RENEE LEE
Administrative Law Judge
November ______, 1995
Columbia, South Carolina. |
