ORDERS:
ORDER
This matter is before the Administrative Law Judge Division on appeal of the Petitioner seeking
judicial review of a decision of the Respondent denying the request for a continuance of a hearing
scheduled for December 7, 1996. Jurisdiction for judicial review in this matter is granted by
Section 1-23-380, South Carolina Code of Laws, 1976, as amended, which provides in pertinent
part:
A preliminary, procedural, or intermediate agency action or ruling is immediately appealable
if review of the final agency decision would not provide an adequate remedy.
The initial Formal Accusation was served on Petitioner on July 22, 1996 and a response in his
behalf was made by his attorney on August 14, 1996. Thereafter, an Amended Formal
Accusation was served on Petitioner's attorney on November 5, 1996, along with notice of a
formal hearing to be held on December 7, 1996. Respondent concedes that the Amended Formal
Accusation contains entirely new charges against Petitioner.
Petitioner's request for a continuance is based on the need to have adequate time to conduct
discovery, to obtain the services of an independent expert, and to have an independent expert
examine the patient who is the subject of the action. In addition to the legal grounds for the
request, the timing of the hearing would prevent Petitioner from attending his daughter's college
graduation.
Respondent can cite no compelling reason why the hearing should not be continued and further
has no legal basis to oppose the relief sought by Petitioner.
After careful consideration of the record in these proceedings, I find that an adequate remedy for
Petitioner would not exist if the decision of the Respondent denying the request for a continuance
were not reversed. Fundamental fairness and due process require that in a matter affecting an
individual's professional license that he be afforded ample time to prepare a defense, including the
conduct of discovery.
Section 1-23-630 grants to each of the judges of the Division the same power at chambers as
circuit court judges, and to issue those remedial writs as are necessary to give effect to its
jurisdiction. Therefore, the Division has not only the express statutory power and jurisdiction to
issue remedial writs, but also has the same inherent power of the Circuit Courts to grant injunctive
relief. In addition to these powers, the General Assembly, in its enabling statutes, mandated that
the Division promulgate rules governing the internal administration and operations of the
Division. These were duly promulgated and filed with the General Assembly and have the force
and effect of law. Rule 52, Rules of Procedure for the Administrative Law Judge Division,
expressly makes applicable the South Carolina Rules of Civil Procedure. Clearly, even without
the power to issue remedial writs granted by § 1-23-630, the Division nonetheless has such power
pursuant to Rule 65(f), S.C.R.C.P.
Having determined that Petitioner is entitled to relief from the action of the Respondent and
having determined that the Division has the power to grant remedial or injunctive relief, the
following relief is granted:
(1) the oral Order of the Respondent denying the request for a continuance is reversed;
(2) the scheduled hearing on December 7, 1996 is continued and cancelled;
(3) the Respondent is stayed from conducting any further proceedings in this matter for a
period of sixty (60) days from December 7, 1996.
AND, IT IS SO ORDERED.
/s/ Marvin F. Kittrell
Marvin F. Kittrell
Chief Judge
November 27, 1996 |
