SC Administrative Law Court Decisions

I. Statement Of The Case

The State Board of Chiropractic Examiners (Board) filed a formal complaint on February 27, 1997, charging Mark Moyers, D.C. (Dr. Moyers) with several violations of the Board's Practice Act, S.C. Code Ann. §§ 40-9-10 et seq. (1986 & Supp. 1997), and its related regulations, 23A S.C. Code Ann. Regs. 25-1 et seq. (Supp. 1997). On April 22, 1998, the Board received from Dr. Moyers general denials of the complaint and a motion to dismiss. Dr. Moyers was granted a hearing before a hearing examiner on April 23, 1998. However, he failed to appear at the hearing.

As a result of the hearing, the Hearing Examiner determined Dr. Moyers intentionally failed to inform the Board of his arrest on his renewal application. The Hearing Examiner determined this omission violated S.C. Code Ann. § 40-9-90(6) (1986) and constituted the following violations of the Board's code of ethics: (1) commission of fraud or deceit in applying for a license (23A S.C. Code Ann. Regs. 25-5.A(2) (Supp. 1997)), (2) commission of unprofessional conduct, gross incompetence, negligence, or misconduct in the practice of chiropractic (23A S.C. Code Ann. Regs. 25-5.A(4) (Supp. 1997)), and (3) failure to be guided by the highest standards of moral conduct (23A S.C. Code Ann. Regs. 25-6.A (Supp. 1997)). The Hearing Examiner also concluded Dr. Moyers' conduct violated S.C. Code Ann. § 40-9-90(1) (1986) as the use of a false, fraudulent, or forged statement and the conduct of a fraudulent, deceitful, or dishonest act in connection with the licensing requirements of the Board. Finally, the Hearing Examiner determined the conduct intentionally violated the terms of the laws of chiropractic practice, in violation of S.C. Code Ann. § 40-9-90(10) (1986). The Hearing Examiner recommended a civil penalty of $1,250 and a one-year suspension of the Dr. Moyers' license, stayed after service of seven days and probation for the remainder of the suspension.

On May 13, 1998, the Board vice chairman denied Dr. Moyers' motions for stay, interlocutory appeal, and continuance. On May 19-21, through documents filed with the Board, Dr. Moyers requested a 90-day continuance, dismissal of the action, and judgment in his favor.

Dr. Moyers failed to attend the final-order hearing before the Board on May 21, 1998. After Board member Decken recused himself, the Board voted to adopt the Hearing Examiner's conclusions. On June 3, 1998, the Board's Final Order was issued.

1. Should the appeal be dismissed because of Dr. Moyers' failure to appear before the Board?

2. Is Dr. Moyers' appeal so broad or vague as to fail to comply with the Administrative Procedures Act?

3. Is Dr. Moyers limited to arguing the issues raised in his Notice of Appeal?

4. Did the Board illegally inquire on the application about Dr. Moyers' arrests?

5. Was Dr. Moyers required to disclose his arrest on the application?

6. Is the Board's finding that Dr. Moyers intentionally failed to notify the Board of his arrest supported by substantial evidence?

A. Board's Procedural Arguments

The Board argues that Dr. Moyers' appeal is improper since no appeal can be made from a default and since the Notice of Appeal is too vague. Further, the Board argues that if the appeal is proper, Dr. Moyers should be limited to arguing the three positions he argued in his Brief on the Merits. The Board's arguments are examined first before reaching the arguments presented by Dr. Moyers.

1. Failure To Appear Before the Board

The Board urges that the appeal is improper because Dr. Moyers failed to appear at either the hearing before the Hearing Examiner or the hearing before Board and, further, that the Board's final order is in the nature of a default judgment from which a direct appeal should not lie. The Board cites Winesett v. Winesett, 287 S.C. 332, 338 S.E.2d 340 (1985) in which the Supreme Court dismissed as improper an appeal in which the appellant failed to appear at the proceedings from which the appeal was taken.

In opposition, Dr. Moyers contends the following:

According to the so-called complaint Petitioner was not notified that the failure to be physically present . . . would constitute a default judgment, and in no way was Petitioner notified that he was "Required" to stand before an unlawfully constituted "Star Chamber" . . . without time to prepare a defense and having been unable to obtain "assistance of counsel".

Petitioners Reply Brief at 3.

Under Rule 55(a), SCRCP, a party is entitled to move for an entry of default where "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend." Further, "[r]ule 55(b)(1), SCRCP, requires a party against whom a judgment by default is sought to be given written notice of the application for the judgment at least three days prior to the hearing on the application, if the party 'has appeared' in the action." Dymon, Inc. v. Hyman, 305 S.C. 170, 171, 406 S.E.2d 388 (Ct. App. 1991). In addition, serving an answer to a complaint serves as an appearance under Rule 55(b)(1), SCRCP. Id.; see Frank Ulmer Lumber Co., Inc. v. Patterson, 272 S.C. 208, 250 S.E.2d 121 (1978).

In the instant case, by arguing for judgment by default, the Board draws an analogy between the procedure before the Board and that employed in circuit court. Under such an analogy, however, in circuit court, Dr. Moyers would have been entitled to notice of a hearing for an entry for default under Rule 55(b)(1), SCRCP. The Board gave no notice to Dr. Moyers of a hearing for a default judgment. Moreover, Dr. Moyers' filings both with the Hearing Examiner and with the Board do not demonstrate a default. Rather, such filings demonstrate an active participation in his case. Accordingly, no default judgment was entered by the Board and Dr. Moyers is not precluded from appealing the Board's decision.

2. Broad and Vague Appeal

The Board argues that the appeal should be dismissed since Dr. Moyers' notice of appeal is too broad, vague, and unspecific to comply with the requirements of the Administrative Procedures Act. The Board characterizes the Notice of Appeal as a "rambling discourse that attempts to assert, or reserve for later assertion, all conceivable errors that [Appellant] might be able to expand upon or which he may think of at some point during the course of this appeal." Respondent's Brief at 7.

Dr. Moyers argues that the Notice of Appeal was specific and not too broad. On the contrary he argues the Notice of Appeal was not broad enough given that he was not represented by counsel.

An appeal of an agency decision must establish the grounds for the appeal. S.C. Code Ann. § 1-23-380 (Supp. 1997); cf. ALJD Rule 33 (April 29, 1998).

A petition for review . . . pursuant to the Administrative Procedures Act must direct the court's attention to the abuse allegedly committed below including a distinct and specific statement of the rulings of which the appellant complains. . . . [The reviewing court] lacks jurisdiction of the appeal if the notice is insufficient.

Solomon v. W.B. Easton, Inc., 307 S.C. 518, 522, 415 S.E.2d 841, 844 (Ct. App. 1992) (citing Pringle v. Builders Transport, 298 S.C. 494, 381 S.E.2d 731 (1989)); cf. Smith v. South Carolina Dep't of Social Servs., 284 S.C. 469, 327 S.E.2d 348 (1985)). A "petition" (as used in Section 1-23-380) must direct the court's attention to the abuse or abuses allegedly committed below through specifics statements of the rulings complained of. It must enable the appellate court to decide whether the rulings complained of were erroneous. Smith v. South Carolina Dep't of Social Servs., 284 S.C. 469, 470-71, 327 S.E.2d 348, 349 (1985).

Dr. Moyers' Notice of Appeal directs the court's attention to the abuse allegedly committed below, namely the factual findings and legal conclusions of the Board. The Notice of Appeal contains specific statements of the rulings complained of, i.e., the Notice challenges the necessity of reporting the Dr. Moyers' arrest and the severity of the sanction.

Further, a Notice of Appeal should be evaluated in light of the appealing party's status as a pro se litigant. Although a "party proceeding without legal representation shall remain fully responsible for compliance with [the ALJD] Rules and the Administrative Procedures Act," ALJD Rule 9(A), "[i]n all cases involving pro se litigants or those without substantial knowledge and experience in administrative matters[,] the administrative law judge shall make reasonable efforts to assist a party so that the hearing is fair." ALJD Rule 10. Accordingly, given the above considerations, the Notice of Appeal meets the minimal standards applicable and no dismissal is warranted.

3. Issues Limited to Those Raised by Brief

The Board argues that any issues included in Dr. Moyers' Notice of Appeal but not in his initial brief should be considered abandoned. Dr. Moyers argues that he abandoned no issues raised in his Notice of Appeal

An issue initially raised on appeal is deemed abandoned where it is not argued in the brief. Fields v. The Melrose Ltd. Partnership, 312 S.C. 102, 439 S.E.2d 283 (1993), citing Bell v. Bennett, 307 S.C. 286, 414 S.E.2d 786 (Ct. App. 1992). Further, "an appellant may not use the reply brief to argue issues not argued in his brief in chief." Fields v. The Melrose Ltd. Partnership, 312 S.C. 102, 106, 439 S.E.2d 283, 285 n.3 (1993). Accordingly, the only issues to be decided in this matter are those issues identified and argued in Dr. Moyers' Brief on the Merits.

B. Merits Arguments

Since the appeal is not dismissed, the three arguments raised in Dr. Moyers Brief on the Merits are properly considered.

1. Legality of Inquiring On Application About Arrests

Dr. Moyers argues that the Board was only authorized to ask about prior convictions and not about arrests on the application form. He relies upon Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983), as authority that a state agency is prohibited from inquiring on an application about arrests.

Dickerson held that the firearms disabilities imposed by Title IV of the Gun Control Act of 1968, 18 U.S.C. §§ 922(g)(1) and (h)(1), were not removed by the expungement from the record of a guilty plea to a concealed weapons charge. The Supreme Court, in fact, held that an applicant was properly denied a concealed weapons permit on the basis that he did not accurately answer an inquiry on the forms as to whether such person had been convicted of a felony. However, the case does not address the appropriateness of a state inquiring about arrests on licensing applications.

Generally, it is well understood that "[a] state cannot exclude a person from [an] . . . occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clauses of the Fourteenth Amendment." Schware v. Board of Bar Examiners of State of N.M., 353 U.S. 232, 238-39 (1957). Likewise, the "mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct." Schware, 253 U.S. 241.

However, the act of failing to disclose an arrest on an application concerns a different issue. Because the state holds an interest in insuring the good moral character of chiropractors, the Board may require Dr. Moyers to fully disclose his arrest records, regardless of whether the arrests resulted in conviction. See 100 S.C. Op. Att'y Gen. 4288 (1976).

2. Time of Filing Application

Dr. Moyers argues as follows:

There is no requirement that the form be updated between the time it is executed (signed) and the time it is submitted and/or received, noting: that signing and/or dating, submission and/or reception all might and may take place at largely different times with no harm done. There is no requirement that the form be updated at all, in any way, at anytime, except for address change.

On the other hand, the Board argues that the application was effective at the date of filing and that Dr. Moyers' failure to correct his application was relevant to the issue of his intent to deceive the Board.

Judgment exercised by the Board will not be reversed unless the Board's decision is affected by an error of law or is clearly erroneous. State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). No basis in law or fact allows reversing the Board's decision that a failure to disclose an arrest on an application for licensure as a chiropractor constitutes the use of a false, fraudulent, or forged statement in violation of S.C. Code Ann. § 40-9-90(1) (1986).

Contrary to Dr. Moyers' position, the application is effective when filed:

The execution of the application had no legal effect; only the filing of the application gave it legal effect. The answers to questions stated in the application were in the nature of representations to the department to be considered in determining whether the permit should be renewed. These representations could have legal effect only after the application was filed. To hold that the statements made in the application speak as of the date of signing the application would open the door to subterfuge.

State v. Forty-Five Hundred East Broad, Inc., 107 N.E.2d 237, 238-39 (Ohio Ct. App. 2d 1951).

Further, the ordinary meaning of "filed" is well established:

No definition having been given, the etymology of the word must be considered and ordinary meaning applied. The word "file" is derived from the Latin word "filum," and relates to the ancient practice of placing papers on a thread or wire for safe-keeping and ready reference. Filing, it must be observed, is not complete until the document is delivered and received. "Shall file" means to deliver to the office, and not send through the United States mails. Gates v. State, 128 N. Y. 221, 28 N. E. 373. A paper is filed when it is delivered to the proper official and by him received and filed. Bouvier's Law Dict.; Hoyt v. Stark, 134 Cal. 178, 86 Am. St. Rep. 246, 66 Pac. 223; Wescott v. Eccles, 3 Utah, 258, 2 Pac. 525; Re Von Borcke (D.C.) 94 Fed. 352; Mutual L. Ins. Co. v. Phinney, 22 C. C. A. 425, 48 U.S. App. 78, 76 Fed. 618. Anything short of delivery would leave the filing a disputable fact, and that would not be consistent with the spirit of the act.

United States v. Lombardo, 241 U.S. 73, 76-77 (1916); accord, Fox v. Union-Buffalo Mills, 226 S.C. 561, 86 S.E.2d 253 (1955); Sternberger v. McSween, 14 S.C. 35, 42 (1880) (quoting Bouvier's Law Dictionary), cited in Loyd's Inc. v. Good, 306 S.C. 450, 412 S.E.2d 441 (Ct. App. 1991); E. M. Boerke, Inc. v. Williams, 137 N.W.2d 489 (Wis. 1965) (to define "mailing" as "filing" would be to ignore the plain meaning of the latter word, since mailing merely initiated the process by which an article, in the due course of post, would be delivered).

Dr. Moyers' argument must fail since mailing does not constitute filing. The Appellant was required to disclose an arrest that occurred after he signed the application but before the application was filed. Since the application was filed when it was received by the Department and since the arrest occurred before the filing, the Board's conclusion must be upheld.

3. Substantial Evidence

Dr. Moyers claims that the Board abused its discretion in finding that he intentionally failed to notify the Board of his arrest. However, the Board argues that its finding that Dr. Moyers intentionally failed to notify the Board of his arrest is supported by substantial evidence.

"A court may not substitute its judgment for that of an agency as to the weight of the evidence on questions of fact unless the agency's findings are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." Clade v. Champion Laboratories, 330 S.C. 8, 11, 496 S.E.2d 856, 857 (1998), citing Rodney v. Michelin Tire Corp., 320 S.C. 515, 466 S.E.2d 357 (1996). "Substantial evidence is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached." Medlin v. Upstate Plaster Serv., 329 S.C. 92, 95, 495 S.E.2d 447, 449 (1998). "The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Clade, 330 S.C. 8, 11, 496 S.E.2d 856, 857, citing Ellis v. Spartan Mills, 276 S.C. 216, 277 S.E.2d 590 (1981).

In the instant case, the record contains substantial evidence supporting the Board's conclusion that Dr. Moyers intentionally filed an application containing a false statement. The Board found that the Appellant's application was "signed and dated April 18, 1997," that the Appellant was served with an arrest warrant on April 22, 1997, and that the Board received the application on June 12, 1997. Final Order at 1. The Board further found that "[t]he sequence of these events leads to a finding that the Respondent intentionally failed to notify the Board of his arrest." Id.

Intent is proved by showing that the actor acted willingly (volition) and that he knew or should have known the result would follow from his act. Neither deliberation nor purpose nor motive nor malice are necessary elements of intent.

Snakeberg v. Hartford Casualty Ins. Co., Inc., 299 S.C. 164, 173, 383 S.E.2d 2, 7 (Ct. App. 1989).

The question of the intent with which an act is done is one of fact and is ordinarily for jury determination except in extreme cases where there is no evidence thereon. The intent with which an act is done denotes a state of mind, and can be proved only by expressions or conduct, considered in the light of the given circumstances. State v. Johnson, 84 S.C. 45, 65 S.E. 1023. Intent is seldom susceptible to proof by direct evidence and must ordinarily be proven by circumstantial evidence, that is, by facts and circumstances from which intent may be inferred.

State v. Tuckness, 257 S.C. 295, 185 S.E.2d 607, 608 (1971). Accordingly, the Board evaluated the evidence on the record to determine the intent with which Dr. Moyers filed his renewal application.

In considering intent, the Board properly considered the date the application was mailed. Likewise, the Board also properly considered the postmark (an event occurring after the date of the arrest) as evidence as to the date the application was mailed:

Although the postmark date on an envelope is compelling evidence in cases where timely service through the mail is at issue, we are unaware of any authority . . . indicating the postmark date is dispositive. See William B. Johnson, Annot., Proof of Mailing by Evidence of Business or Office Custom, 45 A.L.R. 4th 476 (1986). Such would assume the infallibility of the U.S. Postal Service, an illogical assumption given the volume of letters and packages constantly being processed and the number of human hands any one envelope may pass through.

Green v. Green, 320 S.C. 347, 350-51, 465 S.E.2d 130, 132 (Ct. App. 1995).

Because the Board found that the application was mailed after Dr. Moyers' arrest, it could have inferred that he intended to file the application with a false statement concerning his arrest record. Notably, Dr. Moyers failed to present evidence concerning either the date of mailing or the state of mind with which the application was filed. "The general rule is that the burden of evidence is imposed on the party best able to sustain it; so the party having peculiar knowledge of the facts or control of evidence, relating to an issue, has the burden of evidence as to it." Roberts v. Roberts, 296 S.C. 93, 99, 370 S.E.2d 881, 884 (Ct. App. 1988), citing Martin v. Southern Railway Co., 240 S.C. 460, 126 S.E.2d 365 (1962); Smith v. Ashmore, 184 S.C. 316, 192 S.E. 565 (1937). Importantly, Dr. Moyers already bore the burden of proof as the applicant for a professional license. As the Board could reasonably have inferred that the application was intentionally filed with a false statement, its finding must be upheld.

Based upon the above, the decision of the State Board of Chiropractic Examiners is upheld.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

Dated: January 27, 1998

Columbia, South Carolina