ORDERS:
ORDER OF REMAND
STATEMENT OF THE CASEThis matter is an appeal by Dr. Benetta G. Bell (Appellant) of a decision of the State Board of Dentistry to suspend her
license to practice dentistry for five years. The Board found that Appellant violated S.C. Code Ann. § 40-15-190(A)(4)
(Supp. 1998) "in that she . . . employed or permitted an unlicensed person to practice dentistry, as evidenced by [Appellant]
allowing or permitting Dr. Chelsey Barbee to practice dentistry in her office by performing procedures including, but not
limited to, placing fillings and placing sealants, and extracting teeth." The Board ordered a stay of the suspension of
Appellant's license on the condition that Appellant:
(1) pay a $5,000 fine;
(2) successfully complete eight hours of continuing education in ethics;
(3) successfully complete the Board's jurisprudence examination within ninety days of the
Board's order; and
(4) comply with the Board's Final Order and all state and federal statutes and regulations
governing the practice of dentistry.
ANALYSIS
The standard of review in appeals from the Board is set forth in the Administrative Procedures Act, specifically S.C. Code
Ann. § 1-23-380 (Supp. 1998). Section 1-23-380(A)(6) expressly provides that an appellate court "may affirm the decision
of the agency or remand the case for further proceedings." Upon careful consideration of the Board's August 17, 1999
Order, I find that it is appropriate to remand the case to the Board so that it may reconsider the basis for its conclusion that
Appellant committed misconduct.
An administrative agency has an obligation to state clearly and completely the facts essential to its conclusion; where the
agency fails to do this, remand is appropriate. 2 Am. Jur. 2d Administrative Law § 630 (1994); see Campbell v. La-Z-Boy
East, 295 S.C. 384, 368 S.E.2d 679 (Ct. App. 1988) (holding that where agency failed to define basis for finding of fact,
case should be remanded for agency to make sufficiently detailed findings).
Proceedings seeking to suspend or revoke a license of a professional are serious matters. The professional's ability to earn a
living is at stake. Of equal gravity is the public's legitimate interest in the continued services of qualified professionals.
Unequivocally, in the case at hand, the Board is charged with protecting the public interest by administering the laws and
regulations governing the practice of dentistry.
It is therefore imperative, given the magnitude of a case such as this, that the Board's Order clearly and completely articulate
the facts and rationale of its conclusion. In the present case, the Board found that Appellant violated § 40-15-190(A)(4)
(Supp. 1998). This section states:
(A) Misconduct which constitutes grounds for revocation, suspension, probation, reprimand,
or other restriction of a license . . . or other discipline of a dentist . . . occurs when the holder
of a license or certificate:
(4) has employed or permitted an unlicensed or unregistered person to practice
dentistry or dental hygiene or to perform dental technological work . . .
S.C. Code § 40-15-190(A)(4).
Stated more simply, to constitute a violation under this statute, a dentist must (1) employ or permit (2) an unlicensed person
(3) to practice dentistry or dental hygiene. The first prong suggests the presence of either actual or constructive knowledge.
That is, it must be established that the dentist hired a person either that she knew or should have known was unlicensed for
the express purpose of practicing dentistry or dental hygiene; in the alternative, it must be established that she permitted a
person she knew or should have known was unlicensed to practice dentistry or dental hygiene. "To permit" means "[t]o
consent to formally," "[t]o give opportunity for," or "[t]o allow or admit of." Black's Law Dictionary 1160 (7th ed. 1999).
This tribunal concludes that "to permit," according to both common meaning and legal usage, requires knowledge.
The Board's Order does not address the first prong as set forth above. That is, the Order omits the facts essential to
establish that Appellant "employed" or hired an unlicensed person for the express purpose of practicing dentistry, or that she
"permitted," either with actual or constructive knowledge, the unlicensed person to practice dentistry. The Order does not
state the acts or omissions of Appellant that establish that she "employed" or "permitted" the unlicensed person to practice
dentistry. Instead, the Order erroneously concludes that the mere occurrence of the unlicensed practice of dentistry denotes
that Appellant "permitted" such activities to occur.
Additionally, the Order states that Appellant allowed or permitted an unlicensed person to practice dentistry "by performing
procedures including, but not limited to, placing fillings and placing sealants, and extracting teeth." See Conclusions of Law
¶ 2. The phrase "but not limited to" is inappropriate, as findings of fact should be clearly and expressly set forth in the Order
rather than being left to conjecture. See S.C. Code Ann. § 1-23-350 (1986). Nonetheless, of the specific procedures the
unlicensed person was found to have performed, two of the procedures, "extracting teeth" and "placing fillings," may
constitute the practice of dentistry under § 40-15-70. On the other hand, "placing sealants" appears to constitute the
practice of dental hygiene under § 40-15-80. The Order, however, does not allege that Appellant permitted an unlicensed
person to practice "dental hygiene" in her office.
As far as "extracting teeth" and the "placing fillings," this tribunal is unable to determine whether Appellant knowingly
employed or permitted Dr. Barbree to perform these procedures. Again, a finding that Dr. Barbree performed the extraction
or filling of teeth alone cannot support the conclusion that Appellant knew or should have known that Dr. Barbree
performed these procedures. Therefore, this tribunal is unable to determine the Board's reasoning underlying the Order.
The Board must conduct a meaningful review of its decision. Our Supreme Court has recently held on several occasions that
an administrative agency must make specific findings of fact and explain its rationale in sufficient detail to afford judicial
review. Kiawah Property Owners Group v. PSC, Op. No. 24997 (S.C.Sup.Ct. filed September 7, 1999) (Shearouse Adv.Sh.
# 29 at 1, 5) (reversed and remanded with comment that the circuit court should have remanded the orders so that the PSC
could have fulfilled its responsibilities to the parties.); see Porter v. S.C. Public Service Comm'n and BellSouth Comm., Inc.,
333 S.C. 12, 507 S.E.2d 328 (1998); Porter v. SC Public Service Comm'n and Piedmont Natural Gas Co., 332 S.C. 93, 504
S.E.2d 320 (1998); Heater of Seabrook, Inc. v. S.C Public Service Comm'n, 332 S.C. 20, 503 S.E.2d 739 (1998). While
the Board may have conducted an orderly analysis to reach its conclusion, it did not provide such an analysis in its Order.
ORDER
IT IS THEREFORE ORDERED that this case is REMANDED to the Board to reconsider the record and the basis for its
conclusions in accordance with this Order.(1)
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
January 21, 2000
Columbia, South Carolina
1. See Parker v. S.C. Public Service Comm'n, 288 S.C. 304, 342 S.E.2d 403 (1986), and Piedmont Natural Gas Co., Inc.,
301 S.C. 50, 389 S.E.2d 655 (1990) (administrative agency may not consider additional evidence upon remand unless court
allows it because that affords a party two bites at the apple). |
