The South Carolina Professsional and Occupational License Law Blog
A blog discussing legal issues related to professional and occupational licenses in South Carolina. The blog will also follow decision of the boards, commissions, and all courts relating to professional and occupational licenses in South Carolina.
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South Carolina Licensed Attorneys May Engage in Credit Counseling
Lexington Law Firm v. S.C. Dep't of Consumer Affairs,No. 26648 (S.C.May 12, 2009).
South Carolina Supreme Court reversed an order by the South Carolina Administrative Law Court (ALC) granting summary judgment in favor of Lexington Law Firm, a Utah-based law firm. The Court determined the scope of the South Carolina Consumer Credit Counseling Act (Act).
Pursuant to section 37-7-102 of the Act, a person may not engage in credit counseling in South Carolina unless properly licensed to do so. A credit counseling organization is a person providing credit counseling for a "fee, compensation, or gain, or in the expectation of a fee, compensation, or gain, including debt management plans." S.C. Code Ann. Section 37-7-101. However, the Act exempts from the definition of credit counseling organization "attorneys at law".
Plaintiff first argued that the Department of Consumer Affairs (Department) did not have authority to grant or deny exemptions. While ALC agreed, the Supreme Court denied such conclusion and found the Department charged by the Legislature to issue licenses and consequently authorized to determine whether a party is exempt from the license requirement.
The Court then held that the exemption for attorneys at law referred to conduct in the regular course of the respective profession. Furthermore, the attorney at law must be licensed to practice law in South Carolina to be exempt. Because the Utah law firm engaged in credit counseling without being licensed to practice law in South Carolina, the firm did not qualify for the exemption and was found in violation of the Act.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.
South Carolina Supreme Court reversed an order by the South Carolina Administrative Law Court (ALC) granting summary judgment in favor of Lexington Law Firm, a Utah-based law firm. The Court determined the scope of the South Carolina Consumer Credit Counseling Act (Act).
Pursuant to section 37-7-102 of the Act, a person may not engage in credit counseling in South Carolina unless properly licensed to do so. A credit counseling organization is a person providing credit counseling for a "fee, compensation, or gain, or in the expectation of a fee, compensation, or gain, including debt management plans." S.C. Code Ann. Section 37-7-101. However, the Act exempts from the definition of credit counseling organization "attorneys at law".
Plaintiff first argued that the Department of Consumer Affairs (Department) did not have authority to grant or deny exemptions. While ALC agreed, the Supreme Court denied such conclusion and found the Department charged by the Legislature to issue licenses and consequently authorized to determine whether a party is exempt from the license requirement.
The Court then held that the exemption for attorneys at law referred to conduct in the regular course of the respective profession. Furthermore, the attorney at law must be licensed to practice law in South Carolina to be exempt. Because the Utah law firm engaged in credit counseling without being licensed to practice law in South Carolina, the firm did not qualify for the exemption and was found in violation of the Act.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.
The Supreme Court Reinstates Requirements to Reestablish Surgeon's Competency
The Supreme Court of South Carolina reversed in part a decision by the Administrative Law Court regarding a surgeon's reestablishment of competency to practice medicine. Osman v. S.C. Dep't of Labor, Licensing, and Regulation, 2009 S.C. LEXIS 99 (Apr. 27, 2009). The surgeon performed a Caesarean section ("C-Section") on a patient who, due to complications, almost lost her life.
The South Carolina Board of Medical Examiners ("Board") alleged about thirteen deviations from the standard of care. The surgeon admitted to the following: inappropriately performing the surgery in a community county hospital with limited resources; failing to ensure surgical backup; and failing to obtain written consent. The Board then issued a public reprimand, imposed costs of the proceedings, and required that the surgeon meet certain conditions to be able to return to the practice of surgical obstetrics. The Administrative Law Court, while allowing the public reprimand and the costs, stroke the competency requirements.
The Supreme Court agreed with the Board. Section 40-1-120(A)(3) of the South Carolina Code of Laws permits the Board to put the licensee on probation and require that certain conditions be met during this period, including additional education or supervision. The surgeon, therefore, had to comply with the Board's conditions to be able to return to her practice.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.
Helpful Chart Outlining the Disciplinary Process
South Carolina Department of Labor, Licensing, and Regulation prepared a flow chart to help people understand the agency's disciplinary process. Licensees may be subject to these procedures when either attempting to obtain a professional/occupational license, or possibly committing a violation of the laws. Note that one who committed a violation may initially only get a warning letter. To view the flow chart click here.
License Revocation May Violate South Carolina Constitution
Administrative agencies revoke professional and occupational licenses often. The reason most of the time is some unethical or unprofessional behavior. The South Carolina Constitution ("Constitution") gives licensees the right to due process. Such privilege has two components. Substantive due process prohibits the state from depriving persons of some entitlement or property. The procedural due process lays out the course of action the state must follow in carrying out its practices.
Procedural due process may serve as an argument against a person's license revocation or cancellation. Article I, section 22 of the Constitution provides: "No person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard; nor shall he be subject to the same person for both prosecution and adjudication; nor shall he be deprived of liberty or property unless by a mode of procedure prescribed by the General Assembly, and he shall have in all such instances the right to judicial review." S.C. Const. Art. I, Sec. 22. Importantly, note that the same person may not act as both a prosecutor and adjudicator.
The Supreme Court of South Carolina discussed the prohibition on prosecuting and adjudicating powers in Garris v. Governing Bd. of the State Reinsurance Facility, 333 S.C. 432 (1998). Appellant insurance agent brought a claim against the Facility alleging that the revocation of his agent status was unconstitutional. The Facility voted to revoke appellant's status for unethical behavior when underwriting.
The Court first held, in opposition to the Facility's arguments, that the facility was a state and not a private agency. The Facility is an administrative agency with rule-making abilities and is therefore subject to the state Constitution. Due process requires that a licensee be provided with a notice, an opportunity to be heard, an impartial adjudicator, and judicial review. The purpose of section 22 is to ensure adjudications are conducted by impartial bodies. In the instant case, the Court found that five of the members who voted to change the licensee's status were also present at all open and executive sessions pertaining to the licensee's case. The Facility failed to offer procedural due process.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.
Commercial General Liability Insurance Carrier Did Not Cover Liability for Professional Services
Wimberly Allison Tong & Goo, Inc. v. Travelers Prop. Casualty Co. of Am., 559 F. Supp. 2d 504 (D.C. N.J 2008).
This case involved an architect who was sued by several parties who either sustained injuries or lost loved ones when a parking garage colapsed. Defendant, the architect, argued that its general commercial liability (GCL) insurance carrier and excess GCL insurance carrier had an obligation to defend under the architect's policy. The insurers, however, rejected the architect's claims, noting that the exclusion for liability resulting from professional services applies.
The architect's argument in support of his position that the exclusion was inapplicable was that plaintiff's causes of action for "nuisance" and "negligence" were something "other than professional services." Also, the architect stated plaintiff did not mark the "professional malpractice" when filling out the Civil Case Information Statement.
The New Jersey District Court rejected the architect's argument and found the "professional services" exclusion applicable. The court stated that the causes of action against the architect were not based on general business services, but on the particular professional services that fall under the policy exclusion. The insurance carriers had no duty to defend.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.
A Licensee Must Be Given a Meaningful Opportunity to Contest a License Suspension
Anonymous Physician v. SCDLLR, 98-ALJ-11-0480-IJ (1998).
A psychiatrist licensed to practice in South Carolina was charged with committing a lewd act upon a nine year old minor. The Board issued an Order for Temporary Suspension of the psychiatrist's license. The Board then denied the licensee's Petition for Reinstatement without holding a hearing.
The Administrative Law Court cited section 1-23-270(c) of the South Carolina Code of Laws. The Court noted that a Board must make specific findings of fact in its orders. In the case at issue, no evidence of any such findings existed. Where material facts are in dispute, the Board may not simply recite the facts and reach a conclusion without any investigation.
The Court therefore concluded that suspending the petitioner's license without offering him a meaningful opportunity to contest the suspension constitutes a denial of due process. The license was reinstated, therefore, pending a "prompt" resolution of the disciplinary claims against petitioner.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.
Employers Must Check that All Employees Have Valid Work Authorization
South Carolina adopted the Illegal Immigration Reform Act in
To hire new employees, all private employers must have a valid employment license by
Public employers must use E-Verify for all new employees and must act in good faith to determine if a private service provider meets the Act requirements. A written statement by the private contractor certifying compliance is sufficient. Also called the Basic Pilot Program, E-Verify is available in all 50 states. The Act has only been extended until
Employers must enter the information on Form I-9 into the E-Verify system and continue checking the employees’ statuses. Most inquiries are resolved immediately; an employer will receive a “tentative non-confirmation notice” otherwise. An employee has 8 federal workdays to clear up his status once a tentative non-confirmation notice is received. Employers must remember they cannot take adverse action (fire, suspend, not pay) against employees meanwhile. Once they receive a final non-confirmation, employers must terminate the employee. For more information about E-Verify, go to www.dhs.gov/e-verify.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.
Physician Disciplinary Proceedings Are Confidential until Final Order Is Issued
Physician disciplinary proceedings are considered confidential until a final order is issued by the Board of Medical Examiners. Also, proceedings may be made public if the physician desires and requests so.
Section 1-23-600(A) of the South Carolina Code of Laws Annotated provides: "Proceedings before administrative law judges are open to the public unless confidentiality is allowed or required by law . . . The decisions or orders of administrative law judges are not required to be published, but are available for public inspection unless the confidentiality thereof is allowed or required by law." (Emphasis Added).
Also, section 40-47-213 of the Code states: "No person . . . may mention the existence of the complaint, investigation, or other proceeding, disclose any information pertaining to the complaint, investigation, or other proceeding, or discuss any testimony or other evidence in the complaint, investigation, or other proceeding, except to persons involved and having a direct interest in the complaint, investigation or other proceeding, and then only to the extent necessary for the proper disposition of the complaint, investigation, or other proceeding. . . ."
Note, however, that although the administrative law court may keep disciplinary proceedings confidential until an order is final, as a public body, the court must make specific findings of fact when faced with issues in which there are disputes.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.
The South Carolina Administrative Law Court May Only Review "Final" Orders
Island Packet v. Kittrell, 365 S.C. 332, 617 S.E.2d 730 (2005).
The South Carolina Supreme Court held that the South Carolina Administrative Law Court cannot review interlocutory orders by the Board of Medical Examiners in disciplinary proceedings against a physician. Interlocutory orders are those that are not considered final, thus not immediately appealable.
The Board's orders temporarily suspended the physician's license based on findings of alcohol abuse. While the orders suspended the license, they also included language stating that a Board hearing was to be held before the Board's decision would become final. The Supreme Court noted S.C. Code Section 1-23-600(D) and S.C. Code Section 1-23-380 and stated that the Administrative Law Court has authority to review final decisions of the Board.
Importantly, however, the Supreme Court emphasized that its holding was not a general one: "We refrain from stating a general rule that any interlocutory order by the Board is or is not immediately appealable to the [Administrative Law Court]." The decision of whether an order is final or not should be made on a case-by-case basis.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.
Employers, Keep in Mind Possible OSHA Inspections
Employers should be prepared for a possible workplace inspection by the Occupational Safety and Health Administration (OSHA). An inspection may be conducted because of a complaint, fatality in the facility, a scheduled inspection, or a follow-up visit.
Violations vary depending on the nature of the operations. Common violations include machine guarding, lockout/tagout, ladders and scaffolding, hazardous chemicals, and electrical safety. Even if an inspection is limited to the area, it can be expanded if the inspectors find something inside.
The OSHA inspection has four steps. First, the employer and the inspector have an opening conference. The inspector provides a copy of the complaint, if any, but cannot mention the name of the employee who submitted it. The parties discuss the inspection process and relevant information. If lying, an employer can be subject to a fine up to $10,000 and up to a year in jail.
Then, the inspector asks to see the OSHA 300 Log and all other forms pertaining to accidents and other safety problems. Next, for the walk-through, the inspector and his assistants must wear the requiredPPE . The inspector has the right to talk to employees and they have the right to answer, even privately if so requested. Take the direct route to the location if one was specified in a complaint.
Fix any hazard that the inspector notes, even if it does not violate OSHA regulations. The company may refuse to let the inspector see machinery in operation. But it is better to allow such observation unless it is unsafe or out for repair. Keep all documentation of the walk-through.
Finally, the closing conference reviews violations and suggests correction methods. The company has the opportunity to defend itself then.
All requirements that an employer must meet are set forth in the Occupational Safety and Health Act ("Act"). The agency has compiled a OSHA Checklist for the Construction Industry to aid employers in complying with the Act. A company prepared for an inspection will be less worried about when OSHA might show up.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.
Violations vary depending on the nature of the operations. Common violations include machine guarding, lockout/tagout, ladders and scaffolding, hazardous chemicals, and electrical safety. Even if an inspection is limited to the area, it can be expanded if the inspectors find something inside.
The OSHA inspection has four steps. First, the employer and the inspector have an opening conference. The inspector provides a copy of the complaint, if any, but cannot mention the name of the employee who submitted it. The parties discuss the inspection process and relevant information. If lying, an employer can be subject to a fine up to $10,000 and up to a year in jail.
Then, the inspector asks to see the OSHA 300 Log and all other forms pertaining to accidents and other safety problems. Next, for the walk-through, the inspector and his assistants must wear the required
Fix any hazard that the inspector notes, even if it does not violate OSHA regulations. The company may refuse to let the inspector see machinery in operation. But it is better to allow such observation unless it is unsafe or out for repair. Keep all documentation of the walk-through.
Finally, the closing conference reviews violations and suggests correction methods. The company has the opportunity to defend itself then.
All requirements that an employer must meet are set forth in the Occupational Safety and Health Act ("Act"). The agency has compiled a OSHA Checklist for the Construction Industry to aid employers in complying with the Act. A company prepared for an inspection will be less worried about when OSHA might show up.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.