South Carolina Code 40-23-95. Administrative citations; cease and desist orders; protest hearings; appeals; disciplinary hearings; enforcement of contracts
(B)(1) The department may issue separate citations and assess separate administrative penalties for each violation. However, no more than two thousand dollars in administrative penalties may be assessed against a person a day pursuant to a single citation.
Terms Used In South Carolina Code 40-23-95
- abatement: refers to actions taken to ameliorate or correct conditions requiring remediation as defined in this section. See South Carolina Code 40-23-20
- Administrator: means the individual to whom the director has delegated authority to administer the programs of a specific board or of a professional or occupational group for which the department has regulatory authority or has delegated authority to administer the programs of a specific board;
(2) "Authorization to practice" or "Practice authorization" means the approval to practice the specified profession, engage in the specified occupation, or use a title protected under this article, which has been granted by the applicable board. See South Carolina Code 40-1-20 - Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Affirmed: In the practice of the appellate courts, the decree or order is declared valid and will stand as rendered in the lower court.
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Board: means the South Carolina Environmental Certification Board. See South Carolina Code 40-23-20
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Contract: A legal written agreement that becomes binding when signed.
- Department: means the Department of Labor, Licensing and Regulation;
(5) "Director" means the Director of the Department of Labor, Licensing and Regulation or the director's official designee;
(6) "Licensee" means a person granted an authorization to practice pursuant to this article and refers to a person holding a license, permit, certification, or registration granted pursuant to this article;
(7) "Licensing act" means the individual statute or regulations, or both, of each regulated profession or occupation which include, but are not limited to, board governance, the qualifications and requirements for authorization to practice, prohibitions, and disciplinary procedures;
(8) "Person" means an individual, partnership, or corporation;
(9) "Profession" or "occupation" means a profession or occupation regulated or administered, or both, by the department pursuant to this article. See South Carolina Code 40-1-20 - Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- License: means a serially numbered document issued by the board, containing the name of the person registered, certified, or licensed and the date of registration, certification, or licensing and certifying that the person named is authorized to practice a profession regulated by the board as specified on said document. See South Carolina Code 40-23-20
- Licensee: means a person currently or previously authorized to practice a licensed activity pursuant to this chapter and includes a person holding a license, permit, certification, or registration granted pursuant to this chapter. See South Carolina Code 40-23-20
- Person: means an individual, partnership, copartnership, cooperative, firm, company, public or private corporation, political subdivision, government agency, trust, estate, joint structure company, or any other legal entity or its legal representative, agent, or assigns. See South Carolina Code 40-23-20
- Pleadings: Written statements of the parties in a civil case of their positions. In the federal courts, the principal pleadings are the complaint and the answer.
- Prosecute: To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government.
(2) Administrative citations may include an order to abate any existing violations, where possible and appropriate, by a date certain. Abatement, timely or otherwise, does not absolve the accused of professional misconduct or of other violation of law or terminate the board‘s jurisdiction to prosecute the accused on these grounds. However, the board or hearing officer may take timely abatement into consideration in determining an appropriate sanction, including reduction or elimination of a minimum sanction otherwise required by law.
(3) If within fifteen calendar days of a person’s receipt of an administrative citation issued by the department, the person files a written protest of the citation with the board administrator, a protest hearing must be scheduled before the board or before a hearing officer appointed by the board. Timely filing of the protest stays imposition of the sanctions assessed by the citation until final order of the board. If no protest is timely filed, the citation is deemed a final order of the board and the administrative penalties must be paid within thirty days of receipt of the citation.
(4) If a citation is timely protested, the protesting party must be given no less than thirty days’ notice of the place and date of the protest hearing. The hearing must be conducted in accordance with the Administrative Procedures Act hearing procedures under this title. Service of the notice of hearing shall be accomplished in the same manner as specified for pleadings by § 40-23-90. Failure to appear may be deemed a default and an admission to the violations specified in the citation.
(5) After notice and hearing, the board or hearing examiner shall issue an order which may affirm, dismiss, or modify the citation. A party aggrieved by a final order from a protest hearing conducted by a hearing officer may appeal to the full board within fifteen calendar days of the party’s receipt of a written order by a hearing. The notice of appeal must be in writing and served upon the administrator of the board. Appeals from the decision of the board are to an administrative law judge in accordance with Title 1, Chapter 23, Article 5.
(6) Nothing in this section is to be construed as limiting in any way the authority of the board or the department to seek other applicable remedies which are provided by this chapter or by any other provision of law including, but not limited to, civil penalties, injunctive relief, and criminal sanctions.
(C) A licensee who within any three-year period, or as otherwise provided by regulation, has accumulated at least three final, affirmed citations pursuant to this chapter and who is accused of any subsequent violations of this chapter or regulations promulgated under this chapter, upon receipt of a formal complaint and notice of hearing, shall appear before the board for a disciplinary hearing. The licensee is subject to all applicable sanctions that may be imposed under these proceedings. Further, in any circumstance where a citation is issuable pursuant to this chapter, except for prosecution for unlicensed practice, the department may elect to recommend the matter for disciplinary proceedings by formal complaint pursuant to § 40-23-90.
(D) A person who, without a valid license as required by this chapter, engages in any activity requiring licensure by this chapter may not bring any action or raise a counter-claim, either at law or in equity, to enforce the provisions of any contract arising from, or in any way associated with, the performance of or commitment to perform, such activity. A sworn affidavit from department staff attesting to a person’s unlicensed status is admissible without further foundation as a defense in a proceeding to enforce provisions of a contract associated with activities requiring a license by this chapter.