H 4508 General Bill, By Davenport
 A BILL TO AMEND SECTION 1-23-370, CODE OF LAWS OF SOUTH CAROLINA, 1976,
 RELATING TO PROCEDURES FOR LICENSING UNDER THE ADMINISTRATIVE PROCEDURES ACT,
 SO AS TO AFFORD THE LICENSEE A REASONABLE OPPORTUNITY TO SHOW COMPLIANCE
 BEFORE INSTITUTION OF A PROCEEDING TO REVOKE, SUSPEND, ANNUL, OR WITHDRAW A
 LICENSE AND TO REQUIRE A GOOD FAITH FINDING OF EMERGENCY BEFORE A SUMMARY
 SUSPENSION OF A LICENSE; TO AMEND SECTION 15-77-300, RELATING TO ATTORNEY'S
 FEES TAXED AGAINST A STATE AGENCY, SO AS TO ALLOW THE TAXING OF ATTORNEY'S
 FEES AGAINST A STATE LICENSING BOARD WHICH SUMMARILY SUSPENDS A LICENSE
 WITHOUT COMPLIANCE WITH THE REQUIREMENTS OF SECTION 1-23-370 PROVIDED ABOVE;
 AND TO AMEND SECTION 40-1-100, AS AMENDED, RELATING TO EQUITABLE REMEDIES
 AVAILABLE TO LICENSING BOARDS, SO AS TO REQUIRE A GOOD FAITH BELIEF THAT A
 VIOLATION IS OCCURRING OR MAY OCCUR BEFORE A BOARD SEEKS AN EQUITABLE REMEDY
 AND TO CREATE A CAUSE OF ACTION FOR DAMAGES RESULTING FROM WRONGFUL EQUITABLE
 RELIEF.

   01/27/98  House  Introduced and read first time HJ-343
   01/27/98  House  Referred to Committee on Judiciary HJ-343

A BILL

TO AMEND SECTION 1-23-370, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PROCEDURES FOR LICENSING UNDER THE ADMINISTRATIVE PROCEDURES ACT, SO AS TO AFFORD THE LICENSEE A REASONABLE OPPORTUNITY TO SHOW COMPLIANCE BEFORE INSTITUTION OF A PROCEEDING TO REVOKE, SUSPEND, ANNUL, OR WITHDRAW A LICENSE AND TO REQUIRE A GOOD FAITH FINDING OF EMERGENCY BEFORE SUMMARY SUSPENSION OF A LICENSE; TO AMEND SECTION 15-77-300, RELATING TO ATTORNEY'S FEES TAXED AGAINST A STATE AGENCY, SO AS TO ALLOW THE TAXING OF ATTORNEY'S FEES AGAINST A STATE LICENSING BOARD WHICH SUMMARILY SUSPENDS A LICENSE WITHOUT COMPLIANCE WITH THE REQUIREMENTS OF SECTION 1-23-370 PROVIDED ABOVE; AND TO AMEND SECTION 40-1-100, AS AMENDED, RELATING TO EQUITABLE REMEDIES AVAILABLE TO LICENSING BOARDS, SO AS TO REQUIRE A GOOD FAITH BELIEF THAT A VIOLATION IS OCCURRING OR MAY OCCUR BEFORE A BOARD SEEKS AN EQUITABLE REMEDY AND TO CREATE A CAUSE OF ACTION FOR DAMAGES RESULTING FROM WRONGFUL EQUITABLE RELIEF.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Section 1-23-370(c) of the 1976 Code is amended to read:

"(c) No revocation, suspension, annulment, or withdrawal of any a license is lawful unless, prior to before the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an a reasonable opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds makes a good faith finding that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall must be promptly instituted and determined promptly."

SECTION 2. Section 15-77-300 of the 1976 Code is amended to read:

"Section 15-77-300. In any a civil action brought by the State, any a political subdivision of the State, or any a party who is contesting state action, unless the prevailing party is the State or any a political subdivision of the State, the court may allow the prevailing party to recover reasonable attorney's fees to be taxed as court costs against the appropriate agency if the court finds that:

(1) The court finds that the agency acted without substantial justification in pressing its claim against the party; and

(2) The court finds that there are no special circumstances that would make the award of attorney's fees unjust.

The provisions of this section do not apply to civil actions relating to the establishment of public utility rates, disciplinary actions by state licensing boards other than the summary suspension of a license in violation of Section 1-23-370(c), habeas corpus or post conviction relief actions, child support actions, except as otherwise provided for herein, and child abuse and neglect actions."

SECTION 3. Section 40-1-100 of the 1976 Code, as last amended by Act 453 of 1996, is further amended to read:

"Section 40-1-100. (A) When the board has reason to believe a good faith belief that a person is violating or intends to violate a provision of this article or a regulation promulgated under this article, in addition to all other remedies, it may order the person immediately to cease and desist from engaging in the conduct. If the person is practicing a profession or occupation without being licensed under this article, is violating a board order, a provision of this article, or a regulation promulgated under this article, the board also may apply, in accordance with the rules of the Administrative Law Judge Division, to an administrative law judge for a temporary restraining order or other equitable relief.

No A board member or the Director of the Department of Labor, Licensing, and Regulation or another employee of the department may be held liable for damages resulting from a bad faith, negligent, reckless, or otherwise wrongful temporary restraining order or other equitable remedy including, but not limited to, an order or other remedy resulting from failure to comply with Section 1-23-370(c).

(B) The board may seek from an administrative law judge other equitable relief to enjoin the violation or intended violation of this article or a regulation promulgated under this article."

SECTION 4. This act takes effect upon approval by the Governor.