References revised
SECTION 846. Section 39-9-230 of the 1976 Code is amended to read:
"Section 39-9-230. The Commissioner of Agriculture shall have general advisory authority over the implementation of the metric system in this State. To assist in such implementation there is hereby created a nine member advisory committee including the executive officers or their designated staff member from the State Law Enforcement Division, the Commission on Higher Education, the State Board for Technical and Comprehensive Education, the Department of Education, the Department of Transportation, Department of Public Safety, the Department of Commerce, one member appointed by the Governor who is associated with the textile industry and shall serve without compensation, and one member appointed by the Governor from his staff. If any designated member ceases to be on the staff of any of the above-mentioned state agencies he shall no longer be a member of the advisory committee and the executive officer shall serve or designate another member of his staff to serve on the committee. Members of the committee shall serve until such time as the provisions of this section and Section 39-9-240 have been fully implemented. The Commissioner of Agriculture, with the assistance and recommendations of the committee, shall: (1) formulate a suggested program as may be necessary to plan for the gradual implementation in the commerce of this State to the metric system; (2) provide to the General Assembly recommendations for achieving conversion of units of measurement as used in this State to the metric system; (3) encourage all state departments, divisions, agencies, boards and commissions having any authority or responsibility in matters concerning standards of weights and measurement to initiate planning for the gradual conversion to and implementation of the metric system of weights and measures of this State."
Reference revised
SECTION 847. Section 39-15-170 of the 1976 Code is amended to read:
"Section 39-15-170. Any mark or name used to advertise the chemical or other contents of food products grown in this State or other articles shall not be sold, bartered or exchanged by any person except through and by the Director of the Department of Commerce. The director is entrusted with handling by selling, or otherwise, any mark used for the purpose set forth in this section and may use under its direction any officer of the state for the purpose of handling such mark. Any person violating the provisions of this section shall, upon conviction, be subject to a fine or imprisonment, in the discretion of the court."
Reference revised
SECTION 848. Section 39-41-40 of the 1976 Code is amended to read:
"Section 39-41-40. The Department of Public Safety, through the facilities of the motor vehicle division, South Carolina Highway Patrol and law enforcement agents may, upon the request of the Commissioner of Agriculture, assist in the enforcement of all laws relating to the inspection of petroleum products."
Reference revised
SECTION 849. Section 39-57-20 of the 1976 Code is amended to read:
"Section 39-57-20. As used in this chapter `business opportunity' means the sale or lease of any products, equipment, supplies, or services which are sold to the purchaser for the purpose of enabling the purchaser to start a business, for which the purchaser is required to pay the seller a fee which exceeds two hundred fifty dollars, and in which the seller represents: (1) that he will provide locations or assist the purchaser in finding locations for the use or operation of vending machines, racks, display cases or other similar devices, or currency-operated amusement machines or devices, on premises neither owned nor leased by the purchaser or seller; or (2) that he will purchase any or all products made, produced, fabricated, grown, bred, or modified by the purchaser using in whole or in part, the supplies, services, or chattels sold to the purchaser; or (3) that he guarantees that the purchaser will derive income from the business opportunity which exceeds the price paid for the business opportunity; or that he will refund all or part of the price paid for the business opportunity, or repurchase any of the products, equipment, supplies, or chattels supplied by the seller, if the purchaser is unsatisfied with the business opportunity; or (4) the seller will provide a sales program or marketing program which will enable the purchaser to derive income from the business opportunity which exceeds the price paid for the business opportunity; provided, that this subsection does not apply to the sale or a marketing program made in conjunction with the licensing of a registered trademark or service mark. `Business opportunity' does not include the sale of ongoing businesses when the owner of those businesses sells or intends to sell any portion thereof; provided, a business is not considered an ongoing business unless it has filed income tax returns with the South Carolina Department of Revenue and Taxation for at least one year; nor does it include the sale of assets or substantially all of the assets of an ongoing business; nor does it include payment for the not-for-profit sale of sales demonstration equipment, material or samples, or where the payment is made for product inventory sold to the purchaser at a bona fide wholesale price; nor does it include the sale or lease of any products, equipment, supplies, or services where the seller has a net worth on a consolidated basis, according to its most recent audited financial statement, of not less than ten million dollars."
Board may prescribe rules
SECTION 850. Section 40-1-140 of the 1976 Code is amended to read:
"Section 40-1-140. The board may prescribe rules, regulations and bylaws, in harmony with the provisions of this chapter, for its own proceedings and government and for the examination of applicants for the practice of accounting. The board may promulgate and amend rules of professional conduct appropriate to establish and maintain a high standard of integrity and dignity in the profession of public accountancy. Within sixty days after the promulgation of any such rule or amendment, the board shall mail copies of the rule or amendment to each holder of a license issued under this article, with a notice advising him of the effective date of the rule or amendment. Failure to mail such rule, amendment or notice to all license holders shall not affect the validity of any such rule or amendment. The board, or any member thereof, may issue subpoenas to compel the attendance of witnesses and the production of documents, and may administer oaths, take testimony, hear proofs and receive exhibits in evidence for all purposes required in the discharge of its duties. In case of disobedience to a subpoena the board may invoke the aid of an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 in requiring the attendance and testimony of witnesses and the production of documentary evidence and shall adopt a seal to be affixed to all its official documents."
Board to conduct proceedings
SECTION 851. Section 40-1-310 of the 1976 Code is amended to read:
"Section 40-1-310. (a) The board may initiate proceedings under this article either on its own motion or on the complaint of any person. (b) A written notice, stating the nature of the charge against the accused and the time and place of the hearing before the board on such charge, shall be served on the accused not less than thirty days prior to the date of the hearing, either personally or by mailing a copy thereof by registered mail to the address of the accused last known to the board. (c) If, after having been served with the notice of hearing as provided for herein, the accused fails to appear at the hearing and defend, the board may proceed to hear evidence against him and may enter such order as shall be justified by the evidence, which order shall be final unless the accused petitions for a review thereof as provided herein; provided, however, that within thirty days from the date of any order, upon showing of good cause for failing to appear and defend, the board may reopen the proceedings and may permit the accused to submit evidence in his behalf. (d) At any hearing the accused may appear in person and by counsel produce evidence and witnesses on his own behalf, cross-examine witnesses, and examine such evidence as may be produced against him. The accused shall be entitled, on application to the board, to the issuance of subpoenas to compel the attendance of witnesses on his behalf. (e) The board shall not be bound by technical rules of evidence. (f) A record of the hearings shall be kept and filed with the board. (g) At all hearings the Attorney General of this State, or one of his assistants designated by him, or such other legal counsel as may be employed, shall appear and represent the board. (h) The decision of the board shall be by majority vote thereof, except a decision to revoke the permit must be by unanimous vote of those voting. (i) Anyone adversely affected by any order of the board may obtain a review thereof by filing a written petition for review with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 within thirty days after the entry of the order. The petition shall state the grounds upon which the review is asked. A copy of such petition shall be forthwith served upon any member of the board and thereupon the board shall certify and file with the administrative law judge as provided under Article 5 of Chapter 23 of Title 1 a copy of the record upon which the order complained of was entered. The administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may, in its discretion, stay the effect of the board's order pending its determination of the case."
Board may file suit
SECTION 852. Section 40-1-350 of the 1976 Code is amended to read:
"Section 40-1-350. As cumulative of any other remedy or criminal prosecution, whenever it shall appear to the board that any person violated any of the provisions of this article, or the lawful rules, regulations or orders of the board, or any of the laws of this State relating to accountancy, the board may file a suit in equity in its own name, or in the name of the state, on its own relation, and by its counsel, with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 alleging the facts and praying for a temporary restraining order or permanent injunction against such person, restraining him from violating such law, order, rule or regulation, or commanding him to obey such law, order, rule or regulation. Upon proper application, and showing that such person is not registered, or that a renewal certificate has not been applied for, or that registration has been denied, revoked or suspended, or that the law, order, rule or regulation has been or is about to be violated or disobeyed, which showing may be made by affidavit, the administrative law judge as provided under Article 5 of Chapter 23 of Title 1 shall issue a temporary restraining order or injunction, and, upon final hearing, shall grant and issue an injunction, including mandatory injunction, upon finding the truth and sufficiency of the allegations of the petition. An administrative law judge, as provided under Article 5 of Chapter 23 of Title 1, may enforce the injunction by punishment for contempt, and by such other process as is permitted to circuit courts, and shall make such other orders as its discretion and the rules shall require. Such injunction may be limited in time, perpetual or conditional, as may be necessary and proper to the enforcement of this article, or the lawful rules, regulations or orders of the board, or the law of this State relating to accountancy."
Compensation of members of the board
SECTION 853. Section 40-3-40 of the 1976 Code is amended to read:
"Section 40-3-40. The members of the board must be compensated for their services at the regular per diem rate established by the General Assembly for other state boards and must be reimbursed for actual and necessary expenses incurred in connection with and as a result of their work as members of the board. All costs and expenses may be paid only from the fees and dues received and no claim may be made upon the State Treasury under this chapter."
Investigation by the board
SECTION 854. Section 40-3-120 of the 1976 Code is amended to read:
"Section 40-3-120. Whenever the board has reason to believe that any registrant has become unfit to practice architecture or has violated any of the provisions of this chapter or regulation of the board, or whenever a written complaint charging the holder of a registration certificate with the violation of any provision of this chapter is filed with the board, the board shall initiate an investigation within thirty days. If after investigation it appears that probable cause exists for a hearing, a time and place must be set by the board for a hearing to determine whether or not the registration must be suspended or revoked or other disciplinary action taken. No action may be taken by the board until the registrant has been furnished with a statement of the charges against him and by whom he is charged and the names and addresses of all witnesses against him and a notice of the time and place of the hearing on the charges pursuant to the Administrative Procedures Act (Section 1-23-310 et seq.). The notice and statement of charges must be sent to the accused by certified mail return receipt requested at his last known place of residence. The accused may appear and show cause why his registration should not be suspended or revoked or other disciplinary action taken. The accused has the right (a) to be confronted with and to cross-examine the witnesses against him, (b) to have witnesses subpoenaed in his behalf, and (c) to be heard in person and by counsel. Any hearing is open to the public. A stenographic record of each proceeding to revoke, suspend, or otherwise restrict or penalize a registrant must be made at the expense of the board. If a majority of the board is satisfied that the registrant is guilty of any offense charged in the formal accusation provided for in this chapter, it shall revoke, suspend, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose restraint upon the registrant as circumstances warrant until the registrant demonstrates to the board adequate professional competence. The board may also impose a civil penalty of up to two thousand dollars for each violation of the provisions of this chapter or the regulations promulgated by the board, but the total of the penalties imposed for these violations may not exceed ten thousand dollars. In all cases where disciplinary action is taken by the board, written notice of the action must then be sent by certified mail return receipt requested by the secretary of the board to the accused at his last known address, as provided to the board. Any final order of the board finding that a registrant is guilty of any offense charged in a formal accusation becomes public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. Any decision by the board to revoke, suspend, or otherwise restrict the architect's registration or impose a civil penalty must be by majority vote and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Board empowered to issue subpoenas
SECTION 855. Section 40-3-135 of the 1976 Code is amended to read:
"Section 40-3-135. The board or any member of the board may issue subpoenas to compel the attendance of witnesses and the production of documents and also may administer oaths, take testimony, hear proofs, and receive exhibits in evidence for all purposes required in the discharge of duties under this chapter. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 shall enforce any subpoena issued pursuant to this section."
Board may file temporary restraining order or permanent injunction
SECTION 856. Section 40-3-140 of the 1976 Code is amended to read:
"Section 40-3-140. As cumulative of any other remedy or criminal prosecution, whenever it appears to the board that any person violated any of the provisions of this chapter, or the regulations or orders of the board, or any of the laws of this State relating to architecture, the board may file a suit in equity in its own name or in the name of the state, on its own relation and by its counsel with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, alleging the facts and praying for a temporary restraining order or permanent injunction against the person, restraining him from violating the law, order, or regulation or commanding him to obey the law, order, or regulation. Upon proper application and showing that the person is not registered, or that a renewal certificate has not been applied for, or that registration has been denied, revoked, or suspended, or that the law, order, or regulation has been or is about to be violated or disobeyed, which showing may be made by affidavit, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 shall issue a temporary restraining order or injunction and, upon final hearing, shall grant and issue an injunction, including mandatory injunction, upon finding the truth and sufficiency of the allegations of the petition. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may enforce the injunction by punishment for contempt and by any other process permitted to circuit courts and make other orders in its discretion. The injunction may be limited in time, perpetual or conditional, as may be necessary and proper to the enforcement of this chapter, or the regulations or orders of the board, or the law of this State relating to architecture."
Members of the commission must be licensed auctioneers
SECTION 857. Section 40-6-40 of the 1976 Code is amended to read:
"Section 40-6-40. At least three members of the commission must be licensed auctioneers and must be active in the auction profession. At least one member must not be connected with the auction business. Action taken by the commission may be taken by a vote of three members. A quorum consists of three members. The members shall elect from among themselves a chairman who serves for one year and until his successor is elected and qualifies. No member may serve more than two successive terms as chairman. The members of the commission shall receive the same per diem, mileage, and subsistence provided by law for members of state boards, committees, and commissions. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 4-73-15, shall employ an executive director who must have a minimum of five years experience as an auctioneer, an investigator or investigators, and other employees necessary to carry out the duties prescribed by this chapter. Employees serve at the pleasure of the Director of the Department of Labor, Licensing, and Regulation. The commission shall issue, suspend, and revoke licenses for auctioneers and apprentice auctioneers provided in this chapter and may promulgate regulations necessary to carry out its provisions."
Waiver of experience requirements
SECTION 858. Section 40-6-45 of the 1976 Code is amended to read:
"Section 40-6-45. In hiring an executive director, the Director of the Department of Labor, Licensing, and Regulation may waive the experience requirement provided in Section 40-6-40."
Appeals or denial of license, etc.
SECTION 859. Section 40-6-180 of the 1976 Code is amended to read:
"Section 40-6-180. No license may be denied, suspended, or revoked, and no other disciplinary action against a licensee may be taken, until after fifteen days' notice has been given in writing to the licensee or applicant stating the ground of the proposed action and until a public hearing has been held at which he shall have opportunity to be heard, present testimony in his behalf, and be confronted by witnesses against him, if he requests the hearing. The commission, in its discretion, may grant the accused a temporary permit to auction pending the hearing and determination. Determinations must be made and the licensee or applicant notified of them within five days after the hearing. Any auctioneer notified of a suspension may request a rehearing within twenty days from the date of notification of determination. Upon a rehearing and continued denial, suspension, or revocation of license, or other disciplinary action, or upon a refusal for rehearing, the party is entitled to appeal his case to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 (the Administrative Procedures Act). The commission or its authorized representatives may subpoena witnesses and documents for any hearing and may administer oaths to the witnesses."
Applications for payment from the fund
SECTION 860. Section 40-6-220 of the 1976 Code is amended to read:
"Section 40-6-220. (A) Applications for payment from the fund must be heard and decided by a majority of the members of the commission. After a hearing, if the commission finds that the claim must be paid from the fund, the commission or an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, if appealed, shall enter an order requiring payment in accordance with the limitations in this chapter. Subject to commission approval, a claim based upon an application for monies may be compromised. However, the commission is not bound by the compromise or stipulation of the licensee. (B) Upon payment of a claim, the license of the person against whom the claim was applied is revoked. The licensee must not be issued another license until he repays the monies from his claim to the fund, including interest at the rate of eight percent a year. Nothing in this section prevents the commission or other authority from pursuing other remedies at law or equity. (C) An applicant receiving monies from the fund shall subrogate rights relative to the claim to the commission to the extent of monies paid, including interest, and shall cooperate with the commission in the prosecution of the subrogated claim. Amounts recovered against the licensee or other responsible parties must be deposited into the fund, less costs and expenses of collection."
Board to elect its own officers
SECTION 861. Section 40-7-60 of the 1976 Code is amended to read:
"Section 40-7-60. The board shall elect its own officers. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, shall appoint a secretary. The secretary shall receive an annual salary, such salary, as well as all other expenses of the board, to be paid only out of the revenue derived from fees collected under the provisions of this chapter. The secretary shall keep and preserve all records of the board, issue all necessary notices to the barbers of the state and perform such other duties, clerical and otherwise, as may be imposed upon him by the Director of the Department of Labor, Licensing, and Regulation. The secretary shall turn over, as required by law, all moneys collected by him and render full, itemized and detailed reports therewith, as required by law. He shall, before entering upon the duties of his office, execute to the state a satisfactory bond, with a duly licensed bonding company in this State, as surety or with other acceptable surety, such bond to be in the penal sum of not less than ten thousand dollars and conditioned upon the faithful performance of the duties of his office. The Director of the Department of Labor, Licensing, and Regulation may employ such staff as he deems necessary to carry out functions of the board as prescribed in this chapter subject to funds available to the board."
Appeals
SECTION 862. Section 40-7-270 of the 1976 Code is amended to read:
"Section 40-7-270. Any barber in the state whose case has been passed upon by the board may appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Board created
SECTION 863. Section 40-9-30 of the 1976 Code is amended to read:
"Section 40-9-30. There is hereby created the South Carolina Board of Chiropractic Examiners consisting of eight members. One licensed chiropractor shall be appointed by the Governor from each congressional district who shall be a licensed and practicing chiropractor residing and practicing in the district he represents. The board shall certify in writing to the Governor the names of the two nominees who shall have received the highest number of votes in the subject district's election. The Governor may reject any or all of the nominees upon satisfactory showing as to the unfitness of those rejected. If the Governor declines to appoint any of such nominees so submitted, additional nominees shall be submitted in the same manner. One member of the board, who shall be a licensed and practicing chiropractor, shall be appointed by the Governor at large from the state, and one member shall be appointed by the Governor who shall not be a member of the chiropractic or medical profession. The conduct of the balloting for the nominees for the board from the respective congressional districts shall be the responsibility of the Board of Chiropractic Examiners. Each chiropractic member shall have been a regularly licensed and practicing chiropractor in South Carolina in good standing for a period of five years preceding the date of his appointment. The members of the board shall serve staggered terms with the members from the first, third and fifth district and one member at large who is not from the chiropractic or medical profession serving a two-year term, and all others serving a four-year term. All terms will be for four years after the initial board is appointed. The Governor may remove any member of the board who has been guilty of continued neglect of his duties, guilty of a misdemeanor, a felony or who is found to be incompetent. No member shall be removed without first giving him an opportunity to refute the charges filed against him. He shall be given a copy of the charges at the time they are filed. The South Carolina Board of Chiropractic Examiners shall meet at least twice a year at such time and place as determined by the board. The board shall hold elections for its officers each year. The board may call additional meetings when necessary for the transaction of board business. The board shall adopt rules and regulations for its government, and for judging the professional and ethical competence of chiropractors including the code of chiropractic ethics, and for the discipline of chiropractors. A majority of the board shall constitute a quorum for the transaction of business. The board may: (1) establish suitable procedures for carrying out its duties pursuant to the provisions of this chapter; (2) execute certificates which shall be accepted in the courts of this State and by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 as the best evidence as to the minutes of the board and the best evidence as to the registration or nonregistration of any person under the requirements of this chapter; (3) adopt, and from time to time, revise regulations not inconsistent with the law, as may be necessary to carry out the provisions of this chapter, including but not limited to regulations concerning patient care and treatment, solicitation of patients and advertising; provided, that the board shall not prohibit or discriminate as to advertising in any particular media; (4) cause the prosecution of all persons violating the provisions of this chapter and have power to incur necessary expenses therefor; (5) keep a record of all its proceedings; (6) (reserved); (7) fix the time for holding its meetings; (8) examine, license, and renew the licenses of qualified applicants and certify applicants as to their ability and as to the degree of their practice of chiropractic as authorized under the laws of this State; provided, however, that the non-chiropractic member of the board shall not participate in the examination of any license applicant on matters of technical or professional nature; provided, further, that the board shall use the National Board Examination of the National Board of Chiropractic Examiners in lieu of the state written examination for persons graduating from an approved chiropractic college pursuant to Section 40-9-40 after July 1, 1982. (9) judge the professional and ethical competence of chiropractors, establish a code of chiropractic ethics, and provide for the discipline of chiropractors; (10) order the revocation, suspension, or otherwise restrict the license of licensees to practice chiropractic or take any other disciplinary action other than revocation or suspension. Any action of the board relating to the revocation or suspension of a license, or other action restricting a license or otherwise disciplining a licensee, shall be taken only after a written complaint of misconduct has been filed with the board in accordance with regulations promulgated by the board. After such complaint a closed hearing shall be held by any examiner selected by the board after thirty days' notice to the complainant and the licensee or his counsel. The Attorney General's office upon request of the board shall present the case for the complainant before the examiner. Upon receipt of the examiner's report, the board shall notify the complainant and the licensee and his counsel of the time and place at which the board will consider the report for the purpose of determining its action thereon, such notice to be given not less than ten days prior to such meeting. The complainant and the licensee and his counsel shall have the right to appear before the board at such meeting and submit briefs and be heard in oral argument in opposition to or in support of the recommendations of the board. The Attorney General's office shall also have the right to appear before the board and submit briefs and be heard in oral argument. Upon its final review, the board may either dismiss the complaint or find that the licensee is guilty of misconduct meriting sanction. The board shall file a final certified report of the proceedings before it with the secretary of the board who shall forthwith notify the complainant and the licensee and his counsel of such action. A decision of the board to revoke, suspend or otherwise restrict a license or to limit or otherwise discipline a licensee or one who is found to be practicing chiropractic in noncompliance with this chapter shall not become effective until the tenth day following the date of delivery to the licensee of a written copy of the decision. Service of a petition for a review of the decision shall stay the board's decision pending completion of the appellate process."
Appeals from action of board
SECTION 864. Section 40-9-31 of the 1976 Code is amended to read:
"Section 40-9-31. Any action of the board relating to the revocation or suspension of a license, or other action restricting a license or otherwise disciplining a licensee shall be taken only after a written complaint of misconduct has been filed with the board in accordance with regulations promulgated by the board. After such complaint, a closed hearing shall be held by an examiner selected by the board after thirty days' notice to the complainant and the licensee or their counsel. The Attorney General's office, upon request of the board, shall present the case for the complainant before the examiner. Upon receipt of the examiner's report, the board shall notify the complainant and the licensee and his counsel of the time and place at which the board will consider the report for the purpose of determining its action thereon, such notice to be given not less than ten days prior to such meeting. The complainant and the licensee and his counsel shall have the right to appear before the board at such meeting, submit briefs and be heard in oral argument in opposition to or in support of the recommendations of the board. The Attorney General's office shall also have the right to appear before the board and submit briefs and be heard in oral argument. Upon its final review, the board may either dismiss the complaint or find that the licensee is guilty of misconduct meriting sanction. The board shall file a final certified report of the proceedings before it with the secretary of the board who shall forthwith notify the complainant and the licensee and his counsel of such action. A decision of the board to revoke, suspend or otherwise restrict a license or to limit or otherwise discipline persons engaging in the practice of chiropractic shall require a majority vote of the membership of the board. The board's decision shall be subject to appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, which shall hear the matter upon petition filed by the licensee with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 and served upon the secretary of the board within ten days from the date of delivery of the board's decision to the licensee. A decision by the board to revoke, suspend, or otherwise restrict a license or limit or otherwise discipline a licensee or one who is found to be practicing chiropractic in non-compliance with this chapter shall not become effective until the tenth day following the date of delivery to the licensee of a written copy of the decision. Service of a petition for a review of the decision shall stay the board's decision pending completion of the appellate process."
Director of department may appoint executive director
SECTION 865. Section 40-9-36 of the 1976 Code is amended to read:
"Section 40-9-36. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15 may appoint and employ a qualified person to serve as executive director, and shall fix his compensation and define his duties. The executive director of the board shall have the power to make contracts, with board approval, for the furtherance of the board's functions and the management of the office. The Director of the Department of Labor, Licensing, and Regulation may employ such other persons as may be necessary to carry on its work. The salaries of employees and necessary expenses incurred in the performance of their duties shall be paid out of funds held by the board."
Investigations or proceedings by the board
SECTION 866. Section 40-9-95 of the 1976 Code is amended to read:
"Section 40-9-95. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take testimony, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application by the board, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry. Whenever the board has sufficient evidence that any person is violating any provision of this chapter, it may, in addition to all other remedies, order such person to immediately desist and refrain from such conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from such conduct. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may issue a temporary injunction ex parte, and upon notice and full hearing may issue any other order in the matter it deems proper. No bond shall be required of the board by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 as a condition to the issuance of any injunction or order contemplated by the provisions of this section."
Board shall organize each year
SECTION 867. Section 40-11-40 of the 1976 Code is amended to read:
"Section 40-11-40. The board shall organize each year by electing a chairman and a vice-chairman, who shall serve for one year. The Director of the Department of Labor, Licensing, and Regulation pursuant to Section 40-73-15 may employ a secretary-treasurer or a secretary and a treasurer, who need not be members of the board. The board may make such bylaws, rules and regulations as it shall deem best, provided they are not in conflict with the laws of the state. The treasurer shall give bond in such sum as the director may determine, with such surety as shall be approved by the director, such bond to be conditioned for the faithful performance of the duties of his office and for the faithful accounting of all moneys and other property that shall come into his hands."
Director of department to employ personnel
SECTION 868. Section 40-11-60 of the 1976 Code is amended to read:
"Section 40-11-60. The Director of the Department of Labor, Licensing, and Regulation may pursuant to Section 40-73-15, employ such clerical, stenographic and other personnel as may be necessary, in his judgment, to the administration of this chapter and may prescribe their duties and fix their compensation, which shall be payable as an expense of the administration of this chapter."
Record of proceedings required
SECTION 869. Section 40-11-90 of the 1976 Code is amended to read:
"Section 40-11-90. A secretary shall keep a record of the proceedings of the board and a register of all applicants for licenses showing for each the date of application, name, qualifications, place of business, place of residence and whether the license was granted or refused. The books and register of the board shall be prima facie evidence of all matters recorded therein."
Board to issue license
SECTION 870. Section 40-11-150 of the 1976 Code is amended to read:
"Section 40-11-150. The board shall issue a license as a matter of right to any person who shall have had an application on a prescribed form therefor on file for at least seven days, presents a bidder's or contractor's certificate issued by the Department of Transportation under Section 57-5-1650, and pays the license fees required by this chapter."
Department to give notice
SECTION 871. Section 40-11-180 of the 1976 Code is amended to read:
"Section 40-11-180. All architects and engineers preparing plans and specifications for work to be constructed in the state shall include in their invitations to bidders and in their specifications a copy of this chapter or such proportions thereof as are deemed necessary to convey to the invited bidder, whether he be a resident or nonresident of this State and whether a license has been issued to him or not, the information that it will be necessary for him to show evidence of being licensed before his bid is opened or considered, but in the case of bidders on Department of Transportation work, such notice shall state only that no contract will be awarded unless and until the bidder has been properly licensed under the provisions of this chapter."
Must be licensed to be awarded contract
SECTION 872. Section 40-11-190 of the 1976 Code is amended to read:
"Section 40-11-190. Section 40-11-10 shall not serve to prevent any person from bidding on Department of Transportation projects without having been licensed, but such person shall be licensed before he may be awarded a contract for a Department of Transportation project."
Penalty
SECTION 873. Section 40-11-300 of the 1976 Code is amended to read:
"Section 40-11-300. It shall be a misdemeanor punishable in the discretion of the court for any architect, engineer, awarding authority, owner, contractor, or person acting therefor, to receive or consider any bids unless the bidder has first obtained the licenses provided for in this chapter, except that the Department of Transportation shall not require a person to be licensed before bidding on a Department of Transportation project but shall require such person to be licensed before he may be awarded a Department of Transportation contract."
Board may petition
SECTION 874. Section 40-11-320 of the 1976 Code is amended to read:
"Section 40-11-320. Whenever it shall appear to the board that any person has or is about to violate any statute, regulation or order relating to contracting, the board may, in its name or in the name of the state, petition an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, for a temporary order enjoining violation of or requiring compliance with the law. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may, upon proper showing by a verified petition that the person is not licensed, or that such a statute, regulation or order has been or is about to be violated and that such person has been duly served with such verified petition notifying him of the board's intention to ask for a temporary restraining order, issue a temporary restraining order pending a full hearing to determine whether or not the injunction should be made permanent. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may require the board to post a bond in such amount as it may determine."
Appeal before administrative law judge
SECTION 875. The 1976 Code is amended by adding:
"Section 40-11-350. Notwithstanding any other provision of law, the board's decision shall be subject to appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, which shall hear the matter upon petition filed by the licensee with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 and served upon the Secretary of the board within ten days from the date of delivery of the board's decision to licensee. A decision by the board to revoke, suspend, or otherwise restrict a license or limit or otherwise discipline a licensee or one who is found to be practicing as a contractor in non-compliance with this chapter shall not become effective until the tenth day following the date of delivery to the licensee of a written copy of the decision. Service of a petition for a review of the decision shall stay the board's decision pending completion of the appellate process."
Board to elect its own officers
SECTION 876. Section 40-13-60 of the 1976 Code is amended to read:
"Section 40-13-60. The board shall elect its own officers. The Director of the Department of Labor, Licensing, and Regulation may appoint a full-time secretary and any other employees, pursuant to Section 40-73-15, as may be necessary to carry out the work of the board. The compensation and expenses of the members of the board, the salaries of the secretary and the clerical employees, and all other expenses of the board shall be paid from appropriations of the General Assembly based on fees collected under the provisions of this chapter and deposited in accordance with Section 40-13-70. The secretary shall keep all records of the board, issue necessary notices to the licensees and perform such other duties, clerical and otherwise, as defined by the Director of the Department of Labor, Licensing, and Regulation. Such secretary shall furnish bond to the board with a duly licensed bonding company doing business in this State in the penal sum of ten thousand dollars conditioned on the faithful performance of the duties of his office."
Powers of the board
SECTION 877. Section 40-13-80 of the 1976 Code is amended to read:
"Section 40-13-80. The board shall: (1) Establish suitable procedures for carrying out its duties pursuant to the provisions of this chapter. (2) Adopt and revise regulations consistent with this chapter, as may be necessary to carry out the provisions of the chapter. (3) Initiate prosecution of persons violating the provisions of this chapter. (4) Establish and collect license and other fees and assessments provided for in this chapter in amounts sufficient to fund the annual appropriations to the board. (5) Monitor the professional and ethical competence of licensees. (6) Order the revocation, suspension, or otherwise restrict the license of licensees or take other disciplinary action against them when appropriate. Such actions shall be taken pursuant to the relevant provisions of the Administrative Procedures Act."
Investigations and proceedings
SECTION 878. Section 40-13-260 of the 1976 Code is amended to read:
"Section 40-13-260. (a) For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it, may administer oaths and affirmations, subpoena witnesses, take testimony, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application by the board, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry. (b) Whenever the board has sufficient evidence that any person is violating any provision of this chapter, it may, in addition to all other remedies, order such person to immediately desist and refrain from such conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from such conduct. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may issue a temporary injunction ex parte, and upon notice and full hearing may issue any other order in the matter it deems proper. No bond shall be required of the board by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 as a condition to the issuance of any injunction or order contemplated by the provisions of this chapter. (c) Every communication, whether oral or written made by or on behalf of any person or firm to the board or any person designated by it to investigate or otherwise hear matters relating to the revocation, suspension or other restriction on a license or other discipline of a licensee, whether by way of complaint or testimony, shall be privileged; and no action or proceeding, civil or criminal, shall lie against any such person or firm by or on whose behalf such communication shall have been made by reason thereof, except upon proof that such communication was made with malice. (d) No provision of this chapter shall be construed to prohibit the respondent or his legal counsel from exercising the respondent's constitutional right of due process under the law, nor to prohibit the respondent from normal access to the charges and evidence filed against him as part of due process under the law."
Decisions subject to appeal
SECTION 879. The 1976 Code is amended by adding:
"Section 40-13-300. Notwithstanding any other provision of law, the board's decision shall be subject to appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, which shall hear the matter upon petition filed by the licensee with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 and served upon the Secretary of the board within ten days from the date of delivery of the board's decision to licensee. A decision by the board to revoke, suspend, or otherwise restrict a license or limit or otherwise discipline a licensee or one who is found to be practicing as a cosmetologist in non-compliance with this chapter shall not become effective until the tenth day following the date of delivery to the licensee of a written copy of the decision. Service of a petition for a review of the decision shall stay the board's decision pending completion of the appellate process."
Board to adopt rules and regulations
SECTION 880. Section 40-15-40 of the 1976 Code is amended to read:
"Section 40-15-40. The board shall adopt rules and regulations not inconsistent with this chapter for its own organization and for the practice of dentistry and dental hygiene and the performance of dental technological work in this State, and for carrying out the provisions of this chapter, and may amend, modify and repeal any rules and regulations from time to time. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, shall appoint such committees, special examiners, agents and employees as he may deem necessary or proper to carry out the provisions of this chapter, the expense thereof to be charged and paid as other expenditures of the board. The board shall hold at least one examination in each year for persons who desire to become licensed dentists or dental hygienists or registered dental technicians. A secretary shall keep a full record of all proceedings of the board, and a complete registry of all licensed dentists, licensed dental hygienists and registered dental technicians. A transcript of any entry in such record or registry certified by the secretary shall be competent evidence."
Executive director to be bonded
SECTION 881. Section 40-15-50 of the 1976 Code is amended to read:
"Section 40-15-50. The executive director must be bonded in an amount as the Director of the Department of Labor, Licensing, and Regulation may fix for the faithful discharge of his duties as custodian of the monies paid to the board. He shall receive the salary as appropriated by the Director of the Department of Labor, Licensing, and Regulation. Each of the board members shall receive for each day actually engaged in the duties of his office per diem, mileage, and subsistence at the rate established by law for boards, commissions, and committees. All fees received by the board become the property of the state general fund and must be deposited to the account of the State Treasurer. The expenditures of the board must be from state appropriations. All fines must be deposited into a special account to be held by the State Treasurer for the purpose of the payment of administrative costs upon the approval of the Budget and Control Board. At any time the balance in the special account exceeds twenty thousand dollars, all funds in excess of that amount must be remitted to the general fund."
Oaths, affirmations, and subpoenas may be administered SECTION 882. Section 40-15-185 of the 1976 Code is amended to read:
"Section 40-15-185. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by or the refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application of the board, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and give other evidence concerning the matter under inquiry."
License may be revoked or suspended
SECTION 883. Section 40-15-200 of the 1976 Code is amended to read:
"Section 40-15-200. If the board is satisfied that the dentist, dental hygienist, or dental technician is guilty of any offense charged in the formal accusation provided for in this chapter, it may revoke or suspend the license or the registration certificate, reprimand the dentist, dental hygienist, or dental technician either publicly or privately, or take any other reasonable action short of revocation or suspension, such as probation or the imposition of a fine of up to one thousand dollars to be paid into the general fund except for expenses incurred by the board in the procuring, or requiring the person to undertake additional professional training subject to the direction and approval of the board, psychiatric evaluations, controlled substance restrictions, institutional practice under supervision, and any other actions considered appropriate by the board. Any decision by the board to revoke, suspend, or otherwise restrict or limit a license or registration certificate or otherwise discipline a licensee or holder of a registration certificate must be by majority vote of the members of the board eligible to participate and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the licensee or holder of a registration certificate with the court and a copy thereof served upon the director of the board within thirty days from the date of delivery of the board's decision to the licensee or holder of the registration certificate. The review is governed by Chapter 23 of Title 1."
Appeal
SECTION 884. Section 40-15-210 of the 1976 Code is amended to read:
"Section 40-15-210. The person whose license or registration certificate has been suspended or revoked may, within thirty days, appeal from the action of the board in suspending or revoking the same to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. The board shall certify to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for its consideration a record of the hearing before the board."
Final order of the board
SECTION 885. Section 40-15-215 of the 1976 Code is amended to read:
"Section 40-15-215. Any final order of the board finding that a dentist, dental hygienist, or dental technician is guilty of any offense charged in a formal accusation is public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order or unless stayed by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 or the board. Any final order which is made public may be mailed to local and state dental associations and all hospitals in which the respondent has staff privileges, to states where the dentist, dental hygienist, or dental technician has a license or certificate as known to the board, or to any other agency the board considers appropriate. If a license or certificate is voluntarily limited or surrendered by the holder, a public record of the existence and duration of the limitation or surrender must be maintained by the board, and no further distribution of the information may be made. All information, investigations, and proceedings concerning the circumstances underlying an action by the holder of the license or certificate is privileged and confidential."
Authority to bring suit
SECTION 886. Section 40-15-370 of the 1976 Code is amended to read:
"Section 40-15-370. The board may, in its own name, maintain a suit for an injunction against any person violating any provision of this chapter. The suit shall be commenced and prosecuted before an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 in the same manner as other suits in equity. An injunction may be issued without proof of actual damage sustained by any person. An injunction shall not relieve a person from criminal prosecution for violation of any provision of this chapter. The office of the Attorney General of South Carolina shall, if requested by the board, represent the board in connection with legal proceedings undertaken pursuant to this chapter."
Administrative Law Judge may enjoin
SECTION 887. Section 40-15-380 of the 1976 Code is amended to read:
"Section 40-15-380. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 of this State is hereby vested with jurisdiction and power to enjoin any person violating this chapter in a proceeding brought by the board or by any citizen of this State."
Definition
SECTION 888. Section 40-19-10(16) of the 1976 Code is amended to read:
"(16) `Secretary' means an executive secretary employed by the Director of the Department of Labor, Licensing, and Regulation pursuant to Section 40-73-15."
Director of the department to employ executive secretary
SECTION 889. Section 40-19-70 of the 1976 Code is amended to read:
"Section 40-19-70. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, shall employ an executive secretary and an inspector, both of whom must be licensed embalmers and funeral directors with not less than five consecutive years actual experience as a licensee under this chapter. The secretary and inspector shall receive an annual salary and necessary travel and other incidental expenses as are incurred in the performance of their duties. The inspector is responsible to the board for field inspection and enforcement of the other provisions of this chapter. The secretary is responsible for dissemination of information relating to the practice of funeral service and procedures for inquiries and registration of complaints. He shall maintain a record of the name and business address of every person to whom licenses have been granted, the number and date of each license, and the date of each renewal. He shall supply on request to any person licensed for the practice of funeral service a list of all persons holding a valid license under this chapter, their business address, the number of their license, and a copy of all state laws and regulations relating to the practice of funeral service. The secretary shall maintain a record of public complaints or allegations concerning licensees and the disposition of complaints. The secretary shall prepare and have printed all necessary forms used in connection with operations of the board. The secretary or the inspector may serve and execute any process issued by the board or any court or an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 and shall perform any other duties ordered by the Director of the Department of Labor, Licensing, and Regulation."
Director may employ personnel
SECTION 890. Section 40-19-80 of the 1976 Code is amended to read:
"Section 40-19-80. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, may employ clerical assistants and employees as may be necessary to carry out the provisions of this chapter. The terms and conditions of this employment must be determined by the Director of the Department of Labor, Licensing, and Regulation and applicable state law. The board, when legal services are necessary, must be represented by the Office of the Attorney General."
Administrative law judge may review order of the board
SECTION 891. Section 40-19-160 of the 1976 Code is amended to read:
"Section 40-19-160. Whenever the board has reason to believe that any person to whom a license has been issued has become unfit to practice as a licensed funeral director or embalmer or has violated any of the provisions of this chapter or regulation of the board or, whenever a written complaint charging the holder of a license with the violation of any provision of this chapter is filed with the board, the board shall conduct an investigation within thirty days. If after investigation it appears that probable cause exists for a hearing, a time and place must be set by the board for a hearing to determine whether or not the license must be suspended or revoked. No action to suspend, revoke, or cancel any license may be taken by the board until the licensee has been furnished with a statement of the charges against him and by whom he is charged and the names and addresses of all witnesses against him and a notice of the time and place of the hearing on the charges at least thirty days prior to the date of the hearing. The notice and statement of charges must be mailed to the accused at his last known place of residence. The accused may appear and show cause why his license should not be suspended or revoked, or other disciplinary action taken. The accused has the right to be confronted with and to cross-examine the witnesses against him and he has the right to counsel. A stenographic record of each proceeding to revoke, suspend, or otherwise restrict a license must be made at the expense of the board, and a transcript of the record must be kept in its files. If the board is satisfied that the licensee is guilty of any offense charged in the formal accusation provided for in this chapter, it shall revoke, suspend, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose restraint upon the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of the action must then be mailed by the secretary of the board to the accused at his last known address, as provided to the board. Any final order of the board finding that a licensee is guilty of any offense charged in a formal accusation becomes public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. All final orders which are made public must be mailed to local and state professional associations, all firms and facilities with which the respondent is associated, states where the person has a license known to the board, and to any other source that the board wishes to furnish this information.Any decision by the board to revoke, suspend, or otherwise restrict the license must be by majority vote and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Investigations and proceedings to be confidential
SECTION 892. Section 40-19-170 of the 1976 Code is amended to read:
"Section 40-19-170. All investigations and proceedings undertaken under the provisions of this chapter must be confidential. Every communication, whether oral or written, made by or on behalf of any complainant to the board or its agent or any hearing panel or member of the panel, pursuant to this chapter, whether by way of complaint or testimony, is privileged. No action or proceeding, civil or criminal, shall lie against any person by whom or on whose behalf the communication has been made, except upon proof that the communication was made with malice. No part of this chapter may be construed as prohibiting the respondent or his legal counsel from exercising the respondent's constitutional right or due process under the law, nor to prohibit the respondent from normal access to the charges and evidence filed against him as a part of due process under the law. No member of the board, or its committees, special examiners, agents and employees may be held liable for acts performed in the course of official duties, except where actual malice is shown. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board considers relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to, any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon application of the board, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry. Whenever the board has reason to believe that any person is violating or intends to violate any provision of this chapter, it may, in addition to all other remedies, order the person to immediately desist and refrain from the conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from the conduct. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may issue a temporary injunction ex parte and upon notice and full hearing may issue any other order in the matter it considers proper. No bond may be required of the board by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 as a condition to the issuance of any injunction or order contemplated by the provisions of this section. A licensee or funeral home found to be in violation of a provision of this chapter or failing, omitting, or neglecting to obey, observe, or comply with a lawful order of the board is subject to a penalty of not less than twenty-five nor more than five hundred dollars for each offense. Jurisdiction of actions to recover penalties must be brought in the name of the state in magistrate's court."
Director may employ personnel
SECTION 893. Section 40-22-150 of the 1976 Code is amended to read:
"Section 40-22-150. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, may employ clerical or other assistants as necessary for carrying out the duties of this chapter."
Appeal
SECTION 894. Section 40-22-420 of the 1976 Code is amended to read:
"Section 40-22-420. A person who is aggrieved by an action of the board in suspending, denying, or revoking his certificate of registration, or a reprimand, may appeal the action to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Enforcement of provisions
SECTION 895. Section 40-22-440 of the 1976 Code is amended to read:
"Section 40-22-440. To enforce the provisions of this chapter, or to restrain a violation of this chapter, the board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 in the name of the state for an injunction as provided generally in civil cases. In such proceedings: (1) It is not necessary to establish the absence of an adequate remedy at law. (2) Board members are not personally liable for damages resulting from a wrongful injunction. (3) The initial order of injunction must include a rule to show cause and is temporary pending the return to the rule."
Board created - composition
SECTION 896. Section 40-23-20 of the 1976 Code is amended to read:
"Section 40-23-20. There is created the South Carolina Environmental Certification Board composed of nine members appointed by the Governor. Two members must be certified water operators, two must be certified wastewater operators, one of whom must be certified in the physical chemical specialty, one must be a licensed well driller, one must be a member of the public at large, one must be a representative from the Water Resources Division of the Department of Natural Resources, one must be a member of the Department of Health and Environmental Control, designated by the director, and one must be a representative from a technical education or other higher education institution actively involved in operator training. The South Carolina Water and Pollution Control Association may recommend one certified water operator and one certified wastewater operator, who is certified in the physical chemical specialty; the South Carolina section of the American Water Works Association may recommend one certified water operator; the South Carolina section of the Water Pollution Control Federation may recommend one certified wastewater operator; and the South Carolina Well Drillers' Association may recommend a certified well driller. Any individual, group, or association may nominate qualified individuals to the Governor for his consideration. Members shall serve four years, not to exceed two terms, and until successors are appointed and qualify. The Governor may reject any of the nominees found unacceptable. Vacancies must be filled in the manner as the original appointment for the unexpired portion of the term."
Meetings of board
SECTION 897. Section 40-23-40 of the 1976 Code is amended to read:
"Section 40-23-40. The board shall meet at least once a year and at other times as its bylaws provide, at a place designated by the chairman. The board shall elect a chairman and a vice-chairman from its membership annually. The board may promulgate regulations, pursuant to the Administrative Procedures Act it considers necessary for the purposes of carrying out the provisions of this chapter. No member of the board or its committees, special examiners, agents, and employees may be held liable for acts performed in the course of official duties except where actual malice is shown. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or a person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of documents or records which the board considers relevant to the inquiry. In the case of contumacy by or refusal to obey a subpoena issued to a person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon application of the board may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry. Whenever the board has reason to believe that a person is violating or intends to violate a provision of this chapter, it may, in addition to all other remedies, order the person to desist immediately and refrain from the conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from the conduct. The examiner may issue a temporary injunction ex parte not to exceed ten days and, upon notice and full hearing, may issue any other order in the matter it considers proper. No bond is required of the board by the examiner as a condition to the issuance of an injunction or order contemplated by the provisions of this section."
Revocation of license
SECTION 898. Section 40-23-127 of the 1976 Code is amended to read: "Section 40-23-127. If the board is satisfied that a licensee is guilty of an offense charged in the formal accusation provided for in this chapter, it shall revoke, suspend, reprimand, or otherwise take other reasonable action short of revocation or suspension, such as requiring the operator to undertake additional professional training. In all cases where disciplinary action is taken by the board, written notice of the action must be mailed by the board to the accused at his last known address as provided to the board by the accused. Any final order of the board finding that a licensee is guilty of an offense charged in a formal accusation becomes public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. All final orders which are made public must be mailed to local and state professional associations, all firms or facilities with which the respondent is associated, states where the licensee has a license or certificate known to the board, and to any other source that the board wishes to furnish this information. Any decision by the board to revoke, suspend, or otherwise restrict the certificate must be by majority vote and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Definitions, etc., name changes
SECTION 899. Chapter 28 of Title 40 of the 1976 Code is amended to read:
"CHAPTER 28
Landscape Architects
Section 40-28-10. Unless the context or subject matter otherwise requires: (a) `Landscape architect' means a person who is licensed to practice landscape architecture in this State. (b) `Landscape architecture' means the performance of professional services, such as consultation, investigation, research, planning, design, preparation of drawings and specifications, and responsible inspection in connection with the development of land areas where, and to the extent that, the dominant purpose of the services is the preservation, enhancement, or determination of proper site design, natural land features, planting, naturalistic and aesthetic values, the settings and approaches to structures or other improvements, the setting of grades and determining drainage and providing for drainage structures, and the consideration and determining of environmental problems. This practice includes the design of tangible objects, drainage structures and systems, and features as are incidental and necessary to an overall or ongoing landscape plan and site design, and the landscape architect may certify the design of the tangible objects, drainage structures and systems, features as to structural soundness and as to compliance with all requirements and standards of a government or subdivision of it. This practice does not include the design of structures, drainage structures and systems, and features which are not incidental and necessary to an overall landscape plan and site design and which have separate and self-contained purposes such as are ordinarily included in the practice of engineering or architecture and does not include the making of land surveys or final plats for official approval or recordation. Nothing contained in this definition precludes a duly licensed landscape architect from performing the services described in the first sentence of this definition in connection with the settings, approaches, or environment for buildings, structures, or facilities. Nothing contained in this chapter may be construed as authorizing a landscape architect to engage in the practice of architecture, engineering, or land surveying as these terms are defined in Section 40-28-150 of this chapter, except that a landscape architect may prepare and certify all design, grading, drainage, and construction plans for roads and site-related projects which are incidental and necessary to an overall or ongoing landscape plan and site design. (c) `Department' shall mean the Department of Natural Resources. (d) `Council' shall mean a body of five qualified professional landscape architects appointed by the department to serve as advisors to the department, as provided for in Sections 40-28-30 through 40-28-70. (e) `Responsible charge' shall mean direct control and personal supervision of landscape architecture.
Section 40-28-20. In order to safeguard public welfare, health and property and to promote public good, any person practicing or offering to practice landscape architecture, privately or in public service, shall be required to submit evidence that he is qualified to practice and shall become registered as hereinafter provided. It shall be unlawful for any person to practice landscape architecture or to use the term or title `Landscape Architect' unless duly licensed under the provisions of this chapter.
Section 40-28-30. The department shall serve as the board of registration for landscape architects and shall administer the provisions of this chapter. The department shall appoint a council of five qualified professional landscape architects who shall have the qualifications required in the following section to recommend certification of those eligible to become registered landscape architects. The five members of the council shall be appointed for five years and until their successors have been appointed and qualify; provided, that the initial terms shall be made so that the term of one member shall expire on June thirtieth of each year.
Section 40-28-40. Each member of the council must be a registered landscape architect who has been actively engaged in the practice of landscape architecture for a period of at least five years and who has been in responsible charge of landscape architecture for at least three years.
Section 40-28-50. Each member of the council may receive an amount as provided for in the annual General Appropriations Act for each day actually and reasonably engaged in the services of the department and must be reimbursed for all actual traveling, incidental, and clerical expenses necessarily incurred in carrying out the provisions of this chapter. These expenses must be paid from general appropriations to the department.
Section 40-28-60. Vacancies in the membership of the council shall be filled for the unexpired portion of the term in the manner of the original appointments.
Section 40-28-70. The council shall hold at least two regular meetings each year. Special meetings may be held as the bylaws of the council provide. The council shall elect annually a chairman, a vice chairman and a secretary. A quorum of the council shall consist of three members.
Section 40-28-80. The department shall have the following powers: (a) To adopt and amend bylaws, rules of procedure and regulations to administer and carry out the provisions of this chapter and for the conduct of its affairs and functions consistent with the Constitution and laws of this State or this chapter which may be reasonably necessary for the performance of its duties and the regulation of its proceedings, meetings, records, examinations and the conduct thereof, and to adopt and promulgate a code of ethics which shall be binding upon all persons registered under or subject to this chapter. (b) To affix its official seal to each numbered certificate or license issued. (c) To apply in the name of the state for relief by injunction to enforce the provisions of this chapter or to restrain any violation thereof. In such proceedings it shall not be necessary to allege or prove either that an adequate remedy at law does not exist or that substantial or irreparable damage would result from the continued violation thereof. The members of the department shall not be personally liable under this proceeding.
Section 40-28-90. All funds derived under the provisions of this chapter shall be remitted to the State Treasurer as collected. Such funds may be expended as directed by the department upon warrant requisitions directed to the Comptroller General who shall, after being satisfied of the propriety of payment, issue his warrant on the State Treasurer.
Section 40-28-100. The department shall keep a record of its proceedings and of all applications for registration, which records shall show the name, age, and last known address of each applicant, the place of business of applicant, education, experience, and other qualifications, type of examination required, whether or not a license was granted, whether or not the applicant was denied a license, the date of the action of the department, and other information considered necessary by the department. The record of the department is evidence of the proceedings of the department and a transcript duly certified by the secretary under seal is admissible as evidence with the same force and effect as the original.
Section 40-28-110. To be eligible for registration and licensing as a professional landscape architect in South Carolina an applicant shall read and write the English language and: (1) be a graduate of an accredited landscape architectural curriculum approved by the department and have had two years of varied landscape architectural experience under the supervision of a landscape architect registered under this chapter or other qualified person, or experience approved by the department, and satisfactorily pass a written examination as prescribed by the department; or (2) be a high school graduate or have an equivalent education as determined by the department and, in addition, at least eight years of varied landscape architectural experience under the supervision of a landscape architect registered under this chapter or other qualified person or experience approved by the department, and satisfactorily pass a written examination as prescribed by the department; A maximum of three years of the experience requirement contained in subsection (2) of this section may be satisfied by proof of education or nonaccredited degree, as considered appropriate by the department; or (3) hold a license or certification to practice landscape architecture issued to him upon examination by a legally constituted board of examiners of another state or the District of Columbia, or a territory or possession of the United States and if requirements of the state, district, territory, or possession in which the applicant is licensed or registered are substantially equivalent to those of this State; or (4) submit certification documents from the Council of Landscape Architectural Registration Boards (CLARB) verifying his qualifications for registration, and an individual holding such a certification may be accepted at the discretion of the department.
Section 40-28-120. Examinations must be offered at least annually, the time and place to be established by the department. At the discretion of the department, the written examination may be administered to candidates who are eligible for registration under Section 40-28-110. The department may admit to the examination a person who may complete the experience requirements within ninety days after the examination. Administration and evaluation of the examination must be conducted in a manner prescribed by the department. Candidates shall retain credit for any parts of the examination passed and may be permitted to retake a failed part of the examination. Upon proper application, the department, at its discretion, may credit to a candidate a prescribed part of the examination successfully passed and properly attested to by another state, territory, or possession of the United States or the District of Columbia. The candidate then may take the remaining examination parts and, if successfully completed, may be registered and licensed by the department. The department shall accept the transfer of grades only from the state of original application.
Section 40-28-130. The department, subject to the provisions of this chapter and the rules and regulations of the department promulgated thereunder prescribing the qualifications for a landscape architect license, may permit the practice of landscape architecture in this State under a landscape architect license issued under the laws of any other state, upon payment of the current fee established by the department, and upon submission of evidence satisfactory to the department: (1) That the other state maintains a system and standard of qualifications and examinations for a landscape architect license which were substantially equivalent to those required in this State at the time the license was issued by the other state; (2) That the other state gives similar recognition and endorsement to landscape architect licenses of this State.
Section 40-28-140. Each landscape architect, upon registration, shall obtain a seal of the design authorized by the department, bearing the name of the registrant, number of certificate or license, and the legend `South Carolina Registered Landscape Architect'. The seal may be used only while the registrant's certificate or license is in full force and effect. Certificates of registration, licenses, and identification cards must be signed by the chairman of the department and the secretary of the council. Nothing in this chapter may be construed to authorize the use or acceptance of the seal of the landscape architect in lieu of the seal of an architect, engineer, or land surveyor.
Section 40-28-150. This chapter shall not be construed to require licensing in the following cases: (a) the practice of landscape architecture by any person who acts under the supervision of a registered landscape architect or by an employee of a person lawfully engaged in the practice of landscape architecture and who in either event does not assume responsible charge of design or supervision; (b) the practice of architecture by a duly registered professional architect and the performing of landscape architectural work by a registered architect or by an employee under supervision of a registered architect, when such work is incidental to their practice; (c) the practice of engineering by a duly registered professional engineer and the performing of landscape architectural work by a registered engineer or by an employee under supervision of a registered engineer, when such work is incidental to their practice; (d) the practice of surveying by a duly registered professional land surveyor and the performing of landscape architectural work by a registered professional land surveyor or by an employee under supervision of a registered professional land surveyor, when such work is incidental to their practice; (e) the practice of landscape architecture by employees of the United States or South Carolina Government while engaged within this State in the practice of landscape architecture for the government or projects sanctioned by or totally sponsored by the Government; (f) the practice of planning as customarily done by regional or urban planners; (g) the practice of arborists, foresters, gardeners, home builders or horticulturists; (h) the practice of any nurseryman, general or landscape contractor, such practice to include design, planning, location and arrangements of plantings or other ornamental features.
Section 40-28-160. The right to engage in the practice of landscape architecture is a personal right, based upon the qualifications of the individual evidenced by his license. (1) The license is not transferable. All final drawings, specifications, plans, reports or other papers or documents involving the practice of landscape architecture, as defined in Section 40-28-10, when issued, or filed for public record, must be dated, and bear the name and seal of the landscape architect or landscape architects who prepared or approved them. (2) Partnerships and corporations which meet the following conditions may be formed as a vehicle for the practice of landscape architecture: (a) The practice of or offer to practice landscape architecture for others as defined in Section 40-28-10 by individual landscape architects licensed under this chapter through a corporation as officer, employees, or agents, or through a partnership as partners, officers, employees, or agents, or the offering or rendering of landscape architecture services by corporation or partnership through individual landscape architects licensed under this chapter is permitted, subject to the provisions of this chapter if (i) one or more of the corporate officers in the case of a corporation, or one or more of the partners in the case of a partnership, are designated as being responsible for the professional services described in Section 40-28-10 of the corporation or partnership and are landscape architects under this chapter; and (ii) all personnel of the corporation or partnership, who act in its behalf as landscape architects, are licensed under this chapter; and (iii) the corporation or partnership has been issued a certificate of authorization by the department. The requirements of this chapter do not prevent a corporation and its employees from performing landscape architectural services for the corporation or subsidiary or affiliated corporations. (b) A corporation or partnership issued a Certificate of Authorization to provide or offer to provide landscape architectural services to the public in this State shall: (1) submit an initial fee and file with the department, on a form prescribed by the department, a listing of names and addresses of all principals and officers, as well as all principals, officers, agents, and employees, who are in responsible charge of the practice in this State and are licensed to practice landscape architecture in this State; (2) insure that all documents involving the practice of landscape architecture which are prepared for the use of the corporation or partnership bear the signature and seal of a landscape architect registered and licensed in this State; (3) advise the department in writing within thirty days of a change in status of a principal, officer, agent, or employee registered and licensed under this chapter; (4) have a resident landscape architect duly registered to practice in this State in responsible charge of a place of business maintained in this State for the purpose of providing or offering to provide landscape architectural services to the public; (5) file a form giving current information, as prescribed in (1) above, with the annual renewal fee to be determined by the department. (c) No corporation or partnership is relieved of responsibility for conduct or acts of its agents, employees, or officers by reason of its compliance with the provisions of this section nor is an individual practicing landscape architecture as defined in Section 40-28-10 relieved of responsibility of landscape architectural services performed by reason of his employment or relationship with the corporation or partnership. (d) Disciplinary action against a corporation or partnership must be administered in the same manner and on the same grounds as disciplinary action against a registered landscape architect.
Section 40-28-170. A person who, without possessing a valid, unrevoked certificate or license as required by this chapter, uses the title or term `Landscape Architect' in a sign, card, listing, advertisement, or in any other manner states that he is a landscape architect, as defined in this chapter, is guilty of a misdemeanor and, upon conviction, fined not less than fifty dollars nor more than five hundred dollars or imprisoned for not exceeding six months or both.
Section 40-28-180. Each of the following facts constitutes a ground for disciplinary action against a holder of a license or certificate: (1) he is practicing in violation of the provisions of this chapter; (2) he has obtained the certificate or license by fraud or misrepresentation; (3) he is impersonating a landscape architect or a former landscape architect of the same or similar name, or is practicing under an assumed, fictitious, or corporate name; (4) he has aided or abetted, in the practice of landscape architecture, a person not authorized to practice landscape architecture under the provisions of this chapter; (5) in the practice of landscape architecture, he has been guilty of fraud or deceit, negligence, wilful misconduct, or gross incompetence; (6) he has affixed his seal to plans, drawings, specifications, or other instruments of service which have not been prepared by him or under his immediate and responsible direction or has permitted his name to be used for the purpose of assisting a person, not a landscape architect, to evade the provisions of this chapter.
Section 40-28-190. The department annually shall prescribe reasonable fees, not to exceed the following prescribed limits, in an amount sufficient to pay for the costs of administering the provisions of this chapter in the following categories: (1) Initial license fee 50.00 (2) Annual license renewal fee 100.00 (3) Initial certificate of authorization fee 200.00 (4) Annual certificate of authorization renewal fee 200.00 (5) Temporary license fee 100.00 (6) Initial examination fee Cost of exam + 200.00 (7) Examination retake fee Cost of section(s) + 100.00 (8) File transfer fee 50.00 (9) Duplicate license/certificate fee 25.00 (10) Late fee 20.00 An additional amount not to exceed one hundred dollars may be charged each out-of-state applicant in each of the above categories.
Section 40-28-200. (A) Every landscape architect shall pay an annual license fee to the department. The fee is due and payable on the first day of January of each year and becomes delinquent after the thirty-first day of January. (B) If the annual license fee is not paid before it becomes delinquent, a penalty of twenty dollars must be added to the amount of the fee. (C) If the annual certificate or license fee and penalty are not paid within ninety days of the expiration date, the landscape architect's certificate or license must be suspended after the expiration of thirty days from the date of mailing of notice of the delinquency by registered or certified mail, return receipt requested, postage prepaid and addressed to the landscape architect at his address as it appears in the records of the department. The notice of delinquency must state that upon the expiration of time allowed his certificate or license must be suspended unless, within time allowed, the annual certificate or license fee and penalty are remitted. (D) After the certificate or license has been suspended, it may be reinstated upon the payment of the annual renewal fee for each delinquent year, plus the penalty for each year, and such proof of the landscape architect's qualification as required by the department. A landscape architect whose license has been suspended and who was registered by methods other than prescribed in Sections 40-28-110 and 40-28-130, is required to pass a written examination prescribed by the department. (E) The department shall issue a receipt to each landscape architect promptly upon payment of the annual certificate or license fee.
Section 40-28-210. The Attorney General shall act as legal advisor to the department and render such legal assistance as may be necessary in carrying out the provisions of this chapter."
Definition deleted
SECTION 900. Section 40-29-20(6) of the 1976 Code is deleted.
Powers of the board
SECTION 901. Section 40-29-50 of the 1976 Code is amended to read:
"Section 40-29-50. The board shall: (1) annually elect by majority vote a chairman and vice-chairman from its membership. Not more than one individual associated with the manufactured housing industry may hold the position of chairman or vice-chairman at the same time; (2) establish by regulation classifications of licenses and qualifications and examinations necessary for licensure under this chapter; (3) issue licenses, and suspend or revoke for cause a license; (4) establish, by regulation, the manner in which each consumer is notified of: (a) warranties according to this chapter; (b) the existence of the board and procedures for the filing of complaints; (5) invoke fines or adjust surety bonding or other approved security requirements for cause in accordance with this chapter; (6) receive and resolve complaints from buyers of manufactured homes; (7) conduct hearings regarding any violations of this chapter or regulations; (8) adopt regulations relating to the construction, repair, modification, installation, tie-down, hookup, and sale of all manufactured homes, which regulations must be uniform throughout the state and enforced by inspectors for the board to insure minimum standards of safety within the state and its political subdivisions. Ordinances of a political subdivision, relating to installation or sale of manufactured homes may not be inconsistent with a regulation or standard adopted pursuant to this chapter; (9) adopt regulations and standards necessary to carry out the provisions of this chapter; (10) adopt by regulation the standards contained in the Construction and Safety Standards Act; (11) adopt by regulation the manufactured home procedural and enforcement regulations 24 C.F.R. 3282, as amended, promulgated by the Department of Housing and Urban Development pursuant to the Construction and Safety Standards Act; (12) enter into cooperative agreements with federal agencies relating to manufactured housing and accept and use federal grants, matching funds, or other financial assistance to further the purposes of this chapter; (13) adopt regulations for the conducting of hearings and the presentation of views, consistent with the regulations promulgated by the Department of Housing and Urban Development, 24 C.F.R. 3282.151 through 3282.156, as amended; and (14) prepare, administer and grade examinations for licensure under the classifications sought by the applicant and collect fees."
Licenses
SECTION 902. Section 40-29-100(B) of the 1976 Code is amended to read:
"(B) All licenses must be granted or refused within thirty days after proper and complete application. All licenses expire June thirtieth of each year following the date of issue, unless sooner revoked or suspended. An applicant for licensing shall: (1) demonstrate financial responsibility as required by regulations of the board; (2) not have engaged illegally in the licensed classification; (3) demonstrate familiarity with the regulations adopted by the board concerning the classification for which application is made; (4) if a corporation, have complied with the laws of South Carolina regarding qualification for doing business in this State or have been incorporated in South Carolina and have and maintain a registered agent and a registered office in this State; (5) if an individual or partnership, have maintained a residence or street address in South Carolina for at least thirty days before the date of application; (6) submit proof of registration with the South Carolina Department of Revenue and Taxation and submit a current tax identification number; and (7) where applicable pass an examination administered by the board in the license classification for which application is made."
Examination required
SECTION 903. Section 40-29-110 of the 1976 Code is amended to read:
"Section 40-29-110. (A) No manufactured home salesman may be issued a license for the first time until he has passed with a satisfactory score, an examination prepared, graded, and administered by the board. The examination, where applicable, must determine the applicant's: (1) general business knowledge; (2) technical knowledge and familiarity with the prescribed standards; (3) general knowledge of the statutes and regulations of this State relating to the advertising, sale, and financing of manufactured homes. (B) No license may be issued to a manufactured home dealer unless the board is satisfied that the authorized official, stockholder, copartner, or manufactured home salesman authorized to sell by authority of the dealer license has passed successfully the appropriate examination. (C) If a license lapses over six months, in order to be relicensed the applicant is required to be examined or reexamined before issuance of the license sought. (D) Fees for examinations must be established by regulations promulgated by the board."
Penalty
SECTION 904. Section 40-29-160 of the 1976 Code is amended to read:
"Section 40-29-160. A person selling or offering for sale manufactured homes in the state without a valid license to sell or offer for sale the homes or a person who employs a person selling or offering for sale manufactured homes in this State without a valid license to sell or offer for sale the homes is subject to an administrative penalty. The person must be issued a citation directing him to appear before an agent of the board appointed to act as the administrative hearing officer. An administrative penalty not to exceed five hundred dollars for each violation may be imposed. The person to whom a citation has been issued may forfeit appearance by payment of the imposed administrative penalty. Upon appearance, if it is determined that an administrative penalty must be imposed, the person cited may appeal the decision to the board. The request for appeal must be in writing. A licensee who violates a provision of this chapter or regulation in regard to consumer complaints shall upon citation by the board appear before an agent of the board appointed to act as administrative hearing officer for a hearing which may result in the imposition of the following administrative penalties: (1) for a first offense, a fine of not more than five hundred dollars or a license suspension of not more than thirty days, or both; (2) for a second offense, a fine of not more than one thousand dollars or suspension of not more than sixty days, or both; (3) for a third offense, a fine of not more two thousand dollars or a license suspension of not more than ninety days, or both. The licensee must be given at least thirty days' notice of the time and place of the hearing and of the charges. A person aggrieved by a ruling of the administrative hearing officer may appeal to the board within fifteen days after the ruling. The request for appeal must be in writing. The board shall state in writing its findings and determinations after the appeal and its decision in the matter. Appeals from the decision of the board are to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. A licensee who violates any other provisions of this chapter or regulations promulgated by its authority or accumulates three or more consumer complaints or violations which have not been corrected within the prescribed time upon citation of the board shall appear before the board for a hearing which may result in: (1) a fine of not more than two thousand five hundred dollars or license suspension or revocation for not more than one year; (2) increase in surety bonding or other approved security requirements. The licensee must be given at least thirty days' notice of the time and place of the hearing and of the charges. A person aggrieved by a ruling of the board may appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Board to oversee complaints
SECTION 905. Section 40-29-210 of the 1976 Code is amended to read:
"Section 40-29-210. The board shall oversee the handling of manufactured home consumer complaints that may be due to electrical, mechanical, or structural defects or nonconformances to the Construction and Safety Standards Act, standards and regulations. As part of this responsibility, the manufactured home manufacturers must be inspected and monitored for compliance with federal manufactured home standards and regulations. In the conduct of its responsibilities under this section, the board shall recognize the need for life safety requirements as a part of its general oversight function and shall receive advice in the life safety area from the State Fire Marshal to insure that fire prevention is a part of the overall program under the terms of this chapter."
Director to employ personnel
SECTION 906. Section 40-33-250 of the 1976 Code is amended to read:
"Section 40-33-250. The Director of the Department of Labor, Licensing, and Regulation, or his designee, pursuant to Section 40-73-15, shall appoint and employ a qualified person to serve as executive director, and shall fix his compensation and define his duties. The executive director of the board shall have the power to make contracts, with board approval, for the furtherance of the board's functions and the management of the office. The director, or his designee, may employ such other persons as may be necessary to carry on the board's work. The salaries of employees and necessary expenses incurred in the performance of their duties shall be paid out of funds held by the board."
Review by administrative law judge
SECTION 907. Section 40-33-931 of the 1976 Code is amended to read:
"Section 40-33-931. A decision by the board to revoke, suspend, or otherwise discipline a licensee must be by majority vote of the total membership of the board and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. A decision by the board to revoke, suspend, or otherwise restrict a license or to limit or otherwise discipline a licensee becomes effective upon delivery of a copy of the decision to the licensee and a petition for review does not operate as a supersedeas."
Board to apply to administrative law judge
SECTION 908. Section 40-33-960 of the 1976 Code is amended to read:
"Section 40-33-960. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application by the board, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry. Whenever the board has reason to believe that any person is violating or intends to violate any provision of this chapter, it may, in addition to all other remedies, order such person to immediately desist and refrain from such conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from such conduct. The examiner may issue a temporary injunction ex parte, and upon notice and full hearing may issue any other order in the matter it deems proper. No bond shall be required of the board by the examiner as a condition to the issuance of any injunction or order contemplated by the provisions of this section."
Decision of board
SECTION 909. Section 40-35-70 of the 1976 Code is amended to read:
"Section 40-35-70. The board shall elect from its membership a chairman, vice chairman, and secretary-treasurer. The members of the board must be compensated for their services at the regular per diem rate established by law for other state boards, committees, and commissions and may be reimbursed for actual and necessary expenses incurred in connection with and as a result of their work as members of the board. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, may employ and establish the duties of necessary personnel to assist the board in the performance of its duties."
Revocation, etc., by majority vote
SECTION 910. Section 40-35-135 of the 1976 Code is amended to read:
"Section 40-35-135. (A) Every communication, whether oral or written, made by or on behalf of a person, to the board or a person designated by it to investigate or hear matters relating to the revocation, suspension, or other restriction of a license or the limitation on or other discipline of a licensee, whether by way of complaint or testimony, is privileged, and no action or proceeding, civil or criminal, shall lie against the person, by or on whose behalf the communication is made, except upon proof that the communication was made with malice. No part of this article may be construed as prohibiting the respondent or his legal counsel from exercising the respondent's constitutional right of due process under the law, nor as prohibiting the respondent from normal access to the charges and evidence filed against him as part of due process under the law. (B) A decision by the board to revoke, suspend, or otherwise discipline a licensee must be by majority vote of the total membership of the board and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Board may deny or refuse license
SECTION 911. Section 40-36-160 of the 1976 Code is amended to read:
"Section 40-36-160. (1) The board may deny or refuse to renew a license or may suspend or revoke a license or may impose probationary conditions where the licensee or applicant is likely to endanger the health, welfare or safety of the public. Such unprofessional conduct shall include: (a) Obtaining a license by means of fraud, misrepresentation or concealment of material facts. (b) Being guilty of unprofessional conduct as defined by the rules established by the board or violating the Code of Ethics adopted and published by the board. (c) Being convicted of a felony or a crime involving moral turpitude. (2) Such denial, refusal to renew, suspension or revocation of a license or imposition of probationary conditions upon a licensee may be ordered by the board in a decision made after a hearing in the manner provided by the rules adopted by the board. A transcribed record of the hearing shall be made. No sooner than one year from the date of the revocation of a license application may be made to the board for reinstatement. The board shall have discretion to accept or reject an application for reinstatement and may hold a hearing to consider such reinstatement. (3) Any licensee or applicant aggrieved by a decision of the board under this section may appeal such decision to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 on the record made before the board."
Administrative law judge
SECTION 912. Section 40-37-50 of the 1976 Code is amended to read:
"Section 40-37-50. The South Carolina Board of Examiners in Optometry may adopt an official seal, prescribe regulations and bylaws for its proceedings and government and for the practice of optometry and for the examination of applicants for the practice of optometry. The board or any member thereof may administer oaths for all purposes requiring the discharge of its duties. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may subpoena witnesses, take evidence, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application of the board may issue an order requiring the person to appear before the board, or a person designated by it, and produce documentary evidence and to give other evidence concerning the matter under inquiry."
Review by administrative law judge
SECTION 913. Section 40-37-230 of the 1976 Code is amended to read:
"Section 40-37-230. If the board shall be satisfied that the optometrist is guilty of any offense charged in the formal accusation provided for in this chapter, it shall thereupon revoke, suspend, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose such restraint upon the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of such action shall then be mailed by the secretary of the board to the accused at his last known address as provided to the board. Any decision by the board to revoke, suspend, or otherwise restrict the license shall be by majority vote of the entire board qualified and serving at the time and shall be subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the licensee with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 and a copy thereof served upon the secretary of the board within thirty days from the date of delivery of the board's decision to the licensee. Such review shall be limited to the record established by the board's hearing."
Regulations
SECTION 914. Section 40-38-60 of the 1976 Code is amended to read:
"Section 40-38-60. The board may promulgate regulations and bylaws for its own proceedings and government and for the practice of opticianry and examination of applicants for the practice of opticianry. The board or any member may administer oaths for all purposes requiring the discharge of its duties. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may subpoena witnesses, take evidence, and require the production of any documents or records which it deems relevant to the inquiry. In the case of contumacy by or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application of the board, may issue an order requiring the person to appear before the board, or a person designated by it, and produce documentary evidence, and to give other evidence concerning the matter under inquiry."
Review by judge
SECTION 915. Section 40-38-230 of the 1976 Code is amended to read:
"Section 40-38-230. If the board shall be satisfied that the optician is guilty of any offense charged in the formal accusation provided for in this chapter, it shall revoke, suspend, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose such restraint upon the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of such action shall then be mailed by the secretary of the board to the accused at his last known address as provided to the board. Any decision by the board to revoke, suspend, or otherwise restrict the license shall be by majority vote and shall be subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. Such review shall be limited to the record established by the board's hearing."
Judge may issue injunction
SECTION 916. Section 40-43-135 of the 1976 Code is amended to read:
"Section 40-43-135. The responsibility for the enforcement of the provisions of this chapter is vested in the Board of Pharmacy. The board has all of the duties, powers, and authority granted by and necessary to the enforcement of this chapter. The board shall regulate the practice of pharmacy. Its duties include, but are not limited to, determining the ethical and professional competence, on a continuing basis through continuing education, of pharmacists and for disciplining them and the compounding, dispensing, and sale of drugs and the required recordkeeping for the sale of drugs. However, the board's inspection authority over the inpatient pharmacy of a hospital applies only to recordkeeping activities of drugs dispensed by the pharmacy. Further, the responsibility for inspections of the hospital inpatient pharmacy is delegated to the Department of Health and Environmental Control as part of its licensing process. These inspections must be conducted by a licensed pharmacist. The board shall regulate the operation of drug outlets including, but not limited to, the compounding, manufacturing, sale, and distribution of drugs bearing the legend `Caution - federal law prohibits dispensing without a prescription'. In so doing, the board shall make, publish, supervise, and enforce regulations for the operation of drug outlets, including the operation of pharmacies, the inspection of weights and measures used in the prescription departments of pharmacies, the compounding, dispensing and sale of drugs, medicines, poisons, and prescriptions, and the necessary recordkeeping. It shall prescribe minimum standards for technical equipment, sanitation, reference materials, and the currently dated inventory of drugs in all drug outlets. When the board has reason to believe that any person is violating or intends to violate any provisions of this chapter it may, in addition to all other remedies, order the person to immediately refrain from the conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from the conduct. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may issue a temporary injunction ex parte and upon notice and full hearing may issue any other order in the matter it considers proper. No bond is required from the board by an administrative law judge as a condition to the issuance of any injunction or other action contemplated by the provisions of this section. Nothing in this section authorizes the board to make regulations concerning the prices of goods or drugs sold by outlets, the hours that the businesses may be operated, or the hours of work of the employees of the businesses."
Review by judge
SECTION 917. Section 40-43-260 of the 1976 Code is amended to read:
"Section 40-43-260. A. The board may, after a hearing and upon proof that grounds exist, order the revocation or suspension of a license, publicly or privately reprimand the holder of a license or take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose such restraint upon the practice of the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. Any action of the board relating to the revocation or suspension of a license, or other action either restricting a license or limiting or otherwise disciplining a licensee, shall be taken only after a written complaint of misconduct has been filed with the board in accordance with the Administrative Procedures Act (Act 176 of 1977) [Sections 1-23-10 et seq.] and regulations promulgated by it. If a complaint is not dismissed, in accordance with subsection B, a hearing shall be held. B. Upon its review, the board may either dismiss the complaint or find that the licensee is guilty of misconduct meriting sanction. In either event, the board shall file a final certified report of the proceedings before it with the secretary of the board and the secretary shall forthwith notify the complainant and the licensee and their counsel of such action. C. Any decision by the board to revoke, suspend or otherwise restrict a license or limit or otherwise discipline a licensee shall be by majority vote of the board members and shall be subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the licensee with the administrative law judge and a copy served upon the secretary of the board within thirty days from the date of delivery of its decision to the licensee. Such review shall be limited to the record established by the board hearing. D. Any decision by the board to revoke, suspend or otherwise restrict a license or limit or otherwise discipline a licensee shall become effective upon delivery of a copy of such decision to the licensee and a petition for review by an administrative law judge shall not operate as a supersedeas. E. Misconduct, which constitutes grounds for revocation, suspension or other restriction of a license or a limitation on or other discipline of a licensee shall be satisfactory showing to the board of any of the following: (1) That any false, fraudulent or forged statement or document has been used or any fraudulent, deceitful or dishonest act has been practiced by the holder of a license in connection with any of the licensing requirements. (2) That the holder of a license has been convicted of a felony or any other crime involving fraud, drugs or any of the laws relating to controlled substances, intoxicating liquors or the unlawful sales of dangerous drugs as prohibited by the Federal Food, Drug and Cosmetic Act. (3) That the holder of a license uses alcohol or drugs to such a degree as to render him unfit to practice pharmacy. (4) That the holder of a license has been convicted of the illegal or unauthorized practice of pharmacy. (5) That the holder of a license has knowingly performed any act which in any way assists an unlicensed person to violate any provisions of the pharmacy laws. (6) That the holder of a license has sustained any physical or mental disability, as determined by a physician, which renders further practice by him dangerous to the public. (7) That the holder of a license is guilty of engaging in any dishonorable, unethical or unprofessional conduct that is likely to deceive, defraud or harm the public. (8) That the holder of a license is guilty of the use of any intentionally fraudulent statement in any document connected with the practice of pharmacy. (9) That the holder of a license is guilty of obtaining fees or assisting in obtaining such fees under intentionally fraudulent circumstances. (10) That the holder of a license has intentionally violated or attempted to violate, directly or indirectly, or is assisting in or abetting the violating or conspiring to violate any provisions or terms of this chapter. (11) That the holder of a license has been found by the board to lack the ethical or professional competence to practice pharmacy. (12) That the holder of a license has practiced pharmacy while under the influence of alcohol, drugs or other intoxicants. F. In addition to all other remedies and actions incorporated in this section, the license of any pharmacist adjudged mentally incompetent by any court of competent jurisdiction shall be automatically suspended by the board until the pharmacist is adjudged by a court of competent jurisdiction or in any other manner provided by law as being restored to mental competency."
Appeal to judge
SECTION 918. Section 40-43-410 of the 1976 Code is amended to read:
"Section 40-43-410. Any person to whom the Board of Pharmacy has refused to issue a permit, or whose permit has been revoked, suspended, or canceled, may appeal from the decision and order of the board to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 at any time within thirty days after the date of the receipt of the action taken by the board. No order of revocation, suspension, or cancellation of a permit is effective until the decision and order become final."
Review by judge
SECTION 919. The 1976 Code is amended by adding:
"Section 40-45-260. Any decision by the board to revoke, suspend or otherwise restrict a license or limit or otherwise discipline a licensee shall be by majority vote of the board members and shall be subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the licensee with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 and a copy served upon the secretary of the board within thirty days from the date of delivery of its decision to the licensee. Such review shall be limited to the record established by the board hearing."
Review by judge
SECTION 920. Section 40-47-170 of the 1976 Code is amended to read:
"Section 40-47-170. Any action of the board relating to the granting, refusal or cancellation of a license, or any other official action of the board relating to a license or licensee hereunder, shall be subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 on the record of the board, as in certiorari, upon petition of the applicant or licensee within ten days from receipt of official notice from the board of the action of which review is sought. Service of such notice shall be conclusively presumed ten days after mailing by registered or certified mail to such applicant or licensee of such notice at such person's last known address."
Review by judge
SECTION 921. The fifth paragraph in Section 40-47-200 of the 1976 Code is amended to read:
"Any decision by the board to revoke, suspend, or otherwise restrict a license or to limit or otherwise discipline a licensee must be by majority vote of the total membership of the board. Any licensee against whom disciplinary action is taken pursuant to the provisions of this article has the right to judicial review. Any disciplinary action is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the licensee with an administrative law judge and a copy of the petition served upon the secretary of the board within thirty days from the date of delivery of the board's decision to the licensee. An appeal taken to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 has precedence on the calendar of an administrative law judge, is considered an emergency appeal if the board has revoked, suspended, or otherwise restricted a license for more than six months, and should be heard not later than thirty days from the date the petition is filed. The review is limited to the record established by the board hearing. No stay or supersedeas may be granted pending appeal from a decision by the board to revoke, suspend, or otherwise restrict a license for more than six months."
Subpoena of judge
SECTION 922. Section 40-47-210 of the 1976 Code is amended to read:
"Section 40-47-210. For the purpose of any investigation or proceeding under the provisions of this article, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry. Whenever the board has reason to believe that any person is violating or intends to violate any provision of this article, it may, in addition to all other remedies, order such person to immediately desist and refrain from such conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from such conduct. An administrative law judge may issue a temporary injunction ex parte, and upon notice and full hearing may issue any other order in the matter it deems proper. No bond shall be required of the board by an administrative law judge as a condition to the issuance of any injunction or order contemplated by the provisions of this section."
Director may employ staff
SECTION 923. Section 40-47-570 of the 1976 Code is amended to read:
"Section 40-47-570. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, may employ additional staff as necessary for the performance of its duties under this article."
Appeal to judge
SECTION 924. Section 40-47-630 of the 1976 Code is amended to read:
Section 40-47-630. (A) The committee may recommend to the board that it revoke, suspend, issue a public or private reprimand, or impose any other reasonable limitation or practice where the unprofessional, unethical, or illegal conduct of the respiratory care practitioner is likely to endanger the health, welfare, or safety of the public. The conduct includes the following: (1) use of any false, fraudulent, or forged statement or any fraudulent, deceitful, or dishonest act practiced by the holder of a certificate in connection with any of the certifying requirements; (2) that the holder of a certificate is addicted to alcohol or drugs to such a degree as to render him unfit to practice respiratory care; (3) that the holder of a certificate has been convicted of the illegal or unauthorized practice of respiratory care; (4) that the holder of a certificate has knowingly performed any act which in any way assists an uncertified person to practice respiratory care; (5) that the holder of a certificate has sustained any physical or mental disability which renders further practice by him dangerous to the public; (6) that the holder of a certificate has violated the code of ethics or regulations as adopted by the committee and the board; (7) that the holder of a certificate is guilty of engaging in any dishonorable, unethical, or unprofessional conduct that is likely to deceive or harm the public; (8) that the holder of a certificate is guilty of the use of any false or fraudulent statement in any document connected with the practice of respiratory care; (9) that the holder of a certificate has intentionally violated or attempted to violate, directly or indirectly, or is assisting in or abetting the violation or conspiring to violate any provisions of this article; (10) that the holder of a certificate is guilty of the commission of any act, during the course of practice conducted pursuant to a certificate issued under this article, that constitutes fraud, dishonest dealing, illegality, incompetence, or gross negligence. (B) The suspension, revocation, reprimand, or imposition of probationary conditions upon a respiratory care practitioner may be recommended by the committee to the board after a hearing is conducted in accordance with the Administrative Procedures Act. A transcribed record of the hearing must be made. (C) Any respiratory care practitioner aggrieved by a decision of the committee or board under this section may appeal the decision to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 on the record made before the committee or board."
Subpoena of judge
SECTION 925. Section 40-47-660 of the 1976 Code is amended to read:
"Section 40-47-660. (A) It is unlawful for any person who is not certified under this article to hold himself out as a respiratory care practitioner, respiratory therapist, or a respiratory therapy technician. Any person who holds himself out as a respiratory care practitioner without being certified under this article, during a period of suspension, or after his certificate has been revoked by the board is guilty of a misdemeanor and upon conviction must be fined not more than three hundred dollars or imprisoned for not more than ninety days, or both. (B) For the purpose of any investigation or proceeding under the provisions of this article, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take testimony, and require the production of any documents or records which the board considers relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application by the board, may issue an order requiring the person to appear before the board or the person designated by it, produce documentary evidence, and give other evidence concerning the matter under inquiry. When the board has sufficient evidence that any person is violating any provisions of this article, it may, in addition to all other remedies, order the person to immediately desist and refrain from this conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from this conduct. An administrative law judge may issue a temporary injunction ex parte and upon notice and full hearing may issue any other order in the matter it considers proper. No bond may be required of the board by an administrative law judge as a condition to the issuance of any injunction or order contemplated by the provisions of this section. (C) Every communication, whether oral or written, made by or on behalf of any person or firm to the board or any person designated by it to investigate or otherwise hear matters relating to the revocation, suspension, or other restriction on a certificate or other discipline of a certificate holder, whether by way of complaint or testimony, is privileged. No action or proceeding, civil or criminal, may lie against the person or firm for the communication except upon proof that the communication was made with malice. (D) No provision of this article may be construed as prohibiting the respondent or his legal counsel from exercising the respondent's constitutional right of due process under the law nor prohibiting the respondent from normal access to the charges and evidence filed against him as a part of due process under the law."
Review by judge
SECTION 926. Section 40-51-160 of the 1976 Code is amended to read:
"Section 40-51-160. The State Board of Podiatry, if it has reason to believe grounds exist, shall notify a licensee not less than thirty days before a scheduled hearing of its intention to suspend or revoke the license of the licensee. The notice must specify the alleged grounds for suspension or revocation and offer the licensee reasonable opportunity to be heard in answer to the allegations. The decision to suspend or revoke the license must be by majority vote of the total membership of the board. Any decision of the board to revoke or suspend a license is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. A decision to suspend or revoke a license by the board is effective upon delivery of a copy of the decision to the licensee and a petition for review by an administrative law judge is not a supersedeas. The grounds for revocation or suspension of a license are a satisfactory showing to the board of any of the following: (1) that any false, fraudulent, or forged statement or document has been used or any fraudulent, deceitful, or dishonest act has been practiced by the holder of a license in connection with any of the licensing requirements; (2) that the holder of a license has been convicted of a felony or any other crime involving moral turpitude, drugs, or gross immorality; (3) that the holder of a license is addicted to alcohol or drugs to such a degree as to render the podiatrist unfit to practice podiatry; (4) that the holder of a license has been convicted of the illegal or unauthorized practice of podiatry; (5) that the holder of a license has knowingly performed any act which in any way assists an unlicensed person to practice podiatry; (6) that the holder of a license has sustained any physical or mental disability which renders further practice by the podiatrist dangerous to the public; (7) that the holder of a license has engaged in advertising for the practice of podiatry in a manner that is deceptive or untruthful; (8) that the holder of a license is guilty of the performance of any dishonorable, unethical, or unprofessional conduct that is likely to deceive, defraud, or harm the public; (9) that the holder of a license is guilty of the use of any false or fraudulent statement in any document connected with the practice of podiatry; (10) that the holder of a license is guilty of obtaining fees or assisting in obtaining fees under dishonorable, false, or fraudulent circumstances; (11) that the holder of a license has violated or attempted to violate, directly or indirectly, or is assisting in or abetting the violation, or conspiring to violate, any provisions or terms of the podiatry practice laws. In addition to all other remedies and actions incorporated in this article, the license of any person adjudged mentally incompetent by any court of competent jurisdiction is automatically suspended by the board until he is adjudged by a court of competent jurisdiction or in any other manner provided by law as being restored to mental competency."
Subpoena by judge
SECTION 927. Section 40-55-140 of the 1976 Code is amended to read:
"Section 40-55-140. No member of the board, or its committees, special examiners, agents and employees shall be held liable for acts performed in the course of official duties except where actual malice is shown. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry. Any final order of the board finding that a psychologist is guilty of any offense charged in a formal accusation shall become public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. All final orders which are made public shall be mailed to local and state psychological associations, and all hospitals with which the respondent is associated, states where the psychologist has a license as known to the board, and to any other source that the board wishes to furnish this information."
Review by judge
SECTION 928. Section 40-55-160 of the 1976 Code is amended to read:
"Section 40-55-160. If the board shall be satisfied that the psychologist is guilty of any offense charged in the formal accusation provided for in this chapter, it shall thereupon revoke or suspend his license, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose such restraint upon the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of such action shall then be mailed by the secretary of the board to the accused at his last known address as provided to the board. Any decision by the board to revoke, suspend, or otherwise restrict the license shall be by majority vote and shall be subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the licensee with an administrative law judge thereof served upon the secretary of the board within thirty days from the date of delivery of the board's decision to the licensee. Such review shall be limited to the record established by the board's hearing."
Director of department to employ personnel
SECTION 929. Section 40-56-10 of the 1976 Code is amended to read:
"Section 40-56-10. There is created the State Board of Pyrotechnic Safety to be composed of six members appointed by the Governor. One of the appointees must be a fireman, one must be a pyrotechnics retailer, one must be a law enforcement representative, and three must be members of the public who shall not possess any pecuniary interest in any entity engaged in a business directly involving the sale of pyrotechnics. The board shall elect from its members a chairman, vice-chairman, and such other officers as it may consider necessary to serve for terms of one year and until their successors are elected and qualify. Terms of office for members are for two years and until their successors are appointed and qualify. Vacancies must be filled in the manner of original appointment for the unexpired term. The board shall meet at least annually and not more than once per month. All meetings must be scheduled at the call of the chairman. All members shall receive mileage, per diem, and subsistence as provided by law for members of boards, committees, and commissions for days on which they are transacting official business, to be paid from the general fund of the state. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, shall employ such personnel as necessary to carry out the duties of the board."
Provisions deleted regarding regulations
SECTION 930. Section 40-56-20 of the 1976 Code is amended to read:
"Section 40-56-20. It shall be the duty and responsibility of the board created in Section 40-56-10 to promulgate regulations relating to the sale of pyrotechnics in this State including the storage and fire safety of such products. The board shall also recommend to the General Assembly legislation it deems necessary for the safety and control of the sale of pyrotechnics."
Commissioner may apply to judge
SECTION 931. Section 40-57-170 of the 1976 Code is amended to read:
"Section 40-57-170. (A) The commissioner may upon his own motion or a verified complaint together with evidence, documentary or otherwise, presented in connection therewith, making out a prima facie case, investigate the actions of any real estate broker, counsellor, salesman, auctioneer, property manager, or any person who has unlawfully assumed to act in either capacity within this State and has the power to suspend, revoke, and cancel any license issued under the provisions of this chapter and assess fines at any time where the licensee has by material misrepresentation obtained a license, or where the licensee is found by the commissioner to be guilty of any of the following acts: (1) making any substantial misrepresentation; (2) making any false promises of a character likely to influence, persuade, or induce; (3) pursuing a continued and flagrant course of misrepresentation, or making false promises through agents or salesmen or any medium of advertising, or otherwise; (4) any conduct in a real estate transaction which demonstrates bad faith, dishonesty, untrustworthiness, or incompetency in a manner as to endanger the interest of the public; (5) acting for more than one party in a transaction without the knowledge of all parties for whom he acts; (6) acting in the dual capacity of broker and undisclosed principal in any transaction; (7) representing or attempting to represent, if a salesman, a real estate broker other than his employer without the express knowledge and consent of his employer; (8) guaranteeing or authorizing or permitting any person to guarantee future profits which may result from the resale of real property; (9) making of dual sets of contracts, written or otherwise, which would falsify the transaction by stating a sales price higher than the actual sales price in an effort to obtain a larger loan from any lender or lending institution or for the purpose of misinforming any governmental agency; (10) being convicted in any court of competent jurisdiction of this State, any other state, or any federal court of forgery, embezzlement, breach of trust, larceny, obtaining money or property under false pretense, extortion, fraud, conspiracy to defraud, or any other offense involving moral turpitude, or pleading guilty or nolo contendere to any such offense; (11) failing, within a reasonable time, to account for or to remit any monies coming into his possession which belong to others; (12) paying a commission or compensation to any person for performing the services of a real estate broker, salesman, or property manager who has not first secured his license under the South Carolina Real Estate Licensing Act. A South Carolina licensed broker may pay a part of his commission on a cooperative basis to a licensed broker of another state if the nonresident broker does not conduct in this State any of the negotiations for which a fee, compensation, or commission is paid; (13) failing, if a broker, to place, as soon after receipt as is practicably possible, any deposit money or other money received by him in a real estate transaction in a separate real estate trust or escrow account maintained by him in a banking institution authorized to do business in this State, wherein the funds must be kept until the transaction is consummated or otherwise terminated, at which time a full accounting thereof must be made by the broker. Records relative to the deposit, maintenance, and withdrawal of the funds must be properly maintained and made available to a representative of the South Carolina Real Estate Commission upon request; (14) violating any provision of law relating to a buyer's freedom of choice in choosing an attorney, insurance agent, or title insurance agent to handle his real estate transaction; (15) failing, if a broker or property manager, to deposit all security deposits, damage deposits, advance fees, and rental proceeds received by the broker or property manager on or before the next banking day in a separate escrow or real estate trust account so designated. All these funds except rental proceeds shall remain until the lease or rental transaction expires or is terminated, at which time a full accounting must be made by the broker or property manager. Rental proceeds must be disbursed within a reasonable time after deposit and clearance of the deposit by the bank. Records relative to the receipt, deposit, maintenance, and withdrawal of the funds must be properly maintained and made available to a representative of the South Carolina Real Estate Commission upon request; (16) failing, if a licensee, to report to the commission in writing by certified mail, return receipt requested, within ten days after receipt by the licensee of those convictions set forth in item (10) of this subsection; (17) a real estate licensee shall disclose on a form approved by the commission for which party he is acting and may not receive compensation from more than one party except with the full knowledge and consent of all parties; (18) violating any regulation promulgated by the commission. (B)(1) The commissioner may make any public or private investigation which he considers necessary to determine whether any person has violated this chapter or any order or regulation hereunder, or to aid in the enforcement of this chapter or in the prescribing of regulations and forms thereunder. (2) The commissioner may require or permit any person to file a statement in writing, under oath or otherwise as the commissioner determines, as to all facts and circumstances concerning the matter to be investigated. (3) For the purpose of any investigation or proceeding under this chapter, the commissioner or any officer designated by regulation may administer oaths or affirmations, and upon his own motion or upon request of any party shall subpoena witnesses, compel their attendance, take evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence. (4) Upon failure to obey a subpoena or to answer questions propounded by the investigating officer and upon reasonable notice to all persons affected thereby, the commissioner, through the Attorney General, may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an order compelling compliance. (C) The commissioner may: (1) Issue an order requiring a person to cease and desist from any unlawful practice and to take such affirmative action as in the judgment of the commissioner will carry out the purposes of this chapter if, after notice and hearing, the commissioner determines that a person has: (a) violated any provisions of this chapter. (b) directly or through any agent or employees knowingly engaged in any false, deceptive, or misleading practices in the sale or rental of real estate, including advertising and promotions. (c) violated any lawful order or rule of the commission. (2) Make findings of fact in writing that the public interest will be irreparably harmed by delay in issuing an order and in such case may issue a temporary cease and desist order. Prior to issuing the temporary cease and desist order, the commissioner, whenever possible by telephone or otherwise, shall give notice of the proposal to issue a cease and desist order to the person. Every temporary cease and desist order shall include in its terms a provision that upon request a hearing will be held promptly to determine whether or not it becomes permanent."
Appeal from commission
SECTION 932. Section 40-57-220 of the 1976 Code is amended to read:
"Section 40-57-220. Every applicant or licensee aggrieved by a decision of the commissioner in refusing, suspending, or revoking any license or in issuing reprimands provided under the provisions of this chapter may appeal from the decision of the commissioner to the Real Estate Commission by serving notice of appeal upon the commissioner within ten days of receipt of his ruling or decision. The notice of appeal must set forth all grounds upon which the appeal is based. The commissioner shall call a hearing on the matter, which must be confined to the record, and which must be attended by at least five members of the Real Estate Commission, including the member from the congressional district in which the appellant resides and four other members to be selected by the chairman. The commission may affirm the commissioner's ruling or remand the case for further proceedings. Upon request of any party, the commission shall hear oral arguments and receive written briefs. An appeal may be taken from the decision of the commission to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Director may employ executive director
SECTION 933. Section 40-59-50 of the 1976 Code is amended to read:
"Section 40-59-50. The Director of the Department of Labor, Licensing, and Regulation, pursuant to section 40-73-15, may employ an executive director to serve at the discretion of the Director of the Department of Labor, Licensing, and Regulation. The duties of the executive director must be prescribed by the Director of the Department of Labor, Licensing, and Regulation and shall include, but not be limited to, the following: (a) keep a record of the proceedings of the commission; (b) receive and account for all monies received by the commission; (c) keep a register of all applicants for licenses showing for each the date of application, name, qualifications, place of business, place of residence, and whether the license was granted or refused; and (d) keep a register of all residential specialty contractors doing business in this State showing for each the date of registration, name, place of business, place of residence, and office telephone number. A residential specialty contractor must notify the commission in writing within thirty days of any change in the information required to be on file with the commission. The executive director shall execute a bond, payable to the commission, for the proper performance of his duties in that sum as the director may require. The director may also employ clerical and stenographic assistance and other personnel as may be necessary to effectuate the provisions of this chapter. The compensation of all employees of the commission must be fixed by the Director of the Department of Labor, Licensing, and Regulation and paid from the fees received by the commission pursuant to the provisions of this chapter."
Executive director to keep records
SECTION 934. Section 40-59-60 of the 1976 Code is amended to read:
"Section 40-59-60. The commission shall meet quarterly and at such other times as the chairman may designate; provided, however, that the commission shall meet within thirty days after appointment for the purpose of organizing and transacting such business as may properly come before it. Four members of the commission shall constitute a quorum at all meetings. The executive director shall keep such records of each meeting as shall be required by the commission."
Appeal to judge
SECTION 935. Section 40-59-90 of the 1976 Code is amended to read:
"Section 40-59-90. The commission may revoke, suspend, or restrict for a period not to exceed one year the license of a residential builder, certificate of a residential specialty contractor, or registration of a residential specialty contractor who, in the opinion of the commission, has committed fraud or deceit in obtaining a license or certificate or in registering as required by the provisions of this chapter or has been guilty of gross negligence, incompetence, or misconduct in the practice of home building or residential specialty contracting. A person, including the commission, may prefer charges of fraud, deceit, negligence, incompetence, or misconduct against a residential builder licensed under this chapter or a residential specialty contractor certified or registered under this chapter. The charges must be made to the commission in writing and sworn to by the person so charging and must be submitted to the executive director of the commission. The charges, unless dismissed without hearing by the commission as unfounded or trivial, must be heard by the commission in an open hearing within three months after the date on which they were preferred. A copy of the charges, together with notice of the time and place of the hearing, must be served legally on the residential builder or residential specialty contractor charged at least thirty days before the fixed date for the hearing. At the hearing the residential builder or residential specialty contractor charged may appear personally or be represented by counsel and may cross-examine witnesses against him and produce evidence and witnesses in his defense. If, after the hearing, a majority of the commission votes in favor of revoking, suspending, or restricting for a period not to exceed one year the license of the residential builder or the certificate or registration of the residential specialty contractor charged on the basis of fraud or deceit in obtaining his license or certificate or in registering with the commission or gross negligence, incompetence, or misconduct in the performance of home building or residential specialty contracting, the commission shall order the license of the residential builder, the certificate of the residential specialty contractor, or the registration of the residential specialty contractor revoked or suspended or restricted for a period not to exceed one year. After the commission revokes or suspends or restricts for a period not to exceed one year the license of the residential builder or the certificate or the registration of the residential specialty contractor, he has ten days to file with the commission written notice of his intention to appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 from the order of the commission. All appeals from the order of the commission are governed by the provisions of Article 3, Chapter 23 of Title 1 (the Administrative Procedures Act). The commission may reissue a license to a residential builder or certificate to a residential specialty contractor whose license or certificate was previously revoked if a majority of the members of the commission vote in favor of the reissuance."
Action to be filed with judge
SECTION 936. Section 40-59-95 of the 1976 Code is amended to read:
"Section 40-59-95. (A) In addition to all other remedies provided by law, when it appears to the executive director, either upon complaint or otherwise, that any person or combination of persons has engaged, or is engaging, in any act of contracting, practice, or transaction which constitutes a violation of this chapter or any regulation or order of the commission, whether or not the person is properly licensed, certified, or registered with the commission, the executive director may either: (1) serve upon the person not licensed, certified, or registered under the chapter, by certified mail or by personal service, a cease and desist order requiring the person to cease and desist immediately, upon receipt of the notice, from engaging in the act, practice, or transaction. If the person fails to comply with the order, the executive director may file an action with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for enforcement of the cease and desist order or file an action pursuant to item (2) of this subsection in the court of common pleas to restrain and enjoin the person from engaging in the act, practice, or transaction and for wilful violation of the order. If the administrative law judge finds that the person wilfully failed to obey a valid cease and desist order, the court shall impose a civil penalty of not less than two hundred fifty dollars nor more than two thousand dollars for each violation. Any amount collected as a civil penalty must be remitted pursuant to subsection (B) of this section; (2) apply through the Attorney General, the administrator of the Department of Consumer Affairs, the county attorney, or solicitor of the county in which the act, practice, or transaction is alleged to have been committed, to the court of common pleas of that county for an injunction restraining the person from engaging in the act, practice, or transaction or doing any act in furtherance of the act, practice, or transaction. Upon a proper showing, a temporary restraining order, a preliminary injunction, or a permanent injunction may be granted without bond. Process in the action may be served upon the defendant in any county of this State where he transacts business or is found. (B) In actions brought under item (2) of subsection (A), each violation of this chapter or regulation or order of the executive director constitutes a separate offense and the court may impose a civil penalty not to exceed two thousand dollars for each violation which is in addition to all other penalties provided by law. Fifty percent of the penalty must be remitted to the general fund of the county where the case was tried and fifty percent must be deposited in the state general fund if the violation is prosecuted by the county attorney or solicitor. Seventy-five percent of the penalty must be deposited in the state general fund if the violation is prosecuted by the Attorney General or the administrator of the Department of Consumer Affairs, and twenty-five percent must be remitted to the prosecuting agency for expenses in trying the case."
Petition to judge SECTION 937. Section 40-59-130 of the 1976 Code is amended to read:
"Section 40-59-130. Any residential builder or residential specialty contractor who undertakes or attempts to undertake the business of residential building or residential specialty contracting without first having procured a valid license or certificate or registered with the commission as required in Section 40-59-50 which has neither expired nor been revoked, or who knowingly presents to, or files with, the commission false information for the purpose of obtaining a license or certificate or becoming registered is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars or imprisoned for not less than thirty days. A residential builder who does not have a license or residential specialty contractor who is not certified or registered as required may not bring any action either at law or in equity to enforce the provisions of any contract for residential building or residential specialty contracting which he entered into in violation of this chapter. Whenever it appears to the commission that any residential builder or residential specialty contractor has violated, or is about to violate, the provisions of this chapter, the commission may in its own name petition an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 to issue a temporary restraining order enjoining the violation of this chapter, pending a full hearing to determine whether or not the injunction must be made permanent."
Appeal to judge
SECTION 938. Section 40-60-160 of the 1976 Code is amended to read:
"Section 40-60-160. (A) Whenever a complaint filed with the board involves an appraisal report which varies from a sales, lease, or exchange price the board may in its discretion decline to conduct an investigation. (B) A person authorized to conduct an investigation on behalf of the board shall have access to and may examine any writings, documents, or other material which may be related to an investigation. (C) In the conduct of an investigation or proceeding under this chapter, the chairman of the board, the commissioner, or any duly authorized assistant or deputy appointed by the commissioner, may issue subpoenas to compel production of those writings, documents, or material on behalf of the board. After the service of a notice of hearing, the chairman of the board, commissioner, or any duly authorized assistant or deputy appointed by the commissioner may issue subpoenas to compel production of those writings, documents, or material, either on behalf of the board or at the request of a respondent. The commissioner, chairman of the board, the board, or the respondent may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an order requiring compliance. Failure to comply with an order is punishable as for contempt of court. (D) If technical assistance is required in an investigation due to its complexity, the commissioner may contract on behalf of the board for consultant services provided: (1) no member of the board or commission obtains financial gain for himself through these consultant services; (2) no person with whom a member of the board or commission or a member of his household is employed or negotiating or has an arrangement concerning prospective employment, may provide these consultant services. (E) The results of all investigations may be reported only to the board or to the commissioner and the records of the investigations are not subject to subpoena in civil actions. Records of investigations must be kept by the board and no part of any investigative record may be released for any purpose other than a hearing before the board or its designated hearing officer, review by another law enforcement agency or lawful licensing authority upon issuance of a subpoena from the agency or authority or at the discretion of the board or the commissioner, review by the respondent after the service of a notice of hearing, or an appeal of a decision by the board to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. After service of a notice of hearing, a respondent has a right to obtain a copy of the investigative record pertaining to the respondent. (F) Whenever the board issues a disciplinary sanction pursuant to the provisions of this chapter, the board shall publish the sanction in its official newsletter unless the sanction is a private reprimand. (G) The commissioner shall maintain in his main office a public docket or record, in which he shall record, from time to time as made, the rulings or decisions upon all complaints filed with the board and all investigations instituted by the board, upon or in connection with which any hearing has been held, or in which a state registered real estate appraiser, a state licensed real estate appraiser, or state certified real estate appraiser has made no defense unless the board issues a private reprimand in that instance."
Review by judge
SECTION 939. Section 40-60-170 of the 1976 Code is amended to read:
"Section 40-60-170. (A) Before the board shall impose on any appraiser any sanction permitted by this chapter or deny issuance of a registration, license, or certification to an applicant, it shall provide for a hearing for the appraiser in accordance with the Administrative Procedures Act. (B) The date of the hearing must not be less than thirty nor more than one hundred twenty days from the date after the appraiser or applicant is notified of the charges against him. (C) If an appraiser or applicant fails to appear at any hearing after reasonable notice, the board may proceed to hear the evidence against the appraiser or applicant and take action as if the appraiser or applicant had been present. A notice of hearing or final decision of the board in a disciplinary proceeding must be served upon the appraiser or applicant by personal service or by certified mail, return receipt requested, to the last known address of record with the board. If the material is returned marked `unclaimed' or `refused' or is undeliverable and if the appraiser or applicant may not be located after diligent effort, the commissioner is considered to be the agent for the appraiser or applicant for the purposes of this section, and service upon the commissioner is considered service upon the appraiser or applicant. (D) A decision by the board to revoke or suspend a registration, license, or certification or to restrict, limit, or otherwise discipline a registration, license, or certification holder must be by majority vote of the total membership of the board. A disciplinary action is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the registration, license, or certification holder within thirty days from the date of delivery of the board's decision to the registration, license, or certification holder. A copy of the petition must be served upon the commissioner. (E) A person who has exhausted all administrative remedies available within this chapter and who is aggrieved by a final decision of the board is entitled to judicial review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 in accordance with the Administrative Procedures Act. The review is limited to the record established by the board hearing. (F) No stay or supersedeas may be granted for more than six months pending appeal from a decision by the board to revoke, suspend, or otherwise restrict a license, certification, or registration."
Judicial review of decision
SECTION 940. Section 40-60-210 of the 1976 Code is amended to read:
"Section 40-60-210. (A) The board may issue a cease and desist order prohibiting a person from violating the provisions of this chapter by engaging in the practice of an appraiser without a registration, license, or certification. The cease and desist order is final ten days after it is issued unless the person to whom the order is issued requests a hearing before the board. (B) The violation of a cease and desist order of the board issued under subsection (A) of this section subjects the person violating the order to further proceedings before the board, and the board is authorized to impose a fine not to exceed one thousand dollars for each transaction constituting a violation of the order. Each day that a person practices in violation of this chapter constitutes a separate violation. (C) Initial judicial review of the decision of the board entered pursuant to this section is available solely before an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. (D) Nothing in this section may be construed to prohibit the board from seeking remedies otherwise available by statute without first seeking a cease and desist order in accordance with the provisions of this section."
Board may apply to judge
SECTION 941. Section 40-61-40 of the 1976 Code is amended to read:
"Section 40-61-40. For the purpose of any investigation or proceeding under this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board considers relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application of the board may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry. Whenever the board has reason to believe that any person is violating or intends to violate any provision of this chapter, it may, in addition to all other remedies, order the person to immediately desist and refrain from such conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from such conduct. An administrative law judge may issue ex parte a temporary injunction not to exceed ten days and upon notice and full hearing may issue any other order in the matter it deems proper. No bond is required of the board by an administrative law judge as a condition to the issuance of any injunction or order contemplated by the provisions of this section."
Review by judge
SECTION 942. Section 40-61-110 of the 1976 Code is amended to read:
"Section 40-61-110. If the board is satisfied that the registered environmental sanitarian is guilty of any offense charged in the formal accusation provided for in this chapter, it must revoke, suspend, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the sanitarian to undertake additional professional training subject to the direction and supervision of the board. The board may also impose such restraint upon the sanitarian as circumstances warrant until the sanitarian demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of the action must then be mailed by the secretary of the board to the accused at his last known address as provided to the board. Any final order of the board finding that a registered environmental sanitarian is guilty of any offense charged in a formal accusation shall become public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. All final orders which are made public must be mailed to local and state associations, and all registered environmental sanitarians with which the respondent is associated, states where the registered environmental sanitarian has a certificate as known to the board, and to any other source that the board wishes to furnish this information. Any decision by the board to revoke, suspend, or otherwise restrict the certificate must be by majority vote and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the sanitarian with an administrative law judge and a copy served upon the secretary of the board within thirty days from the date of delivery of the board's decision to the sanitarian. The review is limited to the record established by the board's hearing."
Board may employ staff
SECTION 943. Section 40-63-10 of the 1976 Code is amended to read:
"Section 40-63-10. There is created the State Board of Social Work Examiners to be composed of seven members appointed by the Governor, with the advice and consent of the Senate, including one lay member, two licensed baccalaureate social workers, three licensed master social workers, and one licensed independent social worker. All members must be residents of the state and the social workers must have been in the active practice of social work for at least five years prior to appointment. The terms of the members are for four years and until their successors are appointed and qualify. Members of the board are eligible for reappointment but may not serve more than two consecutive terms. The board may employ such staff, pursuant to Section 40-73-15, as the Director of the Department of Labor, Licensing, and Regulations deems necessary to carry out the duties and functions of the board. The board is responsible for examining applicants for social work licenses, investigating complaints, and investigating and prosecuting violations of this chapter. The board may promulgate regulations to carry out the provisions of this chapter. The Governor may remove a member who is guilty of continued neglect of his duties or who is incompetent or unprofessional. No member may be removed without an opportunity to refute the charges filed against him. He must be given a copy of the charges at the time they are filed. Vacancies on the board must be filled by appointment by the Governor for the unexpired portion of the term."
Judge may issue subpoena
SECTION 944. Section 40-63-30 of the 1976 Code is amended to read:
"Section 40-63-30. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board considers relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issue to, any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application of the board, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry. Whenever the board has reason to believe that any person is violating or intends to violate any provision of this chapter it may order, in addition to all other remedies, the person immediately to desist and refrain from such conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from such conduct. An administrative law judge may issue a temporary injunction ex parte and upon notice and full hearing may issue any other order in the matter it considers proper. No bond is required of the board by an administrative law judge as a condition to the issuance of any injunction or order contemplated by the provisions of this section."
Review by judge
SECTION 945. Section 40-63-120 of the 1976 Code is amended to read:
"Section 40-63-120. If the board is satisfied that the social worker is guilty of any offense charged in the formal accusation provided for in this chapter, it shall revoke, suspend, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board also may impose such restraint upon the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of the action must then be mailed by the secretary of the board to the accused at his last known address as provided to the board. Any final order of the board finding that a social worker is guilty of any offense charged in a formal accusation must become public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. All final orders which are made public must be mailed to local and state professional associations, and all firms or facilities with which the respondent is associated, states where the social worker has a license known to the board, and to any other source that the board wishes to furnish this information. A decision by the board to revoke, suspend, or otherwise restrict the license must be by majority vote and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Chapter amended; name changes
SECTION 946. Chapter 65 of Title 40 of the 1976 Code is amended to read:
"CHAPTER 25
Soil Classifiers
Section 40-65-10. Unless the context or subject matter otherwise requires: (a) `Soil classifier' shall mean a professional soil classifier as defined in subsection (b) of this section. (b) `Professional soil classifier' shall mean a person who by reason of his special knowledge of the physical, chemical and biological sciences applicable to soils as natural bodies and of the methods and principles of soil classification as acquired by soils education and soil classification experience in the formation, morphology, description and mapping of soils is qualified to practice soil classifying and who has been duly registered by the State Board of Registration for professional soil classifiers. (c) `Soil-classifier-in-training' shall mean a person who complies with the requirements for education and character and who has passed an examination in the fundamental soil and related subjects as provided for in Sections 40-65-100, 40-65-110, 40-65-120 and 40-65-130. (d) `Soil' is all of the groups of natural bodies occupying the unconsolidated portion of the earth's surface capable of supporting plant life and having properties due to the combined effect of climate and living organisms, as modified by topography and time, upon parent materials. (e) `Kind of soil' is a group of natural bodies that has a discrete combination landscape, morphological, chemical and physical properties. (f) `Soil classification' is plotting the boundaries, describing and evaluating the kinds of soil as to their behavior and response to management under the various uses. (g) `Practice of soil classifying and practice of professional soil classifying' shall mean any service or work the adequate performance of which requires education in the physical, chemical, biological and soil sciences, training and experience in the application of the special knowledge of these sciences to soil classification, the soil classification by accepted principles and methods, investigation, evaluation and consultation on the effect of measured, observed and inferred soil properties upon the various uses, the preparation of soil descriptions, maps and reports and interpretive drawings, maps and reports of soil properties and the effect of soil properties upon the various uses, and the effect of the various uses upon kinds of soil, any of which embraces such service or work either public or private incidental to the practice of soil classifying. A person shall be construed to practice or offer to practice soil classifying within the meaning and intent of this chapter who by verbal claim, sign, advertisement, letterhead, card or use of some other title represent himself to be a soil classifier, but shall not mean or include the practice of soil classifying by persons exempt under the provisions of Section 40-65-240 nor the work ordinarily performed by persons who sample and test soil for fertility status or construction materials and engineering surveys and soundings to determine soil properties influencing the design and construction of engineering and architectural projects. Notwithstanding the foregoing provisions, a person shall not be construed to practice soil classifying unless he offers soil classifying services to or performs such soil classifying for the public. (h) `Department' shall mean the Department of Natural Resources. (i) `Responsible charge' shall mean direct control and personal supervision of soil classification.
Section 40-65-20. The department shall serve as the agency of registration for professional soil classifiers and added to its duties shall be the administration of the provisions of this chapter. The department shall appoint an advisory council of five qualified professional soil classifiers who shall have the qualifications required in Section 40-65-30 to recommend certification of those eligible to become registered soil classifiers. One of these five persons shall be the chief soil scientist of the department. The other four members of the advisory council shall be appointed for five years and until their successors have been appointed and qualify, provided that the initial terms shall be made so that the term of one member shall expire on June thirtieth of each year.
Section 40-65-30. Each member of the advisory council shall be a professional soil classifier who has been actively engaged in the practice of professional soil classifying for a period of at least ten years and who shall have been in responsible charge of soil classification for at least six years.
Section 40-65-40. Each member of the advisory council may receive twenty-five dollars for each day actually engaged in the services of the department and shall be reimbursed for all actual travelling, incidental and clerical expenses necessarily incurred in carrying out the provisions of this chapter. These expenses shall be paid from general appropriations of the department.
Section 40-65-50. Vacancies in the membership of the advisory council shall be filled for the unexpired term by appointment by the department as provided in Section 40-65-20.
Section 40-65-60. The advisory council shall hold at least two regular meetings each year. Special meetings may be held as the bylaws of the council provide. The council shall elect annually a chairman and a vice-chairman. The chief soil scientist, SCLRCC, shall serve as secretary-treasurer of the council. A quorum of the council shall consist of three members.
Section 40-65-70. The department shall have the following powers: (a) To adopt and amend all bylaws, rules of procedure and regulations to administer and carry out the provisions of this chapter and for the conduct of its affairs and functions consistent with the Constitution and laws of this State or this chapter which may be reasonably necessary for the performance of its duties and the regulation of its proceedings, meetings, records, examinations and the conduct thereof, and to adopt and promulgate a code of ethics which shall be binding upon all persons registered under or subject to this chapter. (b) To affix its official seal to each numbered certificate issued. (c) To hold hearings, administer oaths, take and record testimony and under the hand of its chairman and the seal of the department subpoena witnesses and compel their attendance and to require the submission of books, papers, documents or other pertinent data in any disciplinary matters or in any case wherever a violation of this chapter or of the rules or regulations promulgated by the department is alleged, and to make findings, orders and determinations which shall have the force and effect of law which shall be subject to review by the courts of this State in the manner provided by law from decisions of other boards and commissions. Upon failure or refusal of any person to comply with any such order of the department, or to honor its subpoena, the department may apply to an administrative law judge of any jurisdiction to enforce compliance with same. (d) To apply in the name of the state for relief by injunction without bond, to enforce the provisions of this chapter or to restrain any violation thereof. In such proceedings it shall not be necessary to allege or prove either that an adequate remedy at law does not exist or that substantial or irreparable damage would result from the continued violation thereof. The members of the department shall not be personally liable under this proceeding.
Section 40-65-80. All funds derived under the provisions of this chapter shall be remitted to the State Treasurer as collected. Such funds may be expended as directed by the department upon warrant requisitions directed to the Comptroller General who shall, after being satisfied of the propriety of payment, issue his warrant on the State Treasurer.
Section 40-65-90. The department shall keep a record of its proceedings and of all applications for registration which record shall show the name, age and last known address of each applicant, the place of business of such applicant, his education, experience and other qualifications, type of examination required, whether or not a certificate of registration was granted, whether or not the applicant was rejected, the date of the action of the department, and such other information as may be deemed necessary by the department which record of the department shall be prima facie evidence of the proceeding of the department and a transcript thereof duly certified by the secretary under seal shall be admissible as evidence with the same force and effect as if the original were produced.
Section 40-65-100. To be eligible for registration as a professional soil classifier or certification as a soil-classifier-in-training, an applicant must be of good character and reputation and shall submit a written application to the department containing such information as the department may require, together with five references, three of which shall be professional soil classifiers having personal knowledge of his soil classifying experience; or in the case of an application for certification as a soil-classifier-in-training, by three character references.
Section 40-65-110. An applicant otherwise qualified shall be admitted to registration as a professional soil classifier without examination within one year after July 1, 1974 if he is: (a) A person of good character who has been a resident of this State for at least one year immediately preceding the date of his application and was a practicing soil classifier on July 1, 1974, and meets the requirements of this chapter and has performed work of a character satisfactory to the department; or, (b) A person holding a certificate of registration in the practice of soil classifying on the basis of comparable qualifications issued to him by a proper authority of another state, possession or territory of the United States and who in the opinion of the department meets the requirements of this chapter.
Section 40-65-120. An applicant otherwise qualified must be admitted to registration as a professional soil classifier if he has fifteen or more semester hours of approved soil courses as recognized by the department, has successfully passed an examination in the principles and practice of soil classifying as prescribed by the department, has completed two or more years of training under the supervision of a registered soil classifier or someone who meets the minimum academic and experience requirements of a registered soil classifier, and has one of the following additional qualifications: (a) is a person who has earned a bachelor's degree or equivalent in a curriculum approved by the department and with a specific record of two years or more of experience of a grade and character which indicates to the department that the applicant is competent to practice soil classifying; or (b) is a person who has earned a bachelor's degree or equivalent in one of the natural sciences and has six years or more of experience in soil classifying work of a character and grade which indicates to the department that the applicant is competent to practice soil classifying; or (c) is a person who holds a valid soil-classifier-in-training certificate with a specific record of two years or more experience as a soil-classifier-in-training of a grade and character which indicates to the department that the applicant is competent to practice soil classifying; or (d) is a person who is an extension specialist, researcher, or teacher of soils in a college or university and has two or more years of soil classifying experience of a character and grade which indicates to the department that the applicant is competent to practice soil classifying.
Section 40-65-130. Unless otherwise qualified, a person must be admitted to certification as a soil-classifier-in-training, which certification is valid for two years, if he is a person who is: (a) a person who has earned a bachelor's degree or equivalent in a curriculum approved by the department and has passed an examination in the fundamentals of soil classification; or (b) an applicant who has completed a curriculum not approved by the department and who has a specific record of four years of soil classification experience of which two years must be under the supervision of a registered soil classifier or someone who meets the minimum academic and experience requirements of a registered soil classifier and who passes an examination in the fundamentals of soil classification.
Section 40-65-140. Application for registration as a professional soil classifier and for certification as a soil-classifier-in-training shall be on a form prescribed and furnished by the department, shall contain statements made under oath showing the applicant's education, a detailed summary of his experience, and references as required by this chapter and shall be accompanied by an application fee established by the department of not less than five nor more than twenty-five dollars.
Section 40-65-150. Registration shall be established by the department subject to the following limitations: (a) The registration fee for professional soil classifiers shall be in an amount not less than twenty nor more than one hundred dollars; (b) The registration fee for soil-classifier-in-training certification or enrollment shall be established by the department in an amount not less than ten nor more than fifty dollars; (c) Should the department deny the issuance of a certificate to an applicant, the fee paid shall be retained as an application fee.
Section 40-65-160. Examinations shall be held at such times and places as the department shall determine. Examinations required on fundamental soil subjects may be taken at any time prescribed by the department. The final examinations may not be taken until the applicant has completed a period of soil classifying experience as provided in this chapter. The passing grade on any examination shall not be less than seventy percent. A candidate failing one examination may apply for reexamination, which may be granted upon payment of a fee established by the department of not less than ten nor more than twenty-five dollars. Any candidate for registration having an average grade of less than fifty percent may not apply for reexamination for a period of one year from the date of such examination.
Section 40-65-170. The department shall issue a certificate of registration upon payment of the registration fee as provided for in this chapter to an applicant who in the opinion of the department has met the requirements of this chapter. Enrollment cards must be issued to those who qualify as soil-classifiers-in-training. Certificates of registration must carry the designation 'professional soil classifier', show the full name of the registrant without any titles, be numbered, and be signed by the executive director of the department. The issuance of a certificate of registration by the department is prima facie evidence that the person named is entitled to all rights and privileges of a professional soil classifier during the term for which the certificate is valid if it has not been revoked or suspended.
Section 40-65-180. Certificates of registration shall expire on the last day of the month of December following their issuance and shall become invalid after that date unless renewed. It shall be the duty of the secretary of the department to notify every person registered under this chapter of the date of the expiration of the certificate of registration and the amount of the fee required for its renewal. Such notice shall be mailed to the registrant at his last-known address at least one month in advance of the expiration of such certificate. Renewal may be effected at any time prior to or during the month of December by the payment of a fee established by the department not to exceed the fees established for registration. Renewal of an expired certificate may be effected under rules promulgated by the department regarding requirements for reexamination and penalty fees.
Section 40-65-190. A new certificate of registration to replace any certificate lost, destroyed or mutilated may be issued subject to the rules of the department. A reasonable charge shall be made for such issuance.
Section 40-65-200. The department shall cause to have prepared and shall adopt a code of ethics a copy of which shall be delivered to every registrant and applicant for registration under this chapter. Such delivery shall constitute due notice to all registrants. The department may revise and amend this code of ethics from time to time and shall forthwith notify each registrant in writing of such revisions and amendments. Such code of ethics when adopted shall apply to all certificate holders.
Section 40-65-210. The department shall have the power to suspend, refuse to renew or revoke the certificate of registration of, or reprimand any registrant who is guilty of: the practice of fraud or deceit in obtaining a certificate of registration, any gross negligence, incompetence or misconduct in the practice of soil classifying, any felony or crime involving moral turpitude or violation of the code of ethics adopted and promulgated by the department.
Section 40-65-220. Any person may prefer charges of fraud, deceit, gross negligence, incompetence, misconduct or violation of the code of ethics against any individual registrant. Such charges shall be in writing and shall be sworn to by the person or persons making them and shall be filed with the secretary of the department. All charges unless dismissed by the department as unfounded or trivial shall be heard by the department within three months after the date on which they shall have been preferred. The time and place for such hearing shall be fixed by the department and a copy of the charges, together with a notice of the time and place of hearing, shall be served upon the accused either personally or sent by registered or certified mail to the last-known address of such individual registrant at least thirty days before the date fixed for hearing. At any hearing the accused registrant shall have the right to appear in person or by counsel, or both, to cross-examine witnesses appearing against the accused, and to produce evidence and witnesses in defense of the accused. If the accused person fails or refuses to appear, the department may proceed to hear and determine the validity of the charges. If after such hearing a majority of the department votes in favor of sustaining the charges, the department shall make findings of fact, draw its conclusions and issue its order therein and serve the same upon the accused. In such order the department may reprimand, suspend, refuse to renew, or revoke the accused individual's certificate of registration. Any person who feels aggrieved by any action of the department in denying, suspending, refusing to renew, or revoking his certificate of registration may appeal therefrom an administrative law judge to within thirty days after receipt of the order of the department. The hearing by the court shall be de novo.
Section 40-65-230. No resident or nonresident shall practice or offer to practice professional soil classifying as defined by this chapter unless such person is duly registered to practice under the provisions of this chapter.
Section 40-65-240. This chapter shall not be construed to prevent or affect: (a) The work of an employee or subordinate of a person holding a certificate of registration under this chapter or an employee of a person practicing lawfully under subsection (a) of this section, provided such work does not include final soil classifying decisions and is done under the direct supervision of and verified by a person holding a certificate of registration under this chapter or a person practicing lawfully under subsection (a) of this section. (b) The practice of any other legally recognized profession or trade. (c) The practice of soil classifying by a person who is regularly employed to perform soil classifying services solely for his employer or for a subsidiary or affiliated corporation of his employer, providing the soil classifying is performed on the real property of his employer.
Section 40-65-260. Any person who shall practice or offer to practice professional soil classifying in this State without being registered in accordance with the provisions of this chapter, or any person, firm, partnership, organization, association, corporation or other entity using or employing the words `soil classifier' or `professional soil classifier' or any modification or derivative thereof in its name or form of business or activity except as authorized in this chapter, or any person presenting or attempting to use the certificate of registration of another, or any person who shall give any false or forged evidence of any kind to the department or to any member thereof in obtaining or attempting to obtain a certificate of registration or any person who shall falsely impersonate any other registrant of like or different name, or any person who shall attempt to use an expired or revoked or nonexistent certificate of registration, or who shall practice or offer to practice when not qualified, or any person who falsely claims that he is registered under this chapter, or any person, partnership, corporation or other entity who shall violate any of the provisions of this chapter shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined not more than one thousand dollars or be imprisoned for not more than three months. Each violation shall constitute a separate offense. It shall be the duty of all duly constituted officers of the state and all political subdivisions thereof to enforce the provisions of this chapter and to prosecute any persons violating same."
Director to employ personnel
SECTION 947. Section 40-67-100 of the 1976 Code is amended to read:
"Section 40-67-100. The Director of the Department of Labor, Licensing, and Regulation, pursuant to section 40-73-15, may employ within the limits of available funds a secretary and such attorneys, inspectors, clerks, and other employees as shall be deemed necessary, and shall outline their duties and fix their compensation."
Appeals
SECTION 948. Section 40-67-170 of the 1976 Code is amended to read:
"Section 40-67-170. Notice in writing of a contemplated revocation or suspension of a license, of the cause therefor in sufficient particularity, and of the date of hearing thereon shall be sent by registered or certified mail to the licensee at his last known address at least thirty days before the date of such hearing. The licensee against whom a charge is filed shall have a right to appear before the board in person or by counsel, may produce witnesses and evidence in his behalf, and may examine witnesses. No license shall be revoked or suspended without such hearing, but the nonappearance of the licensee, after notice, shall not prevent such hearing. The licensee shall be notified in writing of the board's decision. Any person who feels aggrieved by any action of the board in denying, suspending, refusing to renew, or revoking his certificate of registration or license may appeal therefrom to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 within thirty days after receipt of the order of the board. After issuing an order of revocation or suspension the board may also file a petition in equity with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 to ensure appropriate injunctive relief to expedite and secure the enforcement of its order pending the final determination. After one year from the date of revocation, an application for reinstatement may be made to the voard, which may, upon affirmative vote of at least the majority of its members, grant such reinstatement."
Powers of board
SECTION 949. Section 40-69-70 of the 1976 Code is amended to read:
"Section 40-69-70. The powers and duties of the board must include, but not be limited to, the following: (1) To adopt and promulgate regulations, pursuant to the State Administrative Procedures Act, governing the practice of veterinary medicine as are necessary to enable it to carry out and make effective the purpose and intent of this article. These regulations may include minimum standards for all facilities where veterinary medicine is practiced and minimum standards for continuing education for relicensure; (2) To adopt rules of professional conduct prior to July 1, 1993, appropriate to establish and maintain a high standard of integrity, skills, and practice in the profession of veterinary medicine. In prescribing such rules of professional conduct, the board may be guided by the principles of veterinary medical ethics adopted by the American Veterinary Medical Association and the South Carolina Association of Veterinarians; (3) To print its regulations and distribute them to all persons licensed to practice veterinary medicine in this State; (4) To bring proceedings in courts for the enforcement of this article or any regulations made pursuant thereto; (5) To establish qualifications for persons wishing to be licensed to practice veterinary medicine; (6) To pass upon the qualifications of applicants for a license to practice veterinary medicine in this State; (7) To approve schools and colleges of veterinary medicine which maintain sufficient standards of training and reputability; (8) To prescribe the subjects, character, manner, time, and place of holding examinations and the filing of applications for examinations and to conduct the examinations; (9) To issue temporary permits or licenses to duly qualified applicants; (10) To provide for, regulate, and require all persons licensed in accordance with the provisions of this article to renew their license annually; (11) To conduct investigations and hearings upon complaints calling for discipline of a licensee or applicant for license; (12) To take testimony on any matter under its jurisdiction and to administer oaths; (13) To issue summons and subpoenas, including subpoenas duces tecum, for any witness, in connection with any matter within the jurisdiction of the board, which must be signed by either the chairman or the secretary-treasurer of the board; (14) (RESERVED); (15) To inspect licenses; (16) To conduct investigations of all alleged violations; (17) To prosecute according to law or instigate the prosecution of all violators of this chapter; (18) To adopt regulations for the sale and dispensing of prescriptions and controlled veterinary drugs, pharmaceuticals, and biologics in accordance with federal and state laws."
Appeal to judge
SECTION 950. Section 40-69-150 of the 1976 Code is amended by adding at the end:
"Any person who feels aggrieved by any action of the board in denying, suspending, refusing to renew, or revoking his certificate of registration or license may appeal therefrom to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 within thirty days after receipt of the order of the board."
Board may apply to judge
SECTION 951. Section 40-69-210 of the 1976 Code is amended to read:
"Section 40-69-210. Whenever the board has reason to believe that any person is violating or intends to violate any provision of this article, it may, in addition to all other remedies, order the person to immediately desist and refrain from that conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from that conduct. An administrative law judge may issue a temporary injunction ex parte and upon notice and full hearing may issue any other order in the matter as it deems proper. No bond must be required of the board by an administrative law judge as a condition to the issuance of any injunction or order contemplated by the provisions of this section. No member of the board or its committees, special examiners, agents, and employees may be held liable for acts performed in the course of official duties, except where actual malice is shown. For the purpose of any investigation or proceeding under the provisions of this article, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board deems relevant to the inquiry."
Powers and duties of board
SECTION 952. Section 40-69-420 of the 1976 Code is amended to read:
"Section 40-69-420. (A) The powers and duties of the board shall include but not be limited to: (1) promulgate regulations governing the Animal Health Technician as are necessary to enable it to carry out and make effective the purpose and intent of this article. (2) adopt rules of professional conduct appropriate to establish and maintain a high standard of integrity and skills relating to the Animal Health Technician. (3) print its regulations and distribute them to all certified Animal Health Technicians. (4) establish qualifications for persons wishing to be certified as an Animal Health Technician. (5) pass upon the qualifications of applicants for a certificate to work as an Animal Health Technician in this State. (6) prescribe the subject, character, manner, time and place of holding examinations and the filing of applications for examinations and to conduct the examinations. (7) issue temporary certificates to duly qualified applicants. (8) provide for, regulate and require all persons certified in accordance with the provisions of this article; to renew their certificate annually; to issue annual renewal certificates to such persons and to suspend or revoke the certificates to such persons who fail, refuse or neglect to renew such certificate. (9) inspect certificate. (B) The powers and duties of the board as provided in items (4), (11), (12), (13), (16), and (17) of Section 40-69-70 shall also apply to Animal Health Technicians."
Professions and occupations to be administered
SECTION 953. The 1976 Code is amended by adding:
"Section 40-73-15. (a) The following professions and occupations shall hereafter be administered by the Department of Labor, Licensing, and Regulation: Accountants Architects Athletic Commission Auctioneers Barbers and Barbering Barrier Free Design Board Building Code Council Burglar Alarm Business Chiropractors and Chiropractic Contractors Cosmetologists Dentists, Dental Hygienists and Dental Technicians Embalmers and Funeral Directors/Funeral Service Board Engineers and Land Surveyors Environmental Systems Operators Fire Sprinkler Contractors Foresters Registration Board Geologists Harbor Pilots/ Pilotage Commission Liquefied Petroleum Gas Board Manufactured Housing Board Modular Appeals Board Nurses Nursing Home Administrators Occupational Therapists Optometrists Opticians Pharmacists Physical Therapists Physicians, Surgeons and Osteopaths Podiatrists and Podiatry Professional Counselors, Marital and Family Therapists Psychologists Pyrotechnic Safety Board Real Estate Brokers and Appraisers Residential Home Builders Sanitarians Social Workers Speech Pathologists and Audiologists Veterinarians (b) The Department of Labor, Licensing, and Regulation shall be headed by a director who must be appointed by the governor with the advice and consent of the Senate, subject to removal from office by the governor pursuant to Section 1-3-240(B). (c) The Director of the Department of Labor, Licensing, and Regulation shall employ such personnel as is necessary, for each of the professional and occupational licensing boards provided for in subsection (a). The director must select any personnel charged with evaluating or administering professional qualification or licensing standards from a list of three candidates submitted by the appropriate licensing board. Provided, any candidate whose name is submitted to the Director of the Department of Labor, Licensing, and Regulation by the appropriate board must be chosen from a list of all candidates found to be qualified by the Human Resource Management Division of the Budget and Control Board utilizing qualification criteria developed by the appropriate board. The authority to remove an executive director or secretary of a professional and occupational licensing board appointed under this subsection is vested solely with the Director of the Department of Labor, Licensing, and Regulation. (d) The Director of the Department of Labor, Licensing, and Regulation shall appoint an investigator or other person charged with reviewing or assisting in the determination of professional qualifications, if necessary, for each of the professional and occupational licensing boards provided for in subsection (a). The director must choose such person from a list of three candidates submitted by the appropriate licensing board. The authority to remove such person appointed under this subsection is vested solely with the Director of the Department of Labor, Licensing, and Regulation."
Board may apply to judge
SECTION 954. Section 40-75-40 of the 1976 Code is amended to read:
"Section 40-75-40. No member of the board and no special examiner, agent, or employee of the board may be held liable for acts performed in the course of official duties except where actual malice is shown. For the purpose of any investigation, inquiry, or proceeding under this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any document or record which the board considers relevant to the investigation, inquiry, or proceeding. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application of the board, may issue an order requiring the person to appear before the board or the person designated by it and to produce documentary evidence and to give other evidence concerning the matter under investigation or inquiry. Whenever the board has reason to believe that any person is violating or intends to violate any provision of the chapter it may order, in addition to all other remedies allowed by law, the person to desist immediately and refrain from the conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from the conduct. An administrative law judge may issue ex parte a temporary injunction not to exceed ten days in duration and, upon notice and full hearing, may issue any other order in the matter it considers proper. No bond may be required of the board by an administrative law judge as a condition to the issuance of any injunction or order contemplated by the provisions of this section."
Review by judge
SECTION 955. Section 40-75-180 of the 1976 Code is amended to read:
"Section 40-75-180. If the board is satisfied that the licensee is guilty of any offense charged in the formal accusation provided for in this chapter, it shall revoke or suspend the license or reprimand or restrict the licensee or otherwise discipline him by taking reasonable action short of revocation or suspension such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board also may impose other restraints upon the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of the action must be mailed by the board to the licensee at his last known address as provided to the board. Any final order of the board finding that a licensee is guilty of any offense charged in a formal accusation becomes public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. All final orders which are made public must be mailed to local and state professional associations, all firms or facilities with which the licensee is associated, states where the licensee has a license known to the board, and to any other source to which the board wishes to furnish this information. Any decision by the board to revoke or suspend a license or to reprimand or restrict a licensee or otherwise to discipline him must be by majority vote and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon a petition filed by the licensee with the court and a copy served upon the secretary of the board, or, if there is no secretary, upon the president, within thirty days from the date of delivery of the board's decision to the licensee. The review must be in accordance with the provisions of Act 176 of 1977 (Administrative Procedures Act)."
Director may employ personnel
SECTION 956. Section 40-77-100 of the 1976 Code is amended to read:
"Section 40-77-100. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, may employ clerical and other assistants necessary for the proper performance of the board's work."
Board may petition judge
SECTION 957. Section 40-77-110 of the 1976 Code is amended to read:
"Section 40-77-110. In carrying out the provisions of this chapter, the board may subpoena witnesses and compel their attendance and also may require the production of books, papers, reports, documents, and similar material in a case involving practicing or offering to practice without registration. Any member of the board may administer oaths or affirmations to witnesses appearing before the board. If any personrefuses to obey any subpoena or refuses to testify or produce any books, papers, reports, documents, or similar material, the board may petition an Administrative Law Judge as provided under Article 5 of Chapter 23 of Title 1 to issue its subpoena requiring his attendance to testify or to produce books, papers, reports, documents, or similar material considered necessary and pertinent by the board. Any person failing or refusing to obey a subpoena or order of an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may be subject to legal proceedings."
Persons may appeal to judge
SECTION 958. Section 40-77-320 of the 1976 Code is amended to read:
"Section 40-77-320. Any person who feels aggrieved by any action of the board denying or revoking his registration may appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 under the provisions of Act 176 of 1977 (the Administrative Procedures Act)."
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