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Bill 4420

TO AMEND CHAPTER 1, TITLE 40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE ADMINISTRATION OF PROFESSIONAL AND OCCUPATIONAL LICENSING BOARDS BY THE DEPARTMENT OF LABOR, LICENSING AND REGULATION, SO AS TO, AMONG OTHER THINGS, DEFINE ADDITIONAL TERMS, TO UPDATE THE BOARDS ADMINISTERED BY THE DEPARTMENT, TO PROVIDE THAT BOARDS ADMINISTERED BY THE DEPARTMENT MUST INCLUDE TWO OR MORE PUBLIC MEMBERS AND PROVIDE THE RIGHTS AND RESPONSIBILITIES OF PUBLIC MEMBERS, TO REVISE PROCEDURES FOR HIRING PERSONNEL TO ADMINISTER BOARD LICENSING RESPONSIBILITIES, TO REVISE PROCEDURES FOR THE ANALYSIS AND ADJUSTMENT OF BOARD FEES, TO PROVIDE THAT THE DEPARTMENT ISSUES PRACTICE AUTHORIZATIONS BASED UPON CRITERIA AND ELIGIBILITY DETERMINED BY A BOARD AND TO FURTHER SPECIFY THE AUTHORITY OF BOARDS AND THE DEPARTMENT WITH REGARD TO THE ISSUANCE, DENIAL, AND REVOCATION OF PRACTICE AUTHORIZATIONS, TO PROVIDE THAT BOARD MEMBERS MUST BE APPOINTED BY THE GOVERNOR, SERVE AT THE PLEASURE OF THE GOVERNOR, AND MAY NOT SERVE AS AN OFFICER OR A DIRECTOR OF AN ASSOCIATION WHOSE MEMBERS ARE REGULATED BY THE BOARD ON WHICH THE MEMBERS SERVE, TO PROVIDE THE DUTIES OF THE CHAIRMAN OF A BOARD, TO FURTHER PROVIDE FOR THE POWERS AND DUTIES OF REGULATORY BOARDS, TO PROVIDE CRITERIA AND PROCEDURES FOR THE ISSUANCE OF EMERGENCY LIMITED LICENSE TO PRACTITIONERS FROM A STATE THAT HAS BEEN DECLARED AN EMERGENCY DISASTER, TO FURTHER PROVIDE FOR DISCIPLINARY PROCEEDINGS AND AVAILABLE REMEDIES, TO AUTHORIZE THE DEPARTMENT TO REQUIRE A CRIMINAL HISTORY BACKGROUND CHECK FOR OBTAINING A PRACTICE AUTHORIZATION OR IN AN INVESTIGATION OR A DISCIPLINARY PROCEEDING, TO FURTHER PROVIDE FOR THE COLLECTIONS AND DEPOSIT OF COSTS AND FINES COLLECTED, TO FURTHER PROVIDE FOR CONFIDENTIALITY OF CERTAIN MATTERS, AND TO PROVIDE CRIMINAL PENALTIES FOR PRACTICING A REGULATED PROFESSION OR OCCUPATION IN VIOLATION OF THIS CHAPTER.

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

SECTION    1.    Chapter 1, Title 40 of the 1976 Code is amended to read:

Section 40-1-10.    (A)    The right of a person to engage in a lawful profession, trade, or occupation of choice is clearly protected by both the Constitution of the United States and the Constitution of the State of South Carolina. The State cannot abridge this right except as a reasonable exercise of its police powers when it is clearly found that abridgement is necessary for the preservation of the health, safety, and welfare of the public.

(B) No statute or regulation may be imposed under this article upon a profession or occupation except for the exclusive purpose of protecting the public interest when the:

(1) unregulated practice of the profession or occupation can harm or endanger the health, safety, or welfare of the public and the potential for harm is recognizable and not remote or dependent upon tenuous argument;

(2) practice of the profession or occupation has inherent qualities peculiar to it that distinguish it from ordinary work or labor;

(3) practice of the profession or occupation requires specialized skill or training and the public needs and will benefit by assurances of initial and continuing professional and occupational ability; and

(4) public is not effectively protected by other means.

(C) If the General Assembly determines that a particular profession or occupation should be regulated or that a different degree of regulation should be imposed on the regulated profession or occupation, it shall consider the following degrees of regulation in the order provided and only shall regulate the profession or occupation to the degree necessary to fulfill the need for regulation:

(1) If existing common law and statutory causes of civil action or criminal prohibitions are not sufficient to eradicate existing harm or prevent potential harm, the General Assembly first may consider making statutory changes to provide stricter causes for civil action and criminal prosecution.

(2) If it is necessary to determine the impact of the operation of a profession or occupation on the public, the General Assembly may consider implementing a system of registration.

(3) If the public requires a substantial basis for relying on the professional services of the practitioner, the General Assembly may consider implementing a system of certification.

(4) If adequate regulation cannot be achieved by means less than licensing, the General Assembly may establish licensing procedures.

(D) In determining the proper degree of regulation, if any, the General Assembly shall determine:

(1) whether the practitioner, if unregulated, performs a service to individuals involving a hazard to the public health, safety, or welfare;

(2) what the opinion of a substantial portion of the people who do not practice the particular profession, trade, or occupation is on the need for regulation;

(3) the number of states which have regulatory provisions similar to those proposed;

(4) whether there is sufficient demand for the service for which there is no regulated substitute, and this service is required by a substantial portion of the population;

(5) whether the profession or occupation requires high standards of public responsibility, character, and performance of each individual engaged in the profession or occupation, as evidenced by established and published codes of ethics;

(6) whether the profession or occupation requires such skill that the public generally is not qualified to select a competent practitioner without some assurance that the practitioner has met minimum qualifications;

(7) whether the professional or occupational associations do not adequately protect the public from incompetent, unscrupulous, or irresponsible members of the profession or occupation;

(8) whether current laws which pertain to public health, safety, and welfare generally are ineffective or inadequate;

(9) whether the characteristics of the profession or occupation make it impractical or impossible to prohibit those practices of the profession or occupation which are detrimental to the public health, safety, and welfare;

(10) whether the practitioner performs a service for others which may have a detrimental effect on third parties relying on the expert knowledge of the practitioner.

Section 40-1-20.    As used in this title unless the context requires a different meaning:

(1) "Administrator" means the individual to whom the director has delegated authority to administer the programs of a specific board or of a professional or occupational group for which the department has regulatory authority or has delegated authority to administer the programs of a specific board;

(2) "Authorization to practice" or "Practice authorization" means the approval to practice the specified profession, engage in the specified occupation, or use a title protected under this article, which has been granted by the applicable board. This authorization is granted in the form of a license, permit, certification, or registration;

(3) "Board" or "Commission" means the group of individuals charged by law with the responsibility of licensing or otherwise regulating an occupation or profession within the State. Except as otherwise indicated, "board" is used in this article to refer to both boards and commissions;

(4) "Department" means the Department of Labor, Licensing and Regulation;

(5) "Director" means the Director of the Department of Labor, Licensing and Regulation or the director's official designee;

(6) "Licensee" means a person granted an authorization to practice pursuant to this article and refers to a person holding a license, permit, certification, or registration granted pursuant to this article;

(7) "Licensing act" means the individual statute or regulations, or both, of each regulated profession or occupation which include, but are not limited to, board governance, the qualifications and requirements for authorization to practice, prohibitions, and disciplinary procedures;

(8) "Person" means an individual, partnership, or corporation;

(9) "Profession" or "occupation" means a profession or occupation regulated or administered, or both, by the department pursuant to this article.

Section 40-1-30.    It is unlawful for a person to engage in a profession or occupation regulated by a board or commission administered by the Department of Labor, Licensing and Regulation without holding a valid authorization to practice as required by statute or regulation.

An authorization to practice issued pursuant to this title is valid for up to two years and is renewable on renewal dates as established by the Director of Labor, Licensing and Regulation with the consent of each applicable regulatory board.

Section 40-1-40.    (A)    The purpose of the Division of Professional and Occupational Licensing, South Carolina Department of Labor, Licensing and Regulation, is to protect the public through the regulation of professional and occupational licensees and the administration of boards charged with the regulation of professional and occupational practitioners.

(B) The following boards and the professions and occupations they license or otherwise regulate must be administered by the Department of Labor, Licensing and Regulation pursuant to this article:

Board of Accountancy

Board of Architectural Examiners

Athletic Commission

Auctioneers Commission

Board of Barber Examiners

Accessibility Committee of the Building Codes Council

Building Code Council

Board of Chiropractic Examiners

Contractors' Licensing Board

Board of Cosmetology

Board of Dentistry

Engineers and Land Surveyors Board

Environmental Certification Board

Board of Registration for Foresters

Board of Funeral Service

Board of Registration for Geologists

Manufactured Housing Board

Board of Medical Examiners

Modular Buildings Board of Appeals

Board of Nursing

Long Term Health Care Administrators Board

Board of Occupational Therapy

Board of Examiners in Opticianry

Board of Examiners in Optometry

Board of Pharmacy

Board of Physical Therapy Examiners

Pilotage Commission

Board of Podiatry Examiners

Board of Examiners for Licensure of Professional Counselors     and Marital and Family Therapists

Board of Examiners in Psychology

Board of Pyrotechnic Safety

Real Estate Appraisers Board

Real Estate Commission

Residential Builders Commission

Board of Social Work Examiners

Board of Examiners in Speech-Language Pathology and     Audiology

Board of Veterinary Medical Examiners

(C) Each regulatory board within the department is a separate board.

(D) The Department of Labor, Licensing and Regulation is a member of the Governor's executive cabinet and must 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). The director shall supervise the department under the direction and control of the Governor and shall exercise other powers and perform other duties as the Governor requires.

Section 40-1-45.    The department, in consultation with currently serving board members, the Office of the Governor, members of professional and industry associations, and the general public shall encourage public and consumer membership and participation on all boards and panels associated with the department. Public and consumer membership may not include current or former, active or inactive members of the profession or occupation being regulated. Public and consumer members have the same rights and responsibilities as professionally or occupationally-related board members and shall participate fully in all discussions, deliberations, decisions, and votes of the board or panel on which they serve unless otherwise prohibited by statute or regulation.

Section 40-1-50.    (A)    The department is responsible for all administrative, fiscal, investigative, inspectional, clerical, secretarial, and license renewal operations and activities of the boards and commissions enumerated in Section 40-1-40.

The director shall employ and supervise personnel necessary to effectuate the provisions of this article for each board provided for in Section 40-1-40. When hiring a person charged with evaluating or administering professional qualifications or licensing standards, the director must select from a list of three candidates submitted by the appropriate licensing board. However, a candidate whose name is submitted to the director must be chosen from a list of all candidates found to be qualified by the Human Management Office of the department. The authority to remove an employee of the department is vested with the Director of the Department of Labor, Licensing and Regulation.

The director shall establish compensation for personnel assigned to the boards as the director considers necessary and appropriate for the administration of this article. Compensation and necessary expenses incurred in the performance of duties by personnel assigned to the board must be paid as an expense of the board in the administration of this article.

The director shall enter into contracts and agreements the director considers necessary or incidental to carry out the provisions of this article to provide for all services required by each board.

Board members must be compensated for their services at the usual rate for mileage, subsistence, and per diem as provided by law for members of 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, within the limits set by the Comptroller General, shall establish reimbursement standards for travel and other expenses incurred by a board member in the performance of the board member's official duties. Compensation and reimbursements paid to board members under this subsection must be paid as an expense of the board in the administration of this article and the board's chapter and must be paid from the fees received by the board pursuant to the provisions of this article or in a manner prescribed by the Department of Labor, Licensing and Regulation.

The director shall maintain a separate account for funds collected on behalf of a board and shall indicate the expenses allotted to the board. The director shall adjust fees for revenue-funded boards in accordance with Section 40-1-50 (D).

The director annually shall prepare a report to the Governor and the General Assembly indicating those regulated trades, occupations, and professions that do not meet the spirit and intent of Section 40-1-10.

The director may perform any additional administrative functions requested by the boards.

(B) The department shall keep a record of the proceedings of each board and shall maintain a registry of all applications for licensure, permitting, certification, and registration. The registry shall include the name, age, and last known address of each applicant, the place of business of the applicant, the education, experience, and other qualifications of the applicant, type of examination required, whether or not an authorization to practice was granted, the date of the action of the department, and other information considered necessary by the board.

Except as otherwise required by law, the record of a board's proceedings and its registry of applicants must be open to public inspection, and a copy of the registry must be provided upon request and payment of a fee.

Records of a board and its registry are prima facie evidence of its proceedings, and a copy certified by the administrator or the director under seal is admissible as evidence with the same force and effect as the original.

(C) The department may prepare and publish a roster for each respective board containing the names and places of business of persons licensed under this article. A copy of the roster must be provided upon request and upon payment of a fee which may not exceed the cost of printing and distribution of the roster.

(D) Initial fees for revenue-funded boards must be established by each board and shall serve as the base for necessary administrative adjustments. Each board, on at least a biennial basis, shall provide the director with a statement of anticipated expenditures, program changes, and other information as may be used in determining fees for the next biennial period.

Fees for revenue-funded boards must be assessed, collected, and adjusted on behalf of each board by the department in accordance with this article. Fees may be adjusted biennially to ensure that they are sufficient but not excessive to cover expenses including the total of the direct and indirect costs to the State for the operations of each respective board. Fees must be deposited in accounts established for each respective board.

The following steps must be used in the development and analysis of fee structures:

(1) Determine current financial position of the program. Each month, the department's administrative section shall prepare statements reflecting monthly revenue collection activity and related program expenses for each board program. The financial standing of a board program must be reviewed each biennium for boards that renew biennially, annually for boards that renew on an annual basis, and more frequently if indicators evidence a significant financial fluctuation of more than ten percent variance between a program's revenue and related expenses;

(2) Project future activity and related costs of the program. By reviewing historical volume information and adjusting trends to reflect changes in the industry, changes in the program, indicators from the board members to the staff, and general economic indicators, project program activity including, but not limited to, renewals and new applicants for the upcoming two to three years. Based on these population projections, forecast program revenues using the current fee structure. With input from the board and the staff, analyze related program direct board costs for the upcoming two to three years, based on historical trends, changes in program requirements, changes to expenditure centers, and changes in staffing requirements. To these direct costs, add the program's proportionate share of other related costs of the program including, but not limited to, administration of exams, agency administration, and information systems to arrive at the total program cost;

(3) Determine the projected financial position of the program, propose changes where necessary, and compare the total projected revenue at the current fees to the total projected costs of the program over the next two to three years. If the current fees and the projected program activity do not support the projected program's expenses, develop alternative fee structures which would ensure the program's continuing financial stability as required by law;

(4) Present findings to the director and staff for discussion, revision, evaluation, and adoption. While developing fee analyses, maintain communications with staff and agency management to ensure all necessary factors are evaluated and cost savings, efficiencies, and alternative cost reduction scenarios are pursued. Present fee analyses to board staff and management for discussion and revision where necessary. Propose alternatives to the director for consideration when preparing to adopt proposed fee schedules to achieve a structure sufficient to support the program.

Fees for a board funded by general appropriations must be set by the General Assembly and deposited into the general fund. All fees are nonrefundable.

(E) Where appropriate, the director shall adopt the necessary procedures to implement the biennial renewal of authorizations to practice in a manner as to ensure that the number of renewals is reasonably evenly distributed throughout each two-year period. During any transition, fees must be proportionate to the biennial fee.

(F) A board may elect to delegate to the department the authority to issue an authorization to practice to an applicant whose proof of qualifications falls within established guidelines set by the board.

A board may elect to delegate to the department the authority to deny an authorization to practice to an applicant who has committed an act that would be grounds for disciplinary action under this article or the licensing act of the board, who has failed to comply with a final order of a board, or who has failed to demonstrate the basic qualifications or standards for practice authorization contained in the board's licensing act. The applicant may appeal the denial to the board which has final regulatory decision-making authority for reconsideration. The board may uphold the denial, order issuance of the authorization to practice, or order issuance of the authorization to practice upon conditions set by the board. If the administrative decision is upheld, the applicant may reapply at the end of a twelve-month period.

(G) The department shall suspend the practice authorization issued by a board administered by this article to a person who submits a check, money draft, or similar instrument for payment of a fee which is not honored by the financial institution named. The suspension becomes effective ten days following delivery by certified mail of written notice of the dishonor and the impending suspension to the person's address. Upon notification of suspension, the person may reinstate the authorization to practice upon payment of the fee and penalties required under statute or regulation. This suspension is exempt from the Administrative Procedures Act.

(H) The department shall revoke the authorization to practice of a person found to be in violation of the Family Independence Act as it relates to child support enforcement requirements.

(I) The department may prepare an annual report for submission to the Governor.

It is the duty of the director to notify and seek approval of the board or commission at least thirty days in advance of filing with Legislative Council as required by Section 1-23-30 of any proposed changes in any rules or regulations which may affect the practice or service of the respective licensing board or commission.

Section 40-1-60.    (A) A board annually shall elect from among its members a chairman, vice-chairman, and other officers as the board determines necessary. The board shall adopt rules and procedures reasonably necessary for the performance of its duties and the governance of its operations and proceedings.

(B) A board shall meet at least two times a year and at other times upon the call of the chairman or a majority of the board.

(C) A majority of the members of a board constitutes a quorum; however, if there is a vacancy on the board, a majority of the members serving constitutes a quorum.

(D) A board member is required to attend meetings or to provide proper notice and justification of inability to do so. Unexcused absences from meetings may result in removal from the board as provided for in Section 1-3-240.

Section 40-1-70.    The powers and duties of regulatory boards include, but are not limited to:

(1) determining the eligibility of applicants for examination and licensure;

(2) examining applicants for licensure including, but not limited to:

(a) prescribing the subjects, character, and manner of licensing examinations;

(b) preparing, administering, and grading the examination or assisting in the selection of a contractor for the preparation, administration, or grading of the examination;

(3) establishing criteria for issuing, renewing, and reactivating the authorizations to practice of qualified applicants, including the issuance of active or permanent, temporary, limited, and inactive licenses, or other categories as may be created;

(4) adopting a code of professional ethics appropriate to the profession or occupation which it licenses or regulates;

(5) evaluating and approving continuing education course hours and programs;

(6) conducting hearings on alleged violations of this article and regulations promulgated under this article;

(7) resolving consumer complaints, where appropriate and possible;

(8) disciplining persons licensed under this article in a manner provided for in this article;

(9) promulgating regulations which have been submitted to the director, at least thirty days in advance of filing with Legislative Council as required by Section 1-23-30.

Section 40-1-80.    (A) If the director has reason to believe that a person has violated a provision of this article or a regulation promulgated under this article or the licensing act or regulation of a board or that a licensee has become unfit to practice the profession or occupation or if a person files a written complaint with the board or the director charging a person with the violation of a provision of this article or a regulation promulgated under this article, the director may initiate an investigation.

(B) In conducting the investigation, the director may subpoena witnesses, compel their attendance, take evidence, and require the production of any matter which is relevant to the investigation including, but not limited to, the existence, description, nature, custody, condition, and location of books, documents, or other tangible items 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. Upon failure to obey a subpoena or to answer questions propounded by the director, the director may apply to an administrative law judge for an order requiring the person to comply.

Section 40-1-90.    (A) The results of an investigation must be presented to the board. If from these results it appears that a violation has occurred or that a licensee has become unfit to practice the profession or occupation, the board, in accordance with the Administrative Procedures Act, may take disciplinary action authorized by Section 40-1-120. No disciplinary action may be taken unless the matter is presented to and voted upon by the board. The board may designate a hearing officer or hearing panel to conduct hearings or take other action as may be necessary under this section.

(B) For the purpose of a proceeding under this article, the department may administer oaths and issue subpoenas for the attendance and testimony of witnesses and the production and examination of books, papers, and records on behalf of the board or, upon request, on behalf of a party to the case. Upon failure to obey a subpoena or to answer questions propounded by the board or its hearing officer or panel, the board may apply to an administrative law judge for an order requiring the person to comply with the subpoena.

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

No board member or the Director of the Department of Labor, Licensing and Regulation or another employee of the department may be held liable for damages resulting from a wrongful temporary restraining order.

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

Section 40-1-110.    In addition to other grounds contained in this article and the respective board's chapter:

A board may cancel, fine, suspend, revoke, or restrict the authorization to practice of an individual who:

(a) used a false, fraudulent, or forged statement or document or committed a fraudulent, deceitful, or dishonest act or omitted a material fact in obtaining licensure under this article;

(b) has had a license to practice a regulated profession or occupation in another state or jurisdiction canceled, revoked, or suspended or who has otherwise been disciplined;

(c) has intentionally or knowingly, directly or indirectly, violated or has aided or abetted in the violation or conspiracy to violate this article or a regulation promulgated under this article;

(d) has intentionally used a fraudulent statement in a document connected with the practice of the individual's profession or occupation;

(e) has obtained fees or assisted in obtaining fees under fraudulent circumstances;

(f) has committed a dishonorable, unethical, or unprofessional act that is likely to deceive, defraud, or harm the public;

(g) lacks the professional or ethical competence to practice the profession or occupation;

(h) has been convicted of or has pled guilty to or nolo contendere to a felony or a crime involving drugs or moral turpitude;

(i) has practiced the profession or occupation while under the influence of alcohol or drugs or uses alcohol or drugs to such a degree as to render him unfit to practice his profession or occupation;

(j) has sustained a physical or mental disability which renders further practice dangerous to the public;

(k) violates a provision of this article or of a regulation promulgated under this article;

(l) violates the code of professional ethics adopted by the applicable licensing board for the regulated profession or occupation or adopted by the department with the advice of the advisory panel for the professions and occupations it directly regulates.

Each incident is considered a separate violation.

Section 40-1-115.     A board has jurisdiction over the actions committed or omitted by current and former licensees during the entire period of licensure. The board has jurisdiction to act on any matter which arises during the practice authorization period.

Section 40-1-120.    (A) Upon a determination by a board that one or more of the grounds for discipline exists, in addition to the actions the board is authorized to take pursuant to its respective licensing act, the board may:

(1) issue a public reprimand;

(2) impose a fine not to exceed five hundred dollars unless otherwise specified by statute or regulation of the board;

(3) place a licensee on probation or restrict or suspend the individual's license for a definite or indefinite time and prescribe conditions to be met during probation, restriction, or suspension including, but not limited to, satisfactory completion of additional education, of a supervisory period, or of continuing education programs;

(4) permanently revoke the license.

(B) A decision by a board to discipline a licensee as authorized under this section must be by a majority vote of the total membership of the board serving at the time the vote is taken.

(C) A final order of a board disciplining a licensee under this section is public information.

(D) Upon a determination by a board that discipline is not appropriate, the board may issue a nondisciplinary letter of caution.

(E) A board may establish a procedure to allow a licensee who has been issued a public reprimand to petition the board for expungement of the reprimand from the licensee's record.

Section 40-1-130.    A board may deny an authorization to practice to an applicant who has committed an act that would be grounds for disciplinary action under this article or the licensing act of the respective board. A board must deny authorization to practice to an applicant who has failed to demonstrate the qualifications or standards for licensure contained in the respective board's licensing act. The applicant shall demonstrate to the satisfaction of the board that the applicant meets all the requirements for the issuance of a license.

Section 40-1-140.    A person may not be refused an authorization to practice, pursue, or engage in a regulated profession or occupation solely because of a prior criminal conviction unless the criminal conviction directly relates to the profession or occupation for which the authorization to practice is sought. However, a board may refuse an authorization to practice if, based upon all information available, including the applicant's record of prior convictions, it finds that the applicant is unfit or unsuited to engage in the profession or occupation.

Section 40-1-150.    A licensee who is under investigation for a violation provided for in Section 40-1-110 or the licensing act of the applicable board for which disciplinary action may be taken may voluntarily surrender authorization to practice to the board. The voluntary surrender invalidates the authorization to practice at the time of its relinquishment, and no person whose authorization to practice is surrendered voluntarily may practice the profession or occupation unless the board, by a majority vote, reinstates the license. A person practicing a regulated profession or occupation during the period of voluntary surrender is considered an illegal practitioner and is subject to the penalties provided by this article. The surrender of an authorization to practice may not be considered an admission of guilt in a proceeding under this article and does not preclude the board from taking disciplinary action against the licensee as provided for in this article or the board's licensing act including, but not limited to, imposing conditions that must be met before the board reinstates the license.

Section 40-1-160.    A person aggrieved by a final action of a board may appeal the decision to the Administrative Law Judge Division in accordance with the Administrative Procedures Act and the rules of the Administrative Law Judge Division. Service of a petition requesting a review does not stay the board's decision pending completion of the appellate process.

Section 40-1-170.    (A) In an order issued in resolution of a disciplinary proceeding before a board, a licensee found in violation of the applicable licensing act may be directed to pay a sum not to exceed the reasonable costs of the investigation and prosecution of the case in addition to other sanctions.

(B) A certified copy of the actual costs, or a good faith estimate of costs where actual costs are not available, signed by the director, or the director's designee, is prima facie evidence of reasonable costs.

(C) Failure to make timely payment in accordance with the order results in the collection of costs in accordance with Section 40-1-180.

(D) The board may conditionally renew or reinstate for a maximum of one year the license of an individual who demonstrates financial hardship and who enters into a formal agreement to reimburse the board within that one-year period for the unpaid costs.

(E) This section does not apply to a regulated profession or occupation if a specific provision in the applicable licensing act provides for recovery of costs in an administrative disciplinary proceeding.

Section 40-1-180.    (A) All costs and fines imposed pursuant to this article and the respective boards' licensing acts are due and payable immediately upon imposition or at the time indicated by final order of the board. Unless the costs and fines are paid within sixty days after the order becomes final, the order becomes a judgment and may be filed and executed upon in the same manner as a judgment in the court of common pleas, and the board may collect costs and attorneys' fees incurred in executing the judgment. Interest at the legal rate accrues on the amount due from the date imposed until the date paid.

(B) All fines and costs collected under this section must be remitted by the department to the State Treasurer and deposited in a special fund established for the department to defray the administrative costs associated with investigations and hearings under this article.

Section 40-1-190.    (A) A communication, whether oral or written, made by or on behalf of a person, to the director or board or a person designated by the director or board to investigate or hear matters relating to discipline of a licensee, whether by way of complaint or testimony, is privileged and no action or proceeding, civil or criminal, may be brought against the person, by or on whose behalf the communication is made, except upon proof that the communication was made with malice.

(B) Nothing in this article may be construed as prohibiting the respondent or the respondent's legal counsel from exercising the respondent's constitutional right of due process under the law or as prohibiting the respondent from normal access to the charges and evidence filed against the respondent as part of due process under the law.

(C) Notwithstanding the provisions of this section, a final order of a board disciplining a licensee is public information as provided for in Section 40-1-120.

Section 40-1-200.    A person who practices or offers to practice a regulated profession or occupation in this State in violation of this article or who knowingly submits false information for the purpose of obtaining a license is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than one year or fined not more than fifty thousand dollars.

Section 40-1-210.    The department, in addition to instituting a criminal proceeding, may institute a civil action through the Administrative Law Judge Division, in the name of the State, for injunctive relief against a person violating this article, a regulation promulgated under this article, or an order of the board. For each violation the administrative law judge may impose a fine of no more than ten thousand dollars.

Section 40-1-220.    If a provision of this article or the application of a provision of this article to a person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this statute which can be given effect without the invalid provision or application, and to this end the provisions of this statute are severable.

Section 40-1-5.    This chapter applies to all persons or entities authorized to practice under statutes administered by the Department of Labor, Licensing and Regulation. This chapter governs all administrative, fiscal, investigative, inspectional, clerical, secretarial, processing of initial practice authorization and renewal operations and other activities undertaken by the department for the boards and commissions listed in Section 40-1-40. In all other matters, if there is a conflict between this chapter and the statute authorizing a particular practice, the provisions of the particular practice act control.

Section 40-1-10.    (A)    The right of a person to engage in a lawful profession, trade, or occupation of choice is clearly protected by both the Constitution of the United States and the Constitution of the State of South Carolina. The State cannot abridge this right except as a reasonable exercise of its police powers when it is clearly found that abridgement is necessary for the preservation of the health, safety, and welfare of the public.

(B)    No statute or regulation may be imposed under this chapter upon a profession or occupation except for the exclusive purpose of protecting the public interest when the:

(1)    unregulated practice of the profession or occupation can harm or endanger the health, safety, or welfare of the public and the potential for harm is recognizable and not remote or dependent upon tenuous argument;

(2)    practice of the profession or occupation has inherent qualities peculiar to it that distinguish it from ordinary work or labor;

(3)    practice of the profession or occupation requires specialized skill or training and the public needs and will benefit by assurances of initial and continuing professional and occupational ability; and

(4)    public is not effectively protected by other means.

(C)    If the General Assembly determines that a particular profession or occupation should be regulated or that a different degree of regulation should be imposed on the regulated profession or occupation, the General Assembly shall consider the following degrees of regulation in the order provided and only shall regulate the profession or occupation to the degree necessary to fulfill the need for regulation:

(1)    If existing common law and statutory causes of civil action or criminal prohibitions are not sufficient to eradicate existing harm or prevent potential harm, the General Assembly first may consider making statutory changes to provide stricter causes for civil action and criminal prosecution.

(2)    If it is necessary to determine the impact of the operation of a profession or occupation on the public, the General Assembly may consider implementing a system of registration.

(3)    If the public requires a substantial basis for relying on the professional services of the practitioner, the General Assembly may consider implementing a system of certification.

(4)    If adequate regulation cannot be achieved by means less than licensing, the General Assembly may establish other practice authorization procedures.

(D)    In determining the proper degree of regulation, if any, the General Assembly shall determine:

(1)    whether the practitioner, if unregulated, performs a service to individuals involving a hazard to the public health, safety, or welfare;

(2)    what the opinion of a substantial portion of the people who do not practice the particular profession, trade, or occupation is on the need for regulation;

(3)    the number of states that have regulatory provisions similar to those proposed;

(4)    whether there is sufficient demand for the service for which there is no regulated substitute and whether this service is required by a substantial portion of the population;

(5)    whether the profession or occupation requires high standards of public responsibility, character, and performance of each individual engaged in the profession or occupation, as evidenced by established and published codes of ethics;

(6)    whether the profession or occupation requires such skill that the public generally is not qualified to select a competent practitioner without some assurance that the person has met minimum qualifications;

(7)    whether the professional or occupational associations do not adequately protect the public from incompetent, unscrupulous, or irresponsible members of the profession or occupation;

(8)    whether current laws pertaining to public health, safety, and welfare generally are ineffective or inadequate;

(9)    whether the characteristics of the profession or occupation make it impractical or impossible to prohibit those practices of the profession or occupation which are detrimental to the public health, safety, and welfare;

(10)    whether the practitioner performs a service for others which may have a detrimental effect on third parties relying on the expert knowledge of the practitioner.

Section 40-1-20.    As used in this title unless the context requires a different meaning:

(1)    'Administrator' means the individual to whom the director has delegated authority to administer a program regulating a profession or occupation.

(2)    'Board' or 'commission' means the group of individuals charged by law with the responsibility of regulating an occupation or profession within the State and includes the Massage and Bodywork Panel. Except as otherwise indicated, 'board' is used in this chapter to refer to both boards and commissions.

(3)    'Department' means the Department of Labor, Licensing and Regulation.

(4)    'Director' means the Director of the South Carolina Department of Labor, Licensing and Regulation or the director's official designee.

(5)    'Lapsed practice authorization' means the termination of a person's practice authorization due to the person's failure to renew the practice authorization before a specified expiration date.

(6)    'Letter of caution' means a written caution or warning about past or future conduct issued after it is determined that no misconduct has been committed or that it was only a minor infraction not warranting the imposition of a sanction.

(7)    'Person' means an individual, partnership, or corporation or other authorized entity.

(8)    'Person authorized to practice' means a person who has been granted a license, permit, certification, or registration pursuant to this chapter.

(9)    'Practice act' means the individual statute and regulations of each regulated profession or occupation which include, but are not limited to, board governance and the qualifications and requirements for a practice authorization.

(10)    'Practice authorization' or 'authorization to practice' means the approval to practice the specified profession, engage in the specified occupation, or use a title protected under this title. This authorization is granted in the form of a license, permit, certification, or registration.

(11)    'POL division' means the Division of Professional and Occupational Licensing of the South Carolina Department of Labor, Licensing and Regulation. POL is responsible for administering all professional and occupational regulatory programs that are enumerated in Section 40-1-40.

(12)    'Probation' means the conditional issuance of or retention of a practice authorization with terms and conditions.

(13)    'Profession' or 'occupation' means a profession or occupation regulated pursuant to this title.

(14)    'Program' means the governmental activities undertaken to achieve the purpose of public protection by regulation of the profession or occupation.

(15)    'Public reprimand' means a publicly available statement of a board that a violation was committed by a person authorized to practice.

(16)    'Revocation' means the cancellation or withdrawal of a practice authorization or other authorization issued by a board or the department. A person whose practice authorization has been permanently revoked by a board, never may be eligible for any kind of practice authorization from that board.

(17)    'Suspension' means the temporary withdrawal of a practice authorization for either a definite or indefinite period of time and or until specified conditions are met.

(18)    'Voluntary surrender' means the relinquishment of a practice authorization by the subject of an initial or formal complaint pending further order of a board. It anticipates other formal action by a board and allows a suspension subsequently imposed to include this time served.

Section 40-1-30.    (A)    It is unlawful for a person to engage in a profession or occupation regulated by a board or commission administered by the department without holding a valid practice authorization as required by statute or regulation.

(B)(1)    A practice authorization issued pursuant to this title, is renewable on dates as established by the department.

(2)    A practice authorization, subject to renewal, must be renewed by the date set by the department. If the application for the practice authorization renewal is not received by the date set by the department, the practice authorization lapses. The applicant bears the burden of submitting the practice authorization renewal application whether or not notice of renewal has been received.

(3)    A lapsed practice authorization must not be reinstated without payment of an appropriate fee to cover all costs for processing the reinstatement application.

(4)    A person who practices during the period that a practice authorization has lapsed must be penalized by a civil penalty not to exceed five hundred dollars unless another amount is specified in a practice act.

(5)    Except as otherwise provided, a practice authorization must not be renewed if it has been lapsed for five years or more.

Section 40-1-40.    (A)    There is established within the Department of Labor, Licensing and Regulation the Professional and Occupational Licensing Division, which shall administer programs charged with the regulation of professions and occupations. The following programs are administered by the POL Division, which also shall administer other programs regulating professions or occupations that may be established or transferred to the POL Division by the General Assembly:

Board of Accountancy

Board of Architectural Examiners

Athletic Commission

Auctioneers Commission

Board of Barber Examiners

Building Code Council

Board of Chiropractic Examiners

Perpetual Care and Cemetery Board

Contractors' Licensing Board

Board of Cosmetology

Board of Dentistry

Engineers and Land Surveyors Board

Environmental Certification Board

Board of Registration for Foresters

Board of Funeral Service

Board of Registration for Geologists

Liquefied Petroleum Gas Board

Long Term Health Care Administrators Board

Manufactured Housing Board

Massage and Bodywork Panel

Board of Medical Examiners

Board of Nursing

Board of Occupational Therapy

Board of Examiners in Opticianry

Board of Examiners in Optometry

Board of Pharmacy

Board of Physical Therapy Examiners

Pilotage Commission

Board of Podiatry Examiners

Board of Examiners for Licensure of Professional Counselors and Marital and Family Therapists and Psycho-educational Specialists

Board of Examiners in Psychology

Board of Pyrotechnic Safety

Real Estate Appraisers Board

Real Estate Commission

Residential Builders Commission

Board of Social Work Examiners

Board of Examiners in Speech-Language Pathology and Audiology

Board of Veterinary Medical Examiners

(B)    The department is a member of the Governor's executive cabinet and must 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). The director shall supervise the department under the direction and control of the Governor and shall exercise other powers and perform other duties as the Governor requires.

Section 40-1-45.    (A)    Effective July 1, 2006, all boards administered by the department, as enumerated in Section 40-1-40 (A), must include two or more public members.

(B)    A public member may not:

(1)    be a current or former, active or inactive, member of the profession or occupation being regulated;

(2)    be associated by legal contract with a member of the profession or occupation that a board regulates except as a consumer of the services provided by a person authorized to practice within the profession or occupation;

(3)    have a direct financial interest in the profession or occupation that a board regulates;

(4)    have an immediate family member in the profession or occupation. As used in this item, 'immediate family' is defined in Section 8-13-100.

(C)    Public members have the same rights and responsibilities as professionally or occupationally-related board members and shall participate fully in all discussions, deliberations, decisions, and votes of a board on which they serve, unless otherwise prohibited by statute or regulation.

Section 40-1-50.    (A)    The department is responsible for all administrative, fiscal, investigative, inspectional, clerical, secretarial, processing of initial practice authorization, and renewal operations and other activities of the boards and commissions enumerated in Section 40-1-40. The director shall employ and supervise personnel necessary to effectuate the provisions of this chapter. These personnel are subject to Title 8, Public Officers and Employers. The director or his designee shall enter into contracts or agreements the director considers necessary or incidental to provide for all services authorized by this chapter or by a practice act.

(B)    The department shall promulgate regulations, pursuant to The Administrative Procedures Act, adopting rules of procedure for hearings before the boards concerning applications for practice authorization and disciplinary matters.

(C)    Board members and other persons authorized and approved by a board and the department to engage in business for a board must be compensated for their services at the usual rate for mileage, subsistence, and per diem as provided by law for members of 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 on behalf of a board. The director, within the limits set by the Comptroller General, shall establish reimbursement standards for travel and other expenses incurred by a board member or other person in the performance of a board member or other person's official duties.

(D)    Fees for programs must be assessed, collected, and adjusted on behalf of each program by the department in accordance with this chapter. Fees may be adjusted to ensure that they are sufficient but not excessive to cover expenses, including the total of the direct and indirect costs of operations.

(E)    Initial fees for programs must be established to cover the anticipated costs of the program.

(F)(1)    The director shall adjust fees to accommodate anticipated expenditures and program changes. In the development and analysis of fee structures the department shall:

(a)    determine current financial position of a program. Annually, the department's administrative section shall prepare statements reflecting annual revenue collection activity and related program expenses;

(b)    project future activity and related costs of a program by reviewing historical volume information and adjusting trends to reflect changes in the industry, changes in the program, indicators from the board members to the staff, and general economic indicators, project program activity including, but not limited to, renewals and new applicants for the upcoming two to three years. Based on these population projections, forecast program revenues using the current fee structure. With input from the board and the staff, the department shall analyze related program direct costs for the upcoming two to three years, based on historical trends, changes in program requirements, changes to expenditure centers, and changes in staffing requirements. To these direct costs, the department shall add the program's proportionate share of other related costs of the program including, but not limited to, administration of exams, department administration, and information systems to arrive at the total program cost;

(c)    determine the projected financial position of a program, propose changes where necessary, and compare the total projected revenue at the current fees to the total projected costs of the program over the next two to three years. If the current fees and the projected program activity do not support the program's projected expenses, develop alternative fee structures to ensure the program's continuing financial stability as required by law;

(d)    present findings to the director and staff for discussion, revision, evaluation, and adoption. While developing fee analyses, the department shall maintain communications with staff and agency management to ensure all necessary factors are evaluated and cost savings, efficiencies, and alternative cost reduction scenarios are pursued. Present fee analyses to staff and management for discussion and revision where necessary. Propose alternatives to the director for consideration when preparing to adopt proposed fee schedules to achieve a structure sufficient to support the program.

(2)    The director shall notify the members of the General Assembly each January of any anticipated adjustments in initial and renewal practice authorization fees to be implemented during the calendar year.

(G)(1)    The department shall issue a practice authorization to an applicant whose proof of qualifications meets the statutory and regulatory requirements.

(2)    The director may perform additional administrative functions requested by a board.

(3)    The department shall keep a record of the proceedings of each board and shall maintain a registry of all authorizations to practice. The department may prepare and make available by each respective program a roster of persons authorized to practice.

(4)    Except as otherwise required by law, the record of a board's proceedings and its registry of authorized practitioners must be open to public inspection, and a copy of the registry must be provided upon request and payment of a fee.

(5)    Records of a board and its registry are prima facie evidence of its proceedings, and a copy certified by the director or his designee is admissible as evidence with the same force and effect as the original.

(6)    The department shall suspend the practice authorization issued by a board administered by this chapter to a person who submits a check, money draft, or similar instrument for payment of a fee that is not honored by the financial institution named. An applicant shall pay a penalty to the department as provided in Sections 34-11-60 and 34-11-70 each time a negotiable instrument is denied. The suspension becomes effective ten days after deposit in the mail of written notice by certified mail of the dishonor and the impending suspension of the person authorized to practice. Upon notification of suspension, the person may reinstate the practice authorization upon payment of the fee and penalties required under statute or regulation. This suspension is exempt from the Administrative Procedures Act. The department may use the procedures provided in Section 34-11-70 in pursuing dishonored payments and suspensions under this section.

(7)    The department shall suspend the practice authorization of a person found to be in violation of Sections 20-7-940 through 20-7-949, the Child Support Laws of South Carolina, as it relates to child support enforcement requirements or a child support enforcement agency in any other state.

Section 40-1-60.    (A)    Board members must be appointed by the Governor and serve at the pleasure of the Governor. A board member may not serve concurrently as an officer of the board and a statewide association whose members are regulated by the board on which the member serves.

(B)    A board may elect from among its members officers the board considers necessary. A board may adopt procedures reasonably necessary for the performance of its duties and the governance of its operations and proceedings. The chairman of a board must be the official representative and spokesperson of a board and shall approve and sign documents on the board's behalf. A board may delegate in writing any other duty, responsibility, or function to the chairman or to the director or his designee. When a board is not in session, the chairman or other designee of a board is authorized to act on behalf of a board to the extent necessary for the performance of its duties.

(C)    A board shall meet at least two times a year and at other times upon the call of the chairman or a majority of a board.

(D)    A majority of the members of a board constitutes a quorum; however, if there is a vacancy on a board, a majority of the members serving constitutes a quorum. If a majority of the members of a board are unable to meet and conduct a hearing, the hearing must be heard and ruled on by the chairman or his designee.

(E)    A board member is required to attend meetings or to provide proper notice and justification of inability to do so. Unexcused absences from meetings may result in removal from a board as provided for in Section 1-3-240.

(F)    Members of boards are subject to Title 8.

Section 40-1-70.    (A)    The powers and duties of regulatory boards include, but are not limited to the authority to:

(1)    determine the eligibility of applicants for examination and practice authorization;

(2)    assure that examination for applicants seeking a practice authorization provide reasonable measures that demonstrate minimum competence for practice;

(3)    establish, in regulation promulgated pursuant to the Administrative Procedures Act, criteria for issuing, renewing, and reactivating the practice authorizations of qualified applicants, including the issuance of active or permanent, temporary, limited, and inactive practice authorizations or other categories as may be created;

(4)    adopt a code of professional ethics appropriate to the profession or occupation that it authorizes or regulates;

(5)    evaluate and approve continuing competency requirements for authorized practitioners;

(6)    conduct hearings on alleged violations of this chapter, the practice act, or regulations promulgated pursuant to this chapter or the practice act;

(7)    discipline persons authorized to practice pursuant to this chapter or practice act or a regulation promulgated pursuant to this chapter or the practice act;

(8)    prepare proposed regulations, which must be reviewed by the director and filed with Legislative Council pursuant to the Administrative Procedures Act;

(9)    create committees and appoint persons to serve on these committees as the board considers necessary in order to perform the board's duties, responsibilities, or functions including, but not limited to, examining applicants for licensure, investigating and reporting issues and laws related to professional practice, and evaluating the results of investigations and making appropriate recommendations to the board regarding their disposition.

(B)    When evaluating examinations for a practice authorization, a board must give preference to available nationally recognized examinations that facilitate cross-border practice. If no nationally recognized examination is available, a board shall consider procedures for development of the examination, validity of examinations, and examination security.

(C)    A board may elect to delegate in writing to the director or his designee the authority to deny a practice authorization to an applicant who has committed an act that would be grounds for disciplinary action pursuant to this chapter or the practice act of the board, who has failed to comply with a final order of the board, or who has failed to demonstrate the basic qualifications or standards for practice authorization contained in the board's practice act. The applicant may appeal the denial to the board. A board may uphold the denial, order issuance of the practice authorization, or order issuance of the practice authorization upon conditions set by the board. The applicant bears the burden of demonstrating qualification and fitness to practice the regulated profession or occupation.

(D)    A board may elect to delegate in writing to the director or his designee or other persons the authority to grant a practice authorization to an applicant who meets all requirements of law in accordance with policies and procedures approved by the board.

(E)    A board may elect to delegate in writing to the director or his designee or other persons authority to perform such functions or tasks as it considers appropriate in order to efficiently and effectively carry out its duties, responsibilities, or functions.

Section 40-1-75.    (A)    For persons regulated by a board in a health and medically related profession, an emergency limited license may be issued to a practitioner actively licensed in another state who is in good standing and whose place of established practice has been the subject of an emergency disaster declaration by an appropriate federal or state authority. An emergency limited license is valid for one year and may be renewed upon approval of the board. This license must be limited to practice in this State while associated with a licensed practitioner in this State who holds an unrestricted, permanent or full license or while employed by a licensed health care facility in this State. The applicant must submit the following items:

(1)    a completed application and payment of applicable fees; and

(2)    such documentation as may be acceptable to the board under the circumstance to demonstrate eligibility for the limited license, including documentation of an existing license in good standing authorizing professional practice in the state that is subject to the emergency disaster declaration.

(B)    For persons and entities regulated by all other boards in the Professional and Occupational Licensing Division, an emergency limited license may be issued to a person or entity actively licensed in another state who is in good standing and whose place of established practice or business has been the subject of an emergency disaster declaration by an appropriate federal or state authority. An emergency limited license is valid for one year and may be renewed upon approval of the board. This license must be limited to practice or business in this State while associated with a licensed practitioner in this State who holds an unrestricted, permanent or full license. The applicant must submit the following items:

(1)    a completed application and payment of applicable fees, and

(2)    such documentation as may be acceptable to the board under the circumstance to demonstrate eligibility for the limited license, including documentation of an existing license in good standing authorizing practice or business in the state that is subject to the emergency disaster declaration.

Section 40-1-80.    (A)    Notwithstanding any other provision of law, if the director or his designee has reason to believe that a person has violated a provision of this chapter or the practice act or a regulation promulgated pursuant to this chapter or the practice act or that a person authorized to practice has become unfit to practice the profession or occupation or if a person files a written complaint with a board or the director charging a person with the violation of a provision of this chapter or practice act or a regulation promulgated pursuant to this chapter or practice act, the director or his designee may initiate an investigation.

(B)    In conducting the investigation, the director may subpoena witnesses, compel their attendance, take evidence, and require the production of any matter that is relevant to the investigation including, but not limited to, the existence, description, nature, custody, condition, and location of books, documents, or other tangible items 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. Upon failure to obey a subpoena or to answer questions propounded by the director, the director may apply to an administrative law judge for an order requiring the person to comply.

Section 40-1-90.    (A)    The results of an investigation must be reported to the appropriate board.

(B)    A board, in accordance with the Administrative Procedures Act, may take disciplinary action authorized by Section 40-1-120. A board or the director may designate a hearing officer or hearing panel to conduct contested case hearings or take other action as may be necessary pursuant to this section. In a disciplinary action where the parties consent or upon application of a party or upon its own motion, a board may direct that the matter be heard before a hearing officer or hearing panel. A board may refer an entire disciplinary matter to a hearing officer or panel and an appeal of an order from the hearing officer or a panel must be to the Administrative Law Court pursuant to Section 1-23-380(B).

(C)    For the purposes of a proceeding conducted pursuant to this chapter or a practice act or a regulation promulgated pursuant to this chapter or a practice act, the director or his designee may accomplish service of documents addressed to persons who hold or have held authorizations to practice in this State by postage-prepaid, first class mail directed to the address of record with a board or by personal delivery. The failure of a person authorized to practice to appear at a hearing, unless for good cause shown, must be considered a waiver of all rights except the right to be served with a copy of the order of the board by postage-prepaid, first class mail directed to the address of record filed with the board.

(D)    For the purpose of a proceeding conducted pursuant to this chapter or practice act or a regulation promulgated pursuant to this chapter or practice act, the director or his designee may administer oaths and issue subpoenas for the attendance and testimony of witnesses and the production and examination of books, papers, and records on behalf of a board or, upon request, on behalf of a party to the case. Upon failure to obey a subpoena or to answer questions propounded by a board or its hearing officer or panel, a board may apply to an administrative law judge for an order requiring the person to comply with the subpoena.

(E)    In disciplinary actions, the department bears the burden of proving by a preponderance of the evidence that a violation of this chapter, the practice act, or a regulation promulgated pursuant to this chapter or the practice act has occurred.

Section 40-1-100.    (A)    When the department has reason to believe that a person is practicing or intends to practice without authorization by a program administered pursuant to this chapter or a practice act, in addition to all other remedies, the department may order the person immediately to cease and desist from engaging in the practice. A board member or the director or another employee of the department must not be held liable for damages resulting from a wrongful temporary restraining order.

(B)    A board or the department may apply in accordance with the rules of the Administrative Law Court for:

(1)    an injunction to restrain a person who is practicing or intending to practice a profession or occupation without being authorized pursuant to this chapter or the practice act or regulation promulgated pursuant to this chapter or the practice act; or

(2)    a temporary restraining order for a person who is authorized to practice pursuant to this chapter or a practice act and is violating or intending to violate a board order, a provision of this chapter or a practice act or a regulation promulgated pursuant to this chapter or the practice act.

(C)    The notice, hearing, and duration requirements of Rule of Civil Procedure 65(b) applies to these proceedings. Rule of Civil Procedure 65(e) does not apply to these proceedings.

(D)    A board or the department may seek from an administrative law judge other equitable relief to enjoin the violation or intended violation of this chapter or the practice act or a regulation promulgated pursuant to this chapter or the practice act.

(E)    A member of a board, its committees, special examiners, representatives, or the director or the department or its employees or representatives must not be held liable for damages resulting from a wrongful temporary restraining order or cease and desist order issued pursuant to lawful authority.

(F)    A member of a board, its committees, special examiners, representatives, or the director or the department or its employees or representatives must not be held liable for acts performed in the course of official duties except where actual malice is shown.

(G)    An action filed with the Administrative Law Court by a board or the department seeking emergency relief pursuant to this section must be heard by the assigned administrative law judge within four days of its filing with the Administrative Law Court.

Section 40-1-110.    (A)    In addition to other grounds contained in this chapter and the respective practice act, a board may cancel, fine, suspend, revoke, or restrict the practice authorization of a person who:

(1)    used a false, fraudulent, or forged statement or document or committed a fraudulent, deceitful, or dishonest act or omitted a material fact in obtaining practice authorization pursuant to this chapter;

(2)    has had a practice authorization for a regulated profession or occupation in another state or jurisdiction canceled, revoked, or suspended or who has otherwise been disciplined;

(3)    has intentionally or knowingly, directly or indirectly, violated or has aided or abetted in the violation or conspiracy to violate this chapter or a regulation promulgated pursuant to this chapter or the practice act;

(4)    has intentionally used a fraudulent statement in a document connected with the practice of the person's profession or occupation;

(5)    has obtained fees or assisted in obtaining fees under fraudulent circumstances;

(6)    has committed a dishonorable, unethical, or unprofessional act that is likely to deceive, defraud, or harm the public;

(7)    lacks the professional or ethical competence to practice the profession or occupation;

(8)    has been convicted of or has pled guilty to or nolo contendere to or entered an Alford plea to a felony or a crime involving drugs or moral turpitude;

(9)    has practiced the profession or occupation while under the influence of alcohol or drugs or uses alcohol or drugs to such a degree as to render the person unfit to practice the respective profession or occupation;

(10)    has sustained a physical or mental disability that renders further practice dangerous to the public;

(11)    violates a provision of this chapter or practice act or a regulation or order of the department or board;

(12)    violates a code of professional ethics adopted in regulation.

(B)    Each incident is considered a separate violation.

Section 40-1-115.    A board has jurisdiction over the actions committed or omitted by current and former persons authorized to practice during the entire practice authorization period. A board has jurisdiction to act on any matter that arises during the practice authorization period.

Section 1-1-120.    (A)    Upon a determination by a board that one or more of the grounds for discipline exists, in addition to the actions a board is authorized to take pursuant to its respective practice act, a board may:

(1)    issue a public reprimand;

(2)    impose a fine not to exceed five hundred dollars per violation unless otherwise specified by statute or regulation of a board;

(3)    place a person authorized to practice on probation or restrict or suspend the person's practice authorization for a definite or indefinite time and prescribe conditions to be met during probation, restriction, or suspension including, but not limited to, satisfactory completion of additional education, of a supervisory period, or of continuing education programs;

(4)    revoke the practice authorization permanently.

(B)    A decision by a board to discipline a person authorized to practice, pursuant to this section must have a majority vote by the membership participating at the time the vote is taken.

(C)    A final order of a board disciplining a person authorized to practice pursuant to this section is public information. A preliminary restriction of a person's practice authorization and any subsequently related action is public information pursuant to the South Carolina Freedom of Information Act.

(D)    Upon a board determination that discipline is not appropriate, a board may dismiss or issue a nondisciplinary letter of caution.

(E)    A board may establish a procedure to allow a person who has been issued a public reprimand or a nondisciplinary letter of caution to petition the board for expungement. However, information in the investigative or inspectional files or disciplinary proceedings must not be required to be expunged pursuant to any other provision of law.

Section 40-1-130.    (A)    A board must deny authorization to an applicant who has failed to demonstrate the qualifications or standards for a practice authorization contained in the respective board's practice act. The applicant shall demonstrate to the satisfaction of a board that the applicant meets all the requirements for the issuance of a practice authorization.

(B)    A board may deny a practice authorization to an applicant who has committed an act that would be grounds for disciplinary action pursuant to this chapter or the practice act of the respective board.

Section 40-1-140.    A person may not be refused a practice authorization or to engage in a regulated profession or occupation solely because of a prior criminal conviction unless the criminal conviction directly relates to the profession or occupation for which the practice authorization is sought. However, a board may refuse a practice authorization if, based upon all information available, including the applicant's record of prior convictions, it finds that the applicant is unfit or unsuited to engage in the profession or occupation.

Section 40-1-145.    (A)    In addition to other requirements established by law and for the purpose of determining the applicant's eligibility for a practice authorization, the department may require a criminal history background check. The applicant may be required to furnish a full set of fingerprints and additional information required to enable a criminal history background check to be conducted by the State Law Enforcement Division and if no pertinent information is identified at the state level by the appropriate agency in another state and the Federal Bureau of Investigation. All costs of conducting a criminal history background check must be borne by the applicant. The department shall keep all information received pursuant to this section confidential, except that information relied upon in an administrative action may be disclosed as may be necessary to support the administrative action.

(B)    In an investigation or disciplinary proceeding concerning a person authorized to practice a profession or occupation in this State, the department may require a criminal history background check. The person authorized to practice may be required to furnish a full set of fingerprints and additional information required to enable a criminal history background check to be conducted by the State Law Enforcement Division or the appropriate state law enforcement agency of another state and the Federal Bureau of Investigation, if no pertinent information is identified at the state level. All costs of conducting a criminal history background check must be borne by the department and may be recovered as administrative costs associated with an investigation or hearing under this chapter, unless ordered by a board as a cost in a disciplinary proceeding. The department shall keep all information received pursuant to this section confidential, except that information relied upon in an administrative action may be disclosed as may be necessary to support the administrative action.

Section 40-1-150.    (A)    A person authorized to practice, who is under investigation for a violation provided for in Section 40-1-110 or the practice act of the applicable board for which disciplinary action may be taken, may voluntarily surrender practice authorization to a board. The voluntary surrender invalidates the practice authorization at the time of its surrender. A person whose practice authorization is surrendered voluntarily must not practice the profession or occupation unless the board reinstates the practice authorization. A person practicing a regulated profession or occupation during the period of voluntary surrender is considered to be practicing illegally and is subject to the penalties provided by this chapter and the practice act. The surrender of practice authorization must not be considered an admission of guilt in a proceeding pursuant to this chapter and does not preclude a board from taking disciplinary action against the person authorized to practice as provided for in this chapter or a board's practice act including, but not limited to, imposing conditions that must be met before a board reinstates the practice authorization.

(B)    A person authorized to practice may relinquish that authorization at any time in writing, by oral statement, or by action such as returning the document indicating authorization to the board or the department. If the relinquishment occurs after notification that the department has begun investigation of a complaint, the board may approve the relinquishment instead of further proceedings.

Section 40-1-160.    A person aggrieved by a final action of a board may appeal the decision to the Administrative Law Court in accordance with the Administrative Procedures Act and the rules of the Administrative Law Court. Service of a petition requesting a review does not stay a board's decision pending completion of the appellate process.

Section 40-1-170.    (A)    In an order issued in resolution of a disciplinary proceeding before a board, the person authorized to practice found in violation of the applicable practice act may be directed to pay a sum not to exceed the reasonable costs of any inspection, investigation, and prosecution of the case.

(B)    A certified copy of the actual costs, or a good faith estimate of costs where actual costs are not available, signed by the director, or the director's designee, is prima facie evidence of reasonable costs.

(C)    Failure to make timely payment in accordance with the order results in the collection of costs in accordance with Section 40-1-180.

Section 40-1-180.    (A) All costs and fines imposed pursuant to this chapter and the respective boards' practice acts are due and payable immediately upon imposition or at the time indicated by final order of a board. Unless the costs and fines are paid within sixty days after the order becomes final, the order becomes a judgment and may be filed and executed upon in the same manner as a judgment in the court of common pleas. At that time the department may collect costs and attorneys' fees incurred in executing the judgment. Interest at the legal rate accrues on the amount due from the date imposed until the date paid.

(B)    In the alternative, all costs and fines are subject to the collections and enforcement provisions of the Setoff Debt Collection Act.

(C)    All fines and costs collected pursuant to this section must be remitted by the department to the State Treasurer and deposited in a special fund established for the department to defray the administrative costs associated with investigations, inspections, and hearings.

Section 40-1-190.    (A)    An initial complaint, whether oral or written, made by or on behalf of a person, to the director or board or a person designated by the director to investigate or by a board to hear matters relating to misconduct or discipline of a licensee is privileged and confidential.

(B)    Communications to the director or board or staff relating to misconduct or incapacity and testimony given in proceedings pursuant to this title are privileged from liability and a civil lawsuit predicated on these communications must not be instituted against complainant or witness. Confidential and personal information gathered by the department during an investigation of any initial complaint and testimony in any action or proceeding before a board is privileged from disclosure.

(C)    Investigative files are privileged from disclosure and confidential and must not be made part of the public record of a disciplinary proceeding unless disclosed in the course of a hearing or otherwise determined by two-thirds vote of a board to be public information.

(D)    Nothing in this article may be construed as prohibiting the respondent or the respondent's legal counsel from exercising the respondent's constitutional right of due process under the law or as prohibiting the respondent from access to the nonprivileged evidence relevant to the formal charges, documents to be presented at the hearing, and statements of witnesses who will be called at the hearing. The department may promulgate regulations to provide for normal access by respondents in disciplinary proceedings and the disclosure of public information regarding disciplinary proceedings as appropriate for the nature of the regulated profession or occupation, notwithstanding previously enacted provisions in the respective practice act.

(E)    Notwithstanding the provisions of this section, an order restraining the practice authorization and a final order of a board disciplining a licensee are public information as provided in Section 40-1-120. A preliminary restriction of a person's practice authorization and any subsequently related action is public information pursuant to the South Carolina Freedom of Information Act.

(F)    Whenever the department receives information indicating a violation of state or federal law, the department may provide that information, to the extent that the department considers necessary, to the appropriate city, county, state, or federal law enforcement or regulatory entity.

(G)    The department or a board may disclose information to the appropriate disciplinary authority in any other jurisdiction in which the person is authorized to practice or has applied for authorization to practice a regulated profession or occupation.

Section 40-1-200.    A person who practices, offers to practice, or aids and abets the practice of a regulated profession or occupation in violation of this chapter or a practice act or who knowingly submits false information for the purpose of obtaining a practice authorization is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than one year or fined not more than fifty thousand dollars.

Section 40-1-210.    The department, in addition to instituting a criminal proceeding, may file a request for hearing with the Administrative Law Court, in the name of the State, for injunctive relief against a person violating this chapter or a practice act, a regulation promulgated pursuant to this chapter or a practice act, or an order issued pursuant to this chapter or a practice act. For each violation the administrative law judge may impose a fine of no more than ten thousand dollars.

Section 40-1-220.    If a provision of this chapter or the application of a provision of this chapter to a person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable."

SECTION    2.    The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

SECTION    3.    This act takes effect upon approval by the Governor.

This web page was last updated on Tuesday, March 5, 2013 at 4:19 P.M.