Attorney Robert Peele is a lawyer at Collins and Lacy where he focuses his practice on construction litigation, trucking defense, and professional liability claims. He represents individual’s businesses and their insurance carriers in all 46 counties of South Carolina. Today Rob discusses what to do if you get served a labor licensing and regulation complaint against your license.
The first thing you would do is do not ignore the complaint. You should call me or our firm at 803-256-2660. We have 4 or 5 lawyers who serve this particular practice group. We recommend that you do not ignore the complaint because if you do not answer it an adverse ruling could be entered against your license.
The SCLLR is governed under S.C. Code of Law § 40-1-10. The SCLLR is under the Governor’s office. It was enacted because the unregulated practice can endanger the health, safety, and welfare of the public. Specialized practice differentiates it from ordinary skill and labor. Specialized training requires specialized skill and training, and the general public is not protected by any other means.
There are approximately 41 practice areas that govern 350,000 licenses. Examples of the practice areas are accountancy, athletic commissioners, contractors, licensing boards, funeral homes, optometrists, pharmacists, cosmetology, so it kind of runs the gamut.
Approximately each year the SCLLR’s Office of Investigation Enforcement receives complaints against two percent of licenses they issue. Typically, an initial complaint has to be received in writing. The LLR assigns the complaint analyst to determine its veracity and that process takes about 7 days. If the complaint does not reasonably align to the Board’s Practices Act, the complaint is designated as “do not open” and a letter is sent to the complainant notifying him or her that the complaint has not been opened.
If the complaint does reasonably align to the Board’s Practices Act, the complaint is assigned to an investigator. Within 30 days, the Respondent (which is the licensee) receives a letter notifying them that a complaint has been filed. The letter will include a detailed notice of the facts leading to the complaint. At this point, we would recommend that you retain counsel to discuss with your lawyer about your personal knowledge of the facts and circumstances which you believe lead to the filing of the complaint. We would not recommend to communicate directly with the SCLLR after you receive this complaint, because anything you say with them can be used against you in the prosecution of the complaint.
We recommend you not give a written or oral statement to an investigator before you consult with a lawyer. Typically, when we have dealt with these LLR complaints in the past, our office will gather documents and act as a conduit between you and LLR. However, if you choose not to consult with a lawyer, we once again recommend you do not ignore the letter of inquiry because the investigation will proceed even if you ignore it.
Once an investigator has assigned the complaint, he has subpoena power and can issue subpoenas pursuant to S.C. Code § 40-1-80. The review by the investigator can take anywhere between 60-180 days. After the investigator completes his report, he or she refers the report to a chief investigator.
The report details the relevant statute regulation violations and supporting evidence and the final summary report is presented to an Investigative Review Committee (“IRC”) for consideration. The IRC then reviews the results of the investigation to determine whether sufficient evidence exists of a violation of the act to warrant formal proceedings. The IRC usually consists of a chief investigator, the board administrator, an LLR attorney from the Office of General Counsel, and a professional member appointed by the Board.
After review, the IRC makes a recommendation to the Board to either dismiss the complaint, issue a formal complaint, or issue a letter of caution. The Board has the final say of what happens.
The Board typically goes in one of three directions. The Board would either decide to dismiss the complaint. The Board Administrator will then send a letter to the Respondent and the case is closed. The Board often times issues a formal complaint and the Office of General Counsel prepares a complaint outlining the charges of the alleged statutory violations. The formal complaint is then served on the Respondent. In rare instances, the Board may issue a letter of caution and the Board Administrator issues a non-disciplinary letter of caution that explains the Board has determined no statutory violation exists and the matter is dismissed. However, the letter typically cautions the Respondent to be mindful of a particular statute or regulation.
If a formal complaint is warranted, the IRC often sets resolution parameters that contain proposed sanctions. In some cases, I would actually say in most cases the respondent is given the opportunity to sign a consent agreement where the facts, statutory violations and sanctions are agreed to by the state and the respondent. The consent agreement is then presented to the Board for disposition and the Board can accept or reject the agreement. In lieu of signing an agreement or another negotiated resolution, respondent can choose to have a full hearing before the Board and this hearing before the Board is a contested case under the Administrator’s Procedure Act.
The respondent can option for a contested case hearing and the hearing before the Board is similar to a court proceeding and is conducted pursuant to the Administrative Procedures Act. The parties are the State, which are represented by an attorney from the LLR’s Office of General Counsel, and then the respondent. The respondent has the right to appear alone or to be represented by his or her attorney. First, the state presents its case and has the burden of proof to prove the allegations in the complaint. The respondent then presents his or her case. After the case concludes, the Board deliberates in executive session. After coming out of executive session, the Board takes a vote on the disposition of the case or takes the matter under advisement.
Typically, the sanctions are derived from statutes and regulations and vary from board to board. Typically, you will see the sanctions generally range from a private or public reprimand up to license revocation.
The final order is the final written findings, and after the hearing is concluded the Board will issue this order. The Board may find a statutory violation has occurred and issue an order setting forth the specific findings and conclusions of law that support its ruling. Alternatively, the Board may issue an order dismissing the complaint. All these Board orders except those designated as private and those dismissing a case or complaint are public under the South Carolina FOIA law. A respondent has 30 days to appeal an adverse order of the Board to the Administrative Law Court. After review by the Administrative Law Court, the appellate process then goes on to the South Carolina Court of Appeals and ultimately to the South Carolina Supreme Court.
The typical standard of review in the South Carolina administrative law court consists of stating that the court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of administrative findings, inferences, conclusions, or decisions are: a) in violation of constitutional statutory provisions; b) in excess of the statutory authority of the agency; c) made upon unlawful procedure; d) affected by other error of law; e) clearly erroneous in view of the reliable, probative, or substantial evidence of the whole record; or, f) arbitrary, capricious, or characterized abuse of discretion are clearly unwarranted exercise of discretion.If you receive a complaint do not ignore it. It will not go away. LLR will prosecute it so basically do not ignore it. If you receive a complaint, call us. Sometimes in your profession, you may have errors or omission professional liability coverage. Sometimes your insurance company will pay the cost to defend you. If you receive a complaint, check with your insurance company to see if you have coverage and file a claim. Most importantly, we recommend you never sign a consent agreement with LLR. Most of the time the consent agreement will be used against you in civil litigation and is a hurdle that is difficult to overcome. Your rights are more protected if you request a contested case hearing. If you elect to have a contested case hearing, we can defend you during that process.