Indicates Matter Stricken

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Committee Report

January 26, 2023

H. 3605

Introduced by Reps. G. M. Smith, Sandifer, Carter, Kirby, Oremus, Magnuson, Pace, Long, Elliott, Burns, May and Beach

S. Printed 01/26/23--H.   [SEC 1/27/2023 12:33 PM]

Read the first time January 11, 2023

________

The committee on House Labor, Commerce and Industry

To who was referred a Bill (H. 3605) to amend the South Carolina Code of Laws by amending Section 40-1-80, relating to investigations of licensees, so as to require the director to send information, etc., respectfully

Report:

That they have duly and carefully considered the same, and recommend that the same do pass with Amendment:

   Amend the bill, as and if amended, SECTION 1, by striking Section 40-1-80(B)(1) and (2) and inserting:

      (1) a letter advising the licensee that a complaint has been filed and that an investigation has been initiated and a request that the licensee respond in writing in fourteen days;

      (2) a copy of the complaint;

      (3) the name of the complainant, unless the board believes good cause exists to withhold the name of the complainant; and

      (4) all materials filed with the complaint.

Amend the bill further, SECTION 1, by deleting Section 40-1-80(D).

Amend the bill further, by deleting SECTION 2.

Amend the bill further, SECTION 3, by striking Section 40-1-90(A) and inserting:

   (A) The director shall review any case that the Board recommends for a formal complaint to ensure the Department mailed the notice of the investigation to the licensee and provided the licensee with opportunity to respond. This shall occur before the formal complaint is issued. The director shall verify that:

      (1) the department mailed a copy of the complaint to the licensee;

      (2) the name of the complainant was provided to the licensee, unless good cause existed to withhold the name of the complainant;

      (3) the licensee was notified of the opportunity to provide a response to the complaint; and

      (4) the licensee's response was included and considered in the investigative file.

   If the director determines that any of these procedural steps were not followed in the investigative process, the issuance of the formal complaint shall be held until such time as the procedural defects may be rectified. Nothing in this section should be construed to require the director's review if a case is disposed of by any means other than issuance of a formal complaint.

Renumber sections to conform.

Amend title to conform.

WILLIAM E. SANDIFER for Committee.

________

A bill

to amend the South Carolina Code of Laws by amending Section 40-1-80, relating to Investigations of licensees, so as to require the director to send information regarding an investigation to the licensee; by adding Section 40-1-85 so as to establish informal conferences; by amending Section 40-1-90, relating to Disciplinary action proceedings, so as to allow a licensee to request certification of an investigation from the director; and by amending Section 40-1-140, relating to effect of prior criminal convictions of applicants, so as to prohibit the denial of a license based solely or in part on a prior criminal conviction in certain circumstances.

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

SECTION 1.   Section 40-1-80 of the S.C. Code is amended to read:

   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) Within thirty days after an investigation is initiated, the director must send the licensee:

      (1) a letter advising the licensee that a complaint has been filed and that an investigation has been initiated, details of the allegations of the complaint, and a request that the licensee respond in writing within fourteen days; and

      (2) the name of the complainant, a copy of the complaint, and all materials filed with the complaint.

   (C) 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.

   (D)   Investigations must be completed not less than fifteen days prior to any board meeting at which the agency seeks to make recommendations to the board based on the results of the investigation.

SECTION 2.   Article 1, Chapter 1, Title 40 of the S.C. Code is amended by adding:

   Section 40-1-85.   (A) When an investigation is complete and the agency intends to recommend a formal complaint to the board based on the results of an investigation, the agency must send notice to the licensee:

      (1) that the licensee has fourteen days to request an informal conference between the licensee, the investigators, and a hearing officer as provided in subsection (B) prior to the agency making any recommendation to the board;

      (2) that the informal conference is an opportunity for the licensee or counsel for the licensee to be heard as to why the allegations contained in the complaint do not warrant a formal complaint being filed against the licensee; and

      (3) that if the licensee does not request a hearing within fourteen days, the matter will proceed as otherwise provided in this chapter.

(B) Every board must designate a hearing officer to attend informal conferences when requested by a licensee. The hearing officer must attend the informal conference, review the results of the investigation of the licensee, hear from both the agency and licensee regarding the allegations in the complaint, and make recommendations to the board as to the findings at the informal conference when the agency presents its recommendations to the board regarding the results of the investigation. Where a hearing officer is also a board member and attends an informal conference, the hearing officer must recuse himself from any hearing concerning matters arising out of the same complaint that was the subject of the informal conference.

SECTION 3.   Section 40-1-90 of the S.C. Code is amended to read:

   Section 40-1-90.   (A) At any point after an investigation is complete and before a final order is issued by the board, the licensee may petition the director for certification that all procedural requirements were satisfied during the investigatory process. The director must submit a written letter within seven days of receipt of the licensee's petition certifying that the matter contained in the petition has been reviewed and resolved.

   (B) 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)(C) 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 4.   Section 40-1-140 of the S.C. Code is amended to read:

   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. (A)(1) A professional or occupational board may not solely or in part deny a license to an applicant because of a prior criminal conviction, unless the criminal conviction directly relates to the duties, responsibilities, or fitness of the occupation or profession for which the applicant is seeking a license.

      (2) Notwithstanding any other provision in a professional or occupational licensing practice act regulated by this chapter, professional and occupational boards are prohibited from using vague or generic terms including, but not limited to, "moral turpitude" or "good character", and from considering charges that have been dismissed, nol prossed, or adjudicated with a finding of not guilty as a justification for denying an applicant a license.

   (B) An applicant who has submitted a completed licensing application may not be denied a license because of the applicant's prior criminal conviction, unless the applicable professional or occupational licensing board has given the applicant an opportunity to appear at an application hearing to determine the applicant's fitness for the occupation or profession. The application hearing must be scheduled for the next available application hearing date for that board.

   (C) If a board denies an applicant's license solely or in part because of the applicant's prior criminal history, then the board must issue a written final order within thirty days following the date of the application hearing. The written order shall include:

      (1) the grounds for the denial; and

      (2) that the final order is appealable to the Administrative Law Court pursuant to Chapter 23, Title 1.

SECTION 5.   This act takes effect upon approval by the Governor.

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