THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

James W. Ratliff, III, DVM, Respondent,

v.

South Carolina Department of Labor, Licensing, & Regulation, South Carolina Board of Veterinary Medical Examiners, Appellant.

Appeal From Administrative Law Court
 Carolyn C. Matthews, Administrative Law Judge

Unpublished Opinion No. 2008-UP-250
Submitted April 1, 2008 – Filed May 7, 2008

REVERSED

Kenneth P. Woodington, of Columbia, for Appellants.

James W. Ratliff, III, DVM, of Columbia, for Respondent.

PER CURIAM:  James W. Ratliff, III, DVM, petitioned the Administrative Law Court (ALC), appealing the order of the South Carolina State Board of Veterinary Medical Examiners (the Board).  The ALC reversed the Board’s order.  The Board appeals.  We reverse.[1]

FACTS

Dr. Ratliff practiced veterinary medicine at the Pet Vac Express in the Greenville area.  Ratliff operated Pet Vac Express’ mobile veterinary clinic on Saturdays.  The Board held a hearing based on a report from a member of the public against three veterinarians, including Ratliff.  The Board filed a Complaint against the veterinarians, alleging, inter alia, the veterinarians failed to ensure that vaccines were properly maintained. 

After a hearing, the Board concluded Ratliff violated South Carolina Code Section 40-69-140(12) by not adequately ensuring the vaccines were properly acquired and/or maintained.[2]  The Board issued a public reprimand and ordered Ratliff to pay a civil penalty of $250.  Ratliff appealed to the ALC.  On appeal, the ALJ found no substantial evidence to support the Board’s order and reversed.  The Board appeals.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act (APA) governs contested proceedings before the Board.  S.C. Code Ann. §§ 40-1-160 (2001) & 40-69-160 (Supp. 2007).  The standard for judicial review, after an exhaustion of administrative remedies, is also governed by the APA. S.C. Code Ann. § 1-23-380 (Supp. 2007).  Pursuant to the APA, a reviewing court may reverse or modify an agency decision which is either affected by error of law or clearly erroneous in view of the reliable, probative, and substantial evidence in the record. S.C. Code Ann. § 1-23-380(A)(5)(Supp. 2007).  Review by an administrative law judge, heard in the appellate jurisdiction of the ALC, is governed by this standard.  S.C. Code Ann. § 1-23-380(B)(Supp. 2007).  This court, on appeal from the ALC in its appellate capacity, applies the same standard of review.  See Dorman v. Dep’t of Health & Envtl. Control, 350 S.C. 159, 164, 565 S.E.2d 119, 122 (Ct. App. 2002) (defining scope of review of second appellate review).

LAW/ANALYSIS

The Board argues the ALJ erred in reversing its findings against Ratliff.  We agree.

Section 40-69-140(12) of the South Carolina Code enables the Board to reprimand a veterinarian for “engaging in conduct determined by the board to be incompetent or negligent in the practice of veterinary medicine.”  S.C. Code Ann. § 40-69-140(12) (2006) (amended by 2006 Act No. 294, § 1, eff. May 31, 2006).[3]  Regulation 120-7.8(c) governs the practice of veterinary medicine relating to vaccines and requires that “[t]emperature control shall be maintained for all drugs and biologics.”  S.C. Code Reg. 120-7.8(c) (Rev. 1997).

We find substantial evidence to support the Board’s sanction against Ratliff.  Ratliff testified that he and Tabor “pretty much” knew when the vaccines would arrive based on the order date.  However, the evidence also indicates the vaccines were sent to a postal delivery site and remained there until Tabor took them to her home.  At best, the delivery site offered only an interior location out of the elements, and there is no evidence indicating such an environment would provide the necessary temperature control required by Regulation 120-7.8(c).  Based on the limited record[4] and our limited standard of review in APA cases, we find the ALJ erred in reversing the Board’s findings.  Accordingly, the order on appeal is

REVERSED.

ANDERSON, SHORT, and THOMAS, JJ., concur.

[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.

[2]  The Board dismissed the complaint against one of the veterinarians and made findings similar to those made against Ratliff as to the third veterinarian.

[3]  The Board relied on the prior version of the code, section 40-69-140(12) (amended by 2006 Act No. 294, § 1, eff. May 31, 2006).  See S.C. Code Ann. § 40-690-110 (12) (2007).

[4]  The Record on Appeal is limited to excerpts from the transcript of the proceeding before the Board, and Ratliff failed to file a respondent’s brief with this Court.