467 S.E.2d 258
Opinion No. 2417.Court of Appeals of South Carolina.Heard September 14, 1995.
Filed November 13, 1995.
Appeal From Richland County Don S. Rushing, Circuit Court Judge
REVERSED and REMANDED
Daryl G. Hawkins and Pete Kulmala, both of Lewis, Babcock
Hawkins; and Richard P. Wilson, of S.C. Dept. of Labor, Licensing Regulation, all of Columbia, for appellant.
Charles E. Carpenter, Deborah H. Sheffield and Samuel F. Crews, III, all of Richardson, Plowden, Grier Howser; and William H. Davidson, II, all of Columbia, for respondent.
PER CURIAM:
This is an appeal by the State Board of Medical Examiners (the Board) from the circuit court’s reversal of the Board’s decision to publicly reprimand a physician, Anonymous, for misconduct, and place his license on probationary status for an indefinite period. We reverse and remand.
The Board alleged Anonymous violated S.C. Code Ann. §40-47-5 (1986) by engaging in unethical and unprofessional physical contact during prostate examinations of several patients. After a hearing, the Board decided to publicly reprimand Anonymous. The circuit court found there was not substantial evidence for the Board’s findings, and reversed the Board. The Board appealed, arguing the circuit court impermissibly substituted its judgment for that of the Board with respect to the weight of the evidence on fact questions. Anonymous seeks to sustain the circuit court’s holding on that ground and others. We find it unnecessary to review the evidence in regard to that ground, or the others raised by Anonymous. However, we elect to address the standard of proof raised to, but not ruled on by the circuit court. We agree the Board applied an improper standard of proof, and reverse for the Board to apply the correct standard of proof.
Anonymous argues that the subject of the disciplinary proceeding contains elements that could constitute a crime and thus charges conduct in the nature of a criminal act. Anonymous therefore contends the Board, when considering conduct in the nature of a crime, should apply proof by a standard of clear and convincing evidence, and their failure to do so was error. We agree. The South Carolina Administrative Procedures Act (APA) governs the Board’s action. Boggs v. State Bd. ofMedical Examiners, 288 S.C. 144, 341 S.E.2d 635 (1986); S.C. Code Ann. §§ 1-23-310 (1), 40-47-20 (1986 Supp. 1994). Although the APA states the rules of evidence applied in civil cases apply in APA proceedings[1] , the APA is silent as to the standard of proof. See S.C. Code Ann. §§ 1-23-310 to -660 (1986 Supp. 1994). The Regulations governing the Board are also silent as to the standard of proof. See 26 S.C. Code Ann. Regs. 81-1 to 81-50 (1976). Where, as here, a violation of criminal law is implicated, we hold the burden of proof is by clear and convincing evidence. See Everett v. Baltimore Gas Elec.Co., 513 A.2d 882 (Md. 1986) (at administrative hearing to terminate service, utility was required to prove by clear and convincing evidence that customer defrauded it); MississippiState Bd. of Nursing v. Wilson, 624 So.2d 485 (Miss. 1993) (the standard of proof required for a decision of the Board of Nursing in cases involving conduct deemed quasi-criminal in nature is clear and convincing evidence); Garber v. Department of SocialWelfare, 431 A.2d 469 (Vt. 1981) (in considering a claim for recoupment of overpaid welfare benefits, appropriate standard for determining whether recipient “willfully” withheld information was clear and convincing). The rationale for this holding is that in civil actions, allegations of criminal acts should require proof by clear and convincing evidence. See Everett, supra; cf.Zaman v. South Carolina State Bd. of Medical Examiners, 305 S.C. 281, 408 S.E.2d 213 (1991) (when the state seeks to revoke a professional license, procedural due process rights must be met),cert. denied, 502 U.S. 869 (1991).
Accordingly, we remand this case to the Board for reconsideration in light of this opinion.
REVERSED and REMANDED.
HOWELL, C.J., GOOLSBY and HEARN, JJ., concur.