ORDERS:
ORDER
STATEMENT
OF THE CASE
Appellant,
Willie Singleton, d/b/a Nations Builders, appeals the Order of the South
Carolina Residential Builders Commission (Commission) in which his license as a
residential builder was revoked. The revocation occurred after the Commission
discovered that construction work performed pursuant to a building permit issued
in Appellant’s name suffered from substantial and irreparable building code
violations. Appellant contends on appeal that another man, Stanley Owens
(Owens), obtained the building permit without Appellant’s authority. The
Administrative Law Court (ALC) has jurisdiction to hear this matter pursuant to
S.C. Code Ann. § 1-23-600 (Supp. 2008).
BACKGROUND
In early 2005, Omar and
Mada Landry contracted with Owens to construct an addition to their residence,
which is located at 329 St. James Street, Columbia, South Carolina. According
to the contract, the Landrys were to pay Owens an aggregate amount of $63,500
for the work, a substantial portion of which was payable prior to the
completion of the project. A building permit for the project was obtained in
Appellant’s name. After performing a significant portion of the work and
collecting $37,500 from the Landrys, Owens stopped working on the project. Ms.
Landry called Owens on several occasions, but he did not return her phone
calls. In May of 2005, Ms. Landry contacted the City of Columbia about the matter.
Jerry Thompson, a building official for the City of Columbia, met with Ms.
Landry. After inspecting the construction, Thompson filed a complaint dated
June 7, 2005 with the South Carolina Department of Labor, Licensing, and
Regulation (LLR). In his complaint, Thompson alleged that the construction
suffered from numerous building code violations, and he concluded that much of
the work would have to be torn down and reconstructed in order to comply with
the building code. At approximately the same time that he filed his complaint,
Thompson also mailed a letter to Appellant informing him of the matter.
After the initial
complaint was received by the Commission, an investigation was conducted, and a
formal complaint was eventually filed by LLR’s legal division. An evidentiary
hearing was scheduled for August 1, 2007 before Commission Hearing Officer John
Curl. The formal complaint and Notice of Hearing were mailed to Appellant on
May 7, 2007. On July 31, 2007, a day before the scheduled hearing, the State
received a handwritten letter from Appellant stating, among other things, that
he could not attend the hearing due to his brother’s funeral. Appellant,
however, did not request that the hearing be continued.
On August 1, 2007,
the evidentiary hearing was held as scheduled. At the hearing, Ms. Landry testified
that, after Owens stopped working on the construction project, Appellant met
with her once at her residence, but that he never returned. She also testified
that she had trouble finding another contractor to finish the project because
of liability concerns regarding the existing construction defects, but that
after a “pretty long time” she was finally able to find a new contractor. She
further testified that the new contractor had to tear down and reconstruct portions
of the work performed by Owens and that she paid the new contractor almost
$70,000 to complete the project. Appellant did not attend the hearing.
In a Report and Recommendation
dated October 3, 2007, the Hearing Officer found that Appellant violated S.C.
Code Ann. §§ 40-1-110(c), (f) and (g) (2001) by knowingly allowing another person
to obtain a building permit under the auspices and authority of his license for
a construction project that he did not oversee and by failing to cure the project’s
resulting construction defects. The Hearing Officer recommended license
revocation, a $5,000.00 fine, and that the bond obtained for the construction
be called upon for the benefit of the Landrys.
On November 14, 2007, a
hearing before the full Commission was held regarding the matter. Appellant
attended the hearing and testified. At the conclusion of the hearing, the
Commission voted to uphold the Hearing Officer’s Report and Recommendation.
The Commission issued its written Order to that effect on November 19, 2007. The
Appellant now appeals, claiming that he did not give Owens the authority to
pull the permit for the construction project.
ISSUE
ON APPEAL
Did the Commission err by finding that Appellant knowingly
allowed another person to obtain the building permit for the defective
construction work under the auspices and authority of Appellant’s license?
STANDARD
OF REVIEW
This
case is before the Administrative Law Court (ALC or Court) pursuant to S.C.
Code Ann. § 1-23-600(D) (Supp. 2008) and S.C. Code Ann. § 40-1-160 (2001) upon
an appeal from a final decision of a licensing board or commission. As such,
the Administrative Law Judge sits in an appellate capacity under the APA rather
than as an independent finder of fact. In South Carolina, the provisions of
the APA -- specifically S.C. Code Ann. §1-23-380(5) (Supp. 2008) -- govern the
circumstances in which an appellate body may reverse or modify an agency decision.
That section sets forth:
The court may not substitute its judgment for the judgment of
the agency as to the weight of the evidence on questions of fact. The court
may affirm the decision of the agency or remand the case for further
proceedings. The court may reverse or modify the decision [of the agency] if
substantial rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions, or decisions are:
(a) in violation of constitutional or 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, and substantial evidence on the whole record; or
(f) arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
S.C. Code Ann. § 1-23-380(5) (Supp. 2008).
A
decision is supported by “substantial evidence” when the record as a whole
allows reasonable minds to reach the same conclusion reached by the agency. Bilton
v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68
(Ct. App. 1984). A decision will not be set aside simply because reasonable
minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130,
136, 276 S.E.2d 304, 307 (1981). The fact that the record, when considered as
a whole, presents the possibility of drawing two inconsistent conclusions from
the evidence does not prevent the agency’s findings from being supported by
substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n,
321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council,
319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).
In
applying the substantial evidence rule, the factual findings of the
administrative agency are presumed to be correct. Rodney v. Michelin Tire
Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse v.
State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d
892, 893 (1995)). The party challenging an agency action has the burden of
proving convincingly that the agency’s decision is unsupported by substantial
evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917.
DISCUSSION
Appellant argues
that the building permit for the construction performed at the Landrys’
residence was obtained without Appellant’s authority and that he should
therefore not be held responsible for the construction’s defects.
Before addressing this
issue, it is necessary to discuss the conflicting evidence - and Appellant’s
change in position - regarding the identity of the person who pulled the permit
in this case. At the August 1, 2007 hearing before the Hearing Officer,
Thompson testified that Owens pulled the permit and signed for it under
Appellant’s name. However, at the November 14, 2007 hearing before the full Commission, Appellant testified that a man named Curtis Muhammad signed for the
permit with written permission he received from Appellant. Additionally, in his
July 31, 2007 letter, Appellant wrote that “I gave Curtis Muhammad permission
to pull permit from the City of Columbia in writing so I take responsibility
for his actions.”
Appellant, however,
now contends that he was wrong about who pulled the permit. Based on
Thompson’s testimony (which Appellant claims that he was not aware of when he
testified at the November 14, 2007 hearing), Appellant currently believes that Owens
pulled the permit. Appellant further claims that Owens did not have his
authority to pull the permit.
Assuming that
Owens was indeed the person who pulled the permit in this case, the evidence in
the Record as to whether Owens had the authority to take that action is
conflicting. Thompson testified at the August 1, 2007 hearing that the policy of the City of Columbia was not to allow persons other than the licensee to pull
permits unless they presented a signed letter from the licensee giving them
that authority. He further testified that he believed that he had something on
file that showed that Owens provided the City with proof that he had the
authority to pull the permit. However, nothing was ever introduced into
evidence.
Appellant, on the
other hand, testified at the November 14, 2007 hearing that: “I don’t know
Stanley Owens. I do – I wouldn’t know Stanley Owens if he was in this room
right now.” Moreover, in his July 31, 2007 letter, Appellant stated that “I
never pull a permit for Mr. Stanley Owens, I don’t know him.” This evidence
clearly suggests that Appellant did not give Owens the authority to pull the
permit in this case.
However, other
testimony provided by Appellant at the hearing casts doubt on Appellant’s forthrightness
and veracity. For instance, Appellant testified that, “before anything came up
about any violations, any code violations,” he met with Ms. Landry to inform
her that he was “going to complete the job.” He further testified that he had
no contact with Thompson and that the “only thing” that he received from LLR was
“concerning the hearing.” This testimony begs the question: if Appellant did
not know Owens and did not know of the investigation, how did he learn of the construction
project? Moreover,
why did Appellant promise to complete the project if it was commenced without
his knowledge or authority?
Interestingly, at
another point in the hearing, Appellant testified that he met with Ms. Landry
after he received “an official notice from LLR about the job,” because he
thought he might be able to “correct whatever violations that was there.” If
by “official notice,” Appellant meant the Notice of Hearing and formal
complaint (i.e., the items “concerning the hearing”), then this testimony appears
to conflict with his testimony that he met with Ms. Landry before anything “came
up” about the building code violations.
It is also inconsistent with testimony provided by Ms. Landry.
Furthermore, Appellant
admitted at the hearing that he committed a “great error” in this case. If
Owens did in fact obtain the permit without the permission or knowledge of
Appellant, it seems odd that Appellant would make such an admission. While Appellant
now appears to claim that his admission was based on his mistaken assumption
that Muhammad had pulled the permit, the Court is baffled as to why Appellant did
not investigate the matter more fully prior to the November 14, 2007 hearing. Notably
in this regard, Ms. Landry testified that during her meeting with Appellant
(where she informed him of what had transpired with the construction project), Appellant
told her that he was going to “go get Stan Owens.” Moreover, Appellant testified that Muhammad was with him when he met
with Ms. Landry. Thus,
at that point in time, Appellant both knew of Owens and had the opportunity to
discuss the matter with Muhammad. Nevertheless, Appellant apparently never asked
Muhammad if he had pulled the permit.
As discussed
above, the Court reviews this matter under the substantial evidence standard. Under
that standard, the final determination of witness credibility and the weight to
be accorded evidence is reserved to the fact finder. See Rogers v. Kunja Knitting Mills, Inc., 312 S.C. 377, 380, 440 S.E.2d 401, 403
(Ct. App. 1994); see also S.C. Code Ann. § 1-23-380(5) (Supp. 2008). Moreover, where there are conflicts in the evidence over a factual issue, the
findings of the fact finder are deemed conclusive. See Rogers, 312 S.C. at 380, 440 S.E.2d at 403 (citing Stokes v. First Nat. Bank,
306 S.C. 46, 50, 410 S.E.2d 248, 251 (1991)); see also Sierra Club v.
Kiawah Resort Associates, 318 S.C. 119, 456 S.E.2d 397 (1995).
In this case, the
Court concludes that the Commission’s decision was supported by substantial
evidence. First, the Commission did not make a specific finding as to who
pulled the permit. Thus, it is possible that the Commission concluded, based
on Appellant’s testimony, that Muhammad pulled the permit with Appellant’s
written permission. Such a conclusion is certainly supported by substantial
evidence. Second, even if the Commission determined that Owens pulled the
permit, based on Thompson’s testimony, the Commission may have concluded that
Appellant gave Owens the authority to pull the permit. That conclusion is also
supported by substantial evidence. Accordingly, because, in either scenario, the
Commission’s Order is supported by substantial evidence, it must be affirmed.
ORDER
IT IS THEREFORE
ORDERED that the Commission’s Final Order is AFFIRMED.
AND IT IS SO ORDERED.
______________________________
Ralph
King Anderson, III
Administrative
Law Judge
February 27, 2009
Columbia, South Carolina
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