ORDERS:
FINAL ORDER AND DECISION
This matter came before me on August 21, 2003 pursuant to Petition for an Order to
Produce filed by the Petitioner, South Carolina Department of Labor, Licensing and Regulation,
Contractor’s Licensing Board, (the “Department”) against the two Anonymous Subjects of
Subpoenas Duces Tecum dated February 4, 2003 and February 14, 2003. The parties were
present and represented as indicated above.
STATEMENT OF THE CASE
The Petition for an Order to Produce requested that the two anonymous subjects of the
Subpoenas Duces Tecum produce certain documents relating to the construction of a church
building in Columbia, South Carolina. The parties were requested to turn over all contracts,
laboratory tests, copies of the plans and specifications, construction draws made to date and
copies of invoices and checks paid which related to the building of the church. The Respondents
contended that the form of the subpoenas was incorrect in that one of the subpoenas was entitled
“In the Matter of [The Church.]” The other subpoena was addressed to the licensed contractor.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion by the parties, I make the
following Findings of Fact by a preponderance of the evidence:
1.Notice of the time, date, place and nature of this hearing was timely and properly
given to all parties. Jurisdiction is proper under S.C. Code Ann. § 40-1-80 et seq. and §1-23-320(D) (Supp 2002).
2.The Department issued a Subpoena Duces Tecum on February 4, 2003 to a
representative of the Church which had contracted for work to be performed. The subpoena was
entitled, “In the Matter of [Name of The Church.]”.
3.The Department also issued a Subpoena Duces Tecum on February 14, 2003 to a
contractor who was allegedly working on the Church. The subpoena was entitled, “In the Matter
of [Name of Construction Company-Name of The Church]”.
4.Upon receipt of the subpoenas the Respondents attempted to determine what
entity was being investigated by LLR by having their attorney contact LLR in writing several
times.
5.The Anonymous Respondent who is the representative of the Church is not a
licensed contractor in South Carolina, has not been licensed by the Contractor’s Licensing Board,
and is not engaged in work for which he would need a contractor’s license in South Carolina.
6.The Respondents have not filed a Freedom of Information Act (FOIA) Request
under S.C. Code Ann. § 30-4-30 (Supp. 2002) to determine the target of the LLR’s
investigation.
7.LLR contended at the hearing on the issue of the subpoenas that it had jurisdiction
over both Respondents under S.C. Code Ann. § 40-11-110 (2001) which allows disciplinary
action by the Board against, “a licensee, certificate holder, or other entity or individual if the
board finds any of these conditions: . . . (9) aiding or abetting an unlicensed entity to evade the
provisions of this chapter, combining or conspiring with an unlicensed entity, allowing one’s
licensed to be used by any unlicensed entity, or acting as agent, partner, or associate, or an
unlicensed entity.”
CONCLUSIONS OF LAW
1. Under S.C. Code Ann. § 40-1-70 (8) (2001), “The powers and duties of regulatory
boards include. . . disciplining persons licensed under this article in a manner provided for in this
article.” (Emphasis added.). Furthermore, S.C. Code Ann. § 40-1-80 (2001) gives the Director of
the LLR, or the Director’s designee, the authority to “subpoena witnesses, compel their
attendance, take evidence and require the production of any matter which is relevant to the
investigation . . . .”
2.S.C. Code Ann. § 40-1-115 (2001) identifies the term of the Board’s jurisdiction
as, “[a] board has jurisdiction over the actions committed or omitted by current and former
licensees during the entire period of licensure. The board has jurisdiction to act on any matter
which arises during the practice authorization period.” (Emphasis added.)
3.LLR’s position is that S.C. Code Ann. § 40-11-110 (2001) grants it jurisdiction
over individuals or other entities, whether or not the person is a licensed contractor. The
Department claims that the phrase “other entity or individuals” in this section is not restricted to
parties subject to licensure by the Department. I find this interpretation to be overreaching by the
Department.
4.The general rule of statutory construction is that the court should “ascertain and
give support to the intention of the Legislature.” Wright v. Colleton County School District, 301
S.C. 282, 391 S.E. 2d 564 (1990). The court should not, however, “resort to subtle or forced
construction to limit or expand a statute’s operation.” Carolina Alliance for Fair Employment v.
LLR, 337 S.C. 476, 523 S.E. 2d 795 (Ct. App. 1999).
5.Although the route is circuitous, the jurisdictional limits of the Board are defined
in the statute. Taking the terms outlined in S.C. Code Ann. § 40-11-110 (2001) seriatim, (“a
licensee, certificate holder, or other entity or individual”) we find in S.C. Code Ann. § 40-11-20
(12) “‘[l]icensee’ means an entity which has been issued either a general or mechanical
contractor’s license by the department”; item (6) states that “‘[d]epartment’” means the
Department of Labor, Licensing and Regulation.”
“Certificate holder” is explained in item (3) as “a qualifying party,” which is
defined in item (20) as “an individual who has been issued a certificate to qualify an entity for a
license by way of examination in a license classification or subclassification.” Then item (7)
defines an “entity” as “a sole proprietorship, partnership, limited liability partnership, limited
liability company, association, joint venture, cooperative, corporation, or other legal entity
authorized by law and approved by the board.”
In the same section, under item (1), “board” is defined as “the South Carolina
Contractors’ Licensing Board.” Finally, item (16) states that “[i]ndividual means a natural
person.” Clearly, the statute itself contemplates that the jurisdiction of the Board is limited to
entities subject to licensure by the Board.
6.Furthermore, this position has been clarified by our state supreme court. In
Sheppard v. City of Orangeburg, 314 S.C. 240, 442 S.E. 2d 601 (1994), the court stated that
“[w]hen the Legislature uses words of particular and specific meaning, followed by general words,
the general words are construed to embrace only persons or things of the same general kind or
class as those enumerated.” (Citing Cooper River Bridge v. South Carolina Tax Commission, 182
S.C. 72, 188 S.E. 508 (1936)). Therefore, in this case, the general words, “entity” and
“individual,” must refer to the same type of words as the particular words that precede them.
Since all the preceding words, and even the general word “entity,” are defined by phrases that
refer to a license issued by the Contractors’ Board, I find that the Board has jurisdiction only over
those parties which are or should be licensed by the Board. No jurisdiction exists over
individuals, churches or businesses which are not subject to licensure by the South Carolina
Contractors’ Licensing Board.
ORDER
Based on the foregoing, it is hereby ORDERED that:
1.The subpoena against the anonymous contractor is upheld, and the requested relief
is GRANTED;
2.The subpoena against the anonymous individual is quashed, and the requested
relief is DENIED.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
September 17, 2003
Columbia, South Carolina |
