ORDERS:
ORDER
STATEMENT OF THE CASE
This matter came before the South Carolina Real Estate Commission (Commission) for a
hearing on November 20, 2002. The Commission found that the Appellant violated S.C. Code Ann.
§§ 40-57-135(E)(4) and 40-57-145(A)(10) (2001). The Commission revoked the Appellant’s license
and issued an administrative fine in the amount of $1,000.00 for the above violations. The
Commission issued it written Final Order on December 15, 2002. Thereafter, this matter came before
me pursuant to S.C. Code Ann. § 1-23-600(D) (1986 & Supp. 2001) of the Administrative
Procedures Act upon appeal from that Final Order of the Commission. Oral arguments were heard
before me at the offices of the Administrative Law Judge Division (Division) in Columbia, South
Carolina, on September 16, 2003.
STANDARD OF REVIEW
As set forth above, this case is before the Division as an appeal of an agency action pursuant
to S.C. Code Ann. § 1-23-600(D) (1986 & Supp. 2001) of the Administrative Procedures Act (APA)
upon appeal from a Final Order of the 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 Section 1-23-380(A)(6) -- govern the circumstances in which
an appellate body may reverse or modify an agency decision. That section states:
The court may reverse or modify the decision 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(A)(6) (1986 & Supp. 2001).
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, 321 S.E.2d 63 (Ct. App. 1984). The well-settled case law in this state
has also interpreted the “substantial evidence” rule to mean that a decision will not be set aside simply
because reasonable minds may differ on the judgment. Lark v. Bi-Lo, 276 S.C.130, 276 S.E.2d 304
(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 finding from being
supported by substantial evidence. Waters v. South Carolina Land Resources Conservation Comm’n,
321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. South Carolina Coastal Council, 319 S.C. 348, 461
S.E.2d 388 (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, 466 S.E.2d 357 (1996), citing
Kearse v. State Health and Human Services Finance Comm'n, 318 S.C. 198, 456 S.E.2d 892 (1995).
Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency
as to the weight of the evidence on questions of fact. Grant v. South Carolina Coastal Council, 319
S.C. 348, 461 S.E.2d 388 (1995), citing Gibson v. Florence Country Club, 282 S.C. 384, 318 S.E.2d
365 (1984). Finally, the party challenging an agency action has the burden of proving convincingly
that the agency's decision is unsupported by substantial evidence. Waters, supra, citing Hamm v.
AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994).
ISSUES PRESENTED
In his oral argument before me, the Appellant asserted that:
I.The Commission abused its discretion in failing to continue his case;
and
II.Since he was out of the state when this case was noticed for a hearing,
the Commission was required to comply with S.C. Code Ann. § 40-57-170 (2001).
FACTS
The Appellant was a real estate broker licensed by the South Carolina Real Estate
Commission. The Commission received two separate complaints regarding the Appellant: Iucker
and Virgilio. After investigating the complaints, the Commission set the Iucker matter for a hearing.
It continued to investigate the Virgilio matter.
Prior to the Iucker hearing, the parties attempted to reach a settlement of the case. In the
course of negotiations, the attorney for the Respondent agreed to dismiss the Virgilio complaint if
an agreement could be reached on the Iucker complaint. However, an agreement could not be
reached on the Iucker complaint and the offer to dismiss the Virgilio matter was withdrawn. The
Commission then notified the Appellant’s attorney that they intended to go forward on both cases and
would issue a formal complaint on the Virgilio matter.
On the date of the Iucker hearing, the Appellant appeared without counsel. The Appellant
presented a Consent Agreement which was accepted by the Commission at the hearing. That
Agreement, however, did not mention dismissing the Virgilio matter. In the Agreement, the
Commission found that the Appellant had violated S.C. Code Ann. § 40-57-135(B)(2) (2001) by
failing to deposit a $6000.00 security deposit check in his escrow account within forty-eight (48)
hours of receipt; had violated S.C. Code Ann. § 40-57-137(A) (2001) by failing to properly account
in a timely manner for expenditures related to repairs Appellant made or caused to be made on Ms.
Iucker’s home; and had violated S.C. Code Ann. § 40-57-137(C)(3) (2001) by failing to exercise
reasonable skill and care in discharging his duties as a licensed real estate broker. The Appellant was
issued a public reprimand, fined $1,500.00 to defray the costs of the investigation, and ordered to
complete a trust account course within one hundred eighty (180) days of the effective date of the
Consent Agreement.
On October 18, 2002, the Commission issued a Notice and Complaint to the Appellant on the
Virgilio matter. The Appellant was notified that the hearing was to be conducted on November 20,
2002. The Appellant’s attorney faxed a motion to continue the hearing less than forty-eight (48)
hours before the hearing stating that the Appellant was in New York and that counsel had limited
access to him.
The Appellant did not notify the Commission where he could be reached in New
York, why he was in New York, and when he would be returning from New York. The Commission
denied the Appellant’s motion for a continuance.
The Appellant did not appear at the hearing and the hearing was conducted in his absence.
Afterwards, the Commission found that the Appellant violated S.C. Code Ann. § 40-57-135(E)(4)
(2001) in that the Appellant managed property without having a properly executed written agreement
as required by the Commission’s Practice Act and S.C. Code Ann. § 40-57-145(A)(10) (2001) in that
the Appellant improperly withheld $100.00 from rental proceeds that were due the Virgilios, thereby
failing, within a reasonable time, to remit monies coming into his possession which belong to others.
In light of Appellant’s previous disciplinary history before the Commission and the newest violations,
which again involved the mishandling of client funds, the Commission revoked the Appellant’s license
and imposed a $1000.00 fine.
DISCUSSION
Issue I
The Appellant argues that in light of the prior negotiations and correspondence that he
reasonably assumed that the dismissal of the Iucker matter included a dismissal of the Virgilio matter.
He averred that when he realized that his belief was erroneous he had already taken a job in New
York and did not have the means to return for the hearing and present a defense.
Moreover, this
case was not complex and in fact was supported by only one Commission witness. Therefore, under
these circumstances he contends that granting the Appellant a continuance was both “fair and
reasonable.”
The Commission, on the other hand, argues that it delivered notice of the hearing to the
Appellant at the Appellant’s place of business and residence thirty (30) days prior to the hearing, yet
the Appellant waited until just forty-eight (48) hours prior to the hearing to request a continuance.
More important, the Commission asserts that the Appellant’s continuance request was denied because
the Appellant gave no reason in his motion as to why he was out of the state or when he would
return.
I agree with the Appellant that a continuance was both “fair and reasonable.” However, the
issue before me in not whether it was reasonable to grant a continuance. Rather, a “denial of a
motion for continuance will not be disturbed absent a clear abuse of discretion.” State v. McMillian,
349 S.C. 17, 21, 561 S.E.2d 602, 604 (2002). Moreover, “[r]eversals of refusal of a continuance are
about as rare as the proverbial hens' teeth. Id. “An abuse of discretion occurs when the judge's ruling
is based upon an error of law or, when based upon factual conclusions, is without evidentiary
support.” Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987). It has also been defined
as “an appellate court’s standard for reviewing a decision that is asserted to be grossly unsound,
unreasonable, or illegal.” Black’s Law Dictionary (7th ed. 1999).
In Zaman v. S.C. State Bd. of Medical Examiners, 305 S.C. 281, 408 S.E.2d 213 (1991), the
South Carolina Supreme Court addressed a case in which a party in an APA panel hearing moved for
a continuance without any evidence to support the need for the continuance. The Court found that
“[b]ased on the record, we hold there was no abuse of discretion in refusing a continuance.” Id. at
215. Likewise, in First Sav. Bank v. McLean, 314 S.C. 361, 444 S.E.2d 513 (1994), a special referee
denied a continuance so that Appellant could personally testify because the Appellant was away on
a business trip. The Court held that the “Appellant's decision not to attend the hearing was a matter
of priority and thus, we find no abuse of discretion.” Id. at 514.
I find that the Record establishes that the Appellant was not attempting to thwart the judicial
system by making his motion for continuance. This finding is based on the facts that the Appellant
had appeared pro se before the Commission on more serious charges in the Iucker matter, that the
Appellant mistakenly believed that the Virgilio matter had been resolved, and on Mr. Brittain’s
communications with the Commission in the days leading up to the November 20, 2002 hearing in
which he attempted to resolve or continue this matter. Also, the Commission had continued the
previous hearing on the Iucker matter at least once and the Commission was meeting on other matters
on November 20, 2002. Nevertheless, based upon the holdings above, I find that though granting a
continuance would certainly have been reasonable under the circumstances, the denial of the
continuance request was not an abuse of discretion.
Issue II
Notice of the hearing in this matter was mailed to the Appellant’s place of business and his
residence.
The Appellant, however, contends that since he was out of state when this case was
noticed for a hearing, the Commission was required to comply with S.C. Code Ann. § 40-57-170
(2001). Section 40-57-170 (A) provides, in relevant part, that:
Service of a notice provided for by law upon a nonresident licensed under this chapter
or upon a resident who, having been licensed, subsequently becomes a nonresident or
after due diligence cannot be found at his usual abode or place of business in this
State, may be made by leaving with the Director of the Department of Labor,
Licensing and Regulation a copy of the notice, and accompanying documents. A copy
of the notice, any accompanying documents, and a certified copy of the service on the
director must be mailed to the licensee at his last known address, return receipt
requested.
Here, the Appellant did not argue that he was no longer a resident of South Carolina. Furthermore,
the Commission was able to serve him at his “usual abode” and “place of business in this State.” In
fact, the Appellant’s objection to the hearing and subsequent request for continuance clearly
establishes that he received notice of the hearing. Moreover, S.C. Code Ann. § 40-57-180(D) (2001)
provides: “It is the responsibility of a licensee to keep on file with the department a current mailing
address.” Therefore, I find that the Appellant failed to establish that the Commission was required
to notify him pursuant to the procedure set forth in Section 40-57-180(D).
IT IS THEREFORE ORDERED that the Final Order of the Commission is hereby
affirmed.
AND IT IS SO ORDERED.
__________________________________
Ralph King Anderson, III
Administrative Law Judge
October 22, 2003
Columbia, South Carolina |