ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before me pursuant to Petitioner Joseph J. Best, Jr.’s (“Petitioner’s”) request
for a contested case hearing regarding Respondent South Carolina Law Enforcement Division’s
(“SLED’s”) denial of his application for a license to operate a private investigation business. A
hearing was scheduled for 10:00 a.m. on November 24, 2003 at the offices of the Administrative Law
Judge Division (“ALJD”) in Columbia, South Carolina. Timely notice of the day, time, and location
of the hearing was sent to the parties. Petitioner failed to appear at the hearing. For the following
reasons, Petitioner’s application is denied.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this
matter, and taking into account the credibility and accuracy of the evidence, I make the following
findings of fact by a preponderance of the evidence:
Contested Case Hearing before the ALJD
1.A Notice of Hearing was timely mailed to the parties on October 21, 2003, notifying
them that the hearing on the merits in this matter would take place at 10:00 a.m. on November 24,
2003, at the ALJD, Edgar A. Brown Building, 1205 Pendleton Street, Suite 224, Columbia, South
Carolina. The Notice of Hearing stated that “[c]ontinuances will be granted only when extraordinary
circumstances exist. Parties may request continuances no later than twenty-four (24) hours prior to
the scheduled hearing date.”
2.No request for a continuance was received prior to the scheduled hearing date and
time.
3.Petitioner failed to appear at the scheduled hearing at 10:00 a.m. on November 24,
2003, and no one representing Petitioner appeared at the contested case hearing. The contested case
hearing proceeded in Petitioner’s absence.
4.While the contested case hearing was underway, approximately one hour after the
contested case hearing had been scheduled and noticed to begin, attorney Randall Williams sent a
facsimile to the ALJD. The facsimile contained the caption of this case and was titled “Motion and
Order of Continuance.” The facsimile requested a continuance of the contested case hearing in this
matter on behalf of Petitioner. The facsimile was signed only by Mr. Williams. There was no
indication on the facsimile that Mr. Williams had sent a copy of the facsimile to the attorney for
SLED.
5.Immediately after the facsimile from Mr. Williams was received by the ALJD, Mr.
Williams telephoned the ALJD. Mr. Williams spoke with the law clerk to Judge C. Dukes Scott. Mr.
Williams informed Judge Scott’s law clerk that he is not Petitioner’s attorney and does not represent
Petitioner in this matter. Judge Scott’s law clerk informed Mr. Williams that the contested case
hearing in this matter was underway. Mr. Williams questioned Judge Scott’s law clerk as to whether
the ALJD had received his facsimile requesting a continuance on behalf of Petitioner, and Judge
Scott’s law clerk in turn questioned Mr. Williams as to whether, in sending the facsimile, Mr.
Williams was representing Petitioner in this matter. Mr. Williams denied that he was representing
Petitioner in this matter in sending the facsimile. Judge Scott’s law clerk informed Mr. Williams that
any motion Petitioner wished to file in this matter must be filed either by Petitioner or by someone
representing Petitioner, at which point Mr. Williams again stated that he does not represent Petitioner
in this matter. At no point did Mr. Williams file a notice of appearance in this matter.
6.Without acknowledging that the facsimile Mr. Williams sent to the ALJD was a
properly filed motion for a continuance, SLED nevertheless objected to any continuation of the
contested case hearing at that point in the proceeding, and Judge Scott sustained the objection.
7.Mr. Williams sent another facsimile to the ALJD at approximately 11:25 a.m. on
November 24, 2003, titled “Amended Motion and Order of Continuance,” requesting a continuance
or a bifurcation of the hearing on behalf of the Petitioner. The contested case hearing in this matter
had already concluded by the time Mr. Williams’s facsimile was received at the ALJD. As with the
prior facsimile, this second facsimile was only signed by Mr. Williams, who had already represented
to this tribunal through Judge Scott’s law clerk that he does not represent Petitioner in this matter,
and it did not indicate that Mr. Williams had sent a copy of the facsimile to counsel for SLED.
Petitioner’s Application for Private Investigation License
8.On March 14, 2003, Petitioner applied to SLED for a license to operate a private
investigation business.
9.Petitioner’s application was assigned to a SLED agent for investigation to determine
whether Petitioner qualifies for a license to operate a private investigation business.
10.Petitioner’s application was incomplete regarding personal information such as his
driver’s license number and voter registration number.
11.Petitioner’s application contained false and incomplete information regarding his
employment history.
12.Petitioner’s application contained false and incomplete information regarding his credit
record and his indebtedness.
13.Petitioner’s application contained false and incomplete information regarding his
criminal record.
14.Petitioner’s application contained false and incomplete information regarding his traffic
citations.
15.Petitioner’s application contained false and incomplete information regarding court
actions in which he has been either a plaintiff or a defendant.
16.Petitioner’s application contained false and incomplete information regarding whether
there are any outstanding judgments against him.
17.During its investigation of Petitioner’s application, SLED received negative
information from a past employer of Petitioner’s regarding Petitioner’s honesty.
18.During its investigation of Petitioner’s application, SLED received negative
information from a former friend of Petitioner’s regarding Petitioner’s honesty.
19.Petitioner failed to cooperate with SLED in its investigation of his application.
Petitioner provided false and incomplete information to the SLED agent investigating his application.
Petitioner failed to respond to the SLED agent’s requests for information.
20.On June 26, 2003, SLED wrote a letter to Petitioner denying his application for a
private investigation business license, which Petitioner appealed.
CONCLUSIONS OF LAW
Based upon the above findings of fact, I conclude as a matter of law the following:
Contested Case Hearing before the ALJD
1.ALJD Rule 19(B) states:
A motion for continuance shall be in writing, state the reasons therefor, and be signed
by the requesting party or representative. No application for a continuance may be
made or granted ex parte without notice except in an emergency where notice is not
feasible.
2.According to ALJD Rule 4(C), a motion is deemed filed with the ALJD by (1)
delivering the document to the ALJD; or (2) depositing the document in the U.S. mail, properly
addressed to the ALJD, with sufficient first class postage attached. Facsimile transmission is not an
acceptable method of filing with the ALJD. Furthermore, any document filed with the ALJD shall
be accompanied by proof of service of such document on all parties. ALJD Rule 4(C).
3.Any attorney or other person authorized to represent a party before the ALJD must
file a notice of appearance with the ALJD when retained or authorized to represent a party after the
commencement of a case. ALJD Rule 8(B).
4.The facsimile transmitted to the ALJD by Mr. Williams during the contested case
hearing in this matter on November 24, 2003 is not a valid motion for a continuance pursuant to
ALJD Rule 19(B) because it was not signed by the requesting party or representative. Mr. Williams’s
signature was the only signature on the document, and Mr. Williams expressly stated to this tribunal
that he was not representing Petitioner in this matter. Mr. Williams did not file a notice of appearance
in this matter stating that he had been retained or authorized to represent Petitioner. Further, Mr.
Williams did not serve a copy of the facsimile on counsel for SLED; therefore, even if it had been
signed by Petitioner or a representative of the Petitioner, the request for a continuance was not
properly made pursuant to ALJD Rule 19(B) and could not have been granted ex parte. Additionally,
a transmission via facsimile does not constitute a filing with the ALJD pursuant to ALJD Rule 4(C);
thus, any request contained in the facsimile was not filed with the ALJD and therefore was not
properly before this tribunal. The same analysis applies to the facsimile transmitted to the ALJD by
Mr. Williams after the close of the hearing on the morning of November 24, 2003. Therefore, the
facsimiles cannot be considered properly filed or valid motions for continuances on behalf of
Petitioner. The parties were timely notified of the date, time, and place of the contested case hearing,
and no motion for a continuance was received prior to the hearing; therefore, the hearing was proper.
5.Even if the facsimiles transmitted to the ALJD by Mr. Williams on November 24, 2003
could have been considered properly filed and valid motions for continuance and/or bifurcation of the
hearing on behalf of Petitioner, this tribunal would not have granted a motion for a continuance of
a contested case hearing made during the course of the contested case hearing, especially over the
objection of the other party; nor would this tribunal have granted a motion for a bifurcation of a
hearing after the close of the hearing.
Petitioner’s Application for Private Investigation License
6.The ALJD has jurisdiction to hear this contested case pursuant to S.C. Code Ann. §
40-18-130(C) (Supp. 2002) and S.C. Code Ann. § 1-23-310 et seq. (1986 and Supp. 2002).
7.The power and duty to determine the qualifications and eligibility of applicants for
licenses for private investigation businesses is vested in SLED pursuant to S.C. Code Ann. § 40-18-30(A)(1) and (B)(1) (Supp. 2002).
8.Applications for licenses for private investigation businesses must be made under oath
and must include, in addition to other information, the applicant’s current occupation and employment
for the prior ten years, including names and addresses of employers; date and places of any arrests
and any convictions; and any additional information required by SLED. S.C. Code Ann. § 40-18-70(A)(3) (Supp. 2002).
9.An applicant for a license for private investigation may only receive a license from
SLED “upon satisfaction after investigation [by SLED] of the competency and integrity and
qualifications of the applicant.” S.C. Code Ann. § 40-18-70(C) (Supp. 2002).
10.SLED may deny an application for a license for private investigation upon finding that
the applicant has made a false statement or given false information in connection with an application
for a license. S.C. Code Ann. § 40-18-130(A)(1) (Supp. 2002).
11.Petitioner made false statements on his application for his license for a private
investigation business, and he gave false information in connection with SLED’s investigation of his
license application. Petitioner’s application was therefore properly denied by SLED. See S.C. Code
Ann. § 40-18-130(A)(1) (Supp. 2002).
ORDER
Based upon the above findings of fact and conclusions of law,
IT IS HEREBY ORDERED that Petitioner’s application for a license to operate a private
investigation business is DENIED;
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
November 25, 2003
Columbia, South Carolina |
