ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
Pursuant to S.C. Code Ann. § 40-1-160 (Supp. 2001) and S.C. Code Ann. § 1-23-600(D)
(Supp. 2003), Appellant Timothy J. Barlowe
appeals the South Carolina Real Estate Commission’s
(“Commission”) Amended Final Order of July 16, 2003
, which revoked his real estate license, fined
him $3000, and assessed administrative hearing costs of $1147.75 against him. Specifically, the
Commission found that Appellant had, during the course of two unrelated real estate transactions,
violated (1) S.C. Code Ann. § 40-57-145(A)(1) (Supp. 2001), (2) S.C. Code Ann. § 40-57-145(A)(2)
(Supp. 2001), and (3) S.C. Code Ann. § 40-57-145(A)(4) (Supp. 2001).BACKGROUND
The present matter arises out of Appellant’s conduct during two real estate transactions in
2000 and 2001. At the time of these transactions, Appellant was a real estate broker duly licensed
by the Commission.
In the first of these transactions, Appellant entered into a contract with George L. Reiner for
the sale of a one-acre tract of land in Pelion, South Carolina. When he entered into the contract with
Mr. Reiner, Appellant did not have legal title to the property in question, but rather, according to the
Appellant, had only contracted to purchase the property from its actual owner.
However, this
purchase was never completed, Appellant never acquired legal title to the property, and,
consequently, Appellant was not able to deliver the property to Mr. Reiner.
In the second transaction, Appellant entered into a contract with Betty M. Thompson for the
sale of a parcel of property in Lugoff, South Carolina, which was then occupied by Ms. Thompson’s
daughter and son-in-law. Appellant contends that the purchase price for the property was, at all
times, the $11,000 price recited in the written contract. However, Ms. Thompson testified that,
under her understanding of her agreement with Appellant, the purchase price of the property would
be the outstanding balance due on the initial installment contract for the property, an amount of
approximately $9,300. After an investigation into these matters, the Commission charged Appellant
with misconduct under several provisions of the Commission’s practice act, held a hearing on those
charges, and, finding Appellant guilty of the charges, imposed upon Appellant the sanctions described
above, including the revocation of his real estate broker’s license.
STANDARD OF REVIEW
Jurisdiction on appeal from a decision of a Commission within the Department of Labor,
Licensing and Regulation is vested in the ALJD pursuant to S.C. Code Ann. § 1-23-600(D) (Supp.
2003). On appeal to the ALJD, the standard of review is limited to the record presented. S.C. Code
Ann. § 1-23-380(A)(5) (Supp. 2003). An Administrative Law Judge may reverse or modify the
agency’s decision if substantial rights of the appellant have been prejudiced because the administrative
findings, inferences, conclusions, or decisions are affected by error of law or clearly erroneous in view
of the reliable, probative, and substantial evidence in the whole record. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2003); Stephen v. Avins Const. Co., 324 S.C. 334, 478 S.E.2d 74 (Ct. App. 1996).
Substantial evidence is neither a mere scintilla of evidence nor evidence viewed blindly from
one side of a case, but rather is evidence which, considering the record as a whole, would allow
reasonable minds to reach the conclusion that the administrative agency reached. Carroll v. Gaddy,
295 S.C. 426, 368 S.E.2d 909 (1988). 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). 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).
DISCUSSION
The Commission concluded that Appellant violated S.C. Code Ann. § 40-57-145(A)(1)
(Supp. 2001) and S.C. Code Ann. § 40-57-145(A)(2) (Supp. 2001) based, in part, upon its finding
that:
[Appellant] led Ms. Thompson to believe that the $11,000.00 shown in the written
contract would be adjusted to the balance remaining on the installment contract
between Sam McFadden and the [Appellant], and that was a misrepresentation in that
[Appellant] did not intend to adjust the contract figure, and that the misrepresentation
was made to induce Ms. Thompson to sign the written contract.
The Appellant asserts that such a finding is not supported by the evidence in the record. I
disagree. The Appellant, in his Brief, relies in part on the parol evidence rule. However, the parol
evidence rule does not apply in proceedings involving someone other than the parties to the contract.
City of Orangeburg v. Buford, 227 S. C. 280, 87 S. E. 2d 822 (1955); Ex Parte Moore, 161 S. C.
107, 159 S. E. 503 (1931). Appellant further contends that there is no evidence to support the
finding that the “Appellant induced Ms. Thompson to sign the contract knowing at the time that he
had no intension of ever adjusting the contract figure.” This finding is subject to conflicting evidence
from which two reasonable minds might draw different conclusions. However, it is the fact-finder’s,
here the Commission’s, responsibility to judge the demeanor and credibility of witnesses and
determine the relevance and weight of any testimony and evidence offered. Although reasonable
minds might differ, I cannot hold, under the facts of this case, that there is no substantial evidence in
the record for one to come to the conclusion reached by the Commission.
The Commission’s conclusion that Appellant violated S.C. Code Ann. § 40-57-145(A)(1)
(Supp. 2001) and S.C. Code Ann. § 40-57-145(A)(2) (Supp. 2001) was also based, in part, upon its
finding that:
[Appellant] sold a piece of property to Mr. Reiner with a promise to transfer legal title
to Mr. Reiner without revealing that he, the [Appellant], did not have legal title to the
property.
The Commission cites no Regulation, case law, or statute which would require such a
disclosure, particularly if, in fact, the Appellant had the equitable title to the property and the legal
right to enter into the contract. Although the Respondent’s Brief asserts that the contract between
the Appellant and Reiner stated that Appellant was the owner of the property, there is no such finding
by the Commission in its Amended Order. The contract does provide that the Appellant “retains title
to the property.” However, this is not mentioned in any finding of the Commission, nor does the
contract specify whether the title to be retained is legal title or equitable title. The Commission failed
to make a finding whether the Appellant had, at the time he entered into the contract with Mr. Reiner,
the legal right to enter into the contract, or whether he was the holder of equitable title to the
property. Therefore, this matter is remanded to the Commission to make such a finding.
The conclusion by the Commission that Appellant violated S.C. Code Ann. § 40-57-145(A)(1)
(Supp. 2001) was further based in part upon its finding that:
[Appellant] failed to immediately notify and refund the purchase money to Mr. Reiner
when he learned the property was under contract to and subsequently sold to
someone else.
Appellant does not contest this finding in his Brief or in his Addendum. Therefore this finding
is affirmed.
The Commission further concludes;
[Appellant] has violated S.C. Code Ann. § 40-57-145(A)(4) (Supp. 2001) in that
[Appellant], as evidenced by his conduct in the transactions with Ms. Thompson and
Mr. Reiner, demonstrated bad faith, dishonesty, untrustworthiness and incompetency
in a manner so as to endanger the interest of the public. This conclusion is based upon
the [Commission’s] finding that the [Appellant], in his transaction with both Ms.
Thompson and Mr. Reiner, acted in a manner that is contrary to the way in which real
estate processionals are expected to conduct themselves when dealing with members
of the public in South Carolina.
This conclusion of law fails to articulate a rationale or provide an analytical basis for the
Commission’s conclusion. It does not contain a specific discussion of how or why the conduct
described “is contrary to the way in which real estate processionals are expected to conduct
themselves when dealing with members of the public in South Carolina.” This conclusion does not
specifically state what part of Appellant’s conduct in the transactions in question constituted bad faith,
dishonesty, untrustworthiness, and incompetency. The Commission’s order fails to state this
Conclusions of Law with sufficient particularity for a reader to reach any narrower conclusions
regarding Appellant’s conduct.
In a recent line of cases, our State Supreme Court has held that an administrative agency must
make specific findings of fact and explain its rationale in sufficient detail so as to afford meaningful
judicial review. See Kiawah Property Owners’ Group v. S.C. Pub. Serv. Comm’n, 338 S.C. 92, 525
S.E.2d 863 (1999); Porter v. S.C. Pub. Serv. Comm’n, 333 S.C. 12, 507 S.E.2d 328 (1998); Porter
v. S.C. Pub. Serv. Comm’n, 332 S.C. 93, 504 S.E.2d 320 (1998); Heater of Seabrook, Inc. v. S.C.
Pub. Serv. Comm’n, 332 S.C. 20, 503 S.E.2d 739 (1998). The Court has further overruled earlier
precedent in this area to the extent that those cases suggest that an appellate court “will, sua sponte,
search the record for substantial evidence supporting a decision when an administrative agency’s
order inadequately sets forth the agency’s findings of fact and reasoning.” Porter, 333 S.C. at 22 n.3,
507 S.E.2d at 333 n.3.
While this tribunal is reluctant to remand this issue for a second time, it is not incumbent upon
this tribunal to determine how and why the conduct generally described constitutes specific violations
of a specific statutory provision.
In Appellant’s Addendum to Brief, he states that these matters were not related to activities
subject to license. However, a real estate broker can be disciplined for actions taken by him acting
in his own behalf instead of in his capacity as a broker. South Carolina Real Estate Commission v.
Boineau, 267 S.C. 574, 230 S.E.2d 440, 441-442 (1976).
ORDER
IT IS THEREFORE ORDERED that the South Carolina Real Estate Commission’s
Amended Order’s conclusions that the Appellant violated S.C. Code Ann. § 40-57-145(A)(1) (Supp.
2001) and S.C. Code Ann. § 40-57-145(A)(2) (Supp. 2001) in that he led Ms. Thompson to believe
that the $11,000 shown in the written contract would be adjusted to the balance remaining on the
installment contract between Sam McFadden and the Appellant, and that such was a
misrepresentation in that Appellant did not intend to adjust the contract figure, and that the
misrepresentation was made to induce Ms. Thompson to sign the written contract, are AFFIRMED;
IT IS FURTHER ORDERED that South Carolina Real Estate Commission’s Amended
Order’s conclusion that the Appellant violated S.C. Code Ann. § 40-57-145(A)(1) (Supp. 2001) in
that Appellant failed to immediately notify and refund the purchase money to Mr. Reiner when he
learned the property was under contract to and subsequently sold to someone else is AFFIRMED;
IT IS FURTHER ORDERED that this case is REMANDED to the South Carolina Real
Estate Commission to reconsider the record and make further findings and bases for its conclusions
in accordance with this Order;
IT IS FURTHER ORDERED that this case is REMANDED to the South Carolina Real
Estate Commission to reconsider the sanctions imposed in light of any findings and conclusions
reached in accordance with this Order;
AND IT IS SO ORDERED.
______________________________
C. Dukes Scott
Administrative Law Judge
February 6, 2004
Columbia, South Carolina |
