ORDERS:
ORDER
Jimmy Tench (Petitioner) filed a Request for Injunctive Relief with the Administrative Law Judge
Division (Division) on January 17, 1998. After notice was provided to the parties, a hearing was held in this
matter on Wednesday, May 13, 1998 at the Edgar J. Brown Building, 1205 Pendleton Street, Columbia, South
Carolina. This Division lacks subject matter jurisdiction to consider the Petitioner's request for relief based
on alleged fraud, and the issuance of a writ of mandamus is inappropriate in this case. Therefore, the
Petitioner's request is dismissed.
Procedural History
The Petitioner initially contacted the South Carolina Department of Labor, Licensing and Regulation,
South Carolina Real Estate Commission (Respondent) by filing a complaint to obtain a refund of his
investment in some timeshare property in Westminster, South Carolina. He and his wife, Becky L. Tench,
purchased the timeshares in 1986 and 1987. This initial complaint was received by the Respondent in January
of 1995. Subsequently, the Petitioner filed a complaint with the Tenth Circuit Solicitor's Office involving
concerns over fraud and mismanagement of the timeshare property. That complaint and attached materials
were forwarded by the Solicitor to the Respondent.
After conducting an investigation into the matter, Mr. Edwin Farnell, III, Manager of the Regulatory
Compliance Department of the Respondent, responded to Mr. Tench's complaint by letter, dated June 18,
1997. The letter answered each of the Appellant's allegations from his complaint. The Respondent
determined that there were no violations of any statutes which came within the jurisdiction of the Respondent.
Subsequently, the Petitioner wrote to this tribunal on January 16, 1998. In his letter, the Petitioner
again outlined the facts and allegations as made to the Respondent of his complaint and requested assistance
in recovering his investment. This letter was treated as a Request for Injunctive Relief by this tribunal.
On February 23, 1998, the Respondent filed a Return to the petition with the Clerk of the
Administrative Law Judge Division, in which it treated the petition as a request for a writ of mandamus.
Subsequently, the hearing was set for May 13, 1998.
Analysis
A. Jurisdiction
Petitioner's primary request is for a refund of the monies he paid for the timeshares in question. This
Division clearly has no jurisdiction to order such relief. The Division's jurisdiction over decisions of the Real
Estate Commission is limited to matters relating to disciplinary proceedings conducted by the Commission.
See, e.g., S.C. Code Ann. § 1-23-600(D) (Supp. 1997); S.C. Code Ann. § 40-60-170 (Supp. 1997). Matters
relating to alleged violations of the South Carolina Vacation Time Sharing Plans Act and any investigations
conducted by the Commission pursuant to that act, other than disciplinary proceedings against any real estate
agents or brokers involved, are specifically reserved to the jurisdiction of the Circuit Court. See S.C. Code
Ann. § 27-32-190 (Supp. 1997). Moreover, this Division has no authority to order recovery from the
Vacation Time Sharing Recovery Fund. The statutes creating the Fund specify that any claims against the
fund must be resolved by a Board of Arbitrators. S.C. Code Ann. § 27-32-230 (Supp. 1997). Therefore, this
Division lacks subject matter jurisdiction to consider any action based on fraud or to award any damages to
the Petitioner.
B. Mandamus
To the extent that the Petitioner claims that the Commission failed to exercise its statutory duty to
investigate his complaints, this matter could be considered as a petition for a writ of mandamus. An ALJ has
the authority to issue those remedial writs "as are necessary to give effect to" the jurisdiction of the Division.
S.C. Code Ann. § 1-23-630 (Supp. 1997). Mandamus is clearly a writ. 55 C.J.S. Mandamus § 1 (1948). The
issue is whether such a writ is necessary "to give effect to the [ALJ's] jurisdiction." The jurisdiction of an
ALJ concerning decisions of the Respondent is generally appellate in nature. In exercising appellate
jurisdiction, an ALJ may hear appeals of interlocutory orders where "review of the final agency decision
would not provide an adequate remedy." S.C. Code Ann. § 1-23-380(a) (Supp. 1997).
If the request by the Petitioner is treated as a petition for a writ of mandamus, it fails to meet the
required criteria. To obtain a writ of mandamus, a party must show: (1) a duty of the defendant to act; (2) the
ministerial nature of the act; (3) a specific legal right for which discharge of the duty is necessary; and (4) the
lack of any other legal remedy. Anderson Co. School District 1 v. Anderson Co. Bd. of Education, 296 S.C.
260, 371 S.E.2d 807 (Ct. App. 1988), cert. dismissed, 300 S.C. 493, 388 S.E.2d 815. A ministerial duty is
one which a person performs in obedience to a mandate of legal authority without regard to the exercise of
his own judgment upon the propriety of the act to be done. In Interest of Tyson, 282 S.C. 212, 318 S.E.2d
279 (Ct. App. 1984). In this case, the Respondent had the authority to investigate complaints concerning real
estate agents under its jurisdiction. S.C. Code Ann. §§ 40-1-80 and 40-57-150 (Supp. 1997). However, the
determination of whether a complaint is meritorious, thus warranting charges of misconduct against a real
estate agent, is not a ministerial act, but rather involves the exercise of judgment and discretion by the
Respondent.
Courts will not issue a writ of mandamus to compel or control the action of an administrative agency
in the discharge of statutory duties involving the exercise of judgment or discretion unless the attempted
performance of the duty or the omission thereof amounts to illegal action or is an arbitrary or capricious abuse
of discretion. Tyson, 282 S.C. at 218, 318 S.E.2d at 283. "[A] reviewing court has the duty to examine the
procedural methods employed at an administrative hearing to ensure that a fair and impartial procedure was
used." Ross v. Medical Univ. of South Carolina, 317 S.C. 377, 381, 453 S.E.2d 880, 883 (S.C. 1994) (quoting
2 Am.Jur.2d Administrative Law § 611).
In this case, the Respondent has investigated the facts and circumstances surrounding Mr. Tench's
complaint and has found no wrongdoing by any licensed real estate broker or any other person under the
authority or jurisdiction of the Respondent. There is no evidence that Respondent abused its discretion or that
it acted unlawfully in investigating the Petitioner's complaints. Accordingly, the issuance of a writ of
mandamus is inappropriate in this instance.
Moreover, to obtain a writ of mandamus, the applicant must also show that he has no other legal
remedy. Anderson County School Dist. 1, supra. Where another adequate remedy exists, a writ of mandamus
cannot rightfully be issued. Smith v. Hendrix, 265 S.C. 417, 219 S.E.2d 312 (1975). In this instance, Mr.
Tench may pursue a civil action against those persons or entities whom he feels have wronged him. Such a
civil action is specifically authorized by the South Carolina Vacation Time Sharing Plans Act at S.C. Code
Ann. § 27-32-130 (Supp. 1997). Therefore, there is no basis for the issuance of a writ of mandamus in this
case.
From a thorough review of the record, this tribunal concludes that the complaints of the Petitioner
were thoroughly investigated and properly addressed by the Respondent, and that the Petitioner has other
available legal remedies. Accordingly, this matter is dismissed.
Order
Considering all the facts and circumstances, this tribunal lacks subject matter jurisdiction to consider
any claims for damages based on alleged fraud or violations of the South Carolina Vacation Time Sharing
Plans Act. Furthermore, the issuance of a writ of mandamus to order another investigation by the Respondent
is inappropriate in this instance. There was no evidence presented to this tribunal that the Respondent abused
its discretion in its investigation of the allegations made before it by the Petitioner. Accordingly, it is :
ORDERED that the relief sought by the Petitioner before this tribunal is denied.
AND IT IS SO ORDERED.
Marvin F. Kittrell
Chief Judge
May 27, 1998
Columbia, South Carolina
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