ORDERS:
ORDER
In this matter, the South Carolina Real Estate Commission revoked Respondent's real estate
broker's license on September 17, 1997. The Commission's Order was upheld on appeal by Order of
Administrative Law Judge Ralph K. Anderson, III, on March 25, 1998, which implicitly prohibited
Respondent from any further practice of real estate as contemplated by S.C. Code Ann. section 40-57-20 (Supp. 1997). On June 18, 1998, Petitioner submitted a Petition for a Temporary Restraining Order
("TRO") with supporting affidavit, indicating Respondent's continued practice of real estate. This
tribunal subsequently issued a Rule to Show Cause ordering the parties to appear before it on July 1,
1998 and advising Respondent to be prepared to show cause why he should not be held in contempt.
A contempt hearing was conducted on July 1, 1998.
Counsel for Respondent contends that this tribunal lacks jurisdiction to issue an Order in this
matter, as the case has been appealed to the circuit court and the license revocation is automatically
stayed pursuant to S.C. Code Ann. section 18-7-10 (1985). A court has a duty to determine whether
it has jurisdiction in a matter. Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 132 S.E.2d 18 (1963).
This matter is governed by the Administrative Procedures Act, which provides that the filing
of a petition for judicial review to circuit court "does not itself stay the enforcement of the agency
decision." S.C. Code Ann.§ 1-23-380(2) (Supp. 1997). Therefore, section 18-7-10 does not apply to
Respondent's appeal from Judge Anderson's March 25, 1998 Order. Despite Respondent's appeal to
the circuit court, this administrative tribunal retains jurisdiction to enforce its own Orders until such
enforcement is stayed by order of the circuit court. See S.C. Code Ann. § 1-23-630 (Supp. 1997) (each
law judge of the Administrative Law Judge Division has the same power at chambers or in open
hearing as do circuit court judges). Further, "[o]rders ... must be promptly complied with, absent a
stay, because appeal is the remedy for a decision believed to be erroneous." Alex Sanders, Trial
Handbook for South Carolina Lawyers, § 5:6 (1994) (citing McLean v. Central States, 762 F.2d 1204
(4th Cir. 1985)). "A court order which is not void for lack of jurisdiction must be obeyed until vacated
or modified by competent authority, even though erroneous." Id. (citing State v. Highsmith, 105 S.C.
505, 90 S.E. 154 (1916)).
Respondent also contends that he did not have sufficient notice of these contempt proceedings.
I find this contention wholly without merit. Upon receiving an affidavit from Petitioner setting forth
prima facie evidence of Respondent's allegedly contemptuous conduct, this tribunal issued a Rule to
Show Cause on June 24, 1998, clearly indicating that Respondent must appear at the July 1, 1998
hearing prepared to show cause why he should not be held in contempt. This tribunal has the authority
to issue a Rule to Show Cause upon receipt of affidavit(s) or a verified petition. See Toyota of
Florence, Inc. v. Lynch, 314 S.C. 257, 442 S.E.2d 611 (1994)(emphasis added). Although Petitioner
submitted its request for relief in the form of a Petition for a TRO, this tribunal retains authority to
issue a Rule to Show Cause upon receiving sufficient supporting information stated under oath.
Additionally, seven days' notice for a contempt hearing has been held to be adequate under due process
standards. See State v. Cottingham, 224 S.C. 181, 77 S.E.2d 897 (1953).
Because the temporary retraining order is unnecessary, as Respondent's license to practice real
estate has already been revoked by Judge Anderson's Order, it is denied. As a result, Respondent is
not authorized to engage in the practice of real estate as defined in S.C. Code Ann. sections 40-57-20
and 40-57-30 (Supp. 1997). Because the Petition for TRO, with supporting affidavit, brought to the
attention of this tribunal Respondent's allegedly contemptuous conduct, this tribunal has the authority
to hold Respondent in contempt once Petitioner has met its burden of proof in an evidentiary hearing.
Willful disobedience of an order is such interference with the administration of justice as to constitute
contempt. See Pirkle v. Pirkle, 303 S.C. 266, 399 S.E.2d 797 (Ct. App. 1990); Long v. McMillan, 226
S.C. 598, 86 S.E.2d 477 (1955).
In the case at bar, Petitioner met its burden of proving that Respondent has engaged in conduct
constituting the practice of real estate, as defined in S.C. Code Ann. sections 40-57-20 and 40-57-30
(Supp. 1997). Petitioner presented evidence showing that Respondent, through newspaper
advertisements, has attempted to negotiate the sale, purchase, exchange or otherwise dispose of real
estate. Further, through these same advertisements, Respondent held himself out to the public as being
engaged in the practice of real estate. Therefore, I find and conclude that Respondent has violated
Judge Anderson's March 25, 1998 Order. S.C. Code Ann. §§ 40-57-30(3) 40-57-30(4) (Supp. 1997).
While I find Respondent's conduct to be in blatant disregard of Judge Anderson's Order, I decline to
hold him in contempt.
Respondent is fortunate to benefit from this tribunal's leniency. However, should Respondent
persist in the practice of real estate, and should this be substantiated by credible evidence submitted
to this tribunal, Respondent should not expect such leniency in any future contempt proceedings.
Further, Respondent is on notice that in any future contempt proceeding, this tribunal will not entertain
any artificial concepts of compliance which actually reveal an intent to circumvent the letter or spirit
of the law via subterfuge or loophole. This includes Respondent's active participation in any realty
business traditionally established and commonly known for real estate brokerage or property
management, whether by way of direct contact with the public or through management of others
engaged in the practice of real estate.
Respondent is hereby ordered to refrain from the practice of real estate as described herein and
defined in S.C. Code Ann. sections 40-57-20 and 40-57-30 (Supp. 1997), unless and until an appellate
court stays or reverses the license revocation. If credible evidence is submitted to this tribunal after
July 1, 1998 showing that Respondent has continued in the aforementioned conduct or has otherwise
engaged in the practice of real estate as defined in S.C. Code Ann. sections 40-57-20 and 40-57-30
(Supp. 1997), Respondent will be subject to being fined, jailed, or both.
AND IT IS SO ORDERED.
____________________________________
John D. Geathers
Administrative Law Judge
July 2, 1998
Columbia, South Carolina |
