ORDERS:
ORDER OF DISMISSAL
This matter is before the Administrative Law Judge Division ("Division") pursuant to a Petition for Writ of Mandamus filed
by the Petitioner, James E. MacDonald, against the South Carolina Department of Labor, Licensing and Regulation, Real
Estate Commission ("Commission"). The Petitioner seeks a writ of mandamus ordering the Commission to entertain a
Petition for Reinstatement of the Petitioner's license to practice real estate, which was filed with the Commission on May 5,
1999. For the following reasons, the Petition for Writ of Mandamus is denied, and this matter is dismissed.
STATEMENT OF THE CASE
The Petitioner was formerly licensed by the Commission to practice real estate in the State of South Carolina. On September
17, 1997, the Commission issued an Order revoking Petitioner's real estate broker's license and issuing an administrative
sanction of Five Thousand Dollars ($5,000.00). Petitioner appealed this Order to the Division, and on March 25, 1998,
Administrative Law Judge Ralph King Anderson, III issued an Order affirming the Commission's decision. Subsequently,
Petitioner appealed Judge Anderson's decision to the Court of Common Pleas for the Fifth Judicial Circuit. No stay of
Judge Anderson's order was imposed by the Court, and on October 8, 1998, Judge Anderson's Order was affirmed.
Petitioner then appealed the decision of the Circuit Court to the South Carolina Supreme Court. The Supreme Court
referred the case to the Court of Appeals, where the appeal is presently pending.
In the meantime, the Petitioner was found in contempt of Judge Anderson's Order of March 25, 1998, by continuing to
practice real estate after the revocation of his license. On July 28, 1998, Administrative Law Judge John D. Geathers held
the Petitioner in contempt of Judge Anderson's Order and sentenced the Petitioner to two days in jail and a $1,000 fine.
On May 4, 1999, during the pendency of his appeal of Judge Anderson's Order, the Petitioner submitted a Petition for
Reinstatement of his real estate broker's license to the Commission. As grounds for his reinstatement, the Petitioner raised a
number of issues, all relating to the Consent Order of February 10, 1997 entered into between the Petitioner and the
Commission, and the revocation hearing held by the Commission on August 20, 1997. By letter dated May 14, 1999, the
Chairman of the Commission denied the Petitioner's request for a hearing on his Petition for Reinstatement. The Chairman
noted that the Petitioner's appeal of his license revocation was still pending, and that it would be inappropriate for the
Commission to entertain the request for reinstatement until the completion of the appellate process; that the Petitioner had
not complied with the Commission's Order revoking his license, in that he had been practicing real estate in violation of that
Order and the Order of the Division; and that the Petitioner had not paid the $5,000 administrative sanction imposed by the
Commission. The Chairman stated that the Commission would not consider any request by the Petitioner for relicensure
until the completion of the appellate process and the Petitioner's full compliance with the terms of the Commission's Order
dated September 17, 1998. Thereafter, the Petitioner filed his Petition for Writ of Mandamus with the Division, seeking to
compel the Commission to entertain his petition for reinstatement.
DISCUSSION
The Administrative Law Judge Division has the jurisdiction to hear petitions for writs of mandamus, pursuant to S.C. Code
Ann. § 1-23-630 (Supp. 1998), since a writ of mandamus is a "remedial writ." Id. However, the burden upon a party
seeking a writ of mandamus is a heavy one. In order 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. 1998), 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
Commission has the authority to determine the eligibility of an applicant for licensure. See S.C. Code Ann. §§ 40-1-70; 40-57-60 (Supp. 1998). Furthermore, the Commission is given the discretion to deny an authorization for practice to an
applicant who has committed an act which would be grounds for disciplinary action. S.C. Code Ann. §§ 40-1-130; 40-57-145(A) (Commission may deny issuance of a license to an applicant who, inter alia, violates any of the statutes or
regulations governing the practice of real estate). Finally, S.C. Code Ann. § 40-57-110(F) provides that, following
revocation of a license, a new license may not be issued for at least one year. Following the one year waiting period, the new
license may only be issued by majority vote of the Commission, upon a showing by the applicant, satisfactory to the
Commission, that he meets all the statutory qualifications for licensure and that he is trustworthy, has a good reputation for
honesty and fair dealing, and is competent to transact the business of a real estate licensee.
An analysis of the foregoing provisions clearly indicates that, although the Commission possesses the statutory power to
reinstate licenses, the determination of whether an applicant meets the qualifications for relicensure is not a ministerial act,
but rather involves the exercise of judgment and discretion by the Commission. 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. In this case, the Chairman of the
Commission has reviewed Petitioner's request for reinstatement and has denied the request, based primarily upon the fact
that its original Order revoking Petitioner's license is still under appeal. There is no evidence that the Commission has
abused its discretion.(1) See McCoy v. McAninch, 241 S.C. 211, 127 S.E.2d 620 (1962) (Board of Podiatry had no clear
legal duty to entertain a petition for reinstatement of a revoked license to practice podiatry, notwithstanding the fact that the
criminal conviction on which the revocation was based had been overturned). In fact, due to the pendency of the appeal, it is
doubtful whether the Commission even has jurisdiction to entertain Petitioner's request at this point. The grounds raised by
the Petitioner in his Petition for Reinstatement all involve the legality of the February 10, 1997 Consent Order and the
investigation and subsequent revocation hearing held on August 20, 1997. These grounds have been previously raised on
appeal to the Division and are presumably the subject of the appeal pending before the Court of Appeals. See Alston v.
Limehouse, 61 S.C. 1, 39 S.E. 193 (1901) (the perfecting of an appeal divests the lower court of jurisdiction); Bunkum v.
Manor Properties, 321 S.C. 95, 467 S.E.2d 758 (Ct. App. 1996) (once a notice of appeal is served, the Supreme Court has
exclusive jurisdiction over the appeal). 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 Co.
School District 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, the Petitioner has availed himself of his right to judicial
review of the Commission's Order by first appealing to the Division, then to Circuit Court, and now to the Court of Appeals.
Having done so, Petitioner cannot now claim that he is entitled to a writ of mandamus to force the Commission to grant him
the exact relief he is simultaneously seeking through the appellate process. Petitioner must await the outcome of that
process before attempting to have his license reinstated.
ORDER
For all the foregoing reasons, Petitioner's Petition for Writ of Mandamus is hereby DENIED.
AND IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
October 7, 1999
1. Petitioner asserts as one ground for his Petition for Writ of Mandamus that the Commission has erroneously refused to entertain his petition for
reinstatement in that it has refused to recognize an automatic stay of the order of revocation pursuant to S.C. Code Ann. § 18-7-10 and Rule 225,
SCACR. However, S.C. Code Ann. § 40-1-160 (Supp. 1998), which was enacted as a part of Act 453 of 1996 and became law on June 20, 1996
(contrary to Petitioner's assertions that this section was not enacted until after the issuance of the Commission's Order of revocation), provides
that "service of a petition requesting a review [of a board or commission's decision] does not stay the board's decision pending completion of the
appellate process." A clear reading of this statute indicates that it applies to the entire appellate process and not just the appeal to the
Administrative Law Judge Division. Moreover, S.C. Code Ann. § 1-23-380(A)(2)(Supp. 1998), which is applicable to all administrative
proceedings, provides that a filing of a petition for judicial review "does not itself stay enforcement of the agency decision." Therefore, the
automatic stay provision in Section 18-7-10, which is not specific to administrative proceedings, is inapplicable. See Order of Judge Geathers in
S.C. Dep't of Labor, Licensing and Regulation, Real Estate Commission, v. James E. MacDonald, Docket No. 98-ALJ-11-0360-IJ (July 2, 1998).
Moreover, the general rule established in Rule 225, SCACR, as to automatic stays of orders appealed to the Supreme Court or Court of Appeals
does not apply where there is a statute to the contrary. See Rule 225(b), SCACR. Accordingly, Petitioner's contention is without merit. |
