ORDERS:
FINAL ORDER
AFFIRMED
This is an appeal of Respondent's November 22, 2000 Order and December 14, 2000 Supplemental Order, which denied
Appellant's application for a license to engage in the business of selling manufactured homes as a manufactured home
retail salesperson in South Carolina. Counsel presented oral argument on September 5, 2001.
I. FACTUAL BACKGROUND
On June 12, 1997, the Appellant applied for a license to be able to work as a salesperson of manufactured homes. On July
1, 1997, a license was issued to the Appellant and that license expired on June 30, 1998. His license was not renewed at
that time. On October 9, 2000, Appellant applied to take the examination to obtain a license as a retail salesperson for
manufactured homes. On October 13, 2000, Appellant was sent a letter denying his application for examination based on
seven breach of trust convictions found during a criminal records check submitted with the application. In addition, the
letter states that appellant violated S.C. Code Ann. §40-29-100 and §40-29-150 (2001) because he engaged illegally in the
license classification. Appellant appealed to the Manufactured Housing Board and was heard before them on November 14,
2001. At the time of the hearing, there was also an allegation brought forward that the Appellant had falsified his 1997
license application.
The Board determined in its Final Order that the Appellant had been convicted of seven counts of breach of trust on or
about January 17, 1997 and November 5, 1997. Six of the seven convictions were felonies and involved money received in
the course of manufactured home sales when he was previously licensed. They also found that his June 12, 1997,
application for his previous license was falsified in that he denied ever having been convicted of a felony or crime of moral
turpitude. Also, the Board found it had been established that the Applicant had been working as a general manager at a
manufactured home sales site without being licensed. They found he had been paid a salary and earned a percentage of
profits from completed sales. He also admitted that he signed purchase agreements.
The Appellant sought reconsideration of that order on the basis that he had no notice that the falsification of his 1997
application would be a ground for the denial. Nevertheless, on December 14, 2000, the Board issued a Supplemental Order
denying Reconsideration or Rehearing. The Supplemental Order found that even if that ground was improperly before the
Board, the other grounds would have been sufficient for denial.
II. STANDARD OF REVIEW
Jurisdiction on appeal is vested in the Administrative Law Judge Division pursuant to the Administrative Procedures Act
(APA), specifically S.C. Code Ann. §§ 1-23-600(D) (Supp. 2000) and S.C. Code Ann. 40-1-160 (2001). On appeal to the
Division, the standard of review is limited to the record presented. An Administrative Law Judge may not substitute her
judgment for that of the agency unless the agency's determination is affected by error of law or is 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. 2000);
Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). A decision is supported by "substantial evidence" when the
record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western
Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App. 1984). The well-settled case law in this state has also
interpreted the rule to mean that a decision will not be set aside simply because reasonable minds may differ on the
judgment. Lark supra. 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); Grant
v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995); Palmetto Alliance, Inc. v. South Carolina Public
Service Comm'n, 282 S.C. 430, 319 S.E.2d 695 (1984).
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), citing Kearse v. State Health and Human Finance
Comm'n, 318 S.C. 198, 456 S.E.2d 892 (1995). Furthermore, the reviewing court is prohibited from substituting its
judgment for that of the agency as to the weight of the evidence on questions of fact. Grant, supra citing Gibson v.
Florence Country Club, 282 S.C. 384, 318 S.E.2d 365 (1984). Finally, the party challenging an agency action has the
burden of proving convincingly that the agency's decision is unsupported by substantial evidence. Waters, (citing Hamm v.
AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994)).
III. STATEMENT OF ISSUES ON APPEAL
A. Is the decision of the Board supported by reliable, probative, and substantial evidence?
B. Was the Manufactured Housing Board acting within its discretion in denying Appellant's application?
C. Should the Board have considered evidence related to information from Appellant's 1997 license application?
IV. ANALYSIS
A. Is the decision of the Board supported by reliable, probative, and substantial evidence?
The Administrative Law Judge Division must abstain from overturning an agency's decision unless it is affected by errors
of law or is clearly erroneous in light of the reliable, probative, and substantial evidence on the record. Grant v. S.C.
Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995). If reasonable minds can draw two inconsistent conclusions, the
administrative agency's decision can still be supported by substantial evidence. Ellis v. Spartan Mills, 276 S.C. 216, 277
S.E.2d 590 (1981). To be disturbed, the findings of the agency must be arbitrary and capricious as a matter of law. Welch
v. Public Service Commission, 301 S.C. 259, 391 S.E.2d 556 (1990).
In the present case, I find that the action of the agency in denying the Appellant the opportunity to sit for the examination
was supported by substantial evidence. The Board found that the Appellant had been convicted seven times in 1997 for
breach of trust with fraudulent intent. This finding was supported by evidence from the criminal background check
submitted by the Appellant with his application. S.C. Code Ann. §40-29-100 (2000) sets out the requirements for a person
seeking a license. Paragraph G of §40-29-100 states, "The Board may deny a license to an applicant meeting the
requirements of this chapter if the applicant has been convicted in a court of competent jurisdiction of a felony or an
offense involving moral turpitude." Certainly a denial because of a finding by substantial evidence of seven such
convictions during a year the Appellant was previously license is reasonable.
Similarly, the Board had documents before it showing that the Appellant had signed purchase agreements, promise sheets
and assigned loans. Also, Appellant admitted to doing these actions during his testimony to the Board. He testified he
arranged financing for customers through the finance companies. There is substantial evidence that Appellant acted as a
manufactured home salesperson while he was not licensed to do so.
B. Was the Manufactured Housing Board acting within its discretion in denying Appellant's application?
The Board's discretion whether to allow someone to become licensed is found in S.C. Code Ann. §40-1-130 (2000) where
it states, "The applicant shall demonstrate to the satisfaction of the board that the applicant meets all the requirements for
the issuance of a license." It is wholly reasonable for this Board to have found that a person who has seven convictions for
crimes of moral turpitude, some of which were felonies, has not demonstrated that he meets those requirements. The
Appellant challenges this finding because he claims he has overcome a gambling addiction which led to the convictions,
and that because of his change, he is now fit for a license. Nevertheless, I find that the decision by the Board had a rational
basis and that failing to grant a license based on the changes made in his life did not make the decision arbitrary and
capricious.
Further, it is well settled law in South Carolina that an administrative agency's construction of its statutes will generally be
respected. "The construction of a statute by the agency charged with its administration will be accorded the most respectful
consideration and will not be overruled absent compelling reasons." Dunton v. South Carolina Board of Examiners in
Optometry, 291 S.C. 221, 353 S.E.2d 132 (1987). S.C. Code Ann. § 40-29-150 (Supp. 2001) allows the Board to deny a
license to a person "failing to obtain a license before doing business in this State." There is no question that the Appellant
was not licensed at any time since June 30, 1998. However, the question becomes was he acting as a manufactured home
retail salesman. S.C. Code Ann.§40-29-20 (15) is the statute in question. The statute in defining "manufactured home retail
salesman" states that it means
a person who is an employee or otherwise acts as an agent or representative of a manufactured home retail dealer and holds
himself out as promoting, offering for sale, or selling the manufactured home retail dealer's goods or services.
The terms "promoting", "offering for sale", and "selling" are not defined anywhere in the statute. The Board found,
primarily from Appellant's testimony, that he signed purchase agreements, signed promise sheets, and assigned loans for
the dealership. The Board also found that for Appellant's work he received a salary and a percentage of the gross profits of
the two businesses. I find that the Board was within its discretion in determining that these actions constituted holding
himself out as promoting, offering for sale or selling a manufactured home. I find that the Board's interpretation of the
statute is reasonable.
C. Should the Board have considered evidence related to information from Appellant's 1997 license application?
The Appellant contends that because he had no notice that a falsification of his 1997 license application would be
discussed, he was unable to prepare his case adequately. However, the Board found in its supplemental order that the
evidence of falsification was of no consequence in the denial because the other evidence presented gave them sufficient
reason to deny his application. I agree. There is substantial evidence as to the other issues which would allow the Board to
decide as they did.
IV. ORDER
The denial of Appellant's application to become a manufactured home retail salesperson was supported by substantial
evidence and did not constitute an abuse of discretion. Therefore, the decision of the Manufactured Housing Board is
AFFIRMED.
IT IS SO ORDERED.
CAROLYN C. MATTHEWS
Administrative Law Judge
October 16, 2001
Columbia, South Carolina
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