SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is an appeal by Thomas R. King (Appellant) of a decision of the South Carolina Board of Architectural Examiners (Board) in which the Board indefinitely suspended Appellant with a right to re-apply for licensure after one year subject to his compliance with several conditions. ⁽¹⁾ Counsel for both parties presented oral arguments at the Administrative Law Judge Division (ALJD) on June 18, 2002.

BACKGROUND

The Appellant is an architect licensed to practice in South Carolina since 1989. As a result of his alleged involvement with two separate projects during the years 1997 and 1999, a complaint was filed against the Appellant. Subsequently, the Board conducted an investigation of Appellant's conduct.

After originally filing a Notice of Charges against the Appellant in October 1999, in which the Board alleged violations of several provisions of the South Carolina Code, including §§ 40-3-90, 40-3-110, and 40-3-120 (Supp. 1998) and 23 S.C. Code Regs. 11-13 (Supp. 1998), a contested case hearing was conducted on March 21, 2000. In the Final Order that is the subject of this appeal, the Board found that the Appellant committed a dishonorable, unethical, or unprofessional act that is likely to deceive, defraud, or harm the public; the Appellant lacks the professional or ethical competence to practice the profession of architecture; the Appellant failed to act with reasonable care and competence, and did not apply the technical knowledge and skill which is ordinarily applied by architects in good standing in South Carolina; the Appellant knowingly failed to take into account all applicable state and municipal building laws and regulations; and the Appellant undertook to perform professional services which he was not qualified by education, training, and experience to perform. As a result of its conclusions, the Board imposed an indefinite suspension on Appellant with a right to reapply for licensure after the passage of one year, the payment of costs, and upon completion of several education courses. Appellant appeals the Board's decision on a number of grounds.

JURISDICTION AND SCOPE OF REVIEW

Jurisdiction on appeal from a decision of a Commission within the Department of Labor, Licensing and Regulation is vested in the Division pursuant to S.C. Code Ann. § 1-23-600(D) (Supp. 2001). On appeal to the Division, the standard of review is limited to the record presented. S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2001). An appeal before the Division is governed by the review criteria of S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2001). Section 1-23-380(A0(6) establishes the following criteria:

The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

In this case, Appellant argues that a reversal of the Board's decision is required under (c),(d), (e), (f).

ANALYSIS

The standard an administrative body must satisfy in issuing its decision is now well established. "An administrative body must make findings which are sufficiently detailed to enable this Court to determine whether the findings are supported by the evidence and whether the law has been applied properly to those findings." Porter v. S.C. Public Serv. Comm'n, 333 S.C. 12, 507 S.E.2d 328 (1998). This tribunal will not accept an administrative agency's decision at face value without requiring the agency to explain its reasoning. Id.

Under this standard, an administrative decision is unacceptable if it states the outcome (suspension, etc.) without explaining the reasoning that leads to the outcome. An adjudicative body fails to explain its reasoning when the decision does not spell out how the conclusions reached were arrived at from the facts determined. Ruggero J. Aldisert, The Judicial Process 626-57 (1976). Thus, an adequate order will have at least three elements. The elements (not necessarily listed in the order in which they will appear in the decision) are a determination of the facts, a determination of the conclusions drawn from those facts, and third, (and most importantly) an explanation of how and why the determined facts led to the conclusions reached.

The fact finding element of an order requires that the trial adjudicator be mindful of the difference between material facts that are disputed and material facts that are undisputed. If a material fact is disputed, the Board must decide the factual dispute in a direct and unambiguous manner. Able Communications, Inc. v. S.C. Public Serv. Comm'n, 290 S.C. 409, 411, 351 S.E.2d 151, 152 (1986). Further, for material, disputed facts, the agency must present some rationale as to how it decided the disputed fact. Porter v. S.C. Public Serv. Comm'n, 333 S.C. 12, 507 S.E.2d 328 (1998).

Moreover, the evidence the adjudicative body relies upon must constitute substantial evidence. 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).

With respect to the charges arising out of the Florence Mini-Mall Project (Mini-Mall Project), I find that the Board's decision is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. With respect to the charges arising out of the Sawney's Creek Baptist Church Project (Church Project), I find that the Board's Order did not address certain evidence and failed to identify with specificity the conduct of the Appellant it deems violative of a specific statute or regulation, as well as the reason therefor. As such, the Board's Order is reversed in part and vacated in part, with the Church Project issue remanded for further consideration consistent with the explanation below.

• Church Project

I find that the Boards' Order on Remand fails to satisfy the Porter standard because it fails to provide any nexus between its findings of fact and its conclusions of law, requiring this tribunal to make certain assumptions and leaps in logic to reach the Board's conclusions. For example, Appellant was found to have violated S.C. Code Ann.§ 40-1-110(1)(f) & (g); and S.C. Code Regs. 11-15(E)(1), (2), & (3). ⁽²⁾ However, the Board made no attempt to identify the specific conduct that violated a particular statute or regulation. This is particularly necessary in a case such as this because two separate projects, each with its own set of facts, are involved, the findings as to one of which are reversed.

Moreover, the Board failed to address Appellant's testimony regarding David Preston's involvement with the Church project. Instead, the Board's Order considered only the diametrically opposed testimony of Mr. Preston and Ms. Kinney, whose testimony the Board believed to be inconsistent with her affidavit. Although the Board apparently found the testimony of Mr. Preston to be more credible than the testimony of Ms. Kinney ⁽³⁾, the Board made no such finding with respect to the Appellant's testimony regarding Mr. Preston's involvement with the church project.

Therefore, the matter of the Sawney's Creek Church project is REMANDED to the Board so that the Board may identify the specific conduct it finds violates applicable statutes and regulations, and so that the Board may address Appellant's testimony with regard to Mr. Preston's involvement with the church project.

• Mini-Mall Project

I find that the Board's determination that the Appellant "knowingly permitted persons or individuals not under his control to submit plans containing his signature and architectural seal to the Florence County Planning and Building Inspection Department for permitting purposes" and that Appellant's "participation in this scheme constitutes a violation of the Board's Practice Act" is clearly erroneous in light of the substantial evidence in the Record. No evidence exists in the Record that the Appellant knew that plans containing his seal and signature had been submitted to the County Planning Board. Rather, the Record shows that Appellant provided a preliminary elevation to Hardee Construction at its request; that several months to a year later, Hardee Construction asked Appellant to be its Architect-in-Charge on a mini-mall project; that the Board was aware that Appellant did not submit the drawings to the County Planning Board; and that Appellant's signature and the signature appearing on the mini-mall plans were not the same. In its Order on Remand, the Board relies at least in part on correspondence received by Appellant from Florence County as evidence that the Appellant knew his seal and signature had been submitted with the mini-mall plans. However, a review of the Florence County correspondence does not support such an inference in that it never refers to plans prepared by Appellant. Moreover, the letters are reminders to "owners, designers, contractors, and their representatives," and as such, would not serve to alert Appellant, who admittedly was serving as the project's Architect-in-Charge, that the plans had been submitted with his signature and seal. As such, the Board's findings with regard to the mini-mall project are REVERSED. In addition, all conclusions of law based upon such facts are likewise REVERSED. ⁽⁴⁾ Further, the Board shall re-assess Appellant's penalty, if any, without taking into account the Mini-Mall Project.

AND IT IS SO ORDERED.

____________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

June 25, 2002

Columbia, South Carolina

1. This matter originally came to the Division in February 2001 after King appealed a final decision of the Board dated January 9, 2001. On August 21, 2001, the Honorable Ray N. Stevens issued an Order of Remand, in which he required the Board, among other things, to provide the rationale for its conclusions. See Thomas R. King v. S.C. Dept. of Labor, Licensing & Regulation, Board of Architectural Examiners, Docket No.: 01-ALJ-11-0091. Subsequently, the Board issued the final order that is the subject of this appeal.

2. The parties differ regarding the validity of charges based on alleged violations of S.C. Code Regs. 11-15. Appellant argues that the repeal of 11-15 prior to the issuance of the Notice of Charges prevents Respondent from charging Appellant with any violations of that regulation. On the other hand, in its Order on Remand, Respondent asserts that, even if S.C. Code Regs. 11-15 "were removed from the picture, the [Appellant's] acts would still constitute violations of the law... ." Because the case is reversed in part and remanded in part, I find no need to decide whether S.C. Code Regs. 11-15 was properly cited in this case.

3. It must be noted that the Board's favoring of Mr. Preston's testimony over Ms. Kinney's testimony in its Order on Remand is not altogether clear. See Order on Remand, In the matter of: Thomas R. King, Reg. No. : 4025 (Bd. of Archit. Examiners, November 1, 2001), pg. 2, ¶ 6.

4. As previously noted, the Board's Order does not specify which conclusions of law are based on its findings with regard to the Mini-Mall Project and which are based on its findings with regard to the Church Project, another reason why a remand is necessary.