ORDERS:
ORDER
STATEMENT OF THE CASE
On March 10, 1994, Robert Payne filed a complaint with the Contractors' Licensing Board
("Board") charging the Appellant Eldeco, Inc. ("Eldeco") with "poor workmanship, unsafe work,
and fraudulent work." A hearing on those charges was held by the Board pursuant to S.C. Code
Ann. § 40-11-250 (1986) on November 29, 1994. Pursuant to that hearing, the Board issued an
Order of Dismissal finding that Eldeco's "work was of low quality, borders on incompetence and
is of great concern to the Board." The Board's Order also issued a written warning and an
admonishment to the Appellant.
Eldeco filed a Notice of Appeal of that decision with the Administrative Law Judge Division on
May 1, 1995. Thereafter, Eldeco filed a Motion for Leave to Present Additional Evidence to the
Board pursuant to S.C. Code Ann. § 1-23-380 (Supp. 1995) requiring the Board to modify its
Order to include concise and explicit findings of fact as required by S.C. Code Ann. § 1-23-350
(1986). On June 30, 1995, this tribunal vacated the Board's Order and remanded the case to the
Board for the Board to make concise and explicit statements of the underlying facts supporting
the findings and conclusions in its Order.
On July 27, 1995, the Board issued a Revised Order of Dismissal. The Board's Revised Order
contained more explicit findings of fact, but the Order still set forth language reprimanding the
Appellant's workmanship though the case was dismissed. Specifically, the Board concluded that it
would have revoked Eldeco's license "but for the fact that the clients did not file a Complaint and
signed off on the project." The Board's Order again contained a written warning to the Appellant
that "the work performed by the [Appellant] is not of the quality that the citizens of South
Carolina have a right to expect of its contractors" and "admonished" the Appellant to take
necessary steps to insure that its future work is performed by "well trained and qualified workers."
DISCUSSION AND CONCLUSIONS OF LAW
The Administrative Law Judge Division's (Division) jurisdiction to hear this appeal is established
pursuant to S.C. Code Ann. § 40-11-350 (Supp. 1995). The standard of review for this case is set
forth in the Administrative Procedures Act ("APA"). S.C. Code Ann. § 1-23-380 (A)(6)(Supp.
1995). The Division may reverse or modify a decision of the Board if a substantial right of Eldeco
has been prejudiced because the Board's findings, inferences, conclusions, or decisions are in
violation of statutory provisions. S.C. Code Ann. § 1-23-380 (A)(6)(a)(Supp. 1995).
The Board's Authority to Reprimand
The Board is established and governed by statute. S.C. Code Ann. §§ 40-11-10 to 40-11350
(1986 & Supp. 1995). As a creature of statute, the Board possesses "only those powers that are
expressly conferred or necessarily implied for it to effectively fulfill the duties for which it is
charged." Captain's Quarters v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).
Furthermore, "enabling legislation is not merely precatory, but prescribes the parameters of
conferred authority." Bostic v. City of West Columbia, 268 S.C. 368, 234 S.E.2d 224 (1977). The
enabling statutes grant the Board statutory authority to revoke a contractor's license upon a
unanimous finding of guilt of gross negligence, incompetence, or misconduct. However, the
enabling statutes neither explicitly nor implicitly give the Board authority to issue a reprimand or
otherwise rebuke a contractor. Specifically, S.C. Code Ann. § 40-11-240 (1986) provides that:
The Board may revoke the bidder's or contractor's license of any general or mechanical
contractor licensed hereunder who is found guilty of . . . gross negligence, incompetence, or
misconduct in the practice of his profession.
Additionally, the statute authorizing the Board to conduct hearings and render decisions on
charges brought against contractors sets forth:
If after such hearing the Board unanimously votes in favor of finding the accused guilty of .
. . gross negligence, incompetence or misconduct in his practice, the Board shall revoke the
license of the accused.
S.C. Code Ann. § 40-11-250 (1986) (emphasis added).
The primary function of statutory interpretation is to ascertain the intention of the legislature.
Holley v. Mount Vernon Mills, Inc., 312 S.C. 320, 440 S.E.2d 373 (1994). Furthermore,
expressio unius est exclusio alterius is a legal maxim of statutory construction meaning "the
expression of one thing is the exclusion of another." Black's Law Dictionary 581 (6th ed. 1990).
The South Carolina courts use this maxim in construing the meaning of the legislature's intent.
Home Building & Loan Ass'n v. City of Spartanburg, 185 S.C. 313, 194 S.E. 139 (1936). In this
case, the enabling statutes specifically grant the Board the authority to revoke a Contractors
license but do not authorize any other sanction by the Board. The grant of only that authority
implies the exclusion of any other authorized sanction by the Board. That implication is further
confirmed by the legislature's specific grant of authority to other administrative boards and
commissions in South Carolina to sanction by reprimand.(1) Therefore, had the legislature
intended to confer upon the Board the authority to reprimand a licensee, the legislature could
have simply included such authority in the Board's enabling statutes as it has done with other
administrative boards and commissions.
Moreover, the legislature recently revised the statute that governs the Board's authority to
discipline a contractor, but chose not to expand the Board's disciplinary powers beyond revoking
the contractor's license upon a unanimous finding of guilt. Compare S.C. Code Ann. § 40-11-240
(1986) with S.C. Code Ann. § 40-11-240 (Supp. 1995). In Berkebile v. Outen, 311 S.C. 50, 426
S.E.2d 760 (1993) the Supreme Court held that "[a] presumption exist that the legislature has
knowledge of previous legislation when later statutes are passed on a related subject."
Implication of Board's Dismissal
A cardinal rule of statutory construction is that words used in a statute should be given their plain
and ordinary meaning. Multimedia Inc. v. Greenville Airport Commission, 287 S.C. 521, 339
S.E.2d 884 (Ct. App. 1986). When the terms of a statute are plain and unambiguous, the courts
must apply those terms according to their literal meaning. Holley, supra. In the present case, the
language of the statute is plain and unambiguous. The statute allows the Board to discipline a
contractor only upon a unanimous finding of guilt of gross negligence, incompetence, or
misconduct. S.C. Code Ann. § 40-11-250 (1986). In this case the Board dismissed the complaint
for lack of sufficient evidence of incompetence on the part of Eldeco. The Order constitutes a
reprimand against Eldeco without a finding of guilt. Therefore, even assuming the Board is
authorized to issue a reprimand, the Board failed to reach a unanimous finding of guilt of gross
negligence, incompetence, or misconduct which is a requisite to issuing a reprimand against
Eldeco.
ORDER
After reviewing the entire record and considering the arguments of the parties, I find that the
Revised Decision of the Contractors' Licensing Board should be modified.
IT IS THEREFORE ORDERED that the language in the Board's Revised Order reprimanding
Eldeco is void. Accordingly, the Finding of Facts and Conclusions of Law in the Board's Order
shall be strickened to the extent it sets forth any evidence or language supporting a reprimand or
reprimanding the Petitioner. The remainder of the Board's Order is affirmed.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
March 21, 1996
Columbia, South Carolina
_________________
Fn. 1. E g, S.C. Code Ann. § 40-3-120 (Supp. 1995) ("If a majority of the [Board of
Architectural Examiners] is satisfied that the registrant is guilty of any offense . . . provided for in
this chapter, it shall revoke, suspend, reprimand, or otherwise take any other reasonable action
short of revocation or suspension ....") (emphasis added); S.C. Code Ann. § 40-15-200 (Supp.
1995) ("If the [State Board of Dentistry] is satisfied that the dentist . . . is guilty of any offense . .
. provided for in this chapter, it may revoke or suspend the license . . ., reprimand the dentist . . .
either publicly or privately, or take any other reasonable action short of revocation or suspension
....") (emphasis added); S.C. Code Ann. § 40-19-160 (Supp 1995) (If the [South Carolina State
Board of Funeral Service] is satisfied that the licensee is guilty of any offense . . . provided for in
this chapter, it shall revoke, suspend, reprimand, or otherwise take any reasonable action short of
revocation or suspension ....") (emphasis added); S.C. Code Ann. § 40-22-400(3) (Supp. 1995)
("If a majority of the [South Carolina State Board of Registration for Professional Engineers and
Land Surveyors] sustains the charges against the registrant, the board may . . . reprimand,
suspend, refuse to renew, or revoke the registrant's certificate") (emphasis added); S.C. Code
Ann. § 40-23-125 (Supp. 1995) ("The [South Carolina Environmental Certification Board] may
revoke, suspend, . . . or reprimand or otherwise discipline him when it is established that the
certificate holder is guilty of misconduct as defined in this section.") (emphasis added); S.C. Code
Ann. § 40-33-930 (Supp. 1995) ("The [State Board of Nursing for South Carolina] . . . may order
the revocation or suspension of a license to practice nursing . . . or privately reprimand the [nurse]
or take other reasonable action short of revocation or suspension . . . .") (emphasis added); S.C.
Code Ann. § 40-35-133 (Supp. 1995) (stating the South Carolina Board of Long Term Health
Care Administrators may, among other things, "issue a public or private reprimand" against a
licensee) (emphasis added); S.C. Code Ann. § 40-37-230 (Supp. 1995) ("If the [South Carolina
Board of Examiners in Optometry] shall be satisfied that the optometrist is guilty of any offense . .
. provided for in this chapter, it shall thereupon revoke, suspend, reprimand or otherwise take any
other reasonable action short of revocation or suspension ....") (emphasis added). |
