ORDERS:
ORDER
This is an appeal from a February 1, 1996 Order of the Contractor Licensing Board ("Board" or
"Respondent"). After a contested case hearing, the Board found a violation by G.M.I.
Enterprises, Inc. ("G.M.I." or "Appellant") of S.C. Code Ann. § 40-11-240 (Supp. 1995) for
incompetence, and revoked G.M.I.'s two contractor's licenses. G.M.I. appeals to the
Administrative Law Judge Division ("ALJD") on several grounds. Upon consideration of the
briefs and oral arguments and review of the applicable law, the decision of the Board is affirmed.
STATEMENT OF THE CASE
On September 23, 1994, Pamela Dobbs filed a complaint with the Board charging G.M.I. with
incompetence, alleging substandard work performed by G.M.I. in connection with construction
additions and renovations to Dobbs' home. A hearing on the charges was held by the Board
pursuant to S.C. Code Ann. § 40-11-250 (1986) on January 25, 1996. The Board issued an
Order dated February 1, 1996, concluding that G.M.I. violated the provisions of S.C. Code Ann.
§ 40-11-240 (Supp. 1995), and ordering license revocation, upon finding:
The work performed by [G.M.I.] contained numerous and widespread deficiencies. All of
the walls constructed by [G.M.I.] are 1" to 1 ½" out of plumb. The concrete garage slab
built by [G.M.I.] is 3" out of square. The concrete garage slab is only 2" thick, an
insufficient thickness. [G.M.I.'s] work is not plumb or square.
On February 15, 1996, G.M.I. appealed the Board's decision to the Administrative Law Judge
Division, citing the following grounds for appeal:
1. The Board's decision is against the manifest weight of the evidence presented.
2. The on-record discussions and comments of the Board's Chairman demonstrate prejudice
to G.M.I. and/or G.M.I.'s counsel in this matter.
3. Evidence promised to G.M.I. by the State was never provided.
4. The sanction imposed by the Board is excessive in light of G.M.I.'s more than twenty
year history as a residential and/or commercial contractor without complaint.
An appellate hearing was conducted pursuant to S.C. Code Ann. § 40-11-350 (Supp. 1995) at
the ALJD on June 26, 1996, at which counsel presented oral arguments. 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). An ALJ may reverse or modify a decision of the Board if a
substantial right 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).
CONCLUSIONS OF LAW AND DISCUSSION
Substantial evidence standard of review
The Administrative Procedures Act establishes the substantial evidence rule as the standard for
judicial review of decisions of the Board. S.C. Code Ann. §§ 1-23-380(B) and 1-23-380(A)(6)(e)
(Supp 1995). The rule establishes that the Board's factual findings cannot be dismissed if
supported by substantial evidence. Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).
Substantial evidence is not a mere scintilla of evidence nor the evidence viewed blindly from one
side of the case, but is evidence which, considering the record as a whole, would allow reasonable
minds to reach the conclusion that the administrative agency reached or must have reached in
order to justify its action. McGuffin v. Schlumberger-Sangamo, 307 S.C. 184, 414 S.E.2d 162
(1992). It is not the role of this Court to substitute its judgment for that of the Board unless the
Board's decision is affected by error of law or clearly erroneous in light of the reliable, probative,
and substantial evidence in the record. State ex rel. Medlock v. S.C. Coastal Council, 289 S.C.
445, 346 S.E.2d 716 (1986). The possibility of drawing two inconsistent conclusions from
evidence does not prevent an administrative agency's finding from being supported by substantial
evidence. Lark v. Bi-Lo, supra.
The record contains substantial evidence to support the Board's findings. The specific findings
cited by the Board as the basis for Appellant's incompetence come directly from the testimony of
Raymond L. Thompson (Transcript, pp. 55-58), a licensed contractor who inspected the work
site. In summary, Mr. Thompson called the quality of work, "... absolutely the worst I've seen in
the last twenty-five years ... nothing's plumb, nothing's square, nothing's level." (Transcript, p.
55). For the most part, G.M.I.'s defense to the charges amounted to offering explanation or
mitigating reasons for the work deficiencies rather than denying the allegations (Transcript, pp.
63, 65-67).
Board chairman's conduct at hearing
Appellant asserts that the Board's chairman was biased against Appellant and/or Appellant's
counsel, as evidenced by several comments and questions from the chairman during the contested
case hearing and that his bias prejudiced the outcome of the case. G.M.I. specifically cites
excerpts from the transcript at pages 41-42, 47-48, and 91-100, as examples of the chairman's
prejudice. In its brief and during oral arguments before this tribunal, Appellant claims the Board's
chairman also made off the record comments which further evidenced his prejudice against G.M.I.
"Conduct of a trial, including admission and rejection of testimony, is largely within the trial
judge's sound discretion, the exercise of which will not be disturbed on appeal unless appellant can
show abuse of such discretion, commission of legal error in its exercise, and resulting prejudice to
appellant's rights." American Federal Bank v. Number One Main Joint Venture, ___ S.C. ___,
467 S.E.2d 439, 442 (1996). The trial judge has broad discretion in determining the general
range and extent of cross examination in order to limit inquiry to facts relevant to the issues in
controversy, and that discretion must not be disturbed except in cases of manifest abuse or
injustice. State v. Swilling, 249 S.C. 541, 155 S.E.2d 607 (1967).
Mere allegation of prejudice is not sufficient. Adverse rulings, even if erroneous, are not adequate
to prove bias or prejudice. The record must clearly show prejudice, bias, capricious disbelief or
prejudgment. Roper v. Dynamique Concepts, Inc., 316 S.C. 131, 447 S.E.2d 218 (Ct. App.
1994); Reading v. Ball, 291 S.C. 492, 354 S.E.2d 397 (Ct. App. 1987); Butler v. Sea Pines
Plantation Co., 282 S.C. 113, 317 S.E.2d 464 (Ct. App. 1984). Additionally, "The alleged bias
must stem from an extrajudicial source and result in a decision based on information other than
what the judge learned from his participation in the case." Roper, supra, at p.222; Reading,
supra, at 398.
Appellant's claims of prejudice or bias are unsupported by the record. While the chairman's
demeanor may have been brusque and impatient, nothing in the record suggests the Board's
decision was based upon anything but the evidence presented.
Prehearing exchange of evidence
At the contested case hearing, the State presented video tape evidence of the alleged violations
against Appellant, which was admitted over Appellant's objection. Appellant objected to the
admission of the tape on the basis that the tape was not provided to Appellant's counsel, as
requested, prior to the hearing. While a tribunal's discretionary authority to order discovery in
APA cases was recognized by the South Carolina Supreme Court in Ross v. Medical University
of South Carolina, ___ S.C. ___, 453 S.E.2d 880 (1994), APA litigants are generally entitled as a
matter of right to only very limited discovery.(1) The only discovery specifically statutorily
authorized in contested cases is by deposition. S.C. Code Ann. § 1-23-320(c) (Supp. 1995).
Nothing in the APA or the Board's enabling legislation or regulations mandates any other
pre-hearing exchange of evidence.
Appellant did not make a formal request to the Board to allow expanded discovery in this case
nor did it specifically ask the Board to order disclosure of the video tape prior to the hearing. S.C.
Code Ann. § 1-23-320(d) provides that "the agency hearing a contested case may issue in the
name of the agency subpoenas for the attendance and testimony of witnesses and the production
and examination of books, papers, and records on its own behalf or, upon request, on behalf of
any other party to the case." The Board has the authority to order discovery in contested cases;
however, the refusal to do so is not error unless the Board's action is arbitrary, capricious or an
abuse of discretion. The Board did not abuse its discretion, nor act arbitrarily or capriciously in
admitting the video tape over Appellant's objection. Not until the video tape was offered at the
hearing did Appellant raise the issue to the Board of not being permitted to preview the video.
Additionally, there is no evidence that Appellant's basic due process rights were violated or that
the contents of the tape created unfair prejudice.
Sanction imposed
Respondent submits that upon finding Appellant guilty of incompetence under S.C. Code Ann. §
40-11-250, the only sanction available is license revocation. G.M.I. argues that the Board's
penalty options are not limited to revocation and asserts that even if the violations alleged were
proven, a penalty of revocation is unduly harsh. Appellant claims the Board failed to consider
compelling evidence of G.M.I.'s more than twenty years of complaint-free history as a licensed
contractor.
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 Board's authority to impose
administrative penalties and the range of sanctions available to the Board are collectively, if
inconsistently, set forth in Chapter 11 of the S.C. Code Ann., at §§ 40-11-240 (1986),
40-11-250 (1986), and 40-11-350 (Supp. 1995). It is not readily apparent whether, upon a
finding of a violation, the Board's revocation authority is mandatory or discretionary, and if
discretionary, what other sanctions are available.
S.C. Code Ann. § 40-11-240 (1986) provides:
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. (emphasis added)
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 latest legislative amendment to Chapter 11, Title 40, occurred with the enactment of 1993
Act No. 181, § 875, codified as S.C. Code Ann. § 40-11-350 (Supp. 1995). That statute
provides, inter alia:
A decision by the board to revoke, suspend, or otherwise restrict a license or limit or
otherwise discipline a licensee or one who is found practicing as a contractor in
noncompliance with this chapter shall not become effective until the tenth day following the
date of delivery to the licensee of a written copy of the decision.
The primary function of statutory interpretation is to ascertain the intention of the legislature. It is
a cardinal rule to give words used in a statute 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 and not resort to subtle or forced construction in an attempt to limit or expand the
scope of a statute. Holley v. Mount Vernon Mills, Inc., 312 S.C. 320, 440 S.E.2d 373 (1994);
First Baptist Church of Mauldin v. City of Mauldin, 308 S.C. 226, 417 S.E.2d 592 (1992).
Any revisions to the clear meaning of a statute must come from the General Assembly. Berkebile
v. Outen, 311 S.C. 50, 426 S.E.2d 760 ( 1993). There is a presumption that the legislature
intended to accomplish something with a statute rather than to engage in a futile exercise. See
State ex rel. McLeod v. Montgomery, 244 S.C. 308, 136 S.E.2d 778 (1964); Gaffney v. Mallory,
186 S.C. 337, 195 S.E. 840 (1938); Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30 (1935). It
is also presumed that the legislature has knowledge of previous legislation when later statutes are
passed on a related subject. Bell v. South Carolina State Highway Dept., 204 S.C. 462, 30
S.E.2d 65 (1944). When faced with interpretation of competing statutes, courts must either
repeal by implication one of the statutes or construe them both in such a manner that each can
stand. Repeal by implication is disfavored and requires a showing of plain and irreconcilable
conflict between the two competing statutes. If the two provisions can be construed so that both
can stand, a court shall so construe them. Mims v. Alston, 312 S.C. 311, 440 S.E.2d 357 (1994);
City of Rock Hill v. South Carolina DHEC, 302 S.C. 161, 394 S.E.2d 327 (1990); In the Interest
of Shaw, 274 S.C. 534, 265 S.E.2d 522 (1980); Strickland v. State, 276 S.C. 17, 274 S.E.2d 430
(1981); Pearson v. Mills Manufacturing Co., 82 S.C. 506, 509, 64 S.E. 407, 409 (1909). Further,
statutes of a specific nature are not to be considered as repealed in whole or in part by later
general statutes unless there is a direct reference to the former statute or the intent of the
legislature to repeal is explicitly implied therein. City of Rock Hill v. South Carolina Dept. of
Health and Environmental Control, supra.; See also Sharpe v. South Carolina Department of
Mental Health, 281 S.C. 242, 315 S.E.2d 112 (1984).
Using the various rules of statutory construction cited above, this court is inclined to conclude
that §§ 40-11-240 (1986), 40-11-250 (1986), and 40-11-350 (Supp. 1995) can and should be
harmoniously construed. Prior to the enactment of § 40-11-350 in 1993, the only sanction
referenced in Chapter 11 was revocation, in §§ 40-11-240 (1986) and 40-11-250. As pointed
out above, however, one statute states that the Board "may revoke" while the other says "shall
revoke". The adoption of § 40-11-350 actually helps solve this obvious conflict, recognizing the
Board's authority to elect alternative penalties to revocation, such as suspension or license
restriction.
If the Board imposed revocation without consideration of any other penalty because it believed, as
a matter of law, that revocation is the exclusive sanction authorized in this instance, Appellant
may have a legitimate basis for remand to the Board for reconsideration of the penalty assessed.
Respondent posits that "... the only sanction afforded by the statute is license revocation"
(Respondent's brief, p. 8.). The record, however, does not indicate that the Board necessarily
considered revocation as the exclusive sanction allowed. While the Board did not discuss in
public session or address in its Order other sanction options, it appears the Board imposed
revocation after a reasoned analysis of the facts of the case. Its Order states:
The sanction imposed is consistent with the purpose of these proceedings and has been
made after weighing the public interest and the need for the continued services of qualified
contractors against the countervailing concern that society be protected from professional
ineptitude and misconduct.
Revocation was the only sanction ordered. Whether mandatory or discretionary, license
revocation is clearly a permissible penalty to be imposed for a contractor's incompetence. In that
sense it is distinguishable from an earlier decision of an administrative law judge cited by
Respondent in oral arguments.(2) License revocation can not be said to be unduly harsh if it is
within the Board's authority to impose. South Carolina Bd. of Examiners in Optometry v. Cohen,
256 S.C. 13, 180 S.E.2d 650 (1971). An administrative tribunal's imposition of a particular
penalty is justified, and not an abuse of discretion, if it is within the sanctions available for the
misconduct found. A showing of any misconduct listed in §§ 40-11-240 or 40-11-250 may
result in license revocation. If the basis for the finding of a violation is supported by substantial
evidence, there is no abuse of discretion in the imposition of license revocation. Gale v. State
Bd.. of Medical Examiners of South Carolina, 282 S.C. 474, 320 S.E.2d 35 (Ct. App. 1984).
The exercise of judicial discretion implies conscientious judgment directed by the reason and
conscience of the judge, not arbitrary action, to a reach a just result taking into account the law
and particular circumstances of the case. The authority to review the findings of and punishment
imposed by in the Board's order is confined to the correction of errors of law. It is not the role of
this Court to substitute its judgment for that of the Board unless it appears that the Board's action
was influenced or controlled by some erroneous view of the law, or was without substantial
evidence to support it, or amounted to a manifest abuse of discretion, the Board's action is final.
State v. White, 218 S.C. 130, 61 S.E.2d 754 ( 1950). The Board did not exceed its authority or
abuse its discretion in revoking Appellant's licenses.
ORDER
For the foregoing reasons, the February 1, 1996 Order of the Contractors' Licensing Board in this
matter is affirmed.
AND IT IS SO ORDERED.
_________________________________
STEPHEN P. BATES
Administrative Law Judge
September 11, 1996
Columbia, South Carolina
_________________
Fn. 1. Some agencies, through specific statute, regulation, or rule, may authorize broader
discovery (e.g., the Administrative Law Judge Division affords contested case litigants the
opportunity to engage in discovery conducted generally pursuant to the SCRCP. ALJD Rule 21).
Fn. 2. In Eldeco, Inc. v. South Carolina Department of Labor, Licensing, and Regulation, Office
of the Contractors' Licencing Board, 95-ALJ-11-0304-AP, (Order dated March 21, 1996), Judge
Ralph K. Anderson, III, held that the because the Board did not reach a unanimous finding of a
license violation, its reprimand of the licensee was impermissible. |
