ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me on an appeal pursuant to S.C. Code Ann. §§ 1-23-600 and 40-
57-220 (Supp. 1995) by Carolyn S. Bair of the decision of the Real Estate Commission
(Commission) to revoke her real estate brokers license. After notice to the parties, a hearing on
this matter was conducted on December 16, 1996. For the following reasons, the judgement of
the Real Estate Commission is AFFIRMED.
Any issues raised in the proceedings or hearing of this case but not addressed in this Order are
deemed denied. ALJD Rule 29(B).
FACTS
Appellant Carolyn S. Bair is a licensed real estate broker and acts as broker-in-charge of her own
company located on Hilton Head Island. Ms. Bair entered into a management agreement with
Mr. Philip M. Urick for rental property located at 1003 Tanglewood, Hilton Head, South
Carolina. On or about May 13, 1995, Ms. Bair solicited the services of Dean's Heating and Air
Conditioning, Inc. (Dean's) to repair the air handling unit at Mr. Urick's Tanglewood property, to
address the concern of a tenant that the air conditioning unit was not working. Dean's performed
work on the unit and submitted an invoice in the amount of $1500 for the work performed. The
following day, the tenant again informed Ms. Bair that the unit was not functional. Dean's was
contacted and was unavailable to perform additional work at that time. Ms. Bair then contacted
her regular maintenance company, Hilton Head Heating and Air, which completed the necessary
repairs and charged $77.29. Ms. Bair refused to pay Dean's, but charged Mr. Urick's account for
the $1500 invoiced amount. When the invoice remained unpaid, Dean's referred the matter to an
attorney who sent a letter demanding payment of the invoiced amount. Urick instructed Bair to
pay the invoice in full to settle the matter; however, the invoice remained unpaid. Thereafter,
Dean's initiated legal action by filing a mechanic's lien against Urick's property. Bair attempted to
settle this dispute but Dean's would not accept less than full payment of the invoice. On
December 12, 1995, Mr. Urick paid the invoice plus legal fees to Dean's in the amount of
$2,851.18 to avoid foreclosure on the property.
Mr. Urick is a retired employee of the Federal Bureau of Investigation (FBI) and is engaged in a
security consultant and investigation business. Maintaining a good credit history is important to
him, both personally and professionally since he needed to maintain top secret security clearance
for contracts he serviced. Ms. Bair was aware of this.
Mr. Urick submitted to the Commission a written complaint concerning Ms. Bair's management of
his property. The Commission initiated an investigation into the allegations and on April 9, 1996,
served Ms. Bair with Notice of Charges and Notice of Hearing concerning Ms. Bair's handling of
repairs to the air conditioning unit. The Complaint charged Ms. Bair engaged in misconduct in
violation of S.C. Code Ann. §§ 40-57-170(A)(4) and (A)(11), as well as violations of 27 S.C.
Code Regs. 105-21(B)(2).
The hearing on the charges was conducted before the Real Estate Commission on May 15, 1996.
Ms. Bair appeared pro se. A written order revoking Ms. Bair's real estate license was issued on
June 12, 1996.
DISCUSSION
The basis of Appellant's appeal is three-pronged. First, Bair asserts that the Commission erred in
failing to address her motion for a continuance and/or in failing to grant a continuance when her
counsel was unable to attend the hearing. A request by Ms. Bair's counsel was made to opposing
counsel two days in advance of the hearing, after Mr. Urick had taken leave from his employment
and traveled from Florida to appear for the hearing. A continuance would have posed a hardship
for Mr. Urick. When the Department's counsel indicated he would not agree to a continuance,
Bair's counsel indicated he would appear at the hearing.
At the hearing, the Chairman of the Commission noted that Ms. Bair was appearing pro se.
During opening remarks, Ms. Bair made reference to attempts made by her attorney to get a
continuance. She then stated, "...so I had no choice other than to come and represent myself,....
However, I will say that I think by the time this hearing is over that you all will find that I acted
very responsibly...." (emphasis added). The record contains no evidence of a request for a
continuance by Ms. Bair.
The granting of a continuance is a decision in the sound discretion of the hearing body. Newman
v. Old West Inc., 286 S.C. 394, 334 S.E.2d 275 (1985); Hamm v. South Carolina Public Service
Authority, 312 S.C. 238, 439 S.E.2d 852 (1994). An exercise of discretion by an administrative
agency will not be disturbed unless there is an abuse of discretion evidenced by a showing that the
action of the agency was arbitrary or unlawful. 73A C.J.S. Public Administrative Law and
Procedure § 224 (1983). An exercise of discretion is not arbitrary where the agency has given
due consideration to the relevant factors and has reached a considered decision. 73A C.J.S.
Public Administration Law and Procedure § 224 (1983). Here, the failure of the Commission to
grant a continuance was not an abuse of discretion nor an unlawful act, absent a formal request
made to the Commission for the same and the burden a continuance would impose upon the
complainant. See Newman v. Old West, Inc., supra.
Secondly, Bair argues the Commission's order is defective with respect to its findings of a
statutory violation and is insufficient to support a finding that appellant had violated S.C. Code
Ann. § 40-57-170(A)(4) and (11) (Supp. 1995). Findings of fact do not need any particular
format; however, the findings need only be sufficiently detailed to enable a reviewing court to
determine whether the findings are supported by evidence and whether the law has been correctly
applied. Able Communications, Inc. v. S.C. Public Service Comm'n, 290 S.C. 409, 351 S.E.2d
151 (1986); Hamm v. S.C. Public Service Comm'n, 309 S.C. 295, 422 S.E.2d 118 (1992).
Jurisdiction on appeal is vested in the Administrative Law Judge Division (ALJD) pursuant to
S.C. Code Ann. §§ 1-23-600 (Supp. 1995) and 40-57-220 (Supp. 1995). On appeal to the ALJD,
the standard of review is limited to the record presented below. The Board's factual findings
cannot be dismissed if those findings are supported by substantial evidence. Lark v. Bi-Lo, Inc.,
276 S.C. 130, 276 S.E.2d 304 (1981). An administrative law judge shall not substitute his
judgement for that of an agency unless the agency's determination is affected by error of law or
clearly erroneous in view of the reliable, probative and substantial evidence of the whole record.
S.C. Code Ann. § 1-23-380 (A)(6) (Supp. 1995); State ex re. Medlock v. S.C. Coastal Council,
289 S.C. 445, 346 S.E.2d 716 (1986).
The Order of the Commission sets forth in detail the facts relied upon in reaching its decision.
Ms. Bair was charged with conduct in a real estate transaction that demonstrates bad faith,
dishonesty, untrustworthiness, or incompetency in a manner to endanger the interest of the public.
S.C. Code Ann. § 40-57-170(A)(4) (Supp. 1995). The Commission enunciated in the findings
that Ms. Bair "reflected the $1500.00 as an expense deduction from the Urick's account but did
not pay Dean's." Further, the findings state that Mr. Urick authorized payment of $1500.00 upon
receipt of Dean's demand letter dated July 6, 1995, requiring payment within ten days of receipt.
One month later, Ms. Bair tendered a check in the amount of $1,422.71 (the invoiced amount
minus the payment for freon and labor by Hilton Head Heating and Air), instead of the $1500.00
agreed upon by her business manager and counsel for Dean's. Further, "[a]fter advising the
homeowner she would take care of the situation, the matter was left unresolved and the Master in
Equity found the homeowners in default."
Ms. Bair was also charged with failing, within a reasonable time, to account for or remit any
monies coming into her possession belonging to Urick. S.C. Code Ann. § 40-57-170(A)(11)
(Supp. 1995). The Commission found that in May 1995, Bair deducted the $1500 for repair of
the air conditioning unit from Urick's account but did not pay Dean's. Urick paid Dean's
separately from his own funds. Six months later, in January 1996, Bair "sent Mr. Urick a
homeowner's rental statement along with a check for the previous six (6) months back rent."
Evidence submitted to the Board clearly reveals that Bair did not remit money to Urick even after
he requested it. The Commission's findings clearly establish the factual basis upon which the
Commission relied in reaching its decision. The facts are supported by the record and expressly
enumerate acts constituting misconduct which support the statutory violations.
Thirdly, Bair asserts that the Commission erred in failing to state the burden of proof which it
applied in making its findings of fact. Bair further alleges that the Commission erred in failing to
apply a burden of proof requiring proof by clear and convincing evidence. The Court in
Anonymous v. State Bd. of Medical Examiners, ___ S.C. ___, 473 S.E.2d 870 (1996) found that
the standard of proof in a professional disciplinary proceeding under the APA should be clear and
convincing. While the Court enunciated the clear and convincing standard, it also applied the
general rule that an issue may not be raised for the first time on appeal, but must be raised to the
trial judge to be preserved for appellate review. The Anonymous decision was rendered on July
15, 1996, more than a month after the date of the Commission's decision of June 12, 1996. It
may not be applied retroactively unless the error was preserved for review. Bair failed to preserve
any error and is therefore barred from raising it for the first time on appeal.
ORDER
For the foregoing reasons, the decision of the South Carolina Real Estate Commission revoking
the real estate license of Carolyn S. Bair is AFFIRMED.
AND IT IS SO ORDERED.
_______________________________
ALISON RENEE LEE
Administrative Law Judge
February 12, 1997
Columbia, South Carolina. |
