SC Administrative Law Court Decisions

STATEMENT OF THE CASE

Pursuant to S.C. Code Ann. §§ 1-23-310 and 40-22-420, Appellant William D. Enfinger appeals an Order of the State Board of Registration for Professional Engineers and Land Surveyors (Board) dated June 25, 1998. In its Order, the Board publicly reprimanded Appellant and imposed a $2,000 fine upon him, $1,000 of which would be suspended if Appellant attended and completed an eight hour ethics course by December 31, 1998. The Board found that Appellant violated S.C. Code Ann. § 40-1-110(1)(f) (Supp. 1997) and § 40-22-390(2).

Specifically, the Board found that Appellant violated the respective laws in the following particulars. The Board concluded that Appellant committed a dishonorable, unethical, or unprofessional act that was likely to deceive, defraud, or harm the public by allowing or approving of his staff's dissemination of false information regarding a rival surveying company and by subsequently failing to cooperate with the Board regarding such dissemination. Also, the Board found that Respondent violated these provisions by failing to timely complete "blue-booking" relating to a contract for surveying services with Lancaster County. Briefs were filed in support of and in response to the appeal. Upon careful consideration of the record, applicable law, and counsel's arguments, the Board's June 25, 1998 Order is affirmed in part and reversed in part.

BACKGROUND

Appellant is a licensed professional land surveyor engaged in business as Enfinger & Associates. Appellant practiced surveying from 1953 to 1996. Since 1996, he has not practiced surveying, but still manages the business.

The complaint against Appellant arises out of two separate chain of events. First, Appellant filed a complaint in January of 1996 with the Board alleging that Clyde S. Bryce, owner of Precision Surveying, Inc., was operating his branch office in Lancaster, South Carolina without a resident professional land surveyor in charge of the office. (R. at 127). Appellant contended that the Florence office was approving and certifying the results of surveys done by the unlicensed employee who was running the Lancaster office. Then on October 29, 1996, Mr. Bryce filed a letter with the Board alleging that Appellant informed a potential client that Mr. Bryce's firm, Precision Surveying, Inc., was not "a licensed company and did not have equipment or means to do a residential survey." On November 6, 1996, the Tri-County Chapter of Professional Land Surveyors of South Carolina filed a letter with the Board alleging that Mr. Bryce was operating his branch office in Lancaster, South Carolina without a resident professional land surveyor in charge of the office. Also, it alleged that Mr. Julian Saverance was operating the office without a license and that the Florence office was approving and certifying the results. Appellant also alleged that Mr. Bryce was still "rubber-stamping" the surveys done by his Lancaster office.

The Board invited both Mr. Bryce and Appellant to appear before it at its November 14, 1996 meeting. Each appeared before the Board and presented his complaint against the other. The Board instructed its investigator, Mr. Ido, to investigate the respective complaints. See Ex. # 3.

As a result of the investigation, the Board found the allegations of wrongdoing against Mr. Bryce without evidentiary support, but in a letter written to Appellant on November 18, 1997, the Board stated that Appellant's secretary was incorrect and perhaps misinformed when she made the statement that Precision Surveying was an "illegal company." The Board cautioned Appellant that disseminating false information could result in disciplinary action and encouraged him to counsel his staff about the State regulations and codes under which the firm operated. See Ex. # 4. Finally, the Board's letter stated that Appellant's written confirmation that he had counseled his employees would satisfy the matter before the Board. Appellant did not submit such written confirmation to the Board.

The second factor on which the complaint is predicated arises out of a contract between Appellant and Lancaster County executed on or about December 6, 1994. See Ex. # 10. According to the terms of the contract, Appellant agreed to provide surveying services to the County which included preliminary x-y coordinates and delivery of the survey to the County by February 1, 1995. He was also required to blue book his field work. However, no specific date was provided for completion of this project. The term "blue-booking" or "geodetic survey" entails formatting the x-y coordinates to take into account the fact that the earth is spherical and not a flat plane. These specifications are then approved by the National or Federal Geodetic Control Committee which would then allow this information to be included in the National Reference System and become part of the public domain. (R. at 96-97). The contract provided that Appellant was to be paid $30,000 after the completion of the x-y coordinates survey. Appellant completed the survey in approximately three weeks and was paid by the County. However, at the time of the Board's hearing, Appellant had not completed the blue-booking.

The contract was negotiated by Stuart Tedford, Lancaster County Tax Assessor at that time, and signed by J. Campbell Hurst, County Administrator. An expert testified that blue-booking typically takes sixty to ninety days to complete. (R. at 100). The fact that the contract did not contain a date for completion and provided that Appellant would be paid after the completion of the of the field work is explained by Appellant's March 24, 1997, letter to the Board. See Pet. Ex. # 8. Appellant agreed to do the blue-booking at his convenience. The current Tax Assessor, Mr. Ariol, has never seen the contract and did not have any concern over the blue-booking until the County Administrator raised the matter after being contacted by the Board. (R. at 84-92).

The provisions of the South Carolina Administrative Procedures Act (APA) govern an appeal from an action of the Board. Lark v. Bi-Lo. Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). Under the APA, this tribunal shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1997). This tribunal, however, may reverse or modify the decision of the Board if substantial rights of the appellant have been prejudiced because the administrative findings or decisions are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record or arbitrary or capricious. Id.

Substantial evidence is that evidence which, in considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached. Lark, 276 S.C. 130, 276 S.E.2d 304. The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Id. Where there is a conflict in the evidence, the administrative agency's findings of fact are conclusive. Id.; see also Harbin v. Owens-Corning Fiberglass, 316 S.C. 423, 450 S.E.2d 112 (Ct. App. 1994) (existence of any conflicting opinions between doctors is a matter left to the administrative agency). This tribunal cannot substitute its judgment for that of the Board upon a question as to which there is room for a difference of intelligent opinion. See, e.g., Chemical Leamen Tank Lines v. South Carolina Pub. Serv. Comm'n, 258 S.C. 518, 189 S.E.2d 296 (1972). While a decision of an administrative agency will normally be upheld, the findings may not be based upon surmise, conjecture, or speculation, but must be founded on evidence of sufficient substance to afford a reasonable basis for it. Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431, 458 S.E.2d 76 (Ct. App. 1995).

The burden is on the appellant to show convincingly that the Board's order is without evidentiary support or is arbitrary or capricious as a matter of law. See Hamm v. Public Service Commission of South Carolina, 310 S.C. 13, 425 S.E.2d 28 (1992); Hamm v. American Tel. & Tel. Co., 302 S.C. 210, 394 S.E.2d 842 (1990). Appellant raises the following issues as grounds for this appeal.

1. Was the Board's finding that Appellant violated S.C. Code Ann. § 40-1-110(f) and § 40-22-390(2) by disseminating false information regarding a rival surveying company based on substantial evidence?
2. Did the Board fail to observe the standards of due process by disciplining Appellant without providing him with notice of the complaint made against him or opportunity to be heard?
3. Was the Board's finding that Appellant violated the rules and regulations of the Board by the manner in which he performed under a surveying contract with Lancaster County based on substantial evidence?
4. Were the rules and regulations under which Appellant was disciplined vague and overbroad, in violation of the South Carolina Constitution and the Constitution of the United States of America?
5. Did the refusal of the Board to permit Appellant to examine the Board's investigative file violate due process by depriving him of the opportunity to prepare an adequate defense against the charges levied against him by the Board?

DISCUSSION

1. Was the Board's decision correct with regard to dissemination of false information?

The actions or omissions which constitute grounds for disciplinary action are set forth in S.C. Code Ann. § 40-1-110 and § 40-22-390 (Supp. l997). According to § 40-1-110, when a licensee has "committed a dishonorable, unethical, or unprofessional act that is likely to deceive, defraud, or harm the public," such conduct is a proper ground for disciplinary action. Additionally, under § 40-22-390(2), the Board is authorized to discipline a licensee who is found guilty of "gross negligence, incompetency, or misconduct in the practice . . . as a professional land surveyor." The findings and conclusions of the Board must be examined in light of the record in order to determine if the Board's decision is supported by substantial evidence.

First, as it pertains to § 40-1-110(f), the Board found that Appellant violated this section by committing a "dishonorable, unethical, or unprofessional act that is likely to deceive, defraud, or harm the public as evidenced by [his] office staff's dissemination of false information regarding a rival surveying company . . . ." (Board's Order at 3). The Board reached this conclusion based on an August 18, 1996 telephone call in which Appellant's secretary told Julie Hartley, a potential customer who called Appellant's office seeking prices for surveying services, that Precision Land Surveying, a rival survey company, was not licensed and did not have sufficient resources to perform the work Hartley required. (R. at 8-9, 74).

"False" information, by its very definition, is inherently deceptive, and therefore, is likely to deceive the public. "False" is defined as "contrary to fact or truth." American Heritage Dictionary 492 (3d ed. 1993). The Board had sufficient evidence in the record to conclude that a member of Appellant's office staff disseminated false information about another firm in violation of § 40-1-110(f). Although Appellant contends that the agency-principal relationship was never established by the Board, there is clear evidence that Appellant's daughter, Nola Eubanks, was employed as his secretary and comptroller. (R. at 114-118, 131-132). Generally, agency may be, and frequently is, implied or inferred from the words and conduct of the parties and the circumstances of the case. Bankers Trust of S.C. v. Bruce, 283 S.C. 408, 323 S.E.2d 523 (1984). "No one fact or circumstance is necessarily conclusive, and whether such relationship [employer-employee] exists is determined from all the facts and circumstances of the case." 30 C.J.S. Employer-Employee Relationship § 6, 19-20 (1992). The conduct of Appellant and his secretary and the circumstances of this case indicate that there existed an employee-employer relationship between them. As the representations by Appellant's secretary were made in her capacity as secretary, Appellant is responsible for the representations as the surveyor in charge of the office. McCleod v. C & L Corp., Inc., 280 S.C. 519, 313 S.E.2d 334 (1984) (actual knowledge is not necessary to hold principal liable if misrepresentation was made by agent while acting within the scope of agency).

Appellant also argues that the Board failed to prove that Precision was duly licensed at the time of the telephone call in question or that Appellant's secretary knew that Precision was properly licensed, and therefore, the Board acted improperly when it found Appellant guilty of violating § 40-1-110(f). (Ap. Br. at 4-5). However, there is sufficient evidence in the record to indicate that Precision was licensed on August 18, 1996. Ms. Hartley testified that after speaking with Appellant's secretary, she called Miriam Berry, Licensing Coordinator for the Board, to determine if Precision was licensed. Ms. Berry indicated that Precision was licensed, and soon thereafter, Ms. Hartley hired Precision to perform her survey. (R. at 80-81).

In the instant case, the Department presented substantial evidence by which the Board could reasonably conclude that Appellant violated 40-1-110(f) by his office staff's dissemination of false information. Further, the statute does not indicate that intent is crucial to sustaining a violation. Thus, the Board's finding that Appellant was guilty of violating § 40-1-110(f) was supported by substantial evidence.

Also, the Board found that Appellant violated § 40-22-390(2) in that he "engaged in misconduct as a professional land surveyor, as evidenced by [his] failure to cooperate with or follow a directive of the Board regarding, his staff's dissemination of false information regarding a rival surveying company . . . ." (Board's Order at 3). This statute provides that "The board may suspend, refuse, or revoke a certificate of registration as well as reprimand or fine a registrant who is guilty of . . . (2) gross negligence, incompetency, or misconduct in the practice of engineering or land surveying as a professional engineer or professional land surveyor; . . ." (Emphasis added). "Gross negligence" is defined as "an act or course of action, or inaction, which denotes a lack of reasonable care, or a conscious disregard or indifference to the rights, safety, or welfare of others and which does or could result in financial loss, injury, or damage to life or property." S.C. Code Ann. § 40-22-10(14) (Supp. 1998).

The record contains sufficient evidence that Appellant disregarded or was indifferent to his staffer's dissemination of false or inaccurate information once it was brought to his attention.

1. Did the Board fail to observe the standards of due process?

Appellant next argues that the November 1996 meeting at which Appellant and Mr. Bryce appeared was a "hearing" without notice of the charges against Appellant, and without the opportunity to cross-examine or offer witnesses. Appellant also argues that the Board's November 18, 1997 letter encouraging him to counsel his employees and advising him that written confirmation of such counseling would "satisfy the matter before the Board" was a disciplinary action, and therefore, the Board failed to satisfy the requirements of due process before taking such action.

The Board did not require Appellant to appear at its meeting. Rather, it invited both Appellant and Mr. Bryce to its regularly scheduled meeting in an attempt to resolve some of the differences between the two. The Board followed none of the formalities that it follows when holding a hearing, and just as Mr. Bryce complained about Appellant's actions, Appellant was allowed to present his concerns regarding Mr. Bryce.

Under § 40-1-110(f), the Board has the authority to "cancel, fine, suspend, revoke, or restrict the authorization to practice of an individual . . . ." In its November 18, 1997 letter, the Board did not suspend, revoke, or restrict Appellant's license, nor did it fine Appellant. Rather, the Board merely warned Appellant of the possible consequences of spreading false information and gave him an opportunity to end the entire matter by simply counseling his employees about the Rules of Professional Conduct. Because of Appellant's refusal to comply with its request, the Board decided to bring a formal complaint against Appellant. It is unquestioned that after the filing of a formal complaint against Appellant, the Board followed all of the procedures necessary to satisfy the requirements of due process. It was only after a full hearing in which the Board found Appellant guilty of violating §§ 40-1-110(f) and 40-22-390(2) that sanctions were imposed against him. Thus, the Board satisfied the requirements of due process.

2. Was the Board's decision that Appellant violated its rules and regulations with regard to his performance of a contract with Lancaster County based on substantial evidence?

In its Order, the Board found that Appellant was guilty of violating §§ 40-1-110(f) and 40-22-390(2) because he failed to timely complete the blue-booking portion of a contract that he entered into with Lancaster County. The Board presented expert testimony of Sidney Miller, former chief of the South Carolina Geodetic Survey, that a reasonable amount of time to complete blue-booking for a project is three to six months. (R. at 100).

A review of the contract between the parties reveals that the parties established a specific time for Appellant to complete and deliver the x-y coordinates to the County, at which time he was to be paid in full. However, the contract did not specify a time when the blue-booking was to be completed. See Petitioner's Ex. # 10.

"[W]here a contract is silent as to a particular matter and because of the nature and character of the transaction an ambiguity arises, parol evidence may be admitted in order to supply a deficiency in the language of the contract and to establish the true intent and meaning of the parties." United States Leasing Corp. v. Janicare, Inc., 294 S.C. 312, 318, 364 S.E.2d 202, 205 (Ct. App. 1987) (citing Soulios v. Mills Novelty Co,, 198 S.C. 355, 17 S.E.2d 869 (1941); 32A C.J.S. Evidence § 1008 at 592 (1964)).

When viewing the record as a whole, it is clear Lancaster County agreed that the completion of blue-booking would be at Appellant's convenience. (R. at 62, 139). This arrangement was made to keep the County's cost down. While it is true that Appellant was in fact, paid in full at the completion and delivery of the x-y coordinates and the blue-booking was to be completed at his convenience, Appellant is a licensee subject to the authority of the Board. The execution of a contract for land surveying services is not strictly a private matter and does not remove Appellant from the regulatory oversight of the Board. Because Appellant's obligation of performance under the contract is subject to the regulatory authority of the Board, his performance must comply with industry standards. The Department established through expert testimony at the trial level that a reasonable amount of time to complete blue-booking is three to six months after completion of the field work. (R. at 100). Appellant completed field work in September of 1995. (R. at 140). Nonetheless, as of December of 1998, Appellant had not completed the blue-booking. Despite Appellant's contention that he can perform the blue-booking at his convenience, a reasonable time period must be imposed on Appellant's performance. Where a contract does not provide a time frame for performance, the court will imply a reasonable time. Koontz v. Thomas, 333 S.C. 702, 511 S.E.2d 407 (1998). Otherwise, Appellant's promise would be an illusory one. The time which has transpired since Appellant completed the field work of the survey far exceeds the reasonable time frame of three to six months established by the expert.

Further, the record indicates that despite Stuart Tedford's inquiry concerning the completion of the blue-booking in December of 1996, Appellant decided to "sit on" the completion of the project because of the Board's subsequent investigation of the matter. (R. at 141-142). Such recalcitrance coupled with the extreme delay clearly indicates a conscious disregard or indifference to the right of his client. Hence, the record supports the Board's finding that Appellant violated § 40-22-390(2). However, the record does not contain substantial evidence to support a finding that Appellant violated § 40-1-110(f) by failing to timely perform the blue-booking for the County.

3. Were the rules and regulations under which Appellant was disciplined vague and overbroad, in violation of the South Carolina Constitution and the Constitution of the United States of America?

While this tribunal clearly has authority to determine the constitutionality of a statute as administered in a particular factual setting, it is doubtful that this tribunal, as part of the executive branch, has the authority to question the constitutionality of a statute on its face, as enacted by the General Assembly. See Bernard Schwartz, Administrative Law § 8.40 (3d ed. 1991) (". . . only the courts, not the agency, have authority to decide [the constitutionality of the law the agency seeks to enforce"); see also David E. Shipley, South Carolina Administrative Law 7-39 (2d ed. 1989).

4. Did the Board's refusal to permit Appellant to conduct discovery violate due process by depriving him of the opportunity to prepare an adequate defense?