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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Stephen P. Herlong vs. SCDLLR

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Appellant:
Stephen P. Herlong

Respondents:
South Carolina Department of Labor, Licensing and Regulation, State Board of Architectural Examiners
 
DOCKET NUMBER:
99-ALJ-11-0302-AP

APPEARANCES:
Robert A. Kerr, Jr. Esquire
for Appellant

S. Phillip Lenski, Esquire
for Respondent
 

ORDERS:

ORDER OF REMAND

STATEMENT OF THE CASE



This matter is an appeal by Stephen P. Herlong (Herlong) of a decision of the State Board of Architectural Examiners (Board) to publicly reprimand Herlong for an alleged violation of S.C. Code Ann. § 40-1-110(f) (Supp. 1998) by committing an unprofessional act that is likely to harm the public. In addition to a public reprimand, the Board imposed a $1,000 fine against Herlong, required Herlong to pay the costs of investigation and prosecution of the case, and placed Herlong's license on probationary status for one year, subject to certain conditions. Counsel for both parties presented oral arguments at the Administrative Law Judge Division on September 22, 1999.



BACKGROUND

Appellant is licensed to practice architecture in South Carolina, and he currently maintains his practice on the Isle of Palms, South Carolina. During the time period relevant to this case, Appellant was a shareholder and officer of the Spartina Group, a South Carolina corporation formed pursuant to the South Carolina Statutory Close Corporation Supplement, §§ 33-18-101 et seq. (Rev. 1990). The Spartina Group was located in Charleston, South Carolina and provided architectural design services and construction services. Herlong provided the architectural design services to clients of the Spartina Group. The other two shareholders of the Spartina Group were David Jackson, who functioned as the construction contractor, and Leigh Colyer, III, who managed the firm's finances and marketed the firm's services. Because the Spartina Group was formed as a statutory close corporation, it did not have a board of directors. However, the corporation's Articles of Incorporation stated that the managerial functions of the firm were to be performed by the shareholders.

In the fall of 1996, the Spartina Group entered into a contract with Glenn and Sharon Albrecht for the design and construction of a residence on Kiawah Island, South Carolina for approximately $269,000. The Albrechts submitted a $26,900 deposit which was to be refunded to them at a later time. The Albrechts also obtained a construction loan from BB&T, from which the Spartina Group was to draw funds at the completion of each phase of construction. Herlong completed the design services for the Albrechts in the fall of 1996, and construction on the residence began in January, 1997. Although the Spartina Group was registered with the Board as an architectural firm during this time, it failed to renew its South Carolina contracting license for 1997.

During the course of construction, the Spartina Group experienced financial problems and failed to pay subcontractors and suppliers for the Albrecht residence. This resulted in the filing of several mechanics liens on the Albrecht property and an unreasonable delay in construction. The Albrechts had to pay an additional $60,000 to remove the liens and resume construction. Neither the Spartina Group nor Herlong has reimbursed the Albrechts for the additional funds paid to remove the liens on their property.

Additionally, in August, 1997, the Spartina Group issued a $5,000 check to the Albrechts as a partial refund on their deposit. Herlong signed the check, which was returned for insufficient funds. Neither the Spartina Group nor Herlong has reimbursed the Albrechts for these funds.



ANALYSIS

The standard of review in appeals from the Board is set forth in the Administrative Procedures Act, specifically, S.C. Code Ann. § 1-23-380 (Supp. 1998). Section 1-23-380(A)(6) expressly provides that an appellate court "may affirm the decision of an agency or remand the case for further proceedings." Upon careful consideration of the Board's April 29, 1999 Order, I find that it is appropriate to remand the case to the Board so that it may reconsider the basis for its conclusion that Herlong committed an unprofessional act.

An administrative agency has an obligation to state clearly and completely the facts essential to its conclusion; where the agency fails to do this, remand is appropriate. 2 Am. Jur. 2d Administrative Law, § 630 (1994); see also Campbell v. La-Z-Boy East, 295 S.C. 384, 368 S.E.2d 679 (Ct. App. 1988) (holding that where agency failed to define basis for finding of fact, case should be remanded for agency to make sufficiently detailed findings).

In the instant case, the Board found that Appellant violated S.C. Code Ann. § 40-1-110(f) (Supp. 1998) by committing an unprofessional act that is likely to harm the public. The concept of an "unprofessional act" logically requires some action, or inaction when there is a duty to act, on the part of the licensee himself. The Board's order, however, fails to articulate (1) what Herlong actually did or failed to do that amounts to an unprofessional act, or (2) what duty, if any, Herlong failed to fulfill. Rather, the order merely concludes



[Herlong] has committed an unprofessional act that is likely to harm the public, as evidenced by [Herlong's] responsibility . . . for his company's design and construction of a residence without a valid contractor's license, and failure to pay subcontractors and suppliers on the project . . . .



(April 29, 1999 Order of Board, page 3)(emphasis added).

The Board's Order lacks specific findings of fact and a detailed explanation to support its conclusion that Herlong committed an unprofessional act. Therefore, this tribunal is unable to determine the Board's reasoning and conduct a meaningful review of the Board's decision. Our Supreme Court has recently held on several occasions that an administrative agency must make specific findings of fact and explain its rationale in sufficient detail to afford judicial review. Kiawah Property Owners Group v. PSC, Op. No. 24997 (S.C.Sup.Ct. filed September 7, 1999) (Shearouse Adv.Sh. # 29 at 1, 5) (reversed and remanded with comment that the circuit court should have remanded the orders so that the PSC could have fulfilled its responsibilities to the parties.); Porter v. SC Public Service Commission and BellSouth Communications, Inc., 333 S.C. 12, 507 S.E.2d 328 (1998); Porter v. SC Public Service Comm'n and Piedmont Natural Gas Company, 332 S.C. 93, 504 S.E.2d 320 (1998); Heater of Seabrook, Inc. v. SC Public Service Commission, 332 S.C. 20, 503 S.E.2d 739 (1998). While the Board may have conducted an orderly analysis to reach its conclusion, it did not provide such an analysis in its Order.



ORDER

IT IS THEREFORE ORDERED that this case is REMANDED to the Board to reconsider the record and the basis for its conclusions in accordance with this Order.(1)

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667



October 21, 1999

Columbia, South Carolina

1. See Parker v. South Carolina Pub. Serv. Comm'n, 288 S.C. 304, 342 S.E.2d 403 (1986), and Piedmont Natural Gas Co., Inc., 301 S.C. 50, 389 S.E.2d 655 (1990) (administrative agency may not consider additional evidence upon remand unless court allows it because that affords a party two bites at the apple).


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