ORDERS:
ORDER
This matter is before the Administrative Law Judge Division (Division) pursuant to the appeal of John Jefferson, Jr.
(Appellant) from a decision of the Respondent, South Carolina Department of Labor, Licensing and Regulation, South
Carolina Manufactured Housing Board (Board), denying Appellant's renewal application for a license as a manufactured
home retail multi-lot sales person. A hearing on the appeal was held at the offices of the Administrative Law Judge
Division in Columbia, South Carolina, on January 6, 2000. For the following reasons, the decision of the Board is reversed.
STATEMENT OF THE CASE
On June 7, 1999, the Appellant submitted his renewal application for a license as a manufactured home multi-lot
salesperson to the Board. On June 29, 1999, the Board informed Appellant by letter that his renewal application had been
denied. The letter stated that Appellant's renewal application had been denied at the staff level because of "allegations by a
lender of misrepresentations of material facts provided to the lender for the purpose of securing financing."
Appellant appealed this decision to the Board. The Board held a hearing on July 13, 1999, at which Appellant appeared. At
this hearing, Board staff told Appellant that his name appeared thirty times in a report from Bombardier Capital, a lending
institution which finances manufactured home sales, listing instances of falsified and misrepresented information in
connection with financing applications. Appellant apparently made a statement denying the allegations and asserting that he
was not personally involved in any of the deals in question, but that he had signed the paperwork in his capacity as a
manager. He further stated that, to his knowledge, he had not been involved in any misrepresentations, but that he was
responsible for the closings on the sales in question. A Board member made a motion to deny Appellant's license for
failure to supervise. The motion was seconded and approved unanimously.
The Board issued an Order on July 23, 1999, denying Appellant's license. The Order stated that the application was denied
pursuant to S.C. Code Ann. § 40-1-130 (Supp. 1998),
based upon [Appellant's] failure to satisfy the Board that he meets all requirements for the issuance of a license, including,
among other things, possession of the character and fitness for licensure and the requisite familiarity with the statutes and
regulations of this Board, such as those concerning specifically the misrepresentation or omission of material facts in a
manufactured home transaction (S.C. Code Ann. § 40-29-150(3) and (10)), the supervision and control of employees
(SCRR 19-425.19) and review of transactions (SCRR 19-425.19(G)).
Appellant subsequently filed his appeal with the Division, based upon the grounds that the Board failed to give him proper
notice of the charges against him, thus constituting a denial of due process; that the Board's conclusions were made upon
unlawful procedure and were an abuse of discretion; and that the Board's decision was not supported by the evidence.
DISCUSSION
I. Jurisdiction and Standard of Review
Jurisdiction on appeal is vested in the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 1-23-600 and 40-1-160 (Supp. 1998). The provisions of the South Carolina Administrative Procedures Act (APA) govern an appeal from a
final order of the Board. Under the APA, the Division may reverse or modify the decision of the Board if substantial rights
of the appellant have been prejudiced because the administrative findings are, inter alia, in violation of constitutional or
statutory provisions; made upon unlawful procedure; affected by other error of law; or unsupported by the substantial
evidence of record. S.C. Code Ann. § 1-23-380(A) (Supp. 1998).
II. Analysis
A person's right to follow his chosen profession is protected by the Due Process Clause. Brown v. S.C. State Bd. of
Education, 301 S.C. 326, 391 S.E.2d 866 (1990). Furthermore, "when the State seeks to revoke or deny a professional
license, [due process] interests are implicated and procedural due process requirements must be met. [Citations omitted.]
The State must afford notice and the opportunity for a hearing appropriate to the nature of the case." Id. at 329, 391 S.E.2d
at 867. While due process is "flexible and calls for such procedural protections as the particular situation demands," Stono
River Envtl. Protection Ass'n v. S.C. Dep't of Health and Envtl. Control, 305 S.C. 90, 406 S.E.2d 340, 341 (1991), at a
minimum, certain elements must be satisfied in order for procedural due process requirements to be met, including adequate
notice, adequate opportunity for a hearing, the right to introduce evidence, and the right to confront and cross-examine
witnesses. Huellmantel v. Greenville Hosp. System, 303 S.C. 549, 402 S.E.2d 489 (Ct. App. 1991).
I find that Appellant was not given adequate notice of the allegations against him with regard to the charge of failure to
properly supervise employees. The Board informed Appellant by letter that his renewal was denied because of a lender's
allegations of misrepresentations of material facts. However, the minutes of the hearing and the Final Order reflect that the
Board denied Appellant's license for failure to properly supervise employees in addition to misrepresenting material facts to
a lender. Therefore, I find that the Board's failure to give the Appellant fair notice of the charges against him constitutes a
denial of procedural due process and that the Board's decision must accordingly be reversed. See Burdge v. State Bd. of
Medical Examiners, 304 S.C. 42, 403 S.E.2d 114 (1991); Wilson v. State Bd. of Medical Examiners, 305 S.C. 194, 406
S.E.2d 345 (1991). Since I have reversed the Board's decision based upon due process grounds, it is unnecessary to reach
the other arguments raised by Appellant on appeal.
AND IT IS SO ORDERED.
_________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
March 27, 2000 |
