ORDERS:
FINAL ORDER AND DECISION
Joe McCray ("McCray") appeals the final order of the Contractors Licensing Board ("Board") suspending
his license for six months and fining him $500. The decision of the Board is reversed.
STANDARD OF REVIEW
Jurisdiction on appeal is vested in the Administrative Law Judge Division ("Division") pursuant to S.C. Code
Ann. § 1-23-600 (Supp. 1999). The provisions of the South Carolina Administrative Procedures Act
("APA") govern an appeal from a final order of a professional and occupational licensing board. The
Administrative Law Judge may reverse or modify the agency's decision if substantial rights of the appellant
have been prejudiced because the findings, inferences, conclusions or decisions are, inter alia, in excess of
the statutory authority of the agency, made upon unlawful procedure, or are affected by other error of law.
S.C. Code Ann. § 1-23-380 (Supp. 1999).
DISCUSSION
At the time this matter arose, S.C. Code Ann. §§ 40-11-240 and 40-11-250 (1986), as amended, provided:
The board may revoke the bidder's or contractor's license of
any general or mechanical contractor licensed hereunder who
is found guilty of any fraud or deceit in obtaining a license, or
of gross negligence, incompetence or misconduct in the practice
of his profession. The board may also revoke a contractor's license
for substandard work, gross negligence, or incompetence with
respect to the installation of fire or burglar alarm systems. Any
person may prefer charges of such fraud, deceit, negligence or
misconduct against any general or mechanical contractor licensed
hereunder. Such charges shall be in writing and sworn to by the
complainant and submitted to the secretary of the Board.
Such charges, unless dismissed without hearing by the Board as
unfounded or trivial, shall be heard and determined by the Board
within three months after the date on which they are preferred. . . . .
(emphasis added)
Whether charges were preferred: (1) when the first complaint was filed with the South Carolina Department
of Labor, Licensing and Regulation, Contractors' Licensing Board ("Board") in April 1998; (2) when the
inspector made his findings in May 1998; or (3) when the Board filed its complaint in August 1998 is
inconsequential in this case.
The case was initially heard before the South Carolina Department of Labor Licensing and Regulation,
Contractors' Licensing Board by a hearing officer on September 25, 1998, and his recommendations were
reduced to writing on February 10, 1999. Thereafter, the Board held a hearing on April 22, 1999. The
Board's final order, however, was not issued until August 31, 1999, which was more than one year after the
Board filed its complaint.(1) Even considering August 24, 1998 as the date the charges were preferred, the
decision was issued beyond the three-month time frame required and therefore in violation of the statutory
provision.(2)
McCray's general contractor's license expired in July 1999, after expiration of three months from the
time the charges were preferred but before the Board issued its final order on August 31, 1999. The Board,
however, refused to allow McCray to renew his license when it expired because of the pending charges,
although a final appealable decision had not been made by the Board. For approximately two months,
McCray was denied the right to appeal and seek a stay and, thereby, was deprived of the opportunity to
practice his profession. After the Board issued its order, McCray was able to appeal and obtain a stay of the
decision. He was then allowed to renew his license. Had the Board complied with the statute, McCray
could have sought a stay of the decision and renewed his license in a timely fashion without the two-month
delay.
The statute requires definitive action, both a hearing and a determination, by the Board within three months.
The sole exception to the rule occurs when the contractor cannot be served at least fifteen days before the
date of the hearing. See S.C. Code Ann. § 40-11-250 (1986). Licensing statutes are enacted to protect the
public. See W & N Const. Co., Inc. v. Williams, 322 S.C. 448, 472 S.E.2d 622 (1996). This interest in
protecting the public must be balanced against the contractor's right to practice his profession. To
accommodate the rights of the public and the contractor, the General Assembly provided for a swift
resolution to charges of incompetence or misconduct lodged against a 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).
I find that the decision of the Board should be reversed pursuant to S.C. Code Ann.
§ 1-23-380(a) (Supp. 1999) for failure to comply with the statutory provision set forth in S. C. Code Ann. §
40-11-250 (1986) resulting in harm to McCray.
Contrary to the Board's normal procedure, no attempt was made to notify McCray of the April 25, 1998
inspection and impending destruction of the building even though his address and phone number were
available to the Board, and the inspector knew McCray. By the time McCray was informed of the charges,
the building had been demolished. By such action on the part of the Board, McCray was not only denied the
opportunity to correct any mistakes in construction, but also effectively denied the opportunity to prepare an
adequate defense to the charges lodged against him. Although I find it unnecessary to reach any conclusion
on this issue because of the previous finding, serious due process questions are raised that may not be cured
by merely mitigating the penalty as was attempted by the Board.
Because the Board's decision is reversed on other grounds, the other issues raised by McCray need
not be addressed.
ORDER
IT IS THEREFORE ORDERED that the Board's final order suspending McCray's contractor's license for
six months and fining him $500 is hereby reversed.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
March 15, 2000
Columbia, South Carolina
1. A judicial (or quasi-judicial) pronouncement is not a final ruling on the merits nor is it binding on the
parties until it has been reduced to writing, signed, and delivered for recordation. Case v. Case, 243 S.C.
447, 134 S.E.2d 394 (1964); Hilton Head Resort Four Seasons Center Horizontal Property Regime Council
of Co-Owners, Inc. v. Resort Inv. Corp., 311 S.C. 394, 429 S.E.2d 459, 462 (Ct. App. 1993); Bayne v.
Bass, 302 S.C. 208, 394 S.E.2d 726, 727 (Ct. App. 1990). Until an order is reduced to writing, a tribunal
retains discretion to change its mind and amend any oral rulings accordingly. Case, supra; Doe v. Doe, 324
S.C. 492, 478 S.E.2d 854 (Ct. App. 1996).
2. S.C. Code Ann. §§ 40-11-240 and 40-11-250 (1986), as amended. |
