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Indicates Matter Stricken
Indicates New Matter
Indicates Matter Stricken
Indicates New Matter
COMMITTEE AMENDMENT ADOPTED
January 27, 2005
S. 95
S. Printed 1/27/05--S. [SEC 2/3/05 5:08 PM]
Read the first time January 11, 2005.
TO AMEND SECTION 16-17-445, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO REGULATION OF UNSOLICITED CONSUMER TELEPHONE CALLS AND SECTION 34-36-40, RELATING TO LOAN BROKERS, BOTH SO AS TO PROVIDE A PROCEDURE FOR THE DEPARTMENT OF CONSUMER AFFAIRS TO REQUEST A HEARING BEFORE THE ADMINISTRATIVE LAW COURT AND TO PROVIDE THAT THE DEPARTMENT MAY REQUEST THAT THE ADMINISTRATIVE LAW JUDGE DIVISION IMPOSE A CIVIL FINE FOR A VIOLATION; TO AMEND SECTION 37-6-106, RELATING TO THE INVESTIGATORY POWERS OF THE ADMINISTRATOR OF THE DEPARTMENT OF CONSUMER AFFAIRS, SO AS TO PROVIDE THAT THE ADMINISTRATOR MAY APPLY TO THE ADMINISTRATIVE LAW COURT, RATHER THAN THE COURT OF COMMON PLEAS, FOR AN ORDER COMPELLING COMPLIANCE WITH A SUBPOENA; TO AMEND SECTIONS 37-6-108 AND 37-6-113, RELATING TO AN ORDER OF THE ADMINISTRATOR OF THE DEPARTMENT OF CONSUMER AFFAIRS, SO AS TO PROVIDE A PROCEDURE FOR THE ADMINISTRATOR TO REQUEST A HEARING BEFORE THE ADMINISTRATIVE LAW COURT AND TO PROVIDE FOR JUDICIAL REVIEW OF THE ADMINISTRATIVE LAW COURT'S ORDER AS PROVIDED IN THE ADMINISTRATIVE PROCEDURES ACT AND THE RULES GOVERNING PRACTICE BEFORE THE ADMINISTRATIVE LAW COURT; TO AMEND SECTION 37-6-401, RELATING TO THE POWERS OF THE ADMINISTRATOR OF THE DEPARTMENT OF CONSUMER AFFAIRS, SO AS TO PROVIDE THAT A CONFLICT BETWEEN THE PROVISIONS OF PART 4, CHAPTER 6, TITLE 37 AND THE ADMINISTRATIVE PROCEDURES ACT MUST BE RESOLVED IN FAVOR OF THE LATTER; TO AMEND SECTION 37-6-414, RELATING TO JUDICIAL REVIEW OF CASES, SO AS TO PROVIDE THAT A PERSON WHO HAS EXHAUSTED ADMINISTRATIVE REMEDIES BEFORE THE ADMINISTRATOR AND WHO IS AGGRIEVED IS ENTITLED TO BRING A CONTESTED CASE HEARING BEFORE THE ADMINISTRATIVE LAW COURT; TO AMEND SECTION 37-11-100, RELATING TO LICENSING AND REGULATION OF CONTINUING CARE RETIREMENT COMMUNITIES, SO AS TO PROVIDE A PROCEDURE FOR THE DEPARTMENT OF CONSUMER AFFAIRS TO REQUEST A HEARING BEFORE THE ADMINISTRATIVE LAW COURT AND TO PROVIDE FOR JUDICIAL REVIEW OF THE ADMINISTRATIVE LAW'S ORDER AS PROVIDED IN THE ADMINISTRATIVE PROCEDURES ACT AND THE RULES GOVERNING PRACTICE BEFORE THE ADMINISTRATIVE LAW COURT; TO AMEND SECTION 37-16-70, RELATING TO PREPAID LEGAL SERVICES, SO AS TO PROVIDE FOR NOTICE AND OPPORTUNITY FOR A HEARING BEFORE THE ADMINISTRATIVE LAW COURT BY A PREPAID LEGAL SERVICES COMPANY FOR A VIOLATION OF THE PROVISIONS OF THE CHAPTER, TO PROVIDE THAT THE ADMINISTRATOR OF THE DEPARTMENT OF CONSUMER AFFAIRS MAY ISSUE AN ORDER REQUIRING THE CLUB REPRESENTATIVE TO CEASE AND DESIST FROM THE VIOLATION, AND TO PROVIDE THAT THE CLUB REPRESENTATIVE MAY REQUEST A HEARING BEFORE THE ADMINISTRATIVE LAW COURT; TO AMEND SECTIONS 39-61-100 AND 39-61-130, BOTH RELATING TO MOTOR CLUB SERVICES, SO AS TO PROVIDE A PROCEDURE FOR THE ADMINISTRATOR OF THE DEPARTMENT OF CONSUMER AFFAIRS TO REQUEST A HEARING BEFORE THE ADMINISTRATIVE LAW COURT AND TO PROVIDE FOR JUDICIAL REVIEW OF THE ADMINISTRATIVE LAW COURT'S ORDER AS PROVIDED IN THE ADMINISTRATIVE PROCEDURES ACT AND THE RULES GOVERNING PRACTICE BEFORE THE ADMINISTRATIVE LAW COURT; TO AMEND SECTION 40-39-150, RELATING TO PAWNBROKERS, SECTIONS 40-58-55, 40-58-80, AND 40-58-90, AS AMENDED, ALL RELATING TO MORTGAGE LOAN BROKERS, SECTION 40-68-160, RELATING TO REGULATION OF STAFF LEASING SERVICES, SECTION 44-79-80, RELATING TO PHYSICAL FITNESS SERVICES, SECTION 56-28-110, RELATING TO NOTIFICATION OF SUBSEQUENT PURCHASERS OF A REPURCHASED MOTOR VEHICLE, AND SECTIONS 59-102-70 AND 59-102-170, AS AMENDED, RELATING TO REGISTRATION OF ATHLETE AGENTS, ALL SO AS TO PROVIDE A PROCEDURE FOR A HEARING BEFORE THE ADMINISTRATIVE LAW COURT AND TO PROVIDE FOR JUDICIAL REVIEW OF THE ADMINISTRATIVE LAW COURT'S ORDER AS PROVIDED IN THE ADMINISTRATIVE PROCEDURES ACT AND THE RULES GOVERNING PRACTICE BEFORE THE ADMINISTRATIVE LAW COURT; AND TO REPEAL SECTIONS 37-6-415 AND 37-11-110, RELATING TO APPEALS OF DECISIONS OF THE DEPARTMENT OF CONSUMER AFFAIRS.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 16-17-445(F) of the 1976 Code is amended to read:
"(F) The department shall investigate any complaints received concerning violations of this section. If the department finds has reason to believe that there has been a violation of this section, it may request a contested case hearing before the Administrative Law Court to impose a civil penalty not to exceed one hundred dollars for a first violation, two hundred dollars for a second violation, and one thousand dollars for a third or subsequent violation, and . The department may seek also bring a civil action in the Court of Common Pleas seeking other relief, including injunctive relief, as the court considers appropriate against the telephone solicitor. In addition, a person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction for a first or second offense, must be fined not more than two hundred dollars or imprisoned for not more than thirty days, and for a third or subsequent offense must be fined not less than two hundred dollars nor more than five hundred dollars or imprisoned for not more than thirty days. Each violation constitutes a separate offense for purposes of the civil and criminal penalties in this section."
SECTION 2. Section 34-36-40 of the 1976 Code is amended to read:
"Section 34-36-40. (A) The department may investigate the actions of any person for compliance with this chapter.
(B) The department may request a hearing before the Administrative Law Court for an order requiring a loan broker to cease and desist whenever the department determines if it is determined that the loan broker has violated, is violating, or will violate any a provision of this chapter, any a regulation promulgated by the department, or any a written agreement entered into with the department.
(C) The department may request a hearing before the Administrative Law Court for an order requiring a loan broker to refund or reimburse any advance fee or any other fee taken in violation of Section 34-36-20 or taken as a result of a false, misleading, or deceptive representation as described in Section 34-36-20. Such an order may, but need not, be sought by the department in conjunction with a cease and desist order pursuant to subsection (B).
(D) The department may request a contested case hearing before the Administrative Law Court impose and collect seeking the imposition of a civil administrative fine on behalf of the department against any person found to have violated any provision of this chapter, any regulation promulgated by the department, or any written agreement entered into with the department, in any amount not to exceed five thousand dollars for each violation."
SECTION 3. Section 37-6-106(3) of the 1976 Code is amended to read:
"(3) Upon failure without lawful excuse to obey a subpoena or to give testimony and upon reasonable notice to all persons affected thereby, the Administrator administrator may apply to the court of common pleas Administrative Law Court for an order compelling compliance."
SECTION 4. Section 37-6-108 of the 1976 Code is amended to read:
"Section 37-6-108. (1)(A) After notice, and hearing the administrator may order a creditor, a person acting in on his behalf, or a person subject to this title to cease and desist from engaging in violations of this title. A respondent aggrieved by an order of the administrator may obtain judicial review of the order and the request a contested case before the Administrative Law Court in accordance with the Administrative Law Court's rules of procedure. The administrator may obtain a decree an order of the court for enforcement of its order in the court of common pleas from the Administrative Law Court for enforcement of his orders as provided in the Administrative Procedures Act and the Administrative Law Court's rules of procedure. The proceeding for review or enforcement is must be initiated by filing a petition in the court. with the Administrative Law Court in accordance with the Administrative Law Court's rules of procedure, and Copies copies of the petition request for a contested case hearing must be served upon all parties of record.
(2) Within thirty days after service of the petition for review upon the Administrator, or within any further time the court may allow, the Administrator shall transmit to the court the original or a certified copy of the entire record upon which the order is based, including any transcript of testimony, which need not be printed. By stipulation of all parties to the review proceeding, the record may be shortened. After hearing, the court may (a) reverse or modify the order if the findings of fact of the Administrator are clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, (b) grant any temporary relief or restraining order it deems just, and (c) enter an order enforcing, modifying, and enforcing as modified, or setting aside in whole or in part the order of the Administrator, or remanding the case to the Administrator for further proceedings.
(3) An objection not urged at the hearing shall not be considered by the court unless the failure to urge the objection is excused for good cause shown. A party may move the court to remand the case to the Administrator in the interest of justice for the purpose of adducing additional specified and material evidence and seeking findings thereon upon good cause shown for the failure to adduce this evidence before the Administrator.
(4)(B) The jurisdiction of the court Administrative Law Court shall be is exclusive, and its final judgment or decree order may be appealed in the manner provided by the South Carolina Appellate Court Rules. The administrator's copy of the testimony shall be available at reasonable times to all parties for examination without cost as provided in Sections 1-23-610 and 1-23-380.
(5)(C) A proceeding for review under request for a contested case hearing pursuant to this section must be initiated within thirty days after a copy of the order of the Administrator administrator is received. If no proceeding request is so initiated, the Administrator administrator may obtain a decree of the court of common pleas move for an order from the Administrative Law Court for enforcement of its his order upon a showing that the order was issued in compliance with this section, that no proceeding for review request for a contested case hearing was initiated within thirty days after a copy of the order was received, and that the respondent is subject to the jurisdiction of the court Administrative Law Court.
(6)(D) For purposes of this section and Sections 37-6-117 and 37-6-118, a violation of the South Carolina Unfair Trade Practices Act which arises arising out of the production, promotion, or sale of consumer goods, services, or interests in land is deemed to be considered a violation of this title subject to action by the administrator before the Administrative Law Court.
(7)(E) Unless otherwise specifically provided by law, the following administrative penalties, in the discretion of the administrator, may be levied against persons found to have engaged in violations of this title pursuant to subsection (1) (A) of this section:
(a)(1) If the violator is found to have violated repeatedly and intentionally any provision of this title, the violator must be fined in an amount not to exceed two thousand five hundred dollars and not to exceed ten thousand dollars for any transaction or occurrence or set of transactions or occurrences which violated multiple provisions of this title.
(b)(2) If the violator is shown to have violated any a previous lawful order of the administrator or court tribunal of competent jurisdiction, the violator, in the discretion of the administrator, may be fined in an amount not to exceed five thousand dollars for each violation.
(c)(3) The penalties in items subitems (a) (1) and (b) (2) of this subsection are in addition to any other penalties provided by law or any other remedies provided by law.
(8)(F) The administrator administrative law judge may make findings and issue and enforce cease and desist orders regarding unconscionable conduct or unconscionable debt collection pursuant to this section, but he the administrative law judge may not award damage, treble damage, or attorney's fee remedies to affected customers in these hearings."
SECTION 5. Section 37-6-113 of the 1976 Code is amended to read:
"Section 37-6-113. (1)(A) After demand, the administrator may bring a civil action against a creditor or a person subject to this title to recover actual damages sustained and excess charges paid by one or more consumers who have a right to recover explicitly granted by this title. In a civil action under pursuant to this subsection, penalties may not be recovered by the administrator. The court shall order amounts recovered under pursuant to this subsection to be paid to each consumer or set off against his obligation. A consumer's action, except a class action, takes precedence over a prior or subsequent action by the administrator with respect to the claim of that consumer. A consumer's class action takes precedence over a subsequent action by the administrator with respect to claims common to both actions, but the administrator may intervene. An administrator's action on behalf of a class of consumers takes precedence over a consumer's subsequent class action with respect to claims common to both actions. Whenever an action takes precedence over another action under pursuant to this subsection, the latter action may be stayed to the extent appropriate while the precedent action is pending and dismissed if the precedent action is dismissed with prejudice or results in a final judgment granting or denying the claim asserted in the precedent action. A defense available to a creditor in a civil action brought by a consumer is available to him in a civil action brought under pursuant to this subsection.
(2)(B) The administrator may bring a civil action against a creditor, a person acting in his behalf, or a person subject to this title to recover a civil penalty of no more than five thousand dollars for repeatedly and intentionally violating this title. A civil penalty pursuant to this subsection may not be imposed for a violation of this title occurring more than two years before the action is brought.
(3)(C) The Administrator administrator may bring a civil action or an administrative action, as provided in Section 37-6-108, against a creditor for failure to file notification in accordance with the provisions on notification (Section 37-6-202) pursuant to Section 37-6-202 or to pay fees in accordance with the provisions on fees (Section 37-6-203) pursuant to Section 37-6-203 to recover the fees the defendant has failed to pay and a civil penalty in an amount determined by the court not exceeding the greater of three times the amount of fees the defendant has failed to pay or $1,000 one thousand dollars."
SECTION 6. Section 37-6-401 of the 1976 Code is amended to read:
"Section 37-6-401. This part applies to the Administrator administrator, prescribes the procedures to be observed by him in exercising his powers under this title, and supplements the provisions of the Part on Powers and Functions of Administrator (Part 1) of this chapter and of the Part on Supervised Loans (Part 5) of the Chapter on Loans (Chapter 3). A conflict between the provisions of this part and the Administrative Procedures Act pursuant to Chapter 23, Title 1 or the rules governing practice before the Administrative Law Court must be resolved in favor of the Administrative Procedures Act and the rules governing practice before the Administrative Law Court."
SECTION 7. Section 37-6-414 of the 1976 Code is amended to read:
"Section 37-6-414. (1)(A) A person who has exhausted all administrative remedies available before the Administrator administrator and who is aggrieved by a final decision in a contested case the administrator's determination is entitled to judicial review under this part. a contested case hearing before the Administrative Law Court as provided in Section 1-23-600(D) and judicial review as provided in Sections 1-23-380(B) and 1-23-610. This section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate action or ruling of the Administrator administrative law court is immediately reviewable if review of the final decision of the Administrator administrative law court would not provide an adequate remedy.
(2)(B) Proceedings for review Contested case proceedings are instituted by filing a petition in the court of common pleas within thirty days after mailing by certified mail notice of the final decision of the Administrator or, if a rehearing is requested, within thirty days after the decision thereon request for a contested case hearing with the Administrative Law Court according to the rules of procedure of the Administrative Law Court. Copies of the petition request for a contested case hearing shall be served upon the Administrator administrator and all parties of record. The final decision of the administrative law judge may be appealed as provided for in Sections 1-23-380 and 1-23-610.
(3) The filing of the petition does not itself stay enforcement of the decision of the Administrator. The Administrator may grant, or the reviewing court may order, a stay upon appropriate terms.
(4) Within thirty days after the service of the petition, or within further time allowed by the court, the Administrator shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.
(5) If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the Administrator, the court may order that the additional evidence be taken before the Administrator upon conditions determined by the court. The Administrator may modify his findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
(6) The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the Administrator, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral arguments and receive written briefs.
(7) The court shall not substitute its judgment for that of the Administrator as to the weight of the evidence on questions of fact. The court may affirm the decision of the Administrator or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the Administrator;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
SECTION 8. Section 37-16-70 of the 1976 Code is amended to read:
"Section 37-16-70. (A) A prepaid legal services company violating this chapter is subject to any combination of the following: The department may file a request for a contested case hearing with the Administrative Law Court if a prepaid legal services company violates a provision of this chapter and the prepaid legal services company is subject to any combination of the following:
(1) an administrative order to cease and desist from committing violations of this chapter;
(2) administrative fines up to five thousand dollars; and
(3) revocation or denial of registration.
(B) Upon satisfactory evidence that a prepaid legal services company representative has violated or failed to comply with a provision of this chapter or regulation promulgated pursuant to the authority of this chapter, the administrator may revoke or suspend the company representative's authority. A prepaid legal services company representative may file a request for a contested case hearing with the Administrative Law Court if it believes it is aggrieved by the decision of the Administrator."
SECTION 9. Section 39-61-100 of the 1976 Code, as last amended by Act 142 of 1991, is further amended to read:
"Section 39-61-100. (1) (A) The administrator may order the club to cease and desist, or may revoke, suspend, or refuse to continue the certificate of authority of a club, whenever, after a hearing and for cause shown, he determines that the club: The department may file a request for a contested case hearing with the Administrative Law Court for an order requiring the club to cease and desist or an order revoking, suspending, or vacating the certificate of authority of a club, if the Administrative Law Court finds, after a hearing, that the club:
(a)(1) has violated or failed to comply with any provisions of this chapter or regulations promulgated under pursuant to the authority of this chapter;
(b)(2) has obtained a certificate of authority through wilful misrepresentation or fraud;
(c)(3) has engaged in fraudulent or deceptive practices;
(d)(4) has wilfully, orally or in writing, misrepresented the terms, benefits, privileges, and provisions of any service contract issued or to be issued by it or any other club;
(e)(5) is unable to meet its obligations as determined by generally accepted accounting principles;
(f)(6) has, after notice to the club of an alleged occurrence of any of items (a) (1) through (e) (5) of this section, refused without just cause to submit relevant information to the administrator with respect to the motor club services within this State.
(2) (B) In lieu of revocation, suspension, or refusal to continue a certificate of authority for a violation or violations of items (a) (1) through (f) (2) of subsection (1) (A) of this section, the administrator in his discretion administrative law judge may assess an administrative penalty of not less than one hundred nor more than one thousand dollars for each violation. No accumulation of these penalties may exceed five thousand dollars for matters commenced in any calendar year. These penalties may be assessed in connection with orders to cease and desist."
SECTION 10. Section 39-61-130 of the 1976 Code, as last amended by Act 155 of 1987, is further amended to read:
"Section 39-61-130. Upon satisfactory evidence that a club representative has violated or failed to comply with any provision of this chapter or regulation promulgated under pursuant to the authority of this chapter, the Administrator administrator may issue an order requiring the club representative to cease and desist from engaging in the violation or may revoke or suspend the club representative's authority. A club representative aggrieved by any action of the administrator taken pursuant to this provision may file a request for a contested case hearing with the Administrative Law Court."
SECTION 11. Section 40-39-150 of the 1976 Code is amended to read:
"Section 40-39-150. (A) Upon the finding that an action of a pawnbroker is in violation of the provisions of this chapter, or of a law or regulation of this State or of the federal government or an agency of the state or federal government, the administrator, after reasonable notice to the pawnbroker and an opportunity for the pawnbroker to be heard, shall order the pawnbroker to cease and desist from the action may file a request with the Administrative Law Court for a contested case hearing in which the administrator may seek an order requiring the pawnbroker to cease and desist from the action.
(B) The Administrator of the Department of Consumer Affairs administrative law judge may also impose also administrative fines of up to seven hundred fifty dollars for each offense upon persons violating any of the provisions of this chapter up to a maximum of fifteen thousand dollars for the same set of transactions or occurrences. Each violation constitutes a separate offense. In addition, any person violating the provisions of Sections 40-39-20 and 40-39-30 is guilty of a misdemeanor and, upon conviction, must be punished by a fine not exceeding one thousand dollars or by imprisonment for a term not exceeding sixty days, or both. The administrator administrative law judge may revoke or suspend a pawnbroker's certificate of authority in addition to the penalties enumerated provided in this section."
SECTION 12. Section 40-58-55 of the 1976 Code, as last amended by an act bearing Ratification Number 389, is further amended to read:
"Section 40-58-55. (A) The department may refuse to license an applicant or refuse to renew a license if it finds, after notice and a hearing pursuant to the Administrative Procedures Act, that the applicant or his agent has Upon request for a contested case hearing by a person whose application for a license or renewal of a license has been denied, the Administrative Law Court may review the determination by the department that the applicant or his agent has:
(1) violated a provision of this chapter or an order of the department;
(2) withheld material information in connection with an application for a license or its renewal, or made a material misstatement in connection with the application;
(3) been convicted of a felony or of an offense involving breach of trust, moral turpitude, fraud, or dishonest dealing within the past ten years.
(B) A person who was in business as a mortgage broker or is an agent of a broker before October 1, 1998, and who has been convicted of a felony or an offense involving breach of trust, moral turpitude, fraud, or dishonest dealing within the past ten years may continue in business as a mortgage broker or agent, but if a mortgage broker or an agent of a broker is convicted of an offense enumerated in item (3) of subsection (A) on or after October 1, 1998, that person is subject to the provisions of this chapter."
SECTION 13. Section 40-58-80 of the 1976 Code, as last amended by an act bearing Ratification Number 389, is amended to read:
"Section 40-58-80. (A) Upon the a finding that an action of a licensee may be in violation of this chapter, or of a law or regulation of this State or of the federal government or an agency of either, the department, after reasonable notice and an opportunity to be heard, shall order the licensee to cease and desist from the action may file a request for a contested case hearing with the Administrative Law Court seeking an order to require the licensee to cease and desist from the action.
(B) If an administrative law judge issues an order requiring the licensee to cease and desist from the action and the licensee fails to appeal the cease and desist order of the department in accordance with Section 40-58-90 and continues to engage in the action in violation of the department's order, the licensee is subject to a penalty of not less than one thousand or more than two thousand five hundred dollars, in the discretion of the department, for each action the licensee takes in violation of the department's order. The penalty provision of this section is in addition to and not instead of other provisions of law applicable to a licensee for the mortgage loan broker's failure to comply with an order of the department.
(C) The department administrative law judge, upon the a finding that a licensee has engaged intentionally or repeatedly in a course of conduct in violation of this chapter, may revoke the license temporarily or permanently in its discretion after reasonable notice and an opportunity to be heard and may increase the mortgage broker's required bond up to a maximum of twenty-five thousand dollars to ensure that the public is protected adequately. The department administrative law judge also may impose upon persons violating the provisions of this chapter administrative fines of not more than five hundred dollars for each offense or not more than five thousand dollars for the same set of transactions or occurrences. Each violation constitutes a separate offense. The department, if If it determines is determined that the required bond must be increased, the administrative law judge shall state in writing the reasons for the increase and immediately serve it upon the mortgage broker and the department. The mortgage broker shall provide the new bond within thirty days or the department shall revoke the license of the mortgage broker.
(D) A person who violates a provision of this chapter is guilty of a misdemeanor, and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than six months, or both.
(E) Nothing in this chapter limits a statutory or common law right of a person to bring an action in a court for an act or the right of the State to punish a person for a violation of a law.
(F) The administrator of the department may suspend the right of an individual to engage in mortgage broker activity after finding that an originator or other employee of a licensed mortgage broker has failed to comply with a provision of this chapter. After an action by the administrator pursuant to this section, the originator or other employee of a licensed mortgage broker may request a contested case hearing before the Administrative Law Court."
SECTION 14. Section 40-58-90 of the 1976 Code, as last amended by an act bearing Ratification Number 389, is amended to read:
"Section 40-58-90. An aggrieved party, within thirty days after the final decision of the department and by written notice to the department, may appeal to the circuit court of the county where the appellant resides as provided by Article 3, Chapter 23 of Title 1, the Administrative Procedures Act All appeals are to be made pursuant to the Administrative Procedures Act and the rules governing practice before the Administrative Law Court."
SECTION 15. Section 40-68-160 of the 1976 Code is amended to read:
"Section 40-68-160. (A) For the purposes of this section, 'conviction' includes a plea of guilty or nolo contendere or a finding of guilt.
Disciplinary action may be taken against a licensee by the department, as provided in subsection (B), on any of the following grounds:
(1) the conviction of a licensee or a controlling person of a licensee of bribery, fraud, or intentional or material misrepresentation in obtaining, attempting to obtain, or renewing a license;
(2) the conviction of a licensee or a controlling person of a licensee of a crime that relates to the operation of a staff leasing service or the ability of the licensee or a controlling person of a licensee to operate a staff leasing service;
(3) the conviction of a licensee or a controlling person of a licensee of a crime that relates to the classification, misclassification, or under-reporting of employees under the South Carolina Workers' Compensation Act;
(4) the conviction of a licensee or a controlling person of a licensee of a crime that relates to the establishment or maintenance of a self-insurance program, whether health insurance, workers' compensation insurance, or other insurance;
(5) the conviction of a licensee or a controlling person of a licensee of a crime that relates to fraud, deceit, or misconduct in the operation of a staff leasing service;
(6) engaging in staff leasing services without a license;
(7) transferring or attempting to transfer a license issued under pursuant to this chapter;
(8) violating this chapter or any order or regulation issued by the department under pursuant to this chapter;
(9) failing to notify the department, in writing, of the felony conviction of a controlling person not later than the thirtieth day after the date on which that conviction is entered;
(10) failing to cooperate with an investigation, examination, or audit of the licensee's records conducted by the licensee's insurance company or its designee, as provided by the insurance contract or as authorized by law by the South Carolina Department of Insurance;
(11) failing to notify the department and the South Carolina Department of Insurance not later than the thirtieth day after the effective date of a change in ownership, principal business address, or the address of accounts and records;
(12) failing to correct a tax filing or payment deficiencies within a reasonable time as determined by the department;
(13) refusing, after reasonable notice, to meet reasonable health and safety requirements within the licensee's control and made known to the licensee by a federal or state agency;
(14) failing to correct a delinquency in the payment of the licensee's insurance premiums within a reasonable time;
(15) failing to correct a delinquency in the payment of an employee benefit plan premiums or contributions within a reasonable time; or
(16) knowingly making a material misrepresentation to an insurance company, to the department, or other governmental agency.
(B) Upon finding that a licensee has violated one or more provisions of this section, the department may:
(1) deny an application for a license;
(2) revoke, restrict, or refuse to renew a license;
(3) may impose an administrative penalty in an amount not less than one thousand dollars for each violation, but not more than fifty thousand dollars;
(4) issue a reprimand; or
(5) place the licensee on probation for the period and subject to conditions that the department specifies.
(C) On revocation of a license, the licensee immediately shall return the revoked license to the department.
(D) Disciplinary action, a denial of an application for a new or renewal license or a revocation of a license, or a determination that a controlling person is unqualified may occur subject to the Administrative Procedures Act, with notice to, and an opportunity for a hearing by, the affected applicant, licensee, or controlling person. All disciplinary hearings pursuant to this section are before the administrative law court.
(E) If a license is revoked or renewal is denied, the affected licensee may request a reinstatement hearing after a minimum of one year. The department may reinstate or renew the license only if the cause of the nonrenewal or revocation has been corrected."
SECTION 16. Section 44-79-80(8) and (9) of the 1976 Code is amended to read:
"(8) The administrator may order the center to cease and desist, or may revoke, suspend, or refuse to continue the certificate of authority of a center, whenever , after a hearing and for causes shown, he determines that the center has violated or failed to comply with any provisions of this chapter or regulations promulgated under the authority of this chapter, or if after notice and opportunity for a hearing, it is shown that: file a request for a contested case hearing with the administrative law court in order to obtain a cease and desist order or in order to obtain an order revoking, suspending, or vacating the certificate of authority of a center, if the department determines that the center has violated or failed to comply with any provision of this chapter or regulation promulgated under the authority of this chapter or if the department shows that:
(a) any document or declaration required by subsection (4), items (a) through (g) were false or misleading; or
(b) by clear and convincing evidence the center or its agents, officers, or employees have engaged in false, fraudulent, or deceptive conduct in its dealings with customers;.
(9) In lieu of revocation, suspension, or refusal to continue a certificate of authority of a center, the administrator in his discretion administrative law judge may assess an administrative penalty for a violation of subsection (4) or (8) of this section not to exceed five hundred dollars for each violation, not to exceed five thousand dollars for matters commenced in any calendar year. These penalties may be assessed in connection with orders to cease and desist."
SECTION 17. Section 56-28-110 of the 1976 Code is amended to read:
"Section 56-28-110. Every Each subsequent purchaser must be notified by the seller of the fact that the vehicle was required to be repurchased under pursuant to the terms of this chapter or another provision of law relating to motor vehicle warranties. Failure to notify properly any purchaser of the requirements of this section subjects the seller to an administrative penalty to be imposed by the administrator up to a maximum of five hundred dollars for each vehicle. If a seller fails properly to notify any purchaser of the requirements of this section, the department may impose an administrative penalty up to a maximum of five hundred dollars per vehicle. A seller aggrieved by the action of the department may seek review by filing a request for a contested case hearing with the Administrative Law Court."
SECTION 18. Section 59-102-70 of the 1976 Code, as last amended by Act 300 of 2004, is amended to read:
"Section 59-102-70. (A) The Department of Consumer Affairs may suspend, revoke, or refuse to renew a registration for conduct that would have justified denial of registration pursuant to Section 59-102-60(B).
(B) The Department of Consumer Affairs may deny, suspend, revoke, or refuse to renew a certificate of registration or licensure only after proper notice and an opportunity for a hearing. The Administrative Procedures Act applies to this chapter A person aggrieved by an action taken by the department pursuant to this subsection or pursuant to Section 59-102-60(B) may request review by filing a request for a contested case hearing with the Administrative Law Court.
(C) The Department of Consumer Affairs may file a request for a contested case hearing with the Administrative Law Court for an order revoking or suspending the registration of an athlete agent for cause or for a violation of a provision of this chapter."
SECTION 19. Section 59-102-170 of the 1976 Code, as last amended by Act 300 of 2004, is amended to read:
"Section 59-102-170. Upon a finding that an athlete agent has violated a provision of this chapter, as determined from admissions of the athlete agent freely and voluntarily made or as the result of a contested case hearing conducted pursuant to the Administrative Procedures Act, the Department of Consumer Affairs the Administrative Law Judge may assess a fine against an athlete agent not to exceed one hundred thousand dollars for a violation of this chapter."
SECTION 20. Section 37-11-100 of the 1976 Code is amended to read:
"Section 37-11-100. The department, upon proper notice and hearing in accordance with the Administrative Procedures Act and department regulations, may deny, suspend, or revoke licenses issued under this chapter or assess a monetary penalty for violations of provisions under this chapter or the regulations promulgated under this chapter may file a request for a contested case hearing with the Administrative Law Court to deny, suspend, or revoke a license issued pursuant to this chapter or assess a monetary penalty for violation of a provision of this chapter or a regulation promulgated pursuant to this chapter."
SECTION 21. Section 37-6-402(1) of the 1976 Code is amended to read:
"(1) 'Contested case' means a proceeding, including, but not restricted to, a proceeding initiated one pursuant to the provisions on administrative enforcement orders (Section 37-6-108(1)) as provided in Section 37-6-108(A) and licensing matters in which the legal rights, duties, or privileges of a party are required by law to be determined after an opportunity for hearing."
SECTION 22. Sections 37-6-415 and 37-11-110 of the 1976 Code are hereby repealed.
SECTION 23. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 24. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 25. This act takes effect on July 1, 2005, and applies to all licensing and administrative hearings involving the South Carolina Department of Consumer Affairs.
This web page was last updated on Tuesday, June 23, 2009 at 2:53 P.M.