South Carolina General Assembly
110th Session, 1993-1994

Bill 4458


                    Current Status
Introducing Body:               House
Bill Number:                    4458
Ratification Number:            438
Act Number:                     385
Primary Sponsor:                Boan
Type of Legislation:            GB
Subject:                        Real Estate Commission,
                                professional licensing boards
Date Bill Passed both Bodies:   19940426
Computer Document Number:       BBM/10817JM.94
Governor's Action:              S
Date of Governor's Action:      19940510
Introduced Date:                19940112
Date of Last Amendment:         19940421
Last History Body:              ------
Last History Date:              19940510
Last History Type:              Act No. 385
Scope of Legislation:           Statewide
All Sponsors:                   Boan
                                Hodges
                                Clyborne
                                Kirsh
Type of Legislation:            General Bill

History

Bill   Body    Date          Action Description              CMN  Leg Involved
----   ------  ------------  ------------------------------  ---  ------------
4458   ------  19940510      Act No. 385
4458   ------  19940510      Signed by Governor
4458   ------  19940504      Ratified R 438
4458   Senate  19940426      Concurred in House amendment,
                             enrolled for ratification
4458   House   19940421      Senate amendments amended,
                             returned to Senate
4458   House   19940406      Debate adjourned on Senate
                             amendments until Wednesday,
                             April 13, 1994
4458   Senate  19940404      Read third time, returned to
                             House with amendment
4458   Senate  19940331      Amended, read second time,
                             ordered to receive third
                             reading on Monday, April 4,
                             1994
4458   Senate  19940329      Committee Report: Favorable     12
                             with amendment
4458   Senate  19940224      Introduced, read first time,    12
                             referred to Committee
4458   House   19940223      Read third time, sent to
                             Senate
4458   House   19940222      Amended, read second time
4458   House   19940209      Committee Report: Favorable     26
                             with amendment
4458   House   19940112      Introduced, read first time,    26
                             referred to Committee
View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

(A385, R438, H4458)

AN ACT TO AMEND SECTION 1-30-65, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DEPARTMENT OF LABOR, LICENSING, AND REGULATION, SO AS TO INCLUDE THE SOUTH CAROLINA REAL ESTATE COMMISSION AND THE REAL ESTATE APPRAISERS BOARD WITHIN THE LIST OF PROFESSIONAL AND OCCUPATIONAL LICENSING BOARDS INCORPORATED IN AND ADMINISTERED AS PART OF THE DEPARTMENT AND TO CORRECT CERTAIN REFERENCES TO OTHER PROFESSIONAL AND OCCUPATIONAL LICENSING BOARDS UNDER THE DEPARTMENT; TO AMEND SECTIONS 40-57-20, AS AMENDED, 40-57-50, 40-57-80, 40-57-90, AS AMENDED, 40-57-100, AS AMENDED, 40-57-110, AS AMENDED, 40-57-115, 40-57-120, 40-57-140, AS AMENDED, 40-57-155, 40-57-160, AS AMENDED, 40-57-170, AS AMENDED, 40-57-180, 40-57-190, 40-57-200, 40-57-210, AND 40-57-220, AS AMENDED, RELATING TO REAL ESTATE BROKERS, COUNSELORS, SALESMEN, APPRAISERS, AUCTIONEERS, AND PROPERTY MANAGERS, AND SECTIONS 40-60-20, AS AMENDED, 40-60-50, AS AMENDED, 40-60-60, AS AMENDED, 40-60-100, AS AMENDED, 40-60-120, AS AMENDED, 40-60-160, AS AMENDED, AND 40-60-170, AS AMENDED, RELATING TO THE SOUTH CAROLINA REAL ESTATE APPRAISER REGISTRATION, LICENSE, AND CERTIFICATION ACT, SO AS TO, AMONG OTHER THINGS, ABOLISH THE OFFICE OF REAL ESTATE COMMISSIONER AND DEVOLVE THE POWERS, DUTIES, AND RESPONSIBILITIES OF THAT OFFICE UPON THE REAL ESTATE COMMISSION OR ITS CHAIRMAN OR UPON THE REAL ESTATE APPRAISERS BOARD OR THE BOARD'S CHAIRMAN, DELETE REFERENCES TO THE COMMISSIONER, DELETE CERTAIN OTHER LANGUAGE AND PROVISIONS, AND ADD CERTAIN PROVISIONS; TO AMEND SECTION 40-73-15, RELATING TO PROFESSIONS AND OCCUPATIONS ADMINISTERED BY THE DEPARTMENT OF LABOR, LICENSING, AND REGULATION, SO AS TO CLARIFY REFERENCES TO CERTAIN OF THESE PROFESSIONS AND OCCUPATIONS; TO AMEND SECTIONS 27-29-20, 27-29-30, 27-29-50, 27-29-60, 27-29-70, 27-29-80, 27-29-90, 27-29-100, 27-29-110, 27-29-120, 27-29-130, 27-29-140, 27-29-190, AND 27-29-200, RELATING TO THE UNIFORM LAND SALES PRACTICE ACT, SO AS TO, AMONG OTHER THINGS, DELETE REFERENCE TO THE SOUTH CAROLINA REAL ESTATE COMMISSIONER AND PROVIDE THAT CHAPTER 29, TITLE 27 SHALL BE ADMINISTERED BY THE SOUTH CAROLINA REAL ESTATE COMMISSION RATHER THAN THE REAL ESTATE COMMISSIONER; AND TO AMEND SECTIONS 27-32-10, 27-32-20, 27-32-120, AS AMENDED, 27-32-130, 27-32-140, 27-32-150, 27-32-160, 27-32-180, 27-32-190, 27-32-200, 27-32-210, 27-32-220, 27-32-230, AND 27-32-250, RELATING TO VACATION TIME SHARING PLANS, SO AS TO, AMONG OTHER THINGS, DELETE REFERENCES TO THE REAL ESTATE COMMISSIONER AND TRANSFER THE COMMISSIONER'S DUTIES, POWERS, AND RESPONSIBILITIES TO THE REAL ESTATE COMMISSION.

Be it enacted by the General Assembly of the State of South Carolina:

Real Estate Commission, Real Estate Appraisers Board, administered by cabinet-level department; etc.

SECTION 1. Section 1-30-65(C) of the 1976 Code, as added by Act 181 of 1993, is amended to read:

"(C) Professional and Occupational Licensing Boards including:

Accountancy Board, formerly provided for at Section 40-1-10, et seq.;

Architectural Board of Examiners, formerly provided for at Section 40-3-10, et seq.;

Athletic Commission, formerly provided for at Section 52-7-10, et seq.;

Auctioneers Commission, formerly provided for at Section 40-6-10, et seq.;

Barber Examiners Board, formerly provided for at Section 40-7-10, et seq.;

Barrier Free Design Board, formerly provided for at Section 10-5-210, et seq.;

Building Code Council, formerly provided for at Section 6-9-60, et seq.;

Burglar Alarm Business, formerly provided for at Section 40-79-10, et seq.;

Chiropractic Examiners Board, formerly provided for at Section 40-9-10, et seq.;

Contractors Licensing Board, formerly provided for at Section 40-11-10, et seq.;

Cosmetology Board, formerly provided for at Section 40-13-10, et seq.;

Dentistry Board, formerly provided for at Section 40-15-10, et seq.;

Embalmers and Funeral Directors/Funeral Service Board, formerly provided for at Section 40-19-10, et seq.;

Engineers and Land Surveyors Board, formerly provided for at Section 40-21-10, et seq.;

Environmental Systems Operators Board, formerly provided for at Section 40-23-10, et seq.;

Fire Sprinkler Contractors Board, formerly provided for at Section 23-45-10, et seq.;

Foresters Registration Board, formerly provided for at Section 48-27-10, et seq.;

Geologists Registration Board, formerly provided for at Section 40-77-10, et seq.;

Harbor Pilots/Pilotage Commission, formerly provided for at Section 54-15-40, et seq.;

Liquefied Petroleum Gas Board, formerly provided for at Section 39-43-20, et seq.;

Manufactured Housing Board, formerly provided for at Section 40-29-10, et seq.;

Modular Appeals Board, formerly provided for at Section 23-43-50, et seq.;

Nursing Board, formerly provided for at Section 40-33-10, et seq.;

Nursing Home Administrators Board, formerly provided for at Section 40-35-10, et seq.;

Occupational Therapy Board, formerly provided for at Section 40-36-10, et seq.;

Optometry Board, formerly provided for at Section 40-37-10, et seq.;

Opticianry Board, formerly provided for at Section 40-38-10, et seq.;

Pharmacy Board, formerly provided for at Section 40-43-10, et seq.;

Physical Therapy Examiners, formerly provided for at Section 40-45-10, et seq.;

Physicians, Surgeons and Osteopaths/Board of Medical Examiners, formerly provided for at Section 40-47-10, et seq.;

Podiatry Examiners, formerly provided for at Section 40-51-10, et seq.;

Professional Counselors, Marital and Family Therapists, formerly provided for at Section 40-75-10, et seq.;

Psychology Board of Examiners, formerly provided for at Section 40-55-20, et seq.;

Pyrotechnic Safety Board, formerly provided for at Section 40-56-10, et seq.;

Real Estate Commission regulating Real Estate Brokers, Counsellors, Salesmen, Auctioneers, and Property Managers, formerly provided for at Section 40-57-10 et seq., and Real Estate Appraisers Board, formerly provided for at Section 40-60-10 et seq.;

Residential Home Builders Board, formerly provided for at Section 40-59-10, et seq.;

Sanitarian Board of Examiners, formerly provided for at Section 40-61-10, et seq.;

Social Worker Board of Examiners, formerly provided for at Section 40-63-10, et seq.;

Speech/Language Pathology and Audiology Board of Examiners, formerly provided for at Section 40-67-10, et seq.;

Veterinary Medical Examiners, formerly provided for at Section 40-69-10, et seq."

Powers transferred

SECTION 2. Section 40-57-20 of the 1976 Code, as last amended by Act 12 of 1991, is further amended to read:

"Section 40-57-20. It is unlawful for any person to act as a real estate broker, counsellor, real estate salesman, property manager, or real estate auctioneer or to advertise or assume to act as such without first having obtained a license issued by the Real Estate Commission. Any person violating this provision is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not more than five hundred dollars or by imprisonment for a term of not more than six months, or both, in the discretion of the court."

Provisions deleted

SECTION 3. Section 40-57-50 of the 1976 Code is amended to read:

"Section 40-57-50. The legislative delegations, including the Senators of the counties comprising each congressional district shall select a person experienced in real estate transactions to serve on the Real Estate Commission of South Carolina to establish the policy, and to issue general rules and regulations in carrying out the provisions of this chapter. The members of the commission shall serve for terms of four years, or until their successors shall have been selected and qualified. The members of the commission shall select one member from the State at large, and shall elect a chairman and vice-chairman from their membership. In addition to the real estate members on the board effective July 1, 1978, two persons not professionally engaged in the real estate business shall be appointed to the board by the Governor, with the advice and consent of the Senate. The terms of the public members shall be for four years and until successors are appointed and qualify. The two public members shall be appointed to assume office July 1, 1978."

Powers transferred; provisions deleted; etc.

SECTION 4. Section 40-57-80 of the 1976 Code is amended to read:

"Section 40-57-80. The Director of the Department of Labor, Licensing, and Regulation shall appoint any employees as may be necessary to carry out the work of the Real Estate Commission and the South Carolina Real Estate Appraisers Board defined in Section 40-60-20."

Powers transferred

SECTION 5. Section 40-57-90 of the 1976 Code, as last amended by Act 12 of 1991, is further amended to read:

"Section 40-57-90. Licenses as real estate broker, counsellor, real estate salesman, auctioneer, or property manager must be granted only to persons who submit satisfactory proof to the commission that they are trustworthy and bear a good reputation for honesty and fair dealing, and are competent to transact the business of a real estate broker, counsellor, real estate salesman, auctioneer, or property manager in that manner as to safeguard the interest of the public. A person applying for a license or an examination shall first submit to a credit report and satisfy requirements established by regulation. A real estate salesman must be employed by a real estate broker-in-charge in order to be licensed."

Powers transferred

SECTION 6. Section 40-57-100 of the 1976 Code, as last amended by Act 12 of 1991, is further amended to read:

"Section 40-57-100. (1) Any person desiring to act as a real estate broker, counsellor, salesman, property manager, or auctioneer shall file with the Real Estate Commission an application in writing upon that form and with that detail as the South Carolina Real Estate Commission prescribes, and each applicant shall first pass to the satisfaction of the commission the examination prescribed, unless he is exempt therefrom.

(2) Prerequisites for taking an examination for the broker's license are a minimum of three years of actual experience immediately preceding application as a licensed real estate salesman in this State or in another state having similar requirements and successful completion of at least ninety hours of instruction, including time spent on examinations. The ninety hours include the required sixty hours of instruction for a real estate salesman's license in the basic fundamentals of real estate and other related matters, all as specified by the Real Estate Commission and conducted by:

(a) a university or duly accredited college wherever situated if the credits were earned within five years prior to license application. For purposes of computing required hours of classroom instruction, one credit equals ten classroom hours; or

(b) a bona fide business school situated in this State and approved by the commission; or

(c) an institution, organization, or association approved by the commission; or

(d) correspondence where the course of instruction is part of an extension department of an accredited college or university.

(3) In lieu of the above prerequisites for the taking of a broker's license examination, an applicant may furnish to the commission evidence of one of the following:

(a) a baccalaureate degree with a major in real estate from an accredited college or university, or a Juris Doctor, or Bachelor of Laws degree;

(b) proof acceptable to the commission of at least five years of equivalent experience preceding license application in business activities closely related to real estate transactions.

(4) Upon satisfactorily passing the broker's examination, the applicant shall apply for his broker's license within ninety days from the examination date. Failure to do so will result in the applicant being required to reapply and be reexamined for his broker's license.

(5) As a prerequisite to taking the first year real estate sales examination, every applicant shall furnish evidence satisfactory to the Real Estate Commission of successful completion of thirty classroom hours of instruction in the fundamentals of real estate as prescribed by subsection (2). Upon passing the first year real estate sales examination, a first year real estate sales license must be immediately issued.

(6) Within one year of passing the first year exam each applicant shall satisfactorily complete an additional thirty hours of instruction in order to qualify for the final sales examination. The applicant also shall have held his first year real estate sales license in an active status for no less than a total of twelve months prior to taking the final sales examination and his license must be active at the time of taking the examination. The final sales examination must be taken not less than twelve nor more than fifteen months following the first year examination. Failure to meet these requirements will result in the cancellation of the first year sales license. (7) In lieu of the classroom hours required for a final sales license, an applicant may furnish to the commission one of the following:

(a) satisfactory evidence of at least three years' experience within the past five years in real estate transactions acceptable to the commission;

(b) evidence that he has successfully completed at least six credit hours in real estate or real estate related subjects at an accredited college or university;

(c) evidence of a Juris Doctor or Bachelor of Laws degree.

(8) As a prerequisite to taking the property manager's examination, every applicant shall furnish evidence satisfactory to the Real Estate Commission of successful completion of thirty classroom hours of instruction in the fundamentals of real estate property management, all as specified by the Real Estate Commission and conducted by:

(a) a university or duly accredited college wherever situated, if the credits were earned within five years prior to license application. For purposes of computing required hours of classroom instruction, one credit equals ten classroom hours; or

(b) a bona fide business school situated in this State and approved by the commission; or

(c) an institution, organization, or association approved by the commission; or

(d) correspondence where such course of instruction is part of an extension department of an accredited college or university.

(9) In lieu of the above prerequisites for the taking of a property manager's license examination, an applicant may furnish to the commission evidence of one of the following:

(a) a baccalaureate degree with a major in real estate from an accredited college or university, or a Juris Doctor, or Bachelor of Laws degree;

(b) satisfactory evidence of at least three years' experience within the past five years in business activities closely related to real estate property management transactions."

Powers transferred

SECTION 7. Section 40-57-110 of the 1976 Code, as last amended by Act 12 of 1991, is further amended to read:

"Section 40-57-110. In addition to the proof of honesty, integrity, truthfulness, and good reputation of an applicant for a license, either real estate broker, counsellor, salesman, property manager, or auctioneer, the applicant shall submit to a written examination to be prepared and conducted by the commission or an institution designated by the commission."

Powers transferred

SECTION 8. Section 40-57-115 of the 1976 Code, as added by Act 12 of 1991, is amended to read:

"Section 40-57-115. (A) The commission, through its regulations and guidelines, shall establish standards relative to the establishment and conducting of all education courses required by this chapter and the review, approval, or regulation of schools, organizations, associations, institutions, or instructors offering these courses including, but not limited to, sponsorship by accredited colleges, universities, and private business entities and organizations; establishment, approval, and review of curriculum; instructors; hours of attendance; classroom facilities; enrollment and cancellation policies; texts; examinations; certificates of completion; and other operating procedures.

(B) The commission, by regulation, shall establish reasonable fees relative to the review, approval, or regulation of schools, organizations, associations, institutions, or instructors offering the education courses required by this chapter.

(C) The commission may deny, reprimand, fine, suspend, or revoke the approval of an instructor or school, organization, association, institution, or other educational provider if, after a hearing, the commission finds that the applicant, instructor, or educational provider has violated or failed to satisfy the provisions of this chapter or the regulations and guidelines established under this chapter."

Powers transferred

SECTION 9. Section 40-57-120 of the 1976 Code is amended to read:

"Section 40-57-120. The commission shall issue licenses for three classifications: one for each real estate broker; one for each real estate salesman; and one for each property manager. The commission shall issue designated licenses within each classification as necessary and as established by regulation. No person may be licensed in more than one classification at any one time."

Powers transferred, etc.

SECTION 10. Section 40-57-140 of the 1976 Code, as last amended by Act 609 of 1988, is further amended to read:

"Section 40-57-140. (A) A nonresident of this State may become a real estate broker, real estate salesman, or property manager upon complying with all the provisions and conditions of this chapter. A person who is licensed as a real estate broker, real estate salesman, or property manager in another state, territory of the United States, or the District of Columbia shall submit a certificate of licensure from the real estate regulatory authority from the other jurisdictions at the time of filing an application for examination and copies of the records of any disciplinary actions taken against the applicant's license. In the application for examination, all questions of equivalency of academic and experience requirements of other states, territories, or the District of Columbia must be determined by the commission and, at the discretion of the commission, the nonresident applicant must comply with additional requirements specified by the commission.

(B) The commission may enter into reciprocal agreements with real estate regulatory authorities of other states which provide for waivers of education requirements or examinations if the commission considers the education and examination requirements of another state to be substantially equivalent to the requirements of this chapter and its regulations.

(C) A nonresident real estate salesman license may not be granted to an applicant unless that applicant is affiliated with a resident or nonresident broker licensed by the commission. If a nonresident licensee terminates the affiliation with a broker licensed by the commission, the license of the nonresident is canceled unless he places the license on inactive status or affiliates with another broker licensed by the commission.

(D) A nonresident is not required to maintain a place of business in this State if he maintains an active place of business in the state of domicile. Every nonresident applicant shall file an irrevocable consent that suits and actions may be commenced against the applicant in the proper court in a judicial circuit of the state in which a cause of action may arise or in which the plaintiff may reside, by the service of a process or pleading, authorized by the laws of this State, on the chairman of the commission or any authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing, and Regulation, the consent stipulating and agreeing that the service of the process or pleading must be taken and held in all courts to be as valid and binding as if service had been made upon the applicant in the State of South Carolina. If the process or pleadings mentioned in this chapter are served upon the chairman of the commission or any authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing, and Regulation, it must be by duplicate copies, one of which must be filed in the office of the commission and the other immediately forwarded by the commission by registered or certified mail to the applicant against whom the process or pleadings are directed, at the last known address of the applicant as shown by the records of the commission.

(E) (1) A resident licensee who becomes a nonresident, within sixty days, must notify the commission in writing of the change in residency and comply with nonresident requirements or place his license on inactive status to avoid cancellation of his license.

(2) A nonresident licensee who becomes a resident of South Carolina, within sixty days, must notify the commission in writing of the change in residency and comply with the requirements of this chapter or place his license on inactive status to avoid cancellation of his license.

(3) Failure to notify the commission of the change in residency and compliance with the requirements of this section is a violation of the license law subject to the penalties as provided by Section 40-57-170.

(F) All nonresident applicants and licensees must comply with all requirements of commission regulations and of this chapter. The commission may adopt regulations necessary for the regulation of nonresident licensees."

Powers transferred

SECTION 11. Section 40-57-155 of the 1976 Code, as added by Act 170 of 1993, is amended to read:

"Section 40-57-155. As a condition of license renewal, a broker or sales agent must satisfactorily complete eight hours of approved course instruction biennially as prescribed by the commission by a course provider approved by the commission. The eight hours must include a minimum of two hours of instruction on changes in federal and state law affecting licensees. A licensee having successfully completed a thirty-hour course for qualification as a broker is not required to participate in the continuing education program for that particular year. A licensee who decides to become inactive is not required to participate in the continuing education program but must complete the eight-hour requirement before returning to active status.

The commission shall administer the continuing education program and shall approve and regulate courses, instructors, and course providers to implement the purposes of this section. In administering the program, the commission may promulgate regulations to require licensees to provide proof of compliance with the continuing education requirements as a condition of license renewal. The commission may contract with an outside provider for the recordkeeping services required by this section.

Temporary fees must be charged by and paid to the commission until permanent fees are established by regulation as follows:

(1) an annual filing fee of fifteen dollars;

(2) a fee of fifteen dollars for providing certification to another state of a licensee meeting the South Carolina continuing education requirement;

(3) a fee of one hundred dollars for each course approved;

(4) a fee of one hundred dollars for each instructor approved;

(5) a fee of fifty dollars for each course approval renewal;

(6) a fee of fifty dollars for each instructor approval renewal.

The commission shall promulgate regulations prescribing the overall parameters of the continuing education program.

This section also applies to nonresident licensees. Where applicable, a nonresident licensee who has successfully satisfied the continuing education requirements of his resident state and certifies this information to the continuing education administrator or service is considered to have satisfied the requirements of this section. A nonresident who lives in a state which does not require continuing education must satisfy the South Carolina continuing education requirements.

All information received by an outside contract service provider in the course and scope of his duties is confidential and proprietary and may not be used or disclosed beyond the requirements of the duties imposed upon them by law.

A licensee upon reaching the age of sixty-five, with a minimum of twenty-five years of licensure, is exempt from the requirements of this section."

Powers transferred

SECTION 12. Section 40-57-160 of the 1976 Code, as last amended by Act 170 of 1993, is further amended to read:

"Section 40-57-160. It is the duty of the commission to issue a license to engage in the business of real estate broker, counsellor, salesman, property manager, or auctioneer to all applicants who are duly qualified under, and who comply with, all requirements of this chapter and all regulations of the commission. The license must be in that form and size as the commission prescribes and must not be transferable. The licenses expire annually."

Powers transferred

SECTION 13. Section 40-57-170 of the 1976 Code, as last amended by Section 931 of Act 181 of 1993, is further amended to read:

"Section 40-57-170. (A) The commission may upon its own motion or a verified complaint together with evidence, documentary or otherwise, presented in connection therewith, making out a prima facie case, investigate the actions of any real estate broker, counsellor, salesman, auctioneer, property manager, or any person who has unlawfully assumed to act in either capacity within this State and has the power to suspend, revoke, and cancel any license issued under the provisions of this chapter and assess fines at any time where the licensee has by material misrepresentation obtained a license, or where the licensee is found by the commission to be guilty of any of the following acts:

(1) making any substantial misrepresentation;

(2) making any false promises of a character likely to influence, persuade, or induce;

(3) pursuing a continued and flagrant course of misrepresentation, or making false promises through agents or salesmen or any medium of advertising, or otherwise;

(4) any conduct in a real estate transaction which demonstrates bad faith, dishonesty, untrustworthiness, or incompetency in a manner as to endanger the interest of the public;

(5) acting for more than one party in a transaction without the knowledge of all parties for whom he acts;

(6) acting in the dual capacity of broker and undisclosed principal in any transaction;

(7) representing or attempting to represent, if a salesman, a real estate broker other than his employer without the express knowledge and consent of his employer;

(8) guaranteeing or authorizing or permitting any person to guarantee future profits which may result from the resale of real property;

(9) making of dual sets of contracts, written or otherwise, which would falsify the transaction by stating a sales price higher than the actual sales price in an effort to obtain a larger loan from any lender or lending institution or for the purpose of misinforming any governmental agency;

(10) being convicted in any court of competent jurisdiction of this State, any other state, or any federal court of forgery, embezzlement, breach of trust, larceny, obtaining money or property under false pretense, extortion, fraud, conspiracy to defraud, or any other offense involving moral turpitude, or pleading guilty or nolo contendere to any such offense;

(11) failing, within a reasonable time, to account for or to remit any monies coming into his possession which belong to others;

(12) paying a commission or compensation to any person for performing the services of a real estate broker, salesman, or property manager who has not first secured his license under the South Carolina Real Estate Licensing Act. A South Carolina licensed broker may pay a part of his commission on a cooperative basis to a licensed broker of another state if the nonresident broker does not conduct in this State any of the negotiations for which a fee, compensation, or commission is paid;

(13) failing, if a broker, to place, as soon after receipt as is practicably possible, any deposit money or other money received by him in a real estate transaction in a separate real estate trust or escrow account maintained by him in a banking institution authorized to do business in this State, wherein the funds must be kept until the transaction is consummated or otherwise terminated, at which time a full accounting thereof must be made by the broker. Records relative to the deposit, maintenance, and withdrawal of the funds must be properly maintained and made available to a representative of the South Carolina Real Estate Commission upon request;

(14) violating any provision of law relating to a buyer's freedom of choice in choosing an attorney, insurance agent, or title insurance agent to handle his real estate transaction;

(15) failing, if a broker or property manager, to deposit all security deposits, damage deposits, advance fees, and rental proceeds received by the broker or property manager on or before the next banking day in a separate escrow or real estate trust account so designated. All these funds except rental proceeds shall remain until the lease or rental transaction expires or is terminated, at which time a full accounting must be made by the broker or property manager. Rental proceeds must be disbursed within a reasonable time after deposit and clearance of the deposit by the bank. Records relative to the receipt, deposit, maintenance, and withdrawal of the funds must be properly maintained and made available to a representative of the South Carolina Real Estate Commission upon request;

(16) failing, if a licensee, to report to the commission in writing by certified mail, return receipt requested, within ten days after receipt by the licensee of those convictions set forth in item (10) of this subsection;

(17) a real estate licensee shall disclose on a form approved by the commission for which party he is acting and may not receive compensation from more than one party except with the full knowledge and consent of all parties;

(18) violating any regulation promulgated by the commission.

(B)(1) The commission may make any public or private investigation which it considers necessary to determine whether any person has violated this chapter or any order or regulation hereunder, or to aid in the enforcement of this chapter or in the prescribing of regulations and forms thereunder.

(2) The commission may require or permit any person to file a statement in writing, under oath or otherwise as the commission determines, as to all facts and circumstances concerning the matter to be investigated.

(3) For the purpose of any investigation or proceeding under this chapter, the commission or any officer designated by regulation may administer oaths or affirmations, and upon its own motion or upon request of any party shall subpoena witnesses, compel their attendance, take evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence.

(4) Upon failure to obey a subpoena or to answer questions propounded by the investigating officer and upon reasonable notice to all persons affected thereby, the commission, through the Attorney General, may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an order compelling compliance.

(C) The commission may:

(1) issue an order requiring a person to cease and desist from any unlawful practice and to take such affirmative action as in the judgment of the commission will carry out the purposes of this chapter if, after notice and hearing, the commission determines that a person has:

(a) violated any provisions of this chapter.

(b) directly or through any agent or employees knowingly engaged in any false, deceptive, or misleading practices in the sale or rental of real estate, including advertising and promotions.

(c) violated any lawful order or rule of the commission.

(2) make findings of fact in writing that the public interest will be irreparably harmed by delay in issuing an order and in such case may issue a temporary cease and desist order. Prior to issuing the temporary cease and desist order, the commission, whenever possible by telephone or otherwise, shall give notice of the proposal to issue a cease and desist order to the person. Every temporary cease and desist order shall include in its terms a provision that upon request a hearing will be held promptly to determine whether or not it becomes permanent."

Powers transferred; hearing

SECTION 14. Section 40-57-180 of the 1976 Code is amended to read:

"Section 40-57-180. Before refusing, suspending, or revoking any license and before issuing any public or private reprimand or assessing any fines, the commission shall notify the applicant or licensee of the charges against him and must grant him an opportunity to be heard. The hearing must be held not less than thirty days nor more than ninety days after the applicant or licensee is notified of the charges against him. If charges are brought against a salesman, his broker must also be notified of the charges. Hearing of the charges must be at the time and place designated by the commission and must be conducted in accordance with the State Administrative Procedures Act. The hearing must be attended by at least five members of the Real Estate Commission, including the member from the congressional district in which the applicant or licensee resides."

Powers transferred; appointment by department director; etc.

SECTION 15. Section 40-57-190 of the 1976 Code is amended to read:

"Section 40-57-190. The commission or any authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing, and Regulation shall have power to administer oaths and to issue subpoenas for the attendance of witnesses and the production of books, records, accounts, and papers."

Powers transferred

SECTION 16. Section 40-57-200 of the 1976 Code is amended to read:

"Section 40-57-200. The commission shall render a decision on any complaint within sixty days from the final hearing on such complaint and shall give immediate notice in writing of such ruling or decision to the applicant or licensee affected thereby, and where the investigation or hearing shall have been instituted by complaint filed, to the party or parties by whom the complaint was made. If such ruling shall be to the prejudice of, or shall injuriously affect the licensee, the commission shall also state in such notice the date upon which the ruling or decision shall become effective, and such date shall be not less than thirty days after the date of the notice."

Powers transferred; etc.

SECTION 17. Section 40-57-210 of the 1976 Code is amended to read:

"Section 40-57-210. The commission shall maintain a public docket or other record, in which the commission shall record, from time to time as made, the rulings or decisions upon all complaints filed with the commission, and all investigations instituted by the commission in the first instance, upon or in connection with which any such hearing shall have been had, or in which the licensee charged shall have made no defense."

Powers transferred; appeals; provisions deleted

SECTION 18. Section 40-57-220 of the 1976 Code, as last amended by Section 932 of Act 181 of 1993, is further amended to read:

"Section 40-57-220. Every applicant or licensee aggrieved by a decision of the commission in refusing, suspending, or revoking any license or in issuing reprimands provided under the provisions of this chapter may appeal from the decision of the commission to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."

Definitions deleted

SECTION 19. Section 40-60-20 of the 1976 Code, as added by Act 12 of 1991 and as last amended by Act 143 of 1993, is further amended to read:

"Section 40-60-20. As used in this chapter, unless the context requires otherwise:

(1) `Analysis' means a study of real estate or real property other than one estimating value.

(2) `Appraisal' or `real estate appraisal' means an analysis, opinion, or conclusion as to the value of identified real estate or specified interests in real estate, including a feasibility study, marketability study, or other study or analysis that involves the rendering of an analysis, opinion, or conclusion of value performed for a fee or other consideration, including valuation or evaluation performed for a person who advises, consults, or prepares.

(3) `Appraisal Foundation' means the Appraisal Foundation established on November 30, 1987, as a not-for-profit corporation under the laws of Illinois.

(4) `Appraisal report' means any communication, written or oral, of an appraisal. The testimony of an appraiser dealing with the appraiser's analyses, conclusions, or opinions concerning identified real property is deemed to be an oral appraisal report.

(5) `Appraisal subcommittee' means the designees of the heads of the federal financial institutions regulatory agencies established by the Federal Financial Institutions Examination Council Act of 1978 (12 U.S.C. Section 3301, et seq.), as amended.

(6) `Appraiser' means a person who is a state registered real estate appraiser, a state licensed real estate appraiser, a state certified real estate appraiser, or an appraiser apprentice.

(7) `Appraiser Apprentice' means a person who holds a valid permit as an appraiser apprentice issued under the provisions of this chapter.

(8) `Board' means the South Carolina Real Estate Appraisers Board established pursuant to the provisions of this chapter.

(9) `Evaluation assignment' means an engagement for which an appraiser is employed or retained to give an analysis, opinion, or conclusion that relates to the nature, quality, or utility of identified real estate or identified real property.

(10) `Federally-related transaction' means any real estate-related financial transaction which:

(a) a federal financial institution regulatory agency or the Resolution Trust Corporation engages in, contracts for, or regulates; and

(b) requires the services of an appraiser.

(11) `Independent appraisal assignment' means an engagement for which an appraiser is employed or retained to act, or would be perceived by third parties or the public as acting, as a disinterested third party in rendering an unbiased analysis, opinion, or conclusion relating to the nature, quality, value, or utility of identified real estate or identified real property.

(12) `Person' means individuals, corporations, partnerships, or associations, foreign and domestic.

(13) `Real estate' means an identified parcel of land, including improvements, if any.

(14) `Real estate appraisal activity' means the act or process of valuation of real estate or real property and preparing an appraisal report.

(15) `Real property' means one or more defined interests, benefits, and rights inherent in the ownership of real estate.

(16) `Specialized services' means services other than independent appraisal assignments which are performed by an appraiser. Specialized services may include marketing, financing, and feasibility studies, valuations, analyses, opinions, and conclusions given in connection with activities such as real estate brokerage, mortgage banking, real estate counseling, and real estate tax counseling.

(17) `Standards of professional appraisal practice' means the uniform standards of professional appraisal practice as adopted by the Appraisal Standards Board of the Appraisal Foundation and adopted by the board.

(18) `State' includes any state, district, territory, possession, or province of the United States or Canada.

(19) `State certified real estate appraiser' means a person who holds a valid certificate as either a state certified residential real estate appraiser or a state certified general real estate appraiser issued under the provisions of this chapter.

(20) `State certified general real estate appraiser' means a person who holds a valid certificate as a state certified general real estate appraiser issued under the provisions of this chapter.

(21) `State certified residential real estate appraiser' means a person who holds a valid certificate as a state certified residential real estate appraiser issued under the provisions of this chapter.

(22) `State licensed real estate appraiser' means a person who holds a valid license as a state licensed real estate appraiser issued under the provisions of this chapter.

(23) `State registered real estate appraiser' means a person who holds a valid registration as a state registered real estate appraiser issued under the provisions of this chapter.

(24) `Valuation' means an estimate of the value of real estate or real property.

(25) `Valuation assignment' means an engagement for which an appraiser is employed or retained to give an analysis, opinion, or conclusion that estimates the value of an identified parcel of real estate or identified real property at a particular point in time.

(26) `Timberland' means forest land that is producing, or is capable of producing, timber as a crop.

(27) `Market analysis' means a study of real estate market conditions for a specific type of property."

Provisions deleted

SECTION 20. Section 40-60-50 of the 1976 Code, as added by Act 12 of 1991 and as last amended by Act 143 of 1993, is further amended to read:

"Section 40-60-50. (A) There is created the South Carolina Real Estate Appraisers Board which consists of seven members. All members must be residents of this State. One member must be a public member who may not be connected in any way with the practice of real estate appraisal, real estate brokerage, or mortgage lending. One member must be a licensed real estate broker who is not a real estate appraiser. One member must be actively engaged in mortgage lending, representing supervised financial institutions, who is not a real estate licensee or a real estate appraiser and who also must not be connected in any way with the brokerage of real estate, the appraisal of real estate, or the review of real estate appraisals. Four members must be real estate appraisers who have been actively engaged in real estate appraisal for at least three years. In appointing real estate appraisers to the board, while not automatically excluding other appraisers, the Governor shall give preference to real estate appraisers whose primary source of income is derived from appraising real estate and not real estate brokerage.

(B) The Governor shall appoint the members of the board, upon the advice and consent of the Senate, with consideration given to appropriate geographic representation and to areas of appraisal expertise. The appointments made when the Senate is not in session are effective until the Senate confirms or denies that appointment.

(C) Each real estate appraiser member of the board appointed after July 1, 1992, must be a state certified real estate appraiser or a state licensed real estate appraiser. At least two of the appraiser members appointed after July 1, 1993, must be state certified general real estate appraisers.

(D) The term of each member of the board is three years and until their successors are appointed and qualified. In the event of a vacancy, the Governor shall appoint a person to fill the vacancy, and the person so appointed shall serve for the remainder of the unexpired term.

(E) Upon expiration of their terms, members of the board shall continue to hold office until the appointment and qualification of their successors. No person may serve as a member of the board for more than two consecutive terms. The Governor, after giving notice and opportunity for a hearing, may remove from office a member of the board for:

(1) inability to perform or neglecting to perform the duties required of members;

(2) incompetence; or

(3) dishonest conduct.

(F) The members of the board shall annually elect a chairman from among the members to preside at board meetings.

(G) The board shall meet at least once each calendar quarter, or as often as is necessary, and remain in session as long as the chairman considers it necessary to give full consideration to the business before the board. A quorum of the board is four members. Members of the board or support staff, in a spirit of cooperation, may confer with similar boards of other states, attend interstate meetings, and generally do those acts and things as may seem advisable in the advancement of the profession and the standards of real estate appraisal activity.

(H) Members of the board are entitled to per diem, subsistence, and mileage as is provided by law for state boards, committees, and commissions.

(I) The board shall establish policy and promulgate regulations consistent with this chapter and through its regulations shall have the full power to regulate the issuance of permits, registrations, licenses, and certifications, to discipline appraisers in any manner permitted by this chapter, to establish further qualification for permits, registrations, licenses, and certifications consistent with this chapter, to regulate approved courses and course providers or sponsors, and to establish standards for real estate appraisals consistent with the standards recognized by the appraisal subcommittee.

(J) The board shall prepare specifications for all licensing and certification examinations, solicit bids and enter into contracts with one or more persons, educational testing services, or organizations for the preparation of a bank of questions and answers for licensing and certification examinations and administer or contract for the administration of examinations in those places and at those times as considered appropriate."

Powers transferred

SECTION 21. Section 40-60-60 of the 1976 Code, as added by Act 12 of 1991 and as last amended by Act 143 of 1993, is further amended to read:

"Section 40-60-60. (A) A person desiring to act as a state licensed or state certified real estate appraiser must file an application for examination, licensure, or certification with the board. A person desiring to act as a state registered real estate appraiser must file an application for registration with the board. A person desiring to act as an appraiser apprentice must file an application for a permit with the board. The applications must be in the form and detail the board prescribes.

(B) Each application for examination, permit, registration, licensure, or certification as a real estate appraiser, or for the renewal of a permit, registration, license, or certification, must be accompanied by the appropriate fee which must be prescribed by the board by regulation.

(C) No fee or portion of a fee required pursuant to this chapter may be refunded.

(D) The board may transmit to the appropriate federal authority, at least annually, a roster of individuals who have become state licensed real estate appraisers and state certified real estate appraisers and must collect and transmit any information or fees established under Public Law 101-73, Title XI, Real Estate Appraisal Reform Amendments. The board may collect a processing fee necessary to carry out its function under this subsection.

(E) The board shall issue a permit, registration, license, or certification to engage in the practice of real estate appraising to all applicants who are qualified under, and who comply with, all the requirements of this chapter and all regulations promulgated by the board. The permit, registration, license, or certification remains the property of the State and, upon suspension or revocation of the permit, registration, license, or certification must be returned immediately to the board with any related pocket card. Permits, registrations, licenses, and certifications expire on June thirtieth of each year.

(F) An appraiser apprentice, state registered real estate appraiser, state licensed real estate appraiser, or a state certified real estate appraiser who fails or refuses, after written notice from the board to apply for renewal and pay the fee and all penalties imposed, is practicing without a permit, registration, license, or certification and is subject to the penalties provided therefor in this chapter and any civil or criminal penalties authorized by law.

(G) An appraiser apprentice, state registered real estate appraiser, state licensed real estate appraiser, or a state certified real estate appraiser under this chapter who fails to apply for the renewal of his permit, registration, license, or certification and pay the required fee on or before the date of its expiration shall pay a late penalty established by regulation in addition to the renewal fee.

(H) The board, through its regulations, may establish those other reasonable fees to aid in the enforcement and administration of this chapter.

(I) Any check which is presented to the board as payment for any fee which the board is permitted to charge under this chapter and which is returned unpaid may be cause for denial of a permit, registration, license, or certification or for imposing any sanction permitted by this chapter.

(J) Except as provided for in subsection (D), all fees collected pursuant to the provisions of this chapter must be deposited by the board in the state general fund."

Powers transferred; etc.

SECTION 22. Section 40-60-100 of the 1976 Code, as added by Act 12 of 1991 and as last amended by Act 143 of 1993, is further amended to read:

"Section 40-60-100. (A) Every applicant for permitting, registration, licensure, or certification under this chapter who is not a resident of South Carolina shall submit, with the application for permitting, registration, licensure, or certification, an irrevocable consent that service of process upon the applicant may be made by delivery of the process to the chairman of the board or any authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing, and Regulation, if, in an action against the applicant in a court of South Carolina arising out of the applicant's activities as an appraiser, the plaintiff, in the exercise of due diligence, may not effect personal service upon the applicant.

(B) A nonresident of South Carolina who has complied with the provisions of subsection (A) of this section may obtain a permit, registration, license, or certification by conforming to all of the provisions of this chapter relating to the permit, registration, license, or certification sought.

(C) A person who is licensed or certified to practice real estate appraising in other states shall submit an attestation of licensure or certification from the real estate appraiser regulatory authority of the other jurisdictions at the time of filing an application for examination and copies of the records of any disciplinary actions taken against the applicant's license or certification. In the application for examination, all questions of equivalency of academic and experience requirements of other states must be determined by the board and, at the discretion of the board, the nonresident applicant must comply with additional requirements specified by the board.

(D) The board may enter into reciprocal agreements with real estate appraiser regulatory authorities of other jurisdictions which provide for waivers of education requirements or examinations if the board considers the education and examination requirements of another jurisdiction to be substantially equivalent to the requirements of this chapter and its regulations."

Powers transferred

SECTION 23. Section 40-60-120 of the 1976 Code, as added by Act 12 of 1991 and as last amended by Act 143 of 1993, is further amended to read:

"Section 40-60-120. (A) The board shall prescribe the form of a wall certificate to denote that an individual is an appraiser apprentice, a state registered real estate appraiser, a state licensed real estate appraiser, a state certified residential real estate appraiser, or a state certified general real estate appraiser, as the case may be. The board shall mail the wall certificate to the appraiser whose duty it is to display the wall certificate conspicuously in the appraiser's place of business. The board also shall prepare and deliver a pocket card indicating that the person whose name appears thereon is an appraiser apprentice, a state registered real estate appraiser, a state licensed real estate appraiser, a state certified residential real estate appraiser, or a state certified general real estate appraiser.

(B) A permit, registration, license, or certification issued under authority of this chapter must bear a number assigned by the board. When signing an appraisal report, an appraiser apprentice shall place his permit number adjacent to or immediately below his title of `Appraiser Apprentice'. When signing an appraisal report, a state registered real estate appraiser shall place his registration number adjacent to or immediately below his title of `State Registered Real Estate Appraiser'. When signing an appraisal report, a state licensed real estate appraiser shall place his license number adjacent to or immediately below his title of `State Licensed Real Estate Appraiser'. When signing an appraisal report, a state certified residential real estate appraiser shall place his certificate number adjacent to or immediately below his title of `State Certified Residential Real Estate Appraiser'. When signing an appraisal report, a state certified general real estate appraiser shall place his certificate number adjacent to or immediately below his title of `State Certified General Real Estate Appraiser'. The permit, registration, license, or certificate number must be used in all statements of qualification, contracts, or other instruments used by the appraiser when reference is made to his apprentice, registered, licensed, or certified status.

(C) All real estate appraisals given in connection with federally-related transactions in this State must be in writing and contain the permit, registration, license, or certification number assigned by the board to the real estate appraiser.

(D) Wall certificates and pocket cards shall remain the property of the State and, upon any suspension or revocation of a permit, registration, license, or certification pursuant to this chapter, the individual holding the related wall certificate or pocket card immediately shall return the wall certificate or pocket card to the board."

Real Estate Commissioner deleted; powers transferred; etc.

SECTION 24. Section 40-60-160 of the 1976 Code, as added by Act 12 of 1991 and as last amended by Section 938 of Act 181 of 1993, is further amended to read:

"Section 40-60-160. (A) Whenever a complaint filed with the board involves an appraisal report which varies from a sales, lease, or exchange price the board may in its discretion decline to conduct an investigation.

(B) A person authorized to conduct an investigation on behalf of the board shall have access to and may examine any writings, documents, or other material which may be related to an investigation.

(C) In the conduct of an investigation or proceeding under this chapter, the chairman of the board, or any authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing, and Regulation, may issue subpoenas to compel production of those writings, documents, or material on behalf of the board. After the service of a notice of hearing, the chairman of the board may issue subpoenas to compel production of those writings, documents, or material, either on behalf of the board or at the request of a respondent. The chairman of the board, the board, any authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing, and Regulation, or the respondent may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an order requiring compliance. Failure to comply with an order is punishable as for contempt of court.

(D) If technical assistance is required in an investigation due to its complexity, the board may contract on behalf of the board for consultant services provided:

(1) no member of the board or commission obtains financial gain for himself through these consultant services;

(2) no person with whom a member of the board or commission or a member of his household is employed or negotiating or has an arrangement concerning prospective employment, may provide these consultant services.

(E) The results of all investigations may be reported only to the board and the records of the investigations are not subject to subpoena in civil actions. Records of investigations must be kept by the board and no part of any investigative record may be released for any purpose other than a hearing before the board or its designated hearing officer, review by another law enforcement agency or lawful licensing authority upon issuance of a subpoena from the agency or authority or at the discretion of the board, review by the respondent after the service of a notice of hearing, or an appeal of a decision by the board to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. After service of a notice of hearing, a respondent has a right to obtain a copy of the investigative record pertaining to the respondent.

(F) Whenever the board issues a disciplinary sanction pursuant to the provisions of this chapter, the board shall publish the sanction in its official newsletter unless the sanction is a private reprimand.

(G) The board shall maintain a public docket or record, in which the board shall record, from time to time as made, the rulings or decisions upon all complaints filed with the board and all investigations instituted by the board, upon or in connection with which any hearing has been held, or in which a state registered real estate appraiser, a state licensed real estate appraiser, or state certified real estate appraiser has made no defense unless the board issues a private reprimand in that instance."

Powers transferred; review by administrative law judge

SECTION 25. Section 40-60-170 of the 1976 Code, as added by Act 12 of 1991 and as last amended by Section 939 of Act 181 of 1993, is further amended to read:

"Section 40-60-170. (A) Before the board shall impose on any appraiser any sanction permitted by this chapter or deny issuance of a registration, license, or certification to an applicant, it shall provide for a hearing for the appraiser in accordance with the Administrative Procedures Act.

(B) The date of the hearing must not be less than thirty nor more than one hundred twenty days from the date after the appraiser or applicant is notified of the charges against him.

(C) If an appraiser or applicant fails to appear at any hearing after reasonable notice, the board may proceed to hear the evidence against the appraiser or applicant and take action as if the appraiser or applicant had been present. A notice of hearing or final decision of the board in a disciplinary proceeding must be served upon the appraiser or applicant by personal service or by certified mail, return receipt requested, to the last known address of record with the board. If the material is returned marked `unclaimed' or `refused' or is undeliverable and if the appraiser or applicant may not be located after diligent effort, the chairman of the board or any authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing, and Regulation is considered to be the agent for the appraiser or applicant for the purposes of this section, and service upon the chairman of the board or any authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing, and Regulation is considered service upon the appraiser or applicant.

(D) A decision by the board to revoke or suspend a registration, license, or certification or to restrict, limit, or otherwise discipline a registration, license, or certification holder must be by majority vote of the total membership of the board. A disciplinary action is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the registration, license, or certification holder within thirty days from the date of delivery of the board's decision to the registration, license, or certification holder. A copy of the petition must be served upon the chairman of the board or any authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing, and Regulation.

(E) A person who has exhausted all administrative remedies available within this chapter and who is aggrieved by a final decision of the board is entitled to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1.

(F) No stay or supersedeas may be granted for more than six months pending appeal from a decision by the board to revoke, suspend, or otherwise restrict a license, certification, or registration."

Administrative coverage clarified; expanded

SECTION 26. Section 40-73-15(a) of the 1976 Code, as added by Act 181 of 1993, is amended to read:

"(a) The following professions and occupations hereafter must be administered by the Department of Labor, Licensing, and Regulation:

Accountants

Architects

Athletic Commission

Auctioneers

Barbers and Barbering

Barrier Free Design Board

Building Code Council

Burglar Alarm Business

Chiropractors and Chiropractic

Contractors

Cosmetologists

Dentists, Dental Hygienists, and Dental Technicians

Embalmers and Funeral Directors/Funeral Service Board

Engineers and Land Surveyors

Environmental Systems Operators

Fire Sprinkler Contractors

Foresters Registration Board

Geologists

Harbor Pilots/Pilotage Commission

Liquefied Petroleum Gas Board

Manufactured Housing Board

Modular Appeals Board

Nurses

Nursing Home Administrators

Occupational Therapists

Optometrists

Opticians

Pharmacists

Physical Therapists

Physicians, Surgeons, and Osteopaths

Podiatrists and Podiatry

Professional Counselors, Marital and Family Therapists

Psychologists

Pyrotechnic Safety Board

Real Estate Appraisers

Real Estate Brokers, Counsellors, Salesmen,

Auctioneers and Property Managers

Residential Home Builders

Sanitarians

Social Workers

Speech/Language Pathologists and Audiologists

Veterinarians."

Powers transferred

SECTION 27. Section 27-29-20 of the 1976 Code is amended to read:

"Section 27-29-20. This chapter shall be administered by the South Carolina Real Estate Commission."

Powers transferred

SECTION 28. Section 27-29-30 of the 1976 Code is amended to read: "Section 27-29-30. (a) Unless the method of disposition is adopted for the purpose of evasion of this chapter, the provisions of this chapter do not apply to offers or dispositions of an interest in land:

(1) by a purchaser of subdivided lands for his own account in a single or isolated transaction;

(2) if fewer than twenty-five separate lots, parcels, units, or interests in subdivided lands are offered by a person in a period of twelve months;

(3) on which there is a residential, commercial, or industrial building, or as to which there is a legal obligation on the part of the seller to construct such a building within two years from date of disposition;

(4) to persons who are engaged in the business of construction of buildings for resale, or to persons who acquire an interest in subdivided lands for the purpose of engaging, and do engage in the business of construction of buildings for resale;

(5) pursuant to court order;

(6) by any government or governmental agency;

(7) as cemetery lots or interests.

(b) Unless the method of disposition is adopted for the purpose of evasion of this chapter, the provisions of this chapter do not apply to:

(1) offers or dispositions of evidences of indebtedness secured by a mortgage or deed of trust of real estate;

(2) offers or dispositions of securities or units of interest issued by a real estate investment trust regulated under any state or federal statute;

(3) a subdivision as to which the plan of disposition is to dispose to ten or fewer persons;

(4) a subdivision as to which the commission has granted an exemption as provided in Section 27-29-100."

Powers transferred; etc.

SECTION 29. Section 27-29-50 of the 1976 Code is amended to read:

"Section 27-29-50. (a) The application for registration of subdivided lands shall be filed as prescribed by the commission's rules and shall contain the following documents and information:

(1) an irrevocable appointment of the South Carolina Real Estate Commission or any duly authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing, and Regulation to receive service of any lawful process in any noncriminal proceeding arising under this chapter against the applicant or his personal representative;

(2) a legal description of the subdivided lands offered for registration, together with a map showing the division proposed or made, and the dimensions of the lots, parcels, units or interests and the relation of the subdivided lands to existing streets, roads, and other off-site improvements;

(3) the states or jurisdictions in which an application for registration or similar document has been filed, and any adverse order, judgment, or decree entered in connection with the subdivided lands by the regulatory authorities in each jurisdiction or by any court;

(4) the applicant's name, address, and the form, date and jurisdiction of organization, and the address of each of its offices in this State;

(5) the name, address, and principal occupation for the past five years of every director and officer of the applicant or person occupying a similar status or performing similar functions; the extent and nature of his interest in the applicant or the subdivided lands as of a specified date within thirty days of the filing of the application;

(6) a statement, in a form acceptable to the commission, of the condition of the title to the subdivided lands including encumbrances as of a specified date within thirty days of the date of application by a title opinion of a licensed attorney, not a salaried employee, officer, or director of the applicant or owner, or by other evidence of title acceptable to the commission;

(7) copies of the instruments which will be delivered to a purchaser to evidence his interest in the subdivided lands and of the contracts and other agreements which a purchaser will be required to agree to or sign;

(8) copies of the instruments by which the interest in the subdivided lands was acquired and a statement of any lien or encumbrance upon the title and copies of the instruments creating the lien or encumbrance, if any, with data as to recording;

(9) if there is a lien or encumbrance affecting more than one lot, parcel, unit, or interest a statement of the consequences for a purchaser of failure to discharge the lien or encumbrance and the steps, if any, taken to protect the purchaser in case of this eventuality;

(10) copies of instruments creating easements, restrictions, or other encumbrances affecting the subdivided lands;

(11) a statement of the zoning and other governmental regulations affecting the use of the subdivided lands and also of any existing tax and existing or proposed special taxes or assessments which affect the subdivided lands;

(12) a statement of the existing provisions for access, sewage disposal, water, and other public utilities in the subdivision; a statement of the improvements to be installed, the schedule for their completion, and a statement as to the provisions for improvement maintenance;

(13) a narrative description of the promotional plan for the disposition of the subdivided lands together with copies of all advertising material which has been prepared for public distribution by any means of communication;

(14) the proposed public offering statement;

(15) any other information, including any current financial statement, which the commission by its rules requires for the protection of purchasers.

(b) If the subdivider registers additional subdivided lands to be offered for disposition, he may consolidate the subsequent registration with any earlier registration offering subdivided lands for disposition under the same promotional plan.

(c) The subdivider shall immediately report any material changes in the information contained in an application for registration."

Powers transferred

SECTION 30. Section 27-29-60 of the 1976 Code is amended to read:

"Section 27-29-60. (a) A public offering statement shall disclose fully and accurately the physical characteristics of the subdivided lands offered and shall make known to prospective purchasers all unusual and material circumstances or features affecting the subdivided lands. The proposed public offering statement submitted to the commission shall be in a form prescribed by rules and shall include the following:

(1) the name and principal address of the subdivider;

(2) a general description of the subdivided lands stating the total number of lots, parcels, units, or interests in the offering;

(3) the significant terms of any encumbrances, easements, liens, and restrictions, including zoning and other regulations affecting the subdivided lands and each unit or lot, and a statement of all existing taxes and existing or proposed special taxes or assessments which affect the subdivided lands;

(4) a statement of the use for which the property is offered;

(5) information concerning improvements, including streets, water supply, levees, drainage control systems, irrigation systems, sewage disposal facilities and customary utilities, and the estimated cost, date of completion, and responsibility for construction and maintenance of existing and proposed improvements which are referred to in connection with the offering or disposition of any interest in subdivided lands;

(6) additional information required by the commission to assure full and fair disclosure to prospective purchasers.

(b) The public offering statement shall not be used for any promotional purposes before registration of the subdivided lands and afterwards only if it is used in its entirety. No person may advertise or represent that the commission approves or recommends the subdivided lands or disposition thereof. No portion of the public offering statement may be underscored, italicized, or printed in larger or heavier or different color type than the remainder of the statement unless the commission requires it.

(c) The commission may require the subdivider to alter or amend the proposed public offering statement in order to assure full and fair disclosure to prospective purchasers, and no change in the substance of the promotional plan or plan of disposition or development of the subdivision may be made after registration without notifying the commission and without making appropriate amendment of the public offering statement. A public offering statement is not current unless all amendments are incorporated."

Powers transferred

SECTION 31. Section 27-29-70 of the 1976 Code is amended to read:

"Section 27-29-70. Upon receipt of an application for registration in proper form, the commission shall forthwith initiate an examination to determine that:

(1) The subdivider can convey or cause to be conveyed the interest in subdivided lands offered for disposition if the purchaser complies with the terms of the offer, and when appropriate, that release clauses, conveyances in trust, or other safeguards have been provided;

(2) There is reasonable assurance that all proposed improvements will be completed as represented;

(3) The advertising material and the general promotional plan are not false or misleading and comply with the standards prescribed by the commission in its rules and afford full and fair disclosure;

(4) The subdivider has not, or if a corporation, its officers, directors, and principals have not, been convicted of a crime involving land dispositions or any aspect of the land sales business in this State, the United States, or any other state or foreign country within the past ten years and has not been subject to any injunction or administrative order within the past ten years restraining a false or misleading promotional plan involving land dispositions;

(5) The public offering statement requirements of this chapter have been satisfied."

Powers transferred

SECTION 32. Section 27-29-80 of the 1976 Code is amended to read:

"Section 27-29-80. (a) Upon receipt of the application for registration in proper form, the commission shall issue a notice of filing to the applicant. Within ninety days from the date of the notice of filing, the commission shall enter an order registering the subdivided lands or rejecting the registration. If no order of rejection is entered within ninety days from the date of notice of filing, the land is considered registered unless the applicant has consented in writing to a delay.

(b) If the commission affirmatively determines, upon inquiry and examination, that the requirements of Section 27-29-70 have been met, it shall enter an order registering the subdivided lands and shall designate the form of the public offering statement.

(c) If the commission determines upon inquiry and examination that any of the requirements of Section 27-29-70 have not been met, the commission shall notify the applicant that the application for registration must be corrected in the particulars specified within fifteen days. If the requirements are not met within the time allowed the commission shall enter an order rejecting the registration which shall include the findings of fact upon which the order is based. The order rejecting the registration shall not become effective for twenty days during which time the applicant may petition for reconsideration and shall be entitled to a hearing."

Powers transferred

SECTION 33. Section 27-29-90 of the 1976 Code is amended to read:

"Section 27-29-90. (a) Within thirty days after each annual anniversary date of an order registering subdivided lands, the subdivider shall file a renewal report in the form prescribed by the rules of the commission. The report shall reflect any material changes in information contained in the original application for registration. The report may, at the option of the commission, be consolidated with the annual renewal report required by Section 27-29-200(c).

(b) The commission at its option may permit the filing of annual renewal reports within thirty days after the anniversary date of the consolidated registration in lieu of the anniversary date of the original registration."

Powers transferred

SECTION 34. Section 27-29-100 of the 1976 Code is amended to read:

"Section 27-29-100. (a) The commission shall prescribe reasonable rules after a public hearing with notice of it published once in a newspaper with statewide circulation not less than five days nor more than fifteen days before the hearing and mailed to all subdividers not less than five days nor more than fifteen days before the public hearing. The rules shall include, but not be limited to, provisions for advertising standards to assure full and fair disclosure; provisions for escrow or trust agreements or other means reasonably to assure that all improvements referred to in the application for registration and advertising will be completed and that purchasers will receive the interest in land contracted for; provisions for operating procedures; and other rules as are necessary and proper to accomplish the purpose of this chapter.

(b) The commission by rule or by an order, after reasonable notice and hearing, may require the filing of advertising material relating to subdivided lands before its distribution.

(c) If it appears that a person has engaged or is about to engage in an act or practice constituting a violation of a provision of this chapter, or a rule or order hereunder, the commission, with or without prior administrative proceedings may bring an action in the circuit court to enjoin the acts or practices and to enforce compliance with this chapter or any rule or order hereunder. Upon proper showing, injunctive relief or temporary restraining orders shall be granted, and a receiver or conservator may be appointed. The commission is not required to post a bond in any court proceedings.

(d) The commission may intervene in a suit involving subdivided lands. In any suit by or against a subdivider involving subdivided lands, the subdivider promptly shall furnish the commission notice of the suit and copies of all pleadings.

(e) The commission may:

(1) accept registrations filed in other states or with the federal government;

(2) contract with similar agencies in this State or other jurisdictions to perform investigative functions;

(3) accept grants-in-aid from any source.

(f) The commission shall cooperate with similar agencies in other jurisdictions to establish uniform filing procedures and forms, uniform public offering statements, advertising standards, rules, and common administrative practices.

(g) The commission may exempt one hundred or fewer lots, parcels, units, or interests in a subdivision from the provisions of this chapter if it determines that the plan of promotion and disposition is primarily directed to persons in the local community in which the subdivision is situated."

Powers transferred

SECTION 35. Section 27-29-110 of the 1976 Code is amended to read:

"Section 27-29-110. (a) The commission may:

(1) make the necessary public or private investigations within or outside of this State to determine whether any person has violated or is about to violate this chapter or any rule or order hereunder, or to aid in the enforcement of this chapter or in the prescribing of rules and forms hereunder;

(2) require or permit any person to file a statement in writing, under oath or otherwise as the commission determines, as to all the facts and circumstances concerning the matter to be investigated.

(b) For the purpose of any investigation or proceeding under this chapter, the commission or any officer designated by rule may administer oaths or affirmations, and upon its own motion or upon request of any party shall subpoena witnesses, compel their attendance, take evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence.

(c) Upon failure to obey a subpoena or to answer questions propounded by the investigating officer and upon reasonable notice to all persons affected thereby, the commission may apply to the circuit court for an order compelling compliance."

Powers transferred; provisions added, deleted

SECTION 36. Section 27-29-120 of the 1976 Code is amended to read:

"Section 27-29-120. (a) If the commission determines after notice and hearing that a person has:

(1) violated any provision of this chapter;

(2) directly or through an agent or employee knowingly engaged in any false, deceptive, or misleading advertising, promotional, or sales methods to offer or dispose of an interest in subdivided lands;

(3) made any substantial change in the plan of disposition and development of the subdivided lands subsequent to the order of registration without obtaining prior written approval from the commission;

(4) disposed of any subdivided lands which have not been registered with the commission;

(5) violated any lawful order or rule of the commission, it may issue an order requiring the person to cease and desist from the unlawful practice and to take such affirmative action as in the judgment of the commission will carry out the purposes of this chapter.

(b) Whenever the commission has reason to believe that any person is violating or intends to violate any provision of this article, it may, in addition to all other remedies, order such person to immediately cease and desist and refrain from such conduct. The commission may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from such conduct. An administrative law judge may issue a temporary injunction ex parte, and upon notice and full hearing may issue any other order in the matter it deems proper. No bond shall be required of the commission by an administrative law judge as a condition to the issuance of any injunction or order contemplated by the provisions of this section."

Powers transferred

SECTION 37. Section 27-29-130 of the 1976 Code is amended to read:

"Section 27-29-130. (a) A registration may be revoked after notice and hearing upon a written finding of fact that the subdivider has:

(1) failed to comply with the terms of a cease and desist order;

(2) been convicted in any court subsequent to the filing of the application for registration for a crime involving fraud, deception, false pretenses, misrepresentation, false advertising, or dishonest dealing in real estate transactions;

(3) disposed of, concealed, or diverted any funds or assets of any person so as to defeat the rights of subdivision purchasers;

(4) failed to faithfully perform any stipulation or agreement made with the commission as an inducement to grant any registration, to reinstate any registration, or to approve any promotional plan or public offering statement;

(5) made intentional misrepresentations or concealed material facts in an application for registration. Findings of fact, if set forth in statutory language, must be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

(b) If the commission finds after notice and hearing that the subdivider has been guilty of a violation for which revocation could be ordered, it may issue a cease and desist order instead."

Powers transferred; review; provisions deleted

SECTION 38. Section 27-29-140 of the 1976 Code is amended to read:

"Section 27-29-140. A person who has exhausted all administrative remedies available with the commission and who is aggrieved by an order pertaining to registration, a cease and desist order, an order of revocation, or any other final decision of the commission is entitled to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. 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 commission action or ruling is immediately reviewable if review of the final commission decision would not provide an adequate remedy."

Powers transferred

SECTION 39. Section 27-29-190 of the 1976 Code is amended to read:

"Section 27-29-190. (a) In addition to the methods of service provided for in the rules of civil practice service may be made by delivering a copy of the process to the office of the commission, but it is not effective unless the plaintiff (which may be the commission in a proceeding instituted by it):

(1) forthwith sends a copy of the process and of the pleading by certified or registered mail to the defendant or respondent at his last known address, and

(2) the plaintiff's affidavit of compliance with this section if filed in the case on or before the return day of the process, if any, or within such further time as the court allows.

(b) If any person, including any nonresident of this State, engages in conduct prohibited by this chapter or any rule or order hereunder, and has not filed a consent to service of process and personal jurisdiction over him cannot otherwise be obtained in this State, that conduct authorizes the commission to receive service of process in any noncriminal proceeding against him or his successor which grows out of that conduct and which is brought under this chapter or any rule or order hereunder, with the same force and validity as if served on him personally. Notice shall be given as provided in subsection (a)."

Powers transferred

SECTION 40. Section 27-29-200 of the 1976 Code is amended to read:

"Section 27-29-200. (a) For the registration of subdivided lands there shall be paid to the commission a registration fee of ten dollars, plus one-tenth of one percent of the maximum aggregate offering price of the registered subdivided lands to be offered in this State up to one hundred thousand dollars, plus one-twentieth of one percent of the amount in excess of one hundred thousand dollars and not exceeding four hundred thousand dollars, plus one-fortieth of one percent of the amount in excess of four hundred thousand dollars; but in no case shall such fee be greater than five hundred dollars for each registration. Provided, however, that the commission may prescribe a maximum amount of subdivided lands to be registered at any one time. If registration is denied or withdrawn before the offering of subdivided lands in this State, the commission shall refund all of the fee in excess of one hundred dollars.

(b) the land and books and records of every person selling or offering for sale subdivided lands subject to the provisions of this chapter are subject to examination by the commission, or such other person as it may designate, and the examinee shall pay a fee for each examiner employed to make such examination of not to exceed twenty-five dollars for each day or fraction of it, plus the actual expenses, including the cost of transportation of the examiner, while he is absent from his office for the purpose of making the examination.

(c) The commission may require any registrant under this chapter to file an annual renewal report containing such reasonable information as it may believe necessary regarding the financial condition of such registrant and the subdivided lands sold in this State by such person. Each renewal report must be accompanied by a renewal filing fee of one hundred dollars.

(d) In order to carry out the provisions of this chapter the commission shall retain such fees and other funds which may come into its possession to defray expenses in the administration of this chapter."

Definition deleted

SECTION 41. Section 27-32-10 of the 1976 Code is amended to read:

"Section 27-32-10. For purposes of this chapter:

(1) `Accommodations' means any hotel or motel room, condominium or cooperative unit, cabin, lodge, apartment, or any other private or commercial structure designed for occupancy by one or more individuals or any recreational vehicle campsite or campground.

(2) `Business entity' means individuals, corporations, firms, associations, joint venturers, partnerships, trusts, estates, business trusts, syndicates, fiduciaries, and all other groups or combinations which engage in acts or practices in any trade or commerce.

(3) `Contract' means any contract, promissory note, credit agreement, negotiable instrument, lease, use agreement, license, security, or other muniment conferring on the purchaser the rights, benefits, and obligations of a vacation time sharing plan.

(4) `Commission' means the South Carolina Real Estate Commission.

(5) `Facilities' means any structure, service, or property whether improved or unimproved made available to the purchaser for recreational, social, family, or personal use.

(6) `Seller' means any business entity including, but not limited to, agents, dealers, distributors, franchisers, subsidiaries, assignees, resellers, brokers, or any other representatives of them who, for a fee, commission or other valuable consideration, negotiates or attempts to negotiate the listing, sale, auction, purchase, exchange, or lease of any real estate or the improvements on it or collects rents or attempts to collect rents, or who advertises or holds himself out as engaged in any of the foregoing activities. Provided, however, that the provisions of this chapter are not applicable to:

(a) the sale of real estate by anyone who is the owner of it or who owns any interest in it, or to the attorney at law of such owner acting within the scope of his duties. Ownership of stock in a corporation is not ownership of an interest in real estate owned by the corporation and does not exempt such stockholder from the provisions of this chapter, unless the stockholder owns or controls at least ten percent of the stock of the corporation.

(b) agencies and instrumentalities of the state or federal government nor to employees of any lender or public officials making appraisals for federal, state or local units of government, nor to anyone making appraisals through such employees for lending or governmental purposes.

(7) `Vacation time sharing ownership plan' means any arrangement, plan or similar devise, whether by tenancy in common, sale, deed, or by other means, which is subject to supplemental agreement or contract for use of the time share unit, whereby the purchaser receives an undivided ownership interest in and the right to use accommodations or facilities, or both, for a specific period of time during any given year, but not necessarily for consecutive years, which extends for a period of more than one year.

(8) `Vacation time sharing lease plan' means any arrangement, plan, or similar devise, whether by membership agreement, lease, rental agreement, license, use agreement, security, or other means, whereby the purchaser receives a right to use accommodations or facilities, or both, but does not receive an undivided fee simple interest in the property, for a specific period of time during any given year, but not necessarily for consecutive years, and which extends for a period of more than one year.

Such lease plans do not include an arrangement or agreement whereby a purchaser in exchange for an advance fee and yearly dues is entitled to select from a designated list of facilities located in more than one state accommodations, of companies which operate nationwide in at least nine states in the United States through franchises or ownership, for a specified time period and at reduced rates and under which no interest in real property is transferred.

(9) `Vacation time sharing plan' means either a vacation time sharing ownership plan or a vacation time sharing lease plan as defined herein.

(10) `Time sharing unit' means the actual accommodations and related facilities which are the subject of the vacation time sharing ownership plan or lease plan.

(11) `Substantially complete' means all structural components and mechanical systems of all buildings containing or comprising any time sharing unit, facilities, or accommodations are finished in accordance with the plans or specifications of the project as evidenced by a recorded certificate of completion executed by an independent registered surveyor, architect, or engineer.

(12) `Unit week' means a number of consecutive days, normally seven consecutive days in duration, which may reasonably be assigned to purchasers of vacation time sharing plans by the seller.

(13) `Receivable' means any note, contract, promise, or any other agreement to pay a fixed or determinable amount of money which, for the purposes of this chapter, shall not be in arrears for more than ninety days.

(14) `Face value' means the principal amount of money represented by any receivable as defined in item (13), together with the amount of all interest to be collected on it.

(15) `Escrow agent' shall mean a bank or trust company doing business in this State or a bonded trust agent bonded in at least the amount of the trust; provided, however, that nothing contained in this chapter shall operate to prevent investment of funds escrowed pursuant to this chapter by the bank, trust company, or bonded agent and to pay all interest and dividends to the seller of vacation time sharing plans.

(16) `Escrow account' means any funds held or maintained by an escrow agent.

(17) `Vacation time sharing sales license' means a license issued by the commission authorizing individuals to act as sellers of vacation time sharing plans.

(18) `Fund' and `recovery fund' means the South Carolina Vacation Time Sharing Recovery Fund.

(19) `Claim' means a monetary loss sustained or allegedly sustained by a person due to the wrongdoing of a licensee.

(20) `Licensee' means a person having a Vacation Time Sharing sales license.

(21) `Real estate broker's trust account' means a demand account in a bank or savings institution in this State held by a duly licensed South Carolina real estate broker."

Powers transferred

SECTION 42. Section 27-32-20 of the 1976 Code is amended to read:

"Section 27-32-20. It is a violation of this chapter for any seller of vacation time sharing plans to:

(1) sell, lease, encumber, or convey in any manner or to solicit or advertise such transactions unless the seller has been duly licensed under the provisions of Section 27-32-180 or Chapter 57 of Title 40 hereunder and unless the vacation time sharing plan and the units of it affected have first been registered with the commission. Provided, however, that the registration requirement of this chapter shall not apply to nor restrict the listing and resale of any vacation time sharing plan when:

(a) the vacation time sharing plan resold is within an existing time sharing facility currently registered with the commission pursuant to the requirements of this chapter;

(b) the vacation time sharing plan resold is subject to the identical rules, regulations, conditions, or limitations on the use of the accommodations or facilities which affect all other vacation time sharing plans within that time sharing facility.

(2) fail to make available upon request to the commission the following materials and any amendments or changes in it made while sales continue:

(a) a copy of the contract by which the rights and obligations of the parties are established.

(b) copies of promotional brochures, pamphlets, advertisements, or other material disseminated to the public in connection with the sale of the vacation time sharing plan and verbatim scripts of all radio and television advertising in connection with it.

(c) a statement of the type and business entity through which the business of selling vacation time sharing plans is carried out, including a list of the names and addresses of all directors, principal officers, dealers, distributors, and sales personnel soliciting in or from the State of South Carolina, and the name and address of the business agent for service of process within the State.

(d) copies of all contracts between the business entity offering the vacation time sharing plan for sale to the public and each business providing accommodations and facilities to purchasers of the plan.

(e) copies of all rules, regulations, conditions, or limitations on use of the accommodations or facilities available pursuant to the vacation time sharing plan.

(f) a statement as to the existence of all liens on the accommodation or facilities which could affect the rights of the purchaser or his assignee, together with the location, date, and filing book and page number where such liens are recorded.

(g) a synopsis of any sales presentation made by the seller to the purchaser over the telephone or other electronic device. (h) a projected budget of all reoccurring expenses which may become the responsibility of all time sharing purchasers.

Upon receipt of all items required by this section, the commission shall determine the sufficiency of it and upon satisfactory compliance with this chapter, shall issue its order approving their use. The vacation time sharing plan shall then be deemed registered."

Powers transferred

SECTION 43. Section 27-32-120 of the 1976 Code, as last amended by Act 184 of 1993, is further amended to read:

"Section 27-32-120. (A) If upon investigation by the Real Estate Commission, a person is found to be in violation of this chapter, the commission shall inform the person of the violation by certified mail, return receipt requested, and if the commission finds the violation is of a minor nature, it may assess a monetary fine.

Within ten days from receipt of the certified mail, the person found in violation of this chapter may pay the fine or take other remedial steps as the commission, in its sole discretion, may require. If no fine is paid and no other remedial agreement is reached within the time allowed or any extension of time granted by the commission, the person may be prosecuted for the violation as otherwise provided in this section.

Upon payment of a fine or agreement for remedial action, the commission is authorized to release a person found in violation of this chapter from any further liability to the State arising from the violation.

(B) A person who wilfully violates any provision of this chapter is guilty of a misdemeanor and, upon conviction, for a first offense must be fined not more than five thousand dollars for each violation. Conviction for a second offense is a misdemeanor and the person must be fined not more than five thousand dollars or imprisoned not more than six months, or both for each violation. Conviction for a third or subsequent offense is a felony and the person must be fined not more than five thousand dollars or imprisoned not more than five years, or both for each violation.

For purposes of this chapter, a wilful violation occurs when the person committing the violation knew or should have known that his conduct was a violation of this chapter.

(C) In addition to the penalties provided in this section, any contract for the sale of a time-shared unit in violation of this chapter is voidable at the sole option of the purchaser and entitles the purchaser to a refund of all consideration paid by him pursuant to the contract.

(D) A deficiency in an escrow required by this chapter, which results solely from the cancellation or worthlessness of receivables previously placed in escrow, is not a violation of this chapter. In the event of an escrow deficiency, a lender who has advanced funds to a project has no liability to contribute funds to the escrow to cure the deficiency, and the lender's lien on the project property is not affected by the deficiency."

Powers transferred

SECTION 44. Section 27-32-130 of the 1976 Code is amended to read:

"Section 27-32-130. The Real Estate Commission is responsible for the enforcement and implementation of this chapter and the Department of Labor, Licensing, and Regulation, at the request of the Real Estate Commission, shall prosecute any violation hereunder. The commission shall promulgate regulations for the implementation of this chapter and such regulations are subject to the State Administrative Procedures Act. The provisions of this section are not construed to limit in any manner the right of a purchaser or lessee to bring a private action to enforce the provisions of this chapter."

Powers transferred

SECTION 45. Section 27-32-140 of the 1976 Code is amended to read:

"Section 27-32-140. If a seller files with the commission any vacation time sharing plan or any amendment to it which describes or concerns time sharing units, accommodations, or facilities not substantially completed, the seller, upon request of the commission, shall file with the commission the following:

(1) a verified statement showing all costs involved in completing the property;

(2) a verified statement of the time of completion of construction of the property;

(3) satisfactory evidence of sufficient funds to cover all costs to complete the property;

(4) a copy of the executed construction contract and any other contracts for the completion of the property;

(5) a one hundred percent payment bond covering the entire cost of construction of the property;

(6) if purchasers' funds are to be used for the construction of the property, an executed copy of the escrow agreement with an escrow company or financial institution authorized to do business within the State, which provides that:

(a) disbursements of purchasers' funds may be made from time to time to pay for construction of the property, architectural, engineering, finance, and legal fees, and other costs for the completion of the property in proportion to the value of the work completed by the contractor as certified by a registered surveyor, architect, or engineer on bills submitted and approved by the lender of construction funds or the escrow agent;

(b) disbursements of the balance of purchasers' funds remaining after completion of the property may be made only after the escrow agent or lender receives satisfactory evidence that the period for filing mechanics' and materialmen's liens has expired. The right to claim those liens has been waived or adequate provision has been made for satisfaction of any claimed mechanics' or materialmen's lien;

(c) any other restrictions relative to the retention and disbursement of purchasers' funds required by the commission have been met; and

(d) any other materials or information required by the commission have been provided.

(7) The commission shall not register or issue any order approving any vacation time sharing plan unless the commission determines, on the basis of materials submitted by the developer, that the time sharing units, accommodations, or facilities or any additions to it will be completed."

Powers transferred

SECTION 46. Section 27-32-150 of the 1976 Code is amended to read:

"Section 27-32-150. (A) For the registration of all vacation time sharing plans and the accommodations and facilities affected by it which are located within the State, there must be paid to the commission the sum of one hundred dollars, together with an annual renewal fee of fifty dollars.

(B) For the registration of all vacation time sharing plans and the accommodations and facilities affected by it which are located outside the State, there must be paid to the commission the sum of two hundred fifty dollars, together with an annual renewal fee of one hundred dollars. All books, files, accounts, and other documents pertaining to the advertisement and sale of vacation time sharing plans located outside the State are subject to examination by the commission and the examinee shall pay a fee for each examiner employed to make such examination of fifty dollars per day or fraction of it, plus the actual expenses, including the cost of transportation of the examiner, while he is absent from his office for purposes of conducting the examination.

(C) The commission shall retain such fees and other funds which may come into its possession to defray expenses in the administration and enforcement of this chapter.

(D) If the commission determines that the registration or operation of any vacation time sharing plan violates the provisions of this act in such manner as indicates bad faith or dishonesty, the commission, after notice and hearing, may assess all reasonable costs of investigation and prosecution of such violations."

Reenacted (no apparent change)

SECTION 47. Section 27-32-160 of the 1976 Code is amended to read:

"Section 27-32-160. The commission may accept grants in aid from any private or public source and may contract with agencies charged with similar functions in this or other jurisdictions, in furtherance of the objectives of this chapter."

Powers transferred

SECTION 48. Section 27-32-180 of the 1976 Code is amended to read:

"Section 27-32-180. (A) Any person desiring to act as a seller of vacation time sharing plans shall file with the commission a written application upon such form as the commission shall designate and shall pass to the satisfaction of the commission the examination hereinafter prescribed.

(B) Prerequisites for taking the vacation time sharing sales examination are as follows:

(1) evidence satisfactory to the commission that the applicant bears a good reputation for honesty and truthfulness;

(2) a current examination of the applicant's credit history, the results of which must indicate that the applicant has satisfactorily met all past debts or made adequate provisions for them;

(3) an irrevocable consent to jurisdiction in this State and appointment of the commission as agent for service of process;

(4) employment by a licensed South Carolina real estate broker.

(C) The commission shall prepare and conduct an examination on the fundamentals of this chapter and related topics and shall schedule such examination at least quarterly. No applicant shall be entitled to examination unless all prerequisites enumerated above have been met and evidence of it received by the commission at least ten working days before the examination. The minimum passing grade is seventy-five percent.

(D) If the applicant has met all prerequisites for examination hereunder, but has not undergone examination, the applicant may request and the commission, in its sole discretion and upon good cause shown, may issue a temporary vacation time sharing sales license. The applicant may receive such temporary license pending the next scheduled test session and the release of the results from it, whereupon the temporary license shall expire. No temporary license granted hereunder is renewed. The fee for the temporary license, which is in addition to the required examination fee and regular license fee, is twenty-five dollars.

(E) Every applicant shall pay the sum of twenty-five dollars for each examination taken. Every applicant shall also pay a license fee of one hundred dollars upon successful completion of the examination. The commission is entitled to retain all fees collected to defray its expenses. No fees collected hereunder are in lieu of any business license fees or taxes imposed by any city, county, or municipal authority. The commission is entitled to contract with any outside source to prepare and conduct vacation time sharing sales examinations in its behalf and to pay for the reasonable cost thereof from the examination fees collected.

(F) Vacation time sharing sales licenses are renewed annually, on or before June thirtieth, upon submission of a renewal request in such form as the commission shall prescribe and payment of a fifty dollar renewal fee. Failure to timely renew shall result in cancellation of the license."

Powers transferred

SECTION 49. Section 27-32-190 of the 1976 Code is amended to read:

"Section 27-32-190. Every vacation time sharing plan for sale or offered for sale in this State must be registered with the South Carolina Real Estate Commission as follows:

A. Upon receipt of an application for registration in proper form, the commission shall initiate an examination to determine that:

(1) the seller can convey or cause to be conveyed the vacation time sharing plan offered for sale if the purchaser complies with the terms of the offer;

(2) the advertising material and general promotional plan are not false or misleading;

(3) the requirements of this chapter have been fulfilled;

(4) the seller has not, or, if a corporation, its officers, directors, and principals have not been convicted of any crime involving land dispositions, crimes of moral turpitude, any securities law violations, fraudulent business activities, or any aspect of the vacation time sharing business in this State, the United States, or any other state or foreign country within the past ten years, and has not been subject to any injunction or administrative order within the past ten years restraining a false or misleading promotional plan involving any of the activities above.

B. Upon receipt of the application for registration in proper form, the commission shall issue a notice of filing to the applicant. Within thirty days from the date of the notice of filing, the commission shall enter an order registering the vacation time sharing plan or rejecting the registration. If no order of rejection is entered within thirty days from the date of notice of filing, the vacation time sharing plan is considered registered unless the applicant has consented in writing to a delay. No reasonable request for an extension of time by the commission may be withheld.

(1) If the commission affirmatively determines upon inquiry and examination that the requirements of this chapter have been met, it shall enter an order registering the plan.

(2) If the commission determines upon inquiry and examination that any of the requirements of this chapter have not been met, the commission shall notify the applicant that the application for registration must be corrected in the particulars specified within fifteen days. If the requirements are not met within the time allowed, the commission shall enter an order rejecting the registration which shall include the findings of fact upon which the order is based. The order rejecting the registration shall not become effective for twenty days during which time the applicant may petition for reconsideration and must be entitled to a hearing.

(3) If it appears that a person, company, or any business organization has engaged, or, is about to engage in an act or practice constituting a violation of a provision of this chapter or any rule or order under it, the commission, through the Department of Labor, Licensing, and Regulation, with or without prior administrative proceedings, may bring an action in the circuit court to enjoin the acts or practices and to enforce compliance with this chapter or any rule or order hereunder. The commission shall contact, whenever practicable, any person or business violating this chapter before recourse to the circuit court. Upon proper showing, injunctive relief or temporary restraining orders may be granted, and a receiver or conservator may be appointed. Neither the commission nor the Department of Labor, Licensing, and Regulation is required to post bond in any court proceeding.

C. The commission may:

(1) make any public or private investigation which it considers necessary, either within or outside of this State, to determine whether any person has violated or is about to violate this chapter or any rule or order hereunder, or to aid in the enforcement of this chapter or in the prescribing of rules and forms under it.

(2) require or permit any person to file a statement in writing, under oath or otherwise as the commission determines, as to all facts and circumstances concerning the matter to be investigated.

(3) for the purpose of any investigation or proceeding under this chapter, the commission or any officer designated by rule may administer oaths or affirmations, and upon its own motion or upon request of any party shall subpoena witnesses, compel their attendance, take evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence.

(4) upon failure to obey a subpoena or to answer questions propounded by the investigating officer and upon reasonable notice to all persons affected by it, the commission, through the Department of Labor, Licensing, and Regulation, may apply to the circuit court for an order compelling compliance.

D. The commission may:

(1) issue an order requiring the seller to cease and desist from any unlawful practice and to take such affirmative action as to the judgment of the commission will carry out the purposes of this chapter, if, after notice and hearing, the commission determines that a seller has:

(a) violated any provisions of this chapter;

(b) directly or through any agent of employees knowingly engaged in any false, deceptive, or misleading advertising, promotional, or sales methods to offer or dispose of an interest in any vacation time sharing plan;

(c) made any substantial change in the plan of development and sale of the vacation time sharing plan subsequent to the order of the registration without obtaining the prior written approval of the commission;

(d) violated any unlawful order or rule of the commission.

(2) Make findings of fact in writing that the public interest will be irreparably harmed by delay in issuing an order and in such case may issue a temporary cease and desist order. Before issuing the temporary cease and desist order, the commission, whenever possible by telephone or otherwise, shall give notice of the proposal to issue a cease and desist order to the seller. Every temporary cease and desist order shall include in its terms a provision that upon request a hearing will be held promptly to determine whether or not it becomes permanent.

E. The commission may:

(1) Revoke any registration of a vacation time sharing plan if, after notice and hearing upon a written finding of fact, it determines that the seller has:

(a) failed to comply with the terms of a cease and desist order;

(b) been convicted in any court of competent jurisdiction, subsequent to filing of the application for registration, of a crime involving fraud, deception, false pretenses, misrepresentation, false advertising, or dishonest dealing;

(c) disposed of, concealed, or diverted any funds or assets of any person so as to defeat the rights of vacation time sharing plan purchasers;

(d) failed to faithfully perform any stipulation or agreement made with the commission as an inducement to grant any registration, to reinstate any registration, or to approve any promotional plan or advertisement;

(e) made intentional misrepresentations or concealed material facts in an application for registration. Findings of fact that a specific provision of law has been violated must be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

(2) Issue a cease and desist order instead of revoking a registration if it finds, after notice and hearing, that the seller has been guilty of a violation for which revocation could be ordered."

Powers transferred

SECTION 50. Section 27-32-200 of the 1976 Code is amended to read:

"Section 27-32-200. There is created a special fund to be known as the `Vacation Time Sharing Recovery Fund', which must be maintained by the commission and funded as hereinafter provided for the payment of claims to persons injured by the acts of persons licensed under the provisions of this chapter.

In addition to the license fees required under the provisions of this chapter, every licensee shall pay an annual fee in such amount as the commission shall determine but in no event exceeding twenty-five dollars for the establishment of a vacation time sharing recovery fund. Such funds must be held and accumulated from year to year by the State Treasury in a special fund for the commission to be designated `South Carolina Vacation Time Sharing Recovery Fund'. The fund must be a continuing fund not subject to fiscal year limitations and must be under the administrative direction of the commission. Expenditures from this fund must be made in accordance with the provisions of this chapter without legislative appropriation. Warrants for expenditures from the fund must be drawn by the Comptroller General pursuant to claims approved and signed by the commission."

Powers transferred

SECTION 51. Section 27-32-210 of the 1976 Code is amended to read:

"Section 27-32-210. (A) Any person aggrieved by the conduct of a licensee hereunder is eligible to seek recovery from the fund if the following conditions have been met:

(1) the facts giving rise to the applicant's claim occurred on or after January 1, 1982, and were based on a specific violation of this chapter.

(2) the applicant has made demand upon the licensee by certified mail, return receipt requested, for his actual damages and such demand has been refused or ignored.

(3) the applicant is not:

(a) related by blood or marriage to the licensee;

(b) licensed under the provisions of this chapter;

(c) the employer, principal or broker in charge of the licensee; or

(d) a party jointly responsible for the claim.

(4) Application for recovery has been made not later than one year from the date or discovery of the loss.

Failure of the applicant to fully comply with this section constitutes waiver of all rights hereunder.

(B) Application for recovery must be made under oath and upon such form as the commission shall prescribe and shall contain the following minimum information:

(1) name and address of the applicant;

(2) name and address of the licensee and his last known working address;

(3) amount of recovery sought, together with evidence supporting the claim;

(4) copies of all complaints or other legal process initiated;

(5) disclosure of any partial satisfaction received, offered or otherwise available from the licensee, his broker-in-charge, or from any bond or policy of insurance or any other source;

(6) a detailed statement of the events precipitating the loss, together with documents and other evidence supporting the claim.

(C) Upon receiving a claim in proper form, the commission shall forward the claim by certified mail, return receipt requested, to the last known address of the licensee and to the broker-in-charge of such licensee. The licensee and the broker-in-charge shall within twenty days file a verified answer to the claim. If no answer is filed within twenty days, the broker or licensee is in default and the commission shall schedule an arbitration of the claim. If the broker or licensee files a timely answer, the commission shall investigate the claim for a period not to exceed sixty days and shall thereafter promptly schedule an arbitration of the claim. The licensee, broker, commission, and claimant are entitled to present evidence, question, and cross examine witnesses as parties to the arbitration."

Powers transferred

SECTION 52. Section 27-32-220 of the 1976 Code is amended to read:

"Section 27-32-220. Payments from the recovery fund are limited in the following respects:

(1) Only the applicant's actual damages are paid from the recovery fund. No applicant is entitled to recover punitive, special or consequential damages, or attorney's fees.

(2) The fund is not liable for more than five thousand dollars per transaction, regardless of the number of persons aggrieved or the number of time sharing interests involved in such transaction.

(3) The liability of the fund shall not exceed in the aggregate ten thousand dollars for any one licensee in a single calendar year and in no event shall it exceed twenty thousand dollars for any one licensee.

(4) If the maximum liability of the fund is insufficient to pay in full the valid claims of all aggrieved persons whose claims relate to the same transaction or to the same licensee, the amount for which the fund is liable must be distributed among the claimants in a ratio that their respective claims bear to the total of such valid claims or in the manner as the Board of Arbitrators in its sole discretion shall decide. The Board of Arbitrators in its sole discretion is empowered to join in one action all claims having a common factual basis so that an equitable distribution from the fund may be achieved.

(5) In the event valid claims against the fund exceed the monies therein contained, the commission shall satisfy the unpaid claims or portions of them as soon as a sufficient amount of money has been deposited, together with interest at the rate of eight percent per annum from the date of award. All claims against the fund must be made in the same order as the awards from it were authorized by the Board of Arbitrators. Any award hereunder shall specifically not be a claim against the State if it cannot be paid due to a lack of funds in the Vacation Time Sharing Recovery Fund."

Powers transferred

SECTION 53. Section 27-32-230 of the 1976 Code is amended to read:

"Section 27-32-230. (A) Any person licensed under the provisions of this chapter and any person claiming an interest in the fund shall submit to the decision of a Board of Arbitrators, which shall in every respect be final and binding. The Board of Arbitrators must be composed of three arbitrators, one chosen by the applicant, one chosen by the licensee and the commission or its designee. If the licensee fails to nominate an arbitrator within five days of request or does not respond to the claim, the commission shall nominate the third arbitrator. The decision of the majority shall rule. All arbitrations must be held at the office of the commission at such time as it shall prescribe and according to such rules of procedure as it shall prescribe.

(B) Upon payment of any claim, the license of the offending licensee is automatically revoked. The licensee shall not be qualified for relicensing until all amounts paid on his account are repaid in full to the Recovery Fund, together with interest at the rate of eight percent per annum. Nothing in this section shall prevent the commission or any other authority from pursuing any other remedy at law or equity.

(C) Any applicant receiving an award from the fund shall subrogate all rights relative to such claim unto the commission to the full extent of all amounts so paid, including interest, and shall cooperate with the commission in the prosecution of the subrogated claim. Any amounts so recovered against the licensee or other responsible parties must be deposited into the fund, less the costs and expenses of collection."

Powers transferred

SECTION 54. Section 27-32-250 of the 1976 Code is amended to read:

"Section 27-32-250. (1) Trusts, partnership interests, undivided interests as tenants in common, corporate shares, or any other membership or use interests in a dwelling unit, wherein thirteen or fewer undivided interests, corporation shares, partnership interests, trust interests, or other membership or use interests are conveyed, referred to in this section as a `vacation multiple ownership interest', are not considered a `vacation time sharing plan' or a `time sharing unit' for purposes of this chapter; provided, that no debts, encumbrances, or liens, except for purchaser financing, may exist on the dwelling unit at the time fee simple title is conveyed to the tenants in common, corporation, trust, partnership, or any other purchasing organization and provided, further, that insofar as the contract of sale and sale of a vacation multiple ownership is concerned, the transaction must be handled by a real estate salesman duly licensed under the provisions of Chapter 57 of Title 40 rather than under Section 27-32-180. It is a violation of this chapter for any seller of a vacation multiple ownership interest to sell, lease, encumber, or convey in any manner or to solicit or advertise such transactions unless the seller is in compliance with the provisions of Sections 27-32-20, 27-32-30, 27-32-40, 27-32-50, 27-32-60, 27-32-70, 27-32-80, 27-32-100, 27-32-110, 27-32-120, 27-32-140, 27-32-150, and 27-32-190. Where the words `time sharing' are used in these sections they also mean `multiple ownership' for the purposes of this section.

(2) The sale of a vacation multiple ownership interest is exempt from sales tax in the manner provided by Section 27-32-170.

(3) Any owner selling vacation multiple ownership interests in not more than one dwelling unit a year is not subject to the provisions of this section. An individual or any corporation, trust, business, or partnership in which the individual is an owner, partner, stockholder, trustee, beneficiary, or affiliate is considered the owner of the dwelling unit for purposes of this section.

(4) All funds received from purchasers of vacation multiple ownership interests must be placed in an escrow account with an insured institution and not disbursed until a sufficient number of vacation multiple ownership interests are sold to satisfy all outstanding debts, liens, and encumbrances on the dwelling unit, except for purchaser financing, and all furniture and furnishings in the dwelling unit, or until the posting with the Real Estate Commission of a bond, letter of credit, or other equivalent security satisfactory to the commission, to insure payment of all outstanding debts, liens, and encumbrances on the dwelling unit and all furniture and furnishings in the dwelling unit.

(5) Definitions:

(a) The definitions contained in Section 27-32-10, items 1, 2, 3, 4, 5, 6, [except subsections 6 (a) and 6 (b)], 11, 15, 16, and 21 are applicable to this section.

(b) `Dwelling unit' means the actual accommodations and/or related facilities which are the subject of the vacation multiple ownership interest.

(c) `Purchaser' means anyone who receives an undivided interest in a dwelling unit, a partner in a partnership that owns a dwelling unit, a shareholder in a corporation that owns a dwelling unit, a beneficiary in a trust that owns a dwelling unit, a holder of a leasehold interest in a dwelling unit, or any member of any other organization which owns a dwelling unit."

Time effective

SECTION 55. This act takes effect upon approval by the Governor.

Approved the 10th day of May, 1994.