Could online real estate courses count toward a South Carolina license despite a classroom instruction rule?

Plain-English summary

In 2018, two legislators asked whether online courses could meet South Carolina’s real estate license education requirements despite older language calling for “classroom instruction.” The Attorney General concluded that they could. It read the newer provision making prelicensing and continuing education courses eligible for distance learning as an expansion of the classroom concept.

The opinion recognized that the licensing law also called for certification of distance courses by the named real estate education bodies. The Real Estate Commission had said it lacked published approval standards, but the AG’s statutory interpretation did not accept that as a reason to read the distance learning authorization out of the law. The conclusion concerned eligible educational platforms, not approval of any particular course provider.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did “classroom instruction” require a physical classroom for real estate licensing?
A: The AG concluded no. It read the later distance learning provision as permitting online or virtual programs to count.

Q: Did the opinion say every online real estate course automatically qualified?
A: No. The statutory text quoted by the AG required distance course certification, and the opinion addressed the type of instruction rather than approving a particular course.

Q: Did the Real Estate Commission’s lack of published standards erase the statute?
A: The AG did not read it that way. It concluded the Legislature intended to allow distance learning for the educational requirement.

Background and statutory framework

The request contrasted an older requirement for classroom instruction with the later rule expressly making prelicensing and continuing education eligible for distance learning. The AG read the provisions together and gave effect to the specific distance learning language, while acknowledging the statute’s certification condition.

Citations and references

• The distance learning provision quoted by the opinion said, “A prelicensing and continuing education course is eligible for distance learning.”
• The conclusion read “classroom instruction” to include “online, virtual, and/or distance learning programs.”

Official title

On educational requirements from on line/long distance courses to obtain a state real estate license (Section 40-57-340(F)).

Requester

The Honorable Nathan Ballentine and The Honorable Daniel Hamilton, Members, South Carolina House of Representatives.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-10-2018/
• Original PDF: https://www.scag.gov/wp-content/uploads/2018/01/Ballentine-Hamilton-OS-10226-FINAL-Opinion-1-10-2018-01563653xD2C78.pdf-01567623xD2C78.pdf

Original opinion text

Alan Wilson
attorney General

January 10, 2018

The Honorable Nathan Ballentine, Member

The Honorable Daniel P. Hamilton, Member

South Carolina House of Representatives
320B Blatt Building

South Carolina House of Representatives
312C Blatt Building

Columbia, SC 29201

Columbia, SC 29201

Dear Representative Ballentine and Representative Hamilton: You seek an opinion "as to the availability of online and distance learning options to satisfy the requirements necessary to obtain a South Carolina real estate license." By way of background, you state the following: Pursuant to Title 40, Chapter 57 of the South Carolina Code 1976, all real estate

salespeople, brokers, and brokers-in-charge must obtain a license from the Real Estate Commission before they are permitted to practice in South Carolina. S.C. Code Ann. § 40-57-20. Part of this licensing process requires that applicants complete a certain number of hours of "classroom instruction" in the field of real estate. S.C. Code Ann, § 40-57-320. The terms "classroom" and "classroom instruction" are not defined anywhere in chapter 57.

On January 1, 201 7, section 40-57-340 of the South Carolina Code 1976 was amended to include, inter alia, subsection(F) which provides:

(F) A prelicensing and continuing education course is eligible for distance learning. S.C. Code Ann. § 40-57-340(F).

The plain language of section 40-57-340, as amended, appears to permit applicants to participate in real estate licensing courses available online, as well as in traditional brick-and-mortar environments. However, the Real Estate Commission has recently issued a final order concluding that "(t]he amendment allowing the eligibility of distance learning for pre-licensing education courses did not remove the requirement of classroom instruction for prelicensing courses and the established standards

approved by the Commission." The only rationale the Commission gave for its conclusion was that "(prior to approving any pre-licensing distance courses, providers, and instruction, the Commission would have to establish and publish standards relevant for the approval," and "[t]he Commission and its staff have not

begun the process of establishing and publishing standards ... at this time." Rembert C.Dennis BUILDING • Post Office Box 11549 • Columbia,SC 29211-1549 • Telephone 803-734-3970 • Facsimile 803-253-6283

The Honorable Nathan Ballentine
The Honorable Daniel Hamilton
Page 2
January 10, 2018

Therefore, I am requesting an opinion on the following question: In light of section 40-57-340(F), does the term "classroom instruction" encompass online, virtual, and/or distance learning platforms as well as traditional brick and-mortar educational spaces? My concern is that the Commission's interpretation fails to give any effect section 40-57-340(F), contrary to the General Assembly's clear intent in enacting the amendment.

Law/Analysis

In your letter, you reference South Carolina Code Ann. § 40-57-320. that statute provides:

In pertinent part,

(A) As a condition for and before applying to the commission for licensure, an applicant for a salesperson, broker, or broker-in-charge license shall provide proof to the commission of having met the following educational requirements, in addition to the other requirements of this chapter: (1) for a salesperson license:

(a) completion of sixty hours of classroom instruction in fundamentals of real estate principles and practices and thirty hours of classroom instruction in advanced real estate principles within five years before the application . . .

(2) for a broker license:

(a) completion of one hundred fifty hours of commission-approved real estate classroom instruction, ninety of which may be the hours required for a salesperson license

S.C. Code Ann. § 40-57-320 (emphasis added). Additionally, you refer to South Carolina Code Ann. § 40-57-340(F), which states that: A prelicensing and continuing education course is eligible for distance learning. Certification by the Association of Real Estate License Law Officials (ARELLO) or its subsidiary, the International Distance Education Certification Center (IDECC), is required.

S.C. Code Ann. § 40-57-340(F). As you correctly point out, neither "classroom" nor "classroom instruction" are defined by statute. The question you present is one of statutory interpretation. As the South Carolina Supreme Court has repeatedly emphasized, "' [t]he cardinal rule of statutory interpretation is to

The Honorable Nathan Ballentine
The Honorable Daniel Hamilton
Page 3
January 10, 2018

ascertain and effectuate the legislative intent whenever possible.'" Lightner v. Hampton Hall Club. Inc.. 419 S.C. 357, 363, 798 S.E.2d 555, 558 (2017) (quoting Mitchell v. Citv of Greenville. 411 S.C. 632, 634, 770 S.E.2d 391, 392 (2015)). In order to understand and apply

the intent of the General Assembly, words must be given their '"plain and ordinary meaning'" and "'sections which are part of the same general statutory law must be construed together and each one given effect.'" CFRE. LLC v. Greenville County Assessor. 395 S.C. 67, 74, 716 S.E.2d 877, 881 (2011) (quoting Sloan v. Hardee. 371 S.C. 495, 499, 640 S.E.2d 457, 459 (2007); S.C. State Ports Authority v. Jasper County. 368 S.C. 388, 398, 629 S.E.2d 624, 629 (2006)). In other words, statutes must be read such "'that no word, clause, sentence, provision or part shall be rendered surplusage, or superfluous,' for '[t]he General Assembly obviously intended [the statute] to have some efficacy, or the legislature would not have enacted it into law." Id. (quoting State v. Sweat. 379 S.C. 367, 377, 382, 655 S.E.2d 645, 651, 654 (Ct. App. 2008), aff d. 386 S.C. 339, 688 S.E.2d 569 (2010)). "Furthermore, '[wjhere there is one statute addressing an issue in general terms and another statute dealing with the identical issue in a more specific and definite manner, the more specific statute will be considered an exception to, or a qualifier of, the general statute and given such effect.'" Penman v. Citv of Columbia. 387 S.C.

131, 138, 691 S.E.2d 465, 468 (2010) (quoting Spectre. LLC v. S.C. Department of Health and Environmental Control. 386 S.C. 357, 372, 688 S.E.2d 844, 852 (2010)).

Typically, when a term in a statute is not defined, a court will ascribe the common and ordinary meaning thereto. See State v. Hamilton. 276 S.C. 173, 276 S.E.2d 784 (1981). As the Court stated in Hughes v. Edwards. 265 S.C. 529, 535-36, 220 S.E.2d 231, 234 (1975), there are exceptions to this rule:
[o]ne of the primary rules of statutory construction is that words used in a statute should be taken in their ordinary and popular significance unless there is something in the statute which requires a different interpretation. Investores premium Corp, v. South Carolina Tax Commission. 260 S.C. 13, 193 S.E.2d 642; Martin v. Nationwide Mutual Ins. Co.. 256 S.C. 577, 183 S.E.2d 451; Hatchett v. Nationwide Mutual Ins. Co.. 244 S.C. 425, 137 S.E.2d 608. An exception to the aforesaid rule of statutory construction is that if the words used have a well recognized meaning in law different from their ordinary and popular significance, then the words are to be presumed to have been used in their legal meaning. Purdv v. Moise. 223 S.C. 298, 75 S.E.2d 605; Coaklev v. Tidewater Construction Corp.. 194 S.C. 284, 9 S.E.2d 724; Poole v. Saxon Mills. 192 S.C. 339, 6 S.E.2d 761.

While the term "classroom" is usually thought of in a "bricks and mortar" context, the word also means "any place where one learns or gains experience." See Dictionary.com (meaning of "classroom"). In the age of computers and "high tech," the concept of "classroom" has taken on a much broader meaning than the traditional "school building" definition. For example, as was stated in Babb v. Lynn PLUSA et al.. 2016 WL 100184 (Pa. 2016), the Pennsylvania court interpreted the words "charter school" broadly as follows:

The Honorable Nathan Ballentine
The Honorable Daniel Hamilton
Page 4

January 10, 2018

[w]hile wc agree that Section 1 722-A(a) of the CSL does not expressly contemplate the creation of cyber schools, it also does not prohibit them. Pennsylvania School Boards Association. Inc. v. Zoebv. 802 A.2d 6, 1 1 (Pa.Cmwlth.2002) (en banc), appeal denied. 823 A.2d 146 (Pa.2003). Where virtual schools otherwise meet the statutory requirements of the CSL, they qualify as valid charter schools. Id. ("The Charter School Law authorizes the creation of any charter school, as long as the entity complies with the requirements for a charter school set forth in the statute.

Based on our reading of the statute, we see no reason why a cyber school cannot meet the statutory requirements."). Thus, the fact that a school is a virtual school as opposed to a bricks and mortar school is of no moment in analyzing whether the school is a charter school under the CSL. See ]d- at 11-12 ("[T]he statute allows a charter school to be located in 'any suitable location.' We believe these words are broad enough to encompass a cyber school. . . . [T]he [CSL] says nothing about

teachers providing instruction in the traditional manner in physical classrooms in the Because Warner found that old 'bricks and mortar' school buildings."). governmental immunity under the Tort Claims Act protects charter schools, and because Pennsylvania School Boards Association held that cyber schools qualify as charter schools where they otherwise satisfy the statutory requirements of the CSL, Plaintiffs argument that cyber schools should be analyzed under the second prong of the Snead test is without merit.

(emphasis added).

According to the plain language of section 40-57-340(F), the General Assembly clearly intended to permit online courses to satisfy both the pre-licensing and continuing education requirements established under Chapter 57. See Hodges v. Rainev. 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (quoting Norman J. Singer, Sutherland Statutory Construction § 46.03 at 94 (5th ed. 1992)) ("'What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will.'"). As such, "classroom instruction" in section 40-57-320 must be construed in such a way as to give full effect to the General Assembly's intent in amending section 40-57-340 to include subsection (F). Additionally, section 40-57-320 requires only

"classroom instruction in the fundamentals of real estate principles," while section 40-57-340(F) provides that both pre-licensing and continuing education courses are eligible for distance learning and must be certified by the ARELLO or the IDECC; thus, section 40-57-340 is far more specific with regards to what is required of the licensing courses themselves, and therefore controls. Penman. 387 S.C. at 138, 691 S.E.2d at 468 (quoting Spectre. 386 S.C. at 372, 688 S.E.2d at 852). Thus, the only logical way in which these two sections can be read together such that they are each given full force and effect is to read "classroom instruction" to encompass both live, in-person programs as well as online, distance learning courses. It is also instructive to consider whether other states have interpreted "classroom" more broadly to encompass virtual or online spaces. Michigan, for example, has statutorily defined "classroom courses" to include online programs. Specifically, Michigan's real estate broker

The Honorable Nathan Ballentine
The Honorable Daniel Hamilton
Page 5
January 10, 2018

license laws require completion of 90 hours of "classroom courses," which are defined as "educational course[s] of instruction that [are] provided at . . . [a] location where a student receives instruction provided by distance learning." Mich. Comp. Laws Ann. § 339.2501; see also Mich. Comp. Laws Ann. § 339.2504. A number of other states have statutorily recognized distance learning as equivalent to inperson classroom programs. For instance, the Idaho code defines "live presentation" as "a real

estate course that is personally presented by the instructor and personally attended by the student at the same facility, or. if separated bv distance, the instructor and student are connected by contemporaneous, two-way audio and visual communication," Idaho Code Ann. § 54-2004(31) (emphasis added), while a "distance learning course" is defined as "a real estate course that is delivered not as a live course but through a medium in which the instructor and student are separated by both distance and time." § 54-2004(22). Nevertheless, the requirement that an applicant complete ninety "classroom hours" can be satisfied through either a live presentation or a distance learning course. See Idaho Code Ann. §§ 54-2022(1 )(a), 54-203 6(2)(e). Similarly, Florida's real estate licensure code provides that applicants may participate in distance learning courses to satisfy their "classroom hours" requirement. See Fla. Stat. Ann. § 475.17. Illinois, Kentucky, and Washington all have similar provisions equating online courses with live, inperson programs for purposes of meeting real estate licensing requirements. See 225 111. Comp. Stat. Ann. 454 / 5-28 (requiring 165 hours of training "in the classroom or by other interactive delivery method between the instructor and the students"); Ky. Rev. Stat. Ann. § 324.085 (requiring certain "classroom or online hours of continuing education" for real estate brokers); Wash. Rev. Code Ann. § 18.85.01 1(5) ("'Clock hours of instruction' means actual hours spent in

classroom instruction in any tax supported, public technical college, community college, or any other institution of higher learning or a correspondence course from any of the aforementioned institutions certified by such institutions as the equivalent of the required number of clock hours").

Moreover, at least thirty-two states allow online pre-licensing education for loan and

mortgage originators.1

Even beyond the context of real estate, Minnesota, North Carolina,

See Ala. Code § 5-26-7 ("Pre-licensing education may be offered either in a classroom, online, or by any other means approved by the Nationwide Mortgage Licensing System and Registry."); Alaska Stat. Ann. § 06.60.038 (same); Conn. Gen. Stat. Ann. § 36a-489a (same); Del. Code Ann. tit. 5, § 2407 (same); Ga. Code Ann. § 7-1-1004 (same); Haw. Rev. Stat. Ann. § 454F-6 (same); Idaho Code Ann. § 26-31-307 (same); 205 111. Comp. Stat. Ann. 635/7-4 (same); Iowa Code Ann. § 535D.7 (same); Me. Rev. Stat. Ann. tit. 13, § 106 (same); Md. Code Ann., Fin. Inst. § 1 1-606 (same); Mich. Comp. Laws Ann. § 493.141 (same); Minn. Stat. Ann. § 58A.06 (same); Miss. Code Ann. § 81-18-14 (same); Mo. Ann. Stat. § 443.717 (same); Neb. Rev. Stat. Ann. § 45-730 (same); N.H. Rev. Stat.

Ann. § 397-A:5 (same); N.M. Stat. Ann. § 58-2 1B-7 (same); N.Y. Banking Law §§ 599-f, 599-j (same); N.C. Gen. Stat. Ann. § 53-244.102 (same); N.D. Cent. Code Ann. § 13-10-06 (same); Okla. Stat. Ann. tit. 59, § 2095.8 (same); 7 Pa. Stat, and Cons. Stat. Ann. § 6131.1 (same); 19 R.I. Gen. Laws Ann. § 19-14.10-7 (same); Tenn. Code Ann. § 45-13-304 (same); Tex. Fin. Code Ann. § 180.056 (same); Vt. Stat. Ann. tit. 8, § 2209a (same); Va. Code Ann. § 6.2-1710 (same); Wash. Rev. Code Ann. § 19.146.340 (same); W. Va. Code Ann. § 31-17A-6 (same); Wyo. Stat. Ann. § 40-23-127 (same).

The Honorable Nathan Ballentine

The Honorable Daniel Hamilton
Page 6
January 10, 2018

Texas, Utah, and Virginia have all permitted virtual learning platforms in addition to, if not as a replacement for, traditional brick-and-mortar experiences. See In the Matter of the Proposed Permanent Rules Relating to Driver Education Schools and Programs. Minnesota Rules Chanter 7411. 2003 WL 23318827 (Minn. Department of Public Safety Dec. 24, 2003) (adopting "on line classroom instruction" for adult drivers' education programs); N.C. Gen. Stat. Ann. § 143 151.49 (providing that "[t]he instruction [for home inspection licensure] may include field training, classroom instruction, distance learning, peer review, and any other educational format approved by the Board"); Tex. Gov't Code Ann. § 411.188 ("An approved online course provider shall administer the classroom instruction part of the handgun proficiency course in an online format."); Utah Code Ann. § 58-63-302 ("Each applicant for licensure as an armed private security officer shall . . . successfully complete basic education and training requirements established by rule by the division in collaboration with the board, which shall include 24 hours

of classroom or online curriculum."); Va. Code Ann. § 38.2-1814.1 (providing "[t]he prelicensing education course [for resident title insurance agents] may be comprised of or include any form of classroom education or distance education," where "classroom education" means time in a physical classroom with an instructor and "'distance education' means instruction delivered or presented by or under the general supervision of an instructor using a medium other than a classroom setting").

The Federal Department of Labor has even expanded its definition of "classroom training" to include online instruction. Perry v. Unemployment Insurance Review Board of Indiana Department of Workforce Development. 984 N.E.2d 1275, 1281 (Ind. Ct. App. 2013). In December 2005, the Department issued a directive which provides, in relevant part: Under the [Trade Adjustment Assistance] program, the Department has determined that distance learning may be considered "classroom training" when the degree of certificate received is equivalent to what would have been received if the training had been conducted on campus. This interpretation expands the types of approvable classroom training to include distance learning, where a participant completes all or part of an educational or vocational program in a location far away from the institution hosting the training program.

Dep't of Labor Directive 09-05, Training and Employment Guidance Letter: Approval of Distance Learning Under the Trade Adjustment Assistance (TAA) Program (U.S.D.L. 2005). Conclusion

It is our opinion that online and distance learning options meet the requirements necessary to obtain a South Caroline real estate license. We readily acknowledge that reading S.C. Code Ann. § 40-57-320 by itself one might arrive at the conclusion that live, in-person instruction in a physical, brick-and-mortar location is necessary to satisfy the educational requirements for real estate licensure under Chapter 57. However, an alternative definition of "classroom" is "any place where one learns. . . ." Applying South Carolina's well-established

The Honorable Nathan Ballentine

The Honorable Daniel Hamilton
Page 7
January 1 0, 201 8

rules of statutory construction, we believe a court would determine that by enacting section 4057-340(F) the General Assembly intended to expand the definition of "classroom" to include online, virtual, and/or distance learning courses as acceptable educational platforms to satisfy the licensing educational requirements. As noted above, the plain language of section 40-57-340 makes perfectly clear the legislature's intent. See Hodges. 341 S.C. at 85, 533 S.E.2d at 581. Moreover, to the extent there is any conflict between these two statutes, section 40-57-340(F) must prevail because it addresses specific, rather than general, elements of the necessary coursework. See Penman, 387 S.C. at 138, 691 S.E.2d at 468. Thus, we believe a court will conclude that the term "classroom instruction" includes online, virtual, and/or distance learning programs for purposes of pre-licensing and continuing education courses required for real estate licensure under Chapter 57. Such a conclusion is entirely consistent with case law which concludes that "cyber schools' or "virtual schools" may be deemed just as much a "school" as "brick and mortar" schools. Babb, supra. Sincerely^

/

/

Robert D. Cook
Solicitor General