Could South Carolina’s Real Estate Commission keep requiring Social Security number-based background checks?

Plain-English summary

In July 2020, the South Carolina Attorney General concluded that a court would likely hold the Real Estate Commission could no longer require Social Security number-based criminal background checks as an additional licensing requirement. An earlier law had allowed the commission to approve the source of state and national checks, and it had chosen that type of check for initial applicants.

The later statutory amendment specified fingerprint-based state checks by the State Law Enforcement Division and national checks supported by fingerprints through the FBI. It also removed the commission's authority to choose the check sources. The office read those changes as ending authority under that statute to require the earlier Social Security number-based checks.

Currency note

This opinion was issued in 2020. 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: Could the commission continue both types of background check?
A: The office expected a court to say the licensing statute no longer authorized the commission to require the Social Security number-based checks.

Q: What changed in the statute?
A: The amendment named the state and federal fingerprint-check sources and removed the commission's power to approve the check source.

Q: Did the opinion address renewal applicants?
A: Yes. It said the amended fingerprint-check requirement covered both initial applicants and applicants renewing a real-estate license.

Background and statutory framework

The opinion compared the earlier licensing statute, under which the commission chose a check source, with its later amendment. The revised text required fingerprint-based checks conducted by identified agencies. The office treated the removal of source-selection language as meaningful and limited its conclusion to authority under the statute it analyzed.

Citations and references

The legal authorities discussed above appear in the official opinion. The analysis addressed the request as presented in 2020.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-9-2020/
• Original PDF: https://www.scag.gov/wp-content/uploads/2020/07/02327518.pdf

Original opinion text

Alan Wilson
ATTORNEY GENERAL

July 09, 2020
Ms. Candace Pratt
Chairwoman

South Carolina Real Estate Commission
Post Office Box 11847

Columbia, SC 29211-1847

Dear Chairwoman Pratt:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter asks the following:

I respectfully request an advisory opinion seeking clarification on behalf of the South Carolina Real Estate Commission (the Commission) regarding a statutory

change to section 40-57-115 of the South Carolina Code that requires the Commission to conduct fingerprint based state and federal background checks. By way of background, I provide you with the following information. The Commission has the statutory authority to regulate the practice of the real estate industry "so as to protect the public's interest when involved in real estate transactions." S.C. Code Ann. § 40-57-10 (1976, as amended). As part of that authority, the Commission licenses brokers-in-charge, brokers, sale persons,

property managers-in-charge and property managers. Prior to June 2014, the Commission did not require a criminal record check for an initial or renewal

license application unless the applicant/licensee acknowledged a criminal history on his or her application.

In 2014, the legislature enacted Act No. 258 to require initial licensure applicants to submit to a state and a national criminal records check by a source approved by the Commission. The Commission, through the State's procurement process, selected a source to do a social security-based state and national criminal records

check for initial applicants. The applicant was responsible for the cost of the criminal records check.

In 2017, Act No. 60 amended section 40-57-115 of the South Carolina Code to

require initial and renewal applicants to submit to a state fingerprint-based criminal records check to be conducted by the State Law Enforcement Division RjEKfBERT C.Dennis Building « Post Office Box 11549 . Columbia,SC 29211-1549 « Telephone 803-734-3970 a Facsimile 803-253-62S3

Candace Pratt
Page 2

July 09, 2020

(SLED), and a national criminal records check, supported by fingerprint, by the

FBI, cost to be borne by the applicant or licensee. . . .
As the Commission understands it, there is a difference between the type of information gathered by the social security-based background check and the fingerprint-based background check. The Commission is concerned with the confidentiality requirements of state and federal fingerprint-based criminal records check and is worried that its access to information may be restricted and that may impact its ability to protect the public. With all this in mind, I submit the following question:

Can the Commission continue to require the social security-based criminal records background check in addition to the state and federal fingerprint-based background check that will be in effect on July 1, 2020, or would the social security-based criminal records check be an additional licensure requirement that would require a statutory change? Law/Analysis

It is this Office's opinion that a court would likely hold that 2017 Act No. 60 ("2017 Act") removed the Commission's authority to require social security- based criminal records checks. The request letter states that the Commission began requiring initial licensure applicants to submit to a social security-based criminal records check in response to 2014 Act No. 258, § 1 ("2014 Act"). The 2014 Act, codified at S.C. Code § 40-57-115, directed the Commission to approve the source of a state and national criminal records check for initial applicants. Id ("[T]he commission shall require initial applicants to submit to a state criminal records check, by a source approved by the commission, and a national criminal records check."). In response to this directive, the Commission selected a social security-based state and national criminal records check.

Subsequently, the 2017 Act amended section 40-57-1 15 to require "initial applicants and applicants for licensure renewal to submit to a state fingerprint-based criminal records check, to be conducted by the State Law Enforcement Division (SLED), and a national criminal records check, supported by fingerprints, by the FBI." Id The 2017 Act removed the language directing the Commission to select the sources of the criminal records checks. Instead, the 2017 Act specifically named SLED as the source for the state criminal backgrounds check and also named

the FBI as the source for the national criminal records. Id Further, the 2017 Act explicitly states that these record checks are to be "fingerprint-based criminal records" checks. Id. In order to address whether the Commission can continue to require licensure applicants to submit to social security-based criminal records background checks, this opinion will interpret section 40-57-1 15 according to the rules of statutory construction. The primary rule of statutory

Candace Pratt
Page 3
July 09, 2020

construction is to "ascertain and give effect to the intent of the legislature." Kerr v. Richland Mem'l Hosp.. 383 S.C. 146, 148, 678 S.E.2d 809, 811 (2009) (citations omitted).

The South

Carolina Supreme Court has held that when the meaning of a statute is clear on its face, "then the rules of statutory interpretation arc not needed and the court has no right to impose another meaning.

The words of the statute must be given their plain and ordinary meaning without

resorting to subtle or forced construction to limit or expand the statute's operation." Catawba Indian Tribe of S.C. v. State. 372 S.C. 519, 525-26, 642 S.E.2d 751, 754 (2007) (citations omitted) (internal quotations omitted).

Moreover, when interpreting a statutory amendment,

courts "must presume the legislature did not intend a futile act. but rather intended its statutes to accomplish something." TNS Mills. Inc. v. S.C. Dep't of Revenue. 331

S.C. 611, 620, 503

S.E.2d 471, 476 (1998); see also State v. Leopard. 349 S.C. 467, 472, 563 S.E.2d 342, 345 (Ct. App. 2002) ("[W]e must 'presume the legislature did not intend a futile act' when construing a statutory amendment.").

It is this Office's opinion that the 2017 Act's plain language unambiguously conveys the General Assembly's intent that the criminal records checks for initial applicants and for applicants for licensure renewal be fingerprint based and conducted by SLED and the FBI. The 2017 Act amended section 40-57-1 15 to explicitly require that these checks be fingerprint-based. Further, the 2017 Act removed the language granting the Commission's approval authority over the source of these criminal records checks.

Because the 2017 Act struck the Commission's

approval authority and required the criminal records checks to be fingerprint based, a court

would likely hold that section 40-57-1 15 no longer authorizes the Commission to require social security-based state and national criminal records checks. Conclusion

For the reasons discussed more fully above, it is this Office's opinion that a court would likely hold that 2017 Act No. 60 removed the Commission's authority under S.C. Code § 40-57 1 15 to require social security-based criminal records checks.

Sincerely,

Matthew I Iouck

Assistant Attorney General

Candace Pratt
Page 4
July 09, 2020

REVIEWED AND APPROVED BY:

Robert D. Cook

Solicitor General