ORDERS:
ORDER GRANTING PETITION FOR INJUNCTIVE RELIEF
STATEMENT OF THE CASE
The above-captioned matter comes before the Administrative Law Court (ALC or Court) upon a Petition for Injunctive Relief filed by Appellant South Carolina Department of Labor, Licensing and Regulation, South Carolina Manufactured Housing Board (Department or Board) on July 12, 2007. In its Petition, the Board seeks an order from this Court permanently enjoining Respondent Jerome Manigo from further engaging in the business of selling manufactured homes in South Carolina until such time Respondent is properly licensed and is in compliance with the applicable statutes and regulations. The Petition also requests that this Court impose an appropriate monetary penalty upon Respondent and provide any other relief this Court deems just and proper. Respondent did not file an Answer to the Board’s Petition. A hearing on the Petition was held on August 27, 2007. Counsel for the Board was present at the hearing; however, Respondent failed to appear at the hearing, despite having been noticed of the hearing. Accordingly, the hearing proceeded in Respondent's absence. Based upon the evidence and arguments presented at the hearing and upon the applicable law, I find that Respondent Jerome Manigo should be permanently enjoined from further violations of the statutory and regulatory provisions pertaining to the sale of manufactured housing in South Carolina.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:
1. In 2005, Respondent Jerome Manigo entered into the business of buying and selling manufactured homes in and around Bamberg, South Carolina, under the corporate name of Manigo Construction; this business was located at 2026 Able Road, Bamberg, South Carolina, 29003.
2. In 2005, Board investigators began an investigation into whether Respondent Jerome Manigo was duly licensed to engage in the business of buying and selling manufactured housing in South Carolina. During the course of the investigation, Board investigators determined that Respondent was not properly licensed to sell manufactured homes. At no time has Respondent been licensed by the South Carolina Manufactured Housing Board to engage in the business of selling manufactured homes as a manufactured home retail dealer, a manufactured home retail salesman, or a manufactured home manufacturer. Subsequently, investigators contacted Respondent and informed him of South Carolina’s licensure requirements regarding the sale of manufactured housing.
3. However, despite these conversations, Respondent, acting under Manigo Construction, continued to engage in the business of buying and selling manufactured homes without obtaining a license from the Board. In response to these further sales of manufactured homes, the Board issued two cease and desist orders to Jerome Manigo d/b/a Manigo Construction on September 23, 2005. These orders required the named party to “immediately cease and desist from engaging in or [o]ffering to engage in the business of selling manufactured housing in South Carolina as a manufactured home dealer . . . . until such time, if ever, that you become duly licensed to engage in the sale of manufactured housing.” See Petitioner’s Petition for Injunctive Relief at 4-8 (cease and desist orders issued to Respondent Jerome Manigo d/b/a Manigo Construction). Further, the Board issued two citations to Respondent on October 25, 2005 in the amount of five hundred dollars ($500) each; however, the Board reduced each citation to two hundred and fifty dollars ($250), and Respondent paid both citations on November 27, 2005. Id. at 9-10.
4. Despite these cease and desist orders, Respondent subsequently entered into two separate contracts to sell a manufactured home: 1) to Robbin Shea on or about December 11, 2005, and 2) to James Oliver and Crystal Lee Miller on or about February 15, 2006. In response to these transactions by Respondent to sell manufactured homes, the Board petitioned this Court for an order permanently enjoining Respondent from engaging in the business of selling manufactured homes until such time as he is duly licensed to do so.
5. Because Respondent failed to respond to the Department’s Petition, these allegations are therefore deemed admitted pursuant to ALC Rule 18(B). Id. (“Any allegation not denied shall be deemed admitted.”). Further, because Respondent failed to appear at the hearing of this matter pursuant to this Court’s Order dated August 15, 2007 and has otherwise failed to defend a position in this case, Respondent is in default in this matter. ALC Rule 23(A) (“A default occurs when a party fails to plead or otherwise prosecute or defend, fails to appear at a hearing without the proper consent of the judge or fails to comply with any interlocutory order of the administrative law judge.”) (emphasis added).
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. Pursuant to S.C. Code Ann. § 40-29-70 (Supp. 2006) and S.C. Code Ann. § 40-1-100(B) (2001), the Board is authorized to petition an Administrative Law Judge for equitable relief to enjoin violations of the statutes and regulations pertaining to, among other things, the sale of manufactured housing in South Carolina. Further, the Board is authorized to bring an action before this Court for injunctive relief against a person violating an order of the Board. S.C. Code Ann.
§ 40-1-210 (2001). In such an action, this Court “may impose a fine of no more than ten thousand dollars” for each violation of the Board’s orders. Id. (emphasis added).
2. S.C. Code Ann. § 40-29-30(A) (Supp. 2006) provides that: “No person may engage in the business of selling, wholesale or retail, as a manufactured home retail dealer, manufactured home retail salesman, or manufactured home manufacturer in this State without being licensed by the [South Carolina Manufactured Housing] board.” S.C. Code Ann. § 40-29-20(13) (Supp. 2006) defines a “manufactured home retail dealer” as “a person engaged in the business of buying, selling, offering for sale, or dealing in manufactured homes or offering for display manufactured homes for sale in South Carolina.” This section further specifies that “[a] person who buys, sells, or deals in three or more manufactured homes in any twelve-month period or who offers or displays for sale three or more manufactured homes in a twelve-month period is considered a manufactured home retail dealer.” Id. (emphasis added).
3. In the case at hand, Respondent has sold or offered for sale at least three manufactured homes in South Carolina within a twelve-month period. Respondent does not, however, hold a license from the Board to make such sales. Accordingly, Respondent’s conduct is in direct violation of section 40-29-30(A).
4. An injunction is a proper remedy to prevent the violation of statutes regulating businesses or professions in which a license is required. See S.C. Med. Malpractice Joint Underwriting Ass’n v. Froelich, 297 S.C. 400, 377 S.E.2d 306 (1989) (enjoining out-of-state attorney from practicing law in South Carolina without a license); State ex rel. Love v. Howell, 281 S.C. 463, 316 S.E.2d 381 (1984) (enjoining unlicensed individual from practicing architecture until such time as he is licensed by the State Board of Architectural Examiners). Further, any doubt concerning the necessity for an injunction to safeguard the public interest should ordinarily be resolved in favor of the grant of relief. 43A C.J.S. Injunctions § 242 (2004).
ORDER
Based upon the Findings of Fact and Conclusions of Law set forth above,
IT IS HEREBY ORDERED that, effective immediately, Respondent Jerome Manigo is PERMANENTLY ENJOINED from further engaging in conduct that would constitute a violation of S.C. Code Ann. § 40-29-30(A) (Supp. 2006). Specifically, Respondent is permanently enjoined from engaging in or offering to engage in the business of buying, selling, or dealing in three or more manufactured homes in any twelve-month period in this State until he obtains a license from the South Carolina Manufactured Housing Board and is in compliance with the applicable statutes and regulations.
IT IS FURTHER ORDERED that a fine of five hundred dollars ($500) is imposed upon Respondent for his willful violations of the manufactured housing laws by repeatedly selling mobile homes without the requisite license, even after being warned by the Board to refrain from such unlawful activity. The fine imposed upon Respondent shall be collected in the same manner in which the Department normally collects the monetary penalties it imposes.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
1205 Pendleton Street, Suite 224
Columbia, South Carolina 29201 |