ORDERS:
ORDER GRANTING PETITION FOR INJUNCTIVE RELIEF
STATEMENT OF
THE CASE
The
above-captioned matter, which caption and authority were amended pursuant to
petitioning motion, without objection, 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 May 21, 2008. In its
Petition, the Board seeks an order from this Court permanently enjoining Respondent
David Spearman from further engaging in the business of contracting,
installing, repairing or modifying 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 May 21, 2008. 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 David Spearman
should be permanently enjoined from further violations of the statutory and
regulatory provisions pertaining to the contracting, installing, repairing or
modifying 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. Petitioner is an agency of the State of South Carolina vested with the
authority to regulate residential building in the State of South Carolina
pursuant to S.C. Code of Laws General Statute 40-29-10 et seq.
(1976, as amended).
2. Respondent is a citizen and resident of South Carolina, and as such, is
subject to this Court’s jurisdiction; further, pursuant to SC. Code of Laws,
General Statute1-23-630, 40-1-210 and 40-1-100 (1976, as amended) this Court
has subject matter jurisdiction over this cause of action.
3. In 2006, Respondent was not licensed or bonded as a Manufactured housing
contractor and/or installer to engage in or offer any installing, repairing or
modifying of manufactured homes in South Carolina.
4. On December 7, 2002, Respondent contracted with Roderick Wharton, to
move and install a manufactured home.
5. On or about March 7, 2003, the Board issued an Order to Cease and Desist
to the Respondent for engaging in or offering to engage in the business of
installing, repairing or modifying of manufactured homes in South Carolina as a
manufactured homes contractor.
6. On or about June 10, 2005, the Board issued an Order to Cease and Desist
to the Respondent for engaging in or offering to engage in the business of
installing, repairing or modifying of manufactured homes in South Carolina as a
manufactured homes contractor.
7. On September 15, 2006, Respondent contracted with Quinton Kelly, to move
and install a manufactured home.
8. Respondent has continued to engage in the unlicensed practice of
installing, repairing or modifying of manufactured homes, and therefore,
Respondent is in willful violation of S.C. Code Ann. 40-29-30, et. Seq.(Supp
1999).
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 practice of manufactured homes
contracting 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
manufactured home contractor may install, modify, alter, or repair the
structural, mechanical, or electrical systems of a manufactured home without
holding a license issued or recognized by the board. No manufactured home installer
may install manufactured housing without being licensed by the board. No
manufactured home repairer may modify, alter, or repair the structural,
mechanical, or electrical systems of a manufactured home without holding a
license issued or recognized by the board. The license must authorize the
holder to engage in the business permitted by the license. All license
applications must be accompanied by the required fee and corporate surety bond
or other security in the form as prescribed by the board.” This section further
specifies in (B) “A person engaging in or offering to engage in any activity
for which a license is required by this chapter without having first obtained
the requisite license is subject to an administrative penalty.”
3. In the case at hand, the Respondent continued to engage in the
manufactured home contracting to install, repair or modify in at least 2
instances. Accordingly, Respondent’s conduct is in direct violation of section
40-29-30(A) and (B).
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 David Spearman 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 manufactured home contracting 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 ($10,000.00) is imposed upon Respondent for his willful
violations of the manufactured housing laws by repeatedly engaging in the
practice of mobile home contracting 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. MCLEOD
Administrative
Law Judge
June 6, 2008
Columbia, South Carolina
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