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 Residential
Builders Commission on May 21, 2008. In its Petition, the Board seeks an order
from this Court permanently enjoining Respondent Ray Thompson from further
engaging in the business of Residential Building and Residential Specialty
contracting 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 Ray Thompson should be
permanently enjoined from further violations of the statutory and regulatory
provisions pertaining to Residential Building and Residential Specialty
contracting 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 40-59-5 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. On July 10, 2002 Respondent’s license was revoked for failing to
pay a $500.00 citation and therefore was not licensed as a Residential Builder
or Residential Specialty contractor to engage in or offer any building,
installing, repairing or modifying of residential homes.
4. Respondent entered into a contract with Complainant, Ms. Carol A.
Gemlick, on March 22, 2004 for roofing repairs. The total amount of the
proposal was $10,900.00. Complainant made three payments in April and May of
2004 to the Respondent by check #’s 0094 for $2,500.00, 104 for $3,300.00 and
105 for $4,500.00, for a total of $10,300. The Respondent signed the back of
each check.
5. Soon after the work was started the roof began to leak in numerous areas
and the Complainant became concerned about other construction defects.
6. On August 2, 2004 the Complainant filed a complaint with the Greenville
Better Business Bureau. At that time the Complainant learned of other
complaints with this Respondent. On August 10, 2004 the Complainant filed a
complaint with LLR.
7. LLR investigator conducted a field inspection on September 20, 2004. The
report by Investigator Walsh indicated code and standard issues. The report
indicated that the Respondent was not registered at the time of the work.
8. A Citation and Cease and Desist Order was issued on April 19, 2006.
9. Investigation has revealed that the Respondent answers the phone number
listed in the Greenville area Yellow Pages for Roof Masters Roofing.
10. Respondent received $1,900.00 of a proposed $3,800.00 to reroof a residence
located at 109 Nancy Drive, Easley, SC for Claimant Robert C. McGuire, Jr. on
October 25, 2004.
11. Respondent never started work on the project or refunded Claimant’s
money.
12. Claimant filed a complaint with the Residential Builder’s Commission on
March 25, 2005.
13. Respondent never responded to the complaint sent to him on August 22,
2005. It was also found that his license was revoked on July 10, 2002 for
failing to pay a $500.00 citation.
14. Respondent offered to install metal roofing at Complainant, Shirley O.
Farmer’s residence. An invoice dated December 24, 2005 for a total amount of
$5,500.00. The Respondent requested and was given $2,500.00 in a cash advance.
The Respondent never returned or offered a refund.
15. Complainant filed a Notice of Default Judgment in Greenville County and was awarded the judgment of $2,500.00 on May 1, 2006. Complainant then filed a
report with the Better Business Bureau and with LLR on May 8, 2006.
16. A citation and Cease and Desist Order were sent via certified mail on
June 6, 2006. The mail was returned as unclaimed. Respondent has been found in
Default in a Judgment and ordered to pay $2500.
17. Respondent was contacted by the Complainants, Steve R. and Pamela J.
Cater, who were responding to an ad in the local Greenville yellow pages, to
remove the old roofing and install a new one at their residence, located at 94 Dogwood Hill Road.
18. The invoiced amount was $15,000.00 and a cash advance of $9,500.00 was
given to Respondent on December 12, 2005. Work was started but never completed.
19. On February 24, 2006, a second cash payment for $5,000.00 was given for
which there is a signed receipt. The Respondent, however, never returned to the
Complainant’s home after the March payment and the Complainant has hired
another contractor to complete the work.
20. Complainant filed a report with LLR on May 16, 2006. A citation and
Cease and Desist Order were sent via certified mail on June 5, 2006. The mail
was returned as unclaimed. Thirteenth Circuit Court records indicate the
Respondent has numerous judgments and liens.
21. On or about December 12, 2005 the Respondent, representing himself as
Roof Masters, Inc., submitted a proposal for roofing work at the home of the
Complainant, Robert Junior Kale of 100 Randy Drive, Taylors, SC in the amount
of $4,200. A check was given to the Respondent on the same date for
two-thousand dollars. The Respondent cashed the check, but refused to start the
work or return any of the Complainant’s numerous phone calls.
22. After repeated attempts to contact the Respondent, the Complainant
contacted the local Better Business Bureau and learned of a pattern of repeated
offences by the Respondent. The Complainant was instructed to file a complaint
with LLR and the complaint was received by LLR on January 3, 2006.
23. Investigation revealed the Respondent’s registration had been revoked by
the RBC on July 10, 2002. The Respondent referred to his business as Roof
Masters, Inc. Research on the Secretary of States web site revealed Roof
Masters, Inc. as having Mr. Alfred Moore, Jr. listed as the registered agent.
All attempts to contact Mr. Moore have been unsuccessful.
24. The phone number given in the Greenville County Yellow Pages is to an
answering service which was contacted.; The call was returned by the
Respondent in Case 2004-495 to Investigator Doles on April 13, 2006. The
Respondent stated that Mr. Moore was not associated with the company and he had
partners who he would not divulge. A letter was sent to Mr. Moore requesting
information in regards to the business no response was received. After confirming the property
address of the Respondent, a Citation and Cease and Desist Order was issued and
received by the Respondent on April 20, 2006.
25. Respondent continued to engage in certain conduct in the business of
Specialty contracting of residential building that violates provisions of the
South Carolina Residential Home Builders without a license as evidenced above.
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. § 40-59-100 (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 Residential Building and
Specialty 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. § 40-59-30(A) (Supp. 2006) provides that: “A person or
firm who engages or offers to engage in the business of residential building or
specialty contracting without first having procured a license from the
commission, which has not been expired or revoked, suspended or restricted or
who knowingly presents to, or files with, the commission false information for
the purpose of obtaining a license is guilty of a misdemeanor and, upon
conviction, must be fined not less than five hundred dollars or more than ten
thousand dollars or imprisoned for not less than thirty days, or both.”
3. A residential specialty contractor is defined in S.C. Code Ann. § 40-59-20(7)
(Supp. 1995) as an independent contractor, who is not a licensed residential
home builder, who contracts with an individual property owner to do any
construction work, repairs, or improvement which requires special skills and
involves the use of specialized construction trades or craft, when the
undertaking exceeds $200.
4. A person who engages in residential specialty contracting must register
with the commission and it is unlawful for any person to engage in residential
specialty contracting without being registered with the commission. S.C. Code
Ann. § 40-59-75 (Supp. 1995)
5. In the case at hand, the Respondent continued to engage in the business
of Residential Building and Residential Specialty contracting in South Carolina in at least five (5) instances. Accordingly, Respondent’s conduct is in
direct violation of section 40-59-220 and 40-59-30.
6. 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 Ray Thompson is PERMANENTLY
ENJOINED from further
engaging in conduct that would constitute a violation of S.C. Code Ann. § 40-59-410.
Specifically, Respondent is permanently enjoined from engaging in or offering
to engage in the business of Residential Building and Residential Specialty
contracting in any twelve-month period in this State until he obtains a license
from the South Carolina Residential Builders Commission and is in compliance
with the applicable statutes and regulations.
IT
IS FURTHER ORDERED that
a fine of fifty thousand dollars and 00/100ths ($50,000.00) is imposed upon
Respondent for his willful violations of the Residential Builders laws by
repeatedly engaging in the practice of Residential Building and Residential Specialty
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 within 90 days of the execution of this order.
AND IT IS SO ORDERED.
______________________________
JOHN D. MCLEOD
Administrative
Law Judge
June 23, 2008
Columbia, South Carolina
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