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
Judge Court (ALJD) upon a Petition for Injunctive Relief filed by Appellant
South Carolina Department of Labor, Licensing and Regulation, South Carolina Contractors’
Licensing Board on April 11, 2008. In its Petition, the Board seeks an order
from this Court immediately and permanently enjoining Respondent Henry S. Moseley
from further engaging in the business of ever performing any work regulated by the
Contractors’ Licensing Board in South Carolina permanently and forever. 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 and is in default. An Affidavit
of Default is in the Court’s file.
The
Respondent is incapacitated by reason of incarceration. A Guardian ad litem,
Absolute, Robert FitzSimons, Esquire, was appointed by the Court for the
Respondent, and proper notice of the Guardian ad litem’s
appointment and service thereof is in the Court’s file. Further, at the
hearing, the Court, nunc pro tunc, ordered that the appointment of the Guardian ad litem was absolute for the Respondent to be effective from the
date of the prior appointment.
A
hearing on the Petition was held on September 22, 2008. Counsel for the Board
was present at the hearing; however, Respondent did not appear at the hearing
even though his Guardian ad litem absolute was present. Accordingly,
the hearing proceeded in Respondent's absence. Based upon the testimony, evidence
and arguments presented at the hearing and upon the applicable law, I find that
Respondent Henry Moseley should be permanently and forever enjoined from
further violations of the statutory and regulatory provisions pertaining to the
Contractors’ Licensing Board in South Carolina and the practice of contracting.
FINDINGS OF FACT
Having
carefully considered all testimony, exhibits, evidence 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 General and Mechanical Contracting in the State of South Carolina pursuant to S.C. Code of Laws General Statute 40-11-5 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. On July 10, 2002
Respondent’s license was revoked for failing to pay a $500.00 citation and
consequently was an “Unlicensed Contractor” see 40-11-20(24) through the Board
to perform any activities regulated thereby.
3. Respondent entered into a written contract with Complainant, Jessie E.
Riley on October 5, 2005, requiring $7,500.00 down and $12,000.00 due after
supplies are delivered. Included in the price was 13 loads of dirt, concrete
pads and concrete surface, 4 service doors, 1 entry door, two windows and
grading and clearing of land (6-8 trees). Construction was supposed to start in
4-5 weeks, weather permitting.
4. On November 10, 2005, crew began grading. Dirt was delivered the first
day and Claimant and crew attempted to contact Respondent, but calls were not
returned.
5. On November 17, 2005, Respondent told Claimant that there were 28 loads
delivered rather than the contracted 13. Respondent said that more were needed
for the foundation. Claimant specifically instructed Respondent to notify and
discuss any changes from the original plans beforehand. Respondent told
Claimant that she owes him $229.00 per load of dirt over 13 and an additional
$50.00 per load for grading ($4,185.00). That Friday, Respondent called again
claiming that, he made a mistake, and it was now 38 loads of dirt ($6,975.00).
However, when Claimant asked to see a receipt, Respondent said that he did not
have one. Claimant told Respondent that, she would not pay until a receipt was
produced.
6. Further, Claimant was contacted by Respondent’s wife, Meredith Lewis,
who faxed a receipt showing 45 loads ($9,952.00), and stating that they needed
a check or payment that very day. Claimant refused to pay and requested to
speak to Respondent, who never called back.
7. On November 28, 2005, the crew showed up to install footings in a pile
of dirt. Claimant refused to allow them to do this, because the dirt was soft
and had not been compacted. Claimant tried to reach Respondent, only to be
called back after the crew had already left. Respondent came to the Claimant’s
house for payment, but, Claimant refused to pay for the dirt, instead, offering
to pay for 15 loads which Respondent refused.
8. On November 29, 2005, Claimant came home to find the crew, under
instruction from Respondent, removing the supplies that she had already paid
for with the $20,000.00. Claimant’s neighbor, a Richland County Police Officer,
witnessed the taking of the items. Claimant made a police report and filed a
complaint. Jessica Riley obtained a Judgment against the Respondent in the
amount of $21,921.03 regarding his derelict behavior in this case.
9. Claimant, George P. Taylor, Calhoun County Building official contacted
Ronald E. Galloway, LLR inspector, via mail with two contracts from American
Pole Builders (Henry Moseley), who was not licensed in any construction
discipline, to construct buildings located in Calhoun County.
10. The first contract was with Carl Livingston. This was permitted by the
owner as a residential use and has been constructed. The second contract was
with Brian Miller who paid Respondent $10,000.00 but the job was not finished
because a Stop Work Order was placed on this job by the County Building official since Respondent was unlicensed.
11. Respondent entered a written contract with Claimant, John W. Moore on
June 2, 2006, $13,000.00, with $6,000.00 paid down, $6,000.00 due upon delivery
of materials and start of construction and $2,000.00 due upon completion.
12. Contract was signed by both parties and a $6,000.00 down payment was
made to Respondent. The money paid to Respondent was never returned to
Claimant.
13. Respondent never did any of the work and Claimant called numerous times.
Respondent never returned any calls. After calling LLR, Claimant found that
Respondent was not licensed.
14. Respondent entered into a written contract with Claimant, Evander M.
Cooper on December 30, 2005 for new construction work to be done. A deposit of
$5,000.00 was paid to the Respondent by the Claimant. Claimant was told by the
Respondent that, the work would be performed in six to eight weeks.
15. Claimant called Respondent numerous times without any response. The work
was not performed and the deposit was never returned.
16. Respondent entered into a written contract on June 26, 2006 with
Claimant, Will Laintz, who paid 40% of $25,000.00 down ($10,000.00) to
construct a pole building.
17. On August 16, 2006, Claimant was told by Respondent that construction
would be ready to start on August 22, 2006. Construction did not start on the
stated date and numerous calls to Respondent from Claimant were not returned
from the dates of August 22, 2006 through September 1, 2006, when Respondent
finally called back. Respondent said they planned to begin construction on
September 11, 2006.
18. On September 8, 2006, Claimant spoke with Respondent of American Pole
Buildings of 10 Rush Road Irmo, SC 29063 who stated the materials would be
delivered September 11, 2006. On September 12, 2006, after three unsuccessful
phone attempts to Respondent, Claimant left a message for Respondent to return
money because it did not appear that he could build the building. Respondent
did not return the money nor did he build the building contracted for so Mr.
Laintz hired someone else to build his project for an additional $25,000.00.
19. The State withdraws its allegations related to Dennis Day.
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. § 40-11-5 (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 Contractors’ Licensing Board 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. An Unlicensed Contractor is defined in S.C. Code Ann. § 40-11-20(4)
(Supp. 2005) as an entity performing or overseeing general or mechanical
construction with out a license.
3. A person who engages in general contracting must register with the Board
and it is unlawful for any person to engage in general contracting in an amount
exceeding $5,000.00 for the construction without being registered with the Board,
S.C. Code Ann. § 40-11-30 (Supp. 2005).
4. In the case at hand, the Respondent continued to engage in the business
of general contracting without first having procured a license in at least five
(5) instances. Accordingly, Respondent’s conduct is in direct violation of
section 40-11-30(Supp. 2005) and 40-1-100(B)(Supp. 2001).
5. Respondent’s unfettered conduct and total disregard for the citizens of
the State of South Carolina, has resulted in one of the most egregious
situation and set of circumstances that has come before this Court.
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
permanently and forever 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 Henry S. Moseley is PERMANENTLY
ENJOINED from further engaging in conduct that would constitute a
violation of S.C. Code Ann. § 40-11-5 et seq., 40-11-30, 40-1-210 and 40-1-100(B).
Specifically, Respondent is permanently enjoined from engaging in or offering
to engage in the business of general or mechanical contracting permanently and
forever.
IT IS FURTHER ORDERED that, an Administrative fine of ten thousand
dollars and 00100ths ($10,000.00) per violation set forth above totaling fifty
thousand dollars and 00/100ths ($50,000.00) is imposed upon Respondent for his
willful violations of the General and Mechanical Licensing laws by repeatedly
engaging in the practice of General and Mechanical Contracting without the
requisite license, even after being warned by the Board to refrain from such
unlawful activity. Provided, however that the fine set forth herein shall in no
way impede the complainant Jessica Riley from collecting on the Judgment that
she has against the respondent nor shall the fine take priority over any of the
complainants’ hereto ability to obtain restitution or collection on judgments
that may be available to them against Respondent. 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
October 27, 2008
Columbia, South Carolina
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