ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 40-59-95 (Supp. 1995) and S.C.
Code Ann. §§ 1-23-310 et seq. (Rev. 1986 & Supp. 1995) upon request of the Department of
Labor, Licensing and Regulation for enforcement of a cease and desist order against Frank Farr
and for penalties. After notice to the parties, a hearing was conducted on February 27, 1996.
Based upon the evidence presented, Frank Farr is enjoined from engaging in any building activities
and is fined $1500.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their respective cases by a preponderance of the evidence and taking into account the
credibility of the witnesses:
1. The Residential Builders Commission revoked the residential specialty registration of Frank
Farr on April 11, 1994 for breach of his responsibility as a builder and for misconduct.
2. A cease and desist order was issued ordering Frank Farr and any agents to cease and desist
immediately from "entering into any contract for, engaging in, or accepting payment for, any
building, remodeling, or other construction on behalf of another for which the remuneration, in
aggregate, exceeds $199.99."
3. The Order was issued on June 23, 1994 and served on the respondent by certified mail, return
receipt requested. Respondent received the Order on June 28, 1994.
4. Respondent entered into a contract with Robert W. Fouche on May 29, 1994 for the
construction of a 20 by 20 foot garage for a total cost of $5165.00. The signed contract contains
a date of June 30, 1994.
5. A down payment of $3582 was made by a check dated May 30, 1994 and building materials
were ordered and subsequently delivered. Some grading work was necessary before construction
could begin. Some of this work was performed in June 1994.
6. In June 1994, Farr met with Mr. Fouche to discuss the construction of the garage and the work
which had been performed. Mr. Fouche believed Farr would return to complete the job.
7. No further work was performed and no further contact occurred between the two until
approximately September 1994. In September, Respondent talked with Mr. Fouche about the
purchase and delivery of vinyl siding.
8. Farr informed Mr. Fouche about the "trouble with the Builders Commission". There is a
dispute in the testimony about whether Farr specifically informed Fouche that he was prohibited
from performing any further work on the contract or about the revocation of his license. This
dispute is resolved against Respondent. The Respondent's testimony and that of his witness are
not as credible as that of Mr. Fouche's on this point.
9. The material purchased and the work performed did not amount to the equvalent of $3582.
Respondent failed to refund any overpayment.
10. In October 1994, Mr. Fouche hired another contractor to complete the job.
11. In January 1996, Farr advertised in the Carolina Trader for jobs as a home improvement
specialist listing his telephone or beeper number. The advertisement stated that the work included
roofing, painting, remodeling, vinyl siding, additions, and garage building. There were no
responses to the ads.
12. Farr placed the ads because he says he was acting as an agent on behalf of other licensed
contractors to procure the work for which he would receive a finder's fee.
13. Farr acknowledges that he will not perform work costing $200 or more without a license from
the Commission and agrees to be restrained from the practice of the profession. Farr is currently
unemployed and performs handy man jobs.
14. The remaining testimony presented consisted of the witness who made the complaint before
the Commission which resulted in the revocation of Respondent's license. This testimony does
not provide any facts relating to the violation of the cease and desist order issued by the
Commission against Respondent.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
1. S.C. Code Ann. § 40-59-95 (Supp. 1995) provides that the Administrative Law Judge Division
has jurisdiction to hear an action to enforce a cease and desist order pursuant to the provisions of
Article 5, Chapter 23 of Title 1.
2. The director of the Residential Builders Commission may issue a cease and desist order
requiring a person to cease and desist from any act of contracting, practice, or transaction which
constitutes a violation of the provisions relating to residential home builders whether or not the
person is properly licensed or registered. S.C. Code Ann. § 40-59-95(A) (Supp. 1995).
3. The director may file an action with an administrative law judge for enforcement of the cease
and desist order. If the administrative law judge finds that the person willfully failed to obey a
valid cease and desist order, the court shall impose a civil penalty of not less than $250 nor more
than $2000 for each violation. S.C. Code Ann. § 40-59-95(A)(1) (Supp. 1995).
4. S.C. Code Ann. § 40-95-10 (Supp. 1995) defines a residential builder and provides that
"anyone who engages or offers to engage in such undertaking in this State is considered to have
engaged in the business of residential building."
5. A residential specialty contractor is defined in S.C. Code Ann. § 40-59-15 (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.
6. 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)
7. Farr's license as a residential specialty contractor was revoked by the Commission. Farr
entered into a contract to perform work for which a license was required. A cease and desist
order was issued in June 1994. After its issuance, Farr continued to perform under the contract
without a license, without informing Mr. Fouche that he would not be able to complete the job,
and did not offer a refund from the down payment.
8. In addition, as recently as January 1996, Farr continued to hold himself out to the public as a
person who could perform residential specialty contracting. This is prohibited.
9. Farr has willfully violated the provisions of the cease and desist order and has violated the
provisions of the law relating to residential specialty contracting. The law and the facts support
the issuance of a fine not to exceed $1500.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that Frank Farr is permanently enjoined from engaging in any act of contracting,
practice or transaction which constitutes a violation of S.C. Code Ann. § 40-59-10 et seq. (Supp.
1995) or any regulation or order of the Residential Builders Commission, and is fined in the
amount of $1500.
IT IS FURTHER ORDERED, that Frank Farr shall meet with the Department of Labor,
Licensing and Regulation within thirty days of the date of this Order to develop a schedule for the
payment of the fine. Failure of the parties to arrive at a reasonable schedule and failure by Mr.
Farr to make payments pursuant to the schedule may be construed as the failure to comply with
this Order which may result in additional penalties and sanctions.
AND IT IS SO ORDERED.
_________________________
ALISON RENEE LEE
Administrative Law Judge
March ____, 1996
Columbia, South Carolina. |
