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1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law TENNESSEE DEPARTMENT OF COMMERCE & INSURANCE, Petitioner Vs. MICHAEL W. HAWKINS, as an individual, And d/b/a HAWKINS & SONS REMODELING, CO., Respondent Follow this and additional works at: This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE TENNESSEE BOARD FOR LICENSING CONTRACTORS IN THE MATTER OF: TENNESSEE DEPARTMENT OF COMMERCE & INSURANCE, Petitioner DOCKET NO A Vs. MICHAEL W. HAWKINS, as an individual And d/b/a HAWKINS & SONS REMODELING, CO., Respondent INITIAL ORDER This contested case was heard in Nashville, Tennessee on June 6, 01, before Lynn M. England, Administrative Judge, assigned by the Secretary of State, Administrative Procedures Division (APD, to sit on behalf of the Tennessee Board for Licensing Contractors. The Petitioner, the Tennessee Department of Commerce and Insurance was represented by Michael Driver, Assistant General Counsel. The Respondent did not appear and was not represented by counsel. ENTRY OF DEFAULT Pursuant to TENN. CODE ANN and , on March 16, 01, the Petitioner filed a NOTICE OF HEARING AND CHARGES. The Respondent failed to appear for the hearing. Based upon the Respondent s failure to appear for the hearing on June 6, 01, the Petitioner moved for a default pursuant to TENN. CODE ANN In support of the motion for default, the Petitioner presented evidence demonstrating that attempts were made to serve the Respondent with the NOTICE OF HEARING AND CHARGES.

3 Service attempts were made at the Respondent s last known business address. The certified mail along with the green return receipt card that accompanied the NOTICE OF HEARING AND CHARGES was signed for on March 6, 01 by a Christina Hawkins. (HEARING EX. 1. Further evidence presented showed additional certified mail attempt by the Tennessee Board for Licensing Contractors. The certified mail along with the green return receipt card that accompanied the NOTICE OF HEARING AND CHARGES was returned unclaimed on June 9, 01. (HEARING EX.. It is determined that the Petitioner proved actual service of the NOTICE OF HEARING AND CHARGES on March 6, 01 and then made sufficient attempts of service of the NOTICE OF HEARING AND CHARGES in compliance with RULE of the Uniform Rules of Procedure for Hearing Contested Cases before State Administrative Agencies, TENN. COMP. R. & REGS. ch (June 004 (Revised. The Respondent did not appear for the hearing. Accordingly, pursuant to TENN. CODE ANN and RULE , the Respondent is held in Default for failure to appear at the hearing. Pursuant to RULE ((b, the hearing was held as an uncontested hearing. FINDINGS OF FACT 1. Respondent did not possess a Tennessee Home Improvement License at any time relevant to this matter.. Respondent did not possess a Tennessee Contractor s License at any time relevant to this matter. 3. On or about November 30, 009, Respondent entered a contract with Chyrall White to perform remodeling work at her home located at 855 Jefferson Avenue, Knoxville, Tennessee in Knox County. 4. The contract was for work to be performed by the Respondent and included constructing a finished 15 x 18 addition to her home, installation of new vinyl windows,

4 installation of a new front door, re-roofing her home and installation of new gutters for a total price of Fifteen thousand dollars ($15, The contract required payment as follows: $ up front (materials and labor, $4, when ready to finish inside, $3, upon completion. 6. Ms. White paid the Respondent $7, as a down payment on November 30, By December 17, 009, Respondent had performed the following: removed the roof from Ms. White s home, replaced shingles on the front portion of the roof, made some repairs, dug and poured footers for the room addition, laid the block foundation for the expansion, built floor joists for the expansion and framed three walls of the addition. He also tore off a storage shed and left her water heater exposed, causing the water heater to freeze for approximately four days. 8. On December 17, 009, the Respondent informed Ms. White that he had run out of money and needed the second draw in the amount of $4,500.00, even though it was not yet due. Ms. White paid the Respondent $4, on December 18, The Respondent has performed no work on Ms. White s home since December 18, 009. ANALYSIS and CONCLUSIONS OF LAW 1. Respondent s acts and conduct, as found above in the FINDINGS OF FACT, are in violation of TENN. CODE ANN (a, which states: (a No person may engage in or transact any home improvement business, represent to the public as doing home improvement business or offer to transact any home improvement business n this state, except in compliance with the applicable provisions of this part. No person, whether subject to licensing by any law or otherwise may engage in this state in any trade practice or other act that is prohibited by this part. Every person who

5 willfully participates in a prohibited act or violation with knowledge of the prohibited act or violation is subject to the criminal penalty for the prohibited act or violation. This part may not be waived by agreement. Each licensee who is licensed under this chapter shall, as a condition to licensing, carry errors and omissions insurance to cover all activities contemplated under this chapter. The requirements of this section shall not apply to acquisition agents.. Respondent s acts and conduct, as found above in the FINDINGS OF FACT, are in violation of TENN. CODE ANN (4(A, which states: (A Home improvement means the repair, replacement, remodeling, alteration, conversion, modernization, improvement or addition to any land or building, or that portion of the land or building, that is used or designed to be used as a residence or dwelling unit for one (1, two (, three (3 or four (4 dwelling units, and includes the construction, replacement or improvement of driveways, swimming pools, porches, garages, landscaping, fences, fall-out shelters, roofing, painting and other improvements to structures upon land that is adjacent to a dwelling house for one (1, two (, three (3 or four (4 dwelling units. Without regard to the extent of affixation, home improvement includes the installation of central heating or air conditioning systems, storm windows or awnings. 3. TENN. CODE ANN (c which states in relevant part: the commission may impose a civil penalty not to exceed one thousand dollars ($1, against any person who engages in unlicensed home improvement contracting.

6 4. Each day of continued violation constitutes a separate violation. TENN. CODE ANN The Respondent s acts and conduct constitute a continuing act of unlicensed home improvement contracting. The Respondent s violations constitutes grounds for the discipline of the Respondent pursuant to TENN. CODE ANN (c; the imposition of civil penalties pursuant to TENN. CODE ANN (a; and the imposition of investigatory and hearing costs pursuant to TENN. CODE ANN and RULE It is hereby ORDERED that the Respondent shall pay a civil penalty in the amount of $19,000.00, which represents nineteen days of unlicensed activity between November 30, 009 and December 18, 009, which is the penalty requested by the Petitioner. It is further ORDERED that the Respondent shall pay the actual costs of the investigation, prosecution and hearing of this matter including the costs billed by APD and by the court reporter. The Respondent shall make the payment for the penalty in addition to the assessed costs to the Tennessee Board for Licensing Contractors, which is located at 500 James Robertson Parkway, Nashville, Tennessee POLICY REASONS FOR DECISION This ORDER is issued to protect the health, safety and welfare of the citizens of the State of Tennessee. It is so ORDERED. This INITIAL ORDER entered and effective this the day of 01. LYNN M. ENGLAND ADMINISTRATIVE PROCEDURES DIVISION OFFICE OF THE SECRETARY OF STATE

7 Filed in the Administrative Procedures Division, Office of the Secretary of State, this the day of 01. THOMAS G. STOVALL, DIRECTOR ADMINISTRATIVE PROCEDURES DIVISION