Friday, August 8, 2008
Justice?
What is justice anymore?
Over a year ago I did a flooring installation for a homeowner. In retrospect, perhaps I never should have done it. But in doing tile work with my license for almost 30 years, I still maintained that most people are basically honest. I don't think this guy was or is.
I had my first suspicions when he described the experiences he had with other subs, and with his friends, neighbors and other work experiences. He described how he had gotten the better of former bosses; how he threw his former girlfriend out in the street, and how he reported his neighbors anonymously to the city to have the appearance of their houses improved because they were HIS neighbors. He made the City order his neighbors to have their houses painted or fences repaired, or yards cleaned, etc., I suppose to enhance the appearance of the block, as his house would soon be finished and put up for sale.
I told him at the time that his was the worst looking of all the houses on the block! He suggested that his house is not in that loop, as his house was under construction and was immune from those directives.
And when I asked him if he was not worried about the reaction from his neighbors when they found out that he had reported them, he said he was not. He reported them “anonymously” he said!
It was those confessions (?) that should have alerted me as to what would follow, but by that time I was already halfway through his floor installation!
Basics of the Case
To begin with, this job began back in June over a year ago. It began with the homeowner approaching my ex-helper to install tile in his house. He wanted to install about 1000 square feet of tile on his floors and to have 3 showers installed. Because my ex-helper did NOT have a Contractors License, and basically only did tile jobs under the Handyman exclusion, he knew the job would require a licensed Contractor.
He (my ex-helper, Tom) asked me if I would be the Contractor on this job and he would help me as he did years before. I was asked to submit a proposal so the homeowner could submit it to his bank. The homeowner was acting as General Contractor. He was hoping to acquire monies from the bank to pay for the work being done at the house and acquiring draws in scheduled operations. I was told that the owner was borrowing the money, doing as much of the work himself as he could, and living off the borrowed money as his own income. His intention was to finish the house, sell it, and (I presume) - repay the money.
The curious thing was that he approached my ex-helper when he knew Tom DIDN'T have a license. I was asked to give him a proposal, as I was a Licensed Contractor.
My presumption is that he submitted my proposal to his bank, and was told that the funds would be given him - ONCE they saw the work in question was completed satisfactorily. I was asked to begin work on his house July 12th, exactly one month to the day after submitting my proposal.
My Background
For me, it was a little like “old times” again. For years now I was working alone. I have had my license since 1979.
Over the years I have had a number of employees at one time or another, but for maybe the last 7 years or so I have primarily done all my jobs myself. I have come to find my profession enjoyable once again. I enjoy what I do. I get great pleasure working with my hands and doing what I have been trained to do.
I enjoy doing the work. It is a mixture of the mental contracting estimates, etc., and the physical side of actually doing the installations.
Of course, there's also the great satisfaction of seeing my work after it's done. Unlike so many professions, I can do a job and see something that will be there for many years afterwards - that the owner is pleased enough to pay me for doing. The satisfaction of starting with a concrete floor and turning it into a tile, slate, or travertine floor is a great satisfaction, and a source of pride and achievement.
To be able to do it rather quickly and efficiently is a combination of tools and experience. And it affords me a great deal of pleasure when the customers are beaming over their new floor, or shower, backsplash, or counters - whatever. It ranks right up there - next to getting paid for your efforts.
The Job
Concerning this job, it was a good change of pace working with Tom again. The one thing that can be said for 2 people doing the work - it should take half the time to complete the work. Four hands should work twice as fast as two.
But there turned out another side to this job. What I didn't know was that the customer seemingly had a plan to get the work done for nothing or almost nothing. This became evident just as the job was finishing.
I discovered almost a year after the job, that on the day before we finished his job, he had made a "secret" recording. He had tried to "orchestrate" a conversation wherein he intended to someday show that he had HIRED my ex-helper and not me. He was hoping that if he could convince the ROC of AZ, that a non-licensed was his contractor, rather than a Licensed Contractor, then he could have the installation done without paying for it.
What other reason would one have for making a secret recording - the sole purpose of which was a suggestion by HIM that he had hired Tom and not me? In retrospect, this was a carefully contrived SCHEME for but one purpose only.
Amazingly, a year later, he suggested that the ROC was partners with him in this scheme. He said that they put the recording on a CD for him from his tape. And he suggested in a Hearing a year later, that at the time, he didn't see anything wrong with the installation, but it took an inspector from the ROC to point out any and all flaws in the workmanship. In the complaint he filed with the ROC, he never mentioned problems with the tile installation, but rather with a small grout joint that was missing some grout, some places where the white thinset was visible through the grout, and a few fingerprints and sponge residue on his walls where the grout had been cleaned.
More About the Job
When the job was finished, I - we - were in for a big surprise. Instead of the owner writing the check to me for the cost of the installation, he made a check out to Tom for $750. I contend that he thought that $750 was the amount an unlicensed Contractor could receive legally under the law. He later declared in the Hearing that he came up with that amount for no reason. It was just a number, arrived at arbitrarily, he said.
He told us at that time that he would pay us (me) the difference in a week, after a representative of his bank had inspected the job.
Instead, what he did was file a complaint with the ROC declaring that Tom was “contracting without a license”. This he did a week after the job was finished. When contacted by the ROC, I explained to their investigator that Tom was innocent of any wrongdoing and that I was indeed the Contractor on that job. Upon hearing that, the investigator threatened me by declaring that if there was anything wrong with the job, it would therefore go against MY license. I suggested that it should, as the job was done properly to the best of my ability and I would stand behind it.
And when the customer found that the ROC could do nothing about getting him back his money, he filed a complaint against me for some trivial elements of workmanship not meeting Industry standards. I had no problem in returning to the job to correct any issues of a punch list – but also with the intention of receiving the final payment owed me.
This, however, was denied me. He forbid me from ever entering his house, along with my ex-helper, and of course also did not pay me the balance owed. And then he requested an Inspection from the ROC. A week after he charged TOM!
The ROC
I was surprised again, though I suppose I shouldn't have been, when I received a Complaint Form from the ROC; and soon afterwards, a demand to be present at an inspection in the owner's house.
The first thing that happened was that I invited Tom to come as well, seeing as though he did the job with me. And that was the first scene! The owner started screaming, demanding that Tom get off his property!
The next thing was that the owner told the ROC inspector that I wasn't THE Tile Contractor, but A tile contractor. And I asked how I could be held accountable for any repairs unless I was THE Tile Contractor. Even though all the while I contended that I WAS THE Tile Contractor of record.
The inspector surprised me by telling me that there could be multiple contractors on one job, but I countered by suggesting, "But not doing the exact same job, for the same price, unless the owner intended to pay all these contractors the same amount though only one job was done!"
He ignored me and proceeded with his inspection. And though I brought a camera expecting sabotage to the job I had done, I found it pretty much as I had left it. So much so that I never used the camera. The things the owner pointed out were so insignificant that I anticipated that the inspector would rebuke him for the waste of his time. All totaled, I suspected there was maybe 20 minutes to an hour's worth of touch up repair. And even that wouldn't have been there if he had a check for me as promised the week after. I would have taken care of anything that bothered him. But instead, towards the completion of the inspection, he also told the Inspector in no uncertain terms that he would NEVER allow me back to remedy any of those little items. And he also did not intend to pay me!
I thought that the case would be dismissed then and there by this refusal by the owner. He told the Inspector that he never would let me back to fix the elements in question. Instead, a few days later, I received a demand from the ROC to go back to fix these items; as outlined by the owner to the Inspector and recorded by the Inspector. And aside from a couple of items that I was not responsible for, and was clearly blamed without evidence, I was ordered to do this Corrective Action. It was clear to all parties that I was always willing to return for the punch list - but with the hopes of being paid. I always want my work to look as good as possible. I am proud of the work I do and want my customers to be glad that I did their work!
More About the ROC
It puzzled me, too, that the ROC was taking this case so seriously when the items of repair were so seemingly insignificant. They knew I wasn't paid for the work I did; and they also knew I was denied access to the home to remedy any of the work. Nevertheless they persisted with their desire that I correct the work; and a short time later, I discovered that I would also have to attend a Hearing before the ROC as the homeowner requested (or demanded) it.
What I didn't know was that the ROC would be so backed up with cases that my Hearing would not take place for an entire YEAR! Another thing I didn't know was that mine would be treated as an OPEN CASE on their website for that entire year or more!
As mentioned, I have had my Contractor's License since 1979 - almost 30 years! And I have never had so much as one complaint before the ROC. And I do my own work. (Perhaps that's the reason.) I care about what I do. If there are things to be corrected, I correct them. I don't need the ROC to have me do it. I want to do it and I want to make my work right.
So much so, that for years, almost as long as I have had a website, I have linked to the ROC's website. I have bragged that I have been in business all these years without so much as one complaint. But now I have an Open Case against me. I contend without merit! But that doesn't seem to matter to them.
The oddity is that anyone can go to their website to review the history of a Contractor to make their decision about hiring. It finally occurred to me that phone calls seemed to be less frequent. As the world goes to the Web for more and more information, I have to wonder how many have gone to the ROC's site! When faced with no knowledge about an individual and then researching the background of various Contractors for the appropriate one to hire. I have to wonder how many people would look at an Open Case and automatically pass. Why would a person hire someone who HAS a complaint (albeit unfounded) when they can hire someone without a complaint!
If the ROC felt that it was their duty to let the public know that there is an Open Case against a Contractor, why do they not feel it is their duty to also let them know how many employees they have, or how tardy or not they are, or what clothing they wear, or their social habits. If a Contractor is found GUILTY of a crime or a misdeed, or refusal to repair any faulty work, or any thing else of that nature, there would be justification for such a posting. And occasionally the innocent have been found guilty sometimes, too. The judicial system sometimes finds the innocent guilty because they haven't proper defense or for other reasons. But at least a guilty verdict would be somewhat justifiable for a posting on the site, not an unfounded accusation!
For the ROC to advertise that there IS a complaint - justifiable or not - and then merely post beside it:
This is the number of complaints against this contractor that are currently open except those in which an agency inspection has not occurred or a violation was not found. Upon adjudication some complaints are found to be without merit and are dismissed.
So as to dismiss any responsibility for the posting or the potential harm done as a result is IRRESPONSIBLE!
This Country is founded upon the idea that a person is PRESUMED INNOCENT until found guilty. We are not living in Nazi Germany - or Russia - or anywhere else where such freedoms are denied us. Why is this Agency given the power over people's lives!?
Why must I pay - and HAVE for some 30 years - for the privilege of having the License - TWO of them - Residential and Commercial - hundreds of dollars, providing Insurance for my actions, posting bonds for both licenses. Only to have my name and reputation be tarnished by an individual who intends to "work the System" to avoid paying for Services rendered by ACCUSING me!? Then denying me corrective work ability. And then to have that same Agency back him in this endeavor.
The owner told me right after the job that if I intended to fight him in this matter, he would "screw" me “but good”. And I think he has!
Two Court Cases
My only means of restitution, of course, was to take the owner to Court. One Court of my choosing, and the Hearing that I would be required to attend.
I filed a case in Small Claims Court. Amazingly even that one took almost a year to come up. In the hopes that I would be allowed back to the house to take care of the issues and then be compensated, it wasn't an immediate action on my part.
I thought, perhaps, that this was only a delaying action on his part to POSTPONE paying me. In July of 2008 my case finally went to Small Claims Court.
In the Court before a Hearing Officer, he maintained again that I was not the Tile Contractor of record, that Tom was. The Hearing Officer asked the owner if he knew that Tom wasn't licensed. The owner suggested he did. And "you hired him anyhow?"
"I did."
"Why?" he was asked.
"I felt sorry for him, he was the single parent of a young boy!" the owner replied.
"And so you paid HIM for the job?" The Hearing Officer questioned.
"No," the owner replied.
In fact, as I stated, what he did instead was file a charge against Tom - charging him with “Contracting Without A License”!
What he wanted in reality was to send him to jail! What he really wanted was to have his payment returned, and for Tom to have to pay a severe penalty! I couldn't believe what I was hearing!
And then throughout that Court Hearing the owner did nothing more but continually tell one lie after another. He swore under oath that I had done only 90% of the work required, and unfortunately the Hearing Officer took him at his word and only awarded me 90% of what I sought. As I was already paid $750 I opted to seek only $2500 more for legal simplicity, and dismiss the difference which I felt ought to generously compensate the owner for any flaws in workmanship.
Had I been granted the $2571 I sought (the limit at this Court) I would have received (I thought) $3321, and the owner could use the difference to hire anyone he liked to touch up the grout and sponge off the fingerprints.
However, through his perjury, I was denied $500 of even that amount I sought! And though I was awarded the money, the owner has made no attempt thus far to pay me!
And Then the ROC Hearing
It wasn’t 3 weeks afterwards that the ROC Hearing took place. Actually it was an Administrative Hearing by an Administrative Law Judge of the State of Arizona. Apparently such cases are heard and their recommendations are presented to the ROC.
The long and short of it was that it was the recommendation of that Court that the entire Citation and Complaint in that case be DISMISSED. The Court saw it as the crock that it was!
The case is a public record and anyone can listen to the entire case and hear the owner contradict himself over and over again. He states his collusion with the ROC. How they duplicated his tape for him, how they sought work to be remedied on his job – not him. How they had guided him to make a case against me, though he contended that I wasn’t the Contractor of Record.
Of course, since he also lied and contradicted himself continuously, one always has to wonder in such testimony “which is the lie and which is the truth”?
The action to date, however, is that I have been exonerated in two Courts of Law and still the “Open Case” statement is present on the ROC website!
Today is August 10th, 2008. The job was completed July 23rd, 2007. The judge made his recommendation and dated it July 17th, 2008. It was sent on to the ROC on July 21st, 2008.
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Conclusion and Concerns:
Aside from still not being compensated for a job I did over a year ago, and suffering a $500 penalty as a result of his perjury, there is, too, a much more serious matter.
Now for the past 13 months, I am left to wonder how much work has been denied me!
The ROC, by their reckless website notice, has no doubt cost me many jobs. Or at least many leads for jobs. As my prices have always been competitive, to say the least, I typically have gotten more than 95% of the jobs I have bid. Perhaps my work experience, coupled with the price, and maybe coupled with NO COMPLAINTS, has been the reason.
I do know, however, that I have had diminished leads in the past year. As much of my work also comes as a result of my website ranking, I realize that the leads are often the result of people using the Internet. I am left to wonder how many people look to the ROC before asking a person for a bid? And have I, too, contributed to my own diminished interest?
Prior to this job, I have never had a complaint against me with the ROC. I was proud of that fact. I touted it. On my “Advice” Blog, I explained the laws as I was given to understand them by the ROC. I have tried to work always within the law, and to do my work as well as I could. I linked my website to the ROC website, so that people could see that my record was clean, and because I knew I was innocent of any wrongdoing in this case, I overlooked the harm it likely would do.
I knew what his intentions were, to avoid paying for the work. The recording he made suggested his intent. His lies and perjuries are a matter of public record. They are not my opinions. This is not MY side of the story, and there is another side. It’s all public record! One judge suggested I should be paid for the work I did, and the other one said that the Complaint and Citation was unfounded and should be dismissed. Public Record!
But that can never alter a few unsettling facts THAT TROUBLE ME YET:
That the ROC has suggested there was a complaint against me. FOR 13 MONTHS SO FAR!
And that they knew from the start that I WANTED to resolve it!
And they knew from the start that I was and would be denied access!
There was implied collusion with the ROC by the homeowner – public record!
I was told by the ROC that they didn’t CARE if I was paid!
And most especially that they POSTED on their website, for all to see, that there was an Open Case pending because a complaint had been filed. With no regard for consequences, if the Contractor was found INNOCENT, they blatantly affect his livelihood if anyone bothers to look!
In total it seems to me not at all unlike this analogy, to help anyone better understand my situation:
I sold a car to an individual thinking I would be paid. And I wasn’t, beyond a small deposit. I sought legal means to acquire payment and only was awarded a partial judgment, but no money - and that a year later. The car was kept for a year and still no payment was made. The “Thief” reports to the Agency that the wipers do not work. The Agency demands that I fix the wipers, even though I hadn’t been paid for the car – at the risk of going to jail. And the “Thief” tells everyone that the car is locked up in a secret warehouse that I am forbidden to enter. And the Agency tells anyone that cares to look that I have sold a car with faulty wipers! And though selling cars is my only source of income, and they are the governing Agency for the sale of cars; AND two Courts of Law find that I am innocent of any wrongdoing, the best they can do is remove the announcement?! And they haven’t even done THAT yet! Some 13 months later!
