Monday, August 18, 2008
Avella faults DCA's’ “fair resolution” complaint process
Council Member Tony Avella and Whitestone residents, Michael and Janet Smith, called on the Department of Consumer Affairs to take a close look at the reality of the “fair resolution” complaint process, which DCA offers to consumers who are “misled or unfairly taken advantage of by a business”.
In 2004, Michael and Janet Smith hired a home improvement contractor to make extensive renovations to their home, within three months after work had begun the Smith family discovered serious problems with the work, including serious foundation defects. Despite numerous attempts to resolve the matter through private attorneys, the Smith family filed a complaint with the Department of Consumer Affairs in September 2004. After extensive delays the case was finally scheduled for a hearing in March of 2005 and then promptly adjourned until May without the Smith’s consent. Prior to the first hearing it was apparent to the Smith family that the DCA Adjudication Division was not handling the matter with the attention and seriousness that it deserved. The DCA attorney assigned to the matter sought to drop the case on two consecutive occasions based on questionable representations made by the contractor’s attorney without agreement from the Smith family. When the matter was finally allowed to proceed the case was heard over a period of 15 months including 11 hearing dates.
Throughout the proceedings the Administrative Law Judge failed to assign a DCA inspector to observe and testify in regard to the allegations against the contractor because he said one was not available. However, this proved to be incorrect based on work records of DCA inspectors obtained by the Smith family. At a hearing in April 2007, the contractors admitted under oath to use of unlicensed subcontractors and other violations of consumer affairs laws and the Smith family sought to amend the Notice of Hearing by filing a subsequent consumer complaint with DCA in June of 2007. However, the presiding Administrative Law Judge refused to allow the Notice of Hearing to be amended to include the new charges, the hearing was closed and a decision was rendered in December 2007 largely in favor of the contractor.
The Smith family appealed their case and brought a formal complaint of judicial misconduct against the Administrative Law Judge in December 2007. A decision on the judicial misconduct claims has not yet been rendered. However, the appeal hearing on the original case is scheduled for tomorrow August 7th in front of the very same Administrative Law Judge against whom the judicial misconduct complaint was brought. Despite the Smith’s attempts to adjourn the appeal until the judicial misconduct complaint is resolved or to assign a different judge to the case, DCA has restored the case to the hearing calendar stating that the matters are unrelated.
Thoroughly disgusted and frustrated, the Smith family reached out to Council Member Avella to seek some assistance in ending the nightmare they have endured over the past 4 years. Council Member Avella reached out to DCA Commissioner Jonathan Mintz to attempt to resolve the matter and although the Commissioner initially responded, those responses failed to address the core issues as to why the additional complaints against this contractor, who continues to operate, have yet to be fully investigated. Further attempts to request a meeting directly with the Commissioner have gone unanswered.
Council Member Avella stated, “DCA needs to do a better job helping the consumers of this city in resolving these types of consumer related disputes so that homeowners are not victimized a second time by the very agency that has the responsibility to protect them from abuses of unscrupulous home improvement contractors. It is shameful that this family has been forced to spend thousands of dollars to hire their own engineers to inspect the work and testify at hearings that should have been done by DCA inspectors, thousands of dollars in lawyers fees to represent them in the DCA proceedings and many more thousands of dollars to hire new contractors to repair and complete the work that should have been done by the original contractor.”
“We have been fighting this battle for almost four years and we thought that the Department of Consumer Affairs was there to help us resolve this matter in a fair way but what we have experienced instead is incompetence, ineptitude and injustice,” stated Michael Smith.
In this photo (from left to right): Mrs. Janet Smith; Mr. Michael Smith; Ms. Megan Smith, daughter of Mr. and Mrs. Smith; Councilman Tony Avella; Mr. Pat Carpentiere, President of the Greater Whitestone Taxpayers Civic Association.