Complainants, Respondents-Licensees. A hearing on the above-captioned matters was held on January 2, 2014 and January 30, 2014.

Transcription

1 CITY OF NEW YORK DEPARTMENT OF CONSUMER AFFAIRS CARMEN RODRIGUEZ -and- DEPARTMENT OF CONSUMER AFFAIRS, -against- Complainants, WIDE WORLD HOME IMPROVEMENT INC. d/b/a WIDE WORLD HOME IMPROVEMENT DECISION AND ORDER NOH Nos.: CD DD License Nos.: (HIC) (HIS) 2 Record Nos.: CD ADJC - and - ARTHUR BELCASTRO, DD ADJC Respondents-Licensees. A hearing on the above-captioned matters was held on January 2, 2014 and January 30, Appearances: For the Complainants: Carmen Rodriguez and Jose Rodriguez (the Consumers ). For the Respondents: Arthur Belcastro, owner. The Respondent World Wide Home Improvement Inc. d/b/a World Wide Home Improvement (the Respondent Company ) was charged with violating the following: 1. Title 20 of the New York City Administrative Code ( Admin. Code ) and Title 6 of the Rules of the City of New York ( 6 RCNY ) 1-12 for engaging in a deceptive or unconscionable trade practice in the negotiation and performance of a Home Improvement Contract by receiving payment for services not performed and by promising to complete the contracted work and failing to do so (1 count); 1 The Department issued a Home Improvement Contractor s license to World Wide Home Improvement Inc. on June 27, 2011 that expired on June 30, The Department issued a Home Improvement Salesperson s license to Arthur Belcastro on December 22, 2011 that expired on October 31, 2013.

2 Page 2 2. Admin. Code and 6 RCNY 1-12 for engaging in a deceptive trade practice by misrepresenting its trade name on its contracts and for failing to clearly identify the HIC license number stated on the Contract as a New York City Department of Consumer Affairs license number (1 count); 3. Admin. Code (11) by failing to perform work under a home improvement contract in a skillful and competent manner (1 count); 4. Admin. Code by conducting activities under a trade name different from than that the Respondent Company stated in its application for a license (1 count); and 5. 6 RCNY 1-13 by failing to respond, in writing, within 20 days of the date that Department of Consumer Affairs (the Department or DCA ) sent the complaint to the licensee (1 count). The Respondent Company and the Respondent Belcastro (collectively, the Respondents ) were charged with violating the following: 6. 6 RCNY 2-221(a)(1) by failing to include in the Contract the date of the transaction, the contractor's name, office address, telephone number and license number; and the salesperson's name and license number (1 count); 7. 6 RCNY 2-221(a)(2) by failing to include in the Contract the approximate or estimated dates on which the Contract work would begin; failing to include in the Contract the approximate or estimated dates on which the Contract work would be substantially completed; failing to include in the Contract any contingencies that would materially change the approximate or estimated completion date, failing to state in the Contract whether a definite completion date has been determined to be of the essence (1 count); 8. 6 RCNY 2-221(a)(4) by failing to include in the Contract a notice to the owner purchasing the home improvement that the contractor or subcontractor who performs on the contract and is not paid may have a claim against the owner which may be enforced against the property in accordance with the applicable lien laws (1 count);

3 Page RCNY 2-221(a)(5) by failing to include in the Contract a notice to the owner purchasing the home improvement that the home improvement contractor is legally required to deposit all payments received prior to completion in accordance with subdivision four of 71-a of the New York State Lien and that, in lieu of such deposit, the home improvement contractor may post a bond or contract of indemnity with the owner guaranteeing the return or proper application of such payments to the purposes of the contract (1 count); RCNY 2-221(a)(8) by failing to include in the contract a clause wherein the contractor agrees to furnish the buyer with a Certificate of Workers Compensation Insurance prior to commencement of work pursuant to the Contract (1 count); RCNY 2-221(a)(9) by failing to a clause wherein the contractor agrees to procure all permits required by local law (1 count); RCNY 2-221(a)(10) by failing to include in the Contract, in immediate proximity to the space reserved for the signature of the buyer and in bold face type of a minimum size of 10 points, a statement that the buyer has the right to cancel the transaction at any time prior to midnight of the third business day after the date of the transaction (1 count); RCNY 2-221(b) by failing to provide a separate Notice of Cancellation to the owner (1 count); RCNY 1-05 by failing to clearly identify the New York City Department of Consumer Affairs assigned license numbers on the contract (1 count); and 15. Admin. Code by failing to maintain the standards or integrity, honesty and fair dealing required of licensees in that the Respondents failed to complete work required by the contract (1 count). Based on the evidence in this case, I RECOMMEND the following: Findings of Fact On October 11, 2011, the Consumers entered into a written contract with the Respondents (the October 11, 2011 Contract ). In the October 11, 2011 Contract, the Respondent Company agreed to perform home improvement work on the Consumers premises located at 762 Clarence Avenue in Bronx, New York (the Consumers Home ) including, but not limited to, installing nine (9) new

4 Page 4 brick steps as well as a concrete platform. The Consumers paid the Respondent Company in three installment payments for a total of $5, to complete the work described in the October 11, 2011 Contract. On November 17, 2011, the Consumers entered into a second written contract with the Respondents (the November 17, 2011 Contract ). In the November 17, 2011 Contract, the Respondent Company agreed to perform home improvement work on the Consumers Home including, but not limited to, installing new, brown, wrought iron railings to the porch deck and steps, as well as one gate with points and a design. The Consumers paid the Respondent Company in three installment payments for a total of $2, to complete the work described in the November 17, 2011 Contract. The October 11, 2011 Contract and the November 17, 2011 Contract are collectively known as the Contracts. The Consumers paid the Respondent Company a total of $7, The Department issued a Home Improvement Contractor s ( HIC ) license to the Respondent Company on June 27, 2011 that was revoked on April 1, 2013 and that expired on June 30, 2013 (Lic. No ). Respondent Arthur Belcastro ( Respondent Belcastro ), acting as the Home Improvement Salesperson ( HIS ), negotiated the Contracts. The Department issued a HIS license to Respondent Belcastro on December 22, 2011 that was revoked on April 1, 2013 that expired on October 31, 2013 (Lic. No ). The Department mailed a copy of the Consumers complaint to the Respondent Company on December 24, The Respondent Company failed to submit any reply, in writing, within 20 days after December 24, The Contracts and the Respondent Company s business card state that the name of the business transacting the activity is Wide World Home Improvements. Departmental records for Lic. No confirm that the Trade Name 4 for the Respondent Company is Wide World Home Improvement The Respondent Company, as well as its owner, Mr. Belcastro, performed the work at the Consumers s Home. Respondent Belcastro also supervised the work. The Respondent Company failed to submit a written reply to the Notice of Hearing within 20 days after the Department mailed it to the Respondent Company on April 24, Admin. Code (f) states that a Trade name shall mean that name under which an organization or person solicits, engages in, conducts or transacts a business or activity. 4 The Notice of Hearing claims that the total amount on the Contracts was $7,600; however, the evidence admitted during the hearing establishes that the agreed upon total was $7,100.

5 Page 5 The Contracts included the contractual language and information that 6 RCNY 2-221(a)(2), 2-221(a)(4), 2-221(a)(5), 2-221(a)(8), 2-221(a)(9), and 2-221(a)(10) require. However, none of the Contracts included the contractual language and information that 6 RCNY 2-221(a)(1), and 2-221(b) require. The total cost to correct the work is $7,365.55, which includes: (1) $6, to hire AQ Construction Corp. (HIC Lic. No ) to remove the current steps at the Consumers Home, to install nine (9) new brick steps and to waterproof them; and (2) $ to hire The Star Gate & Lock Empire, Inc. (HIC Lic. No ) to install new wrought iron railings and a gate. The Respondents were found guilty of violating similar charges, including Admin. Code , Admin. Code (11), and 6 RCNY 2-221(a) and 2-221(b), on February 14, 2014 (see CD and DD ), on March 25, 2013 (see CD and DD ) 5 and on September 25, 2013 (see CD and DD ). Opinion The Consumers established by a preponderance of the credible evidence that the Respondents improperly performed home improvement work on the Consumers brick steps and railing. The Respondents Home Improvement Work There is no dispute that the Consumers signed two home improvement contracts with the Respondents. See Consumers Exhibits 1 and 4. Respondent Belcastro admitted that he is an owner of the Respondent Company and that he acted as the Home Improvement Salesperson for the October 11, 2011 Contract and the November 17, 2011 Contract. The Consumers consistent and detailed testimony established that the Respondent Company completed the work described in the Contracts. Furthermore, there is no dispute that the Consumers paid a total of $7,100 for the work described in the Contracts. See Consumers Exhibits 2, 3, 5, 6, and 7. Notwithstanding the above, the Consumers consistent and detailed testimony, as well as their corroborating evidence (See Exhibit 8) establish that the Consumers were not satisfied with the Respondents work because the railing began to rust about month after the Respondent Company completed the installation (See Exhibit 8I) and, as of the January 30, 2014 hearing date, water, after a heavy rain, continues to leak from underneath the brick steps into the Consumers basement (See Exhibits 8J, 8K, 8L and 8M). 5 The Respondents Motion to Vacate the March 25, 2013 Inquest Decision and Order was denied. See Appeal Determination, May 17, 2013.

6 Page 6 The preponderance of the credible evidence establishes that the Respondent Company violated Admin. Code and 6 RCNY 1-12 when it failed to complete the home improvement work on the steps to the Consumers satisfaction. After making the final payment for the installation of the steps, the Consumers observed water leaking from underneath the stairs into the basement area. Despite some attempts to stave off the leaks with recaulking and water sealant, the Consumers testimony established that the Respondent Company failed to find the source of or to cease the leaking that persists. Furthermore, the Consumers' testimony and evidence established that the Respondents failed to properly apply the sealant onto the steps. The evidence shows that the water sealant was not uniformly applied to the steps because there are splotches of and splash marks from the sealant that discolor the newly installed steps (See Exhibit 8C, 8D, 8F). Some of the sealant spilled upon and stained the neighbor s steps (See Exhibit 8E). The sealant also discolored the Consumers wall on the side of the steps, as well as the lower area where the Consumers store their garbage cans (See Exhibit 8G). The preponderance of the credible evidence also establishes that the Respondent Company further violated Admin. Code and 6 RCNY 1-12 because the Contracts state the wrong trade name and fail to display Respondent Belcastro s DCA-issued HIS license number. The Contracts misinformed the Consumers when it stated an incorrect trade name. The Contracts also fail to provide the Consumers with all relevant information about Respondent Belcastro as the Home Improvement Salesperson. The preponderance of the credible evidence establishes that the Respondent Company violated Admin. Code (11) because it failed to install the new steps properly. The Consumers credibly testified that, as of the January 30, 2014 hearing date, water continues to leak from underneath the brick steps into the Consumers basement today. Accordingly, the Consumer is entitled to restitution in the amount of $7, to pay AQ Construction Corp. (NYC DCA HIC Lic. No ) $6, to remove the current steps, to install nine (9) new brick steps and to waterproof them to the Consumers satisfaction; and to pay The Star Gate & Lock Empire, Inc. (NYC DCA HIC Lic. No ) $ to install the railings and gate after AQ Construction Corp. completes the installation of the new steps.

7 Page 7 The Contracts The Respondents included some of the required 6 RCNY subsections in the Contracts A review of the back of Consumers Exhibits 1B and 4A establishes that the Respondents included all of the required language of 6 RCNY 2-221(a)(2), 2-221(a)(4), 2-221(a)(5), 2-221(a)(8), 2-221(a)(9), and 2-221(a)(10). Accordingly, it is determined that the Respondents did not violate 6 RCNY 2-221(a)(2), 2-221(a)(4), 2-221(a)(5), 2-221(a)(8), 2-221(a)(9), and 2-221(a)(10), and those charge shall be dismissed. The Respondents failed to include some of the required 6 RCNY subsections in the Contracts A review of Consumers Exhibits 1B, 1C and 4 establishes that the Respondents failed to include the language and information required by the following: 6 RCNY 2-221(a)(1) [the Respondent Belcastro s HIS license number is not on the Contracts]; and 6 RCNY 2-221(b) [the Respondents admit that they violated 6 RCNY 2-221(b) because the Contracts have no separate Notice of Cancellation to the owner. Accordingly, the above charges shall be sustained. The Respondents violated 6 RCNY 1-05 A review of Consumers Exhibits 1B and 4 establishes that the Respondent Company printed N.Y.C. LIC. # on the Contract and that Respondent Belcastro failed to write or print his DCA issued Home Improvement Salesperson license number. Although the HIC license number is on the Contract, N.Y.C. LIC. # , nonetheless, does not clearly identify the license number as a New York City Department of Consumer Affairs issued license number. Furthermore, the N.Y.C. LIC. # on the Respondent Company s business card incorrectly states See Consumers Exhibit 1A. Accordingly, the charge shall be sustained. The Respondent Company violated Admin. Code The preponderance of the credible evidence establishes that the Respondent Company violated Admin. Code Admin. Code states, in pertinent part, A license issued under chapter two shall be valid only for activities conducted under the name of the person or organization [its Legal

8 Page 8 Name 6 ] to whom such license was issued or under the trade name 3 stated in the application therefor; if a licensed activity is to be conducted under a trade name, the application must state that trade name. There is no dispute that the Respondent Company s Legal Name is Wide World Home Improvement Inc. The Contracts and the Respondent Company s business card indicate that the name of the organization that transacted the home improvement activity is Wide World Home Improvements. See Consumers Exhibits 1 and 4. Departmental records establish that the D/B/A or Trade Name 3 for Wide World Home Improvement Inc. is Wide World Home Improvement. Accordingly, the charge shall be sustained. The Respondent Company violated 6 RCNY 1-13 The Respondent Company admits that it failed to submit a written response to the Consumers complaint within 20 days after the Department mailed the Consumers Complaint on December 24, 2012 or even after the Department mailed a second copy of the Consumers Complaint with the Notice of Hearing on April 14, Accordingly, the charge shall be sustained. Standards of Integrity, Honesty and Fair Dealing Given the foregoing failure to perform work as specifically requested by the Consumer and as detailed the Contract, it is determined that the Respondents failed to maintain the standards of integrity, honesty and fair dealing required of licensees, in violation of Administrative Code Accordingly, the charge shall be sustained. 6 6 RCNY 5-01 states that Legal name means: (1) the true corporate name of a corporation; or (2) the name of at least one partner of a partnership; or (3) the name of at least one owner of a business that is not a corporation or a partnership.

9 Page 9 ORDER CD Respondent Company is found not guilty of violating 6 RCNY 2-221(a)(2), 2-221(a)(4), 2-221(a)(5), 2-221(a)(8), 2-221(a)(9), and 2-221(a)(10) and those charges are hereby DISMISSED. Respondent Company is found guilty of the remaining charges as set forth in the Notice of Hearing and is hereby ORDERED to pay to the Department of Consumer Affairs a TOTAL FINE of $5,500, which is immediately due and owing, as follows: 1) Admin. Code and 6 RCNY 1-12 $ 500 2) Admin. Code and 6 RCNY 1-12 $ 500 3) Admin. Code (11) $ 1,000 4) 6 RCNY 2-221(a)(1) $ 1,000 5) 6 RCNY 2-221(b) $ 1,000 6) 6 RCNY 1-05 $ 500 6) Admin. Code $ 500 8) 6 RCNY 1-13 $ 500 It is also hereby DECLARED that Respondent Company is deemed unfit to hold any license issued by the Department. DD Respondent Belcastro is found not guilty of 6 RCNY 2-221(a)(2), 2-221(a)(4), 2-221(a)(5), 2-221(a)(8), 2-221(a)(9), and 2-221(a)(10) and those charges are hereby DISMISSED. Respondent Belcastro is found guilty of the remaining charges as set forth in the Notice of Hearing and is hereby ORDERED to pay to the Department of Consumer Affairs a TOTAL FINE of $2,500, which is immediately due and owing, as follows: 1) 6 RCNY 2-221(a)(1) $ 1,000 2) 6 RCNY 2-221(b) $ 1,000 5) 6 RCNY 1-05 $ 500 It is also hereby DECLARED that Respondent Belcastro is deemed unfit to hold any license issued by the Department.

10 Page 10 CD and DD The Respondents are further Ordered to pay RESTITUTION to the Consumer in the amount of $7,365.55, jointly and severally, which is immediately due and owing. The Respondents are further Ordered to provide to the Department proof of payment of restitution to the Consumer within thirty (30) days of the date of this decision to the following address: NYC Department of Consumer Affairs, Collections Division-Accounts Receivable, 42 Broadway, 9 th floor, New York, New York or by ing such proof to: collections@dca.nyc.gov. This constitutes the recommendation of the Administrative Law Judge. M. Nwikpo-Oppong Administrative Law Judge DECISION AND ORDER The recommendation of the Administrative Law Judge is approved. This constitutes the Decision and Order of the Department. Failure to comply with this order within thirty (30) days (including payment of the fine) may result in the suspension of any other Department of Consumer Affairs licenses held by the Respondents. Payment with a check that is dishonored or a credit card transaction that is denied or reversed will not be considered compliance with this Decision and Order. The license(s) will not be reinstated until the respondent has served any suspension period ordered in this Decision and has paid ALL fines owed to the Department. Date: March 12, 2014 Steven T. Kelly Deputy Director of Adjudication cc: Carmen Rodriguez via at eletralite@aol.com Arthur E. Belcastro via at lilredcorvetteab@aol.com Arthur E. Belcastro via at artie@wideworldhomeimp.com Susan Kassapian, Esq., Senior Counsel, DCA Legal Division Jordan Cohen, Esq., Assistant Director, DCA Legal Division

11 Page 11 Mail payment in the enclosed envelope addressed to: NYC Department of Consumer Affairs Collections Division 42 Broadway, 9 th Floor New York, NY 10004

12 Page 12 APPEALS RESPONDENT(S): You may file an APPEAL of this decision within 30 days from the date of the decision. You must include with your appeal: (1) a check or money order for $25 payable to DCA; (2) a check or money order payable to DCA for the full amount of the fine you were ordered to pay in the decision; and (3) a check or money order payable to DCA for the entire restitution amount you were ordered to pay in the decision. If you cannot pay the fine because of financial hardship, you may submit a request for a waiver of the requirement to pay the fine. You must submit a copy of your most recent tax returns along with this request. You may file your Appeal by or regular mail, as follows: BY Send your appeal to myappeal@dca.nyc.gov and, at the same time, mail the $25 appeal fee, total fine (if not requesting a waiver) and restitution to: DCA Administrative Tribunal, 66 John Street, 11 th Floor, New York, NY (Make sure to write the violation number(s) on your check or money order.) You may pay the fine online at or mail a check or money order to: DCA, Collections Division, 42 Broadway, NY, NY BY REGULAR MAIL: Send your appeal, appeal fee, total fine (if not requesting a waiver) and restitution to: : Director of Adjudication, Department of Consumer Affairs, 66 John Street, 11 th Floor, New York, NY (Make sure to write the violation number(s) on your check or money order.) You may pay the fine online at or mail a check or money order to: DCA, Collections Division, 42 Broadway, NY, NY CONSUMER: You may file an APPEAL of this decision within 30 days of the date of the decision. You must include with your appeal a check or money order for $25 payable to DCA. You may file your Appeal by or regular mail, as follows: BY Send your appeal to myappeal@dca.nyc.gov and, at the same time, mail the $25 appeal fee to: DCA Administrative Tribunal, 66 John Street, 11 th Floor, New York, NY Make sure to write the violation number(s) on your check or money order. NOTE: The Appeal Determination may be sent to you by if you choose to submit your motion to us by . BY REGULAR MAIL: Send your appeal and the $25 fee to: Director of Adjudication, Department of Consumer Affairs, 66 John Street, 11 th Floor, New York, NY Make sure to send a copy of your appeal to each of the respondents listed in the caption on the Notice of Hearing. IMPORTANT NOTICE TO BOTH PARTIES: YOUR APPEAL MAY BE DENIED IF YOU DO NOT INCLUDE SOME INDICATION THAT YOU HAVE SENT A COPY OF IT TO EACH OF THE OPPOSING PARTIES LISTED IN THE NOTICE OF HEARING.