Complainants, Respondents-Licensees.

Transcription

1 CITY OF NEW YORK DEPARTMENT OF CONSUMER AFFAIRS PHIL HAWKINS -and- DEPARTMENT OF CONSUMER AFFAIRS, DECISION AND ORDER Violation Nos.: CD DD Complainants, -against- GS CONTRACTING OF NY CORP. License Nos.: (HIC) (CURRENT) - and - MOHAMMAD GHUMMAN, (HIS) (CURRENT) Respondents-Licensees. A hearing on the above-captioned matter was held on February 5, 2013, April 9, 2013, April 18, 2013 and May 7, Appearances: For the Complainants: Phil Hawkins and Sandra Hawkins, consumer complainants; Robert Arthur King, expert witness (architect). For the Respondents: Mohammed Ghumman, president; Ali Arif, employee (April 9, April 18 and May 7); Francis E. Hemmings, Esq. (April 9, April 18 and May 7). For Language Line: Urdu Interpreter (#11703) (May 7). The respondent GS Contracting of NY Corp. was charged with violating the following: 1. Title 20 of the New York City Administrative Code ( Admin. Code ) for engaging in any deceptive or unconscionable trade practice in the sale of any consumer services (1 count); and 2. Admin. Code (11) by failing to perform work under a home improvement contract in a skillful and competent manner (1 count). The respondent GS Contracting of NY Corp. and respondent Mohammed Ghumman (the Respondents ) were charged with violating the following: 1. Title 6 of the Rules of the City of New York ( 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

2 Page 2 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); 2. 6 RCNY 2-221(a)(6) by failing to include a schedule that shows the amount of each progress payment to be paid to the home improvement contractor by the owner before substantial completion of the work and that specifically identifies the state of completion of the work or services to be performed (1 count); and 3. 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 April 5, 2010, Phil Hawkins and Sandra Hawkins (the Consumer ) and the Respondents entered into a written contract whereby the Respondents agreed to perform home improvement work on the Consumer s premises located at 1081 Prospect Place in Brooklyn, New York for a total of $14, The Consumer paid the Respondents a total of $14,700. The contract was negotiated by Mohammed Ghumman. In addition, Mr. Ghumman performed and supervised the work. The work to be performed that is pertinent to the matter before this Tribunal included, but was not limited to, the following: (1) on the Main Roof reroof the main roof with the installation of new rubber roofing; install flashing around all skylights; and (2) on the Extension Roof re-roof the extension roof with the installation of new rubber roofing. The Respondents contract did not include the required 6 RCNY 2-221(a)(2) and (a)(6) contractual language and information. The total cost to correct the work is $28,600, which includes $21,800 to remove the current roofing material and to install new roofing membrane and $6,800 to repair any damage caused by water leaking from the roof into the interior of the residence. On May 16, 2011, the Respondents were found guilty of violating Admin. Code , Admin. Code (11), 6 RCNY 2-221(a)(2), 6 RCNY 2-221(a)(6), and Admin. Code (see CD and DD ).

3 Page 3 Opinion The Consumer established by a preponderance of the credible evidence that the Respondents improperly performed home improvement work on the Consumer s main roof and on its extension roof. The Consumer s consistent and detailed testimony, its photographic evidence and the credible and detailed testimony from architect Robert Arthur King, the Consumer s expert witness, established that the Respondents failed to install a roofing membrane made of rubber 1 as specifically required pursuant to the contract. See Exhibit 6. Mr. Ghumman conceded that he used Firestone Building Products Bitumen roofing membrane APP160 Cool ( Bitumen ). See Exhibits A and B. His argument that APP160 Cool is of an equivalent quality and effectiveness to that of a rubber roofing membrane is not substantiated by the preponderance of the credible evidence and fails to rebut Mr. King s extensive testimony that rubber and bitumen are not equivalent roofing materials. Mr. King testified that rubber roofing membranes are far superior in quality and function, which substantiates the higher materials cost and why Firestone provides a much longer warranty for its rubber roofing membranes. Mr. Ghumman also failed to rebut the Consumer s detailed testimony that they specifically asked for rubber roofing as opposed to bitumen. See Exhibits C and 6. Admin. Code (1) prohibits any [deviation] from or disregard of the plans or specifications or any terms and conditions agreed to under a home improvement contract in any material respect without the written consent of the owner. The term rubber roof is an industry specific term that specifically means any roofing made of a synthetic rubber or Thermoset membrane, which is commonly composed of Ethylene Propylene Diene Terpolymer ( EPDM ) 2. The Respondents use of Bitumen without any written consent from the Consumer is a material change in the contract. The preponderance of the 1 Membrane roofs are most commonly made from synthetic rubber, thermoplastic (PVC or similar material), or modified bitumen. Synthetic Rubber (Thermoset)... membrane roof is made of large, flat pieces of synthetic rubber or similar materials. Modified Bitumen... roofing is an evolution of asphalt roofing. It is made from asphalt and a variety of modifiers and solvents. 2 The most common thermoset roof membrane is EPDM. EPDM and polymermodified bitumen membranes often are confused by consumers because of colloquialisms used by roofing contractors. Contractors commonly call both of these membranes rubber roofs. However, in most cases, when contractors specify rubber roofs, they are referring to EPDM.

4 Page 4 credible evidence establishes that the Respondents failed to fully inform the Consumer about the differences between a bitumen membrane and a rubber membrane, and, notwithstanding, they failed to ask for the Consumer s consent. Thus, the Respondents violated Admin. Code when they took advantage of the Consumer s lack of knowledge about roofing materials and unilaterally altered the terms of the agreed-upon contract by using Bitumen. The preponderance of the credible evidence established that the Respondents also violated Admin. Code (11) because they failed to use flashing material in order to sufficiently prevent leaking at the sections of the roof where the flat roof met the vertical walls, at the edges around the skylights and at the edges around the top hatch entryway to the roof. The Consumer s testimonial and photographic evidence, as well as Mr. King s considerable testimony, established that the improperly installed roofs and flashing resulted in the following damage: cracking or alligatoring of the finished roof; water pooling on the roof; water damage to the interior living areas of the Consumer s dwelling, including, but not limited to, the ceiling and walls in a third-floor office, the ceiling in a third-floor bedroom, the stairs leading to the roof, the stairs leading from the third floor to the second floor, and the ceiling above a second-floor landing. Mr. Ghumman testified that the Respondents used #75AF Bulldog Heavy Duty Flashing Cement ( Bulldog ) as their only flashing material. His argument that Bulldog is flashing and can sufficiently prevent any leaking is not supported by the preponderance of the credible evidence. His argument failed to rebut Mr. King s credible and detailed testimony that established that industry standards, as set by the National Roofing Contractors Association, requires the use of metallic or rubberguard materials as flashing 3. See Exhibit 11. Mr. King testified that flashing materials, such as aluminum, when properly installed will prevent any leaking at those points where a flat roof meets a vertical or protruding surface 4. See Exhibits 3 and Flashing refers to thin pieces of impervious material installed to prevent the passage of water into a structure from a joint.... Exposed flashing is usually of a sheet metal such as lead, aluminum, or copper, Galvanized steel, stainless steel, zinc alloy, terne or lead-coated copper and other architectural metals are also used. Flexible, adhesive backed, rubberized, asphalt compounds are used around wall penetrations such as window and door openings. 4 Roof flashing is placed around discontinuities or objects which protrude from the roof of a building (such as pipes and chimneys or the edges of other roofs) to deflect water away from seams or joints and in valleys where the runoff is concentrated.

5 Page 5 Furthermore, his argument is not supported by the company s Product Data Sheet for Bulldog that states, under USES, [useful] as all-purpose roof cement for repairs of cracks, splits and blisters on asphalt roofs.... Primarily used to install, maintain and repair flashings around parapet walls, skylights, vents, chimney, ducts, flues, etc. (emphasis added). See Exhibit D. The Respondents own evidence states that the Bulldog is principally used to install flashing materials, and not as, a flashing material. His third argument, that all of the leaking was the direct result of the neighbor s adjoining exterior wall, fails to rebut the Consumer s evidence that leaking occurred at locations that were not near that adjoining wall. A portion of the leaking occurred at the points where the Respondents used Bulldog to join the flat roof to the exterior walls of the Consumer s dwelling, to the sides of the skylights, and around the top hatch entryway to the roof. See Exhibit 1, 2 and 13. Accordingly, the Consumer is entitled to restitution in the amount of $28,600 to repair or replace the work done on the main and extension roofs and to repair the damage caused to the interior as a result of the leaking roof. Furthermore, a review of the contract clearly shows that the Respondents failed to include the required 6 RCNY 2-221(a)(2) and 2-221(a)(6) language and information in their contract with the Consumer. See Exhibit 6. Given the foregoing failure to perform work in a skillful and competent manner, 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 and their licenses revoked. CD ORDER Respondent GS Contracting of NY Corp. is found guilty of the charges set forth in the Notice of Hearing and is hereby Ordered to pay to the Department of Consumer Affairs (DCA) a TOTAL FINE of $3,350, as follows: 1) Admin. Code $ 350 2) Admin. Code (11) $ 1,000 3) 6 RCNY 2-221(a)(2) $ 1,000 4) 6 RCNY 2-221(a)(6) $ 1,000

6 Page 6 In addition, License No is REVOKED, EFFECTIVE IMMEDIATELY. Respondent GS Contracting of NY Corp. is directed to surrender the license document immediately in person or by mail to DCA s Licensing Center, which is located at 42 Broadway, New York, NY DD Respondent Mohammed Ghumman is found guilty of the charges set forth in the Notice of Hearing and is hereby Ordered to pay to the Department of Consumer Affairs (DCA) a TOTAL FINE of $2,000, as follows: 1) 6 RCNY 2-221(a)(2) $ 1,000 2) 6 RCNY 2-221(a)(6) $ 1,000 In addition, License No is REVOKED, EFFECTIVE IMMEDIATELY. Respondent Mohammed Ghumman is directed to surrender the license document immediately in person or by mail to DCA s Licensing Center, which is located at 42 Broadway, New York, NY CD and DD The Respondents are further Ordered to pay RESTITUTION to the Consumer in the amount of $28,600, jointly and severally. 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 It is also hereby DECLARED that the Respondents are deemed unfit to hold any license issued by the Department. This constitutes the recommendation of the Administrative Law Judge. M. Nwikpo-Oppong Administrative Law Judge

7 Page 7 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: 28 May 2013 James M. Plotkin Deputy Director of Adjudication cc: Phil Hawkins via at philiphawkins1@mac.com Sandra Hawkins via at sm.jh@hotmail.com Robert Arthur King via at raking@att.net Francis E. Hemmings, Esq. via at fhemmings@hemmingssnell.com Susan Kassapian, Esq., Senior Counsel, DCA Legal Division Thomas Prol, Associate General Counsel, DCA Legal Division Mail payment in the enclosed envelope addressed to: NYC Department of Consumer Affairs Collections Division 42 Broadway, 9 th Floor New York, NY 10004

8 Page 8 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.