I have to both vent and would appreciate some advice on if/ how to best address this issue:
My mother hired a GC to demo and replace decks (app. 1000sq. ft). The GC ‘lost’ his two carpenters just prior to this job, and although I live far enough away I wouldn’t normally accept a job of this type/ scale I agreed to assist under the circumstances. The arrangement is I’m an IC working in conjunction with the GC and paid directly by my mother (I’m currentlyu pursuing an HIC license, for starters 😉 ).
The GC has been extremely volatile to work with and around. His tools are in what he refers to as ‘pig piles’, he crashes around the job site breaking things (plants, pots, fortunately so far nothing else), talking to himself and often loudly exclaiming in profanity. He generally leaves the site in the middle of the afternoon, the site and his tools often sccattered around and in the bushes; rarely does he make an effort to clean up anything. Instead of removing trim, he tears it off with whatever is available, tool or otherwise, throwing it into the bushes/ trees. He was going to top screw the new Trex decking, it appears b/c he doesn’t know about bottom-screw systems (again, from someone who has been licensed in the field for many years).
I can only suspect but can’t confirm he’s on drugs of some type or another, if not I’d almost be more concerned. He has a family and kids, lives locally, and has been in business long enough for the local yards to know of him (“he’s a special kind of guy”, “he’s one of a kind”), and came as a referral through a ‘friend’.
In summary, however, I can’t really say he has outright not performed. His progress is slow (even though he’s charging a healthy $90hr), the work is mediocre to poor (I don’t know what he used to cut out a hole for a bathroom vent in the ledger with, but I sure hope I don’t have one!), and he is one site for at least a few hours a day. Other than just being unprofessional, dangerous, and overpriced, does anyone have any thoughts on how to prevent this individual from scamming more elderly people in our area, doing poor quality work for a lot more money than it should cost while causing unnecessary damage to the property? (I’m told his contract has a ‘damage exclusion clause’)…. I’m also just wondering how someone like this gets licensed, since I’m considering getting licensed myself and believe it’s a relatively rigorous undertaking…?
Ideas, thoughts, etc? Thanks.
Edited 8/11/2006 10:44 pm ET by peedee
Replies
What is an 'IC'?
independant contractor??Tom
Douglasville, GA
Yes, IC = Independent contractor.
Wow, you're paying $90/hour to a raving madman to trash the place? Where can I get me some of that action? Tell you what, for $150/hour I'll come down and take over the job. I have had a class B license in California in good standing since 1993.
Seriously, what you're describing sounds horrible. A very good GC working solo as a carpentry contractor should be available in the $60/hour range in urban CA. The work should be first class. The job should be clean and safe. The day should be 8 hours long and the week 40. The expletives should be deleted. Maybe you want to fire this guy and look for someone else.
Yeah, you pretty much summed of my reaction (sans PC-filtered). Like I said, however, I don't believe he's done anything specifically to breach the 'perform' contract (slow, poor quality, IMHO), but alas _I_ can't fire him since he's employed by my mother, but I am consulting with her regarding this and atttempting to redress what I perceive to be an exploitive relationship.
Is the contractors name Steve and is he working in the bay area?
A friend of mine just went through a similar experience though he had all his personal tools stolen during the course of the job.
Karl
Northern Bay Area, yes, but no, not Steve.To further clarify, one of the q's I am seeking to answer is: how do people that lack general business etiquette and skills get licensed by the state? (Understandably the state tests are based on book knowledge, not personal or professional practices).
When I took the state test it was easy to pass, and most guys took a prep class as far as I know. It used to be 50% trade knowledge, 50% business and law. Not rocket science.
You should check that it's actually this individual that holds the license in question. If it's not then you can fire him immediately with no repercussions and report him to the CSLB for contracting without a license. It's also possible that he has a license but it's suspended for violations. Easy to find out on the CSLB website using his license number.
I know that CA law is "different".But I under the impression that as a Contractor he could not Contract a job based on an hourly rate.But rather he could be an employee of the HO and not need any license.Do I understand any of that correctly.
I'm not sure about that. CA law appears to continue to permit T&M work, although the CSLB website strongly encourages fixed price contracts in their guidelines. It does not specifically saw anywhere on their site that T&M is forbidden, or at least not anywhere that I looked. This came up on JLC and Dick Siebert was adamant that T&M was not allowed.
The requirements for a California Home Improvement Contract requires among other things, a stated price for the entire work, a stated completion date, and a schedule of payments. If this contractor is working on an hourly basis, the contract probably does not meet the requirements of a "legal" CA Home Improvement Contract, and therefore may not be valid and actually could be a cause of action with the CSLB against the contractor. (This is not intended to be legal advice, BTW, since I am not a lawyer.) Dick Seibert's take on T&M work is probably based on the fact that there is no exemption to these contract requirements for Home Improvement work.
Full contract requirements: http://www.cslb.ca.gov/laws/HomeImpConReq.asp
Edited 8/12/2006 5:14 pm ET by RichardAIA
I think you are right, but want to point out that it nowhere says that time and materials is specifically forbidden. It refers to the fact that the price must be shown on the contract, but it doesn't say that it can't be an hourly price. Dick Siebert seemed convinced, and given his consulting work for CSLB I believe him. I do think they should strengthen the language to specifically say that T&M is not not allowed, if in fact that's what they intend.
Sounds like the OP might have a legit reason to let the guy go.
"But I under the impression that as a Contractor he could not Contract a job based on an hourly rate."That kind of thing has been done for years. It is called time and material or cost plus, etc. For example a friend and I built a home and the footing on one end had to go down 19 feet and on the other end about three feet. We would not know that until the inspector said it was good. Imagine the difference in cost of excavation and concrete. In CA I had not built a home for a fixed price for over 20 years.
We checked and surprisingly he does have a licensed, issued to him, in 'good' standing (bonding, too).
If he is hourly then you can terminate him when you like.
It sounds to me like your mother is the contractor and she hired a carpenter . There is a legal distinction between a contractor and a mechanic (mechanic is a generic term for a journeyman of any trade). In Wilby v. State, 93 Miss. 767, 47 So. 465, the Supreme Court of Mississippi ruled a privilege tax applied only to plumbing contractors and not to plumbers. The court stated that "The business of plumbing is an honorable and necessary one. So is that of a contractor. The law looks on both of these OCCUPATIONS with favor, not with disfavor." After a Dallas ordinance defined a master plumber to be a contractor and a journeyman plumber to be a mechanic, the Court of Civil Appeals of Texas said " In the nature of things, we think a corporation could not engage in the OCCUPATION either of a master plumber or of a journeyman plumber." Trewitt v. City of Dallas, 242 S.W. 1073. In City of Milwaukee v. Rissling, 184 Wis. 517, 199 N.W. 61, the Supreme Court of Wisconsin upheld an ordinance requiring licenses of those who followed the OCCUPATION of electrical contractor but not those who followed the OCCUPATION of journeyman electrician. The court said "The council therefore, acting in its legislative capacity, duly created two classes - contractors on the one hand, and journeymen on the other. ... The test to be applied is to ascertain whether all those included in the class are treated alike under like circumstances and conditions. ... In the instant case, individuals, firms, and corporations are treated alike; each is required to obtain a license, and each must file a certificate naming the person who shall be the SUPERVISOR of the work." The ordinance itself provided that "Such SUPERVISOR shall be subject to examination as provided for a contractor." In Winder v. Caldwell, December Term, 1852, The U.S. Supreme Court said of contractors "They do not labor as mechanics, but SUPERINTEND work done by others." An ordinance of the city of Memphis required master plumbers (plumbing contractors) to obtain licenses. All individual plumbing contractors were required to be examined and licensed and in the case of a firm or corporation the plumbing contractor who SUPERVISED the work was to be examined and licensed. The Supreme Court of Tennessee said "Nobody but the licensed '"MANAGER" of a corporation or the licensed "SUPERINTENDENT" of a firm can even SUPERVISE the plumbing work which such firm or corporation may do. It is only upon this construction that we sustain the ordinance, which would otherwise be unreasonable and unconstitutional." State ex rel. Grantham v. City of Memphis, 151 Tenn. 1, 266 S.W. 1038. In City of Shreveport v. Bayse, 166 La. 689, 117 So. 775, an ordinance required "Every master electrician, or his qualified representative who shall be a master electrician shall actually and continually SUPERVISE, direct and SUPERINTEND all electrical work installed by him in the city of Shreveport." Defendants Alan Bayse and J.M. Cox were convicted for SUPERVISING electrical work without first qualifying as master electricians (electrical contractors) and receiving master electrician's certificates. In Dasch v. Jackson, 170 Md. 251, 183 A. 534, a statute required licences of paper hanging contractors and journeyman paper hangers in the city of Baltimore. The statute provided that a householder may act as his own contractor or journeyman without a license. The statute was declared unconstitutional as being in violation of the 14th Amendment of the U.S. Constitution. The Court said "The art of paper hanging is one that requires manual dexterity, skill, and some experience. It differs in that respect not at all from similar occupations, such as house painting, carpentry, stone cutting, bricklaying, horseshoeing, repairing machinery, wood carving, plastering, and the like, which men have from time immemorial followed without regulation or interference as a matter of common right and which have no substantial relation to the public health or safety." California's contractor licensing laws are ridiculous. According to their statutes any individual, partnership or corporation engaged in a contracting business must designate the SUPERVISOR of the work and such SUPERVISOR is subject to an examination. However, if the applicant is an individual who acts as his own SUPERVISOR, then he takes one test. If the applicant is an individual who employs a "responsible MANAGING employee", then such employee takes part of the test and his employer takes the other part. For a firm or corporation, if the SUPERVISOR is a member of the firm or a corporate officer, then such person takes one test . But if the SUPERVISOR who qualifies for the license is a "responsible MANAGING employee", then such employee takes part of the test and a member of the firm or corporate officer of the firm or corporation who is his employer takes the other part. This is absurd. If there is one person qualifying for a license because he is SUPERVISOR, why would someone else who is not a SUPERVISOR be taking a test. The state of California is trying to say that sometimes the contractor is the SUPERVISOR and sometimes the contractor is not the SUPERVISOR. If the SUPERVISOR is not the contractor, then it is illegal to require him to take an examination for a contractor's license.
Is there every any point to your rambling?If so them group your comments into logical paragraphs and USE SPACES BETWEEN PARAGRAPHS.If your posts don't have any point then don't bother.
First point: California law does not require carpenters to be licensed. Any carpenter can make any contract he so desires as a constitutional right. Second point: Contractor is an occupation. Contractor licenses, like dentists licenses or physicians licenses, are only good for one person. Unlicensed dentists cannot work under another dentists license. Every valid contractor licensing statute will have the provision that the supervisor shall take the examination and receive the license. Third point: The contractor for a project is always either the property owner or an agent of the property owner. All mechanics' lien laws define contractors as agents of the property owner. A contractor's function is to award contracts to mechanics to perform labor and to materialmen to furnish materials. They are the contractees.Fourth point: The fact that a law making body requires a license of a plumbing contractor does not mean that it requires a license of a plumber. Or vice versa.Now please give me your interpretation of the following rule of the Registrar of Contractors in Arizona pursuant to civil penalties: Rule R4-9-131, paragraph 5 "Failed or neglected to apply funds which were received for the purpose of obtaining or paying for services, labor, materials or equipment."
First point: California law does not require carpenters to be licensed. Any carpenter can make any contract he so desires as a constitutional right.
I'm not interested enough to know where you're going with this, or why you posted it, but it is incorrect. California contracting law says a carpenter cannot make a contract for any job where the labor and materials together exceed $500."...never charged nothing for his preaching, and it was worth it, too" - Mark Twain
Right on.
For any work in essentially any skilled trade, where the total value of the job is over $500, the person performing the work must be licensed by the Calf Contractors State License Board. Splitting the job up to stay below the $500 cap is not allowed.
And the contract need not be written--any agreement to do work for money is subject to the licensing requirement. Doing work as an employee (for wages) is a different thing, and there are several criteria that are applied to differentiate between a contractor and an employee.
I pity the poor schmuck who believes 5150's opinion. The contractors state license board conducts sting operations on a continuous basis to catch unlicensed contractors.
Cliff
Edited 8/20/2006 12:02 am ET by CAP
"For any work in essentially any skilled trade, where the total value of the job is over $500, the person performing the work must be licensed by the Calf Contractors State License Board. Splitting the job up to stay below the $500 cap is not allowed."You are absolutely right.
"Now please give me your interpretation of the following rule of the Registrar of Contractors in Arizona pursuant to civil penalties: Rule R4-9-131, paragraph 5 "Failed or neglected to apply funds which were received for the purpose of obtaining or paying for services, labor, materials or equipment.""That you received money for job and then did not pay for the materials, employees and/or sub-contractors.
California law, like Arizona law, requires property owners to obtain contractor licenses if they act as contractor unless they fall within an exempt category. Are you saying that a property owner makes a contract with himself? Vendor - vendee.
Lessor - lessee.
Contractor - ?California law, like Arizona law, defines a contractor to be a supervisor who works for the benefit of the property owner as his agent. Is a carpenter who builds a staircase by himself supervising anyone? In order to supervise someone else there must be someone else to supervise. I'm sure California's lien laws are similar to Arizona's where I live. Our lien laws state that any person who performs labor or furnishes materials shall have a lien whether the labor or materials were furnished at the instance of the property owner or his agent. It then states that all contractors and subcontractors are agents of the property owner.Assuming that no contractors or subcontractors are employed as agents, that leaves labor and materials to be furnished at the instance of the property owner. That also means that the property owner is the contractor. And under California law, like Arizona law, the property owner must be licensed unless he falls within an exempt category.The conventional wisdom is that there can be no lien unless there is a debt and there can be no debt unless there be a contract either express or implied.Every mechanics lien law and every contractor licensing law is based on this simple concept: There are only two types of contracts that can be made concerning either labor or materials. First, a person can make a contract to perform labor; Or, second, a person can make a contract to procure labor. In the first case, the person who makes a contract to perform labor is a mechanic. In the second case, the person who makes a contract to procure labor is a contractor. And by the definitions of both California law and Arizona law, such contractor is an agent of the property owner. The same reasoning holds for those who furnish materials in the capacity of a materialman or those who procure materials in the capacity of a contractor.
You do not appear to know anything at all about California contracting law.
You guys will wear yourself out arguing with 5150. In a former life he was Robert Haugen (sp) i thinkHe has ideas no one in Arizona and maybe the U.S. can be an employer....and carpenters can only work for the homeowner
Barry E-Remodeler
sounds like a new version of bob walker
Arizona is in the dark ages compared to California. The poorest work I have seen in the US has been in Arizona.
First point: California law does not require carpenters to be licensed. Any carpenter can make any contract he so desires as a constitutional right."Anyone who is unlicensed in CA can be jailed and fined or both if he contracts to any work over 500 dollars total. There are licensed subcontractors who are carpenters who are not GCs. A carpenter can work for anyone as a worker but cannot sign a contract with someone to do work.
Edited 8/20/2006 1:57 am by gb93433
A few years ago I went to court in San Luis Obispo for a very similar thing for a friend of mine who had much the same experience.
According to CA law if he brings materials on the job he is acting as a contractor and must have a license. To check if he has a license look it up at http://www.cslb.ca.gov/
If he is unlicensed your mother should have workers compensation insurance and treat him as an employee and take out withholding for him. If she pays him she should give him a 1099 at the end of the year. He will have to claim it as income. Also make sure you get lien releases from him each time he is paid. One of the things I suggest is that you make one check out to the supplier and another out to him. That way the materials are paid for. Call his supplier and ask them what the bill is on your property. I would not trust him at all.
If he gets hurt she can be in serious trouble. she could be sued and possdibly lose what she has. In any case the owner of the property is responsible to make sure every bill is paid. If he does not have a license report him imediately to the California State License Board. Get him off your property immediately. If he is acting as a contractor you are obligated to not pay him. If he has others helping then they must be paid because they are labor and not acting as a contractor.
Did he sign a contract with your mom. If he is unlicensed he can do I think only 500 dollars of work including materials.
It was already established that he has a license in good standing.
Just clicked on the web site you provided. It stated that if the total value of all labor and material contracts awarded by the contractor exceeds $500.00 then a license is necessary. It also stated that when a property owner is acting as an owner-builder then he must be licensed if the total value of all labor and material contracts awarded by him exceeds $500.00.A distinction was also made between a contractor and a journeyman. A journeyman was defined as a person who works (labors) at the trade. Thus, labor contracts are made by journeymen. It also stated that workmen's compensation need not be carried if no employees are hired. Thus, since a contractor's job is to procure labor and materials by awarding contracts to mechanics (journeymen) and materialmen, it is proof that journeymen are not employees of contractors.Go back to my original post. The U.S. Supreme Court in Winder v. Caldwell stated that contractors do not labor as mechanics but superintend work done by others. And those others are not employees of the contractor.The web site you provided stated clearly that there could be a one person business with no employees and the one person in that business does not perform any labor at all. Since that one person business does not perform labor he could not make a contract to perform labor.
>>It also stated that when a property owner is acting as an owner-builder then he must be licensed if the total value of all labor and material contracts awarded by him exceeds $500.00.
Where is this cited, please?
You are aware I'm sure that the requirements for obtaining a contractor's license are stringent and would preclude probably 98% of homeowners from getting one. As far as I know,they can still contract for the construction of their own project if they wish, hiring any combination of general and subcontractors to build it. They do not need to be licensed to do this. I lived and worked in CA for 16 years and am licensed there and have never heard of this requirement you're claiming. Let's see it.
Here in Bakersfield, you must be licensed to pull a building permit, unless you are an owner-builder. "...never charged nothing for his preaching, and it was worth it, too" - Mark Twain
Go back to reply 21 and click on the web site given there.When that site comes on click on APPLICANTS on the left of the screen.Then when the next screen comes on go to BLUEPRINT FOR BECOMING A LICENSED CONTRACTOR. Click on the HTML.When the next screen comes on go to section 3 under GENERAL REQUIREMENTS which lists exemptions. Scroll down to the owner - builder exemptions. You will see that it states that owner - builders who do the work themselves on their own property are exempt under certain circumstances. Obviously, a property owner cannot contract with himself so it cannot mean when he performs the labor himself. So the meaning is when he contracts with mechanics and materialmen to perform labor and furnish materials.
OK, went there, here are bullet points 7-9 from the list of those who are exempt from licensing requirements. Your claim that a homeowner has to be licensed in order to contract for work on his own property appears to be unsubstantiated, and it's ridiculous on the face of it anyway.
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Owner-builders who build or improve existing structures on their own property if they either do the work themselves or use their own employees (paid in wages) to do the work. This exemption is only valid if the structure is not intended or offered for sale within one year of completion;
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Owner-builders who build or improve existing structures on their own property if they contract for the construction with a licensed contractor or contractors. This exemption is applicable only if no more than four of such structures are offered for sale in any one calendar year;
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Owner-builders who improve their main place of residence, have actually resided there for one year prior to completion of the work, and who complete the work prior to sale. This exemption is limited to two structures within a three-year period;
Thank you for all for your replies, it's a very convoluted tale and much as I've tried to follow it I have to admit I'd at something of a loss. Yes, I am familiar with the $500 max (here in CA) but I'm not to sure about 'employees, 1099s' and such. I'll check about the mechanics lien (should one exist), I seem to recall rec'g one as a homeowner once when I had some work done so I'll ask if she rec'd a notice (I don't think this gentlemen is all that up on the paperwork, since from what my mother has said she doesn't have a dual-signed contract, a little squishy there to be sure.) Anyhow, she's letting him go and allowing myself and another gentleman to finish the work (I'm sure that's a whole 'nother can of worms with regard to license requirements and such). We took some pictures of some of the hacks this gentleman did which I'll try to post. As an aside, I myself am interested in obtaining licensing in CA but I'm a little stymied on the paperwork side. I can't determine what if any of my various experiences are allowable for credit, so I need to get on the phone with CSLB and inquire. Alas I too am not to hot on the paperside end, though I'm more than willing to have a go at it. Thanks again, all.
Remember if the cost of labor and materials exceeds $500.00 the property owner who exceeds paying that needs a license. Its right there in your post. If he does the work which exceeds that cost he needs a license. There is no cost if he performs labor and orders no materials.
Robert..have you ever converted anybody?
Barry E-Remodeler
Sorry I keep dragging this on. Isn't '5150' police radio code for 'criminally insane'?
some kind of insane.
Barry E-Remodeler
Amazing how some work so hard and remain ignorant yet be convinced they are correct. While at the same time many know otherwise.
I give up. The only time the property owner needs a license is if he's above a certain threshold with regards to how many properties he sells in a given time period. I'm sorry you can't understand this.
"I give up. The only time the property owner needs a license is if he's above a certain threshold with regards to how many properties he sells in a given time period. I'm sorry you can't understand this."You are absolutely right. That is the law. Impossible to understand why some people continue to argue without doing any homework. Most contractors in CA know the law because they had to pass that part of the test to get a license unlike some other states which only require your name, address, and some money.
Here in WA I had to furnish a liability policy to get licensed. No test. I'm not sure which is more stringent, WA or CA, but IMO requiring insurance is a good idea.
"A distinction was also made between a contractor and a journeyman. A journeyman was defined as a person who works (labors) at the trade. Thus, labor contracts are made by journeymen."Not in California. In CA you are either a contractor or you are not. Your idea is true in some other states where they have a two tiered system and are much more lenient."It also stated that workmen's compensation need not be carried if no employees are hired. You read correctly."The U.S. Supreme Court in Winder v. Caldwell stated that contractors do not labor as mechanics but superintend work done by others. And those others are not employees of the contractor."Many contractors do work themselves expecially if they do not have any employees and are not required to carry workers comp.
There are a number of cases in which an individual who works alone is required to obtain a license but allows members of firms and corporations or employees to work without license that have been declared unconstitutional.People like you want to make a contract to do something and then you want to hire somebody else to do it. Then you still want the money for the contract you breached. If you don't want to do the work don't make the contract. Tell the property owner you are breaching and let him contract with someone else.
"There are a number of cases in which an individual who works alone is required to obtain a license but allows members of firms and corporations or employees to work without license that have been declared unconstitutional."How can a person be decalred unconstitutional.
"How can a person be declared unconstitutional?"Perhaps illegal import labor.
"People like you want to make a contract to do something and then you want to hire somebody else to do it. Then you still want the money for the contract you breached. If you don't want to do the work don't make the contract. Tell the property owner you are breaching and let him contract with someone else."Just another case of revealed ignorance. Maybe they do such things where you live in AZ. I have noticed that the construction practices are very substandard there. In CA many times a general contractor will have a contract with an owner and then hire licensed subcontractors to do the work. Things such as plumbing, roofing and electrical, etc. In CA a general contractor can only contract work where it involves more than two trades.
If he gets hurt she can be in serious trouble
And if, as previously noted, this dude is high on the job, it can be illegal to fire him, as an employee. As a sub, then the mom gets to be GC, and the WC is "supposed: to cover any injuries suffered while stoned . . .
Hmm, being in CA, might be illegal to fire a sub for being stoned on the job--only for not completing the contract.
This law/biz stuff gets deep quick.Occupational hazard of my occupation not being around (sorry Bubba)
FYI, 5150 is going on my ignore list...I got better things to do than read his drivel.
Cliff