February 25, 2009 Minutes (Development Services Conference Room)
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MEMBERS PRESENT: |
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Dennis Odgers, Kevin Chaney, Stephen Blanchard, Doug Dillon, Joe Caldwell, Ryan Kruse, Barry Walthall |
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MEMBERS ABSENT: |
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Dan Riedemann, Larry Frost |
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STAFF PRESENT: |
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Alicia Ellingson, Margene Swarts, Scott McCullough, John Miller, Mark Mills |
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PUBLIC PRESENT: |
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Kevin Hoppe, Fred Butler, Dan Poull, Joe Bradshaw, Mike Capra, Bobbie Flory |
Odgers called the meeting to order at 1:30pm.
Old Business
Odgers introduced discussion of City Code sections 5-1610 through 5-1615 and 5-1622.
Odgers recognized Capra and reminded that no new business items may be brought up at this time. New items may be brought up after the hearings in new business. Capra declined discussion until later in the meeting.
Walthall spoke on the Contractor Licensing Board (CLB) hearing procedures. He provided handouts to the board members on the code board process with bulleted information on what the board will need to keep in mind during hearings.
Walthall continued speaking on each of the City Code sections. Section 5-1610 listed out the type of complaints the board can take action on. Complaints in the hearings reference item B, intentional misrepresentation of fact to obtain a contractor license. Section 5-1611 was a key topic of consumer complaints, which the CLB is not able to act on. Section 5-1612 listed out actions that the board may take such as suspension of varying length, revocation, or other actions. There could be action short of suspension or in addition to revocation. These are merely the main listed disciplinary actions. Section 5-1613 said the witnesses shall testify under oath and a written decision shall be rendered by board and mailed to the contractor. Section 5-1614 talked about the hearing procedure. The hearing must be after not less than 10 days notice to contractor, which we are beyond. The complainant has the burden of proof. Section 5-1615 covered the appeal procedure. If action is taken, the contractor has the right to appeal to the city commission, but within 30 days of the decision. The 30 days begin 3 days after the decision is mailed. Walthall then read Section 5-1522 aloud.
New Business
Odgers moved to the new business items and discussed the order for the hearing. Anyone testifying would be under oath administered by Ellingson. We would hear a history of the license, move to the case by Capra, then the response of the contractor. The board would discuss, take a motion, and move to a vote. If a violation was determined, the board would discuss the penalty and vote.
Ellingson administered the oath to all parties present.
Complaint against Action Plumbing
Capra began saying the City has known since 2003 and he has made complaints all along about allowing Leavenworth exam scores. He said they give the test without experience. He said the City told him they have to give a license if they have a test score. Leavenworth was the easiest place. Capra began speaking about Joe the Plumber, but was reminded by Odgers the CLB is currently hearing the complaint against Action Plumbing.
Capra continued that the board needs to look at all licenses issued by the City of Lawrence. He read a section of code describing licensing’s purpose to guarantee welfare and safety to the public, which the City is not doing by letting inexperienced people work with the Leavenworth exam. He has heard this from employees.
Capra stated Hoppe was a bookkeeper before and he does not have experience.
Capra questioned testing in other places. They should have to test here if they live and work in Douglas County. The City has done nothing to stop testing elsewhere, which needs to be cut off.
Odgers asked Capra if he has any evidence for the board concerning his allegation against Action Plumbing.
Capra answered that Hoppe does not have the field experience which the code is very clear about.
Odgers deferred to Mills for license history of Action Plumbing. Action was first licensed in 1988. At the time we did not register a qualifying party, but Mills knew it to be Kenny Breithaupt. Kevin Hoppe became the qualifying party in 2005. He scored a 92% on the exam in March of 2005, testing in Leavenworth.
Hoppe presented his defense. He started working in the field in May 1989. When he was not in school, he worked in the field. Over the years, he kept getting field experience and still performs plumbing work when needed. He added that Capra complained about him taking a test when Capra never passed the test himself.
Blanchard asked Capra for evidence other than hearsay allegations that Hoppe does not have experience. Capra answered this was all he needed; he has no hard evidence other than known fact. This was the tip of the iceberg that anyone tests in Leavenworth if they cannot get licensed here.
Blanchard stated this is all hearsay allegations from third parties.. Capra agreed.
Blanchard stated when general contractors go other places, they have to show accreditation to take courses. He asked if cities have this same requirement for trade contractors.
Walthall answered that sections E and F of the state statute did not come into place until 2005, which required the experience to sit for the exam. The City required two and four years of experience for the different levels of testing. Item B on the state statute required the City to issue a license to a candidate that has proof of successful completion of the exam. Lawrence always required experience for sponsorship. But we always issued the license as required by the state. In 2008, Class E was added as a classification for trade specialty contractors covering mechanical, electrical, and plumbing contractors under our contractor licensing program. As of that date, the City required experience for a contractor to back up the certification.
Blanchard asked about the testing agencies listed out by statute. Was Leavenworth listed?
Walthall replied cities and municipalities sponsor candidates but are not the testing agencies. Block & Associates was the state designated agency, beginning in the mid 1980’s. That agency has been through many name changes. The current statute recognizes Prometric, ICC and IAPMO (International Association of Plumbing and Mechanical Officials) as the designated exam providers.
Blanchard confirmed that no experience would have been required before 2005.
Walthall responded the City required proof of experience to sit for the exam if we sponsored. Caldwell asked if the City verifies experience. Walthall stated candidates provide work history, two years experience required for journeyman plumbing. Mills added it is much like a job application where employers will recognize yes or no and employment dates.
Dillon asked Hoppe why he tested in Leavenworth. Hoppe answered at the time, you got a license when you passed the exam there. He was looking at doing a job in Leavenworth, so he needed the license. He did not end up doing the job.
Caldwell asked Walthall if Leavenworth test results and licenses are currently recognized. Walthall replied the City does accept because we believe the state statute requires it. He added that in his experience officials from other cities across the state interpret the statutes the same way.
Odgers confirmed that we would check the work history of any application with Leavenworth exam scores. Walthall answered that we check work history on any contractor. Trade licenses for journeymen and masters we do not as the ordinance is not set up this way.
Blanchard asked when the contractor licensing regulations were adopted. Walthall answered July 1, 2005.
Odgers asked Capra if he had anything more to add.
Capra stated this still bothers him. He must compete with people who did not have experience. What will the board do about this? The City had not done anything, so he brought this to the board.
Odgers asked Hoppe if he had other master plumbers working for Action. Hoppe responded that Action has five master plumbers besides him on payroll.
Kruse questioned Capra if he was asking the board to verify work history. Capra said every license with testing from Leavenworth needed to be reviewed.
Blanchard and Walthall discussed the dates licensing regulations changed. The state statute listed July 1, 2005 as the dates subsections E and F were added. Class E trade specialty contractors were included in Article 15 of the City Code on January 1, 2008.
Blanchard commented that since July 1, 2005, testing required experience. He questioned how the City could know or think that anyone was sitting for the test and did not have the experience required by the state. Capra answered that Leavenworth is not requiring the experience as required by the state statute. Blanchard and Chaney asked for proof, not hearsay. Capra said you provide experience on the application, but Leavenworth does not check.
Blanchard continued that cities/counties must approve a license upon proof the applicant possesses a valid certificate of competency with a passing score of at least a 75%. Walthall agreed.
Odgers asked for any final questions.
Blanchard moved that based on the date the exam was taken, state statutes, and other regulations in place, Action Plumbing was not in violation of City ordinance. Motion seconded by Chaney. Motion passed 6-0.
Complaint against Aqua Flow Plumbing, LLC
Capra stated he had the same complaint, but after 2005.
Mills provided the license history. Aqua Flow Plumbing, LLC became a contractor in 2006, with Fred Butler as qualifying party. Butler passed the exam with a score of 82%, May 10, 2006 from Leavenworth.
Odgers asked Capra for evidence. Capra said his proof is the exam was from Leavenworth. He said the board would consider this hearsay, but Leavenworth does not check and lets anyone test and hide behind the state statute.
Blanchard reminded Capra that he had brought action against individual companies. Capra argued that the burden of proof is not on him. Blanchard responded that the ordinance states it is.
Butler presented his history, that he has had his own business for several years, had done the work, and had the experience. He worked with Daniel Poull of Watersphere Plumbing for six years and other companies prior.
Ellingson administered oath to Poull, who arrived after the original oath was given.
Poull stated that he had worked with Butler in many capacities over the years. He did not bring specific documentation of projects. They worked together at numerous properties. Poull added that he has both a master license and is a licensed contractor.
Blanchard commented that again, the complaint is on a different issue. Butler took his test.
Blanchard moved that Aqua Flow Plumbing, LLC is not in violation of City ordinance. Motion seconded by Chaney. Motion passed 6-0.
Complaint against Joe the Plumber DBA Mr. Rooter
Capra stated that Bradshaw was a high school science teacher until 2003, left teaching in 2003 to become a plumber. He took the test in Leavenworth and has only worked here.
Mills gave the license history. Joe the Plumber has been licensed since 2003 with Joe Bradshaw as the qualifying party. He passed the exam with an 82% on June 7, 2003 in Leavenworth.
Bradshaw provided his information. He meets the licensing eligibility requirements in two additional ways as he has a bachelor’s degree in engineering from KU and is licensed with Johnson County. Plumbing experience is general experience. He did not have to show his degree; Experior results were enough.
Odgers asked about the degree. Walthall answered it applies the same as with a general contractor. They still need to show experience within the trade.
Bradshaw continued that he had no official experience prior to taking the test. He was in the Army and did much plumbing work there. Blanchard asked about experience since being licensed. Bradshaw added that he has been the primary plumber until he changed to Mr. Rooter and hired on a journeyman and two apprentices.
The board discussed the requirements again, that the state statute did not require experience before 2005. Lawrence would have required experience for sponsorship, but the state did not. We did not require experience for licensing at that time. The City was obligated to issue a license with a passing exam score.
Chaney asked if we could find out if Leavenworth required experience for the test then. Bradshaw was the only one who did not have experience prior. If Leavenworth did require experience, the test would not be valid.
Blanchard mentioned that Bradshaw since that time has had 6 years of experience. Kruse corrected to 7 years of experience currently.
Capra said they were finally getting to the big issue.
Blanchard said the charge is misrepresentation, which does not fit.
Blanchard moved that Joe the Plumber DBA Mr. Rooter is not in violation of City ordinance. Motion seconded by Kruse. Motion passed 6-0.
Other New Business
Odgers opened the floor for other new business. Blanchard reminded that the board could not discuss another contractor without giving notice to appear. Odgers added that any discussion could not be contractor specific.
Capra created an example of Agent Plumbing doing a project for $8,000. Agent called XYZ to dig the hole and hypothetically called Chaney to pull the permit. Chaney called in with a valuation of $500. There was a permit and inspection, so all was ok. City said Agent would not be in violation as he is an agent. Capra argued he would be a contractor as he is charging a fee, sum, or percentage. A current example was the public making a claim on the City for $4700. The claim listed this company and what they did. It required a contractor. 1407 Maple Lane was a plumbing permit pulled in amount of $1,000 and ticket price of $147. The claim was made with the copy of the bill from that company. Capra said it won’t stop; they can hire subs and cut the City out.
Blanchard asked for clarification. Capra said they are cutting the City out of fees. Blanchard said fees are based on a table, for everything.
Capra asked the board what he would be as Agent Plumbing, an agent or a contractor. He did work in the field, jack hammering, digging. He got money from the homeowner. He asked the board to decide.
Blanchard discussed the definition of a contractor in the code, specifically the specialty contractors. Walthall said Code section 5-1512 talks about the trade specialty contractors, but there is no specific reference elsewhere.
Capra gave another example of work to snake a drain. He needed more work and dug the hole. He called a plumbing contractor to pull the plumbing permit and put the pipe in the ground. He asked if this could be an agent, getting paid $8000 while the City only knows of $500 reported.
Odgers replied if the owner was paying rooter, concrete, and plumbing separately, this could be an agent. He continued if the homeowner pays this one entity for the whole project, they could become a contractor.
Walthall remarked this drain cleaner was no different than a property manager. They took care of properties for a fee. The hired contractors to do repairs, several projects, etc. He asked if they could be a contractor, or does agent fit. Odgers asked if these property managers receive a fee or percentage over the year. Walthall replied they are compensated. He also reminded that we are not a consumer complaint agency, although we have elements that protect customers. The City could not regulate how much a contractor could charge. Those complaints would go to the Attorney General.
Blanchard commented that the project valuation does not include overhead, soft cost, but just materials and labor. Capra added the work mentioned was only the cost of the pipe, just the specific part they do not the whole scope of the job. He continued with the claim on the City where plumbing work came in house, out of house, and across the street to the main, leaving the street in gravel.
Dillon questioned who was liable to fix the street if it were to settle. He wondered if the person who pulls the permit takes the responsibility. Walthall answered that ultimately the homeowner is responsible, but it may go back to the contractor. Gravel was used because the asphalt plant is not open this time of year. Dillon followed-up about his responsibility if he fixed a pipe and the other guy did all back hoeing, etc. The board suggested that would be time to talk to Public Works.
Capra commented about the Public Works ordinance. During winter, they required filling with flowable fill concrete, temporary barrier, and light concrete layer until asphalt plants reopen and the road can be replaced.
The board discussed excavation. No permit is required for excavation.
Capra stated the City has said you do not need a license for what is going on with the Agent Plumbing example. He said this is wrong if they are putting together these jobs.
Blanchard remarked that the parts requiring a permit were pulled by a licensed contractor. Capra countered that the permits were pulled for the wrong valuation. Odgers added that long ago he was told that only things required for permitting must be included in the valuation.
Capra asked if Agent Plumbing would need to be a licensed plumbing contractor. He added Agent represents himself as the contractor. Blanchard said he sees this like being a developer. Capra stated developers own the property so being an agent is different, but Blanchard disagreed. Capra continued that it should require a general contractor. Blanchard asked if the rest of the project required a permit. Capra answered it does if you jack hammer out a basement, but only over a certain amount of pipe requires permit.
Capra stated if we allow people to continue, the City will lose out on money.
Chaney asked if there were options such as the Mechanical Board’s flat rate for residential fees. Walthall replied that this was a Mechanical Board recommendation, but it has made things easier. This could be done. Chaney said Capra would have to take this to individual boards to institute a standardized fee.
Capra asked if he would need a license to get the fees he is charging. Blanchard responded his only concern would be to prove that the person pulling the permit was not supervising the job, referencing code section 5-1610 C.
Capra continued if he pulled the permit, he would be in control of the whole job. He would not do anything until it is all done and he could leave. Walthall pointed out that the part requiring the permit he would have supervised.
Odgers asked about the streets, as this falls under Public Works. Capra questioned that he had any responsibility for the street, but said he would be the only person the City has to go back to. Odgers added that the plumber doing that would be exposing himself to a lot of liability. Blanchard agreed that whoever pulls the permit assumes responsibility for the job.
McCullough introduced himself as the Director of Planning and Development Services. He thanked all of the volunteers for their time and Capra for his valid points. He continued if a party, be it a plumber or painter, came across bad electrical work doing work that did not require a permit and hired out the work and added into their fee, it might need a contractor. If someone else did the work and got paid, then no. He admitted this is grey area. He said the City’s position to date has taken the agent position, because the main value is that the work is getting permitted by a licensed contractor and inspected properly. He added the City does not know where the money is going or coming from. He appreciated that when someone hires subs in and bills that into their fee, it might look like general contractor work, but it goes back to enforcement. McCullough continued it is hearsay down the road talking to homeowners; if we don’t have a specific homeowner coming forward, we cannot build a case. He stated this board can give insight and opinions, but this is somewhat outside the specific duty of the board.
Capra said the claims against the City are the reason he brought up this issue. McCullough asked for clarification. Capra replied at 1407 Maple Lane the homeowner is making the claim against the city that when the water line was put in, their sewer line was damaged in 1990. John Miller, Staff Attorney, added that the claim is an action against the City, not a bill for the cost of a plumbing contractor.
Blanchard stated building contractors as defined have a responsibility to hire per these guidelines. However, he added that with a job that falls outside of general building or into trade contractors could involve an agent. He said responsibility depends on the legal issues in their contract or else a contractor is responsible for the permits they pull. Caldwell commented his work would have a contract saying the exact scope of work covered. Odgers agreed beyond that is the homeowner’s issue, a consumer issue.
Capra requested the board draw a line. Odgers asked where, with money, finances, or scope of work. Capra asked whose issue is it if a drain cleaner finds a problem. Blanchard answered it is ok if the work requiring a permit has a licensed contractor and all necessary permits.
Capra questioned if the board would let this keep going or get rid of agents. Blanchard commented on a project with a construction manager; he is not a contractor but takes responsibility for the entire scope of the project.
Capra brought up discussion on remodel projects. Walthall added remodels with several different elements would require a general contractor. He said it is not uncommon where a trade contractor starts to work and the scope of the project includes much more than their trade. The City would stop that work, invalidate the permit if one was issued, and require the homeowner get a contractor and a full-scale permit. Capra clarified that the board wants to allow agents to change inside buildings, altering or repairing the structure. The board talked about the definition of altering a structure and projects such as moving an outlet only require permitting if affecting a circuit, which is not the structure as a whole.
Odgers concurred there is no perfect way to do this. Blanchard discussed earlier comments by McCullough. The City is concerned that people doing work are licensed, getting permits, and obtaining inspections. McCullough added that there are other avenues of enforcement if the City finds people working without a license to require licensing. These are outside the scope of the board.
Blanchard reminded all to bring those examples forward. Dillon added he would make sure to check the part of the work he was responsible and make sure the rest could not come back to him. The board agreed that should be done with the proposal.
Blanchard revisited the issue of the Leavenworth testing. He stated it is a state statute issue that we need to follow. Capra countered that it is the point of the board to look at this and review the Leavenworth licenses as one guy already admitted no experience. Blanchard said experience was not required by the state then.
Odgers said that currently for contractor licenses we must review experience. Walthall agreed that we do for all contractors, class A through E, but do not have the authority to check experience for applicants for tradesmen licenses. Capra said his whole point was an out of control area in licensing, as he was unaware the City does check experience.
Odgers mentioned when the licensing program was started, people were grandfathered in. Walthall continued that with new licensing programs, you bring in everyone in the community working already. Wallthall did not know of any program that started and made existing companies go back to test before licensing. Over time, as people drop out and new people enter the trade, they would have to meet the testing and experience requirements. The City’s program began with class A through D in 2005 and added E in 2008 as an upgrade to the program.
Capra asked if the City could make a requirement that if you live in the city or county, you have to test here. Caldwell answered with authorities checking experience, this need is taken care of.
The board and public discussed licensing in Kansas versus Missouri. The conversation included test scores and their validity across the border and if licenses are recognized elsewhere. Mills added many other jurisdictions do reciprocate our testing. Blanchard said that was not in the board’s scope, nor is quality of the work.
Capra asked how to change the problem with Leavenworth. Blanchard replied at the state level. Walthall added the state is geared to the journeymen and masters, not contractors, which allows us to require experience in addition to testing for contractors.
The board talked about years of experience required. Capra questioned that schooling can count in the same year as working, two years in one. Blanchard said 240 hours of school counts for one year of experience. If you could do both, we could count both. Capra asked about the years required. Mills stated we changed requirement to two and four years to match the state statute.
The board thanked Capra for bringing these issues forward.
Adjournment
Blanchard moved to adjourn the meeting. Motion seconded by Dillon. Motion passed 6-0. Meeting adjourned at 3:17pm.