Opinion
No. CV 08 4016519S
September 16, 2008
MEMORANDUM OF DECISION
The plaintiff, Deborah Haugabook, d/b/a J.T. Home Improvement, appeals from a December 3, 2007 final decision of the State of Connecticut Department of Consumer Protection (DCP) concluding that she violated the Home Improvement Act, Chapter 400 of the General Statutes, and Unfair Trade Practices Act, Chapter 735a of the General Statutes. The final decision also sets forth a series of orders, based on DCP's finding of violations, that the plaintiff contests.
In light of the orders, as set forth more fully below, the court concludes that the plaintiff is aggrieved. Pools by Murphy Sons, Inc. v. Dept. of Consumer Protection, 48 Conn.Sup. 248, 251 (2004).
The record shows as follows. On July 26, 2007, an administrative complaint was issued by DCP, with the plaintiff as respondent, alleging violations of law. (Return of Record, ROR, Item C(1)). Subsequently on September 11, 2007, an administrative hearing was held before a hearing officer designated by DCP commissioner Jerry Farrell, Jr. The plaintiff did not attend the hearing and did not in any way present evidence to the hearing officer.
The supplemental record shows that a state marshal left a letter from a DCP attorney and a copy of the July 26, 2007 complaint with a hearing date of August 15, 2007 at the plaintiff's residence on August 3, 2007. The plaintiff's husband thereafter asked DCP for and received a continuance (ROR, transcript September 11, 2007, p. 3), and a DCP attorney's letter with the September 11, 2007 hearing date was served at the plaintiff's residence on August 22, 2007. Neither the record nor the supplemental record contain any further requests for continuances by the plaintiff.
On September 13, 2007, the hearing officer issued his proposed final decision and made the following findings of fact.
1. [The plaintiff] was properly served with notice of the hearing by the service of the Complaint by State Marshall.
2. [The plaintiff] . . . held Home Improvement Contractor Registration No. 608021 to November 30, 2006.
3. [The plaintiff] entered into numerous contracts to do home improvement work for the following Connecticut consumers [setting forth five consumers at three addresses].
4. [The plaintiff] allowed unregistered individuals to enter into contracts on her behalf and use her registration.
5. [The plaintiff] and/or the aforementioned unregistered individuals failed to complete the contracted work in a timely and workmanlike manner thus causing said consumers to sustain financial loss.
6. [The plaintiff] entered into four home improvement contracts dated April 11, 2006, May 23, 2006, June 20, 2006, and June 24, 2006, with Jacqueline and Armindo Abreau . . . to do kitchen remodeling at said consumer's home.
7. The consumer paid $34,155.00 dollars for the first contract, $4,377.80 dollars for the second contract and $816.01 dollars for the fourth contract. The third contract was not at issue in this proceeding.
8. [The plaintiff] failed to complete the contracted work in a workmanlike manner and failed to refund any money for incomplete or deficient work thus causing said consumer to sustain financial loss.
9. [The plaintiff] suffered damages of $17,148.34 dollars for repairs made under the first contract, repair estimate submitted for $3,000.00 dollars for work needed under the second contract and $757.36 for repairs made under the fourth contract.
10. [The plaintiff] entered into six contracts dated (1) April 22, 2006, (2) May 1, 2006, (3) Third contract not dated but check paid by consumer on August 9, 2006, (4) October 19, 2006, and the last two dated October 23, 2006 with Lisa Kata and Francis Giuliano . . . for kitchen remodeling at said consumer's home.
11. The consumer paid $9,805.00, $3,000.00, $2,495.03, $578.00, $1,948.00, and $1,405.00, respectively and totaling $19,231 for said contracts.
12. [The plaintiff] failed to complete the contracted work in a workmanlike manner and failed to refund any money for incomplete or deficient work thus causing said consumer to sustain financial loss.
13. The consumer paid $8,186.00 dollars to another contractor for repairs concerning the above stated contract.
14. [The plaintiff] entered into five home improvement contracts dated March 28, 2006 for the first two contracts, April 25, 2006 for the third contract, May 20, 2006 for the fourth contract and July 24, 2006 for the fifth contract with Nanci Harvey . . . to do kitchen remodeling at said consumer's home.
15. The consumer was obligated to pay $8,925.20 dollars for the first contract, $2,000.00 dollars for the second contract, $500.00 for the third contract, $4,050.00 for the fourth contract and $1,072.08 for the fifth contract, totaling $16,547.28 owed under the contract, minus a reduction of $1,650.00 for removal of shower from contract. Of this amount the consumer paid $13,382.10.
16. [The plaintiff] failed to complete the contracted work in a workmanlike manner and failed to refund any money for incomplete or deficient work thus causing said consumer to sustain financial loss.
17. The consumer was forced to hire another contractor to make repairs for the aforesaid deficiency in the amount of $9,077.00.
(ROR, Item B, pp. 1-4.)
Based on these findings of fact, the hearing officer concluded that the plaintiff had violated General Statutes §§ 20-426, 20-427, and 20-429 of the Home Improvement Act, and engaged in unfair or deceptive acts or practices in violation of General Statutes § 42-110b. He issued the following proposed orders: (1) That the plaintiff cease and desist from any further violations of law, in particular from contracting with consumers to perform home improvements and then failing to properly complete the work in a workmanlike manner; (2) That the plaintiff pay a civil penalty of $3000.00; (3) That restitution be paid from the state Home Improvement Guaranty Fund to Jacqueline and Armindo Abreau in the amounts of $17,148.34, $3,000.00 and $757.36, Nanci Harvey in the amount of $7,561.82, and Lisa Kata and Francis Giuliano in the amount of $8,186.00; (4) That the plaintiff or any entity that the plaintiff controls be denied a home improvement contractor or salesperson registration in the future. (ROR, Item B, pp. 4-5.)
On November 28, 2007, DCP Commissioner Jerry Farrell, Jr. held an oral argument on whether the proposed final decision should be adopted in light of an exception submitted by the plaintiff. (ROR, Item A, p. 1.) The plaintiff and her husband Joseph Thomas appeared at this proceeding. Thomas stated that only he was a salesperson for the plaintiff, and not Richard Koslik. (ROR, Item E, Transcript, November 28, 2007, p. 3.) He also argued that Koslik's company (Custom Fabrication) made the cabinets while his own company, J.T. Home Improvement, installed the cabinets. Koslik's contracts were only retail sales contracts, not covered by the home improvement statutes. ( Id., p. 5.) Thomas did concede that Koslik did help at times with installation. ( Id.) Thomas also claimed not to be a salesman, as he only appeared at home show booths, and did not go door-to-door. ( Id., p. 6.) He asked Farrell to order the consumers to return the items of personalty that he or Koslik had provided if a restitution order was issued. ( Id., p. 4.) The plaintiff stated that she had no knowledge of the issues. ( Id.) Thomas stated that he "basically ran the business for her." ( Id., p. 7.)
The attorney for the DCP replied that the hearing officer was correct on the amounts to be paid from the home improvement guaranty fund. Credit had been given for personalty retained by the consumers; therefore Farrell should not order the consumers to return any items. ( Id., p. 5.) The plaintiff had allowed unregistered parties to be engaged as salesmen ( Id., p. 7). While Thomas claimed that Koslik's business was a different entity from his, both he and Koslik were using the plaintiff's registration number on their contracts. ( Id., p. 6.) On December 3, 2007, Farrell issued his final decision adopting the findings of fact and conclusions of law of the proposed final decision. He also adopted the orders of the proposed final decision. (ROR, Item A.) This appeal followed.
The court reviews the final decision under the following standard: "Judicial review of the commissioner's action is governed by the Uniform Administrative Procedure Act . . . Review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . [T]he trial court may [not] retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . [The trial court's] ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Citation omitted, internal quotation marks omitted, brackets omitted.) Jim's Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 803-04, 942 A.2d 305 (2008). See also the identical test applied to appeals from decisions of the DCP: Pools by Murphy Sons, Inc. v. Dept. of Consumer Protection, 48 Conn.Sup. 248, 252, 841 A.2d 292 (2004); H.P.T. Co. v. Shifrin, Superior Court, judicial district of New Britain, Docket No. 99 0493546S (May 11, 2000, Cohn, J.).
The first claim raised by the plaintiff is that the consumers did not sign home improvement contracts, but retail sales contracts for goods, not covered by the Home Improvement Guarantee Act, ch. 400, General Statutes. This argument has been made before under similar circumstances involving Richard Koslik and was rejected by the Appellate Court. "The defendant . . . argues that this written contract, which contained no mention of labor, costs of labor or the date on which installation would begin or be completed, precluded the jury from finding that he offered to perform any home improvement work. The defendant testified that he was a mere supplier of materials and that he neither offered to install such materials nor installed such materials." The Appellate Court rejected this contention: "On the basis of the cumulative effect of the evidence, the jury reasonably could have found beyond a reasonable doubt that the defendant had offered to make home improvements." State v. Koslik, 80 Conn.App. 746, 758, 837 A.2d 813, cert. denied, 268 Conn. 908, 845 A.2d 413 (2004).
As seen above, the plaintiff's husband informed the DCP commissioner Farrell that the plaintiff could not be sanctioned under the Home Improvement Act because the Koslik contracts were retail sales agreements, not home improvement contracts.
Similarly, there is substantial evidence in the record to support the hearing officer's conclusion that home improvement and not merely retail sales were involved in this matter. Indeed the plaintiff's husband informed Commissioner Farrell that Koslik helped with installations. (ROR, Item E, p. 5.) The documents are interchangeable for both Koslik and Thomas, and make use of the plaintiff's home improvement registration number. (See, e.g. Item C, April 11, 2006, "Estimate Work Sheet.")
The second claim is that since the plaintiff never signed the home improvement contracts, nor received any payment under the contracts, she cannot be sanctioned. The record supports, however, the conclusion of the hearing officer that the plaintiff allowed unregistered persons (Thomas and Koslik) to use her registration number. Thomas and Koslik each contacted the consumers. (ROR, Item E, transcript, p. 23.) This is a violation of the Home Improvement Act, §§ 20-427(b)(7); 20-429(a)(8). Therefore it is irrelevant that the plaintiff did not sign the documents herself.
The next claim made is that the amounts determined to be paid out of the Home Improvement Guarantee fund were inaccurately calculated. The record, however, supports the conclusions on the figures reached by the hearing officer. With regard to Abreau, ROR, Item E, transcript, pp. 10-13, 21-22; with regard to Kata, Item E, pp. 28-35; with regard to Harvey, Item E, pp. 40-53. A further point raised by the plaintiff is that in the case of a restitution order, the DCP should have ordered the complainants to return the personalty supplied by Thomas and Koslik. The record, as cited above, shows, however, that the hearing officer's final numbers reflected a credit for work properly completed by Koslik and Thomas. There is no ground for further return of the personalty. See Pools By Murphy Son, Inc., supra, 48 Conn.Sup. 253-54.
The plaintiff argues further that the court should remand this appeal due to an alleged error made by the DCP in making payments to the consumers under the Guaranty Fund before the appeal period had passed from its final decision of December 3, 2007. It is further claimed that the DCP was obliged to give notice to the plaintiff of the order to pay from the Guaranty Fund, § 20-432(g). This court has ruled on this issue in a decision dated May 28, 2008, denying the plaintiff's request for sanctions. Section § 20-432(h) provides in part: "Notwithstanding the provisions of chapter 54 [the UAPA], the decision of the commissioner or his designee shall be final with respect to any proceedings to order payment out of the guaranty fund and the commissioner and his designee are exempt from the requirements of chapter 54 as they relate to appeal from any such decision." The legislature has thus decided that an order to pay from the Guaranty Fund is not subject to an administrative appeal. An appeal under § 4-183 must be legislatively authorized for jurisdiction to exist. See Peters v. Dept. of Social Services, 273 Conn. 434, 442, 870 A.2d 448 (2005).
The plaintiff claims in addition that the hearing officer was biased against her. She called Richard Koslik as a witness at the August 27, 2008 hearing in this court. He testified that the DCP attorney was biased against the plaintiff. This is insufficient evidence of bias by the hearing officer. Elf v. Dept. of Public Health, 66 Conn.App. 410, 426, 784 A.2d 979 (2001).
Finally the plaintiff claims that she did not have notice of the September 11, 2007 hearing. The record shows, however, that she was served by a state marshal with a letter that gave her notice. There was no violation of the notice requirements. Elf v. Dept. of Public Health, supra, 66 Conn.App. 425.
For the foregoing reasons this appeal is dismissed.