|Richard Hoover, President||Michael Muenich, Board Attorney|
|Steve Kozel, Vice-President||Steve Kil, Town Manager|
|Joseph Gomeztagle , Secretary|
(The Pledge of Allegiance was recited by all.)
Nomination for Richard Hoover as President by Mr. Gomeztagle. Hearing no further nominations, Mr. Hoover called for a vote. Nomination carries 5 ayes to 0 nays.
Nomination for Steve Kozel as Vice-President by Mr. Hoover. Hearing no further nominations, Mr. Hoover called for a vote. Nomination carries 5 ayes to 0 nays.
Nomination for Joseph Gomeztagle by Mr. Gill. Hearing no further nominations, Mr. Hoover called for a vote. Nomination carries 5 ayes to 0 nays.
Mr. James Yannakopoulos, with the Law Firm of Koransky, Bouwer & Poracky, P.C., reviewed the Motion to Dismiss wherein he calls out the jurisdictional limitations of the Contractors Board under § 10-85 for violations and enforcement procedures. Mr. Yannakopoulos stated that the Stoppers’ Complaint fails to meet the criteria set out in § 10-85, Items 1 through 8.
Mr. Yannakopoulos advised that under Indiana Law, in order to waive the implied warranties of inhabitability, a builder has to offer certain warranties; those warranties were provided and met. The Stoppers bought the home and closed on their house May 26, 2006, and then experienced problems with the roof in 2014. They had no problems for eight (8) years; their roof warranty lasted for four (4) years.
Mr. Yannakopoulos stated that he questions the swearing in of any witnesses when this board lacks the jurisdiction to hear this matter and asked the board to determine that it lacks said jurisdiction and remove itself from the matter immediately. He further stated that, if the homeowners are disgruntled and have contracts, they can enforce those contractual remedies with the appropriate venues.
Mr. Yannakopoulos asked the board to consider the Motion to Dismiss based on the facts set forth in the Complaint and dismiss the Complaint outright for lack of jurisdiction.
Mr. Muenich stated that the Memorandum sent to the members of the board on March 21 sets forth some options: You are limited in your jurisdiction to what the Ordinance provides for you. You are basically a contractors licensing board. You have a limited number of remedies if you find that the Licensing Ordinance has been violated.
Mr. Muenich advised that there are approximately ten grounds where you can take action on a license. Almost every one of those grounds, if not all of those grounds, relate to violations of municipal code or violations of the State building code or State building regulations or licensing regulations. He further advised that the way the Ordinance is crafted, we come up against a conundrum because anybody, under the Ordinance, can file a Complaint, which the Stoppers have done.
Mr. Muenich stated that the Stoppers have not had an opportunity to respond to Mr. Yannakopoulos’ Motion to Dismiss. They have been served with a copy of it, and their position is unknown at this time, and you should hear from them before you choose to make any decision.
Mr. Muenich read part of the memorandum into the record as follows:
“It is important for the Board to recognize that Registration and Licensing under the Ordinance, and as regulated by the Board, is separate and distinct from determining contractual disputes, warranty issues, or complaints between contractors and their customers, or administering provisions of the Indiana Statutes on New Home Construction Warranties, including warranties offered by builders. These latter matters are private, not public proceedings, and are adjudicated between the parties by litigation, arbitration, mediation, or other proceedings governed by the parties’ contract.”
Mr. Muenich advised that there is a Home Warranty Statute in Indiana that governs the latter paragraph, IC 32-27-2-1 and following. Mr. Muenich further advised that, as Mr. Yannakopoulos noted, those are generally considered to be private matters subject to litigation in a court or jurisdiction; some contracts provide for arbitration or mediation. Mr. Muenich added that those remedies aren’t provided by a licensing board.
Mr. Muenich stated that, as he reads the Complaint, there has not been an allegation of a code violation, which is what he reads this board’s jurisdiction is limited to. He further stated that the Ordinance does require you to grant someone a Hearing if they file a Complaint.
Mr. Muenich advised that, with all due respect to Mr. Yannakopoulos, the board has a couple of options: Option 1 is you could grant the Motion to Dismiss if you find that it is proper, and these proceedings would terminate. And the Stoppers have the right under the Ordinance to appeal to a circuit court or a superior court to contest that determination if they are not satisfied with the board’s determination.
Option 2, you can defer ruling on the Motion to Dismiss and take evidence and enter a finding at the end of that evidence. Mr. Muenich stated that the board should hear the Stoppers position before making any proceeding. Mr. Muenich advised that they have the Complaint, and as finders of fact, the board should determine whether or not there is a code violation of some form, or another, in that Complaint. If you find that there is not a code violation, or one of the grounds under which you’re Ordinance authorizes you to suspend or do something with Olthof’s registration, they have a right, at minimum, to be heard.
Option 3, you could hear what they have to say and you find that they don’t meet the requirements for consideration by the Ordinance, then you could grant the Motion to Dismiss or simply rule against them based upon the evidence and the failure to meet the standard. If you find there remains a case after taking the evidence, Mr. Olthof would have to proceed.
Any of the options would have to be taken by motion and require a majority vote.
General discussion ensued.
Motion to swear in the Stoppers and hear what they have to say by Mr. Kozel. The motion was seconded. Motion carries unanimously.
Mr. Muenich swore in the parties who would be testifying in this hearing.
Mrs. Stopper thanked the board for hearing this matter and passed out packets containing photographs that her husband will review. She stated that in the spring of 2014, they had a leak in the living room ceiling, and she called the customer care department of Olthof Homes and spoke with Becky and asked to have someone from Olthof come out and inspect the issue. She stated that Becky explained that there was a four-year warranty for the roof and that Olthof is not responsible. In the spring of 2015, another leak appeared, and they could hear dripping. She called Olthof again.
Mrs. Stopper stated that Russ from the Home Warranty Department came out and looked in the attic but did not go up on the roof and told her he was not a roofer. She further stated that he informed her there was black mold in the attic. Mr. Stopper stated that she had told Russ this could be structural, and he had argued with her that it was not structural but that it could be blowing rain coming in through the vents.
Mrs. Stopper advised that she had contacted Roger Lange with Lange roofing; and he came out and inspected the roof and told her that it is a phantom leak. She stated that, after that, she had called Olthof Homes again and spoke directly with Todd Olthof and explained everything that had transpired; wherein, Mr. Olthof sounded unconcerned and stated that he couldn’t help her. She stated that she came to the November meeting and explained what had happened and stated that Mr. Dave Austgen told Mr. Kil to contact Olthof to take care of it.
Mrs. Stopper stated that while she was explaining about the phantom leak and was told that the roof would have to be torn up to investigate the phantom leak. (Note: Mrs. Stopper never mentioned who told her the roof would have to be torn up.)
Mr. Hoover explained that the 30-year roof warranty is on the shingles and asked if she had a written letter explaining what was going on from a contractor or roofer that she had come out. Mrs. Stopper responded that Roger Lange is the only one she had come out.
Mr. Hoover stated that she needs more than just hearsay that it is a “phantom leak” as that doesn’t show anything.
Mrs. Stopper stated that her husband went and looked at the leak. Mr. Hoover asked if he went on the roof. Mr. Stopper stated that per Olthof’s warranty, you void the warranty if you go up on the roof.
Mr. Stopper explained the pictures to the board. He started with a picture of the H-clip. He stated that the leak is where the H-clip is located and that the plywood is not flush with the H-clip. Mr. Stopper stated that there is a gap there and that it is warped now.
Mr. Hoover advised Mr. Stopper that he needs to find out the source of the leak. Mr. Stopper requested that the board make Olthof’s professionals come out and inspect it since it’s their work product.
Mr. Stopper stated that he knows what it is and that it is a phantom leak and demanded to know why Olthof didn’t use more H-clips. Mr. Kozel explained the proper placement and use of H-clips. Mr. Stopper referred to a specific photo and stated that the H-clip is missing, but the plywood is flush there.
Mr. Stopper stated that as you go up in the attic, you can see separation from the H-clip. He further stated that it is not near the leak, but he wants to know why it is buckling. Mr. Kozel responded that it is buckling because of the broken H-clip. Mr. Stopper stated that it could start leaking at a future time.
Mr. Hoover explained what the H-clip is for and stated that it has nothing to do with leaks unless it buckles enough and causes a shingle to lift. Mr. Stopper replied that it is buckling.
Mr. Hoover explained that the type of leak Mr. Lange said it was can come from anywhere, and the Stoppers need to find out exactly where the leak is coming from. Mr. Hoover advised the Stoppers that, at this time, they have no proof of the leak being caused by a code violation, so they can’t answer that question.
Mr. Kozel stated that the time period is hard to determine.
Mr. Stopper stated that it is buckling. Both Mr. and Mrs. Stopper stated that neither of them have even met Mr. Olthof and that he has never even come out to the house.
Mr. Gomeztagle stated that he understands their frustration. Mr. Gomeztagle reiterated what Mr. Muenich stated about this board being a venue that they can come to and complain about contractors that have built or will be building in this community. We have an Ordinance to ensure that the builders come in and build for the best interest of the homeowners so we don’t have this happen. Mr. Gomeztagle further stated that we, as a board, need to listen closely to the complaints so that if a builder has a series of complaints, when it comes time to renew their license, we can take that into account, and we need to understand the frustrations of the homeowners.
Mr. Muenich advised the board that if they are going to proceed forward, they need to make a finding that there has been a violation of the 1 and 2-family dwelling code, and then you have the options of the various sanctions within the framework of the Ordinance, if you find such a violation occurred. If, on the other hand, you find this is a breach of warranty issue, then it is a private matter as provided by Indiana Code 32-27-2-10, Actions for Breach of Warranty.
Mr. Muenich read the section into the record:
“If a builder provides and breaches a warranty set forth in section 8 of this chapter (or IC 34-4-20.5-8 or IC 32-15-7-8 before their repeal), the home buyer may bring an action against the builder for: (1) damages arising from the breach; or (2) specific performance. (b) If damages are awarded for a breach of a warranty set forth in section 8 of this chapter (or IC 34-4-20.5-8 or IC 32-15-7-8 before their repeal), the award may be for not more than: (1) the actual damages, which are either: (A) the amount necessary to effect repair of the defect that is the cause of the breach; or (B) the amount of the difference between the value of the new home without the defect and the value of the new home with the defect; (2) the reasonably foreseeable consequential damages arising from the defect covered by the warranty; and (3) attorney's fees, if those fees are provided for in the written contract between the parties.”
Mr. Muenich advised that those are for proceedings in a court of law; those are not proceedings that are held before a Contractors Board regarding licensing. He further advised that in his opinion, it is beyond the board’s jurisdiction.
Mr. Hoover stated that every word the Stoppers have said has been recorded; however, there is nothing else the Contractors Board can do as a body.
Mr. Kozel asked if the Stoppers had anything further to say before the representative from Olthof takes the floor to be heard.
Mrs. Stopper stated that they are upset that the builder was cold and uncaring on the phone and asked him why he wouldn’t come and take a look at it. She further stated that the person who installed the roof is partly at fault for what is now happening. Mrs. Stopper commented that she doesn’t care that it is from 2006 to 2014; it probably started leaking before it showed up on the ceiling. If there is black mold up there in 2014, it could have been “stewing up there for a while” and could have been within the four years that they were there and showed later on. Mrs. Stopper said that she is angry that they don’t have the decency to come out and look at their workmanship or what was going on.
Mrs. Stopper stated that they now have a major problem in the attic, the interior of their home is wrecked, and she doesn't understand how they can do that to a homeowner and take some responsibility. Mrs. Stopper stated that a roof leak is a major problem, and now there are water spots all over the inside of the home and mold in the attic.
Mr. Muenich advised that a motion to dismiss or to deny the motion to dismiss is in order. If they deny the motion to dismiss, it would then be Olthof’s obligation to come forward with anything he chooses to prove.
Mrs. Stopper asked if anyone can tell her why a builder won’t take ownership of problems when they build in this town. Mr. Gomeztagle responded that they are trying to prevent these type of issues from going on from here forward. He stated that he understands what she is going through; however, this speaks to credibility.
Mr. Muenich advised that it is up to Mr. Olthof to decide if he wants to proceed and the board’s job, at this point, is to determine if there is sufficient cause to find that there has been a violation of the 1 and 2 family building code or to grant a motion to dismiss. Mr. Muenich further advised that this board has no jurisdiction over warranty matters.
Mr. Stopper commented that they were not allowed on the property while the home was being built. Mr. Hoover apologized and stated that this is out of this board’s jurisdiction.
Discussion ensued regarding which version of the International Code is being used by the inspector Mrs. Stopper asked if the buckling, gap, and missing or defective H-clips weren’t a code violation.
Mr. Hoover stated that he is sorry that there was a lack of communication, but this board has no control over that. Mr. Hoover stated that he doesn't believe that is the cause of the leak, and there is no evidence providing proof that it is. He further stated that he believes the leak is coming from somewhere else, but he can’t prove it.
Mr. Stopper commented that there is only one guy who can prove it, and he won’t show his face. Mr. Hoover stated that it isn’t necessarily only him and that we don’t know who put the roof on.
Mr. Stopper stated that Olthof subcontracts everything out. Mr. Hoover responded that every contractor has to be licensed to work in St. John, even subcontractors.
Mr. Hoover stated that we need a motion to dismiss unless we can find a specific code violation and entertained a motion.
Motion to dismiss by Mr. Kozel. Motion dies for lack of a second.
Motion to dismiss for lack of jurisdiction by Mr. Gomeztagle. Seconded by Mr. Kozel. Motion carries 5 ayes to 0 nays.
Mr. Robert stated in 2011, these meetings were set to be the last Thursday of the month as needed, which is in the minutes. He asked why the Contractors Board meeting is being handled by the Town Manager’s Office instead of the building department. Mr. Kil responded that there isn’t a separate department head in Building and Planning, and that, by virtue of the State law, he serves as the department head.
Mr. Robert stated that the building department was to review the Complaint to justify a hearing, and “apparently that wasn't done.”
Mr. Kil responded that Mr. Robert demanded a hearing and he got one. Mr. Robert responded that he didn’t demand a hearing. Mr. Kil responded that he had seen Mr. Robert instruct the Stoppers to file a Complaint with the Contractors Board and has no reason to be upset that there is a hearing, which is unfair to the Stoppers.
Mr. Kil stated that the initial hearing date was snowed out. (The original meeting date was February 24, 2016.)
Mr. Kil stated that he had spoken with Mrs. Stopper, who understood the reason for postponing the hearing. He further stated that the meeting was rescheduled for the first available date with Notice given to the contractors and the Stoppers to ensure both parties could attend.
Mr. Gomeztagle recommended that the board start meeting monthly instead of as needed, as he feels that term has become too loosely used.
Mr. Kozel stated that this board started when we had an issue with a contractor in town with numerous complaints. After the complaints were resolved, we didn’t have any more issues and nothing to discuss requiring us to hold regular meetings.
Mr. Robert stated that he was the president of the Contractors Board initially and everything was handled by Terri Wilson, who would send out notices. She sent a number of cancellation notices, so he told her to save money and only mail notification when the board will have a meeting.
Mr. Robert advised that this board is voluntary and that nobody gets paid other than the attorney. Mr. Robert stated that he now understands why things weren’t handled through the building department.
Mr. Robert commented that he told Mrs. Stopper at the Town Council meeting that she could file a complaint, not that she should. He stated that he felt that one of the two inspectors should have went out and addressed this problem on the job and seen what was wrong with it.
Mr. Robert stated that “building inspectors have the right to inspect a 50-year-old house; it doesn't matter.”
Mr. Muenich advised Mr. Robert that he is incorrect, and building inspectors can go in and inspect commercial structures at any time, but they cannot do the same with private residences.
Mr. Stopper asked why. Mr. Muenich stated that it is the law. Mr. Kil advised that we have to limit inspections to new construction.
Mr. Hoover asked Mr. Gomeztagle if he has a motion regarding meeting more frequently.
Motion to meet on a quarterly basis on the fourth Wednesday of the month by Mr. Gomeztagle. Seconded by Mr. Robert. Motion carries 5 ayes to 0 nays.
Mr. Robert asked what month that will begin. Mr. Kozel recommended starting in the next quarter.
Mr. Kil stated that it would be June for the next meeting. The board concurred. Mr. Gomeztagle stated “same time”.
(Mr. Hoover adjourned the meeting at 7:31 p.m.)
Margaret R. Abernathy, Recording Secretary
St. John Contractors Board
Steve Kozel, Contractors Board Vice-President
|Richard Hoover, President||Michael Muenich, Board Attorney|
|Joe Gomeztagle||Steve Kil, Town Manager|
Mr. Richard Hoover called to order the St. John Contractors Board on December 7, 2016 at 6:10 p.m., and asked all to rise for the Pledge of Allegiance (recited and all took their seats).
Mr. Muenich advised that with the Board’s permission or direction he could contact the complainants with this information, and suggest small claims court or the Attorney General’s Consumer Fraud Division.
General discussion ensued amongst the board members who also expressed a concern that this matter was before them with the circumstances that were given to them. Mr. Muenich confirmed that reasonable notice was given to both parties of this scheduled meeting.
Mr. Robert inquired about a Contractor’s Surety Bond and who does it run to. Mr. Muenich advised that the Surety Bond runs to the Town, however; again, the contractor did not even register with the Town of St. John.
Mr. Hoover entertained a motion from the board. Mr. Robert made a motion that this board has no jurisdiction in this matter and directed Mr. Muenich to respond to the complainant with this information. Motion seconded by Mr. Kozel. Motion carried 4 ayes – 0 nays.
Mr. Robert asked if the Town of St. John could place the Contractor under his business name and by his given general name on a “Do Not Permit” list. Mr. Kil and Mr. Muenich stated that they believe that would be a suitable action and that the I.T. Director should be able to make some sort of adjustment or addition to the software program to have that done, if for nothing else for record keeping purposes.
With no further business before the board Mr. Kozel made a motion to adjourn. Motion seconded by Mr. Gill. Motion carried 4 ayes – 0 nays.
(The meeting was adjourned at 6:29 p.m.)
Michelle L. Haluska, Recording Secretary
St. John Contractors Board
Steve Kozel, Contractors Board Vice-President