RC: On another topic: As we move toward 2010 and the implementation of new rules governing lead paint removal, what should contractors know in order to comply and to avoid a citation and fine?
DSB: I think so many contactors are just struggling to maintain their levels of business while they hope things will start to turn. As a result, the majority are unaware of what’s coming down the pike on April 22, or they simply may not be able to devote any attention to the issue. The new lead-paint regulations could very well be a sea change for your company in the way you price and process jobs. And it’s coming from the federal government and it’s going to be here.
RC: What should people do to be prepared?
DSB: The contractor must be registered with the EPA. People need to be trained in how to test jobs for lead paint. Crew leaders must be certified by the EPA to conduct lead-safe work practices on the job and workers need to be trained in how to do it. Then there’s the question that no one’s discussing: How do I explain this to the customer, and what sort of contractual documents do I need to provide? What if the customer doesn’t know how old the home is? What if I test and there is no lead paint? How long do I keep the records?
RC: How seriously do you think the government will enforce safe lead-removal rules at the contractor level?
DSB: I don’t think you’ll be seeing much enforcement for at least a year or two. But a lot will depend on where you and your company are on the radar screen. The EPA has been doing surprise audits on the lead-paint pamphlet distribution requirement, which is already in effect. If you get hit with that, it’s much more likely that your company will be looked at as part of a broader enforcement action.
The bigger concern is if the press makes an issue of it or groups start suing over it. Then you’re going to encounter the homeowner who says: “Aren’t you supposed to talk to me about unsafe lead practices?” And if they don’t like the work your company did, they could file a complaint. Or pick up the phone and call 1-800-sue-you lawyers.
RC: This year, 19 states have considered legislation setting up a Do Not Mail directory similar to the Do Not Call registries that enabled consumers to place themselves outside the reach of telemarketers. Do you think states will eventually pass a law setting up a Do Not Mail directory covering commercial mail? Do you foresee a federal Do Not Mail registry at some point?
DSB: I think it’s highly unlikely. The forces lobbying against it are very strong. And there is a question of First Amendment rights. Unlike telemarketing, you’re not bothering anybody with mail. A consumer doesn’t have to open the mail. And that really overcomes any concerns about the consumer’s right not to receive it. In effect, I should have the right to correspond with whomever I want.
RC: As more home improvement companies are attempting to canvass neighborhoods for leads, more municipalities are enacting restrictions to discourage or prevent this. What should companies do to be on legal safe ground as they send canvassing teams out into new neighborhoods?
DSB: The problem is that there is no good answer to this. And there is lot of misunderstanding about it. In 2002 the Supreme Court voted overwhelmingly on a canvassing case: the Watchtower Bible and Tract Society of NY Inc. vs. The Village of Stratton. A lot of people didn’t get what that case said. The court said that, under the First Amendment, municipalities can’t unduly restrict the right of organizations to canvass for political, religious, or charitable purposes. It didn’t say that it was OK for commercial canvassers to go door to door to sell a commercial product. So the Do Not Knock laws ? which are growing ? may or may not be constitutional. But in regard to our industry, they probably are. You are reasonably allowed to restrict someone from canvassing, and that includes requiring a license, registration, and fees. People want to know who’s coming into their neighborhoods.
RC: What can home improvement companies that canvass do about it?
DSB: Number one ? so that you don’t have to repeatedly go through registration ? maintain a stable group of canvassers who are limited to a particular area. Two, look for loopholes in local canvassing laws. Some say, for instance, that if you’re a manufacturer representing your own product, you don’t have to have a license. Companies with a franchise – say Owens Corning basements – may be able to argue that they’re directly connected to a manufacturer. Many laws are poorly written and vague. But if you sue, they’ll probably just have a clearer, more defined law in place sooner or later.
RC: Last year Pennsylvania passed its Home Improvement Consumer Protection Act, which became law as of July 1, 2009. It requires all contractors doing $5,000 or more worth of work a year to register with the state, to have a registration number visible on their vehicles and paperwork, to indicate whether or not they are insured, and for contractors to have a signed contract for work of more than $500 in value. In your view, does such a law help or hurt legitimate home improvement companies?
DSB: I think it helps legitimate contactors by weeding out those players who cause problems and create a negative reputation with the public. Right now the Pennsylvania law is purely benign. There’s no exam. You just have to show that you’re a valid operating entity. Unfortunately, once these things get placed in the revenue stream, they change. Suddenly there are background checks, examinations, and it’s all more complex. This is where clients call us to handle their registration.
One complaint I do have about the Pennsylvania law is that it specifies that contractors who sue homeowners may not charge legal fees. So if I sue you for $5,000, I’m also going to pay a few grand in legal fees, even if I win. That’s going to have a chilling effect on contractors who are looking to secure their legal rights under this law.
RC: Some states, such as California, are fairly stringent in regulating contractor activity. Others have few to no regulations. Do you see a trend toward increased regulation of home improvement companies at the state level? Why?
DSB: The short answer is that there will always be more regulation. Two years ago it was New Jersey. You look at states like Ohio and scratch your head and wonder why they don’t have a home improvement act ? they’ve been working on it for years. We will be seeing more and more of this.
This article is for informational purposes only and should not be construed as legal advice.
