POSTED: Monday, May 14, 2012 - 6:57pm
UPDATED: Monday, May 14, 2012 - 6:58pm
EL PASO — Through the week of May 14- 18, NewsChannel 9 will interview public officials that may provide advice on the issue of deceptive business practices.
Below is a transcript of Monday's interview with JoAnne Bernal
BUILDERS AND LANDSCAPERS
1. Is this type of crime common in El Paso? Why?
We think it is. Our office prosecutes Deceptive Business Practice (DBP) cases, and we are in court almost every day dealing with this type case. Since January, we have filed 40 DBP cases, and most of these cases deal with or involve builders and landscapers. There are some cases that involve other types of businesses. For example, we have recently gotten a number of cases involving party halls.
Most of these cases involved “advance fee” situations, where the consumer has advanced money for property or services that are never delivered. However, some cases involve misrepresentation—that is, a lie or materially false statement at the inception of the deal. For instance, it is a crime for a contractor to claim he is bonded and insured when he or she is not. It is still a crime if the contractor gets another contractor who is in fact bonded and insured to the City and then gets the permit when in fact that contractor does not do the work.
2. What steps can I take to make sure I am hiring a reputable builder/landscaper?
See attached memos from the City of El Paso, the State Attorney General’s office, and the El Paso Better Business Bureau. Most of these memos are “published” on the Internet.
Contact the BBB to determine if complaints have been made against the contractor you are considering to hire. Search out past customers or ask for referrals of past customers to determine if the contractor performed satisfactorily. Perform a search of the contractor under the County’s web page to determine if the contractor has been sued.
However, it is important to note that even when a consumer does all he or she can do to protect against loss, the consumer should remember that “possession is 9/10th’s of the law” applies to money as well as things. When you deliver your money to another person, you never can be sure that you will get you “money’s worth” in return.
3. How much is OK to give in advance for the “purchase of materials”?
The Better Business Bureau recommends that a consumer advance no more than 30% of the contract be advanced before work is started. Another point to consider is that a contract is a two way street. Just because a contractor asks for money up front does not necessarily mean that you have to give it to him or her. Money up front is negotiable aspect of the contract. If you feel uncomfortable a portion of the contract whether it is as small as 5% or as large as 50% - just don’t do it. It is recommended that the customer put up as little as possible.
4. What are my legal options if I am not happy with quality of the work or if the work was not finished?
First, complain to the BBB. This is not a “legal option” but it is useful, even if the BBB is not able to resolve the dispute, because the builder or landscaper should answer the complaint and if he or she does the answer may be useful if the dispute does end up in court.
Second, try to file a criminal complaint with the police department. Not every “failure to deliver” is a crime, but if it is a crime your chances of getting your money back are much greater than if it is not a crime.
Third, if the police treat the complaint as “civil,” then you must file a “civil” suit against the builder or landscapers. When I say “civil” I mean that you must either sue the builder or landscaper with or without the help from a lawyer, usually in Small Claims Court.
5. Do you require the existence of a written contract in order to prosecute a case?
No, but it is very useful to have a written contract for the purpose of proving the nature of the deal you made with the builder or landscaper.
By the way, the Deceptive Business Practice provisions of the Texas Penal Code do not refer to a “contract.” Although the transactions that cause the problems are often grounded on what the parties call a “contract,” a mere “breach of contract” is not a crime. The crime is committed when someone lies at the beginning of the deal or takes a consumer’s money and fails to deliver the property or services that were “sold” to the buyer in the first place.
One final point” the Penal Code also protects builders and landscapers who extend credit to homeowners when they lie to get credit and then do not pay for the services they receive. These cases, however, are rarely filed.
6. What kind of punishment is there for builders/landscapers who don’t comply with the terms of the agreement?
First, a homeowner can file a “civil” suit for breach of contract.
Second, if in breaching a contract a builder or landscaper also commits a crime by “lying” at the inception of the transaction about an important part of the deal (“bonded and insured” when he or she is not…) or by taking money “up front” for a property or service that is not delivered, the homeowner may be able to file a criminal complaint with the police department. If the department accepts the complaint, the State of Texas, represented by the El Paso County Attorney, may prosecute and attempt to recover the money that was wrongfully taken.
7. How often are you able to get restitution for the victims of a deceptive business case?
The El Paso County Attorney is able to recover restitution in some cases. Since January, my office has recovered almost $100,000 for DBP victims.
However, it is not always possible to get any money from the offender. Sometimes the offender doesn’t have any money. Sometimes the offender would rather go to jail than pay back the money. In these cases, the homeowner will lose his or her money.
The very old Roman saying, “Caveat Emptor” or “Buyer Beware” is still a rule in the market-place. The best practice is to be aware of the risks.
Avoid the cheapest deal.
Know who your contractor or landscaper. Call the Better Business Bureau and check the rating and the complaint record. Also find out how long the contractor or landscaper has been in the community. A new business in this town is not likely to have a bad record in this town.
Be very, very careful. Even when you are very cautious, the first rule in the marketplace still is “Buyer Beware.”