Saturday, December 12, 2015

Maryland Home Improvement Laws protect homeowners, not contractors.

On December 11, 2015 we obtained a trial judgment favoring our client against a negligent home improvement contractor. The court's logic in awarding judgment predicts a new wrinkle in Maryland law governing the relationship between homeowners and the home improvement contractors they hire.

In our case, the home improvement contractor had a Maryland Home Improvement license. This is an absolute requisite to performing home improvements. Without a home improvement license the contractor may not enforce a contract against the homeowner. The unlicensed contractor will also be open to criminal prosecution by the Office of the Attorney General.

This is the well settled law in Maryland, since 1970.

But what if, as in our case, a licensed contractor hires unlicensed sub-contractors? There is no reported Maryland decision directly on this set of facts.

We believe the correct analysis is that the homeowner always wins, and that the licensed contractor may not enforce a contract where he has hired unlicensed sub-contractors to do his work. This is consistent with several provisions of the Maryland Home Improvement Commission regulations, and with recent cases.

For example, in a 2012 reported case, the Maryland  Court of Special Appeals refused relief to a licensed contractor that was defending a lawsuit by an unlicensed sub-contractor. Relying on laws saying sub-contractors must be licensed, the contractor had refused to pay for work done by the unlicensed sub-contractor.  The court rejected this position for a very simple reason--

Maryland's Home Improvement Laws exist to protect homeowners, and not contractors.

In the case involving the licensed contractor against the unlicensed sub-contractor, the appellate court said the protections normally afforded homeowners are not available.

And so, in our own case, the trial court refused to enforce the contract of the licensed home improvement contractor against our homeowner client because of the unlicensed sub-contractor. But the licensed contractor remained responsible to pay for our client for the damages it caused to our client's home.

While this case turned out correctly for our client, we do expect that this type of case will eventually percolate to the Maryland Court of Special Appeals. Once there, we also believe the appellate court will close the gap in the case law to more clearly protect the homeowner.

But if you are having home improvement work done, make sure your main contractor is licensed, and make sure that every one of his sub-contractors is also licensed by the Maryland Home Improvement Commission.

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Thursday, December 10, 2015

The intersection of Gun Control, the Second Amendment, and Due Process

Someone is too dangerous to fly, they’re too dangerous to own a gun.  It seems simple enough right?  Well, the discussion is a little more nuanced than that.  The “no fly list” existed before 9/11, but it was merely an infant compared to the goliath it has become.  Before 9/11 there were 16 (that’s right, 16) people the government deemed “no transport” because of specific or suspected threats to aviation.  So the governmentally-imposed restriction on commercial air travel was minimal, in a country of 285 million people.

Immediately after 9/11, the list grew to several hundred.  More than a decade later, it is estimated that there are more than 47,000 names on the “no fly list.”  

And how did those names get there? 

The answer is – nobody knows for sure.  Since the Supreme Court has not recognized a Constitutionally guaranteed right to travel by commercial airline, there is no requirement that the government afford any individual “due process” before adding him/her to the list.  And so, over the years, there have been several publicized instances of folks being informed they are on the “no fly list” (by accident, or otherwise) for the first time at the airport terminal.  But since there’s no constitutional right at stake, it’s not so offensive, right?  Just a pain in the butt for a very small portion of the population (which, since 9/11 has increased to ~320 million).

But this is where the conversation gets tricky.  The Constitution does recognize the right to bear arms.  And a citizen cannot be deprived of a constitutional right without due process.  Get the rub?

Assuming the government can add you to the no fly list without due process (which is the subject of extensive litigation around the country), the justification is "we're not infringing anything in the Bill of Rights."  But the recent push to also disqualify those same folks of the right to purchase arms crosses a Constitutional line.

If the proposed legislation passes the Congress, it will quickly pass to the President’s desk for signature.  Thereafter, it will pass quickly to the U.S. District Courts for challenge.

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