Dealing with loos caused by out-of-state based company
Angela
and I am not in the state where they have their headquarters. It turned
out that they falsely advertised the credentials of their service
employees. As I found out later, the type of licensing mentioned in
advertisement does not even exist in our state.
When under-qualified (for the subscribed) service personnel caused
significant damage to my property, the company was not willing to
invest in fixing the damage. They even did not care to remove false
advertisement from their Web site.
I could complain to a consumer protection agency in my state but,
though they would have jurisdiction over a share of that company’s
market, can they force the out-of-state entity to repair the damage? I
am not sure if a similar agency in the company’s “native” state would
work on my complaint because I don’t live there. Just because the
company operates in more than one state, does it automatically put them
into the scope of federal consumer protection agencies?
I could just start fixing the damage and then attempt to recover my
cost but I am not sure if it would lead to more or less hassle in
trying to have the company to pay for their misdeeds…
Mike Jacobs
> I subscribed a service from a company operating in a cluster of states,
> and I am not in the state where they have their headquarters.
That shouldn't matter for jurisdictional purposes, as long as they are
clearly "doing business" in your state.
> It turned
> out that they falsely advertised the credentials of their service
> employees.
And what does that matter to you? Assuming those persons do not even
need to be licensed in your state (as you say, below), how does that
harm _you?_
Aren't you really complaining about the crappy job they did for you,
_not_ their lack of (not legally required) credentialing in your
state?
> As I found out later, the type of licensing mentioned in
> advertisement does not even exist in our state.
Do you know, one way or another, whether the persons who did this work
in fact _had_ such a credential, issued by _another_ state that _did_
require it, and that did provide the means to obtain it? Or is your
lack-of-credentials complaint based solely on the fact that _your_
state does not issue such a credential to anybody?
> When under-qualified (for the subscribed) service personnel
How could they be "under-qualified" in a state where _no_ licensing is
required? Being an unlicensed business or profession in your state
means, as I'm sure you know, that there is NO applicable legal
standard for who is "qualified" to do that thing. So, ANYBODY who
wants to, can hang out his own shingle and claim to be a butcher,
baker, candlestick maker, doctor, lawyer, or hairdresser - assuming
you are in a jurisdiction in which the state does _not_ regulate those
professions. This was in fact the case as to all of those, until
barely a century ago in USA as to doctors, lawyers, and, more
recently, hairdressers.
> caused
> significant damage to my property,
Ah, now we are getting to the nut of the matter - you have a DAMAGE
CLAIM
the company was not willing to
> invest in fixing the damage. They even did not care to remove false
> advertisement from their Web site.
>
> I could complain to a consumer protection agency in my state but,
> though they would have jurisdiction over a share of that company�s
> market, can they force the out-of-state entity to repair the damage? I
> am not sure if a similar agency in the company�s �native� state would
> work on my complaint because I don�t live there. Just because the
> company operates in more than one state, does it automatically put them
> into the scope of federal consumer protection agencies?
>
> I could just start fixing the damage and then attempt to recover my
> cost but I am not sure if it would lead to more or less hassle in
> trying to have the company to pay for their misdeeds�
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Mike Jacobs
[I accidentally hit "send" too soon - see my previous post for
discussion of what the lack of any licensing requirement means
legally. In short, it means there _are_ no legal minimum
qualifications for the job]
> under-qualified (for the subscribed) service personnel caused
> significant damage to my property,
That, ISTM is the heart of what you are complaining about: a DAMAGE
claim for a tort or a breach of contract, NOT a licensing violation
that would be within the purview of a state agency (since your state
HAS NO such licensing requirement).
> the company was not willing to
> invest in fixing the damage.
Then your remaining option would be to sue them, in court, in which
case you would have to prove (a) why they are liable to you for the
damage (i.e. what they DID wrong, not merely the fact that they are
unlicensed), and (b) the extent and value of the damage you suffered
(using as evidence your repair bills or estimates, etc.)
> They even did not care to remove false
> advertisement from their Web site.
I'm still not convinced their ads were "false" from what you said
above (as discussed in my previous post). Are you complaining merely
that they claimed to be "licensed" while your state does not even
issue such a license? But what if they are in fact licensed in some
_other_ state that _does_ require one? And, if your state does not in
fact require licensing of that profession, how can you claim
detrimental reliance on their advertised claim to be duly licensed?
> I could complain to a consumer protection agency in my state but,
Or, you could sue them in court in your state. I'm not sure what good
a complaint to your consumer protection agency would do. BTW, it
would be a lot easier for your respondents to picture this and get
some idea of what agency (if any) might be appropriate if you would at
least tell us (a) WHAT the company's business IS, (b) what state you
are in, and (c) what, in general terms, you claim the company's
personnel did WRONG that caused damage to your property.
> though they would have jurisdiction over a share of that company�s
> market,
Not quite. The agency would have jurisdiction over some aspect of
what the company in question DOES in your state, from e.g. a safety,
health, or fairness standpoint, whether it be something like banking
regulation or securities regulation or some kind of consumer-products
safety or health regulation.
> can they force the out-of-state entity to repair the damage?
Probably not. That's what the courts are for, if you seek an award
of damages. The law courts still can't force the company to DO the
repairs, but they can enter a money judgment and then force the
company to PAY you for the repairs. However, _IF_ what the company
did was in some way a regulatory violation as well, they may
_voluntarily_ agree to repair the damage themselves, in order to avoid
a regulatory citation of some kind. Don't count on that, though.
> I am not sure if a similar agency in the company�s �native� state would
> work on my complaint because I don�t live there.
Probably not. State regulation of businesses and professions
generally stops at the state line. It is up to the other states in
which a company does business (or the Federal government, _if_ there
are applicable Federal statutes or regulations) to control what a
company does, and whether it is required to be licensed, in _other_
states.
> Just because the
> company operates in more than one state, does it automatically put them
> into the scope of federal consumer protection agencies?
I have no idea, because you haven't told us what the company DOES.
So, we can't tell if it might come within the purview of the Consumer
Product Safety Commission, the Food and Drug Administration, the
Federal Trade Commission, the Environmental Protection Agency, the
Federal Motor Vehicle Safety Standards, the Federal Aviation
Regulations, or what.
> I could just start fixing the damage and then attempt to recover my
> cost but I am not sure if it would lead to more or less hassle in
> trying to have the company to pay for their misdeeds�
You will at least need to obtain an _estimate_ of the damages, if you
want to pursue your claim in court. It is up to you, for your own
reasons having no effect on your right to bring a lawsuit, whether you
in fact go ahead and have the repair work done, before trial, after
trial, or never, except you do have a duty to "mitigate" damages if
your failure to repair them promptly would make things _worse_ for
you. Also, if the damages are affecting your health or safety or
comfort (e.g. a hole in your roof) you probably want to fix it sooner
rather than later. But, if you don't mind living with whatever the
damage was, and would rather just have the cash value of the damage
handed to you by the company that screwed up, you have no obligation
to _ever_ get it fixed.
Gordon Burditt
>and I am not in the state where they have their headquarters. It turned
>out that they falsely advertised the credentials of their service
>employees. As I found out later, the type of licensing mentioned in
>advertisement does not even exist in our state.
They built and installed toilets ("loos") that are not up to code?
>When under-qualified (for the subscribed) service personnel caused
>significant damage to my property, the company was not willing to
>invest in fixing the damage. They even did not care to remove false
>advertisement from their Web site.
>
>I could complain to a consumer protection agency in my state but,
>though they would have jurisdiction over a share of that company’s
>market, can they force the out-of-state entity to repair the damage? I
Why don't you complain and find out? At the very least they might
warn other people about this company. And if they get enough complaints,
they might do something.
If what they did requires licensing by YOUR state, and they didn't have
it, your state will probably be interested. If they don't have to have
a license, they still showed up on your property in your state, didn't
they?
>am not sure if a similar agency in the company’s “native” state would
>work on my complaint because I don’t live there. Just because the
>company operates in more than one state, does it automatically put them
>into the scope of federal consumer protection agencies?
Go ahead and complain to the FTC also.
Bob La Londe
news:5c0022a6-8213-4f81...@m25g2000yqc.googlegroups.com...
>> When under-qualified (for the subscribed) service personnel
>
> How could they be "under-qualified" in a state where _no_ licensing is
> required? Being an unlicensed business or profession in your state
> means, as I'm sure you know, that there is NO applicable legal
> standard for who is "qualified" to do that thing.
You know, Mike I have read a lot of your opinions and mostly have respect
for them even when I do not agree, but this one of the examples legal mish
mash that just sets the hair on the back of my neck on end.
Angela
> So, we can't tell if it might come within the purview of the Consumer
> Product Safety Commission, the Food and Drug Administration, the
> Federal Trade Commission, the Environmental Protection Agency, the
> Federal Motor Vehicle Safety Standards, the Federal Aviation
> Regulations, or what.
>
generalization.
The service I subscribed to was a combination of trees fertilization
and INSPECTION AND INSECT/DISEASE CONTROL; the company's president
signed for "Your applications will be applied by licensed horticultural
specialists". In reality it was done by a nice person who was licensed
in working with fertilizers.
I would not care about any licenses if their service description would
not say "Visual inspection of every tree and shrub on property by a
horticultural specialist and insect and disease control foliar spray of
trees and shrubs needing treatment." Actually, the fertilizer guy just
did not know how to react to the signs of disease.
Their regional manager's reaction to my complaint (with pictures) was:
"It appears the problem with the ... trees is probably a disease/fungus
problem." Then they offered me to buy the same subscription for another
year.
I will certainly follow the advice on hiring real pro's for estimating
the plan to cure the trees. But do you think the misleading part of
this company's marketing strategy is an aggravating part of the tort?
Mike Jacobs
> "Mike Jacobs" <mjacobs...@gmail.com> wrote:
>
> >> When under-qualified (for the subscribed) service personnel
>
> > How could they be "under-qualified" in a state where _no_ licensing is
> > required? Being an unlicensed business or profession in your state
> > means, as I'm sure you know, that there is NO applicable legal
> > standard for who is "qualified" to do that thing.
>
> You know, Mike I have read a lot of your opinions and mostly have respect
> for them even when I do not agree, but this one of the examples legal mish
> mash that just sets the hair on the back of my neck on end.
Now I'm the one who's puzzled. Why, Bob? What do you think was
weaselly or "legal mish mash" about my answer? Really, I want to
know, that's not a rhetorical question.
We now know (see today's followup reply post by OP) that this nice
lady hired a garden-chemical company to spray her trees and bushes
with fertilizer, to look for signs of insect/fungus infestation such
as withered leaves, and, "if needed," to spray an additional
insecticide/fungicide product on the infected areas.
One _does_not_ need a professional license to do that service.
Literally anybody - even with less than a high-school diploma
education-wise - can walk around and spray fertilizer and pesticide.
What DOES require a license, as OP's reply today makes clear, is the
act of handling certain toxic industrial-strength chemicals (the ones
"for professional use only", not the kind available over-the-counter
at your nearby garden store).
The reason for that licensing requirement is to give assurances that
the legally regulated occupational safety/health requirements and
environmental protection requirements are known to (and thus,
hopefully, being complied with by) the company and its employee in the
course of applying these chemicals to OP's garden, NOT to give
assurances that this application will do a good job of killing the
particular bugs or fungi that may be growing on OP's bushes.
All that the state (or in this case, perhaps the Feds too) are
concerned about is that these highly toxic chemicals be handled in a
safe way to minimize their environmental impact and their effect on
the health of those who may breathe the fumes or drink the water they
may run off into if improperly applied. Since OP's complaint has to
do with the efficacy of this company's services to care for her
bushes, _not_ a claim of undue environmental pollution or personal
injury from exposure to toxic fumes or runoff, the toxic-chemical-
handling license has NOTHING TO DO WITH the grounds of her complaint
IMO.
I think my first answer was fully justified even in light of the
additional information OP has provided in today's post. However, I
would be interested to hear what else you have to say on the subject
too.
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>On Dec 6, 12:10 pm, Angela <ac...@k12.hopkins.m_n.us> wrote:
>> It turned out that they falsely advertised the credentials of their
>> service employees.
>
>And what does that matter to you? Assuming those persons do not even
>need to be licensed in your state (as you say, below), how does that
>harm _you?_
False advertising: he believed that the credentials proved they were
capable of doing satisfactory work.
>Aren't you really complaining about the crappy job they did for you,
>_not_ their lack of (not legally required) credentialing in your
>state?
Both the crappy job they did and the false advertising that caused him
to hire them.
>> When under-qualified (for the subscribed) service personnel
>
>How could they be "under-qualified" in a state where _no_ licensing is
>required?
Would the term "incompetent" be preferable? There are legal
qualifications (e.g. 15 years ago I was legally qualified to charge
for financial advice) and actual qualifications/competence (I don't
know any less about the market now than I did then).
> Being an unlicensed business or profession in your state
>means, as I'm sure you know, that there is NO applicable legal
>standard for who is "qualified" to do that thing.
No, who is _legally permitted_.
I'm legally permitted to carry a 100 lb pack while walking to the top
of Mt. Elbert (14,433 feet). I am by no means qualified to do so.
> So, ANYBODY who wants to, can hang out his own shingle and claim to
>be a butcher, baker, candlestick maker, doctor, lawyer, or
>hairdresser - assuming you are in a jurisdiction in which the state
>does _not_ regulate those professions.
Yes, they may claim to be such. But if they claim to be _qualified_
to be such, they have to have an appropriate degree of competence.
>Ah, now we are getting to the nut of the matter - you have a DAMAGE
>CLAIM
Yes, that's the main (but perhaps not only) issue.
>> the company was not willing to invest in fixing the damage. They
>> even did not care to remove false advertisement from their Web
>> site.
>>
>> I could complain to a consumer protection agency in my state but,
>> though they would have jurisdiction over a share of that company�s
>> market, can they force the out-of-state entity to repair the damage?
They can act against any company that does business in their state.
Seth
Mike Jacobs
> > I have no idea, because you haven't told us what the company DOES.
> Sorry, I thought the posting guidelines call for the maximum
> generalization.
Well, sure, but we still need to reasonably be able to draw tentative
conclusions. A question that is too general will not get you
anywhere if your goal is to APPLY the law to a set of facts; otherwise
all you get is a summary (over-generalized) of what the law generally
says about a subject, which may OR MAY NOT apply in your case at all.
> The service I subscribed to was a combination of trees fertilization
> and INSPECTION AND INSECT/DISEASE CONTROL; the company's president
> signed for "Your applications will be applied by licensed horticultural
> specialists". In reality it was done by a nice person who was licensed
> in working with fertilizers.
If I were the judge I would probably find that guy to be _one_ kind of
"horticultural specialist." That's like calling a garbage man a
"sanitation engineer." It's puffery and spin, for marketing purposes,
but not an outright lie nor IMO even misleading.
"Horticultural" means "of or relating to, gardens and gardening."
ISTM what the fertilizer guy does relates to gardens and gardening.
If putting fertilizer on gardens is ALL he does (i.e. if he
"specializes" in doing that) then he's _one_ kind of a "horticultural
specialist." (If he did all kinds of _other_ stuff relating to
gardens and gardening, I suppose that would make him a "horticultural
generalist" instead, a sort of backyard Renaissance Man.) And if he
has a _license_ issued by your state that permits him to handle these
environmentally-regulated chemicals that are potential pollutants if
not handled properly, then he's a "_licensed_ horticultural
specialist" of the kind who is authorized to handle industrial-
strength chemical fertilizers and pest-control sprays.
> I would not care about any licenses if their service description would
> not say "Visual inspection of every tree and shrub on property by a
> horticultural specialist and insect and disease control foliar spray of
> trees and shrubs needing treatment." Actually, the fertilizer guy just
> did not know how to react to the signs of disease.
What DID the fertilizer guy do in response to the visible signs of
disease? Anything? Nothing? Are you saying he didn't even
_recognize_ the signs of disease, which is the first step before doing
anything about them?
In plain terms, what I think you paid for is this: The company sends
around a guy to periodically (on your agreed schedule) spray your
trees and bushes in your garden with fertilizer from a big bottle he
carries on his back (or perhaps from a hose connected to a tank truck
he parks in your driveway). Simultaneously, he will _look_at_
("perform a visual inspection of") each of the trees and bushes as he
is going around spraying the fertilizer. _IF_, in the course of that
walkaround in your garden, he sees any obvious visible signs of
diseased leaves (yellowed, withered, brown, etc.), he's got ANOTHER
kind of spray in his backpack or truck (alongside the bottle of
fertilizer spray) and he will apply THAT spray TOO, to the diseased
leaves only - that is the "insect and disease control foliar spray"
mentioned in the contract. "Foliar" means "of or relating to leaves
or foliage" so I would assume the "foliar spray" gets sprayed only
onto the diseased (yellowed, withered) _leaves_ (which may not be the
same place he applies the fertilizer - wouldn't that part normally be
sprayed on the _ground_ around the base of the trunk so it would soak
into the roots and be absorbed by the plant?)
If he comes on the days the contract calls for, and does those 3
things - (1) spray every tree or bush with fertilizer, (2) look at the
leaves of every tree or bush, and (3) spray the additional "foliar
spray" goop on leaves that look diseased - on each visit, then the
company has fulfilled its end of the contract. The company did _not_
guarantee that your trees and bushes would NOT become diseased during
the contract period (nor, for that matter, could even a highly trained
medical doctor guarantee such a thing to a patient), nor did they
guarantee that the foliar spray would kill _all_ insects and fungus
and completely _cure_ any foliar disease that _did_ occur during the
contract (just as a medical doctor also cannot make such a guarantee
of success).
So, ISTM the only grounds on which you are likely to win a lawsuit for
damages are, if:
(1) the nice fertilizer guy did not even come to your garden on some
of the days he was supposed to come; or
(2) on a particular visit, he DID NOT inspect every tree or bush for
disease, and thus skipped treating some, or
(3) he _did_ claim to look at all of them, but he MISSED or
misinterpreted some clearly visible "signs of disease" and thus
skipped treating them, or
(4) he didn't bother with the "foliar spray" insect/fungus treatment
AT ALL and that part was just a scam - all he did was walk around and
spray fertilizer, and leave.
In each of those cases, that describes what the company (thru its
fertilizer guy) did WRONG (i.e. the "liability" side of your case).
You will also have to prove by evidence that you have DAMAGES that
were _caused_by_ that wrongful act. So, you will need your own
testimony (or the defendant's, if he will admit it) that some of your
trees and shrubs that the company neglected to spray with the foliar
spray _were_ in fact visibly diseased but were overlooked at the time
of the fertilizer guy's walk-through inspection. You will also need
testimony that some of those plants _died_ (or became hopelessly
stunted and withered) and had to be removed/replaced. AND, you will
need expert opinion evidence that _IF_ application of the said foliar
spray had been made in time, it _would_have_cured_ the infestation and
allowed the tree/bush to survive and regain healthy growth.
Otherwise, you have not proven that the company's neglect is what
CAUSED your trees to die or wither.
The measure of your damages is, of course, the cost of replacing the
lost trees/bushes with similarly mature specimens of the same species
- that doesn't mean you have to BUY mature trees to replace them, it
is simply the dollar measure that will be applied to determine the
size of your verdict award. You may need _your_ horticultural expert
to testify as to the replacement value of the lost trees, in addition
to his causation opinion.
> Their regional manager's reaction to my complaint (with pictures) was:
> "It appears the problem with the ... trees is probably a disease/fungus
> problem." Then they offered me to buy the same subscription for another
> year.
And, you didn't like that response, because?
Let me give you an analogy. Let's say you've got athlete's foot, or
jock itch, or some other personal fungus, and you go to a doctor for
treatment. The doctor does various stuff to you, but the infection
is persistent. Fungi can be nasty little buggers. You go _back_ to
the doctor, or send him a complaint letter (with pictures), showing
him that the fungus is still there. He replies, ""It appears the
problem with the [feet, crotch, whatever] is probably a disease/fungus
problem." Then he offers to have you come in for the same treatment
again.
HOW IS THAT DIFFERENT from what this company did? Apart from the
difference that the doctor, being a member of a regulated profession
in your state, has even MORE of a duty to meet the standard of care of
his licensed profession than the lawn-chemical company does? Meaning,
if it's okay for an M.D. to act that way, it's even _more_ okay for a
fertilizer company to act that way.
> I will certainly follow the advice on hiring real pro's for estimating
> the plan to cure the trees. But do you think the misleading part of
> this company's marketing strategy is an aggravating part of the tort?
Not in my view. Others may see it differently and I am NOT offering
any legal opinion in that regard, just telling you what I personally
think. Which is: If you got what you paid for, you don't have a case,
even if your trees subsequently died. OTOH if you paid for services
that the company didn't provide - if they SKIPPED spraying your trees
with the foliar spray when obvious signs of disease showed that it was
needed - THEN, you have a case.
Stuart A. Bronstein
> "Bob La Londe" <nos...@nospam.no> wrote:
>> "Mike Jacobs" <mjacobs...@gmail.com> wrote:
>>
>> >> When under-qualified (for the subscribed) service personnel
>>
>> > How could they be "under-qualified" in a state where _no_
>> > licensing is required? Being an unlicensed business or
>> > profession in your state means, as I'm sure you know, that
>> > there is NO applicable legal standard for who is "qualified"
>> > to do that thing.
>>
>> You know, Mike I have read a lot of your opinions and mostly
>> have respect for them even when I do not agree, but this one of
>> the examples legal mish mash that just sets the hair on the
>> back of my neck on end.
>
> Now I'm the one who's puzzled. Why, Bob? What do you think
> was weaselly or "legal mish mash" about my answer? Really, I
> want to know, that's not a rhetorical question.
Your answer implies that someone in his business cannot act
negligently if there is no requirement that he be licensed. I
think you'd agree that conclusion would be incorrect.
Bob La Londe
"Mike Jacobs" <mjaco...@gmail.com> wrote in message
news:e87aec75-6297-4372...@m26g2000yqb.googlegroups.com...
> On Dec 9, 9:41 am, "Bob La Londe" <nos...@nospam.no> wrote:
>> "Mike Jacobs" <mjacobs...@gmail.com> wrote:
>>
>> >> When under-qualified (for the subscribed) service personnel
>>
>> > How could they be "under-qualified" in a state where _no_ licensing is
>> > required? Being an unlicensed business or profession in your state
>> > means, as I'm sure you know, that there is NO applicable legal
>> > standard for who is "qualified" to do that thing.
>>
>> You know, Mike I have read a lot of your opinions and mostly have respect
>> for them even when I do not agree, but this one of the examples legal
>> mish
>> mash that just sets the hair on the back of my neck on end.
>
> Now I'm the one who's puzzled. Why, Bob? What do you think was
> weaselly or "legal mish mash" about my answer? Really, I want to
> know, that's not a rhetorical question.
>
I didn't use the term weaslley. Would have given a point by point, but
yours was a legal distinction. You might have benefited from some more time
watching David Carradine walking around stoned on television as a kid.
Letter of the law vs spirit of the law kinda stuff. LOL. (sorry if you
don't get the reference.)
Seth had a good reply which captured a great deal of the "spirit" of the
problem. I'll refrain from saying I agree whole heartedly because I only
skimmed his reply.
This is one of those areas where more specific information from the OP would
have been helpful of course.
I see this often enough though in this group. A legal technical answer when
there are better practical answers. For Example: A problem with a
contractor. Many states have a contractor licensing agency with regulatory
as well as disciplinary capability. Some even have field investigators
whose job it is to check out complaints and direct the contractor to
complete work or repair shoddy or non compliant work. If the contractor
refuses the agency can impose financial penalties, revoke their license, or
refuse to renew it. The precise mechanisms will vary, but the end result is
the same. Some even have additional funds for certain classes of clients to
have work done to repair bad work by a contractor who refuses to do what
they should have. (contractor recovery fund in Arizona) All this without
calling a lawyer or getting the courts involved. Hence why the hair on the
back of my neck stands on end when I read a technical, but really beside the
point answer because somebody posted more information than they really
needed to or made an assumption or characterization that was probably
unnecessary.
The OP just wants to get what they thought they paid for. How do you get
them that in the simplest easiest manner, or tell them they are not entitled
to what they thought they paid for.
Consumer advocacy groups are pretty much useless in settling a single issue,
but there may be other organizations that can help specifically. The first
thing is to find out.
Mike Jacobs
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >On Dec 6, 12:10 pm, Angela <ac...@k12.hopkins.m_n.us> wrote:
> >> It turned out that they falsely advertised the credentials of their
> >> service employees.
>
> >And what does that matter to you? Assuming those persons do not even
> >need to be licensed in your state (as you say, below), how does that
> >harm _you?_
>
> False advertising: he believed that the credentials proved they were
> capable of doing satisfactory work.
But even her OP made clear, later on in her post, that the only
"credential" she was talking about was a _license_, not the actual
ability to do a satisfactory job, while (according to her) no such
license even existed in her state, much less was required of such
personnel. Her followup post further clarified that the contract (or
ad) itself used the words "licensed horticultural specialists" in
referring to the employees who would do the actual work of spraying
and inspecting her garden. Such persons _did_ (I believe) in fact
have a license permitting them to handle dangerous industrial strength
chemicals, so they _had_ that qualification or that credential or
whatever you want to call it.
Even before that clarification by OP, the only "false advertising"
claim she seemed to be looking for arose from her assertion that the
company claimed they had a license and her state does not require such
a license [for, as it turns out, the role of "horticultural
specialists"].
I believe, although no one has yet clarified it on this thread, that
the license in question was probably an EPA certificate, issued by the
Feds, not any kind of state license. Some states, such as California,
also have their own agencies that regulate pesticides and that issue
licenses to people who want authorization to handle or use industrial-
strength pesticides, but apparently, OP's state is not one of them.
> >Aren't you really complaining about the crappy job they did for you,
> >_not_ their lack of (not legally required) credentialing in your
> >state?
>
> Both the crappy job they did and the false advertising that caused him
> to hire them.
Well, I'm assuming OP (whose name is "Angela" is a female. My
apologies, OP, Sir, if I got your gender wrong.
Both Seth, and OP, seem to be using "credentials" or "qualifications"
in the looser, colloquial sense of "competence" to do a certain job
(although OP made clear that her assumption of "competence" was merely
a corollary of the company's description of its personnel as
"licensed").
Certainly, part of the reason for most legal licensing requirements -
whether of motor vehicle operators, beauticians, psychologists,
whatever - is to ensure that those persons providing such services to
the public have at least a certain MINIMUM level of competence at such
matters, in order to be legally ALLOWED to perform those services for
hire. But, that is the only sense in which I was using the word, and
IMO is the only "capability" conclusion that OP could reasonably have
drawn from the company's statement that its personnel were
"licensed." I, like many others of my ilk, am "licensed to practice
law" by my State's highest court, and have the certificate on my wall
to prove it - but that doesn't tell you whether I graduated near the
top, or the bottom, of my law school class. Ditto, the doctor who may
be taking out your gall bladder tomorrow. The only _reasonable_
assumption a potential client can draw from the fact that a member of
a licensed profession is in fact licensed is that he or she has passed
one or more tests (the "qualifying exams" or, in a lawyer's case, the
"bar exam") which the law requires before the license will be
issued. That license assures the public that this person meets a
certain, legally-defined MINIMUM standard of ability - but does not
assure any more than that.
> >> When under-qualified (for the subscribed) service personnel
>
> >How could they be "under-qualified" in a state where _no_ licensing is
> >required?
>
> Would the term "incompetent" be preferable?
Yes. But that complaint would go to the damage claim, not to any
reliance on false advertising. Plenty of incompetent (for the task
at hand) doctors, lawyers, and "horticultural specialists" exist, I'm
sure. But, if each of them holds a required license, then each of
them is "qualified" to be a doctor, lawyer, or bug-sprayer, because
each has met the MINIMUM QUALIFICATIONS set by law to get that
license.
> There are legal
> qualifications (e.g. 15 years ago I was legally qualified to charge
> for financial advice) and actual qualifications/competence (I don't
> know any less about the market now than I did then).
Since OP was talking about only the FORMER (legal qualifications,
licensing requirements), so was I. The "incompetence" issue has to
do with the mistakes these service personnel allegedly made and the
damage this caused, NOT their lack of licensing. And my point
remains, if the service they provided did not require ANY license at
all, then the (let's assume) falsely advertised presence of a license
could not be something she relied on to her detriment.
Frex, I am a "licensed software operator" (I hold a license from
Microsoft(tm) allowing me to use several of their programs on my
computer). Does that mean I know what the hell I am doing when I
create a PowerPoint(tm) presentation, or is that show I produce going
to bore my audience into a coma? The mere fact that I am licensed to
use the software in question is what legally ALLOWS me to use it, but
provides no guarantee whatsoever that I will be GOOD at using it.
And, anyone who actually drives on the public street will know that
the mere possession of a driver's license in no way assures other
motorists that the loose nut behind the wheel of the car ahead is a
GOOD driver - we normally assume quite the opposite, that everyone
else on the road is either an idiot (if they drive slower than we do
and hog the road) or a maniac (if they drive faster than we do and
weave in and out). We do, however, assume that the vast majority of
those crazy drivers are licensed and thus at least took a test and
passed by displaying some _minimum_ level of driving ability and
knowledge of the rules of the road.
> > Being an unlicensed business or profession in your state
> >means, as I'm sure you know, that there is NO applicable legal
> >standard for who is "qualified" to do that thing.
>
> No, who is _legally permitted_.
Agreed. I am using "qualified" only in the original, legal sense of
"meeting the legal minimum QUALIFICATIONS required to exercise some
privilege or to get a certain certificate or degree" - not in the
broader, figurative sense of "capable" or "competent."
For example, someone may "qualify" for a high school diploma, or a
driver's license, or single-mother welfare benefits, or college
financial aid, or whatever. The regulating agency will have a
checklist of the requirements that must be met before that
governmental privilege or benefit will be given to you. If you meet
all the checklist items (or a required minimum number of them), you
"PASS" and therefore "qualify" for that privilege. If you don't
measure up, you "FAIL" to qualify and therefore do NOT get that
benefit (at least, not until you try again, later, after having
adjusted your qualifications by undergoing more study or having a
lowered income or whatever). THAT is all we mean, legally, by
"qualifying" for something.
> I'm legally permitted to carry a 100 lb pack while walking to the top
> of Mt. Elbert (14,433 feet). I am by no means qualified to do so.
Only if you are using "qualified" in its broad colloquial sense. If
(hypothetically) the US Forest Service had to issue you a permit
(license) to climb Mt. Elbert, then you must obtain such a permit to
qualify for the privilege of climbing that peak. If no such license
is required, then you _do_ qualify simply by being a person who is
allowed to be in that place and do that thing; there is no legal
minimum of competence that must be shown for you to "qualify" as a
mountain climber - all you have to do is start to climb the mountain.
Just like, back in the day before regulation, the only thing a barber-
surgeon had to do to legally "qualify" as such was to wrap his bloody
apron rag around a pole in front of his place of business, and sharpen
his razor (actually, not even the latter).
But, IMO all this is academic in OP's situation because we now (almost
certainly) know that these personnel WERE in fact licensed to handle
and carry dangerous chemicals as required by the EPA (even though OP
could not find any agency that required such licensing under
_her_state's_ law). So, it is a moot issue.
> > So, ANYBODY who wants to, can hang out his own shingle and claim to
> >be a butcher, baker, candlestick maker, doctor, lawyer, or
> >hairdresser - assuming you are in a jurisdiction in which the state
> >does _not_ regulate those professions.
>
> Yes, they may claim to be such. But if they claim to be _qualified_
> to be such, they have to have an appropriate degree of competence.
Only if you are using "qualified" in the colloquial sense of
"competent." We use "qualified" as an adjective when it is really the
past participle of an intransitive verb, "to qualify." According to
dictionary.com, at http://dictionary.reference.com/browse/qualify
the plain English definitions of that intransitive verb include:
"�verb (used without object)
8. to be fitted or competent for something.
9. to get authority, license, power, etc., as by fulfilling required
conditions, taking an oath, etc.
10. Sports. to demonstrate the required ability in an initial or
preliminary contest: He qualified in the trials.
11. to fire a rifle or pistol on a target range for a score high
enough to achieve a rating of marksman, sharpshooter, or expert.
12. Military. to pass a practical test in gunnery.
13. Law. to perform the actions necessary to acquire legal power or
capacity: By filing a bond and taking an oath he qualified as
executor."
We see that defs. 9-13 all are some variation of the original meaning,
i.e. to pass some test, to reach some new plateau of achievement,
which will be memorialized by some certificate or license PERMITTING
you to do some new thing or go on to the next stage which you were not
legally qualified to do before. Only def. 8 carries the broad,
colloquial meaning of "be competent" which is a derivative, figurative
take on the other, specific meanings.
The LEGAL definitions of "to qualify" (from the same URL cited above)
are even more plainly of the meets-the-minimum-requirements-for-
exercise-of-some-privilege variety:
"Legal Dictionary
Main Entry: qual�i�fy
Pronunciation: 'kw�-l&-"fI
Function: verb
Inflected Forms: -fied; -fy�ing
transitive verb 1 : to limit or modify in some way
2 : to make or consider eligible or fit <qualified him as an expert
witness>
3 : to issue a certificate or license to
intransitive verb 1 : to meet certain requirements or criteria
<qualify for a tax credit>
2 : to acquire competent power or capacity <qualified as a lawyer>
Merriam-Webster's Dictionary of Law, � 1996 Merriam-Webster, Inc."
For that matter, even the adjective "competent" in the legal sense
means that one is LEGALLY allowed to do something, not necessarily
WISE or STRONG or in fact CAPABLE of doing that thing. A "competency"
hearing does not go into whether the person at issue is good at what
he does or makes WISE decisions; it has to do with whether he has even
the minimum level of self-preservation ability to be ALLOWED to make
his own decisions, unwise as the rest of us may think those decisions
to be. A person who is "incompetent" is one who is not LEGALLY
allowed to make the decisions for his own welfare that any other
competent, adult, free human being is legally permitted to make. Such
a person will have a legal guardian appointed to oversee his welfare
and make those life decisions for him, or will be committed to an
institution.
> >Ah, now we are getting to the nut of the matter - you have a DAMAGE
> >CLAIM
>
> Yes, that's the main (but perhaps not only) issue.
I suppose one _could_ raise a false-advertising claim (apart from the
damage issue) if there were some showing the ad WERE actually false,
AND that OP relied on it to her detriment in some way RELATING TO WHAT
THE LICENSE PURPORTED TO CERTIFY. Since, apparently, OP did not even
know what kind of license it _was_, that supports my contention that
she _could_ not have relied upon any presumptions regarding what the
license (or lack of same) meant. She apparently didn't ask, and just
assumed, what kind of license it was (i.e., one issued by her state
for a "horticultural specialist," a category of licensed profession
that does not exist).
I'm not trying to take a hard-and-fast position that such a claim is
_always_ meritless - clearly it isn't, or we wouldn't even HAVE such a
legal concept as liability for "false advertising." If, frex, the
bug spray guy did NOT have a required EPA license (although the ad,
and contract, said he did), AND if the nature of the harm she suffered
were of the kind that COULD HAVE BEEN PREVENTED OR MITIGATED if the
defendant had met at least the _minimum_ competency requirements to
get a license, THEN that would IMO be a different ball of wax. But
from what I gleaned from OP's post, that was not really what she was
saying, and thus false advertising law did not really apply to her
situation. And, it now becomes clear (with her additional
explanation, yesterday) that this is NOT what she is talking about, at
all.
Besides, what "qualifications" does it take to be a good garden-
chemical sprayer guy? Even a dunce should know that it does not take
a Ph.D. in Ornamental Horticulture from an accredited agricultural
university before one is competent to strap a tank of poison on his
back and go around spraying it on someone's bushes. The only minimum
"qualification" such a person needs is a certificate, IF he is
planning to use regulated industrial-strength rather than over-the-
counter consumer-strength poisons, showing that he sat thru a lecture
telling him that he should not dump these pollutants into the drain
that will wash it out into the Bay nor should he breathe and spray the
stuff without wearing goggles and a filtration mask. Otherwise, any
high-school dropout can do the job, and probably _is_.
> >> the company was not willing to invest in fixing the damage. They
> >> even did not care to remove false advertisement from their Web
> >> site.
>
> >> I could complain to a consumer protection agency in my state but,
> >> though they would have jurisdiction over a share of that company s
> >> market, can they force the out-of-state entity to repair the damage?
>
> They can act against any company that does business in their state.
True. But even then, the state agency can't "force the out-of-state
entity to repair the damage" which was my original answer to OP's
actual question. The agency maybe can take various _other_ kinds of
regulatory action, if that company violated any regulations of the
state in which it was doing business (it's still not clear they
_did_), even if the company were not headquartered there - but
ordering a repair job to be done is probably not one of those
available remedies. For that, she needs to sue the company for
damages (after thinking carefully about whether she does in fact have
colorable, non-frivolous grounds for making such a claim), collect a
money judgment (if she wins) and use that money to have the repairs
done HERSELF (or hire someone to do it).
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
> That's like calling a garbage man a
>"sanitation engineer." It's puffery and spin, for marketing purposes,
>but not an outright lie nor IMO even misleading.
In some states, it's illegal (at least for him to call himself that);
engineers (of any kind) must be licensed.
Seth
Mike Jacobs
wrote:
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> > "Bob La Londe" <nos...@nospam.no> wrote:
> >> "Mike Jacobs" <mjacobs...@gmail.com> wrote:
>
> >> >> When under-qualified (for the subscribed) service personnel
>
> >> > How could they be "under-qualified" in a state where _no_
> >> > licensing is required? � Being an unlicensed business or
> >> > profession in your state means, as I'm sure you know, that
> >> > there is NO applicable legal standard for who is "qualified"
> >> > to do that thing.
>
> >> You know, Mike I have read a lot of your opinions and mostly
> >> have respect for them even when I do not agree, but this one of
> >> the examples legal mish mash that just sets the hair on the
> >> back of my neck on end.
>
> > Now I'm the one who's puzzled. � Why, Bob? � What do you think
> > was weaselly or "legal mish mash" about my answer? �Really, I
> > want to know, that's not a rhetorical question.
>
> Your answer implies that someone in his business cannot act
> negligently if there is no requirement that he be licensed.
No, not at all IMO. I simply said he can't be pursued by the state
for the separate regulatory offense of lack of licensure or held
civilly liable for lack of licensure if no license is required. He
does not have to legaly "qualify" by some ascertainable, pass-fail
standard, before hanging out his shingle, is all I meant.
> I think you'd agree that conclusion would be incorrect.
Sure. But legally, what you are talking about - incompetence - is
simply part of what a plaintiff could use to help prove up a
negligence claim. That is, she would have to show that the company
did a lousy job, and caused her damages - and of course she may choose
to argue that one reason they did a lousy job was that they didn't
know beans about what they were doing, but still, the crux of her
claim is that they screwed up, even if they were very highly _capable_
of doing the job right in all respects. Even a top-notch, board-
qualified and duly licensed surgeon can commit malpractice.
The separate claim that a person claimed to be licensed when he was
not, _IF_ a license is required, can give a plaintiff a much easier
way to win a verdict, simply by showing lack of licensure. A fake
doctor who operates on a patient, even if he does a good job, commits
a regulatory violation (and possibly also a crime or a tort) purely
because he is unlicensed. If a business is required to be licensed
and isn't, the State may take steps to shut down that person's pursuit
of that business until he _gets_ licensed, to protect the public - or,
OP could sue him for damages and would have a much easier case to
prove up. Ditto when a non-lawyer who represents someone else in a
court case, or otherwise commits unauthorized practice of law. And
this applies to beauticians, morticians, airplane mechanics, big-rig
drivers, and just about any other licensed profession. That's all I
meant.
If you look at my language that you and Bob La Londe were both
replying to again, note I did not say (nor mean to imply) that there
is no way on earth to tell if someone is qualified (in the ability
sense) if no license is required. What I said was, there is no
LEGALLY APPLICABLE STANDARD to determine who is, or is not, qualified,
in the legally-permitted, certified-to-have-met-the-bare-minimum
sense, to do that thing. In other words, no one (regardless of how
inept they are) is going to get in trouble with the law - either as a
crime, a regulatory violation, or a tort - simply because they hang
out their shingle and advertise themselves as practitioners of some
(unregulated and unlicensed) profession. Rather, they will get in
trouble if and only if they ACTUALLY screw up while performing some of
the duties they have held themselves out as capable to perform, and
THAT screw-up is the ONLY basis on which a valid claim can be made
against them - not the lack of licensure, when no license is required.
Mike Jacobs
> "Mike Jacobs" <mjacobs...@gmail.com> wrote
> > On Dec 9, 9:41 am, "Bob La Londe" <nos...@nospam.no> wrote:
> >> "Mike Jacobs" <mjacobs...@gmail.com> wrote:
>
> >> >> When under-qualified (for the subscribed) service personnel
>
> >> > How could they be "under-qualified" in a state where _no_ licensing is
> >> > required? Being an unlicensed business or profession in your state
> >> > means, as I'm sure you know, that there is NO applicable legal
> >> > standard for who is "qualified" to do that thing.
>
> >> You know, Mike I have read a lot of your opinions and mostly have respect
> >> for them even when I do not agree, but this one of the examples legal
> >> mish
> >> mash that just sets the hair on the back of my neck on end.
>
> > Now I'm the one who's puzzled. Why, Bob? What do you think was
> > weaselly or "legal mish mash" about my answer? Really, I want to
> > know, that's not a rhetorical question.
>
> I didn't use the term weaslley.
No, you're right, you didn't. I assumed that when someone says a
lawyerly discussion on some subject was "legal mish mash" that means
the person who called it "mish mash" thinks the lawyer was fudging or
spinning the plain truth, or was being weaselly and avoiding making a
commitment to one view or the other, by using complex legal
terminology instead of good ol' plain English. A rose is a rose is a
rose, unless a lawyer starts talking about it, in which case, "it
depends." 8*)
So, I still don't know why you thought what I said was "legal mish
mash," if that assumption was incorrect.
> Would have given a point by point, but yours was a legal distinction.
Right. It was. One which I thought was worthwhile for OP to know.
There is a difference between pursuing a regulatory claim for lack of
licensure - which, in her case, was a non-starter - and a tort or
contract claim for improper performance of the duties that were
undertaken by this company. That's all I was saying - that the
latter was probably the better avenue for her to pursue.
> You might have benefited from some more time
> watching David Carradine walking around stoned on television as a kid.
> Letter of the law vs spirit of the law kinda stuff. LOL. (sorry if you
> don't get the reference.)
Yeah, I get it. LOL
> Seth had a good reply which captured a great deal of the "spirit" of the
> problem. I'll refrain from saying I agree whole heartedly because I only
> skimmed his reply.
Seth raised some good points but didn't refute what I was saying - he
was addressing a different, side issue.
> This is one of those areas where more specific information from the OP would
> have been helpful of course.
Of course. Later, OP _did_ give us more information, and it
confirmed my original guess - that her best bet is simply a claim for
whatever damages she can prove were caused by something this company
DID, not a lack-of-licensure issue.
> I see this often enough though in this group. A legal technical answer when
> there are better practical answers.
Why would it be more practical for OP to continue to pursue a non-
existent licensure claim?
> For Example: A problem with a
> contractor. Many states have a contractor licensing agency with regulatory
> as well as disciplinary capability.
OP's state doesn't - she told us so, from the beginning, that there is
NO licensing requirement for this type of business in her
(unidentified) state. So, that was the assumption on which I was
operating.
> Some even have field investigators
> whose job it is to check out complaints and direct the contractor to
> complete work or repair shoddy or non compliant work. If the contractor
> refuses the agency can impose financial penalties, revoke their license, or
> refuse to renew it. The precise mechanisms will vary, but the end result is
> the same. Some even have additional funds for certain classes of clients to
> have work done to repair bad work by a contractor who refuses to do what
> they should have. (contractor recovery fund in Arizona) All this without
> calling a lawyer or getting the courts involved.
And all that is terrific, _IF_ it is available; but OP told us it
_isn't_ available in her state. She had already tried that avenue,
without success. So, IMO it would have been silly to recommend she
keep walking up this dead-end street.
> Hence why the hair on the
> back of my neck stands on end when I read a technical, but really beside the
> point answer
ISTM my answer was the only one that was ON point for OP - everyone
else was suggesting a regulatory remedy that doesn't exist. That's
fine, in the abstract, IF one lives in a state that regulates such a
business. She doesn't.
Hence, my conclusion that the most practical thing she can do is to
gather her evidence and make a claim as to WHAT THIS COMPANY DID
WRONG, not simply to complain that they lacked a proper license to do
it.
> because somebody posted more information than they really
> needed to or made an assumption or characterization that was probably
> unnecessary.
I think the unnecessary assumption was that there must BE some
regulatory remedy available. There isn't, unless the legislature of
that state has specifically authorized creation of such an agency and
the executive branch has actually set such an agency up, given it a
green light to do its job, and given it teeth to enforce its
regulations.
> The OP just wants to get what they thought they paid for.
Agreed.
> How do you get
> them that in the simplest easiest manner, or tell them they are not entitled
> to what they thought they paid for.
That's what I was trying to do.
> Consumer advocacy groups are pretty much useless in settling a single issue,
> but there may be other organizations that can help specifically. The first
> thing is to find out.
OP already tried that, and came up dry. Lack of licensure is not an
issue that is going to get her anywhere. Proving that the company
screwed up somehow, and thereby ruined her bushes, is. That's all I'm
saying.
Deadrat
news:Xns9CDD4854CF00Ds...@130.133.1.4:
> Mike Jacobs <mjaco...@gmail.com> wrote:
>> "Bob La Londe" <nos...@nospam.no> wrote:
>>> "Mike Jacobs" <mjacobs...@gmail.com> wrote:
<snip/>
>>>
>>> You know, Mike I have read a lot of your opinions and mostly
>>> have respect for them even when I do not agree, but this one of
>>> the examples legal mish mash that just sets the hair on the
>>> back of my neck on end.
>>
>> Now I'm the one who's puzzled. Why, Bob? What do you think
>> was weaselly or "legal mish mash" about my answer? Really, I
>> want to know, that's not a rhetorical question.
>
> Your answer implies that someone in his business cannot act
> negligently if there is no requirement that he be licensed.
Except that MJ says to Angela "Ah, now we are getting to the nut of the
matter - you have a DAMAGE CLAIM[.]"
(I'll assume here that a DAMAGE CLAIM is more serious than a mere damage
claim.)
> I think you'd agree that conclusion would be incorrect.
I'm sure he would, just as I'm sure you'll now agree that the *inference*
you drew about MJ's answer would be incorect.
If you read Mr. LaLo's response, you'll find that he faults MJ for
providing a "technical legal" answer when a "practical" answer would have
been better. Nothing concerning erroneous implications about negligence.
Deadrat
news:hfriq2$vb1$1...@news.eternal-september.org:
>
>
> "Mike Jacobs" <mjaco...@gmail.com> wrote in message
> news:e87aec75-6297-4372...@m26g2000yqb.googlegroups.com.
> ..
>> On Dec 9, 9:41 am, "Bob La Londe" <nos...@nospam.no> wrote:
>>> "Mike Jacobs" <mjacobs...@gmail.com> wrote:
>>>
>>> >> When under-qualified (for the subscribed) service personnel
>>>
>>> > How could they be "under-qualified" in a state where _no_
>>> > licensing is required? Being an unlicensed business or
>>> > profession in your state means, as I'm sure you know, that there
>>> > is NO applicable legal standard for who is "qualified" to do that
>>> > thing.
>>>
>>> You know, Mike I have read a lot of your opinions and mostly have
>>> respect for them even when I do not agree, but this one of the
>>> examples legal mish
>>> mash that just sets the hair on the back of my neck on end.
>>
>> Now I'm the one who's puzzled. Why, Bob? What do you think was
>> weaselly or "legal mish mash" about my answer? Really, I want to
>> know, that's not a rhetorical question.
>>
>
> I didn't use the term weaslley.
> Would have given a point by point, but yours was a legal distinction.
Don't you really mean that you would have given a point-by-point
critique, but you have no valid criticism to give?
> You might have benefited from some
> more time watching David Carradine walking around stoned on television
> as a kid. Letter of the law vs spirit of the law kinda stuff. LOL.
> (sorry if you don't get the reference.)
LOL? Must be one of those abbreviations the kids use on the intertubes.
I'm sorry that I don't get the reference. But *nobody*, kid or adult,
benefits intellectually form watching _Kung Fu_. I'm old enough to know
that much.
> Seth had a good reply which captured a great deal of the "spirit" of
> the problem. I'll refrain from saying I agree whole heartedly because
> I only skimmed his reply.
Seth had a good reply, eh? In fact so good apparently, that you didn't
actually have to read it to know. MJ told Angela that the crux of the
matter was a damage claim, and Seth agreed that that was the "main ...
issue."
> This is one of those areas where more specific information from the OP
> would have been helpful of course.
Really? Well, Angela did supply some "more specific information" on
12/08. How did you find this "more helpful"?
> I see this often enough though in this group. A legal technical
> answer when there are better practical answers. For Example: A
> problem with a contractor. Many states have a contractor licensing
> agency with regulatory as well as disciplinary capability. Some even
> have field investigators whose job it is to check out complaints and
> direct the contractor to complete work or repair shoddy or non
> compliant work. If the contractor refuses the agency can impose
> financial penalties, revoke their license, or refuse to renew it. The
> precise mechanisms will vary, but the end result is the same. Some
> even have additional funds for certain classes of clients to have work
> done to repair bad work by a contractor who refuses to do what they
> should have. (contractor recovery fund in Arizona) All this without
> calling a lawyer or getting the courts involved. Hence why the hair
> on the back of my neck stands on end when I read a technical, but
> really beside the point answer because somebody posted more
> information than they really needed to or made an assumption or
> characterization that was probably unnecessary.
But, of course, isn't it your own advice that's beside the point? The
Arizona contractor recovery fund reimburses people who've suffered losses
from faulty work performed by licensed Arizona contractors. Angela tells
us up front that her incompetent workers weren't licensed. It turns out
that they weren't residential contractors at all, just shrubbery
inspectors.
> The OP just wants to get what they thought they paid for. How do you
> get them that in the simplest easiest manner, or tell them they are
> not entitled to what they thought they paid for.
This isn't the consumer complaint column in your local newspaper. It's
misc.legal.moderated. There are many who post here asking advice about
things that upset them, like Angela's aggravated torts, whatever those
are. The first valuable advice is to concentrate on what recovery is
actually possible.
> Consumer advocacy groups are pretty much useless in settling a single
> issue, but there may be other organizations that can help
> specifically. The first thing is to find out.
The first thing is to know where you stand. MJ's advice to ignore side
issues and think about actual damages seems apt.
Mike
>>> "Mike Jacobs" <mjacobs...@gmail.com> wrote:
>>>
>>>> How could they be "under-qualified" in a state where _no_
>>>> licensing is required? Being an unlicensed business or
>>>> profession in your state means, as I'm sure you know, that
>>>> there is NO applicable legal standard for who is "qualified"
>>>> to do that thing.
> Your answer implies that someone in his business cannot act
> negligently if there is no requirement that he be licensed. I
> think you'd agree that conclusion would be incorrect.
I don't see it that way. There's a difference between being negligent
(not taking the precautions that the average person would take) and not
being qualified (if there's no qualification standards, then it's
impossible for someone to be non-qualified. OR for them to be qualified,
for that matter.)
I.e. if there's no standards for mowing grass, then anyone can be a
landscaper. But that wouldn't mean they could simply drive the mower
into the side of yer house and knock a huge hole in it and not be liable
for such. But you couldn't say "well, they didn't cut the grass evenly
because they weren't qualified" since no law said "you must be able to
cut grass evenly in order to be a landscaper", nor would uneven cutting
(to me) be "negligent." Sloppy? Yes. Negligent? IMHO, no.
Cy Pres
<spam...@lexregia.com> wrote:
>Mike Jacobs <mjaco...@gmail.com> wrote:
>> Now I'm the one who's puzzled. Why, Bob? What do you think
>> was weaselly or "legal mish mash" about my answer? Really, I
>> want to know, that's not a rhetorical question.
>Your answer implies that someone in his business cannot act
>negligently if there is no requirement that he be licensed. I
>think you'd agree that conclusion would be incorrect.
Mike Jacobs suggested nothing of the sort. His position throughout
the posts in this thread has been that a potential plaintiff has a
cause of action for incompetent service by the out-of-state company,
especially where the incompetent service caused damage to real
property.
However, there would be no cause of action had the out-of-state
company provided competent service.
Mike Jacobs
> In article <caa1823f-7441-49f2-b8f4-018d417b3...@k17g2000yqh.googlegroups.com>,
> Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > That's like calling a garbage man a
> >"sanitation engineer." It's puffery and spin, for marketing purposes,
> >but not an outright lie nor IMO even misleading.
>
> In some states, it's illegal (at least for him to call himself that);
> engineers (of any kind) must be licensed.
Examples? I'm not disagreeing in principle, but I think your
statement is too broad.
What I think such state laws generally provide is, no one may HOLD
HIMSELF OUT as available and capable of performing services that would
require a license as a professional engineer, UNLESS that person has
taken the required courses and/or qualifying exams, and has obtained a
certificate as a "P.E." If the actual services being performed do not
require knowledge of, or amount to giving of advice concerning the
design of, structures, which the State has determined as a matter of
public safety should only be designed by those who have shown at least
a minimum level of engineering competence so that the buildings they
design don't collapse on top of people (even though that happens
sometimes even to duly licensed engineers), then it doesn't matter
what kind of fancy title one wants to call oneself.
Even in such states, do _other_ kinds of engineers need licensure?
Say, a software engineer? I don't think you need any kind of license
to create and publicly distribute software, much less to do so in-
house for some employer.
The duties of a garbageman consist of picking up full garbage cans
that customers set out at the curb, tossing their contents into a
truck, and then putting the empty can back down where he got it, and
driving the truck to the next corner on their route to do the same
thing all over again, until the truck is full, then driving it to the
dump and emptying it. This, like spraying for bugs in OP's state, is
not the sort of job that requires a college degree, or that the
legislature has determined requires (at minimum) a professional
license, to protect the public.
How is a garbage collector calling himself "Sanitation Engineer" (if
everybody knows what his actual job duties entail, and no one is being
substantially misled about his legal qualifications) any different
from a smart-ass convict who helps his fellow inmates file grievances
with the warden from calling himself a "jailhouse lawyer" or a
neighborhood piano teacher from calling himself "Professor Jones" or
the local mechanic calling himself "The Car Doctor?" Everybody knows
what they mean, it's just puffery, and no one thinks that Joe
Greasemonkey has a medical degree.
Robert Bonomi
Please provide a cite to a statute that requires "engineers (of any kind)"
to be licensed.
BTW, who licenses "software engineers"?
Bob La Londe
> news:hfriq2$vb1$1...@news.eternal-september.org:
>
>>
>>
>> "Mike Jacobs" <mjaco...@gmail.com> wrote in message
>> news:e87aec75-6297-4372...@m26g2000yqb.googlegroups.com.
>> ..
>>> On Dec 9, 9:41 am, "Bob La Londe" <nos...@nospam.no> wrote:
>>>> "Mike Jacobs" <mjacobs...@gmail.com> wrote:
>>>>
>>>> >> When under-qualified (for the subscribed) service personnel
>>>>
>>>> > How could they be "under-qualified" in a state where _no_
>>>> > licensing is required?
Ok, under qualified to me and most other folks means they were not capable
or knowledgeable enough to perform the job. Licensing has nothing to do
with whether or not they can perform the job they are advertising. Perhaps
the OP should have used the term incompetent instead.
>>>>> Being an unlicensed business or
>>>> > profession in your state means, as I'm sure you know, that there
>>>> > is NO applicable legal standard for who is "qualified" to do that
>>>> > thing.
That may or may not be true, but is beside the point. A license may not be
required to build a house, but it still has to meet local building codes. A
person that can build said house and meet all local building codes would
certainly be qualified if in their circumstances they legally may do so
without said license. The precise nature of how that is defined legally
will vary dramatically. (This is an example. Not a specifically applicable
point. See references in further replies)
>>>> You know, Mike I have read a lot of your opinions and mostly have
>>>> respect for them even when I do not agree, but this one of the
>>>> examples legal mish
>>>> mash that just sets the hair on the back of my neck on end.
>>>
>>> Now I'm the one who's puzzled. Why, Bob? What do you think was
>>> weaselly or "legal mish mash" about my answer? Really, I want to
>>> know, that's not a rhetorical question.
>>>
>>
>> I didn't use the term weaslley.
>
>> Would have given a point by point, but yours was a legal distinction.
>
> Don't you really mean that you would have given a point-by-point
> critique, but you have no valid criticism to give?
No I meant that it was not necessary. Actually I had assumed that Mike was
intelligent enough to go back and see the obvious issues with his comments.
Many of his previous posts and opinions certainly would tend to indicate
such. My own comments about usually respecting his opinions would infer
that, but I have seen in this thread where inference and implications have
been misapplied liberally.
>> You might have benefited from some
>> more time watching David Carradine walking around stoned on television
>> as a kid. Letter of the law vs spirit of the law kinda stuff. LOL.
>> (sorry if you don't get the reference.)
>
> LOL? Must be one of those abbreviations the kids use on the intertubes.
> I'm sorry that I don't get the reference.
Fair enough. You don't get it. Mike did. Since it was directed at him
that's all that matters.
> But *nobody*, kid or adult,
> benefits intellectually form watching _Kung Fu_. I'm old enough to know
> that much.
LOL. (again) You learn from everything you experience. Sometimes its even
useful knowledge. Sometimes it just for amusement. Sometimes an amusing
anecdotal bit of fiction will serve to illustrate a point. Can you say
parable? I'm not even sure I spelled it right. You still learn. I'm old
enough to know that.
>> Seth had a good reply which captured a great deal of the "spirit" of
>> the problem. I'll refrain from saying I agree whole heartedly because
>> I only skimmed his reply.
>
> Seth had a good reply, eh? In fact so good apparently, that you didn't
> actually have to read it to know.
I didn't say that. I caught the first couple points and SKIMMED the rest to
see if anything set off any alarm bells in my mind.
> MJ told Angela that the crux of the
> matter was a damage claim, and Seth agreed that that was the "main ...
> issue."
Certainly, but wouldn't it help if the OP could establish competence or
qualification? ie they claim that they are licensed to illustrate that they
are qualified (competent) to do the job they are advertising. Never mind
that there are plenty of people holding licenses that do not necessarily do
a good job or even the job the advertise.
>> This is one of those areas where more specific information from the OP
>> would have been helpful of course.
>
> Really? Well, Angela did supply some "more specific information" on
> 12/08. How did you find this "more helpful"?
It actually clarified some of the points Mike tried to make. Is this one of
those argumentative points just to try and set up a more adversarial
exchange?
>> I see this often enough though in this group. A legal technical
>> answer when there are better practical answers. ** For Example: ** A
>> problem with a contractor. Many states have a contractor licensing
>> agency with regulatory as well as disciplinary capability. Some even
>> have field investigators whose job it is to check out complaints and
>> direct the contractor to complete work or repair shoddy or non
>> compliant work. If the contractor refuses the agency can impose
>> financial penalties, revoke their license, or refuse to renew it. The
>> precise mechanisms will vary, but the end result is the same. Some
>> even have additional funds for certain classes of clients to have work
>> done to repair bad work by a contractor who refuses to do what they
>> should have. (contractor recovery fund in Arizona) All this without
>> calling a lawyer or getting the courts involved. Hence why the hair
>> on the back of my neck stands on end when I read a technical, but
>> really beside the point answer because somebody posted more
>> information than they really needed to or made an assumption or
>> characterization that was probably unnecessary.
>
> But, of course, isn't it your own advice that's beside the point?
It was an example. I was not offering any advice. This was directed at
Mike in response to his reply to me. Not at the OP.
> The
> Arizona contractor recovery fund reimburses people who've suffered losses
> from faulty work performed by licensed Arizona contractors. Angela tells
> us up front that her incompetent workers weren't licensed. It turns out
> that they weren't residential contractors at all, just shrubbery
> inspectors.
And there may still be an agency that has some authority in this case. We
don't know (well I don't because I lost interest in the original topic and
have not read the other parts of the thread) because we got bogged down on
whether or not a requirement for a license had anything to do with their
qualifications. (competence)
>> The OP just wants to get what they thought they paid for. How do you
>> get them that in the simplest easiest manner, or tell them they are
>> not entitled to what they thought they paid for.
>
> This isn't the consumer complaint column in your local newspaper. It's
> misc.legal.moderated. There are many who post here asking advice about
> things that upset them, like Angela's aggravated torts, whatever those
> are. The first valuable advice is to concentrate on what recovery is
> actually possible.
I think you are disagreeing here just to disagree.
Getting them what they thought they paid for or telling them can't have it,
sounds a lot like recovering what is possible.
>> Consumer advocacy groups are pretty much useless in settling a single
>> issue, but there may be other organizations that can help
>> specifically. The first thing is to find out.
>
> The first thing is to know where you stand. MJ's advice to ignore side
> issues and think about actual damages seems apt.
In several instances you attempted to put words in my mouth (so to type)
that I did not say, imply or infer. While this certainly is a good tactic
to further your arguments or establish an adversarial exchange it was not
accurate. Much like Mike's adding the word weasely. I didn't call him
weasely, do not think he is weasely, and have respect for his opinions for
the most part. Hopefully you will just skip the points of levity,
amusement, or entertainment value if you don't get them. If not that's ok
to.
Angela
>> and I am not in the state where they have their headquarters. It turned
>> out that they falsely advertised the credentials of their service
>> employees. As I found out later, the type of licensing mentioned in
>> advertisement does not even exist in our state.
>
>
> Why don't you complain and find out? At the very least they might
> warn other people about this company. And if they get enough complaints,
> they might do something.
>
> If what they did requires licensing by YOUR state, and they didn't have
> it, your state will probably be interested. If they don't have to have
> a license, they still showed up on your property in your state, didn't
> they?
>
I live in Minnesota. The service included a couple deep root
fertilizations that probably not just promoted some extra growth but
changed the chemical balance and exposed the trees to previously not
existing risks. When I shown the damage I discovered early in the
season, the staff responded with extra spraying of the same mix – now I
understand that dealing with pre-determined mixes was the extent of
their knowledge.
I started researching reputable arborists in the area and found that
their credentials are mostly not licenses but certifications from
professional associations. I could approach those associations for
advice on how to jointly deal with unfair competition. Is this a good
idea?
I already went through an honest attempt to resolve the issue with the
vendor. Suppose, I go ahead with the real pro inspection and damage
control, according to the pros' suggestions. I could then present my
story as breach of contract (a suggestion found in some responses to my
question) or I should not even suggest a particular legal
classification if I file with conciliation court?
Stuart A. Bronstein
> BTW, who licenses "software engineers"?
Microsoft. The last time I checked they hadn't yet taken over the
government.
Deadrat
>> "Bob La Londe" <nos...@nospam.no> wrote in
>> news:hfriq2$vb1$1...@news.eternal-september.org:
<snip/>
>>> Would have given a point by point, but yours was a legal
>>> distinction.
>>
>> Don't you really mean that you would have given a point-by-point
>> critique, but you have no valid criticism to give?
>
> No I meant that it was not necessary.
It was a rhetorical question.
> Actually I had assumed that
> Mike was intelligent enough to go back and see the obvious issues with
> his comments.
The point of my reply is that there aren't any "obvious issues" with MJ's
reply. Certainly none that you've discussed, not counting an unsupported
criticism of style.
> Many of his previous posts and opinions certainly would
> tend to indicate such. My own comments about usually respecting his
> opinions would infer that,
You make implications in your statements; others draw inferences from
them. Neither process obtained in your post, since you simply and
forthrightly stated your ususal respect.
> but I have seen in this thread where
> inference and implications have been misapplied liberally.
Not to mention linguistically.
>>> You might have benefited from some
>>> more time watching David Carradine walking around stoned on
>>> television as a kid. Letter of the law vs spirit of the law kinda
>>> stuff. LOL. (sorry if you don't get the reference.)
>>
>> LOL? Must be one of those abbreviations the kids use on the
>> intertubes. I'm sorry that I don't get the reference.
>
> Fair enough. You don't get it. Mike did. Since it was directed at
> him that's all that matters.
It's not as much fun for me if I have to point out when I'm being ironic,
but fair enough. You don't get it, so I'll spell it out. However David
Carradine was "walking around ... on television," stoned or sober could
have little to do with either the letter or the spirit of the law. And
that topic isn't germane to MJ's answer.
Clear now?
>> But *nobody*, kid or adult,
>> benefits intellectually form watching _Kung Fu_. I'm old enough to
>> know that much.
>
> LOL. (again) You learn from everything you experience. Sometimes
> its even useful knowledge. Sometimes it just for amusement.
> Sometimes an amusing anecdotal bit of fiction will serve to illustrate
> a point. Can you say parable? I'm not even sure I spelled it right.
> You still learn. I'm old enough to know that.
And sometimes you learn nothing from experience, even when it's the
proper use of apostrophes in contractions. You spelled "parable"
correctly. Too bad the concept isn't relevant to the discussion.
>>> Seth had a good reply which captured a great deal of the "spirit" of
>>> the problem. I'll refrain from saying I agree whole heartedly
>>> because I only skimmed his reply.
>>
>> Seth had a good reply, eh? In fact so good apparently, that you
>> didn't actually have to read it to know.
>
> I didn't say that. I caught the first couple points and SKIMMED the
> rest to see if anything set off any alarm bells in my mind.
Just one of those tricky inferences. Whatever "'spirit'" of the problem
that you thought Seth captured, his post basically agreed with MJ's
without that setting off any alarm bells in your mind.
>> MJ told Angela that the crux of the
>> matter was a damage claim, and Seth agreed that that was the "main
>> ... issue."
>
> Certainly, but wouldn't it help if the OP could establish competence
> or qualification? ie they claim that they are licensed to illustrate
> that they are qualified (competent) to do the job they are
> advertising. <snip/>
And the answer is no, it wouldn't help much, especially as there were no
legal qualificaitons. No matter how qualified the workers, the question
is recovery of damages from their actions.
>>> This is one of those areas where more specific information from the
>>> OP would have been helpful of course.
>>
>> Really? Well, Angela did supply some "more specific information" on
>> 12/08. How did you find this "more helpful"?
>
> It actually clarified some of the points Mike tried to make.
Which ones were those?
> Is this
> one of those argumentative points just to try and set up a more
> adversarial exchange?
Make any inference you wish. MJ's advice was to concentrate on the issue
of damages. What in Angela's subsequent post clarified that further?
>>> I see this often enough though in this group. A legal technical
>>> answer when there are better practical answers. <snip/>
>>
>> But, of course, isn't it your own advice that's beside the point?
>
> It was an example. I was not offering any advice. This was directed
> at Mike in response to his reply to me. Not at the OP.
I'll rephrase: But, of course, isn't it your own discussion that's
beside the point?
>> The
>> Arizona contractor recovery fund reimburses people who've suffered
>> losses from faulty work performed by licensed Arizona contractors.
>> Angela tells us up front that her incompetent workers weren't
>> licensed. It turns out that they weren't residential contractors at
>> all, just shrubbery inspectors.
>
> And there may still be an agency that has some authority in this case.
> We don't know (well I don't because I lost interest in the original
> topic and have not read the other parts of the thread)
And what inference do you expect to be drawn from this admission?
> because we got
> bogged down on whether or not a requirement for a license had anything
> to do with their qualifications. (competence)
Who's we?
<snip/>
>> The first valuable advice is to concentrate on
>> what recovery is actually possible.
>
> I think you are disagreeing here just to disagree.
Thanks for sharing. And inferring.
> Getting them what they thought they paid for or telling them can't
> have it, sounds a lot like recovering what is possible.
So you're agreeing with me?
<snip/>
> In several instances you attempted to put words in my mouth (so to
> type) that I did not say, imply or infer.
Again, you say or imply with your words; others infer from them.
"Several instances"? You've complained about one: my assumption that
you didn't read Seth's post, although you claimed to have skimmed (or
rather, SKIMMED) it. Since it seemed to me that you missed the important
point of that post, I drew an inference. See how that works?
If I'm wrong about what you read, you have my apology.
<snip/>
> Much like Mike's adding the word
> weasely. I didn't call him weasely, do not think he is weasely, and
> have respect for his opinions for the most part.
You accused MJ of purveying "mish mash." I took that to mean that you
felt his answer was hypertechnically accurate but so phrased that it was
misleading and unhelpful. You're welcome to your feelings, but they are
erroneous, and this defensive post does nothing to back them up.
MJ further inferred that you were claiming he had posted with the
intention to mislead. For what it's worth, I think he errs in this.
> Hopefully you will
> just skip the points of levity, amusement, or entertainment value if
> you don't get them. If not that's ok to.
I don't know how to skip points hopefully, but it's all amusement to me
too.
Mike Jacobs
> Ok, under qualified to me and most other folks means they were not capable
> or knowledgeable enough to perform the job. Licensing has nothing to do
> with whether or not they can perform the job they are advertising. Perhaps
> the OP should have used the term incompetent instead.
But the trouble is, in absence of any licensing requirement (I'm
quoting myself here) "there is NO applicable legal standard for who is
'qualified' to do that thing" in the sense of capability or
competence, if that's how you mean it. So, even in that sense, my
original statement was correct.
IF a license is required, that means the law has furnished a bright-
line test for determining who has or has not passed at least the
minimum qualifications to exercise some privilege or hold some
particular job. If there is no license required, then there is NO
such LEGAL standard, meaning that everyone is on his own to make his
OWN, subjective, determination - aided by the opinions of others, if
desired - as to whether a person holding himself out to do some
particular job is competent, or not, as per the prospective employer's
or purchaser's OWN requirements.
IOW, the law does not intervene in that decision, by making the
prospective employee or independent contractor seeking a job jump thru
any particular hoops to prove at least his minimum level of
competence, as a shield to protect the public - it's simply a case of
"caveat emptor" (let the buyer beware).
I don't know why some foax are finding this such a dificult concept -
maybe because we are so inured to the idea that government DOES
provide us a safety cushion against our own foolish choices in so many
ways. So, when we find a situation where there is NO such legal
safety net provided by the government, we are aghast. I think it's
possible you're more shocked that the government does NOT protect
consumers in this situation than you are at my statement that it in
fact doesn't, Bob, now that I have mulled it over more.
[Mike J said]
> >>>>> Being an unlicensed business or
> >>>> > profession in your state means, as I'm sure you know, that there
> >>>> > is NO applicable legal standard for who is "qualified" to do that
> >>>> > thing.
[Bob LL said]
> That may or may not be true, but is beside the point.
No, it's EXACTLY the point given that OP was trying to see whether she
could pursue a SEPARATE claim for lack of licensure against this
company. We agree, and no one here has disputed, that (if her facts
provide sufficient evidence) she DOES have a viable claim of defective
PERFORMANCE of their duties by this company - whether that claim
sounds in breach of contract or in tort for negligence is immaterial
here. But what you seem still to fail to recognize is, all I was
trying to do was focus her efforts on THAT potentially fruitful claim
regarding what they DID, and not to waste her time complaining about
"incompetent" and "unlicensed" workers when NO LICENSE WAS REQUIRED.
And you are falling into the same hall-of-mirrors trap OP was. It's
NOT their competence or lack thereof that would give OP any claim
against this company, even in the sense you mean it. Rather, what
matters is what they actually DID (or failed to do that they should
have done), not what they were CAPABLE of doing or not.
[Bob LL said]
> A license may not be
> required to build a house, but it still has to meet local building codes. A
> person that can build said house and meet all local building codes would
> certainly be qualified if in their circumstances they legally may do so
> without said license. The precise nature of how that is defined legally
> will vary dramatically. (This is an example. Not a specifically applicable
> point. See references in further replies)
But the building codes are just a different form of government-
mandated consumer protection safety net, much like licensing
requirements - perhaps you are right that a homeowner can do his OWN
construction or repairs without a license, but his finished work
product must still meet clearly defined, legally applicable
standards. What similar clearly defined, legally applicable standard
applies to the business of fertilizer spraying (other than EPA and
possible state regulation of their use of toxic substances, as
previously discussed in this thread, and which have nothing to do with
the basis for OP's claim)? None, so far as OP has told us, nor that I
am aware of. So, the only standard here is her SUBJECTIVE
determination of whether the company's personnel are fit for the job,
and whether they in fact did a GOOD job - the latter also being
subject to a subjective determination by A TRIAL of her DAMAGE claim
in which the factfinder would determine whether, upon the evidence,
what the company did was "reasonable" or not, and whether those acts
or omissions were the cause of her harm. That is not a hard-and-fast
bright-line test, it is just as fuzzy as OP's own determination of
whether her expectations were met.
[Bob LL said]
> >>>> You know, Mike I have read a lot of your opinions and mostly have
> >>>> respect for them even when I do not agree, but this one of the
> >>>> examples legal mish
> >>>> mash that just sets the hair on the back of my neck on end.
[Mike J said]
> >>> Now I'm the one who's puzzled. Why, Bob? What do you think was
> >>> weaselly or "legal mish mash" about my answer? Really, I want to
> >>> know, that's not a rhetorical question.
[Bob LL said]
> >> I didn't use the term weaslley.
> >> Would have given a point by point, but yours was a legal distinction.
[Deadrat said - although Bob LL left out a proper attribution line at
the beginning of the post I am replying to and I had to look him up]
> > Don't you really mean that you would have given a point-by-point
> > critique, but you have no valid criticism to give?
[Bob LL said]
> No I meant that it was not necessary. Actually I had assumed that Mike was
> intelligent enough to go back and see the obvious issues with his comments.
Gee, thanks, Bob.
[Bob LL said}
> Many of his previous posts and opinions certainly would tend to indicate
> such. My own comments about usually respecting his opinions would infer
> that, but I have seen in this thread where inference and implications have
> been misapplied liberally.
The worst unwarranted inference and misapplication of legal
implications here has been the one OP started with, which Bob
apparently shares, and of which I was trying (oh so gently) to
disabuse both OP and Bob, by pointing out she was barking up the wrong
tree.
I felt it likely that only the SCREWUP issue (what the company did
wrong), and NOT the COMPETENCE issue (what they were CAPABLE of doing
right) was going to do her any good as a grounds for legal action. I
still feel that way SO LONG AS either (1) the company DID meet any
applicable licensing requirements, despite OP's lack of knowledge of
what those requirements are (getting back to the likely EPA
requirement of licensing to handle certain highly toxic substances) or
(2) the company had NO such licensing requirement, in which case the
only measure of their capability to do the job at hand was OP's own
subjective evaluation, NOT any clearly defined legal standard. That's
what I said, and that's what I meant.
Bob LL said}
> >> You might have benefited from some
> >> more time watching David Carradine walking around stoned on television
> >> as a kid. Letter of the law vs spirit of the law kinda stuff. LOL.
> >> (sorry if you don't get the reference.)
[Deadrat said]
> > LOL? Must be one of those abbreviations the kids use on the intertubes.
OMG, ROTFLOL
[Deadrat said]
> > I'm sorry that I don't get the reference.
[Bob LL said]
> Fair enough. You don't get it. Mike did. Since it was directed at him
> that's all that matters.
<remaining Kung Fu take-the-law-into-your-own-hands discussion
snipped>
[Deadrat said]
> > MJ told Angela that the crux of the
> > matter was a damage claim, and Seth agreed that that was the "main ...
> > issue."
[Bob LL said]
> Certainly, but wouldn't it help if the OP could establish competence or
> qualification?
ISTM that OP would have to establish LACK of qualification or
competence, and all I said was, there is NO LEGAL STANDARD by which
she can do that, if there is no licensing requirement (and if, as Bob
points out, there is no other bright-line legal test which the work
product of the company is legally required to meet). So, she is
wasting her time barking up that tree, and would better find results
if she started sniffing around the defective-performance or negligence
tree instead, depending on her facts.
Let's give another example, from the medical field, and then one from
the home-contractor field since Bob is focusing on that (even though
neither analogy directly applies here, to this unlicensed profession
of garden-sprayer).
Let's say patient #1 gets operated on by a fake, quack "doctor" like
the guy Tom Hanks played in "Catch Me If You Can." It turns out that
the doctor is NOT in fact duly licensed to perform the medical and
surgical procedures on you that he did. EVEN IF the operation turns
out okay, Patient #1 would have a claim against the quack for the tort
of battery, for cutting him open without having the legally required
minimum qualifications to do so.
Let's say another person, patient #2, got operated on by a (real)
doctor who had all the requisite degrees and qualifications but, cut
off the wrong leg. Patient #2 would have a NEGLIGENCE (malpractice)
claim against that doctor _regardless_ of his high level of
qualifications.
Let's say yet a third patient was handled in some way by a hospital
orderly who was not legally required to have ANY licensure at all to
do that job. Does patient #3 have a claim against the orderly merely
because the orderly was not licensed? NO.
Does patient #3 have a claim against the orderly if the orderly
MISHANDLED him or her in some negligent way OR failed to fulfill all
of the orderly's contractual duties? YES. But that is the ONLY
grounds for the claim against the orderly, not his "lack of
qualifications."
Back to the building contractor example. In some states, a person
who holds himself out to third parties as a home impovement contractor
(in one of the fields defined by statute) must have a government
license to do so; and if he holds out as a contractor _without_ such a
license, he can be fined by the government, forced to close down his
business, and (in many states) will NOT be able to legally pursue
collection of any payment from the customer (or may even be forced to
disgorge payments already received) because of his unlicensed
status. He may ALSO be sued for defective performance of his
contract, or for negligence resulting in physical harm to his
customer's property, REGARDLESS of his licensed status of course.
But, if a contractor is in a field or profession that is NOT within
the scope of that state's licensing requirement, NONE OF THE ABOVE
REMEDIES APPLY, _except_ that (regardless of whether he was licensed
or not) he still may be sued for defective performance of the contract
or for negligence, as may be appropriate, and his lack of licensure is
NEITHER HERE NOR THERE so far as THAT claim is concerned. OP's
garden-spraying company is contracting in what is apparently an
UNLICENSED business or profession in OP's state, and thus fits THIS
model, NOT the model that applies to persons holding themselves out as
members of a _licensed_ profession.
I don't know how to make it any more clear than that.
[Bob LL said]
> ie they claim that they are licensed to illustrate that they
> are qualified (competent) to do the job they are advertising.
First of all, the company MAY in fact hold an EPA license, based on
what OP told us and what I know about regulation of toxic materials.
But even if they don't (and are not required to), the lack of a
license IN NO WAY CAUSED HARM to OP. That's what I meant by, "what's
it to _you_?" Sure, she may be able to get a consumer protection
agency dealing with false advertising to take some interest _IF_ all
the facts aligned in her favor, but that STILL WOULD NOT GET HER WHAT
SHE WANTED, i.e. forcing the company to fix her trees, or to pay her
for the damage to them.
[Bob LL said]
> Never mind
> that there are plenty of people holding licenses that do not necessarily do
> a good job or even the job the advertise.
But that was exactly my point why the licensure issue is irrelevant to
the cause-of-damage and right-of-recovery issues which relate only to
her potential lawsuit, NOT to any potential regulatory agency helping
her out in that regard.
[Bob LL said}
> >> This is one of those areas where more specific information from the OP
> >> would have been helpful of course.
[Deadrat said]
> > Really? Well, Angela did supply some "more specific information" on
> > 12/08. How did you find this "more helpful"?
[Bob LL said]
> It actually clarified some of the points Mike tried to make.
But Bob, do you agree with my points now, in light of what OP has said
to clarify, or not? I still don't know.
<snip>
[Bob LL said}
> And there may still be an agency that has some authority in this case. We
> don't know (well I don't because I lost interest in the original topic and
> have not read the other parts of the thread) because we got bogged down on
> whether or not a requirement for a license had anything to do with their
> qualifications. (competence)
But I still say it DOES. Requiring a license means the government
has determined that a person must show at least a certain MINIMUM
level of competence before being allowed to hang out his shingle and
seek customers in a given business or profession. Having NO such
licensing requirement means the government provides NO such legal
"safety cushion" to help customers determine who is qualified or not,
and that ANYBODY can legally hang out their shingle and start
barbering, surgeoning, or tree-spraying, subject only to the "buyer
beware" rule.
Now, I HEAR what you are saying, Bob. You're saying that OP was
maybe lulled into hiring this company, and thinking they had some
proven level of competence, by their representation that they were
"licensed" horticultural specialists. Even if so, though, HOW DID
THAT CAUSE HER HARM? No one has answered that question I have
repeatedly raised, and I presume that is because there IS no such
causal connection. She needs to focus on WHAT THEY ACTUALLY DID
WRONG instead of what they impliedly SAID they could do right, because
actual performance, NOT prior qualifications, is what matters at this
point.
[Bob LL said]
> >> The OP just wants to get what they thought they paid for.
I agree, as I already said days ago in this thread. And OP _should_
be entitled to get what she paid for. Which is, the services she
contracted for, without the company _causing_ any additional damage to
her trees. I did point out, though, that the company is not
responsible for the fact that her trees were diseased in the first
place, _or_ for their inability to completely cure the problem _if_
they did everything they had contracted to do, any more than a doctor
would be responsible for failing to cure a patient whose disease
processes were beyond the reach of the doctor's professionally
reasonable efforts to address them.
[Bob LL said]
> >> How do you
> >> get them that in the simplest easiest manner,
Bizzactly. IMO the simplest manner (in this case) is for Angela NOT
to waste time on licensure issues, but to SUE THEM for defective
performance of their contract obligations or for other things they did
that negligently caused damage to her trees, _if_ she has the facts
lined up to support such a claim.
[Bob LL said]
> >> or tell them they are
> >> not entitled to what they thought they paid for.
I would never tell anyone that, although I might help them clarify
whether what they THOUGHT they paid for was what they IN FACT paid
for. My earlier posts in this thread did go over with OP what I
thought OP probably paid for, and what I thought she had a right to
expect from the company if that was the case - I won't rehash that
here since no new information has been provided by OP since then to
change my tentative summary of her situation.
[Deadrat said]
> > This isn't the consumer complaint column in your local newspaper. It's
> > misc.legal.moderated. There are many who post here asking advice about
> > things that upset them, like Angela's aggravated torts, whatever those
> > are. The first valuable advice is to concentrate on what recovery is
> > actually possible.
[Bob LL said]
> I think you are disagreeing here just to disagree.
No, I think Deadrat is trying to give you a different perspective on
the topic under discussion, in hopes it will help you see things in a
new light, and thereby learn something. I agree with Deadrat, and in
my previous posts I was just trying to help Angela cut away the
blinders that her emotional distress put on her, and see what her real
options are.
Many, many potential clients come in with some false notion of what
the law requires, and thereby think they have some "slam dunk"
shortcut way to get back at the person or company who did them wrong,
a legal "gotcha" clause they can put their weight behind and which
they think will get quick results. Many times, that initial client
assumption is completely WRONG. The lawyer's job is to find out what
the client REALLY wants, i.e. what their legitimate goals and
aspirations are, where they want to be at THE END of the legal process
- and then try to figure out the easiest way to get the client there,
which may be TOTALLY DIFFERENT than the "brilliant" idea the client
first came up with.
Here, IMO, Angela's desire to pursue the company for lack of licensure
is a non-starter. If she runs that up the flagpole, no one will
salute it. Instead, she needs to focus on building her evidence to
show WHAT THE COMPANY'S GUY DID WRONG when he came out to her place
and WHY THAT ACT OR OMISSION CAUSED HARM TO HER TREES. Then, she can
more likely get results she truly and legitimately desires, i.e.
compensation for the damage to her property caused by this company.
[Bob LL said]
> Getting them what they thought they paid for or telling them can't have it,
> sounds a lot like recovering what is possible.
Bob, now you're AGREEING with Deadrat and me, although you weren't,
before.
That's exactly our point. She needs to concentrate on what is more
likely to get her results, NOT the licensure issue.
[Bob LL said]
> >> Consumer advocacy groups are pretty much useless in settling a single
> >> issue, but there may be other organizations that can help
> >> specifically. The first thing is to find out.
[Deadrat said]
> > The first thing is to know where you stand. MJ's advice to ignore side
> > issues and think about actual damages seems apt.
>
[Bob LL said]
> In several instances you attempted to put words in my mouth (so to type)
> that I did not say, imply or infer. While this certainly is a good tactic
> to further your arguments or establish an adversarial exchange it was not
> accurate. Much like Mike's adding the word weasely. I didn't call him
> weasely, do not think he is weasely,
Um, Bob, speaking of pots calling kettles black, I didn't say
_or_imply_ that you were calling ME "weaselly." I asked why you
thought MY WORDS in this particular instance were "weaselly," or, in
YOUR actual turn of phrase, "legal mish mash" which I took as
synonymous with "weaselly." Au contraire, I was doing my best to
speak plainly.
[Bob LL said]
> and have respect for his opinions for the most part.
Thank you, Bob, but it's certainly possible (indeed likely, given the
volume of my posts over the years) that you could have such respect
for me generally and still think that a particular statement I made
was "inapt" (the inverse of Deadrat's term - although he felt my
comment to OP "seems apt"), or was "legal mish mash" (your term) or
was "weaselly" (my term). And you _did_ call what I said "legal mish
mash." I did not take offense - I simply wanted to know what you
meant, and how you would suggest I could have said it better.
[Bob LL said]
> Hopefully you will just skip the points of levity,
> amusement, or entertainment value if you don't get them. If not that's ok
> to.
Heaven forfend I should skip any points of levity. If posting here
were not fun at least occasionally, it would be too much _work_.
Mike Jacobs
> I live in Minnesota. The service included a couple deep root
> fertilizations that probably not just promoted some extra growth but
> changed the chemical balance and exposed the trees to previously not
> existing risks.
If your (subsequently hired) tree expert (who actually knows what he
is doing) can testify to that opinion under oath, you've got what you
need to prove that the original company CAUSED your trees to develop
rot, because of what they did - as opposed to simply showing they
sprayed an essentially useless, but harmless, substance on the trees
that developed rot.
> When I shown the damage I discovered early in the
> season, the staff responded with extra spraying of the same mix � now I
> understand that dealing with pre-determined mixes was the extent of
> their knowledge.
Exactly. You are confirming my summary of their business plan which I
stated in an earlier post. They have 2 tanks of goop - one of their
proprietary fertilizer mix, and the other of their proprietary pest
spray - with which their contract was to walk around spraying
everything with fertilizer, look at everything, and then spray the
pesticide compound on the leaves that looked like they need it.
THAT'S ALL THEY DO, as you now recognize.
So, it seems like your claim arises not from anything they did in
attempting to CURE the tree disease (by spraying the pest spray) but
rather that the initial FERTILIZER spray was inappropriate for your
conditions and actually CAUSED the harm. Is that right?
If so, IMO you have a pretty good chance of winning on such a claim.
It would be like if a quack doctor (in the old, pre-regulation days)
prescribed a patent medicine that was not merely useless, but
contained a substance such as mercury that (as shown by testimony of
more knowledgeable practitioners of the same unlicensed art) turned
out to actually CAUSE more damage than it cured.
> I started researching reputable arborists in the area and found that
> their credentials are mostly not licenses but certifications from
> professional associations.
Great. Unfortunately, you learned the rule "caveat emptor" (buyer
beware) the hard way. Perhaps if you had done more comparison
shopping initially, you would have discovered these _other_, more
professionally competent, "tree doctors" who could have set you
straight. But, I'm not here to beat you up over past mistakes, just
to try to help you figure out where to go from _here_ (and hopefully,
to keep you and other readers of this NG from making similar mistakes
in the future).
BTW, you still haven't replied to my guess that even the "quack" tree
service DID IN FACT have an EPA license to handle chemical pesticides,
as their ad alleged they did. Have you found out any more
information on that for us? Just curious.
> I could approach those associations for
> advice on how to jointly deal with unfair competition.
It's not "unfair competition" in the legal sense if the "quack"
company didn't do anything illegal. Timex(tm) is not "unfair
competition" to Rolex(tm), even though it makes a cheaper watch -
because they do not claim to _be_ Rolex. OTOH if some vendor on a
street corner card table offers you a "Rollexx" watch made in China,
that IS unfair competition for the _real_ Rolex(tm) because it is
_unfairly_ diverting customers that would have bought the real thing
(unlikely, at that price) or because it would dilute the value of the
real trademark if the real company did nothing to prosecute the
unauthorized knockoffs (more likely).
> Is this a good idea?
Is _what_ a good idea? Telling the American Tree Care Association
(or whatever their name is - I just made that up) that this quack
company is out there, and what their business model is? Maybe.
What does your (newly retained) expert say? Assuming he's a member of
that association, he can probably predict what their response will be
and tell you whether _he_ thinks it's a good idea.
> I already went through an honest attempt to resolve the issue with the
> vendor.
Granted. But they obviously felt it fit their business plan better
for them to give complaining customers a flat denial than to pay you
to preserve their "reputation" such as it is. Some companies are like
that. If so, and IF (as you stated in your original post) there is no
state agency with supervisory authority over licensing of this type of
business, the only remedy I can see you have left is to sue them, and
prove your claim that they CAUSED the damage to your trees.
> Suppose, I go ahead with the real pro inspection and damage
> control, according to the pros' suggestions. I could then present my
> story as breach of contract (a suggestion found in some responses to my
> question) or I should not even suggest a particular legal
> classification if I file with conciliation court?
If the dollar amounts at issue are appropriate for what you call
"conciliation court" (something that doesn't exist in all states, so I
don't know what that means - I asssume it is some kind of "small
claims" court) then you should gather all the facts that you believe
support your claim, and present them to the judge. Keep in mind,
though, that even if your state's rules do not require you to formally
state a specific cause of action (so long as the facts you do state
are sufficient to entitle you to relief), it still behooves you to
KNOW what your possible legal claims ARE, so you know what kind of
facts you NEED to make out a case.
You will certainly be kicking yourself afterwards, if you go in to
court, where you have your ONE chance to make out your case, and then
have the judge reject your claim because you didn't prove some
essential fact - if you know you COULD have proven that fact but
didn't bother to bring along any evidence of it because you didn't
think it was significant (or didn't even have a clue about it one way
or the other).
How much money are we talking about, anyway? If it's just a couple
thousand, do the best you can, and then live with whatever the judge
decides. If it's more than that, say ten thou or so, you will
probably benefit from consulting an actual local lawyer, at least to
have him give you some pointers on how to present your case even if
you don't hire him to represent you at trial (if that is even
permitted in "conciliation court" in MN). Good luck,
Seth
Mike <prab...@shamrocksgf.com> wrote:
>I don't see it that way. There's a difference between being negligent
>(not taking the precautions that the average person would take)
I don't see "average person" as the correct standard. The average
person (remember, I grew up in New York City) couldn't tell a healthy
plant from a weed. Someone who is hired to examine plants for signs
of disease has to be able to do a lot better than the average person.
I'd say, the average professional in that field is a better standard.
> and not being qualified (if there's no qualification standards, then
>it's impossible for someone to be non-qualified. OR for them to be
>qualified, for that matter.)
If there are no _legal_ qualification standards, it's still possible
for someone to be qualified or non-qualified for a particular job.
E.g. there are no legal qualifications required for bike messengers in
Manhattan (who schlep papers around the business districts by bicycle
at extremely high speed). But I would assert that my 90-year-old
father, who can walk to the end of the block and back on a good day,
is not qualified for that job.
>I.e. if there's no standards for mowing grass, then anyone can be a
>landscaper.
Or at least a lawn-mower.
> But that wouldn't mean they could simply drive the mower into the
>side of yer house and knock a huge hole in it and not be liable for
>such.
Of course; that's causing damage.
> But you couldn't say "well, they didn't cut the grass evenly
>because they weren't qualified" since no law said "you must be able to
>cut grass evenly in order to be a landscaper", nor would uneven cutting
>(to me) be "negligent." Sloppy? Yes. Negligent? IMHO, no.
But if the contract includes "look at each tree and examine it for
disease, and treat the diseased ones" and no tree is treated despite
many being diseased, I would say that's negligent.
Seth
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>On Dec 10, 2:39 pm, "Bob La Londe" <nos...@nospam.no> wrote:
>> For Example: A problem with a
>> contractor. Many states have a contractor licensing agency with regulatory
>> as well as disciplinary capability.
>
>OP's state doesn't - she told us so, from the beginning, that there is
>NO licensing requirement for this type of business in her
>(unidentified) state. So, that was the assumption on which I was
>operating.
There are several possibilities here.
The individuals who do plant examinations and treatment do not have to
be licensed to do so. That was stated.
But do the companies that employ them have to be licensed to do
business? I don't recall that being stated either way.
>Hence, my conclusion that the most practical thing she can do is to
>gather her evidence and make a claim as to WHAT THIS COMPANY DID
>WRONG, not simply to complain that they lacked a proper license to do
>it.
That's always a better way; if they're not licensed and required to
be, lack of a license will cause them to pay fines, etc. and probably
not help the complainant at all.
Seth
Seth
Angela <ac...@k12.hopkins.m_n.us> wrote:
>I started researching reputable arborists in the area and found that
>their credentials are mostly not licenses but certifications from
>professional associations. I could approach those associations for
>advice on how to jointly deal with unfair competition. Is this a good
>idea?
I don't see how it could hurt. They certainly have an interest in
informing the public, though much less in handling your specific
case. (They might well want to encourage the company you hired to
cease doing business locally, which could help or harm your case.)
>I already went through an honest attempt to resolve the issue with
>the vendor. Suppose, I go ahead with the real pro inspection and
>damage control, according to the pros' suggestions. I could then
>present my story as breach of contract (a suggestion found in some
>responses to my question) or I should not even suggest a particular
>legal classification if I file with conciliation court?
I believe you have to state a claim, and that seems like the most
relevant one.
Seth
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>Even in such states, do _other_ kinds of engineers need licensure?
>Say, a software engineer?
It was some years ago, so I don't recall the details, but someone told
me that his business cards didn't say "software engineer" because the
state he was in didn't allow that; others who did the same sort of
work at branches of his employer in other states did have that on
their business cards.
> I don't think you need any kind of license to create and publicly
>distribute software, much less to do so in- house for some employer.
No, you don't. Some years ago, New Jersey considered requiring such
licenses, and AT&T offered to leave (on that grounds that they
considered themselves a lot better able to judge qualified programmers
than any government agency ever could be).
>How is a garbage collector calling himself "Sanitation Engineer" (if
>everybody knows what his actual job duties entail, and no one is being
>substantially misled about his legal qualifications) any different
>from a smart-ass convict who helps his fellow inmates file grievances
>with the warden from calling himself a "jailhouse lawyer" or a
>neighborhood piano teacher from calling himself "Professor Jones" or
>the local mechanic calling himself "The Car Doctor?" Everybody knows
>what they mean, it's just puffery, and no one thinks that Joe
>Greasemonkey has a medical degree.
It up to the state which titles and terms are protected.
I don't know of any that protects "Professor" or "Doctor" (rather than
"M.D."). I don't know about "jailhouse lawyer"; since he probably
isn't actually practicing law, or holding himself out as able to do
so, there wouldn't be an issue.
Puerto Rico apparently licenses the term "Engineer" (in Spanish). I
couldn't easily find states that do. It's possible that my informant
was wrong, and there was some other reason his employer didn't use
that title in his state.
Seth
John Smith
"Bob La Londe" <nos...@nospam.no> wrote in message
news:hg16j3$efc$1...@news.eternal-september.org...
>> "Bob La Londe" <nos...@nospam.no> wrote in
>> news:hfriq2$vb1$1...@news.eternal-september.org:
>>
>>>
>>>
>>> "Mike Jacobs" <mjaco...@gmail.com> wrote in message
>>> news:e87aec75-6297-4372...@m26g2000yqb.googlegroups.com.
>>> ..
>>>> On Dec 9, 9:41 am, "Bob La Londe" <nos...@nospam.no> wrote:
>>>>> "Mike Jacobs" <mjacobs...@gmail.com> wrote:
>>>>>
>>>>> >> When under-qualified (for the subscribed) service personnel
>>>>>
>>>>> > How could they be "under-qualified" in a state where _no_
>>>>> > licensing is required?
>
> Ok, under qualified to me and most other folks means they were not capable
> or knowledgeable enough to perform the job. Licensing has nothing to do
> with whether or not they can perform the job they are advertising.
> Perhaps
> the OP should have used the term incompetent instead.
>
>>>>>> Being an unlicensed business or
>>>>> > profession in your state means, as I'm sure you know, that there
>>>>> > is NO applicable legal standard for who is "qualified" to do that
>>>>> > thing.
>
LOL. I think you did what you accused deadrat (correctly) of. Argued just
for the sake of arguing. If you just take the original section you
commented on it does sound like some legal wrangling rather than a to the
point comment. It didn't set the small hairs on end for me, but I had to
read it twice. Then I have to agree (as you probably do tom Bob) that it is
technically correct. You problem Bob is that you allowed deadrat to provoke
you into responding to non-issues about your original comment. And yes Mike
is does sound kinda weasely. Doesn't mean its wrong. Just sounds funky.
Deadrat
news:jptVm.68223$de6....@newsfe21.iad:
>
>
> "Bob La Londe" <nos...@nospam.no> wrote in message
> news:hg16j3$efc$1...@news.eternal-september.org...
>>> "Bob La Londe" <nos...@nospam.no> wrote in
>>> news:hfriq2$vb1$1...@news.eternal-september.org:
>>>
>>>>
>>>>
>>>> "Mike Jacobs" <mjaco...@gmail.com> wrote in message
>>>> news:e87aec75-6297-4372...@m26g2000yqb.googlegroups.c
>>>> om. ..
>>>>> On Dec 9, 9:41 am, "Bob La Londe" <nos...@nospam.no> wrote:
>>>>>> "Mike Jacobs" <mjacobs...@gmail.com> wrote:
>>>>>>
>>>>>> >> When under-qualified (for the subscribed) service personnel
>>>>>>
>>>>>> > How could they be "under-qualified" in a state where _no_
>>>>>> > licensing is required?
>>
>> Ok, under qualified to me and most other folks means they were not
>> capable or knowledgeable enough to perform the job. Licensing has
>> nothing to do with whether or not they can perform the job they are
>> advertising. Perhaps
>> the OP should have used the term incompetent instead.
>>
>>>>>>> Being an unlicensed business or
>>>>>> > profession in your state means, as I'm sure you know, that
>>>>>> > there is NO applicable legal standard for who is "qualified" to
>>>>>> > do that thing.
>>
>
> LOL. I think you did what you accused deadrat (correctly) of. Argued
> just for the sake of arguing. If you just take the original section
> you commented on it does sound like some legal wrangling rather than a
> to the point comment.
This is MJ's windup from his original post:
<quote>
Aren't you really complaining about the crappy job they did for you,
_not_ their lack of (not legally required) credentialing in your
state?
</quote>
And here's MJ's conclusion:
<quote>
Ah, now we are getting to the nut of the matter - you have a DAMAGE
CLAIM
</quote>
Please explain why this constitutes "legal wrangling."
> It didn't set the small hairs on end for me,
> but I had to read it twice. Then I have to agree (as you probably do
> tom Bob) that it is technically correct.
Does that mean that it's incorrect in some other manner, e.g, that it
isn't practical or that it's misleading?
> You problem Bob is that you
> allowed deadrat to provoke you into responding to non-issues about
> your original comment.
Bob decided to reply to some parts of my posts that were perhaps
unnecessarily snarky. But that's not his problem.
> And yes Mike is does sound kinda weasely.
I take that to mean that you think MJ's reply was intentionally
misleading and took unfair advantage of the OP's lack of expertise.
Really? How so?
> Doesn't mean its wrong.
In fact, it's right, isn't it?
> Just sounds funky.
Perhaps you could tell me what violated your olfactory sense.
Mike
> bon...@host122.r-bonomi.com (Robert Bonomi) wrote:
>
>> BTW, who licenses "software engineers"?
>
> Microsoft. The last time I checked they hadn't yet taken over the
> government.
Ya might want to check again*grin*
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>On Dec 12, 5:48 pm, "Bob La Londe" <nos...@nospam.no> wrote:
>> Ok, under qualified to me and most other folks means they were not capable
>> or knowledgeable enough to perform the job. Licensing has nothing to do
>> with whether or not they can perform the job they are advertising. Perhaps
>> the OP should have used the term incompetent instead.
>
>But the trouble is, in absence of any licensing requirement (I'm
>quoting myself here) "there is NO applicable legal standard for who is
>'qualified' to do that thing" in the sense of capability or
>competence, if that's how you mean it.
Why isn't this a situation where the "reasonable person" (or
"reasonable knowledgeable person") standard applies?
>IF a license is required, that means the law has furnished a bright-
>line test for determining who has or has not passed at least the
>minimum qualifications to exercise some privilege or hold some
>particular job. If there is no license required, then there is NO
>such LEGAL standard, meaning that everyone is on his own to make his
>OWN, subjective, determination - aided by the opinions of others, if
>desired - as to whether a person holding himself out to do some
>particular job is competent, or not, as per the prospective employer's
>or purchaser's OWN requirements.
Why doesn't "no such legal standard" mean "no bright-line standard
inscribed in law"?
If hair styling isn't licensed in a particular state, it's easy for
people to disagree as to whether a particular self-labelled stylist is
competent; but one who can't cut hair without drawing blood is not
going to be considered competent by any reasonable person.
>No, it's EXACTLY the point given that OP was trying to see whether she
>could pursue a SEPARATE claim for lack of licensure against this
>company.
Not merely lack of licensure, but lack of licensure despite the
_claim_ of licensure.
As you stated above, if a license exists, then it is, by law, the
minimum standard required for someone to do the job. The claim of
having such a license implies that it exists, and that the claimer
meets such a standard.
>I felt it likely that only the SCREWUP issue (what the company did
>wrong), and NOT the COMPETENCE issue (what they were CAPABLE of doing
>right) was going to do her any good as a grounds for legal action.
As a practical matter, I quite agree. The screwup is relatively easy
to prove, and clearly the company's fault requiring recompense.
>[Bob LL said]
>> Certainly, but wouldn't it help if the OP could establish competence or
>> qualification?
>
>ISTM that OP would have to establish LACK of qualification or
>competence,
And I don't see why it would matter either way. The company screwed
up, and owes damages for that. If the company was negligent in hiring
incompetents, or the employees were negligent or irresponsible, that
doesn't much matter since it's the company's responsiblity either
way. (If you think it's easier to collect from the employees, then it
might matter.)
>Let's say patient #1 gets operated on by a fake, quack "doctor" like
>the guy Tom Hanks played in "Catch Me If You Can." It turns out that
>the doctor is NOT in fact duly licensed to perform the medical and
>surgical procedures on you that he did. EVEN IF the operation turns
>out okay, Patient #1 would have a claim against the quack for the tort
>of battery, for cutting him open without having the legally required
>minimum qualifications to do so.
Suppose instead of doctor, he played lawyer (which Frank Abagnale did,
iirc). He defended someone, who was acquitted. Does his client have
cause for action against him? (No argument that criminal charges
apply.)
>[Bob LL said]
>> ie they claim that they are licensed to illustrate that they
>> are qualified (competent) to do the job they are advertising.
>
>First of all, the company MAY in fact hold an EPA license, based on
>what OP told us and what I know about regulation of toxic materials.
>But even if they don't (and are not required to), the lack of a
>license IN NO WAY CAUSED HARM to OP.
The claim of a license may be what induced OP to hire that company, so
the claim did (indirectly) cause harm. But the company's screw-up is
the direct cause, so there's no reason to go after it for the indirect
cause.
Seth
Seth
Deadrat <a...@b.com> wrote:
>"John Smith" <aliasJ...@nokidding.com> wrote in
>news:jptVm.68223$de6....@newsfe21.iad:
>> It didn't set the small hairs on end for me, but I had to read it
^^^^^^^^^^^^^^^^^^^^
>> twice. Then I have to agree (as you probably do tom Bob) that it
^^^^^
>> is technically correct.
>Does that mean that it's incorrect in some other manner, e.g, that it
>isn't practical or that it's misleading?
I'd take it to mean that it's unclear, but on careful reading it's
correct when strictly interpreted.
Seth
Mike Jacobs
> Mike Jacobs �<mjacobs...@gmail.com> wrote:
> >On Dec 12, 5:48 pm, "Bob La Londe" <nos...@nospam.no> wrote:
> >> Ok, under qualified to me and most other folks means they were not capable
> >> or knowledgeable enough to perform the job. �Licensing has nothing to do
> >> with whether or not they can perform the job they are advertising. �Perhaps
> >> the OP should have used the term incompetent instead.
>
> >But the trouble is, in absence of any licensing requirement (I'm
> >quoting myself here) "there is NO applicable legal standard for who is
> >'qualified' to do that thing" in the sense of capability or
> >competence, if that's how you mean it.
>
> Why isn't this a situation where the "reasonable person" (or
> "reasonable knowledgeable person") standard applies?
Sigh. It DOES, and that's my whole point. The ONLY legal standard
that applies here is the common law rule that a person who undertakes
a contractual duty must PERFORM that duty at least as well as a
reasonably competent person in his shoes holding himself out to do
that job would have done, or else he can be held liable for damages in
an action for breach of contract, or for the tort of negligence.
Saying there is "no applicable legal standard" for assessing a
person's qualifications doesn't mean there is NO way at all to assess
those qualifications. That would be ridiculous, as everybody knows.
But it means the law does not provide a standard by which to measure
those qualifications - rather, the laissez-faire common law principle
of "caveat emptor" (let the buyer beware) applies, and it is UP TO
EACH PERSON ON HIS OWN to make HIS OWN assessment of the
qualifications, and capabilities, of the persons he is dealing with.
A homeowner such as OP may, frex, inquire (as she eventually did, too
late) whether the party she is about to contract with has been
certified or approved by any PRIVATE organization she is familiar with
and trusts - but the GOVERNMENT HAS NO ROLE in that, and the
GOVERNMENT DOES NOT CERTIFY a person's qualifications, if there is NO
LEGAL LICENSING REQUIREMENT.
And just to clarify - what I mean by that is, there is no "hair cop"
or "tree cop" who is going to PREVENT a person claiming to be a "hair
stylist" or "horticultural specialist" from hanging out his shingle
and going into business as such, _IF_ he does so in a state where NO
LICENSE IS REQUIRED to enter that business. The rank novice, with no
(real) qualifications and no training or experience, who is good at
selling himself and getting hired to do the job, has JUST AS MUCH
LEGAL RIGHT as anyone else, including those far more experienced,
trained, and qualified than he, to apply for AND GET a particular job
(either as an employee or as an independent contractor) _if_ no
license is legally required.
And, if it is an unlicensed trade we are talking about, the law DOES
NOT HELP the prospective employer such as OP in vetting the
qualifications of the person or company she is about to hire to do the
job. If that person or company she hires turns out to be wholly UN-
qualified, but is OTHERWISE performing satisfactorily, her only remedy
is to FIRE that person for lying on his resume, NOT to pursue
regulatory action against him for unlicensedly doing whatever it was
he was hired to do. Conversely, if either a highly qualified master
of his trade, _or_ a brash, self-promoting tyro who got in over his
head, SCREWS UP the job and causes harm, the employer can claim
against him FOR CAUSING THAT DAMAGE _regardless_ of whether he was a
rank beginner or was the acknowledged dean of his entire profession.
OP seemed to be conflating those 2 concepts, and I urged her to
conceptually separate them, is all.
>From what we have been told, OP has _one_ and only one way to get her
result - suing (or claiming against) the defective contractor for
breach of contract or for negligence, if that breach or that
negligence is what resulted in the damage to her trees. She DOES NOT
have ANY grounds on which to make a SEPARATE claim against that
company for "lack of qualifications" (whatever that means), unless the
law REQUIRES that company to be licensed for a certain purpose AND
unless she is within the range of people whom that licensing
requirement is intended to protect. So, frex, if OP's property had
been hurt by a misapplication of EPA-regulated toxins to her trees,
_and_ if she could show that the company lacked a requisite EPA or
State license to handle those toxins, she MIGHT have a separate and
equally viable claim against them on THAT grounds - but so far, we
have no evidence of this. OP told us herself that as far as she
knows, the company is NOT required to be licensed to do what it did in
her state. Which is why I (and others) have told her that her ONLY
apparent claim was one for compensation for DAMAGES (whether she
alleges those damages were due to breach of contract, negligence, or
both).
> >IF a license is required, that means the law has furnished a bright-
> >line test for determining who has or has not passed at least the
> >minimum qualifications to exercise some privilege or hold some
> >particular job. � If there is no license required, then there is NO
> >such LEGAL standard, meaning that everyone is on his own to make his
> >OWN, subjective, determination - aided by the opinions of others, if
> >desired - as to whether a person holding himself out to do some
> >particular job is competent, or not, as per the prospective employer's
> >or purchaser's OWN requirements.
>
> Why doesn't "no such legal standard" mean "no bright-line standard
> inscribed in law"?
Yes, I explained above that that's what having a "legal standard"
MEANS. Who are you arguing with, here, Seth? Isn't that what I
said? We are in agreement, sounds like.
> If hair styling isn't licensed in a particular state, it's easy for
> people to disagree as to whether a particular self-labelled stylist is
> competent; but one who can't cut hair without drawing blood is not
> going to be considered competent by any reasonable person.
Right. But if there is no licensing requirement for hairstylists in
that state, the ONLY claim the cut-up victim is going to have is for
DAMAGES, not for unlicensed operation of a salon.
> >No, it's EXACTLY the point given that OP was trying to see whether she
> >could pursue a SEPARATE claim for lack of licensure against this
> >company.
>
> Not merely lack of licensure, but lack of licensure despite the
> _claim_ of licensure.
Ah, now that's a separate issue. Now, you're discussing OP's "false
advertising" angle and have gotten off talking about MY statement you
quoted (at the top of this post, second paragraph).
We STILL DON'T KNOW from OP whether or not in fact this company was
required to, and DID, have licenses (a) from its HOME state to do this
kind of business there, even if it was not required to do so in OP's
state; or (b) from EPA or some other Fed agency regulating its use of
certain industrial-strength fertilizers or pesticides.
_IF_ the company in fact FALSELY advertised that it WAS licensed and
actually held NO licenses of any kind whatsoever from anybody, AND if
OP could show that she reasonably relied on that claim of licensure in
choosing this company to do her yard work (another _big_ "if", since
she apparently never bothered to inquire about just WHAT kind of
licenses they in fact had, who issued them, and so on), then yes, she
MIGHT have another angle here she could pursue, basically for the tort
of FRAUD in the inducement to contract, rather than a separate,
regulatory violation. And it would still just be a part of the theory
on which she could base her DAMAGES claim.
> As you stated above, if a license exists, then it is, by law, the
> minimum standard required for someone to do the job. �The claim of
> having such a license implies that it exists, and that the claimer
> meets such a standard.
But it still does not give OP a separate, regulatory claim against
this company. She still only has her single, DAMAGES claim to
pursue. We were just trying to get her to focus on the remedy she
DOES have available instead of wasting her time looking for ways to
get back at this company that, based on what she told us, don't exist.
And, need I repeat that we STILL DON'T KNOW from OP whether or not
this company _is_ in fact "unlicensed" while claiming to be
licensed? All we know is that she looked (Googled?) for an agency in
her state that issued a license for something called a "horticultural
specialist" (since the company claimed to hire "licensed horticultural
specialists" to do its work) and she could not find any such agency or
any such license BY THAT NAME. She has STILL not responded to my
query, brought up very early in this thread, about whether in fact any
EPA or other-state license may have existed as claimed by the company
- but even if it did, its lack had NOTHING TO DO WITH causing the harm
she said her trees suffered, from this comipany's ministrations.
> >I felt it likely that only the SCREWUP issue (what the company did
> >wrong), and NOT the COMPETENCE issue (what they were CAPABLE of doing
> >right) was going to do her any good as a grounds for legal action.
>
> As a practical matter, I quite agree. �The screwup is relatively easy
> to prove, and clearly the company's fault requiring recompense.
Great, we're getting somewhere, on the same page now.
> >[Bob LL said]
> >> Certainly, but wouldn't it help if the OP could establish competence or
> >> qualification?
>
> >ISTM that OP would have to establish LACK of qualification or
> >competence,
>
> And I don't see why it would matter either way. �The company screwed
> up, and owes damages for that.
Exactly.
>�If the company was negligent in hiring
> incompetents, or the employees were negligent or irresponsible, that
> doesn't much matter since it's the company's responsiblity either
> way.
You got it.
> �(If you think it's easier to collect from the employees, then it
> might matter.)
Well, not the way you seem to think - the company is vicariously
responsible (under the concept of "respondeat superior") for the torts
of its employees. OP can sue either the company, or Joe Dirt who's
walking around with the poison tanks strapped on his back, or both.
> >Let's say patient #1 gets operated on by a fake, quack "doctor" like
> >the guy Tom Hanks played in "Catch Me If You Can." � It turns out that
> >the doctor is NOT in fact duly licensed to perform the medical and
> >surgical procedures on you that he did. � EVEN IF the operation turns
> >out okay, Patient #1 would have a claim against the quack for the tort
> >of battery, for cutting him open without having the legally required
> >minimum qualifications to do so.
>
> Suppose instead of doctor, he played lawyer (which Frank Abagnale did,
> iirc). �He defended someone, who was acquitted. �Does his client have
> cause for action against him? �(No argument that criminal charges
> apply.)
Not for malpractice, perhaps, but quite likely the (successfully
defended) client WOULD have a claim against his unlicensed "lawyer"
for disgorgement of FEES paid (since only a licensed lawyer may
legally charge a client a fee for rendering legal services that
require a lawyer).
> >[Bob LL said]
> >> ie they claim that they are licensed to illustrate that they
> >> are qualified (competent) to do the job they are advertising.
>
> >First of all, the company MAY in fact hold an EPA license, based on
> >what OP told us and what I know about regulation of toxic materials.
> >But even if they don't (and are not required to), the lack of a
> >license IN NO WAY CAUSED HARM to OP.
>
> The claim of a license may be what induced OP to hire that company, so
> the claim did (indirectly) cause harm.
Only if she can show she reasonably relied on that inducement, which
is the part I think she will find nearly impossible to prove, since
she in no way understood nor inquired further about what kind of
"license" the company claimed.
For all we know, in fact, they could have been talking about a
copyright or trademark or patent license, issued by a private owner of
whatever rights were being licensed, NOT a government-issued license
of the kind required in her state to pursue a "horticultural
specialist" business (of which there apparently is none). Maybe the
company is a franchise and licensed the right to call themselves "Tree
Doctors" from the parent company that owns that trademark (I just made
that up - my apologies if I inadvertently misused someone's actual
trademark). Or, they could be using some brand-name, proprietary
pesticide formula and legitimately claim to be "licensed" applicators
of "Fungus-B-Gon" brand tree treatment spray (I made that one up too),
or whatever the goop was they sprayed on her trees. We could go on
and on, but the point is, OP has not even BEGUN to show us grounds on
which she could claim REASONABLE reliance on the company's claim to be
"licensed" since she doesn't even know what they MEANT by that, let
alone whether they in fact HAD any such license. I am not laughing
at her belated, after-the-barn-door-was-left-open attempt to corral
this horse by Googling "licensed horticultural specialist
Minnesota" (if that's in fact what she did, when she came up dry on
that search) but those of less charitable bent well might have.
Now that I mention it, I just Googled that phrase I made up above,
myself, and found the following website of the Minnesota Nursery and
Landscape Association (a private entity):
http://www.mnla.biz/industry-resources/safety-training-19/training-manuals-for-landscape-and
which contains a link to a fascinating training handbook for
landscaping and horticultural workers, which makes mention of (among
other things) the concept of a "MnDOT Certified Landscape Specialist"
and a "MDA Licensed Commercial Pesticide Applicator." So,
apparently, there ARE various agencies in MN which may either license,
or certify, persons desiring to enter the horticultural profession in
MN or desiring to handle commercial-grade pesticides. I commend OP to
Google _those_ terms and see what she finds. I'm not going to do
_all_ the work around here.
> �But the company's screw-up is
> the direct cause, so there's no reason to go after it for the indirect
> cause.
Agreed.
Angela
> Ah, now that's a separate issue. Now, you're discussing OP's "false
> advertising" angle and have gotten off talking about MY statement you
> quoted (at the top of this post, second paragraph).
>
> We STILL DON'T KNOW from OP whether or not in fact this company was
> required to, and DID, have licenses (a) from its HOME state to do this
> kind of business there, even if it was not required to do so in OP's
> state; or (b) from EPA or some other Fed agency regulating its use of
> certain industrial-strength fertilizers or pesticides.
To clarify, I had a contract with the same company for a few years for
lawn care. They applied pesticides/fertilizers, and that's where MN
requires a license (if done commercially).
I considered that job adequately done, so I perceived their claim on
being licensed in "horticulture" with trust. The same term has not been
used in their lawn care promotions so I interpreted it as possession of
another special skill relevant to the tree care. I learned recently
that the tree applicators are licensed, like their lawn care peers, to
handle chemicals -- that's it.
I understand that damage is what should be the core of my claim. It
could well be that their fertilization not just promoted extra growth
but also brought some knew volnerabilities to the trees and shrubs.
That's where the staff had no knowledge on how to act and nothing to
offer but spraying more of the same mix.
I investigated the licensing info with the State, not just Googling. I
did not investigate the same about licensing in their "home" state --
would it matter in my case?
Mike Jacobs
> On Dec 21, 12:21 am, se...@panix.com (Seth) wrote:
> > Mike Jacobs <mjacobs...@gmail.com> wrote:
> > >I felt it likely that only the SCREWUP issue (what the company did
> > >wrong), and NOT the COMPETENCE issue (what they were CAPABLE of doing
> > >right) was going to do her any good as a grounds for legal action.
>
> > As a practical matter, I quite agree. The screwup is relatively easy
> > to prove, and clearly the company's fault requiring recompense.
>
> Great, we're getting somewhere, on the same page now.
Reading over this again, I feel a need to take issue with myself (and
Seth) only on the "relatively easy to prove" concept. I ignored that
the first time Seth mentioned it, since I was so happy we were
agreeing on the general idea that a damages claim was the way for OP
to go, but now that OP has further clarified her situation (see
today's post by OP), it appears we all agree the licensure and/or
false-advertising issue is in reality a non-issue and now she needs to
focus on HOW to prove the company screwed up and harmed her bushes.
That may not be so easy.
What she has to prove may vary somewhat depending on if she chooses to
pursue a breach of contract theory, or a negligence theory. For a
contract claim, she will have to consider very carefully what the
company actually promised to do, NOT what _she_thought_ they were
going to do _or_could_ do. It appears (just a guess, having not read
the contract) that they undertook a very simple task, capable of being
performed even by high-school dropouts, to wit: visit her home on an
agreed schedule, walk around her yard on each visit with 2 tanks of
proprietary chemical mixes strapped to their backs, one of fertilizer,
the other of pesticide (to kill plant-eating insects and plant-
attacking fungus). Their job, as the boss probably explained to them
in 25 words or less (which was probably all the training they got),
was: "Spray every tree and bush with fertilizer. Look at every one.
If you see any withered leaves, give them a shot of pesticide."
IF THEY DID THAT JOB TO SPECIFICATION, she does NOT have any breach-of-
contract claim. The fact that they were not graduate-school-trained
"horticultural specialists" with a Ph.D. in Ornamental Horticulture
did not render them incompetent to do what they actually did, nor did
their contract require them to have (or apply) that level of expertise
to their duties. All they had to do was walk around and spray
stuff.
If they didn't walk around AT ALL, she has a contract claim.
If they walked around and sprayed _some_ trees and bushes with
fertilizer but MISSED some, and THOSE trees they missed are the ones
that died, she may have a contract claim.
If they walked around and sprayed the fertilizer properly but
neglected to inspect for pre-existing fungus/insect damage, she may
have a contract claim.
If they did inspect for fungus/insect damage AND FOUND SOME (or SHOULD
have found some, if they were doing their job right) but neglected to
SPRAY the damaged plants with pesticide, she has a contract claim.
But if they did ALL those things, SHE DOES NOT have a breach-of-
contract claim.
Now, one of her earlier posts led me to believe that HER EXPERT (whom
she consulted AFTER the alleged mess-up occurred) is of the opinion
that perhaps spraying TOO MUCH fertilizer, or that particular mix of
fertilizer, was in fact BAD for these particular trees, and somehow
CAUSED the trees to develop problems they DID NOT HAVE BEFORE the
company's spraying efforts occurred. _IF_ in fact that is what
happened,she may have a TORT claim, sounding in negligence.
To prove up THAT claim, she will need to show:
(a) that the company, and its employees who actually did the work at
her yard, did not perform their duties at least as competently as an
average, competent purveyor of those services would have done; OR,
that the company AFFIRMATIVELY did something that a reasonable person
in their shoes would NOT have done, such as spraying an inappropriate
poison on the plants that actually harmed rather than helped them;
(b) that this negligence (the act or omission that meets element (a)
and which breached a duty that persons in the company's shoes owed to
persons in OP's shoes) was a CAUSE IN FACT of the damage to OP's
trees; i.e., that the harm WOULD NOT have occurred EXCEPT FOR whatever
it was that the company did or failed to do;
(c) that the damage caused by this cause-in-fact was reasonably
FORESEEABLE to a reasonably prudent person in the company's shoes, and
was directly enough related to the ultimate harm that resulted so that
it is reasonable for the law to hold the company RESPONSIBLE for
causing that harm (i.e., OP must show that the wrongful act or
omission was a "proximate" cause of the harm); and
(d) that she suffered actual harm as a consequence. That, of course,
is the "damages" part of the claim, and she will also have to offer
competent, probably expert, testimony to establish a VALUATION of her
damages if that is not something that any ordinary person could easily
figure out.
OP will probably need an expert BOTH to prove the (a) negligent act or
omission, and (b) factual causation, and (d) evaluation of damages
issues. If she makes a contract claim, she will still need the
expert for her evaluataion of damages, and perhaps also to opine about
whether what the company actually did was sufficient to have
substantially performed their contractual duties, based on his
knowledge of that industry, AND on whether the scope of the damage
caused by that breach was reasonably foreseeable to a reasonably
competent tree specialist. The company will NOT be responsible for
"consequential" damages (such as death of the trees) unless such
damage was specifically within the contemplation of the parties at the
time of contracting. And, I'd bet dollars to donuts the tree
company's contract, to the contrary, contains a specific EXCLUSION of
any consequential or incidental damages to the extent it is permitted
by law to disclaim those, and also purports to limit OP's recovery to
a REFUND of the price she paid for the service if she is not satisfied
after giving them an opportunity to cure (by coming back and spraying
her garden again). Those contract clauses MAY be the killer that puts
a kibbosh on ANY claim's viability (other than a claim for refund of
the price of the service).
It will not be easy for OP to win a verdict for the value of her dead
trees, which may be quite large if they were healthy, mature trees
before the company's screwup occurred. The path is frought with
opportunities for OP to also screw up procedurally and lose her case,
even if she brings it in Small Claims court, and even more so if the
damages are substantial enough to justify a full blown trial in the
court of general jurisdiction (for which she really should hire a
lawyer to represent her). In any event, I wish OP good luck.
Mike Jacobs
> To clarify, I had a contract with the same company for a few years for
> lawn care. They applied pesticides/fertilizers, and that's where MN
> requires a license (if done commercially).
As we have surmised for a few days now, until you confirmed it.
> I considered that job adequately done, so I perceived their claim on
> being licensed in "horticulture" with trust.
If that's the case, I sympathize, but don't think you have any basis
to claim reasonable reliance on their ad to your detriment. They
_were_ duly licensed to handle industrial-strength chemicals, and they
_were_ "horticultural specialists" (which we pointed out earlier is
just a fancy term for "garden workers") even if there is no such thing
as a State-certified "licensed horticultural specialist" as you
mistakenly assumed.
> The same term has not been
> used in their lawn care promotions so I interpreted it as possession of
> another special skill relevant to the tree care.
I can understand how one in your shoes might do that, so don't feel
dumb, but it was a logical leap to an unwarranted conclusion and gives
you no rights in law of a "false advertising" or "lack of license"
nature. Those speculative claims you began this thread discussing,
are false paths that will lead you nowhere.
> I learned recently
> that the tree applicators are licensed, like their lawn care peers, to
> handle chemicals -- that's it.
Now we all know that's what their (correct) claim of being "licensed"
meant.
> I understand that damage is what should be the core of my claim.
Yes. Do you have an assessment yet of the VALUE of the damage to
your trees? Is this something relatively small where you feel
comfortable handling it yourself in small claims court, or is there
enough money at stake so you should hire a lawyer so you don't screw
it up and lose a lot of money you could have won? Do you even KNOW
yet which is which? Have you asked your expert consultant for a
valuation opinion yet?
> could well be that their fertilization not just promoted extra growth
> but also brought some knew volnerabilities to the trees and shrubs.
The court is not going to be interested in _your_ (non-expert) rank
speculation about what "_could_ well be" the case. You will need
your expert witness to testify, to a reasonable degree of scientific
certainty, as to what in his opinion WAS the case here. He will have
to be able to honestly offer a sworn opinion that (a) the tree company
did something WRONG, which was not up to the standard of care of an
average provider in that industry, _and_ (b) that what they did wrong
was the CAUSE of the damage to your trees. Have you gotten such
opinions, yet, from your expert?
> That's where the staff had no knowledge on how to act and nothing to
> offer but spraying more of the same mix.
I'm still not sure that's enough to get you a verdict for damage to
your trees. Did this company's staff CAUSE the damage? Or were
they just too dumb to notice it occurring even though it had NOTHING
TO DO WITH their contractual duties?
As I mentioned earlier, it sounds like _all_ this company contracted
to do was, send a guy around with a proprietary-mix fertilizer tank
and a proprietary-mix pesticide tank strapped to his back. His job
was to spray everything with fertilizer, look at all the trees and
bushes to see if they had wilted leaves, and spray the pest mix on the
wilted leaves. THAT'S IT. They did NOT claim any other expertise
and did NOT promise to do anything else. That would be like suing a
masseuse who gave you a back rub, because you later developed liver
disease (or whatever). The masseuse is not a doctor, does not claim
to be a doctor, has no duty to examine you to find illnesses that
require a doctor's expertise, and just promised to give you a back rub
to help you feel good. All you got from this company - and all they
promised you - was the feel-good treatment.
> I investigated the licensing info with the State, not just Googling.
But what did you ask them, and who did you ask? Your initial
confusion seemed to arise from your assumption there _was_ such a
thing as a "licensed horticultural specialist." Which, we now all
know, does not exist in MN.
> did not investigate the same about licensing in their "home" state --
> would it matter in my case?
No. Not at all. Licensing is a non-issue.
What you need to do, first, is figure out how much you lost (dollar
value) here. If it's a small amount you don't mind gambling on your
own, go ahead and sue in small claims pro se and knock yourself out -
have fun, it's a learning experience. But if it's a larger amount
you would feel bad about losing, then GET A LAWYER and let him or her
take it from here.
Seth
Angela <ac...@k12.hopkins.m_n.us> wrote:
>I investigated the licensing info with the State, not just Googling. I
>did not investigate the same about licensing in their "home" state --
>would it matter in my case?
Not enough to matter. Your damages are the harm they did to you, and
your proof is the evidence that they did it. Those are the same
whether or not they hold any particular licenses anywhere.
Seth
Seth
>> Why isn't this a situation where the "reasonable person" (or
>> "reasonable knowledgeable person") standard applies?
>
>Sigh. It DOES, and that's my whole point. The ONLY legal standard
>that applies here is the common law rule that a person who undertakes
>a contractual duty must PERFORM that duty at least as well as a
>reasonably competent person in his shoes holding himself out to do
>that job would have done, or else he can be held liable for damages in
>an action for breach of contract, or for the tort of negligence.
Thank you. Now I understand: there's no legal standard for "being
able/qualified to do the job" but the (legal) standard for any
particular job done is "at least as well as a reasonably competent
person would have done it". So if someone were totally incompetent,
but this one time happened to do the right thing purely by chance (a
clock running backwards is right four times a day), there are no
damages in this particular case.
Seth
Angela
>> That's where the staff had no knowledge on how to act and nothing to
>> offer but spraying more of the same mix.
>
> I'm still not sure that's enough to get you a verdict for damage to
> your trees. Did this company's staff CAUSE the damage? Or were
> they just too dumb to notice it occurring even though it had NOTHING
> TO DO WITH their contractual duties?
There was no separately stated contract, just promotional literature
and acknowledgement of payment. However, all their "Today's service"
flyers, as well as other Web and print materials, contained Guarantee:
"Your <firm's name> specialist is committed to making you happy with
our service... If you are not completely satisfied with the results of
this application...or have ... concerns, please call... and we will
take care of them free of charge within 72 hours."
How verbatim can I interpret such a commitment?
Mike Jacobs
> >> That's where the staff had no knowledge on how to act and nothing to
> >> offer but spraying more of the same mix.
I think you were correct in reaching that conclusion about their
business model.
> [Mike Jacobs]
> > I'm still not sure that's enough to get you a verdict for damage to
> > your trees. Did this company's staff CAUSE the damage? Or were
> > they just too dumb to notice it occurring even though it had NOTHING
> > TO DO WITH their contractual duties?
I don't think your comment below about the language of their
promotional brochure answered the above question. Even if all they
knew to do, and all they _did_ do,was spray their proprietary chemical
mix on your plants, we still don't know whether their doing so, or
their failing to do so, is what CAUSED your plants to get sick and/or
die.
> "Your <firm's name> specialist is committed to making you happy with
> our service... If you are not completely satisfied with the results of
> this application...or have ... concerns, please call... and we will
> take care of them free of charge within 72 hours."
>
> How verbatim can I interpret such a commitment?
Even verbatim, what kind of a promise is, "we will take care of [your
concerns] free of charge"? WHAT, exactly, did they promise to _do_ to
"take care of" your concerns? I think you already know, since it's
what they already offered to do for you - come out and spray your
plants _again_ on an unscheduled visit, for an extra dose, without
charging you for that visit. I don't see them promising anything else
by way of guarantee. They do NOT promise results, they do NOT promise
any professional knowledge or competence, they do NOT even promise to
give your money back - all they promise is to COME OUT AND DO IT AGAIN
if you're not satisfied with the first application. If they sprayed
as promised, and offered you their come-back service as promised when
you complained, THEY HAVE FULFILLED THEIR CONTRACTUAL OBLIGATIONS.
Now, I am basing that conclusion solely on what you told us and on my
fill-in-the-gaps GUESS that there is no OTHER language in their
brochure which could be interpreted broadly enough to be construed as
a warranty of merchantability, or a warranty of fitness for your
particular purposes, or a promise that they would use their best
professional judgment to pick out just the right "prescription" for
your plants instead of their one-size-fits-all patent-medicine
offering. As best I can tell from your selected facts, what you paid
for, and what you got, was the tree-doctor equivalent of "No matter
what's wrong with you, take 2 aspirin and call me in the morning."
I'm sorry you confused this mass-market, one-note-Johnnie of a
chemical application company with an actual, professionally competent,
custom-tailored-to-your-specific-plants, full-service tree care
provider. What you ordered, and what you paid for, was an "off the
rack" product rather than one custom-tailored to your needs - their
business model was more like McDonald's or WalMart's than Chez Ritz or
Saville Row. You cannot walk into Mickey's and ask them to customize
the condiments they put on your Big Mac and make it "medium
rare." (Well, you _can_, but the pimply kid behind the counter will
probably laugh at you.) You cannot buy a dress or suit at WalMart and
ask them to alter it to your specifications (ditto on the laughter).
And, apparently, you cannot buy fertilizer- and bug-spray service from
this company and expect them to have a trained botanist on hand to
actually analyze the particular fungus or insect or nutrient imbalance
that is attacking your trees (assuming that is even what was going on)
and determine what is needed to make your trees healthy again. There
is NOTHING WRONG legally with this business model, and you are not
entitled to expect the level of custom service you DID NOT pay to get,
from one of these low-end merchants.
OTOH you _can_ sue McD if their coffee is too hot and gives you 3rd
degree burns, and you can sue WalMart if the nightie you bought there
explodes into flames while you are making your breakfast near an open
stove flame - but these are tort claims, or quasi-tort implied-
warranty claims, NOT express contractual claims. You cannot sue
Mickey's _in_contract_ because they refused to leave off the pickle,
or because your beef patties were overdone. For their rock-bottom
price, you got what you paid for by way of alterations and custom
service, which is _zip_.
Similarly, If you think your facts can prove that this company CAUSED
the damage to your plants, and therefor owes you, in tort, for that
damage, you will need EVIDENCE in the form of your expert's opinions
on (a) what the company did wrong, (b) why that wrong thing to do is
what CAUSED the damage to your plants, and (c) the extent of your
damages.
So far, you have not told us anything about those facts, so we have no
idea of what your prospects of success would be, or whether you would
be okay with pursuing this in small claims "conciliation court" or
would need a lawyer to pursue large damages in the "real" court. We
certainly understand if you don't want to share those particulars
publicly, and you are wise not to do so - but it does no good to keep
asking us what we think of your chances if we don't have the facts.
So, you would be better advised to consult, in confidence, a local
attorney who can help you with these issues. You should be able to
tell enough from what we've all suggested here already to see whether
you need an attorney or not. Here's a clue - if you have no idea
what I was talking about in the preceding paragraph, you DO need an
attorney. Good luck,
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>Reading over this again, I feel a need to take issue with myself (and
>Seth) only on the "relatively easy to prove" concept. I ignored that
>the first time Seth mentioned it, since I was so happy we were
>agreeing on the general idea that a damages claim was the way for OP
>to go, but now that OP has further clarified her situation (see
>today's post by OP), it appears we all agree the licensure and/or
>false-advertising issue is in reality a non-issue and now she needs to
>focus on HOW to prove the company screwed up and harmed her bushes.
>That may not be so easy.
That's why I wrote _relatively_. If you were OP's attorney, would you
prefer to have to prove (1) the company didn't perform up to
"reaonable professional" standards and thereby caused harm, or (2) the
company's ad was sufficiently false/misleading to be the cause of
harm? I would think that proving the second basically requires
proving the first, as well as careful tapdancing around the issue of
whether the causation by the ad was sufficiently direct to make the ad
actionable for its contribution to the harm.
Seth
Mike Jacobs
> In article <0f0e6598-7314-4af0-8cbe-d8c998b92...@j24g2000yqa.googlegroups.com>,
You are absolutely correct, as far as the two of us are concerned, and
as far as logic goes. A cauldron of bubbling molten iron is
"relatively" a lot cooler than the surface of the Sun, let alone an
even hotter star, but on a human scale the molten iron is still pretty
damn hot. I took issue with the "relatively easy" language (and with
myself) for the benefit of OP Angela, who (not being familiar with
legal process, the way we assume people are familiar with the heat of
molten iron) might have naively assumed that "relatively easy" meant
"easy" on some human scale, such as a pro se plaintiff would have no
problem with. I just wanted to set out for her (and for other
readers) the steps that I presume (based on her sketchy summary of the
facts) must go into her case, even if she elects the "relatively
easier" cause of action by trying to prove a direct screwup by the
chemical company that directly caused her damage to her trees. We do
no favors to those who come here for suggestions by leading them,
however inadvertently, down a primrose path to litigation hell.
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>You are absolutely correct, as far as the two of us are concerned, and
>as far as logic goes. A cauldron of bubbling molten iron is
>"relatively" a lot cooler than the surface of the Sun, let alone an
>even hotter star, but on a human scale the molten iron is still pretty
>damn hot.
Sure; but on a human scale, the surface of the Sun isn't relevant.
Consider, instead, the cauldron of bubbling molten iron versus a pot
of bubbling boiling water (both of which do exist on a human scale).
They're both pretty damn hot, and I wouldn't recommend bathing in
either; however, contact between your hand and the bubbling iron
causes your hand to cease to exist, while contact between your hand
and the boiling water causes "Ouch!", running cold water on your hand
and a little residual pain for a short while. (That's my experience,
anyway, from clumsiness while draining spaghetti.) So, while they're
both hot, I'd say that the water is relatively a lot cooler and less
damaging.
> I took issue with the "relatively easy" language (and with myself)
>for the benefit of OP Angela, who (not being familiar with legal
>process, the way we assume people are familiar with the heat of
>molten iron) might have naively assumed that "relatively easy" meant
>"easy" on some human scale,
I agree; it doesn't.
> such as a pro se plaintiff would have no problem with.
It's more likely to be the difference between "extremely difficult and
unlikely to succeed" and "almost impossible and nearly a miracle if it
works".
> I just wanted to set out for her (and for other readers) the steps
>that I presume (based on her sketchy summary of the facts) must go
>into her case, even if she elects the "relatively easier" cause of
>action by trying to prove a direct screwup by the chemical company
>that directly caused her damage to her trees. We do no favors to
>those who come here for suggestions by leading them, however
>inadvertently, down a primrose path to litigation hell.
I agree fully.
Seth