Virginia Podcast Shares FOIA Docs that Unveil the State’s Corporate Bias Over the Public Good.
A recent Freedom of Information Act request to the Virginia Department of Professional and Occupational Regulation (DPOR) reveals critical lapses in the state's construction oversight. Our lives have been largely dedicated to exposing these lapses on our newest endeavor - the Rabbit Whole Podcast. We document our story from its inception to our regulatory investigation into how our custom home builder and DPOR misrepresented facts surrounding an unlicensed framing subcontractor, enabling the builder, Covenant Building and Design, to mask its violation and evade regulation.
The Incident
We entrusted Covenant Building and Design to construct our dream home. It seemed an ideal choice in the trendy Rountrey subdivision of Midlothian, known for its modern and traditional homes, reservoir access, and active community. The higher price tags and the booming construction in the area gave us a false sense of security that all work would comply with legal standards. The setting and the contractually defined obligation to build to the Virginia Code seemed to be a safe investment. This illusion shattered when severe HVAC issues caused the ceiling to collapse, resulting in extensive damage and health problems for our children. When the contractor refused to help, we turned to the Department of Professional and Occupational Regulation (DPOR) and filed a civil lawsuit against the builder.
DPOR took over a year to investigate and decided that although the newly constructed home was deficient in nearly every category, the findings were a unanimous “No Violation.” A Freedom of Information Act (FOIA) request we submitted revealed that DPOR's investigator had found unlicensed and under-licensed subcontractors and recommended sanctions and several counts against the builder. DPOR also found a contract violation, instructed the builder to sign a compliance statement, and imposed no sanction or remedial education. The DPOR compliance statement also preemptively protects the offending contractor from future complaints by any citizen with a similar claim until that date, nullifying the public’s consumer protections.
DPOR's Deregulation of Unlicensed Regulatory Violations for Contractors
The department openly acknowledges that compliance statements are a tool selectively used by the department as they see fit with no definable criteria. DPOR is almost boastful in its archaic assertion that a selectively applied privilege benefits the community as a whole rather than the favored few. The DPOR Director maintained in a letter and brief dated May 15th, 2024, that the staff brought the contractor into “immediate compliance” consistent with DPOR policies when he was offered a compliance statement. I am still unclear on what policy determines who receives compliance statements, and I have not found any written criteria or been offered any reference by DPOR.
The ceiling collapse, broken HVAC systems, leaks, and other severe defects were omitted from DPOR's final review, IFF hearing, and board meeting. DPOR disregarded 600 photographs of damages, inspection reports, and contractual violations, letting the contractor off without sanctions and a finding of “no violation,” which directly contradicts the investigative file. The adjudication director is quoted on the hearing transcript stating that DPOR did not have the photographic evidence, although FOIA requests proved otherwise. Even more tragic, the presiding officer at the IFF hearing noted in his case summary that he recommended a finding of no violation based on a lack of information and evidence. The FOIA file contained over 1200 documents and inspections, but the presiding officer only received a dozen to review, mainly submitted by the defense and not all relating directly to the case. One exhibit was incomplete and missing pages but was referenced as complete during the hearing. That same exhibit was again noted as incomplete in the presiding officer’s summary afterward. Another exhibit, an interoffice email, was not even addressed to us but was submitted into evidence by the defense and DPOR as a valid communication notifying us of a COVID-19 work stoppage.
A deeper look revealed more disturbing details about how a regulatory violation could escape oversight. Two years after our home was completed, Covenant Building and Design’s president was listed as the responsible contact of a new company with a nearly identical name to the unlicensed subcontractor in our case, with the addition of "Services Inc.” to the end of the business name. Because the name is so similar, DPOR listed this new entity as the framing company in our case, omitting the unlicensed subcontractor’s S corporation from the file. DPOR failed to check the company’s formation date-a full two years after the violation. Our concerns about widespread unlicensed work by the subcontractor at our home and throughout Chesterfield County were ignored. Although we had supplied the licensing information and clearly showed the mistake, the adjudication director informed us this would not be investigated and cited res judicata and estoppel. As explained to us by the DPOR Compliance Director, these are not legal parameters but judicial concepts that DPOR chose to implement. Not actual legal cause or law, but a courtesy extended based on legal concepts. Again, only for some.
Manipulation and Stonewalling
FOIA documents reveal that DPOR had preemptively communicated with the Governor's office about our persistent complaints that evidence was being ignored. Instead of addressing the concerns, DPOR’s Legislative Affairs Manager directed the Governor’s office and the ensuing response based on emails between department leaders and staff. Jennifer Sayegh, DPOR’s Policy and Legislative Affairs Manager instructed Governor Youngkin’s office in part: “Ms. Driffill has been communicating with Free Williams, Director of Adjudication, with the most recent emails having copied the Governor's office. Therefore, it seems appropriate for him to keep responding to her questions, rather than have the Governor's office or the Director's office jump in. I have asked him to BCC me on all communications moving forward, so I can track the case.”
We were not made aware of these interdepartmental discussions. After a telephone conversation about excluded evidence and the IFF hearing, the DPOR Compliance Director encouraged us to take our concerns to the Secretary of Labor. We took his advice on good faith only to discover by FOIA that this conversation was expected, and DPOR had preemptively taken steps to maintain control of the conversation, which we can only speculate was to avoid external review.
When we initially contacted the Labor Secretary's office, he claimed to involve DPOR attorneys in reviewing the case. It is my belief that he did not personally have any knowledge of my case as it was likely handled by staff; however, after we were made aware of the FOIA communications between the Secretary of Labor’s office and DPOR, we respectfully asked that Secretary Slater acknowledge if he had prior awareness of our case. Slater denied involvement and deflected inquiries to our attorney, claiming no involvement after weeks of giving him case documentation for review.
Shortly thereafter, Director Thota responded by letter with an attached summary report on May 14th, 2024. DPOR states no probable cause to investigate unlicensed subcontractors on page 3 of the document. Page 6 outlines that there was an unlicensed subcontractor. Page 7 incorrectly identifies that subcontractor as currently licensed, although that company went out of business and has no longer operated since early 2022. Covenant (the builder) has conceded that the two companies are, in fact, not the same company to a Chesterfield Circuit Court during legal proceedings for another civil case. If the so-called Department of Professional and Occupational Regulation responsible for registering business licenses incorrectly correlates two companies during an investigation, the only question I have is why?
Subsequent FOIA documents revealed communication between DPOR, the Secretary of Labor’s office, and Governor Youngkin’s office. Despite these exchanges, heavily redacted documents suggested a lack of genuine case review. Most discussions about our request for review did not cover policy and centered around managing our inquiries, allowing the blatant errors to persist.
The Bigger Picture
Our case underscores a broader issue impacting countless families unknowingly subjected to unlicensed and unsafe construction practices. Many tradesmen are equally concerned by DPOR’s subpar regulatory performance. Lou Spencer, who represented Plumbers & Gasfitters Local 5 at a town hall in 2021, described how the enforcement and licensing requirements were “like the Wild West,” in certain circumstances, job sites have become unsafe because of the work that unqualified individuals perform. This was taken directly from DPOR’s report on House Joint Resolution 561. More recent reports are, as of the date of this article, referenced on the DPOR site with broken links, more on that in future.
Exemptions for Contractors Vs. Consumer Recovery Funds in Virginia 2020-2024
DPOR has, in recent years, raised the regulatory exemption for construction from $5,000 in 2020 to $25,000 in 2023. They have simultaneously kept the recovery fund low with no increases and enough hoops in place to make it nearly inaccessible. With the current regulatory exemption at a higher threshold than the recovery fund, it’s not likely citizens will see any real benefit. Most will also likely need a win in a civil court to qualify. We don’t head to the DMV if we receive a ticket and want to take it to traffic court. In the same way, contractors should be referred to another avenue other than the licensing board for regulatory processes. These policies demonstrate the current administration’s leanings toward the rights of contractors/corporations over the consumer/citizen, leading to dangerous deregulation and erosion of consumer protection. The need for real estate ethics and improved home construction safety measures has never been more urgent.
Call to Action
We urge readers to share this story, engage with local representatives, and demand systemic change. Holding DPOR and developers accountable is crucial. Only through collective effort can we hope to implement the necessary reforms to prevent such injustices in the future.
For more updates and to join the fight for justice, subscribe to The Rabbit Whole Podcast and follow us on Instagram, Facebook, and X. Together, we can make a difference.
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Forst Consulting LLC Article:
"Buyer Beware When Hiring an Unlicensed Contractor Under New Virginia Bill." Forst Consulting LLC, 6 Sept. 2023, https://forstconsultingllc.com/construction-practices/hiring-an-unlicensed-contractor-under-new-virginia-bill/.
DPOR Website:
Virginia Department of Professional and Occupational Regulation. "Home." DPOR, www.dpor.virginia.gov.
DPOR November 19, 2021, Report:
"Evaluation of the Efficacy of the Commonwealth’s Occupational Licensing Laws for Construction Trades." Department of Professional and Occupational Regulation, 19 Nov. 2021. DPOR archives.
FOIA Request Made to DPOR on April 19, 2024:
"Freedom of Information Act Request to DPOR." Submitted by Author, 19 Apr. 2024. Received documentation includes regulatory and licensing information.
Letter from DPOR Director Thota Dated May 14, 2024:
Thota, J. "Letter Regarding Construction Licensing Issues." Received by A. Driffill, 14 May 2024.
Emails with the Secretary of Labor:
"Correspondence Regarding Occupational Licensing Laws." Email communication between A. Driffill and Secretary of Labor Slater, various dates in 2024.
Virginia Podcast Shares FOIA Docs that Unveil the State’s Corporate Bias Over the Public Good. by Andrea Driffill is licensed under CC BY-SA 4.0
