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CLB Minutes 01/15/2014 CONTRACTORS LICENSING BOARD Minutes January 15 , 2014 �. . F January 15,2014 4, 'V1 MINUTES OF THE ML' ,,ING 44, 49/0 OF THE9r OFoo /.04 COLLIER COUNTY CONTRACTOR 'NNG BOARD January 15, 2014 -0c Naples, Florida LET IT BE REMEMBERED, that the Collier County Contractors' Licensing Board, having conducted business herein, met on this date at 9:00 AM in REGULAR SESSION in Administrative Building "F," 3rd Floor, Collier County Government Complex, Naples, Florida, with the following Members present: Chairman: Richard Joslin / Vice Chair: Patrick White Members: °Michael Boyd 46(N5`19 Ronald Donino Terry Jerulle Kyle Lantz f Thomas Lykos — Gary McNally ORobert Meister eg"" ALSO PRESENT: Michael Ossorio — Supervisor, Contractors' Licensing Office Kevin Noell, Esq. —Assistant County Attorney James F. Morey, Esq. —Attorney for the Contractors' Licensing Board Reggie Smith—Licensing Compliance Officer Thomas Keegan —Licensing Compliance Officer 1 January 15,2014 Any person who decides to appeal a decision of this Board will need a record of the proceedings and may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the Appeal is to be based. I. ROLL CALL: Chairman Richard Joslin called the meeting to order at 9:06 AM and read the procedures to be followed to appeal a decision. Roll call was taken and a quorum was established. Nine voting members were present. II. AGENDA—ADDITIONS,DELETIONS, OR CHANGES: Addition: • Under Item VI, "New Business" o A. Election of Chair and Vice Chair—2014 Term III. APPROVAL OF AGENDA: Corrections: • Vice Chairman White noted the order of"New Business"and"Old Business" had been reversed on the Agenda. • The correct date of the next meeting is February 19, 2014 Vice Chairman Patrick White moved to approve the Agenda as amended. Terry Jerulle offered a Second in support of the motion. Carried unanimously, 9—0. IV. APPROVAL OF MINUTES—NOVEMBER 20, 2013: Gary McNally moved to approve the Minutes of the November 20, 2013 meeting as submitted. Thomas Lykos offered a Second in support of the motion. Carried unanimously, 9—0. V. DISCUSSION (None) VI. NEW BUSINESS: A. Election of Chair and Vice Chair—2014 Term The Floor was opened to nominations for the Office of Chairman. Terry Jerulle nominated Patrick White to serve as Chairman. Robert Meister offered a Second in support of the nomination. There were no other nominations. Patrick White accepted the nomination. Motion carried, 8— "Yes"/1 — "Abstention." Mr. White abstained from voting. 2 January 15,2014 Chairman White thanked Mr. Joslin for his many years of service to the Board. Chairman White opened the Floor to nominations for the Office of Vice Chair. • Terry Jerulle nominated Thomas Lykos to serve as Vice Chair. • Thomas Lykos nominated Terry Jerulle to serve as Vice Chair. Kyle Lantz offered a second in support of the nominations. There were no other nominations. Vote to elect Thomas Lykos: 6— "Yes"/2— "Opposed"/1— "Abstention." Mr. Lykos abstained from voting. The Floor was closed. VII. OLD BUSINESS A. Orders of the Board Thomas Lykos moved to approve authorizing the Chairman to sign the Orders of the Board. Gary McNally offered a Second in support of the motion. Carried unanimously, 9—0. (Note: With reference to the cases heard under Section VII, the individuals who testified were first sworn in by the Attorney for the Board.) B. Victor Treissa—Six-Month Credit Review (d/b/a Kitchen Installations of SWFL,LLC) Victor Triessa stated: • He was able to stop the Bankruptcy proceedings and sold his home. • He confirmed the closing date was January 6, 2014. • Sale of home will increase his Credit Report score by approximately 40 points. • Although the Current Credit Report did not reflect sale of property, his score was still higher than the past Credit Report reviewed by the Board. Michael Ossorio stated: • Mr. Triessa has appeared before the Board on two occasions • Have not received any complaints • The Business Credit Report is in order • Business has been open for 12 months • Recommendation: terminate probation—Business Credit Report meets the 144,eriertircriteria Terry Jerulle asked Mr. Triessa how he would handle the remaining debt. Victor Triessa replied the medical bills would be paid in a lump sum since the hospital would not accept installments. 3 January 15,2014 Richard Joslin moved to approve accepting the Credit Report and terminating the probation. Ronald Donino offered a Second in support of the motion. Carried unanimously, 9—0. C. Nathan Hinz—Six-Month Credit Review (d/b/a Nathan Contracting Services, LLC) It was noted Mr. Hinz was not present. Michael Ossorio stated Mr. Hinz had been notified of the Hearing. He further stated Mr. Hinz was on probation. He no longer conducts business in Collier County. Mr. Hinz is in violation of the Board's Order to submit a current Credit Report. Recommendation: Suspend the license. Vice Chairman Thomas Lykos moved to approve suspending the license of Nathan Hinz. Second by Terry Jerulle. Carried unanimously, 9—0. D. Mico Ugrica, Jr.—Review of Verification of Construction Experience (d/b/a Zen Group, LLC) Mico "Mike" Ugrica and his wife,Alexandra,were sworn in. Michael Ossorio stated Mr. Ugrica took and passed the Building Contractor exam and the Business Procedures test, but there were questions concerning his experience. He further stated Mr. Ugrica applied for a Building Contractors license which requires 48 months' experience. James F. Morey, Esq., Counsel to the Contractors' Licensing Board, cited from Section 22-184, "Standards for the Issuance or Denial of a Certificate of Competency," as follows: (b) "Referral of application to Contractor's Licensing Board for decision. If it does not appear on the face of the application that the applicant has complied with the requirements of this Article so as to be eligible for a Certificate of Competency, then the Contractors' Licensing Supervisor shall refer the application to the Contractors' Licensing Board for a decision regarding approval or denial of the application." Mr. Morey listed the criteria necessary to assess the experience of an Applicant: • Affidavits from former employers indicating the years of service; • Copies of Certificates of Competency from other jurisdictions; • Affidavits of Building Supervisors from other jurisdictions; • Affidavits from a Union organization; • Affidavits from any other source within a particular Trade. 4 January 15,2014 The purpose is to gather information to substantiate the relevant experience. He further cited from Section 22-162, "Definitions and Contractor Qualifications," as follows: "Building Contractor requires 48 months experience with a passing grade on an approved test and a Business and Law test and means a contractor whose services are limited to construction of commercial buildings and single-dwelling or multiple-dwelling residential buildings, which commercial or residential buildings do not exceed three stories in height, and accessory use structures in connection therewith or a contractor whose services are limited to remodeling, repair, or improvement of any size building if the services do not affect the structural members of the building." Michael Ossorio stated a Commercial Building Contractor must show that he/she has done commercial work up to three stories but there are no height restrictions if working on a condominium doing non-structural work. Kyle Lantz noted the Applicant was required to provide four years of experience and asked if all four years was limited to commercial work. Michael Ossorio stated he would review a resume to determine if the Applicant had supervisory (foreman) experience of at least one year's duration. He further stated residential experience is also reviewed but a Commercial Building Contractor must prove that he/she has worked on commercial jobsites. Chairman White asked the Applicant if he could add anything further since Staff has determined the materials submitted did not adequately substantiate the required type of experience. Mico Ugrica stated: • He and his family moved to Collier County from Canada last year; • He has been a Contractor for the past 15 years • He contacted a few former clients in Canada who sent letters and photographs of the work that he had performed on three and four-story buildings • He stated multi-family buildings are considered to be "commercial" construction in Canada (Note: The original documents were provided to the Board to review by the Applicant during the course of the Hearing.) Michael Ossorio cited from Section 22-184, "Standards for the Issuance or Denial of a Certificate of Competency," as follows: (c) "When an application is referred to the Contractors' Licensing Board, the Board shall take testimony from the Applicant and shall consider 5 January 15,2014 other relevant evidence regarding whether the application meets the requirements of this division. Upon the evidence presented by the applicant and the contractor licensing supervisor, the Contractors' Licensing Board shall determine whether the applicant is qualified or unqualified for the trade in which application has been made. Findings of Fact and Conclusions of Law regarding the approval or denial of the application shall be made by the Contractors' Licensing Board. The Board may consider the applicant's relevant recent experience in the specific trade and, based upon such experience, may waive testing requirements if convinced that the applicant is qualified by experience whereby such competency testing would be superfluous (1) If the Contractors' Licensing Board determines that an applicant is qualified for a particular type of Certificate of Competency, a competency card shall be issued by the Contractor Licensing Supervisor or his/her designee." Mr. Ossorio contacted the Toronto, Canada, and spoke with the Licensing Manager. In Toronto, if an applicant wishes to do work,he/she sits with the Building Marshall who asks a series of questions. If the applicant meets the criteria, he/she will be issued a license. Mr. Ossorio was informed that Mr. Ugrica had been licensed in Toronto for a period of one year. The Building Official in Toronto confirmed that a either a homeowner or a Contractor could pull an Owner/Builder Permit. Chairman White asked Mr. Ugrica to explain what else he had done in the past nine years in addition to the one year in Toronto. Mr. Ugrica responded that the majority of homes he worked on were"flipped." He pulled permits as an"owner"because it was his property. He stated the jobs from his clients varied from small renovations (adding an addition)to complete rebuilds where the original structure was demolished and rebuilt. He further stated he also did restorations of historic properties. He explained when he worked for a client, the homeowner or designer or architect would pull the permit and present him with approved plans for which he would provide a quote. If the quote was accepted, the job would proceed. Chairman White asked the Applicant to describe his experience from 2003 to 2013. Mr. Ugrica stated: • 2003 —he built a detached garage for a bungalow as an owner/builder • 2004—he worked on a complete rebuild of a single-family home o There were water problems which necessitated waterproofing the exterior of the basement o Replaced rotten bench footers o Remodeled the kitchen and bathrooms 6 January 15,2014 • 2005 - A complete addition(foundation to third floor) was built onto a Victorian-style home in Toronto and dormer work was also completed • 2006/2007—began working on several four-story commercials buildings in downtown Toronto It was noted the documentation submitted covered the period from 2010 to 2012. Alexandra Ugrica stated the family emigrated from Canada in 2012 and the process took over a year. She explained her husband was not allowed to work while applying for a Visa. Chairman White requested information for the period from 2008 through 2012. Kyle Lantz stated that, after reviewing the documentation presented, while he was convinced the Applicant was qualified as a Residential Contractor, he did not see enough "commercial" experience. Mrs. Ugrica explained one of the clients was a Convention Center which was commercial. Terry Jerulle asked if"time was of the essence" concerning the Visa Application. Mrs. Ugrica replied that her husband was subject to stringent guidelines and, as a Contractor, he is required to employ U.S. citizens. They are required to file taxes but have no income to report. Mr. Jerulle suggested they return with copies of building permits, a resume, a timeline, and letters from an architect and/or structural engineer to satisfy the requirements. It was noted the Applicant's documentation included a letter from an engineering inspector confirming that the work done by Mr. Ugrica had passed inspection. Mico Ugrica stated it was very difficult to obtain copies of building permits due to the strict privacy laws in Canada. It took 60 days to obtain a copy of one permit where he was the owner/builder. Richard Joslin stated the permit was pulled by Mr. Ugrica as an owner/builder but not as the Building Contractor; it did not prove that he did the renovations himself. Alexandra Ugrica explained the process: • Anyone may pull a permit—it is not limited to an owner/architect/Contractor; o with a letter of authorization, she could pull a permit for her neighbor • Work is approved by an inspector once it has been completed • An Inspector does not verify who completed the work—only that it had been done correctly and has met Code • Her husband preferred that either his clients or their architects or designers pulled the building permit • Even if permits for the commercial work could be obtain, Mr. Ugrica's name would not be listed on the document 7 January 15,2014 . • Canadian law changed in 2011 and required a licensed architect submit drawings for approval. The Architect's license would be noted on the permit. Thomas Lykos explained that Collier County requires a licensed Contractor to pull a permit for a commercial job, unlike a residential construction where an owner-builder is allowed to obtain a permit. To obtain a Building Contractor's license, the Applicant must be familiar with the process because he will be responsible to pull the permits for his projects. The Contractor's name and his license number will appear on a permit. Chairman White explained the issue was to demonstrate relevant commercial construction experience. He stated there was more than adequate proof of Mr. Ugrica's residential construction experience. He asked for an explanation of any commercial-type construction projects that were completed during the required 48-month period of time. Mica Ugrica outlined additional commercial experience: • From 2010 to 2011 —the Convention Center project took 18 months • Address: 858 Davenport— 10 units—took 2 years—structural underpinning repairs—the property backed onto a ravine and was over 100 years old • 2006: 333 Harvard—built three 820-foot units—three-stories high which took 7 to 8-months to complete—the new units were additions to an existing building—each unit contained 3-bedrooms and 2-bathrooms (high end) Description of work completed: • Excavated from below the frost line and poured the foundation • Reinforced everything • 12-inch concrete block to above grade • First floor unit had a radiant hot-water flooring system • Because the building was located in a residential area, the new construction was required to mirror the historic style of construction (double-brick) and comply with Code • Building had a flat roof with metal coping Mico Ugrica stated as the General Contractor for the job, his responsibilities including: • hiring sub-contractors ("sub-Trades"), i.e., excavators, masons, Master electricians • supervising foundation pours and pushed wheelbarrows when necessary; • supervising installation of all windows/doors/balconies; • supervising installation of HVAC system for each unit (natural gas); • supervising installation of plumbing and electrical; • he did the accounting(client paid him and he paid the subs); • maintained contact with the client; • dealt with the Building Inspector when needed; 8 January 15,2014 • adhered to stringent Fire Code requirements—scheduled when wiring would be roughed-in, speaker systems throughout the units, pole stations, etc. (Fire Department's policy is to deal directly with building owners at inspection) • scheduled installation of insulation—spray and"pink"—dry walled, taped, plastered— • scheduled installation of finishes and trims, i.e., hardwood flooring (3/4-inch maple), marble in baths (countertops/floors) He stated he owned a small company and he was always on-site because he handled only one job at a time. His list of clients is small but they were all repeat customers. Gary McNally asked the Applicant to explain his formal training and educational background. Mico Ugrica stated his father was a builder and he grew up on construction sites; he began helping his father when he was seven years old. He further stated, "I don't know anything else." He did not have any"formal" education; his training was hands-on. Additional discussion ensued. Kyle Lantz stated he was more confident that the Applicant was qualified. Michael Ossorio stated he would not offer a recommendation. Terry Jerulle suggested that he, if it he was not required to obtain a Building Contractor's license for immigration purposes, Mr. Ugrica could apply for a Residential Contractor's License which could be issued immediately. Michael Ossorio confirmed if the Applicant could provide a list of residential construction job, the Board could issue a license. Mr. Ugrica could later re-apply for a Building Contractor's License when his documentation was complete. Chairman White explained if the Board issued a Building Contractor's license, it CovL°woJairthe restricted to "residential only"until the Applicant was able to amend the original application and provide the additional documentation, i.e., sworn Affidavits demonstrating the degree of commercial experience, etc. Mr. Ossorio explained it would be simpler to issue a Residential Contractor's license which could be registered with the State. If he chose to upgrade it, he would re-apply to the Board, provide the documentation, and a Building Contractor's license could be issued which would also be registered with the State. He further explained there is a distinction between the two licenses and Mr. Ugrica should register accordingly to avoid confusion concerning his qualifications. Vice Chairman Lykos noted the Applicant used the correct terminology and based on the Applicant's vocabulary and description of the work performed, it sounded as if he had the proper experience. He stated he had enough confidence in the Applicant to approve issuing a license. Chairman White and Robert Meister agreed. Kyle Lantz moved to approve Mica Ugrica's application for a license as a Building Contractor. 9 January 15,2014 Discussion: Terry Jerulle stated part of the responsibilities of an Applicant is to provide documentation and data. The application was not complete because the correct data was not provided to prove that he had the commercial experience. He further stated he would only approve issuing a license as a Residential Contractor. Chairman White noted the standard allows the Board to hear testimony, under oath, as well as written documentation. He asked Mr. Ossorio if the Board could issue a license with a probationary period of six months. Michael Ossorio stated the Board has never issued a new license with probation. He was not sure how the State would react—it could delay the registration by weeks. Chairman White called for a vote on the motion made by Mr. Lantz to approve Mica Ugrica's application for a Building Contractor's license. Motion carried, 8— "Yes"/1 — "Opposed." Mr. Jerulle was opposed. E. Paul Bolcavage—Review of Credit Report (d/b/a Starfish Electric & Home Services,LLC) Paul Bolcavage stated his debts were personal caused by the downturn in the economy. Michael Ossorio stated because his business credit was less than 12 months, the personal credit must be considered. He further stated Mr. Bolcavage met the criteria as an Electrical Contractor. Kyle Lantz asked what score was required. Michael Ossorio stated he has been in contact with the Department of Business- Professional Relations. His target score is 660. The applicant has been licensed in Miami-Dade. He has been licensed for years in Pennsylvania. The Applicant's score is 626. Vice Chairman Lykos moved to approve Paul Bolcavage's application for a license as an Electrical Contractor. Kyle Lantz offered a Second in support of the motion. Carried unanimously, 9— BREAK: 10:20 AM RECONVENED: 10:31 AM VIII. PUBLIC HEARING: (Note: Regarding case heard under Section VIII, the individuals who testified were first sworn in by the Attorney for the Board.) 10 January 15,2014 A. Case#2014-01: BCC vs. Mario Rodriguez, d/b/a "K.C. Tiles & Marble, Inc." Chairman White briefly outlined the order of the proceedings to be followed: • Open the Public Hearing; • Swear the witnesses; • Accept any evidence from the parties; • The County will present its "Opening Statement;" • The Respondent will present his/her"Opening Statement;" • The County will present its "Case in Chief;" • The Respondent will present his/her defense; • The County may offer any rebuttal; • Each Party may present a"Closing Statement," • The Public Hearing will conclude. • The Board will close the Public Hearing and begin deliberations. • The Board's Attorney will give a"Charge"to the Board, similar to the Charge given to a Jury, setting out the parameters on which the decision will be based. • During deliberations,the Board can request additional information and clarification from the parties. • The Board will decide two different issues: o First, whether the Respondent is guilty of the offense as charged in the Administrative Complaint. o A vote will be taken on the issue. o Second, if the Respondent is found guilty,the Board will decide the sanctions to be imposed. • The Board's Attorney will advise the Board concerning the sanctions which may be imposed and the factors to be considered. • The Board will discuss the sanctions and vote. • The Chair will orally report the decision of the Board. • The Final Order will include the complete details as required under State laws and procedures. Reggie Smith, Licensing Compliance Officer, requested to enter into evidence the packet of infoiination previously provided to the Board Members. Richard Joslin moved to open the Public Hearing in Case No. 2014-01: The Board of County Commissioners vs. Mario Rodriguez, d/b/a "K. C. Tiles & Marble,Inc.,"License No.: 19105 (Tile and Marble Contractor) and License No. 21273 (Masonry Contractor), and to enter the information packet into evidence as County's Exhibit "1." Vice Chairman Thomas Lykos offered a Second in support of the motion. Carried unanimously, 9—0. It was noted the Respondent, Mario Rodriguez, did not offer any documents to be admitted into evidence. 11 January 15,2014 Reggie Smith presented the County's "Opening Statement:" • The County is prepared to show that Mario Rodriguez violated Ordinance #90-105, as amended, Section 22-201(2) as follows: "Contracting to do any work outside the scope of his/her competency as listed on his/her competency card and as defined in the Ordinance or as restricted by the Contractors'Licensing Board." Address: 1365 47th Avenue NE,Naples, Florida • The County is also prepared to show that Mario Rodriguez violated Ordinance#90-105, as amended, Section 22-201(6) as follows: "Disregards or violates, in the performance of his/her contracting business in the County, any of the building, safety, health insurance, or Workers' Compensation laws of the State or Ordinances of the County"by failing to secure and maintain Workers' Compensation insurance for his employees working at 1365 47th Avenue NE,Naples, Florida. Respondent,Mario Rodriguez,presented his "Opening Statement:" • There was an on-going legal case. • The Corporation and Mr. Trujillo, President, are fighting the charge of a of Workers' Compensation violation in Court. • It is our position that Robert Wiley was not our employee and it was not our jobsite. • We disagree with the findings of the Workers' Compensation Board investigation. • He was not sure whether the case would be heard in Court or during an Administrative Hearing. Chairman White asked the Respondent if he had anything to add concerning the Scope of Work issue. The Respondent stated he was not aware that pouring and forming concrete was out of the scope of work of his license. He has a Masonry Contractor's license and thought pouring concrete was allowed under his license. He further stated he was not contesting the violation concerning Scope of Work. County's "Case in Chief:" • On June 27, 2013, Reggie Smith received a phone call concerning an accidental death of a worker at a construction site at 1365 47th Avenue NE in Naples. • The new home construction was being built by Ash-Ann Homes, Inc., qualified by Ariel Gonzalez, Certified General Contractor, License Number#GCG-1510731. • A lightning strike occurred at the jobsite approximately 1:00 PM on June 26, 2013. • During the site visit, he obtained information from Ariel Gonzalez, Mario Rodriguez, and Workers' Compensation Investigator Jack Gumph for the State of Florida. 12 January 15,2014 • The deceased and an injured employee appeared to be working for K. C. Tiles &Marble, Inc., which was qualified by Mario Rodriguez. • K. C. Tiles &Marble, Inc. had been hired to perform concrete forming and placing. • K. C. Tiles &Marble, Inc. held a Masonry Contractor license and a Tile and Marble Contractor license through Collier County. • At the jobsite,he observed and photographed equipment in place for concrete forming and placing. • Mr. Smith informed Investigator Gumph that the case would be reviewed by the Contractors' Licensing Office Supervisor, Michael Ossorio, for two violations, i.e, working outside the scope of a license and Workers' Compensation insurance violation. Ariel Gonzalez was called as a Witness for the County. Reggie Smith questioned Mr. Gonzalez: Q. Are you a State-certified General Contractor and holder of License Number #GCG-1510731, licensed since 2006? A. Yes. Q. Are you the Qualifier for Ash-Ann Homes, Inc.? A. Yes. Q. Are you familiar with the newly constructed home located at 1365 47th Avenue NE in Naples, Florida, built by Ash-Ann Homes, Inc.? A. Yes. Q. (Reference: Exhibit E-32) Is this the home construction site located at 1365 47th Avenue,NE? A. Yes. Q. Did you hire K. C. Tiles & Marble, Inc. to perform concrete foiniing and placing at this jobsite? A. Yes? Q. Whom did you contract with to arrange the concrete work? What person did you actually make a contract with to perform the concrete work? A. Filmon Cendejas. Q. Were you aware that K. C. Tiles &Marble, Inc. did not have the required licensing to perform this work? A. No. Q. If you had known that K. C. Tiles & Marble, Inc. was not licensed to perform the concrete work, would you have hired them? A. No. Thank you very much. Chairman White asked the Respondent if he had any questions for the witness and the response was, "No." Jack Gumph, Senior Compliance Investigator—Division of Workers' Compensation for the State of Florida was called as a Witness for the County. 13 January 15,2014 Reggie Smith questioned Mr. Gumph: Q. How many years have you held this title? A. Four years. Q. Did you or do you have an active Workers' Compensation investigation concerning the address of 1365 47th Avenue NE,Naples, Florida? A. Yes, I do. As the Board does have the information in its packet, as Mr. Rodriguez has stated, there are two forthcoming cases with the State. The first is the Division of Workers' Compensation civil action and there is a subsequent criminal action in the Twentieth Judicial District. Chairman White: "Those are both circuit court proceedings? A. (Gumph) The first is a civil action with the State of Florida Division of Worker's Compensation in Tallahassee. Chairman White: "That's an agency action,then? Administrative?" A. (Gumph) Yes, sir. The second is ... Chairman White: "A criminal which, of course, is ..." Reggie Smith resumed questioning Mr. Gumph: Q. Who does your investigation concern? A. The investigation concerns K. C. Tiles and Marble, Inc. Q. (Reference: Exhibits E-39 through E-69) Is this the State's Workers' Compensation Investigation Report#13-172-D7 that you and your co-worker, Investigator Aysia Snodgrass, compiled and submitted for review? A. It is. Q. Can you please advise the Board of your investigation and findings? A. I am aware the Board has a copy of the State's investigative file and narrative. It is quite exhaustive. The information contained was that, on June 27, 2013, I was contacted by my office to go to the address in Golden Gate Estates to assist Investigator Snodgrass with the investigation. I did go to the location. During the course of the investigation, I spoke to certain individuals at the job site which is in your narrative. Based on information provided at interviews, this case was provided to the Legal Division of the State of Florida Division of Workers' Compensation in Tallahassee which subsequently recommended the issuance of a"Stop Work" Order to K. C. Tiles and Marble, Inc. for the violation of failure to obtain Workers' Compensation insurance. Chairman White informed Mr. Rodriguez that he would have an opportunity to cross-examine the Witness. Reggie Smith resumed questioning Mr. Gumph: Q. While you were on site on June 27th, I met you and you had interviewed specific persons. Can you tell me who you interviewed? 14 January 15,2014 A. The interviews on site were conducted with Mario Rodriguez, Filemon Cendejas who was the Project Manager/Supervisor for K. C. Tiles, Jose Cruz who was an employee of K. C. Tiles &Marble who was on site, Arturo Vallejo who was an employee of K. C. Tiles &Marble who was on site, Ariel Gonzalez who was the General Contractor for Ash-Ann Homes who was on site. Q. In reference to your interview with Filemon Cendejas, can you tell the Board what questions you asked Filemon Cendejas and his answers pertaining to the employment of Jose Cruz and Robert Wiley? A. Specifically, to the question of Jose Cruz, that Jose Cruz had submitted an application at one point to K. C. Tiles and was turned down. He was provided a second application, filled it out, and provided it to Filemon Cendejas who inadvertently failed to take it to the office. Then the incident happened with the lightning strike, at which time he [Filemon Cendejas] subsequently submitted it to the office. As to Mr. Wiley, Filemon Cendejas stated to me that Mr. Wiley showed up on the jobsite on the previous Monday. He was told to go to the office of K. C. Tiles &Marble to fill out an application. Cendejas left the jobsite and went to another jobsite. When he came back, Mr. Wiley was working and he assumed Mr. Wiley had gone to the office, filled out the application, and was given the "okay" to come back. Mr. Wiley worked for the rest of that Monday, Tuesday, and Wednesday until the lightning strike caused his death. Q. At any point in time,were you made aware of any filings for Workers' Compensation insurance made for either Mr. Wiley or Mr. Cruz? A. Yes, I subsequently gained knowledge that, on the date of the lightning strike, Filemon Cendejas went to the office of K. C. Tiles &Marble and provide the completed application. Subsequently on that date, the application was submitted to the PEO/Leasing Company for Mr. Cruz. Q. Just to be clear—that was after the accident occurred? A. That was after the accident—correct. Q. Can you explain what is known as a"time stamp?" A. When an application is provided to a PEO/Leasing Company, it is usually done either by email or by fax. I require them to provide the time-stamps as to when this occurs. Q. And was there time stamp information with this application? A. There was a time stamp with this application. It was somewhere around 5:00 or 5:30 that afternoon which was the day after the incident with the lightning strike. Thank you, Mr. Gumph. Chairman White asked the Respondent if he had any questions to ask Mr. Gumph. The Respondent had none. 15 January 15,2014 Vice Chairman Lykos: "Mr. Gumph, to the best of your recollection, was there an existing umbrella-type Workers' Comp policy or were all the employees of K. C. Tiles and Marble insured through a PEO? A. All were insured through a PEO. The County's "Case in Chief'was concluded. Chairman White asked Mr. Rodriguez to present his defense. Mario Rodriguez stated: • As I stated, Robert Wiley was not our employee at the time and that was not our jobsite. • Mr. Cendejas brought Mr. Wiley there without our knowledge. • He was very aware of our ... how we use staff leasing ... that everybody is supposed to apply and be approved by the staff leasing before they are put to work. • I think ... he didn't follow procedures because maybe he had other intentions and we're trying to prove that in Court now. Chairman White questioned the Respondent: Q. You are trying to prove that in the civil action and in the criminal case? A. I believe so, yes. Q. When you say `court,' I believe the only thing I understand that is technically in court is the criminal matter. A. I'm sorry, yes. Q. And there's the civil action with the State agency. A. Yes, in both. Yes. Q. Is there anything else that you have relative to the defense of the Workers' Comp action? A. We did have Workers' Comp coverage through the staff leasing company at the time. We were trying to do the right thing. But it was never submitted ... the application was never submitted ... Mr. Wiley never came in to fill out an application. We didn't even know about Mr. Wiley until after the accident. Q. It's your standard and practice to require employees to fill out an application that is then submitted to staff leasing. Is there also a requirement that the form, once it is completed, is then brought back and turned in to the foreman/supervisor/ project manager? Is that your custom and practice? A. It could be ... or directly to the office. Either way, it needs to be submitted to the staff leasing and approved by them. Richard Joslin questioned the Respondent: Q. What kind of document verification do you have when you hire an employee that you are going to send to staff leasing that the man, if he shows up at a job, and you want him to go and fill out the paperwork? Who handles making sure that this happens? Is that your supervisor who is supposed to do that? Or do you put that responsibility upon the person who wants to work? 16 January 15,2014 A. Both, actually. Mr. Wiley was supposed to come in and fill out the application and it was supposed to be approved before starting to work. Chairman White questioned the Respondent: Q. You have indicated that you do not believe that Mr. Wiley was an employee. What about with respect to Mr. Cruz? A. Well,with Mr. Cruz—it was ongoing because he submitted the application once and it was declined—was something wrong with the date on it. And then he filled it [out] a second time ... where Mr. Cendejas said that he had the application and he was going to bring it back to the office but he never did or, I mean, ... or he did after the incident. Q. So you had the completed application from Mr. Cruz—Mr. Cendejas did—but had not turned it in to staff leasing prior to that? A. Yes, he said he forgot it in his truck. Terry Jerulle questioned the Respondent: Q. Just so I understand. Mr. Wiley and Mr. Cruz were on the job site that day ... A. Yes. Q. ... pouring the concrete beams? A. Forming them, yes. Q. Forming the concrete beams for K. C. Tiles &Marble? A. Well, we weren't even aware of that jobsite at that time. Until after the accident, we weren't aware of that jobsite. Q. I thought you admitted earlier that ... A. I admitted that we did form and pour concrete at Ash-Ann Homes' other job site at 18th Street. And we did pay a fine for that. Because I wasn't aware that it was not covered under my Masonry license. Q. So you are contending that you had workers on a job site that you were not aware of? A. Exactly, yes. Q And those workers were performing work—forming a tie-beam outside your license? A. Yes. Q. And you are the Qualifier of the company? A. I am. Vice Chairman Lykos questioned the Respondent: Q. Can you tell me, to the best of your recollection, how many days Mr. Wiley and Mr. Cruz were actually working on that jobsite before the accident? A. I think it was—in the statement, it was three days that there were there—since Monday. Monday through Wednesday of that week. Q. The accident occurred on a Wednesday? A. On a Wednesday, yes. Q. Do you acknowledge that Filemon Cendejas was your employee? A. Yes. 17 January 15,2014 Q. And it is your testimony today that Mr. Cendejas was responsible for hiring employees for your company? A. Not completely, not without full authorization and not without getting—going through the application process and being approved by the staff leasing company. He was aware of that procedure. Q. So your testimony is that Mr. Cendejas was your employee ... A. Yes. Q. ... and that he had some level of involvement in hiring new employees ... A. Yes. Q. ... but that process extended beyond his job description? A. Correct, yes. Chairman White noted the distinction was important because of the narrative on Exhibit E-42 provided by Mr. Gumph of the Workers' Compensation agency. It stated that Mr. Rodriguez said Filemon Candej as ran the masonry jobs and had the authority to hire and fire employees on behalf of K. C. Tiles and Marble, Inc. Mr. Rodriguez made the distinction that Mr. Candejas had the authority as long as he complied with their policy and procedures to ensure that an application was filed, approved, and Workers' Compensation insurance existed for that person as an employee. Q. Is that correct? A. Yes, it is, sir. Kyle Lantz questioned the Respondent: Q. You are saying you didn't know you had a job at this address? A. Right. Q. Including the block work or just the tiling? A. None of it. We didn't know about that jobsite. Chairman White: "His statement in regards to ... Will his admission for the Scope of Work count on a house at 18th Street ... where the Workers' Compensation issues are on a house that's on 47th Avenue." Kyle Lantz resumed questioning the Respondent: Q. You have admitted that you have done block work and tiling work? A. Yes. Q. How do you bill? Do you get money upfront? Do you get draws after the block before you begin the tiling? Do you just wait until the job is complete? How do you do that? A. It could change. Usually, an estimate upfront and payment when the job is complete. Q. An estimate? So you give them an estimate upfront and you don't get a dime until the job is complete? 18 January 15,2014 A. Yes .... or ... or sometimes, partially. I'm not completely sure. Q. Okay. So the other job that you did ... that you admitted doing ... how did you bill for that? Did you get a block draw and then a tiling draw or an upfront draw or you got a final payment? A. I can't recall those details. I don't remember. Q. And for this particular job, you never received any payment? A. No. Chairman White: "The one on 47th Avenue?" Respondent: "Right." Vice Chairman Lykos questioned the Respondent: Q. Did your company sign a contract with Ash-Ann Homes? Did your company have a written contract with Ash-Ann Homes for that project? For the project in question where the accident occurred. (47th Avenue) A. No, we don't. Q. You didn't have a contract for that project? A. No. Terry Jerulle questioned the Respondent: Q. Was Mr. Cruz paid that week by K. C. Tiles and Marble, Inc.? A. I'm not sure. I can't recall. I'd have to find out. Q. How about Mr. Cendejas—was he paid? A. That week? I'm not sure of the details, either. Q. You are the Qualifier of the company? A. Yes, I am. Q. And you're responsible for those aspects of the company? A. Not on a daily basis. But I keep track of, you know, I stay informed. Q. But you don't know if those two people have been paid by K. C. Tiles and Marble for those dates—Monday, Tuesday, and Wednesday? A. Well, no, because we didn't know about that jobsite. We weren't aware of it. Q. I didn't ask if K. C. Tiles & Marble was paid—I asked if K. C. Tiles &Marble paid its employees that week. Chairman White asked if the two men were paid; did their pay include work for the house on 47th Avenue or if it was only for work that may have been performed on 18th Street for that week. A. I don't have those details. Kyle Lantz: "This job now has—I will assume—it's not stalled and the tie-beam has been poured and people have moved on? Am I correct?" Michael Ossorio: "The homeowner flew in from California and fired Ash-Ann Homes, Inc. He obtained an owner/builder permit and proceeded with the job." 19 January 15,2014 Kyle Lantz questioned the Respondent: Q. The blocks that were installed on the site and the rebar that was installed on the site—who paid for that? A. I don't know. Q. Can you say if it was K. C. Tiles & Marble? A. No, I know it wasn't. Q. So you did not pay for the block? You didn't pay for the rebar? A. No. Q. Typically when you do those jobs, do you supply materials or just the labor? A. It could be either way. The Masonry division that we were doing with Mr. Cendejas was fairly new. It had only been two or three months, I believe. So we didn't have a long, established procedure yet. We were starting to do some work but ... you know .... Q. So the other job you did—did you pay for the materials or just labor? A. I don't recall. I don't recall exactly on that. Q. Do you know much about your business? A. I do ... but ... Richard Joslin questioned the Respondent: Q. Was there a contract for the job on 18th Street? Did you have a contract for that job to do that work? A. There was an estimate accepted ... an estimate on that one, yes. Q. And it included the same basic things that you were performing at 18th ... and you don't know what was performed at 47th ... they were doing the same work? A. Yes. Q. But you had a contract for that job? A. Yes. Chairman White asked Mr. Rodriguez if he had any concluding comments on his defense and the response was, "No." Reggie Smith questioned the Respondent: Q. How long as Filemon Cendejas been working for K. C. Tiles and Marble? A. A few months, I can't recall exactly the ... it's only been a few months. I don't remember the date exactly ... Q. Maybe about the timeframe of April, 2013? A. It could be. Q. The incident took place in late June. Mr. Cendejas' payroll ... Is he paid on a weekly basis as a field supervisor or is he paid by piece work as per job? A. No, he's paid a salary. It's been according to the work flow. I don't believe it's been regular pay. We are trying to get the Masonry division going. We didn't have a steady work flow to be doing regular, weekly pay. Q. Would you estimate that he is working on a weekly basis and getting paid on a weekly or bi-weekly basis for his supervisory application? 20 January 15,2014 A. I'm not sure of the details. I just want to clarify something—I don't know some of these details because I haven't been there every day. My father is getting elderly and his health has gone down. For the past year, I have been working on the east coast, taking care of my parents and trying to help him with his business. So I have left those daily details to Mr. Trujillo. That's why I haven't been here every day, so I don't know all the little details. Another thing I want to mention is we're going to be moving, actually some time in the summer—because of the family health situation—to the east coast. It was my intention anyway to cancel these two licenses this year since I'm not directly involved with what's going on every day. That's the reason why I don't know all the details. Kyle Lantz questioned the Respondent: Q. Your project manager—Filemon Candejas—he started working in April and this incident happened in June. And you're saying you don't know how you got the job or if he was doing it as a side job or what the deal was? You just don't know about it? A. Right. Q. Is he—is he still employed by you? A. No. Q. When was his termination? A. Right after the incident. Richard Joslin questioned the Respondent: Q. Who actually hired him? A. Mr. Trujillo. Q. The owner of K. C. Tiles & Marble, Inc.? A. Yes. Michael Ossorio: "We have no more questions for Mr. Rodriguez." The Respondent's Defense was concluded. Ariel Gonzalez, Witness for the County, was recalled to testify. He was reminded that he was still under oath. Kyle Lantz questioned the Witness: Q. You hired K. C. Tiles & Marble, Inc. to do block work and tie-beam at a previous job. Correct? A. Yes. Q. How did you pay them? A. I paid—full pay. Just one pay at the end of the job. Q. At the end of the job? A. Yes. 21 January 15,2014 Q. Did they supply the materials and labor or just the labor? A. Just the labor. Q. And that was the same deal on this particular job—you were hiring them just for the labor? A. Yes. Chairman White: "So on both 18th Street and 47th Avenue—it was the same Arrangement—they provided the labor and you provided the materials, and they were paid at the end? A. Yes, correct. Kyle Lantz resumed questioning the Witness: Q. Who was it that you dealt with at K. C. Tiles &Marble, Inc.? A. Filemon Cendej as. Q. For everything? So for the first job, you handled the contract ... A. Okay. The clients—both are families—the 18th and the 47th. The family is a friend of mine. And when I talked to Filemon the first time, before I started the first job, I asked him about his company. I have known Filemon for about two or three years. He said he worked for K. C. Tiles & Marble. I talked to the office for K. C. Tiles & Marble before the first job and then we agreed about the prices—just for square feet—for the labor only. Vice Chairman Lykos questioned the Witness: Q. Do you have a written, executed contract with K. C. Tiles & Marble for the home at 1365 47th Avenue? A. No. I just do a verbal agreement. Q. So you don't have any written agreements on that house or ... what about the house on 18th Street? A. In writing? Q. Right. A. No, no, I don't have in writing. Chairman White: "What about the house on 18th Street? Do you have a written contract for the house on 18th Street?" A. Yes. Did you say—writing? Q. Yes. A. No, no, we don't have nothing in writing. Not on the first and not on the second one. Both are verbal. Terry Jerulle questioned the Witness: Q. On the house on 18th Street—was that started and completed first? A. Yes. Q. Can you just help me understand—you had foundation footings? A. Yes. Foundation, blocks, and footings. Q. And K. C. Tiles and Marble did all of that? A. All of that. 22 January 15,2014 Q. When they poured the foundation, did you pay them for it? A. No. Q. When they poured the slab, did you play them for the slab? A. No. Q. And they did the block work? A. Yes. Q. Did you pay them for the block work? A. No. Q. They did the tie-beams? A. Yes. Q. And did you pay them? A. All together. Q. You paid all of it at once? A. All together at once. Q. So,the house on 47th Avenue. A. Can I tell you something? Q. Yes, sir. A. When we finished the house on 18th Street,they sent to me invoices and on the invoices it said, "Any questions or anything in regard to the job,just contact our office to Filemon Cendejas." That's why I talked to Filemon Cendejas. Q. Okay. So when the house on 47th Avenue came available and you wanted to hire a subcontractor to do the work, you contacted Filemon? A. Yes. I said is it was the same price we talked about the first time, he said yes, and we started again. Q. They formed and poured the foundation? A. Yes. Q. They poured the slab? A. Yes. Q. They installed the block? A. Yes. Q. And they were forming the tie-beams when the accident happened? A. Yes. Q. And you were going to pay .... A. When they finished pouring the concrete, they sent me an invoice. Q. And you were going to pay K. C. Tiles and Marble? You were not going to pay Filemon Cendejas? A. I didn't pay to anybody. Q. Because he doesn't have a license? A. (nodded affirmatively) Vice Chairman Lykos questioned the Witness: Q. In your dealings, in your contractual relationship with K. C. Tiles &Marble, at any point did you ask K. C. Tiles & Marble for verification of their licenses? A. Yes. But, true, I never received the paperwork. Q. So you asked for license documentation but never received it? A. No. 23 January 15,2014 Q. Did you ask for copies of their Workers' Comp .... A. Yes, for everything. I asked for everything. Q. Did you receive copies of their Workers' Comp policy? A. No. No. I didn't have the papers on me. That's why Workers' Comp audited my company. And I paid. Q. Did your company have a Workers' Compensation insurance policy? A. No. Q. Are the owners exempt? A. I am the owner and exempt. I don't contract any workers. Q. How long as your company been in business? A. 2006. Q. And do you have an annual audit from Workers' Comp? A. No. Q. Because you don't have Workers' Comp? A. Because I don't have any workers. Terry Jerulle questioned the Witness: Q. You did not have a written contract with K. C. Tiles & Marble on the house on 18th Street, but you had an oral—or implied—contract? A verbal contract? A. A verbal contract, yes. Q. And it was your understand that you still had the same verbal contract—or implied contract—for the house on 47th Avenue? A. Yes. Kyle Lantz: "It's very late on this ... but after all this discussion, but I have had a relationship with Filemon Cendejas and K. C. Tiles & Marble. It was probably four years ago. I just wanted to disclose it. I didn't"put 2 + 2 together"because it was one little, tiny job that I did." Chairman White: "They are not the Respondent. But, thank you for the disclosure. You don't have, today, any fiduciary interest in the outcome?" Kyle Lantz: "None at all. But I had hired Filemon Candejas through K. C. Tiles & Marble—three or four years ago. I didn't recognize the name until I looked it up on my cell phone—but I just wanted to disclose it. I never met any of these people before." Chairman White asked James Morey, Counsel to the Board, to outline the criteria concerning "conflict of interest." Attorney Morey explained: • "Form 8-B" is required by the County to be completed • It is to be used by anyone serving on a municipal board who must abstain from voting on a measure which inures to (i.e., benefits) his/her special, private gain(or loss) ... if you had a financial interest or an ongoing relationship. For example, if someone were to lose his/her license, it could impact your business. • In Mr. Lantz's situation, the contact was in the distant past and it was relatively minor. 24 • January 15,2014 Mr. Morey concluding by stating it would not be necessary for Mr. Lantz to file a"Form 8-B." Vice Chairman Lykos questioned the Witness: Q. Is it your understanding that Filemon Cendejas was a representative of K. C. Tiles& Marble, Inc.? A. Yes. Q. Is it also your understanding that you were to negotiate and work directly with Mr. Cendejas in your relationship with K. C. Tiles & Marble, Inc.? A. Yes. Q. Is it also true that you received paperwork from the office of K. C. Tiles & Marble referring you to Mr. Cendejas with regard to your relationship with K. C. Tiles & Marble? A. Correct. Q. Is it also your testimony, sir, that in your relationship with K. C. Tiles & Marble, that you would negotiate with Mr. Cendejas, that you would have a verbal agreement with Mr. Cendejas which contracted you and K. C. Tiles &Marble. and at the end of the work, you would then pay for the work that was completed? A. Yes. Chairman White verifying there were no additional questions or witnesses to be heard. Michael Boyd asked if K. C. Tiles & Marble, Inc. had renewed its licenses with the County. Michael Ossorio responded that K. C. Tiles &Marble and the Qualifier, Mario Rodriguez, were in suspended status because the license had not been renewed. But Mr. Rodriguez could renew his license if he so chose. Vice Chairman Lykos verified the license would be considered"suspended" until the end of 2014. Mr. Rodriguez could renew his license at any point during the next 11 months. Mario Rodriguez stated he did not intend to renew either license because he will be moving. He did not cancel his licenses due to the current legal proceedings. Richard Joslin moved to approve closing the Public Hearing. Vice Chairman Lykos offered a Second in support of the motion. Carried unanimously, 9— 0. Chairman White asked the Board's Attorney to present the Charge. Attorney Morey outlined the Charge to the Board: • The Board shall ascertain in its deliberations that fundamental fairness and due process were accorded to the Respondent. • That,pursuant to Section 22-203(g) (5) of the Codified Ordinance, the formal Rules of Evidence set out in Florida Statutes shall not apply. • The Board shall consider solely the evidence presented at the Hearing in its deliberation of the matter. 25 January 15,2014 • The Board shall exclude from its deliberations irrelevant, immaterial, and cumulative testimony. • The Board shall admit and consider all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs, whether or not such evidence would be admissible in a Court of Law. • Hearsay evidence may be used to explain or supplement any other evidence but hearsay,by itself, is not be sufficient to support a Finding unless such hearsay would be admissible over objection in a civil action in Court. • The Standard of Proof in actions where a Respondent may lose his/her privileges to practice his/her profession is that the evidence presented by the Complainant must prove the Complainant's case in a clear and convincing manner. • The Burden of Proof on the Complainant is a larger burden than the "Preponderance of Evidence" standard set in civil cases. • The Standard of Evidence is to be weighed solely as to the charges set out in the Complaint. • The only charges the Board may decide upon are the ones to which the Respondent has had an opportunity to prepare a defense. • The damages awarded by the Board must be directly related to the charges. • The decisions made by the Board shall be stated orally at the Hearing and are effective upon being read, unless the Board orders otherwise. • The Respondent, if found guilty, has certain appeal rights to the Contractors' Licensing Board,the Courts, and the State's Construction Industry Licensing Board ("CILB"), if applicable. • The Board shall vote upon the evidence presented in all areas and if the Respondent is found in violation, shall adopt the Administrative Complaint. • The Board shall also make Findings of Fact and Conclusions of Law in support of the charges set out in the Complaint. Chairman White opened the floor to discussion. Chairman White stated: • Regarding Count I of the Administrative Complaint pertaining to contracting outside the Scope of Work, it seemed clear based both on the evidence and the admission of the Respondent, that a finding of guilty would be appropriate. • Regarding Count II, disregarding or violating the laws of the State pertaining to Workers' Compensation insurance. The Respondent stated as his defense that there was no contract, there were no employees. The County's case and the witness indicated that the pattern and practice of how business was conducted for K. C. Tiles and Marble allowed oral or verbal arrangements, payments were subsequently made at the completion of jobs. Barring the tragic accident, that is what would have happened for the residence at 47th Avenue. 26 January 15,2014 Richard Joslin agreed there was a verbal, implied contract for both jobs. There was no written contract but the men were on the jobsite. Someone knew those men were on the job and hired them. Mr. Gonzalez stated he paid K. C. Tiles & Marble for the first job (18th Street). Discussion ensued concerning whether or not the Board had jurisdiction to enter a judgment in lieu of the pending action in Criminal Court and the Administrative proceeding with the State's Worker's Compensation division. Attorney Morey confirmed the Board could make a determination based on the evidence presented and the testimony heard by the members. Vice Chairman Lykos moved to approve finding the Respondent guilty as to Count I of the County's Administrative Complaint. Richard Joslin offered a Second in support of the motion. Carried unanimously, 9-0. Vice Chairman Lykos moved to approve finding the Respondent guilty as to Count II of the County's Administrative Complaint. Kyle Lantz offered a Second in support of the motion. Carried unanimously, 9-0. Attorney Morey noted the Board found the Respondent to be guilty and the Respondent is a Collier County licensed Contractor. He holds two licenses: Tile and Marble Contractor (License#19105) and Masonry Contractor (License #21273.) He stated if the Respondent is the holder of Collier County Certificate of Competency and has been found to be guilty, the Contractors' Licensing Board may, but is not required to, impose any of the following Sanctions, either alone or in combination: (1) Revocation of a Collier County (or City) Certificate of Competency, (2) Suspension of a Collier County (or City) Certificate of Competency, (3) Denial of the issuance or renewal of a Collier County (or City) Certificate of Competency, (4) Imposition of a period of probation, not to exceed two years in length, during which time the Contractor's contracting activity shall be under the supervision of the Collier County Contractors' Licensing Board, (5) Imposition of a fine not to exceed $5,000, (6) Issuance of a public reprimand, (7) Requirement for re-examination or participation in a duly-accredited program of continuing education directly related to the Contractor's contracting activity, (8) Recovery of reasonable investigative costs incurred by the County for the prosecution of the violation, and (9) Denial of the issuance of Collier County or City building permits or requiring the issuance of such permits with specific conditions. 27 January 15,2014 Attorney Morey further advised the Board that, when imposing any of the possible Disciplinary Sanctions on a Contractor, the Contractors' Licensing Board may consider all the evidence presented during the Public Hearing as well as: (1) The gravity of the violation; (2) The impact of the violation on Public Health/Safety or Welfare; (3) Any actions taken by the violator to correct the violation(s); (4) Any previous violations committed by the violator, and (5) Any other evidence presented at the Hearing by the parties relevant to the Sanction which is appropriate for the case, given the nature of the violation(s) or the violator. Michael Ossorio stated the County had spent several weeks on the case and incurred administrative costs of$1,000. per Count for a total of$2,000. Recommendations: • Revocation of Mr. Rodriguez' Certificates of Competency (Tile and Marble; Masonry) • A fine of$5,000 per Count • Public Reprimand Richard Joslin moved to approve imposing the following Sanctions with regard to Mario Rodriguez, d/b/a K. C. Tiles and Marble,Inc.: • Payment of a fine in the amount of$10,000; • Payment of the Administrative Costs incurred by the County in the amount of$2,000; • Revocation of Mr. Rodriguez's Tile/Marble Contractor's License #19105 and his Masonry Contractor's License #21273; and • Issuance of a Public Reprimand. Vice Chairman Lykos offered a Second in support of the motion. Carried unanimously, 9—0. Chairman White outlined the Findings of Fact: • The Respondent, Mario Rodriguez, is the holder of record of two Collier County Certificates of Competency: #19105 (Tile/Marble Contractor) and #21273 (Masonry Contractor) • The Board of County Commissioners, Collier County, Florida, Contractors' Licensing Board is the Petitioner(Complainant) in this matter. • The Board has jurisdiction of the person of the Respondent. • Respondent,Mario Rodriguez,was present at the Public Hearing and was not represented by Counsel at the Hearing held on January 15, 2014. • All notices required by Collier County Ordinance 90-105, as amended, had been properly issued and were personally delivered. • Based on the evidence presented,the Respondent acted in a manner that is in violation of Collier County Ordinances and is the one who committed the act. 28 January 15,2014 • The allegations of fact as set forth in Administrative Complaint as to: o Count 1, under Section 22-201(2) of Ordinance#90-105, as amended: "Contracting to do any work outside the scope of his/her competency as listed on his/her Competency Card and as defined in this Article or restricted by the Contractors' Licensing Board" and o Count II, under Section 22-201(6) of Ordinance #90-105, as amended: "Disregards or violates, in the performance of his/her contracting business in the County, any of the building, safety, health, insurance, or Workers' Compensation laws of the State or Ordinances of this County, " were found to be supported by the evidence presented at the Hearing. Conclusions of Law: • The Conclusions of Law alleged and set forth in the Administrative Complaint as to Count I and Count II were approved, adopted and incorporated herein, to wit: The Respondent violated Section 22-201(2) of Collier County Ordinance 90-105, as amended, regarding Scope of Work, and Section 22-201(6)regarding the Workers' Compensation violation. Order of the Board: • Based upon the foregoing Findings of Fact and Conclusions of Law, and pursuant to the authority granted in Chapter 489,Florida Statutes, and in Collier County Ordinance 90-105, as amended, by a vote of nine (9) in favor and none (0) in opposition, a majority vote of the Board members present, the Respondent has been found in violations as set out above. • Further, it is hereby ordered by a vote of nine (9) in favor, and none (0) in opposition, a majority vote of the Board members present,that the following disciplinary Sanctions are hereby imposed upon Mario Rodriguez,the holder of Collier County Certificates of Competency#19105 (Tile/Marble Contractor) and#21273 (Masonry Contractor),to wit: o Payment of a fine in the total amount of$10,000; o Reimbursement of the Administrative Costs incurred by the County in the total amount of$2,000; o Revocation of Mr. Rodriguez's Tile/Marble Contractor's License #19105 and his Masonry Contractor's License #21273; and o Issuance of a Public Reprimand. Chairman White noted the case was closed. Chairman White advised the Respondent if he chose to appeal the Board's decision, he must obtain a verbatim record of the proceedings. (Terry Jerulle and Ronald Donino left @ 11:44 AM). (Quorum was maintained— 7 voting members) 29 January 15,2014 BREAK: 11:45 AM RECONVENED: 11:55 AM B. Case#2014-02: BCC vs. Seth B. Hollander, d/b/a "Hollander Construction Company, Inc." Chairman White noted Mr. Hollander had been present during the previous Hearing and heard the recitation of how the proceeding was to be conducted. He asked the County to place its information packet into evidence. Richard Joslin moved to open the Public Hearing in Case No. 2014-02: The Board of County Commissioners vs. Seth B. Hollander, d/b/a "Hollander Construction Company,Inc.,"License #201300000579, and to enter the information packet into evidence as County's Exhibit "1." Vice Chairman Thomas Lykos offered a Second in support of the motion. Carried unanimously, 7— 0. Thomas Keegan, Licensing Compliance Officer, presented the County's "Opening Statement:" • The Respondent is Seth B. Hollander, d/b/a"Hollender Construction Company, Inc.," a suspended Excavation Contractor, Suspended License #210300000579. • Mr. Hollander was cited for violating Collier County Ordinance 90-105, as amended, Section 22-201(6): "Disregards or violates, in the performance of his/her contracting business in the County, any of the building, safety, health, insurance, or Workers' Compensation laws of the State or Ordinances of this County, " • On Friday, December 20, 2013, a complaint was received from Palermo Pavers, Inc., regarding the installation of pavers at 12823 Valewood by Hollender Construction Company. • A site inspection was conducted and the excavation of a driveway was observed. • Two individuals identified themselves as Wayne Boswell and Hugh Campbell and stated they were employed by Hollender Construction Company, Inc. They began working for the company on Monday, December 16, 2013. • When asked, the men stated they had not completed any employment applications for the company. • Research conducted indicated the Workers' Compensation insurance policy for Hollender Construction had been cancelled on October 5, 2013. • Seth Hollander was contacted; he stated the two men were employed by Hollender Construction and that he had insurance coverage for them. He was advised that the Workers' Compensation policy had been cancelled, and was requested to come to the jobsite. 30 January 15,2014 • The homeowner was contacted; he verified that he hired The Construction Managers, Certified General Contractors. John Varsames was the Qualifer. • Mr. Varsames was contacted; he stated he subcontracted the excavation portion of the project to Hollender Construction. Mr. Varsames was advised that the subcontractor did not have Workers' Compensation coverage for his employees. • Jack Gumph, Senior Compliance Investigator—Division of Workers' Compensation, came to the jobsite and confirmed that Policy#10652685 had been cancelled for non-payment of the insurance premium. • Mr. Hollender arrived at the jobsite. He was advised he could no longer continue to work on the project due to the lack of Workers' Compensation coverage for his two employees. He was requested to meet Investigator Keegan at the Contractors' Licensing Office at a later time. • John Varsames and the homeowner were advised of the situation. • Mr. Hollender admitted that he knew the Workers Compensation policy had been cancelled and was served a Notice of Hearing to appear before the Contractors' Licensing Board on January 15, 2014 for violating the probation ordered by the Board on October 16, 2013. • Mr. Hollander's license as an Excavation Contractor was suspended by Michael Ossorio, Contractors' Licensing Office Supervisor. Seth Hollender presented his"Opening Statement:" • He admitted the County's complaint for failure to obtain Workers' Compensation coverage was true. • He claimed it was an administrative oversight on his part and as soon as he was aware of the cancellation in late November, he began the process to reinstate the policy. Me> • He was audited by the State and it took approximately 2 '''A to obtain the results before the policy could be reinstated. • The Workers' Compensation policy was reinstated throuh Florida Citrus, Business and Industries Fund on Monday, December 23r a. Thomas Keegan added Mr. Hollander was issued a"Stop Work" Order by the State of Florida on December 20, 2013 for failure to obtain Workers' Compensation coverage. The "Stop Work" Order remained active and had not been cleared. Chairman White clarified that prior to being notified of the alleged violation, the Respondent had begun the process correct the situation and reinstate the Workers' Compensation policy. Seth Hollender: "Yes, sir." He confirmed the State-issued"Stop Work" Order was still active based on the insurance audit. Vice Chairman Lykos questioned the Respondent: Q. You claim that ... When did you become aware that your policy had been cancelled? 31 January 15,2014 A. The end of November. Q. How were you notified? A. My insurance agent. Q. That appears to be more than thirty days after the policy was actually cancelled. The policy was cancelled on October 5, 2013 due to non-payment of premium. A. That's correct. Q. Were you aware that you hadn't paid the premium? A. It was an oversight on my part. Q. So, you didn't pay the premium --- you didn't know you hadn't paid the premium. So you didn't know that you policy had terminated on October 5th because you didn't know you hadn't paid the premium? A. That is correct. Q. And then you were finally notified at the end of November by your insurance agent that your policy was cancelled. A. That it may not have been cancelled but I needed to contact them immediately in order to either continue the policy or pay them what was still owed on the back payments to keep the policy active or to then go through the proceedings to re- instate the policy. Q. Let me restate my question. When did you become aware that your policy had been cancelled? A. It was the end of November—early December. Within the first few days of December. Q. According to the testimony provided to Mr. Keegan on site, the two employees— Mr. Boswell and Mr. Campbell—were both hired and started working for you on or about December 16th? A. That's correct. Q. You hired two new employees and put them on a job site, knowing that your policy had been cancelled? A. That was in the process of being reinstated. Q. It's a"yes" or"no" question, sir. A. Yes, sir. Q. Thank you. Richard Joslin questioned the Respondent: Q. Do you have an idea, sir, why Mr. Lykos asked his questions? Why, if you knew your policy was cancelled in November, did you put two new employees on the job in December? You just stated in your testimony that you knew your policy was cancelled. A. I did. Q. You began the process of putting it back together again but ... A. That's correct. Q. ... knowing that it wasn't, you still chose to put two men on the job. A. I did. Q. Okay. A. I don't have any excuses. 32 January 15,2014 Q. No excuse ... no answer. A. There isn't an excuse. Chairman White asked if the County had incurred any Administrative costs. Michael Ossorio replied the total amount was $525.00. It was noted if there was a finding of a violation and a decision to impose Sanctions, reimbursement of the costs would be included in the Board's Order. Vice Chairman Lykos moved to close the Public Hearing. Michael Boyd offered a Second in support of the motion. Carried unanimously, 7—0. Chairman White called for discussion on a finding of a violation. (No discussion.) Vice Chairman Lykos moved to approve finding the Respondent guilty as to Count I of the County's Administrative Complaint. Gary McNally offered a Second in support of the motion. Carried unanimously, 7—0. Attorney Morey reminded the Board of the existing Order which had been issued in October, 2013 which placed Mr. Hollender on probation. Attorney Morey noted the Board found the Respondent, Seth Hollander, to be guilty and he is a Collier County licensed Excavation Contractor, License #20130000057. He stated the Board may revisit the terms and conditions of the existing Order as well as impose any of the following Sanctions, either alone or in combination: (1) Revocation of a Collier County(or City) Certificate of Competency, (2) Suspension of a Collier County(or City) Certificate of Competency, (3) Denial of the issuance or renewal of a Collier County (or City) Certificate of Competency, (4) Imposition of a period of probation, not to exceed two years in length, during which time,the Contractor's contracting activity shall be under the supervision of the Collier County Contractors' Licensing Board, (5) Imposition of a fine not to exceed $5,000, (6) Issuance of a public reprimand, (7) Requirement for re-examination or participation in a duly-accredited program of continuing education directly related to the Contractor's contracting activity, (8) Denial of the issuance of Collier County or City building permits or requiring the issuance of such permits with specific conditions, and (9) Recovery of reasonable investigative costs incurred by the County for the prosecution of the violation. 33 January 15,2014 Attorney Morey further advised that, when imposing any of the possible Disciplinary Sanctions on a Contractor, the Contractors' Licensing Board may consider all the evidence presented during the Public Hearing as well as: • The gravity of the violation; • The impact of the violation on Public Health/Safety or Welfare; • Any actions taken by the violator to correct the violation; • Any previous violations committed by the violator, and • Any other evidence presented at the Hearing by the parties relevant to the Sanction(s) which is appropriate for the case, given the nature of the violation or the violator. Michael Ossorio noted Seth Hollender's license was suspended pursuant to the previous Order of the Board, issued on October 16, 2013. Mr. Hollender was ordered to pay a fine in the amount of$500/per month for the previous violation (total fine: $2,500). He has continued to make the installment payments and fulfill his obligations. Mr. Ossorio further stated the Stated Construction Industry Licensing Board ("CILB")will be notified of the proceedings and the Board's decision. He stressed notification to the State was important to prevent any Respondent from applying to become a State-Certified Contractor even though his/her license had been suspended locally. Recommendations: (1) Suspension/revocation of Mr. Hollender's Certificate of Competency for a period of one year; and (2) Mr. Hollender must continue to pay the previously imposed fine in the amount of$500 per month as well as any other fees and fines; It was noted the State's Workers' Compensation Division may assess a penalty because Mr. Hollender allowed his employees to work while the insurance coverage had lapsed. Mr. Hollender will be required to pay an additional premium for the reinstated policy. Vice Chairman Lykos: • By allowing the Workers' Compensation policy to lapse, Mr. Hollender put his employees and the property owner at risk; • It is the Contractor's responsibility to ensure that his/her employees are protected at all times; • Suggested imposing a second fine in the full amount of$5,000; • Agreed the revocation period should be one year. Chairman White asked the Board's Counsel if a revocation could be imposed with a time limit. He asked if it would be possible for the Board to state it would not entertain an application from Mr. Hollender for at least one year. 34 January 15,2014 • Attorney Morey stated the Board had the authority to impose a reasonable condition on any Sanction. • "If it's revoked, it's revoked. The Board can certainly send a clear message concerning its expectations." Vice Chairman Lykos noted if the Board"suspended" Mr. Hollender's license, it would have the intended effect, i.e.,he would have to re-apply to the Board at a future date and the suspension would be noted"on the record" for one year. But if the license was "revoked," it would be gone and Mr. Hollender could go to another jurisdiction and apply for a new license. Michael Ossorio confirmed after a period of one year, Mr. Hollender could choose to petition the Board for reinstatement of his license. If he did not,the license would become null and void. He further stated if the license is suspended for one year,Mr. Hollender must pay all imposed fines and penalties before he could submit a full application to the Board for a Hearing on the suspension. Chairman White noted: • Mr. Hollender is currently under a 24-month probation; • His permit-pulling privileges have been suspended; • He must continue to make the payments of the fines imposed under the prior Order of the Board; • He is to take and pass the Business Procedures Exam within six months of the issuance of the prior Order; and • If he violates any of the terms of the prior Order, he must appear before the Board at a Hearing. Michael Ossorio clarified Mr. Hollender does not have an active license and cannot work. He explained even if the State rescinded the "Stop Work" Order because the Workers' Compensation coverage was reinstated, Mr. Hollender still could not accept any jobs. He further stated if the Board chose to suspend his license, the suspension could run concurrently with the previous Order, i.e., two years from October 16, 2013. Robert Meister asked what would happen if Mr. Hollender were "caught" working during the next year with a suspended license. Michael Ossorio stated he would be fined $1,000 for a first offense; $2,000 for a second offense, and if there were a third offense, the County Attorney's Office could pursue criminal charges. Attorney Morey stated Mr. Hollender could not work as a Contractor or subcontractor but he could work as an employee of a licensed, qualified company. Seth Hollender asked if he would be prevents from having someone else qualify his business. 35 January 15,2014 Michael Ossorio replied he could own a business but could not serve as the Qualifier of that business. The Qualifier would submit an application and appear before the Board for a full review. Chairman White stated, prior to making a decision, he tests whether the violation was inadvertent or intentional. In the prior case, the intention may have been inadvertent. In the current case before the Board, he is considering a severe fine. Vice Chairman Lykos moved to approve imposing the following disciplinary Sanctions: • Imposing a fine of$5,000 to be paid in full by December 31, 2014; • Suspending his license for a period of 21 months, ending on October 16, 2015; • Requiring reimbursement to the County for Administrative costs incurred in the amount of$525; • Continuation of the previous Order requiring payments to be made for three more months. Chairman White restated the Mr. Lykos'motion: • To suspend the Respondent's license until the end of the probationary period under the prior Order, i.e., October 16, 2015; • Imposing a fine of$5,000 to be paid by December 31, 2014; • Payment of the Administrative Costs incurred by the County in the amount of$525 within 90 days of the issuance of the Board's Order. • If reimbursement to the County is not made within the 90-day period, the Respondent must appear before the Board at a Hearing; • Issuance of a public reprimand. Michael Ossorio clarified if the Respondent complies with the terms of both Orders and all fees/fines are paid in full by January 1, 2015, Mr. Hollender may petition the Board for a Hearing on his suspension any time after October 16, 2015. Vice Chairman Lykos suggested that if Mr. Hollender chooses to petition the Board, that he present a complete plan detailing how he intends to manage his business in compliance with the Collier County's Ordinances. Chairman White asked the Respondent if he understood the Board's discussions and decision. Seth Hollender replied he fully understood. Chairman White offered a Second in support of the motion and called for a vote. Motion carried, 6— "Yes"/1 — "No." Richard Joslin was opposed. Chairman White outlined the Board's Order: • This Cause came on for Public Hearing before the Contractors' Licensing Board on January 15, 2014 for consideration of the Administrative 36 • January 15,2014 Complaint in Case #2014-02 filed against the Respondent, Seth B. Hollander, d/b/a"Hollander Construction Company, Inc."the holder of record of Collier County Certificate of Competency Number 201300000579. • Service of the Complaint was consistent with the requirements of Collier County's Code of Laws and Ordinances. • The Board heard testimony under oath, received evidence, and heard arguments respective to all appropriate matters, and issued the following Findings of Facts and Conclusions of Law. Findinjs of Fact: • The Respondent, Seth B. Hollender, is the holder of record of Collier County Certificate of Competency: #201300000579 (Excavation Contractor). • The Board of County Commissioners, Collier County, Florida, Contractors' Licensing Board is the Petitioner(Complainant) in this matter. • The Board has jurisdiction of the person of the Respondent. • Respondent, Seth B. Hollender, was present at the Public Hearing and was not represented by Counsel at the Hearing held on January 15, 2014. • All Notices required by Collier County Ordinance 90-105, as amended, had been properly issued and were personally delivered. • Based on the evidence presented, the Respondent acted in a manner that is in violation of Collier County Ordinances and is the one who committed the act. • The allegations of fact as set forth in Administrative Complaint as to: o Count 1, under Section 22-201(6) of Ordinance #90-105, as amended: "Disregards or violates, in the performance of his/her contracting business in the County, any of the building, safety, health, insurance, or Workers'Compensation laws of the State or Ordinances of this County, " was found to be supported by the evidence presented at the Hearing in a clear and convincing manner. Conclusions of Law: • The Conclusions of Law alleged and set forth in the Administrative Complaint as to Count I were approved, adopted and incorporated herein,to wit: The Respondent violated the aforementioned Section of the County Code in the performance of his contracting business by action in violation of that Section, as set forth in the Complaint. Order of the Board: • Based upon the foregoing Findings of Fact and Conclusions of Law, and pursuant to the authority granted in Chapter 489, Florida Statutes, and in Collier County Ordinance 90-105, as amended, by a vote of seven(7) in favor and none (0) in opposition, a majority vote of the Board members present, the Respondent has been found in violation as set out above. 37 January 15,2014 , • Further, it is hereby ordered by a vote of six (6) in favor, and one (1) in opposition, a majority vote of the Board members present, that the following disciplinary Sanctions are hereby imposed upon the Respondent, Seth B. Hollender, to wit: o Suspension of the Respondent's license until the end of the Probationary period in the prior Order, i.e., October 16, 2015; o Imposition of a fine of$5,000 to be paid the end of Calendar Year 2014; o Payment of the Administrative Costs incurred by the County in the amount of$525 within 90 days of the issuance of the Board's Order. o If reimbursement to the County is not made within the 90-day period,the Respondent must appear before the Board at a Hearing; o Issuance of a public reprimand. Chairman White noted the case was closed. IX. REPORTS: • Michael Ossorio noted a new Citation process, effective January 1, 2014, will impose the following fines: o First Offense: $1,000 o Second Offense: $2,000 o Referred to the State's Attorney's Office • Several Citations have been written (1St Offense) • One Citation (2nd Offense) was issued and the $2,000 fine was paid • Feedback from Investigators in the field has been positive • If an application for a license is made within 45 days of the Citation, the fee will be reduced to $300 X. MEMBER COMMENTS: (None) XI. NEXT MEETING DATE: Wednesday, February 19, 2014 BCC Chambers, 3rd Floor—Administrative Building"F," Government Complex, 3301 E. Tamiami Trail,Naples, FL There being no further business for the good of the County, the meeting was adjourned by the order of the Chairman at 12:50 PM. 38 January 15,2014 COLLIER COUNTY CONTRACTORS LICENSING BOARD 4•41 s# it Patrick White, Chairman • The Minutes were approved by the Chairman on 6 , 2014, "as submitted" ( ] OR "as amended" ]. 39