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CLB Minutes 04/18/2001 RApril 18, 2001 TRANSCRIPT OF THE MEETING OF THE CONTRACTORS' LICENSING BOARD Naples, Florida, April 18, 2001 LET IT BE REMEMBERED, that the Contractors' Licensing Board, in and for the County of Collier, having conducted business herein, met on this date at 9:05 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: GARY HAYES LES DICKSON ARTHUR SCHOENFUSS CAROL PAHL SARA BETH WHITE WALTER CRAWFORD, IV BOB LAIRD ABSENT: DANIEL GONZALEZ RICHARD JOSLIN ALSO PRESENT: PATRICK NEALE, Attorney for the Board ELLEN CHADWELL, Assistant County Attorney THOMAS PALMER, Assistant County Attorney BOB NONNENMACHER, Chief License Compliance Officer MICHAEL OSSORIO, License Compliance Officer Page I ~002 COLLIER COUNTYCONTRACTORS~_LiCENSiNG BOARD DATE: April 18, 2001 TIME: 9:00 A.M. ADNtlNIS~TRAT|ON BUILDIN~ COURTHOUSE_COMF,_L E~_ ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS [$ MADE, WHICH RECORD INCLUDES THAT TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. I. ROLL CALL I1. ADDITIONS OR DELETIONS: II1. APPROVAL OF AGENDA: IV. APPROVAL OF MINUTES: DATE; March 21, 2001 V. NEW BUSINESS; Elizabeth Holdridge - request to qualify 2"~ entity. Woody S. Ryan - request to qualify 2~ entity. Carl M. Quitzau - request to qualify 2~ enlity. Merlin Banahan - request to qualify 2''~ e. ntlty Brian J. Safer - Review credit report. Richard Hemtngway - request to waive exam for tile & marble license. VI. OLD BUSINESS: VII. PUBLIC HEARINGS: C.L.B. # 2001-03 (B) - Roy E. Horst Collier County vs Tom Welsh DtB/A Tom Welsh Painting. - Contesting Citation # 0877 for hinng unlicensed subs. VIII. REPORTS: IX. DISCUSSION: X. NEXT MEETING DATE: May 23, 2001 April 18, 2001 CHAIRMAN HAYES: I'm going to call this meeting to order, April 18th at approximately 9:05 a.m., the Collier County -- Collier County Contractors' Licensing Board. Any person who decides to appeal a decision of this board will need a record of proceedings pertaining thereto and, therefore, may need to insure that a verbatim record of the proceedings is made, which record includes that testimony and evidence upon which an appeal would be based. The roll call starting at my right. MR. CRAWFORD: Walter Crawford. MR. LAIRD: Bob Laird, public member. MR. DICKSON: Les Dickson. CHAIRMAN HAYES: Gary Hayes. MS. PAUL: Carol Pahl. MR. SCHOENFUSS: Arthur Schoenfuss. MS. WHITE: Sarah Beth White. CHAIRMAN HAYES: Are there any additions or deletions to the agenda, Mr. Nonnenmacher? MR. NONNENMACHER: No, sir. CHAIRMAN HAYES: I have the minutes. I need a motion, I'm sorry, to approve the minutes or to approve the agenda. MR. LAIRD: So moved, Mr. Chairman. CHAIRMAN HAYES: Arthur Schoenfuss seconded. MR. DICKSON: Change on the minutes of the last meeting. It doesn't list the -- Gary Hayes as not being present. CHAIRMAN HAYES: No. That's the minutes. I'm just approving the agenda. MR. DICKSON: That's where we're -- CHAIRMAN HAYES: No. I skipped past the agenda. I'm sorry. We've got a motion and a second on the agenda. All in favor? Page 2 April 18, 2001 (Unanimous response.) Opposed? (No response.) CHAIRMAN HAYES: Okay. Now the approval of the minutes, you have a -- an amendment to the minutes? MR. DICKSON: Yeah. Show on there Gary Hayes not present. CHAIRMAN HAYES: I can verify that. Okay. With that amendment I need a motion to approve the minutes. MR. LAIRD: So moved, Mr. Chairman. I thought that's what I had done. So moved. MR. DICKSON: Dickson, second. CHAIRMAN HAYES: Les Dickson, second. All in favor? (Unanimous response.) Opposed? (No response.) CHAIRMAN HAYES: Very well. Under new business, Elizabeth Holdridge, request to qualify second entity. Are you here? She is not here. We'll just move that down and call it again at the end of new business. Woody S. Ryan, request to qualify second entity. Are you here? MR. RYAN: Yes, sir. CHAIRMAN HAYES: Would you come up to the podium, please, sir? I'm going to ask you to be sworn in. Your name for the record. (The oath was administered.) MR. RYAN: Woody -- Woody S. Ryan. CHAIRMAN HAYES: And your reason for being here this morning, Mr. Ryan? MR. RYAN: Well, basically what I want to do is I want to Page 3 April 18, 2001 MR. RYAN: CHAIRMAN MR. RYAN: CHAIRMAN MR. RYAN: CHAIRMAN company? MR. RYAN: divide the business that I'm doing. I want to have one corporation that's a sub S which flows the money straight to me as straight income, and I want one corporation to be a C corporation because I want to divide -- I want to put the higher end -- I want to put a lot of the higher-end work in the C corporation. That way the tax liability is not -- is going to be different. CHAIRMAN HAYES: Okay. So you want to do the same work that you're doing. You just want to have two legal corporations doing it, one a sub S and one a C corp.? Yes, sir. HAYES: What kind of business do you do? Metal framing and drywall. HAYES: What license do you hold? Drywall license. HAYES: What's the name of your current Naples Metal Framing Incorporated. CHAIRMAN HAYES: Are you going to operate both organizations? MR. RYAN: Yes, I will. MR. DICKSON: I'm a little confused. CHAIRMAN HAYES: Uh-huh. MR. DICKSON: If I can ask a question. You hold a license -- you do metal framing and drywalling. What does that have to do with Renaissance Glass? MR. RYAN: I don't have anything to do with Renaissance Glass. MR. DICKSON: Which one -- am I looking at the wrong one? CHAIRMAN HAYES: You're looking at the wrong packet. MR. DICKSON: Oh, excuse me. I'll get on board here in a minute. Page 4 April 18, 2001 MR. RYAN: That's all right. It's early yet. MR. NONNENMACHER: Mr. Chairman. CHAIRMAN HAYES: Yes. MR. NONNENMACHER: For the record, my name is Bob Nonnenmacher, chief licensing investigator. I have a question for Mr. Neale. What is the county's liability for allowing a second entity to -- I -- I don't like to use the word, but I can't think of -- anyone to evade taxes? Are we in any kind of -- MR. NEALE: I mean, if he's forming a subchapter S corporation, then it's just going to be a standard sub S. From what I understand that's not evading taxes. That's perfectly -- MR. NONNENMACHER: Well, no, what -- what he said, if I heard him correctly, he has a sub S right now. And the reason for his requesting a second entity was to start a C corporation and put all his high-end work in the C corporation and not in the S corp. Okay. MR. NEALE: It's merely a business decision. MR. NONNENMACHER.' Okay. MR. RYAN: If I might answer that for you, the reason is not to evade taxes; it's the way in which I receive the income. On the sub S corporation, I wind up being a certain tax bracket, and in the C corporation the way -- the way that the write-offs and the way that things happen, it just changes the income flow because the stream then comes to me as a dividend instead of income, regular income. MR. NONNENMACHER: I meant no offense by that. I couldn't think of another word. I just wanted to make sure the county was going to be in good shape after this was over. MR. NEALE: As long as he has proper evidence -- MR. NONNENMACHER: Okay. MR. NEALE: -- that the corporations are properly formed, there's no problem so -- Page 5 April 18, 2001 MR. SCHOENFUSS: This is the first time we've heard of someone wanting to start a second corporation so he could have both the C corporation and an S corporation. If there's some tax advantage to that, maybe that's something we could all take a lesson from. MR. DICKSON: I can -- I can see the point, too, in speaking on his behalf. He's been working as a sub S corporation on small jobs, and now he's getting to the larger jobs, which is the case of many people here in Naples now. And I see it more of a protection of personal assets and liability more than taxes. But I think it's probably a good move when a company grows. MR. RYAN: That definitely was a big consideration. MR. SCHOENFUSS: Well, it sounds to me as if this gentleman knows what he is doing. MR. DICKSON: I agree. Got a motion? MR. LAIRD: I would move for approval. MR. DICKSON: Dickson, I'll second that. CHAIRMAN HAYES: Any further discussion? All in favor? (Unanimous response.) CHAIRMAN HAYES: Opposed? Very well, Mr. Ryan. Of course, your packet of material is here, and so you're not going to be able to get the paperwork taken care of today. It won't be back until later today. So tomorrow you can go down and finish up your application and get your license app. MR. RYAN: Thank you very much. CHAIRMAN HAYES: Okay. Carl M. Quitzau, request to qualify second entity. Are you here? MR. QUITZAU: Yes, sir. CHAIRMAN HAYES: Would you come up to the podium, please, sir. I'm going to have you to get sworn in for the record. (The oath was administered.) Page 6 April 18, 2001 CHAIRMAN HAYES: Your name? MR. QUITZAU: Carl Quitzau. CHAIRMAN HAYES: Quitzau? MR. QUITZAU: Quitzau. CHAIRMAN HAYES: Quitzau. MR. QUITZAU: Yes, sir. CHAIRMAN HAYES: Okay. And your reason for being here ? MR. QUITZAU: I'm looking to qualify a second company within my company itself as -- as Renaissance Glass. CHAIRMAN HAYES: And what's your reason for doing it? MR. QUITZAU: I'm an artist by trade. I've been in the glass business for about 20 years. I have a contract, glass and glazing license. And most of my work has been decorative car glass installations, entry doors. I also -- at one point I did storefront, mirrors, shower doors. I was more diversified. I've taken on two partners who were originally friends who we've decided to expand the business and make it into a more productive business itself which will entail going back to doing mirrors, shower doors, things of that nature. And I'm looking to keep the two companies separate due to the fact that artistry and glass, the art-based company, which strictly does car glass, doesn't do showers, mirrors, and things like that. So I've decided to set up a separate company called Renaissance Glass which is in the same building. We do all the work in the same location. But we decided to go into a three-person partnership on Renaissance Glass, and I need to qualify that part of the company with my license. CHAIRMAN HAYES: What's the company that you're qualifying currently? MR. QUITZAU: Ren -- Artistry and Glass. CHAIRMAN HAYES: Artistry and Glass. You're going to be doing both businesses? Page 7 April 18, 2001 MR. QUITZAU: Yes, sir. From a logistics sense, it's just more efficient to keep them separate at well so that when somebody knows that they want mirror shower doors, things of that nature, for, say, new construction, they'll know that Renaissance Glass does that. Artistry and Glass has been a name I've kept and the reputation that is for strictly artwork and glass. CHAIRMAN HAYES: I would entertain a motion. MS. WHITE: I make a motion that we approve his application. CHAIRMAN HAYES: Sarah Beth White makes the motion. MR. LAIRD: I would second the motion. CHAIRMAN HAYES: Bob Laird. Any further discussion? Ail in favor? (Unanimous response.) CHAIRMAN HAYES: Opposed? None opposed. MR. QUITZAU: Thank you very much. CHAIRMAN HAYES: The same thing applies. Your paperwork is here today, so you won't be able to take care of the paperwork business today. It will have to be tomorrow. MR. QUITZAU.' Very good. Thank you. CHAIRMAN HAYES: Okay, sir. Merlin Banahan, request to qualify a second entity. Are you here? MR. BANAHAN: Yeah. CHAIRMAN HAYES: Would you come up to the podium, please, sir. (The oath was administered.) CHAIRMAN HAYES: Your name, sir? MR. BANAHAN: Merlin Banahan. CHAIRMAN HAYES: And your reason for being here? Page 8 April 18, 2001 MR. BANAHAN: I want a license to start a second company on my own under Merlin Banahan Excavating, Incorporated. Right now I hold a license for Creative Excavating, which we basically do creative homes. And I wanted to start my own because my boys are going to be coming up in a couple of years so I can have a -- CHAIRMAN HAYES: So what's the role in the current company that you're -- MR. BANAHAN: I'm the vice president, the license holder. CHAIRMAN HAYES: So starting your new business, are you going to be not serving as vice president of the second company ? MR. BANAHAN: I'll still be serving. CHAIRMAN HAYES: Are you -- do you have an office with the first company ? MR. BANAHAN: Yes. CHAIRMAN HAYES: Are you going to maintain that office? MR. BANAHAN: The second one I'll run out of my home, so it will be a --just a smaller business. CHAIRMAN HAYES: Okay. So you still have an office to go to at the first company? MR. BANAHAN.' Correct. MR. DICKSON: Dickson, I move that it be approved. MR. SCHOENFUSS: Second, Schoenfuss. CHAIRMAN HAYES: I have a motion and a second. Any further discussion? All in favor? (Unanimous response.) Opposed? CHAIRMAN HAYES: It sounds like you've got it going, Mr. Banahan. MR. BANAHAN: Thank you. Page 9 April 18, 2001 CHAIRMAN HAYES: Again, tomorrow before you can take care of your paperwork. Thank you, sir. Brian J. Serer, review credit report. Mr. Serer, are you here? MR. SERER: Yes, sir. CHAIRMAN HAYES: I'm going to ask you to get sworn in, sir. (The oath was administered.) CHAIRMAN HAYES: Your name for the record. MR. SERER: Brian J. Serer. CHAIRMAN HAYES: And you have brought us your credit report this morning? MR. SERER: Yes. CHAIRMAN HAYES: And you're here for explanations, I assume? MR. SERER: Yes. CHAIRMAN HAYES: What -- are you attempting to apply for a license? MR. SERER: Yeah. Reciprocation from Palm Beach County. CHAIRMAN HAYES: What type of license you're asking for? MR. SERER: Electrical contract. MR. DICKSON: Mr. Nonnenmacher, when do we reciprocate Palm Beach County? MR. NONNENMACHER: If that test is equivalent to ours. MR. DICKSON: Oh, that's what it is. MR. NONNENMACHER: Uh-huh. MR. DICKSON: Okay. So it's really not a reciprocation? MR. NONNENMACHER: No. It's -- it's a new license. MR. DICKSON: Right. MR. NONNENMACHER: Okay? MR. SCHOENFUSS: Where do we have any information about the license that was taken in Palm Beach County or any other county? Where is it in this application? MR. SERER: It should be all -- it was already submitted. Page 10 April 18, 2001 MR. DICKSON: If I understand it right, staff has the authority to do that on their own and verify all that. They've got a problem with the credit report. That's why it was brought to us; right? MR. NONNENMACHER: That's correct. MR. DICKSON: That's the only thing we're interested in is the credit report. MR. NONNENMACHER: Concerning contract indebtedness, on page 2 -- MR. SCHOENFUSS: Mr. Serer, your relations to Palm Beach County now? MR. SERER: Yes. And a lot of other counties. Yes. MR. SCHOENFUSS: And a lot of other counties? MR. SERER: Yes. MR. SCHOENFUSS: What's the county closest to Collier County where you currently have a license? MR. SERER: Lee County. MR. SCHOENFUSS: Lee? Thank you. MR. SERER: Pinellas County, Polk County. That -- pretty much on this side. And I'm licensed all the way from Orlando to Key West. MR. SCHOENFUSS: With all -- with your licensing in all these counties, why didn't you think about getting state certification, getting state certified license? Then you can operate anywhere in the state. MR. SERER: Right. What I have now is about 12 months left to be grandfathered in. I have to submit my application. And hopefully they'll approve that. But when I initially went into business, I took the Palm Beach County test just to get established, and then I just had to keep going from there. I took the Broward County exam, and then the rest of them have been reciprocations. MR. SCHOENFUSS: How many men do you have working for Page 11 April 18, 2001 MR. SCHOENFUSS: CHAIRMAN HAYES: license, Mr. Serer? you? MR. SERER: Right now about 15. MR. SCHOENFUSS: And you -- you can work in that many counties? MR. SERER: Yes. Well, I do Sears department store work, and I pretty much need the licenses in the counties to do whatever projects they have throughout the state. I see. How long have you had a electrical MR. SERER: I have been in business now about 3 1/2 years, almost 4 years. MR. DICKSON: Do you want to explain all these judgments -- MR. SERER: Yes, the -- yes, sir. The -- initially the first year of business I started out doing residential work. The contractor that I was doing that work for introduced me to a friend of his that needed a -- a big marina done on -- in Riviera Beach on the east coast. I had submitted a price, completed the job. Before the end of the project the contractor dissolved his business. I did not receive my monies. It was taken to court. They basically settled for $18,000 out of approximately 110,000 that was due to me. And added with the court costs and lawyer's fees and, you know, supply house bills, that's what you're seeing on the credit report, the -- the nonpayment. But you should also have all the letters from all the different companies there saying that I've made steady payments. I have worked out a payment schedule with everybody, and right now everybody is satisfied. Matter of fact, I just paid one of them off the first of the month. So, I mean, it's taken me time, but everybody is being paid instead of me going bankrupt on them and then nobody gets paid. MR. DICKSON: All right. MR. SCHOENFUSS: Do you have any specific project coming Page 12 April 18, 2001 up in Collier County that you were anticipating? MR. SERER: Yes. MR. SCHOENFUSS: Is that your application -- the reason for the application? MR. SERER: Sears does a lot of renovating in their stores constantly. Most likely there will be some work in the Naples mall at the Sears. And I'm just trying to, you know, stay one step ahead right now. MR. LAIRD: Mr. Chairman, I'm not sure what it is we're to approve. It's-- MR. NEALE: Typically, Mr. Laird, when these type matters come before the board, the board reviews the credit report because the staff had some question on the credit report. And I think that's -- if I'm correct, Mr. Nonnenmacher, that's the only reason this is being brought forward. MR. NONNENMACHER: That's correct. Because there is a lot of contractual indebtedness. MR. NEALE: There's a number of judgments, if you review the credit report and information that's supplied here. MR. LAIRD: But that's the only reason we're reviewing this. MR. NEALE: As far as I can tell, it's the reason staff has recommended to this board; correct? MR. NONNENMACHER: That's correct. We would like their approval on the credit report or disapproval on it. MR. LAIRD: Thank you. CHAIRMAN HAYES: I don't know that I'd be willing to give you an approval on it, but I would suggest that I wouldn't have a problem -- I wouldn't necessarily have to disapprove it either. If the board didn't exist, the application would go through, and there's nothing in the ordinance precluding his granting of a license. MR. NEALE: Well -- but once this -- once an application has Page 13 April 18, 2001 been reviewed, referred to this board, the board has to make a decision on the application, so it is incumbent on the board now under the ordinance to do so. CHAIRMAN HAYES: So you're saying we actually have to either approve his credit report or disapprove his credit report simply because it was brought here? MR. NEALE: Well, that's the -- the norm is if -- if a lie -- application is referred to the board, the board has to make a -- a decision. And it -- the specific section is 22-184-C. And it says, "When an application is referred to the contractor licensing board, the board shall take testimony from the applicant and shall consider other relevant evidence, whether the add -- application meets the requirements of this division.". And the reason applications are referred is in Subsection B there which is referral of application to contractor licensing board for decision. It says 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 contractor licensing supervisor shall refer the application to the Contractors' Licensing Board for a decision regarding approval or denial of the application and in specific, this is because one of the portions -- one of the things that's required under the application is a credit report, and so that is why I believe staff referred it here. MR. DICKSON: Can I make a comment? CHAIRMAN HAYES: Sure. MR. DICKSON: If you look through these things, the only -- we have to define ABR Electrical Contractors. And the judgments in the cases he's paying off are not exorbitantly substantial. Then couple that with the fact that he's making an effort and doing payments, I mean, I have a whole lot of respect for someone -- bankruptcy has become a license to steal. That Page 14 April 18, 2001 would have been the easy route out. He's working through his problems. He's made payment agreements, and I've checked these letters. He's made payment agreements with everyone that's listed here, and he's got letters to it. I personally have a lot more respect for a company that's run by people that are willing to do that than take the easy route. And I've been down this road before where I had a big job go bad. I'll tell you, it took me seven years to pay everyone off. MR. SERER: That's what I'm trying to do. MR. DICKSON: And it's a rough road to go. Personally, I'd -- based on that and the fact that he's shown his integrity by making efforts to pay off and is still doing it after it looks like a year and a half -- some of them are two years -- I move that we approve the license. MR. LAIRD: I second, Laird. MS. WHITE: I have a question. For all these electrical suppliers, the letters here are -- well, I'm looking at one for K and M, and it's April 17th, 2000. It's, like, a year old. So, like, I don't really know what's happened in the last year, whether the payments have been current. MR. SERER: They're all current. It's just -- basically some of the letters are brand new. Some of them aren't, but they're all current. I mean, I've made payments to everybody. There's no problems at all right now. CHAIRMAN HAYES: Apparently a letter being dated April 17th of 2000 from K and M Electric had to be when you applied for a license in some other county then? MR. SERER: Most likely, yeah. My wife was handling a lot of this paperwork, getting letters. I probably have the same paperwork in my file that you do. CHAIRMAN HAYES: I have a motion and a second. Any further discussion? Page15 April 18, 2001 MR. SCHOENFUSS: Well, we have a man here that -- an applicant who doesn't -- has never worked in Collier County yet. Is that -- is that correct? MR. SERER: I've not done work here with my own business, but I -- I worked at the mall here in Naples for over a year. I mean, I'm familiar with your codes, and, you know, I know some of your inspectors. It's been a while now since I've been here. MR. SCHOENFUSS: For what company were you working when you did work here as an electrician? MR. SERER: With AIIbright Electrical contractors. MR. SCHOENFUSS: And where is that company based? MR. SERER: That's out of Dave -- Davey, Florida, Broward County. MR. SCHOENFUSS: Is that a registered or a certified electrical contractor? MR. SERER: That is a state-certified company. I was a senior project manager with that company before I went into my own business. CHAIRMAN HAYES: And you reside in Palm Beach? MR. SERER: Royal Palm Beach, yes. CHAIRMAN HAYES: How do you define your efforts in supervising work all over the state and living there? Do you never go home? MR. SERER: No. I -- I'd get home pretty much every evening. CHAIRMAN HAYES: You got a private plane? MR. SERER: No, no. I -- I work a lot of hours. I oversee all my ]obs. The west coast, I'm here at least twice a week overseeing the projects I have right now and also Dade County. Some of the areas, you know, I have people that can basically handle a lot of things on their own. CHAIRMAN HAYES: How long have you been licensed in Lee County? Page 16 April 18, 2001 MR. SERER: Lee County, I just reciprocated with them. It's probably maybe a month. CHAIRMAN HAYES: So you have no work up there? You -- MR. SERER: Yeah. I reciprocated, and I'm already doing Sears' work there now. CHAIRMAN HAYES: Okay. MR. SERER: I'm doing St. Petersburg and Clearwater, and I also have Brandon and Lakeland projects going right now. MR. SCHOENFUSS: Since Sears Roebuck moved into the Coastland Center where it is now, have you any idea how many different electrical contractors have been working in that store? MR. SERER: I have no idea. MR. SCHOENFUSS: I think it's been many. MR. SERER: I -- I have no idea. Any further discussion? Call the question. All in favor? CHAIRMAN HAYES: MR. SCHOENFUSS: CHAIRMAN HAYES: I call for the vote. (Those in favor responded.). Opposed? MS. WHITE: Aye. CHAIRMAN HAYES: Aye, Gary Hayes. Who else? MR. SCHOENFUSS: I will oppose so it won't be unanimous. MR. DICKSON: We've already got two. CHAIRMAN HAYES: So we have three against? MS. WHITE: Against. CHAIRMAN HAYES: That's Sarah Beth, myself, and Arthur Schoenfuss. Motion carries. Very well, Mr. Serer. Your packet and paperwork will be at the office at the county tomorrow, so you won't be able to get anything taken care of today. MR. SERER: Okay. Is that something that -- that they can do through the mail, or is that something that I have to come back Page 17 April 18, 2001 CHAIRMAN HAYES: Okay. have to ask you to be sworn in. MR. HEMMINGWAY: Yeah. CHAIRMAN HAYES: Okay. for? CHAIRMAN HAYES: I don't know how far along your application process is. It may be something that you have to sign. Do you know, Mr. Nonnenmacher? MR. NONNENMACHER: I don't know. CHAIRMAN HAYES: If you wanted to hang around today and wait till we're done and follow him back to -- follow Mr. Nonnenmacher back to the county offices, they may be able to tell you, but at this point I'm -- I can't tell you. MR. SERER: Okay. Okay. Thank you very much. CHAIRMAN HAYES: Richard Hemmingway, request to waive exam for tile and marble license. Mr. Hemmingway, are you here? MR. HEMMINGWAY: Yeah. CHAIRMAN HAYES: Come up to the podium, please, sir. MR. NONNENMACHER: Staff requests at this time that Mr. Hemmingway be allowed a translator. Mr. Hemmingway, I'm going to Do you understand? A little bit I understand. (The oath was administered to the interpreter and the speaker.} CHAIRMAN HAYES: Very well. Mr. Hemmingway, your request to waive exam for tile and marble license, I think the board has a letter in front of them in your hand perhaps explaining that you have difficultly in language skills and speaking and reading and writing and that's your reason that you don't think you need to take the exam? MR. HEMMINGWAY: Yes. Because I speak little bit English and I cannot read, and I -- I understand not too much, my examine when question me I understand not -- I don't know what Page 18 April 18, 2001 kind of explain. CHAIRMAN HAYES: I understand that there is a exception in the state statute and county ordinance, I believe, that will allow you to have an interpreter on your examination; isn't that right, Mr. Neale? MR. NEALE: I -- that's something I'd have to research. I'm not sure. I would -- I would imagine that's the case. But I'm not sure. MS. PAHL: I know they do it with driver's licenses. CHAIRMAN HAYES: This is not the first case that someone that has a difficult time with our language has had to apply for a license, and I'm sure that there are some form, procedure, at least with the examination people. THE INTERPRETER: May I ask you something? Like, the material he should study, is that available in German language? CHAIRMAN HAYES: That's a good question. I don't know. MR. NONNENMACHER: Yeah. I believe that was his major problem when he came to see me is the interpreter would be supplied at the testing grounds in Gainesville. That would be the only place he could go. The problem he's having is he got all the books, he took all the tests, was unable to understand them and unable to study them, prepare himself before he arrived at the exam center. So although, yes, they do supply an interpreter in Gainesville, he could take an oral test, so to speak, he doesn't know how to study for it. He can't understand, and he can't read the books that he needs to take the test. CHAIRMAN HAYES: I believe that we have the ability to waive testing rights when testing appears to be superfluous. I don't see any other evidence of his experience. THE INTERPRETER: He brought some references. Maybe show this to you? MR. NEAI. E: Mr. -- Mr. Hayes, what I would suggest -- and Page 19 April 18, 2001 this board has reviewed these type of applications a number of times in the past -- is that, as -- as has been done in the past, the board gets affidavits in the proper form as prescribed by the county because there aren't specific ag -- experienced affidavit forms and then the board have the opportunity to review those so I -- I might suggest that the board suggest to the applicant that he put together a full packet and have it come back before this board at a future date. CHAIRMAN HAYES: I agree, Mr. Neale. Did you understand that? THE INTERPRETER: Not completely. Can you repeat? CHAIRMAN HAYES: Yes, ma'am. A full application for license includes affidavits of experience to be filled out -- filled in attesting to his experience. THE INTERPRETER: CHAIRMAN HAYES: THE INTERPRETER: CHAIRMAN HAYES: references. THE INTERPRETER: CHAIRMAN HAYES: THE INTERPRETER: CHAIRMAN HAYES: Is that references? Is that what? Does this include references? Yes, ma'am. It would include We have them. That's not a formal application. Okay. If you would -- Mr. Nonnenmacher, do you understand where we're going? MR. NONNENMACHER: Yes. If you would like to come in and see me Friday morning. THE INTERPRETER: Yes. MR. NONNENMACHER: I will run you through the process of all the paperwork. THE INTERPRETER: Okay. MR. NONNENMACHER-' And then we'll reschedule this for May, Page 20 April 18, 2001 THE INTERPRETER: Uh-huh. MR. NONNENMACHER-' And then the whole packet will be complete, and they can make their decision then. Okay. So Friday morning nine o'clock good? THE INTERPRETER: Yes. MR. NONNENMACHER: Okay. I'll wait for you nine o'clock Friday morning. MR. DICKSON: Mr. Nonnenmacher, would you also verify that these books are not available in German. MR. NONNENMACHER: Yes, sir. MR. DICKSON: Okay. Thank you. CHAIRMAN HAYES: What we're going to do then is withhold any action on this today. You'll apply next month with a full application, and we will review your experiences and perhaps make a recommendation at that time? THE INTERPRETER: Yes, uh-huh. CHAIRMAN HAYES: Okay? THE INTERPRETER: Okay. Thank you. CHAIRMAN HAYES: Thank you very much. THE INTERPRETER: You're welcome. CHAIRMAN HAYES: Okay. MR. DICKSON: That one that didn't come, wasn't here. MR. LAIRD: Yeah. We have Elizabeth Holdridge. CHAIRMAN HAYES: Yes. Is Elizabeth Holdridge here? MS. HOLDRIDGE: Yes, I am. CHAIRMAN HAYES: Will you come up to the podium, please. Right there. I'm going to ask you to be sworn in. (The oath was administered.) CHAIRMAN HAYES: Your name for the record. MS. HOLDRIDGE: Elizabeth Holdridge. CHAIRMAN HAYES: And I'm going to ask you to pull the mike down and stay a little close to it. I'm having a hard time Page 21 April 18, 2001 hearing. MS. HOLDRIDGE'. Okay. CHAIRMAN HAYES: Thank you very much. And your reason for being here? MS. HOLDRIDGE: I would like to qualify a second company with my Landscape Unlimited contractor's license. CHAIRMAN HAYES: The company that you're qualifying now? MS. HOLDRIDGE: Is just myself, my -- CHAIRMAN HAYES: And the name of the company? MS. HOLDRIDGE'. That I'm qualify -- the second one is -- CHAIRMAN HAYES: No, the first one. MS. HOLDRIDGE: It's just Elizabeth Holdridge. I just work under my name. I don't have a -- it's -- it's a sole proprietorship. I didn't go into a fictitious name act. I just basically on my own do consulting work with property managers and things like that. CHAIRMAN HAYES: Okay. I understand. This Leo Jr. Lawn and Irrigation Services? MS. HOLDRIDGE: Yes, is the company that I would like to qualify. CHAIRMAN HAYES: company? Is this another company, or is this your MS. HOLDRIDGE: No. This is another company. This is the second company we would like to qualify -- I'd like to qualify. MR. SCHOENFUSS: Once again, we don't have the existing company listed on Item 9 of the application. This keeps coming up repeatedly. MS. HOLDRIDGE: What-- MR. DICKSON: What's her question? CHAIRMAN HAYES: On the application on Item 9, it says, "List all businesses, firms, entities or contracting businesses you have been associated with during the last ten years," and Page 22 April 18, 2001 everybody writes down N/A. If you're qualifying a second company, there has to be a name down there, the first company. MS. HOLDRIDGE: Oh, I'm -- I'm sorry. I think we had problems with what part was supposed to be on me and what part was supposed to be on his company, and I think that's -- because he's had that company for over ten years. CHAIRMAN HAYES: Who's he? MS. HOLDRIDGE: Jesus Herrera. He owns Leo Jr. Lawn and Irrigation. CHAIRMAN HAYES: I'm going to ask you to come up here since you've been referred to, sir. MS. HOLDRIDGE: And I -- I think that's what that Item 9 was, because he hasn't been associated with another company. He's had his own. And I didn't realize it was me that -- that I was supposed to be writing down there. CHAIRMAN HAYES: Okay. Well, it is you. You're the qualifying agent. MS. HOLDRIDGE: Well, I'm-- CHAIRMAN HAYES: So your company name that you're qualifying currently needs to be in Item No. 9. MS. HOLDRIDGE: Okay. Okay. CHAIRMAN HAYES: Okay? MS. HOLDRIDGE: Besides that, I really -- I haven't done any landscaping in years. I've worked for property managers, and I ran -- did retail store management and things like that for a number of years. I kind of got a little burned out in the landscaping industry for a while and changed. CHAIRMAN HAYES: Sir, may I ask you to state -- be sworn in, (The oath was administered.) CHAIRMAN HAYES: Your name for the record. MR. HERRERA: Jesus Herrera. Page 23 April 18, 2001 CHAIRMAN HAYES: And you own Leo -- MR. HERRERA: Leo Jr. Lawn Service. MR. SCHOENFUSS: Who is Leo Jr.? MS. HOLDRIDGE: He is actually. His dad's name's Leo, and - - have you all heard of Leo's Sod? It's been around here for many years. That's his father. So when he went into business, he became Junior and worked. MR. HERRERA: In the company after that. MS. HOLDRIDGE: Yeah. CHAIRMAN HAYES: How long have you been in business as Leo Jr.? MR. HERRERA: About ten years. CHAIRMAN HAYES: Where is your qualifier for the last ten years? MR. HERRERA: Well, I was doing lawn maintenance, mostly just lawn maintenance work. MR. CRAWFORD: He has a Collier County occupational license for just lawn maintenance. Now he wants to upgrade to landscape. CHAIRMAN HAYES: I understand. Thank you. MR. CRAWFORD: You're welcome. CHAIRMAN HAYES: Miss Holdridge, what's your relationship with Leo ? MS. HOLDRIDGE: I -- when I was a property manager for the last three-plus years, he was one of my -- he was really one of my best lawn maintenance contractors. And so I work -- I worked with him for the past three-plus years. I've known his father -- I grew up here. I've -- I've known his father for 14, 15 years from just sod work, and I'd met him before. CHAIRMAN HAYES: I'm just won -- make sure that you're aware of the depth of your responsibilities. You do have the resolution of authorization where it says, "You are further Page 24 April 18, 2001 resolved and represent that you are legally empowered to act for Leo Jr. Lawn and Irrigation Services in all matters connected with the contracting business." · MS. HOLDRIDGE: Yes. I'm -- I'm aware of that. I didn't take this on lightly. He -- I've worked with him for over three years. I know his family. I know his wife. We've worked together very well. I -- I really believe this will be a very good and positive thing for all of us or all our families concerned and -- with benefiting Collier County with some quality landscape work. MR. NEALE: And, Mr. Hayes, she has signed the affidavit whereby she states that she understands that in all contracting matters will be held strictly account -- accountable for any and all activities involving her license. MS. HOLDRIDGE: I'm actively involved in all of this. CHAIRMAN HAYES: Pardon me? MS. HOLDRIDGE: I'm actively involved with -- I will be actively involved in anything that has to do with my license. CHAIRMAN HAYES: Okay. MR. LAIRD: Mr. Chairman, Laird moves for approval. MR. DICKSON: Dickson, second. MR. SCHOENFUSS: Second. MR. DICKSON: Okay. Whoever. CHAIRMAN HAYES: Dickson second? MR. DICKSON: Yeah. CHAIRMAN HAYES: I have a motion and second. Any further discussion? All in favor? (Unanimous response.) Opposed? CHAIRMAN HAYES: Very well. MS. HOLDRIDGE: Thank you very much. CHAIRMAN HAYES: paperwork is here today. Yeah. The same thing applies. Your You can't do anything more about it Page 25 April 18, 2001 until tomorrow. Okay? MR. HERRERA: Okay. Thank you very much. CHAIRMAN HAYES: You're welcome. MR. HERRERA: Have a nice day. CHAIRMAN HAYES: Okay. Do we have any old business? Then we'll move on to public hearing. We've been in session just about 45 minutes. Do you need a break before we get started with this? The rest of the day probably. No, I'm kidding. I don't know how long. But I just thought if perhaps you wanted to take a ten-minute break before we break open the case. MR. NONNENMACHER: Mr. Chairman, before you take a break, Item No. 2 under public hearings, at this time staff will withdraw that case for further investigation, and it might or might not be put back on the agenda. MR. DICKSON: Can we see -- CHAIRMAN HAYES: Thank you, Mr. Nonnenmacher. MR. DICKSON: Can we see if Mr. Welsh -- Mr. Welsh is not here. Is the gentleman in the audience -- MR. JOHANSON: Jim Johanson on behalf of Mr. Welsh. He is on his way, as far as I know. Not necessary, Your Honor. Mr. Welsh just walked in the door. CHAIRMAN HAYES: Okay. Is a break satisfactory with everybody for a few minutes ? MS. WHITE: Yes. CHAIRMAN HAYES: Well, we'll -- we'll -- break for ten minutes. (A short break was held.} CHAIRMAN HAYES: I want to call this meeting back to order, Collier County Licensing Board. Under public hearings, we have Page 26 April 18, 2001 CLB Case No. 2001-03, Collier County versus Tom Walsh (sic), d/b/a, Tom Walsh Painting. Mr. Ossorio, you want to get things started ? MR. OSSORIO: Yeah. We're still missing Mr. Palmer. He should be here in a few minutes. We've got a quick question. My name is Mike Ossorio, Collier County licensing department, O-s-s- o-r-i-o. How many -- Mr. Chairman, how many commissioners today have Exhibit No. A with them today from last month? CHAIRMAN HAYES: I have mine from last month. MS. PAHL: Art does. You have your Exhibit A from last month? MR. SCHOENFUSS: Yeah. MR. OSSORIO: So three? CHAIRMAN HAYES: Just three of us? MR. LAIRD: Les said he would share his with me. MR. DICKSON: Art has Exhibit B he's holding up. We're talking about Exhibit A-- . MS. PAHL: This one. MR. DICKSON: -- from last month. There you go, Art. MS. PAHL: Exhibit A. That's it. MR. OSSORIO: I know we had -- Exhibit A was put in the record last month. I believe, Mr. Neale, why don't you go ahead and make some copies so that the board at their leisure can look at it and so the court reporter can have a copy as well because I think she's lacking hers today. Am I correct, Mr. Neale? MR. NEALE: Yeah. What's -- I -- I just learned -- the situation is that the court reporter that we have today is from a different company than the court reporter last month. The county changed contracts as April -- as of April 1st. So it would probably be appropriate to maintain a consistent record that we -- this -- that this board re-move Composite Exhibit A into evidence, even Page 27 April 18, 2001 though it's already been admitted formally, just -- just so that we have it on this court reporter's record as well as the previous court reporter's record. Also, I think all the members of the board should have a copy of it to review as part of the case, and then we'll be adding, I -- I believe the county will be moving in Composite B. MR. OSSORIO: That is correct. CHAIRMAN HAYES: So I need a motion to move Exhibit A into evidence in today's hearing? MR. NEALE: Well, really, it's -- it's already been accepted into evidence, just to represent it so it can be maintained in the record of today's proceedings. CHAIRMAN HAYES: Very well. Somebody want to make a motion to that effect? MR. DICKSON: Dickson, I move that Composite Exhibit A on this case be entered in as evidence. MR. CRAWFORD: Crawford, second. CHAIRMAN HAYES: I have a motion and a second. Any discussion? All in favor. (Unanimous response.) CHAIRMAN HAYES: Opposed. And you're saying, Mr. Neale, that the county will move for Exhibit B to be -- MR. NEALE: I can't speak for them, but that's -- MR. OSSORIO: That is -- that is correct. At this time Collier County licensing department would wish to put into evidence Exhibit No. B which will be Case No. 2001-03-B. MR. DICKSON: Dickson, so moved. MS. PAHL: Pahl, second. THE COURT REPORTER: Okay. And shall I mark that now? MR. NEALE: Mark that as County's Composite Exhibit B. Page 28 April 18, 2001 And also if the respondent has any -- respondent's counsel has any comments on it or objections to it at this point. MR. JOHANSON: No objections. MR. NEALE: Who does not have a copy of Composite A? MS. PAHL: And the court reporter. MR. NEALE: Five. MR. DICKSON: Well, I can give my copy to Mr. Crawford, Mr. Laird, and they can look on together, and I'll look on with -- MS. PAHL: I can share on yours. MR. NEALE: And as long as there's an extra copy, I'm going to '' MR. DICKSON: Why don't you give that to the court reporter. MR. NEALE: Okay. Yeah. Then I'll give her mine when -- when we're done. CHAIRMAN HAYES: Is that satisfactory? Okay. I have a motion and a second on the floor to admit Exhibit B into evidence. All in favor? (Unanimous response.) CHAIRMAN HAYES: Opposed? Very well. Do you want to proceed, Mr. Ossorio? MR. OSSORIO: Yes. Good morning, Mr. Chairman. I'd like to go ahead and turn to Composite Exhibit No. A. And if you look on Count I of Section 4.1.2 on the bottom of the page, the first page, it was established last month that he was working out of the scope of his license per our March 21st meeting, that he admitted to us that he did work outside of the scope of his license. I wish at this time -- the licensing department wishes to go ahead and drop the charges on the second page of Count 2 on Exhibit No. A. That's 4.1.8, committing mismanagement or misconduct in the practice of contracting that causes financial Page 29 April 18, 2001 harm at this time. On Exhibit No. A, which would be Roberta Rigney's house located at 3930 Belair in the City of Naples -- so we want to go ahead and put Exhibit -- Composite No. A aside and go right into Exhibit No. B, same case. Have I stated that correctly, Mr. Palmer? MR. DICKSON: So we're just dealing with one charge and one charge only; correct ? MR. OSSORIO: No. We're going to be dealing with two charges on Exhibit No. B, which would be working out of the scope of his license and mismanagement of funds. MR. DICKSON: Okay. MR. OSSORIO: Exhibit No. A we're just finding the fact last month that he worked out of the scope of his license. MR. DICKSON: Okay. MR. OSSORIO: On page 53 of the board minute -- minutes last month, he stated on record that he did work out of the scope of his license, and he will be dealt with by penalty phase at the end of the meeting today. So we can put those together and findings of fact, and we can establish between A and B. MS. CHADWELL: If I could clarify things -- I'm sorry. I'm Ellen Chadwell. I'm assistant county attorney. Mr. Palmer was here filling in for me. I had a hearing this morning. The first case against Tom Walsh (sic) which was heard by this board last month, the complainant in that case was Roberta Rigney. Exhibit A which was evidence in that case was admitted into the record at that time, and Mr. Welsh did admit that he -- to the first violation, which was operating outside the certificate of competency. So at this point Mr. Ossorio is asking that the board go to the penalty phase on that issue, and then he is bringing a new case against Mr. Welsh today base -- based on a complaint filed by Dr. Roberta Hurton -- Horton. Have I expressed that Page 30 April 18, 2001 correctly ? MR. OSSORIO: That is correct. It's going to be the same case number. MS. CHADWELL: It -- it has the same initial number, but it's followed by a -- a B, a letter B. MR. NEALE: Just to remind the board, if -- if I may, before we get fully started and also for benefit of -- of Mr. Welsh's counsel, the normal process that this board follows is statutory. And the normal way in the -- in which this board has conducted its hearings is for the county to make an opening statement, then the respondent to make an opening statement, the county to put on its case in chief, the respondent to put on their case in chief, county to rebut. Then both sides are able to give their closing arguments, and that's normal process that this board's followed for the five years that I've been representing them. As always, all testimony is taken under oath. However, the rules of evidence were a bit relaxed from that of a typical civil trial situation in that hearsay may be admitted, but it may not be used as the sole basis for a decision in this case. Aside from that, what the board will have to do is at the end of this reach conclusions -- findings of fact and conclusions of law as to whether to dismiss or to find that the violate -- that the violations were committed and then come through a penalty phase. The county is suggesting at this point that for -- as to Count A I guess we would refer to it, the Rigney case, that Mr. Welsh has already admitted contracting outside his license and that it would be solely to the penalty phase. I would suggest in an excess of caution and to preserve the due process rights of the respondent, that if his counsel wishes to respond to that that the board provide him that opportunity. MR. DICKSON: Can I ask the question, Mr. Neale, and since - - since I chaired this last month and Mr. Hayes wasn't here and Page 31 April 18, 2001 some of the board members -- or just one was not here, do we have to do it that way? My preference is not to go on Count A -- . MR. NEALE: Uh-huh. MR. DICKSON: -- and go straight into a penalty phase because what we're going to hear here today will affect decisions of that penalty phase. MR. NEALE: Uh-huh. MR. DICKSON: I would like to postpone the penalty phase for what he has already admitted to on that first charge, hear the entire case, and then combine them together in one. MR. NEALE: Certainly the board is required by statute and by county ordinance to consider a variety of factors in determining the penalty -- penalty to be imposed, if any. And those factors certainly include other offenses and -- exact language so that I'm providing the board with correct information here. The board under Collier County ordinance is required upon -- when imposing any disciplinary sanction to consider the evidence, all the evidence, presented at the hearing as well as the gravity of the violation; the impact of the violation on the public health, welfare, or safety; actions taken by the violator to correct the violation; previous violations committed by the violator; and any other evidence presented at the hearing by the parties relevant as to the sanction which is appropriate for the case given the nature of the violation and the violator so -- CHAIRMAN HAYES: I don't have a problem if we wanted to postpone what I want to call adjudication on the admitted-to charges until the end after we've heard the entire case. Mr. Neale, do you -- you don't necessarily have an objection to that? MR. NONNENMACHER'- Staff does. CHAIRMAN HAYES: Okay. I'll -- I'll get to everybody. I'm going to quiz everybody but -- MR. NEALE: I don't have any -- I don't have any difficulty Page 32 April 18, 2001 with that. I would only suggest that as to the findings of fact and conclusions of law that those should be separated on -- as to the two cases because you've heard no -- no evidence, really, on Case B, the Horton case. However, sanctions would -- would be best laid after the hearing of both matters. I would analogize this to a case that this board heard several years ago wherein the respondent was charged with something like 46 different violations. The board heard the process -- heard all of those separate violations and then determined a penalty, and it was brought as one case number also. CHAIRMAN HAYES: That's the way that I felt about it. Mr. Nonnenmacher? MR. NONNENMACHER: Yes. Staff has no objection to the penalty phase itself being held off until the end of Case B. Staff respectfully requests that the board adjudicate the case for the simple reason that the case was heard in its entirety, and we no longer have witnesses on that first case here. So staff would have no objection whatsoever if you wanted to hold off the penalty, but the adjudication, like I said, we respectfully request that you adjudicate that case and postpone the penalty part of it until the end. MR. DICKSON: But the case was not heard in its entirety. MR. NEALE: I would -- what I would suggest is that -- and -- and since this board does reach two different sets of conclusions that the board first reaches as to whether the violation has been committed and then evaluates the sanctions to be imposed, is I would suggest that as to Count A the members of the board who were presented at last meeting reach the adjudication of that because then the whole board can hear evidence as to the sanctions to be imposed on the whole case. CHAIRMAN HAYES: I think that's an excellent idea. So Page 33 April 18, 2001 basically what we're saying is that we'll go through the order of the board and the findings of the facts and conclusion of the law and hold the order of the board based upon foregoing findings and facts until after we've heard everything today. MR. NEALE: Right. So the only members voting on the violation as to Count A will be Mr. Dickson, Mr. Laird -- oh -- Mr. Joslin is not here -- Mr. Schoenfuss, and Ms. White. CHAIRMAN HAYES: Does that constitute a majority, a quorum? I think you got a problem with that. I don't believe that's going to be a quorum. You see, the order of the board is voted upon by the board. I think a motion and a finding of fact is probably something that we could do as a group, and then -- I'm sorry, that we could do as the individuals that was here last -- last month. The order of the board, when we take the vote for the penalty, after hearing the whole case today, all this board could perhaps act on that. I'm just looking at breaking the -- the order up into the two phases that you're talking about. Go through the order, the findings of fact, and the conclusion of law, and then the order of the board be held off and voted on at the end of the day. MR. DICKSON: Mr. Nonnenmacher-- I'm sorry. Mr. Neale, if you remember last month, we did not hear all of Case A. MR. NEALE: Uh-huh. MR. DICKSON: We stopped it because we were using a witness who wasn't a part of the case. And rather than jeopardize the case on an appeal process, we stopped it. So basically -- MR. NEALE: Uh-huh. MR. DICKSON: -- yes, he did admit to it, but we didn't hear all the facts because we stopped it ourselves. MR. NEALE-- Okay. I would -- MR. DICKSON: And now we don't have a quorum. Page 34 April 18, 2001 MR. NEALE.' I think I -- on further consideration, I can probably withdraw what I had said to this board, since it was not a completed case, the board never reached an adjudication on that matter. There was an admission on the record. The respondent now has counsel here and has the opportunity to respond to those charges. And I think the whole board could profee -- proceed forward in hearing both matters and concluding on both matters. But I would still suggest that they have to find separately on the two cases as to the violations. CHAIRMAN HAYES: I'm not quite sure I understand. Are you asking -- suggesting that we rehear Case A? MR. NEALE: I wouldn't suggest that we rehear it. This is a continuation of the previous hearing and that it will be going forward. CHAIRMAN HAYES: Okay. If the -- was the procedure you outlined earlier, Mr. Neale, followed last month? MR. DICKSON: Yes. CHAIRMAN HAYES: We started with the county. Then we went to the defendant. Then the county -- MR. NEALE: Uh-huh. CHAIRMAN HAYES: -- came back. MR. NEALE: It was not concluded. CHAIRMAN HAYES: But it was not concluded. So actually then basically we left off with the county's rebuttal? MR. NEALE: We -- we had left or -- MR. DICKSON: We left off with a presentation of a county witness which, when we found out that witness was not the complainant in the case -- and that's when we stopped it. MS. CHADWELL.' That was as to the second count. There were two provisions that the contractor was cited under. One was operating or acting outside the scope of his competency, and the other was mismanagement. What was -- evidence was Page 35 April 18, 2001 taken as to Count 1. The admission on the part of the contractor, which is a part of the record, was as to Count I of that. And then Mr. Ossorio proceeded to present evidence through the form of that witness as to -- to the second violation. We're now withdrawing that. But I think what perhaps we should do is we can conclude that case by reading into the record the statement from the contractor. The Exhibit A, I assume, is in front of all the members of the board at this time. Perhaps Mr. Ossorio could just simply identify the documents that cons -- comprise that exhibit and then conclude presentation of our case and then allow Mr. Welsh to present his defense and at which point then there would be closing arguments on both sides and then you-all can issue a finding with the full board here. MR. NEALE: Uh-huh. MS. CHADWELL: And then we'll go on to our Case B, and then we'll -- you-all can order the actual sanctions that you think are appropriate after hearing the second case. CHAIRMAN HAYES: In other words, basically, I think if I understand what you're saying is that a slight review by Mr. Ossorio and identifying the contents of the packet that was exposed in Exhibit A last month for a review and updating of those members perhaps that weren't here, and then we can go on with the conclusion. MR. NEALE: And I concur with Miss Chadwell's approach to that. CHAIRMAN HAYES: Mr. Ossorio, you understand that? MR. OSSORIO: Yes, Mr. Chairman. CHAIRMAN HAYES: Okay. MR. JOHANSON: Kent Johanson of Johanson Law Office of Bonita Springs, Florida, on behalf of Mr. Welsh and his company. I just wanted for clarification standpoint, it's -- it's my understanding that there were two complaining parties. There Page 36 April 18, 2001 was a Roberta Rigney and a Roberta Horton. And the case that was previously before this board concerned a Roberta Rigney. And if-- if I'm not mistaken, there was a two-count complaint regarding Roberta Rigney, Count I being a violation of Section 4.1.2 which is working without -- outside the scope of his license, and then the Count 2 identified in -- from the complaining witness was the committing mismanagement or misconduct of the practice of contracting that causes financial harm to the customer. I just want to for clarification -- is it the staff's position then today to drop that Count 2 and not proceed on that Count 2 regarding that complaining witness, Roberta Rigney? MR. OSSORIO: That's correct. MR. JOHANSON: Okay. So when we're talking about then proceeding on Count 2 today, we're talking about, although it's the same case style, a separate complaining party, that being Roberta Horton. And that is, in fact, also a two-count complaint. MR. OSSORIO: That's correct. MR. JOHANSON: Okay. I -- I just wanted to make sure that - - because the way it's -- it's labeled for, you know, appeal process or whatever to make a clear record of that's what's going on. Thank you. CHAIRMAN HAYES: Thank you, Mr. Johanson. Mr. Ossorio, do you want to proceed then? MR. OSSORIO: Yes. If you look into page 53 of the minutes of last month of March 21st, 2001, I'll read you a little excerpt in there. "1 realize that I "-- this is from Mr. Welsh. '1 realize that I broke the rules of the contracting when I had someone move a wall in the kitchen. I realized that. I know that that's a fact. But as far as anything else, financial harm, it didn't happen," end quote, from last month, page 53 of March 21 st, 2001. For the board members who have Exhibit No. A, I'll go ahead and give you an overview of what transpired. If you look on E-8 Page 37 April 18, 2001 on Exhibit No. A, it says, "Tom Welsh, reference 33930 Belair, 2207, Naples, Florida, 34103." and it lays out on E-8 through E-9, E-10. And that is a written document from Tom Welsh Painting Service to the complainant, which would be Roberta Rigney. And it spells out "Per our discussion yesterday, I'm providing the following agreement in writing: Estimate of cost for contracting at above location." and it goes on by purchasing drywall, electrician, and the whole contract price is for roughly $18,960 if you can look in -- on the bottom of page E-9. E-11 is dated February 14th, and it was hand delivered to Mr. Welsh saying that he's had a formal complaint against his license which is a painting license, license number or competency certificate 12038. And it was hand delivered on March 14th -- actually February 22nd, '01, and it spells out that he has to appear before the March 21st hearing. E-12 was a statement or written documentation from the complainant, Roberta Rigney. And you can read that at length at your leisure, and that goes on from E-12 to E-13. And the statement is true and correct by Roberta Rigney. E-14 is -- has no relevance since we're not going to part number to Count A, so that's probably something we shouldn't even get into. CHAIRMAN HAYES: In reviewing Exhibit B, I believe I saw an excerpt of that in Exhibit B anyway. MR. OSSORIO.' That will -- that will come in effect when we do Exhibit No. B. CHAIRMAN HAYES: Right. MR. OSSORIO: You can see citation 0856, Tom Welsh, for contracting without a license, which at the time he has not paid his penalty. Because that -- I suppose he's going to be contesting the citation at a later date. E-17 and E-18 is just something I put in there for leisure so Page 38 April 18, 2001 you can look at what the definition is as a contractor versus what a painting contractor or subcontractor can do. And you can see E-20 and E-21 is when code enforcement got involved back in June, one, they observed -- and you can read on your leisure -- on above date the observed stop work order at 1000 Palm Drive at Apartment 103, checked the apartment, no work being done, throughout window, observed major -- and you can see highlight ma]or if you like -- major renovation being done. And this is where we established that in Count I that we -- we found him guilty of working outside the scope of his license. CHAIRMAN HAYES: Okay. MR. OSSORIO: That is the conclusion of the overview of Exhibit No. A. If there are any questions of the board members, I'll be glad to help you in any questions. MS. CHADWELL: I -- I need to interject something here. I'm sorry. Exhibit E-20 and Exhibit E-21 pertain to the Horton case. MR. OSSORIO: That is correct. I apologize. MS. CHADWELL: So those should be disregarded as well. MR. NONNENMACHER: And, Mr. Chairman, at this time, if necessary, staff would like to introduce page 53 of March 21st, 2001, minutes into evidence since we used it. CHAIRMAN HAYES: I don't think we need to notate that as an exhibit. MR. NEALE: As long as it's on the record -- it's in the previous record and, you know-- CHAIRMAN HAYES: That's correct. MR. NEALE: It's -- that's part of the official record. So I don't think it needs to be entered as a separate exhibit. CHAIRMAN HAYES: But so noted. Mr. Ossorio, anything else? MR. OSSORIO: No, Mr. Chairman. CHAIRMAN HAYES: Mr. Johanson, do you want to address Page 39 April 18, 2001 anything or make any disclosures? MR. JOHANSON: Yes, Mr. Chairman. First of all, again, I'm -- I'm Kent Johanson. I'm here on behalf of Tom Welsh, Tom Welsh Painting. And let me first state that I personally and my -- my personal feelings are that anyone who does work certainly should be a licensed contractor or licensed specialty contractor. I realize the importance of that. In fact, I serve on the board of the American Specialty Subcontractors Association as their legal counsel. I despise those who come over to our county and practice contracting -- do contracting work without a license. I don't appreciate it. I don't approve of it. But why I got involved in this particular case is I wanted to make sure that Mr. Welsh's rights and due process rights were adequately protected, and that's the reason I'm here today, because if you dilute those rights, if -- if you go against someone on a charge that is unfounded, arguably, you dilute the rules, and it really weakens the system when there are others to go after, and -- and that's why I got involved here. Part of the reason or the basis on the Roberta Rigney case by the staff's own admission has been dropped, that being Count 2. I certainly had a problem with that. Mr. Welsh was not represented at the previous hearing. Certainly he made some admissions. Those can be taken and considered by this board. And, in fact, that, again, was cited as part of the evidence, in fact, that he admitted as to Count 1. But I -- I would just point out to the board when it considers on the penalty phase portion if the board certainly will do the penalty phase after both hearings, after the Roberta Horton, that the board solely look as to the record of the transcript of those who spoke here at that hearing. I -- I don't know if Roberta Rigney was -- was present at that hearing. She's not present here today, and I think that is one of the reasons why Count 2 is being dropped, because there's no Page 40 April 18, 2001 one who can give nonhearsay testimony as to the financial harm caused. And I'm not aware of whether or not Roberta Rigney was present at the initial hearing. So I -- I ask that this board when considering the penalty phase, you review solely the -- the testimony in front of it. Do not rely on what has been excluded from the exhibit of the packet of Exhibit A, that being any correspondence regarding Roberta Horton, because, quite frankly, what was used at that hearing to prove the Roberta Rigney case was evidence from Roberta Horton, clearly not proper, a violation of due process rights, no opportunity to defend or contest and, again, that the board made the right decision in -- in stopping the proceeding and continuing it here today. And then now we've got another charge strictly involved and solely involved with Roberta Horton. I would just ask -- and, again, the admission was made. But look at the definition of contractor, either the state definition or the -- the county definition. A contractor means the person who is qualified for and shall only be responsible for the project contracted for and means except as exempt in this part. The person who for compensation undertakes to submit, submits a bid, I -- I -- I highlight for compensation and -- and that's similar to the Collier County statute as well because I think if you review the evidence, although Mr. Welsh acknowledged that he took a -- that a wall was taken out, I -- I don't know if there's any evidence that was presented that for what he did which required a license you received compensation for. What -- what we have is a painting contractor who is licensed as a painting contractor. So we're not dealing with an individual who's unlicensed. He was just doing work admittedly beyond the scope of that license. He was contracted to do painting. He came in to do painting. I think the evidence reflects that. He, in fact, did painting. In the course of Page 41 April 18, 2001 that there were other -- it would appear that there was other work that was to be done. And I believe the evidence in front of you from the last hearing reflected that Mr. Welsh himself, other than taking out one nonload-bearing wall, had licensed contractors, licensed specialty subcontractors, do the other work, the electrical work, the plumbing work. The only thing he did physically in his company beyond the scope of his employ and his license was to remove a -- one nonload-bearing wall. And for that he acknowledged he went beyond the scope. So I just ask that the board consider that that is, in fact, the situation. We don't have a situation -- and the evidence did not -- and there's no evidence to -- to rebut it -- that Mr. Welsh and his company was in there doing electrical work, plumbing work, doing any specialty contracting work other that -- that which required a license other than taking out one nonload-bearing wall. I think that's important, you know, for the penalty phase because, again, we have a gentleman who is, in fact, licensed. It's -- it's -- basically, he has a network of people that he's used in the past. He contacted those people, licensed specialty subcontractors, to do plumbing work, to do electrical work. Arguably, he is not a general contractor. To do what he did, he should have been a general contractor. But did he profit from getting others involved? There's no evidence to reflect that he received compensation in basically asking -- acting as the bank, taking in money, and -- and giving it to the specialty subcontractors for the work they did. And I would point out there's absolutely no evidence in the record to reflect that there were any liens placed on that property and not released or any existing liens for any work that Mr. Welsh or his company did. Okay. And, again, I just also want to make it clear that there is no Page 42 April 18, 2001 evidence that the wall that was removed was a -- a component that was a load-bearing wall. From my understanding, it didn't support any weight other than itself. Certainly to remove it is beyond the scope of a painter's license, but it didn't cause any harm. It wouldn't have caused any harm, but certainly it should not have been done. So just consider those -- those aspects. And, again, when you have the admission of Mr. Welsh -- and I'm not going to go in and take the board's time to -- to question him on that, whether he understood what he is admitting to or not or whether he clearly understood the definition, but there's no evidence that he received compensation for what he did beyond the scope of his license. So just take that into consideration. CHAIRMAN HAYES: Thank you, Mr. Johanson. Mr. Ossorio, do you have any -- MR. OSSORIO: I just want to go ahead and have the board -- if they can look at E-8 through E-9 -- and it spells out in black and white. It says Tom -- Tom Welsh Painting Service. And I don't want to go ahead and be redundant, but as you can clearly see, that scope of work; drywall, kitchen, doors, electrical, plumbing -- and it really doesn't mention anything about painting. And the whole job is 18,960. As you can probably hear testimony this morning, it is unfortunate that Mr. -- Mr. Welsh's attorney did state that he did act as a general contractor and for probably what's -- seems liens seen, we have no problem with that and -- Exhibit No. A. We just want to conclude by saying that he did work outside of the scope of his license, and we'll leave it at that. CHAIRMAN HAYES: Thank you, sir. Mr. Neale, I've got a little bit of a question regarding our packet and Exhibit A. We have these forms. These seem to be a little bit different forms than what we've been used to. Page 43 April 18, 2001 MR. NEALE: No. CHAIRMAN HAYES: Okay. My question is starting on page 1, under order, findings of facts and then all the way through to the conclusions of law. The next thing it says is order of the board. And it says a vote for what sanctions, disciplinary sanctions. Nowhere in here does it cite what we've found as a conclusion of law, specifically section -- where to insert section 4.1.2 as we concluded that he was in violation of this section. MR. NEALE: Yes, it does. CHAIRMAN HAYES: Where at? MR. NEALE: If you look -- in page 1, what -- this is the form that is now -- and we've -- the board has used it on a couple of previous cases -- we haven't had a case in awhile -- CHAIRMAN HAYES: Maybe that is why I don't recognize it. MR. NEALE: This is the form that was adopted by the state and that we are now essentially required to use. If you note that this refers to the administrative complaint which is included in the exhibit, and that is where the charges are found. So what it does is it refers to the administrative complaint. It also refers -- can refer to additional evidence presented. And then if you note under conclusions of law, it says the conclusions of law alleged and set forth in the administrative complaint are proved, adopted, and incorporated herein; in this instance would probably be the conclusions of law, the conclusions of law, alleged and set forth in administrative complaint as amended are approved, adopted, and incorporated herein. CHAIRMAN HAYES: Okay. So it's basically doing that by reference. MR. NEALE: That's -- that's the way the new state form works so -- CHAIRMAN HAYES: Okay. Mr. Neale, do you have anything else to say before we make a motion on this? Page 44 April 18, 2001 MR. NEALE: Well, I -- what I would suggest is, since miss -- Mr. Ossorio has made some additional comments and Mr. Johanson, you know, to make sure that he feels that his client has been adequate due process, if he has any further comments to make on the Rigney case as to the -- the specifics of the viola - - you know, as to the violation itself, not the penalty phase, that he be allowed to make them, then I would suggest that to the board. CHAIRMAN HAYES: Okay. Mr. Johanson. MR. NEALE: Essentially in the nature of a closing argument. MR. JOHANSON: Thank you. First all -- of all, I would just like to point out, because opposing counsel or staff mentioned the language of the contract, cited Exhibit page E-8, E-9, and E- l0. The -- the statement was made that nowhere in the contract does it address painting, and I believe that to be a misstatement. Clearly E-9, a good portion of the scope of work -- work talks about painting ceilings and walls and all rooms. In fact, there is an amount for that. I would also then point out on E-8 that it does show and provide Mr. Welsh's license for painting and wallpapering, making it clear that that contract or proposal has Tom Welsh Painting and Wallpapering and then again gives his license. I would also point out the language down below. It talks -- it states that the contractor would agree to do the following work at the home located at 3930 Belair, Unit 207, either through his own labor or by coordinating the work of additional subcontractors; is further understood that all work will be done by licensed and insured contractors. Again, I would just point out nowhere in this proposal is he holding himself out as a general contractor. It states what he is, in painting and wallpapering, also make it clear that he states that there will be others working on it, and those will be licensed Page 45 April 18, 2001 and insured contractors. And, again, there's no evidence on the record to reflect that the other work that was done in that scope of work was done by other than licensed, insured specialty subcontractors. So, again, I just want to point out when you're talking about a person working down the scope of his license, he's not out there to the public holding himself out as to anything that he is not. But, again, he has a network of subcontractors and others that -- or other contractors that he knows, he knows that will get the job done, get it done in a timely fashion. And he recommends that they be used, and he uses them as a referral source. What got him in trouble here is, basically, acting as the bank, taking in the money, and then paying out those subcontractors and removing that one load-bearing wall. That's what got him in trouble here. Thank you. CHAIRMAN HAYES: Thank you, Mr. Johanson. Mr. Neale, do I just -- do I need to close the public hearing on this case, Exhibit A? MR. NEALE.' You need to close the public hearing as to the -- the violation phase of Section A of Case 2001-03. CHAIRMAN HAYES: That's what I was thinking. I need a motion to close the hearing on Case 2001-03-A. MR. DICKSON'- Are we calling that A? It wasn't A last month. MR. NEALE: Well, in that there's now a B, we have to call it something · MR. DICKSON: Okay. MR. NEAL. E: At least for ease of reference, we need to do that. MR. DICKSON: Dickson, I move that we close the hearing on contractor licensing board Case No. 2001-03 A, Collier County versus Tom Wells -- Welsh. I'm sorry. Page 46 April 18, 2001 MR. LAIRD: I second that motion. Laird. CHAIRMAN HAYES: I have a motion and a second. All in favor? (Unanimous response.) Opposed? As our procedure normally follows, at this point we discuss on the board before we make a motion on the conclusion of law and findings of fact. Anybody care to start that discussion? MR. DICKSON: Dickson, I do. Mr. Welsh admitted to doing work beyond the scope of his contract. We can play semantics all day long and say that he just arranged it and handled the money, but that's exactly what a general contractor does. And, also, if you look, there's notes to that on page 58 in last week's (sic) minutes, we discussed the -- we discussed the wall on page No. 60 where he said, "Yes, I would never do that again." fortunately, it wasn't load bearing. Had it been load bearing, it could have had serious consequences. In more than one case Mr. Welsh admitted that he knew what he was doing was wrong. Also on 58 you had a reference to he admitted to a ]ob he did in Lee County, similar circumstances. So to me it's cut and dry. The man admitted to it. That settles it. MR. CRAWFORD: Crawford, I completely agree. As a general contractor, it disturbs me that a painting contractor is performing drywall, cabinets, plumbing, electrical work. He's clearly acting outside of his license as a general contractor. That's why we have categories, and he stepped out -- outside the bounds. CHAIRMAN HAYES: I think, as Mr. Johanson stated, he clearly in his contract says he is not going to act as a drywaller and cabinet man, but he is going to provide that service. And even though that that was done by a licensed contractor, I'm still -- based on the fact that in his contract he enumerates a Page 47 April 18, 2001 specific amount to be charged there and he collected that specific amount, that he is acting as a subcontractor or a general contractor because he is collecting the money and then paying the subcontractor. Nowhere in here in his contract does it say that he will pay those receipts submitted to the owner. MR. CRAWFORD: He -- he's acting exactly the way a general contractor would, and that's my point. CHAIRMAN HAYES: That's my point. Okay. MR. SCHOENFUSS: On page E-8 and E-9 the scope of work all through that interleaved are plumbing and electrical items that are incorporated into the grand title of the scope of the one contract. CHAIRMAN HAYES: I think personally by virtue of the fact, with me, that -- that he's enumerated these specific amounts for these spec -- specific trades doesn't mean that he himself is going to do it. However, it does mean that he is going to hire it done. And that by itself constitutes a general contractor. MR. DICKSON: Dickson, I move that Mr. Welsh be found in violation of Section 4.1.2, contracting to do work outside the scope of his competency as listed on his competency card and as defined by the ordinance or as restricted by the Contractors' Licensing Board. CHAIRMAN HAYES: I have a motion. I need a second. MS. WHITE: Second. CHAIRMAN HAYES: I have a motion by Dickson and a second by White. Any further discussion? All in favor? (Unanimous response.) Opposed? CHAIRMAN HAYES: Very well. Mr. Neale, do we need to read the order? This cause came before the public hearing. MR. NEALE: Yes, please. Page 48 April 18, 2001 CHAIRMAN HAYES: I'm going to go as far as the order of the board and then stop. MR. NEALE: Correct. CHAIRMAN HAYES: Okay. This case came -- came on for public hearing before the Contractors' Licensing Board on April 18th, 2001, for consideration of the administrative complaint filed against Tom Welsh. Service of the complaint was made by certified delivery in accordance with the Collier County ordinance 90-105 as amended. The board, having heard testimony under oath, received evidence, and heard arguments respective to all appropriate matters, thereupon issues its finding of fact, conclusion of law and order of the board as follows: The findings in fact that Tom Welsh is a holder of record of con -- cert -- certificate of competency No. 10 -- 12038; No. 2, that the Board of County Commissioners of Collier County, Florida, is the -- is the complainant in this matter; No. 3, that the board has jurisdiction of the person of the respondent and that Tom Welsh was present at the public hearings and was represented by counsel; No. 4, all notices required by Collier County ordinance 90-105 as amended have been properly issued; No. 5, the allegations of fact as set forth in the administrative complaint are approved, adopted, and incorporated herein by reference as fact -- findings of fact. MR. NEALE: Mr. Hayes, if I may, in that the administrative complaint was amended by the -- the county, that you may wish to state in there that the allegations of fact as set forth in the administrative complaint as amended during the course of the hearings are approved. CHAIRMAN HAYES: I was going to do that on the conclusions of law but -- MR. NEALE.' Well, I think you need to do it under fact and under law. CHAIRMAN HAYES: Okay. Fine. To restate an amended Page 49 April 18, 2001 Section 5, the allegations of fact as set forth in the administrative complaint as amended and heard today are approved, adopted, and incorporated herein by reference as findings of fact. The conclusions of law -- the conclusions of law alleged and set forth in the administrative complaint as amended are approved, adopted, and incorporated herein. I believe I can withhold the order of the board until we hear Case No. B. MR. NEALE: Uh-huh. CHAIRMAN HAYES: Okay. So we have settled, then, the first section. We'll go to Case No. B. Mr. Ossorio, do you want to proceed with that? MR. NEALE: Just -- just as a reminder so that we've got process, opening statements, case in chief, case in chief, rebuttal, closing statements. CHAIRMAN HAYES: Opening statements-- MR. NEALE: Opening statement. He present -- the county presents their case; Mr. Johanson presents his case; then each side gets a chance -- then he gets a rebuttal, then closing arguments, rebuttal and closing argument. CHAIRMAN HAYES: Okay. Mr. Ossorio, do you want to go ahead and state your opening? MR. OSSORIO: We're going to go ahead and defer to Mr. Johanson, so he can go ahead and open his case first. CHAIRMAN HAYES: Very well. MR. JOHANSON: Thank you, Mr. Chairman. Again, Kent Johanson on the record on behalf of Tom Welsh, d/b/a Tom Welsh Painting, here defending Mr. Welsh as the respondent in the administrative complaint alleging Count 1, the violation of Section 4.1 -- I -- excuse me, Section 4.1.2, contracting to do work outside the scope of his competency as listed on his Page 50 April 18, 2001 competency card and as defined in the ordinance or as restricted by the Contractors' Licensing Board and Count 2, Section 4.1.8, committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Mr. Chairman and -- and the board, I think it will be clear after hearing the evidence today. And -- and, again, I know we're not in a court of law and the rules of evidence are somewhat relaxed. But as far as the rules regarding due process and the burdens of -- of proof, again, it -- it is the county's and the licensing board's staff's responsibility to -- to prove that Mr. Welsh has committed the violations. There has to be firsthand testimony, nonhearsay testimony, regarding the violations. I believe after you hear the case in chief on behalf of the complainant, you will find that there was -- there will be no evidence to support the claim that there was any mismanagement of any funds. I think the evidence will -- will also show that early on in -- in this process, that being the process in which Mr. Welsh became involved with Dr. Roberta Horton and her -- in her home, that soon after, within a month, month and a half, the -- the project was red tagged, and after that point in time, Mr. Welsh and his company did no further work. In -- in fact, early on the evidence will show that there was a licensed general contractor who came in and did work on that project of which Mr. Welsh and his company should not be responsible either for the work that that general contractor did -- and what I'm talking about is the principal built, William Spinelli and his company, Titan Homes, which I believe is a licensed general contractor who was contacted by Dr. Roberta Horton to come in and review her situation and complete the work on her property. After Titan Homes and the general contractor came in, Mr. Welsh had no further involvement in that project. He was not Page 51 April 18, 2001 further involved with the cost -- further cost of that project. I -- I believe the evidence will show that when the individuals who Mr. Welsh subcontracted with to come in and do work on that particular property and for which he was paid reached an agreement directly with Roberta Horton or Dr. Horton to continue doing work because the individual, a David Ostel -- there will be evidence to the effect that Mr. Ostel was doing work in that property while Mr. Welsh was involved and Mr. Welsh, in fact, brought Mr. Ostel to Dr. Horton. But the evidence will also show that Titan Homes continued to use and continued to contract with David Ostel. So if what is going to be clear, that if the financial harm that's going to be allegedly caused was having to go in and pay for the necessary permits to do the work, for having the necessary inspections on the project, for hiring a general contractor, it's hard to say that those were expenses that were incurred as a result of Mr. Welsh coming in and doing any work because, arguably, there were expenses that should have been incurred up front, and she would have had to pay him up front. And the fact that she had to pay him after the process started doesn't relieve the situation that she would have had to incur those expenses anyway. So what's clear is when you look at the statements and made a part or to be put into the evidence, I believe, today by opposing party, it will be clear that the financial loss that she's complaining of is financial expenses she would have incurred initially anyway and had nothing to do with Mr. Welsh. And certainly Mr. Welsh should not be responsible that if the project ends up costing more money than Dr. Horton thought it would cost initially, if those monies are being paid to another -- to a general contractor after Mr. Welsh and his company are no longer involved. Page 52 April 18, 2001 And that's what I'm seeing here. I'm -- I'm seeing a complainant who, I think, clearly an educated woman, clearly, again, knew Mr. Welsh and his painting company and knew that he was a painting contractor and that's all he was licensed as. Again, Mr. Welsh did not hold himself out as a general contractor. There will be no evidence that he held himself out as a general contractor on this particular project. The evidence will show that any work that was done was not by -- done by Mr. Welsh who had a contract with any general contractors. There's no written contract, I believe, that's going to be introduced into evidence today to show that Mr. Welsh was holding himself out as a general contractor. And I believe there will be no evidence to show that Mr. Welsh himself or his company received any compensation above and beyond what he was owed for his painting. And as far as mitigation, there will be evidence to show that -- that there's very little work that needed to be completed that was Mr. Welsh's responsibility that he didn't do. And for that, that being the painting of some baseboards in a back bedroom, he returned the sum of $1,000. So he, in fact, did take some action to try to mitigate the situation himself. That's all I have, Your Honor, for the opening. MR. CRAWFORD: Mr. Neale, is it appropriate to ask questions at this time? MR. NEALE: I would say it is better when they are putting on their case in chief. Let them make their statements first. CHAIRMAN HAYES: Mr. Ossorio, do you want to continue to present your case then? MR. OSSORIO: Yes, Mr. Chairman. Before I get sworn in, I'd like to go ahead and go with an overview of Exhibit No. B. As you can see, E-1 is a formal complaint that was registered by Dr. Horton, and it goes on through E -- E-1 and E-2. E-3 is a sworn Page 53 April 18, 2001 documentation from Dr. Horton. And you can see on E-4 that was hand delivered to Tom Welsh Painting Service at 3-29-01 of last month. And E-5 will be Titan Construction Homes dated November 20th, 2000, stating that they'd had to go in and complete the work from Tom Welsh Painting Service. Six would be documentation of canceled checks to E-7, E-8. E-19 a credit card statement from Dr. Horton, and it says, "Purchase of Porter Paint", in the middle of the page for 3 5 -- $3500 and change. E-10 and E-11 is a code enforcement case that was opened up on June of last year, June 1st of 2000. And, Mr. Chairman, at this time I'd like to get sworn in because I'm going to be direct testimony of myself because I was -- had personal knowledge. I was at the site back in June of last year. (The oath was administered.). MR. OSSORIO: Good morning. For the record, Michael Ossorio, Collier County licensing department. Back last year in June we received a --an anonymous complaint reference 1000 Palm View Drive off of Immokalee Road. When I was out present at the scene, I witnessed three persons. One was redoing the kitchen. There was nothing in the kitchen except kitchen cabinets. They looked like they were brand new, but I was not positive. There was a gentleman outside doing drywall repair, knocking out walls, and there was one company doing windows repair, knocking out windows, replacing windows. At that particular time I issued a citation to the unlicensed cabinet maker, which requires a two-hour exam to be a licensed cabinet maker. He was not. He was told to leave the job site. After conducting an interview and asking him the questions, who did he work for, who hired him, he said, "Contractor Tom Welsh hired me to do the work." at that stage I called Mr. Tom Welsh and advised him to proceed to the job site. Page 54 April 18, 2001 Two, there was an unlicensed drywall contractor ripping out walls and doing some other work. He was also issued a citation, but we voided that out per his testimony that he did work for Tom Welsh by the hour. No worker's comp. Was present on the site, and he was getting paid cash. Three, the window installers was a licensed window installer from Bonita. They were issuing a citation for working on the job site without a building permit. This was back in June of last year. They have since paid their ticket for $300 for working without a building permit. When you're knocking out walls and/or knocking out windows, replacing windows in a commercial or multi-use family use, you need to obtain necessary building permits. They did not. They have since then obtained permits, and they have paid their ticket. When Mr. Welsh proceed to the job site, he did state to me in personal knowledge that -- that he did act as a contractor, that he did hire these people, and he didn't see anything wrong with it. I didn't obtain a copy of the contract because I don't believe there is one. He stated to me that he was doing it as a favor, and the job was shut down. At that particular time contract licensing department closed their case. We returned it to code enforcement to obtain -- so that the owner, Dr. Horton, can obtain necessary permits as needed. On a -- Mrs. Horton is not a contractor or a resident of homesteaded at that location, so she had to obtain a general contractor which she -- which she did, and you can refer that to Exhibit E-5. At that time my case was closed, and you can read at your leisure E-10 and E-11 of the code case, pretty self- explanatory. And I'll read it to you. On 6/1 -- and that's when the code enforcement investigator was out there, observed a stop work order, and that was my stop work order that I issued .- observed major renovation being done, no building permit. He Page 55 April 18, 2001 issued a red tag and commenced getting Mr. Spinelli to obtain necessary building permits. And you can see in the bottom of E- 11 of 8/4/2000, roughly 2 months later, obtained all necessary permits, twenty thousand six one three five five. And it should be noted, I believe, that they had to do some -- there were some code violations out there. They had to rip out some walls and replace some walls. So I'm not -- I cannot contest (sic) to that, but our witness, Dr. Horton, she may. At this time I'd like to go ahead and call Dr. Horton to the stand so she can present her case. (Cell phone rang) Excuse me. MR. NONNENMACHER: Excuse me. MR. OSSORIO: Dr. Horton. DR. HORTON: I'm going to ask for a chair because I had back surgery April 1st, major back surgery. I have a very loud voice from teaching for 45 years, so I don't need the mike. CHAIRMAN HAYES: The mike is being recorded. DR. HORTON: Oh, okay. All right. Then I will need materials that I have there. And, Jim, you have a -- a black book, and I also will need some water, okay, because I'm dry mouthed because of medications. Okay. Thank you, sir. MR. NEALE: Just make sure that everybody's aware that Mr. Johanson does have the opportunity to cross-exam the witnesses, both Mr. Ossorio and any witnesses called. So he does have that opportunity to cross-examine. CHAIRMAN HAYES: Okay. DR. HORTON: I -- I can stand in for the swearing in. CHAIRMAN HAYES: Okay. (The oath was administered.} CHAIRMAN HAYES: Your name. DR. HORTON: Roberta Horton. CHAIRMAN HAYES: Okay. Mrs. Horton, do you want to explain your situation? Page 56 April 18, 2001 DR. HORTON: Yes. But I need to sit. Okay? CHAIRMAN HAYES: Fine. DR. HORTON: All right. I have all the information here. I'm going to be needing to lay out some paperwork. MS. CHADWELL: Should we perhaps move you over there? DR. HORTON: Can I sit because I have so much here and that I want to give you? Thank you so much. CHAIRMAN HAYES: Mr. Ossorio, are you going to conduct this case disclosure by asking questions of the witness, or are you just going to allow the witness to tell her story? MR. OSSORIO: If it's the pleasure of the board, I'd like to have Dr. Horton just explain to her -- from start to finish. And it could be quite lengthy, so me asking questions would just interrupt her. I believe she's -- she'll make a -- good testimony, and she can go ahead and explain to the board. CHAIRMAN HAYES: Okay. I am going to warn you, Mrs. Horton, that we are interested in the facts. MS. HORTON: That's what you're going to get. CHAIRMAN HAYES: We're not interested in hearsay or assumptions. DR. HORTON: Good. CHAIRMAN HAYES: So if you would limit it to the facts, it might not take us quite that long. DR. HORTON: I have a lot of facts. CHAIRMAN HAYES: Thank you, ma'am. MR. LAIRD: Mr. Chairman, did we not hear this last month? DR. HORTON: Only part of it. MR. LAIRD: Thank you. MR. NEALE: I think for the benefit of the respondent and the members of the board who were not here last month, we might as well -- I would recommend to the board that the board hear Page 57 April 18, 2001 her full testimony. CHAIRMAN HAYES: Go through some of it again? MR. DICKSON.. The only thing I would suggest .- and I think it's going to come up -- is keep it to Dr. Horton's case and not your neighbor. MR. NEALE: Uh-huh. MR. DICKSON: Right? DR. HORTON: Not my-- MR. DICKSON: Not your neighbor. DR. HORTON: What neighbor? MR. DICKSON.' The one that -. CHAIRMAN HAYES: The case we heard this morning. DR. HORTON: Oh, no. I won't mention her at all. Okay? CHAIRMAN HAYES: Okay. You may proceed. DR. HORTON: All right. Because of two knees that have to be replaced, because of congestive heart, because of pulmonary hypertension, the doctor has ordered that I move from a second- floor apartment to a first-floor apartment. When a first-floor apartment opened up in the same condominium that I live in, I bought it. And this was at the end of April. Prior to this -- and I knew I was going to buy it -- Mr. Welsh's girlfriend or fiance came to help me. I work for St. John the Evangelist Catholic Church now. And she came in many times and many hours and helped me on my computer program as a volunteer. And I knew that Mr. Welsh was a painter. And when I -- and I knew the apartment had to be painted. And when Mr. Welsh came in, I said I would give him the job because I figured any money that I would give him would also be going on this table of this woman who has been so good to me. So anything that I did from that point, which means I didn't do a written contract because this was done on trust, and I trusted Mr. Welsh. I also want to say at this point I do not hate Page 58 April 18, 2001 Mr. Welsh, and I told him that. I'm just extremely angry, and I will never trust him again, but I'm very angry. I have in front of me all the checks that I have made out to Mr. Welsh. All right? So I have paid Mr. Welsh, including the payment to the paint -- Porter's Paint, to the sum of $15,000. And then also while I was still under Mr. Welsh's contract, I also paid $1,150.40 to Smith and DeShields for doors and frames or whatever else they had to get there. So plus the fifteen, plus that, was under Mr. Welsh's -- when he was running the job. Okay. Then I got red tagged, and Mr. Welsh called me and told me I was red tagged. And I said, "Why?" he said, "Because we didn't have the proper permits." and I said, "Well, what are you going to do?" and he said, "Well, I'm going to try to get a contractor." . So a couple days later he called and he said he did contract for contractor but it was going to cost money. And I said, '~Nell, let me get back to you.". So at this time I did not do the reading on that red tag. I went over to the apartment, and I looked at it. It said if I did not respond by a certain time, I would be fined. So I got scared, and I called Mr. Ossorio. Or I called the county. I don't know if it was he that answered. And I said, "1 got red tagged. What do I have to do?" and the county said to me, "You have to hire a general contractor to get the permits," because Mr. Welsh was not a general contractor. I said, "Okay.". So I went back to church, and one of the priests came in. And he said, '~Nhy don't you contact Mr. Spinelli. He's a general contractor, and he's a member of the parish, and you know his face." and I did know his face. I was not friendly with him, but I knew him as a parishioner to say hello. So I called Mr. Spinelli from my office, and I said, "I'm in a jam," and I said, "and it's my own stupid fault, but here's what happened." and '~Nould you Page 59 April 18, 2001 help me get the permits," and Mr. Spinelli said yes, he would. So then he went in the process of getting the permits, and it took two months. All right? Now, after I was red tagged, okay, I had asked Mr. Welsh, by the way -- and I have this here, and I didn't have it here when I was here before. I had asked him, when I gave him the first thousand dollar check, I said, "Tom, you are going to give me a receipt on everything?" he said, "Yes, I will." I have made copies of what he calls receipts. These are little pieces of yellow paper, and I did this last night. And I'll -- here, let me get - - I have some more. Hold on. Hold on. Here. Here. Here's another one. Here's another one. Here's another one. I tried to put them in order. And here is another one. All right? MR. NEALE: Excuse me. If those are going to be introduced, they all have to be marked as evidence and given to the court reporter and provided to the board. DR. HORTON: They were all on little pieces of yellow paper, and they were all receipts. Now, the first estimate that we did before I found out all the damage that was in the apartment came to about $11,000, and it's on one of those receipts. Okay? Then when I went in there, I said, "Tom, I want to have the doors changed on the cabinets," because they really looked cruddy. I wanted a wall removed. It was a -- a -- let me see, whatever you call it, a dry -- it was a wet bar wall, and I didn't want that wall there. So, I said, '1 want that wall removed." all right? And then I said, "I'm going to need higher toilets," because I knew I was going to be handicap down the road because I had degenerative arthritis, and there were a few other things. So okay. So the bill went up a little bit more, and I understood that. I'm willing to pay for anything I contracted. All right. Then -- and this is still under Tom now. This is before the red tag. And then I went in, and Tom said, '~Ne looked at the Page 60 April 18, 2001 doors," he says, "but, you know, these cabinets are all rotted." and he opened up one cabinet, and he showed me the rot. And I said, "1 agree. So we need to get new cabinets." so out came the cabinet. Then we went over and looked at the baseboard. And he says, "You know, these baseboards are rotted too." so he said, "Here, let's get rid of the baseboards," so we got rid of the baseboards. All right? Then there was a beam across the thing, and he says, you know -- he says, "This is just dry .- drywall." he -- he said, "Let's get rid of that." and I said, "Now hold on." I said, "You know, I only have so much money." I said, "How much would it cost me?" he says, "Well, David will be doing this, say, at 25 an hour." he said it would only take, you know, that. So I said, "Okay." and I think that's when you came and found them knocking this thing off. All right. So each time the bill got a little bit bigger, and I understood that. All right? So he came over to my house one day, and you'll see one bill there, one piece of paper, that has 24,500. And we added up everything, everything that was being done, and that was not supposed to come to more than 24,500, and it was the last one he gave me. It's there someplace. All right. Excuse me. I have some more stuff here. One thing I want to bring to your attention is that on one of those bills on the other side he advised me to go to Hadinger's to get my floor done. All right? But it would be under his -- his file. On one of those sheets, which I have paperclipped on the back, it shows Tom Welsh's file, Hadinger. All the work that I did with Hadinger was not in my own file; it was under Tom Welsh's file. MR. DICKSON: Can I interrupt? DR. HORTON: Yes. MR. DICKSON: Well, I can't -- we're talking about these Page 61 April 18, 2001 sheets constantly. MR. OSSORIO: counsel to be -- MR. DICKSON: evidence. I'd like to have a copy of them. Most definitely. I was just waiting for And I'd like to have them entered in as MR. OSSORIO: Most definitely. DR. HORTON.' But I've got more stuff here, too. Oh, wait a minute. Here's a -- CHAIRMAN HAYES: Hold on just a minute. MR. NEALE: Yeah. I mean, unless -- unless and until, you know, these are offered, you know, accepted by respondent's counsel and offered into evidence, to continue talking about them really is -- is inappropriate for both the board and for everyone else. CHAIRMAN HAYES: Good point, Mr. Neale. MR. NEALE: I would probably suggest that if they -- if they are going to be used as evidence that they be accepted by counsel or objected to, offered into evidence, marked appropriately, and distributed to the board. DR. HORTON: I got all this (indicating). MR. JOHANSON.. For the record, I have no objection. I -- I just would ask that when we have an opportunity to cross that we do have a copy of that exhibit, but I would have no objection to it being introduced into evidence and disseminated to the board. CHAIRMAN HAYES: Okay. So if I'm to understand, Mr. Neale, she's got a packet of about an inch thick. We need to make copies of every one of those for -- MR. NEALE: I was just going to suggest, Mr. Hayes, that I would suggest that if the county is going to offer a large number of exhibits into evidence and if they are going to have to all be marked and all distributed to the board, that there be a break Page 62 April 18, 2001 taken, copies made for the board, and we expedite this procedure, because if this -- this could take the rest of our lives if we're going -- do it at this rate. CHAIRMAN HAYES: I think I understand what you're saying, and I kind of agree with you. Mr. Ossorio, if she can just give you that whole thing and you can run into the commissioners' chambers perhaps and get them copied and bring them back for distribution, there's one, two, three, four, five, six -- MR. NEALE: You got -- we -- we need -- probably we will need eight there. We need one for the court reporter; that's nine. We need one for opposing counsel; that's ten. I would probably like one; so that's 11. I'd say an even dozen would be a good number if we're going to make copies. CHAIRMAN HAYES: And I would suggest maybe a copy for yourselves for the files if she hasn't already given those to you. MR. OSSORIO: These are the -- on the exhibits here, this is the first time we had seen these. Since they had no values or no names, no information on the numbers, we elect not to put that in our case in chief. MR. NEALE: Well, if she's going to be discussing them on the record -- MR. OSSORIO: Most definitely. I agree with you. MR. NEALE: -- counsel is going to have to have a chance to respond for matter of due process, I mean. MS. CHADWELL: We'll -- we'll put -- we'd like to have them admitted into the evidence, okay. The competency of that evidence -- MR. NEALE.' It's to the trier of fact, yeah. CHAIRMAN HAYES: Okay. Then should we take maybe 10 minutes while we make these copies and a little recess? MR. NEALE: If they can get them done in ten minutes, they've got a better copier than I've got. Page 63 April 18, 2001 CHAIRMAN HAYES: I guess perhaps you're right. Any suggestion? We need to take -. what is it? Twenty after eleven? MR. NEALE: I would -- it will help me a great deal if we took a lunch break now because I'm supposed to be at the Ritz now for -- for -- for a luncheon. CHAIRMAN HAYES: If that were the case then, if we do lunch, make some copies, be 11:30, 12:30, 1:007 MR. NEALE: 1:307 CHAIRMAN HAYES: 1:30, anybody got a problem with that, if we did the recess and came back? Mr. Johanson? MR. JOHANSON: Your Honor, I do. I have -- this afternoon I have other hearings and other matters up in Lee County that I have -- I have some conflicts that would require that I be in -- in Lee County this afternoon, and I was expecting this matter to be completed before noon. MR. DICKSON: Can I ask a question? MR. NEALE: This isn't going to be done before noon. CHAIRMAN HAYES: This is not going to be done before noon MR. DICKSON: If the county's never seen these before and the county is the one presenting the case and the county's the complainant, why is all this stuff coming in? MR. LAIRD: I don't understand. I agree. MR. NEALE: Because the county apparently wants to use it as evidence in their case. MR. DICKSON: Well, I haven't heard the county say that. MR. OSSORIO: That is correct, Mr. Dickson. MS. CHADWELL: If we could have just a moment -- CHAIRMAN HAYES: Come over to the mike, please. MR. OSSORIO: If you give the county ten minutes, we can probably resolve this real quick. CHAIRMAN HAYES: Okay. Page 64 April 18, 2001 MR. JOHANSON: Mr. Chairman, if I may speak, I'm not -- I'm not -- like I said, I don't practice in this realm a great deal of time, but it's my understanding that there's a procedure, a time frame, in which the exhibits are submitted, copies are made and distributed. You know, I didn't have anything that I was going to distribute knowing that, well, the -- the time for distributing them would have elapsed. It may be best to avoid any objections to some of the material that -- that we suspend continuation today until the county attorney's made copies, reviewed with their -- the complainant what exactly is going to be used and put into evidence, and we may then not have any objections to that, and it would -- may speed up the process. But not knowing what all she has and really not having the opportunity to -- to review it, other than seeing it for the first time here today, you know, we're not going to be able to -- to call any witnesses to -- to rebut it. I would suggest, because all this is new -- and I -- I was assuming that the complete file, what is marked as Exhibit B, is what we're going on, and that's what I was prepared to defend against, I would propose that we -- we suspend proceedings today. I -- I would assure that between here and -- and whenever it's -- it's heard that I will reel my client in and there will not be any new matters coming before this board, if that's -- if that's a concern. CHAIRMAN HAYES: It may be, perhaps, that the county is prepared to omit some of this evidence just to -- MS. CHADWELL: If I could have a moment. It -- Mr. Ossorio's intention was to put on -- in the testimony of Dr. Horton as to what she paid above and beyond what she contracted for with Mr. Welsh. She has brought these documents today. There is one where he estimated the twenty-four -- fi -- thousand five hundred dollars that we would like to have admitted into evidence since it does estab -- we believe purports to establish the total cost of the job, and I think it is relevant. Other than Page 65 April 18, 2001 that, the county will forgo the admission of any of these documents and rely on the complainant's testimony as to her expenses, if that's acceptable. And I do believe that, then, we can conclude this matter by noon. CHAIRMAN HAYES: I don't have a problem with it, Mr. Johanson, if-- if you don't, because I believe that this would expedite the day anyway. MR. JOHANSON: I don't have any objection if that is the only document that is going to be submitted. I would ask that it - - copies of that one document be disseminated so we have an opportunity to cross on it, if that's the case. CHAIRMAN HAYES: Dr. Horton, you understand what we're trying to do here? DR. HORTON: Yes, I do. MS. CHADWELL: Certain -. certainly as a matter of evidence, she can refer to her notes to establish the amounts without their having to be identified. MR. NEALE: Certainly she can use it to refresh her recollection. There's no problem with that. MS. CHADWELL.' If we may take 5 minutes and run 15 copies -- how many copies do we need? MR. NEALE: Probably a dozen. MS. CHADWELL: We'll be right back. CHAIRMAN HAYES: Okay. Shall we recess for five minutes? (A short break was held.) CHAIRMAN HAYES: I'd like to call this meeting back to order. I think we left off with Ms. Horton explaining a sheet of paper that has some estimates on it. DR. HORTON: Yes. I also want to point out that when I mentioned that there had to be some plumbing and electric work done, I said to Mr. Welsh, "Make sure that we have licensed plumbers and licensed electricians." and he said -- I said, "Or I Page 66 April 18, 2001 can get them." he said, "No, no, no." he says, "1 have licensed people." I said, "Okay. All right. '. CHAIRMAN HAYES: Ms. Horton, just for a second, as a matter of housekeeping, Mr. Neale, we had this piece of paper handed to us. MR. NEALE: Uh-huh. CHAIRMAN HAYES: Do I need to admit this as -- in evidence as Exhibit C, perhaps, or-- MR. NEALE: Yes. CHAIRMAN HAYES: -- include it in Exhibit B? MR. NEALE: Yeah. It needs to be moved into -- yeah. With -- if Mr. Johanson has had an opportunity to review it, it needs to be moved into evidence and marked, I would propose, as -- MR. OSSORIO-. Exhibit No. -- MR. NEALE: -- Coun -- County Exhibits. MR. OSSORIO: -- E-12 as a B, under B, E-12. MR. NEALE: I would probably prefer to see it as -- as a separate Exhibit C, just -- it's easier to keep track of since it is brought in separately. So we need a motion. CHAIRMAN HAYES: Mr. Johanson, have you got any objection? MR. JOHANSON: I have no objection. CHAIRMAN HAYES: Very well. MR. DICKSON: Dickson, I move that this document that's been given us, handwritten, be accepted in as Exhibit C in this case. MR. NEALE: And just as a matter of housekeeping, we need to have Composite B moved into evidence also. CHAIRMAN HAYES: Okay. Would you like to amend your motion to accept Exhibit B and C? MR. DICKSON: Absolutely. I move that we accept into evidence Exhibit B and Exhibit C in this case. Page 67 April 18, 2001 CHAIRMAN HAYES: I have a motion. I need a second. MR. LAIRD: I'll second that, Mr. Chairman. CHAIRMAN HAYES: Second by Mr. Laird. All in favor? (Unanimous response.) CHAIRMAN HAYES: Opposed? Very well. Thank you. DR. HORTON: Okay. CHAIRMAN HAYES: You can continue. DR. HORTON: One other thing that I want to bring to your attention, that when Mr. Ossorio came and red tagged me, he -- the Builder's Glass truck was out there. All right? And that was also recommended to me by Mr. Welsh because I told him that we had other people in the condominium that did that work, but he said that this man would do a better job for me and less costly, because he knew I was under the gun with money. When I called Builder's Glass and asked them did they know that they had to have a permit, they said, "Yes." I said, '~Nell, why didn't you have a permit?" they said, "Well, we work under the contractor's permit." I said, "Well, who did you call?" he told me he called Mr. Welsh, and Mr. Welsh said, "We don't need a permit." okay? So I want to bring that into evidence. All right. Now, I told you what I paid Mr. Welsh. I told you what his estimate was; correct? All right. Now, what is the next bit of information so I do the right thing? Do I tell you what I had to pay for what it cost me to get this done? CHAIRMAN HAYES: Yes, ma'am, you can do that. At this point if you're referring to Exhibit C, then you can say now that you're referring to Exhibit C as what you paid and/or what was estimated. DR. HORTON: Okay. Now, what is Exhibit C? Exhibit C, okay. It was estimated for $24,500. To get that work done, because I had to go with the contractor, all right, the total Page 68 April 18, 2001 amount of money that I have already paid out was $35,925.02 at this point. CHAIRMAN HAYES: Okay. MR. NONNENMACHER: And, Dr. Horton, if I may, that extra money that was paid out, was that to redo anything that was already done and correct the -- DR. HORTON: Yes. The bill from Titan was $3,450. 2,000 of that money was for -- that had to be redone because the plumbing and the electric work had to be pulled out and checked. And then that wall that -. that he pulled out from the top, he had it -- then I had to get an -- an engineer, an architect, to come in so that the permit to get this cost me 414 dollars and some cents. And then Mr. Spinelli's men did all the plumbing and electrician work that was supposed to be done that was estimated under this 24,500. This Mr. Ostel that he's referring to, when Mr. Spinelli came on the job -- and I realized how much -- he says, "1 can bring all my men in here, and we could have this done." when I realized what it was going to cost, I said to him, "May I have Mr. Ostel then do the framing, installing the cabinets, and do all that work, and then I can pay him myself at $25 an hour?" so I ended up paying Mr. Ostel 6,154 dollars and some cents. Okay? And then the others was the Builder's Glass and the carpentry and the Titan Homes and supplies from Home Depot and so on. But I -- none of this that I paid out this money was beyond what we -- I had contracted with Mr. Welsh. I still have Mr. Ostel working for me, but it's other work that I wanted done beyond this work. Mr. Ostel -- I paid him three thousand five hundred dollars or six hundred dollars -- I'm not sure -- for the paint job, whatever was that -- Mr. Ostel had to put two coats of painting on. He worked 40 hours on it. He worked a whole week. If you do 40 times 25, I think it comes out to a thousand dollars. Page 69 April 18, 2001 Right? Something like that. I'm not good at numbers. But that was part of what I had to pay him, plus installing the cabinets and the trim and all the other work that was estimated in this twenty-four because you could see it has -- and you have the other sheets. But, you see, Tom has here, Tom, paint plus prime, this twenty-four five you have in front of you, he has twenty-six hundred. Well, the bill that I paid at Porter's, as you can see, was 3,500. I said, "For prime it was almost a thousand dollars?" and then he didn't finish the painting. So I had to have this guy do the painting. MS. CHADWELL: If I may conclude by questioning the witness and -- and we'll finish the direct that way it might -- it might expedite things a little bit. DIRECT EXAMINATIONBY MS. CHADWELL: Q. Dr. Horton, if I'm correct, did -- is it your testimony that, in fact, this Exhibit C is what Mr. Welsh represented to you as a total estimate of the job of all -- of all work that was to be performed by him in your apartment? A. Yes. Q. Could you tell us, please, what the square footage of the apartment was that was being remodeled? A. 1400 square feet. Q. Okay. Now, you spoke as to this letter from Titan Custom Homes -- is Titan Custom Homes the corporation of which Mr. Spinelli is the president --? A. Yes, he's the one that got the permits for me. Q. Okay. And you indicated that the work for the -- that's shown here in the amount of $2,000 for drywall framing, metal work, patch work, that -- it's your testimony today that that work was work that was caused by having to check -- tear the walls and repair the walls after confirming that the electrical was done up to code and the -- and plumbing was done up to code? Page 70 April 18, 2001 A. And -- one more thing. The -- the windows that were put in that the guy didn't get the permit for, when the fire inspector went in, he -- I had him move those windows back another 3 feet. So because of that, Mr. Spinelli had to add 3 feet of drywall onto a door. And then not only did I pay the builders for putting the windows out there without a permit, they charged me another 300 to move the windows, those -- Q. Okay. So the windows -- and -- and had Mr. Welsh coordinated their work in moving the windows where they did or in -- in --? A. That was -- no. That was after I was red .- well, in the beginning, yes, he had coordinated because I wanted those windows out against the -- the screen door. Q. Okay. And you're saying -- and where they were located was in violation of the fire code? A. That was in violation of the fire code. Q. But you had to pay $300 to re --? A. To move them back, and then because of that I had to add on to a wall that Spinelli had to do with dry framing, and so on that was in that amount of money. And then you think they wouldn't charge me the 300? They charged me 300 to move it, and it was their fault because they didn't get the permit. And if they got the permit, then they would have known it was in violation; right? Q. Okay. Now, your total -- your total expenses today for completing the work that was originally contracted for by Mr. Welsh and all work that had to be redone as a result of -- of Mr. Welsh using unlicensed subcontractors was -- is what amount? A. $35,092.02 is what I have paid so far. That includes, I think, what I have paid Mr. Welsh, that fifteen, sixteen to Smith -- Smith and Shields (sic). I think they -- well, I tell you what. If there -- does anybody have a calculator there? Page 71 April 18, 2001 Q. Well, let's .. you're saying that includes amounts that you paid, checks that you wrote to Tom Welsh and the Porter Paint expense and the Smith --? A. Right. And then -- then the checks that I wrote Mr. Ostel, the checks I wrote to Hadinger Carpenter (sic), checks I wrote to Titan Homes, and checks that I wrote for supplies and -- and Lowes because I had to get more supplies in to do the work that was contracted. Q. Okay. Let me -- I have as Exhibit E-6 a check written to Tom Walsh (sic) in the amount of $1,000. A. Right. Q. I have as Exhibit E-7 a check written to Tom Walsh by you in the amount of $500. A. Yes. Q. Is that a payment that you made? A. And coercion, yes. Q. Okay. As Exhibit E-8 I have a check made out to Tom Welsh by you in the amount of $10,000. A. Yes. Q. Okay. So that payment was also made. That's $15,500. Did you testify that Mr. Welsh gave you a thousand dollars back? A. It's in that letter. Q. Okay. So he did return a thousand dollars of that fif -- sixteen five? A. Yes. Whatever it is. And, also, that Smith's DeShield's bill was also paid in there. But, anyway, he did give .- Q. How much was the bill to Smith and Shields (sic)? A. $1,150.40. And I think I put that in evidence. Q. Okay. A. And if it isn't, I have it here. Q. And you paid for the paint $3500 as well? Page 72 April 18, 2001 A. Right. That was not completed because I had to hire this other guy to complete the paint, and he put two coats of paint on, and he told me the hours he worked. Q. Okay. Did you ever contract directly with any of those individuals that were working in your apartment, the plumber, the--? A. Anybody under Mr. -- under Mr. Welsh, no. Q. And did you pay any monies while Mr. Welsh was on the job to anyone other than Mr. Welsh? A. No, except for DeShields and the paint job. Q. Okay. Which he directed to you pay? A. Yes. Q. Okay. A. He told me to go down and pay the Smith and DeShields by credit card and the paint job because I had no -- I was out of money. Q. Okay. A. So he said to go down and pay this on my account. And if you check with Smiths and DeShields, you will see it was paid to the Tom Welsh account. Q. Okay. And was it your understanding when you agreed with Tom Welsh to do the work that he was going to coordinate the job and hire the subcontractors, licensed subcontractors --? A. Yes. Q. -- to do the additional work other than painting? A. Yes, because I stressed with him, "Make sure you have licensed electricians. Make sure you have licensed plumbers, because I know that you have to have it"; right? What I did not know is that you had to have a permit to do this. Q. Okay. MS. CHADWELL: That concludes my questions for you, Dr. Page 73 April 18, 2001 Horton. Opposing counsel will now examine you as well. THE WITNESS: Okay. CROSS-EXAMINATIONBY MR. JOHANSON: Q. Dr. Horton--? A. Yes. Yes. Q. -- you testified regarding a David Ostel. A. Yes. Q. And how did you meet David Ostel? A. Mr. Welsh recommended him to me and introduced me to him at the house. He said, "David is a good man. He's done a lot of good work." and -- and that's how I met him. Q. What was your understanding of how Mr. Ostel was to be compensated during the time period that Mr. Welsh was involved in the project? A. Mr. Welsh paid him. Q. Do you know what charges Mr. -- Mr. Ostel would charge for the work he did? A. Twenty-five an hour. Q. What was your knowledge of what background and experience Mr. Ostel had? A. Mr. -- Mr. Welsh told me that he had worked for some famous rock band and that he was repairing a house of theirs here in Naples and that's how he got to know him and that he was an electrician and a plumber. Q. Do you know who did the -- the plumbing work at your home? A. I know that, to my knowledge, Mr. Ostel told me that - - I'm under the impression that Mr. Ostel did it. I'm -- but I don't know. Q. Do you know who did the electrical work at your home? A. No. Page 74 April 18, 2001 Q. So you have no evidence here today that the -- the company or the individual who did the plumbing was not a licensed contractor, do you? A. Mr. Welsh -- no. Mr. Ostel told me that he did electrical work -- because I'm now going back on memory, all right? And you have to forgive that I am also under pain medication. Mr. -- Mr. Ostel told me that he did plumbing work. He sealed off the plumbing in the bathroom and in that kitchen area when I removed the wet bar, and he also did some electric work. Q. Do you have any knowledge of whether anyone else did any plumbing or electrical work? A. No, I do not have that knowledge. Q. Is it possible that there were other electricians or plumbers involved? A. All I know is that there were two other men, some -- a man called Dave, and I can't remember the other man. And I don't remember the other man's name. Let me check. I might have it -- Q. Well, that's not necessary. I'll -- if you remem -. recall it during this questioning, you can go ahead and mention it at that time. A. Wait a minute. I might have it in here. You can ask me another question. Let me see, because I wrote names down. The only other two men that I know was an Andy and a Bob, okay? Q. Do you know what they -- those gentlemen did? A. Sometimes when I went in, I saw them -- oh, God. -- like ripping off baseboards or doing whatever, you know, they had to do. But I did not see any of them doing any electric or plumbing work. I did not see it myself. But, of course, I was at the church all the time, but when I did go in there, I saw them Page 75 April 18, 2001 moved --? A. Q. A. cleaning up, you know, and doing that sort of thing. Q. Let me ask you this: Is it your testimony here this morning that you knew that Mr. Welsh was a painter? A. Yes. A licensed painter. Q. You testified regarding new cabinets, and it was recommended to you by Mr. Welsh to get new cabinets. Is it your testimony here today that there was nothing wrong with those cabinets, or it was --? A. No, no, no. He showed me the rot in the cabinets. He showed me the rot in the cabinets, so he said, "You need new cabinets." so he had them ripped out. Q. Did -- did you agree that after seeing them, that there was rot in the cabinets? A. Yes, I did. Q. You testified regarding Builder's Glass. Did you contact or contract with Builder's Glass? A. Mr. Welsh called them, and then they called me to come down to see if -- for when they could come down and measure the windows and so on. Q. Is this the company that initially charged you to do -- put in the glass? A. Yes, they charged me to -- yes. They're the ones that did not have the permit, and then he -- they're .- they're the ones that said they called Mr. Welsh, and Mr. Welsh said that they did not need a permit. Is this the same company that came in and -- and Yes. And that was after that it had been red tagged? Yes, because the fire marshal said that that had -- they had to be moved back. Q. And it's your testimony here today that they charged Page 76 April 18, 2001 you to have it moved back? A. Yes, they certainly did. it. I have a $300 check to prove Q. Can you recall the -- the approximate date from memory when the project was red tagged? A. Something in June. June. Q. Can you recall approximately when you first contracted or contacted Mr. Welsh to do the paint --? A. It was sometime in April. I think it was sometime in April, because that's when I knew I was going to close, okay. But I know it was before the closing because I was in my office saying, "Well, I'm going to buy this apartment." it's going to close in April, and so it was sometime in April. Possibly it could have been sometime in March. I'm not sure, because I don't have it, you know, met with Tom and talked with Tom. But I know that it was before the closing because Tom asked -- see, the -- the man that owned the apartment had it rented out -- Q. Well, you don't need to go into that, ma'am. I don't -- I don't have a pending question before you. So you've already answered. A. Okay. All right. It was sometime in -- in April. Q. Let me ask you this: The -- what's been introduced as Exhibit C, the sheet you have in front of you that has the total amount of the 24,500 --? A. Yes. Q. -- dollars, isn't it true that this -- this was the initial estimate that Mr. Welsh gave you? A. No, no, no, no. This is the last estimate. You have 4 or 5 sheets there that started out with 11,000. Then it went to 15,000, 14,000. Then it went to 15,000, and then -- because I made changes, and I agreed. And then this was .- this was the final changes that I made with him, and this was -- this was it, Page 77 April 18, 2001 24,500. That was the very last one. Q. And this last -- this last estimate, this Exhibit C, did that also contain an estimate of the cost of -- of what you've already had in the project to date, up to that point in time? A. I don't understand that question· Q. In other words, you -- you indicated that this Exhibit C, this -- this was the final estimate that was given to you. A. Right· Q. Okay. This final estimate included information which you're relying on as part of the prior estimates. The prior estimate amounts are included within this to then have a cumulative total up to the 24,500? A. I would have to look at these other estimates to see if he put everything in there because I have the sheets here in front of me. Q. Well, what is your understanding of what Exhibit C was, the final estimate? What was your understanding? A. In my understanding of that final estimate included all these other paperwork estimates that he gave me which was on the little yellow pieces of paper· And I kept begging for receipts, and he said these are my receipts· I kept begging for would he give me the name of the company that did the -- the shelving· He would not tell me, because I figured, well, if he won't give me receipts, I can go to the company and get the receipts from the company· So, I said, '~Nould you give me the receipt" .- the guy, "tell me who did the shelving?" no. He -- he didn't -- he wouldn't give me the name. "will you give me the name of the company where you got the cabinets?". 'no." · "will you give me the name of the place and the person that were doing the plantation shutters?". "no." · Page 78 April 18, 2001 The only thing that I got was from Builder's Glass. So -- and I kept asking for these receipts. I'm willing to pay for anything that I ordered to do, but give me a receipt. Q. Let me ask you this, ma'am: There wasn't a contract between you, was there? A. Verbal contract. Q. There's no written contract? A. No written contract. Q. And the agreement wasn't a time and materials contract, was it? A. He -- he told me all time and materials was in this (indicating}. Okay. Let me ask you this: Did -- were your cabinets removed? A. Q. A. Q. A. Q. A. Q. A. Q. Yes. Were there new cabinets ordered and delivered? Yes. Did Mr. Welsh --? But they were not installed. But they were delivered to your property? Yes. Did Mr. Welsh do any painting at your property? Yes, but did not complete it. Now, the time he left, isn't it true that the only painting that needed to be made was to a back bedroom and some of the baseboard and then, I guess, any painting that -- to redo any walls that had --? A. I'm not sure about that, sir. Q. Was there any shelving work that was done? A. Yes. Q. Were there any shutters that were ordered? A. Yes. Page 79 April 18, 2001 Q. To your knowledge, was there any stucco that needed to be put on the front porch? A. Front porch -- well, when he ripped out that -- oh, yes, yes, there was. Yes. That was done under Mr. Welsh. Q. And after you were red tagged, you testified that through your -- the priest of the church recommended Titan Homes and Bill Spinelli; correct? A. Right. Q. And Mr. Spinelli, I believe, according to the exhibit got involved --? A. Because I had to get permits. Q. -- sometime in -- in June; correct? A. As soon as I've -- I talked to -- when I told -- whoever I talked to made the telephone call here and they told me I needed to get a contractor, and then Mr. Welsh hadn't found one yet. Then when I called -- the priest said call him, so I got him. Q. That was soon after it was red tagged then? A. I would say within a week. Q. Okay. And then after you contacted Mr. Spinelli of Titan Homes, Titan Homes, then, completed the project. A. Yes. But they also offered -- they also offered to have Mr. Welsh come in and finish his part. Q. Did you want him to come in and finish his part? A. Sure. But Mr. Welsh told me that every time he called that he would refuse to go and meet with Mr. Spinelli at Mr. Spinelli's office. It would have to be done at Mr. Welsh's time and his place. He said he would not go to Mr. Spinelli's office. When they finally did meet, wherever they met, Mr. Spinelli put down three conditions for him to work for me, and then he refused those conditions. Q. There's not a pending question, ma'am. MR. JOHANSON: And, again, that testimony, although we're Page 80 April 18, 2001 not -. the formal rules of evidence would be considered hearsay testimony because Mr. Spinelli is -- is not here, and clearly what the witness is testifying is what she had heard from Mr. Spinelli, and I just want the board .- A. But don't forget, I put down what I also heard from Mr. Welsh. Q. Well, Mr. Welsh is here to testify .-? A. Right. Q. -- so that would not be hearsay. A. Hold it, Tom. Q. Do you have -- it's -- it's been your testimony that you paid Mr. Welsh $16,500 and of that he returned a thousand dollars? A. Yes. Q. Okay. And you've already testified that there was work that was completed by Mr. Welsh at the time that he was at your home. A. I'm not saying completed. I said there was work done by Mr. Welsh. Q. Okay. A. And -- and -- and about that thousand dollars -. I'd like to address that thousand dollars .- Q. There's no question pending, ma'am. A. Okay. Q. Ma'am, as -- as far as the Exhibit C, which is the -- the total of the 24,500 --? A. Yes. Q. -- or let me -- let me ask you this: You're here alleging that Mr. Welsh has called -- caused you financial harm; correct? A. Yes. Q. And you've indicated in the .- the part of the complaint -- I believe it's shown as E-3, which is an affidavit you Page 81 April 18, 2001 prepared that's a part of the Exhibit B, was -- was your affidavit, do you have any breakdown here today or any documentation to show what the specific expense was, if any, to come in and redo whatever Mr. Welsh did or -- or which was done under his control? I mean, you've testified as to what the actual expense was for the project, but I don't know whether -- you've indicated that through this project there's -- there are additional things that you wanted to have completed and done, and you've testified that a David Ostel -- he, in fact, must have contracted to continue to work for you, is continually doing additional work. What I don't know, ma'am, and I don't think the board has any knowledge of is whether these are extras that you're referring to of what the project is now costing you, indicating that you've paid out $35,092.02 to date. What I would like to know, ma'am, is if you have any documentation or any evidence to show what would have been a code violation and what it cost you to correct that code violation, if any. A. The only code -- the only testimony that I have to the code violation would be from the letter from Mr. Titan (sic) with that bill that he has submitted that's there. What I do have are all the hours and labor that was done -- that Mr. Ostel did. I do have all those hours, and I also have the labor, and I have the checks to show that I paid. Q. And -- and -- and Mr. Ostel was working on the project at the same time that Mr. Welsh was working on the project? A. Yes. But I don't have anything from Mr. Welsh except those pieces of paper. I don't have, like -- well, for example, Mr. Ostel, after he started working with me privately, would give me a paper like this (indicating) with the hours and the labor and list what he did. Q. Ma'am, I don't have a pending question --? A. Okay. Page 82 April 18, 2001 Q. So it's not necessary--? A. What do you call that question? MS. CHADWELL: Pending, he said. Q. Pending. A. Pending. Oh, I'm sorry. I didn't hear that. Q. A pending question. MR. JOHANSON: I don't -- I don't have any further direct at this time. CHAIRMAN HAYES: Thank you, Mr. Johanson. Mr. Dickson, I believe, has a question real quick. MR. DICKSON: Recross or-- MS. CHADWELL: Oh. MR. DICKSON: When do we do -- MS. CHADWELL: No. I think I only have one more question for Dr. Horton, and that is -- she's -- she's stating that the thirty -- the amount set forth in the letter from Titan Custom are her expenses -- let me ask this in a question. REDIRECT EXAMINATIONBY MS. CHADWELL: Q. Are you stating that the amount set forth in the letter from Titan Custom Homes, which is thirty-four twenty-seven and twenty-four cents, plus the three hundred for moving the windows and your permit expense of--? A. $414. Q. -- that's the extent of what you can attribute to having to redo the work that was done by unlicensed subcontractors hired by Mr. Welsh; is that correct? A. Yes. Q. Okay. And that -- I'd also like to ask you, there's a statement here in this Titan Custom Homes that refers to where Mr. Gordon, who is the author of the letter, is stating that they are not invoicing you for -- for labor, for time; is that correct? A. For Mr. -- for Mr. Spinelli and Mr. Gordon. They're only Page 83 April 18, 2001 invoicing me for the work that their people did. But for all the hours that Mr. Spinelli spent in getting the -- the permit and all the hours that Mr. Gordon went around to do that, they're not -. they were not charging me for that. MS. CHADWELL: Okay. Thank you. I have nothing further. CHAIRMAN HAYES: Thank you. You had a question, Mr. Dickson? MR. DICKSON: Yeah. Dr. Horton? DR. HORTON: Yes, sir. MR. DICKSON: Okay. Put everything in perspective: First of all, we admit there's no contract. There's no signature by you or Mr. Welsh; correct? DR. HORTON: Right. MR. DICKSON: And we will, again, agree that this is not an estimate. Don't you agree with that? It's a work pad. You two were sitting down and going over figures; correct? DR. HORTON: Right. And I have a lot of those. MR. DICKSON: Because it's not even added up correctly. DR. HORTON: Okay. MR. DICKSON: It's not 24,500; it's 23,500. DR. HORTON: Okay. Well, that's what he's -- MR. DICKSON: The two of you were sitting probably at a table going through these figures. You know, this one should cost this, this one should cost that, you scratched out the forty- five fifty and said maybe fifty-five hundred. So we were just generalizing the project; correct? DR. HORTON: Okay. But I did point out that there were many others like that. MR. DICKSON: DR. HORTON: MR. DICKSON: estimate. Yeah, I know. But that was the final one. We're not -- we're not going to call this an Page 84 April 18, 2001 DR. HORTON: MR. DICKSON: this an estimate. DR. HORTON: MR. DICKSON: Okay. I mean, no one in their right mind would call Okay. You knew that Mr. Welsh was not licensed to do anything but painting; correct? DR. HORTON: Correct. MR. DICKSON: Let me ask you a question. DR. HORTON: Yes. MR. DICKSON: Since you knew Mr. Welsh's fiance -- DR. HORTON: Yes. MR. DICKSON: -- did you ever get any other bids? DR. HORTON: Other bids? MR. DICKSON.' Yeah. To do all this work? DR. HORTON: No. MR. DICKSON: Wasn't the conversation more or less, "1 can coordinate all of these trades for you"? DR. HORTON: Yes. MR. DICKSON: And we'll save you ten to fifteen thousand dollars over what it would normally cost? DR. HORTON: Yes. He said that he would be able to get me -- he knew that I didn't have a lot of money, and I believed that he was trying to help me out. So he told me that he would be able to get all these people and not to worry. In fact, his famous words to me all the time was "not to worry." . MR. DICKSON: And everything was going great until you got red tagged; right? DR. HORTON: Yes. MR. DICKSON.' And then all of a sudden your thirty-eight thousand dollars that it ended up costing you happened to be that fourteen or fifteen thousand dollars that you thought you would save. Page 85 April 18, 2001 DR. HORTON: Yes. MR. DICKSON: So aren't -- aren't you guilty of complicity here that you knew he wasn't licensed, you were trying to save money? DR. HORTON: I did not know, sir, that I had to have a general contractor to do this, because I stressed you had to have a licensed plumber and a licensed electrician. I wanted to do everything that was proper. I did not know, truly, and I know ignorance is no excuse, but I did not know that you had to have a general contractor to do what was done. MR. DICKSON: You've answered my question. Thank you, Dr. Horton. DR. HORTON: Okay. CHAIRMAN HAYES: Mr. Johanson, do you want to present your defense? MR. NEALE: Well-- MR. JOHANSON: I -- I have no further redirect. I don't know if-- if they've closed theirs. MR. NEALE: Have you -- county closed its case in chief? MS. CHADWELL: I just wanted to ask Mr. Welsh a couple questions. I'll be brief. I promise. MR. NEALE: Are -- are you calling him as a witness? MS. CHADWELL: stand. CHAIRMAN HAYES: MR. NEALE: No. CHAIRMAN HAYES: Yes. I'm like to call Tom Welsh to the Okay. Have we sworn Mr. Welsh in? Okay. (The oath was administered.) DIRECT EXAMINATION BY MS. CHADWELL: Q. Would you state your name, please, sir. A. Tom Welsh. Page 86 April 18, 2001 Q. And what's the name of your business? A. Tom Welsh. Q. Okay. Are you a licensed general contractor? A. I am not. Q. Okay. Did you have plumbing work done on Dr. -- in Dr. Horton's apartment? A. I did not. Q. Did you coordinate plumbing work to be done in Dr. Horton's apartment? A. Do you want to hear a brief explanation, or do you want to hear-- Q. No. I want an answer to the question. A. Okay. When Dr. Horton approached me for about four months, I contemplated this in my mind. There was a gentleman by the name of David Ostel who was moving here from Nashville, Tennessee. He had completed a $4 million house for Sawyer Brown. He was a contractor in that state, qualified. I told her that he would come up here, and I specifically said, "He will work for you $20 an hour, whatever hours he works, and that will be his deal. And I will get money from you, and I will pay him every Friday, in case you're off at a meeting, on vacation, at a seminar, out of town. He needs to have his money Friday. This will be a convenience thing. And he will supply all the notes and everything." Q. So he--? A. "and whatever he needs to do, he will do, and he will tell you, and he will tell me." so whatever he did he did. Q. Okay. A. I did-- Q. Did he -- did he communicate with you when he needed to do certain types of work? A. We only got as far as when we noticed the cabinets Page 87 April 18, 2001 were bad, you know, of tearing cabinets out, because I had a cabinet man in there to price the doors, and he said, "Look at this cabinet. It's all swollen." I had Holdeman Custom Cabinets in. And -- and at that point, you know, then we -- I mentioned to Roberta when she mentioned high toilets, about getting the high vanity, you know, because it would be a lot easier for her and put them in both. Q. And when she mentioned to you that she wanted to change her toilets, did you then talk to David Ostel about doing the -- doing the work? A. I mentioned to her that he could do everything and that he would be dealing with her and only her. Q. Okay. My question -- that was not my question. A. Well, that's my answer. Q. My question was, when she told you she'd like to raise the toilets --? A. I told her I would buy them for her at the plumbing supply house. Amen. Q. Did you then talk to David Ostel and tell him you needed him to do the plumbing work and to raise the toilets? A. I don't recall that because she knew in the beginning he was a man of all trades and that he was in there working for her at $20 an hour and end of story. I told her in the beginning that I would get a qualified person, and I told her that he's not licensed but he had subscribed to the county for a general contractor's license and he was this close and I believe that before he even got this much into the project that he would achieve a license. Q. Did he achieve a license? A. I don't know. Q. Did you -- you didn't ask him? A. I -- I have not seen him or heard from him -. Page 88 April 18, 2001 had a license? A. Q. A. Q. A. Q. A. He's working on your job, and you didn't ask him if he He was not working on my ]ob. I'm a painter. Did you pay him for his work? She paid him. No, She -- I just heard you testify that you were a conduit --? As a -- as a convenience -- CHAIRMAN HAYES: One a -- at a time. A. Excuse me. As a convenience, okay?. As a convenience, knowing in advance -- and I told Roberta this, "David is from out of town. He doesn't have two nickels, but he has $10,000 worth of tools, but he doesn't have any cash. He needs to be paid every Friday. And if you're not here, we can't go running around the county looking for you. He needs to have this money. He has a cell phone; I have a cell phone. If you will pay this money to me, and we will make an accounting to you for all of the supplies from Home Depot that he buys and for the hours that he puts in, and that will be that, and I will pay him -- write him a check, and you'll have a record of all of that." Q. Who else did work on the apartment that you paid in that manner? Did you have a drywall company come out and do work? A. Q. A. Q. I had a -- I had a stucco fellow patch -- Did you pay him for his labor and his materials? Yes, I did. Okay. Was he out of town as well? Was it a matter of convenience? A. Roberta was aware of that, and it was the same arrangement. Q. Okay. So she paid you for his work, and you paid Page 89 April 18, 2001 him? yes, he so I don't know if you're licensed either. check. Are you licensed? MR. JOHANSON: Tom. THE WITNESS: I'm sorry. A. Yes. Q. Was he licensed to do the work that he did? A. He worked at some big condominium, so I would say was licensed. Q. You don't know? A. I didn't check. I haven't seen your attorney's license, So excuse me, I didn't Q. Did you have someone come out and do some electrical work out there at her apartment? A. I did not have them come out and do it. Everything that was done was done by David Ostel. Roberta was aware of that. Q. A. Oh, so David Ostel did the electrical work as well? That's what my understanding was, and he did it from start to finish. Q. Okay. A. He was the only person that did it, and it was inspected and approved. And it was a changing of lamp cord wires that went from one plug to another along the baseboard. And he seen that and said, 'Roberta, this is a fire trap." she bought it without having it inspected -- Q. You said he was licensed -- excuse me. You said he was licensed out of state. Is that -- was that --? Q. A. Q. another state? I did not-- -- what your testimony was? Excuse me? Was it your testimony earlier that he was licensed in Page 90 April 18, 2001 A. I said he was a contractor in Tennessee. Q. Is he licensed in Tennessee? A. I don't know. I said he was a contractor in Tennessee, a home builder. Q. Okay. So for all -- for all you knew, he didn't have a contractor's license for any type of work? I mean, you didn't have -- he wasn't licensed in -- in plumbing; he wasn't licensed in electrical work; he didn't have a GC license. He's just, you know, a good guy, huh? A. While we worked up there at the Sawyer Brown's home in downtown Naples, he completed all of those activities. And, you know, he appeared to be a contractor, knowledgeable. Q. Did you have a permit for the work that was done on -- in -- in Dr. Horton's apartment? A. Be specific, please. I don't need a permit for painting. Q. Did you -- was any of the plumbing or remodeling -- was a permit obtained for any of that work? A. Okay. Now you -- you have to understand, I did not do the plumbing or the wiring. Okay? Q. Okay. A. And it was not my doing. I don't know if the persons that did that had a permit or not. I did not do it. Q. Okay. Well, let me -- let me ask you this, then. A. Sure. Q. Can I refer you to Exhibit C? A. Uh-huh. Q. Do you -- you don't deny that you prepared this document, do you? A. No. Q. Okay. A. And I have a question of you. Q. I'm not under oath --? Am I on review-- Page 91 April 18, 2001 AB Q. A. Q. flooring in the amount of $5500. Ostel? Okay. -- and you're not entitled to ask me questions, sir. Okay. Thank you. Thank you. Now, on this list it has cabinets, kitchen. It has A. Uh-huh. Q. A. Q. A. Q. It has windows, sliding doors. Uh-huh. It has Tom, paint and prime. Uh-huh. Shelving, there's an item here for Dave. Is that Dave A. Uh-huh. Q. What was that? For his time? A. That was the initial payment that was already made for labor at that point. is? Q. Oh. That was what had already been paid to --? A. Yes. Q. Okay. Plantation, could you tell me what that item A. Shutters. Q. Okay. A. Yes. Q. Okay. A. A finish carpenter. And do you know who installed those shutters? Who was -- who installed those? I don't -- I can't think of his last name. His first name is Tom, but he's a licensed installer/carpenter, finish carpenter. Q. Okay. Tom is -- he is licensed? A. Yes, he is. Q. Okay. Plumbing -- all right. So this was all work that was going to be done in her -- in her apartment or had been done at this point? Which -- which is it? Was this work that had been Page 92 April 18, 2001 completed? A. This, from what I'm understanding, if you want to go down the list and mark it down so you have a recollection of it later, the windows and sliding doors were the numbers that I was told from either Roberta or Builder's Glass that the cost of all the windows would be. I don't know if they were in at this time or not. Q. Okay. Let me ask you this: And someone from the board has indicated the total here is off --? A. Uh-huh. Q. -- but -- but I believe it's approximately $23,000. Is it your -- was that money either paid to you or to be paid to you? A. I believe this is a checklist of items that were going to be necessary, and this was the money that Robert -- Roberta was going to be spending. How it was going to be paid or who was yet to be determined. Q. So was your part only $2600? No. Well, how much were you -- was your part of the Q. project? A. My painting bill was $3500, which she paid with a credit card to the -- to the -- and also I am a licensed window treatment person, and I do plantation shutters, and that was part -- that was my part too. Q. Okay. So 3500 for the paint --? A. 2500 it ended up being for the plantation shutters. Q. Okay. That's 6,000. A. Yup. Q. And that was the extent of your work, what you were going to do for her? A. Under -- under Roberta's approval, $3450 for purchase of cabinets, okay. Page 93 April 18, 2001 her? Q. Although you were going to purchase the cabinets for A. Under her approval. Q. Okay. A. Okay. She -- in fact, the day that Michael 0ssorio walked into the place, there was a bill for the cabinets taped to the wall. And he says, "Aha. You're a general contractor." I says, "Aha. That's a receipt that she got for cabinets that I drove 30 miles to get.". Okay. Flooring, she went to Tom Connors at Hadinger Carpeting, which I had a working relationship with for six years on a referral basis, and that's why they put it under Tom Welsh, slash, Roberta Horton, and they gave her a builder's price on flooring. Q. I don't mean -- we kind of got sidetracked here. I'm just frying to find out what portion of these figures is attributable to work that you were going to do that she should have rightfully paid directly to you. A. Uh-huh. Q. And you said painting because you're licensed to do painting? A. Uh-huh. Q. And you said you're licensed to install window treatments --? A. Uh-huh. Q. -- only in Naples. And that was --? A. Well, it was a separate license that you get over at Horseshoe Drive, if you're not unfamiliar with it. Q. Yeah. A. Okay? Q. Okay. So that's 35 -- that's roughly $6,000. Are there any other of these items that were going to be paid, any other Page 94 April 18, 2001 dollars that were going to be paid directly to you for work that you were doing? A. We furnished shelving to the lady through a contractor. Q. Okay. And the --? A. And we removed the shelving and -- CHAIRMAN HAYES: One at a time, please. A. I'm sorry. I didn't hear your-- Q. And the cabinets you also arranged for -- for her? A. With her approval, with Roberta's approval. Q. And you arranged for the floor covering? A. I told her who to see at Hadinger, yes -- Q. Did --? A. -- to get a discount, which she couldn't have got on her own, yes. Because I told her in the beginning, I says, "Roberta, I have a set amount that I have for business expenses. I can give you a lot at cost. Some things I need to make money on, and a lot of this is going to be at cost." Q. Okay. Mr. Welsh, there are a couple of checks that are in evidence. Uh-huh. And Roberta -- Dr. Horton testified that she paid you of checks approximately -- what is that -- $11,5007 Correct. Okay. And you -- and you paid her a thousand dollars in the form A. Q. back. A. Q. pocket or A. Right. So -- so how much of that $10,500 went into your -- and went -- what portion went to other individuals? Well, I have a complete checklist here, if you'd like to review it, that explains everything. Q. Well, did you pay yourself $10,5007 Page 95 April 18, 2001 A. Absolutely not. Q. Okay. A. It was paid out for cabinets, shelving, shutters, stucco, supplies, floor stain. MS. CHADWELL: I don't have any more questions. CHAIRMAN HAYES: Okay. You rest your case? MS. CHADWELL: We rest. CHAIRMAN HAYES: Well, thank you, Mr. Welsh. MR. JOHANSON: Your Honor, if I may, my -- my presentation, my case in chief, would arguably be the -- the direct or cross-examination of my own client. CHAIRMAN HAYES: Okay. HCROSS-EXAMINATIONBY MR. JOHANSON: Q. Mr. Welsh, I had an opportunity just to hand you your handwritten notes, and we're not going to introduce that into evidence, but just to refresh your memory, you were asked on direct examination where that money went or -- or accounting to that money. Do you have any notes that reflect that you -- that would refresh your memory? A. Yes. Right in front of me, yes. Q. If you would read into the record what happened to the funds that you were paid. A. $600 went to the removal off of the site and the breaking down of the cabinets and disposing of them. $2500 went to David Ostel. $3600 went into kitchen cabinets and bathroom cabinets. $t 50 went out for floor levelers and other small supplies needed on the job. $3500 was paid on an account to Tom Welsh of Porter Paint. $900 was paid to a shelving company for replacing aft -- removal, plastering, and replacing shelving in the existing closets. 2500 went to shutters. 400 went to stucco the front porch. 150 were also for supplies, and 150 went into concrete stain in a storage area, painting it 2 Page 96 April 18, 2001 coats and -- and other supplies. And there's something missing on here, but I can't recall it. It comes to $14,400, 3500 of that which is Tom Welsh paint job. Q. Let me ask you this, Mr. Welsh: After the project was red tagged, do you have any further involvement in that project? A. I was not permitted to have any involvement, and I was -- Q. So you knew -- you did no additional work on the project, and you were not involved, and you don't know what additional expense or time went into the project after it was red tagged. A. Exactly. Q. Would you not agree with Committeeman Mr. Dickson when he indicated that clearly this is just -- it's not an estimate, it's -- it's just handwritten notes? Is that what Exhibit C reflects? A. Yes, sir. Q. And there -- there's no written contract between you and Roberta Horton, is there? A. No, sir. Q. And then there's no written contract or contract that you had with any subcontractors or specialty contractors, is there? A. No, sir. MR. JOHANSON: I don't have any further questions. I don't have any evidence I need to present; just closing argument. MS. CHADWELL: I'd like to just ask a follow-up question of -- of Mr. Welsh. REDIRECT EXAMINATIONBY MS. CHADWELL: Q. How long have you been licensed as a painting contractor? A. Eleven -- eleven years. Q. Eleven years. MS. CHADWELL: Okay. Thank you. Page 97 April 18, 2001 CHAIRMAN HAYES: Very well, Mr. Welsh. You -- you may sit down. I guess we can go on into closing arguments, summations. MS. CHADWELL: Well, Mr. Welsh has -- is certainly -- we know he's a licensed painting contractor, and he's admitted to being a contractor for a number of years. It's not a case where he doesn't know how to play by the rules. He knows what's required of him. Dr. Horton testified that she did have to pay to have work done as a result of him having unli -- an unlicensed person install the plumbing and electrical work, and there's evidence to that effect. She's not here requesting that the board issue an order requiring Mr. Welsh to pay her all the additional monies it ended up costing her before the job was finalized. But I think there's been sufficient evidence in the record to establish that, yes, he did his mismanagement or misconduct in having what he admitly -- what he admitted to as unlicensed individuals performing this work has caused her financial harm. The fact that there is not a written contract, I don't have to educate you people on -- that that's -- that makes no difference. She paid him. He did work in response to that. That's a contract. It's enforceable. The fact that Mr. Welsh wants to play word games that he didn't really coordinate this or he didn't arrange it, he -- you have his own testimony to -- that he had her pay all dollars to him other than what she paid independently to Porter Paint for painting supplies in the amount, by the way, of $3500. While he -- he stated that that was for the convenience of the individuals in receiving payment, there's no -- no prohibition against them dealing directly with Dr. Horton in arranging their own form of payment any way that they wanted to. I'm sure she would have been happy to comply. Page 98 April 18, 2001 You heard her testimony that she did not contract with any of these individuals and that she was assured that he would be providing licensed subcontractors to do the work. To me, I think, there's certainly evidence for this board to make a finding that he has acted or has -- that he has contracted to do work outside the scope of his competency. You don't require a written contract nor to -- to meet the conditions of that provision of the code. He made arrangements with these individuals to have the work done. Like any -- any owner, Dr. Horton may have had some -- some day-to-day contact with these individuals, but that -- that's irrelevant to the point that he was the one who entered into agreement with her to see that certain work was done, and he was responsible for that. And as a result of his failure to use somebody who was licensed to do the type of work that was done, the project was red tagged, and she had to have work redone in order that the plumbing could be inspected and the electrical could be inspected and that it could be -- meet code requirements. As far as the mismanagement, we feel that there's adequate evidence before this board to find that the costs incurred by Dr. Horton by Titan Custom Homes and in the cost of having to move the windows $300 that those are surely a result of his actions. So we would just ask the board that you make those appropriate findings. Thank you for your patience today. I know it's been long -- CHAIRMAN HAYES: Thank you. MS. CHADWELL: -- a long one. CHAIRMAN HAYES: Mr. Johanson. MR. JOHANSON: Mr. Chairman, members of the board, again, thank you for bearing with me. Again, I don't practice in this forum a great deal of time, and, again, most of my time involved in contracting is -- is protecting homeowners from Page 99 April 18, 2001 unlicensed contractors and looking out for the -- the rights of licensed contractors and licensed subcontractors. I've already indicated in my opening that was my stance and condition, and believe me, I was not happy when I talked to Mr. Welsh in our meeting. And I let him know that. And I don't think we'll have a problem with Mr. Welsh in the future regarding his doing work beyond the scope of his painting license. But, again, as I told you in my opening, we're not dealing with an unlicensed individual. We're dealing with an individual who is licensed in painting, does have a license also in Naples for window treatments and windows. We're not talking with an individual who's just driven in from out of town preying on those who live here in Collier County. We're talking about a gentleman who has a history here in Collier County, does not have a history of being before this board and does not have a history of performing work outside the scope of his contract. Your Honor-- excuse me. Mr. Chairman, members of the board, I believe that Mr. Dickson got right to the point, and -- and it's looking at you've got an individual who comes into the room and then they see something on the stove, and they want whatever's on the stove because they may be hungry or think they need it. But they don't look to see if the stove is on or whether the item is hot. And they go and touch it, and certainly it's hot. They get burnt. Well, how did we know the stove was on this particular case? This particular project was red tagged. By Dr. Horton's own admission, everything was going fine until it was red tagged. In fact, we would not be here today had it not been red tagged, in all likelihood. But knowing that she didn't have a lot of funds -- and she's testified -- Dr. Horton has testified to that -- she was wanting to get the ]ob done very inexpensively. She's testified as to that. She knew that getting a general contractor would Page100 April 18, 2001 cost more money. All right. And why do we know that? By her own admission, after touching the item and getting burnt, getting red tagged. And the individual who did a majority of the work on the project, there's no evidence here before that he's a licensed contractor or not. David Ostel, whom Mr. Welsh set up with Dr. Horton, continued to do her work under the auspice of Titan Homes, a licensed general contractor. By her own admission, she's still contracting, he's still doing work there, the same type of work he was doing before. Has Roberta Horton been financially damaged or harmed by my client and his company? No. If she felt the work wasn't done properly, why would she have the same glass company come in and move it and pay them again? If she was so unhappy with them, she should have gotten someone else. She didn't. She brought them in again. If she didn't feel that the electrical or the plumbing or any of the other items were being done correctly, she wouldn't have continued to work with David Ostel if she thought he was the one doing the work. My client cannot be held responsible for -- for the additional costs above and beyond what it would have cost because of some code violations or redoing work that was done improperly. But there's no hard evidence before this board of any code violations. There wasn't a permit. It was red tagged. I don't see anything -- and I've seen no documentation to show that there was any code violations. To this day I don't see anything, even after the fact, to reflect that, nothing from Titan Homes coming in and saying, well, because this didn't meet the code we had to come in and do the work. There's nothing before this board of that. So as to the -- any evidence of additional cost and expense, we can only assume, based upon her own testimony when going down the list, yes, the cabinets were removed. New cabinets Page 101 April 18, 2001 were put in. David Ostel did work on the project. Tom Welsh did painting on the project. There was shelving done. There were shutters ordered and installed. There was stucco on the front porch. There was some floor work that was done. She testified by -- to that by its own admission. You heard Mr. Welsh testify, in going down the list, this is what he did. And on his notes to reflect, that totals out, by his own notes, of $14,400. This is what we're talking about that she's paid Mr. Welsh. And of that he returned a thousand dollars to her. Has he benefitted or profited from her? No. Has she benefitted or -- or profited by his work? I think initially she thought she was getting the good work, getting things right, and she wanted that to continue. And, in fact, even under the auspice of a general contractor, it did. She cannot come before this board and say that I was financially harmed due to mismanagement or misconduct when the same gentleman who was primarily responsible on the day-to-day -- this David Ostel, who she testified she saw and what he was doing she continued to work with in the contract thereafter. As far as mismanagement and misconduct, there's no evidence before this board that that 15,500 did not go, as Mr. Welsh testified, to pay for removal of cabinets. So there's no evidence before this board to show that she paid for something that she didn't get. It may not have been from a licensed general contractor initially, but she did get what she wanted. So from that she has not been financially harmed. To come in here and say, well, she had to then get the permits and pass inspections, those are the same expenses, I said earlier she would have had to have paid initially, but she's trying to get by on the cheap and not pay it up front. So she paid it in the end, but she would have had to pay it regardless. Regarding Count I under this complaint B, contracting new Page102 April 18, 2001 work outside the scope of his employment, yes, by his own admission he was in there acting as the general contractor by accepting money and paying it out. Is he responsible for mismanagement or misconduct in the practicing of contracting? Certainly not. There's no evidence of that before this board. And then taking that into consideration, I don't know if we're arguing or presenting arguments as far as the penalty phase or not, but I would just say you certainly have to take into consideration that it was Dr. Horton, in fact, who grabbed for that hot cup again. And to this day we don't know if David Ostel is a licensed contractor, why David Spinelli and William Spinelli of Titan Homes is allowing him to go and do the work, you know. We just don't know, and there's no evidence before this board regarding that. So as far as the -- the -- again, looking at it, the possible damage to -- to the community, certainly we don't want lies -- unlicensed contractors doing work in -- within Collier County or within the State of Florida who are unlicensed. And we certainly don't want individuals in Collier County taken advantage of financially. But there's no evidence in this particular case that this is a grave situation because, by Dr. Horton's own admission, the same principals involved in doing the work she's continued to contract with. The impact to Dr. Horton, financially she's probably very little worse off now than she would have initially been had she contracted with a general contractor. In fact, she would have probably had to pay a lot more had she not continued to work with David Ostel. Actions to lessen the significance? He returned to her a thousand dollars. He went down the list and accounted for where $14,400 went. He paid back a thousand dollars. He did not make any money on this project. For that you're -- members Page 103 April 18, 2001 of this committee, I -- I would ask that in the penalty phase that if -- if this board finds that, in fact, Mr. Welsh did, in fact, violate and do work outside the scope of his competency on this particular case, that involving Roberta Horton, that at least you take into consideration the testimony today as to the impact on this particular individual and keep that in mind when assessing the penalty. Thank you. CHAIRMAN HAYES: Thank you, Mr. Johanson. DR. HORTON: May I, please, just answer a few things he said? MR. DICKSON.' No. DR. HORTON: No? CHAIRMAN HAYES: I don't think so. DR. HORTON: Okay. MR. DICKSON: I move to close the public hearing. CHAIRMAN HAYES: I have a motion to close the public hearing. MS. PAHL: Second. MR. SCHOENFUSS: I'll second it. MR. NEALE: All right. Before the board begins deliberation, there's some comments I -- I normally make at this stage of the hearing, and I'd like to do that at this point, if -- MR. DICKSON: Do you want to vote on the motion first? MR. NEALE: You can on -- when you vote on the motion obviously. CHAIRMAN HAYES: Vote on the motion. Okay. I have a motion and seconded. Did you get the second on that? MS. PAHL: Pahl. Pahl. CHAIRMAN HAYES: All in favor? (Unanimous response.) CHAIRMAN HAYES: Opposed? Yes, sir, Mr. Neale. Page 104 April 18, 2001 MR. NEALE: All right. These are the -- the comments that are normally provided to the board as far as the -- some things to think about as they begin their deliberations in that this board in its deliberations shall ascertain that the principles of fundamental fairness and due process have been afforded to the respondent. However, pursuant to Section 22-202.G.5 of the Collier County ordinance, the formal rules of evidence as set out in Florida Statutes have -- shall not apply. However, the board shall exclude from its deliberations irrelevant, immaterial, and cumulative testimony. It shall admit and consider all other evidence of a type commonly relied upon by a reasonably prudent person in the conduct of their affairs. This is whether or not the evidence so admitted would be admissible in a court of law or equity. As noted previously, hearsay may be used to explain or supplement any other evidence. Hearsay by itself, however, is not sufficient to support a finding in this or in any other case unless it would be admissible over objection in civil court. The standard of proof in this type of case wherein the respondent may lose his privileges to practice his profession is that the evidence presented by the complainant must prove the complaintant's case in a clear and convincing manner. This burden of proof on the complainant is a larger burden than the preponderance of evidence standards set for regular civil cases. However, the standard established for sanctions, other than those affecting the license of the respondent, is that of a preponderance of the evidence. The standard and evidence are to be weighed solely as to the charges set out in the complaint as Collier County Ordinance 90-105, Sections 4.1.2 and Sections 4.1.8 and codified in the Collier County code of laws and ordinances as 22-201 (2) and (8). (8) is charged only in part. The full text was not incorporated in Page 105 April 18, 2001 the complaint. In order to support a finding that the respondent is in violation of the ordinance, the board must find facts that show the violations were actually committed by the respondent. The facts must show to a clear and convincing standard the legal conclusion that the respondent was in violation of the relevant sections of 90-105 as amended. The charges are specific, and they're set out in this complaint as contracting to do work outside the scope of his competency, as listed on the competency card and defined in the ordinance or as restricted by the Contractors' Licensing Board and, Count 2, committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. These charges are the only ones that the board may decide upon as these are the only ones to which the respondent has had the opportunity to prepare -- prepare a defense. The decision made by this board shall be stated orally at this hearing and is effective upon being read by the board. The respondent, if found in violation, has certain appeal rights to this board, the courts of this state, and the State Construction Industry Licensing board, as set out in the Collier County ordinance and the Florida Statutes and rules. If this board is unable to issue a decision immediately following the hearing because of questions of law or other matters of such a nature that a decision may not be made at this hearing, the board may withhold its -- withhold its decision until a subsequent meeting. The board shall vote upon the evidence presented and on all areas and adopt the administrative complaint and conclusions and findings as set out in the complaint, if so -- if they so find. The board at the same time as voting upon these shall consider an order sanctions under the following parameters as Page106 April 18, 2001 set out if they find the contractor in violation, and we'll discuss those sanctioned impli -- implications or ramifications subsequent to the board's deliberation on the actual -- CHAIRMAN HAYES: Order. MR. NEALE: -- violation. CHAIRMAN HAYES: Okay. Discussion? MS. WHITE: I think he was contracting to do work outside the scope of his competency by his own admission. I wrote down a couple of comments that he said during his testimony. Quote, I had a cabinet man in there to price the doors. Quote, I would get qualified persons. Quote, I had a stucco fellow patch. CHAIRMAN HAYES: Uh-huh. MS. WHITE: It was consistent throughout his testimony, and that's my comment. CHAIRMAN HAYES: Okay. MS. WHITE: Are we dealing with Count I and Count 2 at the same time? CHAIRMAN HAYES: No. We're dealing with just B item. MR. DICKSON: Well, in your own-- . MR. NEALE: You can deal with Count I and Count 2 -- CHAIRMAN HAYES: MR. NEALE: Yes. CHAIRMAN HAYES: Oh, I'm sorry. Count I is -- Yes. MS. WHITE: We're doing both counts at the same time? MR. NEALE: Board -- it's the board pleasure. CHAIRMAN HAYES: Yeah. MR. NEALE: You can discuss both of them at the same time. I would recommend strongly that you separate them as to motions, though. CHAIRMAN HAYES: When we do the motions, exactly. MR. NEALE: When you do the findings of fact and questions of law. Page 107 April 18, 2001 MR. CRAWFORD: Crawford, I would like to move that Tom Welsh has violated Count I and has worked outside of his scope of competency. CHAIRMAN HAYES: You make a motion? MR. CRAWFORD: Yes. CHAIRMAN HAYES: I need a second. Anyone want to make the second? I'll second it. MR. DICKSON: Okay. CHAIRMAN HAYES: Any further discussion on it? All in favor. (Unanimous response.} CHAIRMAN HAYES: Opposed? Okay. Any -- any discussion on Count 2? MR. DICKSON: Dickson, I move that Count 4.1.8, causing financial harm by mismanagement, be dismissed. MR. LAIRD: I would second that motion. CHAIRMAN HAYES: I have a motion and second. Any further discussion? MR. CRAWFORD: I guess I -- I guess I'd just like to comment. These type of cases are what frustrate me a great deal as a general contractor. You know, these are the kind of cases that -- that really give our industry a bad name, and it -- and it disappoints me that this is the way that -- this is why we're here. The -- the part about Count 2 that I don't think I can agree with is -- is the financial harm. I think that -- that the plaintiff ultimately probably paid very closely of what she would have if she would have hired Spinelli or Titan Homes at the -- at the start of the project, but -- but there was some mismanagement and -- and I think some misconduct, but to agree to the full statement there, I think, is -- it's not clear to me. CHAIRMAN HAYES: Did you have possibly another motion after this? Page 108 April 18, 2001 MR. CRAWFORD: No, I guess I didn't. MR. NEALE: Okay. Unfortunately, you have the two options: Either you did or did not. CHAIRMAN HAYES: Right. MR. DICKSON.' And I agree completely with what you're saying. And I'm really sick and tired of seeing these type of situations around the county. We see them every day in this business where people are trying to skirt permits and they're trying to skirt licensed contractors in an effort to save money. And all we hear about is how they lose money, but they need -- the public needs to quit doing it as well. MS. WHITE: Buyer beware. CHAIRMAN HAYES: Buyer beware. MS. PAHL: Buyer be educated. CHAIRMAN HAYES: Okay. Any further discussion on the motion? MR. SCHOENFUSS.' What's the motion again, please? MR. DICKSON: Dismiss Count 2. CHAIRMAN HAYES: Dismiss Count 2. MR. SCHOENFUSS: Can we break Count 2 down into two parts, Because committing mismanagement and misconduct is one thing and causing financial harm to a customer is a different item? MR. NEALE: No. CHAIRMAN HAYES: No. It's all set forth in Section 4.1.8. The way it is, we can perhaps discuss it or make another motion after we vote on this motion. But if we dismiss that count, I don't think we can carry any further charges on it. MR. SCHOENFUSS: So it says conducting mismanagement or misconduct. So if we agree with one but disagree with the other, we still agree -- would agree with the count. CHAIRMAN HAYES: We'd have to either be at it -- as it's Page109 April 18, 2001 written or not. MR. SCHOENFUSS: Okay. CHAIRMAN HAYES: Calling for the vote. (Those in favor responded.) HAYES: Opposed? MR. SCHOENFUSS: CHAIRMAN HAYES: Okay? All in favor? Opposed. I have one opposed, Mr. Schoenfuss. Okay. So we have found Count I to be in effect in the administrative complaint. MR. NEALE: If I can give the board a little comment on the sanction and that that's the next phase -- CHAIRMAN HAYES: No. Don't I need to read the order again just like I did on Count A or should I -- do I not have to do that? MR. NEALE: Which the board can do in that we're now at this -- this phase is the board can -- you could, if it's your pleasure, read it altogether once sanctions have been decided upon as -- CHAIRMAN HAYES: Okay. MR. NEALE: -- you can read everything from the top down instead of having to read it twice. CHAIRMAN HAYES: Okay. MR. NEALE: Because then you'll -- you will take another vote on the order and the sanctions all at one time. CHAIRMAN HAYES: Right. MR. NEALE: As the board's found the respondent in violation of the Collier County ordinance, it must decide on the sanctions to be imposed. These sanctions are set out in the codified ordinance in Section 22-203 and in the current ordinance in Section 4.3. --5. Sanctions which may be implozed -- imposed include revocation of the certificates -- certificate of competency, suspension of certificate of competency, denial of Page t10 April 18, 2001 issuance or renewal of the certificate of competency, probation of a reasonable length not to exceed two years during which the contractor's contracting activities shall be under the supervision of the contractor licensing board and/or participation in a duly accredited program of continuing education. Probation may be revoked for cause by the board at a hearing noticed to consider said purpose. Restitution may be ordered by the board. A fine not to exceed $5,000 may be imposed. A public reprimand may be issued. The board may require the respondent to take -- retake the examination. There may be a sanction of denial of the issuance of permits or requiring issuance of permits with conditions. The board may also award, if proven, reasonable legal and investigative costs as under restitution they must prove up restitution. When evaluating these sanctions, the board pursuant to ordinance and statute shall consider the gravity of the violation, the impact of the violation, 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 as to the sanction which is appropriate for the case given the nature. The board also must issue a recommended penalty for the State Construction Industry Licensing Board. The penalty recommendation to the state may include a recommendation for no further action or a recommendation of suspension, revocation, or restriction of the registration or a fine to be levied by the State Construction Industry Licensing Board. MR. DICKSON: Can I ask a question? CHAIRMAN HAYES: Sure. MR. DICKSON: In the case of a fine, where does that money go? MR. NEALE: The fine goes -- I -- it's my understanding the Page 111 April 18, 2001 fine goes to the same place traffic fines go basically. It goes to the -- into the registry. It doesn't -- CHAIRMAN HAYES: Does anybody know that? MR. NEALE: I do not believe it's specifically earmarked for community development. Do you know, Bob? MR. NONNENMACHER: No. I'm -- I'm not quite sure. I know the fines from the citations' supposed to go into a fund -- MR. NEALE: Uh-huh. MR. NONNENMACHER: -- specifically -- MR. NEALE: Yeah. MR. NONNENMACHER: -- contract. MR. NEALE: That's by statute. These fines, I believe, go to the general registry. MR. DICKSON: Unless you specify what was the last one where the legal expenses -- MR. NEALE.' Reasonable legal and investigative costs. The only problem with that is that there must be evidence put on as to what the costs were, and that -- if the board so finds, they may. CHAIRMAN HAYES: Okay. What's this board's pleasure at this point? I feel we've been satisfactorily-- been demonstrated a flagrant violation of the ordinance when it comes to operating outside the realm of your license, probably been going on for some time. You know, I don't think that Mr. Welsh needs to get the daylights beat out of him, but by the same token, I do believe that he has violated the ordinances continuously and only been caught recently. And the question I want to know is what would it take to make him refrain from continuing it. I think he has a right to make a living, but he needs to stay within his realm of work. And if he's going to take on an additional amount of work, he's going to either have to get a general contractor's license or Page 112 April 18, 2001 he's going to have to hire a general contractor or for -- or at least direct the owner to a general contractor. Apparently up to this point I haven't seen a whole lot of evidence of complaints of his work. I don't know how often he's mismanaged his work nor harmed -- financially harmed the owners. To say that he's not licensed is a legitimate fact to be a general contractor. To say that he has harmed all of the people that he's done work for by operating out of the realm of his license is another story. I think that we all know that it's a lot more expensive to operate as a general contractor licensed than it is to operate as a nonlicensed contractor. To say that a homeowner tried to save money by not hiring a general contractor happens every day all the time· But to say that the general contractor is going to give them their money's worth is a question up for grabs every day of our life. So I don't believe that Mr. Welsh has been a blind-wearing outlaw, but I just believe that he's had enough -- had enough experience with the violation of ordinances at this point to refrain from getting into this activity in the future. So I don't know. But personally I do see the need for some form of punitive action. Whether it be monetarily or suspension, I don't know. But I did want to just kick off the discussion. MS. WHITE: Question: Do we have two citations issued here or one citation for 300? MR. NEALE: Well, this -- this is not a hearing on the citations MS. WHITE: penalty. CHAIRMAN HAYES: first case, A. MS. WHITE: $300? CHAIRMAN HAYES: I know· But I'm using the citation to calculate a I think he was only citat -- cited in the I don't believe I see a citation in B. Page 113 April 18, 2001 MR. NEALE.' And the -- the citations are treated in a different manner typically so -- MR. DICKSON: Can I throw something out for the board to consider?. There's one attorney in this room that's going to be paid by Mr. Welsh. I personally think he should pay for all three. I also think he should pay for the investigators and the time that it took to do this case. We've worked with it twice. Mr. Welsh knew he was wrong; he got caught. I'm also thinking a fine is appropriate, and I'm also thinking a probation period is appropriate knowing fully well that if he steps out of line during that probation period that he faces revocation. I'm just curious how you guys feel about it. MS. PAHL: I feel very strongly for probation. MR. DICKSON: What do you feel about let's take testimony on what it cost to handle this case? I think it's about time that maybe we set a precedent in that area. CHAIRMAN HAYES: You're speaking possibly of a fine and of probation? MR. DICKSON: I'm think -- speaking of legal and investigative expenses, a fine, and probation. MS. WHITE: I agree. Two years' probation. MR. SCHOENFUSS: Can't we assume that after all this talk and all these proceedings and the talk of a substantial fine that -- that Mr. Welsh will learn his lesson and will be careful from here on anyway and that the -- that the practical equivalent of a probation will be -- will take effect whether we actually apply it formally or not? MR. DICKSON: There's some truth to that. CHAIRMAN HAYES: Mr. Neale, what is the maximums on our imposition of the fines? MR. NEALE.' Maximum fine is $5,000. MR. DICKSON: What about legal and investigating Page 114 April 18, 2001 expenses? MR. NEALE: Unfortunately, it's my opinion on those that there has to be some proof brought forward. MR. DICKSON: See, we've never charted that water before. MR. NEALE: Well, there was one case a number of years ago that the county -- county attorney's office actually brought in evidence of costs and expenses and so forth so -- that's the only one I can recall in the five years I've been doing this. CHAIRMAN HAYES: Mr. 0ssorio, did you have any recommendations in this case ? MR. OSSORIO: We had a recommendation prior to this of revocating the license. But probation with a strong fine of some type would be prudent with this -- this case. CHAIRMAN HAYES: After all, you've spent quite some time investigating and putting the case together. MR. OSSORIO: We have. CHAIRMAN HAYES: And I just wanted to hear from your perspective. Thank you, sir. MR. LAIRD: Mr. Chairman, I would like to make a comment. I certainly would recommend probation, but also I don't think we should get too carried away as far as a fine. CHAIRMAN HAYES: Do you want to make a motion? MR. LAIRD: I would so move that we do the probation for two years and with a fine of a thousand dollars. Well, that's a little over treble damages for the MS. WHITE: $300 citation. MR. LAIRD: MS. WHITE: $300 citation. I didn't hear that, ma'am. I say that's a little over treble damages for the CHAIRMAN HAYES: I have a motion. MR. LAIRD: Okay. Well-- CHAIRMAN HAYES: I need a second before we can go any Page 115 April 18, 2001 further on it. I don't-- MR. CRAWFORD: I'm -- I'm in agreement with the thousand dollars. I don't know why the probation needs to be two years. One year is plenty for me. Either he's going to turn around or he's not. Two years is a pretty long time for me. I -- MR. LAIRD: I would be very happy to amend my motion to one year. MR. SCHOENFUSS: CHAIRMAN HAYES: MR. SCHOENFUSS: How is probation enforced? What -- Pardon me? How is it enforced? That means nothing happens unless he does something wrong again. MR. LAIRD: That's correct. MR. SCHOENFUSS: And if he does something wrong again, he's going to be up in trouble anyhow, whether or not he's on probation. So what's the difference? What does it accomplish? MR. NEALE: Except that the only issue -- and there actually was -- again, I guess I've been sitting in this chair too long. I remember another case where a license was put under probation and the issue there is all the board has to do is provide notice to the -- to the respondent that they're going to have a hearing on revocation of that probation and then the probation is revoked. You know, when the board goes to revoke probation, the license is gone. MR. SCHOENFUSS.' Okay. CHAIRMAN HAYES: Okay. I do have a motion. If I don't get a second, the motion dies. MS. PAHL: Restate the motion. MR. NEALE: Mr. Laird? CHAIRMAN HAYES: The -- the -- MR. LAIRD: I made the motion, and I amended the motion to one year probation rather than two. CHAIRMAN HAYES: One year probation and $1,000 fine. Page116 April 18, 2001 MR. LAIRD: That's correct. CHAIRMAN HAYES: I have not got a second. MS. PAHL: I'll second that. CHAIRMAN HAYES: I have a motion and a second. Any further discussion? CHAIRMAN HAYES: I would suggest, in my own mind, that a thousand dollars is a token. And we have two cases, I guess. And we got to -- to do the order of the board on the A case after So this case -- this probation and this we finish with this case. fine pertains to only B. MR. NEALE: Well, it --what I would suggest, Mr. Hayes, is that, as we discussed in the first case, in this sanctioned phase, the board really probably should be considering both cases. CHAIRMAN HAYES: Then-- MR. NEALE: They are brought as one case. CHAIRMAN HAYES: That's why I brought it up, Mr. Neale, because in my own personal opinion, then I would -- would be more satisfied with a thousand dollars per case rather than a thousand dollars for two cases. The motion has been made and a second, so -- been brought up. I just discussed that prior to this. MS. WHITE: I would also be happier with a year probation per case. We're not just dealing with one incident. CHAIRMAN HAYES: I think the probation doesn't matter. If it's probation, it's probation. So if we do -- do probation for one year and he doesn't violate and then he comes back in a year and six months and violates, this board's probably going to take his license anyway, probation in place or not. MS. PAHL.' That's true. CHAIRMAN HAYES: Okay. MS. WHITE: Uh-huh. CHAIRMAN HAYES: So I'm going to -- Page 117 April 18, 2001 MR. LAIRD: I'm calling the question. CHAIRMAN HAYES: I'm going to call for the vote. All in favor? May I have a show of hands? MR. CRAWFORD: For clarification, this is a vote for one year, one thousand dollars for both cases? MR. NEALE: One thousand dollars per case or -- MR. CRAWFORD: Total. CHAIRMAN HAYES: Total. MR. CRAWFORD: Okay. CHAIRMAN HAYES: One, two, three, four. Nays? Three. That would carry, then; it's 4 to 3. I have White, Hayes, and Dickson. Okay. So that's the way it's going to be. We're -- we're looking at -- MR. DICKSON: Recommendations. CHAIRMAN HAYES: I'm not done yet. -- one year probation and $1,000 fine total for both counts. Okay. Then we'll go on to -- we need to further recommend to the -- recommend -- make a recommendation to the Florida Construction Industry Licensing Board to impose on the state register the following penalties. I need a motion. MR. DICKSON: Dickson, I move that no further action by the state. MR. LAIRD: I'll second. CHAIRMAN HAYES: Moved by Dickson, seconded by Laird. Any further discussion on it? MR. NONNENMACHER.' I don't think a painter is a state- registered contractor. MR. OSSORIO: Just for the record, we do have a state investigator here. CHAIRMAN HAYES: You do currently now -- say he's here working with us ? Page 118 April 18, 2001 MR. OSSORIO.' Well, no. We have one here in the audience, Mrs. Slosar. CHAIRMAN HAYES: Thank you. MR. DICKSON: The state has -- the reason for my motion, the state's got a lot of cases to handle. I think we handled this one appropriately. CHAIRMAN HAYES: I have a motion -- did I have -- I do have a second. Any further discussion? All in favor? (Unanimous response.). CHAIRMAN HAYES: Opposed? Motion carries unanimously. No further action on the state level. MR. LAIRD: Mr. Chairman, can I make a statement? I've served on the state board for, I think, 5 1/2 years, and I think this board does a great ]ob right here. CHAIRMAN HAYES: Well, thank you, sir. Mr. Neale, do I have to do any more formalities on this order, meaning this thing? MR. NEALE.' What I would -- CHAIRMAN HAYES: The order is written out in the packet, and it has a place ordered by the Contractors' Licensing Board and attested to by the chairman with a signature -- MR. NEALE: Well, the -- the -- the order of the board, which is on page 2 of the -- of the document -- CHAIRMAN HAYES: Uh-huh. MR. NEALE: -- will reflect that the board adopted, by a vote of 4 to 3, the sanctions and order. That's just -- CHAIRMAN HAYES: I beg your pardon. If you read it, I believe it says that we found him in violation, not that we agreed on the penalty. MR. NEALE: However, under order of the board, it says, Page 119 April 18, 2001 "Pursuant to the authority, it is hereby ordered that the following sanctions and related order are hereby imposed." so the vote on the sanctions was 4 to :3, and that's the vote -- CHAIRMAN HAYES: I would have thought that the vote was 7 to 0 on Count 1. MR. NEALE: This-- CHAIRMAN HAYES: That is a conclusion of law. MR. NEALE: This is the -- well, but that's not the conclusion of law. It was 7 to 0 -- or 8 -- 7/0 on everything else, but on the final order of the board -- CHAIRMAN HAYES: Four to three. MR. NEALE: -- it was 4 to 3. CHAIRMAN HAYES: I understand. Thank you, sir. Any -- then as far as the formalities of reading of the order, then, you think that this is adequate? MR. NEALE: I would recommend probably that you just read through from the top up through order of the board and then skip through all of the -- the verbiage after that because that will be informal notice and then also read through the recommendations so that it's all on one. CHAIRMAN HAYES: Okay. So I'm going to say the order of the board, based upon the foregoing findings of fact and conclusions of law, in pursuit of the authority granted in Chapter 489, Florida Statutes, and Collier County Ordinance No. 90-105, as amended, by a vote of 4 in favor and 3 opposed, it is hereby ordered that the following disciplinary sanctions and related orders are hereby imposed upon the holder of Contractor's Certificate of Competency No. 10 -- 12038: Number 1, one-year probation; Number 2, $1,000 fine. Is that satisfactory, Mr. Neale? MR. NEALE: Uh-huh. And then also read the -- I'm sorry. I wasn't paying attention. Also read the recommendations of the Florida Construction Industry Licensing Board. Page 120 April 18, 2001 CHAIRMAN HAYES: Into the record. And, further, the board makes recommendation to the Florida Construct -- Construction Li -- Industry Licensing Board to impose on a state registration the following penalties: Number 1, no further action. Ordered by the Contractors' Licensing Board, effective April 18th, the year 2001. Is that sufficient? MR. NEALE: Yes, sir. CHAIRMAN HAYES: I believe that concludes this case. We withdrew the other public hearing. MR. OSSORIO: Yes. CHAIRMAN HAYES: Any other reports? No other reports? How about discussion? Anybody have any discussion? MR. DICKSON: Is May 23rd going to be all day, Mr. Nonnenmacher? MR. NONNENMACHER.' I would assume it would be a good part of the day, a pretty good part of the day. MR. LAIRD: What was that date again? MR. NONNENMACHER: May 23rd? MR. LAIRD: May 23rd? MR. NONNENMACHER: Yes. MR. DICKSON: That case is coming at that meeting? MR. NONNENMACHER.' So far it is scheduled to come before the board on May 23rd. MR. DICKSON: Thank you. MR. SCHOENFUSS: May 23rd, that's a Wednesday. MS. WHITE: Five weeks, right. MS. PAHL: It's the fourth Wednesday of the month. MS. WHITE: Instead of the third. MS. PAHL: It's the fourth Wednesday of the month instead of the third. MR. SCHOENFUSS.' There's a possibility I may not be here, Page 121 April 18, 2001 but I don't know yet. CHAIRMAN HAYES: Anyone else know that they won't be here? MR. LAIRD: I can't. CHAIRMAN HAYES: Mr. Laird will be not here. And you, Mr. Schoenfuss, aren't sure? MR. SCHOENFUSS.' I'm not sure. A possibility of my having to be working for the state. MR. CRAWFORD: Mr. -- Mr. Chairman, one more. I'm probably the last one to bring this up because I've been absent a couple times recently, but Dan Gonzalez has never been -- he's typically never here. And I just wondered if maybe, Mr. Nonnenmacher, you could talk to him and see if he's still interested in attending. I don't know what the bylaws state as far as absences go, but if he doesn't want to attend, we should try to find someone else. CHAIRMAN HAYES: I completely agree. Mr. Neale, in the long run, I believe that -- I'm sorry. I believe that there is something clear in there on what we have to do. MR. NEALE: There is a procedure for absences. CHAIRMAN HAYES: That's correct. After a certain time, we have to make a recommendation to the board. MR. NEALE: It's -- yeah, it's -- actually -- I don't know whether it's actually an ordinance or it's referred to in the county board ordinance, but there is -- there is a provision for that so -- MR. CRAWFORD: And we can do that, but maybe we could just talk to him first and see what his intentions are. CHAIRMAN HAYES: Okay. Any further discussion? MR. LAIRD: Mr. Chair, on the 23rd, I chair the MS advisory council that always meets on the fourth Wednesday, has for many years. So that's the reason why I will not be able to be here. Page 122 April 18, 2001 CHAIRMAN HAYES: MS. PAHL: No. CHAIRMAN HAYES: possible. Anything else from anyone? I need a motion to adjourn. MR. LAIRD: So move. MR. SCHOENFUSS: Second. CHAIRMAN HAYES: All in favor? (Unanimous response.) Okay. Anybody else see any problem? Be prepared for most of the day, if There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 1:09 p.m. CONTRACTORS' LICENSING BOARD GARY HAYES, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY BARBARA A. DONOVAN, RMR, CRR Page 123