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CLB Minutes 05/23/2001 RMay 23, 2001 TRANSCRIPT OF THE MEETING OF THE CONTRACTORS' LICENSING BOARD Naples, Florida, May 23, 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 9:02 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 RICHARD JOSLIN ARTHUR SCHOENFUSS CAROL PAHL SARA BETH WHITE WALTER CRAWFORD, IV BOB LAIRD ABSENT: DANIEL GONZALEZ ALSO PRESENT: PATRICK NEALE, Attorney for the Board ROBERT ZACHARY, Assistant County Attorney BOB NONNENMACHER, Chief License Compliance Officer PAUL BALZANO, License Compliance Officer THOMAS BARTOE, License Compliance Officer MICHAEL OSSORIO, License Compliance Officer Page 1 ~.~o r~ o~z ~oo ~O~O ~OMMU~I'I~Y OEVELOPMENT ~002/002 AGENDA COLLIER COUNTY CONTRACTORS' LICENSING BOARD DATE; May 23, 2001 TIME: 9:00 A.M. ADMINISTRATION BUIL[~INC~ COURTHOUSE COMPLEX 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 IS 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: Apnl 18, 2001 V. NEW BUSINESS: Mark T. Wiles - Request to qualify 2"~ entity. Thomas E Kelly- Request lo qualify 2"~ entity. Brit E. Svoboda - Request to qualify 2"~ entity Daniel Malinowski - Review credit report VI. OLD BUSINESS: VII. PUBLIC HEARINGS: C.L.B. ~2001-01 Collier County vs Eamonn D. Walsh D/B/A Challenger Pools VIII, REPORTS; iX. DISCUSSION: X. NEXT MEETING DATE: June 20, 2001 May 23, 2001 CHAIRMAN HAYES: I'd like to call this meeting to order, Collier County Contractors' Licensing Board, May the 23rd at about 9:02 a.m. 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 insure that a verbatim record of the proceedings is made, which record includes that testimony and evidence upon which appeal is to be based. I'm going to start with a roll call to my right. MR. CRAWFORD: Walter Crawford. MR. LAIRD: Bob Laird. MR. DICKSON: Les Dickson. CHAIRMAN HAYES: Gary Hayes. MR. JOSLIN: Richard Joslin. MS. PAHL: Carol Pahl. MR. SHOENFUSS: Arthur Schoenfuss. MS. WHITE: Sarah Beth White. CHAIRMAN HAYES: Do we have any additions or deletions to the agenda? MR. BARTOE: Good morning, Mr. Chairman, board members. For the record, I'm Tom Bartoe, licensing compliance officer. And staff has no additions or deletions. CHAIRMAN HAYES: I need a motion for approval of the agenda. MR. LAIRD: I so move, Mr. Chairman. CHAIRMAN HAYES: Name? MS. PAHL: I'll second it. CHAIRMAN HAYES: All right. When you say your motions, state your name. MR. LAIRD: I'm sorry. So moved, Bob Laird. MS. PAHL: Seconded, Carol Pahl. CHAIRMAN HAYES: I have a motion and a second. All in Page 2 May 23, 2001 favor. (Unanimous response.) CHAIRMAN HAYES: (No response.) CHAIRMAN HAYES: 18th in front of me. Opposed? Very well. I have the minutes of April MR. DICKSON: I move that they be approved as written, Dickson. MR. JOSLIN: Joslin, second. CHAIRMAN HAYES: I have a motion and a second. All in favor? (Unanimous response.) CHAIRMAN HAYES: Opposed? (No response.) CHAIRMAN HAYES: Very well. We move right on into new business. Mark T. Wiles, request to qualify a second entity. Mr. Wiles, are you here? (No response.) CHAIRMAN HAYES: We can perhaps come back. Thomas F. Kelly, request to qualify second entity. Are you here, Mr. Kelly? MR. KELLY: (Indicating.) CHAIRMAN HAYES: Would you come up to the podium, please, sir. I need to have you sworn in. (The oath was administered.) CHAIRMAN HAYES: I need your name for the record. MR. KELLY: Thomas F. Kelly, Jr. CHAIRMAN HAYES: Good morning, Mr. Kelly. MR. KELLY: Good morning. CHAIRMAN HAYES: And your need for being here this morning is ... MR. KELLY: I recently purchased another floorcovering Page 3 May 23, 2001 business, and I need to qualify that so I can have a license, as well as my original business. CHAIRMAN HAYES: You're currently qualifying Century Carpet? MR. KELLY: No. That's -- that's who I have now. I'm looking to qualify Ultimate Floorcovering. CHAIRMAN HAYES: You don't qualify Century Carpet? MR. KELLY: It already is -- I already have a license for that company. CHAIRMAN HAYES: And it's not you? MR. KELLY: Yes, it is me. CHAIRMAN HAYES: So you are qualifying Century Carpet as we speak? MR. KELLY: No. I -- I already have a license for Century. I need to qualify Ultimate Floorcovering. CHAIRMAN HAYES: I'm confused. MR. KELLY: I already have a license for Century Carpet and Tile. I've had that business for a number of years. Now I'm looking to qualify another floorcovering business which is Ultimate Floorcovering. CHAIRMAN HAYES: So you have a license for Century. MR. KELLY: Correct. CHAIRMAN HAYES: That means that you qualify Century currently. MR. KELLY: Yes. CHAIRMAN HAYES: Right. That's what I'm trying to get at. I thought there might have been someone else involved. Okay. And the reason that you're looking to qualify the second entity? MR. KELLY: Well, I need to have a license, a specialty license, for it. I keep the business separate, just different names, different locations, and such. So I need to qualify that so I can have a license and -- Page 4 May 23, 200t CHAIRMAN HAYES: Do they do the same kind of work? MR. KELLY: Yes. MR. DICKSON: It's called good business. Mr. Chairman, I don't know if anyone else has -- I've looked over the file. The best credit report I've seen in months. I see no reason to deny it. I move that it be approved. MR. LAIRD: I second, Laird. CHAIRMAN HAYES: I have a motion and a second. Any further discussion? (No response.) CHAIRMAN HAYES: All in favor. (Unanimous response.) CHAIRMAN HAYES: Opposed? (No response.) CHAIRMAN HAYES: That was short and sweet. Mr. Kelly, as normal, your records are here today, so this afternoon you won't be able to go and finish up your paperwork. It won't happen until tomorrow. Okay? MR. KELLY: That's fine. CHAIRMAN HAYES: All right. MR. KELLY: Come by tomorrow and pick it up? CHAIRMAN HAYES: Yes, sir. MR. KELLY: Thank you. CHAIRMAN HAYES: Brit E. Svobodo (phonetic), request to qualify second entity. Are you here, sir? MR. SVOBODA: Aye. CHAIRMAN HAYES: Good morning, sir. MR. SVOBODA: Hi. How are you? CHAIRMAN HAYES: I'm going to ask you to get sworn in. (The oath was administered.) CHAIRMAN HAYES: Your name for the record. MR. SVOBODA: Brit Svoboda. Page 5 May 23, 2001 CHAIRMAN HAYES: MR. SVOBODA: Svoboda. CHAIRMAN HAYES: Okay. morning? Svoboda? Yeah. A good simple one. Your reason for being here this MR. SVOBODA: Yeah. I'm qualifying a tile company right now. I want to qualify a second company that I'm invested with. CHAIRMAN HAYES: What company are you qualifying currently? MR. SVOBODA: Century -- Continental Floorcovering. MR. SCHOENFUSS: Why isn't that listed under Item No. 9 on the application? MR. SVOBODA: I don't have the application in front of me. MR. SCHOENFUSS: Question: List all businesses you have been associated with qualifying a partner during the last ten years. MR. SVOBODA: I -- I guess I didn't -- I missed that line evidently. I did this with Maggie down at the licensing board. And I guess as I was racing through it, maybe I missed it. But it should be on there. It's on my -- she knows about it. I licensed with her on that one. So I guess I must have missed it, I'm afraid. I'm sorry. Can I add that somehow or get it amended? MR. DICKSON: It's okay. Everybody misses that. CHAIRMAN HAYES: That's a standard miss. MR. SVOBODA: Okay. CHAIRMAN HAYES: What's your reasoning for wanting to qualify the second entity? MR. SVOBODA: I had my own company here in town for about 10 or 12 years, and John worked for me most of those years and is trying to set up his own business. I've invested in it with him and helping him to get a chance to get his business going as well. MR. JOSLIN: Well, how does Abbey Floorcovering fall into Page 6 May 23, 2001 this? MR. SVOBODA: That was my company for years. I came here in '88 and had my company sold in '97 to Tom Hadinger but have stayed active in the business investing in a couple of tile stores. MR. JOSLIN: Okay. Thank you. MR. DICKSON: Mr. Chairman, everything is order. I move that it be approved, Dickson. MR. JOSLIN: Joslin, second. MR. LAIRD: Laird, oh, I'm sorry. GHAIRMAN HAYES: You can third it. MR. LAIRD: I'll third it. MR. SVOBODA: Thank you. I appreciate the third. CHAIRMAN HAYES: Any further discussion on it? Calling for the vote. All in favor? (Unanimous response.) CHAIRMAN HAYES: Opposed? (No response.) CHAIRMAN HAYES: Very well. It's a done deal. And as I said to Mr. Kelly, your paperwork is here, so you won't be able to do anything about it today. It will be tomorrow before you can get back. MR. SVOBODA: Okay. Thank you very much. I appreciate it. CHAIRMAN HAYES: Daniel Malinowski, review-- review your credit report. Are you here this morning, sir? MR. MALINOWSKI: Yes, sir. CHAIRMAN HAYES: I need to have you sworn in, sir. (The oath was administered.) CHAIRMAN HAYES: MR. MALINOWSKI: CHAIRMAN HAYES: here this morning is? Your name for the record. Daniel Malinowski. Mr. Malinowski, your reason for being Page 7 May 23, 2001 MR. MALINOWSKI: I would like to have my credit review reviewed at this level. I had been in business for a number of years. I opted to take a hiatus from business ownership and went to work for somebody else. I let my license lapse, come back in, and I bought into a paving business, and I went and I took the test that the county had required me to do. I passed all of the exams, everything that was required of me, went down to get my license activated, and they said I needed to be here because of a copy of my credit report. MR. DICKSON: Okay. You're doing a paving company? MR. MALINOWSKI: Yes, sir. That's what I'm doing now. MR. DICKSON: Okay. Were you in the lawncare business? MR. MALINOWSKI: Yes, I was, sir. MR. DICKSON: Do you still have that company? MR. MALINOWSKI: No, sir. I have no business right now other than my paving I'm trying to get done. MR. DICKSON: Okay. Do you want to explain the bankruptcy? MR. MALINOWSKI: The bankruptcy ... MR. DICKSON: That's the reason you're here. MR. MALINOWSKI: Yes, sir. The reason I was here was I was in the dirt business. I had cash site development at the time, and I lost my major account, which was providing to me approximately fifty to sixty thousand dollars a month, and I lost that overnight. And when you have $20,000 worth of expenses in your business and you lose a income of fifty to sixty thousand, I wasn't prepared for that loss, and it's -- it has since took me under as far as that goes, and I signed as personal guarantees on everything as being the one trying to, you know, get the equipment. I signed these personal guarantees. And by losing that, it just wiped me out. It devastated me, and that was the reason for my bankruptcy. Page 8 May 23, 2001 MR. DICKSON: Let's me ask you some other hard questions. What's the date that that happened? MR. MALINOWSKI: '99. MR. DICKSON: Okay. When did you take the bankruptcy? MR. MALINOWSKI: I took a bankruptcy in ninety -- in '99, sir. I lost the account in '98. I struggled trying to do what I could to recoup so I did not have to go through the bankruptcy because that wasn't a desire that I had was to go through the bankruptcy. I wanted to work it out and try and get everything as even as I could, and, you know, I struggled. And I was trying to make ends meet, and it just got to the point where I couldn't continue any longer. MR. DICKSON: And you say you've bought a company now, a paving company? MR. MALINOWSKI: Yes, sir. MR. DICKSON: Where'd you get the money to buy it? MR. MALINOWSKI: From some personal friends who have entrusted me and have -- you know, they know my capabilities, and they have enlisted with me to set me up to get me going again. MR. DICKSON: How does county feel about this, Mr. Bartoe, that -- the reason I'm asking, and you see how easy these flow. MR. MALINOWSKI: Right. MR. DICKSON: But your credit report's absolutely terrible. MR. BARTOE: How does the county feel? MR. DICKSON: Yes, sir. MR. BARTOE: The county feels that he should go before the board to determine whether he should get a license or not. In the papers that I just presented to you with the judgment is what is presented to me this morning by Dixie Trucking. MS. WHITE: However, that is prior to the date of filing of the bankruptcy; is that correct? Page 9 May 23, 2001 MR. MALINOWSKI: Yes, ma'am. MS. PAHL: '96. MS. WHITE: I think it was '97. MR. MALINOWSKI: Now, from the time -- from the time that I was turned down for getting my paving license, along with my business I bought a Bobcat. So I did go to the county, and I have a occupational license to do grading work at this time. So although my credit is not the best and I understand that, as I come before this board, I ask if my credit is not worthy to be in business, then should I have been able to get an occupational license, which I have in my hand presently? MR. DICKSON: Occupational license doesn't have anything to do with this. MR. MALINOWSKI: Correct, I understand. Right. But, you know, pertaining to my paving, I've done -- I've passed the test that was asked me to pass. MR. DICKSON: Mr. Neale, can I ask you a question? MR. NEALE: Sure. MR. DICKSON: I've looked over the credit report. I've got a real problem with it. MR. NEALE: Uh-huh. MR. DICKSON: Is there a situation like this that a financial officer or something like that would be appropriate? MR. NEALE: Well, as you remember, this -- this board -- I would guess it's approximately a year ago -- decided against allowing financially responsible officers here in Collier County because it was just too complex procedurally to be able to administrate here. So that's not a -- an option available at this point, so, you know, I don't know what the other -- the other alternatives are, because the board does have to find a -- find that the person is financially responsible to perform the duties of a contractor. Page 10 May 23, 2001 MR. DICKSON: Okay. MR. MALINOWSKI: I mean, I'll be willing to come back before this board in six months to prove to you that I can handle this thing and continue if that would assist in the matter. CHAIRMAN HAYES: Since your bankruptcy, I don't see a whole lot of credit relationships that would indicate somewhat of a honest effort to try to turn it around. Obviously, since bankruptcy, it's not an easy thing to do to get credit to begin with. But your bankruptcy was in '99, if I'm not mistaken. MR. MALINOWSKI: Yes, sir. CHAIRMAN HAYES: And in '99 I'm looking for something that would tell me that you've cleaned the slate with the bankruptcy and started over and would show me that you -- your heart's in the right place. I see a First Premier, an outstanding balance for $533 that's been past due a couple of times, and that's in 2000. So you're -- you're really not financially clean yet. MR. MALINOWSKI: Yes, sir, I am. I -- I'm driving a 2001 Ford Supercruiser that I have bought for my wife, and payments are made on time every month on that, and, you know, I'm just -- I'm working hard to get cleaned up. CHAIRMAN HAYES: MR. MALINOWSKI: CHAIRMAN HAYES: MR. MALINOWSKI: How long were you out of the business? Two years. Why did you let it expire, your license? Because I had went to work for other people, and I -- hindsight, sir, I never would have let it laps e. MR. NEALE.' Just for the board's reference, these kind of matters under our ordinance are governed by Florida Administrative Code Rules, specifically Rule 61-G-4-15.006, which defines financial responsibility. And in that rule, financial responsibility is defined as the ability to safeguard that the public will not sustain economic loss resulting from the contractor's inability to pay his lawful contractual obligations, Page 11 May 23, 2001 and that's -- that's the standard which the board has to look at. CHAIRMAN HAYES: I'm just wondering also, Mr. Neale, with the existence of existing liens and judgments, if that wouldn't impair his ability to maintain a -- a credible business relationship. MR. NEALE: Well, one of the -- and I apologize, I haven't been keeping up, but under Subsection 2 of the same administrative code section, Subsection 2-B -- Subsection 2 specifically sets out the grounds on which the board may refuse to qualify an applicant, and Subsection 2-B is the existence within the past five years preceding the application of an unsatisfied court judgment rendered against the applicant based upon the failure of the applicant to pay its just obligations to parties with whom the applicant conducted business as a contractor. That's specifically towards his contracting business. CHAIRMAN HAYES: I think that's exactly what we have also. MR. BARTOE: Mr. Chairman, staff would like to add that Mr. Malinowski was issued a citation March 26th of this year for contracting without a license in the amount of $300. And that fine is not paid to date. MR. MALINOWSKI: Sir, I will -- that fine was issued payable from Owen, Ames and Kimball, the job that I was working on. They -- I did the job without my paving license. It was for Owen, Ames and Kimball on 41 for a church up there. We had the job done, and all I was doing was cleaning up, cleaning the edges and everything off when Mr. Ossorio showed up on that job site. He issued both myself and Owen, Ames and Kimball a $300 citation. My citation has been paid by Owen, Ames and Kimball in a joint check that was issued to both me and Collier County, sir. And in my briefcase downstairs I have a copy of the check that they sent to Collier County to pay this fine. CHAIRMAN HAYES: Mr. Bartoe, are you aware of that? Page 12 May 23~ 2001 MR. BARTOE.' No, sir. Mr. Ossorio advised me this morning it was not paid. MR. DICKSON.' It doesn't affect the issue here. Mr. Malinowski, I'll explain my motion, since I'm getting ready to make one. I have nothing personal against you, but we have a responsibility, and if we would -- if we would approve this, the county commissioners would ask us what are we doing. My motion is to deny the application, Dickson. MR. NEALE: Mr. Dickson, just because it is a denial, if you could give the legal and factual background by which you're recommending the denial, that would be good. MR. DICKSON: Based solely on the credit report, the financial condition of Mr. Malinowski, his inability to pay bills in the recent past. Based solely on that, I believe that my motion is to -- my motion is to deny based on the fact that we have a responsibility to protect the consumers. And, therefore, that's the basis of my motion. CHAIRMAN HAYES: MR. SCHOENFUSS: CHAIRMAN HAYES: further discussion on the issue? I'm going to call for the vote. (Unanimous response.) CHAIRMAN HAYES: Opposed? (No response.) I have a motion. I need a second. I second the motion. I have a motion and a second. Any All in favor? CHAIRMAN HAYES: Mr. Malaninski (phonetic), it's going to take a little bit more work on your half -- behalf before one of us on this board would probably feel comfortable with allowing you to be back in business with our Collier County consumers. It's not an easy thing to overcome. Bankruptcy is very difficult; there's no question about it. There's a lot of reasons why people get into bankruptcy. There's a lot of reasons why people are able Page 13 May 23, 2001 to overcome it. It is a difficult world out there to do business, but your reputation is just about all you'll go home with. If you can work on that, bring up some facts, some recent credit experience that would attest to the fact that you've turned it all around and that you're making payments, for example, on these outstanding judgments, etc. -- if you would have come in here six months of maintaining payments on these judgments, I think this board would have looked at it a little differently, but there is no evidence anywhere that you have tried to remedy any of these things outstanding, so you need to look at that a little bit, and then perhaps one day we can review this again. Okay. Under old business, public hearings. MR. BARTOE: Mr. Chairman, a few people came in. Did Mr. Wiles show up? CHAIRMAN HAYES: Yes, sir, Mr. Wiles. Would you come up to the podium. Thank you, Mr. Bartoe. I went right past it. MR. WILES: Good morning. CHAIRMAN HAYES: Good morning, sir. I'm going to ask you to get sworn in. MR. WILES: Okay. CHAIRMAN HAYES: Just stay right where you're at. (The oath was administered.) CHAIRMAN HAYES: Your name for the record. MR. WILES: Mark Thomas Wiles. CHAIRMAN HAYES: And, Mr. Wiles, your reason for being here this morning? MR. WILES: I'm trying to qualify a second tile company in Naples. I presently qualify Wayne Wiles Carpet both in Lee and Collier. I've got a labor company called Gator Tile Service that I run out of Fort Myers, and I would like to get that particular company qualified down here in Naples. Page 14 May 23, 2001 CHAIRMAN HAYES: Wiles? MR. WILES: subcontractors. What do they do differently from Wayne Well, Wayne Wiles I run piecework, I guess, Gator Tile is going to be a -- where I work, hourly type employees. (Cell phone rang) Excuse me. I run a -- you know, I pay all their bills, pay all their workmen's comp., pay all their insurances, everything else. You know, and I'm having problems with course licensing, having legal guys. And this way I can control that. I can either work licensed tile setters or they work underneath Gator Tile Distribution, and that's what we're doing in Fort Myers. It's something that's working for me. With Wayne Wiles I have a lot of benefits, profit sharing, and numerous things that I, you know, give my employees. And it's tough for me to give that to everybody to compete, so it's -- it's a labor company, and we're their employees. CHAIRMAN HAYES: So you're currently licensed in Lee County and doing exactly that. MR. WILES: Yes, sir. And I think that's been two or three years. And actually I thought that when I got licensed there in Fort Myers that my office also did down here, and we just didn't. Unfortunately, I've had the occasion to meet Mr. Ossorio over here, and I'm trying not to meet him anymore. MR. DICKSON: You meet everybody, don't you? MR. WILES: Yes, he does. I can tell you, he's doing his ]ob out there. But that's -- that's my reason. CHAIRMAN HAYES: Okay. Since you have met Mr. Ossorio, are there any outstanding fines out there, Mr. Bartoe? Are you familiar with it? MR. OSSORIO: Paid. MR. DICKSON: Mr. Chairman, I know this company; everybody on this board does. The file is perfectly in order. I move that it be approved. Page 15 May 23, 2001 MR. JOSLIN: CHAIRMAN HAYES: further discussion? (No response.) CHAIRMAN HAYES: (Unanimous response.) CHAIRMAN HAYES: Opposed? (No response.) Second. I have a motion and a second. Calling for the vote. Any All in favor? CHAIRMAN HAYES: None. Very well. Just like before -- you were absent earlier -- your paperwork is going to be here for the rest of the day, so you're not going to be able to go down and finalize anything until tomorrow. MR. WILES: Thank you all very much. Am I done here? Sorry. MR. NEALE: That's it. MR. WILES: Thank you. MR. NEALE: Mr. Chairman, if we could request, Mr. Zachary and myself and Mr. Nonnenmacher and Mr. Bartoe need to get together for about five minutes or so, so if we could request a brief recess now prior to the public hearing? CHAIRMAN HAYES: Any objections on that before we get into this hearing? (No response.} CHAIRMAN HAYES: Let's take a ten-minute recess then. MR. NEALE: Thank you. CHAIRMAN HAYES: We'll be back at 25 till 10. (A short break was held.} CHAIRMAN HAYES: I'd like to call this meeting back to order. We have no old business. And under public hearings it's CLB License 2001-01, Collier County versus Edmond (sic} D. Walsh, d/b/a, Challenger Pools. Mr. Neale, I believe you need to chat with us. Page 16 May 23, 2001 MR. NEALE: Yes. MR. AMATO: Mr. Chairman, for the record, Louis Amato on behalf of -- CHAIRMAN HAYES: Mr. Amato, I'm going to have to ask you to stand up to the podium, please, sir. MR. AMATO: Sorry. Louis Amato on behalf of the respondent to the complaint. We're ready to proceed. CHAIRMAN HAYES: Thank you, sir. MR. NEALE: We've reviewed the ordinance and the Collier County code of laws and ordinances. And we've discovered that through what apparently was a printer's error, the section of the ordinance under which Mr. Walsh was charged did not appear in the codified code of Collier County laws and ordinances. What we're requesting -- what I'm recommending to the board and the county is -- is requesting is that this matter be continued in order to determine exactly where and how this happened and also to determine what the appropriate course is for here -- for this matter and -- and any complaint against Mr. Walsh. As I say, it's -- it's a matter that needs to be reviewed. I just discovered it myself this morning in reviewing and comparing the two, the two documents. So what we're requesting is that the board continue this matter and that the -- and the -- I'm not requesting; the county is requesting that this matter be continued at least until the next -- next regularly scheduled contractor licensing board hearing. CHAIRMAN HAYES: Mr. Amato, you needed to speak? MR. AMATO: Yes, sir, Mr. Chairman. Once again, for the record, Louis Amato appearing on behalf of the respondent to the complaint. We would like to have a clarification from counsel as to the discrepancies in the ordinance that they suggest exist because we are here prepared today to answer the charges and to lift the -- the pall of suspicion against my client. I think it Page 17 May 23, 2001 prejudices him greatly to have this continued on a vague assertion of some type of -- of inconsistency between two unstated statutes. He has been hounded by the allegations created by staff and which have been compounded beyond the scope of the actual charges. Given the fact, as opposing counsel stated earlier, you have a responsibility both to the public and to the contractors, we believe it appropriate for the county to either dismiss these charges or present their case as opposed to continue it for vague reasons that are not expressed. And if there is, in fact, a error with respect to the charges under which he has been accused, then the only possible solution under the circumstances is to have the charges dismissed as opposed to attempt to revise the ordinance under which he would later be accused of violating prior to the revision of the ordinance. That's an ex post facto law, and it would also be a violation of his due process. MR. ZACHARY: Let me speak to the -- the first question was which -- which part of our ordinance did we find the discrepancy with. It was our Ordinance No. 99-45, the Contractors' Licensing Board ordinance, Section 4 -- 4.2, misconduct of state-certified contractors. Our ordinance has Sections 4.1, 4 point -- 4.2.1, 4.2.2, 4.2.3, and 4.2.4 is fraud. The code, Section 22-201.1, which is also misconduct by state-certified contractors, lists the first three that I mentioned but fails to state the last charge, which is fraud. And that's missing from the -- from the code. So there's -- that's where the discrepancy is, for the record, between the two documents. MR. AMATO: And given the fact that there is no ordinance with respect to the charge of fraud which has been leveled against my client regardless of the merits of that charge which we are anxious today to dispel, given that fact, the board has no choice but to dismiss that charge. Page 18 May 23, 2001 MR. DICKSON.' Mr. Neale, since our codification is that of the state's and this was just left out when we -- because we do this about every year, how does that affect -- does the original codified version -- MR. NEALE: That's an issue that we would like the opportunity to research to see what the actual impact is. I do not see any way that this prejudices Mr. -- Mr. Amato's client. It's my belief and, frankly, the reason that I recommended that this be continued, is to provide the optimum in due process to Mr. Amato's client in order that he may have the full ability to prepare a defense to this matter under the laws of Collier County. So I -- I must respectfully disagree with Mr. Amato that I feel this does anything but prejudice his client. It actually provides him and affords him greater due process rights than he would have if we didn't -- if the board did not continue this. And -- and, frankly, the county is -- I would believe, has the ability to not proceed forward with this prosecution today if they wish. MR. AMATO: I would respectfully disagree, Mr. Chairman, if I may, at this point. And forgive me if I'm not familiar with the -- with the logistics and formalities of presenting cases before you. I'm used to civil litigation, so usually when somebody else stops speaking, I start speaking. So if I'm stepping on toes in terms of the process, forgive me for that, Mr. Chairman. But, however, I respectfully disagree with opposing counsel. I think it's disingenuous to suggest that my client's due process rights are not being violated by continuing a prosecution with respect to a law that doesn't exist and, No. 2, by continuing the innuendo of fraud over my client. You are -- cannot help but -- but notice the television cameras today that are presented in order to cover this case. You cannot help but notice the television coverage of this case, both this morning and prior to that. Suggestion of fraud is one Page 19 May 23, 2001 that must be taken very seriously by everybody and certainly is taken very seriously by this board. It's taken seriously by the media. It's taken seriously by the community. And it's taken very seriously by my client who has gone through great effort today to present a comprehensive defense to show that the fraud doesn't exist. To continue this prosecution with respect to an invalid law simply serves to continue to damage my client's reputation, and we would request that the board instruct conclusion of dismissal based upon opposing counsel's representation to you-all that the law my client is suggested to have violated doesn't exist. MR. NEALE: And, if I may, just -- and I -- as Mr. Amato states, he's not familiar with these procedures. In no way am I opposing counsel to Mr. Amato. I am counsel to the board, solely counsel to the board. If you -- if there's anyone who is opposing counsel, it would be Mr. Zachary, who represents the county and the prosecution. My role is to be counsel to the board and to provide them with the best legal advice I can provide them on matters as they pertain to the board. Frankly, from my point of view and from the board's point of view, they -- to use the phrase, "We don't have a dog in this fight." we're here and the board is here, and I'm here to recommend to them a way in providing the optimum in a fair forum protecting the rights of both your client and the citizens of Collier County. MR. AMATO: Mr. Neale has exposed my ignorance, and I do apologize for mischaracterizing him as opposing counsel. MR. NEALE: Thank you. MR. ZACHARY: As opposing counsel, it's -- it's my ]ob to protect the county's interest by requesting a continuance when I see a problem that we may have, and I think it's within the board's discretion to act upon that request for a continuance. Page 20 May 23, 2001 CHAIRMAN HAYES: Mr. Amato, it is this board's intent to enforce the intent of the laws. And in some cases we are allowed great variance upon how we enforce that. We're here to serve the public of Collier County, and we are, none of us, legal individuals. We don't have a background in -- in law. We have a background in business and practical applications thereof. Our intent is to, as best and as proper as we can, administer the ordinances as written and its intent. There are times that the letter of the ordinance doesn't apply because the intent is not necessarily the results of our actions. And in this case here it is my personal opinion that the letter of the law has a discrepancy between two versions of the law. And under that discrepancy we need to review it and perhaps understand the impact and effect on this particular case. From time to time we've run into discrepancies in the ordinances as they affect many different cases, and we have to go into review mode, and we end up trying to make notes as to how the discrepancy can be remedied -- remedied, and then we go through a review process on the ordinance and update it as we uncover and expose these discrepancies. It still doesn't detract from the fact that our intent here is to enforce the intent of the law from a practical application rather than from a judicial application. Does anybody else have anything else to say on the board here? MR. JOSLIN: Mr. Chairman, I need to just state a question instead of make a comment here. I just need to disclose to Mr. Amato and the county attorney that as a contractor myself, the -- Mr. Eamonn Walsh was under my employment approximately, I'm going to venture, ten years ago as a service technician. And I'd just like it to be on the record. MR. AMATO: Thank you, sir. Page 21 May 23, 2001 MR. DICKSON: Mr. Chairman, I move that based upon Mr. Neale, our counsel, that we postpone hearing this meeting until the next generally -- normally scheduled meeting, which would be in June. MR. NEALE: June the 20th. MR. DICKSON: June the 20th. VOICE IN AUDIENCE: Can the public be heard? CHAIRMAN HAYES: No, sir. We're not under hearing like that. MR. DICKSON: I will say we are disappointed, but we have no choice. CHAIRMAN HAYES: Is that a motion? MR. DICKSON: That's a motion. MR. JOSLIN: Joslin, second the motion. CHAIRMAN HAYES: I have a motion and a second. Any further discussion on the board? MR. BARTOE: I have a question, sir. Can Mr. Zachary have this researched and in time to -- you know, we can give the respondent and his attorney plenty of notice that, yes, we will be going on June 20th or no, we won't? MR. ZACHARY: Certainly. CHAIRMAN HAYES: My -- my purpose would be to expedite this case just as rapidly as possible, Mr. Amato, as you've said. If there is problems being arised from an accusation that prevents proper business activities, I don't want to unduly injure any party, so I would -- would insist that we don't put it off any further than next month so this can be handled. This is not an unusual occurrence, once again, that we postpone hearings from time to time for one reason or another. MR. AMATO: This here is the third postponement of this case, MR. CRAWFORD: That's correct. Page 22 May 23, 2001 CHAIRMAN HAYES: This is, however, the first time that this board has heard any part of it. MR. AMATO: If I may, say, sir, this is the third continuance of this case, and the suspicion that this overzealous prosecution has caused damage to my client continues, so it's not a first continuance of his opportunity to clear his name of these charges. MR. DICKSON: This is the first time it's been on our agenda. So as far as this board is concerned, this is the first. MR. LAIRD: That's right. MR. NEALE: It's the first time it was publicly noticed. CHAIRMAN HAYES: It's not deterring him from doing business as usual, is it, Mr. Amato? MR. AMATO: Mr. Chairman, is it really possible to know what impacts slander has upon you? I think not. CHAIRMAN HAYES: There's no question about that. I'm just trying to minimize the injury as much as possible. MR. NEALE: Mr. Chairman, I think the kinds of things we're talking about here would be better discussed in a formal public hearing, so I believe you've got a motion. MR. NONNENMACHER: Mis -- Mr. Chairman, before you take a vote on that, I have a question for Mr. Neale. Since Mr. Joslin has disclosed to defense counsel his involvement with Mr. Walsh, is it proper that he second the motion on a continuance, or would it be better if someone else seconded it? MR. NEALE: It certainly would be more appropriate if someone else seconded it. MR. AMATO: We have no objection to the further participation of the gentleman in any of these proceedings. MR. NEALE: As long as opposing counsel, you know, respondent's counsel, has no -- no objection, that's fine. CHAIRMAN HAYES: Okay. Any -- any further discussion on Page 23 May 23, 2001 the board? I have a motion and a second. All in favor? (All those in favor replied.} CHAIRMAN HAYES: Opposed? MR. SCHOENFUSS: I abstain from voting. CHAIRMAN HAYES: One abstention. MR. CRAWFORD: Nay, Crawford. CHAIRMAN HAYES: And Crawford is a nay. Motion carries. MR. AMATO: I would like to have on the record the basis for the abstention, please. Under the Sunshine law we're entitled to -- to have that information. Unless there's an actual conflict of interest, a public officer is required to vote with respect to any matter brought before him unless there is a conflict of interest, and that conflict of interest must be disclosed, and I'd like to have an understanding as to election to abstain. CHAIRMAN HAYES: Mr. Schoenfuss, do you understand the question? MR. SCHOENFUSS: Would you restate the question, please? MR. AMATO: You have an obligation to vote with respect to any issue brought before you unless a conflict of interest prevents you from voting, in which event you are required to disclose the nature of the conflict. I'm asking you to disclose the nature of the conflict that prevents you by law from voting. MR. SCHOENFUSS: As I understand this, it's primarily a legal issue. And as Mr. Hayes, our chairman, pointed out, those of us on the board, particularly myself, we do not have legal backgrounds, and I do not feel that I understand enough about the legal issue involved so that I can make an informed decision and vote either way. MR. AMATO: Thank you. CHAIRMAN HAYES: Any other discussion on the board on the motion? Page 24 May 23~ 2001 Mr. Zachary, I think the motion was made to continue it to next month. Do we specifically have the date in the motion? MR. ZACHARY: I think it was -- somebody mentioned June 20th as our next date. MR. AMATO: That's my note on it. CHAIRMAN HAYES: The next regular meeting. I don't want it to continue any further than that. MR. AMATO: We appreciate that, Mr. Chairman and members of the board. CHAIRMAN HAYES: So whatever we need to do, whatever research we need to do, perhaps we can expedite it. I know everybody is busy as it is. MR. DICKSON: Explain what happened. CHAIRMAN HAYES: Yeah. What -- what our concern is, is the -- there's a discrepancy between the codified version in the ordinance as it was written and approved by the county commission. There was a section left out of the codified version, and we are prosecuting or hearing today on that particular section of the ordinance of which it's not in the codified version. MR. DICKSON: What happened, so that you-all understand, we go through and tweak the county ordinances about every 12 to 18 months, because everything changes. And it's what? Two- hundred-plus pages? MR. NEALE: It's a lot. MR. DICKSON: It's about several inches thick. And apparently what happened -- and I've been on this board for some ten years. I haven't seen this happen. I've seen changes, but when they typed up the new one that we just finished tweaking four or five months ago -- and that's about a four-to-six-month process, one entire line was left out of the new codes. And it happens to be the line that we're dealing with here today. So that's the issue at hand. Page 25 May 23, 2001 CHAIRMAN HAYES: We do apologize for any of the inconveniences and awkwardness that this has caused and for any uncomfort or inconvenience or personal problems that it -- that it affects on either side at this point. However, I do feel that the board is generally concerned that we apply the laws and ordinances as best that we possibly can, giving the intent as well. Any other discussion on the case at this point? Very well. We will continue it until next month's regular meeting. Thank you, Mr. Amato. MR. AMATO: Thank you, you-all. CHAIRMAN HAYES: Okay. Do we have any reports, Mr. Bartoe? MR. BARTOE: Staff has none. CHAIRMAN HAYES: Any discussion? MR. CRAWFORD: I -- I had one item. Did we agree last year to use the state form for application? Weren't we going to switch over to the regular state form as opposed to this old form? CHAIRMAN HAYES: I remember that we were going to switch over as far as the form content. I don't know if it was actually the form itself. Mr. Bartoe, do you remember that? MR. CRAWFORD: Mr. Neale, weren't we going to change the application form? MR. NEALE: I thought we were. CHAIRMAN HAYES: You thought we were? MR. NEALE: I thought that this -- it was my recollection that this board voted to approve the new second entity form several months ago. And as far as I know of, you know, we're still -- MR. DICKSON: Which would mean for staff, they're doing the second entity form that we approved, but they're also still using the old form for Collier County. MR. NEALE: Well, no, there were -- there were actually two Page 26 May 23, 200'1 different. And I know what Mr. Crawford is -- there were two things that were approved: First, the board approved that the -- Collier County would generally use the state form, just modified to conform with Collier County, which is the multipaged lots-of- questions form. And then, secondarily, the board also approved the use of the current front page that you see attached, which is where they certify all of the various elements. So there really were two elements. A number of months ago the board approved the use of, in -- in a modified version of the state form, as the general application. Then subsequent to that they approved this cover sheet to be used in -- in coordination with that. Am I correct, Mr. Crawford? MR. CRAWFORD: I think so. CHAIRMAN HAYES: Mr. Bartoe, do you -- did you hear what we were talking about? MR. BARTOE: Yes, sir. CHAIRMAN HAYES: My -- my intent -- my thoughts that I can remember were that we approved the content, and I didn't know that we were going to adopt the content. And I'm -- maybe we -- we said the form itself. And so if the content is there but the form is not, then perhaps we need to review the minutes. But -- MR. NEALE: Yeah, this -- there were -- as I say, there were two separate issues, and one was to use the content of the -- of the state form, which it has not currently been done. You know, it's -- it -- it's one of those, I'm sure, that the problem is, I know I - - I reviewed it. I think the county attorney's office was going to review it. They were going to review it, and we all -- so I think we just need to get it back on the front burner and make sure that it -- it gets utilized because one of the problems with the state form is, of course, it refers to a lot of state issues that aren't relevant to Collier County, and they need to be excised. Page 27 May 23, 2001 But that -- that certainly can be done. CHAIRMAN HAYES: Do you know what we're talking about, Mr. Bartoe? MR. BARTOE: counsel should get I know what you're talking about. But I think -- review this state form and get it to us with what they want out of it out of it and what they want changed changed, and we can give it to office staff to come up with a new form and let you approve it. CHAIRMAN HAYES: Mr. Zachary, did you do that? MR. ZACHARY: You know, I -- I can't recall. I thought we -- I thought we had gone through that, but I'll check -- check the minutes and -- and my files to make sure that that gets -- that gets looked into this month as well before we come back here on the 20th. CHAIRMAN HAYES: Okay. Then we can perhaps add that under old business to our agenda next month to follow up on. MR. NEALE: One other point of discussion, if that's all on that matter, is Mr. Zachary and I have circulated between ourselves the amended new ordinance. MR. ZACHARY: And staff. MR. NEALE: And staff. Yeah, everybody's gotten it by e- mail. We've all gotten copies with the amended new ordinance with the amendments that this board has been reviewing for the past number of months. That's been circulated. I think we've all made comments. I know that staff has made comments. I've got a few that I'm going to make on it, and so this board, prior to next meeting, will have in their hands proposed amendments to the -- to the code -- to the ordinance so -- and I -- we think we've covered everything. We all went -- scoured all of our various piles of notes from all the various workshops. I think we've got it all. There were some relatively thorny issues as far as -- you Page 28 May 23, 200'! know, some of the insulation issues, fireproofing and fire stopping. And those issues we certainly look to the board's guidance, to your expertise on letting us know if we're barking up the wrong tree or if we've got the correct amendments. CHAIRMAN HAYES: So you're telling me that you'll have that compiled? MR. NEALE: It's -- it's already compiled. A few minor changes need to be done. Then you'll have a strike-through underlined version before -- probably in your packet next month. MR. ZACHARY: Before that we -- we would appreciate any comments or corrections so we don't inadvertently leave anything out of this amendment to the ordinance. CHAIRMAN HAYES: Is there any way we can get a copy of that? MR. NEALE: Yeah. CHAIRMAN HAYES: You know, as long as I've got a copy of it, I will do some homework personally, and I'm sure the rest of the board will as well. MR. NEALE: Frankly, I guess we're all struggling, kicking and screaming into the 20th century, even though we're on the 21st. What would help I think the county attorney's office and my office a great deal is if any or all of you have e-mail addresses, if you could provide them to the county attorney's office because that way we can e-mail the document to you in a form that you can actually make your changes on the document and let us know that so that it makes it a little easier to cut and paste them, incorporate them. MR. DICKSON: You're going to e-mail that entire ordinance? MR. NEALE: Yeah. It actually -- it e-mails fair -- it e-mails as a fairly small file, amazingly enough, because it's just text. So it e-mails pretty easy. MR. ZACHARY: Actually, the amendment won't be the entire Page 29 May 23, 2001 ordinance. It will be a slimmed-down version with just the changes on it. MR. NEALE: Yeah. The amendment, actually, I think-- I counted it yesterday. It was 12 pages, so it's not too awful. MR. JOSLIN: I thought you were printing 200 pages. CHAIRMAN HAYES: No. Okay. Any other items of discussion? MR. NONNENMACHER: Yes. Mr. Chairman, has Mr. Gonzalez given any notification of resignation? I haven't seen him here in months and months and months. Do -- is he still with us? CHAIRMAN HAYES: I haven't received any notification, now that you mention it. He was absent last month; there's no question about that. It's in the records in my possession currently. It may be that we need to review that and take a look at it and maybe contact Mr. Gonzalez and ask what his intent is. MR. DICKSON: We talked about this before. To my recollection -- help me, people -- I don't think he's been here in four to six months; is that correct? CHAIRMAN HAYES: I don't think so. I think I remember him -- I have the minutes right on top of my desk in the office, and I will review that as soon as I get back. I think you're right as about the quantity. But I don't know if it's been subsequent meetings. MR. DICKSON: Okay. Our -- our ordinance here is two unexcused ab -- absences, that individual is to be replaced, am I not correct, Mr. Neale, two unexcused? MR. NEALE: I was just looking through that, and it is not specifically in this ordinance, but there is an ordinance here in Collier County that generally covers boards. MR. DICKSON: I've read that. MR. NEALE: That may be it, but either Mr. Zachary or I will Page 30 May 23, 2001 check it between now and the next month. MR. DICKSON: It's, like, 2 in a 12-month period. If-- because we've discussed this before, do you think it would be appropriate, if determined that he has missed four to six months - - four to six meetings, which I think is the case, that we authorize staff to go ahead and advertise and replace him instead of waiting until next meeting? MR. CRAWFORD: I would prefer to ask staff to just give him a phone call and see what his intentions are. Maybe -- who knows what the reason is, but he may have good intentions of getting back on board. I'd like to call him first before we vote him out. CHAIRMAN HAYES: I think it's going to take the next regular meeting before we -- MR. DICKSON: Okay. CHAIRMAN HAYES: -- take an action on it. Do -- we do need to do a little bit of research here. I would like to report for the record as an attendance record for the last 12 months. And also, Mr. Nonnenmacher, if you would make that phone call. MR. NONNENMACHER: Yes, sir. MR. DICKSON: Well, the reason I'm bringing this up -- and it's going to be an issue, especially next month, being a major meeting -- is by my records, Mr. Laird and Mrs. Pahl -- well, you will be here at the next meeting, won't you? MS. PAHL: Uh-huh. MR. LAIRD: I think I -- I started to say I expire. I mean my term expires the end of June. MR. DICKSON.' End of June. So you will be here. MR. MR. MR. different LAIRD: Yes. DICKSON: So we're going to have -- is that all? SCHOENFUSS: Well, in July there will be several members of the board will not. Page 31 May 23, 2001 MR. DICKSON: Well, they -- I'm sitting here looking at the list. There's Mrs. Pahl -- this is expiration of 6/30, 2000: Mrs. Pahl, Robert Misner. But he resigned, and you took his place. MR. CRAWFORD: That's correct. MR. DICKSON: So that's a new date. MS. PAHL: Mr. Dickson, I was reappointed. MR. DICKSON: Were you? MS. PAHL: Yeah. MR. DICKSON: Okay. CHAIRMAN HAYES: I thought so. MS. PAHL: Yeah. MR. DICKSON: Mr. Joslin, 6/30, 2000; is that correct? CHAIRMAN HAYES: You were reappointed too. MR. DICKSON: Okay. Well, it appears to me Mr. Gonzalez's term's expired June 30th, 2001. MR. NEALE: Perfect. MR. DICKSON: Case closed. CHAIRMAN HAYES: So we don't have to worry about it then. MR. DICKSON: Yeah. So you're going to be advertising for -- what about Mr. Schoenfuss? I've got you at 6/30, 2001. MR. SCHOENFUSS: Yeah. I expire the end of June as well. MS. PAHL: You aren't going to reapply, are you? MR. SCHOENFUSS: No. MR. DICKSON: So we're going to have three vacancies the end of June. CHAIRMAN HAYES: Mr. Schoenfuss? MR. SCHOENFUSS: CHAIRMAN HAYES: MR. SCHOENFUSS: CHAIRMAN HAYES: MR. SCHOENFUSS: Do you intend to reapply, What's that? Do you intend to reapply? No, I do not intend to reapply. So we will have those vacancies. Because that will have completed six Page 32 May 23, 2001 years on the board. And I think it's -- I think it's a county policy that tends to disapprove of an extension, and I think we should give the opportunity to other people as well. CHAIRMAN HAYES: Well, you're absolutely right. After next month we're going to be scattered anyway. MR. DICKSON: Uh-huh. MR. CRAWFORD: What are the classifications that are going to become available? One is engineer? MR. DICKSON: Engineer and con -- and consumer and general contractor, residential contractor. CHAIRMAN HAYES: Okay. Any other discussions? Our next meeting is June the 20th. Is -- is there anyone that knows they're going to be absent on June 20th at this point so we won't have a problem filling a quorum? Very well. I need a motion for adjournment. MR. LAIRD: So moved, Mr. Chairman. CHAIRMAN HAYES: MR. SCHOENFUSS: CHAIRMAN HAYES: I have a motion. Second. And a second. All in favor? (Unanimous response.) CHAIRMAN HAYES: (No response.) CHAIRMAN HAYES: MR. SCHOENFUSS: Opposed? Very well. I won't abstain on that motion. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 10:13 a.m. Page 33 May 23, 2001 CONTRACTORS' LICENSING BOARD GARY HAYES, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY BARBARA A. DONOVAN, RMR, CRR Page 34