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CLB Minutes 06/20/2001 RJune 20,2001 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY CONTRACTORS' LICENSING BOARD NAPLES, FLORIDA, JUNE 20, 2001 LET IT BE REMEMBERED, that the Collier County 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 Walter Crawford, IV Les Dickson Richard Joslin Bob Laird Carol Pahl Arthur Schoenfuss Sara Beth White NOT PRESENT: Daniel Gonzalez ALSO PRESENT: Thomas Bartoe, Collier County Licensing Compliance Officer Patrick Neale, Attorney for the Board Bob Nonnenmacher, Collier County Page 1 AGENDA COLLIER COUNTY CONTRACTORS' LICENSING BOARD DATE: June 20, 2001 TIME: 9:00 A.M. ADMINISTRATION BUILDING ~ _OURTHOUSE COMPLEX ~,NY PERSON WHO'OECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED ,~ 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: Ill. APPROVAL OF AGENDA: IV. APPROVAL OF MINUTES: DATE: May 23, 2001 V. NEW BUSINESS: Jeffrey H. Frantz - Req. to qualify a 2nd entity. Wayne R. Heisler - Review credit report VI. OLD BUSINESS: Richard Hemmingway - Req. to waive exam for tile & marble license. 2nd Entity Form - use of revised state form. VII. PUBLIC HEARINGS: Robert J. Waldron - Contesting Citation Numbers: 0921, 0922, 0923 and 0924 C.L.B. #2001-01 Collier County vs Eamonn D. Walsh D/B/A Challenger Pools VIII. REPORTS: IX. DISCUSSION: X. NEXT MEETING DATE: July 18, 2001 June 20, 2001 Licensing Compliance Officer Robert Zachary, Assistant County Attorney Page 2 June 20,2001 CHAIRMAN HAYES: I'm going to call this meeting to order, Collier County Contractors' Licensing Board, June the 20th, 2001, 9:05 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 ensure that a verbatim record of the proceedings is made, which record includes that testimony in evidence upon which an appeal is to be based. I'd like to start with 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. SCHOENFUSS: Arthur Schoenfuss. MS. WHITE: Sara 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, my name's Tom Bartoe, Collier County Licensing Compliance Office. We have one deletion under public hearings. Mr. Waldron, I am informed, is not contesting those citations. CHAIRMAN HAYES: That's Mr. Waldron's decision? MR. BARTOE: I understand so, yes. CHAIRMAN HAYES: Any other changes? MR. BARTOE: No, sir. CHAIRMAN HAYES: I need a motion for approval of the agenda. MR. SCHOENFUSS: I move we approve the agenda. Page 3 June 20, 2001 MR. LAIRD: Second, Mr. Chairman. CHAIRMAN HAYES: I have a motion and a second. All in favor? CHAIRMAN HAYES: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MR. LAIRD: Aye. MS. PAHL: Aye. MR. SCHOENFUSS: Aye. MS. WHITE: Aye. CHAIRMAN HAYES: Opposed. (No response.) CHAIRMAN HAYES: Very well. I have the minutes from May 23rd, 2001. MR. LAIRD: Mr. Chairman, I move for their approval. MR. JOSLIN: Joslin, second. CHAIRMAN HAYES: Laird motion, Joslin second. All in favor? CHAIRMAN HAYES: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MR. LAIRD: Aye. MS. PAHL: Aye. MR. SCHOENFUSS: MS. WHITE: Aye. CHAIRMAN HAYES: (No response.) CHAIRMAN HAYES: Jeffrey H. Frantz, request to qualify a second entity. Aye. Opposed? Very well. Under new business, Mr. Frantz, are Page 4 June 20,2001 you here? MR. FRANTZ: Yes. CHAIRMAN HAYES: Would you come up to the podium, please, sir. I'm going to ask you to be sworn in, sir. You'll talk to the court reporter. (The oath was administered.) CHAIRMAN HAYES: Good morning, sir. MR. FRANTZ: Good morning. CHAIRMAN HAYES: Your reason for being here this morning? MR. FRANTZ: I would like to qualify a second company. CHAIRMAN HAYES: CHAIRMAN HAYES: Florida, Incorporated. CHAIRMAN HAYES: What company do you qualify now? I qualify Pavers Plus of Southwest Are you a principal there? MR. FRANTZ: Yes, masonry, contractor. CHAIRMAN HAYES: Just Bricks of Southwest Florida? MR. FRANTZ: Yes, sir. CHAIRMAN HAYES: A new company? MR. FRANTZ: Yeah. And I'm qualifying them only under the interlocking license company, which is a lesser license than my masonry license. MR. DICKSON: And your purpose for doing so? MR. FRANTZ: It was a crew that has lost its -- a great crew. I worked with the guy for probably 12 years. He lost his qualifier, and he's a Spanish fellow. And we're trying to get him to take the test, and with the language barrier and stuff, we feel we need time. MR. DICKSON: Do you have a financial interest? Are you an officer or director of this new company? MR. FRANTZ: No. I don't have a financial interest. My Page 5 June 20,2001 interest being would be once they're -- right now all the fellows are presently working for me as employees, so they would be -- once I can get them licensed -- a subcontractor of mine, basically, only doing work -- you know, if they do work on their own, that's their thing, but I would keep them completely busy doing business for me. MR. DICKSON: My concern is -- and I don't see the form that we adopted -- CHAIRMAN HAYES: I don't either. MR. DICKSON: -- in the packet, do you have control over the money and bills being paid? MR. NEALE: The resolution authorization is in there, I believe. MR. DICKSON: Is it? I didn't see it. MR. CRAWFORD: It's in here. It lists Kathy Hernandez as director, president, secretary, and treasurer as 50 percent owner, and Jamie Santora as director, vice-president as a 50 percent owner. And Jeffrey is not listed at all, so I had the same concern. MR. DICKSON: Yeah. CHAIRMAN HAYES: Uh-huh. MR. DICKSON: Our concern is, just so that you understand, your license is the one that's on the line. You're the one that we come to if there's a problem -- MR. FRANTZ: Yep. MR. DICKSON: -- so, therefore, you have to have some control over the company. MR. NEALE: Well, there's a point. The resolution of authorization signed by Hernandez is in here -- CHAIRMAN HAYES: And it says that? MR. NEALE: -- stating that he is legally empowered to act in all matters connected with its contracting business and has the authorization to -- authority to supervise construction undertaken. It's just in front of the resolution of the board. Page 6 June 20,2001 MR. DICKSON: I didn't -- I was specifically looking for it and didn't see it. MR. JOSLIN: Page right before it. MS. PAHL: Yeah. MR. DICKSON: Page what? MR. JOSLIN: Page right before the resolution. MS. PAHL: Page right before the resolution. MR. DICKSON: Okay. MR. CRAWFORD: So, Mr. Neale, there's no requirement that he be a principal, director, or have financial interest? MR. NEALE: Well, as long as he is authorized by the company to contract -- you know, as that resolution states, and that was one that we adopted so that it was covering the requirements of the ordinance and the statute. It literally says that he's got the power to act for them in all contracting matters, and it's an authorization by the corporation, so it does bind him to that. MR. DICKSON: You understand why we're doing that? It's not just for the protection of the public. We're also looking out after you. MR. FRANTZ: Yeah. And I've -- and my understanding of the authorization was that I can -- at this point up until now, I've helped them where to get their insurance or workmen's comp, and I will continue to oversee it because I've been stressed highly that my name's on the line there. Yeah. I understand that totally. MR. DICKSON: Mr. Chairman, the credit report is good. I see no reason to deny him. I move that this request be approved. MR. LAIRD: Second, Laird. CHAIRMAN HAYES: Motion by Dickson, second by Laird. Any other discussion? Calling for the vote. All in favor? CHAIRMAN HAYES: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. Page 7 June 20,2001 MR. JOSLIN: Aye. MR. LAIRD: Aye. MS. PAHL: Aye. MR. SCHOENFUSS: Aye. MS. WHITE: Aye. CHAIRMAN HAYES: Opposed? (No response.) CHAIRMAN HAYES: Okay. As normal your paperwork is here today, Mr. Frantz. So you can't settle any of the business down at the office there today. It will have to be tomorrow. MR. FRANTZ: Okay. CHAIRMAN HAYES: Okay. MR. FRANTZ: Thank you very much. CHAIRMAN HAYES: Thank you, sir. Wayne R. Heisler. MR. HEISLER: Yes, sir. CHAIRMAN HAYES: Review your credit report. Do you want to come up to the podium, please, sir. We're probably going to be asking you a few questions, so I'll need you to be sworn in. MR. HEISLER: Okay. (The oath was administered.) CHAIRMAN HAYES: Your reason for being here this morning is for us to review your credit report. Are you applying for a license? MR. HEISLER: Yes, sir. For installing hurricane shutters. I am licensed in Lee County, and I'm trying to do some work in Collier County. MR. DICKSON: correct? MR. HEISLER: front of the board to get my license. And the issue at hand is your credit report; I have no idea. I was just called to come in That's all I knew. Page 8 June 20,2001 MR. DICKSON: Okay. CHAIRMAN HAYES: How long have you been licensed in Lee County? MR. HEISLER: About six months now. CHAIRMAN HAYES: About six months. MR. HEISLER: Yes, sir. CHAIRMAN HAYES: What did you do prior to trying to apply for a license? MR. HEISLER: I was in the hurricane shutter business. I worked for a number of different companies, including Rolsafe, Storm Smart, Shutterhaus. My wife and I have built this up over the last couple of years. We wanted to be a licensed contractor. We got our license in Lee County, and now we want to get our license here in Collier County. CHAIRMAN HAYES: What were you doing prior to your bankruptcy? MR. HEISLER: We had a photo business, a one-hour photo business here in Fort Myers. Kodak -- we purchased a piece of equipment from Kodak. They were in the first-year market for a piece of equipment. One year later they backed out of the one-hour lab photo business. I had no way of fighting Kodak and their money because I couldn't get spare parts for my equipment, so I had to claim bankruptcy. I just repair -~ I couldn't get parts for my equipment. CHAIRMAN HAYES: How long have you been in the Naples/Fort Myers area? MR. HEISLER: Fourteen years. CHAIRMAN HAYES: How long were you in business in this photo business? MR. HEISLER: Nine years. CHAIRMAN HAYES: In Fort Myers? MR. HEISLER: Yes, sir. Page 9 June 20, 2001 CHAIRMAN HAYES: I see in your credit report you satisfied a federal tax lien -- MR. HEISLER: That's correct. CHAIRMAN HAYES: -- back in 1997. Do you have any other outstanding liens or anything else that might not have shown up on this thing? MR. HEISLER: No, sir. We worked very hard to get back up to where we were before. We have our own home for ten years. We have our own cars. We have a few trucks now with our business, all new Ford trucks. We're trying to do a good reputation and treat our customers like I like to be treated. CHAIRMAN HAYES: You've been working for a company doing shutters? MR. HEISLER: Yes, sir. I started with Rolsafe approximately seven years ago and left there a few years later and worked with other companies throughout the seven years. We do manufacture our own shutters. The shutters are raised drawings from Eastern Meter Supply on the other coast. CHAIRMAN HAYES: Mr. Bartoe, I don't see a test result. Is there not a test for this? MR. HEISLER: Yes, sir. MS. PAHL: I saw it somewhere; I did. MR. HEISLER: The law test I received an 87.8, and on the aluminum test here in Collier County I received a 96. MS. PAHL: The score for the law test was not included in here. MR. HEISLER: I do have that with me. CHAIRMAN HAYES: Where did you take the test? The piece of paper that I'm looking at that has the test results -- unless there's another one in the packet -- doesn't have any letterhead or anything. MR. HEISLER: I took the test here at the conservatory (sic) by the jungle gardens on a Saturday approximately five weeks ago. I do Page 10 June 20,2001 have copies with me through Experior (sic). MR. NEALE: This paper that the test scores are on, isn't that something that your staff normally fills out? MR. BARTOE: It appears to be, yes, sir. MR. HEISLER: We've given them everything they've asked us to give, so I wouldn't know why it wouldn't be there, but I do have copies with me. MR. CRAWFORD: Les, is the credit report clean after the bankruptcy? It appears that it is. MR. DICKSON: Yeah. MS. PAHL: Yeah. MS. WHITE: The only thing I see is the business is paying 13 days later than invoice due dates under the executive summary. MR. HEISLER: We try to pay all our bills on time and have been doing a great job of it. On occasion something does get late, but we do pay all our bills. MR. DICKSON: And the records reflect exactly what he told us, that the bankruptcy was connected with Eastman Kodak. It was not business related, and I see a clean credit report for the business. Mr. Chairman, I move that it be approved. CHAIRMAN HAYES: I have a motion. MS. PAHL: I'll second it. MR. LAIRD: I'll second it, Laird. CHAIRMAN HAYES: I have a motion to second. Any further discussion? I've got one question, Mr. Bartoe. Is there any record of any activities without a license, any complaints that you're aware of?. MR. BARTOE: No, sir. CHAIRMAN HAYES: Any other discussion? Call for the vote. All in favor? CHAIRMAN HAYES: Aye. Page 11 June 20, 2001 MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MR. LAIRD: Aye. MS. PAHL: Aye. MR. SCHOENFUSS: Aye. MS. WHITE: Aye. CHAIRMAN HAYES: (No response.) CHAIRMAN HAYES: Opposed? Very well, Mr. Heisler. Good luck. MR. HEISLER: Thank you very much. Appreciate it. CHAIRMAN HAYES: Once again, your paperwork is down here. You won't be able to settle your business with the county until tomorrow. MR. HEISLER: Thank you, sir. CHAIRMAN HAYES: Under old business Richard Hemmingway requests to waive exam for tile and marble license. Mr. Hemmingway, are you here? MR. BARTOE: Tom Bartoe, Mr. Chairman. Mr. Hemmingway was before the board in April and was told to come back with a completed application. CHAIRMAN HAYES: Good morning. be sworn in, both of you. (The oath was administered.) CHAIRMAN HAYES: names, one at a time. MS. HEMMINGWAY: MR. HEMMINGWAY: CHAIRMAN HAYES: MR. HEMMINGWAY: MS. HEMMINGWAY: I'm going to ask you to For the record, I need both of your Eva Hemmingway. Richard Hemmingway. Good morning. Good morning. Good morning. Page 12 June 20,2001 CHAIRMAN HAYES: We requested that you fill out a completed application, and you have done so. And I think in reviewing your application, you have a considerable amount of letters attesting to your experience. I don't see any unsatisfied customers. MR. DICKSON: If my remembrance of you being here before was that your father took the test but could not pass it because of the language barrier. MS. HEMMINGWAY: MR. DICKSON: That's MS. HEMMINGWAY: MR. HEMMINGWAY: Yes. correct? Yes. I speak just a bit of English and understand the people a little bit. The people understand me. My job is no problem to do, but when examined to do is impossible. MS. HEMMINGWAY: Yeah, yeah. MR. DICKSON: I understand, and at that meeting wasn't the only thing we had in question was the experience and the completed application? And you were also here last month -- MS. HEMMINGWAY: Yes. MR. DICKSON: -- and didn't realize that you were not on the agenda, so this is actually your third time. MS. HEMMINGWAY: Yeah, that's right. CHAIRMAN HAYES: Mr. Neale, we've put these people through quite a few hoops. My concern, of course, is that we're looking directly at avoiding a test -- MR. NEALE: Uh-huh. CHAIRMAN HAYES: -- a positive test result, and my concern is that there's enough extenuating circumstances here to justify that so that we don't break open the door. MR. NEALE: Uh-huh. The real issue for the board -- and it's the -- the standards are covered in Section 22-184 of the ordinance, part C, where it specifically states (as read): "The board may Page 13 June 20,2001 consider the applicant's relevant recent experience in the specific trade and based upon such experience may waive testing requirements if convinced that the applicant is qualified by experience whereby such competency testing would be superfluous.". So that is the finding that the board must make in order to grant Mr. Hemmingway a license is that there's adequate proof contained in the evidence presented that in taking the test would be superfluous. CHAIRMAN HAYES: It's awful hard to deny the testimony on the experience. MR. DICKSON: Well, and some of the -- it might be noted that some of experience -o I know these people, and some of the experience letters are competitors of his. MS. WHITE: Do we just need to look at the work experience, or do we need to be concerned with the business and law aspects of running a business? That's my only concern. MR. NEALE: That certainly -- if you're going to waive testing requirements, you'll have to look at all aspects of the testing requirements, both business and law and the actual technical expertise. MR. CRAWFORD: Will you be involved in the business also, Eva? Over here. I'm right here. MS. HEMMINGWAY: Oh, I'm sorry. Yes, yes. I will be. MR. CRAWFORD: So the translation help will be there throughout the business. MR. HEMMINGWAY: CHAIRMAN HAYES: That's right. Ms. Hemmingway, what type of business are you going to be in? MS. HEMMINGWAY: MR. HEMMINGWAY: CHAIRMAN HAYES: corporation? Tile and marble. Tile and marble. I'm sorry. Is it going to be a Page 14 June 20,2001 MS. HEMMINGWAY: No. MR. HEMMINGWAY: No. MR. DICKSON: Do you do terrazzo also? MS. HEMMINGWAY: I'm sorry? MR. DICKSON: Do you do terrazzo also? MS. HEMMINGWAY: No. It's tile and marble. MR. DICKSON: Okay. MS. WHITE: Is it just the labor for tile and marble or... CHAIRMAN HAYES: Will you be supplying tile and marble? MR. HEMMINGWAY: No, just installing. MS. WHITE: Just installing. MR. DICKSON: Mr. Chairman, these people have jumped through hoops. I personally don't have any doubt about them. I move that this be approved -- this license be approved with the waiver of the testing based upon the numerous letters of recommendation and attesting to his experience. I move that the license be approved, Dickson. MR. JOSLIN: Joslin will second that. CHAIRMAN HAYES: I have a motion and second. Any further discussion? Calling for the vote. All in favor? CHAIRMAN HAYES: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MR. LAIRD: Aye. MS. PAHL: Aye. MR. SCHOENFUSS: Aye. MS. WHITE: Aye. CHAIRMAN HAYES: (No response.) CHAIRMAN HAYES: Opposed? Very well. I think your hoop jumping Page 15 June 20,2001 has settled down. MS. HEMMINGWAY: MR. HEMMINGWAY: CHAIRMAN HAYES: Thank you. Thank you very much. Once again, your paperwork is down here today. You can't finish this with the county until tomorrow. MS. HEMMINGWAY: Great. Thank you very much. MR. HEMMINGWAY: Thank you very much. CHAIRMAN HAYES: Okay. Under old business, we have the second entity form, use of revised state form. Do we have a copy of that form with us today? MR. NEALE: We are working on it still. There were more changes than we anticipated, frankly, when we got into it, so we will have a revised copy of it for you before the next meeting. CHAIRMAN HAYES: So we'll just postpone this again. MR. NEALE: We will have a proposed, revised copy hopefully in the next couple of weeks for you. CHAIRMAN HAYES: Very well. Under public hearings we have one deleted, and the other one is a CLB Case No. 2001-01, Collier County versus Eamonn D. Walsh d/b/a Challenger Pools. MR. ZACHARY: Mr. Chairman, Robert Zachary, Assistant County Attorney. It's my recommendation that this complaint be withdrawn at this time. I'm exercising my prosecutorial discretion, as it were. I don't feel that the entire -- all of the elements were five -- depending on which case law you read -- can be proved to the board in a clear and convincing -- through clear and convincing evidence. And I think that I have an ethical duty to withdraw the complaint -- it's not viable -- so we don't put the board, the attorneys, and the witnesses through an exercise that I don't think as a matter of law can be proven at this time, all of the elements. CHAIRMAN HAYES: So you're looking for a postponement or Page 16 June 20,2001 dismissal? MR. ZACHARY: I'm looking to dismiss it, withdrawing the complaint at this time or a dismissal by the board. MR. DICKSON: Can you tell us more specifically why? MR. ZACHARY: There are certain elements that have to be proven in every case. Case law shows that there are five elements of fraud. Fraud is a rather difficult charge to prove. One element that we have a problem with is damages. I think the evidence would show that the pool was finished. The complainant, the plaintiff in the case, has to be damaged themselves. I don't think that we can show that there was any monetary damage. And case law says that generally you have to have pecuniary damages meaning economic or monetary. In some cases they talk about emotional damages, which -- but the standard to show emotional damages is a very strict standard. If I can read a quote from a case showing the threshold for showing the infliction of emotional -- (as read): "Infliction of damages is whether the behavior on the part of the defendant is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency," and I don't think the actions by the defendant in this case rise to that level. And there were no -- we could not show any monetary damages to the plaintiff. So for those reasons I'm recommending that the complaint either be withdrawn or the board dismiss the complaint. CHAIRMAN HAYES: This couldn't -- we couldn't have come to this conclusion last month and saved everybody all the trouble? MR. ZACHARY: Well, there was still a possibility that there could be evidence brought forward, and that's what I was trying to do this past month is to try to make a viable case, but it just couldn't be done. SPEAKER FROM AUDIENCE: Could the public be heard? Page 17 June 20,2001 CHAIRMAN HAYES: Not at this time. We're not even going to hear the case, sir, so I don't even know that we're going to do that at all. CHAIRMAN HAYES: Good morning, Mr. Amato. I'm sure you have something to say. MR. AMATO: Good morning, Mr. Chairman and Members of the Board. And we concur that the elements of fraud don't exist in this case, not just the element of damages, but also the intentional act of a defendant is required, and there has to be a misrepresentation of a material fact. And the facts that would have been put before you would have shown there was no misrepresentation of a material fact. So we concur and applaud the decision of the county attorney to end this pointless prosecution. CHAIRMAN HAYES: Okay. My question is, do we open it up for hearing -- MR. DICKSON: I want to hear it. CHAIRMAN HAYES: -- and dismiss it, or are you trying to withdraw it completely, and we won't even be able to hear it at all? MR. ZACHARY: Whatever the pleasure of the board -- MR. NEALE: I would recommend to the board, frankly, that since it's the desire of staff of the attorneys' office to withdraw the complaint, it would be more appropriate to just simply withdraw the complaint rather than prolong this matter any further and go through the whole hearing process and so forth. I would recommend -- CHAIRMAN HAYES: That's what I'm concerned -- MR. NEALE: -- that the board simply accept the withdrawal of the matter, which has been the policy of the board in the past, is that if a matter's been withdrawn by staff, the board just accepts that withdrawal. CHAIRMAN HAYES: I'm afraid I agree with you, Mr. Neale. We either hear it or we don't hear it. Because if we do try to hear it, Page 18 June 20, 2001 we can't just hear a piece of it. MR. DICKSON: I have a question. Of course, first of all, we have to keep in mind that the county is bringing forth the case and prosecuting it. We as a board only hear the case and make a determination on it. But I still want to hear from the chief investigator, Mr. Nonnenmacher. MR. NONNENMACHER: Good morning, Mr. Chairman, Members of the Board. For the record, my name is Bob Nonnenmacher, Chief Licensing Compliance Officer. I'd like to preface this statement and opinion by saying this is not an attack on anyone. This is an opinion of staff and a personal opinion of my own. I strongly disagree with the county attorney, with the board attorney, and with the defendant's attorney. The elements of this case were made. The instrument is in your possession. Testimony would have shown reliance upon this instrument was undertaken. It was undertaken by Mr. Madr, and it was undertaken by the bank. As far as damages are concerned, the reason why Mr. Madr's damages weren't as extensive as Mr. Zachary said were for two reasons: Number one, the county intervened almost immediately keeping the financial damages down to a minimum. And fortunately for Mr. Madr, his daughter worked for an attorney. So all legal work done on this case was pro bono. As far as mental and emotional damages are concerned, we really don't know what damages because Mr. Madr was never given an opportunity to tell you. We don't know the sleepless nights, the fights with the spouse, the fights with the daughter. We have no idea. If anyone has experienced anything like this -- to us it's nothing. We deal with it every day. To the person going through this ordeal, let me tell you, the mental anguish, frustration, and emotional strain is enough to make you sick. Page 19 June 20,2001 We don't know about the time lost from work; we don't know about the monetary costs of that. True it might be minor, and, again, I'll tell you. If it was minor, then it was because the county intervened and the daughter provided legal help pro bono. I personally think this is a disgrace. I think we are now causing Mr. Madr ten times more emotional stress and mental anguish than Challenger Pools ever gave them. I think we can prove our case. I think we have the instrument. We have the reliance upon that instrument, and we do have damage. True, it might not meet the standards, and I'm not saying it is true. It might not meet the standards, but we'll never know because we never heard the case. I would just like to apologize to Mr. Madr for this and hope that the damage that we have just done now doesn't cause any further damage to him and his family. Thank you. CHAIRMAN HAYES: Thank you, sir. I would suggest at this point that we do withdraw then and don't hear anything further on this case. Like I'm saying, we either hear the case, or we don't hear the case. If our attorney and the county attorney's office feel satisfied that there's not enough evidence to prove the case -- charges brought forward -- I think that we would be ill-advised to override their advice. Anybody else have any opinion on that? MR. SCHOENFUSS: Do we have a difference of opinion here between the hard -working county staff and the knowledgeable attorney for the county? MR. LAIRD: Sounds like it. CHAIRMAN HAYES: Yes, sir. like. MR. DICKSON: That's exactly what it sounds It goes back to the original situation that police departments face every day. They have a case that they think Page 20 June 20,2001 is good, and the prosecutor won't take it to trial. That's what we've got here. CHAIRMAN HAYES: Exactly what we have here. MR. AMATO: Mr. Chairman, ifI may interrupt for just a moment and request on the record that the dismissal or withdraw by the county is with prejudice, in other words, that it won't be resurrected again, and we can close this particular matter. Otherwise we would be ready to air it out in public and defend my client from these baseless allegations. CHAIRMAN HAYES: ! need a motion to withdraw or a motion to hear. I'll make the motion that we withdraw this case not to hear it with prejudice. MR. DICKSON: I'll second it because we as a board don't have any other alternative. CHAIRMAN HAYES: Uh -huh. That's right. MR. SCHOENFUSS: Why don't we have an alternative? MR. DICKSON: Because if the county won't bring the case before us, we as a board cannot hear it. And we cannot prosecute a case and or force the county to bring a case before this board even though we would like to hear it. CHAIRMAN HAYES: We don't have that authority. MS. WHITE: But we can dismiss it without prejudice; right? CHAIRMAN HAYES: Well, I made a motion to withdraw it without prejudice -- with prejudice, I'm sorry. MR. NEALE: To some extent the board's acceptance of the withdrawal is a formality in that if the matter's withdrawn and the county doesn't prosecute it, the board can take no further action. This is really a formality just affirming what the county has already chosen to do. CHAIRMAN HAYES: To me it's not any different than the Page 21 June 20, 2001 contest of the citations being withdrawn. MS. WHITE: But if this comes up again, I don't want our hands tied. CHAIRMAN HAYES: This case will not come up again. There can be another case -- MS. WHITE: But this particular one won't. CHAIRMAN HAYES: This particular case with these particular charges won't be here. MR. SCHOENFUSS: Mr. Zachary, the county attorney suggests that we withdraw it. Does Mr. Neale, the attorney for the board, agree? MR. NEALE: Yes. In fact, Mr. Zachary and I and county staff have had a number of discussions over this, and I've reviewed it fairly carefully and looked at the law, and what I would have to advise this board as a charge prior to the board rendering a decision, and I totally concur with Mr. Zachary's decision. MR. SCHOENFUSS: Well, if we members of the board aren't as well versed in the law as the lawyers and we have difficulty understanding the case, it seems to me that our best course of action is to take the advice of the attorney whose purpose is to advise us. MR. DICKSON: Call for the vote. CHAIRMAN HAYES: Call for the vote. All in favor? CHAIRMAN HAYES: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. LAIRD: Aye. MR. PAHL: Aye. MR. SCHOENFUSS: Aye. MS. WHITE: Aye. CHAIRMAN HAYES: Opposed? MR. JOSLIN: Aye. Page 22 June 20,2001 CHAIRMAN HAYES: One nay, Joslin. Very well. That's exactly what we'll do, Mr. Amato. MR. AMATO: Thank you, Mr. Chairman, Members of the Board. CHAIRMAN HAYES: Mr. Bartoe, do we have any reports? MR. BARTOE: Staff has none. CHAIRMAN HAYES: Any discussions? MR. CRAWFORD: Do we have the new ordinance that was given to us? Is this the document we'll read and talk about -- MR. ZACHARY: I was thinking that that was going to be distributed this month, but I think I only got one e-mail address, so I took it upon myself to make copies, hand it to you. So if you could make any comments, suggestions, you can either call me, and we can pencil them in and I can redo it, or somehow pencil in whatever you think we may have left out or should be included, and send it to me, however you want to do it. CHAIRMAN HAYES: Once again, Mr. Zachary, the changes are either strike-outs or underlines? MR. ZACHARY: That's correct. That's not the entire ordinance. That's just the sections that are going to be changed. Some of it is merely housekeeping that we didn't discuss. They were just words or lines that might have included that shouldn't be there, or if you want to revise any language that Mr. Neale and I -- I think we worked on that for quite a while. CHAIRMAN HAYES: Correct me if I'm wrong, Mr. Zachary, board members, this is a result of our workshop? MR. NEALE: Uh-huh. The several workshops and discussions, and we tried to keep track as the year went on or the years went on of things that came up during hearings and board meetings. So there's hopefully everything that the board discussed and wanted in there. If not, as Mr. Zachary says, just give him a call, and we'll make Page 23 June 20,2001 revisions and get it to everybody for next month's meeting. MR. DICKSON: Will we approve this next month and then it goes to consent agenda on the commission meeting? MR. NEALE: It'll go to full hearing at the commission probably. We can try to get it on the consent agenda. They've done that in the past. I would say we can talk to Mr. Dunnuck and Mr. Olliff about that and see if we can do it that way. MR. DICKSON: Okay. CHAIRMAN HAYES: I'm just going to suggest to the board members if you can remember where your notes were through our workshops to drag them out and go over some so we can confirm or find out if this was the way we understood the revisions as we requested or asked for the studies. MR. NEALE: And, fortunately, you've only got a package of the revisions. You don't have the whole ordinance to wade through. CHAIRMAN HAYES: That's what I'm saying -- that's what I say about our notes. If I can remember, Mr. Neale, probably most of us had a copy of the ordinances. We went through it, and we went through it page by page eventually. So I have copies of mine where I marked and struck out and worked with, so I wouldn't need the whole thing either. Just going through mine should appear on the revised sheets we have. MR. NEALE: And, you know, some of the areas that certainly I think I would like the most help with, Mr. Zachary, too, are some of the contractor licensing specific areas, the specific trade areas and such where I remember we went through several hours of discussion of what was or was, that sort of thing. So it would be great help if the board could help us with those. CHAIRMAN HAYES: Just for the record, under discussion, I want it to be known that we did receive the new proposed ordinance changes on this date. Page 24 June 20,2001 MR. ZACHARY: And you'll notice, too, that this is the copy I got from staff, and there are some things that are inked in there -- changes that they suggested, so that you have -- it looks like it's been written on by somebody. Well, it has. I wrote on there the things that staff said we needed to change. Rather than try to go through those, I just gave you the copy that had already been scribbled on. CHAIRMAN HAYES: Any further discussion on this -- these ordinance provisions? MR. DICKSON: I have another point of discussion for county. As of this meeting, we're losing three members of this board, Mr. Schoenfuss, Mr. Laird, and -- CHAIRMAN HAYES: Mr. Gonzalez. MR. DICKSON: -- and Mr. Gonzalez. I assume we've advertised. Do you have any idea if any of those positions have been filled for the next meeting? MR. BARTOE: ! have no idea. That happens -- Sue Filson handles that in the County Commissioners' Office. MR. DICKSON: So my point being, the next meeting, it's really, really important that everybody show up until those positions are filled. We barely have a quorum. MS. PAHL: What is the date of the next meeting? CHAIRMAN HAYES: July the 18th. MS. PAHL: July 18th. MR. DICKSON: Could we request of county -- could you ask the girls, once they fill those positions -- they used to give us this list and contact numbers and everything. It's really handy. MR. BARTOE: We will update that when those positions get filled. CHAIRMAN HAYES: At this point we actually don't know if the county has advertised for -- MR. BARTOE: I do not know. Page 25 June 20,2001 CHAIRMAN HAYES: -- any of those positions. MR. NONNENMACHER: I think we've seen the ads. I think I've seen something published. MR. LAIRD: They have been advertised. CHAIRMAN HAYES: Okay. MR. LAIRD: Mr. Chairman, as Les said, this is my last meeting. And I've made some good friends here, some I'm not too sure about. And I think your staff is doing a great job. I've been on some county boards for over 12 years, and it's a great board, and you're doing a great job. And it's been a pleasure serving with you, and nice meeting all of you. MR. NEALE: Coming from my point of view as your attorney, I'd like to say that I really appreciated working with Mr. Laird and Mr. Schoenfuss over the years. It's been -- your wise counsel and good thoughts have been helpful in me doing my job, so thank you. MR. SCHOENFUSS: Well, while we're singing swan songs here, this is my last meeting too. I'm finishing six years on the board, and it's been a rewarding experience for me. I appreciate the wonderful leadership we've had with Mr. Hayes. I've been working more closely with the members of the staff, and I've certainly learned a lot of law from the lawyers with whom we've had contact, but I'm not yet ready to apply for my law degree. But I was asked whether I wanted to apply for a waiver from the county policy and extend for another three years, and I decided against that. ! think we should give somebody else a chance, and I'm contributing my efforts to the State Electrical Contractors' Licensing Board, which takes a lot of time. But I want to thank everybody and say it's been a rewarding experience, and I wish the same to whomever succeeds me. Thank you, everybody. CHAIRMAN HAYES: Okay. Any further discussions? Page 26 June 20, 2001 MR. NONNENMACHER: Yes, Mr. Chairman, if I may, one more thing. You've got in your packets this week a letter -- a copy of a letter from Municipal Code Corporation, just to straighten out that matter a little bit. The vendor made an erroneous mistake and omitted Section 4 of county ordinance, and it is being corrected. The insert should be mailed out as we speak right now, so we've eliminated that problem in the codified edition. CHAIRMAN HAYES: Okay. And along with that same line, I'm going to quiz Mr. Neale and Mr. Zachary just a little bit. Any time that we take action on this board, any time that we review the ordinance, any time we find the conclusions of law, findings of fact, we cite the ordinance, not the section. Is it Florida administrative law that we say -- that requires us to apply our Sections 22-1 whatever it is, 138, the article 5, Building Trades? None of us generally read that up here. None of us generally understand it up here. We all deal with the written ordinance that was approved by the county commissioners. MR. NEALE: Except ~- and I'll do it again. I've distributed copies of the codified ordinance to the board before. The analogy that I would use is citing to the ordinance as passed would be much like if Mr. Zachary or I went to trial or went to a hearing and cited to the committee substitute for House Bill 98 -105, Section 3, No. 2, instead of saying, Florida Statutes 489.113, whatever. It's almost perfectly analogous to that in that it's very difficult for someone to go back and dig through an ordinance. It's very simple for them to go to the code because you can go over to the law library; you go to the county offices, and this code is on the shelf. You open it up, Section 22, Contractor Licensing, and it's all in there. And so that's why I try to persuade the board and the staff to use Page 27 June 20,2001 that codified version because it is the one that's readily available to the public, and it's readily available to attorneys who may have a cause to come before this board; whereas, the ordinance itself is not as readily available. It's not something -- I mean, this code of laws and ordinances, you can go on the Municipal Code Corporation web site, and anybody in the country, anybody in the world, can read that code. It's not cited by 4.1.3.2, it's 22-whatever. And so that is the reason I try and say to use the codified version is a much easier version, and, frankly, is the one that would be considered to be the law in most instances. CHAIRMAN HAYES: Then why is it that county staff when enforcing cites the ordinances and not the section? MR. NEALE: I don't know. CHAIRMAN HAYES: I mean, as far as I know, you gentlemen have been doing that for as long as you've been doing the job itself. MR. NONNENMACHER: That's correct. CHAIRMAN HAYES: And I know that Mr. Neale from time to time has asked us or brought up the sections of the codified ordinance, in fact, have read that into the record when many times when we're actually talking about a section of the ordinance, he comes up with Section 22-something and reads those words. On the citations themselves, you even cite the county ordinance 90-105. I'm just wondering if there is something possibly -- is there something in writing that says a person could actually avoid a citation by virtue of the fact that he wasn't cited the section of the codified ordinance? MR. NEALE: They probably would have difficulty doing it, but it is something they could certainly argue. CHAIRMAN HAYES: Do you really think it's that -- MR. NEALE: If you look at what happened in the case that was brought forward today -- last month -- one of the problems in the Page 28 June 20,2001 initial phases of it was that in the codified ordinance was a scrivener's error. There was a transcription error. I guess we'll all admit that was it. But it was not in the ordinance that was readily available to the public. But it was not in the code and ordinances of Collier County. Now, going back -- because I've been around long enough -- the county only began codifying its ordinances and its Land Development Code about eight years ago. Before that everything was cited -- those of you in the building business -- and remember you used to cite to -- instead of Land Development Code it was ordinance 89-whatever, section-whatever, when you talked about the Land Development Code section. Now, when you talk about the Land Development Code, you talk about 2.1 .-whatever, the section of the Land Development Code. It's the same kind of thing here except this is codified ordinances. And, frankly, once they become codified, that's the code that should be used. CHAIRMAN HAYES: So, basically, what you're saying -- and, Mr. Zachary, I'm going to ask you to concur or deny it -- that us on the board should have the codified version that we study, work with, and in enforcement we must do the same thing then. We're not going to be able to carry water with just the 90-105 ordinance as amended. And I'm going to suggest also if that's the case that on our findings of fact and conclusion of law forms that we cite, we need to do the same thing. That form needs to be revised, and we stop using 90-105 as amended and start using Section 22-185. MR. NEALE: Typically, when I put the final orders together, I list both sections of the code in there. CHAIRMAN HAYES: I know that when I sign those orders down at the county as chairman that's all strictly 90-105. And if this is the case, we could be opening up a Pandora's box for the future any Page 29 June 20,2001 time we hear a case, whether it be a full-blown case or just a citation. And I guess we don't want to get into that kind of a mess any more than we already have. So perhaps we need to go to school on the codified version and set the long-hand written ordinance down, and once it's approved by the county and codified, it no longer applies. MR. NONNENMACHER: If I'm not mistaken, the citations are cited under the state statute; the citations themselves are cited under the state statute. MR. JOSLIN: I have a further point of discussion maybe to be clarified a little bit. When a case of this magnitude that we just went through today comes before us, before it comes before the board, does staff concur or does staff get involved with the county attorney to see how the case is going to be prepared so that this problem that we just had doesn't come up, where all of a sudden now you brought a case before us that may have been a legal case, may have not been a legal case or a just case, but yet two months later it's thrown out or not heard, so we've just done it all for the past two months? MR. NONNENMACHER: Well, again, I'll take the first answer to that, and then I'll let Mr. Zachary answer it. Not all the time do we actually go to the county attorney's office and discuss a case. This particular case I believe we discussed over the last three or four months. And it boils down, again, to a difference of opinion. And as being in law enforcement for over 35 years, I have elements of a crime or of a violation that has to be proven. I think we do a good job of taking those elements and putting them down. And to our satisfaction we had the elements is what I'm saying to you. Whether the damage part element was met to the standard of the courts, I'm not really quite sure. And I might be going out on a limb, Page 30 June 20, 2001 but my personal opinion, that sounds like case law from a court that involved multimillion-dollar lawsuits. And I think the case -- my personal opinion, again -- I think possibly that case law had to do with that this person wasn't damaged that much to deserve that kind of money. When you charge an enforcement part of the government -- when you charge someone, you make sure you have the elements. We had the elements -- we had reasonable cause to believe the elements, and that's why they were charged that way. The county attorney's office and Mr. Neale felt that the elements that we did have, particularly the damage part of it, did not meet the standards of the courts. I don't think either one, Mr. Neale or Mr. Zachary, would say that this man had no damage whatsoever. And the way fraud reads is damage to a person. It doesn't go to case law and tell you that this damage has to be, you know, that severe. It doesn't tell you that in the definition of fraud, so -- MR. NEALE: I beg to differ with Mr. Nonnenmacher. CHAIRMAN HAYES: I understand, and I don't want to go there -- MR. ZACHARY: I don't think this is the time or the place to go over the differences that staff-- CHAIRMAN HAYES: I agree. MR. ZACHARY: -- we have. CHAIRMAN HAYES: I agree completely. I don't think we need to -- MR. NONNENMACHER: And I don't mean to do that. Like I said, this is a learning process like Mr. Schoenfuss said. I don't claim to be an attorney, but there are certain things that you like to think about and like to try to understand and then say, "How could something like this happen?" and that's all I'm saying. I have nothing against Mr. Zachary or Mr. Neale. I respect them Page 31 June 20,2001 highly. I think they do an excellent job. And just because I disagree with them -- they're doing the job the best they can. We do our job the best we can. Like they said, this case is over, and I'm leaving here, and I'll move on. This isn't going to devastate me. I'm not going to lose a minute's sleep over it. I'll go back to the office, pick up the voice mail, go out again. And I hope -- if I offended anyone over on the attorneys' side, I truly apologize. I mean no harm or disrespect to any one of them. MR. DICKSON: Given the fact that the case has been dismissed, I think we need to quit talking about it now. CHAIRMAN HAYES: Uh-huh, I agree. Any other discussions? MR. DICKSON: I move that we be adjourned. MR. JOSLIN: Second. CHAIRMAN HAYES: Before that -- I'm sorry -- do we have anything on the agenda for July the 18th at this point? MR. BARTOE: At this point I'm not aware of anything. CHAIRMAN HAYES: So we're not even sure there will be a meeting? MR. BARTOE: That is correct. CHAIRMAN HAYES: Okay. Now I have a motion -- MR. NEALE: The only issues would be if the board would want to review the ordinance at that meeting, but I don't know if that's an adequate reason for the board to convene just to review the ordinance changes. CHAIRMAN HAYES: Perhaps we'll have to find out if that's the sole reason. If there are some cases, then we'll come and do the whole thing. Otherwise, as long as we have a couple weeks' notice -- and that's pretty well what you've been able to get us -- MR. BARTOE: Normally one week. Page 32 June 20, 2001 MR. ZACHARY: There's just one board meeting in July to get that ordinance revision on, and I'm not sure if we could meet the deadline after the 18th. There's some revised deadlines, so I'll have to check on that as well. MR. NEALE: Yeah. So we're probably looking at the earliest in August, the County Commission meeting, or maybe September. MR. ZACHARY: Maybe September. I'm not sure they even meet in August. MR. NEALE: Yeah. I -- in fact, I think they are closed down in August so, you know, if there is nothing on the agenda, it might be well for the board to take July off and meet in August and then get it on the county commission agenda for September if the ordinance is the only thing. CHAIRMAN HAYES: Well, we're not in charge of the request to be heard, so we don't know if somebody comes in to request to hear a citation. We're stuck with that, I'm sure. MR. BARTOE: The way Mr. Ossorio is performing his duties, I'm assuming that's the main reason you're getting a lot of requests to qualify second entities. CHAIRMAN HAYES: That's correct. Okay. I have a motion and a second for adjournment. All in favor? CHAIRMAN HAYES: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MR. LAIRD: Aye. MS. PAHL: Aye. MR. SCHOENFUSS: Aye. MS. WHITE: Aye. CHAIRMAN HAYES: Very well. Page 33 June 20,2001 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 10:05 a.m. CONTRACTORS' LICENSING BOARD GARY HAYES, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY PAMELA HOLDEN, COURT REPORTER Page 34