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CLB Minutes 09/19/2001 RSeptember 19, 2001 TRANSCRIPT OF THE MEETING OF THE CONTRACTORS' LICENSING BOARD Naples, Florida, September 19, 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 9:03 a.m. In REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: GARY HAYES RICHARD JOSLIN CAROL PAHL SARA BETH WHITE WALTER CRAWFORD, IV KENNETH M. LLOYD ABSENT: LES DICKSON ALSO PRESENT: PATRICK NEALE, Attorney for the Board ROBERT ZACHARY, Assistant County Attorney BOB NONNENMACHER, Chief License Compliance Officer MICHAEL OSSORIO, License Compliance Officer Page 1 03/25/2014 05:08 FAX ~002 AG___~NOA COLLIER COUNTY CONTRACTORS' ~NG BOAR[:) DATE: September 19, 2001 TIME: 9:00 AD_..__M_MINIST~ COURTHOUS___E 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 EV~IDENcE UPON WHICH THI~ APPEAL IS TO BE BASED. I. ROLL CALL II, ADDITIONS OR DELETIONS: III. APPROVAL OF AGENDA: IV. APPROVAL OF MINUTES: DATE: July 18, 2001 V. NEW BUStNESS: Vasile G. Brisc - ReCl. to qualify a 2'"~ entity. Paul CJe~ella - Req. to qualify a 2'~ entity, Fred J, Svenson - Req. to qualify a 2na entity, Nikita J. Kravcik - Req. to waive exam for Painting license. Gervecio J. Andrade = Req. to waive exam for Floor Covering license Robert Rodriquez - Req. to waive exam for Floor Covering license. Michael Faulconer, Sr. - Req, to reinstate Masonry license without relaking exam. James L. DeMarco ~ Review of credit repott~ VI. OLD BUSINESS: Approve ordinance amendments. 2nu Entity Form - use of revised state form. VII. PUBLIC HEARINGS: Charles M. Abbott - Contesting Citation ~t09§9 issued on June 27, 2001, VIII, REPORTS: IX_ DISCUSSION; X. NEXT MI=ETING DATE: OcJober 17, 2001 September 19, 2001 CHAIRMAN HAYES: I'd like to call this meeting to order, contractors' -- Collier County Contractors' Licensing Board, September the 19th at 9:03 a.m. Any person who decides to appeal a decision of this board will need a record of the proceedings thereto and, therefore, may need to ensure that a verbatim record of the proceedings is made which record indicates that testimony and evidence upon which an appeal is to be based. I'd like to start roll call to my right. MR. LLOYD: Kenneth Lloyd. MR. CRAWFORD: Walter Crawford. CHAIRMAN HAYES: Gary Hayes. MR. JOSLIN: Richard Joslin. MS. PAHL: Carol Pahl. MS. WHITE: Sara Beth White. CHAIRMAN HAYES: I'd like to say welcome, Ken Lloyd, to the board. This is your first meeting with us, and we're glad to have you on board. MR. LLOYD: Thank you. CHAIRMAN HAYES: Do we have any additions or deletions to the agenda? MR. NONNENMACHER: No, sir. Staff has none. CHAIRMAN HAYES: I need an approval of the agenda then. MR. JOSLIN: So moved, Mr. Chairman. MS. PAHL: I'll second it. CHAIRMAN HAYES: I have a motion and a second. All in favor? (Unanimous response.) CHAIRMAN HAYES: (No response.) CHAIRMAN HAYES: Opposed? Okay. I have the minutes of July 18th. Page 2 September 19, 2001 We didn't meet in August. We should have those in front of us and should have reviewed them. I'll entertain a motion for approval. MS. PAHL: Gary, one thing. I don't think Arthur Schoenfuss or Bob Laird should have been listed as absent because they were no longer eligible to be members of the board, as I understand it. They weren't really absent. CHAIRMAN HAYES: That's a good point. MR. JOSLIN: Their term expired. MS. PAHL: Their term had expired, yeah. CHAIRMAN HAYES: Okay. Then we need -- we need an amendment to these. MR. CRAWFORD: Just to be correct, I think Gonzalez was also expired. CHAIRMAN HAYES: I think you're right; all three of them were. MS. PAHL: Okay. CHAIRMAN HAYES: Okay. How about a motion to approve the amended minutes. MS. PAHL: I so move that we approve the amended minutes, Carol Pahl. MR. LLOYD: Second. CHAIRMAN HAYES: When you -- when you make a motion or -- or second, follow it with your name. MR. LLOYD: Ken Lloyd. CHAIRMAN HAYES: Any further discussion? All in favor? (No response.) CHAIRMAN HAYES: (Unanimous response.) CHAIRMAN HAYES: V-a-s-i-l-e, Vasile Brisc. MR. BRISC: Yes. Opposed? Very well, under new business Are you here, sir? Page 3 September 19, 2001 CHAIRMAN HAYES: Would you come up to the podium. Right over there (indicating.) MR. BRISC: Here? CHAIRMAN HAYES: Yes, sir. I'm going to ask you also to be sworn in, so she'll take care of it. (The oath was administered.) CHAIRMAN HAYES: And your name for the record. MR. BRISC: Vasile Brisc. CHAIRMAN HAYES: Mr. Brisc, your reason for being here this morning. MR. BRISC: The reason I'm here this morning is I have a license which I used to qualify a company that I open in 1998, and I just opened another company, and I would like to use the same license to qualify the new company -- is a tile/marble contractor license. CHAIRMAN HAYES: What's the difference between the company that you have now and the company that you're looking to qualify? MR. BRISC: The old company doesn't have a name which really does -- does you the -- the name of the that business I am doing is Vasile Brisc Enterprises, and the second company that I open is Alpha Stone Designs, which is more -- CHAIRMAN HAYES: So you solely own both companies? MR. BRISC: Yes. CHAIRMAN HAYES: You're going to be operating both companies? MR. BRISC: Yes. Actually, I am going to transfer -- in time transfer the business from the first one to the second one in time. CHAIRMAN HAYES: Sounds good to me. MR. JOSLIN: Mr. Vasile, in your corporation I see you are the sole -- Page 4 September 19, 2001 MR. BRISC: MR. JOSLIN: MR. BRISC: MR. JOSLIN: Yes. I'm the sole propriate -- sole -- Are you the president, secretary-- I'm the president, yeah. Okay. The only reason I ask this is because of-- in the application I see a -- a little highlight on the side of-- must be your wife's possibly -- MR. BRISC: Oh, yeah, yeah. She's the secretary on the second company, Alpha Stone Designs. I'm sorry. MR. JOSLIN: Okay. MR. BRISC: I missed that. MR. JOSLIN: And you're the president of that company? MR. BRISC: Yeah. MR. JOSLIN: I'm confused. CHAIRMAN HAYES: Everything seems to be in order. MR. CRAWFORD: Mr. Chairman, I've reviewed the application, and I move to approve the second entity qualification. CHAIRMAN HAYES: I have a motion. I need a second. MR. JOSLIN: I second the motion, Joslin. 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: Very well. Mr. Brisc, it looks like you're in business in a second entity. MR. BRISC: Thank you very much. MR. NONNENMACHER: Mr. Chairman, for the record, my name is Bob Nonnenmacher, contracting licensing supervisor. All of those applying for entities or licenses, I would like to notify you that Page 5 September 19, 2001 you will not be able to get them today. All the paperwork is here with us. They will be available, if approved, tomorrow. MR. BRISC: Okay. CHAIRMAN HAYES: Thank you, sir. MR. BRISC: Thank you very much. CHAIRMAN HAYES: Paul Cretella, are you here? MR. CRETELLA: (Nodded head.) CHAIRMAN HAYES: Will you come up to the podium. Good morning. I'm going to ask you to get sworn in as well. (The oath was administered.) CHAIRMAN HAYES: Your name for the record. MR. CRETELLA: Paul Cretella. CHAIRMAN HAYES: Your reason for being here this morning? MR. CRETELLA: I'd like to qualify a second entity. CHAIRMAN HAYES: And what's your purpose for that? MR. CRETELLA: I have -- I qualify an installation company at this point, and I want to qualify a second entity in order to be able to do sales and installation. MR. JOSLIN: These businesses that are listed on your Application Item No. 9 of Empire Tile of Naples, are these businesses still in operation also? MR. CRETELLA: Empire Tile -- yes -- well, actually all the businesses are still in operation. The only one I'm involved with right now is Empire Tile. MR. CRAWFORD: So if I understand right, Empire Tile would be a labor subcontractor only. MR. CRETELLA: Correct. MR. CRAWFORD: And then Avatar would be a full-service flooring company? MR. CRETELLA: Correct. Page 6 September 19, 2001 CHAIRMAN HAYES: MR. CRAWFORD: Okay. one. It looks pretty clean to me. entity for Avatar Flooring. MR. JOSLIN: Joslin, second. What's the pleasure of the board? Mr. Chairman, I have reviewed this I move that we approve the second CHAIRMAN HAYES: I have a motion and a second. further discussion? (No response.) CHAIRMAN HAYES: All in favor? (Unanimous response.) CHAIRMAN HAYES: Opposed? (No response.) CHAIRMAN HAYES: Very well. MR. CRETELLA: Thank you. CHAIRMAN HAYES: Fred Svenson, are you here? MR. SVENSON: I am. CHAIRMAN HAYES: Come up to the podium. morning. I'm going to also ask you to be sworn in. (The oath was administered.) CHAIRMAN HAYES: Your name for the record. MR. SVENSON: Fred Svenson. Any How sweet can it be? Good CHAIRMAN HAYES: And your reason for being here this morning? MR. SVENSON: I'd like to open up a second company. CHAIRMAN HAYES: How does the second company compare to the first company? MR. SVENSON: Well, it's about the same, but I have some good guys, and I want to expand and let them do some good work and let them get a little piece of the pie. MS. WHITE: What do you presently qualify? Florida Homes of Collier? Page 7 September 19, 2001 MR. SVENSON: Excuse me? MS. WHITE: Is that the one you presently qualify is Florida Homes of Collier? MR. SVENSON: Quality Home Builders. CHAIRMAN HAYES: MR. SVENSON: No. Carpentry. CHAIRMAN HAYES: That's your new company. The new company, Quality Home Okay. Quality Home Builders. MR. SVENSON: That's correct. That's my business right now. I'd like to expand and open up Quality Home Carpentry. CHAIRMAN HAYES: You hold a contractor's license, or you hold a carpentry license? MR. SVENSON: A carpentry license. CHAIRMAN HAYES: You're going to be operating both businesses? MR. SVENSON: Yes, sir. CHAIRMAN HAYES: And you're sole owner of both businesses? MR. SVENSON: Yes, sir. MR. JOSLIN: Mr. Chairman, I have reviewed this application, and I make a motion that we approve the second-entity application. MR. CRAWFORD: My only question, Mr. Chairman, and, Mr. Svenson, you currently qualify Quality Home Builders. Is that a home-building company? MR. SVENSON: It's a carpentry company. MR. CRAWFORD: It is a carpet-- it is a carpentry company. MR. CRAWFORD: Okay. MR. SVENSON: The name slipped me. Quality Home Carpentry sounds a little better than Quality Home Builder. CHAIRMAN HAYES: I have a motion. I'm looking for a second. Page 8 September 19, 2001 MS. WHITE: CHAIRMAN HAYES: further discussion? (No response.) CHAIRMAN HAYES: (Unanimous response.) CHAIRMAN HAYES: (No response.) Second, White. I have a motion and a second. Any All in favor? Opposed? CHAIRMAN HAYES: None. Very well. MR. SVENSON: Thank you. CHAIRMAN HAYES: You're done with this as well. As you were explained earlier, your paperwork's here, so you're not going to be able to do anything about it further until tomorrow. MR. SVENSON: Okay. Thank you. CHAIRMAN HAYES: Nikita Kravcik. I'm going to ask you to be sworn in, too, this morning. (The oath was administered.) CHAIRMAN HAYES: I understand you're looking for a painting license without the passing grade on an exam; is that correct? MR. KRAVCIK: Yes, sir. I try many times, but I just cannot get it. CHAIRMAN HAYES: How long have you been in the business? MR. KRAVCIK: Three years, over three years. MS. WHITE: Mr. Kravcik, I have a question about a couple of- - you tried to take the exam a couple of times. You've tried to take it in Naples once, and it was a no show, in West Palm a no show. I'm just wondering why you didn't try at those times. MR. KRAVCIK: Well -- well, once I-- I was sick. I had problems with my back, with my lower back. And another times -- I Page 9 September 19, 2001 think it was one it so happens that I couldn't make it because my family was here from Europe, so I couldn't make it. But that was probably over 20 times I was trying, but I just cannot get it. MR. CRAWFORD: So if I'm reading this right, Mr. Chairman, he's passed the business and law class but not the painting portion. CHAIRMAN HAYES: That's the way I read it. MR. KRAVCIK: I have a mill -- millwork carpentry license and a roof coating and painting so -- CHAIRMAN HAYES: What actual painting experience, then, have you got? MR. KRAVCIK: How many years? CHAIRMAN HAYES: No. Who'd you work for? MR. KRAVCIK: C. J.'s Painting and Fan-- Fanny's Company (phonetic) and Mr. Montchinelle (phonetic). CHAIRMAN HAYES: And you're currently in business -- MR. KRAVCIK: Yes, I am. CHAIRMAN HAYES: -- in another trade? MR. KRAVCIK: Yes, I got this roof painting, coating, and pressure washing and millwork, carpentry, and installing cabinets. CHAIRMAN HAYES: MR. KRAVCIK: Yes. license. CHAIRMAN HAYES: exam? MR. KRAVCIK: Yes. So you hold a carpentry license as well? Yes. Yes, I have a two-contractor Did you get that license without an MR. JOSLIN: How long have you held that license? How long have you held that license? MR. KRAVCIK: Oh, this first I think I got about three or four months -- I'm not sure -- and the second one probably three too. I don't know. CHAIRMAN HAYES: The carpentrys' license you've held for Page 10 September 19, 2001 three or four months? MR. KRAVCIK: Two maybe. I'm not sure. CHAIRMAN HAYES: Where'd you get it? MR. KRAVCIK: From Collier County. CHAIRMAN HAYES: MR. KRAVCIK: Yes. a contractor license. We gave you a license in carpentry? That's millwork. That's not really -- not MR. NONNENMACHER: That's cabinetry and millwork which requires a business and law only. MR. KRAVCIK: Thank you. CHAIRMAN HAYES: That makes me feel a little better. MR. CRAWFORD: I think this is an unusual situation. Typically contractors with a lot of experience have a hard time passing the business and law portion, and the concern of this board is that they don't have the business experience to run a company. He's passed the business and law portion and -- and his application looks okay. I think we need to decide whether or not his painting experience is -- is up to par and valid. CHAIRMAN HAYES: Well, I believe I see enough verification of painting experience in the packet, but my concern is there -- there is twofold: One, he didn't pass the test, which means that we have the opportunity to review his credit report. If he passed the test, we wouldn't have to review his credit report. And in reviewing his credit report I see a significant amount of charge-off and collections. MS. WHITE: Well, my question about the charge-off that's on here, those are prior to the discharge of the bankruptcy, so how come they're still here? MR. NEALE: Unfortunately, that will -- that sometimes happens. Even after a bankruptcy they still hang on to reports. MS. WHITE: There's a lot of them. MR. KRAVCIK: Well, the reason why I had filed for Page 11 September 19, 2001 bankruptcy, I was working as a fisherman in Alaska. I had accident over there on a boat, so I couldn't afford pay my bills. That's the only reason. But since then is my credit established and my payments is all -- all time on time. MS. WHITE: Well, that's what I'm trying to sort out, is what happened after that date. MR. NEALE: Yeah. There's-- MS. WHITE: They're all mixed together. MR. NEALE: Yeah. It's not an easy-to-read report. I admit it. MR. CRAWFORD: What -- what was the date of the bankruptcy? MR. KRAVCIK: I think-- CHAIRMAN HAYES: MR. KRAVCIK: --'97. CHAIRMAN HAYES: '97. Yeah. Thank you. January 31 st. MR. KRAVCIK: Yes. Yeah. Since then I have no more problem with my payments, and my credit established. I own two credit -- few credit cards, and my payment is always all the time on time, actually, before. CHAIRMAN HAYES: This board's not in the habit of granting licenses without due process any more often than we can help. It is under special and unusual and extenuating circumstances that we even consider it. On -- I don't know why you can't pass the test. Do you have any reason why you can't pass the test? MR. KRAVCIK: Well, business and rules, there -- there was not a problem because it is open book also, but I can -- I can read it. Yeah. But in the -- in test, there was many trick -- trick question, or they just was some words what I never heard before, you know, so even when I put this together, so I just get more and more down. I said, oh, I -- I don't get it. MR. CRAWFORD: If I'm reading this right, there's several Page 12 September 19, 2001 charge-offs after '97. There's one after -- back on the first page -- the second page, First USA, First USA -- MR. KRAVCIK: No. That was -- that was -- everything was before. MR. CRAWFORD: It was? MR. KRAVCIK: That was before, yeah. Yeah. Everything was -- this record is everything was before my filing bankruptcy. MR. CRAWFORD: As a result of the bankruptcy? MR. KRAVCIK: Yes. Yes, sir. MS. WHITE: Is there anything on here that's after except the bottom of the first page? MR. KRAVCIK: Pardon me? MS. WHITE: I don't see -- I see one on the first page that has a date after it, but, you know, there's -- MR. NEALE: Yeah. MS. PAHL: No. There's one on the second page, Providian. MS. WHITE: It's not a lot to look at after that day. MR. NEALE: The J.C. Penney one on the second page is a current one. Providian on the second page -- MS. PAHL: Providian on the second page is current. Right. And Charter One Auto on the first page is MR. NEALE: MR. LLOYD: current. CHAIRMAN HAYES: Uh-huh. Isn't there a Ford Credit on the second page, the bottom of the page? MR. NEALE: That's hard to tell. MR. KRAVCIK: I don't have a Ford -- Ford anymore, so I'm just dealing now with Charter One. MR. NEALE: Whatever it is, it's paid off so -- MR. KRAVCIK: Yes, it is. I would say that I had, really, accident on this boat in Alaska, and I couldn't work. And I -- really Page 13 September 19, 2001 almost three years I couldn't hardly -- hardly walk, it was so bad. So that was the only reason that I couldn't afford pay my bills. But I had some money in the bank, and I tried to pay my bills. But, like, insurance they pay me only $600 a month, so I could not afford it. MS. WHITE: I don't feel comfortable about this one. I -- I don't think there would be a language barrier if you can pass the business and law. And-- MR. KRAVCIK: I said, again, business and law was easy because I can read it. There were not trick questions or something like that. MR. JOSLIN: You also have to understand we're looking at this application, business and law. You can subcontract out to someone. You're talking about the portion of the test that is your trade, and this is half of the test. And it appears on the -- on the application that you -- the test results are getting worse -- MS. PAHL: Yeah. MR. JOSLIN: -- instead of getting better. I would think after taking the test so many times that the -- the test scores would begin to rise somewhat, but I see no change here at all. MR. KRAVCIK: I know, sir. MR. JOSLIN: They're worse. MR. KRAVCIK: I know, sir. The only problem, I have problem with reading English. That's -- I know that is not excuse, but that's what I'm confused about. MR. JOSLIN: How are you going to read cans of paint? MR. KRAVCIK: Pardon me? MR. JOSLIN: That's inside. I'm having a problem with this. I didn't get it. MR. KRAVCIK: You mean read the paint? Read the paint? I didn't get what you say. MR. JOSLIN: Yes. How will you understand your trade of-- Page 14 September 19, 2001 of all the chemicals that go into a particular flavor of paint? MR. KRAVCIK: Well, I've been doing this for a while. I've been doing this for a few years, and I got experience about this, so I usually mark it on. There is no problem. But I do not -- don't know how to read, so I ask my friends or people in the paint store. That's never a problem about this. MR. NEALE: Just to remind the board, the -- under Section 22-184 of the Subpart C of the ordinance, the board-- when an application is referred to this board, the board may consider the applicant's relevant recent experience in this 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. That's the standard to which this is to be held. CHAIRMAN HAYES: I don't know if it's the way that it has to be all the time, but I'm going to tell you that from that perspective, Mr. Neale, there are some sufficient affidavits in the application that seem to satisfy that, as far as I'm concerned. I think some of the hesitation could perhaps be lying in the quality of the credit report on top of it. I don't believe, if I understand probably most of the -- where we're going, that we'd have any hesitation whatsoever here, based on experience, if he didn't have quite a blemished credit report. Does that-- MR. LLOYD: Right. CHAIRMAN HAYES: -- make sense to the general consensus? But we're -- we're given two incidents here: one, not passing an exam; and, two, coming in here with what I would call not the best credit report I've ever seen. Now, you say you've been in business in these other trades. Do you have any trade credit with that? Do you buy any material? Do you buy any tools? Page 15 September 19, 2001 MR. KRAVCIK: Yes, I do. Yes. CHAIRMAN HAYES: Trade. MR. KRAVCIK: Yes, what I pay in taxes, of course. CHAIRMAN HAYES: None of those appear on your report. So are they in a corporate level? MR. KRAVCIK: No. CHAIRMAN HAYES: MR. KRAVCIK: No. CHAIRMAN HAYES: don't have any accounts? MR. KRAVCIK: No. I don't have -- You always pay cash to supply houses? Just write a check, I mean -- yeah, yes. You write a check every time. You No. You mean like in paint stores? No, CHAIRMAN HAYES: Paint store, hardware store -- MR. KRAVCIK: No, I don't have. CHAIRMAN HAYES: -- lumberyard. MR. KRAVCIK: No. Because of the -- my bank, what I had before, you know, so they -- they didn't give it to me. That was the only reason. MR. NEALE: I'd just like to give the board some information as to the -- the standards for evaluating financial responsibility. I know we -- the board's reviewed these before, but the standard is -- is set forth in the Florida Administrative Code, Rule 61G4-15.006. And financial responsibility, which is what you're discussing at this point, as defined, is the ability to safeguard that the public will not sustain economic loss resulting from the contractor's inability to pay his lawful contractual obligations. That's the standard to which this is to be judged. So it's -- it's contractual responsibility -- obligations as a contractor. CHAIRMAN HAYES: We don't have any direct evidence that links that to a problem, so this is all a personal thing. And most of it -- most all of it is prior to a bankruptcy filing. Page 16 September 19, 2001 How long have you been in the country? MR. KRAVCIK: Eleven years. MS. WHITE: My concern is if the bankruptcy is in '97, you've had a good three years to get more positive things on this rapport or to establish-- MR. KRAVCIK: Well, I did already. I have never been behind on my payments. I -- I was okay since -- since bankruptcy, so I don't understand what you mean by that. MS. WHITE: It's -- maybe you do a lot of cash transactions and they wouldn't show up here, but I don't -- I mean, it's not visible is what I'm saying. CHAIRMAN HAYES: Mr. Nonnenmacher, is there any investigations or any complaints that you've received in licensing at the county for any activities in the last three years or with this gentleman's business? MR. NONNENMACHER: No, sir, not that I'm aware of. CHAIRMAN HAYES: Mr. Kravcik, we are hesitant. I understand you have somewhat of a language barrier. Are you educated in your home country? MR. KRAVCIK: Yes, I am. I graduated hotel school five years; that is like college. And then later I was working. My grandfather, he was a builder. So I was working actually all the time with him since my childhood, like, carpentry or painting or remodeling or something like that. CHAIRMAN HAYES: Well, I guess it's not like you haven't tried. I'm seeing one, two, three, four, five, six actual -- seven actual attempts at taking the exam. MR. KRAVCIK: It was probably around 20. You don't have the whole. CHAIRMAN HAYES: Well, one, it's not like he hasn't tried but, two, after seven attempts at a painting license that was created to Page 17 September 19, 2001 test an individual's ability to do business in that trade, not being able to pass it after seven times -- MR. KRAVCIK: I think that you don't have all my records over there. There was, as I said, about 20. Maybe you're missing some year over there. I've been trying to take -- take test about 20 times. I'm sure many more; 15, not 7. CHAIRMAN HAYES: Well, see, that's bittersweet. I appreciate the amount of your effort. But if you've taken it 20 times and can't pass it, who are we to say that just because you can't pass the test doesn't mean that you can't do the trade. The pass was -- the test was engineered and designed to test individuals before you cut them loose on the public. And now after taking it 20 times, you still can't -- you don't know enough about painting to paint the -- to take the -- to pass the exam. And now we're going to sit here and say fine, not a problem, we think you're good enough and let you go on the public with a license in Collier County. I believe that's probably why we're scratching our head up here. MR. KRAVCIK: I was the one -- there were never any complaint about my job. The people, they were satisfied all the time. MR. JOSLIN: I also believe that if we -- if we don't entertain something here to talk this out further, that we're going to open up a -- open up other items, other people that are going to come into this board and because they can't pass the test, we've allowed you to do it. So we're going to be kind of locked into a situation where we're going to have pass more of these people on to the public. I just don't feel right about that. MR. NONNENMACHER: Mr. Chairman, if I may address a question to Mr. Neale. Does the board have the authority to issue a conditional license and the condition being that if no complaints come in within a certain time period it would become a permanent license? Page 18 September 19, 2001 MR. NEALE: Uh-huh. The board can issue a-- a qualified license with certain limitations on the -- on the ability of the person to perform contracting. They can issue a license that would require a review. I'm just trying to find the exact citation on it. But that is something that can be done. CHAIRMAN HAYES: Well, generally, we have done that in the past. But the criteria has been that -- and so much time they passed the exam. In this case I don't think we can level that option here because he's already tried to pass the exam, and he can't pass it. So other than complaints, then that would be the reason that we -- the limitation that we put on the license. MR. CRAWFORD: The issue for me is not the painting-test failures. The issue for me is that if we waive that requirement, everything else in the application ought to be flawless, and the credit report to me is not flawless, so I would recommend that we ask Mr. Kravcik to get his credit report cleaned up and perhaps take the -- take the painting test again, if you desire, and if not, get your credit report cleaned up and come back to this board. And based on that I'd make a motion that we deny this second-entity request. MR. JOSLIN: Joslin, second. CHAIRMAN HAYES: I have a motion and a second. What he means by this, Mr. Kravcik, is that your credit report doesn't have enough current, in the last three years, accounts that have been evidenced as clean. One of the things, I guess, you have to do after bankruptcy or a problem with your credit is somehow or another manage to open up some accounts one way or another, whether it takes a deposit amount down. Some suppliers, if you were to give them a couple of thousand dollars deposit, they would open you an account, and you pay that regular for four, five, six months, and then they let you go higher than your deposit, and they may even credit your deposit to your account after a while which would Page 19 September 19, 2001 establish a line of credit that would show up on the -- the report that would be something positive that we could put our teeth in. Do you understand that? MR. KRAVCIK: Yes, sir. CHAIRMAN HAYES: Any other discussion on the motion? MR. LLOYD: I had a question of Mr. Kravcik. You took this test in 1998, and you took it again in 2001. There's a three-year window there. You didn't pass it in '98. Was the language barrier a problem in '98? MR. KRAVCIK: Yes. MR. LLOYD: In the three years between the time you took it in '98 and 2001, did you have an opportunity to practice your reading skills and get some assistance with learning English? MR. KRAVCIK: Not really. I was by myself. MR. LLOYD: Thank you. CHAIRMAN HAYES: Any other discussion? (No response.) CHAIRMAN HAYES: I'm going to call for the vote. All in favor? (Unanimous response.) CHAIRMAN HAYES: Opposed? (No response.) CHAIRMAN HAYES: Very well. I apologize, Mr. Kravcik, but we're just not very comfortable with having two items that are a concern with us. Mr. Crawford said it perfectly well, I believe, for what we're looking at here. Had the credit report not been an issue, I believe that we would have probably, based on your experience, not had a problem with granting that. So, once again, if you can work your way through a few credit lines, credit report lines, to improve this some, I think you may have a different result from this board. MR. KRAVCIK: Okay. Thank you for your time anyway. Page 20 September 19, 2001 Thanks. CHAIRMAN HAYES: Thank you, sir. I'm going to probably pronounce this one wrong. Gervacio Andrade? MR. ANDRADE: Yes. CHAIRMAN HAYES: Come up here. Did I pronounce it wrong? MR. ANDRADE: Gervacio. CHAIRMAN HAYES: I'm going to ask you to be sworn in also. (The oath was administered.) CHAIRMAN HAYES: Your name for the record? MR. ANDRADE: Gervacio Andrade. CHAIRMAN HAYES: And you're looking also to obtain a license without a satisfactory exam result? MR. ANDRADE: Yeah. I took the -- the first time that I took the test I scored 71.4. And then the second time I scored, like, under 50. And I studied very hard, but I have -- CHAIRMAN HAYES: Could you come up a little closer to the microphone, please. MR. ANDRADE: I had problems with understanding the -- the test. MS. WHITE: How many times have you taken the exam? Two or three times? MR. ANDRADE: Two times. MS. WHITE: Because I'm looking at a letter from Don Cabe, and it says in here you're attempting to produce a near-passing score of 73, but that never occurred; is that right? MR. ANDRADE: 71.4. MS. WHITE: So you've taken it twice? MR. ANDRADE: Yeah, I took it twice. The second time I Page 21 September 19, 2001 scored less. MR. NONNENMACHER: Mr. Chairman, if I could interrupt for a minute. I've been working with Mr. Andrade. He came in to me to apply for this waiving of the exam before you after he failed his first test. I discussed the situation. I -- I more or less turned him down appearing before the board and asked him to retest. If he was -- failed the second test to come in and see me. He's applying for a floor covering license which requires a business and law exam also. A little bit into detail, Mr. Andrade is not going into business for himself. He will be working as a subcontractor for a tile and marble company on Marco Island. He will be doing rug -- carpets only. His contracting will be nil, to say the least. He will be just a subcontractor installer for an established tile and marble. MR. CRAWFORD: This is the more typical case where the applicant has all the experience in place and then has trouble passing the business and law class, although he did get close, and it does sound like he's starting out in the progressional stages and not going into the full-blown contracting business as you stated, although this board will give him the ability to do that in the future. MR. NONNENMACHER: That's correct. MR. CRAWFORD: So I'm much more comfortable with this case. But does the credit report look okay? MR. LLOYD: Uh-huh. MR. CRAWFORD: It appears to be okay to me. CHAIRMAN HAYES: I'm -- the license that you're applying for, Mr. Nonnenmacher, is a general floor covering license. MR. NONNENMACHER: Yes, sir. That's correct. CHAIRMAN HAYES: It's not a specific specialty license? MR. NONNENMACHER: It's a specialty license, but all he can do is carpet and wood flooring. He cannot do tile and marble, terrazzo. Page 22 September 19, 2001 MR. NEALE: It's the floor covering installations contractor. It's No. 20 in the list, 24-months' experience installing the specific product and a passing grade on the two-hour business and law test, qualified to install carpet, sheet vinyl, and/or all types of wood flooring. That's all it permits. CHAIRMAN HAYES: And you're looking just to do carpet -- carpet work? MR. ANDRADE: Yeah. CHAIRMAN HAYES: Can we restrict the license accordingly? MR. NEALE: You could, although I -- I believe one of the -- one of the testimonial letters indicates that he also has done wood flooring installation for the -- for the company. MR. ANDRADE: Yes. MR. CRAWFORD: What is a passing grade on this test? Seventy-seven? MR. NONNENMACHER: Seventy-five. MR. CRAWFORD: Seventy-five? MS. WHITE: How many attempts is good to try and take the Three? My concern is how far he fell the second time he took test? it. MR. ANDRADE: The second time my score was under 50. MS. WHITE: Yeah, 32. CHAIRMAN HAYES: The second time was worse than the first time. MR. ANDRADE: Yeah. CHAIRMAN HAYES: That's what the question was. MR. ANDRADE: Yeah. I studied -- I studied hard, but I -- I can't -- CHAIRMAN HAYES: This is one of those cases that Mr. Nonnenmacher was referring to earlier that we could probably grant a temporary license with review in a year to see how his experience in Page 23 September 19, 2001 the business has been and has he attempted to try to do the exam again and/or require that to be part of the granting of the license. I would suggest that 71.4 is awfully close. MS. WHITE: Uh-huh. CHAIRMAN HAYES: -- as far as I'm concerned, I think. In some counties isn't it a 70 -- MR. NEALE: That's correct. CHAIRMAN HAYES: -- requirement. MR. NEALE: I believe Lee County is a 70. MR. NONNENMACHER: We're one of the few counties that have a carpet license, floor covering license. Most counties do not. It's just an occupational license. CHAIRMAN HAYES: To begin with? MR. NONNENMACHER: Yes, sir. CHAIRMAN HAYES: If we wanted to, perhaps we could do a 12-month restriction on a temporary license with a review in 12 months to see if we've made a mistake? MS. PAHL: That sounds good. CHAIRMAN HAYES: Anybody want to make a motion like that? I'll make a motion that we approve a temporary license for 12 months with review in one year. MS. PAHL: I'll second it, Pahl. CHAIRMAN HAYES: Any other discussion? MS. WHITE: Are we going to require that he take the business and law one more time in that year? CHAIRMAN HAYES: That -- I don't think we'll need to require it, but it would definitely be a plus. Of course, if he did, then he wouldn't even have to come back and see us. MS. WHITE: That's right. CHAIRMAN HAYES: I can make a -- let's see, I have made Page 24 September 19, 2001 the motion, and I have a second. We haven't voted on it. I would like to amend the motion to include that if in one year the applicant successfully passes a business and law exam, he need not return here for review. That's an amendment to my first motion. I need a second to that amendment. MR. JOSLIN: Joslin, second that amendment. CHAIRMAN HAYES: Any other discussion? (No response.) CHAIRMAN HAYES: All in favor? (Unanimous response.) CHAIRMAN HAYES: Opposed? (No response.) CHAIRMAN HAYES: Very -- very well. Your paperwork is still here. Tomorrow, perhaps, you can go back down and get things moving for a temporary license. Do you understand what we were talking about? MR. ANDRADE: Yes. Fine. Thank you. CHAIRMAN HAYES: Okay. Robert Rodriguez, request to waive exam for floor covering license as well. Are you here, Mr. Rodriguez? MR. RODRIGUEZ: Yes. CHAIRMAN HAYES: Come up to the podium. I'm going to also ask you to be sworn in. (The oath was administered.) CHAIRMAN HAYES: Your name for the record. MR. RODRIGUEZ: Robert Rodriguez. CHAIRMAN HAYES: And you're here this morning to review your request for a license without passing the exam. What makes you think that we should waive the exam? MR. RODRIGUEZ: I have a hard time with the -- with the test. I'm not -- I have medically -- I have a hard time with it. I have -- Page 25 September 19, 2001 with epilepsy, and I can't, you know, read for certain long period of time. And it -- it doesn't go -- doesn't retain. And so I -- I've been in, like, the carpentry -- I've been in the carpet-installing business for 25 years. And as far as -- I can't hold, since I got out of the service, when I -- when I was 21, I had epilepsy. And since then everything I've -- I tried to pass that test, and it visually was gone. I literally couldn't see it. I had walked out of there, and it was pretty embarrassing for myself. MR. NONNENMACHER: Mr. Chairman, if I may, this is a similar situation. I've been working with Mr. Rodriguez now for the last two months on this. Again, he is not in a business for himself. He'll be installing for a major carpet company, used to be known as Georgia Carpet Outlet. It's now Floors Direct. So as far as actually opening a business of his own, I was informed that that's not his intention. He wants to work as .a subcontractor. And, like I said, it would be a major carpet and tile company that he's working for. Again, he told me about the test, about the epilepsy, so I -- I asked him to take the test and then come back and -- and see you. CHAIRMAN HAYES: It's never been attempted. That I understand. There's no attempts at tests. You've never tried to take the test. MR. RODRIGUEZ: Yeah, I did take one. I took one over in Fort Myers, and that's -- I walked in there, and I -- I was there for probably about -- and I tried, and I -- and I even went to these things to try to -- with a book and so forth to try to read and understand it, and it wouldn't -- I couldn't comprehend. I couldn't understand it. And the math went right through me. And everything else did, and it was pretty -- pretty embarrassing. CHAIRMAN HAYES: Well, there's more to being in business than being able to lay carpet, obviously. You've got to know how to make -- how to multiply the math on what your installation amounts Page 26 September 19, 2001 are. MR. RODRIGUEZ: I can look at a piece of rug, sir, and I can put it any which way you want it. CHAIRMAN HAYES: That's exactly what I mean, and I commend that, which leads me to what I'm saying is what's the purpose of being in business? You need to be working. You're an excellent installer. You need to be working for a subcontractor as an employee. Now, is there some reason that there are some laws that may be looking to be getting around under the federal employment act or labor laws regarding employees versus subcontractors? Because if I were a carpet man -- I'm a plumbing contractor, and I don't want my guys to be subcontracting from me. I want them as my employees. The only way that I would let them be subcontractors, if I could skirt some taxes or some workers' comp. Is this what we see here? MR. NONNENMACHER: I can't answer your question as to whether there's anything going on trying to circumvent some laws by the carpet company. I can tell you that it's very common that installers work for four or five different major carpet companies all at the same time as subcontracting installers. It's very commonplace in the carpet business that they'd go to Hadinger's once and Abbey Carpet the next time and so on and so forth. So the idea of being an employee in a carpet installation business is very difficult because sometimes the company sells a month's worth of tile and marble which puts them out of work for a month, and then Hadinger is doing carpet, and then Abbey does carpet. And to make a living as an installer for one company becomes very tough in that business. CHAIRMAN HAYES: Couldn't I liken it exactly as a plumbing contractor? They're -- a carpet installer would be working for a customer or subcontractor and have employees, or I could just use all of my employees as piecework and sub out all the jobs, and when I Page 27 September 19, 2001 didn't have any work for them, they could go to work for some other plumber. I mean, I see the same trend could happen in any trade. Now, why would it be an exception that it happens in a carpentry -- MR. NONNENMACHER: I don't think it's an exception just in that particular trade. If you take a general contractor, he'll sub out his carpentry a lot. He'll sub out his cabinets a lot. It's the nature of the business. CHAIRMAN HAYES: Well, that's what I say. General contractor subs it out to a license -- MR. NONNENMACHER: To a licensed contractor. Well, that's what Mr. Rodriguez is trying to become so he can sub from Hadinger, Abbey, Floors Direct, Georgia Carpet Outlets, so on and so forth. MR. CRAWFORD: Mr. Chairman, that is how the carpet business works. It is more of a subcontractor labor only market, probably a little less sophisticated than a plumbing business, so it's easier to accomplish. My issues were the credit reports. Can you help me out with that, sir? It looks like on the second page there's several write-offs and several past due -- CHAIRMAN HAYES: Current. MS. WHITE: I have one other question on the credit report as well. On page 3 at the bottom it says public records, six. What are those six? Are we missing a page? CHAIRMAN HAYES: No, I saw that on a couple of reports this morning. It indicated that there were some public records that were learned about. But I guess it's like a guess at it. You know, we're supposed to guess at what they are. I don't know why they haven't been added and included in the credit report, which they have in the past. I've seen it before. MR. NEALE: I think if you look at the first page of the report, Page 28 September 19, 2001 that's the ones that they're referring to. MS. PAHL: Oh, those six. CHAIRMAN HAYES: Right. MS. WHITE: Yeah. MR. CRAWFORD: So otherwise the report is current? CHAIRMAN HAYES: Okay. MR. JOSLIN: There is also six on page 2 at the bottom. CHAIRMAN HAYES: Those are inquiries. Or is it an attempt to obtain credit? I think Mr. Crawford's holding a valid concern here. The only positive on your credit report was in '96 and '98, and ever since that time, '97, 2000, 2000, 2000 you have not paid any personal bills. MR. RODRIGUEZ: Those are -- a lot of them have to do with when I went through with a divorce and I had to pay through all of that, and I've been -- since then I've been renting, and I have been paying back what I've owed up north. And, I mean, I'm -- it's not like I'm trying to not pay what I owe. That I will. MS. WHITE: I'm concerned, too, that we don't have an attempt at the exam. Is -- is this pharmacy form that we have here that -- is this your physician's -- MR. RODRIGUEZ: MS. WHITE: Okay. That's my physician at the V. A. Hospital. I just feel like we need an attempt. CHAIRMAN HAYES: Well, once again, my concern here is that had he passed an exam, actually taken an exam and passed it, he would still not be able to procure a license in this county without coming before this board because of the quality of his credit report. Is that not correct, Mr. Nonnenmacher? MR. NONNENMACHER: What we look at on credit reports mainly is business related. If we feel that anything on there is business related, we will bring it to the board. We were instructed that is all we can be concerned about, not bankruptcies, not credit Page 29 September 19, 2001 cards, although sometimes when we question the applicant on the credit cards and they tell us, well, "I charged paint on a credit card for my business," then we'll bring it before you, yes. CHAIRMAN HAYES: Mr. Neale, do you see my concern is that -- wouldn't this look like a credit report that would be a little bit -- if I -- if he came in with a passing grade and tried to apply for a license, wouldn't this generally be a credit report that would require some scrutiny and some questions.9 MR. NEALE: It would require scrutiny except that Mr. Nonnenmacher is correct and, as I noted to the board before, the board is to look to the contractor's inability to pay lawful contractual obligations, i.e., business-related obligations. If you-- if you remember when you get a -- an applicant in that's been in business for more than one year, you do not get their personal credit report. You only get their business credit report. That's all that's provided. So that is what you're to look at. The only time you see it is either in a case like this where it's a personal licensee or in the case where a business has been in business for less than a year. CHAIRMAN HAYES: Well, that's correct. But if you're looking for a license, you better not have been in business prior to that -- MR. NEALE: True. CHAIRMAN HAYES: -- somewhere other than the municipality that we're talking about. So the only thing we have to look for is their personal ability to take care of business. MR. NEALE: True. And -- but the board, you know, needs to look at that as to whether they believe that the public is protected from economic loss resulting from the contractor's inability to pay contractual obligations, business obligations. MS. WHITE: I don't feel comfortable waiving the exam when taking the exam one time hasn't even occurred. Page 30 September 19, 2001 MR. NEALE: Okay. I -- I do have a question of-- and, Mr. Nonnenmacher, maybe you can answer this one, is because of his physical disability, does experient or whatever they're called now permit someone to take an exam orally? I would think that they would because -- MR. NONNENMACHER: Yes. There are oral exams in Gainesville. MR. NEALE: Okay. Because that -- I would suggest maybe the -- the route that would be better for you is where they would -- MR. RODRIGUEZ: Yeah. MR. NEALE: Do it verbally with you as opposed to in writing. MR. RODRIGUEZ: I would be honest. I mean, some of the -- if you -- if I looked at that math and you -- you told me what it was, I have no clue, you know. I mean, I'm not going to stand here and say I'm a Harvard or a -- you know, an educated college man. I'm not. I'm far from it. I mean, I started work physically when I was 14. My -- I mean, I -- I've held up my family when I was 14 until I went into the military. And at that point when I got out of the military, that's when I was on my own. But I held up my family's point until then. I -- I raised three kids with alcoholic parents, which one who had left. And I -- I had to give my part of life away in order for two others to be able to go to school, and which they have. And one's a computer expert, and one works in Minnesota who is a -- in manage -- business management, which I'm very proud of. So if you ask me to look at some of these tests and pass it, I could tell you right now it's probably not going to happen. I mean, I -- if you talk in laymen's terms to me, if you -- I understand that. You throw something ahead of me, I'll look at you with a smile and then just nod my head. CHAIRMAN HAYES: As far as I'm concerned, you have two strikes. You don't pass the test, and I am not about to approve it personally with your credit report. I don't see -- I see two items of Page 31 September 19, 2001 generally positive credit reporting on it. Everything else you just haven't paid personally. And whether we're supposed to or not supposed-to, Mr. Nonnenmacher, I'm just not prepared to put my stamp of approval on a license holder in Collier County -- and I do understand what you're saying, both Mr. Crawford and -- and Mr. Nonnenmacher, about the fact that being a subcontractor, like you're talking about, makes sense, and I understand it. And I think I've seen it a few times in the past as well. But I just don't want it to be said that if anybody wants to come into town and it doesn't matter what's going on with them, they want to do carpet, that if I were a carpet company, I would feel pretty tough about somebody in the county allowing every one of my employees to march down here and get a license and do business against me should they want to. And that's just about what we're doing if we grant this one, in my own personal opinion. MR. JOSLIN: I have one question: This doctor's report, this little note that we've got here in the packet, was this something -- this epilepsy, is this something that happened as a child? MR. RODRIGUEZ: No, this happened after -- I was in the military. It was a based -- actually, it was a -- I walked into a -- I mean, they -- a brawl when I was coming back from a PX, and they were having a -- a race riot in the barracks. And I walked into the door and opened up the door, and I became a part of the -- the riot, and that's exactly where all that came from. And I woke up two days later with a -- a face that looked like Bozo the Clown. You know, it was just out to there. It was an amazing thing to witness for the brief few seconds. So that's where all that came from. MR. JOSLIN: Okay. MR. NONNENMACHER: Mr. Chairman, maybe I'm feeling a little overpatriotic at this point, but it is a carpet license. It is a business and law license. Again, we have a gentleman that, just by Page 32 September 19, 2001 looking at him, he seems to be a hard worker, had financial problems maybe due to his medical condition. He served our country, and by doing that, although it wasn't an act of war, came out damaged from it. Again, we're probably one of the few counties -- I think there's one other county -- that actually makes people get a floor covering license. Again, maybe a little overpatriotic, but staff has no objection whatsoever if this board will allow him to get a license. CHAIRMAN HAYES: I'm going to have to tell you that that carries a lot of weight with me, Mr. Nonnenmacher. In the past we have asked for your input on applicants swaying whether they come or go or approve or disapprove, and you've been able to give it -- and I don't think I can remember very rarely do I hear comments like you just stated. Once again, what I'm concerned with is I -- I would hire him in a minute as an employee, but should he be released as a contractor able to -- able to do business with anybody he wishes -- we're not just talking about a restricted license that he can only do business for a reputable carpet company. He's actually going to be released on the public as a businessperson based on our verification of his ability to perform. That's my concern more than anything, Mr. Nonnenmacher. I think that there's enough evidence in the packet to -- to attest to the fact that he's definitely a man of his word. He does as best he can with the carpet business. He seems to know what he's doing. But, once again, the evidence of the credit report says he doesn't quite understand that when he charges something he's supposed to pay it. And I'm concerned that that could be the same thing with material, problems with an individual, perhaps a homeowner. I'm -- I'm totally sympathetic with you, and -- and you -- your comments have definitely touched me as far as in normal condition. If there was any evidence that Mr. Rodriguez has an ability to understand business, then I, perhaps, would consider waiving it all. Page 33 September 19, 2001 But we're talking about a business license, are we not, with no restrictions? MR. NONNENMACHER: That's correct. Floor covering. CHAIRMAN HAYES: What's the pleasure of the board? MS. WHITE: I would like to see Mr. Rodriguez attempt the oral exam. He hasn't taken the business and law, so we don't know that he knows anything about that. MR. NEALE: That's -- that's the only exam that would be required for this license. MS. WHITE: Right. And the second thing is, the credit report shows us his track record with business and law is not real good. So those two things bother me. CHAIRMAN HAYES: Well, that's what I'm saying, the only evidence we have in front of us indicates he is not up on business and law, one way or another. Now, that's fine as long as he's wanting a license. For example, as a plumber we have a journeyman license; that doesn't allow you to be in business. That allows you to work as a journeyman. I don't see any reason why this gentleman couldn't be a journeyman and a darned good one. But to give him a master's license -- I mean, I understand that carpet laying is not rocket science. But I also understand that business is business, and that's the purpose of the business and law exam. Mr. Rodriguez, you -- you have not been able to sit through the written exam. MR. RODRIGUEZ: No. CHAIRMAN HAYES: Mr. Neale mentioned earlier about the possibility of an oral exam. Would you be willing or interested to attempt that? MR. RODRIGUEZ: Sure. I'll try, yeah. I mean, that's all -- I can try, you know, I mean, I did before, and I -- I can try it again. I mean, it's just -- again, it's -- it's a lot of understanding and -- if Page 34 September 19, 2001 someone's -- if someone says more to me -- if I visually watch it or something like that, I -- I can understand it more. But if I sat there and I read this, I can't. It -- it won't come. It won't come to me because you-- it's like you'd have to beat it into me, like, two or three times for me to get it. CHAIRMAN HAYES: It sounds to me like, though, if I were to ask you a question, not in writing, but verbally as I'm asking right now, that you don't seem to have a whole lot of problem with returning a response. MR. RODRIGUEZ: Exactly. But if I sat there and I read this, this is moving on me right when I look at it right -- right now. CHAIRMAN HAYES: I guess it is possible that we could consider some form of a temporary. Again, I don't want to burden the county with a whole lot of flags on timely activities, and sometimes we seem to do that. And I don't know what kind of check and balance, Mr. Neale, there could be in the system to make sure that it comes back up. But, you know, if we did the same thing here and, perhaps, recommended a temporary license, give him 12 months to apply and successfully pass the business and law exam orally, then in 12 months we could rereview it and find out what the status was. In the meantime should this gentleman take that exam and pass it, then he wouldn't even have to come back in front of the board. I just don't believe -- and I may be wrong, but I just don't believe that anybody here is ready to jump up and down about giving a license with a credit report like this. MR. LLOYD: Correct. MR. JOSLIN: How often is this test given, Mr. Nonnenmacher? MR. NONNENMACHER: Every day of the week in Gainesville. MR. JOSLIN: Every day of the week. I probably would go along with that thought of Gary's, but I think I would probably just Page 35 September 19, 2001 want to back it down to maybe six months for the time and grant a six-month license. That will give him time to be able to go and hopefully pass the test, take it orally, and also be able to give him a chance to see how the next six months of the pay record goes of paying the bills. In six months we'll know if you're going to do it or not. MR. NEALE: I would suggest to the board also that -- that Mr. Rodriguez be permitted, if-- if he wishes, and if it's permissible, if he can get a statement from a -- a physician stating that he has a disability that does not permit him to be able to adequately read and respond as opposed to just this anecdotal note in the file. MR. RODRIGUEZ: Sure. MR. NEALE: That the board would have to review that, too, because that may be provided for under the Americans with Disabilities Act, so I would suggest that the board would do that. MR. NONNENMACHER: One thing on that six months. That would be a little more of a burden on staff. Licenses, as you know, expire at the end of September. If we could make it a year, the flag would automatically come up during renewal time. So if six months is that important, we have no objection. One year would be better. CHAIRMAN HAYES: Well, we have two options. We can say that, no, we won't grant a license. And in six months try to take the -- attempt the test orally. And if you pass it in six months, then we won't have any problem approving your license. However, if you pass the test, he won't be coming in front of us again. On the other hand, we can recommend that he have a temporary license, and if you wanted to, for the length of time, that we decide, and bring it back up for review in that length of time and should this gentleman not be able to pass the exam, then we can make another judgment based on either improvements on the credit report or testimonies to being in business and -- and further approvals of Page 36 September 19, 2001 business activities. So we have two options. And, of course, we have the third option of denying anything, period. MR. CRAWFORD: Crawford. I like the second option. MS. PAHL: I like the second option. CHAIRMAN HAYES: Okay. Somebody want to make a motion? MR. CRAWFORD: If I can get this right, I make a motion that we issue a temporary license to Mr. Rodriguez for a one-year time frame based on review one year from now, based on his credit status, and his attempt at an oral license in Gainesville. MS. PAHL: I'll second that motion. 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: Very well. Mr. Rodriguez, do you understand what we're trying to do for you? MR. RODRIGUEZ: Yeah. How would I go about it for the oral exam? CHAIRMAN HAYES: Mr. Nonnenmacher-- MR. NONNENMACHER: Come in and see us tomorrow, Mr. Rodriguez, and I'll help you out, Mr. Rodriguez. MR. RODRIGUEZ: All right. MR. NONNENMACHER: If you could be in, like, 8:30, quarter to 9. MR. RODRIGUEZ: Okay. Thank you. CHAIRMAN HAYES: Mr. Nock-- Nonnenmacher, our designated custodian of the exam. Page 37 September 19, 2001 MR. JOSLIN: Where's your flag? MR. NONNENMACHER: It's in the back of my county truck. MR. JOSLIN: There you go. CHAIRMAN HAYES: Michael Faulconer, request to reinstate masonry license without retaking the exam. Mr. Faulconer, are you here? (No response.) CHAIRMAN HAYES: I believe we make it a habit of not acting without presence of the individual. MR. NEALE: I would suggest to the board just continue this to the next meeting -- CHAIRMAN HAYES: I would suggest the same thing. MR. NEALE: -- because I -- from my reading of this letter, I would think the board will find it fairly easy to act on this one. CHAIRMAN HAYES: I -- in reviewing the packet, I agree. But I just definitely do not want to try to take an action without his presence. James L. DeMarco, review of the credit report. Mr. DeMarco, are you here? (No response.) CHAIRMAN HAYES: Well, we have the packet on this one as well. And, once again, I don't know that I'm satisfied with taking action on it without his presence. So shall we continue this one, Mr. Nonnenmacher? Is there any thoughts on that? Did these gentlemen tell you they weren't sure they could make it? MR. NONNENMACHER: No. They were notified of the hearing, and we expected them to appear. We have all their packets right here. CHAIRMAN HAYES: Uh-huh. All right. What I'm going to suggest is that we continue them to next month's agenda. If there's no Page 38 September 19, 2001 show next month, we drop it from the agenda. MR. NEALE: Maybe to save staff a little bit of effort and all of us getting another pound of paper in our offices, maybe we could all try and keep the data from there until next month so that we -- CHAIRMAN HAYES: Good point. We come to the meeting, and we don't know-- MR. NEALE: I don't know about you, but my office is pretty full of contractor licensing stuff. CHAIRMAN HAYES: Okay. That wraps up new business. Under old business, approval of the ordinance amendments, a second entity form, the use of the revised state form. At the beginning of the meeting today, we were handed those forms. MR. NEALE: If you wish, we can update you on the ordinance amendments, what happened there. Refresh everybody's memory, last meeting we reviewed the -- the board reviewed the ordinance amendments that Mr. Zachary and I had drafted, caught a couple of glitches. Those were -- those were picked up, and also requested that we review with the state and in the statutes what enforcement action could be taken against the license of a state-certified contractor. As they would say in the NFL, upon further review both Mr. Zachary and I concur that the current ordinance contains the maximum enforcement level that this board can take against state-certified contractors as to their licenses. That does not say that, you know, the citation aspects are not available for unlicensed work or work outside of a license. But -- as to actual enforcement as you take against registered or locally licensed contractors, that enforcement ability does not exist as to state-certified contractors. That is reserved solely to the state construction industry licensing board. So the short answer -- to take it out of legalese, the short answer is, what exists in the ordinance now we would recommend is what Page 39 September 19, 2001 stays in the ordinance, that there be no further -- no amendment to that. CHAIRMAN HAYES: The ordinance, if I remember it, adopts 489 by reference. MR. NEALE: Uh-huh. CHAIRMAN HAYES: And 489 empowers disciplinary activities for the local municipalities. MR. NEALE: But not against state-certified contractors. CHAIRMAN HAYES: I understood that that was a -- a 489 amendment in the last couple years changed that. MR. NEALE: Nope. Nope. No. What add -- what was added -- what may have been added in the last couple of years was a broader enforcement ability against regis -- state-registered contractors. But, again, state-certified contractors, there's been no broadening of the enforcement authority of the local board. CHAIRMAN HAYES: So local enforcement people have absolutely zero jurisdictions on any activities that a state-licensed contractor performs? MR. NEALE: Not true. That's not the case. They do have enforcement ability as to the ability to write citations on them for performing work outside of the scope of their license. It has been my interpretation, and I think Mr. Zachary's too, in performing activities outside of the scope or unlicensed or assisting people in performing them, activities -- unlicensed people performing activities, there is the citation authority against them. But as to an action against the license of a state-certified contractor, there is no authority granted to the local boards. MR. ZACHARY: Let me add, other than that specific authority that this board -- and I'm quoting from 489.113 that a local construction regulation board may deny, suspend, or revoke the authority of a certified contractor to obtain a building permit. And it Page 40 September 19, 2001 goes on. And that's specifically incorporated within our ordinance is -- is the one disciplinary function that this board has over the state-certifieds. For a violation of that four eighty-nine one one one -- or forty-nine one thirteen and certain sections of four eight-nine one twenty-seven, which specifically allows this board to, not discipline, but fine the contractors for working outside their scope or, as Mr. Neale said, allowing someone to -- assisting someone into -- an unlicensed contractor so -- but I agree with Mr. Neale. Other than that and for those specific things enumerated in our ordinance which are directly from the statute, this board's limited in its power over state-certifieds. MR. NEALE: And the statute -- just to follow up on what Mr. Zachary said, the statute is quite specific as to the authority of the local boards versus vis-a-vis certified contractors. They-- they have granted to the local boards quite a broad enforcement authority against registered contractors, and that's what this board asserts fairly often. But they have very clearly delimited the authority against certified contractors for the normal forms of misconduct that would be found in, I believe, 129. CHAIRMAN HAYES: Okay. Let me make sure I understand a little bit here. Back -- a few months back we were questioning some wording that we were looking to modify, some ordinance regarding storm shutters, aluminum enclosures, etc., and we were perhaps looking at adopting a license to do that. So we started reviewing some of the other counties and how they handled it. And Charlotte County was one of the places that we reviewed. MR. NEALE: Uh-huh. CHAIRMAN HAYES: I'm-- sitting in front of me that same ordinance, that Charlotte County ordinance that we reviewed under that pretense and in their Section 2.3.4.7, disciplinary actions is any violation of Section 489.129 or Section 489.553, Florida Statutes, Page 41 September 19, 2001 whether by a certified, registered, or local contractor. MR. NEALE: There's on old saying, "Just because somebody is doing it, don't make it right." CHAIRMAN HAYES: That's what I'm saying, so the way we interpret 489 this is stone illegal? MR. NEALE: I wouldn't go so far as to say illegal, but I think it's beyond the -- I think it's beyond the scope of the local enforcement board. How about that? CHAIRMAN HAYES: So, in other words, should the Charlotte County licensing board act on a state-certified contractor, they can not only be overturned by the state but liable for lawsuit. MR. NEALE: I wouldn't want to opine on that. But certainly the state construction industry licensing board does have oversight ability on them, and they could take action to -- one of the actions the state construction industry licensing board, their-- one of their powers that they have is to remove the enforcement authority from a local board. CHAIRMAN HAYES: I would suggest that in Charlotte County's defense they're saying, perhaps, that they are the lower court and the state being the appellate court. MR. NEALE: I wouldn't want to climb into the mind of the Charlotte County attorney. CHAIRMAN HAYES: Okay. Anyway, our original agenda item was reviewing the second-entity qualifying form application that was given to us by the state and the state uses. I'd like to try to get back to that and get that rested, and then we can move on. MR. NEALE: Well, the first item was the ordinance amendments, and I just wanted to get them out of the way. MR. ZACHARY: And just to finish that up, I think with the exception of a couple of things that we needed to take out, we talked about taking out the financially responsible officer. And I think we Page 42 September 19, 2001 decided months ago that we didn't want to deal with financial -- MR. NEALE: So we're just removing that from the ordinance. MR. ZACHARY: Remove that from the ordinance and amending primary and secondary qualifying agents, just adding a title and a little bit of language to that to clean that up. And I think, other than that, it's ready to go. And we'll get it advertised, try to get it to the board. CHAIRMAN HAYES: Okay. So in the next few months, perhaps, we may have us a current ordinance? MR. ZACHARY: I certainly hope that within a couple of months, anyway, we can get it advertised, get the title written, get an executive -- executive summary down to the board, talk with -- I don't know, is it Mr. Nonnenmacher and I will do it or just myself, talk with the individual board members alone just to alert them that it's a recommendation of this board that that's what needs to be done so it will go a little bit more smoothly when it comes before the board. MR. NEALE: Yeah. In fact, it would be probably be in good order, based on the -- the changes that we've -- we've advised you of today that if this board would today take action to recommend to the Board of County Commissioners the -- the approval of the amendments to the contractor licensing ordinance, 99 -105. CHAIRMAN HAYES: So you'd like for us to make a motion that we adopt the reviewed and amend -- and amend -- review -- reviewed amendments to the contractor's license? MR. NEALE: Mr. Zachary just made a suggestion. I concur with it as possibly what we could do is we will have a form -- a done ordinance with all the changes incorporated for this board to review prior to next month's meeting. So what we could do is have it distributed. Then you can make the recommendation at next month's meeting. Prior to that time, Mr. Zachary and -- and Mr. Page 43 September 19, 2001 Nonnenmacher and I can begin lying the -- laying the groundwork so that when we -- when you make your recommendation for approval, that can go directly forward to the board, and hopefully by the end of this year we'll have a -- have the amendments in place. CHAIRMAN HAYES: Excellent. Sounds good to me. The board have any other thoughts on that? (No response.) CHAIRMAN HAYES: We have had the ordinance amendments handed to us, the drafts. And we've been reviewing that for our new member. Mr. Lloyd, I don't think you probably are in possession of those amendments. MR. LLOYD: No. CHAIRMAN HAYES: If there is some way we could get a copy to Mr. Lloyd for his review as well. We -- the rest of us have it -- have the draft of proposed changes that was handed to us quite a few months ago. So if there is any way that we could -- in fact, what we were handed was the proposed changes -- proposed changes; it wasn't the entire ordinance. It was just the pages that required changes, and we've been able -- we've been reviewing those for three, four months, five months, something like that. MR. NEALE: And -- and the way this ordinance will probably be amended is as opposed to creating -- redoing the whole ordinance is at this point what will be presented to the Board of County Commissioners is just the amendments, the -- just as you have there, the -- the smaller versions, rather than reprint a whole new ordinance. Then when it comes out in the codified version, it will be amended. CHAIRMAN HAYES: Right. MR. NEALE: We'll make sure Mr. Lloyd gets a copy of the proposed amendments, a copy of the current ordinance, and a copy of the codified ordinance so at least he can follow along with the choir as we're singing here. Page 44 September 19, 2001 MR. LLOYD: Okay. CHAIRMAN HAYES: Okay. I guess now we can move to that application for second entity. This is more than just the application for the second entity, or is this just application for second entity? MR. NEALE: It's -- it's two pieces. It's the application for second entity, and also it is the guidelines for filling out the application. And those guidelines include all of the -- all of the information that someone has to bring to the -- to the staff to -- to submit an application. And what we tried to do is -- so that when someone takes this first -- the second-entity qualification guidelines, that tells them what they've got to put -- put together to take to staff. And then the application to qualify goes through and has all of the information in one place. As you'll see on page 3, 4, 5, those pages are taken somewhat directly from the state application with some modifications that Mr. Zachary and -- and I worked on. And what -- as you can see by reviewing them, they answer the questions that this board normally asks so that if someone has fully filled out this application, the board should be able to review it when they get their packet, have all the questions answered, and be able to expedite the process a little bit for doing this. Some of the questions that I think I've heard over the years that I've been representing this board, I've heard a lot of times is, "Why do you want to keep your present license while qualifying this business?" and, "Has this proposed entity been previously qualified?" and, "Why is the guy that was qualifying it before, why didn't he want to do this anymore?" So, you know, there's some very pointed questions in here. This -- we're asking this board to review it because some of the questions are a bit intrusive, but I think that may be the way the board wants it, is we're saying list the last three jobs that you've completed Page 45 September 19, 2001 and who you did them for and what was the previous qualifier and who was the owner of the property. Prin -- who's your principal suppliers for both businesses? If there's anybody else authorized to pull permits on your license, who are they? And then how are you going to be paid? How are you paid by the business you're currently qualifying? How will you be paid by the new business? The reason that this is in there, I'm sure, and the reason that we propose keeping it in, is this board, I know, is extremely concerned about the possibility of a rental license, and this avoids the rental license or at least -- CHAIRMAN HAYES: Uh-huh. MR. NEALE: -- sure makes it a lot harder for somebody to get around it. The next question, how do you own the business -- you know, what percentage of ownership? Number L is a question that this board always asks: Do you have check-writing authority? And not only does he say it, we're asking that they bring a letter from the bank saying that they have check-writing authority. So this will impose a greater burden on the people applying, but I think it will make staffs job a little bit easier because they're not going to have to spend so many hours saying, "Well, bring me this, and bring me that. And how do I know that you've got this?" Mr. Nonnenmacher will agree, it may make their job a little easier in doing this. Notarized statements. But P is one that is sort of unique, and Mr. Nonnenmacher and I talked about it quite a bit. We're asking them to provide notarized statements, both from the entity they presently qualify and the proposed entity saying that both businesses know about each other and know what this guy's doing so that he can't be going out and -- you know, he is the qualifier for someone and out shopping his license to someone else just to pick up some Page 46 September 19, 2001 extra money, because both businesses have to know about what's going on. MR. CRAWFORD: Mr. Neale, do we have continuing- education requirements for -- MR. NEALE: Well, the reason that was put in there -- and it probably should have an "if applicable," is certain registered contractors do have education requirements, continuing ed. requirements. And so what we propose is that if it's a registered contractor seeking to serve -- to secondarily qualify a registered contracting license, that he's going to put his continuing ed. Requirements on the line and make sure that they're up to date. Page 5 goes more to the -- the financial responsibility questions. And, you know, that was something that was a topic today and in great measure, is this -- has them go through and answer really pertinent questions, you know, have you ever had any claims or lawsuits filed or unpaid or past-due accounts by your creditors as a result of construction operations? You know, very direct business- related questions. And then you note at the bottom of it there's a note that says, "If you answer yes to any of these questions, you have to supply a complete explanation of the response and include a statement detailing the steps taken to prevent a recurrence of the circumstances." You also have to include proof of payment, satisfactions of liens, etc. So it's very specific, and if you see a bad credit report the person or something like this has happened, the person is going to have to provide a statement of what happened and a clear description of-- And here's what I'm doing to fix it. So, you know, and I don't -- that -- that will make this -- I think it will make this board's job easier in that some of the questions that you ask, some -- you'll have something in front of you. And instead of the person trying to make it up on the spot, they're going to have thought Page 47 September 19, 2001 about it ahead of time and actually done something about it. So it's -- MR. CRAWFORD: Something new at the bottom of page 5, Item 7, second-to-the-last sentence, it says, "For newly formed businesses, please submit three construction-related suppliers, letters from three construction-related suppliers indicating that an account either exists or has been open for" -- MR. NEALE: Uh-huh. MR. CRAWFORD: Which is okay. I just wonder if we're asking for too much. MR. NEALE: Well, that's -- that's the reason we submitted this to the board for review because if-- if the board thinks that what -- and staff, if they think what we're asking for is too onerous, let -- let Mr. Zachary and I know, and we'll make changes. But we wanted to have something here that you can -- CHAIRMAN HAYES: Well, in that light, though, as long as I've been in the State of Florida, I've been told that local municipalities -- municipalities have the right to amend or modify local codes, ordinances, administrative codes, as long as it's more intense than the state's. We can't say that you can do less than what the state says you can do. If this is their application, we've been violating state statute for some time. MR. NEALE: Well, not really, because this is -- this is not really adopted by rule or by statute. CHAIRMAN HAYES: Not as part of the administrative code? MR. NEALE: No. This is the procedure that they use. You know, it's -- it's not a -- it's not statutorily required. This is what the board has adopted, the state board has adopted, as being their official application. CHAIRMAN HAYES: MR. NEALE: By rule. CHAIRMAN HAYES: Okay. By their rules. Well, by the same token then, I still say Page 48 September 19, 2001 that we -- if we possibly can modify and soften the blow on some of this, that's possibly something we need to review, Mr. Crawford. But I'm going to also tell you that if this -- one of the reasons We're looking at this form was to conform with the state overall. And for us to not want some of these requirements, we are second-guessing the state. And I don't have a problem with that. Everybody knows that the state level may not, perhaps, agree with the local municipalities on a lot of issues, so this won't be any different than that. But I do want us to understand that when we do modify what we have received here from the state that we are overriding what we feel the state thought was pertinent. Mr. Nonnenmacher, on that line as well, you reviewed this form and had input on the modifications so far.'? MR. NONNENMACHER: I was handed the form the same time you were, and I will review it. I haven't as of yet. MR. NEALE: We just finished it up, and it's hot off the press as we finished it up. CHAIRMAN HAYES: Do you have it in elec -- electronic format now? MR. NEALE: Yes. Both Mr. Zachary and I both do so... MR. ZACHARY: And it is -- it is a work in progress because certain things like fees and -- and the form that we have now sets out various fees. We -- we sort of left that blank because we need to -- we need to review, obviously, what you -- what else you want to incorporate or what else you want to take out. I mean, this is the first -- CHAIRMAN HAYES: First draft. MR. NEALE: And we're also looking to staff to say whether they want this to be purely a second-entity form or whether they want an additional page on it or -- or somehow modify the front page so that it's -- it can be a change of status form also. You know, the state Page 49 September 19, 2001 has a separate change of status 'form. So, you know, those are -- those are issues that certainly the more input the better. MR. ZACHARY: Yeah. But not to create more work, but also whether you want to change the other form to incorporate some more of these kind of questions and -- in our initial application for -- for a license. So, I mean, those are things that staff and myself and Mr. Neale can talk back and forth and get that input. MR. NEALE: Because that's one of the things is -- and we certainly are looking for Mr. Nonnenmacher's and his staff's input on -- if some of these questions can be answered on this form, would it potentially reduce the number of licenses, does it have to get -- get referred to this board? That I -- I can't answer. But it's something certainly to discuss. Or if a license is referred to this board other than for a qualification of a second entity, would some of these questions be pertinent to that? So would there be any, you know, license referral form, something like that. Those are questions up in the air. CHAIRMAN HAYES: I would ask, then, Mr. Nonnenmacher, that your office do spend the next month reviewing this a little bit and make some recommendations for additions or deletions or amendments of any form, as well. You're the one -- your office is the one that's going to have to fill in the blanks or see to it that they are filled in. And I feel that you need to know pretty well what you're asking. This will become a format, even a mental format with you after a while. All questions are answered, or are there more or less that we need to know? From a legal standpoint, this is a great first draft. I'm thrilled to death that we've gotten this far with it this quick, but I would like to have it fully approved, endorsed by your office as well. MR. NEALE: And just as a note, this board -- this form can be adopted by this board by rule. So -- because the board has -- has the power and the -- and the mandate, frankly, to adopt rules and Page 50 September 19, 2001 procedures of its own. So this would be something that this board can adopt by rule, and it would be public record. CHAIRMAN HAYES: So, perhaps, we can leave it on the agenda as old business for next time, and we'll review this thing from your input perspective? MR. NONNENMACHER: Yes, sir. MS. WHITE: Chairman Hayes, I have one comment before we go on. Mr. Neale, I would love to see on the first page of the form -- MR. NEALE: Uh-huh. MS. WHITE: -- something very simple. Name of business you presently qualify and name of business to be qualified. MR. NEALE: Okay. MS. WHITE: Right next so that from the get-go I know where to start as I go through the whole entire form -- MR. NEALE: Okay. MS. WHITE: -- so mentally I can categorize the two right on the first page, because that is just about always our first question. MR. NEALE: Uh-huh. And it's always hard to find in Question No. 9. MS. WHITE: It's always hard to find question No. -- and the applicants don't understand Question No. 9 anyway so many times. Just so it's very clear on the front page the very two -- you know, the names of those two businesses. MR. NEALE: All right. CHAIRMAN HAYES: Well, also, I would suggest -- and this board now has a copy of the first draft -- that we review it and perhaps bring any other recommendations or suggestions at next month's meeting as well, and we can just make this one of our orders of business that we get everybody's input, and perhaps we can get this thing in print and get it use -- used as soon as possible. There's no question in my mind that it would simplify our process. Page 51 September 19, 2001 And, Mr. Nonnenmacher, I'm going to tell you there may be some complications in here in asking a lot, as Mr. Crawford mentioned, from the applicant themselves. But if they go through all of that, they -- your job is going to be simpler in the long run as well. The -- in first view of this, this looks like this is answering every question that you wanted to ask of them as well. MR. NONNENMACHER: Yeah. Well, when I get back, I'll set up a meeting with Maggie and Karen, and we'll go over the form, and we'll input our suggestions and recommendations. CHAIRMAN HAYES: Super. Okay. That concludes old business. Public hearing: Charles M. Abbott contesting Citation 0989 issued on June 27th, 2001. Mr. Abbott, are you here? MR. NEALE: I would -- I would suggest it might be time for a break because this may take a while. CHAIRMAN HAYES: I apologize. Then that may be the thing we need to do. MR. BRYANT: That would be appropriate, Mr. Chairman. CHAIRMAN HAYES: Okay. Why don't we break for ten Thank minutes, and then we'll call it back to order and hear the case. you. (A short break was held.) CHAIRMAN HAYES: I'm going to call this meeting back to order. Once again, the public hearing's Charles M. Abbott contesting citation. Mr. Abbott, would you come to the podium. MR. BRYANT: May it please the board, Mr. Chairman, I'm David Bryant. I represent Mr. Abbott. And he's not prepared to approach the -- the microphone right now. MR. ZACHARY: Mr. Chairman, Robert Zachary, assistant county attorney. There was a material witness in the chambers here earlier this morning that was someone necessary for the case for the Page 52 September 19, 2001 county. Mr. Ossorio had prepared a subpoena for that individual. But since he was here, he did not serve that subpoena, and now that individual has chosen to not be here. So for that reason we would request that the -- the case be continued to the next regular meeting so that that person can be served with a subpoena to make sure that he is here and remains here to testify on behalf of the county. MR. BRYANT: May it please the board -- CHAIRMAN HAYES: Mr. Bryant, you're going to have to go to a microphone. MR. BRYANT: May it please the board, Mr. Chairman. I strongly oppose that continuance. Mr. Ossorio has the responsibility to bring this case. If he'd prepared his case, he would have subpoenaed his witness. We are here. I would submit that jeopardy has attached, that a continuance is not proper now. I specifically asked Mr. Ossorio, "Did you subpoena your witness?" and he said, "No." It's his responsibility and the government's responsibility to go forward. We have waited since nine o'clock. And, for the purpose of the record, it's eleven o'clock for this hearing, and I would oppose that motion for continuance. Thank you, Mr. Chairman. CHAIRMAN HAYES: Mr. Nonnenmacher, do you have any thoughts on the outcome of this case regarding this witness? MR. NONNENMACHER: Well, as Mr. Zachary said, he is a material witness in the case. He did appear -- MR. BRYANT: May it please the board -- CHAIRMAN HAYES: I can't have you talking from there, Mr. Bryant. MR. BRYANT: I'm sorry. May it please the board, Mr. Chairman. I would object to Mr. Nonnenmacher representing to the board what a witness is going to testify to. The witness is the best evidence of that testimony. I would submit to the chair that he could Page 53 September 19, 2001 say, "Yes, we need the witness" or, "No, we don't need the witness." but to start expounding on what that witness might say and why he's important or not important, I would strongly object to that. It's a gross hearsay. And even at administrative hearings when some hearsay is admissible, it cannot be the only evidence that an administrative agency has to rely upon. And I would submit to the chair and the board that it would be improper for Mr. Nonnenmacher to reference to the board what that witness would say. And I hate to keep getting up and objecting, Mr. Chairman, but if I don't the record won't be clean, and we won't know where we are. CHAIRMAN HAYES: I understand. MR. ZACHARY: Mr. Chairman, I don't think Mr. Bryant -- I couldn't say it any better than Mr. Bryant. It would be best if we heard it from the witness, and that witness is not here. CHAIRMAN HAYES: I agree with that. By the same token, Mr. Zachary, I'm going to call on you, representing the county, to be the one to make significant recommendations or distinctions to the board at this point regarding the presence -- need of the presence of this witness. It sounds like, from what we've heard so far, that we're going to be in somewhat of an extensive hearing. It's not going to be five minutes, ten minutes of sitting here listening to this and then be done with it. I don't want to violate any legal direction or format. However, I don't want to cut this case short because we're not -- got all the facts as well. Do you have any suggestion on that? MR. ZACHARY: As far as -- I disagree with Mr. Bryant that jeopardy has attached. At this point we haven't begun the proceeding other than preliminary matters. There haven't been any witnesses sworn. So that -- I don't think there are any -- there is any legal problem with continuing this. And you might want to ask Mr. Neale Page 54 September 19, 2001 whether he concurs with that since he is actually the -- the attorney to the board. CHAIRMAN HAYES: Mr. Bryant, it's been our way of doing things that we're not a -- a judge and jury up here, and we don't try -- any more than we can help -- to act like a judge and jury. However, we are a -- a hearing entity. Most all of us, if not all of us, are of nonlegal backgrounds, and so we try to do our best to rely on our legal support and recommendation and guidelines. One of the things we do try to do is to hear both sides. This is, as far as we're cmqcerned, a legitimate hearing, and we want to try to hear both sides and all of the facts prior to we -- making a recommendation. If during this hearing today we came to a conclusion that we needed further information or input, it would probably end up getting continued anyway. So I'm concerned with -- with our need to, perhaps, go forward or leave it for next month regarding all the information that we need. Once again, I'm trying to say to you that we're not legally versed enough to be able to act on anything other than what we hear as -- from the hearing, the presentation in front of us. MR. BRYANT: I appreciate that, Mr. Hayes. And I appreciate your sharing those comments with me. However, this board is bound to follow Chapter 162 that provides for formal hearings. And it has a special -- or it has statements in that.statute that says that fundamental due process is forwarded to the licensee or the person that is the subject of the complaint and the hearing. And so notwithstanding you're not attorneys and you're not judges, as such, you are acting as an administrative law judge group when you render your decision and issue your findings of fact, conclusions of law, and your decision. And you're bound by Chapter 162 that provides what a formal hearing -- or how it's to be conducted and what is required. So I submit to you that basic due process -- which the statute Page 55 September 19, 2001 says that the licensee in this case or the subject of the complaint is afforded and is entitled to requires that this complaint be dismissed because the government has not done its job. It's not Mr. Abbott's responsibility to bring their witnesses here. It's their responsibility to go forward. They've known about this case since June, I think it is. I think that's enough time for them to subpoena -- they said is -- this real important witness. If he's so important, why didn't they subpoena him? It would have been real simple. They were able to chase Mr. Abbott down with the sheriffs office to serve him out at La Playa when they could have just mailed it to him or taken it to his house, the citation. I think they could have at least subpoenaed their own witness. Thank you, Mr. Hayes. MR. ZACHARY: Mr. Hayes, due process cuts both ways, so I think the county is also entitled to have all of the witnesses that they have available to them here at the hearing. And the witness was here, and for whatever reason he left. So I don't know. CHAIRMAN HAYES: I'm going to suggest that that's possibly true. Given the gravity of the contest of the citation, perhaps they've known since June but weren't quite aware of the intensity of a defense that, perhaps, was going to be backed up against it. I don't know. The -- as you say, Mr. Bryant, the due process of law, I agree with that. What I'm concerned with at this point is that if the county was truly aware that the mounting of this defense would be greater than just a normal citation hearing, then it may be that they would have bottled all the due processes. However, we hear citation hearings regularly, and rarely do we have witnesses subpoenaed. MR. BRYANT: I can appreciate that, Mr. Hayes. But that's not the issue, with all due respect. And I say that very respectfully, having known you in many capacities. Just because other people, in essence, roll over and just come Page 56 September 19, 2001 down and throw theirselves on the mercy of the board and on the government, that doesn't determine and doesn't make the decision whether or not a person isn't entitled to mount all the defense they want. It might look like a very insignificant thing. Sure, Mr. Abbott could have paid $300, and we all Wouldn't be here today. We all have a lot of important things to do. But that's very important to him. They knew that we were going to contest that. Mr. Ossorio and I had several conversations about that. That is not something brand new to them. They knew that this case was going to be one that was going to be strongly contested because of our position on the law and the facts. MR. ZACHARY: Mr. Chairman, just one more thing that I might add. The county was certainly aware that this case was going to be rigorously defended. And we were prepared as fully as we thought was necessary to vigorously prosecute the case. We had the witness here. Mr. Ossorio did not subpoena him because he assured him that he was going to be here. He had a subpoena prepared on his desk. But if somebody -- unfortunately took this witness at his word, and now the witness is gone. And that's -- you can twist it around however, but that's simple fact. We were prepared; we were ready to go. We had all our witnesses that we need, and one has disappeared, MR. BRYANT: I would object to that, Mr. Chairman. I agree with Mr. Zachary. He knew this case was going to be a very hotly contested matter. Mr. Zachary's been in the state attorney's office, just like I have. He doesn't go into court hoping that his witnesses were going to be there at a trial. He made sure they were subpoenaed, just like I did. I would like Mr. Ossorio put under oath, and I'd like to question him about whether or not that subpoena is sitting on his desk because Page 57 September 19, 2001 I don't really -- I'm not convinced that that subpoena has been prepared. I'd like to hear him testify that it has been and that he was going to serve it but he didn't serve it, because I am really concerned that no subpoena was ever prepared for this witness because everybody just thought everybody would show up like they were supposed to. And in all due respect to the board, this is a very serious issue to Mr. Abbott, and that's why we are so concerned about how this case has been handled, because of the things that have taken place that we believe it is just a total travesty at the way this citation was handled toward Mr. Abbott on a personal basis. MR. NEALE: If-- if I may, the issue before the board at this point is whether or not to continue this matter. The further this board in -- in my opinion, the further this board proceeds down the road of taking testimony and additional argument from counsel and from witnesses, the further this board proceeds down the road of jeopardy potentially attaching. It is my opinion that at this point jeopardy has not attached. However, I would recommend strongly to the board that the board review what's been presented to this point and determine whether a continuance is appropriate. As Mr. Zachary stated and was admitted by the respondent, the witness was here. He did voluntarily show up, as far as I know, and has somehow disappeared. The -- staff does have the power to issue a subpoena. It's the -- in this board's discretion to determine if, A, a continuance is appropriate and, B -- and -- and to think, in their own terms, whether due process would still be afforded to Mr. Abbott and to the county should this matter be continued for one month, time certain, with certain parameters. So, really, that is the issue before the board. As I say, I would suggest that the board would -- would do well not to hear additional testimony and -- and argument on this matter. Page 58 September 19, 2001 CHAIRMAN HAYES: I tend to agree with you, Mr. Neale. Our goal on this board and any -- any board member is more than willing to jump in here any -- at any time, but our goal here is to get to the bottom of the facts. And should there be a travesty, then that travesty will unveil itself. I accept the fact that it has caused great inconvenience. You have been here since nine o'clock, and you've had to wait through everything else. Now here we go, we're talking about suggesting to change it to another month and start all over again, and I understand that that is an inconvenience. However, does that actually defer from the findings of the facts and conclusion of law to the extent that this board is satisfied that they've heard everything they need to hear, and then we can appropriately take action. Does anybody have any other comments on the board? MR. CRAWFORD: I just -- I don't mean to offend anyone, but this seems to happen a lot. We start public hearings, and we spend an hour deciding whether or not we're going to hear the hearings. So I'm -- I'm just a little frustrated. CHAIRMAN HAYES: This is not the first time this has occurred, and I agree with that. MR. JOSLIN: There is no doubt, though, as members of this board, we are bound to be able to hear all the facts. And if our county attorney tells us that -- as a representative that the facts aren't all -- aren't all in anyone's favor at this point, than I think it's -- it behooves us to be able to hear all the facts. And a continuance, I don't think, would be out of line. MR. LLOYD: I agree with that. CHAIRMAN HAYES: Mr. Neale, I think, maybe, perhaps, we need to make a motion as to whether we want to continue this or not. MR. NEALE: That's precisely what would need to be done. CHAIRMAN HAYES: We can vote on the board whether we Page 59 September 19, 2001 continue it. If the motion fails, then we -- we'll hear it and so on. Anybody want to make that motion? MR. JOSLIN: I'll make the motion. I'll move that we continue the case until next month so it's put on the agenda and that all witnesses all -- for the county or for defendants shall be notified by subpoena and that we hear the case next month. CHAIRMAN HAYES: I have a motion. I need a second. MR. LLOYD: I second, Lloyd. CHAIRMAN HAYES: I have a motion and a second. Any further discussion on the board? (No response.) CHAIRMAN HAYES: All in favor? (Partial response.) CHAIRMAN HAYES: Opposed? MS. WHITE: Aye. CHAIRMAN HAYES: Aye is who? MS. PAHL: Sara Beth. CHAIRMAN HAYES: State your name. MS. WHITE: Sara Beth White. CHAIRMAN HAYES: Okay. The motion carries that we continue it until next month. Mr. Bryant, I apologize for the inconvenience. MR. NEALE: If I may caution the board of one thing now that the board has decided to continue this. This -- as Mr. Bryant correctly stated, in this instance the board is sitting as administrative law judges. As Mr. Bryant has also said, it's a very serious matter, at least to Mr. Abbott. I would strongly caution the board, because of the fact that you're sitting as judges in this matter, that it is no more appropriate for you to have conversations or communications with either side of this case between now and October 17th when they all appear here than it would be for you to call up a judge in front of Page 60 September 19, 2001 whom you have a case pending and talk to him about that case. So if you receive communication on this matter from Mr. Bryant, Mr. Abbott, Mr. Zachary, or any member of staff, those communications should be terminated, and you should refuse to have any such communications. Those would be considered ex parte communications in what is truly aquas -- more than a quasi-judicial matter almost. I would strongly urge this board in con -- and caution this board that no ex parte communications should be permitted. And I also would caution both parties on that, that ex parte communications are not appropriate in this matter. MR. BRYANT: Mr. Neale, I understand that. That's something, I think, we all know as officers of the Court. And I expect that the board does, but I appreciate your comments on that. One problem I have, I'm scheduled for a five-day trial this time next month in October with Judge Hayes. If we could continue it to November or another time, I would greatly appreciate that. CHAIRMAN HAYES: I don't have a problem with that either. The inconvenience that the county has caused in your condition, situation today, I think that this board wouldn't have any concerns over continuing it to the November meeting if that would be more appropriate, unless we hear anything from our people. MR. NONNENMACHER: Mr. Hayes, I have no objection to that at all. I do want to remind the board that the November meeting usually does not take place due to board members leaving the state for Thanksgiving. As I said, I have no objection. I'm sure staff has no objection. Maybe if the board could be polled at this time to see if vacations are going to be taken for Thanksgiving. CHAIRMAN HAYES: Mr. Neale, do you have any suggestion there? MR. NEALE: I mean, the -- as best as I can tell, the November meeting would be scheduled for November 21 st. Page 61 September 19, 2001 MS. PAHL: And Thanksgiving is November 22nd. MR. NEALE: Thanksgiving is the 22nd. CHAIRMAN HAYES: Any concerns on the board? MR. NEALE: The December meeting is on the 19th. MR. BRYANT: That would be fine, Mr. Hayes. The December meeting would be fine. I certainly understand everyone having time that they want to spend with their family during the holidays. CHAIRMAN HAYES: How about the board's input on that? MR. LLOYD: I want to be fair to both parties. I would say we move it to the December meeting if that's agreeable to everyone else. CHAIRMAN HAYES: I'm going to suggest that anytime that this board does something like this that I would hope that those members that were involved in making this decision would feel a little bit stronger about the attendance and -- of that particular postponement. So I'm going to suggest that everybody on the board, we look at December 19th and say yea or nay and commit ourselves to that as well. MS. WHITE: Is there a possibility we can move the October meeting up a week? CHAIRMAN HAYES: We -- that's probably a logistical nightmare. We've tried that before when we've done workshops. MR. NEALE: It's -- it's hard to get space. CHAIRMAN HAYES: It's hard to get space. We should at that point in time also, hopefully, have the additional two members of the board, the new members that -- the vacancies we still currently have which may help some with our quorum. Anybody got any other thoughts on December 19th? (No response.) CHAIRMAN HAYES: Then I don't have a problem with it as well, Mr. Bryant, if we can continue this until December the 19th. MR. BRYANT: Thank you, Mr. Hayes. Page 62 September 19, 2001 CHAIRMAN HAYES: Unfortunately, I understand the preparation required and the time it takes to do something like this. We, at the board, just want to make sure that we heard all sides and we understand the conditions before we act on it. MR. BRYANT: And I appreciate that; I certainly do. For the purposes of the record, one thing I would like to ask you and the other board members, you were provided a package of information by staff prior to today's hearing. I'd like to know what specifically was in that package that dealt with the Charles Abbott matter, what documents were in there. CHAIRMAN HAYES: Our -- our standard and normal procedure during a citation review is simply the citation itself is in our packet. MR. BRYANT: That's what I wanted to know. Is that all that's in the packet? CHAIRMAN HAYES: No, sir. In your particular case, your letter is also in here. MR. BRYANT: Just the letter and the citation. CHAIRMAN HAYES: Right. The letter and the citation are in the packet. MR. BRYANT: Thank you, Mr. Hayes. MR. JOSLIN: Oh, one more thing, Mr. Bryant. In your-- in your letter we have dated July 5th, there is one -- MS. PAHL: Error. MR. JOSLIN: -- typographical error in the citation. The number at the top of the page is correct, but there's another entrance at the bottom where it-- you've transposed numbers. citation number. At the bottom you have 898. to check that so -- MR. BRYANT: Thank you, Mr. Joslin. CHAIRMAN HAYES: 989 was the correct You might just want Okay. Mr. Nonnenmacher, do we have Page 63 September 19, 2001 any reports? MR. NONNENMACHER: No, sir. CHAIRMAN HAYES: We're in discussion mode. Anybody have any other discussion today? MR. CRAWFORD: Which two disciplines are we missing on the board? Mr. Lloyd filled-- MR. NONNENMACHER: A general contractor and an engineer. MR. CRAWFORD: General contractor. MR. NONNENMACHER: But keep in mind they do not necessarily have to replace it with those trades. MR. CRAWFORD: Oh. So you-- so if no one -- MR. NONNENMACHER: They do have to be licensed contractors, though. MR. CRAWFORD: So if no one filed-- I assume no one filed for these two positions? MR. NONNENMACHER: From what I understand, the last report I got from Ms. Filson is that they were reopening the application process and waiting for more applications to come in. MR. CRAWFORD: Okay. So what you're saying is that if no general contractors apply, that would be open to -- CHAIRMAN HAYES: No. He said contractors. MR. NONNENMACHER: Yeah. It would open the door to possibly an air-conditioning contractor, a mechanical contractor. MR. CRAWFORD: Okay. CHAIRMAN HAYES: Okay. Any other discussions? (No response.) CHAIRMAN HAYES: We -- are we scheduled -- do we have anything so far on the agenda for the November meeting? MR. NONNENMACHER: Not that I know of. CHAIRMAN HAYES: So it's most likely, given what we talked Page 64 September 19, 2001 about here today, that that won't even occur. MR. NONNENMACHER: That's correct. In fact, we can establish that right now that there will not be a November meeting. MR. NEALE: Okay. CHAIRMAN HAYES: Okay. Good enough. However, at this point October is still on the docket -- MR. NONNENMACHER: That's correct. CHAIRMAN HAYES: -- and is October the 17th. Okay. Anything-- any other discussion? (No response.) CHAIRMAN HAYES: I'll entertain a motion to adjourn. MR. CRAWFORD: So moved. MS. PAHL: And I'll second it. CHAIRMAN HAYES: All in favor? (Unanimous response.) There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 11:24 a.m. CONTRACTORS' LICENSING BOARD GARY HAYES, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY BARBARA A. DONOVAN, RMR, CRR Page 65