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CLB Minutes 01/21/2015 January 21,2015 MINUTES OF THE COLLIER COUNTY CONTRACTORS' LICENSING BOARD MEETING January 21, 2015 �i5 Naples, Florida By LET IT BE REMEMBERED, that the Collier County Contractors' Licensing Board, having conducted business herein, met on this date at 9:00 AM in REGULAR SESSION in Administrative Building "F," 3rd Floor, Collier County Government Complex, Naples, Florida, with the following Members present: Chairman: Patrick White Members: Michael Boyd Ronald Donino Terry Jerulle Richard Joslin Kyle Lantz Gary McNally Robert Meister Excused: Thomas Lykos, Vice Chair ALSO PRESENT: Michael Ossorio — Supervisor, Contractors' Licensing Office Kevin Noell, Esq. —Assistant County Attorney James F. Morey, Esq. —Attorney for the Contractors' Licensing Board Ian Jackson— Collier County Licensing Compliance Officer co er county COLLIER COUNTY CONTRACTORS' LICENSING BOARD AGENDA JANUARY 21, 2015 9:00 A.M. COLLIER COUNTY GOVERNMENT CENTER ADMINISTRATIVE BUILDING BOARD OF COUNTY COMMISSIONERS CHAMBERS ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THAT TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. I. ROLL CALL II. ADDITIONS OR DELETIONS: III. APPROVAL OF AGENDA: IV. APPROVAL OF MINUTES: DATE: December 17, 2014 V. DISCUSSION: VI. NEW BUSINESS: (A) Orders of the Board (B) John E. Griffith Sr.-contesting citation(s) 08724 (C) Bruce Fluegeman-contesting citation(s)09052 (D) Debora Roos- reinstatement of license, Roos Bros, Inc. VII. OLD BUSINESS: VIII. PUBLIC HEARINGS: IX. REPORTS: X. NEXT MEETING DATE: WEDNESDAY, FEBRUARY 18, 2015 COLLIER COUNTY GOVERNMENT CENTER ADMINISTRATIVE BUILDING THIRD FLOOR IN COMMISSIONER'S CHAMBERS 3299 E. TAMIAMI TRAIL NAPLES, FL 34112 • January 21,2015 Any person who decides to appeal a decision of this Board will need a record of the proceedings and may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the Appeal is to be based. I. ROLL CALL: Chairman Patrick White called the meeting to order at 9:00 AM and read the procedures to be followed to appeal a decision of the Board. Roll call was taken and a quorum was established; eight voting members were present. II. AGENDA—ADDITIONS, DELETIONS, OR CHANGES: (None) III. APPROVAL OF AGENDA: Kyle Lantz moved to approve the Agenda as submitted. Gary McNally offered a Second in support of the motion. Carried unanimously, 8—0. IV. APPROVAL OF MINUTES—DECEMBER 17,2014: Richard Joslin moved to approve the Minutes of the December 17, 2014 meeting as submitted. Gary McNally offered a Second in support of the Motion. Carried unanimously, 8—0. V. DISCUSSION: (None) VI. NEW BUSINESS: A. Orders of the Board Richard Joslin moved to approve authorizing the Chairman to sign the Orders of the Board. Ronald Donino offered a Second in support of the motion. Carried unanimously, 8—0. (Note: With reference to the cases heard under Section VI, "New Business,"the individual(s) who testified were first sworn in by the Attorney for the Board.) B. John E. Griffith, Sr.—Contesting Citation Citation: #08724 ("Unlicensed Contracting") Date Issued: November 17, 2014 Fine: $2,000.00 (2' Offense) Description of Violation: Engage in the business or act in the capacity of a Contractor, or advertise self or business organization as available to engage in the business of or act in the capacity of a Contractor, without being duly registered or certified. 2 January 21,2015 John E. Griffith, Sr., was present and represented by his attorney, Adam J. Oosterbaan, Esq. Attorney Oosterbaan presented the Respondent's "Case in Chief:" Opening Argument: • A violation may not have occurred since the work that was performed did not require a license. • Mr. Griffith acted in good faith because he believed he had been licensed to perform the work and did, in fact, obtain his license. Elizabeth Lynn Kosmerl testified on behalf of the Respondent. • She and Mr. Griffith have been business associates for over 10 years and they went into business together approximately one year ago. • She is the Qualifier for the business. • She processes all paperwork for the business. • She is licensed in Florida and holds two licenses: Residential Building Contractor(1986) and Residential Pool Contractor(1999). • She and her husband had established a corporation, "Blue Aqua Pools," and John Griffith had established a handyman service. • They decided to merge the two with the handyman service working under the corporation. • She submitted the paperwork for the d/b/a and fictitious name search; submitted application and fee ($50) required for Form: DBPR CILB-23 to change a business name. • Her intent was to use her Residential Building Contractor's license and not her Residential Pool Contractor's license. • Sunbiz showed the D/B/A went through and was "active." • In April, she received notification from the Department of Business and Professional Regulation ("DBPR") informing her that she had not submitted an application nor paid the required fee. • She re-submitted the previous paperwork and again paid the $50 fee. o Her error: She did not understand that the DBPR wanted new paperwork to be submitted for the Pool Contractor's license. • It was not until the incident occurred that she became aware of her error. • She faxed in a corrected application for the Pool Contractor's license on November 18, 2014 and it was approved the same day. • She has worked in Sarasota, the City of Fort Myers, Lee County, and the City of Naples for the past 20+years. Attorney Oosterbaan asked Ms. Kosmerl if the intention was for Mr. Griffith to work under the Pool Contractor's license. Ms. Kosmerl stated the Pool Contractor's license has been dormant and it was the intention for Mr. Griffith to work under the Building Contractor's license. She called the State to obtain information concerning how to solve the problem. 3 January 21,2015 She identified the first application(Building Contractor's license) which had been submitted to the DBPR on February 11, 2014. The second application(again for the Building Contractor's license)was submitted in April, 2014. The third application— for the Pool Contractor's license—was submitted in November, 2014. The three applications were accepted and admitted into evidence as Respondent's Exhibits "1," "2,"and "3." Attorney Oosterbaan questioned the Witness: Q. Did you believe that Mr. Griffith was, in fact, licensed during this process? A. Yes, sir, I did. Chairman White directed a comment to Attorney Oosterbaan: "You stated earlier that the Respondent was properly licensed based upon what the Witness had done for her license. Could you clarify that, please? Attorney Oosterbaan: Ms. Kosmerl was licensed. Mr. Griffith, under"John's Handyman Service,"was going to work under her Building Contractor's license. The State required that Mr. Griffith also be included under the Pool Contractor's license. Kyle Lantz asked the Witness if she maintains liability insurance for the handyman service and the response was, "Yes." John E. Griffith, Sr. responded to Mr. Lantz's questions: Q. When did you obtain the insurance coverage? A. I have a$1M liability insurance policy for John's Handyman Service and John's Carpentry ... the new policy for this year will be issued for two million dollars. Q. And it has no reference to "Blue Aqua Pools"? A. No. It was noted only the fictitious name was covered and the policy was initially issued on January 17th—Mr. Griffith stated he has maintained coverage for the past 20 years. There was no Workers' Compensation Insurance coverage because Mr. Griffith is exempt—he works alone. Q. Are you an officer of"Blue Aqua Pools"? A. I guess Iam. It was noted if a building permit had been pulled the issues would have been discovered earlier and could have been corrected at that time. Chairman White stated it was important to the Board to learn of the corrective actions taken by the Respondent prior to the Hearing. Michael Ossorio clarified the license for the Pool Contractor was not issued until November 25, 2014; when the Citation was issued on November 17, 2014, the company was in violation 4 January 21,2015 Attorney Oosterbaan questioned John E. Griffith: Q. At the time you performed work for Eva Bowen, did you believe that you were licensed? A. Yes, absolutely. On February 11`"we sent in our first money for our first application and I got a license number. Then on March 26, 2014, the fictitious name ran in the newspaper and we sent that to the State. I had no reason to not believe that I was licensed. I did everything they asked me to do—I sent it in—I sent the fees in, and I was off and running. Chairman White asked Mr. Griffith to identify the license that he believed he held. A. I thought I was qualified through her license—the State license—for the Building Contractor's license. The information that we sent in to the State—I thought that was all wrapped up. Once they got the fictitious name that I had filed for in the newspaper and they got our application, I thought it was done and ready. Chairman White summarized: • You believed that you [John Griffith] were working lawfully under the license of the General Contractor, Elizabeth Kosmerl. • All matters pertaining to the d/b/a—the fictitious name—were properly licensed through"Blue Aqua"with her as the CBC (Certified Building Contractor). A. Yes, sir, that's correct. Chairman White continued: Q. When you entered into any contracts, was that also your belief? A. There were no contracts—there was never a contract signed. Q. When you entered into what you believed was an agreement --- A. Yes. My hands shake really bad when I start to write so a friend at the Pro Desk at Home Depot prepared a list of items that I was going to do and I signed it. Yes, this is what I'm going to do for$2,500 and I gave it to Mrs. Bowen. Nothing was ever said. Q. And that was done in the name of John's Handyman? A. I think we did, yes, I believe we did. When asked to produce a copy of the list, Mr. Griffith stated Mrs. Bowen possessed the only copy. Regarding County's Exhibit E-14 and 15: A. These are the list of projects that needed to complete all of her work on the home. This was what she needed. This was not contracted—there was never an agreement. All I did was simply put this together to show her how much the stuff was and I got prices from Home Depot—what the stuff was and what I needed down to buy the stuff—and to do the work. So I gave her a whole list. 5 January 21,2015 Attorney Oosterbaan asked Mr. Griffith if the 2-page list had anything to do with what he had agreed with Ms. Bowen to do. A. No, it did not. Q. That's an additional thing ... A. It's an additional, yes. Q. Was it ever agreed to—that list—between you and Ms. Bowen? A. No, it wasn't. All I did was to call her up because we were running out of what we had to do—I called her and gave her the list—one at a time—of stuff we need to do to finish the job. She said, "I'll get back with you." I think it was two days later that she called me and said I was fired. So I figured that the stuff was too pricey for her and she wanted to go somewhere else. And that was it. There was never nothing agreed to, to do anything other than the $2,500 worth of demolition. Q. What was your agreement with Ms. Bowen? What was the work that you discussed at Home Depot—what was the Scope of Work you were going to perform? A. We were going to haul away trash from the yard; take down the wood paneling inside the unit; take out all the insulation because she wanted blown-in insulation which we would do ... and that was it ... take out the appliances. Strip the place out was what our job was to do. Q. Except for any studs or load --- A. Right, exactly. Q. ... bearing structure? A. Right, no. Q. So that was what you both agreed on? A. Yes. Q. That was the Scope of Work? A. Yes. John Griffith reiterated he did not possess a copy of the agreement concerning the agreed Scope of Work ... the only copy of the document was given to Ms. Bowen. Kyle Lantz questioned Mr. Griffith: Q. The list that we have on Exhibit E-14 and 15 ... who wrote that? A. My friend, Lisa Smith. Q. Is it safe to assume that it was a bid or proposal for work that you A. ... was going to do. Q. It wasn't accepted but it was a bid? A. It was a bid to do this work, yes. Richard Joslin: Q. It appears that they were all itemized, according to what you were going to do for her? A. Yes, yes. Q. One of the items on E-15 was that you were going to haul away all of the debris ... which is what you said you did. Was that part of the work? A. I didn't haul away any debris ... I was supposed to haul all the debris that was left outside. When we got there to do the work, the people who had lived there before 6 January 21,2015 left all of their debris inside. In order to do the work, I had to haul it. So I hauled two loads out of the inside of the building. I had not got all of the stuff from the outside hauled yet. She seemed to think that I should have hauled it all. But that wasn't the agreement. So when she decided that I should haul it all, I stopped hauling any of it because the two loads from the inside the house that I hauled would have made up for the two loads that were outside. I just quit. Terry Jerulle: Q. This proposal on E-15, did you receive any money for any of these items? A. No, sir. Q. When you said you were hired initially to do the demolition on the interior of the home ... A. Yes. Q. ... did you get a demolition permit? A. They said I didn't need one because it was a manufactured home. Q. Who said you didn't need one? A. She did [indicating Eva Bowen], Mrs. Bowen did. Q. But you're the Contractor, correct? A. Yes. Q. Does the Contractor ask the client if he needs a permit or does the Contractor ask the County? A. I asked her, "Can you give me a legal description of this property so I can get a permit to do this work?" She said, "You don't need one for the interior ...." (over-speaking between the two ...) Chairman White advised Mr. Griffith to wait to respond until the entire question had been asked. Terry Jerulle: Q. The question was: Did you ask the County if you needed a demolition permit? A. No, I did not. The reason why I did not was because Mrs. Bowen said she has lived in manufactured homes for a long time and a permit was not needed to remove anything from the inside of the unit—according to the State. So that's what I went by. She did live in a mobile home in Jacksonville so I presumed she knew what she was talking about. Kyle Lantz: Q. Was this a mobile home or a manufactured home? A. It was a manufactured home, I believe. Q. Different from a mobile home? A. It was a double-wide—I don't know what the definition is but ... they rolled it in on wheels. Michael Ossorio clarified the County did not require a building permit nor did it issue a Citation to Mr. Griffith for not obtaining a building permit. The Building Official reviewed the information and the evidence, and determined a building permit was not required. 7 January 21,2015 Richard Joslin: Q. You had previously mentioned that you had a Workers' Comp exemption form? A. Sure. Q. When was it dated? A. August 31, 2010. Q. You don't have a current exemption form? A. In this letter, it said that I don't need another one—it's good forever as long as I don't go out and hire a bunch of people. Q. Are you exempt because you hold a handyman's license? A. No, I'm exempt because I don't have any employees and I own the company. Kyle Lantz confirmed that a Workers' Comp exemption is good forever for anything other than the construction industry. When an exemption is applied for the d/b/a under the Building Contractor's license, the exemption will have a two-year limit. John Griffith: Anything that I have to do, I'll do. The Respondent's "Case in Chief"was concluded. Respondent's Argument(defense): Attorney Oosterbaan referred the Board to Florida Statute 489.532, "Contracts entered into by Unlicensed Contractors unenforceable:" (1)(a) For purposes of this Section, if a State license is not required for the Scope of Work to be performed under the contract, the individual performing that work is not considered unlicensed. Attorney Oosterbaan stated: • The Statute was the basis of his argument, i.e., whether or not a license was required under the circumstances, concerning what was "agreed" or to use the legal term, "contracted." • Even though Mr. Griffith acknowledged that even an oral agreement can be a contract, his agreement and the work that was actually performed was work that required removing paneling and such which he didn't believe enters into the definition under the "Definitions" section of Florida Statutes 489.105: (3) For the purposes of regulation under this part, the term "demolish"applies only to demolition of steel tanks more than 50 feet in height; towers more than 50 feet in height; other structures more than 50 feet in height; and all buildings or residences. • He did not believe it was "demolition" in the sense of tearing down the whole building; it was just the removal of some of the interior. That may be why a permit was not required—but he was not sure. • He submitted that he was not sure a license was, indeed, required. • The other document referred to as County's Exhibit E-14 and 15 was work that was not agreed upon and, therefore, does not fit the definition of a "contract"because there was no `meeting of the minds' as to the performance of that work. And the work was not performed under that document. 8 January 21,2015 • In examining the law, he did not find a Statute that indicated the mere proposal of work in the future would constitute unlicensed contracting. • As to the "good faith" argument, he believed all efforts were made and the testimony indicated there was a good faith belief on the part of Mr. Griffith that he was, indeed, licensed to do the work that he was going to be performing. • Both he and Ms. Kosmerl did all the necessary steps as quickly as possible to satisfy the license requirements. Attorney Oosterbaan concluded: • As for leniency in light of his arguments, he did not think it was a situation where Mr. Griffith, as an individual, was trying to ignore the law or side- step the law and not act according to what was required to do the work that he is doing. In the end, he did obtain a proper license. Kyle Lantz requested the Board's attorney, John Morey, to explain the definition of a "Contractor" under Florida Statutes, 489.105 Attorney Morey suggested reviewing Section 22-16, "Definitions and Contractor Qualifications," under the governing Code for the Board and Collier County." Contracting means, except as exempted in this part, engaging in business as a Contractor and includes, but is not limited to, performance of any of the acts as set forth in Subsection(3) which define the types of Contractors. The attempted sale of contracting services and the negotiation or bid for a contract on these services also constitutes contracting. Attorney Morey explained the last sentence meant not merely performing the work but also attempting to perform the work and making a bid to perform the work falls within the definition of"contracting" under Collier County's Code. Kyle Lantz asked if the State adhered to the same definition and if there were any disparities between the two definitions. Florida Statutes, Section 489.105, "Definitions:" "Contractor"means the person who is qualified for, and is only responsible for, the project contracted for and means, except as exempted in this part, the person who, for compensation, undertakes to, submits a bid to, or does himself/herself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure ..." Attorney Morey stated the relevant language in Section 489.105 was: "... undertakes to, submits a bid to, or does by himself/herself or by others ..."to actually do those things. Submitting a bid was referenced in the definition of"Contracting." 9 January 21,2015 Kyle Lantz asked if County's Exhibit E-14 and 15 constituted"contracting." Attorney Morey explained it was "engaging in the business of a Contractor." If the Board determined that the document presented was a bid(or proposal), submitting a bid would fall under the definition of"Contracting." Both Florida Statutes and the Collier County Code included submitting a bid for work and services in their respective Definitions. Mr. Lantz asked if a license would be required to present a bid or proposal, regardless of whether or not it was accepted and work was done. The response from Attorney Morey was, "Correct." The County presented its "Case in Chief." Michael Ossorio referenced Citation#08724 (County's Exhibit E-3) which he issued on November 17, 2014. The amount of the fine was $2,000 since it was a second offense for unlicensed contracting. Eva Bowen testified on behalf of the County. Michael Ossorio asked Ms. Bowen to describe how she found John's Handyman Service and explain County's Exhibit E-14 and 15 to the Board. Eva Bowen stated: • She had lived in Jacksonville, FL for 29 years. • She moved to Naples, FL and bought a property in May, 2014. • She found an ad on Craig's List for a Licensed Contractor and called Mr. Griffith. • Mr. Griffith confirmed that he was a Licensed Building Contractor in Collier as well as in the State of Florida. He stated he would be happy to perform the work that she required. • She closed on the purchase of the manufactured home on May 2, 2014 and met Mr. Griffith at the property. They discussed in detail the work to be done, how long it would take to accomplish, and the cost for same. • The first agreement, "a Contract,"was for $2,500; Mr. Griffith agreed to demolish everything on the inside the manufactured home and the outside, and—at his own expense -- to haul it away. • Mr. Griffith started his work on the manufactured home on May 2nd while she returned to Jacksonville; he started to remove the wooden panels, sheet rock, windows and opened the walls. He removed the ceiling panels. He also removed the floors because the plumbing was to be checked. • Mr. Griffith called almost every day with a report of his progress. • Every day beginning on May 2nd, she asked Mr. Griffith if he was a licensed Contractor or General Contractor or Building Contractor and also asked to see his license. • He never produced any documentation—he did not fax nor did her email anything to her as she had repeatedly requested. He ignored her requests for six days while assuring her, during their conversation, that he was licensed. 10 January 21,2015 • She stated she is a widow and used her life savings to buy the property in Collier County and she became scared that something [bad] could happen. She repeated she wanted a licensed Contractor to work on her property. • She stated she trusted him but was still very nervous because he was not cooperating concerning verifying his Contractor's license. • After six days, she returned to the area to review the progress and told Mr. Griffith if he could not produce his license, he would be fired. • She confirmed she asked him to remove the walls and replace with new sheetrock, to remove the insulation, and the studs, to replace the window, to raise the ceiling, to replace the doors and the floors. He was more than happy to do it. • When she returned, she stated that he had done a"horrible job and it was very devastating" for her. Michael Ossorio asked the Witness when she had received the proposal from John Griffith (County's Exhibit E-14 and 15). She replied while they had discussed the items over the phone on several occasions, she did not receive the itemized document until later in May. She confirmed she did not accept his list because he was unable to prove that he was a licensed Contractor. The County concluded its "Case in Chief" Cross-Examination of Eva Bowen by Attorney Oosterbaan: Q. Ms. Bowen, you agreed on a price with Mr. Griffith for the work that he was going to perform, is that correct? A. Yes. Q. Part of that was to make a deposit of$1,000 and pay the balance at completion? A. No. Q. It was sent to you in a writing that was attached to the "Statement of Claim" in a Small Claims Court action undertaken by Mr. Griffith, as the Plaintiff. For the record, the Case Number was 14-SC-757. Chairman White caution Attorney Oosterbaan that Ms. Bowen had not testified to the new information he presented. Attorney Oosterbaan replied that he would show the relevance, especially with reference to Ms. Bowen's claim that she not aware of any licensing issues. Cross Examination continued: Q. Isn't it a fact that during the Court case which occurred after the performance of the work, you never made any mention to the Court of any licensing issues? A. That's incorrect and you weren't present during the Court hearing. In front of the Judge and many witnesses during the Court hearing, I asked why Mr. Griffith never produced any license before he was fired. I asked him over and over again. Furthermore, Mr. Griffith never got any deposit money from me because after I came and saw what happened to my home, I fired him. Why would he lie about it? 11 January 21,2015 Q. Did you agree during the Court case that you did owe Mr. Griffith $1,500 for the balance of the work that he performed? A. No, sir, I did not give him $1,500. I gave him $1,000 as a separation check and said told him to leave since he didn't have a license and she didn't want him working on her home. He accepted it with the understanding that the check was payment in full. I don't want anything to do with him. Q. In that Court case, was there a final judgment against you to pay the balance of the $1,500 plus Court costs? A. Yes. Of course because Mr. Griffith insisted in front of the Judge that he was a licensed Contractor. He testified under oath to the Judge that he was a licensed Contractor but he never provided any license. The Cross Examination was concluded. Kyle Lantz asked Attorney Morey to explain the Board's options. Attorney Morey: • If a person who was issued a Citation contests the Citation and shows that the Citation was invalid, or that the violation had been corrected prior to appearing before the enforcement or licensing board, the enforcement or licensing board may dismiss the Citation unless the violation is irreparable or irreversible. • If the Contractors' Licensing Board decided not to dismiss the Citation, it could not reduce the amount of the civil penalty imposed by the Citation but the Board could enhance it based on the following factors: o The gravity of the violation; o Any actions taken by the violator to correct the violation; o Previous violations committed by the violator. • Amount of maximum penalty: up to $2,500 Michael Ossorio asked if it was possible to uphold the Citation while dismissing only the civil penalty. Attorney Morey noted the language in the Ordinance was specific: if the Board found that a violation existed, it could either uphold the civil penalty imposed or enhance it. He was not sure if a penalty could be reduced; but the Citation, along with the penalty, could be dismissed by the Board. Kyle Lantz asked the penalty would be reduced if a license was either applied for or obtained prior to a hearing. Michael Ossorio explained a civil penalty would be reduced to $300 if a Respondent came into compliance with 45 days from the date a Citation had been issued, but only for a first offense. He noted the Respondent had been cited previously. Terry Jerulle moved to approve upholding Citation #8724as issued and maintain the civil penalty at$2,000 since the Respondent came into compliance. Richard Joslin offered a Second in support of the motion. Carried unanimously, 8—0. 12 January 21,2015 Kyle Lantz directed his comments to Elizabeth Kosmerl and John Griffith: • One of the goals of the Board was to bring violators into compliance. • You have moved closer to compliance by moving the license into the new company's name. • That's one step of ten. There are a number of other things that must be done: o The bid doesn't have a license on it; o The Workers' Comp isn't correct; o The liability insurance isn't correct; o You don't have the proper business tax receipt. • You stated if you had pulled a Building Permit, you might have found out you were in violation but it's not the Building Department's job nor is it the Board's job to tell you that you are doing something wrong. • You have an attorney to consult. • My recommendation: ask your attorney to follow through so you are in compliance but you must be in charge of your own business. • As the Qualifier, you are responsible for the business—that the bids are correct, that the contracts are right, that the insurance is right—that everything is right. • You have put yourself and your license on the line. • There are a lot of steps besides obtaining a fictitious name. • If you keep going the way you are going, you'll be back in here and subject to another fine. • What I've seen from this is a totally mismanaged company by a Qualifier who is totally ineffective and not doing her job to make sure that everything is right. • You have been licensed for 20+years and if you don't know the regulations by now, it's time to go back to class and learn them. Chairman White directed his comments to John Griffith: • You do not hold a license and should not tell others that you are licensed. • It is the business entity that you are working for that is licensed. BREAK: 10:15 AM RECONVENED: 10:25 AM C. Bruce Fleugeman—Contesting Citation (d/b/a "A Fireplace") Citation: #09052 ("Unlicensed Mechanical Contracting") Date Issued: November 18, 2014 Fine: $1,000.00 Description of Violation: Engage in the business or act in the capacity of a Contractor, or advertise self or business organization as available to engage in the business of or act in the capacity of a Contractor, without being duly registered or certified 13 January 21,2015 Bruce Fluegeman: • He is the owner and manager of"Naples—A Fireplace Company" doing business as "A Fireplace." • The purpose: to sell factory-made,prefabricated, metal, insulated fireplaces along with the systems that the manufacturers built to vent the fireplaces that require venting. • The company has been in business for 17 years. • The company has never had a complaint or a Citation or lawsuit or any dis- satisfied customers. • He requested that the Board dismiss the Citation issued to his company for Unlicensed Mechanical Contracting, i.e., installing a fireplace and a flue system. • A builder(Phil Steiner) was contracted by a homeowner(Linda Fink) to install a fireplace and flue system. • On September 17, 1913, Phil Steiner came to my office and claimed to be a builder/remodeler. He wanted to buy a fireplace and the venting equipment for a job that he was doing and said that he would install the equipment. • He paid a deposit of$1,500 and the materials were ordered. • Mr. Steiner called the office during the summer of 2014, and stated he did not have the manpower to necessary to install the fireplace and flue system. He asked if we could assist him with the job. • We agreed and the job was completed within a month. • The final installment of our bill was paid by the homeowner. • In November, 2014, we were informed by Ian Jackson, Licensing Compliance Officer, that a complaint had been filed by the homeowner against Mr. Steiner. • During Mr. Jackson's investigation of the builder and the subcontractors, it was determined that my company had been in violation of the County's requirement that a Mechanical license or an HVAC license was necessary in order to install a metal flue pipe on a wood-burning fireplace. • The theory: the fireplace and the flue system are considered as part of the home's ventilation system. • As a result of the interpretation by the County and the City of Naples, only a licensed Mechanical Contractor or licensed HVAC Contractor could install the system. • When the company was started 17 years ago, he inquired with the State, Collier County and the City of Naples concerning which licenses were required to sell the fireplaces which were designated as "decorative appliances." • At the time, he was told that no specific licenses were required. • For 17 years he operated his business and was never told by anyone that any type of license was required other than to install the materials according to the manufacturer's specifications and installation manual instructions which had been approved by several nationally sanctioned testing organizations such as the Underwriters Laboratories ("UL") and the American National Standards Institute ("ANSI"). • During the past 17 years, the fireplaces that we have sold and installed have been installed in accordance with the manufacturer's specifications. 14 January 21,2015 • We received no communication from the County or the City or the State that a license was required for us to connect a flue pipe on a wood-burning fireplace and no warning as to a Citation if, in fact, a license was required. • We did not know a license was required. • The product is a metal pre-fabricated fireplace with a metal flue system which is sold by the manufacturer as a total system. We are provided with the flue pipe— flue system—and the instructions to install it. • The product complies with the federal and State building codes that oversee fireplaces and flue systems. • He requested the Board to dismiss the Citation since it is the first and only one that we have ever had. • He assured the County and the Board that he has taken steps to avoid any violation in the future by not installing wood-burning fireplaces with flue systems and installing ourselves. • The company will only sell and deliver the product to the homeowner or builder. • We have turned down two or three jobs to install the wood-burning fireplaces since November. • It is a hardship for my business to do this but wood-burning fireplaces are a small part of our business. The majority of the fireplaces are electric or gas- fired. Chairman White asked if licenses were required to install the electric or gas-fired fireplaces. A. The fireplaces are regulated by the State of Florida's Department of Agriculture which requires an LP/Gas License for any connection made to a gas line. He recently found out about the requirement; he applied to the Department of Agriculture and paid the fee for a Class "C" License. He is waiting for a date to take the required exam. Q. My question and concern goes to the venting of the burnt gases. How is that different for a fireplace that is wood-burning versus a gas fireplace? You have taken some action to correct and not repeat the violation which is pertinent for the Board to understand. You would contract to install a gas fireplace but how is that different from the installation of a wood-burning fireplace. A. A wood-burning fireplace and a gas fireplace is that a wood-burning fireplace must be vented vertically through the roof using an approved metal flue system which is insulated and has proper clearances from any combustible material. There are three types of gas fireplaces, the only one which must be ventilated through the roof. The second is called a"direct vent" and can be ventilated to the outside through a side wall of the home. The third type which is the most prevalent in Southwest Florida is called an "unvented or vent-free" gas fireplace and does not require any venting at all. This fireplace burns relative hot and re-burns the exhaust gas that comes off of the fire. Q. Are you saying you would agree to install only the second and third of those types? A. The majority of what we install are the vent-less gas fireplaces and electric fireplaces. 15 • January 21,2015 Michael Ossorio referenced County's Exhibit E-9 ("Collier County Business Tax Receipt") and requested that Mr. Fluegeman read the classification description to the Board. A. Code 03900001 —Description: Retail Sales Ian Jackson, Licensing Compliance Officer,presented the County's case. Tom Szempruch, Plans Examiner—Building Department, City of Naples,was called as a Witness to testify on behalf of the County. Ian Jackson questioned the Witness: Q. Mr. Szempruch, could we have your name and position with the City,please? A. Tom Szempruch. I work for the City of Naples as a Mechanical and Plumbing Inspector in Plan Review. My license number is PX2538BN4522. Officer Jackson referenced Collier County Exhibit E-15, i.e., Section 1.6.2.3 of County Ordinance#2006-46. Q. Does the flue system constitute a ventilation system as described in Section 1.6.2.3? A. Yes. Q. Also regulated by the Florida Building Code? A. Yes. Kyle Lantz questioned the Witness: Q. We are stating that a Mechanical Contractor's license is required to install the flue system—correct? A. Correct. Q. Can an HVAC—A or B Contractor do it or does it have to be specifically "mechanical"? A. No., either A or B. Q. But not a plumber? A. Correct. Q. But a plumber could do the gas ... A. ... connection and, if he is licensed, run the gas lines. Q. But they could do the venting of the gas if it were a vented system? A. No. Q. So they could vent a water heater but they couldn't vent a fireplace? A. I don't know if they are allowed to vent a water heater by Code. That would be something that Mike Ossorio would have to address. Terry Jerulle: Q. The venting of the fireplace—does that require an inspection from the County or the City? A. The Florida Building Code requires an inspection. Q. Then it requires a permit? A. Correct, and we inspect it under the mechanical permit. 16 January 21,2015 Chairman White asked the Witness if permits had been applied for in the case before the Board. A. I do not know anything about that—I don't do those inspections. Ian Jackson noted a permit had been issued for a substantial remodel of the home and stated he assumed that, under the permit, any mechanical aspect of the plans—and part of the Plan Review for this substantial remodel. Chairman White asked Mr. Jackson if he knew who pulled the permit. A. Originally, a third party pulled the permit. The primary Contractor was unlicensed and cited. Q. And the permit puller? A. The permit puller had been contracted specifically for that by the homeowner. She hired a licensed Contractor to get a permit and hired an unlicensed Contractor to do the work, or to contract for the work and hire Subcontractors. Q. And it was that unlicensed Contractor that the subcontractor, Mr. Fluegeman, performed? A. The initial payment to "A Fireplace"was paid by the unlicensed Contractor and the balance was paid for by the homeowner. Kyle Lantz asked Mr. Jackson if a Mechanical Contractor had been assigned to the permit and the response was, "Yes, on the permit, as there was electrical and plumbing." Ian Jackson referred to County's Exhibit E-8, the "Contract,"and acknowledgement by Mr. Fluegeman that he agreed to assist in the installation of the equipment. His testimony established he had contracted for the installation without being licensed. The County concluded its Case. Richard Joslin questioned the Respondent, Bruce Fluegeman: Q. You have a retail sales company—correct? A. Our company is in the business of selling fireplaces through the retail business and also to builders. Q. But, basically, a retail establishment? A. Yes. Q. You have clearly said through your testimony that you were unlicensed to install this particular fireplace? You needed a Mechanical License to do what you did to continue the contract. A. As I understand it, to sell the product, we do not need a specific license other than the business license from the County. Q. That is correct. A. But I recently learned that to install the flue system, we do need a license. I just learned that. Q. Through your testimony, you are admitting that you did install this particular system on this particular home? A. We did install the flue system and the fireplace. 17 • January 21,2015 Ronald Donino remembered that approximately one year earlier,the same situation was presented to the Board. He stated it appeared that, in the past, the requirement was not enforced for a Mechanical Contractor to install the duct work or the flue system but it seems the requirement is being enforced. Gary McNally moved to approve upholding Citation #09052 as issued. Chairman White offered a Second in support of the motion. Discussion: Terry Jerulle directed his question to Michael Ossorio: Q. The gentleman has been in business for 17 years. Has this Code been enforced for seventeen years? A. I can tell you the definition in Section 489 has not changed. The business tax receipt noted an "open date" of December, 2011 so I don't know if he has been in business for 17 years but the definition has not changed in decades. Chairman White noted the Respondent had adjusted his business practice as it was probably not cost effective to pursue a Mechanical or HVAC license. He outlined his reasons for not requesting an enhancement of the fine: • The Respondent had applied for and was waiting to take the test for an LP/Gas Class "C" License through the Department of Agriculture prior to the hearing to be compliant with the requirement to install a gas fireplace. • Regarding the "Gravity of the Violation"—there was no indication that the installment had not passed inspection. Kyle Lantz directed his question to Michael Ossorio: Q. I don't think you answered Terry's question. You said the Code has been the same. But he asked if it has been enforced the same? What I gathered from the last case and possibly from the case before the Board is that it may not have been enforced. That is relevant to me ... has it been enforced? A. We have issued Citations in the past but the Board only sees a few. In the majority of cases, they come into compliance through abatement or they pay the Citation. If you are asking if we have issued Citations for ventilation systems, of course we have. The Board has seen a couple within the past six months or past year that have petitioned the Board. Every violator is encouraged to petition the Board if they so choose. Q. Are you saying he was lucky for 17 years? It's not like—nobody ever said anything and then, a year ago, it started being enforced? Chairman White noted there was no testimony that there was any other instance where they have installed any flue system without the proper license. Kyle Lantz: But the law has been enforced—is what Michael is saying—it's not a new enforcement. They have been enforcing it consistently—The County didn't suddenly change—it has been consistent in its enforcement. Michael Ossorio: We try to apply the Ordinance as we see it. There is no "selective enforcement"here. 18 January 21,2015 It was noted the Citation was a first offense for the Respondent. If he had pursued obtaining a Mechanical or HVAC license versus changing the business practice, the fine would have been reduced to $300. Chairman White called for a vote on the motion to uphold the Citation and the fine at $1,000. The motion carried unanimously, 8—0. D. Debora Roos—Reinstatement of License (d/b/a: Roos Bros.,Inc.) Debora Roos: • Requested the Board reinstate her Irrigation License. • She has been working as an Irrigation Contractor in Lee County since 2004. • Her license was originally in Collier County but she lived in Lee County and was not doing that much business in Collier County after two of her contractors when out of business. • The license was allowed to lapse in 2006. • There is more opportunity to work in Collier County and contractors have requested they do so. • She has maintained her Continuing Education requirement for Arborculture, and Lawn and Ornamental Pest control through the Florida Department of Agriculture and the University of Florida. Chairman White asked Michael Ossorio why the case was brought before the Board. A. If a license is allowed to lapse, the Applicant for reinstatement must retake the exam within three years unless they petition the Board. If the Board finds, through testimony, that taking the exam is superfluous to doing their work. The application of Ms. Roos shows that she has been current in Lee and other Counties for landscaping and irrigation. Michael Ossorio stated the County has no objection to the Board granting her request for a Waiver of the testing requirement. She will pay the last three years of back fees before a license would be issued. Debora Roos noted the backl fees amount of approximately $760 which she agreed to pay. Terry Jerulle moved to approve the application for reinstatement of Debora Roos' license without requiring retesting. Richard Joslin offered a Second in support of the motion. Carried unanimously, 8—0. VII. OLD BUSINESS: (None) VIII. PUBLIC HEARINGS: (None) 19 January 21,2015 IX. REPORTS: • Michael Ossorio noted there was a posting on the website to hire a Licensing Compliance Officer on a temporary basis. He stated the position was for full-time work but without any benefits. X. NEXT MEETING DATE: Wednesday, February 18, 2015 BCC Chambers, 3rd Floor—Administrative Building"F," Government Complex, 3301 E. Tamiami Trail,Naples, FL There being no further business for the good of the County, the meeting was adjourned by the order of the Chairman at 11:17 AM. OLLIER COUNTY CONTRACTORS' LTc E . G BOARD (10 z,4 PATRIC WHITE, Chairman The Minutes were gpproved by the Board/Committee Chair on r , 2015, "as submitted'' FOR "as amended" [ 1. 20