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CLB Minutes 06/19/2002 RJune 19, 2002 TRANSCRIPT OF THE MEETING OF THE CONTRACTORS' LICENSING BOARD Naples, Florida, June 19, 2002 LET IT BE REMEMBERED, that the Contractors' Licensing Board, in and for the County of Collier, having conducted business herein, met on this date at 9:05 a.m. In REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: GARY HAYES KEN DUNNE WALTER CRAWFORD, IV LES DICKSON RICHARD JOSLIN SARA BETH WHITE KEN LLOYD Page 1 AGENDA COLLIER COUNTY CONTRACTORS' LICENSING BOARD DATE: June 19, 2002 TIME: 9:00 A.M. ADMINISTRATION BUILDING COURTHOUSE COMPLEX ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THAT TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. I. ROLL CALL II. ADDITIONS OR DELETIONS: Ill. APPROVAL OF AGENDA: IV. APPROVAL OF MINUTES: DATE: May 15, 2002 V. DISCUSSION: VI. NEW BUSINESS: Jimmy Contreras - Req. to qualify a 2'd entity. Duane E. Blake - Review of Credit Report for Concrete Placing & Finishing license. Jose Dos Santos - Request to be granted Paver Brick license base on exam from Broward County. VII. OLD BUSINESS: Daniel Malinowski - 3nd Review of credit report for Paving license. VIII. PUBLIC HEARINGS: Peter Davidson - Contesting Citation #1234 issued for no license. John James Cronen - Contesting Citation #1741 issued for no license. Case # 2002-02 - Mark J. Semeraro vs. Roland Rodriguez D/B/A On The Level Builders, Inc. Case # 2002-03 - Tara Bajaj Crosby vs. Anthony Lentini D/BIN Anthony Lentini Tile & Marble. Case # 2002-04 - Maria Ottenstein vs. Mihai G. Popa D/B/A Artistic Floor Design, Inc. IX. REPORTS: X. NEXT MEETING DATE: JULY 17, 2002 June 19, 2002 CHAIRMAN HAYES: I'm going to call to order the meeting of the Collier County Contractor's Licensing Board on June 19, 2002, at 9:05 a.m. Any person who decides to appeal a decision of this Board will need a record of the proceedings pertaining thereto, and therefore may need to insure that a verbatim record of the proceedings is made, which record indicates that testimony in evidence upon which an appeal is to be based. I want to start with roll call to my right. MR. DUNN: Ken Dunn MR. CRAWFORD: Walter Crawford. MR. DICKSON: Les Dickson. CHAIRMAN HAYES: Gary Hayes. MR. JOSLIN: Richard Joslin. MS. WHITE: Sara Beth White. MR. LLOYD: Ken Lloyd. CHAIRMAN HAYES: Mr. Nonnenmacher, do we have any additions or deletions to the agenda? MR. NONNENMACHER: No additions or deletions. For the record, my name is Bob Nonnenmacher, Contractor's Licensing Supervisor. CHAIRMAN HAYES: Need a motion to approve the agenda. MR. JOSLIN: So moved. CHAIRMAN HAYES: MR. LLOYD: Second. CHAIRMAN HAYES: MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. MR. LLOYD: Aye. I have a motion and I need a second. All in favor? Aye. Page 2 June 19, 2002 CHAIRMAN HAYES: Opposed? Very well. In our packet we have the minutes of May 15th. I'm going to call them the summarized version of the minutes. It's not a verbatim record. I need approval of the same minutes. MR. DUNN: Motion to approve. CHAIRMAN HAYES: I have a motion. Need a second. MR. JOSLIN: Joslin second. CHAIRMAN HAYES: All in favor? Aye. MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Very well. We have any discussions, Mr. Nonnenmacher? MR. NONNENMACHER: No discussion, sir. CHAIRMAN HAYES: Anybody on the Board have anything to discuss? Okay. Under new business, Jimmy Contreras, request to qualify second entity. Mr. Contreras,are you here? Any explanation, Mr. Nonnenmacher? MR. NONNENMACHER: No, sir. They were all notified. CHAIRMAN HAYES: I guess we can put it off. We can put it off in case he may show up. Duane E. Blake, review of credit report for concrete placing and finishing licensing. Are you here, Mr. Blake? MR. BLAKE: Yes, sir. CHAIRMAN HAYES: Would you come up to the podium, please, sir. Page 3 June 19, 2002 MR. BLAKE: Good morning. CHAIRMAN HAYES: Good morning, sir. I'm going to ask you to be sworn in. If the Court Reporter will do that for me. Thereupon, ..... DUANE EDWARD BLAKE, ........ the Speaker herein, having first been duly sworn,spoke as follows: CHAIRMAN HAYES: Your name? MR. BLAKE: Duane Edward Blake.' CHAIRMAN HAYES: Mr. Blake, your reason for being here this morning? MR. BLAKE: To try to get my license forconcrete. MR. CRAWFORD: Mr. Blake, did you take the test? I didn't see your test record. MR. BLAKE: Yes, I did. MR. CRAWFORD: Okay. MR. BLAKE: I passed everything. I submitted everything. There was just a question on a credit -- MR. CRAWFORD: Okay. MR. BLAKE: -- that was owed from '96. MR. DICKSON: Wives are expensive? MR. BLAKE: Pardon? MR. DICKSON: Wives are expensive? MR. BLAKE: Yes, they are. Yes, they are. CHAIRMAN HAYES: So are children. MR. BLAKE: Yes, they are. MR. DICKSON: Give me the dates that you went through this divorce and that problem with your ex-wife so that I can look at this credit report and see what you've done since then. MR. BLAKE: I just recently have gone through a divorce. I've been in a two-year battle, custody battle here in the last two years. I just -- the credit that was in question was back in '96. That's when I Page 4 June 19, 2002 first got married. I was trying to bail my wife out. She was going through foreclosure. I was trying to help her through that, and it was a financial mess. I was just not able to make the payment. It was -- the credit report says something about 600 and some dollars twice, and I believe that was because it was filed in two different counties. The actual debt was only $213.83. I have it right here. MR. DICKSON: Do you remember what account that is? MR. BLAKE: I got this paper right here. It was Hughes Supply. MR. DICKSON: Okay. MR. BLAKE: That was the only one in question that I'm aware of. MR. DICKSON: And have you ever had a business before? MR. BLAKE: No, sir. MR. DICKSON: You're new to the area? MR. BLAKE: No. I've been in Collier County for 31 years. MR. DICKSON: Okay. CHAIRMAN HAYES: What are the two liens? MR. BLAKE: Pardon? CHAIRMAN HAYES: You have two liens recorded against you. MR. BLAKE: I'm unaware of them. Pardon? I believe that's the vehicles that were repossessed throughout my marriage. I've lost everything throughout my marriage. And that's why I got a divorce. And I'm trying to reestablish my life now. MR. CRAWFORD: So what are your current obligations, your current debts? MR. BLAKE: My current obligations, I'm paying off all my IRS taxes, which are almost currently paid off. Page 5 June 19, 2002 MR. MR. MR. MR. MR. MR. CRAWFORD: What would you say the balance is on that? BLAKE: I think like $200. CRAWFORD: Okay. BLAKE: It was like 2500 or something like that. CRAWFORD: Okay. BLAKE: And I just, I'm all -- I got all my backup mortgage payments caught up. And I'm still going through a custody battle, and I'm continuing paying my attorneys and psychologist and stuff like that. CHAIRMAN HAYES: Who's your mortgage with? MR. BLAKE: Jim Walters. Jim Walter Homes. CHAIRMAN HAYES: It doesn't appear on your credit report. MR. BLAKE: Midstate Homes. CHAIRMAN HAYES: Ma'am, if you're going to help him, you're going to have to come up to the podium. Otherwise you're going to have to remain quiet. MR. BLAKE: Midstate Homes actually does it. I'm sorry. I'm familiar with Jim Walters. MR. DICKSON: And what type of corporation is Concrete Connections? Is it a C Corp, S Corp? MR. BLAKE: S Corp. MR. DICKSON: Okay. CHAIRMAN HAYES: I'm just curious why your current credit doesn't appear on here. The only thing that appears on here is non payments. The only one that I see that you made payments is the Chase National. I'm assuming that's a credit card? MR. BLAKE: Yes. CHAIRMAN HAYES: Everything else is in collections, everything. There's not a positive one on here. MR. BLAKE: I'm not sure why nothing else shows up on there. Page 6 June 19, 2002 MR. DICKSON: You understand what we've charged with, don't you? We have nothing against you whatsoever. But to open up a new business, we've got to make sure you don't take these credit problems out to the public. MR. BLAKE: I understand. That's why I'm trying to -- MR. DICKSON: It's unfortunate. MR. BLAKE: That's why I'm trying to move on and move forward with my life. And I feel it's imperative that I get my license, because I don't feel I can get ahead working for somebody else. MR. DICKSON: Mr. Neale, I got a question for you. MR. NEALE: Yes, sir. MR. DICKSON: The credit report is really bad. MR. NEALE: Uh-huh. MR. DICKSON: And we understand the reason. And that's -- but in our situation up here- I mean, of course, he has remarried. Is there someone else that can fill in as a financial officer that-- MR. NEALE: This Board, as you remember, has not adopted the concept of the financially responsible officer for Collier County specialty licenses. It's not something that's really available to them in Collier County. So, unfortunately, that's not something that this Board or the County Commission has decided to do. MR. DICKSON: So it's the license holder only? MR. NEALE: License holder is it. We do have the option of a secondary qualifier, which can take on that responsibility or a second qualifier. MR. DICKSON: But he has to have a license, also? MR. NEALE: Um-hum. Exactly. MR. CRAWFORD: It looks to me as though all the bad debts were '97, '98, '99, '97, 5/96. All were three to five years ago. MR. BLAKE: They all occurred during my marriage. Page 7 June 19, 2002 CHAIRMAN HAYES: And nothing positive since. MR. BLAKE: That's what I'm trying to understand. Okay. CHAIRMAN HAYES: That's my concern as well. Just like he says, he's got a mortgage that's current, but it doesn't appear on here. What we need is a positive or two laying around to show that, yeah, you had problems back in '97, '98, but you've since made amends and people have extended you credit and you've been making payments since. But there's not one single one of those on here. MR. BLAKE: Right. If I was aware of that, I could have brought that information. I thought the only thing that was in question was the Hughes Supply credit. CHAIRMAN HAYES: This should be a generic credit report. It should say all pluses and all minuses. It shouldn't just focus on the minuses. So if you have legal debt out there now, it should have been reported through the credit agency, I would assume, and show up on this report without your knowing anything about it. MR. BLAKE: Right. CHAIRMAN HAYES: So I don't understand why there's not anything here if there is some positive credit in the past 12 months, let's say. There's nothing on here. MR. NEALE: There is the Chase credit card. CHAIRMAN HAYES: That's the only. But if you'll look at that Chase credit card, 11/98 it was opened, and it was last reviewed on March the 2nd. But it doesn't have any current activity, and that's what I was looking at. MR. DICKSON: How are you going to run the business? Do you have money. MR. BLAKE: I do have a partner. MR. NEALE: Just for the Board's consideration, as the Board's aware from previous occasions like this, the financial responsibility Page 8 June 19, 2002 definition is set forth in the Florida Administrative Code, Title 61. And one of the concerns in there, this is 61G4-15.0062B, and it specifically says, "The existence within the past five years preceding the application of an unsatisfied court judgement rendered against the application based upon the failure of the applicant to pay its just obligations to parties with whom the applicant conducted business as a contractor." And just to note, the Hughes Supply one is almost exactly five years ago so. MR. CRAWFORD: So you're saying no judgements against within a five-year period? MR. NEALE: Within a five-year period. MR. CRAWFORD: It's sort of reasonable credit. MR. NEALE: It's sort of his fallen out of the concern under the State Code. CHAIRMAN HAYES: Or-- MR. NEALE: There are other factors, an unfavorable credit report or a determination by the Board that the applicant lacks the financial stability necessary to insure compliance with the standards set forth as financial responsibility, and just for the applicant's information. And to remind the Board, financial responsibility under the Code is defined as, "The ability to safeguard that the public will not sustain economic loss resulting from the contractor's inability to pay his lawful contractual obligations." So that's the test in which you -- CHAIRMAN HAYES: How would one go about answering that test? MR. NEALE: Well, that's why they give you the other factors to consider, which is the existence of a court judgement, unfavorable credit report or a determination that the applicant lacks the financial stability to insure compliance with Section 1. So and the Board Page 9 June 19, 2002 considers the responses to the questions on financial responsibility in the application, and if appropriate, which is not this case, a financial statement. MR. DICKSON: But the fact that he has a partner, Mr. Neale, can we not look at that information and call that extenuating circumstances? MR. NEALE: It could be, except that partner is not the responsible party pursuant to the Code, pursuant to our ordinance or the State statute. MR. DICKSON: Yeah. But it gives us somewhat of a platform to try to get the man in business. MR. NEALE: If the Board deems that that allows him to meet the test of financial responsibility, then the Board certainly can make that finding. MR. DICKSON: We're not out of line to do that? MR. NEALE: As long as the Board feels that the public will not sustain economic loss resulting from his inability to pay his lawful debts, then the Board can make that finding. MR. LLOYD: My concern is we don't know the financial situation for the partner. MR. DICKSON: We don't know that in front of us now. MR. LLOYD: Yeah. We could request that. MR. DICKSON: At another meeting. I'm trying to get you in business. MR. BLAKE: I appreciate that. MR. DICKSON: But you understand what we're up against? MR. BLAKE: Yes, I do. MR. DICKSON: Would you be willing to come back next month with some corporate documents showing who your partner is? MR. BLAKE: Yes, I can do that. Page 10 June 19, 2002 MR. DICKSON: And information on him? MR. BLAKE: Sure. MR. DICKSON: You all agree with that? MR. JOSLIN: Would the partner need to be apart of the corporation? MR. DICKSON: Well, the partner is part of corporation, isn't he? Well, an S Corp. CHAIRMAN HAYES: Well, it should be part of his records here. MR. CRAWFORD: Either that or some current positive credit history on yourself. MR. BLAKE: Okay. Can I just bring that to the County office or do we have to do that at another Board meeting? CHAIRMAN HAYES: Who's your partner? MR. BLAKE: Sandra Metzger. CHAIRMAN HAYES: Okay. Is she the vice president of the corporation. MR. BLAKE: Yes, sir. CHAIRMAN HAYES: Okay. MR. BLAKE: Her credit's outstanding. MR. DICKSON: We'd like to help you out, but we also got to be careful. MR. BLAKE: I understand. MR. DICKSON: Can you wait a month? MR. BLAKE: I can wait a month if I have to wait a month, yes. MR. DICKSON: Do we all agree with that? MR. DUNN: I have a question, please. How are you presently conducting business now? MR. BLAKE: I am not. I work for Rock Solid Concrete right now, and I do have all my tool sand equipment that I need to go into Page 11 June 19,2002 MR. BLAKE: MS. WHITE: is that correct? MR. DUNN: business. The only thing I don't hold is the license. And that's what I'm going to get. And I do have an understanding with my former employer that once when I get my license, I will still work for him and just do jobs as I get them, because I don't think I'm going to go out there and go boom all of a sudden. So that would be like a backup for the financial stuff. MR. DUNN: So you're an employee versus an independent contractor for this other entity? You're an employee? MR. BLAKE: I'm an employee, yes. MR. DUNN: And then Ms. Metzger, she would submit her credit report to the Board? MR. BLAKE: Yes. MR. DUNN: Also? Yes. It is my understanding that she is not responsible; She's shown as a director of the corporation. CHAIRMAN HAYES: She's the vice president of the corporation. So she does have it. MS. WHITE: A responsible officer. MR. DICKSON: She's director. She's probably one of the officers, and she's also, I think, his wife. MR. BLAKE: No, that's incorrect. MR. DICKSON: I just thought. Sorry. MR. DUNN: Mr. Blake indicated that Ms. Metzger would be an additional financial asset, let's say, for the lack of a better word, to nullify some of the financial questions on his own credit report. MS. WHITE: So the public could be protected through her; is that correct? CHAIRMAN HAYES: Not with our jurisdiction. Page 12 June 19, 2002 MS. WHITE: That's my question. CHAIRMAN HAYES: No, ma'am. We have absolutely nothing to do with her. MS. WHITE: Then why do we need it? MR. DUNN: I think if we don't have it, we shouldn't rely on it at all, because the applicant's indicated that that would play a role in his financial ability to pay bills in the company. Am I misunderstanding something? MR. BLAKE: Is she allowed to speak? CHAIRMAN HAYES: If I swear her in. If you want to stand up to the podium, I'm going to ask you to be sworn in. Thereupon, SANDRA METZGER, the Speaker herein, having first been duly sworn, spoke as follows: CHAIRMAN HAYES: And your name? MS. METZGER: Sandra Metzger. CHAIRMAN HAYES: And, Ms. Metzger, what do you need to say? MS. METZGER: Well, I just wanted to say that I am 50 percent owner, so I think I would have a responsibility of the company's debt. CHAIRMAN HAYES: You have a civil responsibility under a court of law, but you don't have a licensing obligation with this Board. MS. METZGER: Okay. And the code and everything, I think Mr. Blake is very competent and has filled out the appropriate paperwork through the County to show that he is experienced and knows about the code. And I think my financial record might help to show that it will be financially sound and run well, the business. And my credit will show that I have a good job and a good record my whole life of paying all of my obligations. And Mr. Blake doesn't have anything positive on his credit report because he hasn't Page 13 June 19, 2002 applied for anything. He's been going through the divorce. He's been trying to catch up on his mortgage. It was in the arrearage. He's caught-- that's up-to-date now. His homeowner's insurance was through the mortgage company. It was purchased through the mortgage company, because he didn't show proof on his own. And that was in the rearage. We have caught all of that up. His IRS, we have caught up, and we've paid off some of the collections that he had through medical bills. And we're just trying to turn things around. There hasn't been anything negative in anything he hasn't paid. CHAIRMAN HAYES: Ms. Metzger, are you his wife? MS. METZGER: No. CHAIRMAN HAYES: So he's got a new wife, step children and a son on the way somewhere else, and you're his partner? MS. METZGER: No. No. He was only married once, and he's divorced now. And he's my boyfriend. CHAIRMAN HAYES: Okay. Well, under- in the packet under some explanation of why he hasn't paid his debts under, "Fund break recovery," whatever it says is, "Could not meet my obligations of payments due to supporting new wife, step children and new son on the way. So I just thought there was a third party involved. MS. METZGER: That was during the period when he was experiencing that bad debt. And that was his ex-wife who had two step children that he was supporting. And then they had a son together. CHAIRMAN HAYES: I understand. MR. DICKSON: Here's my only point on it. I've gone through times like they have. And if we can verify that he's made the improvements and the payments, that is we say he has, yes, we don't directly have control over her. But yet if she's 50 percent, we do Page 14 June 19, 2002 have control over her, because if we take away his license, we shut the business done. And I just -- I hate to see someone who's gone through rough times, and I have. And then you're about to get your head above water and people keep knocking you back down. If it's legitimate like he says it is, then my motion would include a fresh credit report that show sold and new corporate documents to show her percentage ownership and a credit report on her, then at the same time, are we doing an injustice for the County once we know the money's in place. They're good people. Do we keep a good company from going into operation to aid the citizens of the County. If none of those things happen, then obviously we won't approve it. But at the same time, is there a possibility we're denying. MR. NONNENMACHER: may? MR. DICKSON: Okay. MR. NONNENMACHER: paid now? I would like to ask a question, if I Is the Hughes Supply Company MS. METZGER: No, it is not. MR. NONNENMACHER: 6717 MS. METZGER: No, it is not. MR. NONNENMACHER: Any payment on it whatsoever? MS. METZGER: No, we haven't made any payment. We've never approached the Board before. We didn't know what it was about. And we waited for the meeting today to find out what to do. We have not made any payment. MR. NONNENMACHER: Mr. Chairman, if I may suggest that the reason why Mr. Blake is here is due to the fact that we're required anytime there's a lien or a debt with a company that's involved in the construction industry, we bring it before you. Page 15 June 19, 2002 I would like to make a suggestion for something you can think about is that once that Hughes Supply bill is paid, because that is the only construction related thing on the credit report that we are concerned about, to allow Mr. Blake to come in and give us a satisfaction of the Hughes Supply Company, and then we would issue the license. MR. NEALE: If I may. Following on what Mr. Nonnenmacher just said, going back to the ground set out under Florida Administrative Code, specifically the language, "These are grounds on which the Board shall refuse to qualify an applicant, include the existence of an unsatisfied court judgement." It's not a - the Board doesn't have -- or based on the language set out, an unsatisfied court judgement is grounds for refusal to qualify an applicant. Effectively, it's mandatory grounds, because it's a judgement with a party with whom the applicant conducted business as a contractor. CHAIRMAN HAYES: I'm going to suggest that the -- they're right in that both of those are one in the same. The record shows two, but I believe it probably is the same. They are exactly the same amount, so it may be that he just duplicated a judgement. But what I'm going to suggest is perhaps that the payment of that with a letter of release being recorded -- MR. NEALE: Satisfaction. CHAIRMAN HAYES: -- would be satisfaction of the court judgement, and then we wouldn't quite have that problem. But I think, as Mr. Neale says, we can try all we want, but technically we don't have the right with that judgement outstanding. MS. METZGER: We're willing to pay that judgement in full. CHAIRMAN HAYES: Okay. If you'll do that and make sure that you get a release from Hughes Supply of the judgement, then we can rereview it and maybe have a little bit more positive results. Page 16 June 19, 2002 MS. METZGER: Do we have to review it at the Board again, because that was my understanding was that it was just the judgement? And if we supplied that release, then -- MR. DICKSON: You're going to have to come back here. MS. METZGER: Okay. MR. CRAWFORD: So just to formalize this, Mr. Chairman, I'd like to make a motion that we defer Mr. Blake's application to next month pending four items. The first is a current and positive credit report from Mr. Blake. The second is a current and positive credit report from Ms. Metzger. The third is Articles of Incorporation or some type of corporation document that shows Ms. Metzger is a major shareholder in the corporation. And the fourth is a satisfactory payment or agreement with Hughes Supply that the lien or that judgement has been completed. MR. DICKSON: Dickson, I'll second. MS. METZGER: May I say one more thing? If the -- my understanding is if the judgement is the only thing to be considered by the Board, why would we have to go through the other steps? MR. MS. MR. DICKSON: MS. METZGER: DICKSON: METZGER: MR. DICKSON: That's not the only thing. Oh, okay. It's one of four. I must have misunderstood. Did you hear all four that we want? Fresh credit reports on both of you. MS. METZGER: Well, his credit report will not change. There has been no credit activity. We just recently ordered his credit report, and we haven't done anything to apply for credit for him, and nothing's going to change. I can get a letter from Midstate Homes to say that that's in his name if that didn't come up on his credit report. MR. DICKSON: Good idea. Page 17 June 19, 2002 MS. METZGER: But his report will not change. CHAIRMAN HAYES: If you'll get that letter in lieu of a fresh credit report from him, I think that will satisfy us. But I believe we're going to be looking for one on you as well. MS. METZGER: That's fine. CHAIRMAN HAYES: Now, admittedly, we do not have any jurisdiction and perhaps if what we're asking for, Mr. Crawford, is a stock certificate, because there's going to be no other record of ownership, stock ownership. She is in the Articles of Incorporation as the vice president already, and we have that in front of us. MR. CRAWFORD: So okay with that? CHAIRMAN HAYES: I'm satisfied with that. MR. DICKSON: There's stockholder records in those minutes. MS. METZGER: I have that right in the car. CHAIRMAN HAYES: Okay. Well-- MS. METZGER: That's no problem to bring at that time. CHAIRMAN HAYES: Add that to the pile then. Any further discussion? I'm going to call for the vote. All in favor? Aye. MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Okay. You understand? MR. BLAKE: Yes, sir. MS. METZGER: Okay. My credit report, the Articles of Incorporation, letter from Midstate Homes and what was the fourth thing? MR. DICKSON: Hughes. Page 18 June 19, 2002 MS. METZGER: Oh. MR. CRAWFORD: Hughes Supply. MS. METZGER: Okay. Thanks. CHAIRMAN HAYES: Thank you. Okay. Moving along. Jose Dos Santos, request to be granted, brick paver license based on exam from Broward County. Are you here, Mr. Santos? MR. DIEHL: No. But I'm his partner. I'm standing in his place. He's on vacation with his wife and children. MR. LLOYD: You're Mr. Diehl? MR. DIEHL: Yes, I am. CHAIRMAN HAYES: Can we go forward with this? Mr. Neale, are there any problems here? MR. NEALE: Well, you've got a license that's referred on an applicant. And you're not going to be able to take testimony from the applicant. And you're judging whether the applicant is qualified under a license under an exam not taken in your jurisdiction. MR. DIEHL: I had all the financial responsibilities over there and all the works of the business of the entire County and Lee County. MR. DICKSON: But my understanding is the only thing we're looking at is an examine from Broward County. We have no reciprocity with Broward County; do we, Mr. Neale -- I mean, Mr. Nonnenmacher? MR. NONNENMACHER: No. But the pages aren't listed. You'll find an Experior letter which we were concerned with. And the first paragraph said, "Interlocking brick paver examination issued by Broward County cannot be assumed to possess the knowledge and skills and abilities necessary to pass the 140F020 paver brick examination required by Collier County." So Experior, that it wasn't the test and we could not assume that he has the qualifications to do Page 19 June 19, 2002 it. So I guess what Mr. Santos is asking for is to show you his experience and waive the Collier County test. MR. DICKSON: All right. MR. DIEHL: The person is giving -- CHAIRMAN HAYES: If you're going to speak any further, you're going to have to come up to the podium, Mr. Diehl. That's fine. Yes, sir. I need you to raise your right hand. Thereupon, MICHAEL DIEHL, the speaker herein, having first been duly sworn, spoke as follows: CHAIRMAN HAYES: Your name, for the record. MR. DIEHL: Michael Diehl. CHAIRMAN HAYES: And I apologize for interrupting you, but it has to be on the record if you're going to add anymore testimony. MR. DIEHL: I understand. CHAIRMAN HAYES: Go ahead. MR. DIEHL: The word, again, is assumed that it doesn't. Experior gives both tests and not only the engineering, but the business and law. Experior has given him the reciprocity. Test score shows that he did pass it. Experior is what you all accept here. It's only up to you to reciprocate this County. Lee County, Miami, Dade, all the other companies reciprocate to his scores. And the only thing in the word is assumed. CHAIRMAN HAYES: I don't like doing this in Mr. Santos' absence. But I guess we've cracked the egg. We might as well make the omelet. MR. DIEHL: Thank you. CHAIRMAN HAYES: According to this letter, Mr. Nonnenmacher, it says, "Broward County, Florida has 45 items," and they're all open book. Seven of them are Broward County specific. Page 20 June 19, 2002 It's reasonable for me to assume that 48 of them are generic. And then it goes on to say, "Collier County has 40 items." So that means that we're pretty close to the same examine, in my best opinion, other than the seven additional specific of Broward County. MR. NEALE: Excuse me. Mr. Hayes, if I may? I think I can short circuit this a bit. Under Section 22-184 of the Collier County Contractor's Licensing Code, Section C, it says, "When an application is referred to the Contractor's Licensing Board, the Board shall take testimony from the applicant, period." MR. DIEHL: He was not aware of that. CHAIRMAN HAYES: We have been electrocuted. MR. DICKSON: Well and my attitude is, number on, we weren't going to make any discussion today, because he knew this meeting was scheduled. And if his vacation was more important, then this isn't important to us. However, what I was trying to do was save you a little bit of effort. When I sit here and look at a letter from Experior and they say that they are not comparable, and you read the next paragraph, which says, "The brick paver examination in Collier County, Florida. We have determined the examination did not appear to be comparable," we don't make a habit of approving Dade and Broward County. I'm not aware of reciprocity between them. But Collier County, for example, we don't show reciprocity to any County. MR. DIEHL: Okay. MR. DICKSON: So I was trying to I crack the egg, use your analogy. Maybe we can decide whether we are going to consider this. These tests are given on a monthly basis. My attitude is, go take a test. Page 21 June 19, 2002 MR. CRAWFORD: And my only point on that is he just took the other test. So I kind of see why he doesn't feel like he has to take it again. He just took it this year, I believe. MR. DIEHL: Yeah. MR. DICKSON: Yeah. He took it in December and he made a 40 percent and the passing grade in Broward was a 75. And he got it the second time at a 75.6. MR. CRAWFORD: In February. MR. DICKSON: I don't have a great deal of confidence here. MS. WHITE: He has no hardship to take the exam in Collier County, does he? MR. DIEHL: No. The business and law he did pass. It was the engineering, and he retook it. He took both tests at the same time and failed one on the engineering, went back and took it and passed it. MR. NEALE: I would just note to the Board that whatever you're hearing at this point is not testimony from the applicant. So it's really not relevant in consideration of the -- CHAIRMAN HAYES: I understand. And I don't think we're going to make a motion on the ability to do the license or not today. I think the only thing that Mr. Dickson is trying to get to is whether or not to tell him to go away permanently and take the test, or perhaps we can hear him again next month with the applicant himself here. Did you have something to say? MR. BALZANO: I was looking at the next letter on this page after that from Broward County, and it says, "The examination was prepared, proctored and graded by Experior." And they're saying it doesn't compare to their test. MR. DICKSON: Good point. I was just trying to save him a month of time here if we're going to consider it. And maybe if we're not going to consider it, let him know that he needs to take a test. Page 22 June 19, 2002 MR. LLOYD: I would like to see him at least take one of the Collier County tests. Take it once to see what his grade is. CHAIRMAN HAYES: Well, he's got the business and law examine. And that is reciprocal everywhere. MR. LLOYD: Yeah. But the paver. CHAIRMAN HAYES: So it would be specifically to the paver. My only thoughts are on it are according to that first page, Broward County has four items that they're testing on, including one of the same items that is the only item tested in Collier County. That's what I'm looking at. Itsays, "The following references are used in Collier County, Florida Examine, Code of Federal Regulation, Title 29." That is the only thing tested on, according to Experior, and that is part of the test for Broward. MR. NEALE: Mr. Hayes, I think we may be missing a second page of the letter, because there's no signature it. CHAIRMAN HAYES: I kept looking for it as well. MR. DICKSON: Also, Broward County is under the South Building Code, which does not apply to Collier County. Of course, now, that code doesn't even exist, except it's being tacked onto the new Florida Building Code. And we do have a new code. MR. DIEHL: I think the impression on one of the books is regarding masonry. And even though we do paver, you know, like pavers on one ground level, we do not build walls, we do not pour concrete. I think that that's in question also with this test, that is, I think some of the questions that are in the book that was missing out of the Broward test. CHAIRMAN HAYES: I'm going to say that this Board needs to decide today whether or not to ask Mr. Santos to come back next month or not. MR. DUNN: I have a question, please? Page 23 June 19, 2002 MR. DIEHL: MR. DUNN: MR. DIEHL: MR. DUNN: (Margate) and are his license here in MR. DIEHL: MR. DUNN: CHAIRMAN HAYES: Yes, sir. MR. DUNN: Mr. Diehl, Mr. Santos apparently lives in marijuana gate(Margate), Florida. That's correct. Do you live here in Naples? Yes. I have been a resident for 25 years. Is he going to continue to live in marijuana gain you going to manage the business for him under Collier County? Yes, I am. Yes. Thank you. MR. DICKSON: I don't think we can do a form of a motion or anything; is that correct? I can't speak for the rest of the Board, but my response is going to be, go take a Collier County test. So -- CHAIRMAN HAYES: Well, I guess what I'd like to maybe do is just take an overall feeling of the Board. MR. CRAWFORD: Yeah. I'm not convinced that he has to take the test, but we can't make a decision unless he's here. So I guess the response back to him is, you can either take the test over the next month or he can plead his case at our next month's meeting. MR. DIEHL: So just take the engineering test; is that correct? MR. CRAWFORD: I believe that's all he'd have to take. CHAIRMAN HAYES: Yes. Not the Business and Law. MR. DIEHL: Oh, no. If we hold a license in Lee County, can we work in Collier County if we are not pulling permits? CHAIRMAN HAYES: No. You can't work here. I was under the impression that we did reciprocate with Lee County. That's how I got my license. MR. NEALE: I don't think so. You'd have to ask Mr. Nonnenmacher on that one. Page 24 June 19, 2002 CHAIRMAN HAYES: Excuse me. MR. NONNENMACHER: Do we have-- CHAIRMAN HAYES: Are you aware? I agree. I don't think I can remember seeing an actual verbatim reciprocating line in our ordinance, but I know that when I first came here, I took the exam in Lee County and then I had it reciprocated to Collier without taking the test again. And the question is if he goes up and gets his Lee County license, will we reciprocate based on the license? MR. NONNENMACHER: Yes, we would. As long as the score is 75 or above. MR. JOSLIN: Isn't Lee County a State Certificated County, City, area? You have to be a State certified contractor to work in that County. CHAIRMAN HAYES: Good point. That law has changed in Lee County. If you get a license in Lee County, it's going to be a State certified license. So you're not going to get a registered license on a block exam. You're going to have to go do the State. MR. DIEHL: I understand. CHAIRMAN HAYES: So that's not even relevant then. MR. DIEHL: Are there any temporary license that can be given until he takes this test next month? MR. NEALE: He's not here to testify. CHAIRMAN HAYES: He's not here to testify. So I think your choice is one of two things, either have him go take the exam, or you take the exam. MR. DIEHL: Okay. CHAIRMAN HAYES: Or try to come back next month. And, I guess, at this point we're not going to make you an promises that unless he takes the examine and shows up next month that we're not going to promise anything. Page 25 June 19, 2002 MR. DIEHL: I think all the paperwork's in order as far as his credit reports are outstanding. CHAIRMAN HAYES: Yes. Everything else looked good. Okay. All right. Thank you very much. MR. NONNENMACHER: Okay. Mr. Chairman-- CHAIRMAN HAYES: Yes, sir. MR. NONNENMACHER: -- I've just been notified that Mr. Contreras is present, number one. CHAIRMAN HAYES: Excellent. That was my next request. Jimmy Contreras, request to qualify second entity, are you here, sir? Wouldyou come up to the podium, please. MR. DICKSON: Should we, before he- as he's coming up, that gentleman we just talked to should we keep that packet? CHAIRMAN HAYES: Yes. I would suggest you do keep your packet. MR. DICKSON: Keep all of it. Okay. CHAIRMAN HAYES: Good morning, sir. MR. CONTRERAS: Goodmoming. CHAIRMAN HAYES: I'm going to ask you to be sworn in. Would you raise your right hand. Thereupon, JIMMY CONTRERAS, the speaker herein, having first been duly sworn, spoke as follows: CHAIRMAN HAYES: Your name, for the record? MR. CONTRERAS: Jimmy Contreras. CHAIRMAN HAYES: And, Mr. Contreras, your reason for being here this morning? MR. CONTRERAS: Trying to get a -- trying to qualify for a second entity. MR. CRAWFORD: You currently run a tile business, currently own and manage a tile business? Page 26 June 19, 2002 MR. CONTRERAS: MR. CRAWFORD: MR. CONTRERAS: MR. CRAWFORD: Right, I do. Which is named? Contreras Tile & Marble. Contreras Tile & Marble. And now you want to qualify a second tile and marble business? MR. CONTRERAS: Um-hum. MR. CRAWFORD: Okay. What's the difference between the two businesses and how do they interact? MR. CONTRERAS: The second business is basically it's a granite fabrication company that installs countertops, kitchen tops. MR. CRAWFORD: Is that also a Contreras Tile & Marble? MR. CONTRERAS: We do basically hard surface flooring, bathrooms, vanities, counter tops. MR. CRAWFORD: So it's two different -- MR. CONTRERAS: It's just one material, slab material. Other materials are broken down into whether it's 24 by 24 pieces or 12 by 12 or 18 by 18. MR. CRAWFORD: then? MR. CONTRERAS: MR. CRAWFORD: So it's two different types of tile business Right. Okay. The two businesses are not necessarily competing against each other. MR. CONTRERAS: No, not at all. MR. CRAWFORD: Okay. MR. DICKSON: And they had a qualifier before, because they started in 1995. MR. CONTRERAS: Actually, they are operating in-- CHAIRMAN HAYES: Another county. MR. CONTRERAS: -- another County. MR. DICKSON: I got ya. Okay. Page 27 June 19, 2002 CHAIRMAN HAYES: I have a question, Mr. Contreras, are you employed by either one of these companies? MR. CONTRERAS: Well, I still have the Contreras Tile and Marble. And as far as it's open, I mean, the license is open. We still carry Workman's Comp liability and everything. I'm not pursuing it right now. I am working with the other company as far as doing sells an managing their jobs and everything that goes on. CHAIRMAN HAYES: So you're saying the first company is licensed to operate, everything is in place, but they're actually not doing any business? MR. CONTRERAS: Right. Exactly. CHAIRMAN HAYES: Okay. MR. CRAWFORD: So, Mr. Neale, they would have one qualifier in one county and another qualifier in another company? MR. NEALE: Yes. That's the way it would be operating. MR. CONTRERAS: And actually, the other owner of the company is going to get his license. The only reason he hasn't is because the book to get the license is not out right now. It doesn't come out til next month. And that's been, actually, a lot of people's holdback right now as far as trying to get their license. The book hasn't been published. CHAIRMAN HAYES: According to your application, the owners of one company are the same owners that own the second company. So those people own both the companies. MR. CONTRERAS: Right. CHAIRMAN HAYES: Also, according to your application, you have absolutely no ownership in either company? MR. CONTRERAS: Now, you say either company, you're talking about? Page 28 June 19, 2002 CHAIRMAN HAYES: Item K of your application says, "What percentage of ownership do you have in the present businesses you're qualifying and what percentage of ownership do you have in the businesses you are attempting to qualify?" And you write, "None." MR. CONTRERAS: Um-hum. CHAIRMAN HAYES: So you don't own any stock in either one of these? MR. CONTRERAS: I own Contreras Tile & Marble. The other company I don't have any ownership whatsoever. CHAIRMAN HAYES: Okay. Mr. Nonnenmacher, I'm going to ask that Item K be corrected in his application then, because it clearly says, "None for either business." MR. NONNENMACHER: What is the percentage of ownership on-- MR. CONTRERAS: On Contreras Tile & Marble, I'm full owner of Contreras Tile & Marble. CHAIRMAN HAYES: You're 100 percent owner? MR. CONTRERAS: Yes, sir. MR. DICKSON: And then on Protile, which is the one he's trying to qualify we do have a resolution of authorization in here signed by the president and vice president that he does have full control of activities. CHAIRMAN HAYES: I need a motion. MR. DICKSON: Everything's in order. The credit report on both companies and individuals is good. I move that it be approved. MR. CRAWFORD: Second, Crawford. CHAIRMAN HAYES: I have a motion. I need a second. MR. CRAWFORD: Second, Crawford. Page 29 June 19, 2002 CHAIRMAN HAYES: further discussion on the Board? Calling for the vote. Aye. I have a motion and a second. Any All in favor? MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Motion carries. Very well. MR. CONTRERAS: Thank you. CHAIRMAN HAYES: Thank you, sir. Your paper work is all here. So you're not going to be able to go down to the County today to finish up your business today. It won't be back until tomorrow. MR. CONTRERAS: Okay. CHAIRMAN HAYES: All right. MR. CONTRERAS: Thank you. CHAIRMAN HAYES: Thank you. Okay that concludes our new business. Under old business I have Daniel Malinowski again. Mr. Malinowski, are you here? MR. MALINOWSKI: CHAIRMAN HAYES: Yes, sir. Would you come up to the podium, please. I'm going to ask you to be sworn in again. Thereupon, DANIEL MALINOWSKI, the speaker herein, having first been duly sworn, spoke as follows: CHAIRMAN HAYES: Okay. Do we have a current credit report on you? And I guess the other major item we were questioning last month was your citation payment. MR. MALINOWSKI: It has been paid, sir. Page 30 June 19, 2002 CHAIRMAN HAYES: Mr. Nonnenmacher, can you verify that? MR. NONNENMACHER: Yes, it was paid this morning, sir. But we have one other issue. Approximately a month ago, we called Mr. Malinowski into the office on a complaint that was received. We let him look at the complaint to answer it, and he left the office with the complaint. We have been trying to get the complaint back since then and have been unsuccessful in receiving that complaint back. And it's the only copy we have. MR. MALINOWSKI: I'll have that back to his office within an hour after this meeting. CHAIRMAN HAYES: You have already attempted to get it back, Mr. Nonnenmacher? MR. NONNENMACHER: Yes, numerous times. CHAIRMAN HAYES: Have you been able to contact Mr. Malinowski? MR. NONNENMACHER: Yes. start CHAIRMAN HAYES: MR. MALINOWSKI: CHAIRMAN HAYES: asking him for that. And what was his response? Okay. I'll bring it back and -- How often or how long ago did you first MR. NONNENMACHER: The same day that he left with it. CHAIRMAN HAYES: Which was? MR. NONNENMACHER: Approximately-- hold on, one second, please. CHAIRMAN HAYES: Approximately one week, two weeks? MR. NONNENMACHER: Approximately two months ago. CHAIRMAN HAYES: Approximately two months ago. And he waited 'til today to pay his fine also, after we requested that he do Page 31 June 19, 2002 it last month. And if I can remember correctly, his attorney said they would do it that day. MR. NONNENMACHER: Yes, sir, it was paid this morning. CHAIRMAN HAYES: And it's not been paid 'til this morning. Yes, sir, Mr. Malinowski, what's your reason for being here? MR. MALINOWSKI: can do my paving business. CHAIRMAN HAYES: Williams? MR. MALINOWSKI: CHAIRMAN HAYES: I'm trying to get my paving license so I You show that you have paid Dick Yes, sir, I have. And Macd-Tampa has been paid. This Gulf Coast Collections, or whatever it is, is being pay $150 a month. Do you have any kind of verifying paperwork to that? MR. MALINOWSKI: Yes, I do. And I was incorrect with the $150 a month. It's actually $100 a month. All those items are in an area of collections. Four of those were medical related and I have insurance through the City of Naples where I'm a fireman, and I have supplemental insurance. These items should have been picked up either by my primary or by my secondary insurance. My insurance companies are arguing who is going to pay them, who's not going to pay them. So I've made a payment arrangement to get these things taken care of so I'm not held up any longer. MS. RUTHERFORD: CHAIRMAN HAYES: MS. RUTHERFORD: If I may, Mr. Malinowski gave me. Your name for the record. Sorry. I'm Mary Rutherford. I'm here as counsel for Mr. Malinowski. I do have one copy of a verification that he has been making his monthly payments. They confirm an April 3rd, May 7 and June 5, $100 a month. This does come from the Gulf Coast Collections Bureau. And those payments are for the four Page 32 June 19, 2002 accounts that were medically related, David Lawrence Center and ES copy (Es copy) Center Southwest Florida and Joseph Spano. MR. MALINOWSKI: Spano. MR. CRAWFORD: I've made copies. I'll be glad to pass it up. What is the balance on that account? MS. RUTHERFORD: They don't give a final balance. MR. CRAWFORD: Okay. MS. RUTHERFORD: What they do is they confirm that he is making regular monthly payments and has been doing so for the last three years. MR. CRAWFORD: What's your estimation of the balance? MS. RUTHERFORD: How much do you still owe? MR. MALINOWSKI: Approximately $3007 MR. CRAWFORD: $300. CHAIRMAN HAYES: And it says on here, "Answer to the credit report, civil judgement with Sheriff's Office has been paid." You got anything on for record? MS. RUTHERFORD: I don't have the satisfaction of judgement. I am working Mr. Shriver about that. In fact, I had a conversation with him earlier today and yesterday afternoon about getting that satisfaction. MR. CRAWFORD: If I read this credit report right, there's a couple new loans on here that look like they're current, right, Americredit, an automobile. MR. MALINOWSKI: MS. RUTHERFORD: MR. CRAWFORD: guess, June of this year. That is correct, sir. That is correct. May 2002 and Conventional Real Estate, I Page 33 June 19,2002 MS. RUTHERFORD: He's about to show the Board that he was able to rehabilitate his credit and make regular payments since credit was the major issue. MR. CRAWFORD: What's this citation all about that was picked up and not delivered? What's the stow behind that? MR. MALINOWSKI: I was supposed to pay it last month, and in trying to survive and doing what I'm doing, I'm a fireman and I own a -- right now I'm just working as a grading contractor doing grading work. It slipped my mind. I was reviewing everything last night with Counsel and trying to make sure that everything was in order when I come here today and we realized it slipped my mind. So I went over and took care of that problem this morning. CHAIRMAN HAYES: I'm sorry. That's the old Mr. Nonnenmacher was questioning? MR. MALINOWSKI: That was -- it was approximately six -- it could have been two months. I stopped in the office. When they had to reschedule a meeting. Mr. Ossorio handed me a complaint to read and I inadvertently walked out with it. Before my last meeting came, they asked me did I have a copy of it, and I just -- I forgot to bring it back to them. I told them as soon as I leave here, I will go -- CHAIRMAN HAYES: That's not I'm asking. What's the nature of the complaint? What's it about? MR. MALINOWSKI: CHAIRMAN HAYES: MR. MALINOWSKI: What's it about? What's it about? It's about a dispute with a builder in town that I had done business with in 1997. CHAIRMAN HAYES: The compliant was just currently filed on a dispute that occurred in 1997? MR. NONNENMACHER: I can bring Mr. Ossorio up. He received a compliant and investigated it. Page 34 June 19,2002 CHAIRMAN HAYES: Mr. Ossorio, are you here? Your name, for the record. MR. OSSORIO: Michael Ossorio. Good morning members. Good morning, Mr. Chairman. MR. NEALE: Since he's giving testimony, he should be sworn as should everybody. CHAIRMAN HAYES: As a County -- we don't have Mr. Nonnenmacher ever get sworn. MR. NEALE: If they're giving testimony, they always should be sworn. CHAIRMAN HAYES: Really. Okay. MR. OSSORIO: Good morning. CHAIRMAN HAYES: Good morning. Let's try it again. MR. OSSORIO: It's a complaint that was registered by a certified general contractor. It's an unfounded complaint. It's unfortunate Dan Malinowski's not a licensed contractor. But it had some substance in there that we want to bring to the Board in couple months concerning a judgement for -- I am not surely correct if it was 32,000 or $64,000 judgement, a civil judgement for damages by Dan Malinowski's company. We have not received that hard copy yet. CHAIRMAN HAYES: But that supposedly occurred in 1997 and the contractor is just now getting around to filing a complaint? MR. OSSORIO: It was 1997 it occurred or 1998 or the judgement was just passed. I'm not sure. I did review the documents all total. And that's why we wanted it back so we can review it, but we haven't got that back yet. MR. CRAWFORD: So Mr. Malinowski, you have a current judgement against you for -- MR. MALINOWSKI: It's not against me. It's for one of my old businesses. What had happened-- this event happened in 1997. I Page 35 June 19, 2002 was doing work for American Dream Builders. They had a problem with a slab that had cracked and a house that had settled. The owner's son was the superintendent on the job site. All I did was I went in and I put the house pads in and I grated them. They were responsible for their own compaction. They were possible for their own engineering to make sure that everything had been done. My fill dirt had passed compaction. The house pad had cracked and the house settled. Subsequently, we tried to -- there was six parties that tried to resolve the issue, six subs that were on that job. And the owner of the company said, "No." He wanted me one hundred percent responsible for it. I lost all the work I was doing for this contractor. And subsequently, that was the beginning of my demise and why my credit went that way, because I was --I thought it was a smart business man. I was working for one customer and ultimately found out that you can't put all your eggs in one basket because if you lose one contract and everything rests in that one. I mean, from that point, I lost everything that we had and we're trying to reestablish and to start over. MR. CRAWFORD: Understood. But you have a current judgement against you. MR. MAL1NOWSKI: No, sir, it is not against me. MR. CRAWFORD: Okay. It is not against you. MR. MALINOWSKI: No, sir. MR. CRAWFORD: It is against a former company that you worked for? MR. MALINOWSKI: Yes, sir. MR. CRAWFORD: Okay. And who owns that company? MR. MALINOWSKI: The company is no longer inexistence. Page 36 June 19, 2002 MR. CRAWFORD: Okay. CHAIRMAN HAYES: Mr. Malinowski, also in your packet it seems we have a current pay stub, I guess, from the City of Naples. MR. MALINOWSKI: Yes, sir. CHAIRMAN HAYES: Which shows a $254.90 current deduction for a garnishment. MR. MALINOWSKI: In my credit report that I submitted to you a year ago, this judgement never showed up. And that was the judgement against Mr. Ossorio's friend that owns Total Care Tree Service. Somehow a copy of that judgement got into my file. It hasn't shown up anywhere that I've tried to get credit. It didn't show up when I tried to do my mortgage. It didn't show up when I tried to do my truck. But it showed up in your packet a year ago. Your instructions to me a year ago was to make everything right to the best of my abilities. That was one item that was a concern of yours a year ago. And that pay stub just shows that I am trying to make that right. He's getting his money directly from what is there. Although that judgement has never shown up on my credit report, I'm trying to do the best that I can to make it right for everyone. MS. WHITE: I'm uncomfortable with this. There's a history of problems here, and I don't think you've done your homework. I think I'm very uncomfortable not knowing what the complaint's about. I don't think we ought to do anything with this. MR. DUNN: I have a question, please. The other company, were you MR. MR. MR. MR. the owner of the other company where the slab cracked? MALINOWSKI: Yes, sir, I was. DUNN: Were you licensed to do that work? MALINOWSKI: Yes, sir, I was. DUNN: At the time? Page 37 June 19, 2002 MR. MALINOWSKI: Yes, sir. I've held a license in Collier County up until 1998 when I opted to go to work with somebody. And I decided I didn't like it. And I've been trying to come back. And because of my credit report, I've been denied reauthorizing my license. My old County license number used to be 880230. So I have been n business since '98 -- or excuse me, '88. MR. DUNN: Is that the landscaping license? MR. MALINOWSKI: Yes, sir. MR. DUNN: I wouldn't consider a foundation for a house to be done under a landscaping license. Is that the license that you used to do the work for that certified general contractor? MR. MALINOWSKI: Yes, sir. In accordance with Collier County, that was an acceptable license. MR. DUNN: It's acceptable to do a house pad foundation with a landscaping license? Am I correct on that? CHAIRMAN HAYES: I don't think so. But obviously, Mr. Dunn, you've got to know that that would be information in conversation regarding a hearing on a complaint, a so-called complaint, that is still out there. It's not something we need to really hear too much today. MR. DUNN: Okay. MR. DICKSON: Good point there. CHAIRMAN HAYES: Anybody want to take the lead on this? MS. RUTHERFORD: If I may, the Board was concerned mostly about Mr. Malinowski's financial ability to run a business at this time and not create a economic loss that the public would sustain. He admits that he has had past history. He did file a bankruptcy. He has made efforts to improve his credit history to pay off his debts, whether fast or slow according to other people's standards, he is making the effort. Page 38 June 19, 2002 In addition to that, he has sought assistance of counsel, and he will be using an accountant if license is approved so there will be two other checks in place to make sure that the business and the public -- the public's protected and the business is run correctly. We would ask if the Board is still unsure, perhaps you could give him a temporary license, put him on a probationary period. He would gladly come back and report as often as you would like, provide whatever documentation you need. As you heard, Mr. Ossorio's been very active, because he is friends with one of the people that Mr. Malinowski is paying off and-- MR. NONNENMACHER: Mr. Chairman, I object to that. That has nothing to do with this case. MS. RUTHERFORD: We do know that he is monitoring Mr. Malinowski very closely, which is part of his job. So the public is being protected. He is current on the payments that he is supposed to be making. He does have his steady job with the fire department where he has been there for 20 years. He is a veteran there. He also is engaged in community involvement, two events which were recently publicized in the local newspaper. He is making an effort. He is asking for the opportunity to show that he can run a successful paving business. He cannot do that unless you allow him a license of some kind. He understands that you have reservations. He just wants an opportunity to prove himself you. And without some form of a license, he cannot do that. In addition, Mr. Malinowski has had the equipment necessary to run this business for quite sometime. He's making payments on this equipment without being able to use it. So he is asking you for the opportunity to have the business to be able to pay for the equipment in a less restrictive way than he is on his current income and to prove himself. Certainly he understands that if he messes up in any way, Page 39 June 19,2002 you will take his license from him. He knows that there are other legal ramifications. He realizes he should not have run the business the way he did previously. He's trying to change that. You can't change your habits overnight, and he is making the effort. And he asks the Board to consider that. MR. DICKSON: Mr. Malinowski, I have a question for you. MR. MALINOWSKI: Yes, sir. MR. DICKSON: Where are you going to get the money to run this company? MR. MAL1NOWSKI: I have it set up with my attorney that when we do paving jobs that we require a deposit. The deposit pays for all of the expenses for that job. And my profit comes when a job is finished and when a customer is satisfied. My accountant has also agreed with that's the method of business that I need to take. MR. DICKSON: The thing -- you've sat here this morning. You've been to this Board before. You saw how we bend over backwards to try everywhere in the world to put someone out there to go to work. You know that; correct? MR. MALINOWSKI: Correct. MR. DICKSON: But each time you've come before this Board, and I've been here a longtime, there's something new. If you would put yourself in our shoes, there's no way this is going to fly, because there's something that keeps coming up. But it's not that we have it in for you, but our only job for this County is to protect the citizens of Collier County. If you were watching this, you would have reservations as well. I'm just -- personally, I think you need a partner and -- MR. MALINOWSKI: I can-- MR. DICKSON: -- I can read this Board where it's going. Page 40 June 19,2002 MR. MALINOWSKI: I can get a partner, sir. But as you've said up there this morning and told me that a partner, his liabilities are not going to be inclusive. MR. DICKSON: That's going to be true. You need a licensed partner. MR. CRAWFORD: I disagree a little bit with Mr. Dickson. I hate to do that, but -- MR. DICKSON: That's fine. MR. CRAWFORD: -- Mr. Malinowski been here three times already, and he's turned his credit around, the best I can tell it. The one item I want to make clear on is the 30 or $60,000 past judgement. Are you liable in any way for that amount of money? MR. MALINOWSKI: The corporation is no longer in existence was liable, and it was only for $24,000, sir. MR. CRAWFORD: 24,000. Mr. Neale, is that -- are you comfortable with that situation or-- I mean, I guess people can sue anybody over anything. And I just -- if he has a $24,000 lawsuit hanging over his head, that's the only thing that worries me. MR. NEALE: The issue is that according to staff and we don't have any evidence other than to hear testimony at this point. But based on the testimony of staff, it appears that this is a unsatisfied court judgement, that there is a judgement rendered against the applicant for an amount of money that is unsatisfied. And that judgement was by a party with whom the contractor -- the applicant conducted business as a contractor. MR. CRAWFORD: Is that your independent recollection, Mr. Nonnenmacher, that's an unsatisfied judgement? MR. NONNENMACHER: Yeah. Remember, it's a little sketchy, because when we called Mr. Malinowski in and showed him the complaint, that's the last we saw of that complaint, and it's the Page 41 June 19, 2002 only copy of the complaint. So it wasn't investigated thoroughly whatsoever. MR. NEALE: I would suggest to the Board that as this is a critical matter in the determination of someone's financial responsibility based on Florida Administrative Code and Florida statute, it's a relatively simple matter for anyone to research history of a case file or court file and determine the status of the judgement and the status of the case. So I would suggest that the Board prior to making a finding of fact on this one, there's a significant fact in question that the Board get the full set of facts on this matter. MR. DICKSON: But, Mr. Neale, under oath Mr. Malinowski has admitted that it's there. And we go back to the very first case we had that there's no leeway here. MR. NEALE: Shall refuse. MR. DICKSON: We have to refuse by State law until that judgement is satisfied; correct? MR. NEALE: That's my reading of the code. CHAIRMAN HAYES: Well, I'm going to tell you that my own feeling of it is that we have a gentleman who's trying to resurrect a license that has applied, made full application. Everything else is supposedly he's done to do what he's supposed to do to comply. And during said time, we get a complaint registered. Well, there's no question in my mind that I would not be real happy about issuing you a license until we have heard that complaint. If that complaint has no merit, if there's not a problem with it, then we'll throw that out as evidence, if you would, in our own mind on whether we see fit to grant him a license. But I would, as long as there's a live complaint in place, I'm not even considering giving you the license. Page 42 June 19, 2002 MR. NEALE: And Mr. Hayes, if I may? Based on my hearing of the testimony as Mr. Dickson brings up Mr. Malinowski's own testimony, it's not a complaint. It is a unsatisfied judgement. CHAIRMAN HAYES: It may be an unsatisfied judgement that started the complaint. But I understand, Mr. Nonnenmacher, you have a formal compliant registered with Collier County Licensing. MR. NONNENMACHER: That is correct. Mr. Ossorio is handling the case. MR. NEALE: So, I mean, the judgement is something that the Board must consider in determining financial responsibility. And the complaint, if it was a result of that, it is another matter. But that judgement, if it exists, I would suggest that the Board review that judgement before making any determination on this. CHAIRMAN HAYES: Well, correct me if I'm wrong, we had mentioned earlier, we can only consider if it's current within five years. So if that judgement is over five years old, we're not bound by law then to deny. MR. CRAWFORD: Well, no, the judgement was issued recently. The action occurred prior. MR. NEALE: The judgement was issued. But if it is still -- my reading of this is if the judgement was unsatisfied within the past five years. So if the judgement was rendered six years ago but it's still unsatisfied, that unsatisfied judgement is still out there. It's not relevant -- the way I read it, it's not relevant as to the date of the judgement. It's relevant as to the date it was unsatisfied or satisfied. MS. RUTHERFORD: Naturally, if I had known about it, I would have prepared something for you. I found out this morning as well. MR. DICKSON: Mr. Malinowski, it's in your benefit to get that report back to them and get this issue resolved quickly. Because Page 43 June 19, 2002 you've heard State law in the other case. We can't do anything. Our hands are tied. I make a motion that we withhold adjudication on this issue until at such time the judgement issue discussed here is resolved. MS. WHITE: I second. CHAIRMAN HAYES: I have a motion and a second. Any further discussion? Calling for the vote. All in favor? Aye. MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Do you understand, Mr. Malinowski? I apologize for the runaround, but obviously you've heard case law even today. MS. RUTHERFORD: Thank you. CHAIRMAN HAYES: Okay. I have two contested citations on the public hearings. I'm going to ask, do we need a break? We're good to go. Let's continue on then with public hearings. Peter Davidson contesting Citation 1234, issued for not license. Mr. Davidson, are you here? Not present. MR. NEALE: IfI may, that bares on the citation. Give me a second to find the statutory authority. CHAIRMAN HAYES: I'm sorry, didn't hear you, Mr. Neale. MR. NEALE: That does bare on the citation if the party does not appear. CHAIRMAN HAYES: So what you saying then, all we can do is say that the citation stands? Page 44 June 19, 2002 MR. NEALE: That's my understanding. Let me just find the statutory authority. CHAIRMAN HAYES: Okay. In reviewing the information in our packet regarding the citation and the timing, the individual was cited two days prior to taking his exam in Gainesville and did, in fact, get a license within 21 days of the citation. So he is, in fact, licensed as we speak. MR. NONNENMACHER: And also, Mr. Chairman, for the record, he was notified and the green card is in our possession of today's hearing. MR. NEALE: The statutory authority on this one. I don't-- Mr. Zachary is looking at -- the authority is under Florida Statute 489.127, wherein it says, "If the person issued the citation or his or her designated representative shows that the citation is invalid or that the violation has been corrected prior to appearing before the Enforcement or Licensing Board or designated Special Master, the Enforcement or Licensing Board or designated special master shall dismiss the violation unless the violation is irreparable or irreversible." So if, in fact, he has corrected the violation by this time, the Board may dismiss the citation or the Board may deem that the citation is valid, because he is not here to show proof that it is invalid and impose the penalty. So the Board is left with the discretion. CHAIRMAN HAYES: So in other words, what you're saying is had he showed up today he probably would have been guaranteed we throw it out because of his compliance? MR. DUNN: Not necessarily. MR. NEALE: Not necessarily. CHAIRMAN HAYES: Not necessarily, but a heck of a lot better chance we have with him not here to throw the questions out. Page 45 June 19, 2002 MR. CRAWFORD: He got the violation on March 6th and took the test on March 8th; right? CHAIRMAN HAYES: Right. MR. NONNENMACHER: Staff has no objection to a dismissal in this case. There was no problem with the respondent and he did comply. And that's what we're all about. MR. DUNN: I would beg to differ. How long has this person been conducting business without a license? I think it's completely irrelevant whether it's two days or two weeks or two years to conduct business without a license. The fact that he passed the test is irrelevant. How long is this been going on? MR. JOSLIN: It's obviously he took the citation before he actually acted upon taking thetest. MR. DUNN: Right. And to just to not bother to show up -- MR. NONNENMACHER: Well, just to ease your mind a little bit, staff is not recommending anything to you. We're just saying we have no objection. A few more facts is the gentleman is from Orlando. The reason for him being in Collier County was to paint a Publix Supermarket, and he's back in Orlando. We have no intimate knowledge of this person. So we're just saying we have no objection if you want to dismiss it. CHAIRMAN HAYES: Let me ask you this, Mr. Nonnenmacher, to the best of your recollection, this is the third time it's appeared on our agenda. And for problems other than the cited, we postponed it. Did he show up here at any of the other previously scheduled meetings? MR. NONNENMACHER: No, sir. MR. DICKSON: I move the citation stand. MR. JOSLIN: Joslin, second. Page 46 June 19, 2002 CHAIRMAN HAYES: I have a motion and a second. Any further discussion? MR. CRAWFORD: Just one question, is there any enforcement of this citation? Does he have so many days to pay or how does that work? MR. NONNENMACHER: The way I understand itworks is it comes before this Board. They make an order. Then it goes to the County Attorney'sOffice for collection. CHAIRMAN HAYES: I think what it will end up doing, Mr. Crawford, would be get him in trouble the next time he comes to Collier. MR. CRAWFORD: The next time he needs to pull a permit? CHAIRMAN HAYES: Exactly. MR. CRAWFORD: Okay. CHAIRMAN HAYES: I have a motion and a second. Any further discussion? MR. NEALE: Excuse me. If we could just to so that the finding is appropriate and so that you limit the chances of appeal. If we could have Mr. Ossorio come up and be sworn and testify to the facts of this case. That would give the Board support for its decision. CHAIRMAN HAYES: Board have any objections to that? MR. CRAWFORD: No. MR. DICKSON: No. MR. NEALE: He can state the circumstances of it, because it must be shown that the violation was -- that the citation was valid. And so he needs to testify as the circumstances of the citation. CHAIRMAN HAYES: Mr. Ossorio, you have been previously sworn in. So I don't think we need to go through that again. MR. OSSORIO: Good morning. For the record, Mike Ossorio, O-S-S-O-R-I-O. On the day in question, Peter Davidson on March Page 47 June 19, 2002 6th, 2002, approximately 11:00 o'clock, he was proceeding a job as a painting contractor located on a commercial building located at 8575 Collier Boulevard. We issued a stop work order for that job. And he proceeded to go down to Gainesville and take the exam. He took the three hour -- he took a five-hour exam, passed it and got a license within ten days. CHAIRMAN HAYES: And that lifted your-- with that license then, he was able to lift the stop work order on the job? MR. OSSORIO: That is correct. CHAIRMAN HAYES: So the job was able to be completed, finished legitimately? MR. OSSORIO: That's correct. MR. LLOYD: But he had been engaged in painting without a license? MR. OSSORIO: That's correct. R. CRAWFORD: In other counties, most likely. MR. LLOYD: Well, in this County. CHAIRMAN HAYES: Well, in this county he had came to town to do a Publix, and that was quite possibly his only job. MR. OSSORIO: It might just take a phone call to Mr. Davidson to go ahead and send down a check. I found him pretty personable. Either he just got busy. I think he does a lot of Publix's and I know there's two Publix's going up in Collier County. He's probably one of the contractors on that site. So it's a matter of just going down there and letting him know that he needs to pay his bill. I'm sure he will. HAIRMAN HAYES: And the recommendation of his bill, according to the Citation is $300? MR. OSSORIO: That is correct. CHAIRMAN HAYES: Does that stand with the County. MR. OSSORIO: We have no objections. Page 48 June 19, 2002 MR. DICKSON: That's cheaper than a trip from Orlando. MR. OSSORIO: I have to -- that is correct. I have to admit that he was the first painted contracted I've seen go out within two days, get the books, take an open-book examine, go to Gainesville, study and come back with a 75. He got like a 90 or something like that. So we were impressed. MR. DUNN: I have a question. Did any work proceed during the time the stop work order was issued? MR. OSSORIO: Not that I know of. MR. DUNN: My comment would also go to the fact that whether or not it's cheaper to come down here from Orlando or pay the $300 is irrelevant. The I think it's important that the contractor, particularly a contractor that will come back to the County, do more work in the County, I think that contractor needs to have an intimate understanding that they cannot and will not proceed as to however they feel like it. That's all. MR. DICKSON: Offer the question - the motion. CHAIRMAN HAYES: We have a motion and as econd on the floor. Any other discussion? MR. DUNN: I'm not clear on the motion. CHAIRMAN HAYES: The motion was that the citation stand at face value. MR. DUNN: Okay. CHAIRMAN HAYES: I'm calling for the vote. All in favor? MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. Page 49 June 19, 2002 MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Very well. It goes unanimously. Okay. John James, C-R-O-N-E-N, Cronen, contesting Citation 1741 issued for no license. Mr. Cronen, are you present? MR. OSSORIO: He is not present. CHAIRMAN HAYES: And this is also one that's been postponed a number of times. And we do have some information our packet. And he is also not present. Mr. Ossorio, you have any testimony you wish to give us this morning? MR. NEALE: Mr. Chairman. Mr. Ossorio, did the respondent receive notice to be here today? MR. OSSORIO: He did receive notice. We sent him a certified letter returned not claimed. MR. ZACHARY: Okay. He didn't claim it. Sorry. Go ahead. CHAIRMAN HAYES: Mr. Ossorio? MR. OSSORIO: Mr. Cronen was issued a citation back in 4/23/02, approximately 11:00 o'clock over in Barfield over in Marco Island approximately 590. It's a single-family home. He was up on the ladders cutting down trees with chain saws and chipping on premises on the Marco Island right-of-way. We issued a stop work order. The citation was issued. We advised the homeowner that there was no Worker's Comp or insurance on the gentleman. He was satisfied that the issued stop work order had to be issued. And it was a verbal agreement between Mr. Cronen and the homeowner to cut the trees for approximately $2,000. That was my understanding after we conducted an interview on site. CHAIRMAN HAYES: Did he cease to cut trees after you cited him? MR. OSSORIO: Yes, he did. Yes, he did. Page 50 June 19, 2002 CHAIRMAN HAYES: Do you know if the homeowner's gotten someone else to finish thejob. MR. OSSORIO: I was in contact with the homeowner a month later and my understanding was hat he did it himself or had someone help him complete the job. CHAIRMAN HAYES: And what kind of license did Mr. Cronen need to cut that tree? MR. OSSORIO: To be able to cut trees in Collier County, it requires a two-hour business and law exam. It's called a Tree Cutting License. CHAIRMAN HAYES: We have a tree cutting license? MR. OSSORIO: That's correct. MR. CRAWFORD: Is that our jurisdiction in Marco? Is that your jurisdiction? MR. OSSORIO: We have a interlocal agreement with Marco Island and the City Naples. MR. CRAWFORD: That's how it works. Okay. MR. NEALE: It's the same as the City of Naples. CHAIRMAN HAYES: Same as the City of Naples. MR. DICKSON: U.S. Department of Labor just came out with statistics yesterday on the ten most dangerous jobs in the entire United States,and number one with the highest fatality rate is tree trimmers. MR. NONNENMACHER: I thought it was Chairman of the Licensing Board. MR. CRAWFORD: That's number two. MR. DICKSON: It's something like 120 deaths per 100,000 employees. It doubles roofing and steal erection all the rest of them. MR. OSSORIO: I try to educate the homeowner to let them know why. I mean, it's a sad time when you have to tell the Page 51 June 19, 2002 homeowner that, you know, this person needs to go home for the day and there's trees in his backyard is a mess. But he was understanding that there was no Worker's Comp Insurance and if there was any kind of a problem, he would be paying on his insurance. So he was satisfied that the stop work order was issued and the gentleman went home. CHAIRMAN HAYES: Mr. Nonnenmacher, once again, we have put this agenda item off for a couple of months now. Do you have any recollection of Mr. Cronen's presence at any of the previous scheduled times, specifically the last one, I guess. MR. NONNENMACHER: No. He was not here and I don't think he will ever show up, because I believe you were given a letter sent to us by him denouncing the Licensing Board, the Government, the State, the County. We have no jurisdiction over him. And the funny thing is, I just got a phone call a couple days ago from Mr. Bowling in the State Attorney's Office. He was investigating me, investigating Mr. Cronen's complaint that I had no jurisdiction and he wanted me arrested, because I was the supervisor of the outfit due to the fact that I went against the Constitution of the United States. So I had an interview with Mr. Bowling last week. CHAIRMAN HAYES: Who is Mr. Bowling. MR. NONNENMACHER: He's an investigator for the State Attorney's Office. MR. DICKSON: Dickson, I move to affirm the citation that it remain as valid. CHAIRMAN HAYES: How about the price of it? MR. DICKSON: Price remains the same. CHAIRMAN HAYES: I have a motion. I need a second. MR. DUNN: Second, Dunn. Page 52 June 19, 2002 CHAIRMAN HAYES: I have a motion and a second. Any further discussion? MR. CRAWFORD: Just one quick question, has he applied for a license for tree cutting? MR. NONNENMACHER: No, sir. MR. CRAWFORD: And we haven't-- MR. NONNENMACHER: He doesn't need one. You can't make him. MR. NEALE: If I may to soothe the Board's mind if necessary about his special appearance and notice and demand. Both Mr. Zachary and I have reviewed it and find it to be completely without merit. CHAIRMAN HAYES: Thank you, sir. MR. JOSLIN: One other question, is it possible that this gentleman could be still out cutting trees without a license? CHAIRMAN HAYES: No question. MR. BALZANO: He's out there. CHAIRMAN HAYES: Okay. I'm going to call for the vote. All in favor? Aye. MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Very well. He needs to pay the fine. Okay. That concludes the citation contest. We have cases in front of us at 10:30, do we need to take -- your fine? Anybody else need to take a breather or break? MR. DUNN: How about a five-minute break. Page 53 June 19, 2002 CHAIRMAN HAYES: Five-minute break. Okay. Let's do it then. We'll be back at 10:35. CHAIRMAN HAYES: I'm going to call this meeting back to order. We have three cases that we're going to be hearing this morning, Case 2002-02 and 2002-03 and 2002-04. Is everyone here for cases 02 and 03? MR. ZACHARY: Yes. CHAIRMAN HAYES: Okay. That's all I needed to know so we can continuation. And you're correct maybe to ask your witnesses for 04 to come in after lunch. MR. NONNENMACHER: Yes, sir. And one thing come up during the break, Ms. Fillmore from Yahl Brothers is present on the Malinowski case. Apparently it was discussed with the County Attorney. And if it would be no problem, she would like to address the Board. Am I correct on that? MR. NEALE: Yes. There's also discussion with me and I believe that it would be appropriate for this testimony to be heard at this point. CHAIRMAN HAYES: Okay, Mr. Neale and Mr. Nonnenmacher. And who is this, again? MR. NONNENMACHER: Ms. Fillmore, will you approach the podium. Ms. Fillmore, will Ms. Yahl be testifying also? MS. FILLMORE: That's up to you. MR. NONNENMACHER: It's up to you. CHAIRMAN HAYES: I'm going to ask you to be sworn in. MS. FILLMORE: Okay. CHAIRMAN HAYES: Ms. Fillmore, you're here with some information regarding Daniel Malinowski? MS. FILLMORE: Yes, sir. It's actually-- the judgement I have is almost $10,000, and it's under Dixie Trucking. We own Dixie Page 54 June 19, 2002 Trucking as well as Yahl Mulching 8,: Recycling. But he doesn't owe Yahl Mulching, just Dixie Trucking at this point. CHAIRMAN HAYES: And this is a judgement? MS. FILLMORE: Yes, sir. CHAIRMAN HAYES: And how current is it? MS. FILLMORE: It was signed in '97, May of'97, a house. MR. DICKSON: But it's current. MR. NEALE: It's current because it's still unsatisfied. CHAIRMAN HAYES: And I can't imagine why it wasn't on the credit report. MS. FILLMORE: I don't know. MR. NEALE: Probably because it was against -- is it against Mr. Malinowski personally? MS. FILLMORE: Daniel Malinowski Individually, doing business as Cash Lawn. MR. NEALE: They just don't -- judgements have a tendency not to get picked up or get picked up wrong. MR. DICKSON: May we request that she give a copy of that to the County? MR. NEALE: Yes, I think that would be appropriate. MR. DICKSON: Okay. Would you mind doing that? MS. FILLMORE: No, not a problem. CHAIRMAN HAYES: I'm going to say, in all fairness to Mr. Malinowski also, Mr. Nonnenmacher, when this gets registered, if you will with you, that you're going to sending out probably notice again for next month's hearing to Mr. Malinowski one more time? MR. NONNENMACHER: Yes, sir. CHAIRMAN HAYES: Would you make a copy of that and have that in that notice so that he is prepared for it? Page 55 June 19, 2002 MR. NONNENMACHER: Yes, sir. And while we're speaking about in all fairness, too, and all fairness to Mr. Ossorio. Mr. Ossorio was assigned to enforcing unlicensed contractor laws. Who he has as a friend is of no relevance to what happens before this Board. Mr. Malinowski was unlicensed and. Mr. Ossorio takes his orders from me as to how he performs his job. MR. DICKSON: But can I make a comment on future on him being on the agenda in the future? As per state law, if there are unsatisfied liens as a result of contracting business, there is no need for him to be on this agenda, because, by State law, there's nothing we can do. MR. NONNENMACHER: Does staff have the right to make that statement to a respondent or denying him the right to come before a Board? MR. NEALE: I would say that you can hand him -- he does have the right to come before the Board. But I would say that the -- it would be within the purview of the staff to say that whoever the applicant is that State law and the Administrative Code says, "Requires the Board to deny the application if there is an unsatisfied judgement relating to his contracting business." MR. NONNENMACHER: I will do that. MR. DICKSON: Thank you, Mr. Nonnenmacher. CHAIRMAN HAYES: Ms. Fillmore, any other testimony? MS. FILLMORE: I have a letter from Mr. Malinowski dated November 24th of '97, guaranteeing me that he would be paid in full no later than January of'99. CHAIRMAN HAYES: And has he made any attempts at all. MS. FILLMORE: Since this letter, I believe not. I have copies of the three checks that I did receive after the judgement totaling $600. Page 56 June 19, 2002 CHAIRMAN HAYES: So he did make some effort to repay you some of the judgement? MS. FILLMORE: 600 out of almost 10,000. CHAIRMAN HAYES: And that 600 the last time you received a payment was? MS. FILLMORE: In '98, June of'98. And when he was denied at the last time he applied, him and his wife came to my office to make arrangements, and I never heard from him again. CHAIRMAN HAYES: Does the Board have any other questions of Ms. Fillmore? MR. DUNN: Did Dixie Trucking judgement show up in the packet or no? CHAIRMAN HAYES: No, it did not. MR. DUNN: Although they might not show up on credit reports, and since the applicant had a counsel with him, would that be something that a counsel would know? MR. NEALE: May or may not. If she didn't research the record, she wouldn't know. And I can tell you from having been in practice for a time, clients don't necessary always tell you everything. MR. DUNN: Oh, I'm shocked. MR. JOSLIN: I believe she did make a comment this morning though that she just found out about this this morning. CHAIRMAN HAYES: That was the second one, I believe. This is a second lien. Mr. Nonnenmacher, this is a second judgement, isn't it? This is not one that we were aware of before? MR. NONNENMACHER: That is correct. CHAIRMAN HAYES: Yes, sir. So not only were they not aware of the first 'til this morning, they're not aware of this one at all, or at least the counsel is not. MR. NEALE: Um-hum. Page 57 June 19, 2002 MR. DUNN: Ma'am, I'm curious. How did you find how about this? MS. FILLMORE: One of my customers called me. MR. DUNN: Okay. MS. FILLMORE: I apologize for being late, because I got the phone call. And he said, "You know he's going up for licensing? No, I didn't." I grabbed the file and got here as quick as I could. So I do apologize for being late. MR. DUNN: No problem. MS. FILLMORE: And anybody who wants to see any of the files, they're more than welcome. MR. NEALE: If you could make a copy of the judgement. MS. FILLMORE: Sure. I'll be happy to. MR. NEALE: And whatever relevant the staff requests. MS. FILLMORE: Okay. I will do that. Thank you very much. MR. NEALE: And actually, if you could provide a copy of the judgement to the Court Reporter. MS. FILLMORE: Sure. MR. NEALE: She should have it on the record, too. MS. FILLMORE: Thank you. MR. DICKSON: Thank you for coming down. MR. NONNENMACHER: Thank you. CHAIRMAN HAYES: Thank you. Very well. Let's move on with the case hearing, Case Number 2002-02, Mark J. Semeraro versus Ronald Rodriguez d/b/a On The Level Builders. Are your people present? Okay. MR. NEALE: IfI may just for the Board's recollection and for the new Board members to -- if the Board may recall, on the 20th of February this year, the Board adopted specific procedures for hearing conduct, which I believe the Board does have. And so that's the Page 58 June 19,2002 manner in which the hearings will be conducted. If anyone has any questions about them, I will be more than happy to ask. CHAIRMAN HAYES: I'm going to briefly summarize them, Mr. Neale, so that we all understand it. The first item we're going to do is an opening statement by both sides, first the County, then the Defendant. Then the County will present their case using their witnesses, subject -- and their witnesses are subject to recross- examination. Then the respondent presents their case. Then the County has a chance to rebuttal. And then we'll receive closing arguments, first from the County, then from the respondent. And then I will ask the County for any rebuttal. And then we will close the public hearing. Then we will deliberate the issues, an issue of finding of fact and conclusion of law. And then if there are any, we'll deliberate on sanctions. Is that understood? MR. NONNENMACHER: I have a question, please? CHAIRMAN HAYES: Yes, sir. MR. NONNENMACHER: At the end of the findings of facts and conclusion of law, will staff get a chance to make recommendations and supply previous history in order that the Board can consider that during the penalty phase? MR. NEALE: Urn-hum. CHAIRMAN HAYES: I think so, Mr. Nonnenmacher, as long as you're the one that remembers to do that. MR. NONNENMACHER: Thank you, sir. CHAIRMAN HAYES: Okay. Mr. Neale, anything else before we get started? MR. NEALE: That will do it. Once the public hearing is closed, I will make some statements to the Board as to the matters to be considered just to make sure that they're on the record and then as you go through the deliberations and so forth, we'll be guided by the Page 59 June 19, 2002 judgement form, which, unfortunately, you don't have a copy of in your packet, but I'll guide the Board through it. CHAIRMAN HAYES: I do. MR. NEALE: Oh, you do? CHAIRMAN HAYES: MR. NEALE: Okay. CHAIRMAN HAYES: Yes, sir. Okay. We'll start with the County's presentation of the case. Mr. Zachary? MR. ZACHARY: Good morning, Mr. Hayes, Chairman; Board members. Robert Zachary, for Collier County. You-all have a packet already, but I'll go through a short opening. Back in 1999, December 1999, Mr. and Ms. Mark Semeraro entered into an contract to remodel of their house, certain rooms in their house, with On The Level Builders which is owned by Ms. Roland Rodriguez, who's the Respondent in this case. They first contracted to remodel bathrooms. As that work was progressing, they entered into a contract to remodel the kitchen. And to date, that work -- at this time, that work is still not finished. Mr. Semeraro made a complaint back in July of 2000, at which time the On The Level Builders responded to that complaint. And Mr. Semeraro hired an attorney. And there was various correspondence went back and forth and work continued. Work did stop on certain points and started again. And then at the last time that work was -- any work was done on the house was in May of 2001. And Mr. Semeraro will tell you that since that time no work has been done. And he will testify that he has not had any contact with On The Level Builders or the owner, Roland Rodriguez, since May of 2001. We've reviewed the complaint. The complaint is the violation of Section 4.1.3 of Collier County of Collier County Licensing Board Ordinance, "Abandoning a construction project in which he/she is engaged or under contract as a contractor. Project maybe presumed Page 60 June 19, 2002 abandoned if the contractor terminates the project without just cause or fails to notify the owner in writing of termination of the contract. And the basis for saying or fails to perform work for 90 consecutive days without just cost and no said notice to the owner. So at this time the County would be calling Mr. Semeraro as a witness. Not at this time, but after the opening statement from the Respondent to show that the work was abandoned and it's been over 90 days since there was any work done on the home. THE COURT: Thank you, sir. Mr. Rodriguez, do you have and attorney present? MR. SEIDENSTICKER: If I may. My name is Wayde Seidensticker. I'm here on behalf of the Respondent, Roland Rodriguez and On The Level Builders. CHAIRMAN HAYES: I'm sorry. Again, your name? MR. SEIDENSTICKER: Wayde Seidensticker. MR. DICKSON: You are any attorney? MR. SEIDENSTICKER: Yes, I am. CHAIRMAN HAYES: I'm sorry. Would you spell your name? MR. SEIDENSTICKER: Sure. Wayde, W-A-Y-D-E, and Seidensticker, S-E-I-D-E-N-S-T-I-C-K-E-R. I was recently retained to come in on this administrative matter. The only thing I'd like to add with the regard to the opening statement made by the County is that specifically there are some other factual issues that I think the Board will find particularly relevant with regard to the ongoing work project and work schedule on some requests by the Petitioner of On The Level Builders with regard to change orders. And, in fact, their specific request that On The Level has not worked for a period of four to six months while they had some personal family illness matters that they had to deal with. On The Level Builders, themselves, not being able to get paid until they Page 61 June 19, 2002 completed the work or get final payment until they completed the work, was patient, in fact, worked with them on that. There was a resolution with regard to the Semeraro's attorney with regard to some disputes that I understand were brought before the Board back in July of 2000. There was a very specific punch order list that was agreed upon between On The Level Builders and the Semeraro's attorney, Mark Muller. My understanding is that all of those punch items were complete with the exception of a very limited few. So there's been a substantial compliance with the contract itself. And after that, there were some additional change orders when On The Level went back after the Semeraros had addressed the family illness matter. And when they came back, they had apparently requested these additional change orders that On The Level advised was going to result in some additional delay, approximately two to four week. The Semeraros were upset and terminated On The Level Builders at that point and advised them to leave the project. So we don't feel that this is an abandonment issue all. This is a termination issue. And there's some other mitigating circumstances. And in accordance with the Statute, itself, 4.1.3, we'd also suggest that in the event that the Board does find that somehow this constituted an abandonment, which we do not believe that it will, that there was certainly just cause under the circumstances that we intend to present. Thank you. CHAIRMAN HAYES: Thank you, sir. Okay. Mr. Zachary, would you like to present your case, please, sir. MR. ZACHARY: The County would call Mr. Semeraro to the podium. CHAIRMAN HAYES: Mr. Semeraro? MR. ZACHARY: I guess Mr. and Mrs. Semeraro. Page 62 June 19,2002 CHAIRMAN HAYES: I'm going to ask both of you be sworn in. I assume we can do that simultaneously. You both raise your right hands. Thereupon, MARK AND ELIZABETH SEMERARO, the speakers herein, having been first duly sworn, spoke as follows: CHAIRMAN HAYES: Your names for the record. MR. SEMERARO: Mark Semeraro. MS. SEMERARO: Elizabeth Semeraro. CHAIRMAN HAYES: Okay. MR. ZACHARY: Okay. Mr. Semeraro, did you, at some point, contract with Roland Rodriguez and On The Level Builders to do some remodeling at your house? MR. SEMERARO: We did, in December of 1999. MR. ZACHARY: Okay. Did they start to remodel your house at some point? MR. SEMERARO: They did, in January of 2000. MR. ZACHARY: Okay. Could you relate to the Board your experience as work was progressing on your house. Go through a narrative of what happened. MR. SEMERARO: They started. They ripped out two bathrooms. Actually, they started to rip out those two bathrooms before they had their permit, because he had to stop and inform me that. In the year of 1999, I had other work done and a contractor had taken out a permit to block up a couple of windows in the house. And that contractor never called the City to sign off on those permits. So he told me to inform that contractor to come back, contact the City. He had to reapply for the permit, I guess. And the City sent an inspector to inspect the walls that he had blocked up, and then signed off on it. And then they were able to start the job again. So they started to work on the two bathrooms. Page 63 June 19, 2002 MR. ZACHARY: Okay. By "they" you mean? MR. SEMERARO: On The Level Builders. MR. ZACHARY: On The Level Builders. Okay. Please go ahead. MR. SEMERARO: They started to rip out the walls. They did find, when they ripped out one shower, that outside wall was rotten. There was wood rot on it. So we said, "Okay. Go ahead and replace that wall." And that was going to be an extra. We agreed on the price of on that. They did that. Then as the work was progressing, they had tile. When the tile people came in to do the work, they started to do the shower pans. They didn't put any shower pan in there, the rubber shower pan. MS. SEMERARO: Shower pan. MR. SEMERARO: And I caught them on that. I told Mr. Rodriguez about it. And they were saying, "Yes, it's there." It wasn't there. They ripped it out and it wasn't there. So they called the plumber to come in and put the shower pan in. Then they started back work on the tile. And then they were supposed to get delivery for the floor for the living room, kitchen, dining room, laundry room and foyer. That tile was supposed to come. The tile came. They wouldn't unload that tile. That was from Angela's Tile, Angela's Marble & Tile. The men who brought the tile from that company were waiting for Roland to come and give them a check before they gave him -- released the tile. He never showed up. So they brought the tile back. Then the next thing we know, those people aren't going to work on that job anymore. He got Creative Tile to do the job. He wasn't going to get the tile from Angela's anymore. He got the tile from, I guess, from Creative Tile, and it was a different tile. It was supposed to be 18-inch tile. It wound up to be 16-inch tile. We agreed, "Okay. Page 64 June 19, 2002 Use it, because it was close to the pattern that we picked out. Go ahead. Let Creative Tile do their job." Whatever he wanted to do. All we want to do is get the job done. They put the tile down in that area, the living room, dining room, kitchen area on top of a parquet floor. I asked him a few times, "I this going to hold on top of the parquet floor? Don't you have to rip that floor up?" They said, "No. It would be all right, just like when you put tile on top of cork corking for the sound proofing. All right. As long as it's going to hold, I don't care." All the tile was all loose. Not all of it was loose. Some of the pieces were loose. And then that was corrected later after my attorney got involved. Now, there's still more tile that's still loose on it. And the tile that he brought, he told us that this continued after. We didn't know that, but after when he was going to replace the tile that was loose, he says that it's discontinued. So now what are we supposed to do with this tile? There's no other tile to replace the ones that are going to have to come up. And it's coming up. I don't know why it's coming up. Maybe you're not supposed to put it on top of parquet floors. MS. SEMERARO: It's still coming up. I have pieces everyday that there's a big hunk. MR. SEMERARO: You can feel it. MS. SEMERARO: You can feel it's loose and it's starting to wobble. The grout, when I wash the floor, all comes out. It's holes in the grout also. As you're washing the floor you can see the material coming right out. MR. SEMERARO: They put the tile floor too close to one of the sliding glass doors, so when you open and close that one particular door, it's rubbing up against the tile. It's too tight against there. And that's how the job was progressing along. Page 65 June 19, 2002 MR. ZACHARY: Okay. I was going to ask you, how did the job progress? Was there somebody there continually working during this period of time? MR. SEMERARO: MS. SEMERARO: MR. SEMERARO: MS. SEMERARO: No. No, never. I have -- They have never worked one full day. They would come in at 9:00 o'clock in the morning, have to take a break by 11:00 o'clock, go for lunch at 12:00 to 2:00, come back and give me an excuse why they can't stay and leave. And half of the time they wouldn't even tell me. They'd disappear through a window. MR. ZACHARY: About what time -- how long had the job the job been progressing at this point from the time when they first started, when you started having problems with the tile? MR. SEMERARO: They started in January. So they probably started having a problem with it in the beginning of March. And then that's when he got rid of the people that were -- Angela's Tile people, brought in Creative Tile's people. And then they didn't even finish it. Then he had hired, I guess -- two of the people that were doing the floor, he hired them from Creative Tile. And then they were working on the job. Then they would come back at 5:00 o'clock at night to work on the job-- MS. SEMERARO: MR. SEMERARO: tell them how come-- MS. SEMERARO: MR. SEMERARO: MS. SEMERARO: this one." 'Til 10:00 o'clock at night. -- from 5:00 until 9:00, 10:00 o'clock. We You're not here during the day? Well, they're busy. They're busy. "We have other jobs besides Page 66 June 19, 2002 MR. ZACHARY: So we're up to about March of 2000 at this point. What happened after that? MS. SEMERARO: Then they put in the shower door and the glass block tile. That had to come down three times. MR. SEMERARO: They built a wall in the shower that was a frame petition on half-- halfway up and then from that point up, it was going to be glass block. The way he designed the wall, the shower door couldn't be attached to that wall, because Davidson Glass was supposed to do that. Davidson Glass did one of the shower doors. They came back to measure for that shower three times, and three times they told him they can't attach the door like that. Plus, the wall was leaning, and the wall's still leaning. So the shower door doesn't operate properly. MS. SEMERARO: As a matter of fact, it was supposed to be a custom made door that was had paid for and he went to Home Depot just to shut us up and put on a Home Depot sliding glass door for the shower. It doesn't work. It falls off the hinges. You cannot use the shower at all. MR. ZACHARY: When you first contracted with On The Level Builders in December of 1999, did he give you an estimate of how long the job would take at that point? MR. SEMERARO: He said about three months. Then in the beginning the job was moving along okay. So we told him, "Go ahead and put in a new kitchen for us also." So that was another contract. MR. ZACHARY: So at this point in about March, you have the bathrooms being remodeled, the kitchen and other areas? MR. SEMERARO: The kitchen, he started around, yeah, the end of March, I guess. But what he did was he came, ripped down Page 67 June 19, 2002 part of one wall, banged a hole in the ceiling for something. And I thought he was leaving to get some material, and he never came back. And we told him we had to have this job done by the beginning of May, because my wife had to go up to New Hampshire, because he sister was sick and recovering from an operation. She was going to take care of her sister for three weeks. That was going to be the first week in May that my wife was going to go up, May 3rd. He told me, "The kitchen, the whole job, will be done the third week of April. Don't worry about it." Okay. Well, the third week of April come, nothing, not one room was done and the kitchen cabinets weren't in there yet. Okay. So he says when my wife comes back at the end of May he'll start the job again. It will take him three weeks just to throw the cabinets in, finish the rest up. And at that point they didn't even start the third bathroom yet, but he told me in three weeks it will be done. Three weeks later into June, it's not done. I tell him, "When are you going to finish this, because we want to bring our grandson down for the summer. "Another couple of weeks we'll be done. It's not done. Even one of his men told me, "If you want your grandson to come, you better tell him just don't come back to work for a while and bring your grandson, because this job is never going to be done in three weeks." So I waited another couple of weeks into July. He's still jerking around with the job. Okay. I call an attorney, and then the attorney took it over from there. MR. ZACHARY: Okay. MR. SEMERARO: 2000. This was in July of what year, 2001 ? July of 2000. And then, from July until sometime in September, letters were going back and forth between On The Level Builders to my attorney. It came to a revision of the contract, which we signed and On The Level Builders signed. Page 68 June 19, 2002 And you should have a copy of that. I have a copy of everything, all the letters from my attorney to them. MR. ZACHARY: So-- MR. SEMERARO: I do have a copy of the revision of the contract, which in there states, "We'll come back the first week in October of 2000. It will take us three to four weeks to finish the job," in the Revision of Contract, which he signed. It says that. "And the punch list will be taken care of and the rest of the job will be done." Well, three, four weeks from the first week in October, it's still not done. November, all through November it's still not done 'til the last week in December, it's still not done. We had to go out of town on business the last week in December. So we told him, you know, "Come back after New Year's, because we have to go out of town to take care of some business." But remember, the revision of the contract said It will be done four weeks from October 5th or whenever they were going to start. MR. ZACHARY: So this was November of 2000 that -- MR. SEMERARO: That's correct. MR. ZACHARY: And it's still not done and you had to go out of town? MR. SEMERARO: That's right. But the job was supposed to be done the first week or the second week, the latest, in November of 2000. After New Year's, we find out that my sister-in-law is really sick. She's -- the doctor told her she is going to pass away between three six months, she has to live. So my wife had to go up there to stay with her. So that's true. I call him up, and I tell him, "Listen, my wife has this problem. My wife has to go up there. I don't know when you can come back to work. I'll call you when-- after this is over with." Page 69 June 19, 2002 MR. ZACHARY: And Roland Rodriguez was agreeable to that? MR. SEMERARO: No. He said, "Hey, you owe me $10,400. I got to finish this job." I said, "Hey, what do you want me to do? I got this problem, my sister-in-law's sick. Do you think I'm going to make my wife stay here and watch you jerk around on the house until you finish. You were supposed to finish this job in November. Now, it's already after New Years's of 2002." So I said, "That's it. I don't care what you want to do. My wife's going up there." I went up there with her for a week, and then I came back. So my wife stayed there until, I guess, almost the end of March. My sister-in-law passed away, and she came back. And then MR. ZACHARY: Was any work done while your wife was away out of town? MR. SEMERARO: No. But that was because nobody was there to watch these workers. I have to go to work. Nobody was there. So when my wife came back at the end of March, we waited about three weeks before we called them back so my wife could recoop from everything she went through. Then we called them back at the end of March. When was it? Yeah, the end of March. MR. ZACHARY: And this was in 2001 ? MR. SEMERARO: 2001. Q MR. ZACHARY: Okay. MR. SEMERARO: No. She came back then. We called them back the end of April. MS. SEMERARO: April. MR. SEMERARO: So it was the third week in April of 2001. And he said, all right. He'll start the job beginning of May. Fine. Well, he came back May 9th at 12:00 o'clock with two men to work Page 70 June 19, 2002 on the kitchen. They took out one cabinet that was wrong over the stove, replaced that. Put that cabinet that they replaced it with -- had the wrong door panels in it. We have the arch -- it was supposed to be arched like this. It was a square panel. So they brought the wrong door. They were supposed to put a molding underneath the bottom of the cabinets. They didn't know how to put it on. So then they jerked around 'til 12:00 o'clock, 'til 3:30, 4:00 they left. Roland called me up. He said they'll be back tomorrow with the right doors and somebody else to put that molding on. Okay. That was May 9, 2001, never heard from them since. So we waited, because I knew Mr. Balzano told me 90 days. If you don't come back in 90 days, then you can file a complaint for abandoning the job. I waited. And then I called Mr. Balzano in October of 2001 and told him about this. And Mr. Balzano told me he recently saw Roland Rodriguez and asked him about our job. And Mr. Rodriguez told Mr. Balzano, "I finished that job. The job is done. And we didn't charge him all the money that he was owed to us, that we owed to him." So I said, "hey, well the job's not done." So he told me he's going to call up Mr. Rodriguez. So he calls him up. Mr. Balzano calls me back. He says, "Roland says if we don't take him in front of this Board, he won't put a lien on our house, and we don't have to pay him the last payment." Well, I'm not going to pay him the last payment. He never finished. If he want's to put a lien on the house, put a lien on the house. I don't care. He jerked us around all this time. Now it's June. It's two and a half years from when he started and there's not one room done, never mind the things that he did wrong, because he didn't have men that were qualified to do the job. They did, I don't know -- MS. SEMERARO: The electrical inspector even failed the electric. Page 71 June 19,2002 MR. SEMERARO: Electrical inspector came. He did call for electrical inspection in December of 2000 on two bathrooms -- no, three bathrooms and it failed. It failed because the GFIC receptacles were wired backwards and put in upside down. And that's because he did one bathroom, and one of his men did another bathroom. The electrical contractor, when they started in January was Jackson Electric. Then the next I know he's has AC Electric working on the job. So where's Jackson Electric? Oh, they're going out of business, so I had to get AC. Well, I still see Jackson Electric trucks around. I don't know if they went out of business or not, but that was his reason. Fine. I don't care. Just do the job. AC did the job, worked on the job of switching the panel around, putting a new panel in and the electric in the kitchen. Even one of their men screwed up when they put the thermostat back in. They had the wires touching. When I went to put the heat on in the winter, the heat wouldn't go on. And I called up the air conditioning company and they found out the wires were touching inside the thermostat. And that's why the air conditioning -- the heating wouldn't go on. Okay. Then AC didn't come back to finish any more work. Roland and his men did the rest of the work. I don't know. Are they authorized to do it? They're not electricians. And you can see they screwed it up, because it failed the electrical inspection from the City. And that's how it went. So we're just fed up, and say, "Listen, I'm tired of getting jerking around. Do this to us, probably doing this to other people, bring it in front of Board." MR. ZACHARY: So-- MS. SEMERARO: When he first did the kitchen, he came and took the measurements of it. The cabinets that came in, his men came the same day, that brought the cabinets. They walked away from the job to say, "These cabinets are not the right size for this kitchen." He Page 72 June 19, 2002 had ordered all real small cabinets, like ten small cabinets instead of three large ones. This man does not know how to measure anything. MR. SEMERARO: And then we call -- they're Craftsmade cabinets. So we called up Craftsmade. They sent their representative down. His name is Lou Fillman, and he came in the kitchen. He looked at it and he said, "What the heck was he thinking about? This is totally a mess." So he redesigned the kitchen and brought it to Roland, "Don't put it in this way." And then when we showed him the rest of the job, he said, "You better get an attorney, because this thing is really -- you're going to have a real problem with it." He recommended for us to have an attorney, but we had an attorney already at that time. And I don't know -- MR. ZACHARY: For the record-- MR. SEMERARO: -- that's just the way it works. MR. ZACHARY: For the record, Mr. Semeraro, do you see the person that you contracted with here in the room today? MR. SEMERARO: Yes. MR. ZACHARY: May the record reflect they pointed out the Respondent in the case, Mr. Rodriguez. So the bottom line is on May 9th, 2001, the Respondent came over, did some work and that's the last that you've been in contact with him? Or that's the last work that's been done on your house? MR. SEMERARO: Right. And I also have photographs of the way the job looked before I contacted an attorney to represent us in July of 2000. So you could see the type of work-- the way my house looked at that time. And you can see a homeowner could have done a better job than a professional contractor. You want to see it? It's right there. MR. ZACHARY: Well, I think we have your testimony that the work's not done, and it's still not done at this point. Page 73 June 19, 2002 MR. SEMERARO: did, al lot of it has to be that it's supposed to. MR. ZACHARY: MS. SEMERARO: his license is still open? Right. And there's still the work that he replaced, because it doesn't operate the way Okay. Thank you. Now, can we get another contractor or that MR. ZACHARY: Well, let's save the questions. I think we're taking testimony now. MS. SEMERARO: Oh, okay. MR. ZACHARY: And Mr. Seidensticker, the Respondent's attorney, has an opportunity to cross-examine you now. MR. SEMERARO: Okay. MR. ZACHARY: I mean, you use that podium there. It will be fine. MR. SEIDENSTICKER: Good morning, Mr. Semeraro. CHAIRMAN HAYES: I'm going to need your name for the record. MR. SEIDENSTICKER: Wayde Seidensticker. CHAIRMAN HAYES: And you're representing? MR. SEIDENSTICKER: I'm representing On The Level Builders and Roland Rodriguez in conjunction with this administrative that's been filed by the Semeraros. Sir, just so I understand a recap of your testimony was that you, in fact, contracted with Mr. Rodriguez in December of 1999, to do some remodeling on a bathroom; correct? MR. SEMERARO: Bathroom and the floor and the living area. MR. SEIDENSTICKER: But that was the first time that you contracted with him to do that work? MR. SEMERARO: Right. Page 74 June 19, 2002 MR. SEIDENSTICKER: And that was pursuant to a written contract; correct? MR. SEMERARO: Right. MR. SEIDENSTICKER: And at some point in time, you were satisfied enough with how the work had progressed that you, in fact, had him enter into another contract with you to do some remodeling to your kitchen in March of 2000; correct? MR. SEMERARO: That's right. Correct. MR. SEIDENSTICKER: Okay. And then at some point in time, during the process of his work there, unfortunately you and you wife had an illness, a family member who fell ill, and you had to leave town for some period of time; is that correct? MR. SEMERARO: That was in-- MR. SEIDENSTICKER: May? MR. SEMERARO: -- the beginning of May of 2000 that we had to go up to New Hampshire. MR. SEIDENSTICKER: Okay. And there was still work that Mr. Rodriguez and his workers were trying to complete at your house at that time; correct? MR. SEMERARO: be done the end of April. That's right. But the job was supposed to The third week in April he told me it would be done, the kitchen and everything. I told him, "You got another week to finish it. Besides that, if something goes wrong, you can take another week, because we're not leaving until May 3rd. So if it's not done, you know, it will be close, or whatever, you have an extra week." But he told me the job will be done the third week in April. MR. SEIDENSTICKER: I understand. But in any event, he was running behind schedule during that time period, and he did not complete the work within those few weeks that you had wanted him to get it finished; isn't that true? Page 75 June 19, 2002 MR. SEMERARO: That's right. MR. SEIDENSTICKER: Okay. And when you left town with your wife to attend to this family member who fell ill, you didn't want to have any workers do any work on the at that time? MR. SEMERARO: That's right. MR. SEIDENSTICKER: And that lasted for about three weeks or a month? MR. SEMERARO: Three weeks. MR. SEIDENSTICKER: Okay. MR. SEMERARO: And the reason I didn't want to leave anybody there because I didn't trust nobody in the house when I'm not there. And to show you why I don't trust anybody, there's not one piece of extra tile left in the house. You do the job, there's going to be a little extra tile. We told him, "Make sure that there's extra tile in case something breaks." MR. SEIDENSTICKER: Sir, I understand. Can we just stick with the questions at this point? MR. SEMERARO: All right. MR. SEIDENSTICKER: There was also a problem that came up after that that you ultimately hired Mark Muller, your attorney, to resolve directly with Mr. Rodriguez; right? MR. SEMERARO: That's right. MR. SEIDENSTICKER: And that's all part of packet that you submitted? MR. SEMERARO: That's it. That was in July. MR. SEIDENSTICKER: And at some point in time, before Mr. Rodriguez was able to complete everything on that list, your wife had to go up and attend to her sister's illness again; is that right? MR. SEMERARO: That was in January of 2001. MR. SEIDENSTICKER: I understand. Page 76 June 19, 2002 MR. SEMERARO: Way after-- MR. SEIDENSTICKER: Sir, I understand. If you could just-- but isn't it true that at some point in time before she had to leave you advised Mr. Rodriguez that he wouldn't be able to come and work during that period of time, that she was going to be away, because you had to be at work and you wanted someone at home? Isn't that true, Mrs. Semeraro? I see you nodding your head. MS. SEMERARO: Yes. MR. SEIDENSTICKER: Okay. And so that lasted for approximately four months; is that true? MR. SEMERARO: Three months. And then when my wife came home, I wanted her to rest. So, yeah, four months until then. MR. SEIDENSTICKER: Okay. So that was at your request that no work was proceeding during that period; isn't that true, Ms. Semeraro? MR. SEMERARO: That's true. MS. SEMERARO: Yes. MR. SEIDENSTICKER: Okay. And then-- MR. SEMERARO: But the revision of contract said he was going to be done -- MS. SEMERARO: Before we left. MR. SEMERARO: -- in November. MR. SEIDENSTICKER: I understand. But when he came back to start the work after you came back from attending to your sister, that was sometime in the end of April or early May? MR. SEMERARO: It was May 9th. MR. SEIDENSTICKER: Okay. MR. SEMERARO: Because that was the only day they worked. MR. SEIDENSTICKER: Okay. And when he started back to work, you had at that point asked him to change something? Page 77 June 19, 2002 MR. SEMERARO: No. MR. SEIDENSTICKER: MR. SEMERARO: No. -- in conjunction with your contract? MR. SEIDENSTICKER: Okay. Didn't you, in fact, as him to leave the job when he came back in May -- MR. SEMERARO: No. MR. SEIDENSTICKER: -- based upon a change in a cabinet that you wanted him to order, and you got upset when he told you there would be a two- to four-week delay with that? MR. SEMERARO: No. MS. SEMERARO: No. MR. SEIDENSTICKER: Has anyone liened your house with respect to the work? MR. SEMERARO: I don't know. I don't think so. Nobody notified us, so I don't think so. MR. SEIDENSTICKER: Have you hired any other contractors to complete the work at this point in time? MR. SEMERARO: No. MR. SEIDENSTICKER: I have nothing further. MR. DICKSON: I have something. CHAIRMAN HAYES: I think that you're going to have to wait 'til after the closing argument. Or, Mr. Neale, do we have an opportunity to intervene when we feel necessary? MR. NEALE: Um-hum. The Board can ask questions at anytime really. CHAIRMAN HAYES: At anytime? Okay. MR. DICKSON: I got a couple of questions for you. First of all, in defense of your previous contractor on the windows, just be advised that City of Naples had a real problem with windows being COd. I've had four or five different permits I've applied for, and they Page 78 June 19, 2002 had to get window's COd that were five and six years old. So it was nothing on you contractor. It was a computer glitch. Did you get any other bids from any other people? MR. SEMERARO: We did. MR. DICKSON: Okay. And was this contractor the lowest bid? MS. MR. MR. MS. MR. MS. MR. two? SEMERARO: No. SEMERARO: No, it was in the middle. DICKSON: In the middle. Okay. SEMERARO: He was the third. DICKSON: Third bid? SEMERARO: Yes. DICKSON: Okay. So he's right in the middle of the other MS. SEMERARO: Right in the middle. MR. DICKSON: And your inspections, you eluded to failure of an electrical inspection. Were there any other failures on any other inspections? MR. SEMERARO: I think the only other inspection was the rough plumbing, but I think that was the only other -- that was the rough plumbing inspector on the bathroom. MR. DICKSON: Is that permit card and inspection card still at your residence? MR. SEMERARO: I have it here. MR. DICKSON: Okay. All right. Of course, that permit is expired, has it not? MR. SEMERARO: Yes. MR. DICKSON: Okay. MR. SEMERARO: And he was also working -- when he did come back one of the times, I guess, around-- must have been in Page 79 June 19, 2002 November of 2000, yeah, of 2000, he was working without the permit. And I called the inspector to tell the inspector, "Is this permit updated or not, because the permit that's on my house is expired." They looked it up. They said, "No, he never updated the permit." So they came and put a stop work order on the house. They did it, because I called them to check. MR. DICKSON: Okay. And you say the job is not complete now. Does that mean that you have use of one bathroom, and not use of other two? MS. SEMERARO: True, because I don't have the proper sliding glass door on the showers. MR. SEMERARO: MS. SEMERARO: MR. SEMERARO: MR. CRAWFORD: Two showers leak. We got two showers. The other shower doesn't leak. Why haven't you gotten another contractor to come in and finish the work? MR. SEMERARO: Because I wanted -- when I present this case, I want to make sure that if somebody wanted to come in and look at it, you could see the way the job is. MR. DICKSON: Okay. Thank you. CHAIRMAN HAYES: I have a couple questions then. And you said earlier, Mr. Rodriguez, and, in fact, I'm going to also interject here, we do need you to speak one at time. Every word is being recorded. And it's awful hard to record two words spoked at the same time. So I'd appreciate it if one of you is speaking, the other one keep quiet until the other one is finished. Mr. Rodriguez, you did say earlier that after -- MR. DICKSON: Mr. Semeraro. CHAIRMAN HAYES: Or, Mr. Semeraro, I'm sorry. I apologize. That after you had witnessed and complained about the Page 80 June 19, 2002 quality of work, you still asked that they do more remodeling and a amend a contract to do more work after you -- MR. SEMERARO: No. CHAIRMAN HAYES: Yes, sir. I believe if I had to read it back to you, you did say that at one time you were complaining about the quality of the work here, the quality of work there, the quality of work there and then you said, "Then I asked him to remodel the kitchen." MR. CRAWFORD: In March of 2000. MR. SEMERARO: In March. Up until that time everything was going along okay, except for the tile workers from Angela's Tile that didn't put in the shower pan, and I caught them on it. Roland saw it when they -- and they ripped it out. And then they just finished those two bathrooms and Roland hired somebody else. CHAIRMAN HAYES: Okay. MR. SEMERARO: The rest of the job was progressing okay. It looked like it was moving along on time. CHAIRMAN HAYES: But you did have questions about the quality of the workmanship before you asked him to do more work? MR. SEMERARO: Just from those tile people, but he got rid of those tile men. CHAIRMAN HAYES: Okay. In reviewing the packet and listening to your testimony, it sounds to me like everybody on the job was totally incompetent, that they didn't work on a regular basis, whether they were direct employees of On The Level Plumbing or licensed subcontractors that they showed up at irregular times, they didn't do quality work. Was there any work on the job that you were satisfied with? MR. SEMERARO: They seem -- they did the job all right, except for one of the men who was wiring up the thermostat, put the Page 81 June 19, 2002 wires close together and the thermostat didn't operate properly. Otherwise, AC was there every day, right, and working on the job as a professional contractor. MS. SEMERARO: MR. SEMERARO: And the plumber. And the plumber. The plumber was a professional worker, we thought. CHAIRMAN HAYES: I noticed in your written testimony that you did have complaints about the plumber with some leaks involved? MR. SEMERARO: That's a complaint against Roland, because when his men were installing the bottom cabinets in the kitchen, they hit the cleanout pipe, and then nobody noticed that. And then when they put the counter top in with the sink and we used the sink, the pipe was leaking. So I called up Roland and told him the pipe's leaking. Well, I told the secretary, because I didn't think ahead. Nobody called us back. So my wife called up the plumber and told the plumber about it. The plumber came the next morning to look at it. He called Roland, told him what the problem was. Roland told the plumber, "You go to the other job where you were, and we'll take care of this another time." So we couldn't use that sink for about four days, five days until Roland decided to send a plumber back to fix it. That's the only problem. And it wasn't the plumber's problem. It was the guy -- his men who was installing the cabinet knocked out the pipe and made it link on the connectors. CHAIRMAN HAYES: Okay. Thank you. MR. DUNN: Pardon me. May I see the pictures, please? MR. ZACHARY: Mr. Chairman, I think we need to have those marked into evidence. Page 82 June 19, 2002 THE COURT: I'm questioning, I believe they are in the black and white copy form, are they? No, they're not. I'm sorry. There's another case. MR. SEIDENSTICKER: If I may, Wayde Seidensticker, for the Respondent again. I've -- I understand that the Board would probably like to review the pictures and I'm sure they're going to. I'd just, for the record, like to lodge an objection only with respect to Number 1. It hasn't -- none of them have previously been submitted to us for review and accordance with the evidence packet and the requirements of this Board. And number two, I want to be very specific that the complaint that has been issued against this contractor is for abandonment of a contract. I would say that this is wholeheartedly and completely irrelevant to the issues to be decided by this Board. This is not a civil dispute. That is something left for the general jurisdictions of our courts, but if the Board sees fit. MR. CRAWFORD: Mr. Neale, is he correct? Is that the only item that we can render a decision on is the 90-day abandonment rule? MR. NEALE: Yes. That's all he's been charged with. CHAIRMAN HAYES: That's all he's been charged with. Workmanship is not a factor at this point. MR. DICKSON: Don't you agree -- well, this is between us now. Don't-- I tend to agree with that, Mr. Neale; do you? MR. NEALE: What, his objection? MR. DICKSON: The objection to not looking at the pictures. MR. NEALE: Well, the Board certainly has -- you know the procedure for accepting Exhibits into the record. And it's been a while since we've had a case. So we need to review some of these. Procedure for accepting Exhibits into record for this Board is that the Page 83 June 19, 2002 Exhibits are moved into record and the Board votes on whether the Exhibits for review or not. So the County can make the motion to have them in. Certainly the counsel for the Respondent is able to make his arguments. Then the Board can make its decision based on a motion of the Board as to whether it will accept those Exhibits into the record or not for their review. MR. DUNN: MR. NEALE: Are the pictures dated? That's -- I don't know. Can one of you attorneys look at them, and before we see them, tell us if there's a date-by-date on the photos. MR. DICKSON: The thing before our Board here is an abandonment rule, and workmanship is not an issue on abandonment. MS. WHITE: Mr. Neale, can the Semeraros amend their complaint at this time? MR. NEALE: No. The complaint is not brought by the Semeraros. The complaint is brought by the County. MS. WHITE: Can the County amend the complaint to include the workmanship at this time? MR. NEALE: Not at this time. MS. WHITE: The second time? CHAIRMAN HAYES: We're hearing this case. MR. NEALE: And if the County wishes to withdraw its complaint and refile, they could do so. But at this point, they're trying this case based on the charges as set forward. MR. CRAWFORD: Mr. Zachary, which 90-day period are we rereferring to? MR. ZACHARY: We're referring to a 90-day period, any period after May 9th, 2001, is the testimony that was the last time that any work was done on the house. Page 84 June 19, 2002 MR. CRAWFORD: May 9th, 2001, to present. MR. ZACHARY: And the County would move that the pictures be accepted by the Board and as to relevance that they show that the job has not been finished, even those there's testimony to that effect. CHAIRMAN HAYES: I think you have a good point there. As far as a relationship is to abandonment, if the job is not complete and these pictures prove that, then I think they're relevant to the abandonment charge. MR. DICKSON: Mr. Chairman, I disagree, because even the general -- or the contractor is admitting that the job is not complete, I think this will just moot -- muddy the issue. And I move that the pictures not be entered in. It has nothing to do with the case, and it's only going to prolong the entire issue. CHAIRMAN HAYES: I have a motion on the floor. I need a second. Does anybody wish to second that motion? MR. CRAWFORD: I'll second, Crawford. CHAIRMAN HAYES: I have a motion and a second. I'm going to call for the vote. All in favor? Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. CHAIRMAN HAYES: Opposed? MR. DUNN: Opposed. MS. WHITE: Opposed. CHAIRMAN HAYES: Okay. I'm going to ask that vote to come again so that the Reporter can get our names on it, what the count is. All in favor of the -- MR. CRAWFORD: Let's be clear. We're voting to see the pictures; right? CHAIRMAN HAYES: We're voting not to see the pictures. MR. DICKSON: Not to see the pictures. Page 85 June 19, 2002 CHAIRMAN HAYES: We're voting not to see the pictures. MR. CRAWFORD: Well, I misvoted. MR. DICKSON: Well, you missed seconding it, too. MR. CRAWFORD: I sure did. Can you restate the motion, please. MR. DICKSON: The motion is that we not introduce the pictures as evidence, because they are not crucial or relevant to the charge of abandonment. And therefore, in the interest of time and clarity of the case, they would only muddy the issues, so we not see them. CHAIRMAN HAYES: Okay. I have a restating of the motion. Do I have a resecond? MR. DICKSON: Do ya'll want to see the pictures? CHAIRMAN HAYES: I'll second it. MR. DICKSON: Okay. CHAIRMAN HAYES: And calling for the vote. All in favor that we not see the pictures say aye. Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. CHAIRMAN HAYES: And that's one, two, three. All opposed? MR. DUNN: Opposed. MR. JOSLIN: Opposed. MS. WHITE: Opposed. MR. LLOYD: Opposed. CHAIRMAN HAYES: -- say aye. Raise your hand so I can count, one, two, three, four. So the motion does not carry. So we can admit those pictures into evidence. MR. NEALE: We have to have a motion to admit them then. CHAIRMAN HAYES: All right. I need a motion to admit those pictures. Page 86 June 19, 2002 MR. DUNN: Motion to admit. MR. CRAWFORD: Second, Crawford. CHAIRMAN HAYES: second. All in favor? Aye. MR. DUNN: Aye. MR. CRAWFORD: MR. JOSLIN: Aye. MS. WHITE: Aye. CHAIRMAN HAYES: MR. DICKSON: Aye. CHAIRMAN HAYES: carries. Very well. Dunn is the motion, Crawford is the Opposed? I have one opposed. The motion MR. ZACHARY: Mr. Chairman, then I'd like to take a moment to have them marked as a composite Exhibit 1. MR. SEIDENSTICKER: May I have a moment to review those with my client since they had not been presented prior to the hearing? MR. NEALE: I think it's appropriate. MR. DUNN: I still would like to know if the pictures are dated? MR. NEALE: I took a look at them and I'm no photography expert, but they are dated on the back of the pictures. So it appears to be a date of development. There is no date on the front of the picture. MR. DUNN: Okay. MR. ZACHARY: We can also establish, if I can ask Mr. Semeraro a couple of questions. The pictures that you have there, do those depict your house as it exists at this time? MR. SEMERARO: No. As it was July of 2000. MR. ZACHARY: Okay. And you took those pictures or your wife took those pictures? MR. SEMERARO: We did. Page 87 June 19, 2002 MR. ZACHARY: And you had them developed, and they've been in your possession since that time.'? MR. SEMERARO: Yes, sir. MR. ZACHARY: Okay. Then I would move that the pictures be entered into evidence. MR. SEIDENSTICKER: And I would again restate my objection. Based on that clarification, they do not depict how the premises looked at the present time since the alleged abandonment commenced. So again, I would restate my objection. Number one, they weren't presented, and number two, they're completely irrelevant to the charge to be determined by this Board. CHAIRMAN HAYES: Thank you. Yes, sir? MR. SEMERARO: I just want you to look at those pictures to see that's the reason why he abandoned the job because, yes, they corrected some of that. But still, that's the type work that they did. And if I didn't hire an attorney in July, he told me that's the way it's staying. That's why I had to hire an attorney. CHAIRMAN HAYES: That's not why he abandoned the job, and that's what our question is. MR. SEMERARO: That's why he doesn't want to come back now. CHAIRMAN HAYES: Okay. MR. DUNN: Mr. Chairman, I have a question, please. Has -- maybe the counsel for the contractor would answer this. I'm really not sure. Is there some reason that I'm missing why the work was not finished? Because apparently -- let me just summarize. CHAIRMAN HAYES: Okay. Wait a minute. All we're doing at this point is we're hearing the County's case. MR. NEALE: Yeah. CHAIRMAN HAYES: And shortly we will have -- Page 88 June 19, 2002 MR. DUNN: Okay. CHAIRMAN HAYES: can ask those questions. MR. DUNN: MR. NEALE: MR. DUNN: MR. NEALE: the case. MR. DUNN: MR. NEALE: now. -- the Respondent's case, and then we Okay. Fine. At this point we're in the County's case in chief. Okay. Thank you very much. These are really questions for the County side of Okay. And it's County's witness that's up here right MR. ZACHARY: I'm going to get these marked now. CHAIRMAN HAYES: Okay. MR. SEIDENSTICKER: In light of that testimony, the photos are still going to come in, I presume? CHAIRMAN HAYES: I think with the caveat that the date of them was prior to perhaps an attempt to completion. MR. SEIDENSTICKER: And they don't accurately depict the current -- CHAIRMAN HAYES: The current existence. And we also are aware also that there has been no other contractor in the place. So it's reasonable, possibly, for us to assume that the current condition is not that condition, which we're going to see photos for, which means that the contractor did come back and try attempt to correct. MS. WHITE: Do we have photos of the present condition of the house. MR. SEIDENSTICKER: We've been provided with no photos before the hearing. The only thing that we've been provided with was the packet that I believe the Board has in their possession. Page 89 June 19,2002 CHAIRMAN HAYES: Okay. Are we going to need a minute to rest while we submit this? I'm going to also, Mr. Zachary, perhaps if we're going to need a minute while the Court Reporter submits all this information that perhaps counsel needs to review these photos as well? MR. SEIDENSTICKER: Sure. CHAIRMAN HAYES: Okay. Then let's take a five-minute break and let this happen. Thereupon, (A brief recess was taken.) CHAIRMAN HAYES: Back on record. Let's call for lunch, and then we'll back after lunch and that will give us time to review that and kill two birds with one stone. So we'll be back at 1:00 o'clock. MR. DICKSON: Okay. CHAIRMAN HAYES: Thereupon, (A recess was taken.) Let's go ahead and call it back into order. Call Collier County Contractor's Licensing. I think we left off with the County presenting their case. MR. ZACHARY: I think we were in the middle of Mr. Seidensticker's cross-examination. I believe that's the procedural setup we are in. MR. SEIDENSTICKER: Actually I think we had a break where we were going to stipulate or you were moving the photos into evidence and I believe they had been accepted and you were marking them to go in. I don't know if you're finished presenting your case in chief at this point. MR. ZACHARY: With that being said, the photos having voted to be entered, I'll pass them to the Board, having been marked and entered into evidence at this point. CHAIRMAN HAYES: Okay. Do you have any further questions of the witnesses? Page 90 June 19, 2002 MR. SEIDENSTICKER: Yes, I have a few further questions. If at this point, if they're finished presenting direct testimony. CHAIRMAN HAYES: Okay. So we're into your cross- examination. MR. SEIDENSTICKER: Sure. CHAIRMAN HAYES: I would assume you still need the witnesses back up? MR. SEIDENSTICKER: Yes, please. Mr. Semeraro. Mr. Semeraro, the package that you presented to the Board in conjunction with your administrative complaint, contains a detailed handwritten diary. Was that prepared by you or your wife? MR. SEMERARO: My wife wrote it down first, and I recopied it to that paper. MR. SEIDENSTICKER: Okay. So this was a diary that you kept from the very beginning when On The Level began working for you? MR. SEMERARO: Not exactly in the beginning. Let me just take a look. I'll tell you when it started. From May 24th of 2000. MR. SEIDENSTICKER: May 24th of 2000? MR. SEMERARO: Right. When they were working after my wife came back the first time. MR. SEIDENSTICKER: Came back from the illness? MR. SEMERARO: Right, the first time. MR. SEIDENSTICKER: Now, just so I'm clear, the understanding that you had with On The Level Builders was that they were not to do any work on their project at your premises at anytime when you wife was not home; isn't that true? MR. SEMERARO: That's true. MR. SEIDENSTICKER: Sir, what profession are you in? MR. SEMERARO: Realtor. Page 91 June 19, 2002 MR. became a MR. MR. MR. MR. SEMERARO: As a SEIDENSTICKER: SEIDENSTICKER: And what did you do before you realtor? SEMERARO: I worked in the building trade. SEIDENSTICKER: Okay. Doing what? carpenter? As a carpenter. So you were pretty familiar with the type of work that On The Level was going to be doing for you and the amount of time that it would take? MR. SEMERARO: Right. MR. SEIDENSTICKER: Okay. And there were at least three separate occasions when your wife had to be absent or out of town when you told On The Level Builders that they could no longer do any work on this project; correct? The longest -- MR. SEMERARO: I think twice, maybe three times. She only went away in May of 2000 and then again January of 2001. MR. SEIDENSTICKER: Okay. But wasn't there an illness that she also went away for prior to that? Ms. Semeraro, maybe you can address that, in November, I believe of 2000, you went up north for about a week? MR. SEMERARO: I don't think so. I think that she only went away to go see her sister, to try to help her sister. MR. SEIDENSTICKER: Okay. On each of these occasions it was at your request though that On The Level attend some other projects off premises that had nothing to do with your project; correct? MR. SEMERARO: That's right. MR. SEIDENSTICKER: Okay. And then actually after you entered an agreement through your attorney with On The Level Builders in -- that was in 2000; correct? MR. SEMERARO: That was in September of 2000 -- Page 92 June 19, 2002 MR. SEIDENSTICKER: Okay. MR. SEMERARO: -- when we signed the revision of contract. MR. SEIDENSTICKER: And that's included in your package that you presented, the agreement with the attorney? MR. SEMERARO: Right. MR. SEIDENSTICKER: Okay. And the agreement provided for On The Level to receive a payment of $10,400 upon completion? MR. SEMERARO: That's right. MR. SEIDENSTICKER: And On The Level, after your wife went up for the illness that her sister had had. When they came back and tried to start work on the premises, there was an issue at that point in time, wasn't there, with a kitchen range hood? MR. SEMERARO: There was always that issue. MR. SEIDENSTICKER: Okay. And some photos that you presented into evidence show that kitchen range hood, don't they? MR. SEMERARO: Yeah. MR. SEIDENSTICKER: Could I ask you to address something. If I may have, there are two pictures depicting the kitchen that I'd like to ask the witness about. Thank you. Have these already been marked? Are they part of the Composite? MR. ZACHARY: They're part of the Composite Exhibit. MR. SEIDENSTICKER: Is there anyway we can identify them a little more. MR. ZACHARY: You want to have them marked as -- MR. NEALE: You can have them marked as Composite Exhibit 1-A or B, you know, whatever. MR. SEIDENSTICKER: All right. Mr. Semeraro, included in photos that the County moved into evidence, we have now specifically marked two photos. What do those depict, starting with 1 -A? Page 93 June 19, 2002 MR. SEMERARO: Photo A is the way one of the cabinets that was originally in the kitchen. And in that top cabinet over the range is the circuit breaker box, which probably is illegal. I don't know, but that was the way it was when I purchased that house. And part of the contract was to take that circuit breaker box out and replace it. Q MR. SEIDENSTICKER: Sir, just so I'm clear, that depicts you kitchen before On The Level Builders did anything with regard to the remodeling of the kitchen; right? MR. SEMERARO: Well, after they ripped out all the other cabinets, that's what was left for last. MR. SEIDENSTICKER: Okay. And the picture that we've marked as B, what does reflect? MR. SEMERARO: That reflects the cabinets that they put in. MR. SEIDENSTICKER: Okay. MR. SEMERARO: And it reflects the cabinet that's over the stove with the range hood on it. That cabinet that's up there, the range hood is supposed to fit in that cabinet. MR. SEIDENSTICKER: Sir, just -- with regard to that picture, that was after they had done work on the range cabinet; correct? MR. SEMERARO: That's it. MR. SEIDENSTICKER: Okay. And when was that photograph taken by you? MR. SEMERARO: Probably-- well -- MR. SEIDENSTICKER: Was it before May 9th, 2001 ? MR. SEMERARO: Oh, yeah. MR. SEIDENSTICKER: Okay. So it was before your wife had to go away and attend-- MS. SEMERARO: No, that was after. Page 94 June 19, 2002 MR. SEMERARO: No. Of course, they only worked the one day when you came back on the 9th. So this was probably done November o f 2000. MR. SEIDENSTICKER: Okay. MR. SEMERARO: 2000. MR. SEIDENSTICKER: Okay. And when your wife had -- ma'am, Mrs. Semeraro, when did you have to leave town? MR. SEMERARO: January. MS. SEMERARO: January. MR. SEIDENSTICKER: Of 20017 MR. SEMERARO: Right. MR. SEIDENSTICKER: Okay. So you were gone for three to four months during that period; correct? MS. SEMERARO: Yes. MR. SEIDENSTICKER: And during that period, you didn't want to them do any work. But when you came back for On The Level to resume work, they came back in. And that would have been pretty much the status of what the kitchen was in; correct? MR. SEMERARO: That's right. MR. SEIDENSTICKER: And, in fact, Mr. Semeraro, didn't you have a discussion with Roland Rodriguez where you specifically told him that that cabinet, because it was nonfunctional, you wanted him to actually order a cabinet that would fit so that you would have a functioning cabinet above the stove? MR. SEMERARO: Either get the right range hood to fit in that cabinet, either get right one that fit in there, which originally when they installed that, the range hood that came was too big whether he ordered wrong or sent the wrong one, it was too big. It didn't fit. So I told him, "Are you going to reorder it and get the right one?" He said, "No. The electrician will cut it down." They cut it in half. Page 95 June 19, 2002 They took it back to wherever, cut it in half, threw it back together all -- and there's a picture of that up there some place and put I back in the cabinet like that. And when one of the inspectors -- when the inspector came to put the stop work order on the house, I showed him that. He said "That's totally illegal. Totally wrong." So I told him, "Put the right type of range hood in." So they just put this one and stuck that one in there, but that's not the way that's supposed to be installed. MR. SEIDENSTICKER: Okay. But, sir, didn't you, in fact, ask him to order additional parts? MR. SEMERARO: I asked him to order the right cabinet. If he can't get right range hood to fit into that cabinet, take that cabinet out and put in a straight cabinet and then this range hood could be fastened to the bottom of that cabinet. MR. SEIDENSTICKER: Okay. And you asked him do that? This was after your wife had returned from being up north for three or four months? Is that right, Mrs. Semeraro? MR. SEMERARO' No. to do before she went I way. MR. SEIDENSTICKER: That was part of what he was supposed Okay. MR. SEMERARO: But sometime -- MR. SEIDENSTICKER: Isn't it true that he came back after she returned from being away to address that issue? MR. SEMERARO: That's right. MR. SEIDENSTICKER: Okay. Sir, and isn't it also true that you had a discussion with him about what he was supposed to do as far as replacing the cabinet? MR. SEMERARO: Probably before May 9th, because I wasn't home when he came at 12:00 o'clock with his men. I didn't even see Page 96 June 19, 2002 him on May 9th. I spoke to him on the telephone later in the afternoon when he said he was coming back. MR. SEIDENSTICKER: Was this in May 2001 ? MR. SEMERARO: It was, probably. MR. SEIDENSTICKER: Okay. And he advised that he was going to have to special order the part that you wanted to have it replaced with? MR. SEMERARO: Right. MR. SEIDENSTICKER: And did he tell you about how long that was going to take? MR. SEMERARO: I don't remember. MR. SEIDENSTICKER: Okay. Well, isn't it true that when you told you you were going to have to wait some additional time that you got upset and angry, and you told him to leave the premises - MR. SEMERARO: No. MR. SEIDENSTICKER: -- and to not come back until he had heard from your attorney? MR. SEMERARO: No. MR. SEIDENSTICKER: You don't recall a discussion like that? MR. SEMERARO: I didn't say that. Because I only spoke to him in May, the end of the afternoon, 4:00 or 5:00 o'clock in the afternoon, May 9th when he called to say I guess his men went back to the shop to say they didn't know how to install that trim underneath the top cabinet. They couldn't do whatever they were supposed to do. Oh, and the cabinet that he did order, he did order, he did order a new cabinet and he came in with the wrong door front on it. He said he'd come back tomorrow with the right door front on it and have somebody there that knows how to put the trim on the bottom of the cabinet and finish the rest of the work, but nobody ever came back. Page 97 June 19, 2002 MR. SEIDENSTICKER: And it's your testimony that that's the last work that was ever done? That was the last discussion you ever had with Mr. Rodriguez? MR. SEMERARO: 9th. That's right, late in the afternoon of May MR. SEIDENSTICKER: Okay. You don't recall over using profanity with him and telling him to leave the job and don't come back until he's heard from your attorney? MR. SEMERARO: No. I mean, they were getting close to finishing what they had to do. There was other items that had to be addressed, like the floor, things like that. The wall that's leaning, the shower doors, other items that were on the punch list, but almost have the job done. It was almost done so. MR. SEIDENSTICKER: When the job was finished, you were required under agreement that you entered into through your attorney with Mr. Rodriguez to pay him $10,400; isn't that true? MR. SEMERARO: Right. MR. SEIDENSTICKER: And, in fact, all the work that he had done from the time he began negotiations through your attorney to complete the work, he was responsible for paying all the subcontractor and all the suppliers for all the work, including the all the kitchen work that you see in the photos; right? MR. SEMERARO: Most of that kitchen work was done. The only thing that they did do after that was replace this cabinet -- no, I'm sorry. They did replace a lot of the cabinets that were wrong in the beginning. So when he came back in the beginning of October, they did replace a lot of cabinets that were wrong. They were supposed to take out the counter top, because the counter top wasn't going to fit properly anymore since they ordered a different cabinet for one section of that countertop. And they were Page 98 June 19, 2002 going to cut that -- it's a Corian countertop. They were going to cut it back to fit. MR. SEIDENSTICKER: Okay. With regard to the details. I understand, sir, but we're here on the abandonment issue. MR. SEMERARO: Okay. MR. SEIDENSTICKER: Just so I'm clear, then from June 20th, 2000, or thereabouts, between June 20th, 2000, and May 9th, 2000, when you've alleged in your complaint, "Last work was done by On The Level Builders," There was, in fact, work done during that period by On The Level; isn't that true? I mean, there was a significant amount was done. They were just nearing completion and hadn't yet completed? MR. SEMERARO: From when they -- when they started again after we had a revision of the contract was -- we signed it in September of 2001. MR. SEIDENSTICKER: 2000. MR. SEMERARO: No, 2000. You're right. And then they worked on it from the beginning of October, were supposed to have it done in four weeks. Okay, they did it. work. MR. SEIDENSTICKER: Okay. And they did do quite a bit of MR. SEMERARO: They did lot of work. They put the third bathroom. They ripped it out and worked on that. MR. SEIDENSTICKER: And, in fact, you did not pay for any additional materials or subs? They paid for all of those up through until May 9th, the last date that they worked on the premises; right? MR. SEMERARO: And that's true because of what the contract says. I don't have to give them anymore money until the job was completed. MR. SEIDENSTICKER: Until they complete. Page 99 June 19, 2002 MR. SEMERARO: All the other money, I have the check here, copies of all the checks that I gave them always paid when he wanted to. MR. SEIDENSTICKER: I understand. And just so I'm clear then -- MR. SEMERARO: Okay. MR. SEIDENSTICKER: -- it's your testimony that Mr. Rodriguez was almost ready to get the $10,400 payment that was due to him under the contract, and he abandoned your project? That's your testimony? MR. SEMERARO: He had some work to do and then he had work on the punch list, right, and then he would have got paid. MR. SEIDENSTICKER: Thank you. I have nothing further from this witness. CHAIRMAN HAYES: Thank you. Do you have some questions? Does anybody on the Board have some questions? MR. DICKSON: Just one question. I understand that you have not completed the work and it's as supposedly as he left it on May the 9th. But have you had other contractors look at it and give you a price as to how much it will take to finish the job? MR. SEMERARO: No. MR. DICKSON: None. Okay. CHAIRMAN HAYES: At this point then, I'm going do ask the Respondent to present their case. Thank you. You may sit down. MR. SEIDENSTICKER: I have one further question based upon the question that was elicited by the Board. Isn't it true that you had a discussion with Mr. Balzano that, in fact, you did get another bid and the remaining work, someone gave you a bid to complete the work that you claim is unfinished on this project was for approximately $5,000? Page 100 June 19, 2002 MR. SEMERARO: No. MR. SEIDENSTICKER: You don't recall that? MR. SEMERARO: (Nods head in the negative.) CHAIRMAN HAYES: Thank you. You may sit down, Mr. and Mrs. Semeraro. Thank you. MR. ZACHARY: The Petitioner rests at this point. MR. SEIDENSTICKER: Based upon the County resting, I have a motion to dismiss the administrative complaint that I've prepared that I would like to present the Board with to consider. Basically my motion addresses the specifics of the administrative complaint being brought under 4.1.3, abandoning a construction project. I would submit that based upon the testimony elicited by the County, that it clearly was not abandoned by On The Level. In this particular case, I would submit that under the circumstances, with respect to the Petitioners leaving or instructing Mr. Rodriguez and On The Level that they should not continue on with the project in their absence and then returning, having them start approximately four months after and then recommence the work, I would submit that it did not -- it does not constitute a violation under the statute. Additionally, I would submit that the case in which abandonment is appropriate in the case of Hunter versus Department of Professional Regulation, cited at 458 S 842, case in which a home builder actually went out of business and they were charged with abandoning a construction project. The Court ruled that that was not within the statutory intent designed to protect consumers and I would submitted that this case does not fall within that realm based upon the Hunter case and ask the Board to review that case. And I would like to dispurse my motion, if I could. Or if that should be through Mr. Zachary. MR. NEALE: That's fine. Mr. Zachary needs a copy as well. Page 101 June 19, 2002 CHAIRMAN HAYES: You don't have any further evidence or testimony? MR. SEIDENSTICKER: Yes. I would ask the Board to consider that at this point based upon the evidence that was presented. I do want to present my client, if the Board is going to -- I don't know defer on the motion at this point or continue to hear evidence. CHAIRMAN HAYES: I'm going to suggest we'll probably defer and continue to hear evidence. It will give us a chance also to continue while we do review it. MR. SEIDENSTICKER: Thank you. Would you state your name for the Board? MR. RODRIGUEZ: Roland Rodriguez. MR. SEIDENSTICKER: Mr. Rodriguez-- CHAIRMAN HAYES: I'm sorry. I'm going to have to have Mr. Rodriguez sworn in. Thereupon, ROLAND RODRIGUEZ, the speaker herein, having been duly sworn, spoke as follows: CHAIRMAN HAYES: Would you state your name? MR. RODRIGUEZ: Roland Rodriguez. MR. SEIDENSTICKER: What is your relationship to On The Level Builders? MR. RODRIGUEZ: President. MR. SEIDENSTICKER: How long have you been a licensed contractor? MR. RODRIGUEZ: About almost four years. MR. SEIDENSTICKER: And would you describe for the Board how you first had any dealings with the Petitioner, Mr. Semeraro and his wife? MR. RODRIGUEZ: They gave me a call to give a bid on remodeling the bathroom. Page 102 June 19, 2002 MR. SEIDENSTICKER: Would you describe for them what ensued after that point and bring us up to the last time you did work on the project? MR. RODRIGUEZ: Okay. We contracted to remodel a bathroom on -- excuse me. Can I get my notes? I got a contract to remodel three bathrooms for Mr. and Mrs. Semeraro in December. And we proceeded to work. Then in March the 22nd they added to remodel their kitchen. And we proceeded to work. In July -- in July 2000 we had a dispute that they had their attorney contact me. And we resolved the dispute, I believe the end of September, and we proceeded to work. In the dispute, I stated it would take about four weeks with allowances for cabinetry that we had to order. Then on January 2001, I went to work and Mr. Semeraro advised me that Mrs. Semeraro had a death in the family and they could not proceed for four months. So we didfft do anything until they called us back. Then when they called us back at the end of April, I went and met with them. It did change, the hood cabinet at that time, February 9th, they wanted to change from the decorative hood cabinet to a regular cabinet. And I did have one, because -- but it had the wrong door. I put it up and had the wrong doors. Of course, with all this happening, it was hostile. It was all hostile towards the end, and I was told not to come back on the project until his attorney contacted me. And the last thing I heard was when I got served this complaint. MR. SEIDENSTICKER: With respect to from the time this dispute arose that you ultimately resolved with the attorney, did you incur any expenses with regard to payment of suppliers, subcontractor or employees? Page 103 June 19, 2002 MR. MR. MR. MR. MR. RODRIGUEZ: Yes. SEIDENSTICKER: Okay. Who paid for those? RODRIGUEZ: I did. SEIDENSTICKER: Why did you pay those? RODRIGUEZ: Well, I paid the work going to different cabinetry, approximately $6,000 additional. I also paid an additional $1,000 for a change work order that Mrs. Semeraro had AC Electric do, and I changed -- I paid an additional $400 for a change work order that Mr. Semeraro had with the countertop shop. MR. SEIDENSTICKER: How much is currently owed to you on the job for the work that's been completed so far by the Semeraros? MR. RODRIGUEZ: $10,400. MR. SEIDENSTICKER: Have you liened the property? MR. RODRIGUEZ: No, sir. MR. SEIDENSTICKER: Have any subs to your knowledge liened the property? MR. RODRIGUEZ: No. MR. SEIDENSTICKER: And that's based upon your having paid them all? MR. RODRIGUEZ: Everybody's paid. MR. SEIDENSTICKER: Explain to the Board why you have not completed any additional work since May 9th, 2001 ? MR. RODRIGUEZ: I thought I was going to be contacted by their attorney Mark Muller. MR. SEIDENSTICKER: Would you describe in detail the conversation that you had with Mr. Semeraro that led you to believe that you were going to be contacted by Mr. Muller again? Page 104 June 19, 2002 MR. RODRIGUEZ: At the end of May when I went back, they had a decorative hood ornament, which is on the punch list with Mark Muller. We put the different recirculating fan. MR. SEIDENSTICKER: Is that reflected in one of the photos that's in evidence? MR. RODRIGUEZ: Yes, it is. The white kitchen photo? MR. SEIDENSTICKER: Is that photo Number 2 or B, I believe? CHAIRMAN HAYES: I think it might be possible that that can be put on this projector just right next to you. MR. SEIDENSTICKER: Okay. Thank you, very much. CHAIRMAN HAYES: And we could all share in that when we refer to those. It was just one of the two that you had already worked with, I believe. I'm not sure how that thing operates, Mr. Nonnenmacher. But it operates quite well. MR. NONNENMACHER: I don't either. MR. BALZANO: It's on. CHAIRMAN HAYES: It's on. You just need to shorten the picture. All we see is a cabinet. There we go. MR. SEIDENSTICKER: There we go. Perfect. MR. DICKSON: Turn it over. CHAIRMAN HAYES: It's upside down. Perfect. MR. SEIDENSTICKER: Okay. Does that picture reflect the cabinet that you're referring to? MR. RODRIGUEZ: That's correct, above the recirculating fan that we changed. We took the other one out. We change the vent hood, the recirculating type vent that's according to our punch list that the cabinet above it is just, it's just pretty. Its just like -- it doesn't open and close. It's just like a hood-type cabinet. When they Page 105 June 19, 2002 got back in May, they asked me if it was possible to remove that cabinet. MR. SEIDENSTICKER: This is May of 2001 ? MR. RODRIGUEZ: Yeah, may of 2001, upon the return from the illness and put in a wall cabinet that they could have it function with. I said, "I did not order that cabinet," because he told me in May and I was there the next with it. I think I had one in stock that works. So I put the one in stock in. The doors didn't have the arch on the top. They were straight. And at that time then it was the wrong doors, and then Mr. Semeraro, which of course a lot had been leading up to this, told me not to come back until I was contacted by Mark Muller. MR. SEIDENSTICKER: Did Mr. Muller ever contact you after that? MR. RODRIGUEZ: No, he did. MR. STPHR: Did Mr. Semeraro ever call you and say, "I've changed my mind. Don't wait for my attorney. Come back and finish the product."? MR. RODRIGUEZ: No. MR. SEIDENSTICKER: And at this point, how much are you currently owed? MR. RODRIGUEZ: 10,400. MR. SEIDENSTICKER: Thank you. MR. ZACHARY: I have a couple of questions, Mr. Rodriguez? MR. RODRIGUEZ: Yes, sir. MR. ZACHARY: It's true then that there's work left to be done at the Semeraro's house; is that true? MR. RODRIGUEZ: There's punch list items of which I put on my response to be done. MR. ZACHARY: Okay. So the job's not finished? Page 106 June 19, 2002 MR. MR. May 9th, MR. RODRIGUEZ: Correct. ZACHARY: And you haven't been back to the job since 20017 RODRIGUEZ: No, I have not. MR. ZACHARY: Okay. Nothing further. CHAIRMAN HAYES: Okay. You have anything further? MR. SEIDENSTICKER: Nothing further. CHAIRMAN HAYES: The Respondent rests. Mr. Zachary, I think you have the opportunity for rebuttal. MR. DICKSON: I have a couple question. CHAIRMAN HAYES: Oh, I'm sorry. MR. DICKSON: The $10,400, is that all change orders. MR. RODRIGUEZ: No. MR. DICKSON: How much of the original contract does that represent? MR. RODRIGUEZ: The original contract is $9,100. Or $9,100, part of the original contract. MR. DICKSON: 9,100. MR. RODRIGUEZ: Correct. MR. DICKSON: And your change orders were how much? MR. RODRIGUEZ: It was 1,000 to AC Electric and 400 to the countertop shop. MR. DICKSON: So 10,5007 MR. RODRIGUEZ: It's 10,496. MR. DICKSON: Oaky. So you received no partial payments at all? MR. RODRIGUEZ: No, sir. MR. DICKSON: Not even a deposit? MR. RODRIGUEZ: Well, the whole contract was almost 50,000. Page 107 June 19, 2002 MR. DICKSON: That's where I'm going? MR. RODRIGUEZ: The entire contract was -- MR. DICKSON: The 10,400, how much of that represented the original contract? MR. RODRIGUEZ: 25 percent, approximate. MR. DICKSON: Okay. So the 75 percent was change orders of the 10,400? You see where I'm going? MR. RODRIGUEZ: No. The original contracts, we had one. MR. DICKSON: The reason I'm doing this is to get straight in my head, because the way it's been presented is like you spent this $10,400, and you were totally out no money with no draws. You see where I'm going? MR. RODRIGUEZ: The entire contract was approximately $44,000. MR. DICKSON: Okay. CHAIRMAN HAYES: That's the entire original contract. MR. RODRIGUEZ: The entire original, that's the bathroom remodels and the kitchen remodels for $44,000. CHAIRMAN HAYES: Now, the change orders you're speaking of?. MR. RODRIGUEZ: The change orders, their was 4,000 -- the total change orders were $4,410. CHAIRMAN HAYES: So the final monies that you're due, part of that is from the original contract? MR. RODRIGUEZ: Yes. CHAIRMAN HAYES: And balance of it is the change orders? MR. RODRIGUEZ: The change orders to the subcontractors that I went ahead and paid as part of my contract. But they had the subcontractors do additional work. Page 108 June 19, 2002 MR. DICKSON: So the 10,400 basically represents about the 20 percent of your total contract? MR. RODRIGUEZ: Approximately, yes. MR. DICKSON: Including change orders? Okay. And that's where I was trying to go with that. MR. RODRIGUEZ: Okay. CHAIRMAN HAYES: It puts everything in a different light. MR. RODRIGUEZ: Okay. MR. DICKSON: When the wife left in January of 2001 -- MR. RODRIGUEZ: Yes. CHAIRMAN HAYES: -- because of her sister's death, was there any offer or discussion of a partial payment of that remaining money? MR. RODRIGUEZ: I asked and they said, "No." I wanted to stay and finish the remainder of the work as to get paid as per their notes. And they said, "No. I'm going to have to wait 'til when they get back." MR. DICKSON: Okay. So wait the four months on finishing the work and the 10,000. And then you say that you were ordered off the job on May the 9th. MR. RODRIGUEZ: May 9th, correct. MR. DICKSON: I've gone through the packet and I've looked at letters that have exchanged. There's nothing in writing? CHAIRMAN HAYES: It was totally verbal. There's nothing. I have nothing in write. I have nothing in writing to that effect. MR. DICKSON: What about -- MR. RODRIGUEZ: I didn't write it down. MR. DICKSON: What about the letters that the homeowners sent to you after May 9th? Page 109 June 19, 2002 9th. MR. RODRIGUEZ: I don't have any letter from them after May MR. MR. MR. MR. MR. me after May 9th. CHAIRMAN HAYES: that July, August? DICKSON: Am I wrong on my dates? RODRIGUEZ: No, they did not contact me after May 9th. CRAWFORD: Nothing's happened after May 9th. Q DICKSON: No written communication by either party? RODRIGUEZ: No. Paul Balzano was the first to contact And what time was that, roughly? Was MR. SEIDENSTICKER: Mr. Dickson, if I could just address that one last question about contact. On page 2 of the response in the Administrative Complaint, paragraph 3, there was a specific reference that was filed by Mr. Rodriguez about the phone call. That was I, believe, previously submitted to the Board with the package. MR. DICKSON: Okay. And you had no communication, no communication included, no effort to resolve this? MR. RODRIGUEZ: No communications from the Semeraros as of May 9th. MR. DICKSON: Okay. Was there any attempt to resolve this through Contractor Licensing so that you wouldn't have to come before the Board? A MR. RODRIGUEZ: Yes. Mr. Balzano asked me about it, what to do and we were at the point that I'll do whatever they want to do, which I have a letter here that I had sent to Mr. Balzano who sent it to them that, "I'm ready, willing to come complete the job." This, I believe, it was in August or September. The letters in a packet. I'll come complete the job or get a contract -- if you want me to get a contractor and finish the job or, you know, whatever you want to do. Page 110 June 19, 2002 MR. DICKSON: And his response back to you was that was not acceptable? MR. RODRIGUEZ: That's not acceptable. MR. DICKSON: The reason I bring that up is we very seldom get cases because they do a phenomenal job of resolving these so they don't come before this Board. MR. RODRIGUEZ: Yes, sir. MR. DICKSON: And so no success there? MR. RODRIGUEZ: No success. MR. DICKSON: Okay. Thank you. CHAIRMAN HAYES: Any further questions from the Board of this witness? Mr. Neale, I'm going to ask you, do I need to formally respond to this motion to dismiss? MR. ZACHARY: Mr. Hayes, I'm going to have a short redirect. I'm going to call Mr. Semeraro back. But if you want to address the motion at this point. CHAIRMAN HAYES: I just want to question that at this point. Do I need to deny this, to continue or do I need to hold it to stop? MR. NEALE: It really is the Board's discretion at this point whether you want to hear additional testimony, whether you feel adequate testimony has been offered to address the motion to dismiss. Mr. Zachary and the County do have another bite at the apple, so to speak. They do have the opportunity to put forth their rebuttal case, and he does, obviously, have the opportunity for redirect questioning of this witness. So it's the Board's discretion whether you want to address the motion to dismiss now or wait until both cases in chief are concluded or wait until all cases are conclude and you go into deliberation. That really is the Board's discretion. Page 111 June 19, 2002 CHAIRMAN HAYES: I personally would like to see us hold off on addressing the Motion to Dismiss until we finish hearing some of the evidence. However, I don't want to be in violation of any procedural activities that we could run into trouble with later. MR. NEALE: Now, I think as long as the Board-- the Board, it is in their discretion to here as much evidence as it feels is appropriate to consider that motion. CHAIRMAN HAYES: Okay. Then I'm going to ask the Board at this point, I am not -- I am just one of the Board members. I'm the Chairman. I am not the Board. So as far as I'm concerned, I can't take any action at my own position. Is there any action that any other Board members feels we should take on this Motion to Dismiss at this point? MR. LLOYD: I think we could respond -- defer until we hear more information and then make decision. MR. JOSLIN: I agree. CHAIRMAN HAYES: Okay. I think we seem relatively satisfied with off. We're going to hold off any action on it then. Very well. And you need to redirect, Mr. Zachary? MR. ZACHARY: You had a question, Mr. Dunn? MR. DUNN: Yeah, I'm not sure. Just two simple questions. What was your initial time to complete the job before the kitchen was added? MR. RODRIGUEZ: Before the kitchen and everything was added, I believe it was toward April. MR. DUNN: Three months, four months, basic time frame? MR. RODRIGUEZ: Three to four months. MR. DUNN: Three to four months. And then were there some things that occurred that just pushed that date out? Page 112 June 19, 2002 MR. RODRIGUEZ: Well, we added the kitchen. We added the kitchen -- MR. DUNN: Aside from -- let's call it aside from owner changes, were there things that maybe didn't go as you planned that pushed it out a little bit? MR. RODRIGUEZ: There's a lot of things that don't go as planned. There was a change order with the electrical as AC said he'd like to take a little bit longer than anticipated. So instead of just moving the breaker box, the electrical contractor had to rewire the house, practically, which he told Mr. Semeraro, and Mr. Semeraro said, "Go ahead." We had a tile problem with Angela's Tile & Marble that came. And then I used Creative Tile, that's a licensed subcontractor, to do the tile work. When we opened up some cabinets, that if you'll notice in the pictures, some of the piping was through the slab into a wall that we had to tear out the wall to get to that piping. And the job -- the job practically -- there's a lot of hidden things, like if you see like that cabinet, the owner previously put the breaker box in the cabinet and so forth. And as we tore things up. Like the Semeraros said, we tore out the wall and it was rotted. So we went ahead and replaced the wall. MR. DUNN: About how old is the house? Anybody can answer this question. About 40, 50 years, 30, 20, 60? MR. SEMERARO: MR. DUNN: 1970. MR. CRAWFORD: 1970. Okay. That's all I have. I guess his real question was and what I'm real confused about is because you had delays and you weren't allowed in the house for a certain period of time, but you signed a contract in December of '99? MR. RODRIGUEZ: Correct. Page 113 June 19, 2002 '01. MR. CRAWFORD: Worked on and off'til May of'01 ? MR. RODRIGUEZ: No, we worked pretty steady until May of MR. CRAWFORD: So that's a year and a half to remodel a kitchen and two bathrooms. That seems like an awful long time. That's where I'm confused. How come? MR. RODRIGUEZ: May of'01 -- no. No, we didn't. May of '01, I didn't. You figure you can take almost two months out of that, almost six months out of that whole time frame for the fact that they were gone for four months and they had to go and -- they went up north twice for sick relatives. It takes almost six months. That's almost a year. So you can take two months out of negotiations for when Mr. Muller got involved. MR. CRAWFORD: So you had about six months to work -- I'm sorry. You had about six to eight months of working time? MR. RODRIGUEZ: Yes. That's correct. CHAIRMAN HAYES: I think I have some questions along the same way and I apologize for trying to run this thing and keep track and follow. It's hard the do. Mr. Rodriguez -- MR. RODRIGUEZ: Yes. CHAIRMAN HAYES: -- for what work overall on this project, if you were allowed from beginning to end, how long should it take in your ballpark? I mean, you know, you're a contractor, and you do have to try to estimate time for completion. MR. RODRIGUEZ: Well, the cabinetry is probably about six to seven months for everything, not just for one, for everything that we've done. CHAIRMAN HAYES: Six or seven months is the way it should have been? MR. RODRIGUEZ: Right. Page 114 June 19,2002 CHAIRMAN HAYES: Now, giving two other extenuating circumstances, one, the owners being out of town from time to time? MR. RODRIGUEZ: Right. CHAIRMAN HAYES: How many times do you think you should do a job before you call it finished? In other words, if you're taking six months to do it and they were out of town six months, that's a year. So you had six months of rework involved here? MR. RODRIGUEZ: Right. If they were out six months of rework. CHAIRMAN HAYES: Yeah, that they were not satisfied with that they said was wrong or the cabinets were wrong, the doors were wrong, the wiring had to changes or whatever. What I'm getting at is that if there was a lot of rework-- MR. RODRIGUEZ: There was rework, yes, sir. CHAIRMAN HAYES: -- because it wasn't done right the first time -- MR. RODRIGUEZ: Wasn't done right at the time and changes also. Like the kitchen was changed. The whole kitchen was changed with Mark Muller. We went over the kitchen design before with Craftsmade, and I ordered the kitchen the way we designed. Then when it came in she had to represent, said the kitchen should have been designed that way. So we reordered the kitchen. CHAIRMAN HAYES: All right. What I'm getting at is you, as a general contractor, are hiring subcontractors -- MR. RODRIGUEZ: Yes. CHAIRMAN HAYES: -- as well? MR. RODRIGUEZ: Yes, sir. CHAIRMAN HAYES: You also, as a general contractor, review and critique the subcontractor's work prior to payment to those subcontractors? Page 115 June 19, 2002 MR. RODRIGUEZ: That's correct. CHAIRMAN HAYES: As a good businessman, you must do that, and you must do that from experience on the job, physically looking at the work? MR. RODRIGUEZ: Yes. CHAIRMAN HAYES: Did you actually look at the work that the subcontracts billed you for that said was of craftsmanship like manner and complete prior to paying them? MR. RODRIGUEZ: Yes. CHAIRMAN HAYES: And in your best judgement, that work was satisfactory? MR. RODRIGUEZ: That's correct, yes. CHAIRMAN HAYES: Now, so then you're saying by and large some of the problems with the rework was your inability to please the customer? MR. RODRIGUEZ: Correct. MR. LLOYD: Can I ask a question in that theme? MR. RODRIGUEZ: Yes, sir. MR. LLOYD: Do you typically put tile over parquet floors? MR. RODRIGUEZ: You can if you put -- there's a latex additive that they use to put on a wood floor that they can put tile over the wood floor. MR. LLOYD: And when you examined that floor after the sub did the work, it was adequate, appropriate? MR. RODRIGUEZ: It was adequate with a few loose tiles and I guess afterwards a few more loose because they sound hollow. But a lot of the tile sounding a little bit hollow may not be that the tiles were loose. It may be that the floor underneath it before. But we had this discussion before with Creative Tile, with the tile people and myself and the Semeraros. And due to the expense of Page 116 June 19,2002 tearing up all the wood floors and cleaning the floors to just lay the tile over the floor. MR. LLOYD: And they agreed to that? MR. RODRIGUEZ: They agreed to that. MR. LLOYD: Thank you. CHAIRMAN HAYES: Okay. No other questions of this witness? Mr. Zachary, you want to redirect? MR. ZACHARY: Redirect to Mr. Semeraro, if he could come ape Mr. Semeraro, approximately how much have you paid to On The Level Builders up to this point? MR. SEMERARO: I paid 40 -- $668 to On The Level Builders. MR. ZACHARY: And of that, approximately what was left, how much of that is from the original contract? MR. SEMERARO: I'm not sure, because part of it was from the first contract, part of it was from the kitchen contract. We also gave AC Electric a check for, I think it was -- let me take a look. It was $2300, I think. MR. ZACHARY: So you did pay a couple of the subcontractor, directly? MR. SEMERARO: Right. Because in the revision of the contract, he -- before he agreed to come back, he wanted us to pay AC, I think, $3,000, and we agreed to pay him 2300. Then we'll pay him the rest later. And actually, I want to make a point to say that in the original contract, which I have here, he has it written out in his own handwriting that the electrical work in the kitchen will be, "To move and replace the existing circuit breaker panel into the back room." And it's right on the first contract. You have a copy of that up there. Page 117 June 19, 2002 And then he said that wasn't part of the contract and we owed -- we owed AC this extra money. So just to get the job done, my lawyer said, "Just give him the money, and worry about it later." So that's why we wrote the check out to AC for $2300. MR. ZACHARY: So you actually paid some of the -- MR. SEMERARO: If you wanted to see that, it's his schedule -- or I have it highlighted. It says, "Complete kitchen remodel, move service, upgrade electrical, moving all plumbing, move plumbing, rip out all cabinets." He had that figured in there, and he had the price down there, 15,200. But then on the original contract he jacked the price up to 15,874, which we didn't say nothing. Maybe it was for something that he might find later. We gave him that. Also, we gave the Countertop Shoppe -- I think we gave them a check -- MR. CRAWFORD: MS. WHITE: 900. MR. CRAWFORD: MR. SEMERARO: $800. No, I have 800. $800 we gave to the Countertop Shoppe, and that was supposed to be maybe $1100, but we agreed on 800. We'll give them the other 200 when the job was done. The Countertop Shoppe was supposed to come back in November to recut that countertop, because it didn't fit properly on the new cabinets. And I called the Countertop Shoppe to ask the man, Miles his name is, "When are you going to come back to do it?" He told me he's not coming back to do it because Roland owes him money. And he wrote letters to Roland to pay him whatever he owed him. Roland didn't give him the money, so he's not coming back to my house to do this. I asked Roland, "Who's going to cut the countertop. Is Countertop Shoppe going to come back and do it?" He says, "No. He's giving it to somebody else, because the Countertop Shoppe was Page 118 June 19, 2002 too busy." He didn't know that I called up Miles and that's what Miles had told me. So you can -- you want to check, you can call Miles at the Countertop Shoppe and ask him about that. And so we gave him -- we gave On The Level Builders $40,668. We gave AC Electric $2300, and we gave the Countertop Shoppe $800, all according to the revision of the contract that we all agreed on. But please keep in mind that the revision of the contract, which was signed in September of 2000, says it be done in four weeks from when he started and would have been the second week in November. So everything past the second week of November, he breached that contract again, never mind the breach of the first contract when he said he would be done with the whole job by the third week of April, 2000. MR. ZACHARY: Mr. Semeraro, on May 9th, the last conversation you had with Mr. Rodriguez, did you ever tell him not to come back to your house? MR. SEMERARO: No. He called me and he said he was going to come back tomorrow with the right doors and send another team. I don't know where he gets these people, whether they're day workers. They are his workers. MR. ZACHARY: So the bottom line is, you didn't see him after that? MR. SEMERARO: No. He told me he was coming back. He never came back. I had enough. I wasn't going to call him up every other day to beg him to come back. I figure, I'll wait the 90 days. If he don't come back, I'll call Mr. Balzano. MR. ZACHARY: Okay. Thank you. Nothing further. Page 119 June 19, 2002 CHAIRMAN HAYES: Okay. Closing arguments now, I guess? Mr. Zachary, you want to present the County's position or closing argument? MR. ZACHARY: Thank you, Mr. Chairman. I'm going to be real brief. The bottom line is the Semeraros contracted with On The Level Builders, Mr. Roland Rodriguez, to remodel their house. Admittedly, there was some starts and stops and some gaps in time. But the bottom line is on May 9th of 2001, Mr. Rodriguez came and resumed work on the house, and after that he never came back. So I think that certainly the County has shown through the testimony of Mr. Semeraro and his wife that Section 4.1.3 of the Code has been violated and that the contractor abandoned the construction project, that he failed to perform any work for 90 days, since there hasn't been any work done on that house since May the 9th of 2001, and there was no just cause for him to abandon that construction product. CHAIRMAN HAYES: Thank you, Mr. Zachary. Yours, Counsel. MR. SEIDENSTICKER: Yes, Mr. Chairman. Thank you. Obviously, based upon the testimony of the Petitioner in this case, there has been certainly issues with starting, stopping, starting, stopping and starting and stopping work again. I think it would be unrealistic for Mr. Semeraro, having been in the carpentry business previously, to have a difficult time understanding how difficult it may have been for On The Level Builders to pull everyone that they needed, with regard to this job, off the project and then put them back on project based upon the Semeraro's family illness issues. While they wanted to be empathetic to those issues, On The Level is a business, and they should not be penalized for basically Page 120 June 19, 2002 trying to accommodate the Semeraros with regard to these delays in starting back up. I believe Mr. Semeraro testified very candidly that's true. It was roughly four months that we had to go out of town. There were two other trips, at least, that were mentioned during his direct testimony in which, understandingly, they did not want contractors working there when they were not present. However, On The Level should not be required to carry numerous subcontractors and suppliers during that time period and expected at this point to actually start back and finish up in a vacuum. When they did go back and try to finish up after the resolution with the attorney in May, I think, at a minimum, there's a dispute as to whether or not there was -- On The Level was asked to leave the project or abandon the project, as they have claimed in the case. I would ask the Board to consider and consider their own common sense whether it makes since for On The Level to abandon a project that Mr. Semeraro, himself, has stated was substantially complete. And there were a few things left to do, I believe, came out in his testimony, at least on one occasion. And for the only thing left for Mr. Rodriguez and On The Level to collect the $10,400 payment that was, it just doesn't make since that they would walk away and abandon this project. And I would ask the Board to consider those issues and the change orders. Additionally, the agreement itself, there's been an issue made with the four weeks, and he was going to complete it in four weeks in accordance with what the attorney's agreement or the attorney agreed with On The Level. In that very agreement, which is part of the packet, and I believe that is E-44 or 46, if I'm not mistaken, there is also an allowance with regard to change order issues. Obviously, On The Level cannot complete a project if they are ordering supplies and the supplies are not coming in when expected Page 121 June 19, 2002 or if other subcontractors aren't completing their line of the work when they are due. I believe the four-week reference was to what it would have taken start to stop. I don't -- I think if the Board considers the agreement as it's written, in light of all the other circumstances and in light of the language that's actually in the agreement with regard to other delays with regard to receiving supplies, other material men that it reasonably-- all attempts were made to reasonably complete it. And if nothing else, there was certainly just cause for not completing it when it was intended to be completed under the terms of the agreement. Thank you. CHAIRMAN HAYES: Thank you, sir. Mr. Zachary, you have a right to rebuttal. MR. ZACHARY: No rebuttal. CHAIRMAN HAYES: Very well. I'm going to close the public hearing. MR. DICKSON: Motion to close public hearing. MR. JOSLIN: Second. CHAIRMAN HAYES: All in favor? Aye. MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. MR. LLOYD: Aye. CHAIRMAN HAYES: I'll say with us reserving the right to ask any of the witnesses up for any other questions that we may have or testimony that we need to ask them to give. Okay. We're open for discussion. Page 122 June 19,2002 MR. ZACHARY: Mr. Hayes, I believe -- Mr. Nonnenmacher, if you can pass the Exhibit up to us there. MR. NEALE: At this point, let me do my charge here for the Board. Rules under which this operates and I'll describe it to the Board here is that in its deliberations, this Board shall exclude from its deliberations irrelevant, immaterial and cumulative testimony. It shall ascertain in its deliberations that the principles of fundamental fairness and due process have been afforded to the Respondent. However, pursuant to Section 22-202G5 of the Collier County Ordinance, the formal rules of evidence, as set out in Florida Statutes, do not apply to these hearings. The Board shall admit and consider all evidence of a type commonly relied upon by a reasonably prudent person in the conduct of their affairs. This is whether or not the evidence so admitted would be admissible in a court of law or equity. As noted to the Board, hearsay may be used to explain or supplement any other evidence. However, hearsay by itself is not sufficient to support a finding in this or any other case unless it were admissible over objection in a civil court. The standard of proof in this type case, wherein the Respondent may lose his privledges to practice his profession, is that the evidence presented by the complainant must prove the complainant's case in a clear and convincing manner. This burden of proof on the complainant is a larger burden than the preponderance of evidence standards set for regular civil case. The standard established for sanctions other than those effecting a license is that of a preponderance of the evidence. So if you're doing other than removing his license for sanction determination, the standard of preponderance of the evidence is what applies. The standard in evidence as set out are to be weighed solely as to the charges set out in the complaint as ordinance 90-105, Section Page 123 June 19, 2002 4.1.3 as amended by the Board of County Commissioners on May 14, 2002. In order to support a finding that the Respondent is in violation of the ordinance, the Board must find facts that show the violations were actually committed by the Respondent. The facts must show to a clear and convincing standard the legal conclusion that the Respondent was in violation of the relevant Section of 90-105 as amended. The charges made against the Respondent are specific and are set out in the administrative compliant as follows: Abandoning a construction project in which he or she is engaged or under contract as a contractor. The project may be presumed abandoned if the contractor terminates the project without just cause or fails to notify the owner in writing of termination of the contract and basis for saying or fails to perform work for 90 consecutive days without just cause and no said notice to the own; that is, this charge is the only one that the Board may decide upon, as this is the only one to which the Respondent has had the opportunity to prepare a defense. The decision made by this Board shall be stated orally at this hearing and becomes effective upon being read be the Board from the desk. The Respondent, if found in violation, has certain appeal rights to this Board, the Courts of the State of Florida and the State Construction Licensing Board as set out in the Collier County Ordinance and the Florida Statutes and Rules. If the Board is unable to issue a decision immediately following this hearing because of questions of law or other matters of such nature that a decision may not be made at this hearing, the Board may withhold its decision until a subsequent meeting. The Board shall vote based upon the evidence presented and on all areas. And if it finds the Respondent in violation, adopt the administrative compliant. The Board shall also make findings of fact Page 124 June 19, 2002 and conclusions of law in support of the charges set out in the administrative complaint if it should find the Respondent in violation. The Board, at the same time as voting upon the findings of fact and conclusion of law, shall consider these and order sanctions under the following perimeters as set out in Collier County Ordinance 90- 105 as amended. In the determination of sanctions, should the Board find the Respondent in violation, the Contractor's Licensing Board shall consider the gravity of the violation, the impact of the violation on the community and on the homeowners, any actions taken be the violator to correct the violation, previous violations committed by the violator and any other evidence presented at the hearing by the parties relevant as to the sanction which is appropriate for the case, given the nature of the violation. When -- should the Board find the Respondent in violation, and I will review these later, should that be done, the Board must decide on those sanctions. And the sanctions are set out in Section 22-203 in the codified ordinance or in the revised ordinance in 4.3.5. The sanctions that may be imposed include revocation of the Respondent's Certificate of Competency; suspension of the Certificate of Competency; denial of issuance or renewal of that certificate; probation of a reasonable length, not to exceed two years, during which the contractor's contracting activities shall be under the supervision of the Contractor's Licensing Board and/or participation in a duly accredited program of continuing education. Probation may be revoked for cause by the Board at a hearing noticed to consider said purpose. Restitution is an available sanction. A fine not to exceed $5,000, a public reprimand, reexamination, denial of the issuance of permits or requiring issuance of permits with conditions. And the Board may find that the Respondent owes reasonable legal and Page 125 June 19,2002 investigative costs. Should the Board find the Respondent in violation and should it issue sanctions, the Board also shall issue a recommended penalty for the State Construction Industry Licensing Board to consider. This penalty may include a recommendation of no further action; a recommendation of suspension, revocation or restriction of the contractors registration; or a fine to be levied by the State Construction Industry Licensing Board. Based upon that, the Board continues its deliberations. CHAIRMAN HAYES: And I'll entertain our deliberation. MR. CRAWFORD: Mr. Nonnenmacher, have there been any other complaints of any kind against On The Level Builders? MR. NONNENMACHER: There has been complaints, very minor complaints, and the contractor has taken care of them immediately. CHAIRMAN HAYES: I have a couple of questions. I want to make sure I understand. I believe the way I heard the testimony that Mr. Rodriguez has, in fact, thrown an offer on the table at one time based on, I understood, that Mr. and Mrs. Semeraro had gotten an estimate of about $5,000 to complete the punch work. Do we have any basis of fact with that or was that just hearsay? MR. LLOYD: The attorney -- Mr. Rodriguez's attorney -- Mr. Rodriguez's attorney presented it, I think, in questioning of the Semeraros and, the Semeraros said they had not. Am I correct in that? MR. SEMERARO: Correct. MS. SEMERARO: Correct. MR. LLOYD: Okay. MR. DICKSON: Let's go to the horse's mouth. CHAIRMAN HAYES: Mr. Balzano? Page 126 June 19, 2002 MR. BALZANO: Thank you. In August of 2001, I heard from Mr. Semeraro, the impasse they had reached. I had thought the job was finished, because I hadn't heard anything from anybody after I got involved in, I believe it might have been August or July of 2000. And he told me that Mr. Rodriguez hadn't been there since May. At that time I called Mr. Rodriguez. Mr. Rodriguez told me that he didn't really want anything to do with the job, that he would let Mr. Semeraro keep the remaining $10,400 and have someone else finish it. I told Mr. Rodriguez that I would call Mr. Semeraro, which I did. What Mr. Semeraro -- I asked Mr. Semeraro what he thought it would take to complete the job to his liking, and he said, "Around $5,000." And I said "Well, Mr. Rodriguez said you could keep what he is owed and have it fixed yourself." And he declined that offer. That's where the $5,000 came from. He never had a contractor. That was his estimate. CHAIRMAN HAYES' Okay. And given that did occur as it was said, Mr. Rodriguez accepted that as settlement just not to have to return to the job again; is that correct? MR. RODRIGUEZ: When-- CHAIRMAN HAYES: You're going to have to come up here. I apologize. MR. RODRIGUEZ' When Mr. Balzano told me that, of course, this job had been going on for a long time. I'm at the point, I know it didn't take $10,400 to complete the little punch-out items that are left. But at this time it was worth it for me to -- for him to keep my $10,400 and just because even if I believe -- even if I went back, I wouldn't be able to satisfy him. Page 127 June 19, 2002 CHAIRMAN HAYES: Okay. And I was also under the impression, or the way I heard it, you testified earlier that Mr. Semeraro, in fact, told you, "Do not come back." MR. RODRIGUEZ: He told me to not come back when I had the wrong doors on that cabinet that we changed on May 9th, yes. CHAIRMAN HAYES: So in your mind you did not abandon it.'? You were told by the customer, "Do not return"? MR. RODRIGUEZ: That is correct. CHAIRMAN HAYES: And since that time, given the question on punch out items and inability to return, you are willing to take the $5,000 deduct-- MR. RODRIGUEZ: That's correct. CHAIRMAN HAYES: -- from the balance paid -- MR. RODRIGUEZ: That's correct. CHAIRMAN HAYES: -- or due? MR. RODRIGUEZ: That's correct. CHAIRMAN HAYES: I don't have any questions further of him. Does anybody? MR. DICKSON: When did you start in business? MR. RODRIGUEZ: In '99. MR. DICKSON: '99? MR. RODRIGUEZ: Yeah. MR. DICKSON: Okay. MR. RODRIGUEZ: That's when I began. MR. LLOYD: You had mentioned earlier that you're waiting for a response from their attorney after the May 9th time; is that correct, you were waiting to hear from an attorney if you could go back in? MR. RODRIGUEZ: That's correct. I was told not to come back until I heard from their attorney. Page 128 June 19, 2002 MR. LLOYD: And you know about the 90-day nonperformance statute that exists here that if you don't work for 90 days there's a chance that you could be held, brought before the Board? Did you know about that? MR. RODRIGUEZ: I did. MR. LLOYD: Did you make any attempt to contact their attorney as the 30 days and 60 days evolved? MR. RODRIGUEZ: No, sir. No, sir. MR. LLOYD: Okay. MR. DUNN: I have a question. CHAIRMAN HAYES: Okay. You have a question? MR. DUNN: Yes. Am I correct in understanding that neither one of you two gentleman wrote to the other and basically said, "That's it. I'm finished."? You didn't write to him, and I you didn't write to him? MR. RODRIGUEZ: I did not write to him. MR. DUNN: And you didn't write to the contractor either? MR. SEMERARO: No. MR. DUNN: And then-- CHAIRMAN HAYES: Okay. Mr. Dunn, if we're going to question both sides, we're going to have everybody at the podium. MR. DUNN: Oh. CHAIRMAN HAYES: We can do that. I just don't want to do that unless -- MR. DUNN: I think that's the last one of these types of questions. What state is this house in right now? I mean, are the pictures that we saw, there's some openings -- MR. RODRIGUEZ: Those-- may I? MR. DUNN: Yeah, sure. Page 129 June 19,2002 MR. RODRIGUEZ: Okay. Those pictures were prior to July, prior when -- and some were in progress. As you know, I've got some equipment in the garage. We start taking down the cabinets off the wall. That's in progress, right. And nothing has been done there since May. So for a year, what I have in my punch list that I believe is to be done, which I specified there's a filler panel by a tub, there's a toe kick, there's about eight feet of undercabinet trim. She had some questions as to some scratches here and the molding and the cabinet door that she needs a touchup kit. And I didn't know until today, I guess, the shower door is not functioning properly. And then she had some questions they may have some loose tiles. MR. DUNN: Okay. For the most part, the house is finished? MR. RODRIGUEZ: It is substantially complete. The house can be used for its intended purpose. CHAIRMAN HAYES: And was there a final inspection on the property, a CO, a Certificate of Occupancy issued? MR. RODRIGUEZ: No. When I called in for the final inspection made prior to the day before they left for four months, they did not pass it because the GFI was upside down. CHAIRMAN HAYES: And has that been corrected? MR. RODRIGUEZ: No. I haven't been back. When they got back, I was there for one day for a meeting and the next day I was told not to come back. It has not been corrected. The inspections have not been completed, the final inspection. All the rough inspections have been completed. The final plumbing has been completed. Structural has been completed. We need -- the final has not been completed. CHAIRMAN HAYES: So the house, in your mind, is completed except for the punch items that need to be corrected. Page 130 June 19, 2002 MR. RODRIGUEZ: That's correct. And then I believe that GFI, we have to get an electrician to turn the GFI right side up. CHAIRMAN HAYES: If you were to have to pay someone to do those items, do you think it would reach $5,000? MR. RODRIGUEZ: No, I believe it's about $1300. I'm willing to give them $5,000. CHAIRMAN HAYES: I understand that. MR. RODRIGUEZ: Of course, if I was another contractor and you had to buy all the materials all over again, it would probably be a bit more. CHAIRMAN HAYES: Okay. Any other questions of this witness? MR. JOSLIN: I'd like to hear the other side. I'd like to hear Mr. Semeraro's views on what you're going to do or what -- CHAIRMAN HAYES: Would you come up to the podium, please, sir. Ma'am. MR. JOSLIN: I can see it's pretty obvious that there's impasse between the two of you for sure and there has been for quite some time. Is there anything that you can tell this Board that you would be willing to consent to have done either with this contractor, or are we just going to have make a decision here on right or wrong? MR. SEMERARO: Well, I'm going to have another contractor come in and correct everything that's wrong and finish the things that weren't done. I certainly don't want that contractor to come back, because he's shown time and time again that he doesn't have the qualified men, nor is he qualified to do the job properly. As far as if they even try to finish the job in a timely manner, I have directed here to show who worked on the job, how many days. Nobody even came on the job when he was supposed to abide to the revision of the contract. There was -- nobody even came on the job. Page 131 June 19,2002 So how was he -- he wasn't even trying to finish the job in that four- week amount of time. MR. JOSLIN: Well, I agree with you to a point. But I also have to say that being a contractor myself and when you go in and do a renovation on someone's property and you go in and give one estimate for an initial contract that you signed originally and then you decide to add more items to that contract, the -- let's call it the process of renovation could turn into a lot of things that are unforeseen. You can't visualize them, in which case then it turns into more time. MR. SEMERARO: The only thing that we really added onto that contract was instead of having the dropin sinks, put a Corian sink into the kitchen sink. And instead of having cultured marble on vanities in the three bathrooms, make it Corian. And that was when he was ordering for the kitchen, so it was going along, you know. It wasn't a delay, because he was still ordering the Corian countertop for that kitchen. MR. JOSLIN: I mean, can you go down to any supply house and order something and get it tomorrow sometimes? MR. SEMERARO: It didn't have to come tomorrow. I mean they weren't ready for it. And I have one other thing. What kind of contractor puts in the Corian countertop when they're still working on the rough window in the kitchen and still doing rough work in the kitchen? And his men got the countertop all scratched up. I mean, it wasn't ready. You finish the rough work before you do that. CHAIRMAN HAYES: Once again, I think the quality of the job is not in question right now. MR. SEMERARO: Okay. CHAIRMAN HAYES: And so I appreciate the information. MR. SEMERARO: But if you wanted to see how he progressed day-by-day and how many days he didn't work, this will show you he Page 132 June 19, 2002 didn't even try to finish the job in the four week amount of time. And it's right here. You have it in your packet. MR. JOSLIN: Um-hum. Okay. I believe he answered my question with the very first answer. CHAIRMAN HAYES: Okay. Mr. Dickson? MR. DICKSON: Do you remember Mr. Balzano's recollection of the conversation that you had? MR. SEMERARO: Of?. CHAIRMAN HAYES: $5,000 to fix it? MR. DICKSON: $5,000 to finish, and that he would let the $10,400 go? MR. SEMERARO: I do. And I said, "No." I want to bring him in front of the Board. MR. DICKSON: Okay. MR. SEMERARO: I don't want to walk -- you know, let him just walk away. I'll keep the 10,400 and let somebody finish it. MR. DICKSON: So you-- MR. SEMERARO: I wanted to have him reprimanded for the way he ran this job. I mean, two and a half years later, it's not done yet. This is not a professional contractor, and he did it to us. He'll probably do it to somebody else. I don't know. It's not anybody's concern about anybody else. It's what he did to us, and that's why I did say to him, "No. I don't want to keep that 10,400." I want the Board to see what kind of contractor he is. MR. DICKSON: That's a fair answer. Thank you. CHAIRMAN HAYES: At this point then, as far as you're concerned, no settlement other than him leaving you alone and you keeping all the rest of the money is the only thing you're interested in, and that would end up being a civil situation. It won't be settled with US. Page 133 June 19, 2002 MR. SEMERARO: I guess. I mean, I spent pushing $50,000 on the job. We weren't worried about another $10,000. And if you wanted to check on other contractors that worked on the job previously, everybody always got paid. If you want to check on my financial record, I got the best financial statement you can have. Everybody always gets paid. So $10,000 to us, we weren't worried about it. All I want to do is have the house done, look halfway decent. He couldn't do it. $10,000 means nothing. MR. LLOYD: I have a question. If you were to determine what percent of your house is completed, would you say it's 95, 98, 99, less than that percent? Is it almost completed except for the punch list items? MR. MS. MR. MS. finished. SEMERARO: I guess it's about, what, 90 percent? SEMERARO: Ninety percent. LLOYD: About 90 percent? SEMERARO: It's not finished. Nothing is completely There is not one room that he has touched that is completely finished with trim. I can't even have wallpaper put on the walls, because there's always something in the way that I'm going to have to pull off and put back on. MR. SEMERARO: The kitchen is a mess. MS. SEMERARO: The kitchen is a disaster. MR. LLOYD: About 90. Thank you. MS. SEMERARO: No. The whole kitchen is going to have to come out, because the counter does not sit well with the cabinets. And when his men were installing them, they had marked them up so badly that they have -- the doors all have to come off, because there's all kinds of scratch marks, there's all kinds of tape marks, some putty glue all over the place, even on my countertop, because they were putting in a window and kneeling on my countertop. Page 134 June 19, 2002 MR. MS. MR. MS. have one too large It's just a MR. MR. SEMERARO: Never covered anything. SEMERARO: Never covered anything. LLOYD: Thank you. SEMERARO: So anything that he has done really has -- I bathroom that has to be totally taken out because the sink is for the bathroom. There's no countertop. There's nothing. sink, and he had charged us for a countertop. LLOYD: Thank you. JOSLIN: And, Ms. Semeraro, I think we're dealing with something here that it's going right back to the -- MS. SEMERARO: I'm sorry. MR. DUNN: I have one more question. CHAIRMAN HAYES: Okay. Hold on just a minute. Let -- MR. LLOYD: I just wanted -- the reason for my question is I wanted to know when a person would walk away from a job and wouldn't walk away from a job. CHAIRMAN HAYES: Okay. Mr. Dunn? MR. DUNN: I recall that you said before that you didn't want to have the contractor work in your home when you weren't there. When the contractor did work in your home and you were there, did you give him access to do his work, and did you let him do his work in peace and quiet, let's say? Yes. My wife was out in the backyard. I would be out in the -- I wasn't even in the house, or I was gone. MS. SEMERARO: MR. SEMERARO: MS. SEMERARO: MR. SEMERARO: Or if I came home, I went in the backyard with her. I wasn't -- we weren't on top of the men. MR. DUNN: Okay. MS. SEMERARO: No, I didn't brother them at all. Page 135 June 19, 2002 MR. DUNN: Okay. Thank you. MS. SEMERARO: The other thing I'd like to say is that I did keep a daily record of what they started, what time they went to lunch CHAIRMAN HAYES: Yes, ma'am, we're aware of that. It's in the record. Okay. Any other questions of these witnesses? MS. WHITE: Well, I do think-- CHAIRMAN HAYES: Sorry. MS. WHITE: I mean, the Naples market, people leave all the time. We are seasonal. So I don't think it's unusual at all that they would be gone for three or four months for a period of time. And I do think that since this has been going on 18 months, minus whatever time they were gone, minus whatever time it was in dispute with their attorney, I still think it could have been done, the project. I just think that Mr. Rodriguez got aggravated and didn't want to go. CHAIRMAN HAYES: Okay. Do you have any questions of this witness? MS. WHITE: Oh, okay. I thought I did in my notes. No, no more questions. CHAIRMAN HAYES: Okay. Mr. Lloyd? MR. LLOYD: Just one minor question. I apologize. In the petition here I was noticing the discussion has been about your wife leaving for various illnesses and going. And yet you stated in here, it talks about someone coming to the house and the grandson coming to the house and work having to stop due to the grandson's presence on the premises. So that sounds like there's another stoppage there. Is that the same? Is that connected? MS. SEMERARO: No, he never came. MR. SEMERARO: He never came. Page 136 June 19, 2002 MR. LLOYD: Okay. Because it's listed here, and I would just want to make sure I didn't miss another stoppage. MR. SEMERARO: That's why I hired the attorney, because he wasn't going to be done on time. He kept telling me another -- MR. LLOYD: Okay. MR. SEMERARO: -- two weeks, three weeks, and that was it. I just want to say one thing about my wife leaving, she left to go to New Hampshire in May of 2000, only for three weeks. And besides that, she went again in January of 2000 and was gone for almost four months. But at that time the revision of contract he was supposed to be done in November. So at that time that we held him up because he couldn't get in, that job was supposed to be done months before, months before this happened. MR. LLOYD: Thank you. CHAIRMAN HAYES: Okay. Okay. Thank you. I see problems on both sides, you know. I see that there was complications to finish because of people leaving town. And I see delays on the contractor's behalf, either busy, wrong material, something not delivered properly and so on and so forth. And all of that we see happen all the time in our industry. And it's a matter of working together. And in this case, I see friction building over a period of time to the point where there was no one willing to compromise and work it out. And it stretched out the time to be even longer than it would have been any other way. I would have thought that they could have perhaps come up to a financial settlement and settle it and go on their way. Technically by the ordinance, in my mind, and reviewing the case history, case law behind the request for a dismissal -- we have two sides of testimony here, but it's my belief that when a Page 137 June 19, 2002 homeowner tells you, "Don't come back," you didn't abandon it. And if you try to make a settlement offer after that, that still does not constitute abandonment, technically by the law. And so the way I see it, I don't see that we have substantiated the words verbatim of the ordinance. And that's just my personal opinion, but I just wanted to express it. MR. LLOYD: And we have to be careful not to take into consideration the quality of the work that was done. We have to address just the specific issue. CHAIRMAN HAYES: That's correct. MR. DICKSON: I disagree a little bit only because, first of all, the motion, Counselor, you won't appreciate this when a contractor wants to argue law with you, but I don't think your motion, the case law that you gave us, has any application here. Totally different set of circumstances. But I think he did abandon it. But at the same -- because I do believe the Semeraros when they -- they've been forthright and honest about every answer they gave. I think it became a mutual abandonment between parties, because you were both sick of each other. It was a bad job, no question about it. Mr. Rodriguez, I'm sure you learned a heck of a lot out of this job, and I hope you go on in the future to profit from it so that you don't make the same mistakes again. But I do believe there was an abandonment, because there was no contact for 90 days between either party. Whether that was mutually agreeable, I think it probably was. MR. NEALE: If I may just address a little bit. I want to reiterate the exact language of 4.1.3 so that everyone is looking at it, because every word has to be considered. MR. CRAWFORD: And if I could interrupt you too, I was going to bring out the same language. I hate to disagree with Mr. Page 138 June 19, 2002 Dickson two times in one day, but it does say, "Without just cause." And, you know, a project may be presumed abandoned if the contractor terminates the project without just cause. And I think Chairman Hayes alluded to the fact that he was told not to come on site until he was contacted by the attorney. He did make some settlement offers in some form or fashion along the way. And with the narrow-minded count under this Administrative Complaint that we've been proposed with, I don't think it applies. MR. DICKSON: Good point. CHAIRMAN HAYES: Mr. Neale? MR. NEALE: I was just, you know, obviously got the language in front of me. I would just call everyone's attention in there. There are "or" clauses in there, "Or fails to notify or fails to perform without just cause." But there is the underlying just cause aspect to it. CHAIRMAN HAYES: Underlying just cause. I can't see anything further. We're in deliberation. MR. DICKSON: I think in the furore I'd get some correspondence going called CYA. CHAIRMAN HAYES: Anybody else have an opinion? MR. JOSLIN: I think this can be worked out. I honestly feel the same way you do, if they would just come to some kind of an agreement, it would all go away. Apparently it's not going ot happen. MS. WHITE: Well, it might. It might. CHAIRMAN HAYES: I think so. MS. WHITE: Why don't the Semeraros just take $5,000 off what they owe him and pay him and everybody goes home. CHAIRMAN HAYES: Well, that's what I was hoping to here. Unfortunately, we can only recommend and suggest that. MS. WHITE: Um-hum. Page 139 June 19, 2002 CHAIRMAN HAYES: We actually can only act on what's here. And if that doesn't satisfy it, then they're going to have to continue to a civil jurisdiction at this point. But all we can do is conclude a finding of facts and conclusions of law as to whether or not we had an abandonment. I'm going to tell you at this point in time, Mr. Dickson feeling like he does about the case law regarding the motion to dismiss, it may be that we need to make a motion to deny or disallow this motion and put it behind us and then go on with the finding of fact and conclusion of law. MR. NEALE: The Board can either-- the Board should address the motion and either accept it or deny it. But then, you know, the Board then has to, in its deliberations, decide whether a violation of the specific charge was committed, and in that instance, should it so choose, dismiss on its own motion is what would effectively be done. CHAIRMAN HAYES: Well, that's what I'm saying. So we can either settle this case today by one or two ways, by allowing the motion to dismiss and dropping it there and forget about the finding of fact and conclusion of law or deny the motion to dismiss and continue with our finding of fact and conclusion of law. MR. DICKSON: I would rather just ignore it, because in ten years, that's the first time we've gotten one of these. And they're more appropriate for a civil judicial court and not a quasi judicial like we are. And to acknowledge it, I don't want to keep getting them every time someone's represented. CHAIRMAN HAYES: Well, I agree with you, but I'm going to tell you, if we leave it undone on our world here, it could end up biting us from appeal later. MR. NEALE: And since we do operate under the Florida Administrative Procedure's Act as being an overriding body which Page 140 June 19, 2002 does permit motions to be filed, I would suggest in an excess of caution, the Board probably should address the motion. MR. DICKSON: Oh, I misunderstand you. I thought we could ignore it. MR. NEALE: No. MR. DICKSON: Okay. MR. NEALE: I think the Board has to address it. And then should the Board-- MR. DICKSON: I misunderstood. MR. NEALE: Should the Board see fit to, you know, the Board can address this motion, and then should the Board see fit -- MR. DICKSON: Okay. MR. NEALE: -- in its further deliberation to dismiss the complaint on its own motion, that's completely appropriate. So the Board really has three, you know, routes to accept the motion, multiple routes, accept or deny the motion to dismiss, find the Respondent in violation, find the Respondent not in violation and then go from there. MR. CRAWFORD: So based on that direction, just to square away this first item of business, I would like to make a motion that we dismiss the Respondent's motion to dismiss the administrative complaint and form our own motion, Crawford. MR. DICKSON: Dickson, second. CHAIRMAN HAYES: I have a motion and a second. Any further discussion? All in favor? Aye. MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. Page 141 June 19, 2002 MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Very well. We have made a motion to deny the motion to dismiss. Okay. Now, we can continue on with our deliberations and finding of fact. MS. WHITE: I have a question for Mr. Neale. Did I hear correctly that you said the preponderance of the evidence is not enough for abandonment; is that correct? MR. NEALE: Well, in order to find in violation where a license is in jeopardy, you should use the clear and convincing standard of proof, because you don't know what sanctions you're going to find until you've already gotten past the conclusion of law that they're in -- this finding of fact and conclusion of law they're in violation. So it's my opinion that the -- to get past the first hurdle, you have to go beyond the preponderance of the evidence. Then when you get to the second hurdle, as finding sanctions, you can go on for preponderance if you're finding sanctions other than removal of license. It's a little bit of a narrow legal ground, but so that's the way I interpreted it. CHAIRMAN HAYES: I'm saying that as you had mentioned earlier, Mr. Neale and Mr. Crawford, as you had brought up as well, and I think Mr. Dickson even looked it over a second time, when you weigh the words without just cause in the abandonment charge, that could be a possible reason for so called abandonment -- MR. DICKSON: Um-hum. CHAIRMAN HAYES: -- or not at least substantiate abandonment 100 percent. And in my own mind, that's the way I feel about it, that there seemed to be some efforts in the past to try to reconcile or settle some. And it's like every other kind of argument or disagreement, after a point in time, no words are better than some words. And so I need to entertain a motion perhaps from someone. Page 142 June 19, 2002 MR. CRAWFORD: I agree. And I'll make the motion. A couple comments first. I think the whole thing is a shame. I think there's some serious workmanship issues on Mr. Rodriguez's part. I think there's some serious communication issues. I think there's some customer service and relation issues. But we're not proposed with the task of dealing with those today or probably ever. So with that narrow script that we've been given today, I would like to make the motion that we dismiss Count One, Section 4.1.3, to Mr. Rodriguez doing business as On The Level Builders, Inc., on the basis that he did have just cause to temporarily delay work on the project. MR. JOSLIN: Joslin will second that. CHAIRMAN HAYES: I have a motion and a second. Any further decision? MR. DICKSON: I do. I'm willing to change after you pointed that out. But also to the homeowners, it's probably the only case I can ever remember where we've had a case like this that there was no financial harm, because there's money left over to correct the job, which I feel good about that. And at the same time, they have accomplished what they wanted to accomplish, which is this hearing before this Board, the attorney that he had to hire to represent. And I personally think with this everyone's going to come out pretty-well unhurt with a good lesson. CHAIRMAN HAYES: Okay. I'm calling for the vote then. All in favor say aye? Aye. MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. Page 143 June 19, 2002 MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Motion carries unanimously. Mr. Neale, in our finding of fact and conclusion of law and the order of law, I don't see anything to be read into the record regarding our finding of fact and conclusion of law. MR. NEALE: Mr. Crawford's motion adequately addressed the reasons and findings of fact. CHAIRMAN HAYES: Excellent. MR. NEALE: I'll craft the order of dismissal and provide it to the Board and Chair for signature. CHAIRMAN HAYES: Excellent. I'm going to suggest that I'm quite satisfied, Mr. and Mrs. Semeraro, that we haven't acted satisfactory to your conclusion. However, there seems to be a lot more issue regarding craftsman and quality of the job than there is an abandonment. According to the law, exactly as it's written, I think this Board has expressed their feeling that they have found possibly some just cause to why there wouldn't have been a constant steady stream of communication. I do apologize that we're not able to act according to what you expected out of us. But it's not to say that you weren't treated fairly all the way through. It sounds like from what we heard today that there are some facts demonstrated that the craftsmanship, the workmanship of the job is under question, and we can't address that with this charge today. Once again, I apologize for your feelings and I apologize once again for taking us three months to finally get to this conclusion. But I would also suggest that you somehow or another at this point to stop the bleeding, if you will, from where you're at now. Page 144 June 19, 2002 If your home is looking anything similarly close to some of these pictures that we saw today, I would not personally like to live in that environment myself, that I would try to settle it and get that place back to something satisfactory so you don't feel so miserable every time you come home. But it doesn't look like there's anything that this Board can do short of explaining what we have just done. Mr. Rodriguez, by the same token, during the hearing of this case, we heard some testimony on quality. We saw some pictures. We also heard from County licensing that there has been complaints in the past also besides this one. I'm going to suggest to you that you got by the skin of your teeth today, and next time it might not be so easy. Just kind of keep an eye out on some of the quality control and some of your subcontractor's performances. Anything else anybody's got to say on this case? I'm going to close the public hearing on this case. We have two more cases. It's 2:30. Do you feel fit for a five-minute breather? Let's adjourn for five minutes. It will be 2:35. Thereupon, (A brief recess was taken.) CHAIRMAN HAYES: I'm going to call back to order the Collier County Contractor's Licensing Board. We have case No. 2002-03, Tara Bajaj Crosby versus Anthony Lentini, d/b/a Anthony Lentini Tile Marble. MR. NONNENMACHER: Mr. Chairman, before proceedings start, I've had a request from Mr. Lentini that he'd like to address the Board. CHAIRMAN HAYES: Prior to hearing the case? MR. NONNENMACHER: Prior to hearing the case he would like to address you. CHAIRMAN HAYES: Anybody have any objection to that? MR. DUNN: Doesn't seem to be appropriate. Page 145 June 19, 2002 MR. NEALE: I mean he's going to have his opportunity as part of the public hearing. MR. LENTINI: That's fine. CHAIRMAN HAYES: And that's fine? MR. LENTINI: That's fine I'll have my own -- CHAIRMAN HAYES: Okay. All right. We're going to have the same procedure followed. We're going to have the summary of both cases, both sides first. We'll start with the County. Or, Mr. Nonnenmacher, you going to do that? MR. NONNENMACHER: Okay. I can do it if you like. MR. ZACHARY: Proceed. MR. NONNENMACHER: Mr. Chairman, on July 23rd, 2001, Mr. Crosby entered into a contract with Anthony Lentini to install tile and granite at 6461 Livingston Woods. On that date, a deposit of $1,000 was taken. And from that date to now, no work has been started and no deposit has been returned. The charge is 4.1.8, committing mismanagement or misconduct in the practice of contracting that causes financial harm. We are prepared to introduce evidence that this deposit was, in fact, given with no production for it and it was never returned causing $1,000 of financial harm to Ms. Crosby. That's the case summary. CHAIRMAN HAYES: Okay. Thank you, Mr. Nonnenmacher. Now, I'd like to hear a quick summary, if I will, from the Plaintiff. MR. ZACHARY: From the Respondent. CHAIRMAN HAYES: Respondent. MR. NEALE: He's needs to be sworn. CHAIRMAN HAYES: Yes. I'm going to have to have you sworn in, sir. Thereupon, ANTHONY LENTINI, the witness herein, having been first duly sworn, testified as follows: CHAIRMAN HAYES: And your name for the record? Page 146 June 19, 2002 MR. LENTINI: Anthony Lentini, L-E-N-T-I-N-I. CHAIRMAN HAYES: Okay. Mr. Lentini, all I'm asking out of you right now is a quick summary. I'm not asking for you to present evidence. MR. LENTINI: Okay. It goes before July 23rd, when the agreement was actually signed, and I do have a copy here for you people, for each of you. There was a proposal that went into place before the -- who do I hand these to so they can get around? CHAIRMAN HAYES: You can hold onto them at this point. I'm just asking you to summarize. MR. LENTINI: This goes before -- excuse me. This will go before July 23rd. There was a proposal that was given. It was in excess of an amount of dollars to her likings. She reselected another stone or tile. I drew up another agreement. We agreed on that. After the deposit was given to me, I went to the home, as requested by the agreement to start the project. There was no tile delivered there on her behalf. I went back a week later, still no tile. I haven't heard from her after the two weeks. I got a letter roughly three months later, a little less than three months later, requesting her money be given back to her. And I told her that we are in a contractual agreement that when you get tile delivered, because she was in the process of having it delivered, that I would come and tile the home for her. That was the last response -- correspondence that her and I have ever had was back in roughly October of 2001. Now, here we are almost 11 months later after the agreement has been agreed upon, and this is where we are right now. CHAIRMAN HAYES: Okay. It's just a summary at this point. MR. LENTINI: I understand that. CHAIRMAN HAYES: We'll start the case here shortly, so you can be seated now. Page 147 June 19, 2002 MR. LENTINI: Thank you. CHAIRMAN HAYES: Okay. continue with your case? MR. NONNENMACHER: Crosby to the stand, please. Mr. Nonnenmacher, you want to Yes. Staff will call Ms. Bajaj CHAIRMAN HAYES: I'm going to ask you to be sworn in. Thereupon, TARA BAJAJ CROSBY, the witness herein, having first been duly sworn, testified as follows: CHAIRMAN HAYES: And your name for the record? MS. CROSBY: Tara Bajaj. CHAIRMAN HAYES: Thank you. MS. CROSBY: I go by Crosby also. CHAIRMAN HAYES: Okay. Will you proceed, Mr. Nonnenmacher? MR. NONNENMACHER: Yes. Mr. Bajaj, did there come a time on July 23rd you entered into an agreement with Anthony Lentini Tile & Marble? MS. BAJAJ: Yes. MR. NONNENMACHER: And what was that agreement? MS. BAJAJ: The agreement was that Anthony was going to install tile at our house the following week in August. MR. NONNENMACHER: And on that date, was the deposit required? MS. BAJAJ: Yes. Anthony wanted $1,000 cash deposit, because he said he had to buy the cement, and he would have it delivered there that Monday or Tuesday. MR. NONNENMACHER: Okay. And I draw your attention to E-3, starting payment of $1,000 to be given at least before project is set to begin? MS. BAJAJ: Yes. Page 148 June 19, 2002 MR. NONNENMACHER: And it has two sets of initials with the abbreviation for paid and a date. Is that your initials to the right of paid? MS. BAJAJ: Yes, it is. MR. NONNENMACHER: And to the left, whose initials are they? MS. BAJAJ: That's Anthony. MR. NONNENMACHER: And this was signed or initialled on the 23rd-- MS. BAJAJ: Yeah. MR. NONNENMACHER: -- of July, 2001 .9 MS. BAJAJ: Yes. MR. NONNENMACHER: Okay. And can you tell the Board exactly what happened after that? MS. BAJAJ: Well, Anthony said that -- he came over on, I believe, it was a Saturday or Sunday, because he had his daughter with him. And he said that there were spots in my floor that needed to be leveled. And I said, "Okay, fine." The contractor-- I have a newly built home. It was completed in February. So I said, "Okay. Fine. The contractor will have his man come over and do it." Which he did do. Gulfstream Homes had their man come over and level the spots that Anthony had circled. So Porcelanosa, here in town, did, in fact, deliver the tile. There was no back order of the tile. There was no problem getting the tile. The tile sat for months in my front driveway. And as a matter of fact, there's still a pallet of it sitting there. If you want to drive by, it's sitting there. Anthony had a car accident up in Punta Gorda up by Fort Myers, past Fort Myers. And his wife informed me that she was just going up to the hospital and Anthony had had this accident and everything Page 149 June 19, 2002 and couldn't do the tile work. So, of course, I'm like, "Okay." Well, it got, you know, I kept making calls and, "How's he doing," this and that, "and when's he coming? Was it a serious accident? No." He supposedly had a stroke, had an accident. You can see my blood pressure's rising. And I got nervous, because this man has a $1,000 of our hard earned money. My fiance works in the hot sun for 12 bucks and hour, by the way. So a $1,00051,000 to me is a lot of money. So I did call up to Punta Gorda hospital. They call it regional something. They would not release any information about his condition, but they would say that he had been admitted and he was release the following day. So I felt better. I felt, well, okay, he was telling the truth. So I wasn't so, so nervous. Well, weeks went by, and now she's telling "No. The doctor says he can't work. He can't do this. He can't do that. He had a stroke. He has high blood pressure," whatever. So finally I called probably sometimes toward the end of August, and I've been informed again -- it's on a Friday, I believe. He's taking -- he's over in Miami and he's taking the Contractor's Exam, the General Contractor's Exam in Miami. I'm like, the guy can go over to Miami and take a contractor's test, but he can't complete my tile job or even start it or do anything or bring me the supplies so. Nothing. Okay. So now I'm really nervous realizing that, you know, this is taking a head south. So I said to his wife, Heidi, who I had met at a tile store, who introduced me Anthony, I said, "Heidi," I said, "fine. He's over in Miami. He's taking his test." I said, "I want him to start the job on Monday, you know. This has been over a month and it's time for him to start the job, you know." So finally I think I called him Sunday night and I said, "Are you going to start?" And he said, "No, I'm not going to do the job." And Page 150 June 19, 2002 I said, "Why? I'm just not doing it." I said, "Okay. Well, you know, then I'm going to have to find somebody else or something because I'm living on concrete floors throughout my entire house, concrete floors, and I have been living like this for five months." So I said, "Just remm my money." Well, finally he told me, "No, I'm not going to remm your money and that's it," you know. So I said, "Okay," you know. I'm realizing now I'm basically, excuse the word, screwed. He's got $1,000 cash. I don't even have any setting supplies. I have nothing. All I have is this contract. Suddenly the cell phone changes, so I can't even get him. I can't reach him on a phone, period. And if you notice that his insurance, everything is written for Marco Island, everything -- the contract -- everything is written for a PO Box. There's no address. I tried to search him out in Marco Island. There's no street address. There's no Anthony Lentini. There's nothing. Okay. My only thought was to go up to Punta Gorda and track him down via the public records for this accident that he had, because I knew the date when he had it. I said, "Okay. If I have to do that, I'll do it." Meanwhile, I happen to be going through the Building Department over in Collier County and I said, "Jee, I wonder if he ever-- and this is months later, months and months later, you know. It clicked on me, and I said "I wonder if he ever got his license?" So I happen to stop over to that little desk and the girl punched it up and sure enough, he did get a license. But to backtrack to that, I did get from his insurance agency this Tampa information, this Tampa business address. So I'm really feeling unsettled when I saw the Tampa stuff. There's no way to trace him here in town. The guy's got my $1,000. Page 151 June 19, 2002 So I talked to my attorney. I wound up did getting an address from the licensing bureau. And I said to my attorney, "What should I do?" She said -- "it's Prepaid Legal Services. They said, "Write him a letter requesting that he return your $1,000, saying that according to his conversation you will both, in other words, I won't hold him liable. He won't hold me liable. We will mutually stop this contract." He didn't want to come and start the job, and I don't want to wait 'til whenever he may come which who knows when he's going to come if hes going to come. So she thought mutually agree to stop the contract, holding each other -- no one to blame, and then just get your $1,000 back. I said, "Okay." So that was when I wrote him the letter requesting, "Please return my $1,000." Well, then he called me up and said -- this was later after she received the letter, "No, I'm not returning the $1,000." I said, "Well, why? Well, you didn't want me to do the job." I said, "Of course I wanted you to the do job." I lived all these months with concrete floor. I mean it's embarrassing. Your 12-year old, you know, tries to bring somebody home from school. It's embarrassing. I don't know if you've ever done it, but it's not fun. So basically, he told me he wasn't giving me back the money. Then I realized since he had licensing involved, Nonnenmacher told me, "You can't start anything legally if you plan on going before the Licensing Board." Now, coming before you, really only my intention was to get my $1,000 back. I thought if Anthony realized that I was not going to take this sitting down, that I was not just going to leave my $1,000. And being that he did spend time and money to get his license, I thought he would say to himself, "Well, look, I owe her the money, Page 152 June 19, 2002 honestly. I'll just pay her the money and she'll go away." And that was the truth. I told Bob -- MR. NONNENMACHER: Ms. Bajaj, did there come a time when Anthony Lentini did call you up and say exactly that to you, that he did owe you the money and he'd like to make arrangements to pay you? MS. BAJAJ: Yes. Yes. Anthony called me at work and he said, "I will pay you $100 a month." Now, this is already after so many months have gone by. So I said to him, "Anthony, you wanted $1,000 of our money, cash upfront. And that's the way we want our money back." Now, this was probably five months ago. Okay. I need you to understand that because even if he said to me today, you know, "I've been saving $100 each month to hand to you when the day came before the Licensing Board. Here's your $1,000." He would have it today. But I don't think he has it, or I wouldn't be standing here. He did say-- and he said, "I will come and finish the job," you know, because I had told him somebody had already been doing it with my fiance. We went to Lowe's. We bought a saw. We went to Home Depot. We bought the thin set. We got the tile. And piece by piece, room by room that house has gotten done, except for the laundry room and my kid's bedroom. But he say, "I'll come and finish it." But obviously a man that -- how should I say it? I don't want to try to use harsh words. But a man that's gotten over to me on a $1,000, really don't want back in my home. I'm not trying to be mean, but I really don't want him back in my home. At this point, I can live with the bedroom and the other room being slowly, slowly done. So he said, "Well, you know, if you don't want $100 a month then that's it." I'm like, everybody in this day and age has got a credit card. I mean, he's got a wife. I mean, they live on Marco Island. The daughter takes karate. You know, we've all got Page 153 June 19,2002 problems, but everybody's got a credit card for a thousand bucks. I'm not talking about $10,000 or $20,000. I'm talking about a thousand bucks, which is not a lot. But it's a lot if it's my fiancee's paycheck. You know what I'm saying? So -- MR. NONNENMACHER: Ms. Bajaj, when was the last time you had contact with Mr. Lentini? MS. BAJAJ: Well, the last time we were in court here. MR. NONNENMACHER: And was there anything said at that time? MS. BAJAJ: Well, going down in the elevator, I said to him, "You know, Anthony," I said, "I would have thought -- you know, he said he lost a lot of time from work. And I said, "That's true." I'm on salary. So I'm losing time, but my company's absorbing it, unfortunately. So I said, "And that's true." I said, "I would have thought by what you're going to waste," and then it got continued, "I would have thought you would have just paid me. Everybody would have walked away smiling and it would have been a done deal." Because I'm not here because I'm vindictive. I'm really not. I don't particularly want his license. I want my $1,000, to be very frank with you. MR. NONNENMACHER: What was his response in the elevator? MS. BAJAJ: His response was, "Well, I may just move to North Carolina where I don't even need this license." And I said, "Well, Anthony, you know, you do the right thing. And if that's what you think the right thing is, then that's what you'll do." I've already kissed my $1,000 good-bye. And I've survived all these months without it. But by the same token, you know, I'm not going to let somebody do to this me and lay down and be stupid about it. Do you know Page 154 June 19, 2002 what I'm saying? Shame on me. You made a full of me once. Shame on me, twice, no, I don't think it will happen. And I've learned a very important lesson, I'll never give anybody any money for anything unless it's at my doorstep. And to be honest, I'll never let another contractor tell me he's buying the materials. And if some guy's not waving a license at me, sorry, you know, because this has taught us a lot of lesson. And unfortunately, it's made us very sceptical people. It's a small lesson. It's not like some of these other cases you've heard. But still, just like I said, 12 bucks an hour, it's lot of money. I'm sorry. I didn't mean to run on like that, folks. MR. NONNENMACHER: I have no further questions. CHAIRMAN HAYES: Thank you. Hold on just a minute. Do we have any questions? MR. JOSLIN: Mr. Lentini was to do just the labor only on this house, the tile, if you were to supply the material, or was he going to get the material also? MS. BAJAJ: Well, he was going to supply the cement. I was going to supply the material. And I was going to do the grouting myself with my fiancee. MR. JOSLIN: So the contractor was -- MS. BAJAJ: That was a way to save money for us. MR. JOSLIN: You do certain portions of the contract? MS. BAJAJ: Correct. CHAIRMAN HAYES: Okay. MR. NEALE: The contract's on E-3 in the Exhibit. MR. DUNN: You said that you met Mr. Lentini's wife in a tile store? Page 155 June 19, 2002 MS. BAJAJ: Yes. She was working for a tile store out in that -- on Old 41. I think it's like Railroad. You know the little shops in there, the Railroad. MR. DUNN: And you were responsible to purchase the tile? MS. BAJAJ: No. Actually -- I wasn't there even really -- I was at a demonstration next door at a countertop company. And I just happen to wonder next door to her place. CHAIRMAN HAYES: Yeah. But I think his question was, you were going to buy your own tile? MS. BAJAJ: Yes. I was always going to buy my own tile. MR. CRAWFORD: Fairly common practice. You go to a showroom, you buy tile and they recommend a labor contractor. MR. DUNN: Were you going to buy the tile from the store? MS. BAJAJ: No, I was just-- MR. DUNN: Where did you eventually buy the tile from that was in your driveway? MS. BAJAJ: I bought the tile from Porcelanosa, that's on Airport and Pine Ridge. MR. DUNN: Okay. MS. BAJAJ: And they have a big store in Miami. And we had gone to Miami and looked at tile and so we just bought it from this little store and they shipped it over here and delivered it to my house. MR. LLOYD: And what date was that tile delivered? You said it was sitting in your driveway. Bless you. MS. BAJAJ: It was probably delivered the first week in August. MR. LLOYD: Okay. CHAIRMAN HAYES: Sometime in the beginning of August? MS. BAJAJ: Yeah. Somewhere in there. There was no delay with the tile. Page 156 June 19, 2002 CHAIRMAN HAYES: Any other questions? Are you finished with your case, Mr. Nonnenmacher? MR. NONNENMACHER: Yes, I'm done questioning Ms. Bajaj. And no more further witnesses for the People. CHAIRMAN HAYES: Okay. Mr -- thank you. You may sit down. Mr. Lentini, would you come up? I believe I've sworn you in. MR. LENTINI: Yes, sir. CHAIRMAN HAYES: You're good to go. Okay. Let's hear your side. MR. LENTINI: I already gave you my side in the summary. However, I would like to ask the Plaintiff questions, if I may, as to -- there are certain facts of this case, which is going to turn into a contractual issue, based on there is a signed contract here between us. As to were her needs -- were my needs met as well as hers -- CHAIRMAN HAYES: Okay. Hold on just a minute. I don't see a problem with that. Ms. Crosby, would you come up to the podium as well? You're going to be calling her as a witness? MR. LENTINI: Yes, sir. CHAIRMAN HAYES: Okay, continue. MR. LENTINI: The Board does have a copy of the agreement in front of them? MR. CRAWFORD: Yes. MR. LENTINI: I'm not denying. I did get the $1,000 on July 23rd. There was never a dispute on that. Just so the Board does know. I'd like to ask, Tara, you already stated that you did learn of me through my wife at a tile store? Okay. I have stated that the tile was not there when it was supposed to be, according to the agreement. You did state that I was into an accident, which there is no dispute there. I was in a car accident, and Page 157 June 19, 2002 I was released one day later. I'd like to ask you, when was the actual tile delivered to your home? MS. BAJAJ: Anthony, I don't have the actual date of that delivery. He told me that he had to mark all of the floors and chalk them and whatnot. But the tile was delivered on time. There was no delay with the tile. In other words, Porcelanosa is approximately two miles from my house. I mean, there's no delay with the tile. The tile was always there waiting for him. MR. LENTINI: So you ordered it right around July 23rd? It got there two weeks later? MS. BAJAJ: I think I probably ordered it before that. MR. LENTINI: Okay. So it got there mid August, perhaps? MS. BAJAJ: I would say no later than that. MR. LLOYD: That was my question, when was it delivered, and you said, "Beginning of August." MS. BAJAJ: Yeah, beginning of August. MR. LENTINI: Okay. Beginning of August. MS. BAJAJ: There was no delay with the tile. The only delay was that Anthony had the accident. MR. LENT1NI: But we still don't have actual -- MS. BAJAJ: Which I think was August 2nd, but I could be wrong. MR. LENTINI: Okay. We have a statement, but we don't have an actual piece of paper saying when this tile was delivered -- MS. BAJAJ: If you'd like, I. MR. LENTINI: -- so that Anthony can't say, "I was there August 2nd. There was no tile." I was there the following week and there was no tile. Then I did get into the accident August 13. I did have a slight seizure behind the wheel. I had to get -- brought to the hospital, and I got released the next day. When I did get out, she did Page 158 June 19, 2002 MS. MR. MS. MR. MS. probably. MR. go to any MS. MR. call. There was still no tile delivered. So now we have a fact upon where or when this tile was delivered on her behalf. The next question would be, did you get any other quotes from anybody? MS. BAJAJ: After you quoted? MR. LENTINI: Before me? BAJAJ: I did have some. LENTINI: Written? BAJAJ: I must have. LENTINI: Okay. Do you still have them? BAJAJ: Probably not. I think the builder quoted me, in. LENTINI: other tile companies? BAJAJ: No. LENTINI: Can I ask you why? Just the builder itself of the home? You didn't You're looking to put tile MS. BAJAJ: Why? MR. LENTINI: Why would you not go to any other tile companies to get estimates on installation on tile? MS. BAJAJ: I worked at Home Depot as a part-time job. And basically, the tile guys there told me what I was going to pay. MR. LENTINI: Okay. MS. BAJAJ: I mean, it's a square foot? MR. LENTINI: You don't have any other quotes in writing? You just got one from the builder and verbally? MS. BAJAJ: Anthony, we're talking almost a year ago. Not that I remember. MR. LENTINI: This is what I'm driving at. Who ended up doing the tile job? MS. BAJAJ: Ron did. Ron and a friend of his. Page 159 June 19, 2002 MR. LENTINI: Ron? MS. BAJAJ: Ron is my -- Ron Crosby, my fiancee. MR. LENTINI: Okay. Can I ask you -- you had stated for the record you worked at Home Depot? MS. BAJAJ: Right. MR. LENTINI: And you do know that they have a tile department in there? You have access to it, you know, you worked there. They have all kinds of plumbing, electrical, tiles, whatnot. MR. NONNENMACHER: Mr. Chairman, unless Mr. Lentini can tell us where this is going that there will be an end to it? CHAIRMAN HAYES: Thank you, Mr. Nonnenmacher. MR. NONNENMACHER: I'm going to object. CHAIRMAN HAYES: I was headed in that direction. What's that got to do with the -- MR. LENTINI: It has to do when I talked to Tara Crosby several months after she gave me a certified letter requesting the money back, she told me that she got Howey, or his name was Howard, which I used to work with him, who works in the tile department to do the job for much less. He'll do it on the side. MR. NEALE: If I could advise the Board, as part of the practice of this Board, it must exclude from it's deliberations irrelevant, immaterial or accumulative testimony. I have trouble advising the Board as to what the relevance of this testimony is when the specific charge is committing mismanagement or misconduct on the practice of contracting that causes financial harm to a customer. CHAIRMAN HAYES: You understand, Mr. Lentini, what he's trying to drive at? MR. LENTINI: I do, sir. What I'm trying to tell this Board is that I've made every opportunity to do this tile job up until today, which is still not done. So my contractual part and my managing of Page 160 June 19, 2002 her have been fulfilled. I've done everything that I could do to put this tile in for this woman. It's going to turn into a contractual issue. The tile wasn't there when it was supposed to be. I had had other tile jobs lined up to do, which they didn't get done because of the accident. But still after the accident, she can't produce when the tile was delivered. Now, I can't be penalized for something that can't be produced. I'm saying now to this Board, she did not produce the materials. And if her house is still underway 11 months later, that tells the Board that -- when was the tile actually delivered? How do we know if it wasn't -- she didn't buy it six months later. How do we know that her friend at Home Depot tile department didn't do the job for that much cheaper? CHAIRMAN HAYES: Even at that, when she was finished with you, when she said, "Okay, I don't have -- she could have even said, "I don't have the tile. I don't know when I'm going to get the tile. Can you give me my deposit back?" I don't understand what the problem would have been after that, Mr. Lentini. So you need to go on with your testimony. MR. LENTINI: Okay. If she said she doesn't know when she was going to get it, I had told her that when you do get the tile -- because you are going to tile the house. You're living on concrete floors for five months. You've complained about it. You're obviously going to get the tile shortly in the future. Call me. We'll keep our same arrangement, and I will come and complete the job for you. She didn't do that. I feel as though she got the person at Home Depot, which she did tell me she had somebody working out there part-time nights doing this for her at a cheaper rate. She wanted her $1,000 back. MR. CRAWFORD: Mr. Lentini, could I just ask you quickly? Page 161 June 19, 2002 MR. LENTINI: Sure. THE COURT: Why do you feel you should keep her $1,000 when you haven't performed any work? Did you purchase any setting materials with that $1,0007 MR. LENTINI: I did go there with all the materials ready to go to work. MR. CRAWFORD: Okay. MR. LENTINI: They were on my van, sir. MR. CRAWFORD: How much did the setting materials cost you? MR. LENTINI: Well, I'll have to see what we got for footage. I don't even remember what the footage was. I'll have to dig in my files, but it was cements and that was it. It was just inset. It couldn't have been more than $500. MR. CRAWFORD: Okay. MR. LENTINI: And the other $500 would have went towards the deposit on my labor. MR. CRAWFORD: So you claim that you spent the $500, didn't have the opportunity to install it? MR. LENTINI: Correct. MR. CRAWFORD: And the second $500 is your-- MR. LENTINI: It's not mine, no, sir. It's part of an agreement. MR. CRAWFORD: It's your company's $500 for what? MR. LENTINI: Towards the installation of this woman's tile. MR. CRAWFORD: Okay. MR. LENTINI: But, I mean, that's what it's for. It's towards the installation of this customer's tile. MR. CRAWFORD: It's your opinion that even though you didn't perform the $500 worth of labor that you should keep the $500 because of why? Page 162 June 19, 2002 MR. LENTINI: Because I never been given the proper opportunity -- MR. CRAWFORD: Okay. MR. LENTINI: -- to put the tile in. She cannot -- go ahead. Go ahead, sir. MR. DICKSON: Did you make an offer of $100 a month. MR. LENTINI: At the time -- I never made an offer of $100 a month. I have stuck to my guns up until recently when I talked to Mr. Nonnenmacher after the complaint where I says, "Well, she's got the tile. Who knows how far along now, and who knows who tiled this house. It would be in my best interest to stay away from the house because I've learned in the past, when you step into somebody else's shoes, you tend to get blamed for parts of the home that you didn't actually perform on in the end. So that was my feeling on it. MR. CRAWFORD: The $500 that you spent for the setting materials, were those universal materials that you could use on other projects? MR. LENTINI: They're universal materials that can be used on the installation of ceramic. However, there is shelf life on the powder material, dampness will occur. And there's a shelf life on those materials as well? MR. CRAWFORD: Okay. MR. NONNENMACHER: Mr. Lentini, have you used those materials at all? MR. LENTINI: I've used them in the past, sir, yes. MR. NONNENMACHER: No. Have you used the materials you purchased from Ms. Bajaj? MR. LENTINI: They did get used. They're the type of material that a distributor will not allow to be brought back due to -- they could have been, like I said, involved in some type of moisture, water Page 163 June 19, 2002 damage, etc. It couldn't be used through a second party if they were to be returned. MR. NONNENMACHER: Do you have a receipt for those materials? MR. LENTINI: I don't, sir, no. MR. NONNENMACHER: When you usually buy materials, do you have the job name put on the receipt? MR. LENTINI: I put my name and then I will go ahead and fill in the job name on it, because I am the purchaser. I will get a contractor's price on it. MR. NONNENMACHER: Okay. In this case, her name was Ms. Bajaj. Is that the name that was on your receipt? MR. LENTINI: It was put on there by me. MR. NONNENMACHER: And when did you receive those materials? MR. LENTINI: When did I receive them? MR. NONNENMACHER: Yes. MR. LENTINI: September 25th or 26th I purchased -- actually it was Friday. I'll have to look at my calendar. But they were purchased in a manner where they would not sit on my van three days, a thousand pounds of cement, which is a half a ton. So they were purchased in a way they could be put on my van when they needed to be taken off. MR. NONNENMACHER: Okay. Then you appeared at Ms. Bajaj's house? MR. LENTINI: Right. MR. NONNENMACHER: And there was no tile there at that time. Did you have your material? MR. LENTINI: Yes, sir. I did, sir. Page 164 June 19, 2002 MR. NONNENMACHER: Is there a reason why you didn't leave your material since at that time you were very friendly? "Look, you're going to be getting the tile very shortly." You just testified that you didn't want to carry these around for two or three days. MR. LENTINI: But when she said that she did not have the tile, I did have other files in my calendar. There were other jobs that could have been done. MR. NONNENMACHER: Okay. So you used that setting almost immediately? MR. LENTINI: No, not almost immediately, no. It was put into a warehouse. MR. NONNENMACHER: Well, let's get some kind of time frame here. You went over to Ms. Bajaj's house -- MR. LENTINI: We used it after August 13th, a couple weeks later. MR. NONNENMACHER: Okay. No tile was there? MR. LENTINI: No, sir. MR. NONNENMACHER: You didn't want the setting sitting in your vehicle for three days? MR. LENTINI: It wasn't a matter of the vehicle, no. I just didn't want to carry it around because of a weight factor. MR. NONNENMACHER: Okay. As a weight factor, you didn't want to carry it around three days? MR. LENTINI: No. MR. NONNENMACHER: It wouldn't have been in your interest it at that time to leave it at the house rather than transport it back to somewhere else? MR. LENTINI: She didn't want me to leave it at the house, because she wasn't sure of when the tile is being delivered. She never purchased the tile is what I'm trying to tell you people. There's Page 165 June 19, 2002 no supporting evidence to say -- I didn't -- when she entered into this agreement, I don't think she had any -- I don't know when she bought this tile. MR. CRAWFORD: She said it was delivered on August 2nd. MR. LENTINI: We have no statement. MR. CRAWFORD: When do you think it was delivered? MR. LENTINI: Well, if the job is still ongoing, sir, it's a two- week job. CHAIRMAN HAYES: Okay. My original request for you to be up here was to present your case. I think we've moved into a cross- examination mode. So are you basically finished with the presentation of your case? MR. NEALE: Well, if he-- MR. NONNENMACHER: I think I was on cross. MR. NEALE: Yeah, he's his own witness. So he can be cross- examined at this point. CHAIRMAN HAYES: Well, I know, but I would like -- pardon me? MR. NEALE: He can be cross-examined at this point. CHAIRMAN HAYES: I realize that. But I just wanted to formally move it along to that category. So, I mean, I don't want him to continue to get beaten up while he's trying to give his side of the case before we cross-examine. So if you're actually finished presenting your case, I will continue to allow the cross-examination is what I'm trying to say. MR. LENTINI: Well, I just have to ask her why she waited 1 1 months? The address in Tampa, I have no clue. You know, I did live in Tampa six years ago. I've been a resident of Collier County for six years. Page 166 June 19, 2002 MR. DICKSON: Okay. My question for you is, I mean, we're all intelligent people in this room, I hope. But I feel like we're knocking our head against a concrete wall. You didn't do any work. The material you bought, you used on another job. Let me ask you a point blank question, why will you not give the woman her $1,000 back? MR. LENTINI: In the past, I have had numerous contracts and not been paid for them. And for me not to be able to tile this home is actually taken away $3,000 to me and for losing scheduling of other projects that would have been anticipated tiling based on her agreement on a scheduling of time. That's why. It's a principle thing. It's a contract. It's binding. I've got -- I'm not going to close on it. However, there will be a closing statement at the end on why I feel this is the way I feel. CHAIRMAN HAYES: Okay. Well, that's fine, and that's a good time to have that. I'm waiting for him to do his testimony and then we can cross-examine and have our questions if we would wait at least until he finishes with his case. MR. NONNENMACHER: Does he have any further questions of Ms. Bajaj? MR. DICKSON: Yeah, any further questions of the witness? MR. LENTINI: The tile work you stated is still not complete; correct? MS. BAJAJ: No. There's two rooms. MR. LENTINI: You say for the record and under oath you didn't hire anybody else to do this job? MS. BAJAJ: I'll say for the record right now, and I resent that. I'm trying to be very nice about this, but I'll be very straightforward and put the cards on table with you folks. I resent anyone calling me a liar. Okay. I have a fiance that has spinal fusion in his back. Page 167 June 19, 2002 Okay. And I have a Lowe's bill that says I bought a tile saw. And I've got one sitting on the back of my lanai that's used. I've gone through two, three blades from Home Depot, the Parana blade. I bought more thin set and tried to buy broken thin set bags from Home Depot than I can remember. I've hauled those home in my brown van, which anyone at Home Depot can tell you yes. Did I talk to the tile guy he's talking about? Yes. Did I have him do the tile job? No. Did Howey tell me about how much it would cost? Yes. Did Howey tell me that he understood why I had a problem with Anthony? He said, "You're not going to get your money back, Tara. It's gone," to be very honest. CHAIRMAN HAYES: Okay. You just need to answer his question. MS. BAJAJ: But I do have the equipment at home. CHAIRMAN HAYES: Okay. Just answer his question. You can close in argument with us in a little bit. MS. BAJAJ: Oh, sorry. MR. NONNENMACHER: And, Mr. Chairman, that was previously answered where she said her fiancee or her boyfriend, a friend of his and herself, did the job piece by piece by piece. CHAIRMAN HAYES: Okay. Continue. MR. LENTINI: For the record, Tara had also stated she did work at Home Depot and didn't know of any tile department. Now, she does say she did confer with the man there, which leaves me to believe still, I know she hired him. MR. NEALE: IfI may? MR. MR. MR. MR. NONNENMACHER: No. LENTINI: She got-- CRAWFORD: I think that's irrelevant. NEALE: This goes to irrelevant material testimony. Page 168 June 19, 2002 CHAIRMAN HAYES: Irrelevant. MS. BAJAJ: I didn't. CHAIRMAN HAYES: Okay. You going to wrap it up? MR. LENTINI: Yes, sir. CHAIRMAN HAYES: You finished? MR. LENTINI: Yes, sir. CHAIRMAN HAYES: Now, formally any cross-examination, any questions we have for him? MR. NEALE: Mr. Bajaj, you can be seated, unless -- MR. DUNN: I have a couple of questions. You, ma'am, bought the tile from Home Depot? MS. BAJAJ: No. MR. DUNN: Lowe's? MS. BAJAJ: No. MR. DUNN: Oh, the tile store. MS. BAJAJ: Porcelanosa. MR. DUNN: Okay. And in building this new home, I imagine that you keep all of your receipts, in the like and see how it costs? MS. BAJAJ: Yeah, they're somewhere. Yes. Yes. Like I said, I have the receipt for the tile. I have the receipt for the saw. MR. DUNN: There seems to be -- MS. BAJAJ: I have probably umpteen bags of receipts for thin set. MR. DUNN: MS. BAJAJ: have all that. MR. DUNN: Okay. You seem -- I have received the granite from Miami. Yes, I And then there seems to be a two-week discrepancy between when you think the tile may or may -- MS. BAJAJ: Right. MR. DUNN: -- not have been delivered? Page 169 June 19, 2002 MS. BAJAJ: MR. DUNN: o f August ? MS. BAJAJ: Gentlemen -- It's either the beginning of August or the middle All I can tell you is that Porcelanosa told me I could have that tile like within a day. It's not a problem. It's there. They have got thousands and thousands of pallets over in Miami. MR. DUNN: Yeah. But I'm just trying to come to the point of when -- MS. MR. MS. MR. MS. BAJAJ: And Anthony -- DUNN: When exactly was the tile delivered? BAJAJ: I don't know exactly, because no one told me -- DUNN: But it's on the receipt, right? BAJAJ: Yes. It's on a receipt, but no one told me to bring the receipt. I didn't know that Anthony was going to say I didn't have the tile. I had the tile. It was never an issue about the tile. And you know something, I mean, I hate to call somebody else a liar, but I will. Anthony never came back to my house. He never had any setting supplies. In fact, the setting supplies were not going to be delivered by him. They were going to be delivered on a pallet and set down on my driveway on a forklift. They weren't coming in his van. MR. LENTINI: I'm going to object as to hearsay. MR. NONNENMACHER: How many square feet of tile -- how many square feet of tile -- how many square feet is your house? MS. BAJAJ: My house is about 3,086 square feet. MR. DUNN: MS. BAJAJ: MR. DUNN: MS. BAJAJ: MR. DUNN: Interior or under air? Yes. And do you have any carpet in the house? No, I don't. So it's all tile? Page 170 June 19,2002 MS. BAJAJ: Correct. Now, my fiancee and I had already done the bathrooms, the powder room, my son's bathroom. The contractor had done the main master bath, because that was code. It had to be done. MR. DUNN: And then Gulfstream Homes, the contractor that built your house, do you recall what their price was to tile the home? MS. BAJAJ: I think it was about 17,000 with the tile, I think. And like I say, I don't remember exactly. The reason I didn't have Gulfstream do it was because I wanted little black insets put in my foyer and they wanted 25 bucks a piece. I said, "No. You're crazy." MR. CRAWFORD: I think all that's irrelevant. The price was good for the labor. It was $1.25 a square foot, perhaps, which is a darn good price. MS. BAJAJ: I thought it was a good price, but I think all that's irrelevant. MR. LLOYD: Can I ask a related question -- CHAIRMAN HAYES: Okay. As long as we're doing it one as a time. MR. LLOYD: -- to his question? Believe me, this is relevant. Was the tile there when your child started school. MS. BAJAJ: Yeah. MR. LLOYD: Okay. So school starts the second week in August? MS. BAJAJ: Well, it was probably closer to the end, you know MR. LLOYD: But the tile was there when your child -- MS. BAJAJ: I'm almost positive of that, yes. MR. LLOYD: And school starts the third -- about the third, second or third -- CHAIRMAN HAYES: Give or take 60 days. Page 171 June 19, 2002 MR. LLOYD: I'm just saying, it was there then. It had to be there. You said it was in your driveway? MS. BAJAJ: It's still in my driveway, some of it. CHAIRMAN HAYES: Okay. Any further questions at this point? MS. BAJAJ: I mean -- CHAIRMAN HAYES: Okay. I'm going to ask that we continue on here with the closing argument. Mr. Nonnenmacher, you want to continue with a closing argument? MR. LLOYD: I would like a little chance for a cross? Very short. CHAIRMAN HAYES: Okay. I'm sorry. MR. NONNENMACHER: Mr. Lentini, when was your accident? MR. LENTINI: August 13th, 2001. MR. NONNENMACHER: Okay. And how long were you out of work? MR. LENTINI: Three or four days. I was hospitalized overnight, released the next day, maybe two days, three days tops. MR. NONNENMACHER: So the accident happened August 13th? MR. LENTINI: Yes, sir. MR. NONNENMACHER: And you were back to work approximately on the 17th? MR. LENTINI: In that general area. MR. crotches? MR. MR. Ms. Bajaj NONNENMACHER: Give or take. Were you on LENTINI: No, sir. I had no injuries. NONNENMACHER: And when was it that you came to 's house and found no tile, before the accident or after? Page 172 June 19, 2002 MR. LENTINI: Before. MR. NONNENMACHER: So it had to be the 12th or sooner? MR. LENTINI: It was before the 12th, sir, yes. MR. NONNENMACHER: Okay. I submit to the Board that all testimony seemed to be correct. Ms. Bajaj said she got it within the first or second week. He was in an accident on the 13th. I have no further questions. I'll go into closing. CHAIRMAN HAYES: Okay. Go ahead. MR. NONNENMACHER: Mr. Chairman, Members of the Board, after all evidence was presented, I feel there is no doubt in anyone's mind that $1,000 was given as a deposit. No work was done. No materials were delivered. Through direct testimony, there's evidence that the materials that were allegedly purchased to set the tile were used within two to three weeks. The only one that came out with financial harm was Ms. Bajaj. I think we've met all the requirements of the ordinance as far as mismanagement and misconduct causing financial harm. I did not hear any evidence from Mr. Lentini denying taking the $1,000, and I did not hear him state he did any work. I think we have proved our case to the degree where Mr. Neale wants our case proved to. And I ask that you find Mr. Lentini in violation. CHAIRMAN HAYES: Thank you, sir. Mr. Lentini, it's your MR. LENTINI: Number one, there's been no prior complaints against me, nor have there been any other complaints since I've been licensed, which is almost a year now. Something like this to happen as far as taking people's money and going, it's not a practice that I practice. My position on the contract, the contract is a contract. It's bound. If you're going to tell me wherein this industry that we work Page 173 June 19, 2002 in, time is money. Weeks are money. If you're scheduled to work starting August 1st for a period of a couple of weeks, three weeks, and you're not there, then I potentially lose another client. That has not been met by the Plaintiffs part according to her own testimony as to when the tile was delivered per my calendaring. Now, for me to be penalized on her not having the tile there when it was supposed to be per the agreement, which it clearly states in paragraph A, "Payment schedule is as follows. A starting payment of $1,000 is to be given at least one week before the project is set to begin." So for her to outlay $1,000 cash, which is a lot of money to everybody, and then turn around and tell these people that the tile wasn't there when it's supposed to be, then this serious misfortune on her part is wrong. Second, the breach of a contract, express or implied, that by its terms is to be performed in Florida comes within the contemplation of the Florida statute 48.1931 G, McDaniel versus The Department of Administration, Department of Retirement. Also upheld in the Florida Second District Court of Appeals in 1977, Florida Statute 342 S.2d, District of Appeals 1082: The mere act of signing a contract within Florida may constitute sufficient minimum contacts to sustain a persona jurisdiction in a subsequent lawsuit involving that same agreement. And it will go on in the First District Court of Appeals back in '84, DeMarco versus Caymen Overseas Reassurance Association Limited, Florida Statue 460 S.2d. I rest. A contract is a contract. CHAIRMAN HAYES: You move to close the public hearing? MR. DICKSON: I move to close the public hearing. MR. ZACHARY: I've got one question, Mr. Chairman for Mr. Nonnenmacher. Do we know what date this gentleman received his license? Page 174 June 19, 2002 MR. CRAWFORD: That was going to be my next question. MR. LENTINI' May -- I believe it was November 28th, 2001. MR. LLOYD: Did you take and pass a license in Miami after August 13th. MR. LENTINI: No, sir. Yes, I believe it was after August 13th. MR. MR. MR. MR. MR. before? MR. LENTINI: I'm sorry. I took it after my accident. MR. LLOYD: Okay. That's what I thought. MR. LENTINI: Yes. I'm sorry. MR. LLOYD: And you passed? MR. LENTINI: Yes, sir. MR. LLOYD: And what license was this? MR. LENTINI: Ceramic, tile and marble installation, a specialty license. MR. LLOYD: So prior to that, you didn't have a license? MR. LENTINI: No, sir. I was always an employee for someone. MR. LLOYD: So when you went into the contract with this lady, who were you working for? MR. LENTINI: I was a d/b/a, and she knew I did not have a license. It moved to the testimony of her consulting with the tile individual, Howey, to get the best price for the job. And it also moves to the issue that she did not call a tile company for any other LLOYD: After your accident? LENTINI: Actually I really -- I can't answer that properly. LLOYD: But let's use a reference point. LENTINI: August 13th-- LLOYD: Did you take the test after your accident or Page 175 June 19, 2002 estimates, because she knew that it would be a higher cost to hire a licensed contractor. MR. LLOYD: Okay. Thank you. CHAIRMAN HAYES: Anything else before I close the public hearing? MS. WHITE: Can he have a contract if he has no license? Does that make the contract null and void? MR. CRAWFORD: Urn-hum. MS. WHITE: Okay. CHAIRMAN HAYES: Okay. I'm going to close the public hearing. We're probably going to be asking questions at this point forward, but this is for our business and information up here. Discussion? MR. DICKSON: Mr. Chairman, well first of all it's self- incrimination. And unfortunately there's not a charge for acting without a license, because he did contract without a license, which is violation of Florida State Statute and Collier County Statute. And also it makes the contract null and void. Irregardless of that, the man has performed no labor, even though he wants to think that entitles him to some money. If that be the case, then I can take my license and go out and sell jobs and get deposits and never do them and I can make a nice living doing that. So there's no basis for it whatsoever. I believe the man owes her at least a $1,000. I think she's suffered more than that. That's the way I stand on it. CHAIRMAN HAYES: Any other discussion? MR. CRAWFORD: The issue for me is how does Mrs. Crosby get her $1,000 back? The jurisdiction of this Board is only to -- CHAIRMAN HAYES: We can work that out. MR. CRAWFORD: -- work penalties and fine and -- Page 176 June 19, 2002 CHAIRMAN HAYES: We can work that out. MR. NEALE: If I may, let me just go through it. I went through the charge earlier. CHAIRMAN HAYES: He can explain it again. MR. NEALE: I'll explain it. First as to the issue of the contract itself, because that probably is the crux of the matter here, and so I really picked up on that. Florida Statutes 49.128 states that contracts performed by unlicensed contractors are unenforceable, and I quote, "As a matter of public policy, contracts entered into on or after October 1st, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law in equity." And this gentleman has testified already that at the time he executed the contract, he was not a licensed contractor. Therefore, this contract is unenforceable by him, and it makes the contract moot. Further -- MS. WHITE: I have one other. CHAIRMAN HAYES: Let him finish. He's just telling us the story. MR. NEALE: Even if that were not the case, Mr. Lentini's arguing that this contract is something that's -- and this is dredging back into my far memories of contract law from many, many years ago, but he is arguing that this is what would be called a Contract of Adhesion. As a matter of public policy, Contract of Adhesions are not permitted. Contract of Adhesion is one whereby nobody has any way out of it. All contracts permit people to be out of it as long as they pay what the Quantum meruit or the value of the services are that are rendered. You can't hold someone to a contract just because you want them to be held to a contract. And you gentlemen and ladies that are Page 177 June 19, 2002 in business and one of the best quotes ever to come out of my contract's professor was the thing that you most need for a contract is two willing parties. The paper just says that this is what they are supposed to do. So therefore, this is a Contract of Adhesion probably. CHAIRMAN HAYES: Okay. Mr. Lentini, you want to take a seat. You don't need to be standing there if you don't want to. MR. NEALE: As to the charge, the Board has already heard the charges to the standards of proof and so forth. But I will go back over again. And what's interesting in this case is that Mr. Lentini was not licensed at the time he entered into the contract, so the contract is void. However, he has become licensed since then. So his continued efforts to enforce it, in my opinion, do come under the purview of this Board, because he is now a licensed contractor attempting to do work on, at this point, an oral contract that he believes exists. So should the Board find him in violation, which they do have jurisdiction over because of the fact that he is a now a licensed contractor, in determining those sanctions, as I said before, the Board considers the gravity of the violation, the impact, actions taken by him to correct it, previous violations and other evidence presented by the parties relevant to the sanctions. Sanctions that can be imposed and as opposed to shorthanding them, I will read them directly from the ordinance. THE COURT: Haven't you read them into the record once today? MR. NEALE: Yes, I read them into the record before, but I didn't give the Board the exact specific language, and I think it may be appropriate at this point -- CHAIRMAN HAYES: Okay. Page 178 June 19, 2002 MR. NEALE: -- to give you the specific language. There are ten different potential sanctions that the Board can impose should they find him in violation. The first one, this is 22-203A1, or out in the ordinance in 4.3.5 in the amended ordinance, Sanction 1, revocation of a Collier County or City Certificate of Competency; Sanction 2, suspension of a Collier County or City Certificate of Competency; Sanction 3, denial of the issuance or renewal of a Collier County or City Certificate of Competency; Sanction 4, a period of probation of reasonable length not to exceed two years during which the contractor's contracting activities shall be under the supervision of the Contractor's Licensing Board and/or participation in a duly accredited program of continuing education directly related to the contractor's contracting activities. Any period of probation or continuing education program ordered by the Contractor's Licensing Board may be revoked for cause by said Board at a hearing notice to consider said purpose. And then it provides the contents of that notice and method of service. Sanction 5, restitution; Sanction 6, a fine not to exceed $5,000 dollar; Sanction 7, a public reprimand; Sanction 8, reexamination requirement; Sanction 9, denial of the issuance of Collier County or City Building Permits or requiring the issuance of permits with specific conditions; and Sanction 10, reasonable and investigative and legal costs for the prosection of the violation. Those are the sanctions that are available to the Board. MR. DICKSON: Question, Mr. Neale? MR. NEALE: Or any combination thereof. You don't have to -- that list is not exclusive as to anyone in particular. It can by any one of those sanctions. MR. DICKSON: And a restitution order -- MR. LENTINI: Can I say something, please? Page 179 June 19, 2002 CHAIRMAN HAYES: No, sir. MR. DICKSON: No. Public hearing's closed. And a restitution order, should a restitution not take place, do we have to put probation on that in order to be able to call for a free hearing? MR. NEALE: What the Board can do, and this is -- excuse me - - done by the Board in the past, is the Board is to set out in its order of time in which the Respondent is permitted to pay the fines and/or restitution. If they're not paid in that period of time, then the license is automatically pulled or the person is brought back before the Board for a hearing on the removal of the license. Typically, the Board has set out that permit privileges would be suspended should it not be paid and the Respondent be requested -- be required to come back before the Board to explain why it was not done. So as to not harm people that may have contracted with the contractor in the future is that permit privileges would be suspended at the dropping of the day and the person would have to come back and show so that ongoing permits would be continued under a license. MR. DICKSON: Okay. CHAIRMAN HAYES: Any other? MR. CRAWFORD: My opinion is I think we're just in a restitution mode. I don't think a fine is in order. At least that's my opinion. I think Mr. Lentini's pretty passionate about his values and his beliefs. I think they're just a little bit misdirected or at least different from the opinions of this Board. So I guess I'd like to see some type of motion in the order of restitution of no less than $1,000 back to Ms. Crosby. CHAIRMAN HAYES: Any other discussion before I entertain a motion? Page 180 June 19, 2002 MR. DUNN: attorneys. MR. NEALE: MR. DUNN: I have a question. I think it's maybe for the The fact that Mr. Lentini wasn't a licensed contractor played a big role. If he was a licensed contractor and he had a legitimate contract, what would be the status then if someone decided to not move ahead with the contract that they signed? MR. NEALE: Then you would go on the basis as I mentioned before Quantum meruit. If he walks away form -- if a person walks away from the contract and he would be entitled for compensation for the actual cost that he had incurred because of the contract and since he had done no work at that point in time. So therefore, he could have come up and proved up that he had some actual costs attendant with assuming the contract, and he would have been entitled to a setoff for those actual costs to incur. MR. DUNN: Thank you. No further questions. MR. LLOYD: I have one question. Have any complaints been lodged against Mr. Lentini since August of 2001 ? MR. NONNENMACHER: No, sir. CHAIRMAN HAYES: Had he ever been cited for operating without a license prior to that? MR. NONNENMACHER: Yes, sir. CHAIRMAN HAYES: He has? MR. NONNENMACHER: Yes, sir? CHAIRMAN HAYES: If we don't have any further discussions, perhaps I'll entertain a motion. MS. WHITE: I'd like to make a motion. CHAIRMAN HAYES: Okay, make it. MS. WHITE: That he -- first we have to decide whether the count is-- Page 181 June 19,2002 CHAIRMAN HAYES: You have to make a motion whether or not you feel that he's -- MS. WHITE: Whether or not the count is either yes or no. CHAIRMAN HAYES: -- he's committed the count that we've charged him with. MR. NEALE: Right. And then provide findings of facts and conclusions of law as to why. CHAIRMAN HAYES: Right. MS. WHITE: I make a motion that we find that he is guilty of Count 1 in Section 4.1.8, committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. CHAIRMAN HAYES: Okay. I have a motion on the floor. I need a second. MR. DICKSON: Dickson, second. CHAIRMAN HAYES: I have a motion and a second. Any further discussion? Calling for the vote. All in favor? Aye. MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Very well, motion carries. Okay. What we need to do is cite the order and cite the finding of fact and conclusion of law and then sanctions. So we'll go on with the first section of it. You have somewhat prepared, possibly, to do that, Mr. Dickson? MR. DICKSON: I've done it a few times. Contractor's Licensing Board of Collier County, Florida, Board of Collier County Page 182 June 19,2002 Commissioners, Collier County, Florida, Contractor Licensing Board, Case Number 2002-03, License Number 22988, Petitioner Tara Bajaj Crosby versus Anthony Lentini d/b/a Anthony Lentini Tile & Marble, administrative compliant -- or order, excuse me. This came on or for public hearing before the Contractor's Licensing Board, hereafter in called the Board, on June 19th, 2002, for consideration of the administrative complaint filed against Anthony Lentini. Service of the compliant was made by certified mail, publication in accordance with Collier County Ordinance 90- 105 as amended. The Board having heard testimony under oath received evidence and heard arguments perspective to all appropriate matters, thereupon issues its findings of fact, conclusions of law and order of the Board as follows: Findings of fact that Anthony Lentini is the holder of record of Certificate of Competency Number 22988; number two, that the Board of County Commissioners of Collier County, Florida, is the complainant in this matter; number three, that the Board has jurisdiction of the person of the Respondent and that Anthony Lentini was present at the public hearings and was not represented by counsel; number four, all notices required by Collier County Ordinance Number 90-105 as amended have been properly issued; number five, the allegations of fact as set forth in the administrative complaint are approved, adopted and incorporated herein referred to - - referenced by as findings of fact. Conclusions of law, the conclusion of law alleged and set forth in the administrative complaint are approved and adopted and incorporated herein, specifically Section Number 4.1.8, committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Page 183 June 19, 2002 CHAIRMAN HAYES: Okay. Mr. Neale, we have cited a conclusion of law. I think we have the order of the Board to contend with at this point. MR. NEALE: Um-hum. CHAIRMAN HAYES: So we -- MR. NEALE: That can be in the form of a motion, what Mr. Dickson has made as to the order of the Board that this is a recommended order. MR. DICKSON: So moved, Dickson. MR. NEALE: And then there's a second to that. MR. JOSLIN: Joslin, second. CHAIRMAN HAYES: All in favor? Aye. MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Very well. Now we're going do consider sanctions. MR. NONNENMACHER: Mr. Chairman? CHAIRMAN HAYES: Yes, sir. MR. NONNENMACHER: If I may, staff will recommend a three-month probation in which time the restitution of $1,000 be made to Ms. Bajaj. At the end of three months, if the $1,000 has not been paid, staff will recommend that the license be suspended for one year and fine -- and restitution continued. MR. DICKSON: Is three months acceptable? Okay. MS. WHITE: I think he ought to pay her the $1,000 back plus interest from the time he took the money, which was July the 23rd. Page 184 June 19, 2002 MS. BAJAJ: Yeah, because really he's been using my money. Sorry. CHAIRMAN HAYES: Any other opinions on that at this point? MS. WHITE: And probation and what you just specified, the probation and that should be paid in three months. MR. CRAWFORD: The interest is relatively nominal. I'd just assume not go there. MR. DICKSON: Yeah. CHAIRMAN HAYES: I agree. I'm going to say that at this point in time that the only stick that we have to help this lady would be to impose a sanction of suspension until such time as it was settled. To simply revoke his license, if that were our choice at this time, would not insure any pay back, because we have no other recourse. MR. DICKSON: I have a different idea for the Board, and if I can throw it out. I like the idea of restitution of $1,000. And until that restitution is made, no new permits can be pulled. MR. NONNENMACHER: Mr. Dickson, he doesn't pull permits on tile. No permits required. MR. DICKSON: Changes that idea, doesn't it? MS. WHITE: Plus, Mr. Dickson, we have to make sure that he works so that he can pay her. That would -- MR. DICKSON: It would keep jobs going with someone who has to pull permits. That insures it gets paid real quick. CHAIRMAN HAYES: But my concern is that the ethics explained here of defending himself as to why he should keep the money makes me question his business ethnics period. And I'm a little concerned that he hasn't quite figured it out yet. I can't imagine the very first customer that you try to enter into business with even before you get a license you're going to take their money and not do Page 185 June 19,2002 any work for them. You know, cut him loose on the rest of Collier County. That concerns me. However, once again, I'm still stating that if he makes restitution and learns from his mistakes, then perhaps if he'll improve in his business ethics in the future. But-- MR. NEALE: It appears the Respondent does want to make a statement. It certainly is your-- CHAIRMAN HAYES: At this point in time I don't have a problem with that, Mr. Lentini. Yes sir. MR. LENTINI: Thank you. Thank you for hearing me. And I thank Kenneth for sticking up for my beliefs in contractual beliefs. And the reason why I have that belief is, if I could show you two companies that bring me over $21,000 on unpaid contractor's -- unpaid -- on unpaid contracts since I've been licensed. And this has happened over the last two months. One contract is $14,712. There's another contract with Metro Tile, $8,178. There's $4369 outstanding with bad checks that came back from the bank. And there's copies of them here. So my beliefs did lie that the working man is solely dependent upon his contract in order to get paid and live. Other than that, he has no recourse with the court system, the Board or anybody else for that matter, because it becomes all hearsay. And that's where I did stick to my guns on the other contract. It wasn't to try to beat the lady out of $1,000. I have no problem giving it back as I had discussed with Mr. Nonnenmacher. And when I was going to address the Board before the panel had ever come into play here, I was going to ask the Board that if the Board finds me wrong, that they take these two other contracts, since I've been licensed, into consideration for payment, because it is a considerable amount of money. Page 186 June 19, 2002 MR. DICKSON: Mr. Lentini, this is so off base. It doesn't make any -- you need -- I question the business law that you passed. Two wrongs here don't make a right. MR. LENTINI: I got an 80, sir. CHAIRMAN HAYES: Okay. Two wrongs don't make a right. And this has no relevance. You have lien rights. We're not going to get into argument here. MR. LENTINI: I really didn't finish, sir. MR. DICKSON: Well, if you're going down this trail, I don't think we need to hear it, because it has no relevance. MR. LENTINI: It had to do with the time factor on the payments back to her. That's where I was going with it. MR. DICKSON: You wronged her. MR. LENTINI: And here's the other thing. I really would like to say for the record, given the fact that this was done before my license was issued and I was not acting as licensed contractor, I ask that don't blemish my record as a licensed contractor for the fact that since licensing, since I've passed my test and became licensed, I'd like to keep my name clean in the industry. CHAIRMAN HAYES: Well, that's exactly why you should have wrote her a check for 1,000 bucks. MR. LENTINI: Sir, ifI had gotten paid $20,000 over the past two months, I would have had no problem. And I spoke with her. I spoke with Mr. Nonnenmacher about it. Everybody was in full aware of, I can't pay something if I don't have it, sir. CHAIRMAN HAYES: Have you ever heard of misappropriation of funds? MR. LENTINI: No, sir. Page 187 June 19, 2002 CHAIRMAN HAYES: Well, you should have if you passed the law exam. That means that you don't take money from one job and pay the bills on another job. MR. LENTINI: Okay. CHAIRMAN HAYES: Okay. It's one of those contractor practices. I totally agree with you. I can't tell you how many times I haven't been paid or haven't been paid in full because I have to go and invest my time and money and effort prior to ever sending a bill. I can't tell you how often it's happened to me. It's just one of those things. It's a fact of life. It's kind of like the filling station that let's you fill up with gas before they charge you. It's just one of those risks that we have to take and accept being in business. MR. LENTINI: Right. CHAIRMAN HAYES: It's a pain, and I agree with you. It happens way too often, Mr. Lentini, that we get had. But we can't take out on one and put the problems on the other one. MR. LENTINI: Before it ever came this far, my intention, as Mr. Nonnenmacher I'm sure will attest, was to be in compliance and give the woman her 1,000 bucks back. However, I did get dragged into this. I had a right to speak my peace. And it's solely lied on the contracts that weren't paid is the reason why she didn't get paid 11 months later. This all happened two months ago. CHAIRMAN HAYES: I understand, but you misappropriated her 1,000 bucks. MR. LENTINI: Thank you. But I ask it not be blemished on my tile license. It was before the time that I was actually licensed. CHAIRMAN HAYES: So you were illegal then, too? MR. LENTINI: I was -- CHAIRMAN HAYES: You were illegal when you entered into a contract. You had been cited prior to that for not operating with a Page 188 June 19, 2002 license, or for operating without a license. So we're not going to blemish it. I think you're doing a pretty good job by yourself. MR. LENTINI: So if someone calls in and asks about Anthony Lentini Tile & Marble, as far as I'm concerned, there's no complaints; is that correct? CHAIRMAN HAYES: No, sir. We're not finished. MR. LENTINI: Thank you. MR. DICKSON: Mr. Chairman, I move that we find for the Petitioner, Ms. Crosby, that she receive within 90 days a $1,000 restitution of the money that she gave in deposit and that Mr. Lentini be placed on probation for that 90-day period or else whatever period of time prior to 90 days that he pays that citation so that the probation would last as long as he owes the $1,000 restitution. Failure to pay within that 90-day period, his license would be automatically suspended. CHAIRMAN HAYES: Okay. You're making a motion? MR. CRAWFORD: Yes, he made a motion. MR. DICKSON: I made a motion. CHAIRMAN HAYES: And do we have a second? MR. DUNN: What is the outcome -- CHAIRMAN HAYES: Before we -- we can entertain discussion after the second. MR. DUNN: Oh. CHAIRMAN HAYES: But I need a second. MR. LLOYD: I'll second. Lloyd will second. CHAIRMAN HAYES: Okay. I have a motion and a second. Now, we can have the discussion, Mr. Dunn. MR. DUNN: What is the outcome if Mr. Lentini pays the bill tomorrow? MR. DICKSON: Then he's not on probation. Page 189 June 19, 2002 MR. LLOYD: Then he's not on probation. CHAIRMAN HAYES: Done deal. MR. LLOYD: She has the money. He goes to work. CHAIRMAN HAYES: Okay. The idea of blemish that Mr. Lentini eluded to earlier, your blemish will appear if you don't pay the money back. MR. LENTINI: Thank you. CHAIRMAN HAYES: And the longer you take to pay the money back-- MR. LENTINI: It's on there. CHAIRMAN HAYES: -- it's on there. MR. LENTINI: Thank you. CHAIRMAN HAYES: Anybody have any further discussion before I call for the vote? MR. CRAWFORD: Just a clarification, if it's not paid within 90 days, Mr. Dickson said his license will be suspended. I think would terminated be a better word? In other words, he would have to appear before this Board again if he didn't pay within the 90 days; correct? Under the assumption? MR. NEALE: As I said before is that the way the Board has handled these in the past is that there's an immediate suspension at the end of 90 days if it's not paid. MR. CRAWFORD: Immediate suspension. MR. NEALE: And that's administratively done. MR. CRAWFORD: But if he pays it on the 92nd day? MR. NEALE: If he pays it on the 92nd day, he's suspended as of the 90th day. So he is operating as an unlicensed contractor on any contract subsequent to that. MR. CRAWFORD: He would have to appeal to this Board after 90 days? Page 190 June 19, 2002 MR. NEALE: Right. Now, after 90 days, what-- with the way this Board has handled this in the past, and I'm not sure this is the appropriate way to do this at this time, but the way the Board has done it in the past is at the point of suspension, the Respondent is bought back before the Board to make his case as to why his license shouldn't have been suspended at 90 days. And he is -- since he doesn't have to pull permits, there's no issue there. But should he not pay within 90 days, he's, at this point, an unlicensed contractor. And until such time as he comes before the Board and gets his license reinstated, he is operating as an unlicensed contractor. MR. CRAWFORD: Okay. CHAIRMAN HAYES: Okay. And should he not pay it back on the 91 st, by the 91 st day, he is automatically suspended, not revoked? MR. NEALE: Um-hum. Right. Because it is appropriate in circumstances such as these for him to be able to come back before the Board and argue why it should not have been sustained. At that point, the Board and it's pursuant to the -- MR. DICKSON: We had this before where he didn't pay the restitution, and it gave us the opportunity to go out or our friends over here to go out and find that individual and bring him back before the Board rather than let him just work out there in eternity as an unlicensed contractor. CHAIRMAN HAYES: Right. Okay. MR. NEALE: And that's what it does is it-- CHAIRMAN HAYES: Okay. Good. MR. NEALE: -- gives the staff the opportunity at the 91st day to go out and find the jobs he's working on and pull him before the Board. Page 191 June 19, 2002 CHAIRMAN HAYES: Okay. Any further discussion before I call for the vote? All in favor? Aye. MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Very well. In continuing on with our finding of fact and conclusion of law, our order does have whether or not we will call -- contact the State Department of Regulation and report to them what we have done here. You're talking about your blemishes. A suspension will appear in the State levels. MR. NEALE: Regardless of what, because the Board does have to -- does this license have to be registered with the State? MR. NONNENMACHER: No. MR. NEALE: Then it's not reported to the State necessarily. CHAIRMAN HAYES: No, but it will be if we ask to have it done. MR. NEALE: Right. CHAIRMAN HAYES: So in other words, we're not bound -- MR. NEALE: Recommend-- CHAIRMAN HAYES: We're not bound to have to do that for today's actions. But if we do suspend it, we will make sure the State's aware of it. MR. LENTINI: I understand. CHAIRMAN HAYES: All right. MR. LENTINI: I'll assure the Board that it will be paid. Page 192 June 19, 2002 MR. DICKSON: Ordered the Board so moved based upon the foregoing findings of fact and conclusions of law and pursuant to the authority granted in Chapter 489 -- I thought it was 7. Florida Statutes in Collier County, Chapter 489, Florida Statutes in Collier County Ordinance Number 90-105 as amended by a vote of 7 in favor and 0 opposed, it is hereby ordered that the following disciplinary sanctions and related order are hereby imposed upon the holder of certificate, Contractor's Certificate, Competency Number 22988: One, restitution to be paid to the Petitioner in the amount of $1,000 within 90 days; number two, license to be suspended for that period of time to which the restitution is paid. Then the suspension will be pulled; number three, if restitution is not made within the 90- day period on the 91st day, license is automatically -- already suspended, but the Respondent-- MS. WHITE: No. MR. CRAWFORD: No. CHAIRMAN HAYES: Well, let me repeat that, number three, if restitution is not paid within 90 days, the Respondent, Anthony Lentini, will be brought back before the Board for further action. MR. NEALE: He's on probation for 90 days. MR. DICKSON: Probation for 90 -- suspension for 90 days. CHAIRMAN HAYES: No, probation. MR. DICKSON: Excuse me. Probation for 90 days. Correct that. If the restitution is not made within 90 days -- CHAIRMAN HAYES: Automatic suspension. MR. DICKSON: Automatic suspension. CHAIRMAN HAYES: Brought back before -- MR. DICKSON: And Mr. Lentini brought back before the Board. Excuse me for my error. Are we clear on that? Page 193 June 19, 2002 CHAIRMAN HAYES: I think-- no, we made the motion already. He just read it the way it was. MR. NEALE: Just clarifying. CHAIRMAN HAYES: He just read it into the record. MR. DICKSON: Read it into the record so that we are all -- CHAIRMAN HAYES: Okay. Any further actions on this case with the Board? MR. DICKSON: Someone's got to second. MR. CRAWFORD: No. CHAIRMAN HAYES: We're good to go. Okay. Mr. Lentini, Mrs. Crosby, we've done what we can do here. MS. CROSBY: Thank you. I appreciate it. CHAIRMAN HAYES: Okay. All right. We've got about an hour and then we're going to have to vacate. Let's take a five-minute break. Thereupon, (A brief recess was taken.) CHAIRMAN HAYES: Calling the Contractor's Licensing Board back to order. We have one final case for the record, Case 2002-4, Marla J. Ottenstein versus Mihai G. Popa, d/b/a Artistic Floor Design. Again, we're going to have to follow the procedure. I'm going to ask for opening statements, first from the County, then from the Respondent. Mr. Nonnenmacher, you going to start this? MR. NONNENMACHER: Yes, Mr. Chairman. On July 6th, 2001, Mrs. Mafia Ottenstein went into contract with European House Materials to purchase tile and Artistic Floor Design, Inc. to install since European was not a licensed installer. Prior to the job being completed, the grout was already cracking. Promises of repairs went unanswered. I've tried many times to contact the contractor with no success. Mr. Balzano and I finally found the contractor doing a job in the City of Naples. At that time a Page 194 June 19, 2002 good distance of time had gone by. We asked the contractor to go over and look at the tile. Numerous amounts of tiles -- I don't know what the end result was, but well over 50 to 60 tiles were extremely hollow and grout was cracking and tiles were popping up. His answer was to us that the tile was a perfect job and that he would not repair it. Due to a safety issue with the tiles cracking both on the stairway going up, the hallway coming in and the main floor of the house, I instructed Ms. Marla Ottenstein to contract with another contractor to have the job done. This was done because Mr. Popa refused to correct the faulty workmanship. CHAIRMAN HAYES: Is that your summary? MR. NONNENMACHER: Yes. CHAIRMAN HAYES: Mr. Popa, are you here? MR. POPA: Yes. CHAIRMAN HAYES: Come up to the podium, please, sir. I'm going to ask that you be sworn in. Thereupon, Mihai Popa, witness herein, having been first duly sworn, testified as follows: CHAIRMAN HAYES: Your name for the record. MR. POPA: Mihai Popa. CHAIRMAN HAYES: Mr. Popa, we're going to ask you to summarize your position. MR. POPA: I do the job in a model house and I know very well what I did. And never I said I don't go back to make the repairs. I said just I know what I doing, and I know my job was quality. And I'm not for that kind of meeting and I prefer to answer the question if possible. CHAIRMAN HAYES: Okay. That's all we need for now for a summary. We'll have you to present your case after we hear the Page 195 June 19, 2002 County's case in just a couple of minutes. proceed. MR. NONNENMACHER: Marla Ottenstein to the podium. in. Sit close. I guess we can Mr. Chairman, staff will call Ms. CHAIRMAN HAYES: I'm going to also ask you to be sworn MS. OTTENSTEIN: Yes, sir. Thereupon, MARLA OTTENSTEIN, witness herein, having been first duly sworn, testified as follows: CHAIRMAN HAYES: Your name for the record? MS. OTTENSTEIN: Marla Ottenstein. CHAIRMAN HAYES: All right, Ms. Ottenstein. Mr. Nonnenmacher, proceed. MR. NONNENMACHER: Yes. Ms. Ottenstein, did there come a time when you entered a contract with European House Materials? MS. OTTENSTEIN: Yes, sir. It was June of 2001, around June 20th. And the work was to start -- or I think it was 21 st the work began of 2001, June. MR. NONNENMACHER: Did you know at that time European House Materials was not a licensed contractor to install? MS. OTTENSTEIN: No, sir. MR. NONNENMACHER: Did they tell you that they were going to have a licensed contractor install the tile? MS. OTTENSTEIN: Yes, sir. MR. NONNENMACHER: And did they tell you who the contractor would be? MS. OTTENSTEIN: Yes, they did. MR. NONNENMACHER: And was it Artistic Floor Design? MS. OTTENSTEIN: Yes, it was. Page 196 June 19, 2002 MR. NONNENMACHER: And did you agree with that that he would be permitted to install the tile since he was a licensed contractor? MS. OTTENSTEIN: Yes, sir. MR. NONNENMACHER: So actually by going into contract with European House Materials and confirming that you were going to get a licensed contract to install the tile and you agreed to the specific license contractor, would you say that you felt you were in contract with Artistic Floor Design -- MS. OTTENSTEIN: Yes, sir. MR. NONNENMACHER: -- through the original contract for installation? MS. OTTENSTEIN: Yes. MR. NONNENMACHER: Okay. Are you a tile layer, Mrs. Ottenstein? MS. OTTENSTEIN: No. MR. NONNENMACHER: Your experience is not in tile at all? MS. OTTENSTEIN: I'm in sales and marketing, sir. MR. NONNENMACHER: Okay. Well, we're going to keep your testimony short, direct testimony short anyway. I don't know what cross will bring. But when the tile was installed, could you tell us what you started observing? MS. OTTENSTEIN: Within about two or three days, I noticed that there were areas that the tile -- the grout was sort of setting and cracking. And, you know, I could see actual cracks. And when I mopped, it was coming up. And I contacted European House Materials and I said, "There's grout that's cracking. And also when I walk, I'm hearing hollow, hollowness in high heal." And I said, "And I have a golf ball." I know it's the tiler's scariest thing to have. And I took my golf ball and started finding a lot of tiles that were loose. Page 197 June 19, 2002 And I got to a point, sir, that I wouldn't wear shoes in my house, because I didn't want to hear the noise. And I continued to call European House Material, and they kept promising to come out, promising to come out. MR. NONNENMACHER: Okay. Did the time come when you contacted Collier County Contractor Licensing? MS. OTTENSTEIN: Yes, sir. After about four and a half, five months -- let's see, yeah, about that -- where my telephones calls were not being returned or after six no-shows, because I was told that the people from European House Materials were going to be at my house at a certain time with Mr. Popa and I was told specifically we will be here at this time. We will be here between this time and this time. Finally after having over six times that they did not show, I called a friend of mine, who's a contractor, and said, "I don't know what to do next." And he told me about your office. MR. NONNENMACHER: And all the alleged contacts with the tile company and Mr. Popa are reflected on pages E-7 through E-9. MS. OTTENSTEIN: I'm a note taker. MR. CRAWFORD: If I can ask a quick question, please. Ms. Ottenstein, when you hired ParkShore Marble & Tile to come out and make the repairs, did they tell you why the tile was installed badly? MS. OTTENSTEIN: Yes. MR. CRAWFORD: And what was that reason? MS. OTTENSTEIN: Well, I had Mr. Forero come out, and there was one tile that was definitely loose. I mean, he stood on top of it and it moved. And he popped it out. I think he just -- he used not a screwdriver, but something. It popped right out. And, obviously, I don't lay tile. And it popped right out. Page 198 June 19, 2002 And he said-- we have the tile with us. He said, "This is because there wasn't -- the thin set had set before the tiles were laid and the thin set that was used was an inexpensive brand of thin set and the size of the troll that was used for the size of the tile, it's an 18-inch square tile, was not the proper size troll. MR. CRAWFORD: Were the tiles that popped out the ones that where the grout was applied with the -- setting compound was applied in circle motion, as opposed to the full coverage as the picture illustrates? MS. OTTENSTEIN: I'm sorry. I didn't understand you? MR. CRAWFORD: It looks like the tile was installed two different ways. One is a typical method where they cover the entire area with a raking motion. And then the other part of the tiles were covered with kind of a blotting motion. Was that the cause of the problem, Mr. Nonnenmacher? Is that the reason for these pictures? MS. OTTENSTEIN: Well, what we -- MR. NONNENMACHER: Yeah. We also have an expert witness I'll call next to explain everything. MR. CRAWFORD: Okay. MR. NONNENMACHER: Ms. Ottenstein, I'd like you to take a look at a tile and tell me if you recognize it? MS. OTTENSTEIN: Yes, that's the tile from me house. MR. NONNENMACHER: And has this tile been in your possession up until this afternoon when you gave it to me? MS. OTTENSTEIN: It's been in my laundry room since you came to my house. MR. NONNENMACHER: Okay. Could you just-- I'd like this tile entered into evidence. MS. OTTENSTEIN: That's the first one he popped out. Page 199 June 19, 2002 MR. CRAWFORD: So, Ms. Ottenstein, that was the tile that was installed, and it has been removed? That was not -- MS. OTTENSTEIN: That was the first tile that Mr. Forero popped out this night and the thin set -- MR. CRAWFORD: Got it. MR. NONNENMACHER: Could you describe what you see on the back where the thin set is supposed to be? MS. OTTENSTEIN: I see made in Italy, Stargres. I see a tile that looks like it is unused, except for one little comer where there's thin set. CHAIRMAN HAYES: Do we need to enter this into evidence? MR. NONNENMACHER: I already requested it. MR. NEALE: Yeah. There needs to be a motion made to enter this into evidence and then it needs to be marked. CHAIRMAN HAYES: I make a motion that we enter the tile piece into evidence as Exhibit A. MR. DUNN: Second, Dunn. CHAIRMAN HAYES: All in favor? Aye. MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Very well. MR. NONNENMACHER: Ms. Ottenstein, do you recognize this tile? MS. OTTENSTEIN: That's from my house, and I took the blue tape and I marked the tiles. And my house is really interesting. I had Page 200 June 19, 2002 a lot of blue everywhere. But I marked the ones that were really, really bad with blue tape, an ×. it. I path MR. CRAWFORD: MS. OTTENSTEIN: MR. CRAWFORD: MS. OTTENSTEIN: Bad in what way? Pardon? Bad in what way? It appeared to be hollow when I walked on with your MS. OTTENSTEIN: Just like the other one also. from being laid. wouldn't even walk on the tiles after I heard this noise. I cut a to go in my home. CHAIRMAN HAYES: This tile marked as we're looking at it the blue tape was a tile that was installed, set on the floor of home? These are all CHAIRMAN HAYES: These were ones that were laid? MS. OTTENSTEIN: Originally. CHAIRMAN HAYES: Originally laid. All right. I'm going to ask that we submit this piece of tile as Exhibit B. I make a motion. MR. NEALE: That should be Exhibit 3. Exhibit 1 was the composite. CHAIRMAN HAYES: Exhibit 1 was the composite. That's correct. I made a motion that we admit this piece of tile into evidence. MR. JOSLIN: Joslin, second. CHAIRMAN HAYES: I have a motion and a second. All in favor? Aye. MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. Page 201 June 19, 2002 MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Very well. MR. NONNENMACHER: Mr. Chairman, in the interest of saving time, we have bags of tile over there. I request that the two that I've submitted as evidence represent the remainder of the tile that we have over there. If the Board wishes to see all the tile, I would be glad to present it. CHAIRMAN HAYES: These were all installed tiles? MR. NONNENMACHER: All installed tiles. MR. CRAWFORD: I'm confused about the X. Are we under the assumption that it was poor installation, or the tile itself is bad? MS. OTTENSTEIN: No. No. What I did was, when I realized that I had a problem, I took the blue tape and I started going through my house. face with MR. CRAWFORD: of this tile? MS. OTTENSTEIN: MR. CRAWFORD: MS. OTTENSTEIN: the tile. Okay. So there's nothing wrong with the No, the tile is fine. Okay. Still on installation. Yes, sir. The tile was -- I'm very pleased MR. DUNN: I have a question, ma'am. MS. OTTENSTEIN: Yes, Mr. Dunn. MR. DUNN: Are any of the tiles cracked? Like when you step on the tile, did any of the tile crack? MS. OTTENSTEIN: No. But one tile that Mr. Balzano put his finger in the picture, he put his finger on the spot. And then when it was taken out -- he put his finger in the middle of the tile. And when they popped the tile out, it cracked in four areas. I have that tile with US. MR. DUNN: No, I don't need to see it? That's fine. Page 202 June 19,2002 MS. OTTENSTEIN: But it cracked -- that's the one that had a little piece of thin set in the center. CHAIRMAN HAYES: Okay. Let me ask a couple of quick questions, Mr. Nonnenmacher. Perhaps I just need to clear some stuff up. MR. NEALE: Mr. Hayes, if I can, just one quick procedural thing. I realized there needs to be a motion to move Composite Exhibit 1, which is the packet into evidence-- CHAIRMAN HAYES: Oops. MR. NEALE: -- as a clean up. CHAIRMAN HAYES: Okay. I need a motion to admit Composite Exhibit 1 into evidence. MR. CRAWFORD: Motion to include Composite Exhibit 1 in evidence, Crawford. MR. DICKSON: Second. CHAIRMAN HAYES: All in favor? Aye. MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Very well. Okay. Mr. Nonnenmacher, this is a completed contract, both material and labor that Ms. Ottenstein entered into with European House & Marble, Inc. is that correct? MR. NONNENMACHER: That's correct, who is a tile retailer. CHAIRMAN HAYES: Which does not have a license to install? MR. NONNENMACHER: That's correct. Page 203 June 19, 2002 CHAIRMAN HAYES: So who hired the licensed installer? MR. NONNENMACHER: It was a mutual agreement between European and Ms. Ottenstein. CHAIRMAN HAYES: And who was supposed to pay the licensed installer? MR. NONNENMACHER: Ms. Ottenstein. CHAIRMAN HAYES: Over and above the contract amount that we have for $11,3207 MR. NONNENMACHER: I'll let Mrs. Ottenstein answer that. MS. OTTENSTEIN: It's miss. Sorry. But I went into agreement with European House, and they -- I had to pay them a certain amount in different increments, and they paid Mr. Popa. But we met before the tile was going to be installed, and we all met. It was the two people from European House and Mr. Popa and myself where they introduced me and said that this is the person who will be doing the work. And we walked through my home, and we discussed the diagonal in some areas, straight lay in some areas. And we discussed it. CHAIRMAN HAYES: Okay. But you never were intending to pay Artistic Floor Design yourself?. MS. OTTENSTEIN: No. I was told that European House was going to pay him directly, sir. CHAIRMAN HAYES: Okay. Did you pay them in full yet? MS. OTTENSTEIN: Yes, I have copies of the checks. CHAIRMAN HAYES: You have paid them in full? They're the ones that contracted with Artistic Floor, not you? MS. OTTENSTEIN: Yes, sir. CHAIRMAN HAYES: Yes, ma'am. You contracted with European House Materials? MS. OTTENSTEIN: Yes, sir. Page 204 June 19, 2002 MR. CRAWFORD: And you've also payed ParkShore Marble & Tile, Inc. in full, $31007 MS. OTTENSTEIN: Yes, I have. MR. DICKSON: Mr. Neale, if I'm not mistaken, this case should not be before this Board. MR. NEALE: You're going exactly where Mr. Zachary and I were pondering. What I would recommend to the Board is you close this public hearing and continue it at a this point until such time as we can research the issue of contractual privity and whether Mr. Popa was actually a contractor for Ms. Ottenstein. It's an issue that troubles me, and I don't have the research at my fingertips to be able to say such. And, you know, it appears to be a case of an unlicensed contractor hiring a licensed contractor to perform a task. And I'm -- it's an issue that I definitely want to research as to the -- MR. DICKSON: Yeah. That's my whole complaint here is that our purpose is to protect people like you, but you don't have a contract with this licensed contractor. MR. NONNENMACHER: I believe the testimony was there was an oral contract, and she agreed on having the licensed contractor to do the installation. MR. DICKSON: But she paid no money to that licensed contractor. MR. NEALE: That's the issue that I -- and prior to going any further with this, I would suggest to this Board that you permit Mr. Zachary and I to do some research on it and determine how the case law comes down on the contractual responsibilities of Mr. Popa on some nonprivity contract relationship to Ms. Ottenstein. CHAIRMAN HAYES: I tend to agree. Page 205 June 19, 2002 MR. NEALE: I understand the protection aspects, but it's important that the Board be able to get to the contractor. And that's the issue here. CHAIRMAN HAYES: Well, you know, I totally agree. You've got some problems here with workmanship from what we've seen thus far. The problem, the sad problem is that you shouldn't be the one to have to adjudicate this thing, that European House Materials are the ones that were wrong. Unfortunately, they collected the money from you. They're not out any money and they're not pursuing it at this point. He was not in contract with you. He was in contract with European Material. And consequently, they're the ones that were technically wrong. At the very, very least, they need to be here for testimony, at the very, very least. MR. NEALE: And at this point, as I say, what I would suggest to the Board is that the testimony in evidence be preserved as it is now and that we could go forward and come to the point whereas we said before, the Board can come to the end of a hearing and then make the statement that because of legal issues you cannot render a decision at this point. I think the Board may be at that point right now, as the Board can declare because of legal issues, you can't reach a -- CHAIRMAN HAYES: It may be possible. But in a case, Mr. Neale, where the homeowner is wronged, I see the County acting as the Petitioner. And in this case, the homeowner's acting as the Petitioner. I don't see anything any different than that than if the County's acting in -- MR. NEALE: No, the County is the Petitioner. The homeowner is not the Petitioner. Page 206 June 19,2002 CHAIRMAN HAYES: Well, what I'm saying is that it's almost the same thing as we've heard prior times where cases where the homeowner, the person that was actually wronged, is sitting in the audience and never says a word. MR. NEALE: But it doesn't make any difference. The County is always the Petitioner. CHAIRMAN HAYES: Okay. And if the County is petitioning against or versus Artistic Floor Design, what matters who brings it up? MR. NEALE: Well, except for the fact that whether Mr. Popa was actually acting as a contractor under a valid contract. You know that's an issue that -- CHAIRMAN HAYES: Well, I don't know. I mean, in Count 1 of 4.1.1 it says, "Failing to properly correct faulty workmanship and promptly replace faulty materials installed contrary to the provisions of the construction contract." We know there was a construction contract. We have a copy of it. MR. NEALE: But was the contract valid? MR. DUNN: Right. CHAIRMAN HAYES: It's not valid to who? It's valid to the-- MR. CRAWFORD: Yeah. I-- MR. NEALE: As we stated in the earlier case, if the construction contract is written by an unlicensed contractor, it is a void contract. MR. LLOYD: And that's because European doesn't have a -- they're not licensed. MR. NEALE: And it's an issue that I don't want to render an opinion on at this point, because this is much more complex than I'm prepared to talk about or I think Mr. Zachary is prepared to talk to at this point. Page 207 June 19, 2002 MR. CRAWFORD: And I respect that, but we have the customer who was damaged and we have the license holder. We don't have any jurisdiction over European House. MS. OTTENSTEIN: May I ask one question? CHAIRMAN HAYES: I agree. MR. DICKSON: That's it. It may not belong before this Board. It may be a civil matter only, because in my company has case law on this issue, and Orlando in a case that we had, because she has no privity of contract with the third party being the license holder. So she can't bypass the contract that she had and go straight to the third party. MR. CRAWFORD: But the County is filing the complaint, so that shouldn't matter. CHAIRMAN HAYES: Yeah. So that shouldn't matter. MR. NEALE: But it-- MR. NONNENMACHER: So what you're telling, Mr. Dickson, is that you can go behind a tile company and let them collect your money for you and do anything you feel like doing to the public and say, "Well, I'm sorry. They don't have privity with me. I'm doing it through the tile company?" MR. DICKSON: In this particular case, I believe it's a civil court and not this Licensing Board. Because as you read your charge here, the charge says per construction contract. Your license holder does not have a contract with this homeowner. MR. JOSLIN: He's not legal on the job anyway. MR. NONNENMACHER: She has a verbal contract, although she did not pay him directly. We have a licensed contractor hiding behind an unlicensed contractor. Where are we serving the public at this point when we do have a licensed contractor. She agreed to have Page 208 June 19, 2002 him install the tile and now we're telling her we can't protect her because she didn't actually give him the money. MR. NEALE: It has nothing to do with protection. What it has to do is whether this Board is operating within Florida Statutes and the case law resulting therefrom. At this point I am not prepared to render an opinion to the Board that says that you are doing so in this case. It appears that there is no construction contract. I don't want to render that opinion at this point, because I'm not sure. It's an issue that needs -- MR. LLOYD: You're recommending that we then postpone it? MR. NEALE: I'm recommending that this matter be continued until we can do further research on the legal issue as to whether this matter appropriately belongs here. CHAIRMAN HAYES: Mr. Zachary, as the County Attorney's representative, basically you're representing the staff at this point, what's your opinion? MR. ZACHARY: I had suggested earlier to Mr Neale that perhaps we could finish the testimony of the people that we have here since we've already delayed it this long and then to defer your decision until we had an opportunity to do some research. That was my suggestion. CHAIRMAN HAYES: Is there any problem with continuing the public hearing then and then just closing the public hearing and deliberating at another time? MR. NEALE: That's certainly permitted. I mean, as I said earlier -- CHAIRMAN HAYES: Under old business? MR. NEALE: -- that if the Board's unable to issue a decision immediately following the hearing because of questions of law or Page 209 June 19,2002 other matters, the Board may withhold its decision until a subsequent meeting, a subsequent meeting. CHAIRMAN HAYES: Is there any problem with anybody on the Board that we just continue on with the hearing then? MR. NEALE: I just wanted to bring the issue up before the Board so it doesn't come as a surprise. CHAIRMAN HAYES: Gotcha. Okay. Would you continue with your case. MR. BALZANO: I just have one question for Mr. Neale, because now I'm really confused. If we get a complaint from a homeowner that buys a house from ABC Home Builders, but we don't go after ABC, we go after the license holder. That's what it says in 489? MR. NEALE: But that is -- MR. BALZANO: So if the homeowner doesn't know that he built the house, they think you did, so what you're saying, we can't go after him? MR. NEALE: As long as he is the qualifier for ABC Home Builders, we can go after the license holder. MR. BALZANO: Then we can go after them. MR. NEALE: But he's -- this is -- he's not a qualifier for them. MR. BALZANO: He's a subcontractor. MR. NEALE: He's a qualifier for whatever. MR. BALZANO: I understand. MS. OTTENSTEIN: May I can say something, not out of turn, Mr. Chairman? Mr. Popa has accepted payment. And therefore, from the little bit of business law I took in the university, that means that, you know, he was contracted. He's accepted payment. Correct me if I'm wrong. Page 210 June 19,2002 The other point I wanted to make is that the issue here is faulty work and, you know, that I had to be inconvenienced and I had my house tom up, 128 tiles, that I lived in tile dust, because the tiles were popping. So the issue is faulty workmanship by the person who is licensed by the person who installed the tile. I just want to make sure I'm -- CHAIRMAN HAYES: I don't think anybody has any concern with that. I think one of the glitches in the mix here may be the fact that if we wanted to paint the picture just the way it is, the Artistic Floor is a subcontractor working as a subcontractor for an unlicensed contractor. MS. OTTENSTEIN: Okay. MR. NEALE: The question really -- one question that clears up a lot, did Mr. Popa accept payment directly from you? MS. OTTENSTEIN: No, he didn't. MR. NEALE: Okay. CHAIRMAN HAYES: Okay. Mr. Nonnenmacher, let's continue on then. MR. NONNENMACHER: Okay. In that case, I have no further questions of Ms. Ottenstein, and I'd like to call Mr. Albert Forero. MS. OTTENSTEIN: Thank you. CHAIRMAN HAYES: Thank you. I'm going to ask you to be sworn in, sir. Thereupon, ALBERT FORERO, the witness herein, having been first duly sworn, testified as follows: CHAIRMAN HAYES: Your name for the record? MR. FORERO: Albert Forero. CHAIRMAN HAYES: Okay. Mr. Nonnenmacher. MR. NONNENMACHER: Okay. Mr. Forero, did it come a time when you went to Mrs. Ottenstein's house to inspect the tile? Page 211 June 19, 2002 MR. FORERO: Yes, sir. I was contacted by Ms. Ottenstein. And I went and she had marked about 40 pieces of tile. And I removed two of those pieces. And what I saw underneath it was the tile was floating in the thin set. It wasn't glued down completely. MR. NONNENMACHER: Is this -- to install tile in this manner with hardly any thin set on the tile, is this up to industry standards? MR. FORERO: Well, really what I think, I mean it's my own experience, is it should have been done with a half inch troll instead of the three eighths troll. It was not enough, you know, thin set in there to hold a piece that big. MR. CRAWFORD: And in your experience in the tile business is? MR. FORERO: I've been here in Naples for the last 21 years, and I've been doing tile for the last 18 years. MR. DICKSON: Is your name again Albi Forero? MR. FORERO: Albert Forero. MR. DICKSON: No relation to Albi? You look a little like him. MR. NEALE: He only wishes it was. MR. DICKSON: Okay. MR. NONNENMACHER: In your expert opinion, the quality of work that you observed at Ms. Ottenstein's house, was that up to industry standards or below? MR. FORERO: The whole floor, it looked very nice. And it was pretty flat and no corners are sticking up. There was grout, you know, coming off the loose tiles. But installation itself was pretty flat. MR. NONNENMACHER: Okay. MR. FORERO: But the reason why I guess the -- what I think is what happened is the thin set got spread too fast or the tile setter Page 212 June 19, 2002 might have taken too long to set the pieces and that's why it didn't have enough thin set on it. CHAIRMAN HAYES' You're saying the thin set set up? MR. FORERO: I think the it set up before the pieces were put in. MR. NONNENMACHER: And is that acceptable? MR. FORERO: Well, no. They'll come up sooner or later. MR. NONNENMACHER: Okay. I'd like you to take a look at Exhibit 2 and 3. What can you tell me about the reverse side, the actual floor side of the tile in your expert opinion as to how long this tile would stay down and as to the quality of work in the installation? MR. FORERO: Well, as you can see, there's not much thin set on it. And, you know, at least, you know, for at least six months, you know, that thing will stay down with no cracking on the grout or anything, but eventually it will pop up. MR. NONNENMACHER: Let me ask you a question, if a customer complained to you of hollow tiles and you went to service the customer and removed one tile and it looked like Exhibit 2, would you correct the workmanship? Would you say it was faulty, whether it be the thin set fault or the laborer fault? MR. FORERO: Yes, sir. MR. NONNENMACHER: I have no further questions of Mr. Forero. MR. ZACHARY: I've got a question, Mr. Chairman. Based on this gentleman's testimony and his years of experience, I'd like to move that this Board accept his testimony as that of an expert in the field? MR. DICKSON: Dickson, so moved. MR. JOSLIN: Joslin, second. CHAIRMAN HAYES: All in favor? Aye. Page 213 June 19, 2002 MR. DUNN: Aye. MR. CRAWFORD: Aye. MR. DICKSON: Aye. MR. JOSLIN: Aye. MS. WHITE: Aye. MR. LLOYD: Aye. CHAIRMAN HAYES: Opposed? Very well. MR. LLOYD: Mr. Forero, did you correct all problems in her home? MR. FORERO: At first it was shown to me about 40 pieces. But then when my employee went to do the work, she had marked about another 80 pieces. So all together 125 pieces were replaced. MR. LLOYD: And this home is now? MR. FORERO: As a matter of fact, I guaranteed the pieces. I use a different coat of thin set, and I guarantee my work for a year just to the pieces that I replaced. And it's in pretty good shape. MR. LLOYD: Thank you. MR. DICKSON: Am I correct that thin set has to be solid, no patties like shown in the pictures? MR. FORERO: Yes. Most of the floor was done except the cuts. I mean they use a different method where they only have some chunks of thin set and put the pieces on the -- MR. CRAWFORD: Is that an acceptable method? MR. FORERO: Only cut one set. No, sir. CHAIRMAN HAYES: Mr. Popa, you have an opportunity to cross-examine this witness. MR. NONNENMACHER: Just on more question before Mr. Popa. CHAIRMAN HAYES: Okay. Page 214 June 19,2002 MR. NONNENMACHER: Mr. Forero, what was the charge to repair the faulty workmanship at the job? MR. FORERO: I charge about $20 per piece. That's including the tiles and the sedimentary and the labor. MR. NONNENMACHER: Okay? MR. FORERO: Approximately about $3,000. MR. NONNENMACHER: Would it be correct if the total bill was $3,139.317 MR. FORERO: Yes, sir. MR. NONNENMACHER: Thank you. Sorry. CHAIRMAN HAYES: I'm not asking for your testimony, Mr. Popa. I'm asking if you want to cross-examine? Do you have any questions for this witness? If you don't, just stay seated. MR. POPA: I don't have a question, but I want to make a -- CHAIRMAN HAYES: Okay. Then no. You don't have a cross-examination. Anything else from the County at this point? Any other questions from the Board at this point? We still have continued time to do that. MR. CRAWFORD: I would like to ask Mr. Popa a question, too -- CHAIRMAN HAYES: MR. CRAWFORD: -- Okay. if this is the appropriate time? CHAIRMAN HAYES: No. Not yet. Okay. Thank you, sir. We appreciate that. All right. Mr. Popa, it's your turn to present your case. MR. POPA: First, the installation was on her house was on the floor. And anything here -- MR. NEALE: Speak up a little bit. MR. POPA: The installation was on the floor. And everywhere when installed the tiles on the floor sound like hollow. This is the Page 215 June 19, 2002 first thing. The second thing is never you can do with a golf ball check the tiles. Maybe marble it does, yes, but not tiles. And I got something here. Every time that I was contacted to correct the job, I was ready and I did it. The grout was on baseboard and I ask Louigi for cork, but he said, "I don't want to spend any money, any penny to finish this job, to fix the cracks around the board the baseboard." I asked Louigi to give some cork to fix the crack, but he didn't. He said -- MR. NEALE: We need to know who Louigi is? CHAIRMAN HAYES: Yes, who is Louigi? MR. POPA: He's one of European Marble people. Louigi, I don't exactly who it is. Another name Alberto. Alberto is President of European Marble. And when I asked Louigi to give me some cork, maybe three tubes of cork, and he said I don't want to spend any penny with that job. What can tell customer? He doesn't want to spend money with her. MR. NONNENMACHER: Am I hearing you correctly, sir, that you feel the job was faulty and asked for money to repair it and you were denied that? MR. POPA: No. I asked Louigi some cork to fix the cracks. MR. NONNENMACHER: Why would you want to fix the cracks if they weren't faulty? MR. POPA: With my -- no. No. With my money, to fix the crack with my money, because he has to supply everything. MR. NONNENMACHER: Well, that was my question, why would you ask someone for materials -- MR. POPA: I supply only the labor, and he supply everything, the materials, tiles, setting materials, grout, everything. MR. NONNENMACHER: Okay. Let me put it this way, if the floor was perfect, you wouldn't have asked him for anything, right? Page 216 June 19, 2002 MR. POPA: No, it was not hundred percent. MR. NONNENMACHER: It was not one hundred percent. It was fault -- it was faulty. MR. NEALE: But I think it needs to be clear on the record that the person he's speaking of is not the homeowner. The person he's speaking of is Louigi from the European House Materials. MR. NONNENMACHER: Yeah, I understand that. But I have a gentleman here asking for materials to correct something. MR. POPA: Yes. MR. NEALE: From the material's supplier. MR. NONNENMACHER: Yeah, from the material's supplier. MR. POPA: I asked-- MR. NONNENMACHER: Why would he ever ask if it wasn't faulty to begin with and since he didn't get what he wanted -- MR. CRAWFORD: Mr. Nonnenmacher? MR. NEALE: Mr. Nonnenmacher? MR. NONNENMACHER: Excuse me? MR. CRAWFORD: It's irrelevant. MR. NEALE: It's irrelevant. That's argument. That's not-- MR. LLOYD: Let's let him go on. MR. POPA: After -- I did not refuse to correct the problem, but I said I know what I did it and I know the job was good. I understand it's not maybe -- it's not hundred percent, was not very good because it's not -- the job is perfect anyway. We know very well that. Now, when I was with Mr. Balzano in model house, what I saw is was a big, big tiles in the middle of the living room with chipped tiles and sometimes was take it out with chip hammer, not with a screwdriver. And I asked Marla, "In that house, how many tiles did you take off?." She said, "100 tiles." I said, "And from 100 tiles, you Page 217 June 19,2002 show me just one tile that's popping up. And the rest of them you show me just the big tiles with chips?" And after that, Mr. Balzano said, "Okay. I saw what I have to saw, and I talk with Mr -- home model and you can go now and you can call later, because I have to talk with him what's going on here." And after I finished the job, after one week, two weeks, I don't know exactly, I was in a model house to fix everything. I send two guys before, but she doesn't -- she doesn't want -- she doesn't -- was happy. I coming because she required me in her house. I was over there. I fix all the job. And after that, me, Marla and Alberto, we was together in the house. She said -- after that she said, "Okay. Now it's okay." After that I tried to talk personal with the guy from European House, but he was already busy and late I heard something about he sold the business. And what else? You have the picture in Exhibit doesn't contain the part on floor with chipped tiles. And the picture in Exhibit doesn't contain any of those tiles. You said every tile was popping up with a screwdriver. Okay. Show me the tiles. One, two tiles from 128 or something like is not right. I'm sure this is not perfect job, because everybody do something wrong. MR. NONNENMACHER: What do you mean by "not a perfect job"? MR. POPA: I mean from 128 tiles, maybe ten percent was wrong, maybe. MR. NONNENMACHER: How many times did you install in the house? MR. POPA: 90 percent, personal. MR. NONNENMACHER: About how many? MR. POPA: 90 percent from the house. Page 218 June 19, 2002 MR. NEALE: Total house. MR. NONNENMACHER: Number of tiles though, how many? MR. POPA: It was, I believe, 2,000 square feet or more. MR. NONNENMACHER: So 2,000, 128 percent were bad? Is that a high average of being bad? MR. POPA: I cannot. MS. WHITE: You're comparing square feet to number of tiles and those tiles are bigger than 12 by 12. MR. NONNENMACHER: Well, I asked him how many tiles. He said over 2,000. MS. WHITE: He said 2,000 square feet. MR. NONNENMACHER: Oh, I'm sorry. MS. WHITE: Minus 128 tiles. That doesn't equal. MR. POPA: 128 tiles, about 200 square feet, something like that. MR. NONNENMACHER: Okay. I'd like to show you Exhibits 2 and 3. CHAIRMAN HAYES: Okay. At this point, we're still hearing his case, Mr. Nonnenmacher. You'll have an opportunity to cross- examine in a minute. MR. NEALE: Okay. He's putting on -- and does the Board-- CHAIRMAN HAYES: And we're about out of time. MR. NEALE: We're running way up on time. The subsequent hearing does have to set up here so. CHAIRMAN HAYES: Okay. I don't know-- MR. CRAWFORD: Can I ask just a couple of question real quick? CHAIRMAN HAYES: Sure. MR. CRAWFORD: Mr. Popa? Page 219 June 19, 2002 MR. POPA: Yes. MR. CRAWFORD: The dab method as opposed to rake method, is that -- have you used that successfully in the past? I'm looking at the pictures where you blotched the setting compound, the thin set onto the tile? MR. POPA: Yeah. That style of installation it's -- you use it in a place where it's hard to work with the tools. MR. CRAWFORD: Okay. You do that in the comers and the edges and things? MR. POPA: Exactly. Maybe my guy-- what I can tell you, maybe my guy uses that style like a marble installation uses in the tiles. He's not wrong. But anyway, it was vary if you use the tools right. MR. CRAWFORD: Is it acceptable to have the hollow sounding tile? MR. POPA: Any installation-- MR. CRAWFORD. Is going to have some hollow sound, right? MR. POPA: Any installation in cork sound like hollow. If you use like a golf ball, you're wrong. MR. CRAWFORD: So what do you have to say when another tile contractor comes in and tears out 150 tiles that they say they pop right up, I mean -- MR. POPA: I -- okay. The tiles was not popping off. Was taken off with a chipper hammer, you know. With not with a screwdrive or lead or with Proback of something like that. It was chipper hammer. MR. CRAWFORD: Why was there not grout attached to the back of the tile? The tile came up. Shouldn't some of the tile -- some of the adhesive been attached to the tile? MR. POPA: Yes. Page 220 June 19, 2002 CHAIRMAN HAYES: Mr. Crawford, these are questions we can ask after he's finished presenting his case. You're going to be quite some more time to continue with presenting your case, Mr. Popa? Am I understanding that? MR. POPA: I don't have anything in my to defend myself, because I don't have any proof or something like that, just what I told you right now. CHAIRMAN HAYES: So basically you are finished with the -- MR. POPA: Yes. CHAIRMAN HAYES: -- presentation of your case? MR. POPA: Yes. CHAIRMAN HAYES: You will have a chance later to rebuttal some of the testimony from-- the closing argument, I guess, from the County. But we're out of time here today. So I'm just trying to look at point where we can stop. MR. POPA: Yes. CHAIRMAN HAYES: Okay. Thank you, sir. So we did get to finish, stopped after response finished. Mr. Neale, I don't know what else to do except to go ahead and suspend the -- or continue the hearing until our next scheduled meeting. MR. NEALE: Um-hum. CHAIRMAN HAYES: I guess it's possible we had talked about it, moving to another room here in the area. We could entertain that possibility if we want to, or we can continue this until our next public hearing time. MR. DICKSON: I move that we suspend it, yes. MR. NEALE: Yeah. I think because we've got a notice issue as to moving to another room. I agree with Mr. Dickson, where he's headed, that this be suspended until our next -- CHAIRMAN HAYES: We have some issues to discuss. Page 221 June 19, 2002 MR. NEALE: And we've got legal issues to research. CHAIRMAN HAYES: To research prior to that anyway. Is there a big problem with that if we continue this thing, Mr. Nonnenmacher? Do you see a -- MR. NONNENMACHER: Are you going to require my witnesses to return? CHAIRMAN HAYES: I'm going to say that we are three fourths through our hearing. We have -- the Respondent has completed finishing his case. The County has not had a chance to -- or you were in the process of rebuttal and we stopped you. And then we're going to hear closing arguments from you and the respondent and then we will close that public hearing. So at this point I only want to close the public hearing. So I would suggest you take it from there. I mean, if we have questions from your expert witnesses in relationship to some of the issues we brought up earlier with the actual person that did the actual contracting, then it may be possible. But I couldn't tell you, Mr. Nonnenmacher. I really couldn't tell you. MR. DICKSON: Does anyone have any questions of Mr. Forero? I see no need for him to come back. CHAIRMAN HAYES: Okay. That may help. MR. FORERO: Thank you. MR. NONNENMACHER: Yeah, can we request that we be first on agenda naturally -- CHAIRMAN HAYES: Of course. MR. NONNENMACHER: -- since we've been here three times on this case? CHAIRMAN HAYES: All right. I'm going to just suspend hearing at this point on this case until our next regularly scheduled meeting. I apologize for the time restraints, but we have to give up Page 222 June 19, 2002 our premises. Okay. At this point I guess all we have left is reports, and we're out of time. So we'll hold those off. Next meeting is July 17th. MR. DUNN: Mr. Chairman? MR. DICKSON: I have something to say before we adjourn. It may be that Mr. Hayes, this will be his last meeting. We won't know that. His term has expired. I was supposed to expire. They did appoint me for another three years. However, the position that Mr. Hayes fills is a specialty position, and the City of Naples has requested that they be allowed to fill that position with a representative from the City of Naples. That being the case, Mr. Hayes will not be here with us next year. He has been our Chairman for three years. I would like to say, thank you. But if you're here next month, forget I said it. But rather than just walk out of the room and no one say anything, I would like to thank you for three years as Chairman of this Board. CHAIRMAN HAYES: Well, I appreciate it. It has been a pleasure. And if I am so requested by the Commission to continue, then I will do so. Thank you. We were talking earlier about the July ! 7th meeting possibly having nothing on the agenda. Do you know at this point, do we have anything outstanding that would appear on July 17th? MR. BALZANO: It would probably be just second entities and credit reports. CHAIRMAN HAYES: And do you know of any right now? MR. BALZANO: No. MR. DUNN: Mr. Chairman, I would like to add something to the next meeting. It goes back to Mr. Malinowski's petition earlier. I think that the Board should address the issue of landscaping contractors placing pads for houses. Page 223 June 19, 2002 MR. BALZANO: That isn't what he was doing. He had two licenses. One doesn't require a contractor's license. He's an excavator. It's an occupational. MR. DUNN: Then I'll rephrase the question. Is it true that a landscaping contractor can place a pad for a house? MR. BALZANO: No, he can't. MR. DUNN: No. Okay. Thank you. CHAIRMAN HAYES: Okay. Mr. Neale, I did the best I can. I don't know if we're going to be able to take care of it at next month's meeting or not. MR. NEALE: That's all right. help me pay the alimony. CHAIRMAN HAYES: Okay. meeting. I'll be here. Just you guys get to I'm going to adjourn the There being no further business, the meeting was adjourned by order of the Chair- Time: 5:00 P.M. CONTRACTORS' LICENSING BOARD Gary Hayes, Chairman STATE OF FLORIDA ) COUNTY OF COLLIER Page 224 June 19, 2002 I, Brenda Grimes, Court Reporter, do hereby certify that the foregoing proceedings were taken before me at the date and place as stated in the caption hereto on Page 1 hereof; that the foregoing computer-assisted transcription, is a true record of my Stenograph notes taken at said proceedings. Page 225