CLB Minutes 02/16/2005 R
February 16,2005
TRANSCRIPT OF THE MEETING OF
THE CONTRACTOR LICENSING BOARD
Naples, Florida
February 16,2005
LET IT BE REMEMBERED, that the Contractor Licensing Board in
and for the County of Collier, having conducted business herein, met
on this date at 9:00 a.m. in REGULAR SESSION in Building"F" of
the Government Complex, East Naples, Florida, with the following
members present:
CHAIRMAN: Les Dickson
David Beswick
Sid Blum
Michael Boyd
Lee Horn
Richard Joslin
William Lewis
ALSO PRESENT:
Patrick Neal, Attorney for the Board
Robert Zachary, Assistant County Attorney
Jim Hoopingarner, Licensing Compliance Officer
Michael Ossorio, Licensing Compliance Officer
Page 1
AGENDA
COLLIER COUNTY CONTRACTORS' LICENSING BOARD
DATE: FEBRUARY 16, 2005
TIME: 9:00 A.M.
W. HARMON TURNER BUILDING
(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:
III. APPROVAL OF AGENDA:
IV. APPROVAL OF MINUTES:
DATE: January 19, 2004
V. DISCUSSION:
VI. NEW BUSINESS:
Richard M. Denhz - Request to qualify a 2nd entity.
Matthew J. Bruet - Request to qualify a 2nd entity.
VII. OLD BUSINESS:
David Markovich - Request for Board to reconsider the order to suspend his license.
VIII PUBLIC HEARINGS:
Case #2004-04 - Debora Kucko vs Charles C. Willey
D/B/A B & W Asphalt Paving & Sealcoat.
IX. REPORTS:
X. NEXT MEETING DATE:
Wednesday, March 16, 2005
February 16, 2005
CHAIRMAN DICKSON: Good morning. I'd like to call the
order of the meeting, Collier County Contracting Licensing Board,
February 16, 2005. Any person who decides to appeal a decision, this
Board will need a record of the recording and, therefore, maybe to
insure that a verbatim record of proceedings is made, which includes
testimony and evidence upon which appeals would be based.
I'd like to start with roll call to my right.
MR. LEWIS: Good morning, William Lewis.
MR. BESWICK: David Beswick.
MR. BLUM: Sid Blum.
MR. DICKSON: Les Dickson.
MR. JOSLIN: Richard Joslin.
MR. HORN: Lee Horn.
MR. BOYD: Michael Boyd.
CHAIRMAN DICKSON: Mr. Bartoe, any additions or
deletions to the agenda?
MR. BARTOE: Good morning. For the record, I'm Tom
Bartoe, Collier County Licensing Compliance Officer. And staff has
no additions or deletions. There's a possibility we might have some
aluminum contractors here that might want to address the Board. I
don't know that.
CHAIRMAN DICKSON: Okay. I need a motion to approve
the agenda as written.
MR. BLUM: So moved, Blum.
MR. JOSLIN: Second Joslin.
CHAIRMAN DICKSON: All those in favor?
CHAIRMAN DICKSON: Aye.
MR. LEWIS: Aye.
MR. BESWICK: Aye.
MR. BLUM: Aye.
MR. JOSLIN: Aye.
MR. HORN: Aye.
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February 16,2005
MR. BOYD: Aye.
CHAIRMAN DICKSON: Also, if you've had a chance to look
over your minutes from last month's meeting, I need an agenda -- or a
motion to approve those.
MR. BESWICK: Motion to approve. Beswick.
MR. BLUM: Second. Blum.
CHAIRMAN DICKSON: All those in favor.
CHAIRMAN DICKSON: Aye.
MR. LEWIS: Aye.
MR. BESWICK: Aye.
MR. BLUM: Aye.
MR. JOSLIN: Aye.
MR. HORN: Aye.
MR. BOYD: Aye.
CHAIRMAN DICKSON: There's no discussion so we'll go
right into new business.
Richard Dehnz, are you present?
MR. DEHNZ: Yes, sir.
CHAIRMAN DICKSON: Would you come forward to this
podium? I need for you to spell -- state your name, spell your last
name for the court reporter. Right there at the podium, sir. And then
she'll also swear you in.
MR. DEHNZ: My name is Richard Dehnz, it's spelled
D-E-H-N-Z.
(Whereupon, Mr. Dehnze was sworn.)
CHAIRMAN DICKSON: You're here to request to qualify a
second entity?
MR. DEHNZ: Yes, sir.
CHAIRMAN DICKSON: I just need for you to tell us who you
qualify now, what you're wanting to qualify and why.
MR. DEHNZ: I qualify True Perfection. It's a company that
me and my brother operate. I'm also looking to qualify Pro Finish at
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February 16, 2005
this point. It's a separate partner. A separate business altogether.
CHAIRMAN DICKSON: No one has -- this is the one, Mr.
Bartoe, we didn't have the packet on?
MR. BARTOE: This is the one you just received.
CHAIRMAN DICKSON: Okay. And I'm the only one that's
got it. I'll pass this around.
MR. BARTOE: No, everyone has one, sir.
CHAIRMAN DICKSON: Oh, I'm sorry. Okay. Why are you
wanting to qualify the second entity?
MR. DEHNZ: Just like I said, I have a separate partner, and it's
just a separate business altogether. It will be to my best interest and
everything. You know, as far as my brother and separating that
company from this one.
CHAIRMAN DICKSON: Any complaints on him, Mr. Bartoe?
MR. BARTOE: No, sir.
CHAIRMAN DICKSON: All right.
CHAIRMAN DICKSON: Questions from the Board?
(No response.)
MR. OSSORIO: Mr. Dickson?
CHAIRMAN DICKSON: Yes.
MR. OSSORIO: Michael Ossorio, for the record. I just want to
let you know Richard Dehnz has complaints on him, but he has taken
care of them at this time.
CHAIRMAN DICKSON: Okay. Were there more than one,
Mike?
MR. OSSORIO: There were several.
CHAIRMAN DICKSON: Were there?
MR.OSSORIO: Yes.
CHAIRMAN DICKSON: What type of complaints?
MR.OSSORIO: Workmanship and not finishing the projects.
MR. JOSLIN: But they have been completed and finished?
MR.OSSORIO: Yes.
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February 16, 2005
CHAIRMAN DICKSON: Any response to those complaints?
MR. DEHNZ: Other than that, I suffered from -- I'm a disabled
-- a veteran. I've had an old injury so I suffered with medical issues
over the last year-and-a-half. I've also -- since then, I've improved my
health and taken care of any problems. It's kind of weighed me down,
so I'm back up and strong and I got, you know, have a couple good
strong bucks around me, so, I'm ready to do this.
CHAIRMAN DICKSON: Why don't you address your credit
report. You know, there's bad stuff on here.
MR. DEHNZ: I had a man that worked for me and rolled a new
Dodge truck. I paid about $44,000. That, in fact, has been paid. I
hired a lawyer, spent several thousands with him to handle the issue.
The body shop never fixed it properly. I eventually turned it back in
to Chrysler. That was just the starting of -- and then at that point I was
suffering from chronic back pain. And so, since then I have been able
to get back up on my feet and -- but all that has been taken care of.
I also have -- anything to do with business -- I have nothing
against any of the companies that I've had previously in Collier
County or anywhere. I have nothing against my credit. This is all
personal and I've just been through a lot. That's all.
CHAIRMAN DICKSON: All right.
MR. JOSLIN: You stated that you have several guys that are
going to help you in this procedure now to take some of the load off
you?
MR. DEHNZ: Yes, sir.
MR. JOSLIN: Or help you out?
MR. DEHNZ: That's the whole game plan. My brother is there
for me on his end, and then I have my partner JD, James Duff, that I
feel very confident in that's going to help me in the field and help me
just in general, so --
CHAIRMAN DICKSON: And you're doing this all under an
exempt status?
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February 16,2005
MR. DEHNZ: Just to start off with. Of course, once we start
contracting, putting men to work, we will have workman's comp in
order and all, and payroll just like previously to cover payment.
CHAIRMAN DICKSON: Anybody else?
(No response.)
CHAIRMAN DICKSON: There are no questions. I just need a
motion.
MR. BLUM: Motion to approve. Blum.
MR. JOSLIN: Second. Joslin.
CHAIRMAN DICKSON: Motion to approve. Any discussion?
(No response.)
CHAIRMAN DICKSON: All those in favor.
CHAIRMAN DICKSON: Aye.
MR. LEWIS: Aye.
MR. BESWICK: Aye.
MR. BLUM: Aye.
MR. JOSLIN: Aye.
MR. HORN: Aye.
MR. BOYD: Aye.
CHAIRMAN DICKSON: Opposed?
(No response.)
CHAIRMAN DICKSON: You got it.
MR. DEHNZ: Thank you, sir.
CHAIRMAN DICKSON: For you and anyone else that's in
here today, your records are all here so don't go to Maggie in
contractor licensing today. Go there tomorrow.
MR. DEHNZ: All right. Thank you.
CHAIRMAN DICKSON: Matthew Bruet. If you would, come
up. Same procedure, sir.
MR. DEHNZ: Is that it?
CHAIRMAN DICKSON: You're finished, yeah.
State your name and spell your last name, please.
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February 16, 2005
MR. BRUET: Yes, good morning. My name is Matthew Bruet.
That's B-R-U-E-T.
CHAIRMAN DICKSON: And what do you qualify now, what
you want to qualify, and why.
MR. BRUET: I have a swimming pool --
MR. ZACHARY: Mr. Dickson, he needs to be sworn.
CHAIRMAN DICKSON: Oh, that's right. Thank you. I need
to have you sworn in.
(Whereupon, Matthew Bruet was sworn.)
MR. BRUET: Yes. I have Sea Breeze Pool Service. It's a
maintenance repair business, and we'd like to qualify secondary
swimming pool maintenance and repair business.
CHAIRMAN DICKSON: What's your purpose in doing that?
MR. BRUET: It would be a friend of mine who's been working
with me and would like to start his business, and I would -- I would
help him and give him a hand.
CHAIRMAN DICKSON: Knowing full well that ifhe has any
problems, he'll take you down with him, right?
MR. BRUET: Yes, sir.
CHAIRMAN DICKSON: Okay.
MR. JOSLIN: How long has Sea Breeze been in business?
MR. BRUET: 1996 I started.
MR. JOSLIN: I've seen the trucks around?
MR. BRUET: Excuse me?
MR. JOSLIN: I know I've seen the trucks around.
MR. BRUET: Oh, okay.
MR. JOSLIN: I do pools, too.
CHAIRMAN DICKSON: He's our pool man.
MR. BRUET: Oh, okay.
CHAIRMAN DICKSON: I don't see it. Here it is. It's nice
when you look at credit reports like this. Nice credit report.
MR. BRUET: I'm sorry?
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February 16, 2005
CHAIRMAN DICKSON: Nice credit report.
MR. BRUET: Oh, thank you, sir.
MR. JOSLIN: In your packet I'm seeing an exemption form for
yourself. Do you have employees that work for you?
MR. BRUET: No, no. I had in the past, and then decided to
downsize and just be by myself.
MR. JOSLIN: So you're not going to have any employees at
all? Just yourself?
MR. BRUET: No, sir, just myself.
CHAIRMAN DICKSON: Anybody else have any questions?
Motion.
MR. JOSLIN: I'll make a motion to approve.
MR. BLUM: Second.
CHAIRMAN DICKSON: Motion has been made and second to
approve. All those in favor?
CHAIRMAN DICKSON: Aye.
MR. LEWIS: Aye.
MR. BESWICK: Aye.
MR. BLUM: Aye.
MR. JOSLIN: Aye.
MR. HORN: Aye.
MR. BOYD: Aye.
CHAIRMAN DICKSON: Opposed.
(No response.)
CHAIRMAN DICKSON: Good luck.
MR. BRUET: Thank you.
CHAIRMAN DICKSON: Old business. Someone? Old
business. Dave Markovich, are you here? If you would come up to
the podium, sir. I need for you to state your name, go ahead and spell
it for the reporter and I'll have you sworn in.
MR. MARKOVICH: David Markovich, M-A-R-K-O-V-I-C-H.
(Whereupon, David Markovich was sworn.)
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February 16,2005
CHAIRMAN DICKSON: The floor is yours, David. Tell us
what you want us to do.
MR. MARKOVICH: I would like to get my license reinstated.
It was suspended because of the William Pickins situation. And I
looked into redoing what needed to be done to get it approved, and it
was suggested that we have another contractor come in and redo
everything, I guess. So I gave the man $12,000 and was released from
his job.
CHAIRMAN DICKSON: If I remember correctly, you were
supposed to be here last month and we took action. Is that not correct,
Mr. Neal?
MR. NEAL: I believe so.
MR. MARKOVICH: What action was taken? That was a
misunderstanding between Mr. Ossorio and I. And as to whether I
was needing to be here or not be here --
CHAIRMAN DICKSON: Did we take action or postpone it?
MR.OSSORIO: We postponed it.
CHAIRMAN DICKSON: Okay.
MR. OSSORIO: The county has no objections of Mr.
Markovich getting his license back. We would like him to have his --
to vacate the findings of fact, and he can go on with his business. If
you want to put him on probation, that's fine. We have no objections.
Money has been returned. Mr. Bill-- Bill Pickins is satisfied with the
case, and we are monitoring with the Code Enforcement to get this
thing resolved with Pickins about getting the new contractor in there.
CHAIRMAN DICKSON: You were here last month, weren't
you?
MR. OSSORIO: I was here, yes.
CHAIRMAN DICKSON: Okay. Everybody familiar with the
case? Remember?
(All affirm.)
CHAIRMAN DICKSON: Okay. Questions? Comments? You
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February 16, 2005
guys are silent this morning.
MR. BESWICK: Chairman. Being the county has no
objection, I'm going to make a motion that we allow him to reinstate
his license. I'm not sure about probationary periods, but, I think the
man should be allowed to go back to work.
CHAIRMAN DICKSON: It cost him over -- wasn't it over
$12,000?
MR. MARKOVICH: Uh-huh. Yes, sir.
CHAIRMAN DICKSON: Anybody else? I got a motion. Do I
have a second?
MR. HORN: I'll second the motion.
MR. BLUM: Well, we need to establish probationary period.
CHAIRMAN DICKSON: I thought the motion didn't have a
probationary period.
MR. BLUM: He mentioned it. He just didn't know what the
time should be. Do you have a suggestion on probation, Mr. Ossorio?
MR. OSSORIO: 180 days.
MR. BLUM: How it would be monitored?
MR. BESWICK: What would the terms be?
MR. OSSORIO: Oh, if he violates any codes. Not following
necessary building permits, he's back in front of the Board for
revocation of his license.
MR. BESWICK: I'll restate the motion to add that we reinstate
his license with a 180 day probationary period.
MR. BLUM: Part of the original problem, as I recall correctly,
was that the job was done that shouldn't have really been done. It
wasn't permitted properly.
CHAIRMAN DICKSON: It wasn't permitted at all.
MR. OSSORIO: That's correct.
MR. BLUM: How -- you know, it's awful easy to do
unpermitted work and then catch it.
CHAIRMAN DICKSON: Mr. Bartoe.
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February 16, 2005
MR. BARTOE: If it's approved by the Board to reinstate him, I
would like to see an updated application, because I understand Mr.
Markovich told Mr. Ossorio not to send him certified mail because
that's not his address.
MR. MARKOVICH: That's not true.
MR. BARTOE: So, I'd like to see an updated application to
make sure we have the correct data on him.
MR. JOSLIN: I think that should go into the motion also.
MR. BESWICK: I will add that all his information be updated
on the current application.
CHAIRMAN DICKSON: Okay. So the motion is to reinstate
six-month probation and updated applications just to make sure that all
the information is correct. Is that what I hear?
MR. BESWICK: Yes.
MR. BLUM: Yes.
CHAIRMAN DICKSON: Do I hear a second?
MR. HORN: I'll second as amended.
CHAIRMAN DICKSON: Okay. Any discussion?
(No response.)
CHAIRMAN DICKSON: All those in favor?
CHAIRMAN DICKSON: Aye.
MR. LEWIS: Aye.
MR. BESWICK: Aye.
MR. JOSLIN: Aye.
MR. HORN: Aye.
MR. BOYD: Aye.
CHAIRMAN DICKSON: Opposed.
MR. BLUM: Nay.
CHAIRMAN DICKSON: So the vote is six to one. You're
back in, but you do need to get an updated application to Maggie and
everything and let them verify all the information is correct.
MR. MARKOVICH: Do I go down to the office and do this
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February 16,2005
then, and see Maggie?
CHAIRMAN DICKSON: Can he do that by phone?
MR. BARTOE: Not the application.
CHAIRMAN DICKSON: Okay. Just go down there and do that
while you're there. We're not after all the credentials that are
normally required. We're just wanting to verify all the information is
correct in the computer.
MR. MARKOVICH: I'll get the information.
CHAIRMAN DICKSON: If you have no problems after six
months, it will be like it didn't happen. Any problems during that
six-month period, you don't want to deal with.
MR. MARKOVICH: I won't have.
CHAIRMAN DICKSON: Okay. Good luck.
MR. MARKOVICH: You won't see me here again, sir.
CHAIRMAN DICKSON: Hopefully we won't.
MR. MARKOVICH: Thank you very much.
MR. BARTOE: Mr. Markovich, you can pick the application
up today, if you want to, but I would wait until tomorrow to come
back in with everything.
MR. MARKOVICH: Back into there or here?
MR. BARTOE: Into our office on Horseshoe Drive.
MR. MARKOVICH: Okay. I will go down and pick it up right
now.
MR. BARTOE: Thank you.
MR. MARKOVICH: Thank you, sir.
CHAIRMAN DICKSON: At this point, unless I'm mistaken,
Mr. Bartoe, we're ready for public hearing.
MR. BARTOE: I believe so.
CHAIRMAN DICKSON: All right. I see Mr. Wiley's
representation. Is the county ready?
MR. ZACHARY: Yes.
CHAIRMAN DICKSON: Okay. We're going to have case
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number 2004-04 Debra Kucko vs. Charley Wiley, D/B/A, B & W
Asphalt Paving & Seal Coat. What I'm going to do first is have Mr.
Neal read the objection that Mr. Wiley's counsel opposed at the last
meeting, and also hear from the county and Mr. Neal as far as your
response.
MR. NEAL: My interpretation of the objection was that Mr.
Bryant felt that the respondent's due process rights were in some way
compromised by the receipt by the Board of the packet of information
that is commonly distributed with these cases.
I hope I'm stating that right, David. I think I am. And so that
was -- that was his argument that the -- his argument that the Board
was in some way prejudiced, or the due process rights compromised
by the receipt of the county's case, along with the complaint.
After reviewing some of the case law that Mr. Bryant supplied,
and doing a bit more research and actually thinking about it, it's my
opinion that because of the relatively informal nature of these
hearings, which do not require the ultimate in due process.
In fact, in one of the cases that Mr. Bryant put forth, he says that
in -- and this is in Pow Versus Board of Public Instruction, that
administrative hearings conducted by State Boards and agencies are
administrative -- are of an informal character and not governed by
strict or technical rules of evidence or procedure. Sufficient that the
party involved is informed with reasonable certainty of the nature of
the charges against him, has a reasonable opportunity to defend
himself, and the proceedings are conducted in a fair and impartial
manner.
It's my interpretation that all of those tests are met in the way in
which this Board conducts its business. In that, the hearing are
certainly conducted in a fair and impartial manner, that worthy
complainant -- were the respondent not to receive the full packet--
and that packet be available to the Board -- that the respondent would
not have an opportunity to prepare a defense. So, therefore, the
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February 16, 2005
respondent has to receive the packet. It seems appropriate and logical
that the Board could receive the same packet at the same time.
The analogy that I was sort of using was the traffic ticket
analogy where, certainly, the judge sees the traffic ticket in front of
the -- in front of him or her, before making the judgment. And that's
the case, essentially the case made out.
So, it's my interpretation that the way in which this Board
conducts its business, does provide the fundamental basic due process
required by the statutes in the case law here in Florida.
CHAIRMAN DICKSON: Mr. Zachary, comments?
MR. ZACHARY: The only thing I really want to add is that it
may be debatable whether or not the Board might be prejudiced if
you're provided the packet ahead of time, but I don't think that that's a
certainty, and I certainly think the procedure we've been using meets
the fundamental requirements of due process.
Additionally, I think that the hearing -- another obj ection that
Mr. Bryant, I think he had was that, statutorily it talks about evidence
deduced at a hearing. And you do have live testimony. And that's -- I
think, that's the primary evidence that you all looked at. I know in the
past that you've talked about that. So this -- and I agree with Mr. Neal
that this is analogous to the charging document in the case. That
certainly the trier of fact -- if it was a judge, this is quasi judicial, we
would have an opportunity to look at prior to the cause. So, I agree
with Mr. Neal that -- in that I think that our procedures are not flawed
in conducting hearings in a fair and impartial manner.
And, additionally, I think that this debate, if it should be at an
appeal, we really don't need to debate it further now because we feel
the procedure is proper, and proper place to debate, whether or not our
procedures are proper, is on appeal to Circuit Court, not here.
MR. NEAL: One other point I'd like to bring up is that the
Board is well aware -- and I think Mr. Bryant is aware -- that prior to
the Board's consideration of any of these matters, the Board is always
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February 16, 2005
advised of the fact that there's a basic requirement that fundamental
fairness and due process be afforded to the -- to the respondent. The
Board is apprised of what evidence to consider, how that evidence is
to be considered, and how to perform the balancing test. So, I think
the Board has on the record before every consideration of every case,
a full explanation requirement that -- how it's to consider the evidence
presented.
CHAIRMAN DICKSON: Okay.
MR. BRYANT: If I might respond, Mr. Dickson.
CHAIRMAN DICKSON: Yes. State your first name, Mr.
Bryant.
MR. BRYANT: David Bryant. I represent Mr. Wiley. And I
appreciate the Board's indulgence in this matter, and I appreciate your
being concerned about whether or not you're doing this right. With--
and all due respect, my learned counsel here, I still disagree with that
position. I think the analogous that Mr. Neal made about the traffic
ticket is not persuasive in this matter, in that the judge doesn't get the
testimony of the law enforcement officer. He doesn't get a package of
information from the government telling him what the government's
case is prior to the hearing. And I still submit to the Board that when
you look at 162.07 Florida Statute that talks about how Code
Enforcement Board hearings are held, which is the same language.
And Mr. Neal was kind enough to share that with the Board that this
Board's ordinance provides, which tracks the same language.
It talks about an Enforcement Board shall proceed to hear the
cases on the agenda for that day. All testimony shall be under oath
and shall be recorded. The Enforcement Board shall take testimony
from the code inspector and alleged violator. Formal rules of evidence
shall not apply, but fundamental due process shall be observed and
shall govern the proceedings.
And I submit to you, gentlemen, that when this packet is
presented to you, it is the government's case. And that is a fatal flaw
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February 16,2005
in this process. And I think that both counsel are struggling with that
issue. I think especially Mr. Zachary, having been a former
prosecutor like I was -- an assistant state attorney -- I think he really
appreciates why we are here. I know his position. I know he wants to
try to save the procedure, but I submit to you, gentlemen, that the
procedure is flawed.
I also submit to you, somebody ought to make a very hard
decision to say, look, you bring your case in and put it on in front of
us before us at the hearing. Don't send us this information before the
hearing. I don't see why that is such a trying and such a hard decision
to make. And I still submit to you that doing it the way it's done --
and I don't care if it was done for 100 years -- it's wrong. It's no
different than the one man, one vote constitutional cases. The Brown
versus Board of Education cases. They were all based upon old, old
procedures. But that didn't make them right. It's like I've always said,
the Constitution is an old document, but it still is the Constitution.
And notwithstanding, with all due respect to my two learned
counsel here, I still think the proper procedure is to do it the right way,
not the expeditious way. And I still submit that it is a denial of
fundamental due process when you have the government's case before
you, before you ever come in here. And especially when you look at
the case that the government makes. The investigator specifically
testifies in his document. He says, I reviewed it and she's right. Now
that's testimony. That is not a background document. And I--
CHAIRMAN DICKSON: You're objection is noted.
MR. BRYANT: Thank you, sir. And I appreciate your
indulgence.
CHAIRMAN DICKSON: We will proceed on the case,
following the advice of the attorney for Collier County and the
attorney for this Board.
MR. BRYANT: Thank you, Mr. Dickson.
CHAIRMAN DICKSON: Okay. Just to go over the review
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February 16, 2005
again, procedures, just so everyone is aware. We will first hear an
opening remark from the county, followed by an opening remark from
Mr. Bryant, and then the county will present their case. You know,
Mr. Bryant, that we do hear hearsay in there?
MR. BRYANT: Yes, sir.
CHAIRMAN DICKSON: Of course you've been in here before.
You can cross-examine their witnesses and then we'll present your
case, closing remarks from both parties, then we'll close the hearing.
We may ask you questions at that time, but basically you'll hear our
deliberation and we'll come up with a decision on the case.
MR. BRYANT: Thank you, sir.
CHAIRMAN DICKSON: With that in mind, is the county
ready to proceed? Mr. Zachary?
MR. ZACHARY: We are ready to proceed.
CHAIRMAN DICKSON: Go ahead.
MR. JOSLIN: One quick second. I'd just like to make one little
remark. At this particular time, I'm looking at all the Board members,
and I see no one that has a packet in front of them at the moment,
which means that we do not have any evidence in front of us that
we've had previously.
CHAIRMAN DICKSON: You had them last month.
MR. BRYANT: I was going to make the same comment, Mr.
Joslin. It's already been provided to you. The matter has been done.
CHAIRMAN DICKSON: Right. I have mine. Did you all
bring -- did anybody bring them back?
MR. JOSLIN: No.
MR. BESWICK: Ouch.
CHAIRMAN DICKSON: I'm the only one. Okay.
MR. HOOPINGARNER: I have three extra packets.
CHAIRMAN DICKSON: Why don't you just -- I'll share here,
and if maybe one down there and you all can share.
MR. BRYANT: Mr. Dickson, if the packet is going to be
Page 1 7
February 16,2005
what's -- going to be the testimony, why don't we hear the testimony
as opposed to reviewing the packet?
CHAIRMAN DICKSON: Well, Mr. Bryant, I've already noted
your obj ection.
MR. BRYANT: Thank you, sir.
CHAIRMAN DICKSON: Let's move on and stop this. You've
made your objection.
MR. BRYANT: Thank you, sir.
CHAIRMAN DICKSON: Okay. Mr. Zachary.
MR. ZACHARY: Good morning. This is case number
2004-04. Petitioner is Debra Kucko versus Charles Wiley, qualifier
for B & W Asphalt and Paving & Seal Coat.
The complaint this morning is a violation of our county
ordinance in Section 4.1.10. Failure to promptly correct faulty
workmanship, or promptly replace faulty material installed contrary to
the provisions of the construction contract. Faulty workmanship
means work that is not commenced, not continued, or not completed
in accordance with all the specifications of the applicable written
agreement.
Faulty workmanship includes any material flaw in which the
quality and/or quantity of the unfinished or finished product, including
any item that does not function properly as part of the entire project.
If there is no written agreement provision regarding the specific faulty
workmanship issue, faulty workmanship exists if the work process,
product, or part thereof does not meet generally accepted standards in
the Collier -- in Collier County in relation to the entire project.
Faulty workmanship does not include matters of aesthetics,
unless the aesthetically related item clearly violates a written contract
specification directly related thereto.
Briefly, Ms. Kucko, the complainant in the case, hired B & W
Paving on Mayor April of 2003 to pave her driveway. The contract
price was $1,500, and she was not satisfied with the job as the surface
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February 16, 2005
was rough and course and had holes in spots. Where the driveway --
the asphalt driveway joined the right of way, there was -- it was not
smooth and the joining was not even. There was a hole there as well.
She made complaints to B & Wand they came out and sprayed
a sealer coat over the top of the driveway that was paved by B & W
Paving. And she is still not satisfied with the work, as she asserts that
it was faulty workmanship, and, so, that's why we're here.
CHAIRMAN DICKSON: Okay. Mr. Bryant, opening
remarks?
MR. BRYANT: Thank you, Mr. Dickson. I'll be very brief.
It's our position that Mr. Wiley did a most satisfactory job. That he
advised Ms. -- based upon what the scope of the work was, he advised
Ms. Kucko that she needed base coat applied to sufficiently stabilize
the asphaltic material. She said she couldn't afford it. None was
applied. Mr. Wiley did exactly the way Ms. Kucko asked him to do.
That she did not complain about this matter until over a year later, or
right at a year later, and after the time for Mr. Wiley's warranty to
either have expired, or almost expire.
And all due respect to Mr. Zachary, the work was done in
February of'03 not April or May. It just says in the applicat -- in the
package that Ms. Kucko advised last April or May that she contracted.
The work was actually done in February, which I submit to you the
evidence will show. But notwithstanding that, it's our position that if
Ms. Kucko had, one, allowed Mr. Wiley to do the work, as his training
and experience tells him to do, to provide a base material prior to
putting down the asphaltic material, and if Ms. Kucko had allowed the
asphaltic material to properly cure, we wouldn't be having this hearing
today.
And it's our position that Mr. Wiley did the work based upon
the required workmanlike standards within the community in Collier
County. Thank you, Mr. Dickson.
CHAIRMAN DICKSON: All right. Mr. Zachary, present your
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February 16, 2005
case, if you would, please, sir.
MR. ZACHARY: The county would call Debra Kucko, who is
standing at the microphone.
CHAIRMAN DICKSON: State your name and spell your last
name, and then I need to have you sworn in.
MS. KUCKO: My name is Debbie Kucko. K-U-C-K-O is the
last name.
(Speaker was duly sworn.)
MR. ZACHARY: Mrs. Kucko?
MS. KUCKO: Kucko.
MR. ZACHARY: Kucko. Thank you. Can you tell the Board
when you, or how, that you were contacted, or how that you
contracted with B & W Paving? What were the circumstances?
MS. KUCKO: In April of 2003 I was out in my yard watering
my yard and a B & W Asphalt Paving truck pulled into my driveway
and a guy named Fred got out, and Fred asked me if I had been
considering getting my driveway paved and I said --
MR. ZACHARY: Okay. Before that was there
MS. KUCKO: Sorry.
MR. ZACHARY: What was your driveway?
MS. KUCKO: It was gravel.
MR. ZACHARY: It was a gravel driveway?
MS. KUCKO: Yes.
MR. ZACHARY: And after B & W pulled up and a fellow got
out named Fred, and then what happened?
MS. KUCKO: And I said not really. I said, because I really
can't afford it. And he said, well, I've got a job right around the comer
here. He said, I've got a hot load of asphalt. I can't get into the guy's
backyard, and I'll give you a real good deal on it. And I said, well,
what do you consider a real good deal? He said, I'll give it to you for
$2,000 and I'll do your whole driveway, I'll make you a turn around
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February 16, 2005
MR. BRYANT: I'm going to have to object to all this hearsay.
And I appreciate the Board's rules --
CHAIRMAN DICKSON: Mr. Bryant, we accept hearsay in
this and you know that.
MR. BRYANT: I know that, Mr. Dickson, but if you -- and I'm
sure if you ask your counsel, they'll tell you this -- you can have
hearsay in administrative hearing matters, but hearsay cannot be the
sole basis of the Board's decision, or any other administrative
decision.
CHAIRMAN DICKSON: And it is not the sole basis, and your
obj ection is noted --
MR. BRYANT: Thank you, sir.
CHAIRMAN DICKSON: -- and proceed.
MR. ZACHARY: About how long is your driveway?
MS. KUCKO: It's about 80 feet long. And to be honest with
you, I've never seen this guy, never talked to this guy. And I -- and
until he told me who he was, I had no idea who he was. I've always
dealt with the gentleman named Fred.
And, so, he told me he had this asphalt, and I said, you know, I
can't afford $2,000. And he said, well, what can you afford? And I
said, well, I don't know. I need to talk to my fiance. He said, well,
you talk to him, and I'll go get the asphalt and bring it over. So when
he came back to my house about 10 minutes later, I went inside and I
talked to my fiance and I came back out and he said, we were able to
get in the backyard -- and it was Jim Kraft, who is my neighbor right
around the comer. He said, we were able to get into his backyard and
pour the asphalt, but since you are being such a good person, I'll give
it to you -- I'll pour your driveway for the price I quoted you. He said,
and I'll give you the same deal, but I can't do it today. And I said,
well, I still can't afford it at $1,500 -- or $2,000. He goes, well I'll give
it to you for $1,500. Can you afford that? And so Steve was standing
there and he says, yeah, you know, that sounds like a good deal.
Page 21
February 16, 2005
So, he said he would call me -- Fred said he would call me. He
took my cell number. He said, I'll call you and we'll set it up for next
week. So, he called me and told me the day they were going to pour it
-- I think it was on a Wednesday -- and he said, you need to be here
because when we're finished, you need to write me a check for $1,500,
which I did. I have a contract here. It says nothing in here about
applying any type of asphaltic application requiring a base coat layer.
That was never mentioned to me, and it's not mentioned in the
contract.
MR. ZACHARY: And the only person that you ever talked to
was someone named Fred?
MS. KUCKO: Was Fred. And also, when I would call in -- I
called in in June -- because I started noticing that there were holes
appearing from underneath where the gravel was.
MR. ZACHARY: Well, let's go back.
MR. BRYANT: What year are we talking about, Mr. Dickson?
MR. ZACHARY: When was -- what date did someone come
out?
MS. KUCKO: The driveway was paved in May of2003.
MR. ZACHARY: May 2003?
MS. KUCKO: Was maybe late April, early May.
MR. ZACHARY: And no one ever said, in your discussions
prior to having the driveway poured, or the asphalt laid by the
company, that you needed to do anything other than they would just
put the asphalt down?
MS. KUCKO: No, nothing.
MR. ZACHARY: Okay. And who came out and put the
asphalt down?
MS. KUCKO: Fred was the one I wrote the check to.
MR. ZACHARY: Okay. And who did you write the check to?
MS. KUCKO: I wrote it to B & W Asphalt.
MR. ZACHARY: Okay. So what happened after the asphalt
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February 16,2005
was poured in April or May of 2003?
MS. KUCKO: Well, maybe a few months later I started
noticing that it had like holes where you could see the gravel that was
underneath, and there was a lot of cracks in it. And it's just steadily
gotten worse since then. I kept calling B & W. And evidently, they
go away in the summer. And so, the first initial call I made in June,
they sent some guy out to look at it.
MR. ZACHARY: And this is June of2003?
MS. KUCKO: Uh-huh.
MR. JOSLIN: Was that the same gentleman, Fred?
MS. KUCKO: No, it was not Fred. And to be honest with you,
I don't remember. I was on my way out of town and I got a call on my
cell phone. He was from another company and he said that when
they're out of town in the summer, that he takes care of their jobs for
them. And he told me at that time, he said, yeah, I think we just got a
load of bad asphalt and it'll have to be resurfaced. He said, but they
don't come back into town until October, because they're out of town
in the summer. And he said in October, I'll have someone contact you.
And I said, fine. So October came and went, nobody contacted me.
So I start calling B & W.
MR. ZACHARY: This is October 2003?
MS. KUCKO: Yes, sir.
MR. JOSLIN: Did you by chance get that gentleman's name
that you talked to?
MS. KUCKO: No, I didn't. I didn't. It was on my cell phone
for a long time, the message, and then I changed companies and so I
-- I apologize. I don't have it. I mean, if he works for him during the
summer, maybe he would know who it was.
So I started making phone calls to B & W, and I made several
phone calls because they were not being returned. And I finally said
to the receptionist, I said, you know, you need to have him return a
call, otherwise I'm going to have to go to Contractors Licensing.
Page 23
February 16,2005
So Fred called me back and they said that they would -- he
came out and looked at it, and he said he would put a seal coat on it.
And I said, well what is that going to do to it? And he said, well, it's
going to seal it so it doesn't tear up anymore. I said, well, that's fine,
but that's not going to take care of the damage that's already there.
And he said no, no, no, don't worry about it. We'll put a seal coat on it
and it'll be fine. So I said, okay, we'll try that. So they came out and
they sealed it. And, to me, it was just like putting shoe polish on it. It
made it nice and shiny for a while, but that was it.
MR. ZACHARY: Okay. Approximately, what date did they
come out and put on a seal coat?
MS. KUCKO: I'm guessing here. Probably maybe November,
December of2003.
MR. ZACHARY: Then what happened after they put on a seal
coat?
MS. KUCKO: Well, like I said, it made it look nice and shiny
for a few weeks, but other than that, it didn't take care of the problem.
It's steadily had gotten worse. I've taken recent pictures of it. If you
would like to see those. It's cracking. It's chipping off on the edges.
It's just totally falling apart.
MR. JOSLIN: Now the pictures, how many pictures do you
have?
MS. KUCKO: I just have some pictures -- just some things I
took recently before we met last month to show the current condition
of it. I don't know if I can present them.
MR. ZACHARY: Okay. Are those pictures -- you took them
yourself?
MS. KUCKO: Yes, I did.
MR. ZACHARY: Okay. And they accurately represent the
condition of your driveway as it exists as of a month ago when you
took the pictures.
MS. KUCKO: Yes, sir.
Page 24
February 16,2005
MR. ZACHARY: I'm going to ask that those be marked as
evidence and entered into evidence.
CHAIRMAN DICKSON: Let me ask the Board a question here.
How do you all feel about accepting those pictures when we have
color photographs in the packet, and the fact that it's two years later
Bill, I'm really anxious to hear your response.
MR. LEWIS: The photographs don't allow us to see what may
exactly be in place out there. And being that it is such a long time, I
don't think the photographs can really come into play for this type of
job. And there's some questions that need to be asked in regards to the
type of material that was the under laminate. What type of vehicles
use it, and what type of preparatory things were done before, and
maintenance after. And I -- frankly, I would suggest that the Board
doesn't accept the pictures.
CHAIRMAN DICKSON: That's exactly what I was thinking.
Mr. Neal, are we right in not accepting something for exhibit?
MR. NEAL: I mean, it can be moved in. It's the board's
prerogative to accept or rej ect evidence based upon the quality of the
evidence frankly.
CHAIRMAN DICKSON: And two years after the fact, I have
the same problem. I don't know what that driveway has been used for,
and I have a ton of questions already.
MR. JOSLIN: You have to put it in the form of a motion.
CHAIRMAN DICKSON: Does it need to be a motion?
MR. ZACHARY: No. I'll just withdraw it.
CHAIRMAN DICKSON: We may change our mind, but for
right now, no.
MR. ZACHARY: So after the sealed coat and after you called
him again, you said that the problem continued to get worse.
MS. KUCKO: Yes.
MR. ZACHARY: Okay. How did it get worse?
MS. KUCKO: Well, it continues to just like disintegrate. It's
Page 25
February 16, 2005
like the asphalt is --
MR. BRYANT: I'm going to have to object to Ms. Kucko
offering expert testimony as to the quality of asphaltic material, and
what is happening to the asphalt. Unless she can be qualified as an
expert in the application and endurance and the sophistication of
asphalting material and its application, then I think that her testimony
should be limited to what she observes, not what she thinks, what her
opinion is, what she believes, unless she's an expert.
CHAIRMAN DICKSON: Mr. Bryant, this is a policy that we--
this is only quasi judicial. I remind you of that. Let this proceed.
MR. BRYANT: Mr. Dickson, I appreciate that, and I
understand that. But by the same token, it's incumbent upon me, if I
think something is not proper, I have to object. And I don't want you
to take this personal, but I'm not doing this to delay this matter. I'm
not doing it to argue with the Board. I'm only doing it to try to defend
my client, who has his rights too.
CHAIRMAN DICKSON: And we -- and you understand that
most of this Board is made up of contractors, and there's three, and we
fully understand that. You saw what we did with the pictures.
MR. BRYANT: And I appreciate that.
CHAIRMAN DICKSON: I ask that you let this proceed and
not alienate the board.
MR. NEAL: Well-- and I would state that the witness is not
being put forth as an expert witness. She's being put forth testifying
on her homeowner's view, lay view of the matter. If she were
testifying on specifics, technical specifics of an asphaltic driveway, I
think that would require her to be an expert, and certainly this Board
has sought to have experts qualified before on certain matters.
CHAIRMAN DICKSON: Okay. Proceed.
MR. ZACHARY: I just want to interj ect that the quasi judicial
Board can certainly take testimony from laypersons. As far as that as
compared to expert testimony, it's just the weight of the evidence that
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February 16, 2005
the Board can consider. I certainly don't think disintegrate is a
technical term. It's something that everybody can observe and be able
to testify about. Please proceed.
MS. KUCKO: Just to put it very simply and to make it short
because, you know, it's only what -- I mean, I'm not an expert, but just
from what I've observed, it's basically the asphalt is crumbling up as
though it was the rock driveway that it was before underneath. And
that's as simple as I can put it. There is chunks five to six feet wide.
There's cracks in my driveway that run from side-to-side. There's
chunks, big huge chunks that are pulled away from the other section of
the driveway.
MR. ZACHARY: In other words, separated?
MS. KUCKO: It's separating. And the bottom line is, it's
basically -- looks like it's going back to being a gravel driveway, only
it's black asphalt.
MR. ZACHARY: And after -- how many times did someone
come out and try to correct the problems that you were experiencing.
MS. KUCKO: After they came out and put the seal coat on it, a
few weeks later I called Fred. I called back and eventually Fred called
me back. And I said, Fred, you know, I appreciate you putting the
seal coat on, but I really don't think that's solving the problems here.
What else can we do? And he said, I'm not doing anything. I'm done.
MR. ZACHARY: And that was the last you heard from him?
MS. KUCKO: That was the last I heard.
CHAIRMAN DICKSON: And that was who that said that?
MS. KUCKO: Fred.
CHAIRMAN DICKSON: Fred. Okay.
MS. KUCKO: May I make one more comment? Several times
when talking to Fred on the phone, I heard him saying -- he would put
me on hold, say, just a minute, and I heard him saying to other
customers kind of the same spiel he gave me. We've got a load around
the comer. The guy can't have it poured. We need to get rid of it and
Page 27
February 16, 2005
I'll give you a good deal. So, I don't think I'm the first person that has
been had like this.
MR. ZACHARY: Did you ever meet or talk to the license
holder in this case, Mr. Charles Wiley?
MS. KUCKO: No, I have not.
MR. ZACHARY: Okay. I don't have any further questions for
this witness.
CHAIRMAN DICKSON: Okay. Cross, Mr. Bryant.
MR. BRYANT: Thank you, Mr. Dickson. Ms. Kucko, your
contract that you signed with B & W Asphalt Paving & Blacktop
Sealing, you provided a copy of that to Mr. Hoopingarner, I believe?
MS. KUCKO: Yes, I did.
MR. BRYANT: Okay. Did you read the contract?
MS. KUCKO: Yes, I have.
MR. BRYANT: Did you notice paragraph four that says, new
pavement will tend to scuff or mark within the first 12 months after
placement due to the curing process of asphalt?
CHAIRMAN DICKSON: Mr. Bryant?
MR. BRYANT: Yes, sir.
CHAIRMAN DICKSON: I'm going to interject here on you
one time. We all have that contract in our packet. If I may point out,
it's not signed. Do you have a signed copy?
MR. BRYANT: I do, sir. Not by Ms. Kucko. I've got one
signed by my client.
CHAIRMAN DICKSON: Yeah, but not Mrs. Kucko?
MR. BRYANT: Well, I'd like to show it to her and ask her if
that's the one she has.
CHAIRMAN DICKSON: Okay. Because that's one of my
questions.
MR. BRYANT: If you would look at this.
MS. KUCKO: I have one right here.
MR. BRYANT: You've got a copy, too?
Page 28
February 16, 2005
MS. KUCKO: Uh-huh.
MR. BRYANT: Is that the one that Mr. Vagil signed and gave
to you?
MS. KUCKO: Can you show me where you just asked me that?
CHAIRMAN DICKSON: Does this need to be on tape?
MR. BRYANT: Can you hear me? Paragraph four, that's what
I'm talking about where you're circling now. This is the one -- in fact,
this is the one that's actually signed by Mr. Baietto; isn't it?
MS. KUCKO: It's signed by Fred. But when I met Fred at my
house and paid him, he said he would leave the contract in my
mailbox when he left.
MR. BRYANT: And this is the one that's signed by Fred. It
says B & W Paving on the bottom, isn't it?
MS. KUCKO: Yes, it does.
MR. BRYANT: And it has that provision in this contract that
you -- this is your original; isn't it?
MS. KUCKO: This is my original, but in answering your
question, there's a big difference between scuffing and marking and
actually coming apart - tearing apart.
MR. BRYANT: Yes, ma'am. But that provision is in the
contract that you were given; isn't it?
MS. KUCKO: In regards to scuffing and marking only.
MR. BRYANT: Also, there's a provision in the very bottom
under paragraph eight that says warranty. There will be a one year
warranty on the material and workmanship if all above conditions are
met. That's in the contract that you have the original of, isn't it?
MS. KUCKO: It's in the contract, and complaints were made
before the year was up.
MR. BRYANT: Do you have a copy of your check that you
paid Fred with?
MS. KUCKO: Not with me.
MR. BRYANT: And that check would show that it was written
Page 29
February 16, 2005
in March or April?
MS. KUCKO: Uh-huh.
MR. BRYANT: Can you give us a better idea? Would it have
been the end of March, or the first of April, the middle of April?
MS. KUCKO: I'm thinking it was more the end of April.
MR. BRYANT: So almost May?
MS. KUCKO: Uh-huh.
MR. BRYANT: Is that a yes?
MS. KUCKO: Yes.
MR. BRYANT: Okay. And your check would show that also?
MS. KUCKO: Yes. You know, I could be off on that.
MR. BRYANT: So if I subpoenaed that check from your bank,
it would show it was written sometime in May.
MS. KUCKO: I can't say right now. It really-- I don't see
where that's relevant because he was paid.
MR. BRYANT: It's my question, Ms. Kucko.
MS. KUCKO: I can't answer that question. I don't know.
MR. BRYANT: Do you know, as you stand here today, when
you actually had the work done on your driveway?
MS. KUCKO: I would say it was in April.
MR. BRYANT: But you just said you thought it was in May.
MS. KUCKO: April, May.
MR. BRYANT: Okay.
MS. KUCKO: I know you're trying to confuse me. That's fine.
Regardless.
MR. BRYANT: Ms. Kucko. I'm not trying to personalize this
matter, and I'd appreciate if you don't do that, too.
MS. KUCKO: I'm not. I think the dates are irrelevant as far as
-- we have times.
MR. BRYANT: If I might ask the question, Ms. Kucko.
MS. KUCKO: Okay. Go ahead.
MR. BRYANT: You have counsel here who will sum up for
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February 16, 2005
you.
MS. KUCKO: Okay.
MR. BRYANT: How many vehicles do you have in your
driveway at your home?
MS. KUCKO: Today I have two.
MR. BRYANT: How many vehicles did you have in your
driveway in April or May of 2003.
MS. KUCKO: Two.
MR. BRYANT: Did you have a boat there.
MS. KUCKO: Yes, but it's parked -- I have five acres. It's
parked out in the field.
MR. BRYANT: Do you have a tractor?
MS. KUCKO: No.
MR. BRYANT: But you only had two vehicles and a boat in
2003.
MS. KUCKO: Actually, I didn't have a boat then. I just bought
the boat in December 2003. And I can verify that, too.
MR. BRYANT: The gentleman that came out and looked at
your driveway, that you don't know his name today, did he tell you
anything about the driveway?
MS. KUCKO: The gentleman that called me?
MR. BRYANT: No, ma'am. The gentleman that came to your
home.
MS. KUCKO: The only gentleman that came to my home,
other than the guys who put the seal coat on --
MR. BRYANT: Yes, ma'am.
MS. KUCKO: -- I wasn't there when he showed up. He called
me on my cell phone. He told me that he represented B & W during
the summer when they were gone up north, and then he took a look at
my driveway, and he said, I think we got a load of bad asphalt. We
just need to resurface it. They'll take care of that when they come
back in the fall.
Page 3 1
February 16,2005
MR. BRYANT: And you don't remember this gentleman's
name?
MS. KUCKO: No, I don't.
MR. BRYANT: Do you remember the name of his company?
Does Dr. Seal sound familiar?
MS. KUCKO: I don't think it -- no. I don't think it had to do
with sealing. I think he was like a paving company.
MR. BRYANT: Now you complained to Contractor Licensing
the first part of January in 19 -- or 2004 didn't, you?
MS. KUCKO: Right.
MR. BRYANT: And then you didn't come in after,
approximately, four or five or six calls from Contractor Licensing
until June the 18th of '04 to actually pick up a complaint and sign it,
did you?
MS. KUCKO: I don't know the exact dates. They can probably
verify that.
MR. BRYANT: Which would be approximately six months
after you supposedly complained to Contractors Licensing before you
actually sent somebody in to pick up a complaint form.
MS. KUCKO: During this time I was still talking with Fred.
MR. BRYANT: In 2004 you were talking to Fred?
MS. KUCKO: Uh-huh.
MR. BRYANT: Okay.
MS. KUCKO: Because, remember, the driveway was poured in
the spring of2003. They left. They were gone the entire summer.
MR. BRYANT: Yes, ma'am.
MS. KUCKO: And I started calling in October, but never
received any calls back until late November, early December.
MR. BRYANT: No further questions. Mr. Dickson, thank you.
CHAIRMAN DICKSON: Does the Board have any questions
for Ms. Kucko?
MR. BLUM: Oh, yeah. Where do you want to start?
Page 32
February 16, 2005
CHAIRMAN DICKSON: Is it appropriate at this time, Mr.
Neal?
MR. NEAL: Pardon me?
CHAIRMAN DICKSON: Can we ask questions of Mrs.
Kucko?
MR. NEAL: Certainly.
CHAIRMAN DICKSON: Bill.
MR. LEWIS: May it please the Board, first off, let me thank
both of you for being here today.
Ms. Kucko, several questions just to clarify some things in my
own mind. When you had this job done prior to the product being
applied to your -- product being applied to your driveway area, you
said it was gravel. There's different terminologies that we all use for
gravel. Can you give me a little better indication? Was it something
that was prepared by most Golden Gate Estate homes that have like a
lime rock base, or with large and small rocks different diameter sizes?
MS. KUCKO: Yeah, that was it.
MR. LEWIS: Okay. Was it a very stable substrate? In other
words, was it -- how long had it been in place, and how long have you
been driving over it?
MS. KUCKO: The house was built in '92, so about 11 years.
MR. LEWIS: Okay. And you had not had any problems with
the substrate? Were there large potholes?
MS. KUCKO: No.
MR. LEWIS: It was very smooth?
MS. KUCKO: Smooth, very smooth.
MR. LEWIS: Was there loose gravel on top of it at that time?
MS. KUCKO: There was a combination of rocks and dirt, more
than like a pea -- what do they call it? Pea rock.
MR. LEWIS: Pea rock or loose gravel. Not a loose gravel, but
more loose gravel, minor loose gravel?
MS. KUCKO: Yes, sir.
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February 16,2005
MR. LEWIS: When the -- prior to the actual paving process,
were you at the project?
MS. KUCKO: No, I was not.
MR. LEWIS: Do you know that if there was any preparation
done to the driveway prior to the application of the pavement surface?
MS. KUCKO: No. I was at work. I'm a teacher. And the day
that he said he could do it, he said he would try to come out later in
the afternoon so I could come by and pay him.
MR. LEWIS: Okay. Were there any signs of preparation work,
such as an asphaltic tar base being applied prior to the application of
the pavement asphaltic surface? You would notice this by the outer
edges of the pavement would have like a black or brown seal coat
spray, like a thin spray?
MS. KUCKO: I did notice that, because I have wood --like
wood -- I don't know what you call them. Like pavers that go down
the side of the driveway. And it looked like it had like spray paint on
it black, so I did notice that, yes.
MR. LEWIS: Okay. Now -- and that's a good point to bring up.
You say you have these wood blocks that go down the driveway.
MS. KUCKO: Right.
MR. LEWIS: The driveway is contained within that area.
MS. KUCKO: Yes, sir.
MR. LEWIS: Was the pavement higher than the top of those
wood blocks when it was applied?
MS. KUCKO: Yes, I think it is. Just slightly.
CHAIRMAN DICKSON: If I can point out -- if you turn to the
last page, you'll see that the last photograph has that in there.
MR. LEWIS: It's kind of hard for me to see. My bifocals aren't
working right today.
CHAIRMAN DICKSON: It looks level -- level at the left, but
the condition of the wood boarders is pretty suspect.
MR. LEWIS: Okay. What type of vehicles do you have, and
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February 16, 2005
that regularly use the driveway, ma'am?
MS. KUCKO: Well, I've had several during -- since this was
done, but there's always only been a couple vehicles parked on the
drive at one time.
MR. LEWIS: Give me an indication? Are they large pickup
trucks or small --
MS. KUCKO: I had a -- until April of 2004, I had a Hyundai
Santa Fe, and a Toyota Salona.
MR. LEWIS : Nothing with big tires or --
MS. KUCKO: No.
MR. LEWIS: Okay. When you first made the original
complaint, what was the time frame between the driveway being
applied and the time that you first called, I believe, Fred, and made a
complaint to him.
MS. KUCKO: It's probably about two-and-a-halfto three
months. I called B & W --which I was told by the receptionist that
they go up north for the summer and that I may not be contacted until
later. But then I guess she must have contacted this other guy who
came out and looked at it.
MR. LEWIS: Yeah, we have a lot of that here.
Was there ever -- and at that time I would assume then that if
the product was applied in late April early May, that a month to two
later we would be in what is known as our rainy season here. Did you
notice any ponding of water within, or on the driveway surfaces?
MS. KUCKO: Yes, I did.
MR. LEWIS: Was it, to your opinion, would it be large
ponding such as in diameters of three to five feet in diameter or more?
MS. KUCKO: Yes.
MR. LEWIS: Okay.
MS. KUCKO: And, mainly, it's in a section where it turns,
because there was a turn around poured. It's mainly where those two
connect, the straight drive and the turn.
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February 16, 2005
MR. LEWIS: Did it pond there before?
MS. KUCKO: No. Well, it was just rock, so
MR. LEWIS: What street do you live on, ma'am?
MS. KUCKO: I live on Wilson Boulevard North.
MR. LEWIS: Okay. And was the pavement paved all the way
to the street of Wilson Boulevard?
MS. KUCKO: The pavement that he poured, B & W, no, it
wasn't.
MR. LEWIS: Is there a concrete apron there?
MS. KUCKO: It's not concrete. It's another asphalt apron that
comes up right past the fence line. I believe in one of the pictures, you
can see where there's a connection made.
MR. LEWIS: Okay. In your opinion, the percentage of work
that is unacceptable to you of the total driveway?
MS. KUCKO: I would say 80 percent.
MR. LEWIS: Okay. That's all the questions I have for her.
CHAIRMAN DICKSON: Next?
MR. BLUM: My problem is with the paperwork, in the
contractual part of it. I see things that I have a problem with on both
parties. Am I missing a date on this contract? Is there a date here that
I don't see?
MS. KUCKO: There was not a date put on it. It was not signed
by me.
MR. BLUM: Well, I have to tell you, that part of that rests with
you. In all honesty, I mean, you don't sign -- you don't get a contract
that's undated, and if you accept it, you should sign off on it.
Conversely Fred, I can't imagine a representative of a company not
insisting that the person that is responsible for the money, signs off
and agrees to the terms. That seems to me --
MS. KUCKO: Well, at time that this took place -- and I
remember because I was -- I also tutor after school. And they were in
the middle of pouring it and I said, you know, I can either mail you a
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February 16, 2005
check or I can stop by and give you a check, but I have to go to my
tutoring.
MR. BLUM: The contract itself, I mean, when Fred signed B &
Wand put his name on it, did he hand it to you at that point?
MS. KUCKO: No, he did not. When I started writing him the
check, I go, do I get a receipt? And he said, I'll leave it in your
mailbox for you. Because he was busy doing the job.
MR. BLUM: Those things happen. It says here also, terms, net
cash, completion, paid invoice. Twenty-five percent deposit is
required.
He didn't ask you for a deposit?
MS. KUCKO: No.
MR. BLUM: And at any point in time, did he suggest to you
that maybe we ought to flatten it, crush it a little more, smooth it out?
Do some kind of preparation to make sure that this bond -- was that
conversation in any way mentioned, anywhere along the line?
MS. KUCKO: The only conversation that I had with Fred was
basically a selling conversation. Nothing was ever mentioned about
prep work. What is stated in the letter from him, nothing was ever
mentioned that it need to have any underlying surface work done.
MR. BLUM: So you had every indication to think $1,500 is
going to get you a lovely asphalt driveway, period? I mean, there was
no --
MS. KUCKO: Well, it's his business. You know, I showed
respect to him. I pay you -- I'm saying, I'll pay you for the job. I paid
you. You do the work. You do a good job. I paid you in good faith,
you do the job in good faith.
MR. BLUM: I'm talking about before it was done. Because
you're a teacher, you're an educated lady. You're a discriminating
person, you're looking for value. You know, in your own mind, just in
your own mind as an educated consumer, did you feel comfortable
that this was really going to be right, or did you think, wow, this is a
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February 16,2005
really inexpensive job, and it's going to be whatever it is and it's okay?
MS. KUCKO: Well, if you remember in my opening statement,
he came to me -- Fred -- in the B & W truck and said that he had a
load of asphalt. He needed to get rid of it. He was going to lose
money if he didn't. I'll give you a good deal. Okay? Of course I
wanted to have the driveway paved. And in the same respect, he's not
going to lose money. But when he left to go get it and he came back
and said, you know, we can -- they got behind the house. They can
pour now, but since you were going to be such a good person and help
me out, I'll still give you a good deal. I'll still give you the same price
I quoted. And I said, that's fair enough.
MR. BLUM: And at that point, you and he were together at
your house looking at the job, and he didn't offer you a contract to
sign right then and there?
MS. KUCKO: No, sir.
MR. BLUM: No paperwork? No offer? No nothing?
MS. KUCKO: No.
MR. BLUM: Okay.
CHAIRMAN DICKSON: I have some questions for you, Mrs.
Kucko. Can you tell me -- I keep hearing Fred. Is it Fred Flintstone?
What's his last name?
MS. KUCKO: Well, I don't know his last name. It's just B &
W Asphalt, Fred.
CHAIRMAN DICKSON: Did you ever get a card from him?
Do you know his position? Do you know anything about him?
MS. KUCKO: I probably did get a card at one time. He was
always the contact person when I would call in to B & W. He was the
only one that ever returned my calls.
CHAIRMAN DICKSON: Okay.
MS. KUCKO: It looks like his last name is like -- starts with a
B. Basil or -- I don't know. It's on the contract.
CHAIRMAN DICKSON: Okay. I got you. So I can get it
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February 16, 2005
from there. Okay.
Was there a permit on the job?
MS. KUCKO: No. And that was one question I asked him,
because I know someone in permitting -- or that works at the county,
and he said, for that small of a job, you wouldn't need it. If it goes
over a certain price, they need it.
CHAIRMAN DICKSON: I think our threshold here is -- Mr.
Bartoe, I'll turn to you. $750 or $1,000?
MR. BARTOE: I'm not sure, but blacktop only needs a permit
in the right of way, as far as I'm concerned.
CHAIRMAN DICKSON: Is that the case? I didn't know that.
The other question I have for you, and it's kind of following
here. I mean, I have people come to my office that have a load of
tropical plants, or they have a load of fish, or they have a load of
steaks that someone didn't accept and they want to sell them. Didn't
this thing set off bells and whistles to you for anyone to do business
like this?
MS. KUCKO: Probably if it was someone I had not seen their
signs posted around town. I mean, I've seen B & W Asphalt signs
posted almost every time -- whether they do it every time they do a
job. And I had seen the truck in the area. He did ajob for a neighbor
of mine, and actually Jim Kraft. And I asked Jim, he said, oh, yeah,
he'll do you good. He'll do a good job for you.
CHAIRMAN DICKSON: Okay.
MS. KUCKO: I mean, ifit was someone that I did not know at
all --
CHAIRMAN DICKSON: I know Jim Kraft.
MS. KUCKO: -- trust me, I would have investigated it.
CHAIRMAN DICKSON: Okay. So you felt good at that point.
And you never saw Charles Wiley?
MS. KUCKO: Never.
CHAIRMAN DICKSON: Okay. I want to direct you to -- in
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February 16, 2005
your packet -- and these are pictures that we already had. I'd like for
you to look to E 12, E 13. Start with Ell. I'll wait until you get to Ell
and then we'll go through those three.
MS. KUCKO: Okay.
CHAIRMAN DICKSON: Now I want you to understand, what
I'm going to do next is not anything that I want to upset you with or
imply that I side with the contractors, because on 15 years of this
Board, that's never happened. Okay?
MS. KUCKO: Okay.
CHAIRMAN DICKSON: But I'm a roofing and waterproofing
contractor, and I deal with water all the time, and have for 35 years.
The problem -- like even when I do jobs, sometimes one of my
procedures is, we walk the driveway together and we mark cracks and
things like that, because people don't notice them. And you learn that
the hard way. They don't notice until there's a problem, and then in
their own mind, they honestly believe that that problem was never
there, or that crack was never there. The reason I'm going to this --
these photographs, if you look at all three of them, you have kind of a
white ring around them. It's extremely pronounced on E12. Now--
MS. KUCKO: No, I don't -- are you looking at Ell ?
CHAIRMAN DICKSON: Ell. Now look at the E12, and
you'll really see what I'm talking about.
MS. KUCKO: Where the color is changed?
CHAIRMAN DICKSON: Yes. And you'll see the same thing.
You'll see the whiteness on E 13 . Well, what creates a lot of that, and
what the whiteness infers, it's efflorescence, which can be sulphur. It
can be minerals. It can be a lot of things. But all three of those spots
indicate to me that all three of those spots are areas that water ponded.
And the reason that these guys go north is because -- unless I've
mistaken -- you can't really lay asphalt during rain season because you
trap the water underneath, and that water, which will come through
solid steel when the sun hits it, will completely destroy their asphalt.
Page 40
February 16, 2005
Same thing happens with water ponding. Water soaks down in there,
and then we get a hot day and it pulls it back out.
My question for you -- and you may not even be able to answer
this -- but, if you noticed these three spots signified in these three
photographs, if you noticed them three months later, which was well
into the rain season, why didn't you notice them when he finished the
job, which your first inclination would be to go out and really look at
the job before you wrote the check. Because what I'm implying to
you, Ms. Kucko, is when they finished the job, I don't think that those
little pop marks -- and that's what they are -- were there. I think that's
a result of ponding water. And then when the water was sucked back
up through it, it popped off that top layer. Is that possible? Why
didn't you see it when they finished?
MS. KUCKO: Well, first of all this driveway is slanted, so this
part you're looking at, has never had any standing water. It's like a
hill, like this.
CHAIRMAN DICKSON: Okay.
MS. KUCKO: Okay. And I can't really answer that because I
don't know how this works. All I know is that this thing is steadily
getting worse and worse and worse. It's almost like it's being washed
away. I mean, I don't know any other way to explain it. But this
particular area, the only part that is not on a slant is the turn around
area. The whole entire driveway that he poured is on a slant.
CHAIRMAN DICKSON: So that whiteness is not an indication
of water?
MS. KUCKO: It doesn't hold water there. Like I said, basically
where the turn-around, where the slanted drive meets the turn-around,
is the only place it holds water.
CHAIRMAN DICKSON: Okay. Did anybody ever explain to
you without a base coat -- correct me, Bill, if I'm wrong -- without a
base coat you essentially bought a three or four-year driveway.
MS. KUCKO: No, I would have hoped that the people doing
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February 16, 2005
the job would have mentioned that.
CHAIRMAN DICKSON: Am I correct on that, Bill?
MR. LEWIS : You're within reason, yeah.
MS. KUCKO: I mean, if that's the case, there's going to be a lot
of four- or five-year driveways done by this particular company,
because -- now if I -- and another question is, if I refuse that layer, that
base layer to be put on, should that not have been written in the
contract to cover them?
CHAIRMAN DICKSON: Yeah. That's a question I have for
the other people when it's their turn.
MS. KUCKO: Okay. Sorry.
CHAIRMAN DICKSON: Go ahead.
MR. JOSLIN: I don't have a lot of questions for Ms. Kucko at
this time. My questions are more directed at the contractor. I will ask
one question though. The one area that we are looking in the pictures
at --
MS. KUCKO: Yes, sir.
MR. JOSLIN: -- is this one of the areas that does not hold water
now after the job has been completed? In other words --
MS. KUCKO: No.
MR. JOSLIN: -- this area drains water all the time?
MS. KUCKO: No, because it's at a slant. It's almost like, I'd
say, a 45 -- almost a 35, 45-degree angle.
MR. JOSLIN: Okay. Is it possible that this area could be a
place where you normally park your cars on a consistent basis?
MS. KUCKO: No.
MR. JOSLIN: An apron, or is this someplace --
MS. KUCKO: I usually park my car down further. I don't park
it on the tilt of the driveway. I usually park it down at the bottom
because, of the -- it's just me. When I get in it and put it in gear, and it
makes the clanking noise, to me, it's just easier on the transmission not
to park it at a tilt.
Page 42
February 16,2005
MR. JOSLIN: So, what you're saying is, that your vehicles may
or may not have been parked on this particular area?
MS. KUCKO: They are occasionally, but not all the time.
Usually for the evenings when I am in for the night, they're parked
down at the bottom of the hill.
MR. JOSLIN: Right. Which is this same picture that we're
looking at here?
MS. KUCKO: No. Actually, this is more towards the top. I
don't know how to show you that. It's probably, I would say, 20 feet
past that. Because going -- where the driveway starts up the hill,
there's a tree on the left, and I usually park by that tree. Do you have a
full --
MR. JOSLIN: The reason why I'm asking that question is, I
have an asphalt driveway also, and I have an area that I park in several
times, and it has -- it always seems to want to -- if my radiator should
spit out some antifreeze or some fluids sometimes, it will eat a hole in
that asphalt.
MS. KUCKO: Sure.
MR. JOSLIN: That's one of my questions or concerns.
MS. KUCKO: Can I -- may I say something? If you look at
picture E 14, I mean, that's -- that's a good picture of how it looked
right after it was completed.
MR. JOSLIN: This is just the one location?
MS. KUCKO: No, that's -- that's throughout the whole drive.
It's almost as though the asphalt didn't cover the gravel completely.
MR. BLUM: This was after the seal coat had been done?
MS. KUCKO: Yes, sir.
MR. JOSLIN: Okay. I have no questions.
CHAIRMAN DICKSON: Anybody else?
MR. BOYD: How long is the driveway?
MS. KUCKO: It's about 79 feet long and about 18 feet wide.
CHAIRMAN DICKSON: Is that it? Any redirect? Counselor?
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February 16, 2005
MR. ZACHARY: No, sir. None.
CHAIRMAN DICKSON: Okay. Thank you, Mrs. Kucko.
MS. KUCKO: Thank you.
CHAIRMAN DICKSON: You can go ahead and sit down now.
MS. KUCKO: You want me to sit down?
CHAIRMAN DICKSON: You can go ahead and sit down.
MS. KUCKO: Okay.
MR. ZACHARY: County would like to call Mr. Hoopingarner.
CHAIRMAN DICKSON: Mr. Hoopingarner.
MR. HOOPINGARNER: Yes, sir.
CHAIRMAN DICKSON: I need to have him sworn in county
official.
(Speaker was duly sworn.)
CHAIRMAN DICKSON: State your name for the record,
please.
MR. HOOPINGARNER: For the record, my name is James
Hoopingarner, that's H-O-O-P-I-N-G-A-R-N-E-R. I'm an investigator
with Collier County Contractors Licensing.
MR. ZACHARY: All right. Mr. Hoopingarner, when did you
first learn about the complaint that Mrs. Kucko had against the B & W
Paving?
MR. HOOPINGARNER: It was January the 2, 2004 when Mrs.
Kucko made the first verbal complaint with me.
MR. ZACHARY: Okay. And when you receive a verbal
complaint, as you did in this case, what do you do?
MR. HOOPINGARNER: I got the details of what the problem
was. She said her driveway was deteriorating. She wasn't happy.
And that she had made complaints to B & W Paving and not got any
results from them. Also that same day I went out and made -- took
some pictures. I believe the picture exhibits are dated January 2, 2004
of what represented the driveway condition at that time.
MR. ZACHARY: And that would be in the packet Ell through
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February 16, 2005
18.
MR. HOOPINGARNER: Yes, sir, it is.
MR. ZACHARY: Okay. Overall how did you -- what kind of
condition did you observe of the driveway when you went out there
and took a look at it?
MR. HOOPINGARNER: I examined the driveway, and the
pictures kind of explain it. It shows holes. It shows very rough
portions. It's almost like when you do a cake and you don't have
enough frosting left to cover the cake completely the way it should be.
In my opinion, it was an unsatisfactory job.
MR. ZACHARY: Okay. What did you do -- did you do
anything to try to resolve the dispute between Ms. Kucko and B & W
Asphalt?
MR. HOOPINGARNER: Yes, sir, I did. And that was a little
disconcerting for me also. On January 7th I made phone contact with
Mr. David Bryant. His phone number is on Mr. Wiley's license as his
contact person. So I contacted Mr. Bryant and explained to him the
complaint was made, and he advised that he would contact Mr. Wiley
and have him look into it.
The thing disconcerting to me was, contractors prior complaints,
if we call up a contractor and say, gee, we have a complaint and a
problem, that contractor, that license holder usually gives us a call or
comes into the office and says, gee, we'd like to discuss this. Give
you our opinion on it. Mr. Wiley has never called me, and Mr. Wiley
has never come into my office prior to this hearing being set up. He
was in the office to see Michael Ossorio quite awhile later after the
hearing was already ready to go, and he said, well, there's nothing we
can do.
So, we didn't have any satisfaction with trying to sit down and
talk this out if anything could be done. It was just, the job is good
enough, and basically we're not going to do anything with it.
MR. ZACHARY: Did you ever talk to this Fred person that was
Page 45
February 16,2005
the contact?
MR. HOOPINGARNER: No, sir, I did not.
MR. ZACHARY: And you never talked to Mr. Wiley?
MR. HOOPINGARNER: No, sir, I did not.
MR. ZACHARY: Okay. I don't have anything further.
CHAIRMAN DICKSON: Mr. Bryant.
MR. BRYANT: Thank you, Mr. Dickson.
MR. HOOPINGARNER: Mr. Hoopingarner, you aren't
standing there and telling this Board you have a problem that a
contractor has an attorney and contacted you, are you?
MR. HOOPINGARNER: No, sir, I'm not. It's just strange --
Mr. Wiley is the license holder here, and usually they contact us in
person. I have no objection to you, whatsoever, sir. You are very
clear on what Mr. Wiley was going to do.
MR. BRYANT: But you don't have any problem with
somebody being represented, are you? Because it seems like you're
representing to this Board that because I contacted you, there is some
nefarious reason that was done.
MR. HOOPINGARNER: I'm sorry if you take it that way, but I
do consider it strange that the license holder himself don't make
contact with me and try to discuss the issue. After all, he did do the
job, sir.
MR. BRYANT: Didn't I write you a two-page letter --
MR. HOOPINGARNER: Yes, you did.
MR. BRYANT: If I might finish.
MR. HOOPINGARNER: I'm sorry.
MR. BRYANT: -- and told you exactly what Mr. Wiley had
tried to do? That he had tried on three separate occasions to make this
right for this complainant, and that it was our position after that was
not successful that there was not going to be a resolution of this
matter? Didn't I tell you that in the letter?
MR. HOOPINGARNER: Yes, sir, you did. In fact, your letter
Page 46
February 16, 2005
is an exhibit here.
MR. BRYANT: Exactly. So, why would the contractor want to
come in and get things right, when the contractor thought he did
everything right?
MR. HOOPINGARNER: Just because normally other
contractors would have done that. This is the first time that's ever
happened.
MR. BRYANT: Normally contractors don't have attorneys that
come in and --
MR. HOOPINGARNER: No, sir, they don't.
MR. BRYANT: -- and do this with the Board either, does it?
MR. HOOPINGARNER: No, sir.
MR. BRYANT: And, generally, contractors don't have
attorneys that is a contractor too, do they?
MR. HOOPINGARNER: No, sir. Not in cases I have had
previously, no, sir.
MR. BRYANT: Let me ask you this, Mr. Hoopingarner, you
made these photographs almost a year later, didn't you? January the
2nd,2004?
MR. HOOPINGARNER: Yes, sir.
MR. BRYANT: Now, the first complaint you received was
January 2, 2004; isn't that correct?
MR. HOOPINGARNER: Yes, sir.
MR. BRYANT: And do you remember today what date Mrs.
Kucko said the work was actually done?
MR. HOOPINGARNER: I believe she said -- and it's in her
report -- it was either April or May. That she wasn't certain of the
exact date, and there was no date written on the contract.
MR. BRYANT: So it's your testimony, you believe it was April
or May that the work was done?
MR. HOOPINGARNER: That's what I have to go by. That's
what she told me, yes, sir.
Page 47
February 16, 2005
MR. BRYANT: I'd like this marked as D-l.
(Whereupon, document was marked as D-1 for identification.)
MR. BRYANT: Mr. Hoopingarner, I'm going to show you an
original letter from Dr. Sealcoat and ask you if you remember
receiving this.
MR. NEAL: Mr. Bryant, it is normal procedure that that would
be shown to counsel for the --
MR. BRYANT: I'd be glad to. I thought it was in the package.
Is it in the packet, Mr. Hoopingarner?
MR. HOOPINGARNER: No, sir, it's not in the packet.
MR. BRYANT: You didn't put that in the package?
MR. HOOPINGARNER: This letter was returned to you saying
it would be in your defense exhibits, if you wished to do so.
MR. BRYANT: But you didn't share that information --
CHAIRMAN DICKSON: Can you go back to the microphone?
MR. BRYANT: You didn't share that information with this
Board and you're trying to present a complete example and
presentation of what took place to Mr. Kucko -- Ms. Kucko?
MR. HOOPINGARNER: No, sir, I did not.
MR. BRYANT: You didn't think it was incumbent upon you to
share --
MR. ZACHARY: I'm going to object.
CHAIRMAN DICKSON: Okay. Let's proceed.
MR. ZACHARY: That needs to be moved into evidence.
MR. BRYANT: I'll be glad to move it into evidence.
CHAIRMAN DICKSON: That's what we need to do, but let's
don't carry on here.
MR. BRYANT: He needs to be -- I need to ask him questions
about it.
MR. NEAL: Once it's in evidence properly then we can --
questions can be asked about it.
CHAIRMAN DICKSON: Gentlemen, what I'm looking at,
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February 16, 2005
because we need to move this into motion, is a handwritten letter that
has no date on it.
MR. BRYANT: Yes, sir, it is. It's dated in the wording of the
reservation.
CHAIRMAN DICKSON: Okay. It's a handwritten letter to
James Hoopingarner and Debbie Kucko in regards to -- I guess I
should read this before we admit it or not? Mr. Neal?
MR. NEAL: At this point I would say admit it subject to
reVIew.
CHAIRMAN DICKSON: Okay. It's signed by a Ward Russell,
and supposedly it's Dr. Sealcoat, but there's no letterhead, there's no
nothing and there's a phone number.
MR. ZACHARY: Mr. Chairman, if there's nothing to
authenticate that letter, or anybody here to authenticate the letter, I
would have to object to that being entered into evidence.
MR. BRYANT: And I would present to the Board that if
hearsay is acceptable, which I have been chastised about several
times, that I should be able to introduce exculpatory information, as
Ms. Kucko has expounded at length regarding hearsay.
MR. NEAL: I would suggest to the Board that it would be
appropriate to admit it over Mr. Zachary's objection noting said
objection.
CHAIRMAN DICKSON: Okay. I need a motion to enter it as
Exhibit Number 1.
MR. JOSLIN: I move that we enter that as Exhibit Number
One.
MR. BESWICK: Second.
CHAIRMAN DICKSON: Gentlemen, let me read it for you.
The motion has been made and second to enter it. All those in favor?
CHAIRMAN DICKSON: Aye.
MR. LEWIS: Aye.
MR. BESWICK: Aye.
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February 16, 2005
MR. BLUM: Aye.
MR. JOSLIN: Aye.
MR. HORN: Aye.
MR. BOYD: Aye.
CHAIRMAN DICKSON: Read --
MR. LEWIS: Mr. Dickson?
CHAIRMAN DICKSON: Yes.
MR. LEWIS: Is it possible to get the screen to work with that?
MR. BRYANT: Yeah, that's what I would say is put in on the
CHAIRMAN DICKSON: Yeah. I'd like for you all to see it.
Mr. Bartoe, can you do this? Thanks. Bill.
CHAIRMAN DICKSON: Your screens are on. You can push
it here in front.
Can you all read that? Okay. Mr. Bryant the floor is yours.
Can you see that?
MR. BRYANT: Yes, sir, I can. Mr. Hoopingarner, you note
that the driveway inspection was done on 3/2/04 by Mr. Ward, or Dr.
Sealcoat, I believe.
MR. HOOPINGARNER: That's what it says there, yes, sir.
MR. BRYANT: Well, you don't have any belief that this is
some fabrication, do you?
MR. HOOPINGARNER: No, sir, I don't.
MR. BRYANT: So, if this inspection was done, which you
would agree with me, had to be done after the work was done; isn't
that correct?
MR. HOOPINGARNER: After the work was done, yes.
MR. BRYANT: So the inspection, if it's done in March 2, of
'04, then that means that the work has to be done sometime before
that, doesn't it?
MR. HOOPINGARNER: Yes, sir.
MR. BRYANT: Not in April or Mayas testified to by Ms.
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February 16, 2005
Kucko?
MR. HOOPINGARNER: This is dated March 2004. The work
was done in 2003.
MR. BRYANT: But as far as the work being done on that date,
you don't know -- you would agree that the work was sufficient on
3/2/04 -- I'm sorry. Not the '03 date, almost a year later by Dr.
Sealcoat's observations; isn't that correct?
MR. HOOPINGARNER: That's what the letter says, sir.
MR. BRYANT: Like I said, you don't believe somebody came
in and lied and wrote this, do you?
MR. HOOPINGARNER: No, sir.
MR. BRYANT: Didn't they send it to you?
MR. HOOPINGARNER: Yes, sir you did.
MR. BRYANT: No, I didn't send it to you. Didn't Dr. Sealcoat
send it to you?
MR. HOOPINGARNER: You sent it with your letter.
MR. BRYANT: Not this, Mr. Hoopingarner. I didn't send you
anything other than the letter?
MR. HOOPINGARNER: That's --
MR. BRYANT: This letter is to you, to Jim S. Hoopingarner,
Re, Debbie Kucko. I never had a copy of this until I was provided by
Mr. Bartoe.
MR. HOOPINGARNER: To be perfectly honest with you, I
don't remember how I received that.
MR. BRYANT: But you did receive it, didn't you?
MR. HOOPINGARNER: Yes, sir, I did.
MR. BRYANT: But you did not include it in the package of
information that you provided these Board members, didn't you?
MR. HOOPINGARNER: No, sir, I didn't.
MR. BRYANT: You would agree with me that this document
is an exculpatory document as it regards the work that B & W Asphalt
provided, would you agree with that?
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February 16, 2005
MR. HOOPINGARNER: It's a document that states that the
work was satisfactory, yes.
MR. BRYANT: And are you familiar with Dr. Sealcoat?
MR. HOOPINGARNER: I know who he is, yes.
MR. BRYANT: Does he do paving?
MR. HOOPINGARNER: Yes.
MR. BRYANT: So, approximately -- in fact, almost exactly
two months after you did the photographs that you believe show
improper workmanship, Dr. Sealcoat is saying that the workmanship
is fine. Quality good, satisfactory. Looked like it was machine done
and finished properly. That's what Dr. Sealcoat said, didn't he?
MR. HOOPINGARNER: That's what Dr. Sealcoat said.
MR. NEAL: I would caution the Board because, while it may
be exculpatory in nature, the county does not have an opportunity to
cross examine Dr. Sealcoat on this matter.
MR. BRYANT: And I would submit to the Board I haven't had
an opportunity to cross-examine any of Ms. Kucko' s hearsay.
Mr. Hoopingarner--
CHAIRMAN DICKSON: What was that for? You had all the
chance in the world you wanted to cross-examine her.
MR. BRYANT: Not cross-examine her, cross-examine her
hearsay.
CHAIRMAN DICKSON: And this is the lousiest, quote,
document -- I mean, call it a document if you want. But, if --
MR. BOYD: Who requested this to be done?
MR. BRYANT: Mr. Wiley did.
MR. BOYD: Okay. And did he receive permission from Ms.
Kucko to go on the property and inspect this?
MR. BRYANT: I don't know about that. I just know he went
and inspected it because of the fact that she claimed --
MR. BOYD: Was he paid to do this, or did he do it for free?
MR. BRYANT: I'll share that when Mr. Wiley testifies, Mr.
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February 16, 2005
Boyd.
CHAIRMAN DICKSON: Let's move on.
MR. BRYANT: No further questions of Mr. Hoopingarner, Mr.
Dickson.
CHAIRMAN DICKSON: Board, questions for Hoopingarner?
MR. BESWICK: Yes, Mr. Chairman. I have a question. Does
the county have any kind of record on Dr. Sealcoat? What kind of
jobs he does?
MR. HOOPINGARNER: If we've had any complaints, I'm not
aware of them.
MR. BLUM: Mr. Bartoe, do you have any further information
on Dr. Sealcoat?
MR. BARTOE: I'm not aware of any.
MR. BLUM: Is it something that we can do while it's going on,
to look into it while -- in a quick -- or it can't be done rapidly?
MR. BARTOE: We can do that. I'm concerned, you know,
what type of license exactly does he have, because this is an
occupational license number -- it appears to be an occupational license
number on this document.
MR. JOSLIN: Can we find that out?
MR. BLUM: Can we make a phone call to get and idea of who
we're dealing with as far as an expert inspection?
MR. BARTOE: I will check in to see what type of licenses he
has, yes.
MR. BLUM: We are calling Dr. Sealcoat as an expert
inspector? Is that what we're using him as?
MR. BRYANT: I would call him a workman in the trade, and a
person that does similar type of activities.
MR. BLUM: He's your expert that's backing up your claim?
MR. BRYANT: Yes.
MR. NEAL: And I would suggest Mr. Bryant is putting him
forth as an expert, which he just said he is. That somehow he has to
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February 16, 2005
be qualified as an expert for the Board to accept it as expert testimony.
MR. BLUM: That's where I was going.
CHAIRMAN DICKSON: The other problem I have, the
document is -- I'm using that term so loosely -- the document is not
notarized, and it's pretty obvious to me that Dr. Sealcoat did not even
fill it out because they gave him an X where to sign. And he signed it
Ward. So I find this highly suspect.
MR. JOSLIN: Most reputable companies generally, if they
know this is going to be brought into testimony, or entered into
testimony, it normally would be on letterhead.
MR. BLUM: At least use their own letterhead.
MR. JOSLIN: And notarized with a signature.
MR. LEWIS: I think we can wait to get that from the county
staff.
CHAIRMAN DICKSON: Any other questions of Dr.
Hoopingarner? Sorry about that.
MR. HOOPINGARNER: Doctor? Thank you, Mr. Chairman.
CHAIRMAN DICKSON: I guess we can all be doctors. Any
other questions?
(No response.)
CHAIRMAN DICKSON: Okay. Redirect?
MR. ZACHARY: No, sir.
CHAIRMAN DICKSON: Thank you.
MR. HOOPINGARNER: Thank you.
CHAIRMAN DICKSON: Any further witnesses?
MR. ZACHARY: No further witness. The county rests.
CHAIRMAN DICKSON: Mr. Bryant, it's your stage.
MR. BRYANT: I would, at this time move to dismiss the
complaint against Mr. Wiley and B & W Asphalt Paving & Sealcoat,
as the government has failed to carry their burden to prove that as
they're charging document says, the work does not meet generally
accepted standards in Collier County. There has been no testimony by
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February 16, 2005
the government that says the work was faulty workmanship, faulty
material. There's been no expert testifying as to the material. There's
been no testifying, or no testimony as to any type of core samples
done to the driveway, to whether or not the asphaltic material was
improperly or properly applied. How thick it was. It's just been
basically, I don't think I got a good enough driveway. And I submit to
the Board that the complaint should be dismissed at this time.
CHAIRMAN DICKSON: Is that the extent?
MR. BRYANT: Yes, sir.
CHAIRMAN DICKSON: Okay.
MR. ZACHARY: And, Members of the Board, I would suggest
that you have heard testimony here today as that, it is directed to
faulty workmanship. Mrs. Kucko testified directly that there was
cracks, the driveway was falling apart. It was disintegrating. Now
you've seen pictures of how the driveway is -- it shows the faulty
workmanship. So I would say that you could find on the evidence
given that, the complaints as set out in count one of the administrative
complaint was, the work was faulty.
CHAIRMAN DICKSON: Okay. Mr. Neal, I have a question
for you.
MR. NEAL: Sure.
CHAIRMAN DICKSON: I've never had counsel not offer up
the license holder.
MR. NEAL: Well he hasn't presented his case yet.
CHAIRMAN DICKSON: Oh, I told him -- I asked him if that
was it and he said yes.
MR. NEAL: No, no, no.
MR. LEWIS: He's making a motion.
MR. NEAL: So he's making a motion. This is totally
appropriate procedure. He's making a motion at the close of the
county's case to dismiss the case. He has not had the opportunity to
put on his case yet.
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February 16,2005
CHAIRMAN DICKSON: Okay. Do I have to deal with that?
MR. NEAL: Yes, you do.
CHAIRMAN DICKSON: Okay. In the form ofa motion?
MR. NEAL: Uh-huh.
MR. JOSLIN: At this moment I deny that.
MR. BLUM: I second that.
CHAIRMAN DICKSON: All those in favor?
CHAIRMAN DICKSON: Aye.
MR. LEWIS: Aye.
MR. BESWICK: Aye.
MR. BLUM: Aye.
MR. JOSLIN: Aye.
MR. HORN: Aye.
MR. BOYD: Aye.
CHAIRMAN DICKSON: Okay. Now proceed, Mr. Bryant.
MR. BRYANT: Thank you, Mr. Dickson. I call Mr. Wiley.
CHAIRMAN DICKSON: You can go over here to this podium.
State your name and I need to have you sworn in.
MR. WILEY: Charles Wiley.
(Speaker was duly sworn.)
MR. BRYANT: State your name and occupation, please, sir.
MR. WILEY: Charles Wiley, B & W Asphalt.
MR. BRYANT: Are you the qualifier for B & W Asphalt
Paving and Sealcoat?
MR. WILEY : Yes, I am.
MR. BRYANT: You've heard the testimony here today, Mr.
Wiley, I believe, haven't you?
MR. WILEY: Yes.
MR. BRYANT: Are you familiar with Ms. Kucko's job
application?
MR. WILEY: Yes.
MR. BRYANT: Would you explain to the Board what you saw
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February 16, 2005
and what you observed? And let me ask you this first, how long have
you been licensed in Collier County?
MR. WILEY: Maybe nine years, ten years. Something like
that.
MR. BRYANT: And could you tell the Board how you
observed the material application when you heard about the
complaint?
MR. WILEY: Well, basically, it was an as is. We were doing a
job for Jim Kraft. We could not get to the back part of the yard, so
that was why we had talked to her because we had a couple loads of
asphalt out there, and we had no other place to go with it and it's right
next door.
As for the base, the job is done as is. That's why the contract
was like it was. They -- my father-in-law is retired basically, but he'd
been in the business for 20 years. I mean, I was there with him, and
he said something about the base, and she said this is all I can afford.
MR. BRYANT: Is Fred your father-in-law.
MR. WILEY: Yes, he is. Fred Baietto is his name.
MR. BRYANT: And Ms. Kucko said she couldn't afford base.
MR. WILEY: She could only afford $1,500. That's basically it.
MR. BRYANT: Would base cost more?
MR. WILEY: Yes.
MR. BRYANT: And why would you advise a potential
customer to place base prior to the asphalting material.
MR. WILEY : Well, number one. It provides stability for the
ground that you don't know anything about. The particular ground
had some rock in it. It had some dirt in it. It had some other
materials, but as far as most of the driveways we do, we generally put
at least two or three inches of base just to be on the safe side. If the
people can't afford it, then as an alternative that's their problem. We
try to avoid that and tell them up front. If they can't afford it, well,
then that's sometimes the way it is in the asphalt business. So we have
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February 16,2005
no other alternative.
As for the way the moisture comes up, yes, that's true unless
you have proper base underneath it, being lime rock base, which the
driveway had some, but in the area in which the -- the back off area
had had very little. And when I saw it there was vehicles parked in
there off the edges, different things like that. So I just observed things
that were different than the way she did, so --
MR. BRYANT: Did you -- I'm sorry. Go ahead.
MR. WILEY: But, we did the best job for what we were
allowed to do. Okay? And I got a lot of jobs, and I think Tom can --
he's looked at some. I have complaints, I'll go out and fix them in a
heartbeat. And I generally talk to the contractors licensing people. I
talked to that gentleman back there before about the issue. I talked to
him about more than once. He said it might be better to get a second
opinion. That's why we had -- I called a couple of people, and Ward
is in the business. And that's why I had him go out there. That's
basically it.
I know this, we did try to fix it. You know, she was -- we did
do the job. It was sometime in February and not April or May because
I wasn't even here.
MR. BRYANT: February of2003.
MR. WILEY: Yes. I was not even here in April and I wasn't
even here in May. And I did contact her and I did call her on the
phone. I did myself. And I told her we'd be back to review it. We'd
be back to look at it. And I might send somebody out, which I sent
Ward out and then he came out again after he'd already seen it once.
And he just said that, when you back out into a driveway with your
cars, boats, et cetera, park them on there, that you're going to have
raveling, turning and whatever. And I simply told her that I would
seal the driveway, and I told her this, that we did not put any base
underneath the driveway, so, as far as I was concerned, you know, if I
did any more, I was going to have to be compensated for it. Okay?
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February 16, 2005
And I told her I'd seal it, patch it, fix it, whatever it needed if she had
holes in it, but I didn't -- asphalt does not get holes in it just -- you
know, unless somebody either doesn't have the base under it or
somebody sits something on it like either a boat stand or something
like that. It just doesn't happen. But, like I said, I did the best job I
could for what I was paid to do. And I was there and I did talk to Mrs.
Kucko. And Fred wasn't -- Fred was not even -- he talked to her and, I
mean, I was there at the time that happened too. But, like I said, I
talked to her in the summer which was somewhere around September.
And she called twice, I think.
And as for communicating with the Contractor's Licensing, as
soon as I found out about it, I'd like to say the following year, I talked
to him over there, and I think he can attest to that.
MR. BRYANT: Are you talking Mr. Ossorio?
MR. WILEY : Yes. I talked to him a couple of times about it. I
did not talk to him. I was unaware. He was the one I was supposed to
talk to. But I do communicate with the Contractor's Licensing. And I
think Mr. Bartoe will vouch for that.
As far as complaints are concerned, if I do have them, I try to
correct them. And if I can't correct them, in this sense, you know --if I
put another layer of asphalt on it, it's going to do the same thing. It's
going to sink because there's no base underneath the asphalt. Okay?
So you're going to have the same problem that occurred.
I think the gentleman on the end mentioned that if you do not
have base, water comes up through it. Whatever it does in the rainy
season. And it's wet out there in that particular area. So, I'm not here
in the summer, but I do know that there's standing water in areas out
there. So, that's basically all I can tell you about it.
Like I said, all I can tell you is that I did the best I could for
what I had to work with. And, you know, sometimes people don't
want to pay the extra. I have no problem with that, but there's
consequences that go along with it, so --
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February 16, 2005
MR. BRYANT: Mr. Wiley, at my request, after we found out
about the complaint, did I tell you we needed somebody else to look at
that driveway to get another opinion that is not your opinion?
MR. WILEY: Exactly.
MR. BRYANT: And did you contact Mr. Sealcoat and --
MR. WILEY: I did.
MR. BRYANT: -- Mr. Ward?
MR. WILEY: I did.
MR. BRYANT: And what did you ask him to do?
MR. WILEY: I just asked him to go out there and look at the
driveway, see what he thought of it, and just give me an opinion.
That's basically it.
MR. BRYANT: Did you pay him for that opinion?
MR. WILEY: Absolutely not.
MR. BRYANT: Was he with you here at the last meeting and
to the end of the meeting?
MR. WILEY: Yes, he was.
MR. BRYANT: Seated back in the back with you?
MR. WILEY: Yes, he was.
MR. BRYANT: And why is he not here right now?
MR. WILEY: He's stuck in traffic presently.
He should be here in the next 10 minutes.
MR. BRYANT: Did you talk with him on the phone?
MR. WILEY: Yes, I did. And he was supposed to have been
here, but there was an accident on Marco Island and he could not get
across the bridge. And I just talked to him a few minutes ago and he
said Iwill be here. And I have no recourse against accidents or
something that's going to happen that's unforeseen, so --
MR. BRYANT: Does -- if you know, does Dr. Sealcoat have a
paving license in Collier County?
MR. WILEY: Yes, he does.
MR. BRYANT: And does he actively do paving now?
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February 16,2005
MR. WILEY: Yes, he does.
MR. BRYANT: I want to show you some photographs. First,
did I ask you to take some photographs, or have some photographs
taken of the site?
MR. WILEY: Yes.
MR. BRYANT: I want to show you some photographs that I
believe you took.
CHAIRMAN DICKSON: Wait a minute. Same procedures.
And we need to look at them first.
MR. BRYANT: Yes, sir.
CHAIRMAN DICKSON: Tell you what, you could throw those
up on the screen.
MR. LEWIS: When were the photographs taken?
CHAIRMAN DICKSON: Yeah. What are they of and tell us
about them before we accept them.
MR. BRYANT: If I can show them to the witness and ask him
what date, Mr. Dickson?
CHAIRMAN DICKSON: Okay.
MR. BRYANT: I want to show you a composite Defense
Exhibit Two and ask if you recognize those?
MR. WILEY: Yeah.
MR. BRYANT: Did you take those photographs?
MR. WILEY: Yes, I did.
MR. BRYANT: And were those photographs taken sometime
in the middle of March of '04? I can show you the -- in fact, if we
mark this as Exhibit two.
CHAIRMAN DICKSON: You what? I can't hear you.
MR. WILEY: I don't honestly don't know what the date is. It's
been --
MR. BRYANT: I'll rephrase it.
CHAIRMAN DICKSON: Just call it Exhibit two, and we'll put
the photographs in there.
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February 16, 2005
MR. JOSLIN: Sometimes the back of the pictures are stamped.
MR. WILEY: Yeah, that's what I was looking at.
(Whereupon, photos were marked as Exhibit two and Exhibit
three for identification.)
MR. BRYANT: I'll show you what's been marked as defense
two and ask you, did you turn those into evidence?
MR. WILEY : Yeah. That's 3/25/04, is when it was.
MR. BRYANT: And you picked those up from Eckerd's.
MR. WILEY: Yes, I did.
MR. BRYANT: And do those fairly and accurately depict the
scene that you photographed?
MR. WILEY : Yes, that's correct.
MR. BRYANT: Have you modified, altered, or tried to
manipulate those photographs in any way?
MR. WILEY: No, absolutely not.
MR. BRYANT: Okay.
CHAIRMAN DICKSON: Mr. Neal, I just want to afford the
same courtesy . We didn't accept the photographs of a few months ago
that Ms. Kucko says. These are a year after the job was done.
MR. NEAL: If defense is putting them forward for purposes of
their defense, what -- you know, ifMr. Zachary wants to object,
there's no objection to them at this point, so --
CHAIRMAN DICKSON: Okay. I need a motion to accept the
photographs as Exhibit two, and I guess the package you marked
Exhibit three?
MR. BRYANT: Yes, sir.
CHAIRMAN DICKSON: Exhibit two and three.
MR. JOSLIN: I'll make a motion to accept.
CHAIRMAN DICKSON: Second someone?
MR. BLUM: Second.
CHAIRMAN DICKSON: Okay. Discussion?
MR. LEWIS: I'm not sure I want to accept the photographs at
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February 16, 2005
this point. And I'll tell you why, because of what you mentioned, the
same courtesy that we extended to prosecution, and the prosecution is
not here right now. The attorney for prosecution.
MR. BRYANT: If I might make one comment, Mr. Chairman.
CHAIRMAN DICKSON: Her's weren't -- her's were two years
afterwards, so these are a year after. Go ahead Mr. Bryant.
MR. BRYANT: If the Board will look at its own package, the
Government's photographs were made on January 2, '04.
CHAIRMAN DICKSON: That's a good point.
MR. BRYANT: This is approximately 40 days after those were
made. So, if the government's photographs are representative of what
they believe the area shows, I would submit to the Board the
photographs that we're asking to be accepted shows the same area at
approximately the same time.
MR. LEWIS: Point of order. I don't know that we've accepted
those photographs either.
CHAIRMAN DICKSON: Yeah, we did, with the packets
because it's automatically in the case.
MR. BRYANT: Well, actually, the packet needs to be moved
In.
CHAIRMAN DICKSON: That's right. I never accepted the
packet, did I? Let's get --
MR. JOSLIN: I agree we accept the packet into evidence.
CHAIRMAN DICKSON: Okay. Do I hear a second on that?
MR. BLUM: Second.
CHAIRMAN DICKSON: All those in favor accepting the
packet?
CHAIRMAN DICKSON: Aye.
MR. BESWICK: Aye.
MR. BLUM: Aye.
MR. JOSLIN: Aye.
MR. HORN: Aye.
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February 16, 2005
MR. BOYD: Aye.
CHAIRMAN DICKSON: Okay. I agree with Mr. Bryant.
They're the same -- relatively the same dates, so I think we should see
them. Any other discussion? I have a motion, and I have a second to
accept Exhibits two and three. All those in favor?
CHAIRMAN DICKSON: Aye.
MR. BESWICK: Aye.
MR. BLUM: Aye.
MR. JOSLIN: Aye.
MR. HORN: Aye.
MR. BOYD: Aye.
MR. LEWIS: You're going too fast. I'm going to be a hard
stone on it. I didn't get a chance to vote against the acceptance of the
packet. I would refer not to accept the fact, so I vote nay.
CHAIRMAN DICKSON: Okay. If you'll amend that, the vote
on accepting the packet, the original packet was six to one. Now the
vote on accepting Exhibit two and three is --
MR. LEWIS: Six to one.
CHAIRMAN DICKSON: -- six to one also because Bill
abstained.
Okay. Move ahead.
MR. BRYANT: Thank you, sir. If you would like, I guess Mr.
Bartoe could put those on the viewer.
CHAIRMAN DICKSON: Sure.
CHAIRMAN DICKSON: Ms. Kucko, these photographs that
they're doing, we were very concerned about taking them and not
taking yours. You were out of the room. These were made within 30
days of the ones that were in the packet. So we feel like they're the
same time frame.
MR. LEWIS: Mr. Chairman, I need to amend that.
MR. BARTOE: Mr. Bryant can you see that, the more I zoom
in?
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February 16, 2005
MR. BRYANT: Maybe you should just -- we should just pass
them down the board.
MR. LEWIS: This is March of'04 and their's is January --
CHAIRMAN DICKSON: Of'04.
MR. LEWIS: -- of'04. I think they said March 25th.
CHAIRMAN DICKSON: Okay. So, three months.
MR. BARTOE: It's not going through.
CHAIRMAN DICKSON: It's not going to work?
MR. BRYANT: I would respectfully request that the Board just
view them, if they'd like to.
CHAIRMAN DICKSON: That's what we'll do. That's fine.
We'll get them up here. Tom, we need the photographs.
MR. BARTOE: I got them down here.
CHAIRMAN DICKSON: Oh, okay. Why don't you go ahead
while we're looking at these, or can you?
MR. BRYANT: Thank you, sir. Yes. And in the hope of
brevity, I'd be glad to.
Did those photographs as a person in the industry, how did they
appear to you when you made them of that driveway?
MR. WILEY: It seemed okay to me. But, I mean, you know,
after traffic after, maybe recreational traffic on it, things change,
picture wise, as far as what an original driveway looks like, then what
they do two or three years later.
And if you experience a hurricane, a rainy season, some of these
factors, you have no -- nature, sometimes -- trees, tree roots, all these
things. So, like I said, it appeared that it wasn't, you know -- it
appeared satisfactory to me. But, the deviations in it, like I said,
recreational vehicles and things like that, can all make holes. Water,
where improper base is not installed, can also bring the raveling, or
top of the asphalt. Sometimes the moisture in it. So, especially when
you back in and turn out in an area that exist. But, most of the time,
sealing will eliminate most of it, and even protect it from gas and oil
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February 16,2005
stains. Like, I think, Richard had said something about that, you
know, you have oil and gas and these continually can make holes in
asphalt very abruptly where people park, and tend to park their cars on
a continual basis. Either with transmission fluid, radiator, gasoline or
any of those things. And, like I said, I have no knowledge of
following every single job I do.
I do know this, you know, generally, if I do receive something
within a period of a year, I always go back and fix it, and then I try to
continue to stay on top of it.
As for something where somebody has done things to the
particular driveway, there's nothing I can do about it. Either through
abuse or recreational parking, or something like that. Driving off the
edges.
As for the cracking, I didn't see that much cracking. This was
within -- I mean, I was out there after a year, and I saw really none.
MR. BRYANT: How many vehicles did you observe on the
asphaltic area?
MR. WILEY: I saw a couple, and then I saw a boat which was,
you know, off to the edge, or whatever it was. So, you know, I don't
understand where the hole came from, other than the fact that maybe
the boat might have been parked there, and might have caused --
where a jack stand. I mean, that's about -- it appeared the size of it.
Now my father-in-law went out there a couple of times and
fixed some holes, patched them in. He probably went out on three
different occasions. And, like I said, the only problem exists is, that
underneath that lies not the proper base, you might say, and, you
know, she was basically informed of that. You know, it was as is
basis. That's kind of like the contract was.
And generally, most of the time, we don't require any money up
front. People are satisfied. That's it. And, basically, it's done and
over with. If they have grass or something growing through it, you
know, we try to fix it, and there's a lot of that that occurs, so --
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February 16, 2005
But in this case, I mean, you know -- and as for the cracking, I
didn't see any within the first year. Concrete cracks. I've seen
concrete crack within the first 10 days. So, if we were in the business
to fix all the cracks, we'd probably never -- it would never end. But, I
mean, you know, we don't guarantee against cracks or things like that.
And it basically, in this case, you know, we tried to do an as is, best
we could do with what the person could afford, so --
MR. BRYANT: Mr. Wiley, what type of license do you hold in
Collier County?
MR. WILEY: A paving contractor's license.
MR. BRYANT: And all of the testimony here today, and based
upon that, do you have an opinion, or a feeling, as to whether or not
your work met generally accepted standards in Collier County?
MR. WILEY: Yes.
MR. BRYANT: What is that opinion?
MR. WILEY: Well, workmanship was done in a proper
manner. Everything was machine done. Put in properly, tamped in.
And the job actually looked fine after we got done with it. And as for
what, you know, people do after, you know, it's sometimes mind
boggling. You know, I've seen garbage trucks, I've seen recreational
vehicles, four-wheelers go over edges of things and then people say
their driveway cracked or they broke off the edges. And I don't know
what people do after we leave, so, I mean, it's uncontrollable to me.
But after -- I went back in a year. I mean, there wasn't -- there
may have been one tiny crack and maybe a couple little holes, but, I
mean, I couldn't understand where the holes were, other than the fact it
may have been where somebody placed a jack stand either, you know,
through the use of a recreational vehicle and that's how they became
that way. And I've seen it many times. But usually, most of the
people don't -- they understand, and this case where they turn out,
sometimes they settle and we seal the driveway. Do it for nothing.
We fix areas all the time. And I've even seen where people drove over
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February 16, 2005
it with four-wheelers and broke the edges off, or caused cracks. So,
that's about it for me.
MR. BRYANT: Thank you, Mr. Wiley. I don't have any
further questions, Mr. Dickson.
CHAIRMAN DICKSON: Mr. Zachary?
MR. ZACHARY: Mr. Wiley, you've testified that we talked to
Mrs. Kucko when you first went out there.
MR. WILEY: I was there.
MR. ZACHARY: You were there?
MR. WILEY: Sure I was.
MR. ZACHARY: And you heard her testify that she's never met
you.
MR. WILEY: No, she's met me.
MR. ZACHARY: How do you explain the fact -- never mind.
MR. WILEY: She said we did it in April or May, and we were
there in February, sir.
MR. ZACHARY: Okay. You've testified that it's very
important that you get the base coat down underneath the asphalt; is
that correct?
MR. WILEY: Some cases it is, and some cases it isn't. If the
person can't afford it, well then, you know, they -- many times they
only get what they can afford.
MR. ZACHARY: But, so, you would consider -- whatever
people want, you'll do it whether or not you know it's going to be right
or not; is that right?
MR. WILEY: I do what they can afford to do. Okay? It's like
building a house or having extras, or whatever it is.
MR. ZACHARY: You didn't answer my question.
MR. WILEY: It's done to the best of my ability. That's all I
can tell you, sir.
MR. ZACHARY: But you know if you don't put a base coat
down there, then the job is not going to be the best job that you can
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February 16, 2005
do?
MR. WILEY: Sometimes it is. Sometimes it works out. Just
depends on how thick you put the asphalt and what the people do with
that particular area. I've put in tiny sidewalks and stuff with no base
and they've lasted for five, six, seven years.
MR. ZACHARY: Well, then, knowing that you weren't going
to put a base coat down, do you think you put on the asphalt thick
enough to do a good job?
MR. WILEY: Yup. Did it as good -- like I said, I put it as thick
as, you know, what normally any other contractor here in town does.
I think they put it one inch, is what they recommend here.
MR. ZACHARY: Well, now -- it's important to get a base coat
underneath the asphalt, and you know that you're not going to be
putting it there. And you know, from experience you said, that you
know that the asphalt -- or the driveway, or whatever the job -- is not
going to last that long, unless you put that base coat on there. Why
wouldn't you put it in the contract, just to cover yourself?
MR. WILEY: Sometimes people -- when you're out in the
Estates, okay, they may not want to do another area, and they say, I
only have $5,000. And sometimes those driveways have been in for
10 years that I put in, and the base they had there is fine, and there are
no problems with that driveway. And the people know that there's
different kinds of windows, or different kinds of bases, or whatever it
might be. And I'm not going to go to lengths to sit out here and every
individual -- separate every single one because, sometimes the base
works out and is fine, and I can't test every single soil sample. All I
do know is, is that if a person wants to pay to have the base put in,
that's fine. Most of them do. Okay? Some of them don't. Or some of
them cannot afford that. But sometimes the driveways last just as long
without putting any base in, as they do with doing all the extras, and
they got cracks in them within six months.
I just did a guy, he had a couple that sunk. Okay? And we put
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February 16,2005
eight inches of rock in there. So, it makes no difference. I mean,
sometimes in a situation if you think the base might be okay, or it
might -- you don't know until you get into it, and if you do an as in
thing, well, I mean, you know, it's -- and you have no problems within
a year, which we really didn't feel like we had the problems that -- you
know, she's explained to us now, but, I mean, you know, when I went
out there in a year, the driveway was not in bad shape at all. Okay?
And it might have had a couple of small holes in it. It might have held
a little bit of water, but as for, you know, me taking a soil sample,
doing an engineering job, I can't do that on every single one. So, and,
you know, it's -- that's what I said is as is. Like I said, sometimes the
base -- the base was the same in the lane as it was in the turn out area.
Now, the lane, she didn't say she had a problem with, so, I
guess, maybe the base might have been okay there. I don't know.
Like I said, if a person wants to tear it all out and put brand new
rock in, that's fine. And it still might fall apart. So, which, I just had
one do two months ago, and I went back and fixed the whole thing.
But -- and I put eight inches of rock in it and rolled it, settled it and
everything else and I still had problems with it. So, but I did do the
base. I knew what I was getting into. And, you know, I suffered,
even though I went ahead and did the base. So it's not necessarily
every situation. It doesn't matter whether it's concrete, asphalt, what it
IS.
MR. ZACHARY: My point was, you didn't put it in the
contract that it was going to be as is, did you?
CHAIRMAN DICKSON: No, we just did -- we did the best of
our ability. Workmanship was there, machine done.
MR. ZACHARY: I guess the answer is no.
MR. WILEY: Smooth finish.
MR. ZACHARY: No further questions.
CHAIRMAN DICKSON: No further questions. Okay. Any
questions of the Board? Go ahead.
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February 16,2005
MR. BLUM: A number of us are contractors here, and a
number of us have been in very similar situations in various fields,
plumbing, electric, mechanical, AC. That happens to be something I
know a little bit about. And, invariably you'll get customers that they
want the job done. You really want to do the job because you want
the work, which is understandable, and you say, well, this is what we'd
like to do, and it costs X amount of dollars, well, yeah, but if you want
to do it this way, you can, but I need to put it down right now that you
are taking the responsibility for me not to do that.
Now, when you say to me, I can't check every job, and I can't be
responsible. Yes, you can. And, yes, you should. That's just from me
to you. Okay. Ain't no way on God's earth that that job gets done
without it saying as is and the lady signs it. And I kind of sort of think
you probably know that. That's my personal opinion.
Are you saying here patches? Fred went back and patched it a
number of times?
MR. WILEY: There were two or three holes.
MR. BLUM: How many times did Fred go back?
MR. WILEY: Probably twice, or three times.
MR. BLUM: Twice. Was there a work order written?
MR. WILEY: Absolutely not.
MR. BLUM: No work order?
CHAIRMAN DICKSON: No.
MR. BLUM: No size of how much Fred did? When he did it?
Whether somebody was home and said, oh, gee, thanks, Fred, and
initialed it? Or the lady was called, and said Fred's going to be here
on Thursday, did you notice the patch was done and you make a note
of it? None of those things were done?
MR. WILEY: Mrs. Kucko works, teaches. We just went out
and took care of it.
MR. BLUM: Does she have a cell phone? Have you ever
called her and left a message?
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February 16, 2005
MR. WILEY: I called the house, I think. I might have called
the cell phone. I don't know.
MR. BLUM: Again, I'm talking as one contractor to another.
Okay? And I'm appalled. I'm appalled. I'm not perfect, and God
knows --
MR. WILEY: No, I know.
MR. BLUM: -- All of us have had our share of situations.
You've left yourself so wide open here for bad things to happen, it's
just amazing. So there's no dates on any contracts. There's no work
order signed. There's no documentation of anything that was repaired,
when it was repaired, who repaired it, or the time or date it was done.
Is that what you're saying?
MR. WILEY: Yes.
MR. BLUM: Okay. Thanks.
CHAIRMAN DICKSON: Any other questions?
MR. JOSLIN: I'd like to hear from, now that Dr. Sealcoat, I
think, is here.
CHAIRMAN DICKSON: Well, no -- any questions of the
present witness?
MR. LEWIS: Yes, Mr. Chairman.
CHAIRMAN DICKSON: Yes.
MR. LEWIS: Mr. Wiley, thank you very much for being here.
I appreciate what you're going through, and Mr. Bryant, and also all
the members that are here for your defense.
What type of prep work did you do to the base that is existing?
MR. WILEY: Just graded it, sterilized it, and compacted it with
a roller.
MR. LEWIS: By sterilizing, what method was used?
MR. WILEY: I put Pramatol, put Prosecutor down, make sure
the weeds weren't coming up through.
MR. LEWIS: Did you put any type of tar base down?
MR. WILEY: Did not. Absolutely none.
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February 16, 2005
MR. LEWIS: In your professional opinion, prior to applying
this coat of asphalt, what was the condition of the base?
MR. WILEY: The condition of the base was 50/50, iffy. Some
of it was good shape. There were parts of it. There may have been
sections that, you know, once you get into the grading it, you might
have had a soft spot. And, you know, we don't go through and check
every single one. Like I said, if I'd known the circumstances now, I
probably would never have done the job. Because, you know, for
what I've gone through for this, I mean, you know, basically it wasn't
worth it. I mean, I'm not -- I can't go and, you know --
MR. LEWIS : We understand. Like I said, the majority of the
Board are contractors. So we understand. We also have consumers on
the Board also. Which brings me to my next question, if it was 50/50
iffy, in your words, why would you pave over it? Why would you not
stop the project at that point, pick up the cell phone, which Fred had
had contact with the customer, and call him -- call her and say, look,
we can't do this in good conscience?
MR. WILEY: Well--
MR. LEWIS: If we did this in good conscience, we're wrong,
because there is no good conscience to do this.
MR. WILEY: Here's the situation. Fred had said -- and, you
know, she said this is all I've got, $1,500. I can't spend any more, and
we probably, would have been the best thing to do is just completely
pull off the job. Okay? But the woman actually wanted it done. We
thought we'd go ahead and do it, and that's what we did. Okay? And
sometimes, like I said-- I mean, I think you can look at my complaints,
or what things I've had problems with, and -- I know the other
gentleman -- I mean, I generally check most everything, but some of
the times -- and in my business you can't go over a 5,000 square foot
driveway, you might miss 200 square feet. You don't know what's
underneath there. I don't care who it is, stumps, or whatever it might
be. And so, I mean, you know, it's one of these things where you --
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February 16,2005
MR. LEWIS: I understand. I don't mean to cut you short, but
you've made those points before. Let's just talk about 200 square foot
versus 5000. What are the approximate square footages of this
particular driveway that we're talking about?
MR. WILEY: Probably 1750 square feet.
MR. LEWIS: And out of that, what percentage do you say at
visiting there in March, late March of '04, what percentage of the
driveway was needing repairs?
MR. WILEY: I'd say probably that end piece down there may
have needed something, and that was basically it. And that's where
the holes looked like somebody either put something in there, either a
jack stand or something like that. And like I said, the rest of the
driveway that had no, say, sitting vehicles or anything on it, had no
problems with it.
MR. LEWIS: So the actual straight driving part of the
driveway, in your professional opinion --
MR. WILEY: I didn't see that it had that, you know, great deal
of problems with it. I mean, the driveway was, I think, three years old
or two years old now, so, I don't know. I mean, it's --
MR. LEWIS: I'm talking about March 25th of '04.
MR. WILEY: No, it wasn't -- the main driveway didn't seem
like it had any problems with it.
MR. LEWIS: Okay. How thick was the coat that you applied?
MR. WILEY: Probably two inches.
MR. LEWIS: Prior to compaction?
MR. WILEY: Uh-huh.
MR. LEWIS: Okay. Is it not DOT procedures in standard use
to apply a tar or asphaltic base coat?
MR. WILEY: Not necessarily. Not in the case if you put it
more than an inch thick, or three quarters of an inch. They generally
put it down -- some of the contractors put down three quarters of an
inch and tact the area. We try to put at least two purchases, which
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February 16, 2005
APEC, by standards say, you know, you can probably -- you don't
need to put tact coat down.
MR. LEWIS: Okay. So, knowing the problems that you've just
stated here today, I find it hard to believe, but it's happened, why
would you not date your contract and put it on the contract that this is
as-is driveway, and this problem mayor may not occur? Try to help
me here.
MR. WILEY: No answer.
MR. LEWIS: Okay.
MR. WILEY: I'm being honest with you.
MR. LEWIS: Couple other things, and I'll finish up quickly,
hopefully. The patches, when Fred went out to do the patches, were
they caused, in your opinion, by what?
MR. WILEY: I don't know. I looked at it and it looked like
somebody just, you know, like buried their tires in there, you know,
like stopped, backed up, or put like a stand in there of some sort and
just, you know --
MR. LEWIS: So the problems that we're hearing with the
cracking and the raveling and the deteriorating, and falling away, and,
basically, I think -- I'll paraphrase and not quote -- Ms. Kucko said
that she thought the driveway was going back to the original look of
the gravel. You didn't see or experience any of those problems in '04?
MR. WILEY: It was just raveling. The top rock was just
coming off. But, here again, I mean, you know, sealing usually
eliminates most of it, so, I mean, if people have turn areas like that, it
happens all the time.
MR. LEWIS: Okay. A couple final questions. You mentioned
something about other complaints. Have you had other complaints in
this county?
MR. WILEY: If I had, I corrected them to satisfactory.
MR. LEWIS: Were any formal complaints, or just phone in
complaints?
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February 16,2005
MR. WILEY: Phone in mainly. There was a couple that might
have been that were formal. And, I mean, I corrected them, whatever
it was. I had grass, or something like that of nature, which, you know,
might have been an issue. I don't know. I've had them, but I try to
correct them.
MR. LEWIS: Okay. Mr. Bartoe, can you help us with that?
Have there been any licensing complaints against B & W?
MR. BARTOE: There was one that came before the
Contracting Licensing Board on May 15, 1996. And there were four
charges on that complaint for violating four different sections of the
ordinance, Section 4.1.7, which is falsifying or misrepresenting any
material fact in his application and supporting papers for the purpose
of obtaining a Certificate of Competency. 4.1.10, which is failing to
properly correct faulty workmanship.
MR. BRYANT: Mr. Dickson, just for the purposes of the
record, I have to object to this.
CHAIRMAN DICKSON: Okay. Your objection is noted. Go
ahead, Mr. Bartoe.
MR. BARTOE: And Section 4.l.12, failing to claim, or
refusing to accept, certified mail directed to him. And Section 4.1.13,
failing to maintain a current mailing address.
MR. LEWIS: Well, do you have the results or findings of fact
at that hearing?
MR. BARTOE: At that hearing, sir, Mr. Wiley was found in
violation. His license was revoked. He was ordered to pay $4,000
restitution and a $2,000 fine.
MR. LEWIS: Thank you, sir.
MR. BARTOE: I might add that, in January 15th of 1997,
which would be approximately seven, eight months later, Mr. Wiley
did reappear before this Board to reconsider revocation, and I do
believe Mr. Bryant represented him at that time, and his license was
reinstated at that time.
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February 16, 2005
MR. LEWIS: Thank you. Any response to those?
(No response.)
MR. LEWIS: Thank you. That's all, Mr. Chairman.
CHAIRMAN DICKSON: Any other questions?
MR. BESWICK: Yeah.
MR. BRYANT: Mr. Chairman.
CHAIRMAN DICKSON: Wait, wait, wait. We're completely
out of order here. Go ahead.
MR. BESWICK: Mr. Wiley, your company actively sought out
Ms. Kucko to do this job?
MR. WILEY: We were down the road, like I said, with Jack
Kraft, and we couldn't put it down. And then, finally, Jack brought
some rock in and we fixed it up and we could do it. So, I mean, you
know, Fred had talked to her, which she was down the road. So we
just, like I said, that's why we did the job, basically.
MR. BESWICK: Does that happen often?
MR. WILEY: It happens sometimes. People have sprinkling
systems different things like that, or they'll cancel out. They'll call in.
They'll -- you have one or two a week. I've had two this week
already. Okay? People didn't get their trees cut. Supposed to be over
there, brought the base rock in, can't do the job. You have to order the
mix at APEC, or one of the companies usually the night before.
Okay? When you do that, you're stuck with the material. It makes no
difference. Bottom line. And sometimes when you've got 50 or 60
tons that you've ordered for the job, you need to find a place to do it.
Like I said, in Kraft's case, Jack was good enough to get the rock
in there so we could get the equipment back there. Which I was doing
a path for him. And, like I said, there's times people come up, ask for
jobs down the road, or do this sort of stuff, and, I mean, you know, we
usually -- people stop you all the time when you're doing a job. So,
like I said, it's not just -- you have them all the time, so --
MR. BESWICK: Thank you.
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February 16, 2005
MR. JOSLIN: I just have one quick question. Would you
please, just for the pleasure of the Board, tell me who Fred is?
MR. WILEY: Fred is my father-in-law. Okay? And he's in
business with me, and he's basically retired. Okay?
MR. JOSLIN: So he's an active, technically, what, salesperson?
He goes out --
MR. WILEY: That's basically all he's done, you know. I mean,
he doesn't install. He's doesn't do any of the above, so --
MR. JOSLIN: He's representing you in a sense and your
company?
MR. WILEY: Exactly, exactly. And we have a company up
north and we're all partners. Like I said, my brother-in-law and other
brother-in-law, so --
CHAIRMAN DICKSON: Other questions?
MR. BLUM: Yeah. Mr. Wiley, you said in retrospect -- quote
me if I'm -- correct me if I'm wrong -- that you probably wouldn't have
taken this job knowing then what you know now, if you'd had been
here and not been on the scene? Is that your feeling?
MR. WILEY: If I had known it would cause this much
problem, like I said, but --
MR. BLUM: I'm curious to know, sir, knowing that now,
seeing what's developed, involving your attorney and all these things,
why not just end this before it got this far, and let's just move on? I'm
just curious.
MR. WILEY: Here's the situation. Okay? What happens is, if
you put a layer of asphalt over the existing part that you've already
got, and the basis is there --
MR. BLUM: That's not what I'm asking.
MR. WILEY: Okay. And you resurface or do anything like that
or try to redo something, then the person might not accept it further.
CHAIRMAN DICKSON: The question.
MR. WILEY: Huh?
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February 16, 2005
MR. WILEY: The question.
MR. BLUM: That's not what I asked.
MR. WILEY: Oh, okay.
CHAIRMAN DICKSON: Be more specific in your question.
MR. BLUM: Why didn't you just say, listen, it didn't work out.
I'm sorry. Here's $1,500 bucks, let's move on?
MR. WILEY: Because the woman didn't -- after a period of a
year, she didn't seem like there was a big concern. Like I said, I mean,
this has just progressed, progressed on and on and on and on after it
passed a year.
MR. BLUM: The problem is, part of it though, that you're not
in town for her to complain to.
MR. WILEY: Oh, yes, I've been here, and I called her on the
phone, yes, I have. That's incorrect.
MR. BLUM: Well, we have got diametrically opposed
testimony for that.
MR. WILEY: Well, she didn't know when I did the driveway.
Like I said, it was done in February, and she said April or May, and I
wasn't even here then.
CHAIRMAN DICKSON: Next question.
MR. BLUM: It really would have behooved everybody to have
dated documents. We might not have had half of this if we had some
dated documents.
MR. WILEY: If she had a cancelled check, it would solve it all.
CHAIRMAN DICKSON: Next question. We're being very,
very redundant. I don't need to hear the same story 10 times, so, let's
be more specific here. Other questions? Go ahead. Pause for just a
minute.
MR. BARTOE: Mr. Chairman, does she need a break maybe?
CHAIRMAN DICKSON: Yeah. Five minutes. That means
11 :23. No smokes. 11 :23, we start back up. No smoke break.
(Whereupon a brief recess was taken.)
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February 16, 2005
CHAIRMAN DICKSON: Call this Board meeting back in
session. Where we left off is, we had -- the Board had finished asking
the witness questions. Any redirect, Mr. Zachary?
MR. ZACHARY: No redirect.
CHAIRMAN DICKSON: Okay. Your next witness, please.
MR. BRYANT: I have one question in redirect if I might, Mr.
Dickson. It's very brief.
Mr. Wiley, I want to point out paragraph six in your contract. It
says, this contractor is not responsible for grass growing through new
asphalt overlays, or when asphalt is applied on existing lime rock.
Why is that provision in your contract?
MR. WILEY: Just so -- just to inform the people that they can
read that and they can see it in black and white. And sometimes it
becomes an issue. So, that's basically it.
MR. BRYANT: And was that applied over existing lime rock?
MR. WILEY: Yeah, it was.
MR. BRYANT: No further questions.
CHAIRMAN DICKSON: Okay. Your next witness.
MR. BRYANT: I call Dr. Sealcoat.
CHAIRMAN DICKSON: We've lost him again.
MR. BESWICK: The doctor is not in. He's in surgery.
CHAIRMAN DICKSON: The doctor's in the building?
MR. LEWIS: Mr. Chairman, maybe we can deal with those
photographs.
CHAIRMAN DICKSON: Mr. -- How can I get Michael up
here?
MR. NEAL: Somebody has to call him as a witness.
MR. WILEY: Yeah, I know, and it's defense right now, so I
can't even get him up here.
MR. NEAL: Well, the prosecution has--
CHAIRMAN DICKSON: Okay. You've got--
MR. RUSSELL: Good morning, Board.
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February 16, 2005
CHAIRMAN DICKSON: I need for you to state your name and
have you sworn in.
MR. RUSSELL: My name is Ward Russell. Dr. Sealcoat.
(Speaker was duly sworn.)
MR. BRYANT: You can put your hand down, Mr. Russell.
How are you employed, sir?
MR. RUSSELL: Uh?
MR. BRYANT: What type of work do you do?
MR. RUSSELL: I pave driveways and I seal coat parking lots.
MR. BRYANT: And how long have you been doing that?
MR. RUSSELL: Twelve years.
MR. BRYANT: And do you do that in Collier County?
MR. RUSSELL: Yes, Collier County and the city of, yes.
MR. BRYANT: I want to show you what's been placed into
evidence as Defense Exhibit 1 and ask you is that your signature?
MR. RUSSELL: Yes, it is.
MR. BRYANT: And did you go and look at Ms. Kucko's
driveway based upon Mr. Wiley asking you to do that?
MR. RUSSELL: Yes, I did, about a year-and-a-half ago.
MR. BRYANT: And when you viewed it, did it reflect what is
in that statement that you made there?
MR. RUSSELL: Yes. The driveway looked fine to me, other
than just a little raveling and it needed sealer at that point. From what
I understood how this has transpired and come in to be, I don't know
about the base, I don't know what was done with the machine work.
All I know is how it looked. At the time, there were boats on it.
There looked like there was raveling and graveling from the asphalt
being turned on, as if the trailer was backed in and whatnot. And it
just needed sealer, so --
MR. BRYANT: Will asphalt be damaged by vehicles turning
on it?
MR. RUSSELL: Yes. In the first 90 days. You're not
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February 16, 2005
supposed to do power steering turns on asphalt.
MR. BRYANT: And does it take a period of time for asphalt to
cure?
MR. RUSSELL: Yes, 90 days. In my opinion.
MR. BRYANT: In that document, Mr. Wiley wrote that based
upon your statement?
MR. RUSSELL: He came -- I came to his job site one day, and
after I had gone out and looked at the driveway, and I was telling him,
what was out there, and we wrote this according to what I had seen.
He wrote it, and I singed it.
MR. BRYANT: Does that truly and accurately reflect what you
told Mr. Wiley?
MR. RUSSELL: Yes, absolutely.
MR. BRYANT: And what you saw?
MR. RUSSELL: Yes.
MR. BRYANT: No further questions.
CHAIRMAN DICKSON: Mr. Zachary?
MR. ZACHARY: I think you answered the question. You
didn't write it, but you signed it?
MR. RUSSELL: Yes. We, we -- he wrote it while I was there.
We were -- we were on the job together.
MR. ZACHARY: And you're telling us that you can't make a
turn on asphalt for 90 days after it's finished?
MR. RUSSELL: You're not supposed to do power steering
turns. You can turn, but you want to try to keep the wheels rolling,
whereas a trailer has tires that kind of give and shift on a turn. You
just have to be extra cautious for 90 days.
MR. ZACHARY: I don't have anything further.
CHAIRMAN DICKSON: Any questions of the Board?
MR. LEWIS: Yes, sir.
MR. WILEY: Go ahead.
MR. LEWIS: Thank you, Doctor, for being here.
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February 16, 2005
MR. RUSSELL: Yes, sir. Thank you very much. Have a good
day.
MR. LEWIS: No, no -- I'm still. It's the cross-exam, or the
ruling that you were talking about earlier.
MR. RUSSELL: Okay.
MR. LEWIS: First question, what is your license in Collier
County? What are you licensed to do?
MR. RUSSELL: I'm licensed to do paving and sealing.
MR. LEWIS: As a paving contractor?
MR. RUSSELL: Yes, sir.
MR. LEWIS: Okay. Why did you not put your contractor's
license on the --
MR. RUSSELL: We did. The license number is on here.
MR. LEWIS: It looks like an Occupational license to me.
MR. RUSSELL: That's the number, as far as I was given.
MR. LEWIS: Have you gotten a contractor's license from
Collier County?
MR. RUSSELL: Yes.
MR. LEWIS: Okay.
MR. RUSSELL: I think that's the other number. There's two
numbers. There's a license number then there's the contractor's license
number.
MR. LEWIS: That's the number on the form.
MR. RUSSELL: There are two. I think this is the other one.
That's what's on my card.
MR. LEWIS: Do you have -- happen to have that with you,
your contractor's license number?
MR. RUSSELL: I think it's -- I don't know it exactly by heart.
But I know it's 2020235, I believe.
MR. LEWIS: Okay. Thank you. Are we still checking on that,
Mr. Bartoe?
MR. BARTOE: I have the answer office staff provided.
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February 16, 2005
MR. LEWIS: Okay. Go ahead, please.
MR. BARTOE: The number on that document is a '92
occupational license for sealing and striping. August 8th of '03, Mr.
Russell did get a paving license after receiving two citations from Mr.
Ossorio for paving without a license.
MR. LEWIS: Okay. Getting back to the meat of the crux, I
guess I would want to know, why were you at the driveway again?
You were asked by Mr. Wiley?
MR. RUSSELL: I was asked to come out and take a look at it. I
thought oh, it was -- Charlie was gone at the time. He was up north.
And this was, I believe, mid summer back then. I had gone out to see
it. I thought maybe I could do the seal coating, so I left the lady -- a
card at her door, and saying I would seal for, I think, $250 or $300.
MR. LEWIS: Okay. At the time you were there, the disrepair
that you saw was mainly, in your opinion, contained where?
MR. RUSSELL: It was raveling of the driveway, basically at
the turn of the parking. That's all I recall. It was a long time ago. It
was a year-and-a-half ago.
MR. LEWIS: I understand, and I appreciate your thoughts.
And at that time, you still stand by your statement that you felt the job
was applied properly, and in good condition for the time that it had
been down?
MR. RUSSELL: It looked fine to me. I just thought it needed
sealer.
MR. LEWIS: All right. Thank you.
CHAIRMAN DICKSON: Any other questions?
MR. BESWICK: Yeah, I have a quick question.
CHAIRMAN DICKSON: Go ahead.
MR. BESWICK: You testified a little bit earlier that Mr. Wiley
wrote out this letter and you signed it?
MR. RUSSELL: Yes, yes.
MR. BESWICK: And now you just get finished saying that he
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February 16, 2005
was up north when you went over and inspected it?
MR. RUSSELL: No, it was after he came back. He had come
down -- he had come down -- he called me during the summer to go
look at the driveway. Then when he was down, we got together. He
said, this is going to come before the Board, and to make a statement.
I started to write something out, but he couldn't read it. So we just --
he happened to write it while we were on the job. I was on my way
somewhere, and I popped in, and we went over everything and I
signed it, so, yes sir.
CHAIRMAN DICKSON: Anybody else?
MR. JOSLIN: In our packet, we have a series of pictures that
are in here --
MR. RUSSELL: Yes.
MR. JOSLIN: -- depicting the driveway and its appearance. In
the picture that it gives, it shows several areas where there's holes in
the asphalt.
MR. RUSSELL: I never saw that.
MR. JOSLIN: This is not something that you inspected?
MR. RUSSELL: No.
MR. JOSLIN : Your inspection was done before these pictures
were taken?
MR. RUSSELL: I think this has all come in the last year or so
from deterioration, it sounds like, from the base. That's what it sounds
like to me. I don't understand how the base of the driveway could
have gotten so bad, except from the rains of the summer. I didn't see
any holes in it. I didn't see any cracks. All I saw was the raveling of
the surface, of the asphalt in the turn areas, it looked like.
MR. BLUM: When were you there exactly? What was the date
you were there?
MR. RUSSELL: I'd say September of'03, it would have been.
MR. BLUM: So from February or March -- we don't know yet
which through September --
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February 16, 2005
CHAIRMAN DICKSON: I thought the letter was dated--
MR. RUSSELL: The letter is dated 3/2/04, and that was March
-- it was just before Charlie had come down. I think Charlie comes
down in October, and it was September of '03 that I had seen it.
CHAIRMAN DICKSON: Okay. Any other questions?
Redirect?
MR. ZACHARY: I've got one more question. Did you ever
talk to Mr. Wiley about this, other than to go over there and take a
look at it?
MR. RUSSELL: I just told him to go take care of the lady. I
just said, you know, do whatever it takes to make her happy. That
was at that time, and it seemed that there were other issues, which I
didn't want to get involved in.
MR. ZACHARY: Didn't you tell him that he should just pay
her the money back?
MR. RUSSELL: No, I never said that. I never said anything
about money going back. Just do what it takes to make -- if it needed
sealer at the time, then do it. If -- it sounds like they've done the
patching to fill the holes. If it needed an overlay, then maybe that's
what it needed. I don't know.
MR. ZACHARY: Okay. When you signed that letter --
MR. RUSSELL: Yes.
MR. ZACHARY: -- you just said they patched the holes.
MR. RUSSELL: That's what I heard.
MR. ZACHARY: Did you see the holes?
MR. RUSSELL: No, I did not see any holes at the time.
MR. ZACHARY: Nothing further.
CHAIRMAN DICKSON: Okay. Any other questions?
MR. BRYANT: No, sir.
MR. BLUM: Ms. Kucko said that -- can we go back on this?
When Mrs. Kucko gave her testimony, she said the guy that came out
for Mr. Wiley, and she didn't remember his name, had made a
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recommendation that he said what should have been done to correct it.
Does anybody else recall that? The guy came out and recommended
that they redo it or something.
MR. JOSLIN: Something like that.
CHAIRMAN DICKSON: She never testified to this individual.
MR. BLUM: She said whoever came out. And evidently Mr.
Ward is Mr. Ward and he came out.
CHAIRMAN DICKSON: We can address that once we finish
with this witness, which the county will have to do that. I can't be
asking Mrs. Kucko questions.
MR. BLUM: I'm just wondering if we have that there, if we can
ask this gentleman if in fact he said that.
CHAIRMAN DICKSON: Did you ever talk to Ms. Kucko?
MR. RUSSELL: I thought that I might've talked to the lady on
the phone, and that I'd been out there, and I recommend sealer. That's
what I seem to recall. I believe that was me for that aspect. I don't
know if someone else was out there representing Charlie's company.
MR. LEWIS: Mr. Russell, did you, in fact, seal the driveway?
MR. RUSSELL: No, no, I didn't.
MR. LEWIS: Thank you.
CHAIRMAN DICKSON: Any other questions?
(No response.)
CHAIRMAN DICKSON: Next witness.
MR. BRYANT: This concludes our case.
CHAIRMAN DICKSON: Okay. One more round. Mr.
Zachary, anyone you want to --
MR. ZACHARY: I'd like to call Mr. Ossorio as rebuttal.
CHAIRMAN DICKSON: Okay. You can have a seat--
MR. RUSSELL: Thank you very much.
CHAIRMAN DICKSON: -- Doctor. I like your outfit.
MR. LEWIS: You should see the car.
CHAIRMAN DICKSON: What's your car look like?
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February 16, 2005
MR. LEWIS: Probably an ambulance.
MR.OSSORIO: Good afternoon. For the record, Michael
Ossorio, O-S-S-O- R - I -0.
CHAIRMAN DICKSON: I need to have you sworn in.
(Speaker was duly sworn.)
MR. OSSORIO: Good afternoon, Mr. Zachary.
MR. ZACHARY: Is it afternoon?
CHAIRMAN DICKSON: It's getting close.
MR. ZACHARY: Mr. Ossorio, have you ever discussed this
particular complaint with Mr. Russell, who was just testifying here?
MR. OSSORIO: Sure have.
MR. ZACHARY: And what was the nature of this discussion
that you had?
MR.OSSORIO: The nature was, when was the last time he was
on the project, and he quoted by saying, it's been a long time since he's
seen it. And he discussed it with Mr. Wiley that he should return the
$1,500 and be done with it, on several occasions.
MR. ZACHARY: Nothing further.
MR. OSSORIO: And it was just yesterday, as a matter of fact.
CHAIRMAN DICKSON: Any other -- now that I -- oh, Mr.
Bryant, would you like to cross?
MR. BRYANT: Mr. Ossorio when you talked with this
gentleman that represents Dr. Sealcoat --
MR. OSSORIO: That's correct.
MR. BRYANT: -- how did you happen to be talking to him?
MR.OSSORIO: We have a -- Dr. Sealcoat and Mr. Ward, we
have an ongoing case with an unlicensed contractor that hopefully will
be resolved today. But I talked to him yesterday 11 :30, 11 :35 and we
discussed this case.
MR. BRYANT: And you specifically asked him should he
return the money? Should Mr. Wiley return the money?
MR. OSSORIO: No, no actually, I told him, don't forget the
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licensing board meeting. He said, thank you very much for reminding
me. I said, I forgot all about it. I wasn't going to show up. I said,
well, I'm glad I could be of some help. And we got to talking
referencing the case and he said that, well, I think he should just return
the money. I told him to return the money, quote.
MR. BRYANT: And did he tell you why he told him to do
that?
MR. HOOPINGARNER: No, he did not.
MR. BRYANT: Did he indicate to you that it was just to make
everything go away and just so he didn't have to be here and defend
this matter?
MR. OSSORIO: That's correct.
MR. BRYANT: Is that what you felt?
MR. OSSORIO: That's correct.
MR. BRYANT: No further questions.
CHAIRMAN DICKSON: Mr. Ossorio, before when we were
talking about the previous revocation, you acted like you wanted to
offer some information.
MR.OSSORIO: Well, in the -- for the defense, we did have a
complaint in '04, and the gentleman did take care of the problem, as
indicated before. I have no problems communicating with him, and I
have no problems trying to contact him. So it was on his behalf
anyway, saying that he has taken care of the complaints that we
received in a timely manner.
MR. LEWIS: Mr. Ossorio, when was that complaint that you're
referring to?
MR. OSSORIO: Sometime in '04.
MR. LEWIS: Can you be a little more specific, please?
MR. OSSORIO: It was in Poinciana. I wasn't prepared to bring
that case up.
MR. LEWIS: Let me ask you this --
MR. OSSORIO: First six months of '04.
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February 16, 2005
MR. LEWIS: Okay. Would that have been after this complaint
was registered?
MR. OSSORIO: Oh, yes.
MR. LEWIS: Thank you.
CHAIRMAN DICKSON: Okay. Any other questions? That
ends you, Mr. Zachary. Closing remarks.
MR. BRYANT: I have one redirect, if I might, Mr. Dickson.
CHAIRMAN DICKSON: Okay.
MR. BRYANT: Mr. Hoopingarner, can I ask you one question,
please, sir? If I might ask Mr. Hoopingarner, you're not a former
paving contractor, are you?
MR. HOOPINGARNER: No, sir, I'm not.
MR. BRYANT: You've never done paving work, have you?
MR. HOOPINGARNER: No, sir.
MR. BRYANT: And you have no expertise in the area of
applying asphaltic material, do you?
MR. HOOPINGARNER: No, sir, I don't believe I stated I did.
MR. BRYANT: I understand that, just for the purposes of the
record, I was asking you that.
MR. HOOPINGARNER: No, sir, I haven't.
MR. BRYANT: Thank you, sir.
CHAIRMAN DICKSON: You know all of our investigators
are former cops or detectives or law enforcement.
MR. BRYANT: And I respect them greatly, and they do an
excellent job, but the person that might read this record, wouldn't
know that.
CHAIRMAN DICKSON: Oh, okay. I got you.
MR. HOOPINGARNER: Mr. Chairman, as long as I'm up here
and called for the defense, can I make a little statement here?
CHAIRMAN DICKSON: Sure. Go for it.
MR. HOOPINGARNER: I'm referring to the letter that Mr.
Bryant put into evidence from Dr. Sealcoat. And Dr. Sealcoat states
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in his letter that he did the driveway inspection, and it was done on
March 2, '04. And I believe Dr. Sealcoat stood up here and said he
had done that inspection in September, October of'03. That's all, sir.
CHAIRMAN DICKSON: Yeah, we all caught that.
MR. HOOPINGARNER: I just wanted to make sure.
CHAIRMAN DICKSON: He did the letter six months later.
Okay. Closing arguments, counselors. Mr. Zachary?
MR. ZACHARY: Thank you, Mr. Chairman. I think I'm going
to keep this short. You've heard evidence today that -- some
contradictory evidence -- but the evidence from Mr. Hoopingarner
and Ms. Kucko, whose driveway was paved by B & W Paving,
you've heard her say that the driveway started showing evidence of
disintegration or need of repair within a couple of months of the
driveway being applied. And that she had tried over the summer, and
Mr. Wiley has admitted that he wasn't there over the summer, and
someone came out, and all he did was put a seal coat on it. And she --
you've heard her say that it continues to disintegrate from that point --
it continued to disintegrate. There were holes, there were cracks, and
it disintegrated to the point that it almost seems like it's going back to
the original -- original material, which was, evidently, a lime rock
driveway, because of the crumbling and the poor work.
So I think that, and, you have seen photographs, and heard
testimony that we'll -- that that is enough that the county would ask
that you find the respondent, Mr. Charles C. Wiley guilty of ordinance
violation, namely 4.1.10, faulty workmanship and failure to correct it.
CHAIRMAN DICKSON: Thank you, sir. Mr. Bryant.
MR. BRYANT: May it please the Board. Thank you, Mr.
Dickson, and thank you gentlemen for your attentiveness in listening,
and also having to go through all of the legal ramifications, that I'm
sure that seemed tedious at times. I appreciate the evidence that you
have received, but I respectfully submit to you, the Government's case
is totally devoid of any expert testimony as to the quality of the
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February 16, 2005
workmanship, faulty material, or whether or not the work met
generally accepted standards in Collier County. I submit to you that
the only testimony you heard that directly related to those
requirements was from both Mr. Ward, or Dr. Sealcoat and for Mr.
Wiley, both being paving contractors. I submit to you that if the
county wanted to present the case with that type of expert testimony,
other than just the complainant, who is the most financially involved
person in this matter, they would have brought in a paving contractor
who would have gone out, looked at it, maybe even done test borings
to see what's underneath that asphaltic material, or to see how thick
the asphaltic material is, and that person would then have stood at that
lectern and testified. And that person, being an expert in the industry,
could have testified to whether or not there was faulty workmanship,
faulty material, or whether or not the work met generally accepted
standards.
And as an aside, I want to, again, thank you for your
attentiveness. And one thing I would respectfully request of each of
you, as you review this matter -- and I know you have gone at lengths
to be fair and impartial -- is to not hold against Mr. Wiley -- hold it
against him because of the fact that I raised a number of issues in this
matter. I would submit to you that if I had not done that, I would have
been remiss at my representation of him. And I know it seems maybe
even laborious to the Board, but the record is what we have at the end
of this hearing. And that's what, if anybody has to read it at some
other venue, that's what we are left with. And that's why it's very
incumbent upon me, through Mr. Wiley, to try to put on a record if
anybody has to read that. But, again, I would respectfully request that
you not hold it against Mr. Wiley because of the fact that I represented
him, and I tried to do it to my best ability. And I wasn't trying to
alienate the Board. I have never wanted to do that. I respect this
Board. I have sat where Mr. Neal sits, and I've represented this Board,
and I appreciate what you do. I'm a state certified contractor. And I
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appreciate the people in the industry, but I also appreciate the fact that
when a person does a job that they believe meets workmanship and
generally accepted standards in Collier County, they shouldn't be
required to be held hostage by a person that basically wants a free
driveway.
I submit to you, Mr. Wiley applied the driveway he was
required to. He testified as a person in the industry -- as an expert in
the industry. And Dr. Sealcoat did also that those -- that application of
asphaltic material met that requirement. Whether or not the contract
had a date on it, whether or not it had as is on it, that's not what the
charging document is. The charging document is whether or not it
was faulty workmanship, faulty material, or whether or not it met
generally accepted standards. And I submit to you gentlemen, in all
due respect, that it met that requirement. And I submit to you that the
record is devoid of anybody in the industry testifying it didn't. Thank
you very much, Mr. Dickson.
CHAIRMAN DICKSON: I need a motion to close the public
hearing.
MR. LEWIS: So moved.
CHAIRMAN DICKSON: Second?
MR. BLUM: Second.
CHAIRMAN DICKSON: All those in favor?
CHAIRMAN DICKSON: Aye.
MR. LEWIS: Aye.
MR. BESWICK: Aye.
MR. BLUM: Aye.
MR. JOSLIN: Aye.
MR. HORN: Aye.
MR. BOYD: Aye.
CHAIRMAN DICKSON: So that you all understand totally
what we're doing now, if you ever wondered about people talking
behind your back, that's exactly what we're going to do, but you get to
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sit there and listen to us talk behind your back. You may like some of
what we say, you may dislike some of what we say. Let me
adamantly tell you that no matter what is said up here, we don't want
to hear from you unless we ask you to come back up to the podium
because we need to clarify the question. Okay? First, we'll start off
with Mr. Neal giving us directions.
MR. NEAL: Okay. In this proceeding, the Board shall
ascertain in its deliberations that fundamental fairness and due process
have been afforded to the respondent. However, pursuant to Section
22-202G5 of the Collier County Contractor Licensing Ordinance, the
formal rules of evidence as set out in Florida statutes shall not apply.
The Board shall consider solely evidence presented at the hearing in
the consideration of this matter. The Board shall exclude from its
deliberations irrelevant, immaterial, and cumulative testimony. It
shall admit and consider all over 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 this 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 case, or any other case, unless it
would be admissible over objection in civil court.
Any member of the Contractors Licensing Board may question
any witness before this board. Each party of the proceedings has the
right to call and examine witnesses, introduce exhibits, to
cross-examine witnesses, to impeach any witness, regardless of which
party called the witness to testify. And to rebut any evidence
presented against the party.
The standard of proof in this case, wherein the respondent may
lose his privilege 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
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February 16, 2005
complainant is a heavier burden than the preponderance of evidence
case set for standard civil cases.
The standard established for sanctions other than those affecting
the licenses is that of a preponderance of the evidence however. The
standard in evidence are to be weighed solely as to the charges set out
in the complaint as Ordinance 90-105 Section 4.1.10 as amended, and
Section 22-201 section -- subsection 10 of the Collier County code of
ordinances. That charge is, failing to promptly correct faulty
workmanship, or promptly replace faulty material installed contrary to
the provisions of the construction contract. Faulty workmanship
means work that is not commenced, not continued, or not completed
in accordance with all specifications of the applicable written
agreement.
Faulty workmanship includes any material flaws in the quality
and/or quantity of the finished or unfinished work product. Including
any item that does not function properly as a part of the entire project.
If there is no written agreement provision regarding the specific faulty
workmanship issue, faulty workmanship exist if the work process,
product, or part thereof does not meet the generally accepted standards
in Collier County in relation to the entire project.
Faulty workmanship does not include matters of aesthetics,
unless the aesthetically related item clearly violates a written contract
specification directly related thereto.
These charges are the only ones that the Board may decide upon
in this charge -- pardon me. 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 damages must be directly
related to the charges and may not be for matters not related to these
charges. The decision made by this Board shall be stated orally at this
hearing and is effective upon being read by the Board.
The respondent found in violation has certain appeal rights to
this Board, the courts of this state, and the State Construction Industry
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February 16, 2005
Licensing Board as set out in the Collier County Licensing Ordinance,
and the Florida Statutes and Rules. If the Board is unable to issue a
decision immediately following the hearing because of questions of
law or other matters of such a 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 in
all areas, and if it finds the respondent in violation adopted in the
administrative complaint.
The Board shall also make findings of fact and conclusions of
law in support of the charges set out in the administrative complaint.
If the respondent is found in violation of the ordinance, the Board
shall consider, and order sanctions under the parameters as set out in
90-105.
CHAIRMAN DICKSON: Okay. Gentlemen, what we're going
to do first is find out whether he is guilty of the one charge.
Discussion between us and then we'll go to a penalty phase after that.
I'll start with my opinions, because I want to hear from you guys. I
need your help. Normally I've already decided one way or the other.
Right now I don't like either party, as far as the case is concerned.
The homeowner, educated woman. You would think that when
someone comes to her door, selling in the manner that she was sold to,
that would set off all sorts of alarms, but it obviously didn't, so we
have an innocent homeowner. But we also have an innocent
homeowner that has a Cadillac taste with a Volkswagen budget.
At the same time, I don't care for the way Mr. Wiley does
business. I find it deplorable. I don't like anyone who sells using that
line, or the manner that they do or not covering themselves. And the
doctor is probably a pretty good doctor, because Mr. Wiley, in time
and money, will spend in excess of ten times what it would have cost
him to give her her money back and we never would have had to sit
here for three or four hours going through this. But, at the same time,
I think it was a bargain, because I know that driveway with proper
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base coat -- and, Bill, correct me if I'm wrong -- had to be -- cheap
would have been $4,000. Average price would have been $5,000.
MR. LEWIS: With proper base coat.
CHAIRMAN DICKSON: With proper base coat, so, $5,000.
So I've got a problem both sides. I'm split right down the middle.
You want to go first?
MR. LEWIS: Well, let me just say ditto. I'm the exact same
way at this point. The only thing that I keep going back to is the point
of law, which we're here to decide, is the complaint put in front of us.
The charge in front of us. And the only point that I can even look at is
faulty workmanship that doesn't seem to be a quantity flaw. There's
no unfinished work. We're not sure if there's a product failure. No
one has shown us that yea or nay at this point. We do have two expert
witnesses for the defense that tells us that the product was good when
it was applied. And the testimony that we've heard from the
professional witnesses is, in my opinion, professional opinion, true
witness to what they've said. The raveling does occur on tight radius
turns. Dr. Sealcoat referred to it as a power steering turn. That's
where you basically sit in your car still and you turn your wheels.
We've all experienced it. We've seen in almost every parking lot
we've been in, especially new ones. And that should -- in all realty
that should be brought up to everybody's attention. Unfortunately, as
we all know, we get carried away with business. We're in such a
rapidly moving world, sometimes we negate to put things down in
writing. Sometimes we negate to tell somebody something in person.
So that -- I'm kind of pulled by that myself. Not that -- you know,
hindsight is 20/20, he should have done it. I would have done it. But
especially with this product. But when I asked of the witness, the
defense witness, why he didn't put that down, he didn't really have a
clear answer to me. So, again, like you, Chairman, I'm pulled both
ways.
So, may I point out to the Board that the decision that we need
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to make is upon faulty workmanship, and it says in the charge, faulty
workmanship exists if the work process product, or part thereof, does
not meet generally accepted standards of Collier County. Well, we
have two professional witnesses that said at the time it was put down,
it met it up to approximately a year later, which was the warranty
period for the product.
CHAIRMAN DICKSON: Let me ask one more thing before
the others comment. Mr. Neal, go back to the part on aesthetics.
MR. NEAL: Uh-huh.
CHAIRMAN DICKSON: I think she got a bargain. That's a
$1,500 driveway. But read aesthetics -- and I'm surprised Mr. Bryant
didn't pick up on this -- but we're talking about aesthetics here. It's
still a driveway.
MR. NEAL: I'll repeat that the request of the Board, faulty
workmanship does not include matters of aesthetics, unless the
aesthetically related item clearly violates a written contract
specification directly related thereto.
CHAIRMAN DICKSON: The driveway still functions. Next
comment.
MR. JOSLIN: It's just aesthetics. I have to ditto everything
both of you just said. I'm kind of in the middle. They both made
serious errors in the contract, and in the procedure of getting the
contract. I have to agree with Mr. Dickson, yes, I believe Ms. Kucko
got a deal.
CHAIRMAN DICKSON: Anybody else?
MR. BLUM: Again, I have to do a complete ditto. My feeling
is that Fred was very zealous.
CHAIRMAN DICKSON: Fred. Good old Fred.
MR. BLUM: -- was very zealous. My sense is that it's a
common business practice of Mr. Wiley's organization to do this type
of thing to look for a quick buck, if you will. I think it's incumbent on
a contractor to make it clear what the performance of the job is going
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February 16, 2005
to be. If you did a $500 job and it turns out rotten, it's still on you.
You're the contractor. You've got a responsibility to the public to
make it right. Do the proper job. If the customer doesn't want you to
do the proper job, you've got to make it clear that there's a chance it
will not be proper and they have the opportunity to say yea or nay. It's
inexcusable that there's no language in any part of this paperwork that
this lady had the opportunity to say, gee, maybe it ain't worth $1,500,
even though it's a third of the cost, because it's maybe going to look
like garbage, and I'll wait until I get some more money. To me, yeah,
she wanted a bargain, no question. But B & W wanted that $1,500
bucks just as bad as she wanted the bargain. And I don't think they
did -- they followed professional standards in doing this job, and I
think they know full well that it wasn't going to be aesthetically nice
or a good job down the road.
MR. JOSLIN: That could be a good comment, but maybe it
was never explained to Ms. Kucko of the seriousness involved in it
now.
MR. BLUM: That's very possible.
MR. JOSLIN: All the things down the road that are going to
happen to this driveway.
MR. BLUM: It's incumbent upon the contractor who's the
professional. I mean, I've been in situations where I've had equipment
that may be out of date. Somebody wants a bargain. This equipment
is out of date. The warranty isn't the same. It may not perform the
same. I'm going to write this down, and spell it out, so you
understand. Do you still want to do this?
MR. JOSLIN: Exactly.
MR. BLUM: Please, this is just good common sense. We used
to say cover your butt. If you take a buck or a million, you make it
clear what it's for and what's going to happen in the ramifications.
There's no excuse for that.
CHAIRMAN DICKSON: Anybody else?
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February 16, 2005
(No response.)
CHAIRMAN DICKSON: Okay. So the charge is faulty
workmanship. On that regard, is he guilty of faulty workmanship?
And I need -- if so, I need a motion. If not, I need a motion.
MR. LEWIS: Chairman, can we take a couple minutes and just
think amongst ourselves? I need a couple of minutes to process,
please.
CHAIRMAN DICKSON: You want to meditate?
MR. LEWIS: Please.
CHAIRMAN DICKSON: That's a new one on me.
MR. LEWIS: Is it? You knew I would bring it up then, didn't
you?
MR. NEAL: He won't even play the Jeopardy music in the
background.
MR. LEWIS: That was just in my head, too. Mr. Chairman.
CHAIRMAN DICKSON: Yeah.
MR. LEWIS: Two things bother me. Ifwe could recall Ms.
Kucko as a witness, I have a question for her. And then I think we
would have to leave time probably to rebut that. I have a question
basically -- and maybe someone here can clarify for me. I'm still not
certain whether she was ever totally informed that the product that she
was -- what the product was that she was purchasing.
CHAIRMAN DICKSON: Mr. Neal, I have one question,
because I know it's going to come up. If I recall a witness, I have to
let him be crossed, right?
MR. NEAL: Sure do.
CHAIRMAN DICKSON: Yeah. There you go. Ms. Kucko,
would you come back up to the front podium.
MR. ZACHARY: You might have to reopen the public hearing.
CHAIRMAN DICKSON: Yeah. You have to reopen the
public hearing. I'm not going to let you meditate next time.
MR. LEWIS: Thanks.
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February 16, 2005
CHAIRMAN DICKSON: Okay. I need a motion to reopen
public meeting.
MR. BLUM: So moved.
MR. BESWICK: Second.
CHAIRMAN DICKSON: All those in favor?
MR. LEWIS: Aye.
MR. BESWICK: Aye.
MR. BLUM: Aye.
MR. JOSLIN: Aye.
MR. HORN: Aye.
MR. BOYD: Aye.
CHAIRMAN DICKSON: Against. Nay.
MR. LEWIS: Thank you, Board members. Ms. Kucko, you
need to really think hard on this for me.
MS. KUCKO: Okay.
MR. LEWIS: When Fred came by and you were out watering
your yard and he said he had this left over asphalt that he couldn't pour
next door at Jack Kraft's, at that point in time when he left and came
back, did he at any point in time approach you to inspect the
driveway, to tell you anything about your driveway and the condition
it was in, and before he gave you a proposal, what mayor may not be
the ramifications of what you were about to do?
MR. KUCKO: None whatsoever.
MR. LEWIS: Did he say that, you know, by putting this $1,500
asphalt on here, it's not going to be like a $4,000 job that we're going
to come and put base rock and it's going to last for ten years.
MS. KUCKO: Well, when he started out and first told me that
he had the asphalt and he needed to get rid of it, he only started out
saying that it would be $2,000. And I said, I really can't afford that.
He said, well, can you afford, you know, $1,500? And I said, well--
and that's when I went in to talk to my fiance, and he went next door.
And then when he came back they didn't have it, but since I was being
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such a good samaritan, he'd go ahead and pave my driveway for
$1,500.
MR. LEWIS: Then at any time during that, or up to the time
that they actually paved the driveway, was anything ever mentioned to
you -- obviously, we don't have it in writing -- but verbally, that your
driveway product may not be up to some kind of expectation? Was
there anything that ever was said about what the product would be
when it was finished, or how it would look to you, or how long it
would last?
MS. KUCKO: The only thing he said to me was, I'll do a good
job for you, and I'm sure you'll be happy with it, and you're getting a
good deal. That's the only thing he said to me.
MR. LEWIS: One last question. From the time that he first
approached you with the extra, or excess asphalt, until the time he
paved the driveway, can you give me a time frame?
MS. KUCKO: Within a week.
MR. LEWIS: Okay. Thank you, ma'am. I'm done.
CHAIRMAN DICKSON: Mr. Bryant.
MR. JOSLIN: One last question, did you at that time also after
he had approached you and did this, did you then -- how long was it
before you received a contract -- or the contract that you got on the
same day.
MS. KUCKO: No, the contract was left in my mailbox, because
when I went to pay him the day that he did the paving, I had to leave
work and I was in between jobs, so I went by, and they were in the
process, and I gave him the check and he goes, don't worry about it,
I'll leave -- I've got the contract in the truck. I'll leave it in the mail
box for you.
MR. JOSLIN: This was after the job was completed?
MS. KUCKO: Yeah.
CHAIRMAN DICKSON: Mr. Bryant.
MR. BRYANT: Ms. Kucko, had you ever looked at having your
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driveway paved any time prior to that?
MS. KUCKO: No.
MR. BRYANT: And had you talked to any of your neighbors
about how their driveways were paved?
MS. KUCKO: No.
MR. BRYANT: You realized you were getting an excellent
benefit for the bargain that you had reached for $1,500, didn't you?
MS. KUCKO: Well, my thought was, ifit was originally
offered to me for $2,000, and he was going to lose, whatever money
he was going to lose, obviously, he was still making money if he took
my offer at $1,500. I have no idea what an asphalt paved driveway
cost. I mean, I do now, from listening to these gentleman.
MR. BRYANT: So you don't know whether or not you got a
great deal or not? That's what' you're telling this Board?
MS. KUCKO: All I know is I got it for $1,500 and he only
started out at $2,000. Ifhe would have told me originally it was going
to be $4,000 and he would have dropped to $1,500, yeah, that would
have set off a light bulb. I would have been a little concerned, but
that's not what took place.
MR. BRYANT: Thank you.
CHAIRMAN DICKSON: Anybody else? Thank you, Ms.
Kucko.
MS. KUCKO: Uh-huh.
CHAIRMAN DICKSON: I need a motion to close the public
hearing.
MR. LEWIS: So moved.
CHAIRMAN DICKSON: I feel like a traffic cop up here. All
those in favor.
CHAIRMAN DICKSON: Aye.
MR. LEWIS: Aye.
MR. BESWICK: Aye.
MR. BLUM: Aye.
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February 16, 2005
MR. JOSLIN: Aye.
MR. HORN: Aye.
MR. BOYD: Aye.
CHAIRMAN DICKSON: Closed. Okay we're back to the
discussion phase. Guilty, not guilty of faulty workmanship.
Discussion or motion?
MR. BLUM: I want to make a motion.
CHAIRMAN DICKSON: Go.
MR. BLUM: I motion for the State.
MR. BESWICK: For the what?
MR. BLUM: For the Government's case.
CHAIRMAN DICKSON: You've got to be more specific.
MR. BLUM: Okay. I think Mr. Wiley is guilty as charged.
CHAIRMAN DICKSON: Guilty of?
MR. BLUM: Section -- whatever it is.
CHAIRMAN DICKSON: Which is -- the words. Faulty
workmanship.
MR. BLUM: Faulty workmanship.
CHAIRMAN DICKSON: I have motion. Do I have a second.
MR. HORN: Second.
CHAIRMAN DICKSON: Where is the second?
MR. HORN: Here, sir.
CHAIRMAN DICKSON: Discussions.
MR. LEWIS: I'm not going to support it.
MR. JOSLIN: I'm not either. I can't see where there's any
evidence that shows that he's under faulty workmanship.
MR. BOYD: The problem is that there's no standards that it
seems like these paving contractors are working to. I mean, there's no
permits involved now doing four, five thousand dollar jobs. I think
I'm going to get in the paving business tomorrow.
CHAIRMAN DICKSON: That blew my mind. I mean, $2,500,
he doesn't even have to do a notice of commencement.
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February 16, 2005
MR. LEWIS: You can do a $10,000 paving job and it doesn't
matter, because it's not a permit required job, as long as it doesn't
touch the right of way.
MR. JOSLIN: But you have to get a permit to put up a--
MR. BOYD: If a job was over such and such a dollar amount
you had to --
MR. LEWIS: Only if it requires a permit.
MR. BARTOE: Same thing with flat work concrete, just stay
out of the driveway. You want to pour your whole yard, go ahead.
MR. LEWIS: Well, you might get some environmental issues
from that, but --
MR. BARTOE: Correct.
MR. LEWIS: But no permitting issues.
MR. BARTOE: No permitting issues.
CHAIRMAN DICKSON: Okay. We have a motion on the
floor. We have a second that he's guilty of faulty workmanship.
Allthose in favor?
CHAIRMAN DICKSON: Aye.
MR. BLUM: Aye.
MR. HORN: Aye.
CHAIRMAN DICKSON: Let me see your hands.
CHAIRMAN DICKSON: The first and the second, all those
opposed?
MR. LEWIS: Nay.
MR. BESWICK: Nay.
MR. JOSLIN: Nay.
MR. BOYD: Nay.
CHAIRMAN DICKSON: Motion fails.
MR. LEWIS: Mr. Chairman, if I may, I move that we find that
the respondent, or the defendant at this point, not guilty by the
preponderance, or proof of preponderance of the evidence.
MR. JOSLIN: I second that motion.
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February 16, 2005
CHAIRMAN DICKSON: Discussion? All those in favor of not
guilty of faulty workmanship?
CHAIRMAN DICKSON: Aye.
MR. LEWIS: Aye.
MR. BESWICK: Aye.
MR. JOSLIN: Aye.
MR. BOYD: Aye.
CHAIRMAN DICKSON: Opposed.
MR. BLUM: Nay.
MR. HORN: Nay.
CHAIRMAN DICKSON: The vote is -- I'm losing my head
here. Five to two.
Therefore, there's no need to go into the next phase. I need to
read this real quick. Board of Collier County Commissioners, Collier
County Florida petitioner versus -- if I can find my sheet here --
Charles C. Wiley , D/B/A, B & W Asphalt Paving & Sealcoat is the
respondent, case number 2004-4, license number -- someone help me.
MR. NEAL: 12296.
CHAIRMAN DICKSON: 12296. This cause came on for
public hearing before the Contractor Licensing Board on February
16th for consideration of administrative complaint filed against
Charles C. Wiley. Service to the complaint was made by certified
mail in accordance with Collier County Ordinance 90-105. Hasn't that
number changed? We still --
MR. NEAL: 90-105 as amended.
CHAIRMAN DICKSON: As amended and codified. The
Board having heard testimony under oath, received evidence and
heard arguments respective to all appropriate matters thereupon issues
it's finding of fact and conclusions of law and order of the Board.
Finding of fact that Charles C. Wiley, is the holder of Certificate of
Competency number 12269. That the Board of Collier County
Commissioners of Collier County Florida is the complainant in this
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matter. That the Board has jurisdiction of the person of the
respondent, and that Charles Wiley was present at the public hearing,
and that was represented by counsel. All notices required by Collier
County ordinance 90-105 as amended had been properly issued. And
number five, the Allegations of Facts set forth in the Administrative
Complaint, are approved as adopted and incorporated herein by the
findings of fact. No. Sorry. That's where I stop it.
MR. NEAL: Yep.
CHAIRMAN DICKSON: The allegations of fact as set forth in
administrative complaint are denied.
MR. NEAL: Yup.
CHAIRMAN DICKSON: Herein referenced as findings of fact.
And that ends anything I need to do. I might mention by a split vote
of five to two.
MR. NEAL: That will be shown in the Order. In the order of
dismissal.
CHAIRMAN DICKSON: In the order -- go ahead.
MR. NEAL: No, it'll be in the order of dismissal.
CHAIRMAN DICKSON: It'll be in your order. Okay.
Basically Mrs. Kucko, we're sorry.
MS. KUCKO: That's fine.
CHAIRMAN DICKSON: I know you spent a lot of time. And
the last thing in the world I want to do is send a message out there that
if a homeowner comes in here with a viable complaint, that it's going
to be washed away. But there were some particular problems on this
one. I mean, you do have a functioning driveway. And, yeah, you got
a great bargain.
Mr. Wiley, I think I would talk to your father-in-law. I really
don't like the way he does business. Maybe you need to rein him in a
little bit, or other salesmen.
And Mark Twain always made a statement that I've lived my
business by, educations are expensive no matter how you get it.
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February 16,2005
You've paid a fortune for this. It's a whole lot easier to CY A in the
future, than go through this again.
Or like my company adopted, if I can't guarantee ajob, and I've
got a homeowner saying, we'll just name a price, but I can afford a
new roof right now, even -- because I even put in there no guarantee.
I told the homeowner it won't work. The whole nine yards and got
sued and lost. Even with all that wordage in there. You either do it
right, or you just don't do it. And that sales tactic really stinks,
especially in Collier County. I've got some material left over. But
you paid the price on this one.
MR. BRYANT: Mr. Dickson and members of the Board.
Thank you very much for your time and attention.
CHAIRMAN DICKSON: Next issue up. We can do this real
quick. It's not in the agenda, but Mr. Bartoe, or someone want to
address what we've done -- let me read the letter, if you remember the
last meeting about the hurricane contractors and the hassle that went
on with that. This letter went out to all aluminum contractors. Be
advised the Collier County Contractor Licensing Board has added a
new category for a hurricane awning contractor. And it says in here--
do you want me to read it, or you want to read it?
MR. BARTOE: You can read that. Mr. Johnson has received a
bunch of stuff that he wasn't supposed to receive.
CHAIRMAN DICKSON: Oh, we got everything up here.
Hurricane shutter, awning contractor requires 24 hours -- 24 months
experience with a passing grade of A on the one-hour hurricane
installers test, and a passing grade on a two-hour business and law test.
And means, those who are qualified to install, maintain, repair, replace
shutters and awnings that are designed to protect residential,
commercial buildings from hurricanes and storm force winds and
wind-borne debris, all in accordance with Collier County amendments
to the applicable building codes -- I love the way you suits write -- is
amended by-- from time to time.
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February 16, 2005
Any electrical work connected with the installation of the
shutters or awnings must be done by a licensed electrical contractor.
Only non-structural adjustments to the existing opening may be
performed as part of the work underlying.
Contractors who hold a current Collier County aluminum
contractor, including concrete or aluminum license, on the effective
date of this amendment, are not required to pass this test, but must
apply for this certificate not later than six months from the date of this
letter. And the letter is dated January 20, 2005. So as of June 20,
2005 -- no, it would be July 20, 2005, then they have to take a test.
And you sent this to everybody, right?
MR. BARTOE: I didn't. Office staff did, certified mail.
CHAIRMAN DICKSON: I bet they've loved us, didn't they?
MR. BARTOE: From what I understand, from Mr. Balzano, no.
CHAIRMAN DICKSON: Because I saw--
MR. BARTOE: There was a gentleman here earlier, I think
wanted to speak to you about it, but it appears he left during the
hearing. And I did lay a list up there besides you, Mr. Dickson, of 18
of them that have got the new license already.
MR. JOSLIN: I have one question, because I know I started a
bunch of this. How will-- how now will the county know, or how
will the license -- I guess something in the computer that's going to list
when these people'that we sent all those letters to acknowledge this,
and have come in and went through steps to do this, to get licensed?
Is there a way that we're going to know?
MR. BARTOE: I don't know exactly what you're getting to Mr.
Joslin, other than they have six months. Eight months from now we
see somebody doing shutters and check in the computer and they don't
have the proper license due to the certified mail we sent, we can get
our proof that they were sent notice and didn't comply. So it would be
proper to, at that time, then to issue them a citation for contracting in
that trade without the proper license.
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February 16, 2005
CHAIRMAN DICKSON: Mr. Neal, didn't you say each month
we had to have a list and approve them here on the Board?
MR. NEAL: Yes. Based on the procedure that we set up, we
need to have that list in here, because we're sort of administratively --
what's being done is, the Board is administratively waiving the testing
requirements for all of these people.
CHAIRMAN DICKSON: We need that list.
MR. BARTOE: What list do you want? Of the letter that went
out?
CHAIRMAN DICKSON: No. The ones that have got the
licenses.
MR. BARTOE: I laid a copy right there. It looks like this, Mr.
Dickson.
CHAIRMAN DICKSON: Okay.
MR. BARTOE: I believe there's 18 on there.
CHAIRMAN DICKSON: 18 of them. What do you want me
to do with this, Mr. Neal?
MR. NEAL: What would I propose, based on what the
discussion was before, is that the Board will make a motion to waive
the testing requirement under the hurricane shutter/awning contractor
section of the ordinance so that these people can be licensed under the
ordinance. They're still going to have to fill a full application, which I
guess they have. But this is waiving their testing requirement.
CHAIRMAN DICKSON: And I don't need to name these. I
can just give these to you?
MR. NEAL: Give it to the clerk so that the clerk has it. And it
will be incorporated on the record.
MR. JOSLIN: So moved.
CHAIRMAN DICKSON: I got a second?
MR. LEWIS: Second.
CHAIRMAN DICKSON: Of the 18 that are on here. All those
in favor?
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February 16,2005
CHAIRMAN DICKSON: Aye.
MR. LEWIS: Aye.
MR. BESWICK: Aye.
MR. BLUM: Aye.
MR. JOSLIN: Aye.
MR. HORN: Aye.
CHAIRMAN DICKSON: Opposed.
MR. BOYD: Opposed.
CHAIRMAN DICKSON: I'll give that to you here at the end.
CHAIRMAN DICKSON: Anything further?
MR. BARTOE: Staff has nothing further.
CHAIRMAN DICKSON: Mr. Chairman.
MR. LEWIS: One question. Tom, what -- we never even
thought about the permitting processes for the other contractors. I
know as a general, I can pull contractor permits for hurricane and
shutter installation. Is what we're doing here for County Licensed
Contractors going to affect the generals, or residential, or builders?
MR. NEAL: No, I think it's just -- general is the only ones
allowed to pull the permit for hurricane shutter installation.
MR. BARTOE: I wouldn't think it would affect it.
MR. LEWIS: Because we're being fairly specific in our
language of what hurricane shutter installation is.
CHAIRMAN DICKSON: Your rights come under the State
Statute 489 and we cannot do anything to restrict 489.
MR. LEWIS: Now, I'm not talking state rights, or state
certified, I'm talking county certified contractor generals.
CHAIRMAN DICKSON: They can't do it.
MR. NEAL: Shouldn't affect them.
MR. LEWIS: Shouldn't affect them?
CHAIRMAN DICKSON: Ifit does, they're in violation of
restricting 489.
MR. NEAL: Because the only -- you know, the limitations on a
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February 16, 2005
general, the only thing you can't do are other specific trades. That's it.
CHAIRMAN DICKSON: Okay. Motion.
MR. LEWIS: Mr. Chairman, I move that we adjourn this
meeting.
CHAIRMAN DICKSON: Second. I agree. All those in favor?
Bye.
*****
There being no further business for the good of the County, the
meeting was adjourned by order of the Chair at 12: 14 p.m.
COLLIER COUNTY CONTRACTOR LICENSING BOARD
LES DICKSON, CHAIRMAN
TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT
REPORTING SERVICE, INC. BY DANIELLE AHREN.
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