CLB Minutes 01/15/2020 January 15,2020
MINUTES
OF THE COLLIER COUNTY
CONTRACTORS' LICENSING BOARD
January 15, 2020
Naples, Florida
LET IT BE REMEMBERED that the Collier County Contractors' Licensing
Board, having conducted business herein, met on this date at 9:00 AM in
REGULAR SESSION in Administrative Building "F," 3rd Floor, Collier County
Government Complex, Naples, Florida, with the following Members present:
Chairman: Kyle E. Lantz
Vice Chair: Matthew Nolton
Members: Michael Boyd
Terry Jerulle
Richard E. Joslin
Robert P. Meister
Patrick G. White
ALSO PRESENT:
Michael Ossorio—Director, Code Enforcement
Jonathan Walsh—Chief Building Official
Kevin Noell, Esq. —Assistant Collier County Attorney
Jed Schneck, Esq. —Attorney for the Contractors' Licensing Board
Ruben Martinez—Contractors' Licensing Compliance Officer
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January 15,2020
Any person who decides to appeal a decision of this Board will need a record of the
proceedings and may need to ensure that a verbatim record of said proceedings is made,
which record includes the testimony and evidence upon which any Appeal is to be made.
1. ROLL CALL:
Chairman Kyle E.Lantz opened the meeting at 9:03 AM and read the procedures to be
followed to appeal a decision of the Board.
Roll Call was taken; a quorum was established; six (6) voting members were present.
2. AGENDA-ADDITIONS, CHANGES, OR DELETIONS:
(None)
3. APPROVAL OF AGENDA:
Richard Joslin moved to approve the Agenda as presented. Patrick White offered a
Second in support of the motion. Carried unanimously, 6—0.
4. APPROVAL OF MINUTES: DECEMBER 18,2019
Michael Boyd moved to approve the Minutes of the December 18, 2019 Meeting as
submitted. Vice Chairman Matthew Nolton offered a Second in support of the motion.
Carried unanimously, 6— 0.
5. PUBLIC COMMENT:
(None)
6. DISCUSSION:
A. Election of Chairman and Vice Chairman—2020 Term
Chairman Lantz opened the floor to nominations.
Chairman Lantz nominated Vice Chairman Matthew Nolton to serve as Chair for
the 2020 Term. Patrick White offered a Second in support of the nomination.
Mr. Nolton accepted the nomination.
(9:05 AM—Terry Jerulle arrived. Quorum was increased to seven (7) voting members.)
Patrick White nominated Terry Jerulle to serve as Vice Chairman for the 2020
Term. Chairman Lantz offered a Second in support of the nomination.
Mr. Jerulle accepted the nomination.
Motion carried, 5—0. Mr. Nolton and Mr. Jerulle abstained from voting.
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Chairman Lantz closed the floor to nominations.
B. Swimming Pool/Spa Servicing Repair Contractors' License Review
Michael Ossorio,Director—Code Enforcement, stated the information packet
provided to the Board members contained definitions of"Swimming pool/Spa
Servicing Repair Contractor", approved Scope of Work, and copies of previous
Declaratory Statements. He further stated he conferred with the Department of
Business and Professional Regulations' ("DBPR")Administrator in Fort Myers.
The conclusion reached: if a Swimming Pool/Spa Servicing Repair Contractor was
working on new construction, he/she would be working outside the Scope of Work
which limits work to existing pools only. He cited a Petition from Rodney Fischer,
Pinellas County Licensing Office Supervisor, which confirmed that a Swimming
Pool/Spa Servicing Contractor cannot make any modifications to concrete structure
of a swimming pool. He also noted the Code has changed with respect to retro-
fitting commercial pools to adhere to handicapped accessibility.
Mr. Ossorio continued: I may send a letter to the Registered Swimming Pool/Spa
Servicing Repair Contractors to notify them of the Declaratory Statement's Order in
case they were under the impression that they could do work on new construction
pools. He stated the Licensing Office will be looking for such issues in the future
and will bring the Contractors into compliance.
Patrick White: Roughly, how many of those type of contractors does Collier
County have?
Michael Ossorio: Registered? I would say probably less than one hundred. Some
are certified so they can also work in Lee and Charlotte Counties. I can get that
number for you if you'd like.
Patrick White: It was more a question of the administrative burden to send the
letters,but it seems to me to be worth the effort.
Michael Ossorio: I will look at that. I couldn't tell you—one way or the other—
my thought is to err on the side of caution. Most Swimming Pool/Spa Servicing
Repair Contractors probably know they can't do new construction. There are a lot
of categories for swimming pools which is an entirely other topic of conversation.
The Swimming Pool/Spa Contractors Association is very active with the State's
Construction Industry Licensing Board("CILB"). There are a lot of licenses that
you don't see every day unless you are a Swimming Pool Contractor like Mr.
Joslin,but we can talk about that another day.
Richard Joslin: I do have one other item though to maybe include on next month's
Agenda—if possible—regarding a General Contractor pulling a pool permit. I
know a GC can pull a pool permit but how far can he take that job ... other than
structural? And when he pulls a permit,he gets an inspection card—does it list all
the inspections necessary for the pool or does a licensed Pool Contractor have to
pull a secondary permit to finish the job?
Michael Ossorio: Under the Code, a General Contract's scope is unlimited except
for subbing out specific work. A General Contractor can do a pool except for the
finish work. How he does that: the General Contractor will pull a pool permit and
list his subs ... electricians, plumbers, etc. ... and we would require a sub list through
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a"Page Two"identifying who is doing the finish work. For example, if"Mike's
Construction CGC" (Certified General Contractor) is building a pool,he would sign
off on Page Two that"Sunrise Pools"will do the finish work. If a GC did do the
finish work—it's out of his scope and,theoretically, he could probably be cited.
When I was the Licensing Supervisor, back in the day, a lot of the General
Contractors would put a Page Two on the permit but if they did the finish work, we
would catch them after-the-fact and would give them Citations. That's not
uncommon—it does happen.
Chairman Lantz: So, a General Contractor could oversee the pool job ... the
electrician and plumber can be working for the GC, and he would just sub out the
finish work?
Michael Ossorio: Yes.
Richard Joslin: The problem that I'm seeing—or what I have seen—is there are
General Contractors who are pulling permits but not listing anyone as a secondary.
I don't know how he could get a permit to begin with ... but he's just hiring anyone
he wants to hire(or fire) for the job.
Michael Ossorio: Well, one of the things—it's not a requirement to be on the
building permit. It is a requirement for the General Contractor to list and hire
subcontractors. How we do that is through the Page Two. With the City of Naples,
you pick up your own building permit—there are different scenarios for different
cities and counties. I can so some research for you,but I can tell you if you are a
General Contractor who is building a pool, we will ask for a sub list for the finish
work. I can bring that report back to you—that's something I can do in the next
couple of weeks.
Richard Joslin: I have another question then since we're on the subject. A
General Contractor who ...
Terry Jerulle: Are you picking on General Contractors?
Richard Joslin: No, no. I want to go to an Owner/Builder situation that I've seen.
An Owner/Builder can pull a pool permit—we'll say he lives in Minnesota. Then
he signs a Power of Attorney that gives somebody the right to oversee his job. Is
that something ... the correct way to have someone complete the job if the owner
resides in a different state?
Michael Ossorio: If you're talking about a specific scenario—we don't care about
an affidavit giving permission ... or something like that. We look at the contract
and if you're being paid. If there is some type of supervision ... and that person is
in charge of hiring and firing people, and he/she is being compensated for it, then
he/she is acting as a General Contractor and is outside the scope. He/she can act on
behalf of the owner and oversee or supervise the job ... but some jurisdictions are
very strict about that... they make the Owner/Builder be present at the time of the
inspection. I'm not sure how we do that here ... I'll talk to Jonathan Walsh about
the owner being present, but I've issued many Citations before to people who have
a Power of Attorney. It's based on how someone is being paid—how they are
being compensated—under the definition of a General Contractor—and if someone
is supervising a specific job. I think there's a Declaratory Statement out and it is a
violation under [Section] 489.
Richard Joslin: Okay.
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Chairman Lantz: And that applies to all Owner/Builder projects ... not just ...?
Michael Ossorio: The Owner/Builder affidavits have gotten stricter over the years
... you must come in and sign for the building permit in front of the Permitting Tech
and if you haven't obtain a C of 0 (Certificate of Occupancy) in twelve months,
you are considered as working without a license and will be fined$1,000. There
are some owners who do the Owner/Builder permits all the way up to the final C of
O and then come to Jonathan Walsh and ask for a Contractor to take over the permit
to obtain the C of 0 and sell it. But if the evidence shows the substantial work was
done by the Owner/Builder, I'm sure Jonathan Walsh would probably say 'no' and
he would not accept the affidavit. It would be C/O'd as an Owner/Builder. We've
had those before in the past.
Richard Joslin: Then,technically, it's not allowed?
Michael Ossorio: No. I mean—if you have an affidavit of some duty to watch
over the project and help—whatever it is—but if you are being compensated for
overseeing that specific job, then that would be a violation.
Richard Joslin: And the hiring and firing of contractors on the job?
Michael Ossorio: That would be a violation. Is there any more homework on that
—are we good?
Richard Joslin: No, that will be fine ... maybe provide the Statute that says ...
something to read ... that would be good.
Michael Ossorio: Sure. I'll do some more work for you. Is that the consensus of
the Board?
Chairman Lantz: We did a ... a couple of months ago, we did a presentation on
the Owner/Builder rules with the new permit form.
Michael Ossorio: We can add to the Owner/Builder form ... that's right out of
[Section] 489 ... I can look for a Declaratory Statement for you as it relates to
affidavits of... I can bring it up next month.
Richard Joslin: Okay.
7. REPORTS:
• Michael Ossorio stated the Board of County Commissioners met on January 14th
and appointed John P. Nuzzo, who lives in Fiddler's Creek, as the new member to
the Contractors' Licensing Board. He will be contacted today and sent an
information packet.
• Chairman Lantz asked if the new member was a contractor.
• Mr. Ossorio replied that Mr. Nuzzo will represent the consumers of Collier County.
8. NEW BUSINESS:
A. Orders of the Board:
Patrick White moved to approve authorizing the Chairman to sign the Orders of the
Board. Terry Jerulle offered a Second in support of the motion.
Patrick White: I have a question, Mr. Chairman, ... it is relative to the motion and
before we vote on it, I may need Mr. Nolton to weigh in on this ... when, in fact, does
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January 15,2020
the new Chair assume responsibility and is properly authorized to sign these Orders?
Based on the vote that we took earlier, Mr. Nolton becomes responsible at some
point. I'll just share my perspective. Most of what I've seen in Robert's Rules of
Order is that it typically happens between"Old"and"New Business," but since they
are inverted on this Agenda, I am not sure. We've had a variety of past practices as it
relates to this specific motion and the authorization to sign ... as to whose name
should appear on the bottom. I don't want there to be any issues raised by anyone
down the road to challenge the Orders.
Assistant County Attorney Kevin Noell: Maybe the Board wants to make a motion
stating the change of the Chairmanship will be effective at the start of the next
meeting and the current Chairman is authorized to sign the Orders of the Board at this
meeting. I think that makes it very clear as far as the timeline.
Patrick White: I appreciate that. I will withdraw my previous motion.
Patrick White moved to approve authorizing the newly elected Chairman, Matthew
Nolton, to assume responsibility for his position at the February, 2020 Board
meeting and the current Chairman, Kyle Lantz, is authorized to continue to execute
his responsibility for the remainder of the January, 2020 meeting, including
signing the Orders of the Board and any other Order that may flow from this
meeting.
Terry Jerulle: I withdraw my Second for the previous motion as well.
Matthew Nolton offered a Second in support to the new motion.
Carried unanimously, 7- 0.
Michael Ossorio: To Mr. White's point, if we had held the election in December,
the new Chair and Vice Chair would have come on board in January. That's what I
remember. Is this something different that I'm not aware of or ...?
Patrick White: I wasn't here last month, so I can't claim responsibility, but I agree
with you that, absent something specific as to when that takes place, my preference
would be that it runs calendar-to-calendar.
Michael Ossorio: Noted. That will be for the next Supervisor who comes on board
Chairman Lantz: Okay, and that brings us back to where ...
Patrick White moved to approve authorizing the Chairman to sign the Orders of the
Board. Richard Joslin offered a Second in support of the motion.
Carried unanimously, 7—0.
B. Jovelino Rodriguez: Application for Reinstatement of License and Request for
Waiver of Exams
(d/b/a: "JR Tile& Marble, Inc.")
(Note: The individuals who testified in the following case under Item 8, "New
Business,"were first sworn in by the Attorney for the Board.)
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Chairman Lantz: Sir, you are here to request the reinstatement of your license and
you have also applied for a Waiver of the exams.
Jovelino Rodriguez: Yes.
Chairman Lantz: Can you give us a little background on your situation?
Jovelino Rodriguez stated:
• He obtained a license in Lee County, Sanibel Island, and Cape Coral first.
• He then obtained a Tile and Marble Contractors license in Collier County.
• In 2015, he became ill and did not work in Collier County.
• He underwent two years of treatments and since he wasn't working, he didn't
have the money to renew all his licenses, and the Collier County license was
allowed to lapse.
• He continued to work in Lee County, Sanibel Island, and Cape Coral.
• When he started working for Cornerstone, he was required to obtain his
license.
Chairman Lantz questioned the Applicant:
Q. So, you have been licensed ... your original license was in Lee County?
A. Yes.
Q. And your Lee County license has been continuous?
A. Yes.
Michael Ossorio presented background information:
• In 2005, Collier County received a letter of reciprocity from Lee County which
verified that he had taken and passed the required the Business/Law exam in
addition to his trade test, and his license was in good standing. Based on the
letter of reciprocity, he filed an application in Collier County and received a
license.
• He has been licensed in Collier County since 2005.
• He did not renew his license in 2017.
• The Applicant falls under the"Renewal"section of the Code as"null and void"
since he has not taken an exam since 2005-06.
• Therefore, he was required to file an application and petition the Board for a
waiver if the testing is superfluous to his trade.
• He claims he is licensed in Lee County and Charlotte County and the licenses
are current.
Mr. Ossorio continued: The County has no objection. He will pay his back fees.
Since he is still in business, I determined the testing requirement is superfluous to his
doing the work.
When asked for the County's recommendation, Mr. Ossorio replied, "to grant his
license without retesting and he is to pay the back fees."
Chairman Lantz: Well, you haven't been here in a few years but I'm going to
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ask you the same question I've been asking for fifteen years: If the Applicant never
had a license in Collier County, would he be here right now.
Michael Ossorio: No, but we've had this discussion before. Just to make sure, when
a Contractor fails to renew his license and his license is"null and void"after two or
more years, he is required to appear before the Board to explain why he didn't renew.
There could be any number of reasons ... he may have filed for bankruptcy, or he
could have credit issues. In most counties, he would have to go before the Board if
his license was suspended or revoked or for a new license. This is not a burden on
Mr. Rodriguez because he has been in the business. But there have been times when
the Board has denied a license until the Applicant takes the exam. So,he should be
here.
Terry Jerulle moved to approve the application to reinstate the Tile and Marble
License of Jovelino Rodriguez. Patrick White offered a Second in support of the
motion.
Discussion:
• Patrick White: I noted his credit score. The FICO was low but every one of
his creditors reported"timely," so sometimes it is misleading to use just the
FICO score. The condition that led to a lower score is due to the number of
inquiries perhaps by credit companies who want to offer him a credit card—or
buy a car—whatever. Just wanted that noted for the record in our future
reviews.
Chairman Lantz called for a vote on the motion.
Carried unanimously, 7—0.
Chairman Lantz advised the Applicant to contact the Contractors' Licensing Office
and wished him good luck.
Michael Ossorio: Just to clarify the FICO score ... there are a lot of things that can
cause a FICO score to go down such as multiple hits on your Social Security number.
In this case, I didn't see any huge issues but that's why it is imperative that we look at
it to verify how things will go forward because at 615 [credit score], historically,he
probably wouldn't have gotten a license. If there is nothing there, the Licensing
Supervisor should examine it and probably make a note to the file whether to process
the application.
Patrick White: Understood. The only reason for my comment on the question was
simply because of the Chairman's question between new and reinstated.
9. OLD BUSINESS:
(None)
BREAK: 9:30 AM
RECONVENED: 9:40 AM
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Chairman Lantz called the meeting to order.
10. PUBLIC HEARING:
(Note: The individuals who testified in the following cases under Item 10, "Public
Hearing,"were first sworn in by the Attorney for the Board.)
A. Case#2019—08: Collier County Board of County Commissioners,Plaintiff,
vs. Thomas R. Williams,Respondent, d/b/a"Williams Magical
Garden Center and Landscape," Collier County Licensed
Contractor(LCC20130000742)—Misconduct
Chairman Lantz stated he would read the procedures to be followed for a Public
Hearing and noted the process applied to both cases.
Patrick White asked if the Respondent and his Counsel for Case#10-B were also
present.
It was noted that Thomas R. William,the Respondent in Case#10-A, and his Counsel,
Raymond L. Bass, Jr., Esquire, and Roberto M. Torres, the Respondent in Case#10-B,
were present.
Chairman Lantz outlined the procedures to be followed for the Public Hearing:
1. This Hearing will be conducted pursuant to the procedures set forth in Collier
County Ordinance#90-105, as amended, and Florida Statutes Chapter 489.
2. The Hearing is quasi-judicial in nature and the Formal Rules of Evidence will
not apply.
3. Fundamental fairness and due process shall be observed and shall govern the
proceeding.
4. Irrelevant, immaterial, or inconclusive evidence shall be excluded,but all other
evidence of the type commonly relied upon by reasonably prudent persons in
the conduct of their affairs shall be admissible whether or not such evidence
would be admissible in a trial in the Courts of Florida.
5. Hearsay evidence may be used for the purpose of supplementing or explaining
any evidence but shall not be sufficient by itself to support a Finding unless
such hearsay would be admissible or objected to in civil actions in Court.
6. The Rules of Procedure shall be effective to the same extent that they would
now be hereafter recognized in civil actions.
7. The general purpose of the proceeding is for the County to set out its Opening
Statement which details its charges against the Respondent.
8. A Respondent may or may not make his/her Opening Statement setting out in
general terms the defenses to the charges.
9. The County then presents its Case in Chief, calling witnesses and presenting
evidence.
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10. The Respondent may cross-examine these witnesses.
11. Once the County has closed its Case in Chief, the Respondent may present
his/her defense and may call witnesses, and do all the things described earlier,
that is to call and examine witnesses, to introduce exhibits, to cross-examine
witnesses and impeach any witness regardless of which party called the witness
to testify, and to rebut any evidence presented against the party.
12. After the Respondent has presented his/her case, the County may present a
rebuttal to the Respondent's presentation. When the rebuttal is concluded, each
party may present their closing statement.
13. After the Respondent has presented his/her case, the County may present a
rebuttal to the Respondent's presentation.
14. When the rebuttal is concluded, each party may present its Closing Statement.
15. The County will have a further opportunity to rebut after the Respondent's
Closing Statement.
16. The Board will then close the Public Hearing and will begin its deliberations.
17. Prior to the beginning of any deliberation, the Attorney for the Board will give
the Charge, which is similar to the Charge for a Jury, setting out the parameters
upon which the Board may base its decision.
18. During deliberations, the Board can ask for additional information and
clarification from the parties.
19. The Board will then decide two different issues:
a. First, whether the Respondent is guilty of the offenses as charged in the
Administrative Complaint and a vote will be taken on that matter;
b. If the Respondent has been found guilty, then the Board must decide upon
the Sanctions to be imposed.
The Board's attorney will advise the Board as to the Sanctions which may be
imposed and the factors to be considered. The Board will discuss the Sanctions
and take another vote.
20. After the two matters have been decided, the Chair (or in his/her absence, the
Vice Chair) will read a Summary of the Order to be issued by the Board. The
Summery will set forth a basic outline of the Order,but it may not be the same
language in the Final Order.
21. The Final Order will include the full details that apply under state law.
Assistant County Attorney Noell: Mr. Chairman, as a matter of housekeeping prior
to your opening the Public Hearing, the County would like to introduce an Amended
Administrative Complaint to address a Scrivener's Error. In Count II, under"B,"the
Section of the MuniCode cited was wrong. The correct Section is 22-201(18). Mr.
William's Counsel has been shown the correction and it is my understanding that he
has no objection to the change.
Patrick White: Mr. Noe11, do you believe you need to do anything with respect to
that?
Assistant County Attorney Noell: I have a notarized copy of the new Complaint,
entitled Amended, which I will give to the Chairman now.
Patrick White: Okay.
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January 15,2020
Michael Ossorio: For the record, the Amended Complaint has also been filed with
the Clerk's Office.
Patrick White stated he appreciated the clarification.
Collier County's Opening Statement presented by Assistant County Attorney Noell:
Briefly, by way of an Opening Statement, the County believes the Administrative
Complaint clearly sets out the violations. Mr. Williams was performing work where
a permit was needed for the work performed. Jonathan Walsh,the County's Chief
Building Official, will testify as to his interpretation why a building permit should
have been applied for and approved. In addition, the evidence will show that Mr.
Williams contracted to have electrical work performed and none of his three separate
licenses allowed him to contract with an electrician to perform the work because he is
not a General Contractor. The evidence will also show that he performed plumbing
work where a license for plumbing is required. At the end of the Hearing, if
violations have been found, we will ask the Board to order restitution. The
homeowner will testify that he paid$52,000 for the job to Mr. Williams but he also
incurred approximately $15,000 in corrective work which had to be performed due to
the pond failing. The Board will hear further testimony that the structure cannot be
permitted because it is in a flood area. Jerry Kurtz from the County's Capital Project
Planning will testify that a permit would have been denied due to the drainage
easement in that area. Once the Hearing is opened, I will request to submit the
information package into evidence on behalf of the County.
Respondent's Opening Statement presented by Raymond L. Bass, Esquire:
Good morning. I also will be brief. For the record, my name is Ray Bass and
I am a lawyer in private practice here in Collier County. I am representing the
Respondent in this case. I have submitted in my client's packet a written rebuttal to
some of the charges. The question arises about whether a Specialty Contractor can
subcontract electrical work and plumbing work. The plumbing part, I think, is the
easiest part because the evidence will show that there was no plumbing connection
from one line to another involved in this case. We will wait for the evidence to show
that because, as I said in the rebuttal,the evidence will not show there was a
connection from one line to a potable water source. I think the plumbing will be the
easiest thing to dispose of. The electrical part ... the evidence about the scope of the
Contractor's license and so forth ... in the Code itself, it provides that Contractors and
subcontractors can subcontract work. That part of the Code is nearly verbatim to
Florida Statutes, Chapter 489, which says—I think there are one or two words that
may be different—is the same. And most of the Code is based on the Florida
Statutes.
The drainage easement encroachment that the County's Attorney has spoken
about—what you will hear is that there is a forty-foot drainage easement that has been
covered over—it has been filled. It was not readily apparent that there was a drainage
easement there. At this specific location, there are one or two lots together where the
easement has been filled in. Where it is not filled in—at other locations—apparently
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January 15,2020
the culverts were put in years ago ... but there's nothing obvious that an easement is
there.
Also, you will hear evidence that this is a Homeowners' Association—the
property is within an HOA. There was an application made to the HOA by the
Kramers to have this project done. It was investigated by the Homeowners'
Association and approved. The evidence will show there is some responsibility on
the part of the HOA for this as well.
There will also be some evidence, I think, that there was an inquiry made to
the County's Staff concerning whether a permit was needed for this project and they
were told a permit was not needed because it was a waterfall, a koi pond—that kind
of thing—and permits are not necessary for that.
Mr. Williams will tell you that he has been in the business for a long time and
that permits for these kinds of projects have never been required.
But we'll let the evidence speak for itself. Thank you.
Assistant County Attorney Noe11: Mr. Chairman, the County would like to request
entering the information packet into evidence.
Patrick White moved to accept the County's proffer of information packet with the
Amended Complaint into evidence in Case#2019-08. Terry Jerulle offered a
Second in support of the motion.
Attorney Bass: I would like to make an objection—a partial objection, if I may,
before there is a vote on that. There are a number of photographs in there that we
believe were supplied by the owner or owner's attorney. There is quite a bit of
commentary on them. I realized that the photographs are admissible,but I would ask
that the Board disregard the owner's commentary on the photographs themselves.
Patrick White: And what is the basis for that, Mr. Bass?
Attorney Bass: I'm sorry ...?
Patrick White: And what is the basis for the partial objection to the additional
comments written on the photographs?
Attorney Bass: It's pure opinion testimony about the way things ought to be or
should have been—it's just opinion testimony by the owner. His opinions are the
statements written on the photographs themselves. All I'm asking is that the Board
consider that it's an annotation that would otherwise, ordinarily not be admitted into
evidence without a proper evidentiary foundation. That's all.
Patrick White: I'm perfectly comfortable amending my motion to acknowledge
your partial objection and can assure you that any such commentary—whether in
writing or direct testimony—is something that I'm going to give the appropriate
weight to,based on the credibility both of the witness and the statements on the
photographs. I accept the partial objection. I wonder if the Second maker would
agree.
Terry Jerulle: The Second maker agrees.
Chairman Lantz: Any further discussion?
Patrick White: I'm assuming on the question, Mr. Chairman, that the County has
not objection to the motion as presented?
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January 15,2020
Assistant County Attorney Noell: We have no objection.
Patrick White: Thank you.
Chairman Lantz acknowledged there was an amended Motion and a Second. He
called for a vote on the motion. Carried unanimously, 7— 0.
Collier County's Case in Chief presented by Assistant County Attorney Noell:
Assistant County Attorney Noell called the first witness to testify on behalf of
Collier County.
The Witness was asked to state his name and address for the record: Reto Kramer,
residing at 9126 The Lane, Naples, Florida 34109.
Examination of the Witness by Assistant County Attorney Noell:
Q. Did you have an opportunity to review the packet in Case No. 2019—08?
A. Yes, I did.
Q. Did you look at the contract that's contained in there as an Exhibit?
A. Yes.
Q. Is that a contract that you entered into with an individual?
A. That is correct.
Q. Tell the Board who you entered into that contract with, and what was the
agreement?
A. So we went into contract with Williams Magical Garden and the agreement was
that they were building a pond to specification that was based on graphics that
they made for us and they were in charge of building the pond with all around the
pond, including sprinklers, electric, and plumbing.
Q. And as part of the agreement, what was your understanding as far as if any
permits were needed—who was responsible for pulling those permits?
A. That would have been Williams Magical Garden.
Q. And was work performed at your residence?
A. Yes, it was.
Q. Tell the Board what work was performed.
A. Originally, the timeline was that the work was to be done within two weeks. The
actual work was aborted or abandoned after five months. We still have a
construction zone. There is still no pond that is working in the backyard. It leaks
everywhere. There is a thirty-page document that has the pictures in it that you
received—that's the document of everything that does not work or was not done
according to the contract.
Q. And are those pictures that you took at the time the work was being performed by
Mr. Williams' company?
A. That's correct. The plan was that we were to have an income through that—
making a business out of this pond and, unfortunately, that was not the case. But
that was the reason why I had—everyday—pictures and I filmed material because
it was also supposed to be a YouTube Channel [video] to show how to build a
pond like that.
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January 15,2020
Q. Regarding the work that was performed for the water supply, can you tell the
Board what work was performed regarding the plumbing and the work to provide
water to the area?
A. Yes. Originally, there was obviously an issue with our landscaping company ...
that Williams Magical Garden put the auto fill of the pond directly onto the
sprinkler system and that basically took the pressure off the sprinkler system and
it wouldn't work correctly anymore. So, because that happened,they said you
can't do that—you can't use the sprinkler system as your water supply. That was
the only thing that happened and now—after everything was finished—we never
got any information about where the plumbing was, and we requested that
information several times. My lawyer also requested that information ... where
are the plans for the plumbing ... where is the shut-off in case something were to
happen and I needed to shut off the water? That information was never provided.
And we had no video. However,just yesterday, we did find out where it was
connected—we found out they took out a whole zone of our sprinkler system and
patched it over to another zone, and then took the water from there. So, it was the
sprinkler's main line that was used for the auto fill of the pond.
Q. Is your sprinkler system connected to the City's water main ... the potable water?
A. Yes, it is.
Q. Okay. Do you know who performed the electrical work at your residence?
A. No, I don't.
Q. What was the ... can you describe to the Board the nature of the electrical work
that was done?
A. We have a guest house and they connected the electric to the guest house fuse box
... it went to the outside then underneath the ground, and all the way around to the
pond ... and then to the back of the pond where the equipment is—the pumps—
that's where they put the new fuse box in, and that's where everything was
connected to.
Q. The work for the electric and the work for the plumbing that you testified to this
Board about—was that part of the scope of the contract or the agreement that you
had reached with Mr. Williams?
A. That's correct,yes. It was originally part of the contract however the electric was
more expensive than anticipated so Dana came to me and asked for another one
thousand two hundred and something dollars for the electric and I paid it.
Q. Who is Dana?
A. Dana is the one who was in charge on the project and was basically on the field
every day and did the contract work.
Q. Was it your understanding that she worked on behalf of the Williams Magical
Garden and Landscape?
A. That's correct.
Q. At some point did you encounter a problem with ... where you had to have some
remedial work done to make the area where this pond was installed safe?
A. There is—luckily—there is a fencing around it. So, we just had to make sure that
the fence was back up because they took the fence down to get the equipment
through and, at the time, we didn't know really what the Code was or what really
happened because this pond is five feet deep which seems, you know,pretty deep
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January 15,2020
so we wanted to make sure that the fence was back up. Unfortunately, we had to
hire a fence company because, again, Williams Magical Garden was not available
to us anymore—they took down the fence and it was basically broken, and we had
to re-do the fence.
Q. Did you have another Contractor come out and you had to pay them—I think—
approximately fifteen thousand dollars for some work?
A. Yes, what happened was that after about three months, the pond collapsed. We
had to hire another company because, at that point, he [Mr. Williams] wouldn't
come and fix it. We asked him to come and fix it and he said, 'no.' Well,they
didn't say no—they just didn't answer. So,we had to hire another company.
Unfortunately, after the first time that it collapsed, we had an agreement to pay a
lower amount, but the second side of the pond collapsed, too. And we found out
that the [water] line was already penetrated by the palm tree roots—and we're
talking about in a very short term. They started to fix that side and then two days
later the other side also collapsed. The whole thing cost us sixteen thousand
dollars to fix. They had to take the water out, take the dirt out, and reconstruct
everything. Part of it was ... there as a complete ledge around the pond with
stones on it and that collapsed, too.
Q. If I understand correctly, how much was paid to Mr. Williams for the work?
A. For the work, we paid him fifty-two thousand dollars.
Q. Okay. And, as far as the testimony that you just provided about the pond, how
much did you pay to have that repaired?
A. That was fifteen thousand seven hundred dollars.
Q. Have you since discovered that you would not be able to have this work permitted
after-the-fact?
A. It seems there is no way to get it permitted.
Q. Okay. And, based on knowing that, did you contact any companies to find out
how much it could cost to have everything—the pond and everything removed?
A. Yes. We contacted two companies—it's hard to find a company that will do that
—but we found two companies to give us quotes and the cheaper quote was thirty-
two thousand dollars to remove the structure and everything that is there.
Patrick White: I'm sorry—could you repeat the dollar amount again please?
Reto Kramer: Thirty-two thousand dollars.
Patrick White: Thank you.
Assistant County Attorney Noell: The County has no further questions.
Chairman Lantz: Mr. Bass, would you like to cross-examine the witness?
Cross-examination of the Witness by Respondent's Attorney:
Q. Mr. Kramer, when was the project completed?
A. It is not completed.
Q. Okay. Did there come a point in time when you told Mr. Williams and his
company to stay off your property?
A. That is correct.
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January 15,2020
Q. When was that—approximately?
A. I must correct that—our attorney basically told us to not allow the company come
back out before we get all the information about insurance, licensing ...
Q. When was that, approximately?
A. That was January 16th.
Q. Of what year?
A. 2019.
Q. This project was—the ponds and so forth—they were at one time functional,
correct?
A. That's incorrect.
Q. You're saying they never worked?
A. That's correct.
Q. Was there a point in time when it appeared to you that the project was finished
and should function?
A. Never, no.
Q. Okay. So, I guess I'm trying to find out from you when did it start and when did
their work end?
A. It started on August 7th ...
Q. Of what year?
A. ... 2018.
Q. What? Please repeat that date.
A. August 7, 2018.
Q. And at what point in time did the Magical Garden Company stop coming out
there, approximately?
A. That was December 17, 2018.
Q. All right. So, their work time period was for some four or five months—is that
what you're saying?
A. That's correct.
Q. And isn't it true, sir,that there was an issue about non-payment of some money as
claimed by the Magical Garden Company?
A. There was no issue because we paid everything that we needed to pay at that
point,but it was, again, never finished. There is a thirty-page document that
documents exactly what was not finished at that time.
Q. About the water supply—sir, isn't it true that the water supply was from a hose
connected to a faucet at the exterior of your house?
A. This is not correct.
Q. So, it was only yesterday—are you saying to the Board here that it was only
yesterday that you discovered what the connection was?
A. Well, since everything was buried, we had to get somebody over to find out where
it was connected but, at no time, was it ever connected to an outside faucet
because we're using those for hoses all the time. So that was never happening.
Q. Okay. So, do you have a well for your sprinkler system?
A. No, we are connected to city water.
Q. The electrical work you spoke about—that was done by an electrical contractor,
wasn't it?
A. That's correct.
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January 15,2020
Q. You mentioned something about a problem with the pond holding water and
being penetrated by some tree roots? Were these trees already in existence when
the project was done?
A. Correct, yes. All the trees were in existence. But there were obviously no tree
blocks to be put in.
Q. Tree blocks?
A. Root blocks, I think they are called. So that the people who were in after to repair
it put root blocks in—it is some kind of plastic structure that prevents the roots
from penetrating when it gets to a certain place. There was nothing like that in
place. If it would have helped, I don't know about construction, so I don't know.
Q. What kind of trees are you talking about?
A. Palm trees.
Q. And you said you had a hard time finding a demolition contractor. How many
places did you call?
A. Four.
Q. Are you aware that demolition contractors are specially licensed?
A. No, I was not aware of that.
Attorney Bass: I have no further questions.
Collier County's Rebuttal by Assistant County Attorney Noell:
Q. Sir, you didn't hire the electrician—correct?
A. Correct, I did not hire him.
Q. Okay.
A. I was told it was a different company, so I don't really know.
Q. And your understanding is that Thomas Williams—that his company had hired
the electrician?
A. That's correct.
Assistant County Attorney Noell: I have no further questions of this witness,but if
the Board has any questions ...
Patrick White: If I may,Mr. Chairman?
Chairman Lantz: Yes, sir.
Patrick White questioned the Witness:
Q. Mr. Kramer, help me to understand—what you most recently discovered is how
the water is supplied to the pond? Could you describe that?
A. There is an auto fill that fills the pond up if there is not enough water in there. So,
the water came from the sprinkler system. The sprinkler's main line—that
sprinkler system was basically ...there's a"T" in there that takes the water out
from there. However, there seems to be no shut-off valve between the main line
at the actual overfill.
Q. And do you know what type of material was used to connect from the sprinkler
system that I understand that runs on potable—you said—city water to the supply
17
January 15,2020
by way of, I assume, some kind of float that is in the pond so when the water
drops, it fills. Do you know what kind of material is that piping?
A. Again, I'm not in construction but ...
Q. Did it look like it was metal? Did it look like it was plastic?
A. I think it ... but I don't understand ... you know ...
Q. I'm just asking for your lay opinion,that's all.
A. In my opinion,yes, it's PVC pipes.
Q. Thank you.
Chairman Lantz: Are there any other questions from the Board?
Richard Joslin: I have one on that same issue.
Richard Joslin questioned the Witness:
Q. The line that you found that would deliver water to the auto fill into the pond, you
said it had tapped into the sprinkler line and used the secondary part of the line to
use it for the auto fill?
A. In the backyard, we had originally two zones and they took one zone totally out
and the green box that is on the ground—they took that totally out and they
basically patched the piping to the auto fill in the other zone. So, we ended up
having only one zone and I did not give my approval to taking the zone out. I was
surprised when we had one zone less for the water, however I really didn't think
about that would mean or where that would come from. I was just, you know,
basically okay with it.
Q. So, the only time that system would have water going to it would be when the
sprinkler in that specific zone called for water ...
A. Well it was ...
Q. ... on the live side?
A. All the walls were taken out, so it was on the live side—correct.
Q. Okay.
Terry Jerulle: If I may, Mr. Chairman?
Terry Jerulle questioned the Witness:
Q. Mr. Kramer, you talked about a fence earlier?
A. Yes.
Q. Can you explain to me—was it a pool fence or a property fence—what type of
fence was it?
A. It was a mesh fence—it was a fixed fence that was built around the whole
backyard because we have a dog and we sometimes take him back there and we
didn't want him to go anywhere.
Q. Okay. So, you have a—I believe—you're trying to describe a chain-link fence ...
A. Yes.
Q. ... around your yard that was existing?
A. No, we built that when we moved into the house.
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January 15,2020
Q. Okay. But pertaining to the start of construction, it was existing?
A. It was existing. But because they brought machinery in, they had to take the
whole fence , not just a door, they took the whole fence down on that side and it
was never put back up the right way ... so it was, basically, non-existent anymore.
Q. So, when they left the site, there was water in the pond and there was no
fence up?
A. There was no functioning fence. We had to get a fence company to repair it, yes.
Q. Thank you.
Patrick White questioned the Witness:
Q. Just looking at—there hasn't been any testimony about this, but I am assuming
you've seen the Respondent's rebuttal evidence package?
A. No.
Q. No? All right, then I won't ask about those emails because it hasn't been
admitted yet. So, we can follow-up with that later because I just wanted to
inquire about your personal knowledge about what's been described as a drainage
easement. The survey shows it as a kind of light maintenance easement, but the
plat shows it as a type of public drainage easement, so I'm going to need more
information as we go forward,just so everyone is aware. I was hoping Mr. Kurtz
could clarify some of that.
Richard Joslin questioned the Witness:
Q. I have a question regarding the electrical. Do you know who did the electrical
work?
A. No, I don't.
Q. You don't. But it was contracted by the Magical Garden to have it done—
correct?
A. Correct and I paid for that, too—not directly to the electrician and I don't know
who that person was—I just know from Dana that it was a very popular
electrician who did it.
Q. The only reason why is ... I'm looking at one of the pictures in the packet at Page
144. There are two pumps, and each is connected to just one extension cord?
A. They made the pool panel ... an electric panel with several clocks. Some of them
seem to be special clocks, not the regular clocks—I don't know if they have a
higher voltage—they might be 220 ... I'm not sure.
Q. I'm sure these pumps are on 220 or 110 each but what I'm questioning is the fact
that they're not in a conduit. They are just extension cords that are probably put
into the box ... I haven't found the pictures yet that show the panel box connected,
but I just want to verify that this is how the electrician left it.
A. I'm not sure.
Q. Okay.
Terry Jerulle: Again, Mr. Chairman?
Chairman Lantz: Yes, sir.
19
January 15,2020
Terry Jerulle questioned the Witness:
Q. Can you tell me the depth of the pond?
A. Five point five feet.
Q. Five point five feet. Okay. Did anybody install any electrical alarm devices
on the doors that lead out to the pond?
A. No.
Q. Thank you.
Chairman Lantz questioned the Witness:
Q. You described how the walls collapsed. Give me an idea of what you mean by the
"walls" collapsing.
A. Basically, the sides go up and on one side there is a beach for the turtles—so that
part was a little steeper and on the top of it ... there was a little water flow on the
top of it. It must have been a leak right there—the water went inside of the wall
and made the wall collapse into the pool. So, the whole dirt from the side of the
pond went into the pond.
Q. So, the liner folded over inside the pond and then the dirt from the outside came
inside the pond?
A. Correct.
Q. Okay.
Chairman Lantz: Are there any other questions?
Assistant County Attorney Noell: I have a follow-up question.
Re-direct Examination of the Witness by Assistant County Attorney Noell:
Q: Sir, I am showing you what has been entered into evidence as Packet Page 111 as
identified on the bottom left-hand corner. Do you recognize it?
A. Yes.
Q. What is that document?
A. That is the original contract that we signed.
Q. Okay. And as part of that—this is the contract between you and Thomas R.
Williams, doing business as Williams Magical Garden Center and Landscape?
A. Correct.
Q. And as part of that, I want to draw your attention to Item 1(e) in the line section of
the Agreement. It is the Electrical and Plumbing that you testified to. Is that what
is referenced there as Item 1(e) in the contract?
A. That is correct.
Q. Okay. And then the checks that are in the packet—you have reviewed those
checks—correct?
A. Correct.
Q. The copies of them ... and those are the checks that you wrote for the work that
was performed and that were cashed?
A. That is correct.
20
January 15,2020
Assistant County Attorney Noe11: I don't have any other questions.
Chairman Lantz questioned the Witness:
Q. On that Page 111 of the contract, did you have something else somewhere
that specified ... "I need seven of these trees and nine of these trees" ...?
A. There is an addition that was made ... I just found it yesterday—it was not part of
the contract, but it was a separate page that we received.
Q. I see something on Page 113—is that what you're talking about?
A. That is part of it, yes.
Q. Okay.
A. But we do have another document that I didn't submit which shows basically the
equipment that was discussed and some plants as a guideline. It was not really
part of the contract, but it was taken as an idea of what I could expect.
Q. You're talking the artist conceptual picture—is that what you're talking about?
A. No, it's a document that I had but it is not part of this package.
Vice Chairman Nolton: It's not Page 207 ... starting at 207?
A. No, I just found it yesterday.
Vice Chairman Nolton: Page 207 is a list of plants and 208 is a list of equipment.
A. You are correct.
Patrick White: What is correct?
A. This is the list that I am talking about.
Patrick White: They are the same documents?
A. Correct.
Patrick White: Okay. So, it is in evidence—just to be clear.
A. Yes.
Patrick White: Okay. Thank you
A. However, most of those parts—many of those parts—have never been installed.
Chairman Lantz: But this was part of your original contract—saying all these will
be installed as well as all the equipment.
A. Correct.
Chairman Lantz: Are there any other questions from the Board?
Patrick White: We might as well clear up the details now as to Page 208. On the
left-hand side, there is a series of check marks next to most of the items. There is a
question mark next to the word, "liner," and no checks for the last seven items. Can
you tell us, Mr. Kramer, if you made those check marks or do you know what those
check marks and question mark represent? And what the absence of any marks
means for the bottom seven bulleted items?
Reto Kramer: Those check marks—I don't know who made them. I do know on
the auto fills—it says two auto fills—but there was only one auto fill. So, whoever
make those marks ...
Patrick White: Understood. It goes generally to the question of what additional
charges were outside the scope of the original contract or not. That's what I wanted
to you. If you don't know ... you don't know.
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January 15,2020
Chairman Lantz: Are there any other questions for Mr. Kramer?
Assistant County Attorney Noell: The County calls Mr. Walsh.
Patrick White: Mr. Noell, are you going to want to proffer in any regard Mr.
Walsh's Expert Witness status, or not?
Assistant County Attorney Noell: Probably not—I'll probably just do it through
direct questions.
Patrick White: Fair enough.
Examination of the County's Witness by Assistant County Attorney Noell:
Q. Sir,please state your name for the record.
A. Jonathan Walsh.
Q. And, sir, how are you employed?
A. I work for Collier County as the Chief Building Official.
Q. And what are you duties as the Chief Building Official?
A. To enforce and oversee the application of the Florida Building Code.
Q. Is it part of your responsibility to determine whether certain areas of work or
types of work require permits?
A. Yes.
Q. Did you do that in this case?
A. Prior to or after construction?
Q. At any time.
A. Yes.
Q. Okay. What is your educational background? Could you let us know what
degrees you have and where you have these degrees?
A. I am a graduate of Manhattan College in New York with a degree in Civil
Engineering. I am licensed in the State of New York and in the State of Florida as
a Professional Engineer. I am Plan Reviewer, Inspector, and Building Official for
the State of Florida.
Q. How long have you been a Professional Engineer?
A. Since 2005.
Q. How long have you held the current position that you hold as the Chief Building
Official?
A. 2013, I believe.
Q. I don't believe that in the quasi-judicial court I need to tender him as an Expert.
Sir, what all did you review in coming to your conclusion on whether a permit
and what type of permit was needed for this work?
A. It was first brought to my attention as a Code Enforcement case and I made a
determination—I believe sometime in October 2019, at one of our weekly
hearings—I made a notation either on a picture or on one of their forms that a
permit was required. After that, there were further discussions with County Staff.
I sent my Chiefs to walk the site and I think an Inspector or Plan Reviewer also
attended. Unfortunately, my schedule didn't permit me to inspect the job site.
They returned with very clear opinions about what had been done—supported by
pictures—and my decision was based that information.
22
January 15,2020
Patrick White: Mr. Walsh,you said"hearings" earlier—did you mean"meetings?"
Jonathan Walsh: Sorry,yes ... meetings with Staff.
Patrick White: Thank you.
Q. And based upon your meetings with Staff and your review of the photographs and
your knowledge of the Florida Building Code, what was your opinion regarding
what type of permit were needed for this work to be performed?
A. I believed a as an end-all/catch all, a General Building Permit was necessary, and
it could incorporate the electrical and plumbing aspects.
Q. What about the nature of the electrical would require a permit?
A. There were obviously pumps which you could see in the photographs and there
were lights—there were electrical components that were to be powered somehow
—either by the extension of an existing service or by some sort of power brought
out to those devices, and that would require a permit.
Q. As far as the plumbing, you heard testimony that the line ... the PVC line ... was
connected to a potable water line, is that correct?
A. That would require a permit, yes.
Q. Okay. In addition, the electrical work and the plumbing work that was performed,
is it your opinion that it would require a licensed electrician to perform the
electrical work and a licensed plumber to perform the plumbing work?
A. Yes, it would.
Assistant County Attorney Noell: I have no other questions.
Cross-Examination of the County's Witness by Respondent's Attorney:
Q. Mr. Walsh, when you said a General Building Permit would be needed, what it is
that triggers off that necessity?
A. There are multiple trades involved in this project. You have landscape, a trellis
aspect, there are patios, plumbing work, electrical work—we don't allow sub
permits to be pulled in a scope of work like this. So—if it was for a pool, for
example, you would need a general pool permit which would incorporate the
plumbing and the electrical work in it. It could also include footings or a trellis
that was attached to it or a shelf or something in the construction of the pool—but
it would not include the pool barrier or a screened enclosure and things of that
nature. So, in this specific case for this pond, you could incorporate all of that
into one General Building Permit.
Q. But it's not a pool,though?
A. Right, this is not a pool—this is a pond.
Q. And typically, or isn't it true that typically, these kinds of projects do not require a
permit?
A. I'm sorry, I didn't hear you.
Q. Isn't it true that typically these kinds of projects do not require a building permit?
Let's take out the electrical and plumbing. If there's no electrical and no
plumbing, would a permit be required for something like this?
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January 15,2020
A. The extent of the work that was done on the landscaping alone,plus the trellis—
yes.
Q. Would you agree with me that connecting a hose to a faucet on the exterior of a
house would not require a plumber to do that?
A. I'm not going to ... if you're asking me if a plumber is required—no, a plumber
would not be required to connect a hose to ...
Q. If that was the service ... or if that was ... I don't know the technical language ... if
that was the feed for the water to the pond ... that's not really ... it doesn't require
a plumbing contractor to do that, does it?
A. If it was meant to provide an auto fill feature, so it was more or less a permanent
connection from what you're insinuating is on a temporary basis, I would say
you were connecting to the public water supply so, yes, a plumber would be
required.
Q. For a hose?
A. If that's how he is going to provide his service.
Richard Joslin: Excuse me for one second, but I believe the terminology is a"direct
connection." In other words, if a hose is just laying over the top of a pond, you
wouldn't need that. But if it's a direct connection to the system,then yes, it would
need a plumber.
Jonathan Walsh: Correct.
Attorney Bass: I have no further questions. Thank you.
Re-direct Examination of the Witness by Assistant County Attorney Noell:
Q. As far as the three licenses that Mr. Williams possess, are you aware of what
those are?
A. For the most part, yes.
Q. Okay. Landscaping contractor, Paving block contractor, and Non-recreational
pond waterfall fountain contractor—is that your understanding?
A. Yes.
Q. Under the Florida Building Code or the Collier County Code regulating building,
do any of those three licenses allow him to contract for electrical or plumbing
work?
A. I would have to refer to the Licensing Supervisor for assistance on that.
Q. Okay.
Assistant County Attorney Noell: I have no further questions.
Chairman Lantz: Are there any questions from the Board?
Terry Jerulle: Yes.
Terry Jerulle questioned the Witness:
Q. Jonathan, and I apologize, but I'm a little confused between the difference
between a pool and a pond.
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January 15,2020
A. The definition of a pool is meant for recreational water use as a swimming area.
You can have a lake in the back of your property but that is not classified as a
"pool"—it would not fall under the same requirements as a pool. This is a"pond"
and does not meet the definition of a pool.
Patrick White: It's "non-recreational."
A. Yes,that's basically it.
Q. So ...
Vice Chairman Nolton: So, it then would meet the definition of a lake?
A. I don't think the Building Code has a definition for a lake.
Vice Chairman Nolton: What I was getting at ... is with a lake, there are slope
requirements for safety.
A. Yes. I would agree with that statement.
Q. So, what I'm getting at—in my mind as I'm looking at this—I'm looking at a
five-foot deep, in-ground manmade built structure that has pumps and waterfalls.
The first thing that comes to my mind is I need a pool fence—I need to protect the
public from going into this area and ... a child drowning.
A. By the Building Code and by the Statute—as far as I am aware—this structure,
this pond, would not require those parameters. I'm not saying I don't personally
agree with you, but that's not what the Code states.
Q. Thank you very much for clarifying that. I saw the pictures of a trellis out there.
Did that have footings?
A. I don't know about the construction of it. I know the photos that I saw isolated
the construction of the trellis. From what I did see from the photos,there weren't
enough fasteners tie it together. I forgot to mention there was also a bridge
installed over this koi pond that, again, would be classified as a structure. We
would look at it for connection, bracing, and framing.
Q. So, those two are classified as structures which would typically need a building
permit...
A. Right.
Q. ... and inspections?
A. Yes. Typically, and if they were separated and not tied into this pond, there
would be two separate permits. But again, as I said before, they are kind of
blended together with the pond as the basis and we looked at this as one building
permit.
Chairman Lantz: Is that it?
Terry Jerulle: Sort of.
Chairman Lantz: For now?
Terry Jerulle: I'm just thinking about my next house—maybe I'll just include a koi
pond instead of a swimming pool and not have any inspections on it.
Richard Joslin: It reminds me of the vinyl liner on a swimming pool with all the
pumps and filters, and the way it's done.
25
January 15,2020
Terry Jerulle (to the Witness): Thank you very much.
Chairman Lantz questioned the Witness:
Q. I have a couple of questions on the water connection. So, when Mr. Kramer first
testified, I was under the impression that it was a garden hose connected to the
auto fill valve ... the automatic pond fill. Then Mr. Kramer testified recently that
this was not the case—there was hard-pipe PVC into the sprinkler line. Having
not seen any pictures of that, I'm just asking you to go on assuming what he said
was correct. So, if that is correct, would you consider the water in the sprinkler
system to be potable or non-potable?
A. It would depend on how it was connected and what it was connected to ... if it was
connected to the water main, yes, I would consider that as a potable water system,
even if there is a backflow off of it just like a house.
Q. So, at what point would you consider the water in a sprinkler system to be non-
potable? Once it leaves the heads or at the backflow or ... where would you
consider that change?
A. The use ... I would its use.
Q. Which would be where it leaves the heads?
A. Yes.
Q. Okay. My next question—I don't know if you're the proper person to answer this
or not ... if somebody does work on an irrigation sprinkler system, do you guys
inspect the whole system or are you just inspecting the backflow?
A. We don't check the backflow typically ...there is a local Ordinance for Collier
County—we would look at heads as a separation from a building's general layout.
It's kind of a one—one inspection ... I don't remember the exact number ... but
they basically look at what the proposed layout is supposed to be—the
construction—and they would look to see if that matched, and is there a rain
sensor, separation of buildings, is the coverage correct—all those types of aspects.
Q. So, are they inspecting before the pipes are covered up or ...?
A. Typically, it's after.
Q. After the pipes? Okay. And if somebody were to modify their irrigation system,
would a permit be required for that?
A. There's a grey area ... our Ordinance for exemptions says that you can make
[changes for] maintenance requirements—if you were to adjust a head, that would
probably be considered as maintenance or repair work, so no, a permit would not
be required on that existing system.
Q. What about adding another zone?
A. I would say yes.
Q. So, if somebody were to add a zone—say an automatic fill for a recreational or
non-recreational pond—a permit would be required to tap into the sprinkler line to
do that?
A. Yes.
Q. Perfect. And a Landscape Contractor—I don't know ... this is ... what I'm not
sure is if you're licensed ... if this gentleman has a Landscape Contractor license—
he's licensed to do irrigation work, correct?
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January 15,2020
Michael Ossorio: For the record,Mike Ossorio, Collier County Contractors
Licensing, and I've been sworn in. Mr. Williams has what is called an Unlimited
Landscaping Contractor License—which is a pretty old license—that ... typically, a
Landscaping License does require a separate license for irrigation. With this specific
license, he has irrigation. So, the Scope of Work is unlimited landscaping and would
include irrigation.
Chairman Lantz: As a non-recreational pond contractor, he is licensed to do all the
plumbing,just not the connection to the potable water system. And as a Landscaping
Contractor, he is licensed to connect to an existing sprinkler system. He wouldn't
have to hire a plumber to connect to an existing sprinkler system—correct? I'm not
addressing the permit issue ... I'm just addressing the licensing issue.
Patrick White:"Scope of Work."
Chairman Lantz: He is licensed ... between his two licenses, he is licensed to
connect to a non-potable ... an irrigation line to potable water.
Michael Ossorio: Just so we understand, historically you don't co-mingle licenses ...
single licenses. So, if you look at the terms of his license for irrigation—is that
connection to the pond under the scope of his Unlimited Landscaping License and I
would say no. If you look under his pond waterfall license, can he do irrigation? No.
We have to look at what is the scope he is working under and what is the scope of the
category under the definitions. So, the fact of...
Chairman Lantz: Well, let me give you an example ... I mean, let me ask you a
question. Personally, I am a licensed General Contractor, licensed Electrician, and
licensed Plumber. If I do a job, I pull all the permits and do all the work myself or
with my employees. Nobody ever comes to a job site and says, 'Wait a second—
you're acting as a General Contractor so you're not allowed to pull this wire, or
you're acting as an Electrician so you're not allowed to frame this wall,' because I'm
licensed for all of them—they say I'm covered for everything. So, why ... how would
it be different for ...?
Michael Ossorio: You are a General Contractor and you have the ability to
subcontract out. My question to you is: The scope of the ... look at the ... where the
water is coming from? The water is coming from a main line for irrigation with no
valve, which is in and of itself—you're heard the testimony that the water bills were
skyrocketing because there was no water check valve ... there was nothing, so he
couldn't turn anything off. There was a direct connection to the water main that goes
right into the pond itself. Under the pond license, it speaks for itself—as a Scope of
Work, you can't do electrical. You can't take— `I'm a Licensed Irrigation Contractor
so I'm going to use it for my pond and I'm going to connect to the water line' or do
those types of items. You're a single discipline and you have to be in Scope. Now, if
you have more than one license and they overlap each other, that's fine. But an
Unlimited Landscaping Contractor cannot do ponds. Is that a fair assessment? If I
had a Landscaping license, would I be able to do ponds and waterfalls? The answer
would be no. If I have a pond license would I be able to plant trees and do irrigation?
No. The pond itself is connected to the potable water system through the irrigation
system with its check valve. You can't ... to my mind,you would not be able to
cross-reference ...
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January 15,2020
Chairman Lantz: So why would ... this is might go to Mr. Walsh ...but why would
you have a check valve between an irrigation line and a pond?
Patrick White: If I may,Mr. Chairman, and before Mr. Walsh responds? In my
mind, the"sprinkler main line" is the potable water line. It has not yet become, if you
will, a sprinkler line for the purposes of the koi pond until you go to the branches and
through the valves to the sprinkler heads. So, in my mind, without seeing the
schematic,what I'm understanding is that you have a line ... the same as anybody
burying a PVC line in the back yard that was part of the main potable water system
from the house, and tapped into it and ran a further PVC line to the koi pond. So, in
my mind, it doesn't matter that what happened somewhere else off the branches of
the potable water line that makes it somehow part of the irrigation system at all.
There is a higher order, in my mind, of what it is—as a classification—as a potable
water line. And it's the idea that it was tapped into, is fully pressurized,there's no
check valve, and no shut-off valve, and it only operates through an automatic flow
switch. I offer that to try to help clarify both the question and the answer. That's the
way I'm understanding it.
Chairman Lantz: I'll tell you how I understand it. So, my definition—I disagree
with Mr. Walsh—I feel the water becomes non-potable once it crosses the backflow.
In many other situations where we've done irrigation work,the Irrigation Contractor
does everything in the house,but he/she must hire a licensed Plumber to do the
backflow area which is the connection between the potable and the non-potable
water. So, in my mind, once you cross that backflow, you become non-potable. So, a
Landscaping Contractor with Irrigation can technically—I'm not ... no ... I'm not
siding with anybody ... so, in my mind, once it crosses that backflow, a Landscaping
Contractor can do work on an irrigation line. I'm not saying what he did was correct
—and I'm not saying he shouldn't add a valve ...that's not what I'm getting at ... I'm
asking ... as a licensed Landscaping Contractor who can do irrigation—he could all
that irrigation work to add heads and do that from the main supply line, as long as
he's on the dirty side of the backflow.
Patrick White: I think it would be helpful to understand exactly where the backflow
is relative to the "T"that was put in to supply the koi pond, and to have the Building
Official's opinion as to whether he may or may not agree with your assessment.
That's very germane to me.
Vice Chairman Nolton: Well, I just want to clarify and understand, too, because—
in my head—you have the main line out at the street and that's typically where the
backflow is, and then you have that potable water line coming to the property. And
so, in my head,there's not another backflow preventer somewhere else on the
property from there to the irrigation ... unless I'm misunderstanding what we're
talking about.
Jonathan Walsh: That's what I would like to clarify ... if there's one backflow that
goes to the house and is "T"-ed off for the irrigation,there's no difference at that
point whether it's going to the house or to the irrigation as potable water.
Vice Chairman Nolton: So,there's one backflow for the property at the main line?
Jonathan Walsh: That part I don't know. I don't know if it's a separate, individual
line for the irrigation—I would need to research that point because I don't know. The
2017 Florida Building Code states the definition of potable water as:
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January 15,2020
"Water free from impurities present in amounts sufficient to cause disease or
harmful physiological effects and conforming to the bacteriological and chemical
quality requirements of the Public Health Service Drinking Water Standards or
the regulations of the public health authority having jurisdiction."
So, again, I don't know where their backflow is and where their connection point
is. If this is a dedicated, individual line and the backflow separates the irrigation from
the potable water at the road as its own irrigation line, I would agree with Mr. Lantz
that the potable water stops at that backflow. But if there's one backflow and it"T's"
off to go to irrigation at the house, I would say no.
Patrick White: And, regardless—based on the definition that you have provided to
us—the water that's in the line, whether it is before or after either or both of those
backflows, in a given system, is still potable.
Chairman Lantz: No.
Patrick White: No? The point of the definition is that the water is potable. The
quality and chemical composition of the water is not changed. And that makes more
sense to me, Mr. Chairman,that the answer to the question of'when does it become
non-potable,' is when it goes out the sprinkler head and is exposed to the air and
bacteria and other contaminants. So, in my mind ...
Chairman Lantz: Then why do we put a backflow preventor on? So, I'm asking
this—and I'm not trying to beat a dead horse—is the reason we put a backflow on is
because they spray chemicals on the lawn, there are all kinds of chemicals on it, and it
backflows in ... that's why we need the backflow to prevent—and I know this because
I'm a backflow guy—so ...
Patrick White: I'm not disagreeing with you ...
Chairman Lantz: ... but the reason why we put the backflow in is because there is a
possibility of lawn chemicals, pesticides, all that stuff, getting sucked backwards
through the line as soon as there is a pressure change. If there's a fire down the street
and they activate some fire hydrants and the pressure changes, that can actually such
the chemicals in the lawn back, so its non-potable. Would you cut a sprinkler line at
the house and start drinking out of it?
Patrick White: And I'd agree with you that if you tested the water under the
circumstance of one of those events, it may—at that point in time—be construed as
non-potable. But on the supply side without a break, it remains in my mind potable
up to the point where it is dispensed or disbursed. Not that it's a big point.
Terry Jerulle: Is the irrigation tied in before or after?
Patrick White: I don't know.
Chairman Lantz: Typically, the irrigation backflow prevention is between the
house and the road. And,typically,there's another form of backflow prevention
between that ...
Terry Jerulle: The testimony is there is only one.
Chairman Lantz: The testimony is we don't know.
Jonathan Walsh: Yes, I don't know.
Chairman Lantz: Right. Typically, there is a separate type of backflow prevention
whether it's a ...
Terry Jerulle: So then why the focus? A lot of these homes to not have that so
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January 15,2020
we're arguing a moot point in that ...
Patrick White: Well, it's a minor point, but to the Chairman's point about if there
were a backflow preventer—let's say at the main meter and the shut-off was at the
street—under his logic, that water in the entire house would be non-potable because it
has the potential to be contaminated.
Chairman Lantz: No—what I'm ... you're not understanding what I'm trying to
argue ...
Patrick White: Maybe not.
Chairman Lantz: What I'm trying to argue is a Landscape Contractor can make the
connection to a irrigation system—that's the only point I'm trying to get across here.
We're at the irrigation system and a Landscape Contractor can make a connection to
an irrigation system. That's it.
Patrick White: I don't disagree with that.
Vice Chairman Nolton: So, if we go past that, I also heard testimony that it would
be a modification of an irrigation system and not just maintenance, and that would
require a permit—is what I heard.
Patrick White: Remember the scope of the license, but a permit would still be
required.
Jonathan Walsh: Our Exemption Ordinance says for the maintenance and repair ...
doesn't say anything about modification.
Chairman Lantz: I wasn't arguing anything that a permit ... yeah ...
Jonathan Walsh: I'm just trying to get germane to what we're here ...to answer the
question about.
Chairman Lantz: Okay.
Michael Ossorio: Mr. Chairman, I wanted to clarify that landscaping companies
cannot do irrigation without an Irrigation Contractor license. Unlimited Landscaping
Contractors—there are a few ... not that many—
Chairman Lantz: This is one.
Michael Ossorio: ... and this is one ... are allowed to do irrigation. An Irrigation
Sprinkler Contractor,by definition, is qualified to install, maintain, repair, alter or
extend all piping and sprinkler heads used for irrigation, including any required
connections to a water pump. However, such work does not include direct
connection to potable water lines.
Patrick White: Right—that's the key word.
Michael Ossorio: You have argued that his tapping into the sprinkler line to the
pond is not irrigation.
Assistant County Attorney Noell: Are there any other questions for this Witness
before I call the final Witness?
Richard Joslin: I have one last question.
Richard Joslin questioned the Witness:
Q. On Page 118, in your opinion, is it an electrical panel that I'm looking at? It
appears to have three main breakers and a couple of, it looks like ... maybe,
receptacles or turn-off switches—I'm not sure.
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January 15,2020
A. Those are the same receptacles for the pump that we're talking about.
Q. Correct, I think. I can't tell for sure, but that's what it looks like. But I'm not
seeing any conduit leading into it. The conduit seems to go somewhere else, but I
am seeing a main line bringing in the power, I assume. Is this the portion that you
said would need an electrical permit to run this power?
A. Correct.
Q. Okay. The last question: Wouldn't it be required to be grounded where there
should be a bond from the panel to the pumps to this pond, so to speak, since in
their contract, they listed a bond beam?
A. Well, the bond beam in in the contract is, I believe, in one of the photos and
shows it goes all the way around it.
Q. Right.
A. With the power, it should be bonded ...
Q. Right.
A. I don't know if that's the same terminology, but I would say yes, the pumps
should be grounded.
Q. That's all.
Chairman Lantz questioned the Witness:
Q. Is it typical to see pool pumps like this on a koi pond application? I'm just asking
because I don't think I've ever seen one.
A. Not of that size, no.
Q. I've hooked up a few but I've never done it a cord before.
Patrick White: I'll just ask that since,we're on the record, to use the microphone a
little better—that will help.
Jonathan Walsh: Sorry. In my experience, yes, a pump of that size is a little bit
more than is necessary.
Richard Joslin: If you look at the next page, 119, I'm seeing two very large—what
looks to be like sand filters -- it's probably the filtration system plugged in at the
same time. It definitely resembles more than just a simple pond in my opinion.
Patrick White: I think Page 142 may be the closest thing to a complete system—
electrical, plumbing,pump, filtration—is it?
Jonathan Walsh: Yes.
Chairman Lantz: Any other questions?
Michael Boyd: I have a question for Mike. I read something here-- are his licenses
even current?
Michael Ossorio: I think he renewed his licenses—he might be inactive for
insurance or Workers' Comp issues. But he does have a valid ...
Michael Boyd: All three licenses are current?
Michael Ossorio: All three licenses are current as it relates to renewals.
Patrick White: I think the Board's main question is, were the licenses current during
the time frame that the work was being performed.
Michael Ossorio: Yes.
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January 15,2020
Assistant County Attorney Noell: If there are no other questions, I will call Mr.
Kurtz.
Examination of the County's Witness by Assistant County Attorney Noell:
Q. Please state your name for the record.
A. My name is Gerald Kurtz.
Q. Where are you employed and in what capacity?
A. I'm employed by Collier County in the Storm Water section as a Principal Project
Manager.
Q. As part of your duties in that position, do you review permit applications to
determine whether a permit can be issued or not regarding drainage easements
that the County has and things like that in flood areas?
A. Yes.
Q. In this case, did you go out to the ... well, let me ask you this ... what did you do
in this case? Did you go out to the site? Did you review anything?
A. Yes. We went out to the site in late October and then early in November of last
year as a result of the Code concerns and the complaint.
Q. Were you able to determine if the County had a drainage easement in the property
where this construction had occurred and that you have heard testimony about
today?
A. Yes. I am very familiar with the neighborhood. I am familiar with the drainage
system for the whole neighborhood. Yes, there is a forty-foot drainage easement
behind—in the back yards of principally every lot in the neighborhood.
Q. And in looking at—in going out to that site—the pond and the work that you
observed, would that be something that a person could get an after-the-fact permit
for... or would you be the individual who would deny it because of the drainage
easement that is in place behind that residence?
A. Yes, I would be the individual to deny that permit application because the County
does not allow anything of this nature to be installed in a drainage easement.
Q. As far as the drainage easement itself, the easement has not been vacated by the
County or anything of that nature, and it is your understanding that it is still a
viable easement, is that right?
A. Yes.
Assistant County Attorney Noell: That's all the questions that I have for this Witness.
Patrick White: If I may,Mr. Chairman?
Patrick White questioned the Witness:
Q. Mr. Kurtz, it's good to see you again. I'm assuming you have reviewed the plat.
A. Yes.
Q. For Edgewild Boulevard and that's where your conclusion that the County
possesses a forty-foot drainage easement arises from?
A. Yes, as well as a South Florida Water Management District permit.
Q. The permit authorizes an easement?
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January 15,2020
A. No, it's indicated on the permit.
Q. Then they rely on the public drainage easement that was created by way of the
plat to have authority to be able to regulate Storm Water Management?
A. Yes.
Q. Okay. That I agree is not easy to understand. I mentioned earlier the boundary
survey—the sketch of the boundary survey—that was provided incorrectly seems
to indicate that this is some kind of lake maintenance easement across the rear of
the subject lot. That's not the case, is it?
A. No, sir.
Q. South Florida doesn't consider it to be a lake maintenance easement either, does
it?
A. No.
Q. Does South Florida have jurisdiction over any request to vacate some, or all, of
the forty-foot drainage easement, if one were to be applied for through the
County?
A. Yes, I believe they would.
Q. They would have jurisdiction? Or would they be sought as a Review Comment?
A. They would be sought—definitely—as a Review Comment.
Q. But, again, the only legal authority arises through the general permit that they
issued for the subject plat and the property in particular—is that correct?
A. I believe so.
Vice Chairman Nolton: That would violate the permit.
Patrick White: I'm not suggesting it wouldn't. I'm simply trying to draw the lines
here as to what it is and who it is that has any responsibility or authority were there to
be a request to vacate some, or all, of this drainage easement. I want the Board
members to understand that as cleanly and clearly as possible.
Richard Joslin: Wouldn't that be justified by a variance ... or couldn't they ...?
Patrick White: It's not called a variance, it's called a vacation—the public's rights
in the property are removed and the private landowner who was burdened by the
drainage easement would be allowed to do something other than—they would be
allowed to do the same things that they were doing on the rest of the property.
Q. So, the next part of my inquiry goes to the notion a permit that apparently ... from
what I can understand from the record ... was issued at some point in time for the
installation of what I believe were thirty-six-inch culverts. Are you familiar with
that?
A. I'm not familiar with the permit, but that's my understanding as well.
Q. As to at least this subject lot, are there one or more thirty-six-inch culverts within
the forty-foot drainage easement?
A. There are culverts within the draining easement, yes.
Q. And do those culverts provide the function of what otherwise would be the
purpose for the drainage easement for Storm Water Management purposes?
A. In my opinion, ho, they would not.
Q. And that is because ...
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A. Because the Water Management area in the easement behind everybody's house
was designed with a specific volume to hold and attenuate storm water. When
you replace that volume with two thirty-six-inch pipes, there's a loss of volume as
a result and that's not something that I would approve.
Q. Understood. Relative to the adjacent properties along the rears of the lots on the
east side of what's been re-designated from Edgewild Boulevard to The Lane, are
you familiar with what the status is of vegetation and impact on storm water flows
through the forty-foot drainage easement?
A. Yes.
Q. And is this property an exception to the general condition of allowing storm water
flow through the forty-foot drainage easement or is it somewhat similarly
situated? What I'm trying to get to ... is it more of a plug or less?
A. In my opinion, it is a restriction to the original design of the system, yes.
Q. And would that be the case prior to the installation of the koi pond?
A. Yes.
Q. Okay. So,what I'm driving toward is what may be the probability or not of the
Board of County Commissioners—who have the ultimate authority for the
vacation of a portion of a plat's easement—being presented with the matter and
being able to make a reasoned determination that, based on the prior existing
circumstances before the pond was built, that there was already sufficient impact
to the capacity of the drainage easement and they may choose to override Staff's
objection. I'm just trying to view that as a hypothetical because it goes to the
notion of—at some point—whether it has to be removed or there's some way to
retrofit and provide the function that the drainage easement is supposed to do
given that, over the course of time since it was platted, there have been all kinds
of vegetation ... as it looks to me from the aerials ... that has grown in and
minimized or restricted the original capacity for storm water flow. So, I'm just
looking for a way to ...
Terry Jerulle: Let me try to ...
Patrick White: ... simplify it. •
Terry Jerulle: ask a question of Mr. Kurtz.
Terry Jerulle questioned the Witness:
Q. There's a drainage easement there—correct?
A. Yes.
Q. The fact that somebody fills in the drainage easement—does that vacate the
drainage easement?
A. No.
Q. The fact that somebody plants trees in that drainage easement—does that vacate
the drainage easement?
A. No, sir.
Q. The fact that somebody puts a koi pond or accessories in that easement—does that
vacate the easement?
A. No.
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Patrick White: But I think if you just look at what's displayed on the monitors,you
can see that the adjacent properties are ones that, you know ...
Terry Jerulle: I've fought this fight several times, Mr. White, it's still an easement.
Patrick White: I understand that. But I've been the guy who has been asked as an
Assistant County Attorney to review vacation requests. And these are things that, in
my experience that I've had to balance the concerns for in offering Staff some
guidance. So, I'm simply trying to rely on that experience in my questions to Mr.
Kurtz and our discussion to be able to evaluate at the end of this,just what may come
out of it for the Respondent in terms of options and opportunities.
Chairman Lantz questioned the Witness:
Q. So, this picture up here ... this is showing the inside of what is the easement?
A. Yes.
Q. Now I see notes that say, structure, koi pond, and aquaponics—is that the whole
... the thing that was built is inside this easement or it is only a portion of it? I'm
just trying to clarify how much we're talking about here. It looks like there's
some palm fronds blocking my view of what is actually there.
Patrick White: I think there was a sketch that showed it may have been around
thirty feet from the interior line of the drainage easement toward the rear property line
that the koi pond related structures impact. About three-quarters of the drainage
easement is consumed by it.
Q. So, what I'm concerned about is ... if the koi pond ... I don't know how big the koi
pond is. The easement is forty feet ... is the koi pond one hundred feet and twenty
feet into the easement or is the koi pond basically thirty feet and thirty feet into
the easement?
A. When you include all the piping and all the other structures involved, it's pretty
much ... the whole easement is impacted.
Q. I understand the whole easement but what percentage of the koi pond are we
talking about is impacting the easement? I understand that the whole easement is
being impacted but are we talking a small part ... like ten percent of the pond
needs to be moved or are we talking about pretty much the whole thing?
A. No—it's substantial ... it's much more than ten percent.
Q. Over fifty percent?
A. Of the pond structure itself, I'd say over fifty percent, yes.
Patrick White: And based on where the guest room is, and other structures outside
of the drainage easement,there really wouldn't—at least in my determination—be
any area where the pond could be relocated to that was outside the forty-foot drainage
easement. Would that be a fair statement?
A. Yes.
Patrick White: Thank you.
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Terry Jerulle: One quick question, Mr. Kurtz. Different entities have different
requirements. Do you require an as-built survey after the permit is issued to ensure
that the drainage easement has not been impacted?
A. Yes, we would.
Terry Jerulle: Thank you.
Chairman Lantz: Mr. Bass, do you have any questions.
Cross-Examination of the Witness by Respondent's Attorney:
Q. Some of the questions may already have been answered, but I'd just like to make
a couple of things clear,Mr. Kurtz, if I could. Some of the Board members have
touched on it,but you have not actually measured it to see how much of this ...
how much of what was done goes into the easement,have you?
A. No, I have not.
Q. And you're just basically giving us your best guess, aren't you?
A. Well, I walked all the way around it a few times.
Q. But you're giving us your best guess, aren't you, because you haven't measured
it?
A. I have not measured it.
Q. Okay. And I guess—just to make it clear—even though you claim this is an
encroachment, there was already an encroachment before the kos pond was even
built with the filling in and the placement of the culverts. There had already been
an encroachment, correct?
A. Yes.
Attorney Bass: I have no further questions.
Chairman Lantz: Any other questions?
Patrick White questioned the Witness:
Q. Just to clarify, if I may? The Witness has testified that there is an encroachment
but was the encroachment, if you will,permitted for the purposes of installing the
culverts?
A. It's my understanding the—yes, as part of the house—the original house
construction is the best that we could determine. It was addressed in the original
house permit.
Q. Do you know when the piping and the permit were installed and issued?
A. No, I do not.
Q. Have you seen or reviewed a copy of that permit?
A. No, sir.
Q. To the best of your knowledge, does the County have a copy of the permit?
A. To the best of my knowledge, we do.
Vice Chairman Nolton: In ... I just—encroachment ... I mean, encroachment to me
means that we built something or did something over an easement versus changing an
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easement. I can have an easement and it can be designed with pipes or a boxed
culvert or something like that versus an open channel flow which is what it was
originally designed for, so my understanding is the open channel flow was altered to a
culvert flow on this property. I don't know that I could call that an encroachment
versus a modification of the design of the flow.
Patrick White: They're still both within the scope of what the easement intended
and the purpose for which it was platted and dedicated. They both perform drainage
functions. By putting the physical piping into the drainage easement, I think that was
the intent of what Mr. Bass was referring to—and if I'm mistaken, Mr. Bass, I ask
you to help us better understand.
(Attorney Bass'off microphone response was not recorded.)
Thank you.
Chairman Lantz: Mr. Noell?
Assistant County Attorney Noell: No further questions. That ends the County's
evidence.
Chairman Lantz: Okay.
Patrick White: Do you want to reserve the right to rebut?
Assistant County Attorney Noell: Yes, but I don't think I need to reserve it. I think
the rules allow for rebuttal if I need to call for a rebuttal witness.
Reto Kramer was called to the podium to testify.
Cross-Examination of the County's Witness by the Respondent's Attorney
Attorney Bass questioned Reto Kramer:
Q. Mr. Kramer, you live in a Homeowners' Association [community], do you not?
A. That is correct.
Q. And did you apply—you did apply for permission to build this, didn't you?
A. Correct.
Q. And was there an investigation conducted by the Homeowners' Association?
A. The only thing that they cared about was the distance from the backyard ... from
the fence that goes to Tiburon to the back of the structure.
Q. Okay. And they approved this project, did they not?
A. That is correct.
Q. Are you telling the Board that you were unaware of any kind of set-back
restrictions?
A. What do you mean?
Q. Well, for this project to be built, are you saying that you were completely unaware
of any set-back requirements?
A. That's why I checked with the HOA.
Q. Okay. So,you checked with the HOA and they approved the project. Was there
any kind of project depiction that was given to them—a schematic of some kind?
A. Yes, the same schematic that you have in the [packet] ... yeah—it was discussed,
it was emailed back and forth—what the actual distance would be, and it was
agreed on a distance that worked.
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January 15,2020
Q. With the drainage easement having been covered over, if you will ... with the
culvert—were you aware there were culvert pipes in this easement that services
your property?
A. Yes, I was aware of that ... yeah.
Q. Were you aware of that condition when you bought the property, or did you do it?
A. No, it was in that condition ... it was built together with the house and it was in
that condition from the original builder.
Q. Isn't it true that it was your understanding that, because of the culvert pipes being
there, you could utilize more of the property including inside the drainage
easement?
A. This is nothing that I can decide ... it's something that the permit would decide or
... the HOA seemed to have no problem with it, so ...
Q. But you didn't have a problem with it?
A. Nope.
Q. And the HOA didn't have a problem with it?
A. But the Collier County Code Enforcement ... probably would have to be the one
that makes that decision.
Q. You want to keep the structure, don't you?
A. At this point, if it would be working—it would be great. But he would have to
rebuild the whole thing because it's not going to work this way.
Q. That's a separate issue. You do want to keep it, don't you?
A. Yes.
Attorney Bass: I have no further questions.
Patrick White: If I may,Mr. Chairman,just to clarify?
Patrick White questioned the Witness:
Q. Is the document that you were referring to as the "graph" or"sketch"—does this
depict—I would ask if the Witness could review this (displaying), so I know what
it was that he was referring to as part of the interplay with the HOA seeking its
approval? It's the `Sketch of Boundary Survey' provided by—prepared by—
Benchmark Land Services, Inc., that's annotated with a drawing and words
talking about"depth of pond," and"waterfall on top of ground," and "paver
patio"with some dimensions. It looks like it is Page 112. I apologize for not
knowing that beforehand. I like my print-out better so, thank you, Mr. Bass. I
believe you provided those.
A. Yes,that's the one.
Q. That is the one. And was it your understanding that the HOA—in granting its
approval—was telling you that, from their perspective, they were going to
indemnify you or hold you harmless if the County came after you?
A. No—absolutely not.
Q. I did not think so, but I just wanted to understand.
A. We just checked with the HOA—would they allow this as the HOA because
nobody really has something like this. So, I wanted to make sure it was according
to HOA guidelines and we were not doing anything that the HOA doesn't allow.
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January 15,2020
Q. Correct.
A. That was the first step. And, obviously, the rest of the steps would have been
done by Williams Magical Garden.
Q. We certainly understand, and I think that's why we are here today. But my point
is it was never your understanding that the HOA had any rights to the drainage
easement or control?
A. No, no, absolutely not.
Q. So, for the purposes of their approval, it didn't authorize work to be done in the
drainage easement?
A. No.
Q. Thank you.
Richard Joslin: I think it was just the fact of giving their approval that it could be
built ...
Patrick White: But it didn't ...
Richard Joslin: not that they allowed it to be built. It was just their opinion ... what
an HOA does—they give their 'okay—it looks pretty and falls under our guidelines,
so you can do it.' But then it goes before the permit aspect to find if it can be built. If
it can't be built, then the HOA doesn't matter anyway. They should have gotten the
authorization first.
Patrick White: I don't disagree with your statement at all. I was simply trying to
make clear for the record that the HOA did not have any rights with respect to the
drainage easement.
Richard Joslin: Right.
Patrick White: And, thus, its review was exclusive of that and only pertained to
whatever would be in their Restrictive Covenants, Declarations, et cetera, the
governing documents pertaining to the HOA and its ownership.
Chairman Lantz: Can I draw your attention to Pages 193 and 194 in our packet?
This is an email and I'm curious as to who chip(a�capnaples.com is because he wrote:
"Just one unlikely caveat for your attention, Reto. Because part of this installation
will be over those swale drainage pipes, the South Florida Water Management
District could, in a very unlikely scenario, insist part of the feature be moved out of
this easement." Who is Chip?
Reto Kramer: He was the HOA Director at that time.
Chairman Lantz: Okay.
Patrick White: He was the Executive Director for the property management
company? He was not one of your Board's or HOA Board members?
Reto Kramer: I think he was the President of the Board.
Patrick White: Well, there's big difference between a hired employee of a property
management firm or property management company and being the actual President of
the Association, as I am. Believe me, I know the difference.
Reto Kramer: As far as I know, he was the President of the Association.
Patrick White: And he lives somewhere within the community, to your knowledge?
Reto Kramer: I don't know.
Patrick White: All right.
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January 15,2020
Assistant County Attorney Noell: I have a question on rebuttal.
Collier County's Rebuttal by Assistant County Attorney Noell:
Q. Mr. Kramer, did you speak to Mr. Williams regarding whether a permit was
needed or not for the work that was performed?
A. I was just asking Dana [Torkko],you know, if there was any permitting and
she answered, "We have been doing this for forty years—don't worry about it—
we have everything under control—we know what we're doing."
Q. Did she or Mr. Williams ever represent to you that they had called some Staff
member from the County and was told they didn't need a permit?
A. No, no.
Assistant County Attorney Noell: I have no further questions.
Attorney Bass: I do have a couple of questions.
Cross-Examination continued by the Respondent's Attorney:
Q. First, sir, your dog fence ... was that within the forty-foot drainage easement?
A. It was from the property line to the property line, so it was as close to Tiburon as
it gets.
Q. So, it was well within ... inside of the forty-foot area, right?
A. Yes.
Q. And ... also ... so, it is true, then, before the project got started,you were warned
this could encroach on the easement?
A. Well ...
Q. Isn't that correct?
A. The HOA brought it up but, again, they are not in charge of this.
Q. But my question is you were warned there could be a problem, correct?
A. Yes.
Q. And you ... did you bring that to Mr. Williams' attention?
A. I brought it up to Dana's attention,yes.
Q. So, would it be fair to say that you assumed the risk of this problem?
A. By the way, this email was forwarded to Dana, too.
Q. I'm sorry?
A. This email was forwarded to Dana, so she was aware of this, too.
Q. Sir, my question is: Is it fair to say that you assumed the risk of this problem?
A. No,because I was under the impression that the next step would be to check with
Code Enforcement—if this project would be allowed.
Attorney Bass: No further questions.
Patrick White: Can I clarify and direct your attention to Page 152 in the packet?
Patrick White: The question that Mr. Bass asked you about a fence—the only
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January 15,2020
fence I see on this WilsonMiller-prepared 'Map of Boundary Survey' shows the
fence to be in the non-platted area which would be further to the east and outside the
drainage easement?
Reto Kramer: The fence was built by us.
Patrick White: I'm just asking you to look at it ... is that the fence we're talking
about? You see it's ... further to the east at the rear of your property. Looks like it's
actually outside your property, according to the survey anyway.
Reto Kramer: I would say that's probably the fence from Tiburon.
Patrick White: That's Tiburon's fence. So,the dog fence is something else?
Reto Kramer: Yes, it's right next to the ... well, obviously,where the Tiburon fence
is, we don't need a fence because Tiburon already has a fence. So, it would be on
both sides of the easement and connected to the Tiburon fence.
Chairman Lantz: Approximately when did you put that fence in?
Reto Kramer: I would say ... probably–I don't know–about six years ago.
Chairman Lantz: This survey is dated June 22,1999 ... so the fence had to be there.
Patrick White: Are you saying that your fence is perpendicular to Tiburon fence and
its on the side yard?
Reto Kramer: On the side and then it goes back in where the walkway is on both
sides.
Chairman Lantz: Back into ...
Vice Chairman Nolton: Back into the house to create a secure ...?
Chairman Lantz: Right.
Patrick White: But the fence itself is on the sides of your property?
Reto Kramer: Correct.
Patrick White: It doesn't go across the rear property line?
Reto Kramer: Correct.
Patrick White: So,the only"encroachment," if you will, is on top of the property
where it goes into the drainage easement at the rear.
Reto Kramer: Correct.
Patrick White: Got it.
Chairman Lantz: Any other questions? Mr. Bass, the ball is in your court.
Richard Joslin: Where does the pond stand today—is it still there?
Reto Kramer: The pond is still kind of there, yes. Pond is in pieces and we had to
drain the water out. You can see the liner.
Richard Joslin: Is the area secure now?
Reto Kramer: On the fencing side,yes. We couldn't use ... however, for the last
one and one-half years we couldn't use that property because it looks like a
construction zone, and its very unsafe there, too.
Richard Joslin: Right–that was my point.
Respondent's Case in Chief was presented by Attorney Bass
Respondent, Thomas R.Williams, was called to testify.
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January 15,2020
Attorney Bass questioned the Respondent:
Q. Mr. Williams,just very briefly, tell the Board your name and address and the
business that you are in.
A. I'm Tom Williams and I own the company called Williams Magical Landscape at
1717 Pine Ridge Road in Naples. I've been in the business for fifty-three years
and this is the first time that I've ever even seen the Board. It's kind of a surprise.
We've also done this kind of work for fifty-three years and I'm surprised that a lot
of the conversation here regarding permitting items that we haven't ever had to
do, and I've never gotten a memo that said we had to do it. I'm surprised and
perplexed that these things have taken place without our knowledge. As an
everyday contractor, we should know these things and be reminded periodically
of things that are newly permitted and so we can comply to things like that. I feel
that what we've done has been in good faith from the very beginning and would
have been finished provided we were able to correct our differences. We needed
additional funds at the end of the work—just the final payment—so we could pay
our crews and finish the job. We were, like, thirty-thousand dollars over and
above what we were being paid for the job already and we needed money to get
through the Christmas season that year and to finish the project as well with the
labor that was required to do the three or four small things that had to be done.
Q. Can you tell the Board if this kind of project that was done here—have you done
projects like that before?
A. we done hundred of ponds,pools, pavers, pergolas, irrigation systems,
landscaping of all kinds, on easements of all kinds, throughout the entire County—
every kind of easement imaginable.
Q. Right.
A. Without any question or problem.
Q. What about pulling permits? As you heard today from the Building Official—this
project didn't have a building permit.
A. We know that there are items that we have to have permits for ... like ... irrigation
systems, we pull permits for. If we're doing work in a swale, we'll pull a permit
for it. Wherever pavers abut a right-of-way, we have to pull permits for it unless
its in an HOA where we don't have to. But there are a few things that we pull
them for, and we do it as necessary. We didn't see the need here in this case from
the very beginning.
Q. Okay. And for the electrical work that was done on this project, was a licensed
Electrician ...?
A. We hired a licensed Electrician to do the work. We knew it required a permit.
Q. Who was that?
A. I'm sorry ... I don't have that information with me. My manager who was
supposed to be here with me ... has that information ... I don't have it.
Q. Is she now working for someone else?
A. No. She works ... well, the company has been sold. She does ... in that fact ...
work for someone else. And she's very busy working for that company.
Q. I understand. Are you familiar with how the ponds were serviced ... what's the
correct word ... how they got water? Are you familiar with it for this project?
A. How they got water? Oh, yeah.
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January 15,2020
Q. Please explain that to everyone.
A. Initially when we were first putting the project together, we ran the water off of a
hose which we thought was well water. It was not. We actually filled the pond
with city water off of the house—which was potable water—and ran it to a little
flotation valve that creates the water ... keeps the water level high. And we did
change it to a non-potable line within the irrigation system.
Q. Could you explain that the Board because I know there were questions about that
earlier.
A. Early in the ... we had an irrigation line after the vacuum breaker on that line, that
is non-potable water, it is kept separate from house water and from potable water
in that respect with the vacuum breaker.
Q. So, initially, it was off of a hose and then later changed?
A. It was only a temporary installation but it ... was later hooked up to the auto fill by
a pressure line off of the water system after the fact or after the potable division of
vacuum breaking.
Q. Did you hear Mr. Kramer's testimony that this project has never been finished?
A. Well, I agree with him—it hasn't been finished. From the beginning of the
project, we had some serious difficulties in that—the one very unusual thing
about this pond was that it was—part of it was within the water easement where
there was a ditch that was ... had a tremendous amount of water—it was in the
rainy season. And so, there was a whole lot of water in it. We actually had to
dam that and pump it dry which was a comedy of errors for sure for several
weeks. I wasn't around to supervise it at that time—I didn't become involved
until late November of that year. But we eventually got it under control and put it
together,but it did take a whole lot of time to get past that point in the project.
Q. Are you saying that because of the area where this was built—that it was low
there?
A. No,because it was in the water easement and adjacent to the culvert. Part of the
pond lays right against the inside culvert. And that culvert was sitting in the water
in the ditch. So, the water in the ground—the water level of the ground was only
like a foot below—two feet below the surface of the ground. So,we're dealing in
water and had to pump it dry to put a liner in and the you had to fill the liner to
keep it from flooding which was,basically, what we did at that point. It did take a
lot of extra time.
Q. There have been statement and questions about how much of this project was
within the forty-foot easement that we've been talking about. So, can you tell the
Board how much of it is within that easement—that forty-foot area if you will?
A. Well, because from the very beginning, we felt that we were free and clear to use
that easement as we needed to ... I really haven't measured that, but I would
imagine that the pond itself is probably three feet into the easement. But, behind
it there, are areas of fill which we made into waterfalls and a river that backdrops
this whole picture. And, in doing that, we were on top of the drainage easement
with the berms and the water feature that kind of wrapped around the pond. I
don't know if you saw that—thumb plug ... whatever it is you put in the computer
to see the project ... you'd get a pretty good idea of what the project looks like.
Q. Mr. Kramer testified about palm tree roots penetrating the pond?
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January 15,2020
A. Well,that's a very unusual situation. The pond [liner] is made out of 50-mil
rubber and in cases where there are other ... trees adjacent to it, we put in a double
layer of it ... 100-mil thick rubber. It's really rare for a pond to ever penetrate
that.
Q. Can you talk about the necessary precautions that you should have?
A. In every case that I've known ... in our whole history, we've done that.
Q. Okay. And there was also some talk about ... testimony about walls collapsing.
Do you know what he was talking about?
A. Because we were pushed off the property, I was not privy to that information. I
haven't seen it and I haven't even seen a picture of it. There were a lot of things
that Mr. Kramer complained about that there were no pictures for even though he
mentioned it several times, we haven't really seen it.
Q. Why do you think you were pushed off the property?
A. We got a letter from his attorney that said for us not to come on the property and,
basically, to cease and desist. At that time, he was going to take the remainder of
our funds and have someone else finish it with those funds.
Q. You said you thought you were free and clear to build on this forty-foot area that
we've talked about. Is that something that you had a discussion with Mr. Kramer
about?
A. Well, I personally didn't because Dana—who was supposed to be here—was the
person who sold the project and discussed those things with him up front. But I
have been privy to all that information over and over again, as we mulled it over
in our minds to be prepared for this discussion. And, we understood through all
the texting back and forth between the HOA and Mr. Kramer which we had
copies of—he gave them to us—and as we discussed the project from the very
start—that the HOA had—they even had their attorney check with the County for
the viability of this in that location. And we felt completely exonerated to go in
and do the work that we did at that point without any restriction whatsoever
regarding the location of it within that drainage easement.
Q. All right.
A. I would like to make a statement,too, if you wouldn't mind.
Q. What would you like the Board to know.
A. I'd really like to say right up front that the Kramers are really nice people—they
have wonderful kids—they wanted something very special. Not everybody can
afford to do that—this was created almost like a Disney-like installation. I mean
it had a lot of different components that were hard to put together. And there are
a lot of things that come up when you're doing something totally unique that
requires a lot of attention and a lot of patience. Throughout this project, Mr.
Kramer is a very detailed person and a perfectionist, who likes to be right on top
of every little thing. And so is Mrs. Kramer—God love her—she's a wonderful
person but we did many, many things there two and three times to satisfy them
and to meet their goals. And all they wished to do was to make something special
for their family, and I really admire that. And I'm really shocked at this point to
have this kind of concern over such a simple thing. And when it's all put
together, there are really two points to make. Number one, the culverts were
already there, and they've been there for many, many years. Why in the heck
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January 15,2020
didn't the inspectors in the building catch it if it's illegal at that point for them to
be there? I can't understand that. They got permission from the people in power
to do this project and in good faith, hired us to do the work which we can do, and
we do every day. And in doing that work, we ran across these obstacles and then
at the end, the Code Enforcement feels that we should rip it all out,haul it all
away, and clean it up and leave it with new sod and level in the back—but leave
the culverts there. It makes no sense to me at all because if the culverts can
remain, why can't this beautiful picture? I mean, it makes no sense. If this
should come out, the culverts should come out and he should have a ditch in his
backyard like everybody else does on that street. The ditch is ugly, it's not
maintained and at least, in his case, it was, and it looked really terrific and people
really loved it. So, I think the thing to do is to restore it—make it where—which I
can do easily but I can see we're not going to agree on a few terms ... and do this
thing right and be done with it.
Q. When you say restore it, you're talking about getting into a condition ...
A. Put it back to where it should be right now. I told him throughout ... this structure
here ... this kind of installation requires a great deal of maintenance. You have to
be on top of it on a regular basis. At that time, that was a service that we offered
but I wasn't vying for the job ... I just told him it had to be done. And he didn't
seem to want to get his hands into it to be part of it ... he just kind of wanted to
ride over the top and find fault with every little detail of it, which is really hard for
me to deal with because I'm a `do-er' —I like to finish things. At any rate, I think
that putting the proper components together that are there, revising the ones that
exist that had fault or negativity about them, and putting it back with the
understanding that there is a maintenance factor that has to be done there or you
don't even need a pond. If you're not going to maintain it, you don't need to be
any part of it. And he needs to be part of it to continue on with it. They should
have it if it's something that they enjoy.
Q. Okay. I have an point-of-order kind of question as far as the defense packet ...
you know ... providing all the copies that were required ... as far as introducing
them as evidence. Do we do that separately or it is kind of... you already have
your copy to use for that purpose?
Assistant County Attorney Noell: I believe that in the packet, the defense copy is
also part of that packet. If the Board has through Page 257 in the evidentiary packet?
Chairman Lantz: Yes.
Assistant County Attorney Noell: So that ...
Attorney Bass: So, the defense packet is in evidence?
Assistant County Attorney Noell: It is.
Attorney Bass: I don't think I have any further questions.
Respondent Williams: Did anyone actually see the video that was turned in with the
packet?
Attorney Bass: There was a video with it.
Respondent Williams: The thumb drive that was in the packet shows this
installation in operation.
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January 15,2020
Attorney Bass: Right.
Respondent Williams: It's a thing of beauty and you should see it.
Richard Joslin: Mr. Williams, I don't think anyone here on this Board is
questioning the fact that what you did—or what you can do—the problem is the
things that weren't done.
Richard Joslin questioned the Respondent:
Q. Now, you stated a little bit ago, that you've done hundreds and thousands of these
same installations—hundreds. What prompted you not to check—since this was
such an extravagant piece of material that you were going to install—what
prevented you from going to see if it even needed a permit so it could be built?
A. The experience of having done time after time, and every time in every easement
known to man—power easements, water easements, drainage easements, road
easements, rights-of-way --we've never had to have a permit and never had a
problem with anything like it. This was the first time for us—we're virgins. We
didn't know anything about it. We've never had to pursue a permit in that case.
Q. But now you're finding out if you had applied for a permit, it would have been
turned down. You wouldn't have been able to build this under the terms and
conditions of the permit applications—if you would have filed. Now,because it
is a picture of beauty, doesn't give you the right to just go and do it because
you've done it in the past. I mean, I've been in business here for forty-years in
Naples and I always check to make sure ... even if an HOA says I can build
something ... a commercial pool ... or put it on certain setbacks ... if I'm allowed
to do that. An HOA will say, 'sure you can do it—no problem at all' because
they don't care ... they don't check the with the County. They are just looking at
what they're looking at ... it's your job to go the rest of the way and follow it all
the way through to get the actual permit. You knew you needed ...
[Significant cross-talk occurred... both parties, Mr. Joslin and Mr. Williams, were
speaking over each other... the comments could not be distinguished.]
Patrick White: Gentlemen, one at a time,please. You cannot both speak at the same
time.
Attorney Bass: You're talking over him.
Patrick White: One at a time,please, gentlemen.
Richard Joslin: I'm just appalled at your actions, basically. For as many years as
you have been in the business—you missed a big step that should have been done.
Terry Jerulle: Mr. Chairman?
Chairman Lantz: Yes, sir.
Terry Jerulle: May I?
Terry Jerulle questioned the Respondent:
Q. Did you say you sold the company?
A. I sold the company.
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January 15,2020
Q. Who owned it prior to the sale?
A. Who owned it? My wife and myself.
Q. And who was the Qualifier?
A. I have been the Qualifier.
Q. You have been. And on the three licenses, you are the Qualifier?
A. Correct—for all those years.
Q. Okay.
Vice Chairman Nolton questioned the Respondent:
Q. Mr. Williams, you stated earlier that you have pulled permits in some situations if
I understood you -- right?
A. When we've been informed.
Q. Well, can you tell me again, when you had pulled permits?
A. I never pulled a permit for a pond at all, ever. When I've pulled permits, it's
either been for irrigation or irrigation near a road or pavers that adjoin a right-of-
way ... and you need a DOT (Department of Transportation)permit for that ... for
new irrigation going into a property—you need to have a permit for that and I've
pulled permits for that.
Q. And I think you also said if there was a swale in the front ... earlier you said about
pulling a permit if you were going into a swale in the front of a property?
A. Into what?
Q. A swale ... a drainage ... where there's a ditch in the front, you said something
about needing a permit there.
A. Many times, we'll be asked to put a permit ... I'm sorry ... a culvert under a
driveway when someone has a new residence and we put in pavers out to the road,
we have to get a permit for that culvert—for the way its treated with the concrete
on both ends, and so forth,which we've done—a few times ... not a lot.
Q. Why do you have to get permits for that?
A. It's in the County's swale.
Q. Which is a drainage easement?
A. Yeah. In Golden Gate, everybody's got one.
[There was an off-microphone conversation between Mr. Williams and Mr. Bass.]
Respondent: She's here.
Chairman Lantz: Mr. Noell, do you have any questions?
Assistant County Attorney Noe11: Just briefly.
Cross-Examination of the Respondent by Assistant County Attorney Noell:
Q. I'm going to show you Page 111 in the evidence packet. (The document was
brought over to the Respondent to review.) Sir, is that the Agreement ... the
contract that your company entered into with ...
A. Yes, it is. [Respondent said something about `missing' ...]
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January 15,2020
Q. I understand. In the contract that your company wrote up, I believe it is signed by
Dana Torkko. She was authorized to enter into agreement on behalf of the
company at that time.
A. Yeah.
Q. This is the contract that the company entered into, is that right?
A. Yeah.
Q. Okay. When you look at Item 1-(e) in that contract, part of the job description is
to have"electric and plumbing," that's stated there in the contract?
A. Correct.
Q. Okay.
[Assistant County Attorney Noell returned to his podium.]
Assistant County Attorney Noell: I have no further questions.
Terry Jerulle: Mr. Chairman?
Chairman Lantz: Yes, sir.
Terry Jerulle: May I ask another question, please?
Terry Jerulle questioned the Respondent:
Q. Something just keeps bothering me, Mr. Williams. I think you said several times
that you didn't get the memo—meaning ...?
A. I'm not talking about any specific memo—we don't get information coming down
from the County about what any new rule might be or what new requirements are
necessary.
Q. Okay. I understand, I think,what you're saying.
A. It wouldn't hurt to get a memo once in a while. We know you guys are around
here.
Q. When you say, 'you guys,' I'm a contractor like you, Mr. Williams.
A. You've been there then.
Q. Well, I think ... it's my understanding that it is incumbent upon me, as a
contractor and as a license holder and as a Qualifier, for me to know when a
permit is needed or not. It is not incumbent upon the County to tell me, or know
what my business is, or know what work I'm doing to tell me when I need a
permit for that work.
A. Well,you've heard the term here used"grey area"—so many things have a grey
area.
Q. No, not in this—that was in relation to another discussion. What ... Mr. Nolton
just asked you if you needed—if were doing work in a front swale of a property
which is a drainage easement and you acknowledged that you needed it—a permit
—to do that.
A. That's for a specific ...
Q. There's no difference in the back of a property for a drainage easement, is it? Is it
Mr. Ossorio's job to tell you when you need a permit or is it your job to find out
from Mr. Ossorio ...?
A. There is a drainage easement, but we were given the go-ahead by a
knowledgeable person who had spent two months getting this permission. We
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January 15,2020
felt total permission from an HOA to do this project. The HOA had even
referenced in one of their texts that they had their attorney meet with the County
to arrive at this go-ahead—uh—configuration for us to move ahead with the
project.
Q. Can you reference that ... in the defense packet ... where that is?
A. (Respondent turns and speaks to an individual seated near the podium) Do you
know where that is?
Patrick White: I can't tell you what page ...
Chairman Lantz: Is that around Page 193 ...
Attorney Bass: The problem is my pages are not marked that way. What they did
is they took the County packet and they sequentially numbered them and I don't have
them that way, so I can't ... if you've got some other reference ... identifier or
reference ...?
Patrick White: Did you separately number your pages, Mr. Bass?
Attorney Bass: They are not and that's our mistake. Do you have a date? Is it an
email or [Assistant County Attorney Noell walked over with a document] Oh, I see ...
Chairman Lantz: On Page 187 is where they say, "final Board approval for your
project."
Patrick White: Understood. Page 187. What I was looking more towards with
respect to Mr. Williams' point about"approval"by the HOA giving authorization to
proceed because the attorney for the HOA apparently had sought and obtained a copy
of the permit that I asked Mr. Kurtz about—that's referenced as I believe E-5858—
but somewhere it says it quoted or attached to an email from Jim Wallace, who I
think is with Genova Florida, but I don't know that anyone ever saw or has a copy of
what the email says was attached. So ...
Terry Jerulle: But my point is—if I were to listen to every client that I worked with
and if I were to ask him/her if I needed to get a permit or not—he's obviously going
to tell me no. I can't go on that assumption.
Attorney Bass: We're going to have other testimony about that. We have another
witness who is here ... I was expecting her to be here earlier, but she's here now. So,
we have more testimony about that ... about whether there was an inquiry made.
Patrick White: If the person in charge of the monitors could turn to Page 201, along
with the Board members, at the bottom in Parentheses (4), is where reference is made
to the County's permit that had approved the prior work that I assume is related to the
installation of the two thirty-six-inch culverts.
Terry Jerulle: 20 ...?
Patrick White: 201. And there's a suggestion in that chain of communications that
somehow the culverts were to (in Parentheses (2) above) ...the last sentence is: "The
twin culverts were designed to provide the same storm water capacity required by the
swale." Now, that work was done by WilsonMiller supposedly in November of 2001.
It goes to the question of whether and in fact, were a vacation to be pursued, the
County would be in a position where—based on its prior approval—since no one has
a copy of the permit,we don't know what it says—to be held to what seems to be
stated in the email about whether, in fact, what was designed could provide the same
storm water capacity or the County's position today—as expressed by Mr. Kurtz—is
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January 15,2020
it probably wouldn't be enough. So, it would be great to be able to see a copy of the
permit.
Attorney Bass: I can tell it's all going to depend on the law of easements and that is
a complicated area of the law ...
Patrick White: I'm familiar.
Attorney Bass: Yeah, it's a complicated area of the law that the easements have to
serve a particular purpose and when they no longer serve that purpose,then the law
does have a remedy as to whether they are still enforceable as easements. It does
require a request to be made ... and maybe even ...
Patrick White: Correct. And as I said earlier, the Board of County Commissioners
is the only authority ... the only jurisdiction you can go to ... to make that request to
vacate a portion of that drainage easement.
Attorney Bass: I have to say ... I don't want to argue with you about that. I'm not
saying that I agree or disagree. Like I said, the law on easements would apply to this
and if the easement is no longer ... for its intended purpose that might be a different ...
Patrick White: I understand your perspective and having had to defend against
those assertions by contractors as well as attorneys in the past, in conversations with
them, I can tell you that abandonment of an easement is a real tough row to hoe.
Attorney Bass: I would agree with that.
Patrick White: And I've had the issue in the private practice as well. It comes down
to documentation. It comes down to Statutes of Limitations, if you will. It is
complex. It would require what I call the MIBs ... the judges ... the men and women
in black ... to make that determination.
Respondent Williams: And the fact that this has culverts in it that have been
abandoned for all these years ... does that not ...
Attorney Bass: That's a legal question. It's not for...
Attorney Bass: If there are no other questions, I'd like to call my next witness.
Chairman Lantz: Mr. Noell?
Assistant County Attorney Noell: No further questions.
Chairman Lantz suggested taking a break at this point in the proceedings.
BREAK: 11:55 AM
RECONVENED: 12:05 PM
Chairman Lantz called the Public Hearing to order.
Respondent's Case in Chief- Continued:
Dana Torkko was called to testify on behalf of the Respondent.
Examination of Respondent's Witness by Attorney Bass:
Q. Would you please tell the Board your name and address and what kind of work
that you do.
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A. Dana Torkko and I work at Williams Magical Garden Center and Landscape,
1717 Pine Ridge Road.
Q. Is Mr. Williams your employer?
A. He is not now, but he has been for the past eleven years.
Q. And is that how long you have worked for this company?
A. That is correct.
Q. I guess it's a new company that has the rights to the name?
A. Yes.
Q. Would you please tell the Board whether you're familiar with the Kramer project?
A. Yes, completely familiar.
Q. Okay. Have you handled projects like this before?
A. Not to this size, no. This would be my first,personally. Tom has but I have not.
Q. Have you worked with him on projects like this?
A. Yes, sir.
Q. All right. And have you, in the past, and for this project, inquired of the County
about the necessity for a building permit?
A. Yes, I have.
Q. Did you do anything like that in this case?
A. Yes, I did.
Q. Would you please tell this Board what you did.
A. Before this project and in discussing this project with Mr. Kramer when we were
just at the planning stage what he was looking for, for his yard, the designing
phase—I called the County and gave the dimensions of what the pond would be,
the depth of what the pond would be—on three different occasions ... twice by
myself and once by my assistant and the County said we did not need a permit
because it was considered to be a pond.
Richard Joslin: Did you show them a site development or a survey?
A. I did not.
Attorney Bass continued:
Q. Do you know if you told them about the potential electric or plumbing work to be
done?
A. That I did not. We didn't go into details about how it would be plumbed and that.
The just wanted the size measurements and what it would be used for which
would be for koi. I told them it was going to be for hydroponics because they
wanted to grow their own garden, so that was the discussion with the County.
And they said no, it did not need a permit.
Q. There is a contention that under the licenses that Mr. Williams held, that electrical
or plumbing subcontracting could not be done. Has the company done that in the
past?
A. We have. It was the first time that I'd been made aware of that but underneath his
unlimited license, if you were hiring a licensed contractor to do the work, that
contractor would be responsible to go pull his permits for his responsibility.
Q. What is the electrical contractor's identity?
A. Kingdom Electric.
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January 15,2020
Q. Did you have discussions with Mr. Kramer about this project?
A. Yes, many.
Q. What discussions, if any, did you have with him about this—what we've been
talking about—forty-foot easement.
A. We went back and forth with the easement because it was less than thirty. I was
never given a forty-foot easement. It was always a thirty. It was a thirty-foot
discussion from Mr. Kramer. It was a thirty-foot discussion from the
Homeowners' Association—the President of the Association. So, I was unaware
of a forty-foot drainage easement. So ...
Q. What was the discussion about the culvert pipes or anything like that?
A. There was a discussion about the culvert pipes. If I remember correctly, Mr.
Kramer was not even sure if the culvert pipes were permitted because they were
put in by—I guess it was the General Contractor who owned the house prior to
and that was being put in after the house was built ... was to my knowledge of the
discussion.
Q. We've had other discussion from County personnel about that today. Was it your
understanding that he was completely --- Is it your understanding that he
understood clearly that this was going to be within that forty-foot area? That this
construction and plantings were going to be within this forty-foot area?
A. Yes. Yes—he was given, and also the HOA was given, a plat plan which
specifically states that the pond would start at the thirty-foot line and that the pond
would be there. It was my understanding that we could put the waterfalls on top
of that easement because of the culvert that was running underneath because it
was not interfering with the waterflow that was going on underneath the ground.
[Attorney Bass conferred with Mr. Williams off-microphone.]
Attorney Bass: I think this is all the questions I have at this time.
Assistant County Attorney Noell: I don't have any questions.
Patrick White: If I may, Mr. Chairman?
Patrick White questioned the Witness:
Q. Welcome, Ms. Torkko.
A. Thank you.
Q. You said that you've talked to three different individuals at the County
A. I did.
Q. You wouldn't happen to know names,what department, when?
A. It was in the Building Permit Department that was where I talked to ... I don't
know the name and I've been searching through our files because I keep almost
everything,but I have not found that information as of today.
Q. So, it would have been somebody at Horseshoe?
A. Yes, sir, it was at the Horseshoe annex.
Q. Male—female?
A. Once was a male and two females.
Q. Could you help clarify what happened from the timeframe from when you
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worked for what I believe the d/b/a was Williams Magical Garden Center and
Landscape. Is that the same thing as Williams Magical Landscaping?
A. No, it's always been Williams Magical Garden Center and Landscape. That is the
doing business as ... that is the name. And currently.
Q. It still is?
A. Currently,that is the name. Mr. Williams' company was listed under Williams
Magical Garden Center and Landscape, Incorporated.
Q. Because I know at some point—it's probably going to come down to those kinds
of issues. That's why I'm just trying to get a clear understanding.
A. That changed in 2013. It was underneath a sole proprietorship, but in 2013 they
became incorporated.
Q. And when was this more recent sale to your new employer?
A. August 20th.
Q. 2018?
A. 2019.
Q. And who are the new owners?
A. Cheryl Stanley.
Q. Is she the ...
A. Sole owner.
Q. And it's a corporation?
A. That's correct. The corporation name is Paradise Garden and Outdoor Design,
doing business as.
Q. Williams Landscape?
A. Williams Magical Garden Center and Landscape, Inc.
Q. Thank you.
Terry Jerulle questioned the Witness:
Q. Did I ... did you say that you had not done a project of this magnitude in the past?
A. I personally have not, but I have been with Mr. Williams when he has done many
different projects. But, me personally, no.
Q. You also said you called the County. Did you bring down a final plan of the
Scope of Work?
A. No, I didn't feel it was necessary after they said I didn't need ...
Q. But it has the electrical work and plumbing on it?
A. Correct. No, I did not. Again, I was unaware that, underneath the unlimited
license, that once we hired a contractor—that he would be pulling that permit. I
didn't know we needed a plumber at all. So, no.
Q. Do you have any Florida licenses?
A. No. Yes, but no. I did just pass my exam for the landscaping license. I'm new—
go easy.
Q. My question should have been ... at the time you were doing the work, did you
have any ...
A. No, sir, I did not.
Q. Thank you.
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January 15,2020
Richard Joslin questioned the Witness:
Q. In the packet on Page 194—there was a memo sent on July 23rd and an answer on
July 23`d, says, "The Board has approved this installation. " But then it says,
"Just one unlikely caveat for your attention, Reto. Because part of this
installation will be over those swale drainage pipes, the South Florida Water
Management District could, in a very unlikely scenario, insist part of the feature
be moved out of this easement." Were you aware of that?
A. I was aware of that and Mr. Kramer was aware of that. And he said that he would
take the risk and if they moved and had any issues, he would be responsible for
removing it.
Q. Were you, as contractor or acting on the contractor's behalf, wouldn't that be an
item to check further—to go into maybe we will have to move the project
somewhat to miss the easement or just continue because someone said ...
A. Honestly, I did not. I did not think putting that on top of the easement with the
culvert pipes there so drainage would not be obstructed ... I did not feel it would
be an issue, no.
Q. Okay.
Patrick White questioned the Witness:
Q. Going back to the conversations you had with the folks at the County relative to
the email chain that Mr. Joslin just referenced, which took place first?
A. I called the County first.
Q. Before July 23`d?
A. Yes, sir.
Q. Of 2018?
A. Yes, sir. I called the County before the contract was ever signed.
Q. That makes sense to me.
Vice Chairman Nolton questioned the Witness:
Q. Dana, I don't see it specifically but it kind of feels like there was an original plan
and design ... and it looks like it got modified several times, and it even looks like
maybe it got modified before the HOA would approve it—is that the case?
A. It was the case. Basically, it had to be modified on site once we started digging
into the ground because I didn't want to—I wanted to stay within my thirty feet
because that's what I believed I had ... the thirty-feet drainage. So, I had to
modify and elongate the pond to meet the specs of what he was looking for.
Because I couldn't go back any further because there was a huge culvert there. I
had to make it actually longer.
Q. So, the way you believed ... you believed the actual pond part—not the waterfall
or any of the that—but you believed the pond part sits thirty feet back from the
culvert?
A. Yes, sir.
Q. Okay.
A. Right on the line.
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Chairman Lantz questioned the Witness:
Q. One of the things that was discussed earlier when you weren't here, when the
Building Official talked about a permit being required, he talked about additional
structures—the trellis, the bridge, stuff like that—would have needed to be
permitted. When you talked to the County, I know you mentioned a pond. Did
you mention any of those other structures?
A. I did—I mentioned the bridges. That was it.
Vice Chairman Nolton questioned the Witness:
Q. Did you happen to mention waterfalls to them?
A. Yes, I did tell them there were some waterfalls but no specs as far as what they
would be made out of or the height of the waterfalls,but I did tell them that a
waterfall would be going into it. They asked me what the filtration would be, and
I told them we would have a skimmer installed and we would have a clarifier in
the back. So, I did clarify that with them. They said no permit was required.
Three times.
Patrick White: Three different individuals?
Dana Torkko: Three different individuals, yes.
Richard Joslin: Was this in Planning or just someone at the front desk?
Dana Torkko: No, it was in the Permitting Department—that's who we talked to.
Patrick White: The Building Department's Permitting Section?
Dana Torkko: Yes.
Chairman Lantz: Mr. Noell, are you all set?
Assistant County Attorney Noell: Just a follow-up question.
Cross-Examination of the Witness by Assistant County Attorney Noell:
Q. Ma'am,you met with Mr. Ossorio and the Contractors Office Licensing
Compliance Investigator in this case. Did you tell them that you had spoken to
three different individuals at the County and they all said you didn't need a
permit?
A. Yes.
Q. Okay. You didn't tell them that you had just spoken to one person at the County?
A. No, I said three—three different individuals at the County ... at three individual
times. I called twice and my assistant called once.
Q. Why did you call three separate times?
A. To be honest with you,you don't always get the same information when you call
the County—every person tells you something different.
Q. So then-- you knew that prior to making the phone calls that was your concern—
that's why you made three?
A. That's why I made three different—I wanted to be sure that I did not need a
permit for this job. That's correct.
Q. So, to make sure I understand what your testimony is before this Board, you
called and spoke to the same person twice and ... I'm sorry ... that's not correct?
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January 15,2020
A. I called two times—I spoke to two different individuals and my assistant called
one time and spoke to a different individual. Three different times—calls to the
County and three different individuals told us the same information.
Q. So, again, it's three different individuals from the County?
A. Three different individuals.
Q. How do you know that your assistant spoke to an individual who was different
from the two ...
A. I don't, I really don't.
Q. Okay. Was it a male or female who your assistant spoke to?
A. It was a male.
Q. What does your assistant do for the company?
A. Nothing now. She no longer works there.
Q. Okay. And you didn't ... do you have any documentation, emails, anything at all
that substantiates what your testimony is before this Board under oath today
regarding calling the County?
A. Again, as I stated, I am still looking for that to this day. No, I do not. The answer
is no.
Q. Okay. And about ... when did you meet with Mr. Ossorio and the Investigator?
A. I met with them a couple of times, but I couldn't give you the date off the top of
my head.
Q. Back in—I can help refresh maybe your memory ...
A. End of October, maybe?
Q. So, a few months ago?
A. End of October, maybe the beginning of November, I don't know. Somewhere
around in there.
Q. And, at that time, when you mentioned you had spoken to the County three times,
did they ask you the same questions of who you spoke to ...
A. Yes.
Q. ... and what did you tell them?
A. I told them I didn't have that information and I didn't have that information with
me at that meeting.
Q. Okay. Did you then for the past three months—getting ready to come to this
hearing—did you look for any records?
A. Absolutely.
Q. What records did you look for that you knew you had?
A. I have some paperwork where I called in regard to equipment,people I've talked
to and reference numbers—I mean, Mr. Kramer's file is this thick, so I've been
searching everywhere ... going through emails, going through everything.
Q. So, specifically regarding the three conversations that were involved from, I
guess,the County's Staff... did you ... do you remember writing that down
anywhere or any emails?
A. Ido.
Q. What do you remember?
A. I remember writing it down—that's it. If I could find that piece of paper, it would
be great.
Q. To make sure I understand your testimony to the Board earlier, when you had
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the three conversations, you folks didn't provide any information on any
plumbing or electrical work
A. No, sir.
Q. ... it was just, `we're doing a pond,' is that correct?
A. That's correct.
Q. Okay.
Assistant County Attorney Noell: I have no further questions.
Re-Direct Examination of the Witness by Attorney Bass:
Q. I should have asked this earlier—there was some testimony about, I guess ...
there was testimony about tree roots penetrating the pond's walls, if you will.
Were you ever made aware of any problems like that?
A. No, sir, I was not. But in discussing the Royal palms that were there, we put in a
root barrier to make sure that those roots would not impale it and there's a pavers
path that goes right in front of it,but there was a root barrier that was placed
around those palms.
Q. I'm not sure it it's a structure—or what you would call the pond and waterfall—
but do those kinds of facilities require maintenance?
A. Ponds?
Q. Yes.
A. Yes, if you're going to have koi in it, absolutely.
Q. You're talking about inside the pond ... on the exterior of it when you have trees
and things like that around?
A. Oh, always. Anytime you have trees or foliage anywhere on your property, you
have to maintain them.
Q. Have you ... Can you tell the Board whether you had discussions with Mr. and
Mrs. Kramer about maintenance requirements?
A. I did not. I did not get to the end of maintenance requirements. We did discuss
the palm roots in the very beginning and that is why I suggested that we needed to
put a root barrier down in front of those palms.
Q. Has it been your experience that sometime roots will penetrate, even when you
take those protective measures?
A. I have personally never experienced it ... but they don't last forever.
Q. All right. Were there any other kinds of problems that you were aware of in terms
of?
A. I was.
Q. There has been some testimony about part of a wall collapsing. What were you
told about that?
A. I was made aware that part of the wall had collapsed. I requested pictures to
verify it and nothing ... never received anything.
Q. Was this after your company was off the job?
A. That was after we were off the job, yes.
Attorney Bass: I have nothing further.
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Chairman Lantz questioned the Witness:
Q. Can you tell me what you did for a root barrier?
A. It's that root barrier paper that has the chemical on one side—I don't remember
the name of it off the top of my head. It has that chemical-lined paper ... the root
barrier paper. I always called it root barrier.
Q. Did you put it underneath the liner? I'm curious because we've heard two
different ways of preventing roots, so ... you put it underneath the liner?
A. No. The way that his house is set up, the Royal palms are up against the pool
enclosure and then there's walkway, and then the pond starts. So to take—not
only for the pond but for the purpose of the pavers that were going through—we
dug down probably about three feet, straight down in front of those Royals on the
outside, and placed the root barrier on the side.
Q. So, it's vertical.
A. Vertical. That's correct.
Chairman Lantz: Any other questions?
Assistant County Attorney Noell: No, sir.
Attorney Bass: That concludes the presentation of Respondent's evidence.
Chairman Lantz: Okay.
Assistant County Attorney Noell: The County has nothing in rebuttal. We are
ready for our Closing Statement.
Collier County's Closing Statement presented by Assistant County Attorney Noell:
The County would maintain that the evidence that is before you, through Jonathan
Walsh, the Chief Building Official, who stated that the work would require a permit,
and also the electrical and the plumbing, and in addition the trellis work, would
require a General Building permit. And so, in addition, in evidence is the agreement
itself. In that agreement is one of the services that was contracted for in that
agreement were electrical and plumbing. Both are outside the scope of the
gentleman's license. So, we think that the evidence is sufficient to show that he was
working outside of the scope and contracting outside of the scope as well.
Regarding the potable water not being the main issue or one of the main issues—I
think it's still—because of the way that the Complaint is—is that it alleges that he
worked without a permit and I believe with Count I where we allege that .. there's
essentially either/or—there are one of two ways that he is in violation. Either through
the electrical contracting services which he admitted to—contracting with an
electrician—that's outside the scope of his specialty licenses. And I think the
distinction that's important here is when it, in Mr. Bass' rebuttal that is part of the
evidentiary packet, seems to indicate that, 'hey, if I can do—if I'm a contractor and
hold different licenses, I can do anything kind of incidental to it.' But those are
specialty licenses. When you go to Section 22-162 in the MuniCode, it defines what
that type of contractor who can go out and hire the HVAC, the electrical, those really
specialized trades—is. And the person who can do that—and I believe the Board has
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addressed this many times—is the person who is qualified for and responsible for the
entire project that was contracted for.
In this case, he is not responsible for the entire project that was contracted for. He
is essentially three people with three different licenses that allow him to do individual
segments of jobs, but not the overall project. If he were a General Contractor,
obviously, we would wholeheartedly agree that he could contract out for those
services. And I think that in the rebuttal to the Administrative Complaint that Mr.
Bass has provided, I think that's the distinction that is being missed and it is critical.
He could not, under either one of those three specialty licenses, enter into a contract
with an electrician because he would have no way to know whether the work was
correct or not. He admitted to that violation. In regard to the plumbing, we heard that
the line was dug up and it was clear—at least, it's the County's contention—that it
did connect to a potable water line. In Statutory construction,what's important is the
definition or the common play language meaning of the word used—that's why we
go to a dictionary to see what does potable mean. We heard testimony from Jonathan
Walsh that it's the nature of the water, not the pipe that the water sits in. I agree with
what Mr. White asserted at the hearing—that it is the quality of the water and not
necessarily the pipe or the line that the water sits in. So, it's a description of the water
and not a water line. And you heard from the homeowner that they dug up the line
and it was directly connected to a potable water [source].
And, finally, in regard to Count II, you heard the evidence that he needed a
general type of building permit and the electrical—by his own admission—his
testimony was that it needed permitting. And it's our contention that the plumbing
did as well.
You also heard testimony that if the Board finds that he is in violation of even just
one—but we believe that both Counts—that the restitution amount as set forth ... he
[Reto Kramer] paid this company $52,000 and incurred, I believe it was, $15,700 in
repair work when part of the sides of this five-foot ditch collapsed, and then the cost
to have it removed from the area. I think that it is sufficient.
The one thing that I want to address is more of a legal argument as I close out. I
have a case which I showed to Mr. Bass—but I want to approach and give the Court a
copy of the case.
[Assistant County Attorney Noell distributed copies of the document to the
Board.]
Patrick White: And I'm sure that, Mr.Noell, you're going to ask to have it admitted
into the County's evidence packet.
Assistant County Attorney Noell: Yes, I can. I'll also cite to it,just so it's on the
record, it's Hamilton Downs Horsetrack, LLC vs. State, 226 So.3ra 1046.
The reason why it was important for the Defense, so to speak, to say that they
talked to the County's Staff because that can potentially give rise to a claim the
County can now not enforce the violation because they took some action or did
something that is contrary to trying to enforce it. And the argument would be: 'hey
she had called and her representative who wasn't going to testify had called three
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different times and they were told that no permit was needed. Therefore, County,
since you did that,you should not be able to now say a permit is needed.'
The case law is really clear on this and I understand that it's a legal argument,but
I want to put it out that the Equitable Estoppel—which is what the document is called
—is very narrow and only used in extremely limited circumstances against a
government entity. In addition, they would have to show through the evidence today
that they told the County everything and that the County took a position that is now
inconsistent to the position the County is taking today.
What's extremely important here is we heard from the witness directly who was
the representative who said that she spoke to the County twice and an assistant spoke
to the County, and she said she didn't provide any information on electrical or tell the
County anything about plumbing or trellises, so all the work—the Scope of Work—
that would have caused ... even taking what was testified to at face value and truthful
... what was provided to Staff was none of the work that would have required permits.
To say that now the County should not be able to enforce and require permits because
`I asked them if I could do the work' —they never provided the County with the
information of the work being performed—that defense ... the Equitable Estoppel
Defense ... would basically be a way where they could say, 'yes we did it but this is a
defense to why our action was okay.' And we think it's clear that, based on the
evidence, they haven't met the extremely high burden of showing that Equitable
Estoppel should apply to the government entity and the testimony on that is pretty
clear, we assert.
That's my closing and any questions on that, I would be happy to answer.
Patrick White: Not to get too lawyer-y ...
Assistant County Attorney Noell: Yep.
Patrick White: ... but you brought the case to our attention. So, which type of
misrepresentation to the Equitable Estoppel argument that you're making is it?
Assistant County Attorney Noell: That is the other issue. I don't think we have to
go that far in our analysis but if it is a mistake of law, then Equitable Estoppel cannot
apply against the government. So, if they call and ask a question of a Staff member
that pertains to a question of law and that Staff member is wrong,Equitable Estoppel
still would not apply—they would still have to get into compliance because it's a
question of law. What I would argue is calling up and asking, 'hey, does our County
law require a permit?' —that to me is a pretty clear-cut question of law, I would
assert. Equitable Estoppel would not apply on those independent grounds.
Patrick White: Your assertion is that the second layer, if you will, the Russian dolls
stuck inside each other, is that it doesn't apply because it's a misstatement of law that
was provided to Ms. Torkko by any one or more of the County's employees—
correct?
Assistant County Attorney Noell: Yes. Yes, and then the 3rd argument would be
that the reliance wasn't reasonable because she did not give everything—that's the
other part of this analysis because it's basically a doctrine of"fairness" and is it fair to
now say that they need a permit if the County had earlier said they didn't need a
permit. And that's one of the questions that asks—what about the fundamental
fairness of this and was their reliance reasonable? In other words, did they tell the
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County everything it needed to know, and they said it's going to be reasonable to rely
on this because we told the County about everything involved. We heard testimony
that they didn't tell about the biggest parts of this job that would require permits as
testified by Mr. Williams. That's all I have. Thank you.
Chairman Lantz: Mr. Bass?
Respondent's Closing Statement presented by Attorney Bass:
There just has to be a better way than the County's position to take everything out
and restore it to its previous condition. I say that based on the evidence that's been
presented, but also what the owner wants. The owner wants to have this and, as I
said, there has to be a better way.
Richard Joslin: I don't think that's the case that we're talking about at the moment.
I don't think that's the question that is before us. Whether the project was completed
or torn out or whatever is going to have to go through the County and ...
Attorney Bass continued:
I understand. So, let's just focus on the facts of the case. I understand
Counselor's argument about the Equitable Estoppel defense. In Civil Court cases we
deal with Equitable Estoppel on a regular basis. And the same law applies here but
the problem here is ...when is it that someone can call and rely on what they're told?
Because,to my knowledge, we don't have any hard and fast rules about making these
kinds of inquiries. I guess there could be a hard and fast rule such that if you're going
to do anything,you have to apply for a building permit and it needs to be granted or
you'll be told it is not necessary and there will be a complete paper trail. I guess in a
perfect world,that would be the best way to do it. But I don't have to tell you or
anyone else that it increases the cost of doing business. Making phone calls to people
and not getting their names—there's a cost for doing that,too.
All I can tell you is the witness—Dana—told you what she did. She told you, and
Mr.Williams told you, that they have never been required to have permits like this
before. The scope of his license was a surprise to the County's Staff—they aren't
used to seeing an unlimited type of license and perhaps it is somewhat of a red flag to
them ... I don't know.
Getting down to the questions that we're really here about. Number one, in the
easement—that's obviously a problem because the County Staff has told you they
would not have approved a building permit. That's not the last word,though. Just
because someone says we're not going to approve a building permit—that's not the
last word. You can go up a chain there to get the last word on it. And perhaps that
would have been done under the circumstances—perhaps it still could be done.
The other part is about the electrical and the plumbing. You'll have to judge for
yourselves and all of you,no doubt,know more about plumbing than I do. But I
think that Mr. Williams in his explanation—I think that he satisfied ... answered the
questions that several of you had put [to him] about whether this was connected to a
potable water source or not because at some point, it was probably potable and then at
some point, it was not because of a backflow valve or some other kind of valve or
whatever it is. I'll say that Mr. Williams understood it and he explained to you what
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they did. First of all,there was a hose connection, and then it went into this other
connection that he told you about.
As far as the electrical is concerned, I have to respectfully disagree with the
County's Staff about this. I mean, it is in black-and-white in the Code. The
contention is that a Specialty Contractor, like Mr. Williams' company, cannot
subcontract incidental plumbing or electrical work. That's the contention. I submit
to you that contention is wrong in the law. And the law is the MuniCode that they've
cited, and I've cited as well. And you'll see, really,the most important reference that
I make in my—on Page 3 of my rebuttal document where I explain that the end of the
Code identifies the competency requirements for various trades, and there is a
provision about subcontracting and subcontractors. It specifies that a contractor shall
subcontract electrical, mechanical,plumbing—essentially the trades you have to be
especially licensed in. There's nothing in there that says you have to be a certified
General Contractor, Residential Contractor, Building Contractor—just a contractor. I
mean, these are the people who do contracting work—Specialty Contractors are
contractors. They have limitations on the scope of their work. But if the electric was
incidental to doing ... having pumps for the pond and so forth, then there is no legal
prohibition to subcontracting that work to an Electrical Contractor. I submit to you
that's what is here. It's allowed. It's even mentioned specifically, for example, in the
Landscaping Contractor definition which I underlined—it says he can't connect to a
sanitary sewer system,potable water line, or to any electrical installation, which
tasks must be performed by tradesmen licensed in the relevant trade.
I mean, you see it sometimes specifically referenced,but the general reference
that I submitted is the most important one because it is a"general" reference. That
Specialty trades—you have to be licensed in that trade or you have to subcontract to
someone who is licensed. So,we disagree on that. My guess is maybe it's not the
first time that you all have ever heard this—it's not something that I deal with every
day, but I know that you deal with these on a regular basis.
I think that you should make a Finding that, because of what I just said, he did not
exceed his licensing requirements by having an Electrical Contractor do the work that
was done out there, number one. Now, if it was not done correctly,that's a separate
issue. That's an issue with the Electrical Contractor and Mr. Williams. That's a
separate issue entirely—whether it was done correctly or not—because I know some
of you mentioned something about conduit and plug-in-play and so forth. But that's a
separate issue. The question is whether he exceeded the scope or not. I submit that
he did not exceed the scope.
On the plumbing aspect of it, again, you all know about what that is and I think he
explained to you they were not connecting to a potable water source because of the
valves involved and it was not considered potable at that time.
And the third thing is about needing a building permit for the project in general.
I've heard what the Building Official said, you have, too. All I can say is when
people call and inquire and are told no—Dana was suspicious because she does call
and inquire about different things from different people,but once they were told three
times that one was not required—to me and perhaps to you—you'll feel that's
reasonable to do that ... to reasonably rely on what was told to you.
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And if not that, then there has to be another way to make sure that people don't
get bad information, rely on it, and then the policing authority of the Board here, the
policing authority of the Staff,the policing authority that says, `well, whatever you
were told ...too bad.' There's got to be a different way.
And so, with that, I conclude my argument and submit that you should not find
that Mr. Williams was in violation of the charges here. It's not a matter of guilt or not
guilty,that that he's not in violation as charged in the Administrative Complaint.
Thank you.
Chairman Lantz: Mr. Noell?
Assistant County Attorney Noell: Nothing further from the County.
Patrick White moved to approve closing the Public Hearing. Richard Joslin
offered a Second in support of the motion. Carried unanimously, 7—0.
Chairman Lantz: All right. So, now we determine guilt.
Patrick White: Or not.
Chairman Lantz: Or not guilt. Does anybody have any discussion on this? So,
there are two separate charges ...
Patrick White: I'd love to hear what it may be that our Board's attorney would
proffer to us in our deliberations. I think there may be some.
Jed Schneck,Attorney to the Board: Specific as to the Count?
Patrick White: What our charges are in evaluating the evidence.
Attorney Schneck: The Board is charged with making a Finding of guilty or not
guilty based upon the competent and substantial evidence in the record. And that
evidence must be clear and convincing to the Board to make a determination of guilt.
So that's your general evidentiary standard.
Patrick White: Competent, substantial, clear and convincing.
Attorney Schneck: Correct. And based upon—if the Board does find the
Respondent guilty of Charge I and Charge II—both Counts—and you would move on
to the next phase of the Hearing ...
Patrick White: Right.
Attorney Schneck: ... and impose Sanctions under the local Ordinance.
Patrick White: And would you agree that at least my understanding of competent
and substantial evidence is essentially what a reasonable person would find to be the
case?
Attorney Schneck: That is correct and would be relevant to ...
Patrick White: The charge.
Attorney Schneck: ... the issues in the case.
Patrick White: Correct. And where would you say clear and convincing lies in
terms of the Standard of Proof? For example, relative to a criminal charge of
"Beyond a Reasonable Doubt" or some other standard?
Attorney Schneck: Generally, there are three standards. You mentioned the
criminal standard which is"Beyond a Reasonable Doubt." That's the highest
standard. The lowest standard is the"Preponderance of the Evidence"which in most
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Civil cases is 50 + 1, generally. "Clear and Convincing" falls within those two
standards.
Patrick White: Fair enough. So, it's more than just a little but not absolutely
everything.
Attorney Schneck: Correct.
Chairman Lantz: So, let's break it down into pieces ... the first Count.
Count I: Thomas R. Williams is the holder of licenses for Landscape
Contractor, Paving Block Contractor, and Non-Recreational Pond/Waterfall
Fountain Contractor. These licenses do not allow Mr. Williams to provide
electrical contracting services or perform the work of connecting potable
water lines,both of which were done in the scope of services he had provided
under the subject contract.
Richard Joslin: In the contract itself, it listed electric as a service. He did hire or
pay someone to do electrical work on the property. Correct?
Chairman Lantz: Correct.
Richard Joslin: Also, we heard through testimony on both sides that the potable
water is still a questionable item. But, according to the definition of potable water
that Mr. White provided, it's the sanitation or the purity of the water.
Patrick White: I was just discussing what the definition stated. I think there's
certainly some consideration that has to be given to Mr. Lantz's perspective and the
testimony by Mr. Williams—that no one else has rebutted—that the water in that line
was after, as he put it, a vacuum break/backflow preventor and at that point was
solely intended for piping related to the irrigation system only. It wasn't water that
was intended, for example, to go the water fountain somewhere out in the backyard.
Terry Jerulle: No, no, the statement was it was off the backflow.
Patrick White: Correct.
Terry Jerulle: The water off that backflow could go to the house or it could go to
the pool ...
Chairman Lantz: No, his stated it was a separate vacuum breaker, so that the ...
Terry Jerulle: I didn't hear that.
Chairman Lantz: Yeah,he said a vacuum breaker, so there would be an r/p or a
double-check valve between the road and the house, and then, after that,he said there
was a vacuum breaker which separated the irrigation system from the main line.
Patrick White: My guess is we would see it on the back wall somewhere—generally
speaking—where the controllers for the timers for the sprinkler system might be. That
would be my expectation. Now,no one else said that there wasn't.
Vice Chairman Nolton: And I'm not sure that ... did we hear that there were. We
heard that they may have been.
Chairman Lantz: Mr. Williams ....
Vice Chairman Nolton: We never heard that there specifically was. That it was
determined that there wasn't. Mr. Williams ...
Patrick White: I understand it as you said it. That's the testimony I heard.
Chairman Lantz: And I was waiting for somebody to question it, and nobody did.
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Patrick White: On the issue of the electrical in Count I, the alternative here is that
he would have been required to hire a General Contractor to hire an Electrician. Am I
mistaken about that?
Chairman Lantz: Are you saying that Mr. Williams would hire a General
Contractor or ...?
Patrick White: Or the owner ... one or the other or both. And then they would have
had to agree, I guess that ...
Chairman Lantz: I think what the County's case is that Mr. Kramer either had to
hire an electrician himself or hire a General Contractor to hire Mr. Williams ...
Patrick White: That's what I'm saying ...
Chairman Lantz: ... but not Mr. Williams hire a General Contractor or an
Electrician.
Patrick White: I absolutely agree and that's my understanding. And I ...
Michael Boyd: Well, to some degree
Patrick White: That's my understanding and it's pretty clear.
Michael Boyd: ... to some degree the Electrical Contractor is at fault because I can't
believe he did all the electrical work that had to be done in that backyard without
inquiring of Mr. Williams or the County if there was a permit to do that. They had to
run new service back there.
Vice Chairman Nolton: I agree, but I think it's a separate issue.
Michael Boyd: Well, it's a separate issue—yeah.
Patrick White: But I think Mr. Boyd's point is that it goes to the weight of where in
the process someone should have raised their hand and said, 'hey—who am I working
for?' And if the Electrical Contractor had then gone in and sought the appropriate
permit, it may have been made more evident to either Mr. Williams or Mr. Kramer, or
both, that he was operating outside the scope of his license—Mr. Williams' licenses.
I tend to think that on that particular—more so than the potable water that doesn't
matter whether its either or both—if its either of them in Count I, I think a Finding of
a violation can be made. It doesn't have to be both. So, we can completely ignore
the discussion about potable/non-potable water and have a Finding of violation based
solely on the electrical.
Richard Joslin: In essence, that's kind of a moot point to begin with because I'm
sure that there would be a vacuum breaker at the street—correct?
Chairman Lantz: No, there would be a backflow preventer ...
Richard Joslin: Right.
Chairman Lantz: ... but typically there's a separate one between ... so there's the
main line from the road that comes into the backflow preventer and then goes to the
house. And then there's a"T"off of there, and then a separate vacuum breaker,
separating the irrigation from the house.
Patrick White: And, in fact, a lot of your hose clips ...
Chairman Lantz: Totally different than the vacuum breaker and the backflow
preventer. Same name,but a totally different device.
Richard Joslin: Okay ... but one last question. If this was a permitted sprinkler
installation, wouldn't the sprinkler have demanded or required that a backflow
preventer be put on it before the sprinkler system was ...?
Chairman Lantz: So, I've never done it in Collier County.
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Richard Joslin: No?
Chairman Lantz: Quoting Mr. Walsh, "not necessarily."
Richard Joslin: All right.
Chairman Lantz: In every other county where I've worked,that's a separate
inspection.
Terry Jerulle: The question is ... is Count I-(a) true or not? Correct?
Chairman Lantz: And I think as far as ...
Terry Jerulle: Just based upon the electrical.
Chairman Lantz: Right. If we ignore the water, if we say, `okay, he's innocent on
the water,' because we don't have enough facts to determine whether he's guilty on
the water. Just focus on the electrical.
Richard Joslin: Agree.
Terry Jerulle: I think we agree that he did not have the license to do the electrical
work.
Patrick White: And let me ... I don't disagree with you ... I think that's correct but I
want to discuss Mr. Bass' point about the definition of subcontracting. He made
reference to fact that it's probably not his first time down this side and I just wanted
to put on the record how the definition of contractor in the same Code makes
abundantly clear that there are exemptions afforded to the types of contractors that we
lump together as General Contractors, and that contracting otherwise as it is defined
is something where you attempt to sell or negotiate a contract or services and if that's
outside the scope your license,that's not permitted. And so, I'm not seeing it as a
viable defense in this case. So, as far as Section 22-201(2), I believe there is—as
asserted in Count I, under Paragraphs (A) and(B)—a violation of that Section of the
Code because there was "contracting"with the Electrical Contractor that should have
been done directly through the owner or via a General Contractor. His license—Mr.
Williams' license—did not authorize him to subcontract. Rather, the definition of
contracting applies. As challenging as it may be for Specialty Contractors to
appreciate that, and as difficult as it may be to apply in the field, I think the general
advice,recommendation perhaps, or suggestion to Specialty Contractors who find
themselves in this position is to have a conversation with the owner and/or their best
friend, the General Contractor, and see which way they want to go.
Terry Jerulle: That and applying for a permit at the beginning and not waiting.
Patrick White: Clear it right up. So, I don't know if we want to have a further
discussion about but at this point, I'm prepared to make a Finding of Guilt—that there
a violation of Count I. I'll put that in the form of a motion.
Patrick White moved to approve finding that the Respondent was guilty of the
violation contained in Count I of the Administrative Complaint. Terry Jerulle
offered a Second in support of the motion. Carried unanimously, 7—0.
Chairman Lantz: So, that's Count I. Let's go back to Count II.
Patrick White: Count II has two parts and(B) is the one that's the actual Code
section is what I referenced.
Terry Jerulle: My question is—and I apologize—your motion was for Count I(A)
or for Count I(B)?
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Patrick White: Well, it's only (B) because (B) is where the specific reference to the
Section is. And the same is true for Count II where(A) is kind of a mix of law and
fact, but (B) is the one that specifically cites the corrected, in the Amended
Complaint, Section 22-201(18).
Chairman Lantz: So, then we'll go to Count II.
A. Upon review of County permitting records, a building permit
was never applied for or issued prior to commencing work, and a
permit was required to perform the subject work.
B. Thomas R. Williams is in violation of Collier County MuniCode
Section 22-201(18) which states, in pertinent part, that it is misconduct
by a holder of a Collier County Certificate of Competency to proceed
on any job with obtaining applicable permits or inspections from the
City Building and Zoning Division of the County Building Review
and Permitting Department.
Richard Joslin: Through testimony,we heard that. So, I don't see any other way or
any further discussion on that.
Chairman Lantz: Mr. Walsh was pretty clear on what requires a permit and what
doesn't, and he did say that the work required permits. Although it can be rectified,
that's not what we are here to discuss.
Patrick White: They proceeded with the job without obtaining the applicable
permits or inspections. I understand the argument of, `I did my best to try to find out
whether he needed a permit,' and I understand the argument that there are `grey'
areas. I even understand that many individuals will call the County—whether it's the
Zoning or Building, you name it—and you can ... and on occasion ... will get varying
answers. My experience has been there's a tension, if you will—a push and a pull—
on the part of the person calling ... not intentionally ... to get the answer that they
desire and prefer as opposed to trying to put a noose around your neck, in a sense, and
come away with answer that requires you to do more. I think there was an honest and
good-faith effort made to get the best possible answer. But the answer is in
proportion to the question. And here, I believe, if there had been more detailed
information provided about having to do some electrical work and building some
structures, then the answer may have been different. I accept Mr.Noell's legal
argument about Equitable Estoppel,but when I read through the case, the details of it
were that, in that case, an Administrative Law Judge had found one way but the
Agency overruled him, and then that was appealed by the guy they were trying to
penalize. The case was reversed, saying the Administrative Law Judge was right. He
found that it was justifiable and reasonable to rely upon what he'd been told—he'd
made a good faith effort to get the to tell him what he should and shouldn't do. It
kind of changed the rules of the game. I understand the legal theory and I understand
the defense. I've always been challenged to balance whether something is a
misrepresentation of fact or a misrepresentation of law. I understand what Mr.
Noell's position is—it's more misrepresentation of the law, not of fact. And as
empathetic and sympathetic as I can be to the government having been in a position
of having to advise the Building Department, at the end of the day, I believe that
technically there is a violation here in the sense that had there been better disclosure,
the answer may have been that a permit was needed. But we'll see where that goes
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when we get to the second part of this stuff. So, at this point, if there's no objection, I
will make a motion.
Patrick White moved to approve finding that the Respondent is guilty of violating
Section 22-201(18) in Count II of the Amended Administrative Complaint. Richard
Joslin offered a Second in support of the motion.
Discussion:
• Richard Joslin: I think you hit the nail on the head by the fact that there was,
I guess, a justifiable attempt to try to get an answer. They called three times
and got the same answer but there must have been questions or else why was
the second call made? I've been in situations before where I've had to go
there two or three times and it turned out that the person who gave me an
answer was wrong. It does happen.
• Patrick White: I hate to say it but when you are the government, there is a
level of reliance that, typically,you can't afford to get because it takes so long
and costs so much. But it's one of the aspects of why, as a licensed
contractor, you are expected to know your business and make a full and
complete disclosure of anything that could require a permit. It's not the tech's
job who is answering the phone to know what's in your mind. But they want
to give you, I think to some degree, the answer you want to hear, too. Some
are better at asking probing questions and others are not. It's just the reality of
it.
Chairman Lantz called for a vote on the motion. Carried unanimously, 7—0.
Chairman Lantz requested information from Attorney Schneck concerning the
possible Sanctions that could be imposed.
Attorney Schneck: The disciplinary Sanctions that the Board could impose against
the Respondent in this case include:
• Revocation of his license, or suspension of his license;
• Denial of the issuance or renewal of his license;
• Placing his license on a probation for a period of up to,but not to exceed, two
years;
• Restitution;
• Assessing a fine in an amount not to exceed ten thousand dollars ($10,000);
• Issuance of a public reprimand;
• Requiring re-examination and/or trade tests;
• Denial of the issuance of any future permits in Collier County or permits may
be issued with specific conditions.
Attorney Schneck continued: When considering these penalties, the Board should
also consider the testimony and all the evidence presented, as well as the following
factors:
• The gravity of the violation;
• The impact of the violation on the public health/safety/welfare;
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• Any actions taken by the violator to correct the violations;
• Any previous violations committed by the violator; and
• Any other evidence presented at the Hearing relevant to the Sanctions which
are appropriate to the case, given the nature of the violation.
Chairman Lantz: Does the County have any recommendations?
Michael Ossorio: The County is recommending full restitution to Mr. Kramer in the
amount of$52,000 which is the amount he paid to Mr. Williams, plus $15,700 which
was paid for necessary repairs, plus $32,000 to restore the property to its original
state, which totals $99,700. The County incurred investigative costs of$1,500 in the
prosecution of this matter. The County also recommends a fine in the sum of$2,000
for each Count. The County will allow the Respondent twelve months to make
restitution,pay the investigative costs, and pay the fines, or all of the Respondent's
licenses will be revoked. Finally, the Respondent will be placed on probation for a
period of twenty-four months.
Chairman Lantz: I have some questions on the timeline for this case. The job
started a year or more ago ... in August, 2018. In December, 2018, when the job was
not done, there were a lot of issues—some might call them "punch list" issues. When
did the County get involved is Question#1. And Question#2 is when was the money
spent on repairs—the$15,700?
Michael Ossorio: I believe it should be in your packet, but if not, Mr. Kramer has
those particular items.
Chairman Lantz: When did the County get involved?
Vice Chairman Nolton: The packet says he got a Notice from the State on July 13,
2019.
Michael Ossorio: You will see on the first page of the Administrative Complaint, on
the charging document which would be Number 5, "On or about July 7, 2019,the
Collier County Licensing Department received a complaint from the homeowner,
Reto Kramer."
Chairman Lantz: Okay. Then my next questions would go to Mr. Kramer which
would be when were the repairs done—that totaled$15,700? We have repairs
totaling $15,700—so when were those repairs and was it all one bill? I gather there
was something for sod, something for irrigation, something for other stuff—correct?
Reto Kramer: Basically, the pond collapsed three times on three different occasions.
The first time was on March 6th. The second time was on March 7th and March 13th
was when the biggest part fell in. That's when we immediately had somebody come.
Obviously, there were no plans. When the first part fell in, I don't know how much it
was,but it was a lower amount. And when the second part fell in, we had to agree to
pay more money. Then the third part came. and the total came at the end of$15,700.
Michael Ossorio: It's in the packet on Pages 175 through 177.
Chairman Lantz: And when all these repairs happened, was the contractor notified
of the issue and given an opportunity to repair it?
Reto Kramer: Yes.
Chairman Lantz: He testified earlier that he was told not to come back on the
property.
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Reto Kramer: We had—originally with an attorney—put in a Stop Order,basically,
because the attorney said unless we know what the license is and the permits are, they
can't come back and maybe due more damage. So, at that point,we told them not to
come. But when the actual collapsing happened, we asked him to come and fix it and
I have a text message proving that.
Chairman Lantz: Okay.
Richard Joslin: But first you told him not to come back because the attorney said so
and then you told him to come back?
Reto Kramer: Correct.
Chairman Lantz: So, you knew about the licensing issue before the County got
involved?
Reto Kramer: Because we were requesting the licensing information, the insurance,
and all the other information which,by law, he has to provide. Actually, when we
were requesting it, he had thirty days and we did not get an answer to the attorney's
letter at all. So, we sent a second letter out and, again, we got no answer at all. So,
we never got an answer. There was just no communication period.
Richard Joslin: When you told him—or your attorney or someone—told him not to
come back on the job and then how long was it until the wall caved in for the first
time? Then you told him to come back and fix it.
Reto Kramer: Our lawyer was—January 16th was when he sent out the first letter.
Chairman Lantz: January 16, 2019?
Reto Kramer: Correct. And the second letter-- we reiterated we have to have the
information, including the plumbing and electric and everything, was March 21St. So,
basically, our lawyer said if he comes back and he has none of those licenses ... it's
not a good thing. First, he has to provide us all the information so we can go from
there—right?
Richard Joslin: You signed a contract with him in the beginning—why didn't you
get all this information before you got to that point. I mean, you definitely should
have known if he was a licensed contractor before he started working on your
property—no?
Reto Kramer: That's correct—yes.
Richard Joslin: But why did you wait until after to demand this?
Reto Kramer: I knew those three licenses were already in place—at least when I
checked, so I knew that. However, I didn't have the licenses physically. Basically, I
asked Collier County—I went down and asked if he had the licensing and they said
that he had a pond license, a paver license, and a waterfall license. And that's all I
needed to know if I could hire him or not.
Chairman Lantz: Okay, so I'm confused. So, January 16th is when you sent a letter
asking for the licenses?
Reto Kramer: Correct. Basically, it's in the document that you have with all the
pictures where we said these are all the missing parts, the not-working parts or the
broken parts, and we requested to have all the information—including insurance,
licensing, and permits—before any further action is taken. This letter was ignored.
Richard Joslin: These were just punch-list items that weren't working at the time
but there was no cave-in yet?
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January 15,2020
Reto Kramer: There was no cave-in as of that yet,but there was no working
plumbing. The plumbing never worked. So, the pond was basically not functioning
at that point because if you don't have working plumbing—the whole drainage didn't
work and we had already started to lose water because it was leaking all over the
place and the skimmer wouldn't work because the water didn't go up to the skimmer
anymore—stuff like that.
Chairman Lantz: So, who—somewhere I read in there that all the fish died ... right?
Reto Kramer: Not all the fish died, surprisingly. I would say about six died and the
rest survived.
Chairman Lantz: Who stocked the pond with fish?
Reto Kramer: I did.
Chairman Lantz: So, would it be safe to assume that you accepted the pond as
completed, even though you had punch-list items,but you accepted the pond before
you stocked the pond with fish ... because why would you stock a pond with fish if
there's no ... what you're saying now is there was clearly no plumbing?
Reto Kramer: There was no plumbing. That is correct.
Chairman Lantz: So why would you stock the pond with fish if there was no
plumbing.
Reto Kramer: The pond ... the pumps were working, and it was safe for the fish,
according to Dana—right? And from that standpoint, we started to put fish in
because the whole project, again, was supposed to take two weeks. Now, we were
under the impression that it was almost done. We had at that point not any idea that
the plumbing was in bad condition. We found out when the first fish got sucked into
the pumps. So, we knew there was a problem. And that was never fixed.
Chairman Lantz: But you had assumed at the time that you bought fish that the job
—although not 100%completed—was good enough to move into ... move the fish
into -- no?
Reto Kramer: The fish don't need—they don't have special requirements.
Chairman Lantz: Apparently, they do—if they were getting sucked into the pump?
Reto Kramer: We were not aware that there was no protection because the pond
already had water, so it was just not done right. It was one of those things that was
not done correctly. It wouldn't have mattered if he had done it later or earlier for the
fish—they were fine. At that stage, they were fine. As soon as there was water in
there and the chlorine was added, we could put fish in. If the jets worked on the side
for the water filtration, it doesn't matter for the fish, but it does matter for the
ecosystem.
Chairman Lantz: Okay. On January 16th you sent them a letter requesting their
license and insurance information?
Reto Kramer: Correct.
Chairman Lantz: And you go no response?
Reto Kramer: Correct.
Chairman Lantz: You sent them another letter on March 25th requesting it again
and saying 'we don't want you on our property' —correct?
Reto Kramer: I don't know if it was in the second one too but, basically, it was a
reiteration that he needs to provide us with the information by law.
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January 15,2020
Chairman Lantz: When did you say 'we don't want you back on our property' —is
what I'm trying to get at.
Reto Kramer: That was on January 16tH
Chairman Lantz: So, in the same letter where you asked for the insurance, you said
'we don't want you back on our property'?
Reto Kramer: No,we said until we get the information,we don't want you to ... on
the ...just the same thing as when Collier County found out and came to us and
basically took care of it. The first thing they did was a Stop Work Order because of
safety reasons. And when our lawyer saw what's going on in our backyard, he said it
was not safe. He cannot come back until you first discuss what is going on and how
he was going to fix this.
Chairman Lantz: Okay. I was under the impression from his testimony that he was
told not to come back onto your property. But it was basically prove your word
before you come back.'
Reto Kramer: Correct.
Patrick White: I am wondering, since you're here and still under oath, did you hear
Ms. Torrko say that if there was some need to remove this, that you'd be willing to
accept that risk? Was that a true statement?
Reto Kramer: That was not a true statement, no. We were not in our right minds,
paying $52,000 to something you're not sure you can have ... it's just not happening.
It was too much money.
Richard Joslin: Was it in writing?
Patrick White: I don't know that it was in writing. It was testified as being ...
Richard Joslin: There was a conversation in the email ...
Patrick White: ... an oral exchange, not a written one.
Vice Chairman Nolton: So, in January you were having some issues or in March, or
somewhere in there is when you started having issues,but the pumps were working.
The pumps were running, and the waterfalls were working?
Reto Kramer: One of the waterfalls was working perfectly and the other one was
basically dribbling.
Vice Chairman Nolton: You didn't have good flow, but the pumps were working.
Reto Kramer: The pumps were hardly working, yes. However, none of the drains—
they didn't work.
Vice Chairman Nolton: When was the first collapse?
Reto Kramer: That was March 6th
Vice Chairman Nolton: How did that collapse? The pond was full, the water
wasn't below the skimmer, and it was ...
Reto Kramer: We already had some leaking happening and the first collapse was
the leak on the top—on the top flow—where the water flows on the top, it basically
went behind the liner. The liner was not fixed the right way—the water went in and
basically went to the back of the wall and made it collapse.
Vice Chairman Nolton: So up on the top, somewhere near the waterfall, somewhere
in there, it collapsed with the liner?
Reto Kramer: Correct.
Chairman Lantz: At what point did you come to the determination that this whole
structure needs to be removed?
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January 15,2020
Reto Kramer: That was the decision of Collier County. I had no idea that this was
even an option. I was under the impression that we needed to take legal action that he
fixes it—that was my impression. And, obviously, we spent quite some money with
our lawyer and the two letters and there was just no result whatsoever. We had a
pond that was half empty, we had fish that,basically at that point, were at risk and we
had to donate the fish because it was not going to work anymore. So, the only other
option I had because I knew it was just not right that nothing happened, and we had
paid all that money—nothing was working. That's when I said there must be a
problem with doing the right thing from the licensing, so I went to the DBPR
(Department of Business and Professional Regulation) and it got involved with
Collier County. And I was, you know, actually happy because there was finally
somebody who could help us,but I had no idea that it had to be removed.
Patrick White: Well, that to me is still an open question. I understand what the
County's position is—that's just the Staff. To me, there are two choices here and
which of the two of them you may prefer weighs more importantly to me than pretty
much anything else ... gravity of the violation,harm to the public, you know, et
cetera. The options in my mind are: it gets repaired or it is removed. But if it is
removed, that's $100,000 that Mr. Williams is exposed to paying and,potentially, if
he doesn't achieve that within twelve months, he is out of a job and out of a career.
Maybe he's ready to retire. But it seems to me that if your preference is to try to have
it repaired, the course of action is to proceed first with a conversation with the County
about where's the prior permit—what evaluations were made then relative to what
those pipes are supposed to handle and what the estimated flows are and whether, in
fact, its reasonable to request a vacation from the County for the portion of the
drainage easement that is the minimum necessary to occupy the surface and
subsurface for the pond and the associated structures. That to me—if it's allowed ...
the permitting issues are minor. I tend to think that the structures—the pergola, the
bridge, the electrical, even the plumbing—are all doable from a permitting
perspective at a fairly minimal cost. So, before I can come to a position on what the
County's recommendations are for fines and restitution and probation, and I'll say it
again and maybe someday we'll be clear on this—if there's no testimony from the
County on what the costs are for them to prosecute it, how do they expect us to agree
to their recommendation? Anyway. From the perspective of the Respondent, the
contractor has every reason to think that if you were willing to try to have it repaired,
that would be to his advantage, financially and professionally.
Reto Kramer: If I can say something here?
Patrick White: Of course.
Reto Kramer: The pond in the situation that it is has plumbing underneath that does
not work. I don't believe, in my opinion,that you can have a liner in this size pond. I
think you need to spray it with concrete ... I think that the costs and, obviously, that
needs to be a license that is different. The costs to do that the proper way so it would
work is probably going to be seventy to eight thousand dollars, at least. I have
numbers up to $150,000. I don't know really what the facts are ... Collier County has
told me there is no way you can have this ...
Patrick White: Understood.
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January 15,2020
Reto Kramer: The situation that we are in right now ... Collier County says clearly
that we have to remove this and bring it back to its original state which means that we
have spent$100,000 to have the same exact lawn that we had before we started.
We've had nightmares between, obviously, and it put a really big burden on our
whole family having to go through all of this. So, yes, theoretically, if this really
could happen and it could be there, it would absolutely be amazing and beautiful. I
have just been fighting this for one and one-half years and I'm tired.
Patrick White: Don't give up hope yet.
Richard Joslin: Mr. Williams, what are your thoughts on this? Is there a way to
have the company finish this project? Or does Mr. Kramer just want to get the money
and get out?
Attorney Bass: I was wondering if I might be able to address that issue with Mr.
Williams. I was going to ask if I could make some argument about the proposed
penalty. I was going to argue what, essentially,Mr. White has already argued and,
based upon what Mr. Kramer has said during his testimony, that he would like to
have the facility. I think we should at least be allowed to try to get a building permit
—an after-the-fact permit—notwithstanding what we've heard from the County about
... well, that's not the last word. The easement is no longer being used for its intended
purpose. The forty feet has been changed and apparently, from County Staff
testimony, it was an authorized change by the County to put the culverts in there to
move the drainage water as opposed to having this large swale ... the forty-foot swale.
All I'm saying is give us a chance to get an after-the-fact permit and hire a General
Contractor to go in there and apply for the permit, get the inspections done, and
whatever. Or else, you knock it down.
Patrick White: Mr. Bass, candidly,you're not going to be having a conversation
with the Building Department about permits until you've got in your hands—thirty
days after the Board of County Commissioners may authorize the vacation with the
appropriate access. You're not even going to have a conversation with the County, so
unless you're contemplating asking for permission to vacate a portion of that
easement to be able to maintain and build whatever facility may be necessary, either
by repair or replacement or something of a different character—that has to be Step
One in your equation.
Attorney Bass: You're likely correct. And I don't want ...
Patrick White: I don't want to argue either, sir, but I know I'm absolutely correct ...
unless you got a Judge to tell you different.
Attorney Bass: Well, I defer to you at this time. Here's my overall point. If Mr.
and Mrs. Kramer think that if you order full restitution as recommended by the
County that they're going to get a check next week,they're wrong because that's not
the way it works. I don't have to tell you that. The way it works is.that you will
make an Order of Restitution and that's the end of your authority. You can't force
him to pay. If they want to force him to pay,they'll have to file a lawsuit. And this
proceeding would not be part of that lawsuit. We would have the right to have a jury
trial in that case and we would have a right to raise the defenses of comparative
negligence and the assumption of risk—which is what you heard here today. Mr. and
Mrs. Kramer assumed that risk.
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January 15,2020
Richard Joslin: We've heard it both ways.
Attorney Bass: Yes, okay ... I'm just saying that if they think they are going to get a
check next week, or next month, or even next year—through this proceeding—
they're probably wrong. And that's how this thing got started in the first place—they
went to the County to complain and to hopefully get my client to do what they wanted
him to do. That's when they found out from the County that it shouldn't have been
there in the first place. Getting it all out was not why they went to the County—they
went to the County to try to put pressure on Mr. Williams' company to do what they
wanted to do. Now they have opened the proverbial "Pandora's Box."
Patrick White: And believe me, I understand their respective positions. I
understand your perspective. As a Consumer Advocate kind of Representative on
this Board, my goal has always been to try to find something that is fair and is within
the confines of the law. Mr. Kramer is saying is that, technically speaking, what Mr.
Williams can offer him isn't going to be adequate because it won't perform, then
we're kind of past the repair option.
Attorney Bass: Well, he's saying it—he's saying that but ...
Patrick White: I understand ....
Attorney Bass: ... we don't know that.
Patrick White: I don't either. But at some point,we have to make a decision.
Attorney Bass: I understand that.
Terry Jerulle: Mr. Chairman?
Chairman Lantz: Yes, sir.
Terry Jerulle: Mr. Ossorio, if we were to—as an example—pull his permit pulling
privileges ... whose permit-pulling privileges are we stopping? Would that be for the
old company or the new company?
Michael Ossorio: There's only one company—that's Mr. William's company. We
are going to be opening some cases in the next couple of weeks concerning all those
things that we talked about today. But we're not talking building permit privileges ...
we're not talking about a State-certified contractor. You heard testimony that he pulls
irrigation permits and landscaping. I have no idea what the state of his company is—I
know what the state of the other two companies are. But pulling permit-pulling
privileges is nothing new. I think Mr. Williams is a person who has been a licensed
contractor for many years and over the years, maybe he did something more and
more, and here we are today. He's defended his license and himself. Just go back to
many months ago, if Mr. Williams and Dana will tell you the truth, he wanted to
know how he could solve the problem quickly. What is the quickest way to do this
thing? Well, going for a vacation or a variance is like going through a root canal
times fifty. And the percentage of success is zero percent whatever the issue the
County has ... is how they perceive it. There's also what you call noncompliance, and
this has been working for Mr. Williams ... he claims he didn't know he messed up—
he says he's a licensed contractor with no complaints or very few. So how does he do
it? He follows the Code—if you make full restitution and do no financial harm, then
you can go your own way. And that's what we've been trying to do for the last three
months.
Patrick White: I understand the County's position ...
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January 15,2020
Michael Ossorio: No, that was Mr. Williams' position, that was not the County's ...
I gave ...
Patrick White: Mr. Williams was offering to make full restitution?
Michael Ossorio: You can speak to Mr. Williams because I didn't speak to him
today.
Terry Jerulle: Can you give me the breakdown again?
Michael Ossorio: $52,000+ $12,700 +...
Patrick White: I think it was $15,700.
Vice Chairman Nolton: Right. It was $52,000+ $15,700+$32,000= $99,700.
Terry Jerulle: The$32,000 is for the removal of everything?
Patrick White: The estimate.
Michael Ossorio: Yes. And my assumption was that ...
Terry Jerulle: That would be if they closed today. You were trying to find out, Mr.
Chairman, what the time frame that was.
Chairman Lantz: What I was trying to find out—and I think it was answered—is
did he spend to repair it after he knew he shouldn't have it? That was my concern.
Patrick White: Exactly.
Michael Ossorio: At the County, this is not our first time talking about this.
Obviously, it doesn't a demolition contractor to remove vegetation and grade the land
to put it back to the original state ... lots of landscaping companies can do it. That's
what we were trying to work on ... to see if that$32,000 could be wiped out by Mr.
Williams' company—if he could put it back, it would save some time and effort. We
talked about a variance, but he wanted to solve it quick ... he wanted to be done with
it. So that's the avenue the County was speaking about ... we're all about compliance
and Mr. Williams was here today to defend his license and he wanted it treated as
non-compliance. So, we put it on the Agenda for him to come before the Board. Mr.
Williams will tell you that we spent hours—this is not the first time we talked about
this. With that said, I have nothing further.
Vice Chairman Nolton: So, I am assuming that if you did spend hours talking about
it,you never could get to a resolution and that's why he's here.
Michael Ossorio: Ask Mr. Williams—let him decide that. And to Mr. White's
point, the investigation costs as of last month were—we didn't put on the record how
many hours we spent ... I apologize, I forgot to do it. In terms of my responsibility in
the investigation, we can wipe it out.
Patrick White: The$1,500?
Michael Ossorio: The County is about making sure the homeowner and the
contractor can effectively move forward.
Patrick White: As always, Mr. Ossorio, you are a voice of certainly compliance,
fairness and I believe an excellent representative of the County's interests with the
public's need fully in mind.
Terry Jerulle: We have the County's recommendation, does anyone want to discuss
it or can we make a decision? Are we going to sit here all day and ...?
Chairman Lantz: I'm kind of curious as to that$32,000. It seems like a pretty big
nut to me. I'm curious as to ... if that's something that Mr. Williams would do ...if he
were to do it ... I mean, if someone charged me $32,000 to do a little bit of site work—
especially if that's what I did for a living ...
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January 15,2020
Patrick White: I think ... the way I would suggest we might be able to deal with that
...whatever that dollar value is, it might be provided in-kind. As long as it is
achieved, then whatever the dollar amount is—if it is provided in-kind, then the cost
to the Respondent is taken out of the equation.
Chairman Lantz: What you're suggesting is Mr. Williams brings the site back to
the original state and not be charged for it?
Patrick White: Kind of the same thing—but the other end. The$32,000 is there
because it's the estimate. Or, in the alternative, the Respondent restores it to the
status quo as grass.
Richard Joslin: And if he restores it to grass, the value is gone.
Patrick White: Correct. So,we're down to $67,700 plus whatever fines ...
Richard Joslin: Four thousand.
Patrick White: We're looking around $70K. I'm absolutely certain he's got that in
S&H Green Stamps under his bed. I think that might be the best way of doing it
because I just tore out a pool, had it back-filled, and re-sprinkled and sodded—it was
like$12,000. So, that$32,000 is ridiculous.
Richard Joslin: I'd like to hear from Mr. Williams—is this something that he could
do.
Patrick White: Regardless of whether it is or isn't.we can order him and he either
chooses to do it, or he doesn't.
Chairman Lantz: Mr. Jerulle, are you ready to make a motion.
Terry Jerulle: We're going to need a break here very shortly. Or we can sit here all
day long and debate this all day long. We do have the facts and we're charging him
with coming up with restitution or correction or whatever. I just want to go on with
this. As far as I'm concerned, restitution at$52,000 is fine, $15,700 for repairs is
fine,but the$32,000 I think is very excessive.
Chairman Lantz: So, are you suggesting ...?
Terry Jerulle: Nothing against Mr. Kramer but still—in the back of my mind, the
question that begs to be asked ... you should have found out if you needed a permit to
go into the easement or not. Especially after the HOA told you that. To me, I'd make
that$3,250 and move on.
Patrick White: I'm sorry ...?
Terry Jerulle: $52,000+$15,700 ... I don't have a calculator but.... $3,250 is what
I think the restitution should be to put it back in place.
Patrick White: Part of the restitution, I'm assuming, is recouping the money he's
spent to get as far as he's gotten ... without the repair.
Terry Jerulle: $52,000 is what he spent.
Patrick White: Right.
Terry Jerulle: $15,700 is what he spent to repair it.
Patrick White: Right.
Terry Jerulle: And then the County has suggested that putting it back is estimated to
be$32,000. My estimate is $15,000.
Patrick White: Got it—it's $17,000 less the $99,700. Lawyer math comes up with
$82,700.
Vice Chairman Nolton: There's $4,000 in fines.
Terry Jerulle: And the$1,500 in administrative expenses.
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January 15,2020
Chairman Lantz: Well, he's already removed the $1,500.
Terry Jerulle: Okay ... that's fine.
Patrick White: So, everyone understands my position: I'm not supporting the fines.
I understand that even reducing the nut, if you will,by $4,000 probably isn't going to
change the outcome, relative to the ability of the Respondent to pay it in twelve
months. But, as I said earlier, I think a reasonable effort was made to both determine
whether a permit was necessary. I think there's a reasonable argument against the
potable water, so I don't know that I'm convinced of the gravity of the harm, et
cetera. For me, if he makes the restitution, that's education enough. The fine really,
to me, is ... I don't know what public purpose it achieves. If there's a benefit to the
owner in getting some or more of the restitution in the amount of$4,000, I'd argue
I'd much rather have that go to the owner than to the County's coffers. But that's just
my opinion.
Chairman Lantz: Does anybody want to make a motion?
Terry Jerulle moved to approve imposing the following Sanctions on the
Respondent:
• The Respondent is to make restitution to the Homeowner in the amount of
$82,700;
• Payment of fines in the amount of$2,000 for Count I, and$2,000 for
Count II;
• The Respondent will be placed on probation for a period of twenty-four
months;
• If restitution and payment of fines is not made within twelve months, the
Respondent's three licenses will be revoked.
Chairman Lantz: There's motion. Is there a Second?
Richard Joslin offered a Second in support of the motion for clarification.
Richard Joslin: Am I clear on the motion ... the figure is $86,700?
Patrick White: That's the fine and restitution, within twelve months.
Richard Joslin: If not paid within twelve months, then his licenses are revoked.
And he has two years of probation.
Richard Joslin again offered a Second in support of the motion.
Discussion:
• Chairman Lantz: For me personally, I would rather see restitution of
$52,000+ $15,700 and leave it up to Mr. Williams to restore the property
back to its original state; no fines; and no probation.
• Patrick White: It's for those reasons that I won't be supporting it.
• Chairman Lantz: That's what I was going to say.
• Vice Chairman Nolton: I'm sorry—you're not supporting the original
motion?
• Chairman Lantz: There is only one motion.
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January 15,2020
• Patrick White: The motion by Mr. Jerulle.
• Vice Chairman Nolton: I would be more in line with the adjustment that
was just made.
• Patrick White: You have two paths: you can amend the existing motion, or
you can vote on it and move forward, assuming that it doesn't pass. I'm not
going to try to speak for the other members—I never have.
• Vice Chairman Nolton: I want you to repeat the motion.
• Chairman Lantz: His motion is $82,700 in restitution and repairs plus
$4,000 in fines which needs to be paid in one year. Probation up until that is
paid for ... and if it's not paid within the year, his licenses are revoked.
• Patrick White: Regardless, he's on probation for two years. Right?
• Chairman Lantz: So, with this motion,Mr. Kramer is not given the$15,000
to bring it back. Mr. Kramer can do whatever he wants. Even though it's Mr.
Williams business—doing landscaping—he's out of the equation but he's just
writing a check for$15,000.
• Terry Jerulle: How do we know he is still in business?
• Chairman Lantz: He's still a licensed contractor—correct?
• Terry Jerulle: That doesn't mean that he owns a business.
• Chairman Lantz: He could work under somebody else. He could hire
somebody else to do it. He has many ways to accomplish the goal. He has
plenty of ways to do it—he's licensed to do it.
• Terry Jerulle: Would you want somebody that you kicked off your property
coming back on your property?Like it or not, this is the easiest and cleanest
way of doing it. I've gone through that scenario in my mind and I don't
disagree with you. If he had a business and was able to do it, I would have
suggested it but, in my mind, he sold the business. He still has a license, but
he is not licensed to do this work.
• Chairman Lantz: He is licensed to do this work.
• Terry Jerulle: Well ... I don't know how logical it is but, in my mind, doing
this puts everything to rest and we're done with it. I don't necessarily—I
would love to have seen a bid to justify it. I don't have that—I'm coming up
with a bid in my mind based on my experience—it's the best I can do. I'm
not saying it's perfect ...
• Chairman Lantz: Yup.
• Terry Jerulle: ... but it's the best that I think I can do to help the homeowner.
Chairman Lantz: Is there any more discussion? I am going to wait for Mr. White to
return because he might be my only ...
Terry Jerulle: If you can think of a better way, I'll amend my motion but, right now,
I don't think there's a better way.
Chairman Lantz: I just think Mr.Williams needs to figure out a way to get that
yard back to what it was.
Terry Jerulle: He's had a year and a half.
Chairman Lantz: Not to restore it.
Terry Jerulle: I've made my motion and you can vote on it.
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January 15,2020
Patrick White: We don't even know if the homeowner would let him back on the
property.
Terry Jerulle: Exactly. I wouldn't.
Patrick White: And if he did do the repairs, would he have to hire a General
Contractor because you have electric demo,plumbing demo, the demo and pulling the
concrete.
Chairman Lantz: All right. We have a motion and a second.
Chairman Lantz called for a vote on the motion.
Motion carried, 4— "Yes"/3— "No."
Chairman Lantz stated:
• This cause came for a Public Hearing before the Contractors' Licensing Board
on January 15, 2020 for consideration of the Administrative Complaint filed
against Thomas R. Williams, d/b/a Williams Magical Garden and Landscape.
• Service of the complaint was made by certified mail, personal delivery, or
publication in accordance with Collier County Ordinance#90-105, as
amended.
• The Board having heard testimony under oath, received evidence, and heard
arguments respective to all pertinent matters hereupon issues its Findings of
Facts, Conclusions of Law and Order of the Board as follows:
Conclusions of Law,Findings of Fact, and Orders of the Board:
• Thomas R. Williams, d/b/a Williams Magical Garden and Landscape, is the
holder of record of a Collier County Certificate of Competency,License
Number LCC20130000742.
• The Collier County Board of County Commissioners is the Petitioner in this
matter and Thomas R. Williams is the Respondent.
• Thomas R. Williams was present at the January 15, 2020 Public Hearing and
he was represented by counsel.
• All notices required by Collier County Ordinance#90-105, as amended, have
been properly issued or personally delivered.
• The Respondent acted in a matter that is in violation of Collier County
Ordinance and is the one who committed the act.
• The allegations set forth in the Administrative Complaint as to Collier County
Ordinance#90-105, as amended, Section 22-201(2):
o Count I-A: Thomas R. Williams is the holder of licenses for
Landscape Contractor, Paving Block Contractor, and Non-
Recreational Pond/Waterfall/Fountain Contractor. These licenses do
not allow Mr. Williams to provide electrical contracting services or
perform the work of connecting potable waterlines, both of which
were done in the scope of services he had provided under the subject
contract.
o Count I-B: Thomas R. Williams is in violation of Collier County
Municode Section 22-201(2) which states, in pertinent part, that it is
misconduct for a holder of a Collier County Certificate of Competency
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January 15,2020
to contract to do any work outside the Scope of his competency as
listed on his competency card and as defined in this Ordinance or as
restricted by the Contractors' Licensing Board.
o Count II-A: Upon review of the County permitting records, a building
permit was never applied for or issued prior to commencing work, and
a permit was required to perform the subject work.
o Count II-B: Thomas R. Williams is in violation of Collier County
Municode Section 22-201(18) which states, in pertinent, that it is
misconduct by a Holder of a Collier County Certificate of Competency
to proceed on any job without obtaining the applicable permits or
inspections from the City Building and Zoning Division or the County
Building Review and Permitting Department.
• The allegation was supported by the evidence presented at the Hearing.
Conclusions of Law:
• The allegations set forth in the Administrative Complaint as to Count I and
Count II are approved, adopted, and incorporated herein, to wit:
o The Respondent violated Ordinance#95-105, as amended, Section 22-
201(2) in Count I and Section 22-201(18) in Count II in the performance
of his contracting business in Collier County by acting in violation of the
Sections set out in the Administrative Complaint with particularity.
Orders of the Board:
• Based upon the foregoing Findings of Fact and Conclusions of Law, and
pursuant to the authority granted in Florida Statutes, Chapter 489, and Collier
County Ordinance#90-105, as amended, by a vote of four(4) in favor and
three(3) opposed, a majority vote of the Board members present, the related
Sanctions and the following Order are hereby imposed upon the holder of
Certificate of Competency#LCC 20130000742:
o The Respondent is to make restitution to the Homeowner in the
amount of$82,700;
o Payment of fines in the amount of$2,000 for Count I and$2,000 fine
for Count II;
o The Respondent will be placed on probation for a period of twenty-
four months;
o If restitution and payment of the fines is not made within twelve
months,the Respondent's three licenses will be revoked.
Chairman Lantz: This proceeding is now concluded.
Michael Ossorio: Just to clarify, the $82,700 was for restitution to the Homeowner
and not for the County.
Chairman Lantz: Correct. The fines of$4,000 are to be paid to the County.
Michael Ossorio suggested taking a short break.
BREAK: 2:05 PM
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RECONVENED: 2:21 PM
Chairman Lantz called the meeting to order.
10. PUBLIC HEARING (CONTINUED):
(Note: The individuals who testified in the following case under Item 10, "Public
Hearing,"were first sworn in by the Attorney for the Board.)
B. Case#01—2020: Collier County Board of County Commissioners,Plaintiff,
vs. Roberto M. Torres, Respondent,d/b/a"Premier Pavers,
Inc." Collier County Licensed Contractor(LCC 20160000367)
—Misconduct
Chairman Lantz (directed his question to the Respondent): So, do you remember
the procedures that we talked about earlier?
Roberto Torres: Yes.
Chairman Lantz (directed his question to Staff): If you could begin with your
Opening Statement,please.
Ruben Martinez, Licensing Compliance Officer, presented the County's case.
Collier County's Opening Statement presented by Compliance Officer Martinez:
Collier County filed the Administrative Complaint against the Respondent, Robert
M. Torres, Collier County Paving Block Contractor with Issuance Number
201600000170, who is the Qualifier for Premier Paver, Inc.
Richard Joslin moved to approve entering the information packet in Case#2020-01
into evidence on behalf of the County. Vice Chairman Nolton offered a Second in
support of the motion. Carried unanimously, 7—0.
Mr. Torres applied for and obtained a Right-of-Way Permit on behalf of an
unlicensed company, Unlimited Paver Supplies, Inc., to remove a concrete driveway,
supply and install a 15"corrugated plastic culver pipe, supply and install a paver
driveway.
Mr. Torres is in violation of Collier County Municode Section 22-201(1)by
knowingly combining or conspiring with an unlicensed contractor by allowing his
Certificate of Competency to be used by an unlicensed contractor with the intent to
evade the provision of this Ordinance.
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Respondent,Roberto M. Torres, presented his Opening Statement:
At no time was the work being completed by Unlimited Paver Supplies—it was
completed by Premier Paver. Certain aspects of the work were subcontracted to labor
workers. Unlimited Paver Supplies only provided material for the work.
Terry Jerulle: Could you say that last part again—I didn't hear you.
Respondent Torres: Unlimited Paver Supplies was a material store—they provided
material.
Chairman Lantz questioned the Respondent:
Q. And y our company is Premier Paver?
A. Correct.
Q. And the homeowner had a contract with you or with Unlimited Paver Supplies?
A. Both. He contracted with me as far as the labor work and he was supposed to
have one with the store for the material portion of it.
Q. So, what we were told—there's a fee—the contracted amount of$9,200. A total
of$8,761.00 was paid to Unlimited Paver Supplies—that was for the material and
then the labor was separate?
A. The contract was actually bigger than that. That was for the material portion of it.
The check went to the store—the materials store.
Q. And then what was the labor portion of it?
A. I don't have the numbers in front of me,but it was, basically, about half.
Q. So,the homeowner wasn't spending $9,200 for the job on the paver work—they
were probably spending about$14,000—is what you're saying?
A. I think it was even more than that.
Q. Okay. And, so,that's your Opening Statement?
A. Yes, that's it.
Q. Okay.
Chairman Lantz: Mr. Martinez, do you want to proceed with the County's case?
Ruben Martinez: Sure. By the way, the homeowner is here, so I will be introducing
him as a Witness.
Collier County's Case in Chief was presented by Compliance Officer Martinez:
• On or about December 4, 2019, the Collier County Licensing Department
received a complaint from the homeowner, Steven T. Merkel, regarding work
performed at his residence at 148 Jonnycake Drive, Naples, Florida.
• The complaint was that the contractor failed to follow the County's
procedures and conditions in competing the work.
• The homeowner stated he paid in full for the work after he was told by the
contractor that all permits had been completed.
• The homeowner later found out from the County's website, Cityview, that
there were some pending inspections due to failed inspections, and he learned
that the permit had been obtained by Roberto M. Torres from Premier Pavers.
[Exhibit 10—Page 275]
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• The case was assigned to me by Mr. Ossorio, and the case number is
CEMIS20190014369.
• Upon investigation, it was discovered that, on May 22, 2019, Andres Zapata
representing Unlimited Paver Supplies, Inc. signed a contract with the
homeowner to perform the following work at the homeowner's residence:
o remove the concrete driveway;
o install a 15' corrugated plastic culvert pipe;
o supply and install a 4' DOT base rock on driveway;
o supply screened 131 paver-set sand;
o supply and install 60 mm pavers,
o clean and seal pavers.
The contracted amount was $9,200. [Exhibits 6 and 7, Page 271 —272]
• A review of the records revealed that on June 13, 2019, Mr. Torres applied, on
behalf of Premier Pavers, for a Right-of-Way Permit pertaining to the above-
referenced work that was later performed by Unlimited Paver Supplies.
• The Application was signed by Mr. Torres and notarized. It stated that he was
retained by the homeowner/permittee to provide contracted services for the
trade for which he was listed.
• Unlimited Paver Supplies is an unlicensed company that has been issued
Citations on three separate occasions for conducting business in Collier
County.
• Based on the investigation and pursuant to Collier County Municode Section
22-202(a)(2) and (b), the Contractor Licensing Office Supervisor determined
that sufficient cause existed to warrant filing formal charges.
The Witness was called to testify on behalf of Collier County.
Examination of the Witness by Licensing Compliance Officer Martinez:
Q. Can you state your name and your address?
A. Steven Merkel, 148 Jonnycake Drive,Naples, Florida
Q. Did you sign a contract with Unlimited Paver Supplies or with Premier Pavers?
A. Unlimited Paver Supplies.
Q. Did you have any dealings with the Respondent, Mr. Torres, during the process of
obtaining the permits or application or doing the work at your residence?
A. This is the first time that I've met Mr. Torres.
Officer Martinez: This is all I have.
Chairman Lantz(to Respondent): Do you have any question?
Cross-Examination of the Witness by the Respondent:
Q. How many contracts did you sign?
A. I signed one contract.
Q. Were you presented with a second contract on behalf of Premier Pavers?
A. I was not.
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Q. Did Mr. Zapata explain to you how we operate—that I am the license holder and
he provides materials?
A. He initially said that,but then the truck that showed up at the house to the
driveway all had"Unlimited Pavers"on it and all my dealings—start to finish—
was with Unlimited Pavers. In the contract that I signed Unlimited Pavers was
hired to do everything. There was nothing extra above and beyond the $9,200.
Q. Did you see—you said the truck had"Unlimited Paver Supplies" on it—was one
of them a dump truck to haul away concrete?
A. That's correct.
Q. Was it the same dump truck that also delivered the base rock to your job site?
A. That I would not know—I was not there at the time.
Q. Okay. Was it the same dump truck that delivered two tons of pavers?
A. I would not recognize if it was the same dump truck, no.
Q. Was there a smaller version of another dump truck that picked up the garbage
once the work was completed?
A. I was only there for the removal of the concrete. I was not there for the delivery
of the materials.
Q. Did you watch them remove the concrete?
A. I did and I took pictures.
Q. Where did the concrete go—they had to put it somewhere?
A. They put it in the dump truck that said"Unlimited Pavers"on it and then they
took it away.
Q. Okay. So,you did see a dump truck with "Unlimited Paver Supplies" label on it-
- correct?
A. Correct.
Q. You said you saw trucks—can you describe the trucks with"Unlimited Paver
Supplies" labels on them?
A. Just another truck that brought the backhoe ... I don't know if that's the correct
word for it—a small-looking loader. It was on a loading truck.
Q. So, it's safe to say you saw a bobcat being delivered on a truck that had another
"Unlimited Paver Supplies" label on it?
A. Yes, sir. The ironic thing is the guy who I did the contract with turned out to be
the same guy who drove the truck, drove the bobcat, and everything. This Andres
guy from Unlimited Pavers was really the only guy that I dealt with from start to
finish—potential finish. And to my surprise—like I said, he was the one who
jumped on the bobcat, too—and did the job. I was kind of taken off by that
because I thought he was just the guy who did quotes and sales.
Q. Okay. Did Andres ever explain to you that he's my father-in-law and we work
together—we help each other out—I help him with his business, and he helps me
with mine?
A. That was not explained at all.
Q. Did he explain the whole licensing thing? Did he tell you that?
A. No.
Q. Did you see anybody from Unlimited Paver Supplies—besides Andres—working
at that job site?
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A. Yes, he had a crew that actually put in the ... after the pavers were delivered and
they wanted to lay the brick pavers—he had a crew of five or six gentlemen who
laid the actual brick pavers.
Q. Are you saying they were employees of Unlimited Paver Supplies or they may be
another company that he subcontracted to—to get the work done?
A. That's a question that I can't answer at this time. I have no idea.
Q. Do you have any knowledge of them being employees of Unlimited Paver
Supplies?
A. I have no idea.
Respondent Torres: I have nothing else.
Chairman Lantz(to Officer Martinez): Do you have anything else?
Examination of the Respondent by Licensing Compliance Officer Martinez:
Q. You mentioned Mr. Zapata. Is he a licensed contractor?
A. He is not, no.
Q. Okay. You said you help each other out. Is that because he is family?
A. Yes.
Q. Okay. Does this mean you pull the permits for him?
A. I pull permits for Premier Pavers and I'm the one doing the work.
Q. Okay. But you were never at that site?
A. Sometimes if I might be on another job site, I cannot show up.
Q. I know,but we are talking about this specific cite.
A. On that day, I was not there, no.
Q. And on the other dates?
A. No.
Chairman Lantz questioned the Respondent:
Q. Are"Andres" and"Mr. Zapata"the same person or two different people?
A. Same person.
Q. Okay
Richard Joslin questioned the Respondent:
Q. Premier Pavers—that's you?
A. Yes, sir.
Q. And the Unlimited Pavers is the supply company—is that right ...?
A. Yes.
Q. Are they licensed?
A. They are not, no.
Q. They are not licensed. They are just a manufacturer of pavers or ...?
A. Not a manufacturer—they carry supplies like pavers and ...
Q. As a supply company, they go buy the pavers at whatever price?
A. Exactly. And they sell sand and everything you need.
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Chairman Lantz: Are there any more questions for Mr. Merkel or anything else
from you, Mr. Martinez? [He nodded, no.] Does anyone on the Board have any
questions? [No response.]
Chairman Lantz(to Officer Martinez): Are you resting the County's case?
The response was affirmative.
Chairman Lantz (to the Respondent): All aright sir, the ball is in your court. Now
is your chance to defend yourself.
The Respondent presented his Defense:
To backtrack a little bit, when my father-in-law and I started working together—
we are based out of Cape Coral. I make sure we are legal and that we don't have any
issues—if Cape Coral says yes, then its fine.
We brought it down here and started working the same way down here. At one
point there was an issue when he was fined for unlicensed contracting and I believe
the person who ... I was present, and me and him started talking to the Investigator. I
believe his name was Jack but I'm not 100%sure, if I remember correctly.
We told him what we were doing—we wanted clarity to make sure there were no
issues—we didn't want to have any legal issues with the license. He told us as long
as you have separate contracts showing the materials and showing labor—and the
homeowner clearly understands everything about the way you operate, and one check
is written for the materials and one check is written at the end to Premier Pavers, he
did not foresee any issues.
That's the way we have been operating. Somewhere along the line, I guess
Unlimited Paver Supplies hired a new employee in the office. She was messing up—
she was basically copying my contracts onto theirs for the materials. This cause some
confusion, obviously,with the homeowners. I wasn't aware of it because I don't go
through their files and I don't go through their paperwork. I have my own stuff to go
through. This all surfaced just recently.
Everyone is coming to me because I'm in pavers and this all spiked because
Unlimited Paver Supplies is out of business. There are a few customers in Naples
who gave money to him for the material portion of it and then he closed his doors. Of
course, they are aggravated because they are not getting their money. Without the
materials, I can't do their work for them. So,they can't go after him—nobody can do
anything to him ... not really ... civilly or criminally. So, the only one standing is me.
All this stuff is surfacing,and I'm having to pay the consequences for somebody else.
Chairman Lantz questioned the Respondent:
Q. So, we have a contract—Page 271 in our packet—it shows a contract from
Unlimited Paver Supplies for$9,200 and that includes the labor and the culvert.
There is a weird note in the culver, "No miner ends to be installed by Premier
Pavers." But it is an Unlimited Paver Supplies' contract. It shows the sand, and it
shows the paver installation labor for$1.60 per square foot. So,what you're
saying is you were doing separate contracts, however, somehow. they got merged
and then became one contract. This is an example of where—there are not two
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contracts as you thought in the beginning—this is all on one contract under their
name, not yours.
A. Right, and the homeowner is almost signing two contracts for the exact same
work
Vice Chairman Nolton: You asked Mr. Merkel about signing two contracts—do you
have another contract—a different one to sign?
A. I don't know if it's in here—I kind of just brought what Ruben gave me.
Q. So, this contract that we have here for$9,200 is basically for labor,permit fees,
culvert and then there's a separate price for pavers—right?
A. No, the pavers are in there—the$2,400.
Q. That's the"gem 50 mm pavers white cement"—that's for the material?
A. Yes, sir. It also has the installation.
Q. So, one contract covered everything?
Vice Chairman Nolton: This clearly has everything and both payments were made
to Unlimited Paver Supplies.
Terry Jerulle: Mr. Chairman, may I?
Chairman Lantz: Yes.
Terry Jerulle questioned the Respondent:
Q. Mr. Torres, you pulled the permit for this work?
A. I did, yes.
Q. And did you receive money for this work?
A. No, I did not.
Q. Basically,that's it in a nutshell, isn't it? You didn't do the work and you didn't
get paid. You pulled the permit—and I'm not putting words in your mouth and
I'm not trying to argue with you ... but it appears from the evidence that I have ...
you pulled the permit for the work and Pavers Unlimited did the work and got
paid for it.
A. I'm sorry—I take my comment back—you asked me if I pulled the permit and
yes, I pulled the permit. You asked me if I received any payments from this, and I
did because the work was completed.
Q. Did you receive it from the owner or from Unlimited Paver Supplies?
A. It should have been directly to me. But I don't have ...
Q. You're right... it should have.
Vice Chairman Nolton: Because the evidence that we have shows two payments to
Unlimited Paver Supplies.
A. That is correct.
Chairman Lantz: Is it typical—I can't imagine this happening—but is it typical for
you guys to install a culvert pipe and not be responsible for the mitered end? Isn't
that part of the inspection?
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A. Sometimes a County requires it,but we don't find out these things until the
inspection comes up.
Chairman Lantz: So, mitered ends aren't required every time when you do the ...?
Patrick White: Because they might have a head wall?
A. Correct.
Terry Jerulle: It's one or the other.
Respondent Torres: As far as the checks, this wasn't supposed to happen anymore.
This is the issue that we had when I originally meet with Jack. Mr. Zapata was fined
for the unlicensed contracting. There were no overt issues on my part. Since we're
family—we sometimes cross our accounts—we owe each other money to pay for this,
and that's what happened there. But, for the most part, the checks were made to me
as far as the labor portion once the job is completed. At the beginning, the checks go
to Unlimited Pavers Supplies for the material part of it. It's the way we operate.
Terry Jerulle: Your father-in-law,Mr. Zapata ...Unlimited Paver Supplies ... is out
of business?
A. Yes, sir.
Terry Jerulle: Because he should be here for doing unlicensed work as well.
A. You're right.
Officer Martinez: Those cases—because they were cited for these incidents before
on three occasions—they had a fourth occasion in 2019, so this time we referred the
case to the investigators at the Collier County Sheriff's office and they are actively
investigating them.
Chairman Lantz: Who operated the Skidsteer when they pulled up the concrete?
A. On this specific job, I don't remember if it was him. You know, I have so much
work. He does ... he's my father-in-law and we help each other ... I deliver
material for his business. I've jumped in the truck ... the smaller dump truck ...
and I'll deliver sand or throw some pavers on a pick-up truck and to pick them up
for him.
Chairman Lantz: Who set the pavers?
A. Sorry.
Chairman Lantz: Who set the pavers?
A. Who put them in? We subcontract to other labor to install the pavers.
Terry Jerulle: Do you have any employees?
A. Me.
Chairman Lantz: You couldn't just put your father-in-law on your payroll?
A. Well, I thought we were doing everything legally—all I had to do is walk into the
County office and tell them that I wanted to qualify his business and I think I
would have been in the clear. I didn't know I was going to end up here—if I did,
I would have done that and avoided these issues. Like I said, I sat down with Jack
that one day and he said as long as we separated everything, we would be okay.
Chairman Lantz: But you didn't separate them? On this particular job, you didn't
separate them. It's a contract from Unlimited Paver Supplies and whether it's an
oversight or not, it wasn't separate.
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A. Right, and not to put the blame on anybody ... unfortunately, I don't look through
the paperwork, I don't go through bank accounts ... sometimes I don't go through
the contracts.
Chairman Lantz: But you applied for the building permit?
A. Correct.
Chairman Lantz: Without a contract in hand?
Patrick White: A Right-of-way application.
Chairman Lantz: A right-of-way.
A. I knew I had a contract—I just probably didn't prepare myself enough for today.
But I know I had a contract.
Chairman Lantz: And so, the first two payments—there were two payments that
were made—both for$4,600 ... is that correct?
Officer Martinez: No, the second one was for$4,000 ...
Chairman Lantz: $4,751?
Officer Martinez: Yes, and the difference in the amount versus what the estimate
said was because there was some damage done to the property and the homeowner
agreed with Mr. Zapata who offered a discount for the damage done to the property.
Chairman Lantz: Okay.
Officer Martinez: So,he paid in full.
Chairman Lantz: He paid in full for what he was charged.
Mr.Merkel: I did not realize that the job was not closed out until I later looked on
the website and saw all the County's notes that the job was not closed out—he told
me the job was done and I wouldn't have any problems with the County.
Chairman Lantz: Now that's going to cost you some money.
Richard Joslin: Where do we stand now—is it still not closed?
Officer Martinez: It's still not closed—still pending possible inspections. It has
failed inspections. However, I have an estimate for restitution that he provided to me
which I will present to the Board.
Chairman Lantz: He paid for the job in full and then everything went to ... so, how
did you get paid for this job? What you're telling us is that you got paid from him
[homeowner] and he is telling us he wrote two checks to Unlimited ...
Patrick White: That's not what I understood.
Terry Jerulle: No,he told me he was paid by Unlimited.
Chairman Lantz: Oh, okay. I'm sorry.
A. Yeah,because we're family we do cross the accounts sometimes. Sometimes, I
mean ... right now, that company --his company owes me a few thousand dollars.
Somewhere along the lines, I'm sure we crossed and for me to go back now to
pinpoint exactly where we crossed it and why it went to him and not me—would
be really difficult. I don't think I could answer that right now.
Richard Joslin: I could see how that could happen when family gets involved.
Terry Jerulle: That's a choice ...
Richard Joslin: I know.
Terry Jerulle: Mr. Zapata has been fined per testimony before—he knew what he
was doing. He knew what he was doing and what he wasn't doing. It's a clear case.
Richard Joslin: I agree.
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Terry Jerulle: It bothers me—what really bothers me is that you seem to know all
this, and you did it anyway. And then you came today knowing there are still
outstanding issues for the homeowner. It would have been a lot easier for us to make
decisions if you had taken care of it. Do you understand what I'm saying?
A. Yeah.
Patrick White: Before we get to finding the violation and disciplinary action, are
you clear on how to fix this ... at least for you ... if not the rest of your family? That's
really what I want to know ... not so much that you're not going to be here again but
that somebody like Mr. Markel isn't going to be here again.
A. Right now, not to make anybody here feel sorry for me—that's not my purpose
here—but he was given a lot of money from different people for material
purposes and he's basically disappeared. And I'm dealing with a lot of attorneys
and, obviously,today I'm dealing with my licensing problems, I'm doing all sorts
of things because everybody is looking to me because I'm the only one standing.
I'm trying to keep the business alive ... for me and for my family, and I'm trying
to do what's right by helping all these people out.
Patrick White: And that was the point of my question. Do you know what is right
and, other than the financial implications, how to avoid being here again and digging
the same hole deeper?
A. Well, this will absolutely never happen again. I mean ...
Patrick White: Why not?
A. I'm sure you guys, as everybody here knows, you don't do business with family.
Patrick White: Okay.
A. ... and be very careful with who I partner up with. Unfortunately, this was the
first business that I have run and, in the last few months, I have learned a lot all at
one time. I won't be here ...
Patrick White: The point is ... are you going to pull a permit for somebody else?
A. No. And I will not be here again.
Patrick White: That's kind of what I needed to hear—number one. And it's what I
was hoping you would say because, at the end of the day, it's why you're here. The
other things are all certainly part of life and business, but there's a pretty simple way
to avoid it. Especially when you know that somebody has gotten Citations multiple
times, it's ...three strikes and you're out.
A. I really only knew about one—the one that I sat down with Jack ... the other ones
I didn't know about.
Patrick White: I'm not surprised. Thank you. I think you do know it today.
Chairman Lantz: So, is your defense done or do you have anymore?
A. That's it.
Chairman Lantz: Mr. Martinez, would you like to make your Closing Statement?
Collier County's Closing Statement presented by Compliance Officer Martinez:
In Closing, it's clear that the Respondent applied for and obtained a permit on
behalf of an unlicensed company. It's as simple as that.
I have an estimate from the homeowner for restitution. The total is two thousand
dollars.
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Steven Merkel: The main thing that I want to accomplish, and I want you to
understand—my neighbors saw me hire this company ... his father-in-law's company
... and they all came to me ... and when they asked, I referred them to Unlimited Paver
Supplies. They had done two other driveways on the next street over—they had some
issues, too—but it turned out nice. And then his father-in-law, who he is associated
with, runs off with their money, too. There were three other people in my
neighborhood—he ran off with over$20,000—and now,they don't answer the
phones—none of them do. So,we're all in the same situation ... the restitution is
great for me but it's my image that I'm really concerned about—my neighbors say I
cost them all this money
Terry Jerulle: Because you referred them to an unlicensed contractor.
Steven Merkel: Exactly ... and it's partially my fault. They had license numbers on
all the invoices.
Chairman Lantz: Mr. Torres, do you have a Closing Statement that you want to
make?
Michael Boyd: Did you call in the inspections? Are you aware that the inspections
failed?
A. Yes.
Terry Jerulle: "Yes"—you're aware, or"Yes"—that you called them in? There are
two questions, I believe.
A. A little bit of both. As far as I knew, Mr. Merkel was going to get a company to
the culvert runs and then they were going to go from there.
Steve Merkel: The one problem I face is when you bring ten people out to quote a
job and you pick the one you think will do the best job for you ... when you go back
to those nine and ask them to come out to finish someone else's job—you probably
don't get the best price and there isn't a huge amount of motivation to ...
Chairman Lantz: Okay. Now to vote on ...
Terry Jerulle moved to approve closing the Public Hearing in Case#2020-01.
Patrick White offered a Second in support of the motion.
Chairman Lantz: Well, according to this, we take a vote to determine guilt before
we close the Public Hearing. I'm just going with the piece of paper that I have.
Patrick White: We're down to one attorney.
Chairman Lantz: I don't care either way—I'm just going with the piece of paper
that I've been using for the last few.
Attorney Schneck: I don't think it really matters but in the earlier hearing today,
you took a vote first, closed the Public Hearing, and then moved on to the penalty
phase.
Chairman Lantz: Shall we close the Public Hearing.
Patrick White: There's a motion and a second.
Chairman Lantz called for a vote on the motion. Carried unanimously, 7—0.
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Chairman Lantz: The Public Hearing is closed. So, now we determine guilt. Mr.
Schneck, do you want to go over the reasons for the charge. Doesn't he have to tell
us our reasons—like the Charge to the Jury?
Attorney Schneck: I can review for the Board the Standard—the Evidentiary
Standard. It is based upon the competent, substantial evidence in the record. With
this case in mind, the Board can determine if the Respondent is guilty or not guilty.
To make that determination, the Board must use what is called the"Clear and
Convincing"Evidentiary Standard. The Standard is not quite as high as "Beyond a
Reasonable Doubt" in a criminal case, and not as low as the"Preponderance of
Evidence" in a civil case. That is your Standard.
Chairman Lantz: All right. I think the Respondent has already admitted that he is
guilty. Anybody have anything else on that?
Richard Joslin moved to approve finding that the Respondent is guilty of violating
Section 22-201(1)of the Municode as alleged in Count I of the Administrative
Complaint. Michael Boyd offered a Second in support of the motion.
Chairman Lantz: Any discussion? [No response from the members.]
Chairman Lantz called for a vote on the motion. Carried unanimously, 7—0.
Attorney Schneck: Now for the Sanctions phase of the case. The disciplinary
Sanctions that the Board could impose against the Respondent in this case include:
• Revocation of his license,
• Suspension of his license;
• Denial of the issuance or renewal of his license;
• Impose a period of probation,but not to exceed two years;
• Order Restitution;
• Assess a fine in an amount not to exceed ten thousand dollars ($10,000);
• Issue a public reprimand;
• Require re-examination and/or trade tests;
• Denial of the issuance of any future permits in Collier County or require the
issuance of permits with specific conditions.
Attorney Schneck continued: When considering these penalties, the Board should
also consider the testimony and all the evidence presented, as well as the following
factors:
• The gravity of the violation;
• The impact of the violation on the public health/safety/welfare;
• Any actions taken by the violator to correct the violations;
• Any previous violations committed by the violator; and
• Any other evidence presented at the Hearing relevant to the Sanctions which are
appropriate to the case, given the nature of the violation and the violator.
Chairman Lantz: Mr. Ossorio, does the County have any recommendations?
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Michael Ossorio: For the record,
• the Respondent will do whatever is necessary to re-active Right-of-Way
Permit No. PRROWW2019062751101 within thirty days.
• If he is unable to complete the work, the Respondent is to make full restitution
to Mr. Merkel in the amount of$2,000, to be paid within thirty days.
• The Respondent will be placed on probation for a period of twenty-four
months and he is to pay a fine of$2,000 to Collier County within six months.
• If the fine is not paid within six months, the Respondent's license will be
revoked.
Mr. Ossorio explained the original permit was issued in Mr. Torres' name and was
probably in the"Inactive" Status. If he reactivated it, he would be responsible for
paying all required fees, including inspection fees.
Patrick White moved to accept the County's recommendation as outlined above by
Michael Ossorio, Contractors'Licensing Office, in Case#2020-01. Richard Joslin
offered a Second in support of the motion.
Discussion:
• Michael Boyd: Is this the Respondent's first violation?
• Michael Ossorio: There are some non-compliance cases that the Board
might see in the future.
• Vice Chairman Nolton: So, there may be some additional cases that are part
of the father-in-law ...?
• Michael Ossorio: Could be. But the Respondent has thirty days to either re-
active the R-O-W Permit or pay $2,000 to the homeowner or his license will
be revoked.
• Vice Chairman Nolton: So,this is his first time before this Board, then?
• Michael Ossorio: Yes.
• Patrick White: Were Citations previously issued to the Respondent?
• Michael Ossorio: None that I am aware of.
• Terry Jerulle: Mr. Torres,how long have you been in business?
• Roberto Torres: In May, I will hit five years.
• Terry Jerulle: Mr. Tones, do you understand what we're doing?
• Roberto Torres: Yes, I do.
• Terry Jerulle: And will you make full restitution?
• Roberto Torres: I will try to do what I can do.
• Terry Jerulle: That's not the answer I am looking for—it should be,
`absolutely, I will do whatever it takes.' Right? That's the answer I am
looking for.
• Vice Chairman Nolton: Are you still actively in business right now?
• Roberto Torres: For now, I am, yes.
• Vice Chairman Nolton: Do you have contracts—ongoing contracts?
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January 15,2020
• Roberto Torres: I haven't taken any more business in—I have two that I'm
closing—not here in Collier, but up in Fort Myers. I'm not taking on any
more business because I don't know if I'm going to survive this or not.
• Patrick White: Well, if you don't take in business,then you won't.
• Terry Jerulle: If you don't make your customers happy, you won't survive.
• Richard Joslin: There's a way out—just work at it.
• Roberto Torres: A lot of it is financial, and I don't have the finances to fix
everyone. I've fixed the few that I could,you know,with left-over material to
help some people. But,there's a list of thirty-something people ... you're
talking about thousands and thousands of dollars, and I don't have it. I made
insurance claims on two of them, but the insurance company said if I keep
making claims,they will drop me. There's not much more that I can do.
• Richard Joslin: Did you take deposits?
• Roberto Torres: Yes, sir.
• Richard Joslin: Where is the money now?
• Roberto Torres: It went to Columbia.
• Vice Chairman Nolton: So,you have contact numbers,you've gotten
deposits from the owners, the clients, and you paid for the materials?
• Roberto Torres: Yes, I paid for some. Luckily, as we were doing the
separate contracts—you know, there are hiccups here, but most of them show
the money was sent directly to him for materials, so it kind of separates me
from that ... but they're closing the store ... or they closed it, so they have the
no one else to go after but me. I mean, my name is still going to be on half the
paperwork.
Chairman Lantz: Any further discussion?
Chairman Lantz called for a vote on the motion. Carried unanimously, 7—0.
Chairman Lantz stated:
• This cause came for a Public Hearing before the Contractors' Licensing Board
on January 15, 2020 for consideration of the Administrative Complaint filed
against Roberto M. Torres, d/b/a Premier Paver, Inc.
• Service of the complaint was made by certified mail,personal delivery, or
publication in accordance with Collier County Ordinance#90-105, as
amended.
• The Board having heard testimony under oath, received evidence, and heard
arguments respective to all pertinent matters hereupon issues its Findings of
Facts, Conclusions of Law and Orders of the Board as follows:
Conclusions of Law,Findings of Fact,and Orders of the Board:
• Roberto M. Tones, d/b/a Premier Paver, Inc., is the holder of record of a
Collier County Certificate of Competency, License Number
LCC20160000367.
• The Collier County Board of County Commissioners is the Petitioner in
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January 15,2020
this matter and Roberto M. Torres is the Respondent.
• Roberto M. Tones was present at the January 15, 2020 Public Hearing. He
was not represented by counsel.
• All notices required by Collier County Ordinance#90-105, as amended, have
been properly issued or personally delivered.
• The Respondent acted in a matter that is in violation of Collier County
Ordinance and is the one who committed the act.
• The allegations set forth in the Administrative Complaint as to Collier County
Ordinance#90-105, as amended, Section 22-201(1) are:
o Count I-A: Roberto M. Tones knowingly violated Collier County
Code by obtaining a building permit on behalf of an unlicensed
company that contracted and obtained payment to do without a license.
o Count I-B: Roberto M. Tones is the holder of a license as a Paving
Blocks Contractor. Roberto M. Tones is in violation of Collier
County Municode Section 22-201(1) by knowingly combining or
conspiring with an unlicensed contractor by allowing his Certificate of
Competency to be used by an unlicensed contractor competency with
the intent to evade the provisions of this Ordinance.
• The allegation was supported by the evidence presented at the Hearing.
Conclusions of Law:
• The allegation set forth in the Administrative Complaint as to Count I is
approved, adopted, and incorporated herein, to wit:
o The Respondent violated Ordinance#95-105, as amended, Section 22-
201(1) in the performance of his contracting business in Collier County
by acting in violation of the Section set out in the Administrative
Complaint with particularity.
Orders of the Board:
• Based upon the foregoing Findings of Fact and Conclusions of Law, and
pursuant to the authority granted in Florida Statutes, Chapter 489, and Collier
County Ordinance#90-105, as amended,by a vote of seven (7) in favor and
zero (0) opposed, a majority vote of the Board members present, the related
Sanctions and the following Order are hereby imposed upon the holder of
Certificate of Competency#LCC20160000367:
o the Respondent will do whatever is necessary to re-active Right-of-
Way Permit No. PRROWW2019062751101 within thirty days.
o If he is unable to complete the work, the Respondent is to make full
restitution to the homeowner in the amount of$2,000, to be paid
within thirty days.
o The Respondent will be placed on probation for a period of twenty-
four months and he is to pay a fine of$2,000 to Collier County within
six months.
o If the fine is not paid within six months, the Respondent's license will
be revoked.
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January 15,2020
Chairman Lantz: This proceeding is now concluded.
Michael Ossorio: Mr. Chairman,just to be clear—the Respondent is to pay the full
amount of restitution ($2,000)to the homeowner OR re-activate the permit,perform
the work and obtain inspections within thirty days to close-out the permit.
Chairman Lantz: I would just like to thank the County for bringing this case to the
Board. It's the type of case I have been asking for—a licensed contractor pulling a
permit for an unlicensed contractor. This is the first one I've seen since I became a
member of the Board. I'm not saying it's the first time that someone has gotten into
trouble for it ... it's just the first case that I've seen.
Michael Ossorio: We do see a number of these. There is an affected party—the
homeowner, so do we try to mitigate it between the contractor and the homeowner to
solve the problem. We do a lot of mitigation to make it right for the homeowner.
With this case, unfortunately, the contractor was not able to and this is why he is here
for the first time. We'll go forward from here.
Richard Joslin: I just wanted to thank Michael for all he's done for the past two
meetings and I know in the past you have helped this Board a lot. I look forward to
having you here next month.
Patrick White: I'd like to express my appreciation to Mr. Lantz for his service to the
Board and the County over the past year. Job well done!
NEXT MEETING DATE: WEDNESDAY,FEBRUARY 19,2020
BCC Chambers, 3rd Floor—Administrative Building"F,
Government Complex, 3301 E. Tamiami Trail,Naples,FL
There being no further business for the good of the County,the meeting was adjourned at
3:30 PM by order of the Chairman.
COLLIER COUNTY CONTRACTORS'
LICENSING BOARD
-KILL ' -. Z, him n
The Minutes were approved by the Chairman or Vice Chairman of the Contractors' Licensing Board
on f tc- /q , o o ,2020, (Check one) "as submitted"[C- ] or "as amended" [ ]
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