Loading...
CLB Minutes 10/21/2009 R October 21,2009 TRANSCRIPT OF THE MEETING OF THE CONTRACTORS' LICENSING BOARD OF COLLIER COUNTY Naples, Florida October 21, 2009 LET IT BE REMEMBERED, that the Contractor Licensing Board, in and for the County of Collier, having conducted business herein, met on this date at 9:00 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Richard Joslin Michael Boyd Eric Guite' Lee Horn Terry J erulle Kyle Lantz Thomas Lykos Patrick White ALSO PRESENT: Patrick Neale, Attorney for the Board Robert Zachary, Assistant County Attorney Michael Ossorio, Contractor Licensing Supervisor Page 1 AGENDA COLLIER COUNTY CONTRACTORS' LICENSING BOARD DATE: WEDNESDAY - OCTOBER 21,2009 TIME: 9:00 A.M. W. HARMON TURNER BUILDING (ADMINISTRATION BUILDING) COURTHOUSE COMPLEX ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THAT TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. I. ROLL CALL II. ADDITIONS OR DELETIONS: III. APPROVAL OF AGENDA: IV. APPROVAL OF MINUTES: DATE: AUGUST 19, 2009 & SEPTEMBER 17, 2009 V. DISCUSSION: (A) End of the Month Report - August & September 2009 VI. NEW BUSINESS: (A) Douglas E. Synowsky - Contesting Citation (B) Michael R. Bain - Review of Credit Report (C) Michael D. Green - Contesting Citation (D) Roger P. Boucher - Contesting Citation (E) Charles S. Miller - Contesting Citations (#'s 4970, 4971 & 4972) VII. OLD BUSINESS: (A) Noel R. Sinclair - Review of Credit Report VIII. PUBLIC HEARINGS: (A) 2009-11 Patrick H. Atchison D/B/A: Patrick H. Atchison Carpentry, Inc. (B) 2009-12 Alva Lee Porter D/B/A: AI Porter Commercial Painting, Inc. (C) 2009-13 Neida L. White D/B/A: Dave's Sprinkler Repair, Inc. IX. REPORTS: X. NEXT MEETING DATE: WEDNESDAY DECEMBER 16, 2009 COLLIER COUNTY DEVELOPMENT SERVICES CENTER 2800 N. HORSESHOE DRIVE, ROOM(S) 609 - 610 NAPLES, FL. 34104 October 21, 2009 CHAIRMAN JOSLIN: I'd like to call to order the October 21st Contractor Licensing Board hearing. Any person who decides to appeal a decision of this board will need a record of the proceedings thereto and, therefore, may need to ensure that a verbatim record of the proceedings is made, which record includes that testimony and evidence upon which the appeal is to be based. Just for your knowledge, there is a court reporter here reporting all the minutes that are going on right now. I'd like to open the meeting with starting with roll call starting to my right. MR. JERULLE: Terry Jerulle. MR. LANTZ: Kyle Lantz. MR. L YKOS: Tom Lykos. MR. JOSLIN: Richard Joslin. MR. HORN: Lee Horn. MR. WHITE: Patrick White. MR. BOYD: Michael Boyd. CHAIRMAN JOSLIN: Staff, is there any additions or deletions to the agenda? MR. JACKSON: Good morning. Ian Jackson, Contractor Licensing for Collier County. Staff has an addition under new business. A Todd Grup, G-R-U-P. And Mr. Grup is potentially going to be here to reinstate a revoked license. That's the only change. CHAIRMAN JOSLIN: What type of license is it; do you know? MR. JACKSON: Mr. Grup had a cabinet installation license that was revoked. CHAIRMAN JOSLIN: Okay, no any other additions or deletions, I'll have a motion to approve the agenda as amended. MR. L YKOS: So moved, Lykos. Page 2 October 21, 2009 MR. LANTZ: Second, Lantz. CHAIRMAN JOSLIN: We have motion and a second. All those in favor, signify by saying aye. MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) CHAIRMAN JOSLIN: Motion carries. I need a motion to approve the agenda, if everyone has read -- I'm sorry, a motion to approve the minutes from the September 17th meeting. MR. WHITE: Motion to approve with one potential correction, Mr. Chairman. CHAIRMAN JOSLIN: Okay. MR. WHITE: Page 41, I note here, the top it says Mr. Mudd. I think that more accurately should state Mr. Mullee as the name. But other than that, it looked fine to me. CHAIRMAN JOSLIN: Oh, you're right. Okay. That's all the changes, we have a motion, I need a second. MR. L YKOS: Second, Lykos. CHAIRMAN JOSLIN: Motion and a second. All in favor, signify by saying aye. MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. Page 3 October 21, 2009 MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) CHAIRMAN JOSLIN: Motion carries. Under discussion, we have an end of the month report for August and September through 2009. Members of the board, have you gone through this and took a look at what our licensing investigators are producing? Mr. Ossorio, would you like to interject on this? MR. OSSORIO: Yes, Mr. Chairman. Michael Ossorio for the record, Contractor Licensing Supervisor. This is the end of the month. This is actually the end of the year. And we did the calculations and we're up about 12 percent from last year. CHAIRMAN JOSLIN: Up? MR. OSSORIO: Up 12 percent from last year to this year. So we're up in citations, up in fines, up in renewals, up in money returned. I think we returned over $195,000 back to consumers in a 12-month period, so we're doing quite well. CHAIRMAN JOSLIN: Has there been any word on the items that we discussed at the last meeting regarding -- MR.OSSORIO: There's going to be a -- well, for licensing purposes we're all completed. We're buttoned up, we're ready to go in front of the Board of County Commissioners and we are on the agenda for the November 10th meeting. I know that we might be on the consent agenda, I'm not sure, but I'm sure it's going to be pulled. I'm going to shoot you an e-mail letting you know that you should be there, that it might be time certain so you don't have to stay there all day, and so you can speak on behalf of the licensing board when the time comes to look at our fees. But we're ready to go. I think it's done, sealed and ready to go to Page 4 October 21,2009 the Board of County Commissioners the 10th of November. CHAIRMAN JOSLIN: Okay. I know I went to the DSAC meeting when they had it and they pretty much didn't have anything too derogatory to say about licensing. Everything seemed to fly right through there. MR.OSSORIO: Yeah, there was no problem. And I know the DSAC also looked at the Collier County Building Department fees in general, and they're going through one more DSAC sub-committee, and they'll be in front of the board too as well on the 10th. So that's on track as well. CHAIRMAN JOSLIN: Outstanding. Okay. Anyone have any questions or discussion on this? (No response.) CHAIRMAN JOSLIN: Okay, we'll move on. Under new business, is there a Douglas Synowsky here? MR. SYNOWSKY: Yes. CHAIRMAN JOSLIN: You're present. Would you please come up to the podium here and be sworn in. (Mr. Ganguli and Mr. Synowsky were duly sworn.) CHAIRMAN JOSLIN: Mr. Synowsky, I've got in front of me a series of three violations that were given to you. MR. SYNOWSKY: Yes. CHAIRMAN JOSLIN: One for unlicensed floor advertising, one for unlicensed roofing advertising, and one for unlicensed painting advertising. MR. SYNOWSKY: Yes. CHAIRMAN JOSLIN: Each for -- two of them are for $300 each, and one of them is for $500. MR. OSSORIO: Mr. Chairman, just for clarity, this is -- this information is from the respondent. I'd like to go ahead and get evidence into the packet from our office. CHAIRMAN JOSLIN: All right, sir. Page 5 October 21,2009 MR. OSSORIO: So you can review it at the same time. CHAIRMAN JOSLIN: Okay. I'll need a motion to enter this as Exhibit A into Douglas Synowsky's packet, please. MR. L YKOS: So moved, Lykos. MR. JERULLE: Second, Jerulle. CHAIRMAN JOSLIN: We have A motion and a second. All in favor? MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) CHAIRMAN JOSLIN: Motion carries. We'll take just a second here to kind of review this a little bit. Okay, Mr. Synowsky, would you like to kind of give me an overview as far as what happened and why these tickets were issued to you? MR. SYNOWSKY: Well, I had a -- I have a handyman and detailing business. I've got a license for handyman and detailing cars and boats and all that. This company called me up on the phone about advertising, and I told them that I want to advertise for detailing and pressure washing and cleaning, you know, mostly. Well, they came up and sent these fliers out without my permission. I never got a sample of anything in the mail of whatever this flier is. They spelled my name wrong. Anything on this card I'm not contracted for, I have no licenses for. I talked to them on June 1 st and canceled everything, because I Page 6 _.-.~.,,,_ .-.l...,. _ _1lII t... . 10. October 21, 2009 got one in the mail. And I called them right up and told them, I says, I'm not licensed. I mean, how can you mail something out when I'm not licensed for it? Then on June 24th, code enforcement called me up and told me to come in the office. So I went in the office on the 24th of June, and I got these citations. Which I told the code enforcement, you know, everything that was going on. Still today they are mailing these fliers out, and I can't do nothing about it. I got bills stating that I owe them $661 on 10/20 of this month. Every time I get these cards I go to code enforcement and tell them that, you know, they're still mailing these out. CHAIRMAN JOSLIN: You said code enforcement, you mean contractor licensing? MR. SYNOWSKY: Or contractor licensing, yes. I'm sorry. CHAIRMAN JOSLIN: Just to clarify that. MR. SYNOWSKY: Yeah, I go there every time I get these cards in the mail and tell them, you know, I can't -- I don't have no control of it. You know, I canceled it on the 1st of June -- on the 1st of June I called them up and canceled this. And I don't know what else to do. I mean, I don't have $1,100 to pay fines. I'm not working. I'm trying to do the best I can. You know, like I said, I go to him and -- every time they mail these out. I got six of them already. These ones I haven't even opened yet, but they're dated when I got them in the mail. CHAIRMAN JOSLIN: Where are they producing these at? I mean, is this a company -- MR. SYNOWSKY: This is out of Texas. This is out of Texas. I can show you the bill. CHAIRMAN JOSLIN: Is this advertising going in any other publication, like a phone book or-- Page 7 October 21, 2009 MR. SYNOWSKY: Not that I know of. CHAIRMAN JOSLIN: -- other than just fliers that you're getting in the mail. MR. SYNOWSKY: No, this is just fliers that they send out in the mail. CHAIRMAN JOSLIN: Are they sending them to homeowners-- MR. SYNOWSKY: Yes. CHAIRMAN JOSLIN: -- on the street also? MR. SYNOWSKY: They send them to homeowners in Naples. CHAIRMAN JOSLIN: And this all came from a phone call? MR. SYNOWSKY: Yes. CHAIRMAN JOSLIN: And you didn't authorize this? MR. SYNOWSKY: I authorized them to do some advertising, but I didn't authorize them to send this card out. They were supposed to send me a sample of what they're going to send out and all that. CHAIRMAN JOSLIN: When they asked you about your qualifications as far as what you can do as a handyman, did you give them information that you can do all these things as a handyman? MR. SYNOWSKY: No, no, not these. Not what's on this card, no. CHAIRMAN JOSLIN: Okay, Mr. Ganguli, would you-- MR.OSSORIO: Would you like to have the board take a look at it? Do you want them to pass the card around? MR. SYNOWSKY: Sure. CHAIRMAN JOSLIN: Okay, I'd like to do that, at least look at it. If it's not in the packet. I didn't see anything in the packet similar to it. I have it but it's plain. MR. SYNOWSKY: Do you want to see their bill too, or -- CHAIRMAN JOSLIN: Yes, please. MR. SYNOWSKY: I've got three of them, and they're all from-- this is the last one. CHAIRMAN JOSLIN: Thank you. Page 8 October 21,2009 Do you want to submit these into evidence also? MR. NEALE: Yeah. CHAIRMAN JOSLIN: Okay, I need a motion to submit the postcard and the three pieces of paper here from building. MR. SYNOWSKY: They won't accept none of my phone calls. I call -- CHAIRMAN JOSLIN: Okay, one second. Motion to approve these, please. MR. L YKOS: So moved, Lykos. MR. LANTZ: Second, Lantz. CHAIRMAN JOSLIN: These will be Exhibit B, or number 2. Exhibit A or B. Motion and a second. All in favor? MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) CHAIRMAN JOSLIN: So moved. MR. SYNOWSKY: Would you like to see the cancellation paper? CHAIRMAN JOSLIN: No, we have a copy of that. MR. SYNOWSKY: Okay. MR. JERULLE: Can I ask when you placed the ad? MR. SYNOWSKY: They called me up in April, in the middle of April. And I didn't find nothing out until June 1 st when I called them back and canceled it. And when I talked to them, I faxed them the tickets that I got and Page 9 October 21, 2009 after that I never heard from them again. CHAIRMAN JOSLIN: Wow. MR. OSSORIO: Mr. Chairman, just to clarify real quick, I know Rob Ganguli might speak on this behalf, but the reason why there's a $500 ticket out there for painting is because this gentleman was cited before for painting, so he paid his first fine for 300. MR. WHITE: Mr. Chairman, may I inquire? CHAIRMAN JOSLIN: Sure. MR. WHITE: When was that specifically? MR. SYNOWSKY: That was in March. MR. WHITE: Of this year? MR. SYNOWSKY: Yes. MR. GANGULI: The first citation was issued April 9th. CHAIRMAN JOSLIN: And this was for painting? MR. GANGULI: I caught him on ajob site painting without being sufficiently licensed. MR. WHITE: Was the nature of that citation unlicensed painting advertising or unlicensed painting? MR. GANGULI: Unlicensed painting contracting. I caught him on a job site performing the work. MR. WHITE: Well, I note from our packet, both defense A and from county's prosecution A, that the painting Citation 4925 is for unlicensed painting advertising, which is a little different in my mind than actually painting. MR. GANGULI: On the citation, Mr. White, under description of violation, it's checked off letter F, which specifies engaged in the business or act in the capacity of a contractor or advertise self or business organization as available to engage in the business or act in a capacity of a contractor without being duly registered or certified. MR. WHITE: And does it not also specifically underline the words advertise self? MR. GANGULI: Advertise self under F, as well as act in the Page 10 October 21, 2009 capacity of, under F. MR. WHITE: Well, I understand that those words are there, but I'm trying to derive the meaning from this entire citation. And when someone looks to specify something that bolsters what is otherwise hindered by hand and specifically states unlicensed painting advertising and above says advertising painting and in parenthesis second defense, I tend to come to the conclusion that it's because he impermissibly advertised that he paints when he only has a handyman licensed. Now, I understand that there's factual evidence we are presented at hearing today that would seek to find a violation for actually painting, but I don't know that you've cited him for that violation. So I'm just trying to point out that if we're going to bring people before this board and they're going to look to defend themselves, I'm going to look very particularly at each of the things that the staff has done and that the respondent has done to make sure that we're doing it by the numbers. MR. GANGULI: Mr. White, in this case I did it by the letters, which is F, which includes both advertising and acting in the capacity. MR. WHITE: You've heard my analysis of it, and I do not agree with you. CHAIRMAN JOSLIN: Am I understanding this correctly, Mr. Ganguli, that the April 9th citation was before these other three citations -- MR. GANGULI: Yes, sir. CHAIRMAN JOSLIN: -- occurred? Okay. So in a bulk what you've done -- Mr. White, I think what he's done is on his advertising portion of it, because of the fact that he was caught with an advertisement saying that he can do painting, he can do advertising or roofing and he advertised to do flooring -- or I'm sorry, unlicensed flooring advertising, those three items were bulked together on three separate violations. But the actual April 9th Page 11 October 21, 2009 violation that he is citing (sic) for contracting painting was a different violation that he's already been cited for. MR. WHITE: I agree with you, Mr. Chairman, it was a different violation. It was the actual act of painting as opposed to advertising painting. CHAIRMAN JOSLIN: Right. MR. WHITE: And for those reasons, I also question whether it should be an enhanced penalty of 500 for this particular Citation 4925. So I don't mean to be too lawyerly about it, but the fact of the matter is that, you know, they have presented a case and I'm just looking at it as objectively as I do all the others. And from my point of view I'm not convinced yet that he had the intent to advertise and impermissibly as to the other two citations warrant the citations being upheld. That's just my view of it today, sir. CHAIRMAN JOSLIN: Okay. Kind of the way that I look at it at the moment is that first of all, if he was cited in April for painting, number one, and then he gets cited again in June for advertising painting would lead me to believe that somewhere along the lines the advertising company had knowledge and maybe had knowledge that he told them I do roofing, I do flooring, I can do anything as a handyman and this is what they put in his advertising. So it's making me think that he is guilty of painting and yes, the violation probably did occur. MR. WHITE: I understand. I'm just going by the evidence that's before me and not my own conjecture. CHAIRMAN JOSLIN: That's my opinion. MR. WHITE: I understand. CHAIRMAN JOSLIN: Go ahead, Mr. Lykos. MR. L YKOS: Mr. Chairman? Question for Mr. Ganguli. The first citation on April 9th was paid; is that correct? MR. GANGULI: Yes, sir. Page 12 October 21, 2009 MR. L YKOS: So the citation on April 9th for unlicensed paint contracting was paid. MR. GANGULI: Yes, sir. MR. L YKOS: Okay. At that time the issues of advertising weren't even -- the advertising was not an issue at the time, because you just caught him on ajob site painting. MR. GANGULI: Yes, sir. MR. L YKOS: Subsequent to that, the issue of advertising painting, roofing, flooring, all those other things came up. MR. GANGULI: Through the postcard that was turned in to our office from another licensed contractor. MR. L YKOS: I understand. So the issues really are separate. MR. GANGULI: Very much so. MR. L YKOS: The reason that the second citation for painting is higher is because your position is it was the second violation. MR. GANGULI: My position is based on what's described in the citation, Mr. Lykos, under F, which includes acting in the capacity of a contractor, as well as advertising. So my decision was based entirely on what was available to me to select on the citation. MR. L YKOS: I understand. MR. OSSORIO: Or means or. MR. L YKOS: I understand. MR.OSSORIO: Under the state statute there's no difference from someone advertising or doing the work, it's still unlicensed. MR. L YKOS: I completely understand. My next comment is that as a contractor, and I don't remember how many of us for sure there are here, but as a contractor, we're responsible for everything that we do and everything that has our name on it: Advertising, our employees, our bookkeepers, our accountants. Page 13 October 21, 2009 I have an accountant who does my tax return, I'm still responsible to make sure that tax return is correct. You have a responsibility, Mr. Synowsky, for the advertising that has your name on it. It's easy for anybody to come back and say now that I've gotten in trouble, well, that wasn't what I authorized. So anybody can make that claim. Had you not gotten caught, how proactive would you have been to correct this problem? We don't know that. It's a rhetorical question, it wasn't meant for you to answer. MR. SYNOWSKY: Well, like I said-- MR. L YKOS: As a contractor you are responsible for your advertising, for your employees, should you have them, you're responsible for everything having to do with your business. And it might be that this advertising company overstepped what your verbal agreement was with them, but you're still responsible, because it's got your name on it. CHAIRMAN JOSLIN: Someone gave them that information or they wouldn't have put it on a postcard, made out that many of them and keep sending them to you. Someone gave them some kind of an insight that said that this detailing handyman person can do all these items. I have a hard time believing that they're going to say why didn't they just put detail and handyman and leave it at that. Why did they list all the items, unless someone gave them opportunity to be able to put those on there. So Mr. Lykos, I totally agree with you. MR. SYNOWSKY: Well, like I said, I canceled it on the 1st of June. CHAIRMAN JOSLIN: Well, whether you canceled it or not I think at this point is immaterial. The fact is that you got caught in April painting, and now you want us to -- MR. JERULLE: And painting is listed as one of the items. Page 14 October 21, 2009 CHAIRMAN JOSLIN: And painting is one of the items on this card. That leads me to believe that someone told these people that you paint. And unfortunately they put it on your postcard, which means that you're advertising painting. I need a motion, gentlemen. MR. WHITE: Point of inquiry, Mr. Chairman? CHAIRMAN JOSLIN: Yes. MR. WHITE: The facts in the record as presented to us by the respondent are that he in fact not only made the claim but that he actually has a letter in here from the people who indicate that he had not received the proof of what it says. So the evidence we have, as opposed to what we think he might have done or believe he could have done, is that they did not show him a proof. He had no idea. He is essentially being told that he is responsible for something he had no awareness of until the staff brought it to his attention. So I don't know if that's essentially fair or not. I tend to believe that someone who has not learned their lesson the first time and was out painting and is then in a position where subsequent to that three citations are issued probably ought to be getting the message. But I can't believe that the guy actually allowed a card to go out that doesn't have his name spelled properly. So what I'd like to inquire from the staff about is, you've been very diligent in attempting to prove your case. Did you in fact contact anyone from Idearc about the authenticity of this letter that was provided? Which apparently you had beforehand, because it was in our packets, unlike the staffs -- county's materials, which we received today. MR. GANGULI: Mr. White, I did not contact them. MR. WHITE: So you do not have an opinion as to the authenticity or the credibility of this document. MR. GANGULI: No. And if I did, I don't know ifMr. Neale Page 15 October 21, 2009 would allow me to give it. MR. WHITE: Certainly if you did some investigation I imagine he would -- MR. GANGULI: It didn't include -- MR. WHITE: -- as opposed to your opinion. MR. GANGULI: It did not include calling the postcard company. MR. WHITE: Okay. So my point simply is, gentlemen, that we're here to weigh evidence. And, you know, I understand there's going to be a difference of opinion here. I'm just articulating to you so that you know and so that the staff knows and hopefully the respondent is understanding this, that we're looking to properly weigh what it is that's put before us, even if we receive it in here. Thank you. MR. NEALE: I'd just like to bring to the board's attention the relevant section of Florida Statutes on this. It's 489.127.5.D.3, which states that if the person issued the citation or his or her designated representative shows that the citation is invalid or that the violation has been corrected prior to appearing before the enforcement or licensing board or designated special magistrate, the enforcement or licensing board or designated special magistrate may dismiss the citation, unless the violation's irreparable or irreversible. So that's the standard on which the board operates on this. MR. WHITE: Could I -- CHAIRMAN JOSLIN: Let me ask you a question. One second, Mr. White. Mr. Neale, is it possible, considering the fact of Mr. White's comments and that in all honesty I don't want to penalize someone over something that they had no control over. Is it possible that we could table this particular case and give him a 30-day period of time for staff to be able to contact these people and find out the background behind how they got the information and who authorized it and what Page 16 October 21, 2009 went on with this? That way if it is valid and if it is something that is determined, he can come back in 30 days and we'll just leave the citation on the floor at the moment. MR. NEALE: I mean, it's the pleasure of the county that they can continue the matter until the next scheduled hearing, if they so wish. And subj ect to further review. CHAIRMAN JOSLIN: I mean, that's just a thought in my mind. I don't know how the rest of the board members feel about it, but -- MR. JERULLE: No, you know, sometimes things are what they are. And if you look at the timeline, sometime in April he places an ad. Sometime in April he gets caught for doing something that he's not supposed to be doing. There's no question about that. MR. WHITE: There is a question about that, because-- MR. JERULLE: In May -- I'm trying to make my point, excuse me. In May the packet, or postcard is mailed out. And in June he tries -- he sees the postcard and has lists of items he's not licensed for, knows that he's going to be fined and tries to cancel it. In my mind I think it's fairly simple. Sometimes things are what they are. CHAIRMAN JOSLIN: I tend to agree with you. I'm just trying to satisfy both sides of the coin here. MR. WHITE: There's a couple of problems with what the gentleman has said. One is that there's -- even in your own statement, the inconsistency that he was cited in April and the postcards went out in May. What the evidence says in the form of the letter he received from the people who created the postcards was that he canceled it on June 1st, which is prior to the June 24th citations. So I'm not sure how I can agree with you that what things are are what they are. I think there's something different. Page 17 "~.."____",.._.",....._"",....",.",..,._.",,..~._,~." .....___.'".."...""...__"...__,.~~"~,_._.,~u",...~.~___....."'.,, October 21, 2009 And I understand that we have a responsibility here, and it is one that flows in my mind both ways and is whether I'm a consumer advocate or a contractor, I'm going to make my decisions and cast my vote in a way that is based upon what the evidence shows, not what I think might have happened. So that's my only point, gentlemen. MR. JERULLE: And I'll make my point again. He is advertised for painting and he was caught painting. MR. WHITE: Which time? CHAIRMAN JOSLIN: In April. That's when this first citation came out, in April. MR. WHITE: No, I believe he was cited for painting, not for advertising painting. Is that what the testimony was, Mr. Ganguli? MR. GANGULI: Yes, sir, the April 9th violation was for engaging in the act of. MR. WHITE: Thank you. MR. OSSORIO: Okay, for the -- just to clarify, the respondent's got to realize that we're going to be calling Mr. Boston and we're going to get a sworn affidavit by telephone, and a lot of questions are going to be asked of how he got contacted, who contacted who, what information did you want on the postcard. So do you want us to call that company to verify that what was said or-- , MR. SYNOWSKY: That's fine. MR.OSSORIO: Which I have no problem if you want to go ahead and table this till the next meeting, we can do so. I think we're going to be right back in here with a sworn affidavit corroborating the county's position. MR. WHITE: If that's the case-- CHAIRMAN JOSLIN: I would then say, Michael, I think you're correct, I think the board then needs to hear the case and needs to Page 18 October 21, 2009 make a decision today. And should it come out to where the citations are valid, that then if Mr. Synowsky chooses to, he can get on the horn and he can call these people. And if they choose to give information that proves otherwise, then he can always come and appeal the case -- or appeal the decision, excuse me. MR. WHITE: Mr. Chairman, one of the points of what Mr. Neale said that informs me about what we can do here today is we have the opportunity to dismiss this because he has come into compliance -- THE COURT REPORTER: Mr. White, excuse me, could you come closer to the mic. MR. WHITE: I actually can hear myself. He actually has come into compliance based upon the only evidence that's before us on June 1st. He made the effort to cancel the contract for the advertising that are what the three citations say he has done impermissibly. So ifhe has corrected it, we have the capacity today to dismiss these three citations. I'm not saying we should, I'm just trying to recognize what the law allows us to do and whether the policy here is to encourage people to abate violations, or as some of the other individuals perhaps later in the agenda, to continue an activity that's inappropriate. MR. NEALE: I'd like to bring something to the attention of the board. CHAIRMAN JOSLIN: Mr. Neale? MR. NEALE: Is that the only appeal route on a final administrative order of this board for citations of this type is to circuit court, not back to this board. There is no provision for a rehearing, there's no provision for any re-review. If you find that he's in violation here, and he wishes to appeal, his only appeal is to circuit court. MR. WHITE: That's by cert. or -- MR. NEALE: It's cert., it's not an appeal de novo. Page 19 October 21, 2009 MR. WHITE: Okay, got it. CHAIRMAN JOSLIN: Okay. Thank you for that clarification for sure. Go ahead, Kyle. MR. LANTZ: I just have a comment. First of all, I like to see people getting fined for this type of offense, because I see it every day; I open my mail and I see it. However, as I'm reading his invoices, I see that he's being charged for advertising for June and July, whereas they already gave a letter that he canceled his advertising as of June 1 st. Which leads me to believe that the advertising company is not really one of the best companies out there. And my guess is when you call them, you know, there's maybe 100 people there and nobody knows what they're talking about. It's just in the database. And so that leads me to believe that they're kind of screwed up and makes me believe him a little bit more. CHAIRMAN JOSLIN: You know, I'm kind of seesawing back and forth myself because of the same reasons. I mean, there's a lot of things that says to me that someone that gets caught painting and then all of a sudden the following month he's got advertising saying he can paint, as well as other things, I'm just wondering if we have a handyman here that is advertising and going out and trying to do all the different trades, because he's now -- and then he figured he got caught and -- MR. NEALE: I'd like to caution the board, though, and bring forth what Mr. White says. The only thing you can decide on is on the evidence presented here, not conjecture, not what you think might have happened, but any evidence presented in this hearing. CHAIRMAN JOSLIN : Well, this is all just hearsay . We're allowed to hear hearsay, right? MR. NEALE: But you cannot make a decision based on hearsay. CHAIRMAN JOSLIN: No, exactly. Page 20 October 21, 2009 MR. NEALE: And so conjecture, et cetera is not something you can use to make your decision, it has to be based on evidence presented. MR.OSSORIO: Mr. Neale, would you say that piece of paper that Mr. White keeps referring to as evidence, would that evidence be hearsay if we cannot cross-examine Mr. Boston? MR. NEALE: No. MR. OSSORIO: No, okay. MR. NEALE: It's a written document presented from that party, so I mean -- MR. WHITE: It's essentially as valid as the evidence we took in from the county at the beginning of this particular matter. MR. OSSORIO: That's not our document, that's his document. MR. WHITE: I'm talking about the county's packet which we received at the beginning of the hearing. There were no statements that any of this was sworn or otherwise given any additional degree of competent or substantial evidence. They both stand kind of equally on their face. CHAIRMAN JOSLIN: On that contract, someone has the contract, is there anywhere on there where it says any type of a cancellation term or anything in writing that says he can cancel this at any time, or is it like a yearly contract he signed into or -- MR. LANTZ: It's just bills that we have. MR. HORN: Actually, I have a question. CHAIRMAN JOSLIN: Sure. MR. HORN: Mr. Synowsky, just looking at the letter you received from the advertising company, did you call them on the day you received your violations? MR. SYNOWSKY: No. MR. HORN: You didn't call them that day? MR. SYNOWSKY: No. MR. HORN: It's kind of curious because the date of the Page 21 October 21,2009 violations, June 24th, is the exact date that that letter is sent out and dated by the advertising company on the dot. Just seems like a heck of a coincidence otherwise. MR. SYNOWSKY: No, that's when I received it. Because I went to -- I went over to the county and they wanted proof, so I called them back up and had them fax that to me. MR. HORN: So you did call them on June 24th. MR. SYNOWSKY: Yes. MR. HORN: Okay, that's -- MR. SYNOWSKY: I called them back up and they faxed me this paperwork over when I canceled it. MR. HORN: Just curious. Thank you. CHAIRMAN JOSLIN: When did you receive the first postcard? MR. SYNOWSKY: It was in June. CHAIRMAN JOSLIN: In June. MR. SYNOWSKY: And then I got the next one July 10th. And I got two of them on July 10th. Then I got the next one, not even opened, on July 13th. MR. WHITE: Can I ask more questions? CHAIRMAN JOSLIN: -- again? MR. WHITE: Because I'm confused by the answers he gave to your question. MR. HORN : Well, I got a little bit of a difference, but that's okay. MR. WHITE: The document that's dated June 24th from Idearc says that you canceled the contract on June 1 st. MR. SYNOWSKY: Yes. MR. WHITE: Now, I'm assuming you spoke to them either on June 1 st or beforehand in order to cancel it. MR. SYNOWSKY: I spoke to them on June 1st. MR. WHITE: Okay. Did you also speak to them on the 24th saYIng -- Page 22 October 21, 2009 MR. SYNOWSKY: Yes. MR. WHITE: -- give me a letter? MR. SYNOWSKY: Yes. MR. WHITE: Okay, there we go. That-- MR. SYNOWSKY: When I got my fines, I called them back up and faxed them these fines that I had. They wanted proof that I was being fined for the cards that they were mailing out. They wanted proof of that. MR. WHITE: And-- CHAIRMAN JOSLIN: Did you do that? MR. SYNOWSKY: Yes, I did. CHAIRMAN JOSLIN: And have you had a response from them since? MR. SYNOWSKY: No, they won't return my phone calls. And they're still mailing them out today. That's what I'm saying, I don't -- MR. HORN: Question just out of curiosity, since you said that. Why would they need to see the violations to send a letter out saying that you had already canceled it through -- MR. SYNOWSKY: No, they needed to see that I got violated, that I got a fine for their advertising. Because I'm saying, who's going to pay for this. How can you advertise something that I'm not licensed for? MR. HORN: Did they agree to pay your violations? MR. SYNOWSKY: No. No, they won't return my phone calls now. But they said they wanted proof that I got fined for this advertising. So I had to show them -- MR. HORN: So they said that they would send you this letter? MR. SYNOWSKY: I had to show them proof that it says advertising on here to them. MR. HORN: No, I understand that, sir. My question is they needed the proof for what, so that they would send this letter to you? MR. SYNOWSKY: No, I just wanted a letter showing Page 23 October 21, 2009 cancellation, that I canceled it to him. MR. HORN: No, I understand. But why would they need the proof of the citations? What would they need that for? MR. SYNOWSKY: They needed proof of citations that I got fined over the advertising. MR. HORN: I understand. But why? To cancel the contract or MR. SYNOWSKY: No. MR. HORN: -- to send a letter? MR. SYNOWSKY: No, they -- I canceled the contract before I got violated. MR. HORN: I understand. But why would they need to see the violations? That's why I'm a -- you got me confused now. MR. SYNOWSKY: They wanted to see the violations because of the advertising. You're getting me confused. MR. HORN: I understand they wanted to see the violations. But why? If it's already canceled and they're not going to be mailing anything out because you canceled it, why would they need to see the violations? MR. SYNOWSKY: I don't have no idea. They wanted to see the violations. MR. HORN: I mean, it wasn't we need to see the violations -- MR. SYNOWSKY: Because I was-- MR. HORN: -- or we're going to-- MR. SYNOWSKY: -- asking who's going to-- MR. HORN: -- write a letter or-- MR. SYNOWSKY: -- pay for this. THE COURT REPORTER: I can't get both of you. CHAIRMAN JOSLIN: One at a time, please. One at a time. MR. SYNOWSKY: I mean, I don't know who's going to pay for it. I don't know if I should get an attorney on them for -- you know, I don't know. Page 24 October 21, 2009 Then when I talked to him, I'm just trying to be honest with him. And every time I got these sent in the mail, I went over and showed 'em, and they made copies of it. MR. HORN: No, I understand you completely, I just don't understand why they would want to see the violations unless there was something you were asking for in return. That's why you had me confused. That's all I'm trying to figure out. MR. SYNOWSKY: I have no idea. MR. HORN: Okay. MR. SYNOWSKY: I showed them the -- I faxed them the violations because of the false advertising. They wanted proof that I was being fined for false advertising, so I faxed them the citations. CHAIRMAN JOSLIN: And what was the reasoning for that? I mean, what was the response to the question when you told them you were going to be fined or you had citations for false advertising. How did that get on a postcard that you put on there? Did you ask them the questions -- MR. SYNOWSKY: Yeah. CHAIRMAN JOSLIN: -- to try to find out? MR. SYNOWSKY: Yeah. CHAIRMAN JOSLIN: I said why -- how come you didn't mail me this? And they said they did mail it to me. And I said, I've never received nothing. I never received nothing in the mail. So I'm calling. On January 1 st (sic) I'm calling -- or June 1 st I'm calling to cancel it. Because why am I paying for something that I can't even be licensed to do? So I had to cancel it. Because like you said, I didn't want to get fined. And 24 days later I got fined. Simple as that. I don't know what else to tell you. I mean, I'm serious, I don't know what else to tell you. I mean, I've been honest with him. Every time I got these letters in the mail, I went right up to the county and gave it to them. They made copies of them. And I still have no control of it. They're still out Page 25 October 21, 2009 there. They're still in someone's mailbox next month and I can't do nothing about it. CHAIRMAN JOSLIN: Well, I find that hard to believe that you can't do anything about it. I mean, it can be done. MR. SYNOWSKY: I tried calling them and they won't accept my calls. If he wants to call them up, that's more than welcome. I'm fine with that. CHAIRMAN JOSLIN: You may have to take some other drastic steps but it can be done, I'm sure. I mean, it may take an attorney to write them a letter -- MR. SYNOWSKY: I'm fine with that. CHAIRMAN JOSLIN: -- and cancel it, but-- MR. SYNOWSKY: But like I said, if I have to pay these, I don't know what to do. I don't know if I get an attorney to sue them or what. CHAIRMAN JOSLIN: You may have to do that. MR. LANTZ: I just have one more question. When you first talked to them in April about advertising, what did you talk to them about advertising for? MR. SYNOWSKY: Detailing cars, boats. I pressure wash, I-- it's mostly anything on the handyman license. Mostly pressure washing, lawn mowing, assembling weight machines and all that. I mean, you can do very -- replace screens. You can very -- do little on handyman license. You can't really do much on a handyman license. Now, on the first offense that I got for painting, I was painting a friend's house. He didn't live there at the time. Someone called and said I was painting. He came in and violated me. I paid the fine. I didn't know what else to do. I told the owner about it, he was going to come down and pay it for me. I mean, I can get that in writing that I was just painting his house. CHAIRMAN JOSLIN: That's not necessary. Mr. Ossorio, just one quick opening. Would you please define Page 26 October 21, 2009 the categories of what a handyman can actually do? MR.OSSORIO: Well, the respondent can tell you, when an applicant comes in for a handyman or a business tax receipt, they sign an affidavit explaining what they can and cannot do. And there is a-- basically a handyman does basically nothing, just what this gentleman says. You can do some painting if it's just like if you're painting a garage door, inconsequential but you can't paint a house. And that's something the investigator goes out in the field and looks at. But no plumbing, electrical, no tile, no drywall. And he signs an affidavit. So here it's kind of ironic that he tells you you want him ( sic) to believe his story but he signs up, gets a handyman license, signs an affidavit that he won't paint and then he's out there painting. And he even tells you that he was painting. So, you know. MR. WHITE: And if you guys had cited him for painting as opposed to unlicensed painting advertising, I'd have no problem with that citation. But that isn't what it says. MR.OSSORIO: Well, I don't -- I'm not an attorney, but I would say to you when you look at F, there's no two parts of it. It says either/or. So or means or. But maybe Robert Zachary can chime in. But if you want, I have no problem dismissing that $500 one for the painting, if that's an issue. We can go ahead and drop the 500 one for painting and just go for the other three, the $300 ones for advertising. CHAIRMAN JOSLIN: Okay. MR. OSSORIO: That's the board's decision. CHAIRMAN JOSLIN: What's the pleasure of the board? Anybody got a motion? MR. WHITE: Just as a point of order, Mr. Chairman, I believe his defense packet was included as part of our agenda packet. CHAIRMAN JOSLIN: And the extra that he gave us. THE COURT REPORTER: Did he give you something, though? Page 27 .. ~_... 'P" '" ....,..-....."..". ....,---,,.,...._,~'~,.-,,--<..'".,-_.......'" October 21,2009 CHAIRMAN JOSLIN: He gave us some invoices, right, which we need to enter that as evidence, yes. MR. NEALE: Those need to be entered. CHAIRMAN JOSLIN: That would be his letter C then. I need a motion, please. MR. L YKOS: You want them separate or combined? CHAIRMAN JOSLIN: No, we can combine them all. The postcard and the three copies of invoices, I need a motion to enter those exhibits. MR. WHITE: I move we accept them as defense packet B, composite exhibit. CHAIRMAN JOSLIN: I have a motion, I need a second. MR. BOYD: Second, Boyd. CHAIRMAN JOSLIN: Motion and a second. All in favor? MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) CHAIRMAN JOSLIN: Motion carries. Nobody's got a motion? You want me to make it? MR. WHITE: I'd make a motion to dismiss all three, Mr. Chairman, but I'll doubt if it will get a second. So moved. (No response.) CHAIRMAN JOSLIN: 1'11 make a motion that we find Mr. Synowsky guilty on unlicensed flooring advertising, which is Citation No. 4927, guilty on roofing advertising as a violation No. 4926, and Page 28 October 21, 2009 that we dismiss the painting advertising of invoice -- or under Citation 4925. MR. LANTZ: Second, Lantz. CHAIRMAN JOSLIN: We have a motion and a second. All in favor, signify by saying aye -- MR. L YKOS: Well, how about some discussion before we move on to vote? CHAIRMAN JOSLIN: I'm sorry. Okay. MR. L YKOS: Your motion is to waive the advertising painting citation altogether? CHAIRMAN JOSLIN: Yes. MR. L YKOS: Well, he did advertise for painting. So I would rather see that it's just not the second offense. If you're going to give up on it, don't give up on the whole thing -- CHAIRMAN JOSLIN: Oh, I'm sorry. MR. L YKOS: -- because he did advertise for painting. Painting's on the card. CHAIRMAN JOSLIN: I see. The difference in the cost is what you're talking about, correct? MR. LYKOS: Right. MR. NEALE: Except for the fact that the statute specifically states that if the enforcement or licensing board or designated special magistrate finds that a violation exists, the enforcement or licensing board or designated special magistrate may order the violator to pay a civil penalty of not less than the amount set forth on the violation, but not more than $1,000 per day. MR. WHITE: So you -- CHAIRMAN JOSLIN: We can't reduce it. MR. L YKOS: We can't reduce it. MR. WHITE: So you'd have to dismiss it. MR. NEALE: You either have to dismiss -- MR. WHITE: Or find a violation. Page 29 ~..~_..;-"..,._".,.,,,,...~..,.~-,.......~.,,--,..,,""_..,-~._-,,._....,"-~"'_.,,^.-..,"~".,_.,,-_..~' October 21,2009 MR. NEALE: -- or 500 for up to 1,000. CHAIRMAN JOSLIN: And I'm only giving him the benefit of the doubt because of what Mr. White's comments are. In my real heart I believe that he was doing this work. I still think he probably is now. I'm going to make a little point here saying that if we catch you agaIn -- MR. WHITE: And if I may, Mr. Chairman-- CHAIRMAN JOSLIN: -- before this board. MR. SYNOWSKY: I understand. MR. WHITE: For the reasons that you've expressed, which I understood, I will be voting in favor of the motion. CHAIRMAN JOSLIN: Thank you, sir. I've got a motion, do I have a second? MR. LANTZ: I already seconded. CHAIRMAN JOSLIN: All in favor, signify by saying aye. MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) CHAIRMAN JOSLIN: Motion carries. You understand what happened, right? You are guilty on -- MR. SYNOWSKY: I got fined for two of them. CHAIRMAN JOSLIN: Fined for two of them and the one for $500 for unlicensed painting advertising we dismissed. MR. SYNOWSKY: Thank you. CHAIRMAN JOSLIN: You are welcome. Page 30 October 21,2009 Do you need copies when we're done? MR. SYNOWSKY: Just wait for them? I'd like to have copies, yes. MR. L YKOS: Here's everything. MR. SYNOWSKY: I could make copies and bring them back. CHAIRMAN JOSLIN: Yes, maybe -- can we get this done in the Commissioners' office, possibly, or across the street -- across the hall? Mr. Ganguli, would you do me the honors of going out and making copies of these three invoices and the postcard, please? Thank you. Okay, the next one on the agenda is a Michael R. Bain. Are you present, please? (No response.) CHAIRMAN JOSLIN: Mr. Bain not here. Okay, we'll put this on the table for a second and maybe he'll show up. Is there a Michael D. Green present? MR. GREEN: Yeah. CHAIRMAN JOSLIN: Mr. Green, would you come to the podium, be sworn in, please. (Mr. Green and Mr. Jackson were duly sworn.) CHAIRMAN JOSLIN: Mr. Green, apparently we are -- you have a citation that was issued to you also, right? MR. GREEN: Uh-huh. CHAIRMAN JOSLIN: As Gentleman Jim's. Are you Gentleman Jim? MR. GREEN: No. CHAIRMAN JOSLIN: No. Who is Gentleman Jim? MR. GREEN: It's a fictitious character. CHAIRMAN JOSLIN: Just a guy. MR. GREEN: Just a guy. Page 3 1 October 21, 2009 CHAIRMAN JOSLIN: With a hat on. MR. GREEN: Yeah. CHAIRMAN JOSLIN: A big guy. MR. GREEN: With an English accent. CHAIRMAN JOSLIN: Okay. You've got a citation here, No. 4962 for apparently engaging in business or acting in the capacity of a contractor or advertising self or business organization as available to engage in business or acting in the capacity of a contractor without being duly registered or certified. Would you like to explain the reasons, what happened? MR. GREEN: The piece of paper that was faxed to Mr. Jackson's office was personal property. It was a prototype that I was working on. It's my full intention to dispute those as-is. Or I don't know what that version is, but it clearly says contractor referral and handyman connection. I don't do any work. Simply, you know, answer the phone. I mean, the way the statute's written, I'm not doing that is my contention. MR. WHITE: May I ask the respondent questions? CHAIRMAN JOSLIN: Uh-huh. MR. WHITE: The prototype that we have, and hopefully you're familiar with it, does say that it's a contractor referral and handyman connection. It lists probably 12 or so different areas of activity. But at the bottom it also says free estimates. MR. GREEN: Yeah. MR. WHITE: Who provides those? MR. GREEN: The contractors. MR. WHITE: And how do they know what to do? MR. GREEN: A phone call. Yeah, I mean, I can break this down. Face value, I don't believe the statute's been broken, so we can go into detail here. Page 32 October 21, 2009 I have a copy of how it all starts, okay. I haven't done anything yet. Because after this meeting, then I will go, you know, open a bottle of champagne and start working. This works through what happens. The people call me, I take their information, what their problem is, call the contractor, dispatch them. They do their magic. I follow up and get 15 percent for that phone call. They -- I don't collect any money, it's paid to the contractor. I just get a percentage. MR. WHITE: Sir, it's kind of like a finding fee, or finders fee? MR. GREEN: Yeah. And the guys that I have are licensed, insured, bonded, in good standing. MR. WHITE: So you're essentially offering the services of contractor. MR. GREEN : Yeah, I'm doing the advertising for the contractors, okay? Consolidating -- instead of having an electrician, plumber, heating and air guy, have all those numbers on one little sheet that they put in their closet or whatever, just call Jim. CHAIRMAN JOSLIN: So the bottom line, what you're doing is you're kind of attempting to make a sale for a contractor, whether it be roofing, AC, plumbing, whatever it may be, you're just trying to get that contractor a job. MR. GREEN : Yes. I'm doing the advertising for them essentially, just consolidating all the numbers. CHAIRMAN JOSLIN: Okay. I'm going to read you something real quick, and Mr. Ian -- no, I won't yet. Mr. -- Ian, let me hear what you have to say. I'm going to hear what you found there. MR. JACKSON: For the record, Ian Jackson, Contractor Licensing. On or about July 30th, contractor licensing office received this fax from a licensed plumbing company. I met with Mr. Green, explained what the issue was, gave him an Page 33 October 21, 2009 option on how to remedy it, and issued the citation based on the state statute attached in your packet. There's -- to be honest, there's not really much more than that. MR. WHITE: Well, do you have an opinion, based on the advertising that's in our packet and your conversation with Mr. Bain (sic) whether in fact he is offering or -- there are attempted sales -- services that require contract licensure? MR. JACKSON: Are you asking me if I believe that he's referring these jobs to contractors? MR. WHITE: No, I'm asking if you believe that he is offering or that there are -- that there is an attempted sale of services that require the corresponding licensure. MR. JACKSON: I do believe that Gentleman Jim, LLC, Carpentry, Heating, Air, going from the advertisement, going from the statute, the attempted sale of contracting services. CHAIRMAN JOSLIN: On what he has on this particular Gentleman Jim's free estimates, I think there's only one, maybe two on here that don't really -- maybe three that don't really require a licensure. The moving, the pressure washing and the lifting, possibly. The rest of them are all tier one contractors, just about, other than small ones. And I'm going to read you something real quick, okay, and then we're going to maybe end this real fast. According to the statute it pretty much clearly states out what you're doing. I can tell what you're doing in your business, you're going out and you're engaging in trying to do attempted sales by hiring or getting leads from people and then going out and trying to locate or giving general contractors or contractors the opportunity to bid on those jobs, correct? MR. GREEN: No. CHAIRMAN JOSLIN: Okay, I'm going to read you the statute. Paragraph six, it says contracting in the State of Florida, in Page 34 October 21,2009 Collier County. It says Collier -- contracting means as exempted (sic) in this part, engaging in business as a contractor and includes but is not limited to performance of any of the acts as set forth in subsection three which defines types of contractors. The attempted sale of contracting services and the negotiation or bid for a contract of these services also constitutes contracting. Therefore, by the statute you are contracting or advertising or contracting possibly without a license. MR. WHITE: And if I could add to that, Mr. Chairman, the sentence that in addition to that to me seems to be the indication that there's a violation that would support the citation. It says if the services offered require licensure or agent qualification, the mere offering, negotiation for bid or attempted sale of these services requires the corresponding licensure. In other words, even the notion of a contractor referral seems to offend this statute. So I will be voting that the citation should stand and would encourage -- MR. GREEN: The word seems and appears, I don't understand. For this type of business -- CHAIRMAN JOSLIN: There is no -- to put it point blank to you, there is no type of business for what you're trying to do. What you're trying to do is be a middleman to set up people with a general contractor, which sounds like a pretty good business. However, to do it you need a general contractor's license. Then you could go and you could have this business because you are a licensed general contractor and you can go and you can bid out other contractors as a subcontractor. But with no license at all and under a handyman's license you can't do that. MR. GREEN: Since this is all brand new territory, would you be willing to maybe perhaps -- because that was a prototype. That is not out in the street anywhere. That came off my computer. I gave it to a friend of mine. So that's -- it's personal property is what that was. Page 35 October 21, 2009 CHAIRMAN JOSLIN: All it takes is once. MR. WHITE: The testimony, sir, Mr. Bain (sic), is that it was provided to the staffby a licensed contractor. Now how did they get MR. GREEN: It was taken out of a truck. I gave it to a friend of mine. Just we're talking about things and this, and I gave him a copy of it, saying this is what I'm thinking about doing. His boss, my ex-employer, a little bad blood there, but he somehow got it away from a friend of mine. I don't know how or by what means. It's not out there for -- you know, so if something off your personal computer was just out there on the street somewhere, that you're liable for it? CHAIRMAN JOSLIN: Yes. MR. GREEN: I don't understand. MR. WHITE: Well, that's not the point for me as much as the idea. Because you've said that that's what your intention is. MR. GREEN: Yeah. MR. WHITE: And if I -- the distinction is clear in my mind, that you're trying to say that the service you provide is not the offering of or the attempted sale of contracting services that require a license, it's merely the service of putting you -- putting a client in touch with someone who provides those. MR. GREEN: Consolidating contractors numbers is basically what I've done. And come to one piece of paper, throw the phone book away, you know. Oh, I need an electrician, just call Jim; I need a tile guy, just call Jim. CHAIRMAN JOSLIN: Mr. Lykos? MR. L YKOS: My problem with that concept is that they're calling Jim and not the contractor direct. Okay, the Yellow Pages, which is the place you can go to get information on all the different trades. You call the contractor direct, you don't call the Yellow Pages and then they refer somebody. Page 36 October 21, 2009 The statute says offering the service. Well, your flier is an offer of those services. And there's one phone number to call for all those services. So it's an offer of those services. MR. WHITE: There may be a judge that sees it differently. And if you're going to go into this business, you may want to get that decided. But for the purposes of what the statute says and what the evidence is from my point of view, I'm prepared to make a motion, unless -- CHAIRMAN JOSLIN: One last-- MR. GREEN: And like I said-- CHAIRMAN JOSLIN: One last comment. Kyle? MR. LANTZ: I'd just like to add something. I understand what you're trying to do. And there's a couple other people in town who are doing that. One is Service Magic, which if you go -- MR. GREEN: Yes, I was going to bring that up. MR. LANTZ: -- on line, if you go to Service Magic, they refer you. If you do an Internet search and say I'm looking for an electrician, Service Magic refers you to Joe Schmo Electric -- MR. GREEN: Exactly. MR. LANTZ: -- Service Magic refers you to Joe Schmo -- every . . , tIme It s -- MR. GREEN: Yeah. MR. LANTZ: -- Joe Schmo Electric, it's not you're hiring Service Magic. So for them I would say I would agree, they are a referral service. Because as soon as they advertise -- they don't advertise call Service Magic, they say -- MR. GREEN: Yes they do, they go on line to Service-- MR. LANTZ: No, every person has their own phone number. You'll see a hundred different phone numbers. I used to advertise with Service Magic. And they had a southwest creation Service Magic Page 37 October 21, 2009 phone number where if somebody called it, it got forwarded right to my line, but it was my phone number. And so for that I would say you're not following in the steps that they're doing, because you're advertising for you, not for the business. And another person that I can see is the local Handyman Connection, which is probably one of your competitors. They have a building contractor's license which allows them to advertise for the other stuff. So just two examples of -- I see where you're going, but I don't think you did your homework to see exactly what they're doing. So for that -- MR. GREEN: No, I didn't know. I'm just out here-- MR. LANTZ: Just giving you examples of -- MR. GREEN: I've been a plumber for 25 years. You know, I'm out in the field. You know, I'm not just a guy that's trying to get in on you guys' action, you know. I just saw a better way to consolidate, that's all, all right? Now, if I amend the prototype to -- I'm a general contractor. You know, as one of my contractors. You know, a plumber, electrician, these are all-- you know, I don't have copies to give you, so -- but I have the -- MR. LANTZ: So if you have the general contractor qualify your business -- MR. GREEN: If I amend that to the prototype. MR. LANTZ: If your business is-- MR. GREEN: Because this is all brand new that I disagree-- MR. LANTZ: You have an LLC -- THE COURT REPORTER: Wait a minute, I need one at a time. CHAIRMAN JOSLIN: One at a time. MR. LANTZ: So you have an LLC, right? Gentleman Jim, if you have a general contractor or plumbing contractor or electric contractor qualify your business, then you're covered. Page 38 October 21, 2009 Just because you are using a general contractor, if you're not qualified as a general contractor, you're still acting as one. Now, this is my opinion, but I'm pretty sure that's correct. CHAIRMAN JOSLIN: The general contractor would have to be a part of the corporation, right, or the LLC, in order to make -- the agent would actually be the GC. He would be maybe the president or vice president or whatever, but he'd have to be someone in the minutes or someone on the -- MR. NEALE: I agree with the board and Mr. White's particular analysis of this. What I would like to do, though, and Mr. Zachary and I had a little side bar on this, is I think because of things like Service Magic we're going to see more and more of this as times are tougher, is potentially do some research on this between now and our next meeting and come back to the board with some opinion on how these systems work and what seems to fit with our ordinance and statute and what doesn't. CHAIRMAN JOSLIN: Okay. You want-- MR. NEALE: But I totally agree with the analysis going forward at this point. CHAIRMAN JOSLIN: Okay. MR. L YKOS: Motion to uphold the citation, Lykos. MR. WHITE: Second, White. CHAIRMAN JOSLIN: I have a motion and a second to uphold Citation 4962. Anymore discussion? MR. WHITE: Just that I'd like to apologize if I had called you Mr. Bain, Mr. Green. MR. GREEN: Accepted. CHAIRMAN JOSLIN: Mr. Green. All of those the favor, signify by saying aye. MR. BOYD: Aye. Page 39 October 21, 2009 MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Is there any opposed? (No response.) CHAIRMAN JOSLIN: Motion carries unanimous. Mr. Green, you're going to have to pay the fine, and I suggest maybe you do a little more homework. And meanwhile, I'm sure that Mr. Neale is going to dig into this also. But I think that the way that the board has kind of dictated you or at least asked you to maybe produce your company that way, I think you'll be farther ahead and without chance of errors and problems. MR. LANTZ: I'd like to just add a question to staff on this one. On the previous case the gentleman had his fliers and he got a citation for painting, for flooring, for roofing, whereas this gentleman was only cited for advertising as a contractor. I'm not saying I want to give him five more citations, I'm just wondering why it's not consistent. Is it two different investigators or are there circumstances that we don't know about? MR. JACKSON: I based my citation on general contracting. General contractor can contract for any trade, but as we know, they're required to subcontract certain trades. So a general contractor could contract for all of those, anything. That's why I issued one. MR. LANTZ: But then how come the previous one was the individual? I'm just looking for consistency, that's all. MR. OSSORIO: Because our -- well, our assumption is that he was a handyman, he was going to do all those trades. So there's a big difference between doing and subbing. So if you're a general contractor, you have that ability to go Page 40 October 21, 2009 ahead and contract and referral. If you are a handyman or if you are advertising, promoting yourself or doing these items, then you're going to get cited for each one of those items. MR. LANTZ: But a general contractor can't advertise for electrical only, only if it's incidental to their work, correct? MR.OSSORIO: I would say that if a general contractor advertised can do electrical work, we would have to catch that general contractor on the site doing electrical work. And we have done that. So just the mere premise this contractor is saying he's going to do electrical work under 489 tells you that he must sub it out. So we have to catch him not subbing out to therefore to be in violation. MR. LANTZ: The only that I'm -- I'm not complaining, I'm just looking for consistency. But I know that there's a statute in the general contractor's clause that says you cannot advertise to do roofing unless you were a general contractor before whatever day they made it roofing license separate from general contractor. So, I mean, I'm not trying to get him more fines or anything like that, I'm just looking for consistency. And if it's up to interpretation, you know, maybe get it consistent all the way around. MR. OSSORIO: It's noted. CHAIRMAN JOSLIN: I think the recommendation Mr. Neale had, he's going to research this and come back maybe with some more topics of conversation maybe at the next meeting so we can clarify this for sure. This is going to come up more -- MR. GREEN: -- you've made a decision on mine, my case, but further discussion in the future. CHAIRMAN JOSLIN: Well, unfortunately you were the one that came before us at the moment, and it's clearcut that you are guilty of the charge. That's the only reason why at this moment. Because you don't have a general contractor's license. Now, it may require one. And this is what Mr. Neale is going to present before us, if that is a correct procedure for -- Page 41 October 21, 2009 MR. NEALE: The way you were advertising with structure, it was clear that you were offering to sell services. So the board's analysis was correct. But is the -- you know, what I'm going to research is, is there a way of structuring these type of referral services that could comply, so CHAIRMAN JOSLIN: Sorry, thank you. MR. L YKOS: We're going to try to make sure that you don't do it wrong, if you let us help you. That's-- MR. GREEN: Yes, yes-- MR. L YKOS: -- what they're working on. MR. GREEN: That's the initial phone call from Mr. Jackson that yeah, guys, I'm helping. CHAIRMAN JOSLIN: You may give it 30 days maybe till next month. And then maybe if you want, come before the -- come in the meeting again and come in here and you'll probably hear us speaking again about this. MR. GREEN: Would that fall under-- CHAIRMAN JOSLIN: And maybe you'll get some more direction. MR. GREEN: -- new business that was started at the beginning of the meeting? CHAIRMAN JOSLIN: Yes, um-hum. MR. GREEN: Who would I go to? CHAIRMAN JOSLIN: You'd come right here, same place. MR. GREEN: All right, thank you. CHAIRMAN JOSLIN: You're welcome. Next on the agenda is a Roger Boucher. Did I beat that up too bad? MR. BOUCHER: Not bad. CHAIRMAN JOSLIN: Okay, sorry. Be sworn in, please. Page 42 October 21,2009 (Mr. Kennette and Mr. Boucher were duly sworn.) CHAIRMAN JOSLIN: Is it Boucher or Boucher? MR. BOUCHER: Boucher. CHAIRMAN JOSLIN: Boucher, okay. I thought so. Mr. Boucher, you have a citation issued to you, No. 4489, for engaging in business; talked to on the phone as an electrical contractor; acting in the capacity of electrical contractor. Do you want to elaborate on what happened? MR. BOUCHER: Well, I guess after hearing the first two situations, this is quite a popular item. So I would like to have clarification as to what it is basically the citation is. This is -- it covers so many areas that -- CHAIRMAN JOSLIN: Yes, it does. Mr. Kennette? Maybe Mr. Kennette can enlighten us some. MR. KENNETTE: For the record, Allen Kennette, Contractor Licensing, Collier County. This citation was issued to Mr. Boucher. His worker was out on Green Tree Drive at Armador Lane, had a light disconnected by the entry and had 25 feet of electrical wire laid out and conduit piping. I asked him what exactly (sic) company he worked for, because they were doing electrical work. He said he worked for Pelican Bay Property Management, Incorporated. In checking the records, it showed that they were just the management company, no electrical license, which a permit would be required to add on electrical service, which they were going to light up the entryway a little more with adding a few lights on the left-hand side. I called the office, talked to the gentleman on the phone, I don't remember his name, as Mr. Boucher wasn't available. And informed him. And he said oh, the gentleman ain't supposed to be doing that, tell him to stop. I said, he's already been stopped. And the job was stopped. Page 43 October 21, 2009 As it was, he reassembled that light back together, and at that time Mr. Boucher called me and I explained to him what was going on out there, that he needed an electrical license and a permit. And a permit was required to add electrical service onto an -- an existing 110 line, due to the fact that maybe it's overloaded, it would overload it and cause a fire at the junction box or back at the source of where it came from. And he didn't think that that was proper, that he could extend it. And I said no, you can't, you need to have an electrician do it. And the citation was given to the worker to bring back to him. And that's where we stand. CHAIRMAN JOSLIN: Did I hear you correctly when you said he had a worker on the job doing this? MR. KENNETTE: Yes, there was a worker van out there, worker out there doing it. The original copies that I had with the photos of the gentleman with the electrical thing got misplaced at our office and we can't -- I could not find that part of it. But I did have photos of the wiring laid out and the light disconnected. The light to the entryway was disconnected, the 110 light. CHAIRMAN JOSLIN: Now do you know the reason? MR. BOUCHER: Yes. I think based on what he was supposed to do and what he's doing, I didn't know anything about the light. Essentially the worker was there to try to save the association some money, so that they were going to just layout the conduit and do the grunt work, if you will, instead of paying $85 an hour -- $25 an hour. And I -- he was not doing any connection of any electrical work. Now, we did not think that this would require a permit because it was a continuation of existing lighting. So if that is different, so be it. But that's essentially what he was doing was just laying out the conduit. And we had another party actually lifting up pavers and putting conduit underneath there to run the wires through. Page 44 October 21, 2009 And the electrical contractor who was hired to do the lighting was hired, and he purchased the lights and he did the installation. So that's the only thing we were out there doing purportedly. Now, I don't know anything about the light laying down or anything like that, but that's essentially what the Pelican Bay Property Management -- CHAIRMAN JOSLIN: As a licensed electrician, would you say that running conduit under a paver deck would be part of the installation ? Your testimony is the -- MR. BOUCHER: No. CHAIRMAN JOSLIN: -- electrical contractor was going to do the installation. MR. BOUCHER: Right. CHAIRMAN JOSLIN: I would think conduit-- MR. BOUCHER: Well, I guess I'm looking at it from the standpoint of a very pragmatic issue, if you will, that there are certain aspects that did not require technical expertise to lay conduit or pull pavers out and whatever as a by-product of the project. I do split those things up when we do certain work. But, you know, it's -- I don't consider it that it needs expertise of an electrician to lay conduit, dig a ditch and remove pavers and put conduit under the ground. CHAIRMAN JOSLIN: You don't? MR. BOUCHER: No. MR. L YKOS: Motion to uphold the citation, Lykos. MR. HORN: Second, Horn. CHAIRMAN JOSLIN: Motion and second to uphold Citation No. 4489. MR. WHITE: Point of discussion, please. CHAIRMAN JOSLIN: Any discussion please? MR. WHITE: Yes. I'm a little confused on who Mr. Boucher is, and why he's getting the citation. CHAIRMAN JOSLIN: He has (sic) the license holder for Pelican Bay services. Pelican Property Management. Page 45 "___""'_""""_""'~"'.'".'"''''' --, ,,,~rIIW ... ..._...__=__~.~.,~,,,,~."'",'.,,,,__. -,-^-" October 21,2009 MR. WHITE: So you work for or are-- MR. BOUCHER: Yes. MR. WHITE: -- somehow? And these were your employees that were doing -- MR. BOUCHER: Yes. MR. WHITE: -- these sub-tasks, in your mind? MR. BOUCHER: Yes. MR. WHITE: And you otherwise didn't have an electrician hired that pulled the proper permit for this install? MR. BOUCHER: Yes. MR. WHITE: And that permit was in existence at the time that-- MR. BOUCHER: No, it was not. It was not. MR. WHITE: Okay. CHAIRMAN JOSLIN: Did he have Workmen's Comp insurance MR. BOUCHER: Yes. CHAIRMAN JOSLIN: -- on the persons that were digging the trench? MR. BOUCHER: We'd be more than happy to provide it for you. CHAIRMAN JOSLIN: Okay, I have a motion and a second on the floor. MR. WHITE: I'm just trying to help inform Mr. Boucher as we did the last gentleman in a little -- to some degree that in my mind if you had hired and had a permit pulled by an electrical contractor and that contractor was aware of what the sub-tasks were and was otherwise supervising your employees who were doing some of the, quote, grunt work, unquote, then you might not have found yourself before us with about what is going to occur. MR. BOUCHER: I appreciate that comment, and I think that the bases that we were working under, that the continuation of this lighting project was not new construction, so that's why we didn't Page 46 October 21, 2009 think the permit was needed. MR. WHITE: Very good. CHAIRMAN JOSLIN: A motion and a second on the floor still. Any more discussion? (N 0 response.) CHAIRMAN JOSLIN: Call for the vote. All in favor of upholding Citation No. 4489. MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (N 0 response.) CHAIRMAN JOSLIN: Motion carries. Mr. Boucher, I'm sorry that that's the way it is but-- MR. BOUCHER: It is what it is. CHAIRMAN JOSLIN: -- the fine stands. MR. BOUCHER: Don't worry about it. CHAIRMAN JOSLIN: I wouldn't do it again though, please. MR. BOUCHER: I'll do it differently. CHAIRMAN JOSLIN: There you go. Good idea. Let's hope different is right. MR. WHITE: I was trying to help. CHAIRMAN JOSLIN: Okay, we have a Charles S. Miller. Are you present? Would you please come to the podium and be sworn in, please. (Mr. Miller and Mr. Jackson were duly sworn.) CHAIRMAN JOSLIN: Mr. Miller, you were given a citation apparently for -- sorry, you were given three citations. Page 47 October 21,2009 MR. MILLER: Three citations, sir. CHAIRMAN JOSLIN: 4970,4971 on August 17th, all the same date, and 4972, unlicensed plumbing, unlicensed electrical and unlicensed cabinet installation. You want to elaborate on what you were doing there? MR. MILLER: I was -- these are friends of mine. I was -- the gentleman asked me if I would come help him raise his vanities, his cabinets, bathroom cabinets, and I didn't do -- I wasn't doing any plumbing or any electric. Everything that was done was done before I -- he knew I had a table saw, and some wood needed to be cut. And we were there that morning. He had left and I was there by myself just trying to help him assist him in raising the cabinets. He wrote a letter, if you care to take a look at it. CHAIRMAN JOSLIN: We'll look at it in one second. Ian Jackson, would you please elaborate on what you found and why these citations were issued. MR. JACKSON: Yes. On August 17th, I observed signs of construction at 2537 King's Lake Boulevard and approached the home where I met with Mr. Miller who did indeed tell me that he was elevating the bathroom vanity, making it higher. I asked Mr. Miller to let me into the bathroom so I could verify whether a building permit was required for this work, and it was not required. There was the removal of electrical fixtures and removal of plumbing fixtures. I talked with Mr. Miller about his licensing. He stated that he had recently received a handyman type business tax receipt. We talked at some length about what the restrictions are with that type of business. I then asked Mr. Miller about the job in the bathroom and if anyone else had been working in there, if there's another arrangement for someone else to come in and reinstall these plumbing fixtures and electrical fixtures, and I was led to believe that through testimony of Page 48 October 21, 2009 Mr. Miller's that he was going to be reinstalling -- I believe the way it was worded, the existing fixtures were going to be reinstalled. Based on that, the alteration to the vanity is cabinet installation license. The reinstallation of whether they're existing or not, installation of plumbing and electrical fixtures requires a plumbing and electrical contracting license. Unfortunately Mr. Miller has none of these. Based on what I was told in the field through the testimony of Mr. Miller, I issued the three citations. And subsequent to this I did speak with the homeowner and explained to the homeowner how things can proceed, either as the owner/builder himself physically doing it or by the hiring of a licensed contractor to finish the job. MR. MILLER: He did mention -- when he asked, you know, I told him what the homeowner told me, that he was putting them back in. He was doing the electrical work and the plumbing work. All he did was asked me to help him raise the cabinets because I had a saw -- CHAIRMAN JOSLIN: You had a saw. MR. MILLER: -- table saw. It needed to be cut. CHAIRMAN JOSLIN: Did you go physically take the cabinets and unscrew them and -- MR. MILLER: No. CHAIRMAN JOSLIN: -- the plumbing and raise it up? MR. MILLER: No, sir. He disconnected everything. Everything was done. I've got a letter right here. This is from Bob. And he -- CHAIRMAN JOSLIN: Is it a notarized letter? MR. MILLER: No. It's signed. CHAIRMAN JOSLIN: I don't want to see it. MR. MILLER: Okay. All he was -- all I was there to do is to help him assist him in raising the cabinets, because he didn't have a table saw to do it. So I was there to help him. CHAIRMAN JOSLIN: Mr. Jackson, when he was-- Page 49 October 21, 2009 MR. MILLER: It had nothing to do with the electric or plumbing. I didn't disconnect it and I wasn't going to reconnect it. If he needed -- if I was there to help him set them back on there, I would. CHAIRMAN JOSLIN: Mr. Jackson, when you appeared on the job and you caught this work going on, was he physically doing any of the work at the time? I mean-- MR. JACKSON: Physically altering the cabinetry while I was there. CHAIRMAN JOSLIN: While you were there. MR. JACKSON: Now, did I physically see him installing plumbing and electrical fixtures? No. But based on the testimony given by Mr. Miller while I was on the job site, I felt confident that he was going to be reinstalling those fixtures and had an arrangement or a contract, however you want to word it, with the owner to do so. CHAIRMAN JOSLIN: Okay. Pleasure of the board? MR. WHITE: May I inquire, Mr. Chair? CHAIRMAN JOSLIN: Sure. MR. WHITE: I understood, sir, that you have a friend. Is your friend Bob? MR. MILLER: Yes. MR. WHITE: And is Bob the owner? MR. MILLER: He's the owner of the house, yeah. MR. WHITE: Okay. I just wanted to make sure that was in the record. Question to staff: We're seeing this and you've already heard one of the board members comment about it, multiple citations. Certainly we have a circumstance where we have a handyman who has done work, regardless of what that work is, beyond the scope of his license. And it would seem certainly that's a citation that could have been issued. And I think part of what our challenge here today is if this is going to be a pattern and practice staff is going to follow, is that we're Page 50 October 21,2009 going to have to look at very specifically the facts of each one of these citations, starting with the first one we had this morning and working our way forward. The point being, I'd have no problem, based on what the testimony has been so far, that he had done work beyond the scope of his license. When you start to put us in a position where we've got to analyze whether he offended some other series of licenses, then it's going to be for me a higher evidentiary burden for the staff to prove those things. And when I look at it, what I hear is the guy say one thing, and I understand what he understood and thought he'd said about what his intentions were. But it seems to fit together to me that yes, he may have been helping the guy with the cabinet, and that puts me in a position where relative to that citation I'm going to ask him some more questions, if I may, Mr. Chairman. CHAIRMAN JOSLIN: Urn-hum. MR. WHITE: Were you promised anything in exchange for helping Bob? MR. MILLER: No. We talked about nothing. He asked if I had a saw and I said yeah. And he -- I like to do things. And I brought my table saw over there and was cutting the wood and he was called away for a couple hours, for a few hours. And during that time Mr. Jackson showed up. And, you know, I didn't have any problem showing him -- I didn't -- I was working on it with Bob. MR. WHITE: Okay. MR. MILLER: I mean, he wasn't -- MR. WHITE: If I may, I'd like to see the letter. I understand that it's not sworn, but it has some -- MR. NEALE: It certainly has probative benefit. Because thus far everything you've heard as far as the electrical and plumbing contracting is purely hearsay. Page 51 .. ...,_.....""~"..__"c.,""""_.,_."""'....,__",."_".,,.__.__''''-''''-'''''''''''''~-'~'''''''''''''_'__''_'-'a<'~_ October 21, 2009 CHAIRMAN JOSLIN: Right. MR. NEALE: So therefore one hearsay is equivalent to another hearsay, basically. MR. WHITE: Right. MR. NEALE: And frankly, the letter probably has more probative value than hearsay. While someone didn't see anybody doing any electrical contracting or plumbing but there happened to be electrical outlets disconnected and plumbing disconnected and the guy happened to be standing there. CHAIRMAN JOSLIN: Right. I would think that under the circumstances, I don't think we really need to see the letter at this time, I don't think, unless the board does. But I can -- MR. NEALE: Well, you do have one of the board members who wants to see it. CHAIRMAN JOSLIN: Okay. I can just make a quick comment first. If we have three citations, and physically we're going by Mr. Jackson's knowledge as far as what he saw that was physically there at the job. The plumbing was disconnected and electrical was disconnected, but he didn't actually see him doing those trades. He did see him remove the cabinets. So just a comment could be we could issue a guilt factor on one of the charges, and unfortunately we cannot -- don't have the proof or evidence to justify the other two. MR. WHITE: Mr. Chairman, I'll forego looking at the letter if you allow me to make a motion that says that we would dismiss 4971 for unlicensed electrical, 4972 for unlicensed plumbing, and uphold the citation for 4970, unlicensed cabinet install. CHAIRMAN JOSLIN: Is that a motion? MR. WHITE: That is a motion. MR. BOYD: Second, Boyd. MR. JERULLE: Discussion? CHAIRMAN JOSLIN: Discussion. Page 52 October 21,2009 MR. JERULLE: But what -- I know as a general contractor, Michael, what my responsibilities are when I go onto a job site, so to speak. Let's assume this is a job site. What responsibilities does a handyman have as far as notifying or making sure things are done the right way? MR. OSSORIO: Well, there's no license for handyman, it's a business tax receipt. So we don't really regulate handyman other than what you see in front of you, what he can and cannot do. He can't sub the work out, he can't do the work. Basically the only thing he can do is those items that are specified under his signature that he can't, can or will not do. So I have no problem dismissing those two charges. CHAIRMAN JOSLIN: Mr. Lykos? MR. L YKOS: I think this is going to be a recurring problem for us in the near future till the market gets better. But I have a serious concern with the fact that a handyman occupational tax even exists. Anybody can take the time and invest the resources to get a residential builders license, get a general contractor's license, and then we don't have these misunderstandings, these he said/she said situations. To me the handyman license is a way to get the absolute minimum that you can to get by. And the more times we see handymen that are doing -- I won't say doing -- associated or standing next to somebody else who might be doing plumbing or electrical to me is just an excuse, it's an easy way out. It's an excuse to not put the effort in to get a real license and do the work legitimately. And I will never be in support of the handyman occupational tax and a person that doesn't want to put the effort into getting a license, getting insurance and doing things the right way. This is an excuse for people to do kitchen remodeling, bathroom remodeling, and try to use the gray areas and the laws that exist to get around doing things the right way. You put the homeowner at risk, you put the property at risk, and Page 53 October 21, 2009 you put us in a position where we're trying to decide who's telling the truth and who isn't telling the truth. And then we get a letter after the fact about a homeowner is going to say what his intentions were? I just don't like any of it. CHAIRMAN JOSLIN: That's why I don't need to see the letter. MR. JERULLE: I agree. CHAIRMAN JOSLIN: Because anyone can say that. I mean, I can have somebody write a letter that's false, I mean, just to save my $300. MR. LANTZ: My opinion is if the homeowner really felt they were responsible, then they'd be standing next to him. CHAIRMAN JOSLIN: Yes, exactly. MR. LANTZ: And I've seen that maybe once and I've seen an awful lot of letters, and I take them with a grain of salt. CHAIRMAN JOSLIN: I think under the situation with what we're doing here with the one citation, I think we're totally correct. The other two we can't really prove, but the one we can. So there's a motion and second on the floor. I'll call for the vote. All those in favor of upholding one of the three citations, which is the cabinet installation citation is found guilty on and the other two citations he's found -- are dismissed. All in favor, signify by saying aye. MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) CHAIRMAN JOSLIN: So moved. Page 54 October 21, 2009 You understand now, right? One $300 fine for the cabinets-- MR. MILLER: Yes, sir. CHAIRMAN JOSLIN: -- and the other two you got a break on. MR. MILLER: Where do I have to -- CHAIRMAN JOSLIN: You'll go down to Collier County, down to the development services on Horseshoe Drive. MR. MILLER: Horseshoe Drive? CHAIRMAN JOSLIN: Yes. Go into licensing and they'll take care of you. MR. MILLER: All right. Do I have any time? A week, two weeks? CHAIRMAN JOSLIN: Ten days. MR. MILLER: Ten days, okay. Thank you. CHAIRMAN JOSLIN: You're welcome. MR. L YKOS: Michael, before we move on, I want to make sure everybody understands. The reason that you end up with several citations for handyman is a general contractor, if I was doing that bathroom project, I would have a permit, I would have a licensed electrician on-site, I would have a licensed plumber on-site. There'd be no question who was doing the work. And if Ian or Michael or somebody else came on-site, well, number one, they'd already know there's a permit on the job, they'd already know who the licensed plumber and electrician were. They wouldn't even have to come on-site to begin with. Anymore handymen come up in front of me, they're guilty. MR. OSSORIO: Well, there's another handyman coming -- no, just kidding. CHAIRMAN JOSLIN: You know, I think some of this problem with handymen is not so much the handymen, but I think it's the handy people out there. I think what they're trying to do is maybe in some way save a dollar, and I'm not real fond of that. I mean, we're here to uphold the citizens of Collier County, but it seems like the citizens of Page 55 October 21, 2009 Collier County are just making us fine these people all the time. MR. WHITE: Well, one of the unfortunate aspects, Mr. Chairman, I guess of being the consumer advocate type person on the board is that I see it both ways. And if an ownerlbuilder wants to do those things and the law allows them to and the guy testifies he's not being compensated -- I'm not trying to help people find ways around the law, I'm just saying those are the facts that were put in front of us. CHAIRMAN JOSLIN: Right. MR. WHITE: And I so hopefully by this time could clarify why it is that I -- I agree with Mr. Lykos, I get it. But on the other hand, you know, we're stuck with what we got. CHAIRMAN JOSLIN: We have to change the law then. MR. NEALE: And for the board's reference, I mean, you know, the Florida legislature did see fit to put in the exemption in 489. And so -- CHAIRMAN JOSLIN: Yeah, how dumb was that? MR. NEALE: -- until-- unless and until contractors can convince the Florida legislature to remove the exemption, it's going to be in there. MR. L YKOS: Well, you know what? Go paint a fence, but don't do a bathroom remodel. MR. LANTZ: However, one thing on there was if I go to remodel a bathroom and all I'm doing is changing out a vanity, they won't let me do it without a building permit, plumbing permit and electrical permit. Whereas Ian mentioned earlier that no permit was required. I don't know if that's discrimination because I'm a contractor or if it's an oversightment (sic) by Ian, but that's the way it is. I can't go in and say I want to do this without getting a plumbing permit for it. MR.OSSORIO: Well, I'll just clarify that real quick. If it's a -- we're dealing with three jurisdictions: City of Naples, Marco Island and Collier County . We've spent a million times with Page 56 October 21, 2009 Bob Dunn, with DSAC over the last two months clarifying what the exemptions are for residential. It's a good tool. As a matter of fact, when it gets approved I want to bring it to you and share it and we'll go over it line by line so we're on the same page, just for informational purposes. But right now if you're just changing out cabinets, like for like, if it's under $750 then doesn't require a building permit on a residential property. It is going to go up to 1,500 in the near future if it gets approved by the Board of County Commission by the exemptions. So it's a case-by-case. If you were in the City of Marco Island, you probably require a building permit. If you were in Collier County, if you just change out a vanity, it probably wouldn't require a building permit unless it's on a commercial site, then it's totally different. So -- and what I mean commercial, I mean condo, condominium and stuff like that. And the City of Naples is the same way. If you're just changing out a vanity in a single-family home, it doesn't require it unless it's a -- you know, money-wise. So we'll deal with that when the board looks at that in November. I'll bring that paper back and we'll look at the exemptions so we're all on the same page. CHAIRMAN JOSLIN: What if you were doing a cabinet and a toilet, would that be still under the same exemption? MR.OSSORIO: If you're just changing out -- if you are doing flooring in the bathroom and you have to take the -- the plumber comes out and takes out the toilet and takes out the vanity, you redo the tile and the plumber comes in and resets it, I don't think it requires a building permit, no. CHAIRMAN JOSLIN: Wow. What do they consider a renovation? I mean, what is the renovation be start and stop (sic)? MR. L YKOS: Here's what I'll tell you my concern is. Specifically with raising a cabinet, typically -- and Terry and Kyle Page 57 October 21, 2009 could probably back this up. You've got an outlet that's close to the countertop height. So now you raise the cabinet. Now the outlet's got to be moved. And if it's an old building it's probably not a GFI protected outlet. And now that person decides he's going to sell his home and advertise it as a remodeled bathroom. You probably have an outlet that's been relocated not by a licensed plumber -- I mean licensed electrician. It probably isn't a GFI. There's a -- MR.OSSORIO: Well, if you're doing-- MR. L YKOS: -- reason why we're required to pull permits. MR.OSSORIO: If you are doing not -- if you're like for like, if you're changing an outlet and you're moving the outlet, that will hold true, you require an inspection. But if you're just changing out the vanity, taking out the trap, whatever it is, and changing out from a Home Depot style, then a permit wouldn't be required. I don't agree with the whole aspect of the exemptions, and Bob Dunn knows that, some of it. But we heard from DSAC, and it's a good working document. And I'll bring it back to you and we'll look at it. CHAIRMAN JOSLIN: Okay, sounds good. MR. OSSORIO: Okay. MR. NEALE: Break? CHAIRMAN JOSLIN: Okay, let's see. The last person on the agenda -- MR. L YKOS: Break. CHAIRMAN JOSLIN: I'm sorry? MR. NEALE: Break. MR.OSSORIO: If you could just do two things real quick. Todd Grup is not going to be here. We can strike him off. CHAIRMAN JOSLIN: Strike him off. MR. OSSORIO: And if I can just give -- have three minutes of Mr. Sinclair, then we could take a break for 15. Is that okay with the Page 58 October 21,2009 court reporter? THE COURT REPORTER: Yes. CHAIRMAN JOSLIN: Also, Mr. Bain, did he ever show up? (No response.) CHAIRMAN JOSLIN: No. You want to strike him off then. Okay, go ahead. MR. OSSORIO: Several months ago we had a -- Mr. Sinclair go in front -- you have it in front of you. He was put on probation and he was ordered to go ahead and provide the county with certain items to keep himself on probation. Unfortunately Mr. Sinclair, we're not able to find him. He is no longer around. I cannot get his information, which required (sic) by the order of the findings of fact. So therefore, I wish to make a motion that he's on probation, that we revoke his Collier County electrical license and let me proceed with the state to revoke his state registration. CHAIRMAN JOSLIN: He hasn't done nothing with the credit application -- MR. OSSORIO: Nothing. CHAIRMAN JOSLIN: -- and what we asked him to do, right? MR. OSSORIO: Nothing. CHAIRMAN JOSLIN: Okay, then I just need a motion. MR. WHITE: Just point of -- so moved, but -- well, let me see if I clearly understand what the desired motion is, is to revoke the current license that's on probation. And are we making a recommendation to CILB? MR. OSSORIO: I don't think -- when he is a state registered contractor, it's not more of a recommendation, it's more of I'll write a letter to the executive director, letting him know that his license certificate has been revoked; therefore, his state registration needs to be the same. I don't know what the process is. It might go to the CLB, it Page 59 October 21, 2009 might be something administrative that the CLB executive does. But that's going to be up to them. MR. WHITE: So the form of the motion would be to -- as to the second part to direct the staff to send an appropriate communication of what our action is to the proper licensing authority. MR. NEALE: Right. MR.OSSORIO: Yes. CHAIRMAN JOSLIN: Yes. MR. NEALE: Yeah. And pursuant, you know, to the order issued, whatever the date of the original order was that his license is revoked, because there was a specific provision as to revocation in that order. MR. WHITE: And the form of the motion, I would assume, either it being read into the record, if approved, will include those kinds of findings of fact as to the specifics. But for the purposes of making the motion, it is to revoke and direct staff. CHAIRMAN JOSLIN: Yes. MR. WHITE: So moved. MR. HORN: Second, Horn. MR. LANTZ: Second, Lantz. CHAIRMAN JOSLIN: Motion and a second. All in favor-- discussion? (No response.) CHAIRMAN JOSLIN: All in favor, signify by saying aye. MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? Page 60 October 21, 2009 (No response.) CHAIRMAN JOSLIN: No. Motion carries unanimously. Okay, now we can take a break, right? Okay, it's 10:41. How about till -- 10 minutes, 15 minutes? What do you need? Ten-minute break? Okay, 10 minutes so it would be 10 to 11 :00, please. (Recess. ) CHAIRMAN JOSLIN: I'll call to order the Contractor Licensing Board, October 21 st meeting. Next item on the agenda are three -- I assume three public hearings. Case No. 2009-11, 2009-12 and 2009-13. Are all the occupants -- I mean, all the respondents present, all three cases? They are all here. MR. OSSORIO: No. CHAIRMAN JOSLIN: I just have a -- I'm sorry? MR. OSSORIO: I believe that Mr. Atchison is not here. Case No. 2009-11. MR. NEALE: Could you call him by name just to make sure that we have it on the record? CHAIRMAN JOSLIN: Okay. Patrick H. Atchison, are you present? (No response.) CHAIRMAN JOSLIN: No. MR.OSSORIO: Do you want to wait and then go down? CHAIRMAN JOSLIN: We'll skip and then we'll come back, in case he shows up. MR. OSSORIO: That's fine. CHAIRMAN JOSLIN: Okay, I have something to read first as far as how these proceedings go. And I'd like all respondents to pay attention just for a moment, please, while I read this to you. This is basically the proceedings of how we conduct these cases. The hearings are conducted pursuant to the procedures set out in Collier County Ordinance No. 90-105, as amended, in the Florida Page 61 October 21, 2009 Statutes, Chapter 489. These hearings are quasi judicial in nature. Formal rules of evidence shall not apply. Fundamental fairness and due process shall be observed and shall govern the proceedings. Irrelevant, immaterial or cumulative evidence shall be excluded, but all other evidence of the type commonly relied upon by a reasonably prudent person from the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of the State of Florida. Hearsay evidence may be used for the purpose of supplementing or explaining any evidence, but shall not be sufficient by itself to support findings, unless such hearsay would be admissible over objection in civil actions in court. The rules of privilege shall be effective to the same extent that they are now, or hereafter may be recognized in civil actions. Any member of the Contractor Licensing Board may question any witness before the board. Each party to the proceedings shall have the right to call and examine witnesses, to introduce exhibits, to cross-examine witnesses, to impeach any witness, regardless of which party called the witness to testify, and to rebut any evidence presented against the party. The chair person or -- myself, or the vice-chairman, Mr. Lykos, shall have all the powers to conduct the proceedings of the hearing in full, fair and impartial manner, and to preserve order and decorum. The general process of the hearing is for the county to present an opening statement where it sets out the charges and in general terms how it intends to prove them. Respondent then makes his or her opening statements, setting out in general terms the defenses to the charges. The county then presents its case in chief, calling witnesses and presenting evidence. The respondent may cross-examine these witnesses. Page 62 October 21, 2009 Once the county has closed its case in chief, then the respondent puts on his or her defense. They may call witnesses and do all the things described earlier; that is, call and examine witnesses to introduce exhibits, cross-examine witnesses to impeach any witness, regardless of which party called the witnesses to testify, and to rebut any evidence presented against the party. After the respondent's put on his or her case, the county gets to present a rebuttal to the respondent's presentation. When the rebuttal is concluded, then each party gets to present closing statements in which the county gets a second chance to rebut after the respondent's closing argument. The board then closes public hearing and begins deliberations. Prior to beginning deliberations, the attorney for the board will give them in (sic) charge, much like a charge to a jury, setting out the parameters on which they base their discissions. During deliberations the board can ask for additional information and clarification from the parties. The board will then decide two different issues: First whether the respondent is guilty of the offenses charged in the administrative complaint of what will be taken in this matter. If the respondent is found guilty, then the board must decide the sanctions to be imposed. The board attorney at this point will advise the board the sanctions which may be imposed and the factors to consider. The board will discuss sanctions and take a vote on those. After the two matters are decided, the chair, or in absence the vice chair, will read a summary to the order to be issued by the board. This summary will set out basic outline of the order, but will not be exactly the same language as the final order. The final order will include full details required under state law and procedures. Everyone kind of understands where we're going here with this? Okay, I'll make one quick comment before we start the first case. We've been asked by the person that carries on the video that Page 63 October 21,2009 being very unfamiliar with all the faces and the voices here, if as we're getting into the conversations and the questionings, if each one of the board members would please raise their hand, that way the camera can zoom in on your conversations and we can be physically seen on television. As you all know, we are on TV. So okay, with that said, is that by chance Mr. Atchison? MEMBER OF THE AUDIENCE: No, sir. CHAIRMAN JOSLIN: No, okay. Then I'm going to go to the next case. Case No. 2009-12. License number is 12053. Alva Lee Porter, are you present? MR. PORTER: Yes. CHAIRMAN JOSLIN: Could you please come to the podium and be sworn in, please. (Mr. Jackson, Mr. Porter and Mr. Ketis were duly sworn.) THE COURT REPORTER: Your name is? MR. KETIS: James Ketis. THE COURT REPORTER: Could you spell it, please. MR. KETIS: K-E-T-I-S. CHAIRMAN JOSLIN: Mr. Porter, you have an administrative complaint that was filed against you regarding a -- contracting to do any work outside the scope of his or her competency as listed on your competency card and as defined as ordinance or as restricted by the Contractors Licensing Board. Are you aware of the count? MR. PORTER: Yes. CHAIRMAN JOSLIN: Okay. I'll open it up with Mr. Jackson. Are you going to present this? MR. JACKSON: Yes. CHAIRMAN JOSLIN: If you would, give your opening statements, please. MR. JACKSON: My opening statement? On August 25th of this year I received a call from a structural inspector employed by the City of Marco Island, Kim Ferris, Page 64 October 21, 2009 regarding unpermitted concrete restoration being performed at 901 South Collier Boulevard. It is a commercial building, four-story; stilted on the ground floor and three finished stories there, four-story building. The county will show evidence that the work being performed on this structure is out of the scope of a painting contractor. General contractor would be required for the permitting. General contractor or concrete contractor would have to physically do the work that was being performed by employees of Mr. Porter. CHAIRMAN JOSLIN: Okay. Mr. Porter, would you like to give an opening statement to us, please. MR. PORTER: Yes, we had -- Mr. Jackson is absolutely right about everything he's saying there. We're not really here to dispute the charges. I would like to say, we've been in business 37 years. We've had a great track record in Collier County. There were extenuating circumstances with this building was why our normal protocol was not followed. And Jim Ketis is my business partner, he's in charge of Collier County. And I'll let Jim go ahead and explain why this -- MR. KETIS: Well, basically what-- CHAIRMAN JOSLIN: Just for the record, what is your name again? MR. KETIS: James Ketis. CHAIRMAN JOSLIN: Okay. MR. KETIS: And basically my standing on this is we had a painting contract for the building, including that was to remove spray crete off all the walkways, which does fall within our license. My guys started the project middle of August, removing the spray crete. Unfortunately I had a death in the family. I went to Europe. They called me in Europe, told me that when they were removing the Page 65 October 21, 2009 spray crete there was spalling areas that was coming up with it from rebar corrosion. My direction to them, which understandably now were wrong, were just take off whatever comes off and keep going till I get there. And once we get there we'll follow the protocol which is we'll get the board to decide on an engineer and then we'll bring in a GC to take care of the spalls and we can continue on with the painting. We didn't put anything back. All we did was remove areas that were spalling. I understand that's not part of it. But at that point I'm thinking just open everything up and then when I get back we'll get an engineer like we do on every other building down here and then we'll get the GC to fix it so we can continue on. CHAIRMAN JOSLIN: What kind of tools were you using when you were removing it? MR. KETIS: I was using chipping hammers with the -- to remove the spray crete, I was using a six-inch chisel on it, trying to get it 0 ff. And unfortunately the spray crete, all the areas that were spalling were attached to the spray crete. When the spray crete was coming up was affecting the open areas. But I did tell them, clean up the areas till further discussion till I get back. CHAIRMAN JOSLIN: Okay. Mr. Jackson, you want to continue with your presentation of the case? MR. JACKSON: Certainly. I think by the testimony of Mr. Porter that we had just heard, I think he -- I think he admitted to the violation. A general contractor is required for a building permit. Only a general contractor can get that permit because of the height of the building and the structural aspects of the work. A painting contractor certainly may -- if spray crete is part of the process to prepare the building for painting, that very well may be. But we did get down into Page 66 October 21, 2009 the structural aspects of those elevated decks. MR.OSSORIO: Mr. Chairman, the county rests its case. We're not going to present any more evidence other than what's in the packet. MR. ZACHARY: Mr. Chairman, we need to admit the packet into evidence. CHAIRMAN JOSLIN: Right. I need a motion to enter Case No. 2009-12 into evidence. MR. LANTZ: So moved, Lantz. MR. JERULLE: Second, Jerulle. CHAIRMAN JOSLIN: Motion and a second. All in favor? MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) CHAIRMAN JOSLIN: Motion carries. Pleasure of the board? Questions? MR. WHITE: If I may, Mr. Chairman? One of the statements in the summary, Mr. Jackson, is in the last paragraph that there had been a same violation in May of 2007. And that seems to be the reason why this case is brought to our board. Two parts question. What proof do you have other than what you've told us in the summary of what that violation precisely was? And help me to understand why the second violation is what brings it here as an administrative complaint. I probably should know the answer to the second one, but -- Page 67 October 21, 2009 MR.OSSORIO: I'll answer that second question, because that's not Ian Jackson's duty. Under the code, it explicitly says that the contractor licensing supervisor shall do the investigation to determine if an administrative complaint is warranted. I look at that, I look at the evidence, I look at the priors, and I also look at the wave of who's complaining and if there's any restitution or there's any financial harm. And that's how I determine what cases are brought before the licensing board. Other than that, it is my jurisdiction and my responsibility to do so, not the board's. MR. WHITE: Okay. Can either of you respond to the first part of the question about what May, 2007 was all about? MR. OSSORIO: Ian can tell you that. MR. JACKSON: That was my case as well. I believe they had a painting contract. At a minimum I think it was a four-story building where they were refurbishing engineered elevated concrete decks, where I cited them for unlicensed concrete or unlicensed general contracting and commencing work with no building permit. And they were cited at that time because A, it was their first offense, and B, there was no financial harm to a homeowner or a customer of theirs. Obviously when there's an identical violation on an adjacent property, I was left no choice but to schedule this meeting, per Michael Ossorio. MR. OSSORIO: There are two issues: One is the -- there were two cases: One for working without a license that was done in-house by administrative. And two, we conducted the investigation, we issued a verbal warning, reprimand to this contractor not to work outside the scope of his or her license. So there were two issues: One is unlicensed, but we took care of, administrative in our office, that was paid. And two, we issued a verbal warning about working outside the scope of his or her license. Page 68 October 21,2009 MR. WHITE: My point of my two questions was to get at whether the mention of the same violation was intended to justify bringing the case to the CLB or it was also potentially being mentioned for the purposes that it might be an aggravating factor in any penalty that would be imposed. So I'm just trying to understand what kind of brought us here today. MR. OSSORIO: That information is just for informational purposes only. You may do whatever you wish with that statement. That is not an aggregated issue to me. The aggregated issue is the City of Marco Island is pretty upset and they want action taken. So they were the person that actually made the initial complaint and we upheld the administrative aspect of it and bring it to the licensing board, so that's why we're here today. MR. WHITE: If I may of the respondent, and then I'm hopefully done. CHAIRMAN JOSLIN: That's okay, go ahead. MR. WHITE: What floor of the structure were you doing the work on? Four decks, I understand? MR. KETIS: Four floors, correct. MR. WHITE: All four? MR. KETIS: To an extent. I mean, some of them more than others. We had to remove all the spray crete on all the walkways. MR. WHITE: Got it. MR. KETIS: That's how we started. MR. WHITE: And as far as the May of2007, do you have any information about that, or should I -- MR. KETIS: That was a deck of the building called the Essex. It was a four-story. They removed all the screen cages, the contractor, had us come in there and apply waterproofing membrane on the decks. And that's what we did. And we found one spalling area that was 16 inches by two coming down that we covered up, and that's when we came in. That was one of my ex-competitors, ex-employers that Page 69 October 21,2009 actually was the informant on that one. But that's what that was. MR. WHITE: What I'm trying to get at, sir, is there's two ways of seeing this: One is that that is what led you to understand the May event of 2007. MR. KETIS: Right. MR. WHITE: Of what would be required now. And I understand the exigent circumstances of being out of the country, et cetera, et cetera. And I appreciate you being here essentially saying you're not contesting it. What I'm kind of looking down the pipeline here is where's strike three? MR. PORTER: Well, if I could answer that. MR. WHITE: And I'm not trying to talk about speculative stuff, I'm just saying, once, twice. MR. KETIS: Well, and also, this particular time, the second time, there was no purpose meaning to it as far as me doing anything intentionally. Okay, me removing spalling areas, concrete that's coming off the spray crete, I just assumed -- and it's a wrong thing to say assumed -- that just keep going, removing the spray crete, whatever comes off, when it comes off then we go our merry way. THE COURT REPORTER: Mr. Ketis, would you slow down? MR. KETIS: Oh, I'm sorry. THE COURT REPORTER: And please get on the microphone. MR. KETIS: I'm sorry. Sorry about that. So it was no intention there. And my assumption was as long as the concrete that was already spalling was coming out, we can go ahead and remove that and not fill anything in, not touch rebars, not cut rebars until we get an engineer in here with a licensed GC to do the work so we can continue on with the painting. MR. WHITE: Well, let me just kind of point out to you that what a painting contractor talks about doing, using spray equipment as well as hand tools to finish both exterior and interior work, sandblasting, Page 70 October 21, 2009 waterproofing and may clean and paint roofs. So there's a pretty bright line on what it is that is permissible, even in the removing of spray crete. And so I'm encouraging you that if they're going to be using these kind of power tools, you're crossing the line. MR. KETIS: Okay. CHAIRMAN JOSLIN: Well, let's just say one quick thing. Mr. Julie (sic). Let Mr. Julie speak, please. MR. JERULLE: When I first saw the photos, it appears that you're also, besides using a chipping hammer, you're using a saw? MR. KETIS: Right. MR. JERULLE: So you're taking more off than what is just coming up with the chipping hammer. MR. KETIS: Well, we're squaring up the areas that were coming up -- MR. JERULLE: You're using a saw to cut concrete. MR. KETIS: Correct. MR. JERULLE: Did you shore the platforms below? MR. KETIS: Yes. MR. JERULLE: Okay. So you shored the floor below the floor that you were working on. MR. KETIS: All three floors. MR. JERULLE: There again, you wouldn't normally do that if you were just taking off what is coming off. MR. KETIS: Right, right. MR. JERULLE: Understand what I'm saying? MR. KETIS: I understand what you're -- MR. JERULLE: This is premeditated in a sense that you knew to shore the floors because you're cutting structural -- MR. KETIS : No, no, I've got to reinstate (sic) that, okay? The floors are shored now okay, due to engineer's specifications. MR. JERULLE: So they weren't at the time. Page 71 October 21,2009 MR. KETIS: No, they were not. MR. JERULLE: Okay. Well, then that brings up a separate Issue -- MR. KETIS: Okay. MR. JERULLE: -- that you didn't know what you were doing. MR. KETIS: Right. MR. JERULLE: And all the more reason why that you should be here is that you're cutting a structural deck and you're putting people's lives in danger by doing so and not shoring up the concrete. MR. PORTER: If I could add one thing to that. The earlier incident we pretty much got a good knowledge of what we are to do and are not to do. What we haven't mentioned was Jim called me because he said, I've got to go out of town, my father's dying, I don't know how long we'll be gone. I said, I can come in, take over of everything. He says, don't worry about it, I can keep in touch with everybody by phone, the guys know what to do, so on, so forth. He gets the call in Greece. The last conversation he had with our foreman, everything's coming up. We didn't realize that the guys were going ahead and taking it upon themselves to go ahead and square it up and do the different things, because they're used to engineers coming in, doing the things. They didn't have -- they didn't follow protocol. In the meantimes, he's in the mountains, cell phone quits working -- MR. JERULLE: I understand that. But I don't accept it. I understand it but I don't accept it. It is your job as the owner of this company to be aware of what your workers are doing. Especially if your workers are putting other lives in danger. And that's what they're doing by cutting structural concrete decks on four floors without shoring it. CHAIRMAN JOSLIN: Kyle, would you like to speak? MR. LANTZ: I just have two things: One, I think you probably Page 72 October 21, 2009 know what you're doing, and I would recommend just get a general contractor's license and you won't be here again. And my next question is to Michael, I guess, is what's the staff recommend for this? MR. L YKOS : We're not there yet. MR. NEALE: We're not to that point. CHAIRMAN JOSLIN: We're not to that point yet. MR. NEALE: Because there's been no finding of any liability. CHAIRMAN JOSLIN: Through your own testimony, I'm getting the picture that you're admitting that you are guilty of the offense. MR. KETIS: Oh, yes. CHAIRMAN JOSLIN: Which -- you are Mr. Porter? You are the license holder? MR. PORTER: Yes. CHAIRMAN JOSLIN: And you are what capacity in the company? MR. KETIS: Vice president. CHAIRMAN JOSLIN: Vice president. MR. KETIS: Correct. CHAIRMAN JOSLIN: But Mr. Porter, you hold the license? MR. PORTER: Yes. CHAIRMAN JOSLIN: Just one quick question for you then. When Mr. Ketis had to leave town, and normally I assume this -- those types of responsibilities -- supervisor call them superintendents, call them vice president, call them -- when he left town, did you realize that the burden now falls totally on you because of your license and because you are the license holder? MR. PORTER: Well, with-- CHAIRMAN JOSLIN: Not to say because you call your vice president and say well, I can get this handled over the phone, don't worry about it. That's your first concern that you should have had. You should have been very worried about it because it is your license Page 73 October 21, 2009 and your job. MR. PORTER: Well, I really wasn't that aware of the scope of the work they were doing on that particular -- CHAIRMAN JOSLIN: Why not? MR. PORTER: -- or I would have came down. CHAIRMAN JOSLIN: Why weren't you aware of that? MR. PORTER: Well, Jim's full partner in the business. He takes care of the -- he don't give me every detail of every job. CHAIRMAN JOSLIN: I'm not going to buy that. MR. KETIS: You're in Indiana. MR. PORTER: I'm in Indiana. CHAIRMAN JOSLIN: You're in Indiana. MR. PORTER: I'm in Indiana. CHAIRMAN JOSLIN: So neither one of you are at the job site. MR. KETIS: No, I'm here. MR. PORTER: That's what I'm saying when he-- CHAIRMAN JOSLIN: Who went to Greece? MR. PORTER: When he said he had -- MR. KETIS: Oh, I went to Greece, yes. MR. PORTER: -- to go to Greece, he calls me. I said, I'll come down. He said he didn't think it was necessary, the guys knew what to do. CHAIRMAN JOSLIN: So ifhe went to Greece and you're in Indiana, so there's nobody at the job, correct? MR. PORTER: Well, we've got-- MR. KETIS: We had a superintendent-- MR. PORTER: We've got the same superintendents we've had for 15 years. And between the communication on the phone, we felt it would be okay, but we were mistaken. CHAIRMAN JOSLIN: Okay. Any other questions from the board? (No response.) Page 74 October 21, 2009 CHAIRMAN JOSLIN: County rests its case. Any other respondents, any other rebuttals to anything that's been said? (No response.) CHAIRMAN JOSLIN: No. Okay, then I think we've pretty much got this one. Any further questions from the board members? (N 0 response.) CHAIRMAN JOSLIN: I'm going to ask for a motion. Give your closing statements, Ian? MR. JACKSON: No, the county will rest. I'll be available for questions if anyone has them, though. CHAIRMAN JOSLIN: I don't see a reason -- I don't see any questions on the board coming up so I don't -- MR. JERULLE: No, I have a question. I'm sorry, Ian. The -- he mentioned -- I'm sorry, Mr. Kennette? MR. KETIS: Ketis. MR. JERULLE: Ketis, I'm sorry. Mentioned that the project is shored now. Have you been back to the proj ect? MR. JACKSON: I have not. CHAIRMAN JOSLIN: Is it completed? MR. KETIS: No, there's an engineer on-site now doing weekly inspections, and they have a GC doing all the spallings and -- CHAIRMAN JOSLIN: I assume then the building has still not been painted? MR. KETIS : No, it hasn't. We're actually in the middle process right now doing the front of it. Because there's no -- nothing in the front. The work was all in the back. CHAIRMAN JOSLIN: Does this size project require a permit? MR. KETIS: Permits have been pulled. CHAIRMAN JOSLIN: Permits have been pulled? MR. KETIS: Oh, yeah. Page 75 October 21, 2009 CHAIRMAN JOSLIN: Any other closing statements from you? (No response.) CHAIRMAN JOSLIN: Nothing. Okay, I'll ask for a motion and we'll close the public hearing. MR. L YKOS: Motion to close the hearing, Lykos. MR. WHITE: Second, White. CHAIRMAN JOSLIN: Motion to close the public hearing, a motion and a second. All those in favor, signify by saying aye. MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) CHAIRMAN JOSLIN: Motion carries. Okay, if you would like you can sit down for a moment, we're going to deliberate here and come up with our findings here. MR. NEALE: Let me just -- CHAIRMAN JOSLIN: Mr. Neale? MR. NEALE: Yeah, what I'll do today, because we have two cases back-to-back, is essentially I'll just do this the one time and if the board has any questions after the subsequent case, certainly please ask it. But in the case of -- for the interest of expediting the process today, I'll do that. The board shall ascertain in its deliberations that fundamental fairness and due process were afforded to the respondent in this and all the cases. However, pursuant to Section 22-202.G.5 of the Collier County Ordinance, the formal Rules of Evidence as set out in Florida Statutes do not apply. Page 76 October 21, 2009 The board shall consider solely evidence presented at this hearing in consideration of the matter. The board shall exclude from its deliberations irrelevant, immaterial and cumulative testimony and shall admit and consider all other evidence of a type commonly relied upon by a reasonably prudent person in the conduct of their affairs. As noted previously in other cases, hearsay may be used to explain or supplement any other evidence, but hearsay by itself is not sufficient to support a finding in this or any other case unless admissible over obj ection in civil court. The standard of proof in this case in particular and both cases being heard today where the respondent may lose his or her privileges to practice his or her profession is that the evidence presented by the complainant must prove the complainant's case in a clear and convincing manner. This burden of proof on the complainant is a larger burden than the preponderance of evidence case set out as a standard in normal civil cases. The standard in evidence are to be weighed solely as to the charges set out in the complaint, is Ordinance Section 4.1.2 in both cases, which is contracting to do any work outside the scope of his or her competency as listed on his or her competency card and as defined in this ordinance or as restricted by the Contractors Licensing Board. In order to support a finding that the respondent is in violation, the board must find facts to show that the violations were actually committed by the respondent. The facts must also show to a clear and convincing standard the legal conclusion that the respondent was in violation of the relevant sections of the Collier County ordinance. These charges are the only one (sic) that the board may decide upon, as these are the only ones that the respondent has had the opportunity to prepare a defense. Any damages rewarded must be directly related to those charges, any fines imposed and so forth. It may not be for matters not related. The decision made by this board shall be stated orally at this Page 77 October 21,2009 hearing and is effective upon being read by the board. The respondent, if found in violation, has certain appeal rights to this board, the courts and the State Construction Industry Licensing Board, as set out in the statute in Florida Statutes and Rules. If the board is unable to immediately issue a decision after the hearing because of questions of law or other matters of such a nature that a decision may not be made at this hearing, the board may withhold its decision until a subsequent meeting. The board shall vote upon the evidence presented on all areas, and if it finds the respondent in violation, shall adopt the administrative complaint. The board shall also make findings of fact and conclusions of law in support of the charges set out in the administrative complaint. Please go ahead with your deliberations. CHAIRMAN JOSLIN: Okay. What do you think, guys? Mr. Julie (sic). MR. JERULLE: Well, I'd like to say that, I don't know, to the non-contractors on the board and to the contractors on the board that haven't built a four-story building that I look at these pictures and I cringe. There should be no one in this building when this work is going on. And for it not to be shored is a life safety issue. F or the building inspector to raise this alarm so to speak and stop them is absolutely correct. And for this to be done is -- I'm outraged. I'm outraged. For this work to be done without it being shored up is a life safety issue. And I just don't know that this person should ever work in this county again. I don't know whether he should or not, I'm just raising the point, that cutting this much concrete out from a deck is unbelievable. It's a composite system. It's what holds up the building. And you're just cutting it away. CHAIRMAN JOSLIN: If the fourth floor would have by some unstroke of luck collapsed, it probably would have taken out the other two. Page 78 October 21,2009 MR. JERULLE: Well, if he's done it on all four floors, I'd be more worried about the floor underneath where all the weight is. I'm very concerned. CHAIRMAN JOSLIN: I'm totally in agreement with that statement, for sure. MR. L YKOS: Well, the first thing we have to do is determine guilt. And the respondent has already acknowledged that. So I'll make a motion that we find the respondent guilty of Count 1. CHAIRMAN JOSLIN: I have a motion. Do I have a second? (No response.) CHAIRMAN JOSLIN: I'll second the motion. Motion and second. Any discussion on the motion? (No response.) CHAIRMAN JOSLIN: All in favor of the motion, signify by saYIng aye. MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) CHAIRMAN JOSLIN: Motion carries. MR. NEALE: Since the board found the respondent in violation, the board shall consider and order sanctions under the parameters set out in Collier County ordinance and in Florida Statutes. The sanctions which may be imposed include: The revocation of the Certificate of Competency; suspension of the Certificate of Competency; denial of issuance or renewal of Certificate of Page 79 October 21, 2009 Competency; a probation of reasonable length, not to exceed two years, during which the contractor's contracting activities shall be under the supervision of the Contractor Licensing Board; and/or participation in a duly accredited program of continuing education; probation may be revoked for cause by the board at a hearing noticed to consider said purpose; the board may order restitution; the board may impose a fine not to exceed $10,000 per violation; they may issue a public reprimand; they may impose a reexamination requirement; may deny the issuance of permits or require issuance of permits with conditions; and they may charge reasonable legal and investigative costs. In imposing these sanctions the board shall consider five elements: One, the gravity of the violation; two, the impact of the violation; three, any actions taken by the violator to correct said violation; any previous violations committed; and any other evidence presented at the hearing by the parties relevant as to the sanction that is appropriate for the case, given its nature. Board also shall issue a recommend penalty to the State Construction Industry Licensing Board. That penalty may include a recommendation of no further action, a recommendation of suspension, revocation or restriction of the registration, or a fine to be levied by the state board. CHAIRMAN JOSLIN: Okay, something that I need to read to you? MR. NEALE: No. MR. L YKOS: Not yet. CHAIRMAN JOSLIN: Not yet? Found guilty? MR. NEALE: No. MR. L YKOS: Terry, I've never built a four-story building, so I'm relying on your expertise on this one. MR. JERULLE: Well, as I said, without studying the plans or visiting the site, I mean, just looking at these pictures and the fact that Page 80 October 21,2009 the building is shored now and the fact that the building does have a structural engineer there overseeing the repairs, and the fact that they admitted guilt and the fact that they've done this work, and it's no small amount of work that they've done. If you look at the pictures, you can see that there's concrete saws along with chipping around all of the rebar. This didn't come up by chipping up spray crete -- CHAIRMAN JOSLIN: No. MR. JERULLE: -- at all. This is a concerted effort to remove structural concrete, okay, by an unlicensed contractor in this regard. And without a structural engineer and without having the floor shored or re-shored. This is to me a -- I would not take this very lightly. This is a serious offense. I would never allow my people or my subcontractors to be on these floors during this circumstance without it being shored up. MR. L YKOS: I can tell the rest of the board, in the work that I do I have come across proj ects where we expose structural damage, and we stopped immediately, cleaned up the job site and brought an engineer in before we did anymore work. Because what you don't know is and what you think you're doing is preparing the site for something, you could cause more damage in what you think you're preparing for, because you're not an expert at that work. So I don't know the extent of the construction that Terry does on four-story construction, but I do know that the way it was handled was inappropriate. They come across something that's outside the scope of their expertise, you stop immediately, you clean up the job site. Doesn't matter if there isn't anybody around that can supervise the work, you stop and you back off and you bring in the experts. And that's not what was done. And the fact that they went through it previously? And Page 81 October 21, 2009 fortunately it was a small area and there should have been some protocol within this company that if we ever chip up spray crete and we get down into the deck and expose rebar, everybody stop, everybody get off the job, get an engineer on site immediately. As a matter of fact, I'm surprised that a company like this doesn't even have an engineer that they can call immediately because of the kind of work that they do. That they don't have an engineer that they're associated with that they call immediately when a situation like this arises so they've got some guidance, they go to the board of directors for the condo association, they go to the building department, they have an engineer and they're proactive about it. In this case, I'm going to go out on a limb here, I would expect that they were probably going to continue on with the work if they hadn't been stopped. CHAIRMAN JOSLIN: Oh, yes, there's no doubt about that. I mean, that was pretty much clearcut. I mean, if there wouldn't have been someone to stop that job, it may be done by now and covered it. I have to agree with Terry, it's totally -- I mean, this is a very serious offense. I mean, let's just I guess praise the Lord that nothing did happen there. But if it did, it could have been a real serious situation. And I just make sure -- we want to make a point here of letting this company know that this is not going to -- that's not going to work with the board at all. Is there any pleasure of the board as far as any ideas? Or what's the recommendation of staff? MR. JACKSON: The county's recommendation is a probationary period of 12 months, $10,000 fine and $1,000 investigative costs, both of which to be paid within 30 days. CHAIRMAN JOSLIN: And if it's not paid within 30 days? MR. JACKSON: Revocation of the license. MR. WHITE: Mr. Chairman? Page 82 October 21, 2009 CHAIRMAN JOSLIN: Yes, sir, Mr. White. MR. WHITE: As much as I think a fine communicates outrage, what I'm concerned about is the period of time that these folks are essentially on a leash. And notwithstanding the staffs recommendation, I'd like to see the probationary period be the maximum of two years, and I'd consider reducing the fine to maybe 5,000. But one of the conditions I think in that probation -- and I understand it's supervised by contractor licensing -- but I would want a specific condition in our order that for all jobs in Collier County, municipalities and unincorporated, that the county would be notified of all the jobs that they're working on so that they could be aware of what they're doing and monitor their performance for at least the next 24 months. Like I said, it's the third strike out there that we may not be so fortunate that someone isn't harmed. I understand that they may have not operated within the realm of their protocols. And I think a $5,000 fine communicates that as effectively as the maximum. In my mind exchanging that for 24 months of supervision. And lastly, as to the recommendation to Contractor Licensing at the state, I would think any fine that they would think appropriate could be added on as well. CHAIRMAN JOSLIN: This I believe is just a county license here, or is it a commercial? This is the county license, right? MR. JACKSON: (Nods head affirmatively.) CHAIRMAN JOSLIN: So it doesn't go to the state, other than registered. MR. WHITE: Going by what Mr. Neale had informed us of. But if that's part of it, then I'd make that as part of the motion is that the recommendation would be that any fines that they felt would be appropriate should be imposed without any specific recommendation from us. Page 83 October 21,2009 CHAIRMAN JOSLIN: I'm in agreement with everything that you've said other than I think that under the circumstances and the severity of this case, I think the $10,000 fine is definitely in line. I don't think it's enough, quite honestly. That's my opinion. And the two-year probation. And naturally under the supervision of the staff. Mr. Julie (sic)? MR. JERULLE: I agree with you. In my mind I'm still-- you know, one of the things that we have to be very careful about is taking away somebody's ability to work. And when you talk about taking away somebody's license, that's a big deal. But in my mind in this case I'm still thinking about it. So I'm not -- I'm not saying I'm there yet, but I don't know that I would want to reduce the fine. But I think it's a very good idea about continuing the probation period for two years. I like that idea. CHAIRMAN JOSLIN: There is no testing involved, is there, for painting? MR. OSSORIO: Yes, it's a very hard test, actually. It's one of the harder ones to take. To be a licensed painter you have to take a trades test and you have to take a business procedure test. But I don't think in nature of the severity and how long he's been in business, I don't -- testing would be something that's probably not adequate at this time. It's a waste. But I do recommend 24 months probation. But I kind of -- if you're going to have the gentleman call me every time he goes to ajob site, I wish it was just for a commercial site -- CHAIRMAN JOSLIN: Right. MR. OSSORIO: -- versus residential. CHAIRMAN JOSLIN: Well-- MR.OSSORIO: Something that, you know, ifhe's going to paint somebody's house, you know, I don't have -- I'm too busy for that, so is Ian. Page 84 October 21, 2009 So if it's going to be a commercial site -- CHAIRMAN JOSLIN: Right. MR. OSSORIO: -- then maybe if that's the board's decision, we can proceed with that. CHAIRMAN JOSLIN: I would definitely go along with that as far as commercial units goes. You can't go and check every residential house. I mean, obviously he could do some concrete work on a residential house also; however, it's not as detrimental as a four-story building, or a 20-story building. MR. WHITE: Mr. Chairman, I'd amend my motion to $10,000 and to notification of all commercial structure jobs. MR. LANTZ: I'm just curious that if staff is going to go and visit all these jobs, are they going to get reimbursed for the admin. time for it? MR. OSSORIO: Well, I don't think -- we have done this in the past, the board has elected. It's not actually we're going to go out there and visit the site. It's more of having the contractor call us and let us know and give us the option to go out. We've had a company in the past, a concrete company that was very similar to this nature, and we would go out one out of three times. And that's not a burden, due to the fact that we have four investigators out in the field anyway. So that doesn't concern me. CHAIRMAN JOSLIN: I have a motion. MR. L YKOS: Mr. White, was that a formal motion that you made? MR. WHITE: Yes, motion was to -- 24 months probation, staff be notified of all commercial painting jobs, and a fine of $10,000 paid within -- 30 days, was it, Mr. Jackson? MR. JACKSON: Correct, 30 days. MR. WHITE: And if not, both the fine of 10,000 and the costs for prosecution of 1,000, paid within that 30 days, the license would be revoked and that a letter from the board go to contractor licensing Page 85 October 21,2009 at the state. MR. NEALE: It's included in the order when submitted to the state, so -- MR. WHITE: With a recommendation of any fine that they feel may be appropriate. CHAIRMAN JOSLIN: Being a county contractor, there is no license to the state other than registration. MR. NEALE: Uh-huh. CHAIRMAN JOSLIN: Right? MR. NEALE: Yeah, but we still -- it would still be transmitted. If he's registered with the state, it would still be -- CHAIRMAN JOSLIN: Right, so they're noticed. MR. NEALE: Yeah. CHAIRMAN JOSLIN: Okay. MR. L YKOS: Second, Lykos. CHAIRMAN JOSLIN: We got a second from Mr. Lykos. A motion and a second. Any further discussion? (No response.) CHAIRMAN JOSLIN: Call for the vote. All those in favor, signify by saying aye. MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) CHAIRMAN JOSLIN: Motion carries unanimous. In the Case No. 2009-12, this cause came on or before public Page 86 October 21, 2009 hearing before Contractor Licensing Board on -- what is today? MR. NEALE: 21st. CHAIRMAN JOSLIN: October 21 st -- for consideration of the administrative complaint filed against Alva Lee Porter, d/b/a Al Porter Commercial Painting, Inc. License No.2 -- I'm sorry, License No. 12053. Service of the complaint was made in accordance with Collier County Ordinance 90-105, as amended. The board, having at this hearing heard testimony under oath, received evidence and heard arguments respective to all appropriate matters, thereupon issues its finding of fact, conclusions law and order of the board as follows: That Alvin Lee Porter, d/b/a Al Porter Commercial Painting, Inc., is the holder of record of License No. 12053; that the Board of County Commissioners of Collier County, Florida is the complainant in this matter; that the board has jurisdiction of the person of respondent; and that Alvin Lee Porter d/b/a Al Porter Commercial Painting, Inc. was present at the public hearing and was not represented by counsel on today's date. All notices required by Collier County Ordinance No. 90-105, as amended, have been properly issued and were personally delivered. Respondent acted in a manner that is in violation of Collier County Ordinances and is the one who committed the act. That the allegations of fact as set forth in Administrative Complaint as to Count I, 4.1.2, contracting to do any work outside of the scope of his or her competency as listed on his or her competency card and as defined in this ordinance or as restricted by the Contractors Licensing Board are found to be supported by the evidence presented at the hearing. The conclusions of law alleged and set forth in the Administrative Complaint as to Count I, 4.1.2, are approved, adopted and incorporated herein, to wit: The respondent violated Section 4.2 -- 4.1.2 of Collier County Ordinance 90-105, as amended, in the performance of his contracting business in Collier County by acting in Page 87 October 21,2009 violation of the sections set out in the Administrative Complaint with particularity. Order of the board: Based upon the foregoing findings of fact and conclusions of law and pursuant to the authority granted in Chapter 489, Florida Statutes and Collier County Ordinance No. 90-105, as amended, by a vote of seven in favor and zero opposed, a majority vote of the board members present, the respondent has been found guilty in violations as set out above. Further, it is ordered by a vote of seven in favor and zero opposed, a majority vote of the board members present, that the following disciplinary actions and related order are hereby imposed upon the holder of Certificate -- Contractors Certificate of Competency No. 12053, and those sanctions are: He is found guilty, and ordered to: Number one, pay a fine of$10,000 and pay investigative costs of $1,000 within 30-day period. If these are not paid within 30 days, the License No. 12053 is immediately revoked. He is to be on 24-month probation period. And he will be required to report all commercial jobs that are under his supervision to Collier County Contracting Licensing Supervisor. And it's so ordered. Thank you. Need another break? THE COURT REPORTER: No, thank you. CHAIRMAN JOSLIN: Okay, moving right along. Is there a N eida L. White present? MS. WHITE: Yes. CHAIRMAN JOSLIN: Come to the podium to be sworn in, please. Mr. Kennette, you're going to present this case? MR. KENNETTE: Yes, I am. CHAIRMAN JOSLIN: Okay, you've been sworn in? (Ms. White, Mr. Kennette and Mr. Tom Smoot were duly sworn.) THE COURT REPORTER: May I have your name, please? Page 88 October 21, 2009 MR. SMOOT: Tom Smoot. S-M-O-O-T. CHAIRMAN JOSLIN: Neida L. White, you've been charged or violated (sic). This Administrative Complaint No. 2009-113 -- I'm sorry, -13. I need a motion to put this packet into evidence, please. MR. L YKOS: So moved, Lykos. MR. JERULLE: Second, Jerulle. CHAIRMAN JOSLIN: Motion and a second. All in favor, signify by saying aye. MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) CHAIRMAN JOSLIN: Motion carries. MR. OSSORIO: Mr. Chairman, just to make sure, this is unusual, but there is a -- in the packet there is a DVD in there that is presented in the packet exhibit. Would you want to -- can we categorize that as just the exhibit, or do you want to go ahead and make that Exhibit No.1? CHAIRMAN JOSLIN: It's part of the packet. Let's make it Exhibit No.1, because -- MR. NEALE: You can make it part of the same packet. MR.OSSORIO: It's part of the same packet? Okay, good. As long as it's in there, that's fine. CHAIRMAN JOSLIN: Okay. Is this going to be something in evidence reviewed? MR. OSSORIO: It's a video you're going to watch, probably. CHAIRMAN JOSLIN: Opening statements. Mr. Kennette. Page 89 October 21, 2009 MR. KENNETTE: Case No. 2009-13. This case is against Neida L. White, d/b/a Dave's Sprinkler Repair, Incorporated. On September 8th, 2009 a preliminary complaint was filed with our office by Dale Orphan of 797 Portside Drive, Naples, Florida, that he had contracted and made a deposit to have his sod replaced at his home, reinstalled by d/b/a Dave's Sprinkler Repair Service. This job was done and the video and the complainants are here, Mr. and Mrs. Orphan, to testify to the fact of the improper installation. MR. SMOOT: Mr. Chairman -- CHAIRMAN JOSLIN: Yes, sir. MR. SMOOT: -- members of the board, my name is Tom Smoot. I'm a lawyer. Please don't hold it against me that I come from Fort Myers. But it's my privilege to stand before you today representing Dave's Sprinkler Repair, represented in person by Neida White. As our opening, what I'd like to first comment on notably, the charge in the Administrative Complaint is contracting to do any work outside of the scope of his/her competency as listed on his/her competency card, and as defined in this ordinance or as restricted by the Contractors Licensing Board. Nothing about improper installation is the subj ect of this complaint. Now, specifically the competency card that Neida White/Dave's Sprinkler Repair had -- actually, they've had one in Lee County for seven years and in Collier County three years for irrigation. I understand that about 18 months to two years ago Collier County adopted a special classification, not one recognized under 489, but one that was passed by the Collier County Board of Commissioners that regulates landscaping separately to include sod laying, and so that someone in order to lay sod in Collier County does have to have that competency card in addition. Dave's Sprinkler Repair did not have that and they did lay sod for Page 90 October 21,2009 the Orphans, the complainants. Now, the only additional testing required for that landscaping competency is tree pruning safety. N eida White has sat for that exam and will be sitting for it again very soon. She drove up to Clearwater to take that exam and then will be going to Bonita to take it the next time, and is diligently pursuing getting licensed in that area. She just didn't know and she was wrong, she confesses that. She has paid the fines. She was given two citations and she paid both of them to the tune of $300 apiece. She does not contest in any way her guilt of this -- of either of these citations or of the administrative complaint allegation. She does, however, going back to October 10 of earlier this month, has initiated a civil lawsuit that governs -- that has jurisdiction over who owes who money. The Orphans are claiming they're owed money back. Dave's Sprinklers is claiming it is owed additional money. And I would ask you to defer jurisdiction to the court to resolve that issue. The court's a perfect venue, a perfect forum to hash this out fully and fairly for all the parties. So I stand before you saying that there is no contest to the charge, the fine has been paid, and would you please exercise your discretion to allow the court to hear this matter and determine who owes whom money as between -- in the private dispute between the Orphans and Dave's Sprinkler Repair. CHAIRMAN JOSLIN: Mr. Smoot, unfortunately in a civil case that is going to be set up or maybe is underway at the moment for litigation as far as for dollars and cents that are owed or who owes who really has nothing to do with this board. This board is strictly acting on a situation of that N eida has a license and right now it is a sprinkler license, and she was clearly doing sod work with a sprinkler license, which she acted out of the capacity of her license, which she admitted that count. So whatever transfers from that point on will be strictly on the Page 91 October 21, 2009 license issue of the case, not on mitigation of the case as far as legality says how many dollars are owed to who party. That you can fight out in court if you like. MR. SMOOT: Thank you. CHAIRMAN JOSLIN: You're welcome. MR. OSSORIO: Mr. Chairman, I just want to clarify a couple of things and rebut what Mr. Smoot has to say. As far as my recollection is, is that landscaping license has been required in Collier County for more than a decade. If you wish to see to my office, I will give you a password and it says that require a license (sic). Clearly hasn't -- the ordinance has not changed. Landscaping's always been required for that particular activity. But we'll set that in the record later, if you wish to come in the office. However, pertaining to the civil suit, I mean, that is -- unfortunately (sic) Mr. Orphan is a Collier County taxpayer. They expect the Collier County Contractor Licensing Board to protect them against someone who has an irrigation or any license working outside the scope of his or her license. They have an obligation to come to my office and to protest of a contractor licensed with our office taking them to a civil court for something that they are not qualified to do. Now, we can go into the case itself, and I'm prepared to do so, but leave Mr. Smoot to recognize that basically he admits his client's guilty of the charge here today. But if you look at the evidence, on Page 8, clearly it says Dave's Sprinkler Repair. And the activities should be to remove and install 50 pallets of sod. Clearly that -- obviously that's an irrigation company, and it's doing landscaping work. So I understand why that he's admitting that he's in violation. However, if Dave's Sprinkler Repair was a licensed company, there would be additional charges because of the contract description, Page 92 October 21, 2009 it says to remove. And we here today will tell you that not only that the person's not licensed to do the work, you're going to see videos and you're going to hear testimony and you have in your packet from licensed companies that not only that (sic) is not licensed to do so, that there was improper installing and per the contract. It says to remove and to reinstall. What we're here today to tell you, that that didn't happen. There was no removing of the sod. There was a subcontractor that Dave's Sprinkler hired that wasn't licensed in the first place that got a citation for unlicensed activity, that went out and cut the grass and laid the sod and now is suing a Collier County taxpayer for the remainder of the $5,000. And before we go ahead and reserve for restitution, I'd like you to take a look at the video and hear Mr. Orphans (sic), what they have to say about their ordeal about an irrigation competency person doing and hiring an unlicensed landscaper and charging her for landscaping. MR. NEALE: If I may-- CHAIRMAN JOSLIN: One second, Mr. Ossorio. Mr. Neale? MR. NEALE: In the charge that was previously read to the board and is the normal rules the way this board operates, it's clear the standard in evidence to be weighed solely as to the charges set out in the complaint. And they only had one charge to prepare a defense on, and that charge was operating outside the scope of their license. The simple fact that A, they've admitted to it and B, that there is a quotation on which -- for which they were partially paid in the document shows that they were operating outside the scope of their license. It would be my opinion that any other evidence as to whether they did it incompetently or not is irrelevant and immaterial as to the charge brought. They could have laid the sod upside down and it would be irrelevant as to the charge brought. Page 93 October 21, 2009 CHAIRMAN JOSLIN: Right. The other charges you're speaking about would be the civil matter that they're talking about as far as who owes who money -- MR. NEALE: No, the charge I'm speaking about is the charge that they were brought there in front of this board for. CHAIRMAN JOSLIN: Right. I misunderstood. Yes, I know what you mean. We're talking about just the charge that's before us now of contracting without the proper license. MR. NEALE: Right. I mean, if -- and Mr. White may -- MR. WHITE: Mr. Chairman, I appreciate the point Mr. Neale is making. Certainly it's one I think we started our meeting with today about the importance of precision for. One of the things that concerns me and what I've heard from both sides so far is that there seems to have been prior citations issued, and we don't have copies of those, we don't know what the scope of those pertain to. And what I'm concerned about here is that -- and I'm not looking to make Mr. Smoot's case for him, believe me, I don't know whether in fact this is a circumstance where they've effectively already elected, if you will, the means by which the violation should be prosecuted and the appropriate remedy found. MR. NEALE: No, I think a point needs to be made to the board, and Mr. Smoot can correct me if I'm wrong, but I believe that the action brought in civil court was an action brought by the respondent to enforce the contract, as opposed to an action brought by the owner. MR. WHITE: Mr. Chairman, board members, Mr. Neale, I'm not referring to that civil matter at all. MR. NEALE: Understood. MR. WHITE: I'm referring to the statement that Mr. Smoot made that there were citations issued and fines paid. That to me sounded as if they were ones for a violation for operating outside the scope. Which appears to be the same violation that's before us in the Page 94 October 21, 2009 Administrative Complaint. I would like to have some additional testimony from whomsoever may know the facts about this so that we can be as well informed as possible. CHAIRMAN JOSLIN: Mr.Ossorio? Is it possible that you could tell us about the other violations that were charged? MR. OSSORIO: This case is not unsimilar (sic) -- obviously very similar to the Porter case we had a few minutes ago. We heard testimony that he worked outside the scope of his license, and your testimony that there was damage done and how to fix it. So that's the same. And also how Porter was issued a citation before. There were two cases against Dave's Sprinkler Service. One was a 489 case, working -- 1.1 of the Ordinance, working without a license, period. We wrote the case up, we issued the citation, done. Then there brings the administrative complaint out of 4.2, which is a whole variety of misconducts. You could have A through Z, I'm not going to go into, issues with it but you could cite him through A through whatever it is. And one of them is working without -- working outside of the scope of her competency. So we reopened the case on that. Sometimes we issue a verbal communication under 4.2 under the code that says we can go ahead and issue a warning or we can go ahead and do an administrative complaint. Unfortunately in this particular case there were some factors involved that it wasn't the second offense or third offense, it was the first offense, but there was a consumer harm. There was a lady here that has been financially harmed by someone working outside of her competency. MR. WHITE: I appreciate the clarification. I'm not 100 percent there yet. So maybe Mr. Smoot has the specifics of what was cited. I understand it may be a different section of the ordinance. But-- Page 95 October 21, 2009 MR. SMOOT: May I walk over and use that document presenter? MR. WHITE: Visualizer? Yes. CHAIRMAN JOSLIN: Sure. MR. WHITE: But your testimony, Mr. Ossorio, was that they were cited for a violation of the ordinance in Section 4.1.1. MR. OSSORIO: I don't have it in front of me. What is 4.1.1 ? MR. WHITE: That's what I thought I heard you say. MR. OSSORIO: No, it's 4. -- maybe it is -- might be 4.1.2, which is misconduct of a licensed company. That citation refers to 489, which is totally -- that doesn't refer to our ordinance. That's for unlicensed activity. And that was two cases. MR. WHITE: So on the one hand, one face of the coin is they engaged in the business or acted in the capacity of a landscaping contractor. MR.OSSORIO: Yes. MR. WHITE: Okay. MR.OSSORIO: Yes. MR. WHITE: I guess the inference is without being duly registered or certified, there it is, meaning -- MR.OSSORIO: Yes. MR. WHITE: -- the idea is that -- I don't know if you have to be registered or certified to be a landscaper, do you? MR. OSSORIO: Or. MR. WHITE: Or just licensed. MR. SMOOT: It's not one of the categories recognized under Chapter -- CHAIRMAN JOSLIN: Excuse me, to the microphone, please. And just for the record, one at a time, please, okay? That way we keep everything in line, the court reporter can dictate everything that's gOIng on. MR. SMOOT: Mr. White, I believe if this answers your Page 96 October 21, 2009 question, it's not one of the categories recognized as contracting under Chapter 489. However, it is recognized as contracting under Collier County's ordinances. And to correct something I said earlier, the need for an exam other than the business exam that Ms. White's already passed in Collier attendant to her irrigation license in Collier, there's a tree pruning safety examine that's required. Has nothing to do with sod laying, it's just one of the requirements. And she's diligently pursuing that right now. Now, if -- to go back to what I said before, what I put on the screen over here, and I think it's big enough to be legible, is the first of the two citations. And I've had to blow it up so you can't see the whole thing. But it says -- you can see the box is checked for engage in the business or act in the capacity of a contractor or advertise self as business organization as available to engage in the business or act in a capacity of a contractor without being duly registered or certified. And that's the same charge that was then put into the administrative complaint that has been filed that we're here on as you can see -- MR. WHITE: We have that document. MR. SMOOT: You have that? Now, there is a second -- THE COURT REPORTER: Mr. Smoot, you need to be on the microphone, please. MR. WHITE: There's one behind you, Mr. Smoot. MR. NEALE: Yeah, there's a hand-held. MR. WHITE: If you look where I'm pointing, you can use that as you move. You need to turn it on. MR. SMOOT: Thank you. So let me zoom in on this one. This is willfully or deliberately disregard or violate any Collier Page 97 October 21,2009 County ordinance regarding uncertified or unregistered contractors. I believe that Ms. White is not admitting that she did so willfully or deliberately, but she has paid the fine for each as an accommodation, and is not challenging the administrative complaint. MR. WHITE: Do you know when those were -- I'm assuming it's on there when they were issued. But also, when were they paid? MS. WHITE: October -- I believe it was the 6th. CHAIRMAN JOSLIN: What were the dates on both of the citations? MR. SMOOT: September 15. Let me-- CHAIRMAN JOSLIN: For the one? MS. WHITE: For both of them. CHAIRMAN JOSLIN: Both of them were issued the same day? MS. WHITE: Yes, sir. They issued the citations on the 15th and they called me on the 17th telling me I had 30 days to rectify this problem. CHAIRMAN JOSLIN: Mr. Lykos? MR. L YKOS: Could we get copies of the two citations? MS. WHITE: It should be in their packet. MR. L YKOS: They're not in our packet. I don't remember seeing them. Are they in our packet? MR. NEALE: No. CHAIRMAN JOSLIN: No, they're not. MR. WHITE: No, they're not. MR. OSSORIO: Unfortunately that particular case has been closed so -- MR. L YKOS: I understand. MR.OSSORIO: -- I wouldn't have it, so-- MR. SMOOT: Here, you can have my copy. Front and back. CHAIRMAN JOSLIN: So what I'm seeing on the two citations that were issued on September 15th, and I'm finding that the contract for the sprinkler or for the -- I'm sorry, for the sod going in was dated Page 98 October 21,2009 August 10th. MR. NEALE: If I may, just -- since those have been presented to the board as evidence -- CHAIRMAN JOSLIN: Right. MR. NEALE: -- then we do need to have those entered into evidence. Do you want them entered as your exhibit, Mr. Smoot? MR. SMOOT: Sure, sure. MR. NEALE: Okay. MR. WHITE: So moved. MR. NEALE: Defense exhibit. CHAIRMAN JOSLIN: A, I? MR. NEALE: Well, A for purposes of admission. CHAIRMAN JOSLIN: I need a motion to enter-- MR. L YKOS: Second, Lykos. CHAIRMAN JOSLIN: All in favor, signify by saying aye. MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) CHAIRMAN JOSLIN: So moved. We go back to the question of the -- citations were issued on September 15th, so I'm gathering, and the contract for the sod work was done on August 10th. So I'm trying to get the time line here as far as -- MR. SMOOT: I believe Ms. White will testify the work wasn't completed until September 3rd. MS. WHITE: It was in the middle of rainy season and we were Page 99 October 21, 2009 unable to cut sod. In fact, before we started the job, when Mr. Orphan gave us the check, we waited three full days. We also brought him a sample of the sod, because I tried to have him not take this sod because I was concerned that zoysia is, on its best installation with perfect care, is horrible. It's very, very difficult. I have other customers in Fort Myers that we've done this job for, and under perfect care with perfect pest control and a sprinkler system working, absolutely 100 percent they still have issues. CHAIRMAN JOSLIN: Once again, I'm just going to prompt the board one time. Again we're going to go back to the ruling here. We're talking about the installation now, we're talking about some things that really don't really apply to the charge. The charge is contracting to do work outside the scope of the comp -- for his licensing. This is what we're supposed to be looking at now. MR. NEALE: As you're all aware, there's two phases to this one. One is of course finding whether they operated in violation, which it appears that Mr. Smoot admitted that they did outside their scope. The second phase is the penalty phase during which evidence as to the extent of the violation and such can be brought in. So, you know, I want to be clear to the board that those two elements do exist. CHAIRMAN JOSLIN: Mr. Lykos? MR. NEALE: However, what you're seeing as far as the citations and so forth is relevant to the issue of unlicensed practice and how you view the responsibility and guilt or innocence on this. CHAIRMAN JOSLIN: Okay. MR. L YKOS: Michael, can I ask you some questions about this? MR. OSSORIO: Go. MR. L YKOS: Okay, so we have two citations. The first one in the order that I was given them is for engaging in the business or act in the capacity of a contractor. And it's identified as a landscaping Page 100 October 21,2009 contractor. So the first citation was for acting as a landscape contractor, which was not what Dave's Sprinkler Repair is licensed to do. MR. OSSORIO: That's correct. MR. L YKOS: That's the first citation. The second citation is willfully or deliberately disregarding or violating any Collier County ordinance relating to uncertified or unregistered contractors. And then it says Flores Landscaping. So exactly what is the second citation for? MR. OSSORIO: Typically when we conduct our investigation, the investigator will determine did Dave's Sprinkler do the work. In this particular case Dave's Sprinkler did not do the work. They actually subbed it out to an unlicensed contractor. So we charged Dave's Sprinkler for hiring unlicensed contractors. And that's been -- we've talked about that in the past. We haven't had one in a while in front of our licensing board. So we're not here to determine that, because that was paid too as well. But that was for the unlicensed contractor that Dave's Sprinkler hired to do the work. MR. L YKOS: Okay, so far I'm with you. MR. OSSORIO: Good. MR. L YKOS: Then the third question is, if the first citation was for acting as a landscaping contractor when they were not licensed to do that, and the second citation was for hiring an unlicensed subcontractor, then what is Count I in this Administrative Complaint for? MR. OSSORIO: Count I is the homeowner made the complaint of an irrigation company working outside of the scope of their licensing, causing financial harm. Which obviously you will hear testimony to the fact after you hear testimony about him being not properly -- working outside of the scope of his or her certificate. Every homeowner has a right to make a complaint to the Page 101 October 21, 2009 licensing board under misconduct. We're not talking about unlicensed activity, we're talking about misconduct of a certificate holder. CHAIRMAN JOSLIN: Okay, I'm beginning to understand this now. So what -- I'm sorry, go ahead. MR. L YKOS: I'm sorry. CHAIRMAN JOSLIN: No, go right ahead. MR. L YKOS: Does -- the Administrative Complaint is for contracting to do work outside of the scope of his or her competency. Does the complaint of the homeowner fall under that count? MR. OSSORIO: Repeat that, because it wasn't -- MR. L YKOS: Okay, the first citation was for engaging in a business or capacity of a contractor outside of what their license can do. MR.OSSORIO: Okay, first, there's no unlicensed -- when you look on misconduct, you have to read the ordinance and it says, how does someone make a complaint? When you deal with unlicensed activity, that's not making a complaint, that's unlicensed activity under 489 and 1.1 of the ordinance, which is totally separate. When somebody comes in the office and fills out a preliminary complaint form under the ordinance, it says I will do the investigation and I will view the (sic) pursuant to the misconduct and I will see if it meets the administrative criteria for the board hearing. And there's some gravity of the violation. I go through if there's any financial harm. You're absolutely right, we try to -- once the citation was issued and the unlicensed activity was done, we tried to mitigate this with Mrs. White. I believe Allen Kennette said, well, this is what you need to do. We want you to go ahead, try to solve this problem, take the materials out, take it back to whatever it is and go on with your business or refund her the 5,000 to rip it out, whatever it is. She chose not to do so. So there is probable cause that under her certificate she caused Page 102 October 21,2009 financial harm, so we brought it in front of the licensing board. One has nothing to do with the other. That's my interpretation of it. You can talk to Robert Zachary or Pat Neale, but that's my interpretation. And granted, if this is the road we're going, Mr. Smoot's got to realize something. We'll be back here next month with four or five other charges. I was only trying to go ahead and be specific to the charge of, you know, not causing damage, not going through that whole preliminary issue. Just saying okay, you worked outside of the scope. I was hoping today we would have some meetings of the mind beforehand, said (sic) listen, let's solve this issue. But this homeowner made an administrative complaint under 4.1 of the misconduct under a certificate holder. Not an unlicensed contractor, a certificate holder. If it was an unlicensed contractor, the case would be closed, which it is, because we have no jurisdiction. I can't order an unlicensed contractor to go ahead and do restitution. It's done. But the certificate holder you hold, the Board of County Commissioners gives you the authority over the certificate holder. This is why she's here today. Other than that, I'm done. MR. L YKOS: Okay. I understand. CHAIRMAN JOSLIN: Mr. White? MR. WHITE: Could I ask Mr. Lykos ifhe would pass that down? CHAIRMAN JOSLIN: Surely. MR. WHITE: What I'm trying to understand, Mr. Ossorio and Mr. Smoot, if someone can help me, what provision of law is violated in Citation 4649? CHAIRMAN JOSLIN: They don't have copies. MR. OSSORIO: Which one is that? MR. WHITE: 4649 is the first of the two. It says, engage in the Page 103 October 21,2009 business or act in the capacity of a contractor. It's small letter f, as was discussed earlier. MR. SMOOT: There's no citation that I can see here to a statute or anything else. But it's substantively the same as what is charged in the Administrative Complaint. I mean, it's the same thing as what's in the complaint. MR. WHITE: Well, I don't know that for a fact. And what I'm trying to find out is if in fact the facts are that essentially "f" translates into what? I've heard it's 489, I've heard it's 4.1. MR. SMOOT: 4.1.2 of -- I left the ordinance. MR. WHITE: 2006. CHAIRMAN JOSLIN: 2006-46. MR. NEALE: The specific charges listed on the citation come from 489.127.1 which states in relevant part that no person shall falsely hold himself or herself or a business organization as a licensee certificate (sic). And Iff' is -- Iff' under 489.127.1 is engage in the business or act in the capacity of a contractor, advertise himself or herself or a business organization as available to engage in the business or act in the capacity of a contractor without being duly registered or certified or having a certificate of authority. MR. WHITE: Okay. Those are the facts. And the fact is that they essentially are two distinctly different bodies and provisions of law, in my mind. Now, they may be two separate faces of the same coin, but I leave to Mr. Smoot and his client to determine whether they have a double jeopardy issue or not. MR. SMOOT: Mr. White, I can answer that right here. And I'll put it up. MR. WHITE: There you go. MR. SMOOT: At the very top of this citation form there's the reference to what Mr. Neale just read from Chapter 489. But it's not just Chapter 489, it's also Collier County's Contractors Licensing Page 104 October 21,2009 Ordinance No. 97-68, which then is followed by the parenthetical statement, as may be amended from time to time by committing the violations stated below. So I would submit that it has been amended and that the new statute is 2006 -- Mr. Ossorio, you have a -- CHAIRMAN JOSLIN: 2006-46. MR. SMOOT: So yeah, it is double jeopardy. They're both referenced there. And it's essentially the same thing. MR. WHITE: I understand your argument, Mr. Smoot. Knowing from what Mr. Neale has told us and read essentially the verbatim of 489.127.1(f) and correlating that to Iff' on the citation, I'm seeing the law that's violated as Mr. Ossorio had indicated, the text of the statute and not that of the ordinance per se. In that what is the subject of the Administrative Complaint today is in fact the ordinance's provision in Section 4.1.2. Like I say, they may be two faces of the same coin, but they are not identical. And to me at this point I think that there's sufficient reason to go forward. MR. NEALE: Well, and if I may, in the Collier County ordinance itself -- and I apologize, I'm reading from the codified version. But under Section 22-202 of the codified verse, subsection A, which states that there are three categories of violation, subsection one under that says, Subsection 489.127 (1) Florida Statute is incorporated herein. So the way the Collier County Ordinance reflects the violations contained in 489.127 is by reference. So everything that's contained in 489.127.1 is by reference contained within Collier County ordinance. MR. WHITE: But I'm still reading each of the two -- MR. NEALE: And they are two separate sections of the same ordinance. You know, 22-202 is a separate section from the section in which administrative disciplinary penalties are imposed and where those penalties are set out and where the violations are. Page 105 October 21, 2009 MR. WHITE: Stated in an analogous fashion, I think they're separate threads of the same fabric. MR. L YKOS: I don't like that analogy, can you give mean another one? MR. SMOOT: There are two ways of saying the same thing. MR. WHITE: Two wires in the same bundle. CHAIRMAN JOSLIN: All right, is there any other testimony at this moment? (No response.) CHAIRMAN JOSLIN: Any other witnesses you want to call? MR. SMOOT: No, we confessed that it was violated. CHAIRMAN JOSLIN: Okay. Does the county want to call any other witnesses? MR. NEALE: Just to get on the record, the segment of misconduct is by definition a separate section of the ordinance. CHAIRMAN JOSLIN: The what now? MR. NEALE: The misconduct as charged in here is a separate section from the section wherein the citations were made. MR. OSSORIO: Mr. Chairman, once you determine -- once you deliberate or if you find in violation of 4.1.2, I will discuss to you (sic) of the financial harm, and I would have the homeowner speak on that behalf on that particular case, and you'll also see a video. CHAIRMAN JOSLIN: Okay. MR. SMOOT: And we would just once again ask that you skip that and allow us to defer to the cir -- or to the county court to decide who owes who money. That is the financial harm. If you decide it here today, you will prejudice what happens before the county judge who hears this case, because you'll -- the restitution is not something that would order Dave's Sprinkler to pay to the county. Restitution would be what you order Dave's Sprinkler to pay to the people that are the defendants in the lawsuit they brought. CHAIRMAN JOSLIN: I'm sorry, but I believe you are wrong. Page 106 October 21,2009 Mr. Neale, correct? We have the capability to penalize and have restitution or whatever this board decides regarding your license. MR. SMOOT: You do, and I was just requesting that you defer to the court to determine who owes who money. MR. OSSORIO: Well, I consider that an issue for the -- MR. NEALE: It's for the penalty phase. MR. OSSORIO: -- penalty phase. CHAIRMAN JOSLIN: Yeah, we're ahead of ourselves at the moment. MR. OSSORIO: When you go to the penalty phase, I will discuss with you why I believe we should not. CHAIRMAN JOSLIN: Okay. So any closing statements from -- MR. SMOOT: My client would like to make a statement. MS. WHITE: I've worked in Collier County for three years. I worked in Lee County properly licensed for seven. I would not have knowingly hired an unlicensed contractor. In Lee County hindsight is 20/20. It's no excuse. I can lay sod, I can do landscaping, I can do irrigation. I don't do pest control, I don't do trees, I don't do electric. If I can't plug it in, I tell the customer, you must get an electrician. When I hired Flores Landscaping, I -- my mistake. They are properly licensed for Lee County. When I was written the citations on the 15th, I got a -- Mr. Kennette said to me, you have 30 days to remedy this. I called my attorney. I said, Tom, what do I do? He said, Neida, what do you need? I said, I need a tree trimmer's license. He goes, no, seriously, Neida, what do you need? I said Tom, I have never trimmed a tree in my life. He said you -- he goes, you go down, you pay your fines. He said, you go get on -- the county to give you permission to take the Page 107 October 21, 2009 test. I took the test. I got the letter last night, I missed it by two questions. He said, then you stand in front of the board. Mr. Kennette said that if I can get my license, this will negate everything I'm standing here for. I have -- it's my fault, I did not -- when I went on to the Collier County site, I had been receiving leads for irrigation from Service Magic. And Mr. Lantz, you had said you've worked with Service Magic. Service Magic will not give you a lead unless they have checked to make sure you are properly licensed. They checked. They said, N eida, you can take leads for sod and landscaping. I said, are you sure? They said, we have a department, all they do is check. I went onto the Collier County website, which is very, very hard. Sorry, I do irrigation, I'm not a computer person. I mean, I know I'm 40 something years old, but they're not my thing. I did not see anything that said landscaping and sod. I saw tree trimming. I did not see where it said in little print, look, if you want to lay sod and do landscaping you have to take this test and then get a modified license. I should have gone into the county. I should have asked them. But when I went on the website for Lee County, Lee County says under my irrigation contractor's license, because I've taken business law, I can lay sod, do landscaping. I cannot install trees, I can't trim them. It doesn't change anything. When I sat down with Mr. and Mrs. Orphan, I had received their lead from Service Magic. The job was done during the height of the rainy season. It's had many, many issues. The video you're going to watch condemns me. The yard looks terrible. I had Perfection Lawn and Pest go out there yesterday andI Page 108 October 21, 2009 tell Mr. Orphan what needs to be done. In 90 days it will look better. Anyone who knows anything about zoysia grass, which is in the golf course greens area, knows that zoysia is very, very finicky. And if it's not cared for properly, it makes it look really bad. I took some of it home and laid it under an orange tree. It's been getting proper fertilization and water. I'll bring it to you, it looks gorgeous. You know, so -- Hindsight's 20/20. If I had the money to undo this and give them back what I've already paid for, I would have. But I really and truly believe with proper care in one season -- in the landscape book that you required me to read to take the test on it says that zoysia takes an entire season of growth to look good. An entire season. Not five weeks, not six weeks. This grass hasn't been down for two months. They've already -- it was three-and-a-half, almost four weeks old, they had already started cutting it. They had not done the proper pest control. I'm not allowed back on the yard. I don't know if they're watering it. I don't know if they're doing their due diligence. And this all started when I went to collect my final payment and they said we're not happy. They had four days they could have stopped me and they didn't. Then they said, well, what are you going to do? Their answer was take 50 pallets of zoysia, throw it away because they weren't happy. This is premium Empire zoysia from Duda Farms. Duda Farms supplies 90 percent of the sod that comes into Lee and Collier County. They don't sell junk. You have a packet from your people with two estimates. Right now the economy sucks. And I can tell you this, for any one of you who are contractors, you can have five people stand right behind you and undercut your job, tell you how bad it is and how they will do it better and cheaper. Page 109 October 21, 2009 On a golf course when they lay zoysia, did you know that they lay it in like a puzzle piece? It comes in, it's numbered, it's in a 72-degree truck. It's staked. When you lay zoysia, it came in with a lot of dirt on it because the fields were so wet. And then it rained. And then it rained. And then it rained some more. The zoysia moves. It doesn't stay staked. Any sod that is laid during the rainy season will move. So in the yard when you look at the video, there's gaps. And they have taken off the market 80 percent of the weed control products. I don't spray them. That's why I sent Perfection Lawn and Pest. Perfection Lawn and Pest went to the Orphans and said, look, if you know somebody who works at a golf course and can get you the products to get rid of your weeds, that's exactly what you need to do. Otherwise they need to be picked. If they wanted, I would turn around and send somebody out there to pick weeds. If that would make the difference on this yard coming in or not, I would do it. But there was nothing I was going to say to the Orphans before the complaint was filed to make them happy. The only thing they wanted was all their money back, plus. CHAIRMAN JOSLIN: Okay, I appreciate your comments. MS. WHITE: Thank you. CHAIRMAN JOSLIN: County, do you have any closing statements? MR. OSSORIO: Actually, Mrs. White said it all. I have nothing more to say until we get to the penalty phase. CHAIRMAN JOSLIN: In that case, then I'll make a motion to close the public hearing. MR. WHITE: Second, White. CHAIRMAN JOSLIN: Motion and a second. All in favor, signify by saying aye. MR. BOYD: Aye. MR. LANTZ: Aye. Page 110 October 21, 2009 MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (N 0 response.) CHAIRMAN JOSLIN: Motion carries unanimous. All right. Now, at this moment we're going to go into deliberation just to discuss this just a moment, so if you want to have a seat for a second and relax a second. Gentlemen, again, going back to the count that we're dealing with here, I know we're talking about installation, how it's done. The video we haven't seen yet. They've admitted the guilt. MR. WHITE: I've seen the video. CHAIRMAN JOSLIN: I've seen the video, yes, in the packet. I don't need to see it again. MR. WHITE: I'd make a motion for a finding ofa violation. I think it's clearcut that the work that was performed is outside the scope of the sprinkler license. And everything else is part of the penalty phase. CHAIRMAN JOSLIN: Is that a motion? MR. WHITE: So moved. MR. JERULLE: Second, Jerulle. CHAIRMAN JOSLIN: Second, Jerulle. Motion and a second that Neida L. White is found guilty of Count I -- I'm sorry, 4.1.2 -- MR. NEALE: You need to take a vote. CHAIRMAN JOSLIN: I'm sorry? We're going to. Motion and a second on the floor. Signify by saying aye. MR. BOYD: Aye. Page 111 October 21,2009 MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) CHAIRMAN JOSLIN: Motion carries. I was just reading the count. Sorry. Mr. Neale? MR. NEALE: We'd already gone through the penalty. If you'd like me to review it again, I can do that. CHAIRMAN JOSLIN: Just a quick oversight. I mean, I-- MR. NEALE: Okay. Again, any damages that are found must be directly related to the charge as set out in the complaint, owing to the fact that the respondent could only prepare a defense to that particular charge. Since the board has found a violation, there are a list of 10 different sanctions which the board can impose in a situation such as this: Number one is revocation of the Certificate of Competency; two, suspension of that certificate; three, denial of issuance or renewal of a Certificate of Competency; four, probation of a reasonable length, not to exceed two years, during which the contractor's contracting activities shall be under the supervision of the Contractor Licensing Board and/or participation in a duly accredited program of continuing education, and probation may be revoked for cause by the board at a hearing noticed to considered that purpose; number five, restitution; six, a fine not to exceed $10,000 per incident; seven, a public reprimand; eight, re-examination requirement; nine, denial of the issuance of permits or requiring issuance of permits with conditions; Page 112 October 21, 2009 10, reasonable legal and investigative costs. In determining the sanctions to be imposed, the board shall consider five different elements: One, the gravity of the violation; two, the impact of the violation; three, any actions taken to correct the violation; four, any previous violations; five, any other evidence presented at the hearing by the parties relevant as to the sanction that is appropriate for the case, given the nature of the charge. Can also issue a recommended penalty to the state board. Three different recommendations there: No further action; recommendation of suspension, revocation or restriction; or a fine to be levied by the state. CHAIRMAN JOSLIN: Pleasure of the board? Any recommendations? MR. OSSORIO: Mr. Chairman, before you start deliberating about recommendation, before I give you my recommendation, I would like to go ahead and do two things at one time. I want you to look at the video as contractors and consumers, and then as the video is going, I want to have the Orphans come up, Mr. Orphan or Mrs., tell you their side of the story from the beginning to the end referencing of how it was laid, what was said, and I'll let them deal with that in the penalty phase. CHAIRMAN JOSLIN: Okay. Then we'll have to open the public hearing again? CHAIRMAN JOSLIN: No, it's -- MR. NEALE: No, this is just part of deliberation. CHAIRMAN JOSLIN: Okay. MR. NEALE: Part of the consideration of the -- MR. SMOOT: Is there any appropriateness for an objection to relevancy? If you recall, the charge is contracting outside the scope of competency. CHAIRMAN JOSLIN: That is true, you are correct. But in part of the penalty phase we have to determine the guilt of whether the job Page 113 October 21, 2009 was correct or not, of whether there was harm or damages done to the contractor -- or to the homeowner by the contracting that you performed or the work that you did perform. Mr. Lykos? MR. L YKOS: Mr. Chairman, I respectfully request a break, five minutes. CHAIRMAN JOSLIN: Okay. All right, then we'll sit on the deliberations for just a moment. It's 12:35. 12:45, 10 minutes. (Recess. ) CHAIRMAN JOSLIN: I'll call the meeting of the Collier County Contractor Licensing Board meeting back to order again and we'll leave off where we started -- where we ended, I'm sorry -- on deliberations. We are -- and Mr. Kennette, you've got some information for us. Or Mr. Ossorio? MR.OSSORIO: Yes, I'm going to defer -- you asked for my recommendation. I'm not going to give you my recommendation until you hear testimony from the homeowner. And as it was the homeowner's communicating with the board, I'm going to show the video, so you'll see it up here. The video has already been into evidence already, so it's just a reviewing it, which I think probably's everyone's seen it, but I want to see it again. And for the public. MR. SMOOT: Can you establish when it was the video was taken? MR. OSSORIO: Sure. You'll see it. MR. SMOOT: Oh, it will say on it? MR.OSSORIO: Yep. Did you watch the video? MR. SMOOT: Yes. MR. OSSORIO: Okay, it says it right on there. MR. KENNETTE: September 23rd is when it was. Page 114 October 21, 2009 MR. SMOOT: Okay. CHAIRMAN JOSLIN: Did you mention also that you wanted the respondents to -- MR.OSSORIO: Yes, if the respondent will come up when Allen Kennette finishes what he needs to do. CHAIRMAN JOSLIN: Okay. (Video was played.) (Mr. and Mrs. Orphan were duly sworn.) CHAIRMAN JOSLIN: I assume this is a video of the property that we're talking about here? MRS. ORPHAN: Yes, we signed the contract on August 25th. Work actually started -- that was on a Tuesday . Work actually started Friday when Dave's Sprinkler came and adjusted all our sprinkler heads. They showed up on Monday, I guess it was Flores Landscaping -- she represented him as her supervisor -- with a back hoe. And when we were home we noticed that the Mexican or Hispanic man was kind of shaking his head and walking around the yard. And when N eida showed up later that night we expressed our concerns, and she said he couldn't get the back hoe through our sprinkler heads to try to get proper removal. So we expressed our concerns about that and she said not to worry, we'll take care of it. The next day workers showed up. We just happened to go by on our lunch hour. Workers had replaced the front end loader, or whatever it was called, with a mower. And at that time sod started showing up with the pallets being distributed all over the yard. And now we're really concerned because nothing's been removed. CHAIRMAN JOSLIN: None of the sod was removed? MRS. ORPHAN: Pardon me? CHAIRMAN JOSLIN: None of the old sod was removed? MRS. ORPHAN: None of the old sod. They replaced the back hoe with a mower. And I think they tried to mow around where all the Page 115 October 21,2009 pallets were. There was no chemical removal, no nothing. This was on Tuesday. On Wednesday, after N eida said the problem would be taken care of, we waited to leave for work. And about 11 :00 a.m. we went by and the workers were -- already had the one whole side section sodded. At that point we tried to call N eida to stop the work. No phone calls, the answering machine. We finally got ahold of her the next day only because we used a different number. We went and used a different phone. I believe she probably had caller LD. And as you can see, the work proceeded. CHAIRMAN JOSLIN: Was there -- quick second. Was there a supervisor or anybody on the job that you could have spoke to to stop the work? MRS. ORPHAN: Well, he didn't speak English. She warned us about keeping our house locked and that the workers did not speak English. We tried to communicate with Manny who was, she said, her supervisor. But he's very hard to communicate with. What else can I say? She came to collect -- now the work started on a Monday and it ended on Thursday, that's how fast they put up 50 pallets. When she came to collect her additional $5,000, we showed her all the gaps in the sod, that we were concerned because at that point you could already see the weeds coming through. So we discussed back and forth and she agreed to take $500 off the price, and we said that wasn't proper. We would be agreeable to waiting a month and if we weren't overwhelmed with weeds then we would paid for the balance. We never heard from her since then. This is the first I've seen or heard from her. Her yard man did come, like she said, yesterday, last night, and informed us that some of the weeds we would not be able to get rid of because the chemicals allowed to get rid of them are not allowed in Page 116 October 21, 2009 the county anymore. We have -- I have paperwork showing we've had constant bug control. He told us that the sod is filled with fungus and it was not properly cut. CHAIRMAN JOSLIN: Who told you that? MR. ORTEGA: Bug Stop, and two other people that we got estimates to try to get it removed. We want to get it removed. One man said it might be up to a year that we can get control of it again. We have our water bills to prove. We have city water, which you can im -- $300 bills. We fertilized once, but the weeds grew so fast. This is a professional job along our hedge. We had to clean out the hedge because all the pieces they tried to stick in the gaps they threw in the hedge. This is -- I mean, I just -- I can't explain. MR. OSSORIO: Mrs. Orphan, can you explain to when it was laid, you could see gaps. MRS. ORPHAN: Oh, yeah. MR. OSSORIO: It was -- and they didn't use a roller -- MRS. ORPHAN: They didn't use a-- MR. OSSORIO: -- and they didn't remove -- MRS. ORPHAN: Well, they had a roller there but-- CHAIRMAN JOSLIN: One at a time. One at a time, please. Can you turn the volume down? MRS. ORPHAN: This is the entire yard. I mean, this isn't just sections, this is -- THE COURT REPORTER: Please speak into the mic. MRS. ORPHAN: Okay. There was a roller there when we came home, but if they used it or not, I don't know. My neighbors have told me that they didn't. I don't know if they did or not. We have a -- we have a reallawnmower that we can't even use because it won't cut the weeds, and it's so uneven that it scalps it. Page 11 7 October 21, 2009 CHAIRMAN JOSLIN: Just another question. The video that we're watching here now, how long has it been since the sod was installed to compare to today? MRS. ORPHAN: Twenty days. CHAIRMAN JOSLIN: It's been 20 days since the sod was laid. And then since this video taken, in the same interim? MRS. ORPHAN: Yes, that was taken about two weeks after it was laid. CHAIRMAN JOSLIN: Okay. One last question for you, Mrs. Orphan. In the contract it was -- that's before us in No. E-8, I just have a question. What -- had you done work with Dave's Sprinklers Repair before? MRS. ORPHAN: No. We were referred by Service Magic. They referred us to her. CHAIRMAN JOSLIN: Did you at all question the fact of a sprinkler company doing sod work? MRS. ORPHAN: We did check to see if she was licensed, and they said she was licensed. As -- like her, we didn't realize you had to have a separate -- from irrigation we didn't realize you had to have a separate landscape license. CHAIRMAN JOSLIN: So then the company that you got your referral from kind of led you astray and -- MRS. ORPHAN: Exactly. CHAIRMAN JOSLIN: -- gave you someone that was licensed but not properly licensed to do sod. MRS. ORPHAN: Yes. I don't know if they didn't realize it wasn't being done in Lee County, but -- MR. OSSORIO: Mr. Chairman, we've talked to -- I've talked to Service Magic many times. They know our philosophy. I've talked to them. I've talked to Charlene from the state. And we're going to be communicating with them about how -- their license requirements. And I believe I also faxed them, going back years, nothing Page 118 October 21, 2009 recent, but I've also faxed them a copy of the ordinance what's require (sic) a license and what not requires a license in Collier County, and so they've been notified before. MRS. ORPHAN: And we did also have three estimates. She was not the cheapest. She was in the middle. We hired her because she is a family run company and the economy was bad. And I clean houses for a living. Took me a lot of money to save up to have it done. And we felt we checked thoroughly, when we checked, to make sure she was licensed. CHAIRMAN JOSLIN: At what status is the lawn in right now? MRS. ORPHAN: Right now we're having -- the weeds are just overwhelming. CHAIRMAN JOSLIN: But the same material that they put down is still there? MRS. ORPHAN: Yes. We did -- I did call Neida before I signed the affidavit as a complaint, giving her an option of either giving us or money back or removing it, one of the two options. And I told her if it wasn't done then we were going to pursue it. And like I said, I never heard from her. CHAIRMAN JOSLIN: Is this true, Ms. White? MS. WHITE: The option that was left on my phone, on my office phone, I kept the message, was I could pay the $2,500 to remove it and return their entire deposit. That was the message that was left on my machine. $5,000. MRS. ORPHAN: Yes, is that correct. I forgot about the money back. CHAIRMAN JOSLIN: How did the-- MRS. ORPHAN: But we wouldn't have had any sod. CHAIRMAN JOSLIN: -- $2,500 come into it? MS. WHITE: Because they wanted us to remove the sod that-- the premium zoysia that was put down. Even though it had not been given a chance to root, they wanted the grass -- the sod removed and Page 119 October 21, 2009 all of their money back. And that was the only way that they were going to not do anything more. And that wasn't till after we filed the lawsuit requesting payment. Because when I stood there to collect my final check -- I don't do confrontation well. It's not one of my things. Everybody in my life knows it. And I stood there with my 21-year-old son to go collect the check. And I couldn't -- nothing I said was going to change their opInIon. MRS. ORPHAN: Nothing, absolutely. CHAIRMAN JOSLIN: Okay. So just to clarify then, you are right at this moment going to have the sod removed? MRS. ORPHAN: I would like -- I have to. Unless I-- CHAIRMAN JOSLIN: Like to and have to doesn't say you will or won't. I'm asking -- MRS. ORPHAN: I want to have it removed. CHAIRMAN JOSLIN: -- you a direct question, are you going to have it removed -- MRS. ORPHAN: Yes. CHAIRMAN JOSLIN: -- yes or no. MRS. ORPHAN: Yes. MR. OSSORIO: That's under the recommendation of licensed landscaping companies who you sought bids after. MRS. ORPHAN: And, you know, she keeps saying about discouraging me from zoysia. We know about zoysia. But I also checked, after she told me that she had referred to experts that it's okay to sod over existing lawn, because she checked with her expert. So on that day that she told me that, I checked with the University of Florida extension, I checked with Battista, I checked with anybody I could call, and not one person said they ever would recommend laying any kind of sod over existing grass. They recommend first of all a chemical remover and then whatever. And the contract did say removal. And I was worried when the Page 120 October 21, 2009 back hoe took off. MR. SMOOT: Mr. Chairman? CHAIRMAN JOSLIN: Board have -- yes, sir? MR. SMOOT: Usually I get a chance to cross-examine at the close of their presentation. CHAIRMAN JOSLIN: You will. MR. SMOOT: Okay, thanks. MR.OSSORIO: Mr. Neale, this public hearing's closed. I don't think they have a question to rebut, do they; am I correct? MR. NEALE: He still has the opportunity to cross-examine. MR. OSSORIO: Okay. CHAIRMAN JOSLIN: Yeah, one more time. Okay, is that all, Mr. Ossorio, that you want to present witness-wise? MR. OSSORIO: Yeah, that's it. CHAIRMAN JOSLIN: All right, you can have a seat -- maybe not yet. Hang on one second, I'm sorry. If you'd like to cross-examine at this moment, you may. MR. SMOOT: Ms. Orphan, you didn't have a lawn at the time that this sod was put down, did you? MRS. ORPHAN: I had weeds. MR. SMOOT: And you had also some zoysia grass. MRS. ORPHAN: No, I did not have any zoysia. MR. SMOOT: Did you not hydro-seed? MS. ORPHAN: We tried and it didn't work. MR. SMOOT: Okay. And before you hydro-seeded, what did you do to prepare the lawn? MS. ORPHAN: Chemically back in November of last year, chemically he sprayed the whatever, Real Kill. After that we raked it. After that we -- what do you call that machine, that -- CHAIRMAN JOSLIN: If we're going-- MRS. ORPHAN: Tilled it. Page 121 October 21, 2009 CHAIRMAN JOSLIN: -- to have testimony here, then I need to have you come to the podium, be sworn in, please. MRS. ORPHAN: I don't understand the tech -- but we tilled it, did everything possible. And the zoysia that we hydro-seeded didn't work. (Mr. Orphan was duly sworn.) CHAIRMAN JOSLIN: Okay, now you can proceed. MR. ORPHAN: In October, Real Killed the entire yard, half an acre. Then I tilled the soil. Then I hired a company to hydro-seed. The hydro-seed did not take, the zoysia hydro-seed. And then we just became overwhelmed with weeds. That's when I contacted Neida through Service Magic. And she said yeah, no problem, we're going to come in and remove the weeds, remove the soil on top, put zoysia down. Read the contract. MR. SMOOT: Now, your contract, isn't it true, did not contain a provision whereby Dave's Sprinkler agreed to do a chemical kill on that yard, did it? MR. ORPHAN: No, it did not. MR. SMOOT: It just said removed? MR. ORPHAN: But all I said, remove. Fine. MR. SMOOT: And they did come in and scalp the yard, rake it up and remove it, didn't they? MR. ORPHAN: Well, they raked all the grass mowings underneath my ficus hedge, if that's what you call removal. Removal is not mowing a lawn. MR. SMOOT: There was no lawn. MR. ORPHAN: Well, it was not mowing weeds. MRS. ORPHAN: The video shows-- CHAIRMAN JOSLIN: One at a time, please. MR. SMOOT: Let's -- maybe if we could roll back the first -- I want to go about 40 seconds into the video. CHAIRMAN JOSLIN: Okay. Page 122 October 21, 2009 MR. ORPHAN: Do you recall a portion where the sod was lifted up -- CHAIRMAN JOSLIN: Yes. MR. ORPHAN: -- and all you saw underneath it was black, sand. No weeds, no yard, no nothing. That was a stripped yard, removed yard. If you recall that, we don't need to run it back by. MRS. ORPHAN: I picked that up to show you the weed underneath. MR. SMOOT: There was none evident. MRS. ORPHAN: Okay. I thought you meant -- while you were doing the yard just to protect ourselves we took video. Those are not videos -- well, pictures that were included in our exhibit. MR. SMOOT: Now, the zoysia grass did not look the way you thought it would look, did it? MRS. ORPHAN: Well, it was longer. MR. ORPHAN: Yeah, it's longer. Most people that I've talked to said zoysia, when it's usually installed, is about three-quarters to one inch long. This -- when N eida brought the sample piece, it was a little long, but I said fine, because at that point she was going to remove what was on top and then install the zoysia, not thrown with one or two-inch gaps, but thrown like sod should be, butt to butt. That's what -- I've got the problem now with the weeds poking up everywhere. MR. SMOOT: Now, in the past you have had sodded yards, haven't you? MR. ORPHAN: My wife and I installed 50 pallets offloratam in 1978. We're at the age now we can't do it anymore. MR. SMOOT: Okay. MR. ORPHAN: I know how -- MR. SMOOT: So your familiarity is with floratam, right? MR. ORPHAN: Yeah. MR. SMOOT: And you've never planted zoysia before, have Page 123 October 21, 2009 you? MRS. ORPHAN: No, sir. MR. SMOOT: You don't know what to expect about how long it takes zoysia to establish and to flourish, do you? MRS. ORPHAN: We're not contesting how long it's going to flourish. We're contesting that the weeds are overwhelming. MR. ORPHAN: And the way it was thrown is not proper. MRS. ORPHAN: And the way that it was installed. And the contract stated removal. MR. SMOOT: Are you contending that you can control weeds by the way you place sod, is that -- MRS. ORPHAN: If it was chemically done, or however they do it -- MR. SMOOT: And you had an -- MRS. ORPHAN: -- there shouldn't be any-- MR. SMOOT: -- opportunity to put that in that contract, didn't you? MRS. ORPHAN: I signed the contract for removal. Whatever they consider removal. MR. SMOOT: But not for chemical -- MRS. ORPHAN: But not mowing. CHAIRMAN JOSLIN: I just have another question real quick, I suppose. You mentioned earlier in testimony that you had the lawn treated for weeds, you sprayed it yourself, right, and then you had hydro-seed come in and spray it. And it was of zoysia, right? MRS. ORPHAN: Right. MR. ORPHAN: Right. CHAIRMAN JOSLIN: But it didn't take. MR. ORPHAN: No. CHAIRMAN JOSLIN: Why? MR. ORPHAN: I don't know. Page 124 October 21, 2009 CHAIRMAN JOSLIN: You don't suppose the weedkiller could have been killed the zoysia, do you? MR. ORPHAN: No, because we waited-- MRS. ORPHAN: No. This was back in November of last year. MR. ORPHAN: We waited three months after the weedkiller, the hydro-seed. CHAIRMAN JOSLIN: Okay. MRS. ORPHAN: We're talking about December of last year and this was August this year. MR. JERULLE: Ms. White, do you offer a -- excuse me. CHAIRMAN JOSLIN: Go ahead, Mr. -- MR. JERULLE: Do you offer a warranty for your work? MS. WHITE: Yes, sir, one year. MR. JERULLE: I didn't see that on the proposal. MS. WHITE: No, I -- when I typed it in, I apologize, it didn't. But I did send them a letter stating that if it wasn't watered, pest controlled and cared for properly, they would void their warranty. And I believe when I brought their final bill that it was on there, the warranty information. MR. JERULLE: So why aren't we covering their concerns with a warranty? MS. WHITE: When I went there the last time to see them, I couldn't get a word in edgewise. They told me the garbage man told them that I had installed it wrong. Their neighbors all came over, everybody but the plumber down the street had told them that it was done incorrectly. And I wasn't going to get a word in edgewise. The website that they went to, my son stood there with his Iphone. And it says right on the disclaimer when you go there, this information cannot be used in any legal proceedings, it is strictly the university's opinion of how things can be done. We did a standard overlay on this yard because there was no -- MR. JERULLE: Then let me ask you another question: You Page 125 October 21, 2009 will still honor your warranty? MS. WHITE: Yes, sir, I will. MR. JERULLE: Would you go back and try to rectify the lawn today? MS. WHITE: Absolutely. But they waited 21 days before they put down their first fungicide or pest control. And they were told -- I sent them a certified letter because I didn't want any misunderstandings. It needed -- as soon as that sod was put down, it needed to be treated. It was at the height of rainy season -- CHAIRMAN JOSLIN: Do you have a copy of that letter? MS. WHITE: Yes, sir, I do. Do you have a packet that was dropped off? MR. BOYD: It's in the packet. CHAIRMAN JOSLIN: Yes. It is? MR. NEALE: Yeah, it's in this-- MS. WHITE: It's in the packet, sir. CHAIRMAN JOSLIN: What page is it on, gentlemen? MR. WHITE: About -- at the very back. It's the last page of the text. MR. NEALE: It's over here. MR. BOYD: It's the third page. CHAIRMAN JOSLIN: I've got Bug Stop on the last page. MR. BOYD: It's in the extra packet we got. CHAIRMAN JOSLIN: One other question. Zoysia grass, I'm not familiar with that type of grass, but does zoysia grass travel or spread similar to floratam? MS. WHITE: It spreads, but it's a very tightknit weaved grass. So when we shaved it, we raked everything out, took all the debris off. On the right-hand side of their yard when we were dragging the pallets off, they were so heavy that we wound up -- there was nothing left on the right-hand side of the yard. We had to re-level the entire yard. It comes up, it's tight and it spreads. It just takes a long time to Page 126 October 21, 2009 do it. CHAIRMAN JOSLIN: Terry? MR. JERULLE: Do you have some sort of quality control in your company? MS. WHITE: With the product we purchased? MR. JERULLE: Yeah. If you're laying sod, is there someone that oversees the quality control of the work that you're performing? MS. WHITE: I'm usually on the job. I had one of my employees out there two days in a row, Bibben Edwards, and he was out there. In fact, he helped lay some of the sod. And he's White and speaks English. He's not Hispanic. MR. JERULLE: So this person was on -- your quality control person -- MS. WHITE: I had one -- MR. JERULLE: Excuse me, excuse me. Your quality control person was on the job during the process of the -- MS. WHITE: Two of the -- yes, sir, two of the days. MR. JERULLE: And looking at the video, he was okay with the qualify of the work? MS. WHITE: When the sod was put in, it was -- it came in, it was really, really muddy. In fact, if you look at the pictures -- MR. JERULLE: I don't care about how it was then, I'm looking at how it is now. And the quality control of that day, the next day or the next week -- MS. WHITE: Right, when-- MR. JERULLE: -- having somebody go back and taking care and doing quality control of -- MS. WHITE: I couldn't go back-- MR. JERULLE: -- the product. MS. WHITE: I couldn't go back on the property after that Friday. I was not invited on to do anything more. I was told remove Page 127 October 21, 2009 it or -- remove it and I want all my money back. I was -- MR. JERULLE: As of what Friday? MS. WHITE: -- not allowed to do anymore work after that Friday. MR. JERULLE: What Friday? MS. WHITE: September 5th. September 3rd I -- MRS. ORPHAN: It was on a Thursday. MS. WHITE: September 3rd we finished the job. That Friday I went to pick up the check, they said no, we -- MR. JERULLE: When you went there to pick up the check, did you see the quality of work? MS. WHITE: The sod looked really good when it started. It had not rained at that point. When it rained, some of the sod moved. I would have tightened it up, but I was not allowed back on the yard. It will fill back in. MR. SMOOT: This is a different kind of grass. MR. JERULLE: I'm a little confused. MS. WHITE: In the video, if you look at the palm tree right here, this is on September 18th. The grass is coming in, it's starting to fill in. Yes, there are weeds in it, but at this point they still had not pest controlled. When these pictures were taken, they had not cut it or pest controlled it. MR. JERULLE: Ms. White, laying sod -- how thick is the sod, two and a half inches thick? MS. WHITE: Well, the problem was it came in with a good inch and a half of mud on the back of it. Because it was so -- MR. JERULLE: How thick is it? MS. WHITE: About three inches thick. MR. JERULLE: And if you don't lay it butt to butt, you're saying that's going to grow in? MR. WHITE: It was butt to butt when -- MR. JERULLE: Where does the dirt come from for the grass to Page 128 October 21, 2009 grow in? MS. WHITE: It was butt to butt when it was laid, but it was muddy on the edges. MR. JERULLE: Okay. So when they brought up the complaint, why didn't you have your service guy go -- call the service guy, go there and try to fix it? MS. WHITE: Because there was no talking to them at that point. MR. JERULLE: You shouldn't have to talk, you should be fixing the work so that they're satisfied. MS. WHITE: I wasn't allowed back on the property to do anything. I was told-- MR. ORPHAN: That's not true. MS. WHITE: -- return the money and pay $2,500 to have it -- or 2,750 to have it removed. That was the options I was given. I wasn't told -- they didn't say Neida, can you come in, tighten it up, you know, it's moved some. I had 20 pallets -- MR. JERULLE: You're saying that was the option left on your answering machine. MS. WHITE: That was the option I was given. MR. JERULLE: If somebody leaves that on my answering machine, I'm knocking on their door, all right, and with all my people behind me going to fix whatever needs to be fixed so they don't have to leave a second message like that. MS. WHITE: I couldn't get a word in edgewise. The day -- I didn't know what to do with them. Because I didn't -- seriously, I didn't know what to do. They turned around and they said, these are your options. MR. JERULLE: Try to address the concerns. Document it and try to address the concerns. I know there's some people out there that you can never satisfy, but you're not going to satisfy somebody unless you try. MS. WHITE: I told them I'd send my pest control out on Friday, Page 129 October 21, 2009 the day we were standing there. I said I will have it treated the first time to make sure it's treated properly. No, we have a guy and I'm going to fertilize it. MRS. ORPHAN: We weren't concerned about pest control, we were concerned about weeds. And I did have my first pest control two days after, on the 21st. We did have Truly Nolan, but she told us that they weren't any good so we fired them and hired another company, Bug Stop. MS. WHITE: But we finished on September 3rd and they had it done on the 21 st. So they waited almost three weeks to do their first pest control. CHAIRMAN JOSLIN: Is that true? MR. JERULLE: I'm still worried about the gaps in the sod. MRS. ORPHAN: That's what you recommended when it was laid, within a month. MR. JERULLE: Excuse me, I'm still concerned about the gaps in the sod. MS. WHITE: When the sod was laid, it was laid tight. It was laid as tight as it could be with the mud that was on the sod. MR. JERULLE: But I don't see any -- MR. WHITE: I'm looking at the photos that they provided dated September 2, and it certainly appears that it is as physically proximate as you could place it. I mean, you're seeing the photo from September 2? MR. SMOOT: Put these on the -- maybe we could put these on the overhead? MS. WHITE: These are from September 18th. These are in your packet. This is after two and a half weeks. CHAIRMAN JOSLIN: We have that, yes. MS. WHITE: The sod is coming in, the gaps are filling in. MR. WHITE: If I understand Mr. Jerulle's point is that there's gaps, meaning soil or something needs to replace the mud that was Page 130 October 21, 2009 washed away. What is the proper method for doing that that you, if you were allowed on the property, would implement? MS. WHITE: What would I have done if we -- from the torrential rains if we had to have? We would have tightened up and added some more smaller pieces of sod. Because zoysia would -- you can cut zoysia in small strips and place them in there to fill it in, but I wasn't allowed on so I couldn't -- I haven't been able to do anything to correct this problem, whatsoever. CHAIRMAN JOSLIN: I've heard that statement three or four times now, she wasn't allowed on your property. Is this something that was not -- was set up by you, Mr. and Mrs. Orphan? MRS. ORPHAN : We never heard from her, so -- MR. ORPHAN: No, other than when she sued us. MRS. ORPHAN: She was supposed to come back Friday. She collected the money on Thursday. MR. ORPHAN: Tried to. MRS. ORPHAN: Or tried to. And because we weren't agreeable, she said she would come back Friday with a -- she wanted us to recommend her to other people and she would work out something that would be agreeable to both of us. I gave her until Monday to get back to me and she never did, and I had to leave a message on her answering machine. I have not seen her or heard anything. CHAIRMAN JOSLIN: So Ms. White, what gave you the opinion then that the Orphans wouldn't let you back on the property again? MS. WHITE: When I was there that last Thursday, I didn't -- the impression they gave me was unless I gave them all the money back and removed it, that was the only thing that was going to make them happy. That was the message they left that following Monday. Page 131 October 21, 2009 I did not go on Friday, because every single sod person I know, from King Sod in Cape Coral to Battista and everyone else, said once it's down an overlay is perfectly normal, it just takes some time. And it's at the height of rainy season and it will fill in, it will be beautiful, but it's going to take a season. CHAIRMAN JOSLIN: Okay. Any other questions from the board members? MR. L YKOS: I just want to see if I can get my hands around where we are, what we're trying to do here. I mean, our job is not to mediate this case, correct? CHAIRMAN JOSLIN: No, we're just looking for if there's restitution here. MR. L YKOS: I don't even know that that's what we're responsible for. Weare to determine whether or not the contract was fulfilled or completed to a standard that is what, average? You know, is this the best sod job that's ever been done? Doesn't look like it. Does it mean that the contract wasn't fulfilled? I don't know. Our job is not to mediate this case. Our job isn't necessarily to decide if this was the best sod job that's ever been done or the worst sod job that's ever been done. Is the worst job acceptable according to the contract? I don't know that either. MR. NEALE: Well, and if I may, Mr. Lykos, just make a couple of points. I understand where you're going, but just as you're getting into this discussion I'd like to make a couple of points. First is that the charge -- there were available charges that go to the issue of workmanship. That is not the charge that is in front of you today. The charges in front of you today is contracting to do work outside the scope of the competency. What you've been hearing is based on that charge, just that charge, what are appropriate sanctions under that charge. Now, if -- I would say that if a case was to be put on, there would be experts testifying on both sides as to this. At this point you have Page 132 October 21, 2009 one person who might be qualified as an expert and you have disgruntled homeowners. I would say that further this matter is in front of a civil court which, as Mr. Lykos suggests, is a venue where that type of case can be brought. I'm not stating -- you know, I'm certainly not imposing anything on the board or trying to do so, but I believe that you need to look within the charge itself, you need to look at the damages caused because of that charge. And the board has in many cases seen fit not to award restitution, the board has also seen fit in past cases to give deference to the civil court system when appropriate. Mr. Joslin's been on this board for a long time -- CHAIRMAN JOSLIN: Right. MR. NEALE: -- and he knows many occasions in the past where this board has deferred to civil matters, particularly in the terms of damages caused. You know, this board is a licensure board, as Mr. Lykos correctly was suggesting. This board is not a mediation board. It's not here to settle disputes. MRS. ORPHAN: May I add one thing? When we questioned Mrs. White about laying sod over existing weeds and grass, she said she does it all the time. This was when we were discussing the options. And I wanted her to give me the telephone number of people, other homes that this has been done to. And she informed me she couldn't do that, she would give me pictures. And I insisted that I wanted to talk to the homeowner, because I was totally agreeable to paying her if it wasn't going to be a potential problem. When I asked her if I questioned the workers that threw the sod if they normally throw it over existing sod, she hesitated and she said well, they don't normally throw sod. Now, she hired a subcontractor that the people don't throw sod? That concerned me more than anything. Page 133 October 21,2009 CHAIRMAN JOSLIN: Okay. MR. NEALE: Mr. Lykos has a -- CHAIRMAN JOSLIN: Mr. Lykos? MR. L YKOS: Michael, I think I understand what we're trying to accomp -- what you would like us to accomplish here. To continue on with the problems I have with where we are, I don't know the value of the work that's in place, I don't know if it has to be ripped out or if it can be reworked and if there's some truth to the fact it takes time to grow in and with some repatching and some repairing that the sod installation can be saved. We don't know that. How can we possibly determine any kind of restitution, not knowing what the current value of the job in place has? MRS. ORPHAN: It has been patched. They did that along the way between the gaps. MR. L YKOS: I understand. But at this point we don't have an expert in front of us saying how long it will take for this to grow in. We don't have an expert to tell us if this installation is acceptable. We don't have an expert telling us what it would take to repair this to get it to some acceptable level if this isn't acceptable. We don't have any of that information. We have your testimony that you're not happy, I understand. We have your testimony that what you think you've gone done is acceptable. It might not be the highest quality, but you haven't had the ability to go on-site and make it any better, if that's a reasonable solution. We don't have any of that information. So the only thing we're left to decide on is whether or not there's misconduct on the part of the respondent, and if there is, is there some punitive amount that we can apply to the level of misconduct. And without knowing the value of the work and the problems associated with it, I don't know how we move forward. MR. OSSORIO: Okay, Mr. -- CHAIRMAN JOSLIN: Like you said, I don't think that you're Page 134 October 21, 2009 going to be able to -- I don't really honestly think we're going to be able to make that decision with the information that we have before us. I think-- MR. NEALE: Mr. White had a point to make. CHAIRMAN JOSLIN: -- probably the best thing to do is to defer it to the courts and act on the charge. MR. WHITE: Exactly, Mr. Chairman. And I'd like to echo what Mr. Lykos' concerns are. I mean, I'm looking at the five factors that Mr. Neale has read to us. And unlike the previous case, this is not a life safety issue, okay. So the gravity of the violation of doing some work outside the scope of competency I don't see as -- kind of that it's near the minimum, near the lower end of the scale, the impact, if you will, of the violation. Again, I think that's a roughly similar factor in this particular case. And the impact is one we cannot to the best of our ability weigh. The action taken to correct, well, what actions were taken seem to be reasonable to the degree that they were allowed to proceed. Maybe if they're allowed to go further, maybe if the fungicide had been applied at the time it was offered essentially I believe for free, it may have worked better than two plus weeks later. So the actions taken to me, I don't see them stacking up in a way that works against the respondent. We talk about previous violations is the fourth factor. I look at it and say well, to some degree the other face of the coin was the previous violation cited for doing landscaping work without having a landscaping contract. So to some degree that kind of tends to have less weight for me as well. And the other things, you know, about the relevant evidence, I tend to come down on the side of saying if there is a forum in which to dispute what essentially is the financial harm, that ought not weigh, at least it won't weigh much for me, in these five factors on what we do for what is the violations that have been found. Page 135 October 21, 2009 So this is a tough case for a lot of I think unusual reasons. And it may be to some degree because we're trying to put a square peg in a round hole. MR. OSSORIO: Mr. Chairman? CHAIRMAN JOSLIN: Michael. MR. OSSORIO: I'm going to make a recommendation. I hear what you're saying, that you do have some literature in front of you of damages. They're not direct testimony, I understand that. So therefore, I will make a recommendation that no restitution be sought after today, but I will be recom -- since they are guilty, I will be making a recommendation of a $1,500 investigation cost and a $5,000 fine. And I will-- and they can proceed to civil court. MR. WHITE: May I make a comment, Mr. Chairman? CHAIRMAN JOSLIN: Yes, you may. MR. WHITE: If they're two faces of the same coin and for the citation for doing landscaping without being a landscaper, whatever the dollar amount of the citation was, I believe it was $300, I am hard pressed to understand why $5,000 for essentially an equivalent violation stated differently in the ordinance has such a high suggestion and recommendation for a fine. I think it's excessive under the circumstance. CHAIRMAN JOSLIN: I agree with you. MR. WHITE: To me, I tend to look to some of the other tools we have in looking to balance this case. In particular, I think some of the things we've been told we could do have to do with probation. Things that I think may get us to a point where that one-year warranty may have some relevance in getting these people to work things out. The difficulty they're going to have in doing that is I'm pretty sure Mr. Smoot, in -- as part of the litigation is likely to advise his client that there may not be things that are advantageous to do to try to work it out. I don't know, that's outside our scope. But the point is that I don't know that other than having to pay Page 136 October 21, 2009 the cost of the investigation and potentially some type of a public reprimand makes sense, other than retaining jurisdiction for some purpose, whether it's probation or otherwise, to allow the court case to work out and see where it lands. So I'm just offering that. I don't have a motion to make at this point, but I'm just trying to help share with my fellow board members kind of the way this case is shaping up in my mind. CHAIRMAN JOSLIN: I agree with you totally. I think the fine that Mr. Ossorio has kind of projected is a little on the high side. Understanding that this may very well work out between the two parties, or it may well go to civil court. And in either sense of the word, the damages that we see right now is the fact that she did act without -- out of the scope of her license. And this is basically what we're basing it on. I think a fairer amount in my mind would be a $2,500 fine, $1,000 for investigative costs, and a one-year probation, providing that probation stays intact at least until she comes into compliance in Collier County with a license. If it takes her three months, after three months she'll be off probation. After being in business in Fort Myers for quite a period of time, I have conclusions that they know what they're doing. Unfortunately this job turned out to be a nightmare. It could be the rain, could be the sod, could be a lot of different things. But nevertheless, we can't make that decision under those pretences, so that's my thought. MR. WHITE: I believe the staff had sought 1,500 in investigatory. I still think the 2,500 is excessive. I mean, to me I'd much rather see a lower fine. Certainly the staff time needs to be compensated for this matter to be prosecuted and investigated. But if there's dollars going to be coming out of the respondent's pocket, I don't know what good it does necessarily as a fine to go to the county, if instead it could go to the property owners. And so that's the reason I raised the concern about the dollar amount. Page 137 October 21, 2009 CHAIRMAN JOSLIN: The fine wasn't so much for the property owners, but for the fact that now, this is not one citation, this is the second time. MR. WHITE: Well, it's only the second time under the same set of facts. In other words-- MR. SMOOT: Same incident. MR. WHITE: -- unlike the previous case-- MR. NEALE: It's for the same incident. MR. WHITE: -- where it was two years beforehand that they'd caused a violation, this was exactly the same set of facts. They did not create the same -- there are no two separate instances, it's all the same point in time, the same yard and the same folks. Even though there are two different provisions of law. CHAIRMAN JOSLIN: Kyle? MR. LANTZ: I feel-- they've already paid $600 in fines. My opinion is they've paid their share of fines. And $1,500 for investigative fees, that's quite a chunk of change to be paying to investigate -- I mean, no offense, but it's just a lawn. Whereas a lot of the other things it's a real structural life safety thing and someone's paying $500 for -- I'm sure they spent the time investigating, but I think they're already out investigative fees and the fine, already paid 2,100 bucks. That's quite a chunk of change to me. That's plenty to be out of their pocket. CHAIRMAN JOSLIN: Recommendation? What's your thoughts? How much? MR. LANTZ: My personal opinion is they should pay the investigative fees, $1,500, and no additional penalty on top of what they've already paid, except for probation. MR. JERULLE: So we have 5,000, 2,500 and zero. MR. WHITE: I'm with zero. MR. SMOOT: Any credit for the $600 paid? MR. L YKOS: No. Page 138 October 21, 2009 MR. WHITE: Separate violation. CHAIRMAN JOSLIN: If it goes to zero, how are we going to do that? MS. WHITE: No more than? MR. WHITE: The thing I think about the probation that still needs some work here is what are they required to under the probation. Sounds like your expectation, Mr. Chairman, is that she would get licensed and -- CHAIRMAN JOSLIN: Get a license. MR. WHITE: -- the probation would cease. CHAIRMAN JOSLIN: Exactly. MR. WHITE: That makes sense to me. And if the board's collective opinion is that they otherwise then work out the remedy between themselves in county court, I'm okay with that. And I don't know if we're close enough for anyone to want to hazard a motion or not. CHAIRMAN JOSLIN: So at the moment we're still at $1,500 for investigative costs and no fine? MR. WHITE: If you want that in the form of a motion, Mr. Chairman, I'll try. MR. JERULLE: Just again, your recommendation, Michael, was 5,000? MR. OSSORIO: My recommendation is 5,000, but 2,500 is fine. But we're in the business of providing service. You're in the business of protecting taxpayers. And I understand about restitution. But this is televised. And this lady, unfortunately Mrs. White, she was found guilty of working outside the scope of her certificate. It's a serious offense. There's no difference from the gentleman here before us and now. It's a fine. It's a punitive fine for what she did. And citation has nothing to do with it, we don't need to talk about it, but I think it should be minimum 2,500. I understand 5,000, but it Page 139 October 21, 2009 should be 2,500, 1,500 in probation. CHAIRMAN JOSLIN: That's where I'm at. I think the 25 (sic) is a good wake-up call that maybe she won't do it again. Or if that's the case she won't have to, because if she gets licensed, then the problem's gone. I'll put it in the form of a motion. We'll give it a try. MR. L YKOS: I think 2,500's too high. She's already working on her new license, she's trying to come into compliance. It's your responsibility when you leave your -- Lee County to know about the laws of the other jurisdictions you're working in. So ignorance is not innocence -- MS. WHITE: I know that. MR. L YKOS: -- of the law. MS. WHITE: I -- as soon as this happened, I had Service Magic pull all -- anything that I knew I wasn't -- and I'm only doing irrigation down here. And I did take the test, I have to go see the county. Like I said, last night I got my test results, I missed it by two questions. I am going to go in on the 14th of next month, retake the test. It's that darn chainsaw, you know, how many safety features is it to shut it off in an emergency. MR. L YKOS: The other thing I'm going to say is you commented that because there was so much mud on the sod it created gaps. MS. WHITE: It did. MR. L YKOS : Well, somebody's who's been doing sod for a long time might not have installed it knowing that the result of installing it at that point would have created gaps in the lawn. MS. WHITE: That is correct. MR. L YKOS: So, you know, to minimalize a landscaper's license that all I have to do is get a tree trimmer license and I don't even do trees, to minimalize the real experience and the real expertise Page 140 October 21,2009 of people that do what you did without a license, don't come in here and trivialize to us the expertise of other people. MS. WHITE: I'm not. MR. L YKOS: It isn't as simple as getting a tree pruning license and then I can do --lay sod. Obviously there's some experience and some education that goes along with laying sod. It isn't just getting a tree pruning license and taking the class. MS. WHITE: Absolutely. MR. L YKOS: Okay? MS. WHITE: Absolutely. And I've done very many floratam yards. I've only done two zoysia. And the last zoysia yard I did was probably seven years ago. MR. L YKOS: Well, then maybe you shouldn't do them. MS. WHITE: I absolutely wholeheartedly agree with you, sir. MR. JERULLE: All right, I'm going to try this. CHAIRMAN JOSLIN: Let's wind one up here. MR. ZACHARY: We had a motion, no second. MR. NEALE: That motion died for lack of a second. CHAIRMAN JOSLIN: Yes. MR. JERULLE: May I try a motion? CHAIRMAN JOSLIN: You can try it. MR. JERULLE: $1,500 fine -- excuse me, 1,500 -- CHAIRMAN JOSLIN: Investigative. MR. JERULLE: -- investigative costs. $1,000 fine. Probation until the time she receives her license. CHAIRMAN JOSLIN: How long a period of probation? MR. JERULLE: Excuse me, one year or until she receives her license. Excuse me. MR. WHITE: Whichever occurs first. MR. JERULLE: Correct. MR. WHITE: Second. CHAIRMAN JOSLIN: Motion and a second. Discussion? Page 141 October 21, 2009 (No response.) MR. L YKOS: Call it. CHAIRMAN JOSLIN: Call for the vote. All in favor, signify by saYIng aye. MR. BOYD: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? MR. LANTZ: Aye. CHAIRMAN JOSLIN: Motion carries 6-1. Okay. MR. WHITE: Is there anything further we need to read in the record? CHAIRMAN JOSLIN: Yes. One more time. MR. JACKSON: Mr. Chairman, I have a quick question regarding the motion. Ian Jackson over here. CHAIRMAN JOSLIN: Yes. MR. JACKSON: Was there a time frame for the payment of the cost and the fine? CHAIRMAN JOSLIN: No, there wasn't. Mr. Jerulle, do you want to amend your motion? MR. JERULLE: May I amend it? CHAIRMAN JOSLIN: Yes. MR. JERULLE: I'd like to amend the motion to include a time period of 30 days to pay the fine. CHAIRMAN JOSLIN: Thirty days? MR. JERULLE: Yes. MR. WHITE: If not paid, then? CHAIRMAN JOSLIN: How about the restitution and Page 142 October 21, 2009 investigative costs both? MR. NEALE: No restitution. MR. JERULLE: The fine. CHAIRMAN JOSLIN: The fine, I'm sorry, and the investigative costs. MR. JERULLE: And the fine of$l,OOO to be paid within 30 days or revocation of license. MR. WHITE: Second. CHAIRMAN JOSLIN: You amend your second? MR. WHITE: Seconder agrees. CHAIRMAN JOSLIN: Call for the vote on the amended motion. All in favor, signify by saying aye. MR. BOYD: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? MR. LANTZ: Aye. CHAIRMAN JOSLIN: Still goes 6-1 in favor of. Any other questions? (No response.) CHAIRMAN JOSLIN: Okay, this cause came on or before public hearing before Contractors Licensing Board on October 18th, 19th? What day is today? MR. NEALE: 21st. CHAIRMAN JOSLIN: The 21st, there we go. F or consideration of the Administrative Complaint filed against Neida L. White, d/b/a Dave's Sprinkler Repair, Inc., made in accordance with Collier County Ordinance 90-105, as amended. The board, having heard at this hearing testimony under oath, Page 143 October 21, 2009 received evidence and heard arguments respective to all appropriate matters thereupon issues its finding of fact, conclusions of law and order of the board as follows: That Neida L. White, d/b/a Dave's Sprinkler Repair, Inc., is the holder of License No. CC31774; that the Board of County Commissioners of Collier County, Florida is the complainant in this matter; that the board has jurisdiction of the person of the respondent; and that Neida L. White d/b/a Dave's Sprinkler Repair, Inc. was present at the public hearing and was represented by counsel at the hearing on today's date. All notices required by Collier County Ordinance 90-105, as amended, have been properly issued and were personally delivered. Respondent acted in a manner that is in violation of Collier County ordinances, and is the one who committed the act. The allegations of fact as set forth in the Administrative Complaint as to Count I, 4.1.2, contracting to do any work outside of the scope of his or her competency as listed on his or her competency card, and as defined in this ordinance or as restricted by the Contractors Licensing Board. They are found to be supported by the evidence presented at this hearing. Conclusions of law alleged and set forth in the Administrative Complaint as to Count I, 4.1.2, are approved, adopted and incorporated herein to wit: The respondent violated Section 4.1.2, contracting to do any work outside the scope of his or her competency as listed on his or her competency card and as defined in the ordinance, or as restricted by the Contractors Licensing Board of Collier County Ordinance 90-105, as amended, in the performance of his or her contracting business in Collier County. By acting in violation of the section set out in the Administrative Complaint with particularity. Order of the board: Based upon the foregoing findings of fact and conclusions of law pursuant to the authority granted in Chapter 489, Florida Statutes, and Collier County Ordinance No. 90-105, as Page 144 October 21, 2009 amended, by a vote of six in favor and one opposed, a majority vote of the board members present, respondent has been found in violation as set out above. Further, it is ordered by a vote of six in favor and one opposed, a majority vote of the board members present, that the following disciplinary actions sanctioned (sic) and related order are hereby imposed upon the holder of contractor's Certificate of Competency No. CC-31774. And that being: That Neida L. White, d/b/a Dave's Sprinkler Repair, Inc. is responsible for paying $1,500 investigative costs, a $1,000 fine, both to be paid within 30 days. If those are not paid within 30 days the license is revoked and placed on a one-year probation, or until Neida L. White or Dave's Sprinkler Repair is licensed in the trade that she is following her license. It is so ordered. MR. SMOOT: Thank you. CHAIRMAN JOSLIN: You are welcome. Good luck on the test, N eida. MR. L YKOS: Ms. White, I just want to make a quick comment. One of the issues that stuck with me a little bit was that you hired another company to do the sod. That means you were acting as a general contractor when you're not a general contractor. So even when you get your license all figured out and you're operating legally, don't hire other companies, you're not licensed to do that. MS. WHITE: I won't do that again, sir. MR. L YKOS: To me that was the reason why I supported an additional fine. When not only were you doing work outside of your own license, but then you went and hired somebody else to do work and you're not licensed to do that either. MS. WHITE: I won't do that again, sir. MR. L YKOS: I'm glad to hear that. MS. WHITE: I will get my landscape and sod license, even if I Page 145 October 21, 2009 don't use it down here. CHAIRMAN JOSLIN: I would get it to get off probation. MS. WHITE: Absolutely. Like I said, I have to go see the county and go request my test again. Two questions. MR. L YKOS: Good luck. MR. ORPHAN: Thank you, gentlemen. CHAIRMAN JOSLIN: You're welcome. MR. ORPHAN: You're all very fair. CHAIRMAN JOSLIN: We try to be. Okay, any other old business? MR. WHITE: Just an update, if I may, Mr. Chairman. CHAIRMAN JOSLIN: Sure. MR. WHITE: In our last meeting there had been a discussion about me serving as the consumer representative from the City of Naples. I was interviewed by the City Council Monday morning, and I believe that they were to vote on my consideration today. And my belief is that I will be acting as the representative from the city. But we need to confirm that. And I will do so to Mr. Ossorio before our next meeting. CHAIRMAN JOSLIN: Okay. Mr. Ossorio, I've got one other case here that didn't show. Mr. Patrick H. Atchison. MR. NEALE: Atchison, yeah. CHAIRMAN JOSLIN: What do we do with this one? MR.OSSORIO: Well, you're going to leave it on your desk and I'm going to collect it and we're going to resend a notice to him. And since the respondent's not here, we're going to renotify him, give him the benefit of the doubt, and we'll see you in December with it. MR. WHITE: Would that be the same with Mr. Bain? MR. OSSORIO: Mr. Bain will have the same courtesy. CHAIRMAN JOSLIN: There's no meeting in November? MR.OSSORIO: No meeting in November. It will be in Page 146 _1___". W"" .' ._. . "",,,~._.w.,._...~_ P' . ....""--,"""'.~~,'~~,.,.._'--.-_-"""'_."."..,..." "'-',-~,~".'~-~.'._,,,--'-- October 21, 2009 December. MR. L YKOS: At Horseshoe, right? MR. OSSORIO: It will be at Horseshoe Drive. CHAIRMAN JOSLIN: Horseshoe Drive. Is that like on the 24th or what? MR. OSSORIO: 25th. CHAIRMAN JOSLIN: I knew you were going to say that. MR.OSSORIO: It's the 16th. CHAIRMAN JOSLIN: 16th, okay. MR. WHITE: Just as a courtesy, I think was it Mr. Green that was Gentleman Jim? MR. LYKOS: Yes. MR. WHITE: If you just would give him the courtesy of letting him know that we're not meeting next month and that our next meeting in December is not here but rather at community development, if he in fact wants to follow up on the information that Mr. Neale's going to provide us, based on his research. CHAIRMAN JOSLIN: No other business? (No response.) CHAIRMAN JOSLIN: I just need a motion. MR. L YKOS: Motion to adjourn, Lykos. MR. WHITE: Second, White. CHAIRMAN JOSLIN: All in favor? MR. BOYD: Aye. MR. LANTZ: Aye. MR. JERULLE: Aye. CHAIRMAN JOSLIN: Aye. MR. WHITE: Aye. MR. L YKOS: Aye. MR. HORN: Aye. CHAIRMAN JOSLIN: Any opposed? (No response.) Page 147 October 21, 2009 CHAIRMAN JOSLIN: Motion carries. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 1:51 p.m. CONTRACTOR LICENSING BOARD RICHARD JOSLIN, Chairman These minutes approved by the board on presented or as corrected as Transcript prepared on behalf of Gregory Reporting Service, Inc., by Cherie' R. Nottingham. Page 148