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CLB Minutes 07/20/2011 CONTRACTORS LICENSING BOARD Minutes July 20 , 2011 161 2 k A 9 July 20,2011 MINUTES OF THE COLLIER COUNTY CONTRACTORS' LICENSING BOARD MEETING 303IIWIE7 Naples, Florida, July 20, 2011 4 ( BY: LET IT BE REMEMBERED that the Collier County Contractors' Licensing Board, having conducted business herein, met on this date at 9:00 AM in REGULAR SESSION in Administrative Building "F," 3rd floor, Collier County Government Complex, Naples, Florida, with the following Members present: CHAIRMAN: Kyle Lantz Fiala Vice Chair: Lee Horn Hiller ,-1 -0 Michael Boyd Henning Terry Jerulle (Excused) Coyle - Richard Joslin Coletta Thomas Lykos Robert Meister Jon Walker (Excused) Patrick White ALSO PRESENT: Jamie French, Director— Operations & Regulatory Management, GMD Michael Ossorio, Contractors' Licensing Supervisor Ian Jackson, Licensing Compliance Officer Rob Ganguli, Licensing Compliance Officer Patrick Neale, Esq., Attorney for the Contractors' Li�enn Board isc. s: Steve Williams, Esq., Assistant County Attorney Date:'2\v3\ Item#:\LoT.Z+A°I C.-pips lo: 1 161 2 A 9 July 20, 2011 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: Chairman Lantz called the meeting to order at 9:03 AM and read the procedures to be followed to appeal a decision. Roll call was taken and a quorum was established. Seven members were present. II. ADDITIONS OR DELETIONS: Additions: • Under Item VI, "New Business"— o (C) Jeremy Batten—Reinstatement of License without Examination • Under Item VII, "Old Business"— o (A) Order to Pay the Board, i.e., sign the Orders of the Board III. APPROVAL OF AGENDA: Patrick White moved to approve the Agenda as amended. Second by Thomas Lykos. Carried unanimously, 7—0. IV. APPROVAL OF MINUTES—May 18,2011: Patrick White moved to approve the Minutes of the May 18, 2011 meeting as submitted. Second by Lee Horn. Carried unanimously, 7—0. V. DISCUSSION: (None) VI. NEW BUSINESS: (NOTE: In each of the cases heard under this Section and Section VIII, as follows, the individuals to testes were sworn in by the Attorney for the Board.) (A) Christopher Burt—Contesting Citation It was noted Mr. Burt was not present. Michael Ossorio suggested the Board hear the next case since Mr. Burt had been notified of the Hearing. Attorney Neale stated if Mr. Burt did not appear before the conclusion of the Hearing,the Board could take action despite his absence. (B) Smaili Constantino—Waiver of Examination It was noted Mr. Constantino was not present. 2 161 Z 9 July 20,2011 Michael Ossorio distributed the information package pertaining to Mr. Batten's request to waive the testing requirement to reinstate his license. He suggested the Board review the documents prior to Mr. Batten's arrival. (C) Jeremy Batten—Application for Waiver of Examination Michael Ossorio provided background information: • Mr. Batten's license was cancelled in 2008 • Pursuant to the Code, if a license has been expired or cancelled for longer than three years, the applicant must re-test • Mr. Batten was applying to waive the testing requirement for re- instatement of his cabinetry and flooring covering license under Batten Construction, LLC Mr. Ossorio stated the County did not object. Thomas Lykos noted a problem concerning Workers' Compensation exemption. He asked if all four of the managing members of the LLC worked in the office or in the field since Workers' Compensation does not allow four exemptions. The paperwork stated Jeremy Batten, Kyle Batten,James Batten, and Joseph Batten were managing members. He clarified Workers' Compensation requires coverage for any employee who is not an officer of the LLC or is working in the field on a job site. The issue was compliance. Jeremy Batten stated Kathy Batten is the Registered Agent and works in the office. The other members work in the field. He further stated would remove one name from the list of managing members and Workers' Compensation insurance coverage would be provided as required. Mr. Ossorio stated Workers' Compensation exemptions are permitted for no more than three members who each own a minimum of 10% of a corporation. If the other members are not eligible for an exemption,they automatically become statutory employees of the LLC. He confirmed there was a lack of compliance to Chapter 440(Florida Statutes). Mr. Lykos explained Workers' Compensation protection covers the medical expenses of the employees. He continued that Jeremy Batten must provide an insurance certificate indicating coverage for the other three"employees" [James, Kyle, and Joseph] who do not have an exemption. Richard Joslin offered an option, i.e.,to use a payroll service which would provide the required coverage. He cautioned proof of engagement of a payroll company must be provided before a license could be issued, and the services of the payroll company must be renewed pursuant to the terms of the contract. Michael Ossorio referred to Mr. Batten's affidavit submitted as part of the application in which he stated he would provide Workers' Compensation coverage as required. The State of Florida requires coverage because the installation of cabinets and floor covering is considered to be "construction." 3 16I 2 1-01_ A9 July 20, 2011 Mr. Ossorio confirmed Mr. Batten may have an exemption but all of the other employees in the LLC must be covered. Thomas Lykos reminded the Board that verification of the required coverage had not been provided with the application. Chairman Lantz noted Workers' Compensation Law was a major portion of the Business Law exam which Jeremy Batten was requesting to waive. He asked if Mr. Batten should be required to re-take the exam since he was not aware of the recent changes to the law. Jeremy Batten reiterated he would"make it right." Chairman Lantz questioned the description of operations, i.e., "mortgage field services,"as noted in the liability insurance certificate. Mr. Batten stated it is the same type of coverage required for carpentry—the difference was the amount of coverage. Chairman Lantz reminded the Board the issue to be decided was the request to waive the requirement for retesting—not to approve the license. Attorney Neale stated the Board was to make a determination whether the applicant has adequate expertise or experience to waive the testing requirement. He explained that waiving the requirement for testing for the trade and for Business Law does not affect any other requirements. He noted the Board has the ability to waive one test and require the other. Mr. Batten stated he was licensed in Collier County in 2006 and he was tested then. When asked if he was still current in Lee County, Jeremy Batten replied he was not because the Collier County license, when approved,would be reciprocal in Lee. Lee Horn noted Mr. Batten's letter indicated he had been working in Bonita Springs, Lee County. Jeremy Batten stated the work was in mortgage field services/real estate,not construction. When again questioned about his liability insurance coverage, he stated the coverage would be applicable for construction(installation of cabinets and floor covering)when the amount was changed. Since he does not have a license for carpentry,the category will be adjusted when the license is approved. Thomas Lykos asked Mr. Batten if he possessed an active license for the installation of cabinets and floor covering in either Lee or Collier Counties and the response was no. He further questioned Mr. Batten if his license had been inactive since 2008, and the response was affirmative. Lee Horn asked if there had been any major Code changes in carpentry in the past three years. Michael Ossorio clarified that Mr. Batten was asking to reinstate his cabinet license, which is categorized as"Millwork"—not carpentry—and for flooring. The only test requirement is the Business Procedures test. 4 161 2 A9 July 20,2011 Jeremy Batten explained when he initially tested for his license a"trades"test was not required. He outlined his work history: • In 2006,he was licensed in both Collier and Lee County and worked for several Contractors installing cabinets. • In 2008,the Contractors went out of business due to the economy. • He was a Journeyman Carpenter for five years prior to moving from Iowa to Florida in 2006 o He began his apprenticeship when he was 18 years old. Thomas Lykos stated if Mr. Batten's work experience could be documented, it would be easier for the Board to consider waiving a trades test. He was "less inclined"to consider waiving the Business Procedures test since Jeremy Batten did not have a clear understanding of what is required by Workers' Compensation. Mr. Batten reminded Mr. Lykos that a"trades"test is not required to obtain a license for either cabinet installation or flooring installation. He stated he could document twenty years' of work experience and would present his Journeyman Certificate from the State of Iowa. Patrick White asked for clarification of one of Mr. Batten's statements. In his letter he claimed, "We have continued to work in the Bonita Springs area with our Lee County license ... " Previously, Mr. Batten said he has not possessed either a Lee or Collier license for some period of time. Mr. Batten replied he thought the company still maintained a license for the floor covering portion of the business, which is run by his father, in Lee County. He explained the LLC has been involved in property maintenance and clean-up work in Lee County. He continued"Field Asset Services" is a company that works for various banks to clean/maintain foreclosed properties acquired by banks. Michael Ossorio clarified that Lee County requires a Millwork or cabinet license to install wood products. But floor covering is considered to be a business and only a Business Tax Receipt is required, a copy of which was included in the information packet presented to the Board. Collier County requires a Certificate of Competency. Thomas Lykos asked if the Board was being asked to waive both the Business and Law test as well as the floor covering test for Collier County. Mr. Ossorio confirmed floor covering and cabinet installation were covered in the"Business Procedures"test. He stated Mr. Batten has asked the Board to waive testing so he can re-apply under the Code for the floor covering and cabinetry installation license. Mr. Lykos asked if there was a"trades"test for either floor covering or cabinetry. Mr. Ossorio replied"trades"tests were not required. It was noted,under"Type of Certificate of Competency,"the application cited "finish carpentry" instead of"cabinetry." Two separate applications were submitted in the packet, but only one was necessary for the category of"floor covering/cabinetry." 5 161 A9 July 20,2011 Mr. Ossorio confirmed after the Board rendered its decision, all fees (including three years of back fees, a reinstatement fee, and a new license fee)must be paid by the applicant before a license is issued. He also explained the procedural differences between obtaining a license in Collier County versus Lee County, and the reciprocity process between the two Counties. Attorney Neale reiterated the Board was to decide only the issue of whether to waive the written test based on the applicant's experience and other knowledge. He noted Mr. Batten previously scored 84% on his Business and Law exam in 2006. All other requirements must be satisfied before a license is issued. He confirmed if the Board did require a test, the applicant will be required to pass it and then submit a full application for review by the Contractor Licensing Office. If the application was flawed, Mr. Ossorio could refer it back to the Board for consideration. Mr. Ossorio explained the testing procedures approved by the Licensing Board: • "P-T-I"which is required by the State of Florida for a State-certified license • "Thompson ProMetric"test, under the correct classification code • "Gainesville Independent Testing"has also been approved for the Business Procedures Test • Costs: o Collier County sponsorship fee($130.00 per test); o Books and related study materials; o $80 per test(paid to the testing facility) Patrick White moved to approve the applicant's request to waive the testing requirements for floor covering and cabinetry installation. Second by Richard Joslin. Carried unanimously, 7—0. Mr. Batten verified he understood the requirements to be fulfilled: • to obtain Workers' Compensation insurance, and • ensure the business liability insurance designated the correct business. (A) Christopher Burt—Contesting Citation Citation: #63117 Date: May 24, 2011 Fine: $300.00 Description of Violations: Engage in the business or act in the capacity of a Contractor, or advertise self or business organization as available to engage in the business of or act in the capacity of a Contractor, without being duly registered or certified. 6 1 �► � A 9 1 July 20,2011 Christopher Burt stated he received a violation for advertising for landscape remodeling on Marco Island. He stated he did not realize he was not allowed to advertise. He further stated he had "no intention" of doing the work—he would refer the job to a licensed Contractor. The purpose of the advertisement was to "drum up some business" for the Island Garden Center. Chairman Lantz stated under Collier County's Contractor rules, a person is not required to perform physical work in order to be considered to be a Contractor. A "General Contractor"coordinates various subcontractors on a job site. Attorney Neale cited from the Ordinance: "... the attempted sale of contracting services and the negotiation or bid for a contract on these services ... " Lee Horn restated Mr. Burt's intention: to not perform the work himself but to find a job and then hand it off to a licensed Contractor to complete. He explained that acting as a"middle man" is still considered to be contracting. Attorney Neale clarified if Mr. Burt were simply selling landscaping materials to a licensed Contractor who had a direct contract with a customer, he would not be engaging in"contracting" since payment for the landscaping services would not flow through him. He would only sell the plants and materials necessary, and would not be taking an unlawful benefit from the contract. Rob Ganguli,Licensing Compliance Officer,presented an information packet to the Board. Lee Horn moved to approve entering the information packet into evidence as County's Exhibit "A." Second by Richard Joslin. Carried unanimously, 7—0. Mr. Ganguli read his Summary into the record as follows: "On the third week of May, 2011,the Collier County Contractor's Licensing Office received an anonymous complaint in the form of a newspaper advertisement in The Marco Island Sun Times depicting landscape remodeling services by the Island Garden Center of Marco Island, Inc." A current check of databases revealed that this company possessed a business tax for retail sale only. On May 24, 2011, I met with the owner of the business, Christopher Burt where an explanation of the violation—as well as a course for remedial action—was provided. Citation#6311 was issued to Mr. Burt at this time for advertising as a Landscaping Contractor without being duly registered or certified." 7 1 161 A9 July 20, 2011 Rob Ganguli explained that Mr. Burt was instructed to either remove the remodeling language from the advertising, or to qualify his business to do so. He continued that Mr. Burt had taken the required exams and was in the process of applying for a General Contractor's license. Christopher Burt confirmed he removed the remodeling language from his advertisement and that he sat for the exam, which he passed. Attorney Neale noted the Board has the option to dismiss the Citation and cited Florida Statutes, Chapter 489, Section 127, entitled"Prohibitions;penalties:" "If the person issued the Citation, or his/her designated representative, shows that the Citation is invalid or the violation has been corrected prior to appearing before the Enforcement or Licensing Board, the Enforcement or Licensing Board may dismiss the Citation unless the violation is irreparable or irreversible." Mr. Burt explained although he received the Citation in late May, he was unable to complete and send the paperwork to ProMetric prior to the deadline for the June test. He took the exam at the next available date in Bonita Springs because it was difficult for him to drive to Ocala for testing since he is the sole proprietor of his business. Michael Ossorio confirmed Mr. Burt took the Business Procedures test as well as the trades test for Landscaping. Richard Joslin moved to approve dismissing Citation #6311. Second by Michael Boyd Rob Ganguli noted the Island Garden Center had been qualified under a previous owner to perform landscaping. When Christopher Burt bought the business, the license expired. Chairman Lantz called for a vote on the Motion. Carried unanimously, 7—0. VII. OLD BUSINESS: A. Orders of the Board Thomas Lykos moved to approve the signing of the Orders of the Board by the Chairman. Second by Richard Joslin. Carried unanimously, 7—0. BREAK: 10:05 AM RECONVENED: 10:17 AM 8 A9 161 2 July 20,2011 VIII. PUBLIC HEARINGS: A. Case#2011-09: William Edward Luker, III, d/b/a "Wel-Built Contractors,Inc." Robert Meister stated for the record that he employs Mr. Luker's future ex-wife as his company's bookkeeper. He further stated he had never met Mr. Luker prior to the Hearing. He declared his judgment would not be affected. Chairman Lantz outlined the manner in which the Public Hearing will be conducted: • This procedure, adopted on February 20, 2002, sets forth the general method for which the Hearings for the Contractors' Licensing Board shall be held on alleged violations of the Contractors' Licensing Ordinance and also on contested Citations. • These guidelines are based on Florida Statutes, Chapter 489; Collier County Licensing Ordinance#90-105, as amended; Florida Statutes, Sections 162.07 and 162.08, and other relevant statutory authority. • The general rule for the conduct of Hearings on violations of the Ordinance is set forth in Section 22-202(G), in the codified version of Ordinance#90-105 as amended. • Hearings on contested Citations are conducted pursuant to Florida Statutes, Chapter 489.127 and 489.132 as incorporated in Ordinance#90-105, as amended. Hearings on alleged Violations: • Hearings on alleged violations of Ordinance#90-105, as amended, are conducted in a manner that ensures that the principles of fundamental fairness and due process are observed. • In order to more fully support these principles,the County Staff and/or County Attorney should meet with the Respondent prior to the Hearing. • At that point the evidence be presented to be subject to discovery and the parties, and their representatives,are allowed to examine the evidence to prepare their cases. • If the discovery of evidence is delayed until the day of the Hearings,the Respondent shall he given the opportunity to examine any presented evidence. • To further the principle of due process,the general sequence of procedures shall be followed: o Opening Statements: • The County as the Complainant,and then the Respondent or the Respondent's Counsel will first make an Opening Statement. • These Statements shall be similar to Opening Arguments in a Civil trial. • The parties should make statements as to what their view of the case is, what they intend to prove, and give an outline of their case. • They should not present evidence or bring a witness on at this time. 9 A9 1 6 I Jul?0, 2011 o The County's Case in Chief • The County, in this phase of the proceeding,presents its case to the Board. • The case consists of sworn testimony of relevant witnesses, documentary or physical evidence. • Physical evidence should be presented by the party promulgating to the other party for examination. • Once it has been examined, the Board then must vote on whether to accept the item into evidence. • If the Board votes to accept the item into evidence, it must be marked for identification by the Clerk and then it becomes part of the record of the case. o Hearsay Evidence: • "Hearsay"Evidence is evidence given by a witness who relates not what he/she knows personally but what others have told him/her or what he/she has heard said by others and is admissible under the proceedings of the Board. • Hearsay is only admissible in a Court of Law through certain exceptions. • In proceedings of the Board, it may be used for the purposes of supplementing or explaining any evidence but shall not, by itself, be sufficient to support a Finding of Fact unless that same Hearsay shall be admissible over objections in a Civil court action. • All witnesses called by the County to prove its case shall be subject to cross-examination by the Respondent. • Once they have been cross-examined,the same witness is subject to re-direct examination by the County. • In addition,the Board must exclude irrelevant,immaterial, or cumulative evidence. o Respondent's Case in Chief • Once the County rests its Case in Chief,the Respondent may then present its case. • The presentation is subject to the same rules and procedures in the same manner as the County. o Rebuttal Case by the County: • The County is given an opportunity to present evidence to rebut the Respondent's case after the Respondent rests its Case in Chief. • Evidence presented on rebuttal should only address matters presented by the Respondent and the County should not introduce new evidence or matters for consideration by the Board. o Closing Arguments: • The County and then the Respondent present Closing Arguments. 10 161 Z • A9 July 20,2011 • In these Arguments, the parties may argue their cases and refer to the evidence presented. • It is not the time to present new evidence. • The County is permitted to present a Rebuttal Closing Argument after the Respondent. o Close Public Hearing: • Once the above-referenced steps are completed,the Board shall move to close the Public Hearing and take the vote thereon. • An affirmative vote to close the Hearing is necessary. o Advice to the Board: • At this point,the Attorney for the Board will provide advice to the Board on the"burden of proof'and the relevant law in the case. • The burden in cases where the Respondent can potentially lose his/her license to practice their profession is typically that of"clear and convincing evidence." • This is a standard above that of"preponderance of the evidence" that is required in a normal civil matter. o Deliberations on Violations, Findings of Facts and Conclusions of Law: • At this point,the Board deliberates on whether the Respondent has committed the misconduct as charged in the Administrative Complaint. • The Board shall take a vote on whether the Respondent has committed the misconduct as charged, and adopt Findings of Fact and Conclusions of Law to support such decisions. o Deliberations on Sanctions: • Once the Board has found that a violation has been committed and has adopted the Findings of Fact and Conclusions of Law, the Board must decide upon the sanctions to be imposed. • The possible sanctions are set out in Sections 22-203 of the codified Ordinance. • The Board shall then take a vote on the sanctions to be imposed. • The vote shall be recorded in the Final Order. o Termination or Recommendation to the State's Contractors'Licensing Board: • For all licenses that are either State registered or certified,the Board must vote upon a recommendation of action to the State's Construction Industry Licensing Board. Richard Joslin moved to approve entering the packet for Case No. 2011-09 into evidence as County's Exhibit "A." Second by Thomas Lykos. Carried unanimously, 7—0. 11 161 2 A9 July 20,2011 Rob Ganguli, Licensing Compliance Officer, stated the Respondent may request a Continuance. William Luker,the Respondent, stated he was not properly notified of the proceedings and requested a Continuance in order to obtain legal Counsel. He further stated the property where the Notice was mailed is in foreclosure and he does not reside there. His soon-to-be-ex-wife checks the mail. He received the documents the morning of the Hearing. Lee Horn asked Mr. Luker why he did not notify the County of his new address. The Respondent stated the mail was to be forwarded to a Post Office Box. Thomas Lykos requested the Respondent specify the date when he moved from the address of record. Mr. Luker replied"in late April." Michael Ossorio suggested the Board hear Mr. Ganguli before making a decision on whether to grant a Continuance. Attorney Neale suggested the Board not hear anything on the case in order to grant a Continuance. If the Board grants a Continuance, the packets introduced into evidence must be returned to the County. Chairman Lantz asked Attorney Neale for his opinion concerning issuing a Continuance. Attorney Neale replied in a case where there is sworn testimony from a Respondent that he did not receive Notice, it is the duty of the Board to ensure that due process of afforded to the Respondent. One of the elements of due process is proper notice and receiving notice of an action being brought against you is an essential element of due process. Courts allow a Respondent to prepare a defense. He continued that Mr. Luker did not have an opportunity to prepare a defense. Another test is whether the County's case would be prejudiced by granting a Continuance. There would be no prejudice against the County's case by granting a Continuance of sixty days. He suggested that,to promote equal administration of justice and due process that the Board accept his suggestion to continue the matter. Thomas Lykos asked William Luker if 30 to 60 days would be adequate to prepare a defense and the response was affirmative. He continued by asking Mr. Luker if he would acknowledge that he had been provided proper notice and, again,the response was affirmative. Richard Joslin moved to approve continuing Case#2011-09 to September 21, 2011 and to remove the packets from evidence. Second by Patrick White. Staff requested that the Respondent provide his current mailing address: Mr. Luker stated he resides at 3048 King's Lake Boulevard,Naples, Florida 34112. Chairman Lantz called for a vote on the Motion. Carried unanimously, 7—0. Rob Ganguli collected the packets of evidence. 12 161 ! A9 July 20,2011 B. Case#2011-10: James G. Schuck, d/b/a "MMC of Marco Island, LLC." Chairman Lantz asked Mr. S chuck if it was necessary to re-read the procedures and the response was negative. Richard Joslin moved to approve entering the packet for Case No. 2011-10 into evidence as County's Exhibit "A." Second by Lee Horn. Carried unanimously, 7—0. Ian Jackson,Licensing Compliance Officer, stated the Respondent had evidence to present and distributed the packets to the Board. Patrick White moved to approve entering the Respondent's packet for Case No. 2011-10 into evidence as Respondent's Exhibit "A." Second by Richard Joslin. Carried unanimously, 7—0. Mr.Jackson read his Summary into the record, as follows: "On May 20,2011,the Contractors'Licensing Office received a complaint from Marco Island homeowner,Ms.Toni Jessen. The complaint was reviewed and it was determined that the Respondent,James G. Schuck,contracted for construction with certified General Contractor,Johnson Brothers,LLC,at the newly constructed Judge Jolley Bridge at Marco Island. The contract was under business entity,"MMC of Marco Island,LLC."with a fictitious name registered with the State of Florida,i.e.,"Marco Marine Construction,Inc." At the time,this business entity was not qualified with a Collier County Certificate of Competency or a State of Florida contractor's license. Said contract constitutes a violation of Collier County Ordinance 2006-46, Section 1.1,which was then enforced as a charge of misconduct under Collier County Ordinance 2006-46, Section 4.1.6. Mr. Schuck has entered into a Stipulation Agreement with Collier County acknowledging the existence and accuracy of the charge as stated in the Administrative Complaint." Mr. Jackson read the terms of the Stipulation into the record, as follows: 13 2 161 A 9 July 20, 2011 "BOARD OF COUNTY COMMISSIONERS Collier County,Florida, Petitioner, vs. Case No. 2011-10 James G. Schuck, d/b/a MMC of Marco Island,LLC, Respondent(s). STIPULATION AGREEMENT COMES NOW,the undersigned, James G. Schuck, on behalf of himself or as a representative for the Respondent, enters into this Stipulation and Agreement with Collier County as to the resolution of the Administrative Complaint referenced in Case Number 2011-10 scheduled for the 20th day of July, 2011. In consideration of the disposition and resolution of the matters outlined in said Administrative Complaint for which a Hearing is currently scheduled for July 20, 2011; to promote efficiency in the administration of the Code Enforcement process; and to obtain a quick and expeditious resolution of the matters outlined therein,the parties hereto agree as follows: 1) The violations noted in the referenced Administrative Complaint are accurate and I stipulate to their existence. THEREFORE, it is agreed between the parties that the Respondent shall: 1. Pay operation costs in the amount of$700.00 incurrent in the prosecution of this case within 30 days of this Hearing. 2. Failure to comply with the above will result in revocation of current Certificate. 3. Further punitive action will be left to the discretion of the Contractors' Licensing Board." /s/ James G. Schuck Respondent (Sign) Board Chairman Respondent (Print) Date 6-30 -2011 Date * * * * * * * * 14 161 2 A9 July 20,2011 Michael Ossorio asked the Respondent if the Stipulation Agreement which he signed on June 30, 2011 was accurate and the response was affirmative. He then asked the Respondent if he was forced to sign the Stipulation Agreement and the response was negative. James Schuck declined to present an Opening Statement. Michael Ossorio suggested the Board should vote on whether to accept the Stipulation Agreement. Attorney Neale stated the Stipulation provides for the Board to adopt it,but it did not specify penalties. The penalty phase is presented separately and the Board will hear the matters relevant to the penalty phase. Patrick White noted there was an individual who wished to address the Board. He asked if it would be appropriate to hear this person and her testimony as part of the penalty phase. Attorney Neale stated the Respondent had already stipulated to the charge. He advised it would be appropriate to hear the testimony as a matter relevant to the sanctions to be imposed. Thomas Lykos moved to approve adopting the Stipulation Agreement as presented. Second by Richard Joslin. Patrick White asked if the Motion could be amended to authorize the Chairman to execute the Stipulation. Thomas Lykos amended the Motion to approve adopting the Stipulation Agreement as presented and to authorize the Chairman to sign the Stipulation. Second by Richard Joslin. Carried unanimously, 7—0. Attorney Neale outlined the sanctions, set out in Section 22-203(b)(1) of the County's Ordinance, for the Board's consideration: 1. Revocation of a Collier County Certificate of Competency; 2. Suspension of a Collier County Certificate of Competency; 3. Denial of the issuance or renewal of a Collier County Certificate of Competency; 4. Imposition of a period of probation of reasonable length, not to exceed two years, during which the Contractor's contracting activities shall be under the supervision of the Contractor's Licensing Board, and/or participating in a duly-accredited program of continuing education directly related to the Contractor's contracting activity. Any period of probation or continuing education program ordered by the CLB may be revoked for cause by sa,id Board at a Hearing noticed to consider said purpose. 5. Restitution; 6. A fine not to exceed five thousand dollars($5,000.); 7. A public reprimand; 15 161 2 A9 July 20,2011 8. Re-examination requirement; 9. Denial of the issuance of Collier County (or City) Building permits or requiring the issuance of permits with specific conditions; 10. The award of reasonable legal and investigative costs for the prosecution of the violation. Attorney Neale continued that, in determining the sanctions to be imposed, if any, the Board shall consider: (1) The gravity of the violation; (2) The impact of the violation on public Health/Safety or Welfare; (3) Any actions taken by the Respondent to correct the violation; (4) Any previous violations committed by the Respondent, and (5) Any other evidence presented at the Hearing by the parties relevant as to the sanction which appropriate for the case given the nature of the violation. He stated the Board shall also issue a recommended penalty to the State's Construction Industry Licensing Board and the recommended penalty may include: • a recommendation for"no further action"or • a recommendation for suspension, revocation, or restriction of the registration or • a fine to be levied by the State's Construction Industry Licensing Board. Consensus: Board members required additional information about the case before further determinations could be made. Lee Horn asked the Respondent what was the date of the contract he entered into and the response was October 13, 2010. Mr. Horn noted that in a previous case heard by the Board in August,2009,the Respondent was placed on probation through January, 2011. If an additional violation occurred,the Respondent's license could be suspended until a Hearing was held. He stated he did not find a revocation noted in the paperwork presented to the Board. Richard Joslin asked Staff to explain how the companies"tie together" since there have been name changes to the same company. Michael Ossorio stated in October, 2010, Marco Marine was on probation but it entered into an agreement under a difference fictitious name, "MMC of Marco Island, LLC, d/b/a Marco Marine Construction." The action was determined to be a violation after probation. He continued Contractors often change names without notifying the Licensing Board or the Contractors' Licensing Office. He noted there is a$300 fine for not being properly registered and a$500 to come into compliance. The issue is usually handled administratively. But in the case at hand, Marco Marine Construction was already on probation at the time it entered into the contract and a decision was made to bring the violation to the Board due to the fact that Mr. Schuck has been before the Board on several occasions. 16 161 2 A9 July 20, 2011 Mr. Ossorio stated there was an additional $100 fine applied to the qualifier. Mr. Schuck had qualified Marco Marine Construction, Inc., and was qualifying"MMC of Marco Island, LLC, d/b/a Marco Marine Construction"without proper notification. It was a violation because he qualified one entity,then opened a second entity in order to contract through that entity, while keeping both companies open. He has since come into compliance. Mr. Schuck should have completed and submitted a full application for the second entity. Ian Jackson explained there were two entities, or business corporations—one of which was qualified and the other was not. The contract was through the business entity that was not qualified. James Schuck stated he tried to change the company's name when he renewed his license but was told because the company was on probation, he could not do so. Michael Ossorio confirmed when Mr. Schuck renewed his license in October, 2010,he asked to change the name. Since he was already on probation,he was advised he could not do so without first appearing before the Board because his Certificate was under the Board's direction. Mr. Schuck chose to go forward and continue qualifying Marco Marine Construction, Inc. Mr. Ossorio continued he was not aware Mr. Schuck had contracted under a different entity, i.e., "MMC of Marco Island, LLC, d/b/a Marco Marine Construction,"until Ms. Jessen filed her complaint. Ian Jackson,through his investigation, determined that Mr. Schuck was qualifying an unlicensed company. Chairman Lantz stated the"old"business was still in effect and the Respondent should have written contracts through"Marco Marine Construction, Inc."until the new business was qualified. Thomas Lykos asked if, at the time the violation occurred in October,2010 when Mr. Schuck signed a contract under the name of the unlicensed company,the original entity was still under probation. Michael Ossorio responded affirmatively. James Schuck stated the reason why the contract was signed under the new company was due to the duration of the contract—the old company was being dissolved and would not be existence for the entire length of the contract. Chairman Lantz noted both companies could have been qualified if Mr. Schuck had appeared before the Board. James Schuck stated he was told he could not change the name because he was on probation. The reason why he didn't sign the contract under Marco Marine Construction, Inc. was because it was in the process of being dissolved. The IRS instructed him to cease and desist as Marco Marine Construction, Inc. because of the fines that were being accrued. Mr. Ossorio stated an entity has to renew its Certificate in September of each year it remains in business. If not renewed in September, a late fee ($10) is due in October. Mr. Schuck and his company were late to renew. The company was delinquent in October. In November,he incurred another late fee. When he renewed his current Certificate, he was advised that he could petition the Board but 17 161 2 A9 July 20, 2011 it would take at least one month to be placed on the Agenda. He elected instead to renew Marco Marine Construction, Inc. He could have come back in January, 2011, when the probation ended and submitted a full application to change the name. It would have been an administration function to approve the new application. Chairman Lantz asked when the new entity was incorporated. Mr. Schuck replied the"ball was rolling in June, 2010." The payroll was turned over to a new payroll company in May, 2010. He stated he had been working with a lawyer but"sometimes results are not as quick as you would like." He confirmed he hired an attorney"to turn things over,"but the attorney was no longer representing him. Thomas Lykos asked what were the ramifications of Mr. Schuck's action, based on the fact that the violation occurred during the probation period. He also asked about the stipulations of the probation. Lee Horn stated the Board required, in the event of a violation of probation, that a Hearing is scheduled as soon as possible and that Mr. Ossorio had the authority to immediately suspend the license. Revocation was not an option. Michael Ossorio confirmed if he knew about the new company in October, 2010, Mr. Schuck would have appeared then, but he was not aware of the situation until the Office received the complaint. Chairman Lantz asked Ms. Toni Jessen to present her comments to the Board. Attorney Neale reminded the Board the testimony must be relevant to the matter being heard and to the impact of the violation and what the penalties should be. He cited Florida Statutes, Chapter 489, Section 127: "In determining the amount of the penalty, the Enforcement or Licensing Board shall consider the following factors: 1. The gravity of the violation. 2. The impact of the violation. 3. Any actions taken by the violator to correct the violation. 4. Any previous violations committed by the violator. S. Any other evidence presented by the parties relevant as to the sanctions appropriate for the case given the nature of the violation. " Chairman Lantz asked Ms. Jessen if her comments were relevant to the case and she replied affirmatively. She stated she also wished to make a public comment later. Ms. Jessen asked if she could also refer to the 2009 and 2010 violations, and was advised to include the references in her Public Comment. She asked for clarification concerning the Board's policy regarding new applications for licenses. 18 161 ,Z A 9 July 20, 2011 She stated the old company was charged with a number of tax liens and judgments and asked how Mr. Schuck was allowed to open a new company in light of the problems that existed with the existing company. Attorney Neale asked her to limit her comments to the sanctions applicable in the case before the Board. Ms. Jessen stated Marco Marine performed extensive work on the Jolley Bridge from September 30th through November 1st without renewing its license. She informed the Marco Island City Council on November 1St and the Contractor came in on November 2nd to pay his fees. The work was done while the company was not registered. Mr. Schuck has received fines for previous violation of the same nature as contained in her complaint. Chairman Lantz asked Ms. Jessen if she was harmed by the work that was done. Lee Horn stated the Board was in the process of deciding what sanctions to impose on Mr. Schuck for the current violation. Attorney Neale confirmed the Board could be advised of previous violations which could be considered before rendering a decision. Patrick White asked Ms. Jessen what impact the non-compliance of the business entities had upon her personally. Attorney Neale stated the Board was aware of previous violations and the penalties imposed. The Board will decide on the relevance of previous violations upon the case being heard. Mr.White stated the nature of the violation was the disregard for the County's laws and also stated, as a Board member, he was interested in learning about the impact of the current violation. While the impact of previous violations, either personally or business related,may have some bearing on the case,the previous violations may not be relevant Thomas Lykos explained to that Ms. Jessen the Board will consider a previous violation if it is for the same type of offense being heard, i.e., a repeat offense of a similar violation. The gravity of the situation is different for the type of violation, i.e., a Workers' Compensation violation versus paperwork that was not submitted on time. He continued the Hearing was held was because the Respondent was already on probation. A simple change of name would have been handled administratively by Staff and would not have come before the Board. The Board will determine if the case before it was an administrative violation about clerical duties which is not relevant to similar violations, and should probably remain with Staff as an administrative issue. The gravity would not necessitate a hearing by the Board. Patrick White explained if the case concerned a Workers' Compensation violation and if she had been hurt and had outstanding medical bills under Worker's Compensation, that issue would be absolutely relevant and important for the Board to understand. He asked Ms. Jessen if she had information that fell within the scope under the prior violations, or the current violation,where there was some harm or other impact to her since that was the type of information the Board wanted to hear. 19 161 2 A 9 • July 20,2011 Michael Ossorio confirmed Mr. Schuck was charged with working without a license and he stipulated that he opened his new business without a license. It was noted since Mr. Schuck admitted his guilt, the presentation of additional evidence of his guilt was not necessary. Patrick White asked Ms. Jessen what was the impact of the Respondent's action upon her either personally or professionally. Ms. Jessen admitted there was no direct impact upon her. Attorney Neale noted the Ordinance states,under Section 2-202, "Disciplinary Proceedings,"that a complaint may be submitted to the Contractors' Licensing Board and investigated by the Contractor's Licensing Office. He continued the only formal charges made were those contained in the County's Administrative Complaint, not the complaint brought by Ms. Jessen. Therefore,the matters in her complaint were not relevant since they were not brought. Patrick White stated while Ms. Jessen's complaint may have"lit the fuse"which began the County's investigation, since the Respondent admitted to guilt,the Board should know if there is"something more"to be presented. There was further discussion concerning Mr. Jessen's statement concerning the history of why the complaint was made. Robert Meister stated the Board should deal only with what the Respondent did. Ms. Jessen stated she entered into an agreement. After doing so, she found out other information that she felt was harming others and her purpose was to represent Senior Citizens who signed contracts with unlicensed contractors. Chairman Lantz stated the situation was a consumer issue. Attorney Neale stated the Board was hearing one case with one charge and the charge had been stipulated to by the Respondent. He continued, stating the Board: • would determine the penalties to be imposed for the stipulated violation, • has been advised of the available penalties and sanctions, • has heard testimony from the County and the public concerning the impact of the violation,and • has been made aware of the previous violations which were committed by the Respondent. Some of the issues to be considered included: • the Respondent was already on probation at the time of the violation; • the name change could have been handled administratively if the Respondent had submitted an application after the probationary period ended; • the Respondent did not engage in a pro-active effort to come into compliance; • the initial complaint was made by a consumer—not by a business entity; • the company's previous history of violations; 20 161 2 A9 • July 20, 2011 • Marco Marine Construction, Inc. took on debts knowing it was in the process of being dissolved; • the confusing name "change" from Marco Marine Construction, Inc. to "MMC of Marco Island, LLC, d/b/a Marco Marine Construction," He suggested it would be appropriate for the Board to close the Hearing and the enter the penalty phase. He stated further public comment from Ms. Jessen could be heard later. Richard Joslin moved to approve closing the Public Hearing. Second by Robert Meister. Carried unanimously, 7—0. Chairman Lantz noted the penalty phase had began and asked the County for its recommendation. Michael Ossorio stated there were no recommendations from the County. It was noted the Respondent agreed to pay Operational Costs in the amount of $700.00 on or before July 30, 2011. It was also noted the Respondent's new company has been in compliance since May, 2011. Michael Ossorio stated when the Respondent came to the Office in November to renew the license on Marco Marine Construction, Inc. and was informed the only way he could effectuate a name change, because of the probation,was to appear before the Board, he elected not to do anything other than continue to operate Marco Marine Construction, Inc. He was offered an option which he chose to ignore. He clarified if the Respondent had not been on probation,the change of name would have been handled administratively. He further stated the Contractors' Licensing Office verified with Corporate and Financial Services that there was insurance on the corporation which was not qualified. He continued the State of Florida considers the situation to be a"qualified business"violation because the qualifier was licensed and the owner of MMC. The company was not properly registered—so it is not a typical "unlicensed"case. While the Respondent was charged with a violation, it was not for unlicensed activity. As requested by the Board, Attorney Neale again outlined the sanctions for the Board's consideration: 1. Revocation of a Collier County Certificate of Competency; 2. Suspension of a Collier County Certificate of Competency; 3. Denial of the issuance or renewal of a Collier County Certificate of Competency; 4. Imposition of a period of probation of reasonable length, not to exceed two years, during which the Contractor's contracting activities shall be 21 161 2 iA July 20, 2011 under the supervision of the Contractor's Licensing Board. Any period of probation or continuing education program ordered by the CLB may be revoked for cause by said Board at a Hearing noticed to consider said purpose. 5. Restitution; 6. A fine not to exceed five thousand dollars ($5,000.); 7. A public reprimand; 8. Re-examination requirement; 9. Denial of the issuance of Collier County(or City) Building permits or requiring the issuance of permits with specific conditions; 10. The award of reasonable legal and investigative costs for the prosecution of the violation. Attorney Neale noted Item#10 had been satisfied through the Stipulation Agreement. The issues for consideration by the Board included: • The gravity of the violation. • The impact of the violation. • Any actions taken by the violator to correct the violation. • Any previous violations committed by the violator. • Any other evidence presented at the Hearing by the parties relevant as to the sanctions appropriate for the case given the nature of the violation. Thomas Lykos ranked the issues as follows: • "gravity"and"impact"—relatively low • "corrections taken"—the company is in compliance • "previous violations"—there are a number of previous violations which is a negative against the Respondent • "other evidence"—nothing relevant was presented He further stated he thought the issue was administrative and there was very little, if any,harm done to the community at large. Due to the Stipulation, admission of guilt, and requirement to pay costs,there was little action required to be taken by the Board. Patrick White objected stating there was a history of violations to consider—a pattern of continuous and repetitive disregard of rules/regulations by the Respondent after a probationary period had ended. Richard Joslin proposed the following: • that the Operational Costs are increased from$700.00 to $1,000.00; • that the Respondent is fined$3,000.00 to be paid within 30 days; • that the new company (or the old company—whichever is operational) is placed on probation for a period of two years; and • that the license holder is required to re-test. 22 161 2► July 20,2011 Michael Ossorio stated the Operational Costs noted in the Stipulation were fixed by the Contractors' Licensing Office. Patrick White stated the quality of work was not an issue, and agreed that retaking the Business and Law test could be beneficial. Michael Ossorio noted one of the conditions of the last probation required the Respondent to take the Business Procedures test which he did on August 19, 2010 and scored a 75%. Richard Joslin withdrew the re-testing requirement from his proposal and agreed the Operational Costs would remain at$700. Chairman Lantz mentioned the option of a"public reprimand." Michael Ossorio noted a public reprimand had been issued as a press release through the Public Relations Office in another case two years ago. Thomas Lykos stated the violation was not directly related to the Respondent's business—it had nothing to do with construction, there were no Workers' Compensation liability issues, no clients were harmed,there was no harm to the public—it was an administrative violation which occurred while he was on probation. While there was no victim at the same time, Marco Marine Construction has appeared before the Board on several occasions. It may not be a repeat of a previous violation,but it was yet another violation from a company that just got off probation. Richard Joslin agreed there was a repetitive aspect and that the Board has seen Marco Marine too many times, at least three. Michael Ossorio confirmed any complaints against Marco Marine Construction would stay with the qualifier regardless of the current name of the company. There was further debate on whether or not to issue a public reprimand and the length of the probation. Consensus: A public reprimand was not supported. A two-year probation was suggested with an immediate suspension of his ability to pull new permits by the Contractors' Licensing Office pending a hearing before the Board. Lee Horn recapped the revised recommendation: • Operational Costs are assessed at$700.00 to be paid within 30 days; • the Respondent is fined$3,000.00 to be paid within 30 days; • that the Respondent's company is placed on probation for a period of two years, and any violation that has been investigated/validated by Staff would result in an immediate suspension of his permit pulling privileges pending a hearing before the Board. Michael Ossorio clarified if a violation involved Workers' Compensation issues, whether it was caught by inspection or found in the field, a"Stop Work" Order would be issued(pursuant to 440) and the entire project would be shut down until there was a hearing before the Board or compliance. 23 • 161 2 A9 July 20, 2011 Richard Joslin moved that James G. Schuck of"MMC of Marco Island,LLC" has been found guilty and has entered into a Stipulation Agreement in which he agreed to pay Operational Costs in the amount of$700.00 incurred in the prosecution of this case within thirty days, and approved assessing a fine in the amount of$3,000 to be paid within thirty days and Marco Marine Construction, Inc. or "MMC of Marco Island,LLC"will be placed on two years probation. Any violation that occurs during the probationary period that has been investigated/validated by Staff would result in an immediate suspension of Mr. Schuck's permit pulling privileges pending a hearing before the Board. Any failure to make timely payments of the fine or Operational Costs would result in the revocation of his current Certificate, as noted in the Stipulation Agreement Second by Patrick White. Carried unanimously, 7—0. Attorney Neale stated he would draft an Order within the next five days for distribution to the Board to review. The Findings of Fact and Conclusions of Law will be incorporated into the Order. Richard Joslin moved to close the Public Hearing. Second by Patrick White. Carried unanimously, 7—0. IX. PUBLIC COMMENT: Ms. Toni Jessen stated: • She purchased a home on Marco Island approximately 18 months ago; • A company was hired to repair a plumbing problem—a leak underneath the house—pipes were to be completely replaced; • During the course of the work, extensive damage was caused to the structure of the house because concrete beams and the vapor barrier were cut; • A large void(6' deep by 4' wide)remains under the house, collecting water; • Two engineers and a Contractor who specializes in concrete restoration have inspected the damage and the estimated cost to repair the damage will be approximately in the"six figure range;" • A complaint was filed against the company for poor workmanship; • It is her understanding that an administrative complaint was filed against the company by the Contractors' Licensing Office alleging that the work began without a issuance of a permit or the amount of the permit was incorrect; • The issue of workmanship has not been addressed because the City of Marco Island issued an after-the fact permit and inspected the property. The Final Inspection was passed. • Her complaint about the workmanship does not involve the work concerning the installation of the piping. The surrounding damage done to the property while in the process of installing the pipes is, in her opinion, a workmanship issue. • She stated the City of Marco Island did not inspect the property,the permit was not issued in advance of beginning work, and the amount of the permit was 24 • 161 2A9 July 20, 2011 incorrect—the job was a full replacement of piping costing approximately $30,000—not the cited"repair"of$2,500. The Contractor lied and the City of Marco did not protect her by inspecting the work. • This issue has not been presented to the Board for consideration. • The Board licensed the company and the Board is to regulate the license so that the public is protected. • She does not understand how the Board is able to protect the public if the full nature of the complaint was not brought before the Board. • She asked the Board to reopen the complaint and thoroughly investigate the charges. • She suggested that one person not be allowed to close a case without a review by a second person. Chairman Lantz stated the issue is a civil matter rather than a licensing issue and the Board cannot regulate the quality of workmanship. Thomas Lykos stated the Board needs to review evidence—photographs taken before, during, and after the work was done that documents the alleged damage. Richard Joslin noted the Board is governed by an Ordinance and follows the Florida Statutes. Workmanship does not fall under the items the Board regulates. The issue is a civil matter that should be brought before a Court of law. The issue is not a willful Code violation and does not fall under the Board's jurisdiction. It was noted if the case appeared before a Judge who then ruled against the Contractor, the decision could be considered by the Board. Attorney Neale pointed out"faulty workmanship" is a violation but there is a very specific definition within the Code. Charges against contractors are brought before the Board through the Contractors' Licensing Office. A sworn complaint is brought to the Contractors' Licensing Office and investigates and determines whether or not to prosecute. Jamie French, Director—Operations &Regulatory Management, Growth Management Division, stated local Building Department inspectors are not licensed to inspect a building for engineering or design construction standards. He continued the County worked closely with the State-identified licensed Building Code Official for the City of Marco Island. There was an administrative violation—the inaccurate figure for the Notice of Commencement—and the Contractor did not dispute the citation. If the job was completed according to the Florida Building Code and was signed-off by the Building Code Official,there is very little else that can be done. The report showed that the required inspections were conducted. Regarding Marco Marine: • She inquired about Marco Marine by calling the Contractors' Licensing Office and was told that"everything was fine" • She had a problem with the company and made a public records request to obtain their entire complaint file 25 161 2 It 9 July 20, 2011 • She had concerns regarding how the complaints were handled—there were a total of three violations that occurred within the probation period that were dismissed by the City of Marco and not brought before the Board • There are three qualifiers—one qualifier never appeared for any hearing • Why was the State of Florida not notified. • There are other citizens who have been ripped off. • She stated these are serious issues that should be fully investigated. James French noted the County's website, at the Contractors' Licensing page, publishes all licensing activity and whether or not there has been a finding of guilt. X. MEMBER COMMENTS: • Patrick White noted Item B under"New Business"had not been heard and suggested adding it to the next Agenda. Patrick White moved to approve tabling discussion of Smaili Constantino's Request for a Waiver of Examination. Second by Richard Joslin. Carried unanimously, 7—0. XI. NEXT MEETING DATE: Wednesday, September 21,2011 Board of County Commissioners' Chambers,Administrative Building"F," 3rd Floor(Government Complex),3301 E. Tamiami Trail,Naples, FL 34112 There being no further business for the good of the County,the meeting was adjourned by the order of the Chair at 12:35 PM. COLLIER COUNTY CONTRACTOR LICENSING BOARD %,t/ 7 7 Kyle Lantz, Chairn an The Minutes were approved by the Board/Chairman on , 2011, "as submitted" [ 1 OR "as amended" F 1. 26