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CLB Minutes 09/21/2011 CONTRACTORS LICENSING BOARD Minutes September 21 , 2011 161 2 A9 September 21,2011 MINUTES OF THE COLLIER COUNTY CONTRACTORS' LICENSING BOARD MEETING aggigli Naples, Florida, September 21, 2011 0 LET IT BE REMEMBERED that the Collier County Contractors' I& sing"""" 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 Vice Chair: Lee Horn Michael Boyd (Excused) Fiala y J Terry Jerulle Richard Joslin f-I��nning� Thomas Lykos f:oylc� y G! ita Robert Meister Jon Walker Patrick White ALSO PRESENT: Jamie French, Director— Operations & Regulatory Management, GMD Michael Ossorio, Contractors' Licensing Supervisor Rob Ganguli, Licensing Compliance Officer Thomas Keegan, Licensing Compliance Officer Patrick Neale, Esq., Attorney for the Contractors' Licensing Board Steve Williams, Esq., Assistant County Attorney Misc.Comic DS. 121■-b11 k tea: 1 6 1 2 September 21,2011 Any person who decides to appeal a decision of this Board will need a record of the proceedings and may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the Appeal is to be based. I. ROLL CALL: Chairman Lantz called the meeting to order at 9:01 AM and read the procedures to be followed to appeal a decision. Roll call was taken and a quorum was established. Eight members were present. II. ADDITIONS OR DELETIONS: Change—Deletion: • Under Item VII, "Old Business"— o (G) Luis F. Velez—Contesting Citation(s) III. APPROVAL OF AGENDA: Thomas Lykos moved to approve the Agenda as amended. Second by Richard Joslin. Carried unanimously, 8—0. IV. APPROVAL OF MINUTES—July 20,2011: Thomas Lykos moved to approve the Minutes of the July 20, 2011 meeting as submitted. Second by Jon Walker. Carried unanimously, 8—0. V. DISCUSSION: Michael Ossorio noted: • 700 Citations were issued • 8,000 job sites were visited(includes complaint-driven and random inspections) • County renewals are taking place o Specialty Contractors and County-registered Contractors must renew on or before September 30t to avoid paying a late fee Thomas Lykos requested to receive updates of the Budget in October and January. Mr. Ossorio explained it was possible the information would be contained on two documents due to the different County programs("CID-PLUS" and"CityView"). Thomas Lykos moved to request the Licensing Supervisor provide an end of Fiscal Year Budget Report in October and an end of calendar year Budget Report in January 2012. Second by Patrick White. Carried unanimously, 8—0. VI. NEW BUSINESS: (None) VII. OLD BUSINESS: A. Orders of the Board Richard Joslin moved to approve the signing of the Orders of the Board by the Chairman. Second by Thomas Lykos. Carried unanimously, 8—0. 2 161 .12 It a A9 September 21,2011 (NOTE: In each of the cases heard under this Section and Section VIII, as follows, the individuals who testified were sworn in by the Attorney for the Board.) B. Tony C. Kirkland—Review of Credit Report(George T. Sands,Inc.) Michael Ossorio provided background information: • Tony Kirkland previously appeared before the Board to qualify a Second Entity (George T. Sands, Inc.) • The Board placed the Certificate for the Second Entity on probation for six months and required Mr. Kirkland to provide a clarification concerning the large checks written/paid to George Sands, and to also provide an updated credit report • Mr. Kirkland experienced some medical issues and has been required to commute to Tampa for treatment • He was unable to provide a current credit report as required Mr. Ossorio stated Mr. Kirkland has requested a Continuance of his case. Staff had no objection but could not approve the request because the Second Entity was on probation. He suggested tabling the issue until the October meeting. Patrick White noted an explanation or clarification of the number and amount of checks written to George Sands was the other issue of concern for the Board. Patrick White moved to approve granting a Continuance to Tony C. Kirkland until the October meeting. Tony Kirkland stated: • His personal credit report referenced outstanding medical bills. • He paid$17,000 toward the balance of$25,000. • The payments were reflected on the credit report that he presented in March as the last item • He has been unable to work for the past three months and has been undergoing treatment at the VA Facility in Tampa. • The checks were written from George Sands' personal checking account • He admitted he was not involved in the payroll portion of Mr. Sands' business Mr.Joslin verified that the Respondent was sent copies of the documentation including the Agenda for the current meeting, as well as a copy of the Board's Order. Mr. Ossorio confirmed that he spoke with Mr. Kirkland but due to his medical situation,he may not have remembered the conversation. Mr.White stated the intent of his Motion was to require Mr. Kirkland to provide the updated credit reports and an explanation of the large checks written to George Sands. 3 161 2 4199 September 21,2011 (Note: Patrick White stated he will not attend the October meeting.) Michael Ossorio clarified Tony Kirkland was required to provide copies of his personal credit report and the credit report for the Second Entity, i.e., "George T. Sands, Inc,"which is on probation. Thomas Lykos noted rather than granting a Continuance,there was another option, i.e.,the Board could end the probationary period and require the Respondent to return with the required documentation. The Board could then deicide to grant either permanent approval of the Request to Qualify a Second Entity or permanent denial. He expressed concern regarding the Respondent's admission that he has no idea how Mr. Sands manages his business' finances. Tony Kirkland stated he requested to qualify a Second Entity to help Mr. Sands obtain an irrigation license and teach him how to perform irrigation work. He was surprised that the Board was requiring him to know how Mr. Sands spends his money. Richard Joslin asked the Respondent if he knew exactly what his responsibilities were as a Qualifier. He explained to Mr. Kirkland that he was allowing another company to work under his license and,therefore, was responsible for everything the company did. Mr. Kirkland stated he was not aware of his financial responsibilities. Thomas Lykos directed a hypothetical question to Michael Ossorio: If he hired Mr. Sands' company and paid him for a job,but Mr. Sands did not show up to work,who would he (TL) call? Michael Ossorio replied if the problem were related to irrigation,the contact would be Mr. Kirkland as the Qualifier. Mr. Kirkland expressed his confusion. Mr.Lykos explained the hypothetical problem in greater detail. Tony Kirkland stated George Sands could not meet with a client to design an irrigation system unless he was with him because Mr. Sands didn't know how to do it. The purpose of the qualification was to teach Mr. Sands how to perform irrigation work. He stated"there is no way it would happen." Terry Jerulle objected, citing an example,Mr. Sands could meet with a potential client while Mr. Kirkland was appearing before the Board and Mr. Kirkland would not know about it. Chairman Lentz cited another example, stating that Mr. Sands could accept a check from a client but Mr. Kirkland would not know it unless he was aware of the business' finances. Terry Jerulle reiterated the Respondent was financially responsible for George T. Sands, Inc. He continued, the Respondent was asked, "Where has the money being going?"but his reply was, "Am I responsible to find out where his money goes?" The Board's answer is "Yes." He stated it was apparent the Respondent did not understand his financial responsibilities regarding the Second Entity. Mr. White noted his concern was why the checks were issued to George Sands in large amounts and with great frequency. He stated the question the Board wants answered is, "Why were large checks issued to George Sands from the business?" 4 161 2 September 21,2011 (Jamie French arrived at 9:27AM) Chairman Lantz suggested that Mr. Sands attend the October meeting. Richard Joslin asked the Respondent if he were aware of any ongoing contracts for current projects. Tony Kirkland stated there were contracts for maintenance work, but not for new installations. Lee Horn noted if the Board agreed to continue the matter, the probation should be extended. Patrick White amended his motion to approve extending the probationary period until the October meeting. Second by Robert Meister. Lee Horn asked the Respondent if he understood exactly what the Board had said and what documents to bring to the October meeting, i.e., an updated personal Credit Report, a Credit Report for the Second Entity, and a clear explanation of why so many checks were issued in such large amounts. He also recommended that Mr. Sands attend the October meeting. Mr. Kirkland stated he understood. The Chairman called for a vote on the Motion, as amended. Carried unanimously, 8—0. C. David W. Wainscott—Review of Credit Report Michael Ossorio referred to Page 3 of the"Findings of Fact:" • Mr. Wainscott required was appear and provide full credit reports to the Board for review • The Board was to determine whether to continue probation, extend it, or end probation and allow the license to be used without probation. • The Board previously restricted his Certificate ("Residential Contracting Only") due to his lack of experience as a General Contractor Mr. Ossorio verified that a copy of the Board's Order was sent to David Wainscott and stated he spoke with him on several occasions concerning providing the required information. Mr. Wainscott did not comply. Recommendation: Suspend Mr. Wainscott's Certificate. 1 Michael Ossorio will contact the State of Florida to request a suspension of Mr. Wainscott's registration until he appears before the Contractor's Licensing Board. Lee Horn moved to approve suspending David W. Wainscott's Certificate of Competency until further notice, and to notify the State of Florida to request a suspension of his registration. Second by Patrick White. Carried unanimously, 8—0. 5 1612 A91 September 21,2011 D. Daniel M. Kimball(d/b/a Kimball Floor Installation,Inc.)—Probation Michael Ossorio noted Mr. Kimball was not present and provided the following background information: • Mr. Kimball was ordered to pay the sum of$3,335.00 as restitution to the consumer, beginning April 1, 2011,to be paid in full by July 1, 2011 • He did pay the sum of$500 to the Contractors' Licensing Board • The restitution payments were not made • As ordered by the Board, Mr. Kimball's license was revoked on July 5, 2011 and he received notification of the revocation • He was to appear before the Board concerning his probation Update: • In order to restore his license, Mr. Kimball will be required to pay the restitution in full to the consumer and petition the Licensing Board for a hearing Patrick White noted for the record that Daniel Kimball had been properly noticed regarding the time and date of the September meeting, and was required to appear before the Board. He stated Mr. Kimball's absence constituted another violation of the Board's Order which should be considered if he petitions to reinstate his license. E. James Galarza—Waiver of Examination (Reinstatement of License) Chairman Lantz noted Mr. Galarza was not present. F. Michael Francis—Application to Place Certificate into Dormancy Mr. Ossorio notcd: • Mr. Francis is a Registered Residential Electrical Contractor • He has not renewed since 2009 and his Certificate of Competency was cancelled • The Ordinance requires that he take the exam again • He wishes to place his Certificate into dormancy • He has taken continuing education courses and his Registration is current with the State of Florida Recommendation: Approve the application for dormancy. When the dormancy period expires, Mr. Francis will be required to submit a full application and a credit report. If he meets the criteria at that time, a new Certificate can be issued. Michael Francis stated: • Due to the economy and lack of payment from customers,he has experienced financial reversals 6 161 2 4k ,t() September 21,2011 • He is unable to pay the total amount of fees ($610.00) at this time • He has not bid on any jobs or worked in Collier County • He is licensed and active in Palm Beach, Port St. Lucie and Martin Counties • He resides in Palm Beach County Richard Joslin moved to approve placing the Certificate into Dormancy until a future date at which time Michael Francis is required to appear before the Board to apply for reinstatement and pay the appropriate fees. Second by Patrick White. Carried unanimously, 8—0. G. Luis F. Velez—Contesting Citation(s)—Deleted,per amended Agenda H. Rick L. Randolph—Contesting Citation(s) Citations: #6482 (Unlicensed Electrical) and#6483 (Unlicensed Roofing) Date: August 8, 2011 Fine: $300.00 each 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. Rick Randolph presented the following information. • Recently returned to Collier County • Registered with the State of Florida as a Certified Building Contractor o d/b/a"General Home Construction&Aluminum" (#CBC 031949) o License expires on August 31, 2012 • Began working for a Contractor(Specialty license)in March as an employee; his pay rate was $25.00/hour • The roof leaked and drywall was damaged o He notified the Contractor of the problem and repaired the leak by installing a piece of flashing o It was a simple repair— "a handyman special" • He also turned off the breakers and disconnected an electrical box which has remained at the premises • Citations were issued for electrical and roofing violations Michael Ossorio noted the Contractor appeared before the Board on April 20th and had been cited for working beyond the scope of his license (repairs made to a column) and working without obtaining a Permit. Mr. Randolph stated the Contractor `feels he can do anything because he has a State license for Specialty. " Richard Joslin asked if the Respondent received a payroll check from the Contractor and Mr. Randolph responded he was paid in cash. 7 • 161 2 A 9 September 21,2011 Mr. Randolph claimed the Contractor was two to three weeks late in paying him. When the situation became too much,he contacted the client said the Contractor received a total of$38,000. The Contractor invoiced the client for work that had not been performed. Terry Jerulle noted that, as a licensed Contractor, Mr. Randolph should have been aware of the rules which have not changed: • Workers' Compensation is to be paid, • Employees receive paychecks, • Employees are not paid in cash—otherwise they are considered to be Subcontractors Michael Ossorio clarified Mr. Randolph is State-certified and his current license will not expire until 2012. He can work anywhere in Florida but his registration to pull Building Permits has expired. Mr. Randolph was cited for performing electrical and roofing work which was outside the scope of his license. Patrick White noted even if the Respondent was registered at the time the Citations were issued in Collier County,there would be violations because the work performed was outside the scope of his license. Mr. Ossorio stated the issue was not registration—the County's premise was that Mr. Randolph was working as a Subcontractor. Thomas Lykos referred to Item"E-8" in the information packet presented to the Board. He stated the two documents appeared to be invoices issued by the Respondent's company to the Contractor's company, "Storm Control." He asked Rick Randolph if he had submitted his hours to the Contractor via the invoices. Mr.Randolph stated the Contractor had requested a written statement and he utilized an old invoice form contained in his laptop. Thomas Keegan,Licensing Compliance Officer, reported: • July 26, 2011 —A complaint was received and a site visit was made o Investigator Keegan spoke with the Respondent who stated he had been an employee of Storm Control o Mr. Randolph noted the homeowner hired him to complete the work o The work performed consisted of electrical,plumbing, interior alteration,replacement of windows and doors—all of which was unpermitted o A"Stop Work" Order was issued and the homeowner was contacted concerning the issues at the job site • August 4, 2011 —Investigator Keegan met with Robert J. Waring,the Qualifier for Storm Control,to discuss the permitting/licensing issues. o Mr. Waring stated the work was"subcontracted"to Mr. Randolph and a contract in support of his statement was provided o A Workers' Compensation exemption was noted for the Qualifier, but no policy for employees--no leasing company o The contract between the two companies documented that General Home Construction&Aluminum had been contracted to perform roof and electrical work 8 X61 Z k A 9 September 21,2011 • August 8, 2011 —Investigator Keegan met with Mr. Randolph o Mr. Randolph was asked who had been subcontracted to perform the roof and electrical work. o Mr. Randolph stated he did the work as an employee of Storm Control o When the contract between the two companies was presented to Mr. Randolph,he stated it was not a contract but a log of the work that he performed o Two Citations were issued for performing unlicensed roof work and unlicensed electrical work Chairman Lantz stated, as a Contractor,he has hired subcontractors to work for his company at"time and materials,"and he expected the sub to be insured. Whether he hired a sub or was hired out as a sub for another Contractor, a license was involved—the sub works under his own license and insurance. He noted there is a great deal of difference between an"employee"and a Subcontractor. If he hired a GC (General Contractor)to do a job, he would make sure the GC used a licensed Subcontractor to perform the electrical work. If the sub was not licensed, the GC would be liable. He continued that Mr. Randolph worked as a Sub who performed the roofing and electrical work himself instead of subcontracting it out and was trying to blame someone else. Rick Randolph reiterated he did not subcontract the job from Mr. Waring but was hired to work"by the hour." Chairman Lantz countered being paid by the hour does not mean someone is an employee—an electrician is paid by the hour and he is not an employee—he is still the electrician. He noted he was convinced the Respondent was not an employee due to the invoice. Mr. Randolph stated he used an old form in his laptop to accommodate Mr. Waring's request for a"typed"accounting of the time and the work performed. Lee Horn noted the Citations were issued in August but the invoices were dated in April. He asked if the Respondent was working directly for the homeowner in August. Mr.Randolph replied the work had been completed by the time the Licensing Officer arrived. He stated when he spoke to the homeowner, he stipulated he would take over the job but permits were necessary for the work that Mr. Waring had done. He informed the owner it would be necessary to hire an engineer. He stated it was only after he was hired by the owner that he "went back into contracting again." He did not pull any permits—he is waiting for the engineer. He met with a"Gary"who inspected the site and stated [blue]prints must be submitted due to the amount of work. The homeowner did hire an engineer drawings have not been completed. Richard Joslin stated the focus of the Board should be on whether the Respondent is guilty or not guilty of the violations contained in the two Citations. 9 161 2 • September 21,2011 Attorney Neale commented: • The point was to determine guilt or innocence. • The Board should examine the definition of an"independent contractor." • According to the IRS, an independent contractor controls the hours he work—sets his own schedule, and receives a 1099 at the end of the year. • Companies violate the independent contractor rules by classifying employees as independent contractors when they are not. • It is not the responsibility of an employee to ensure that taxes are taken from the paycheck or to ensure there is Workers' Compensation coverage. It is the responsibility of the person who contracts with him. • The Respondent did not have control of his hours—he was told when to work. He did not supply his own tools, which is another test. • The question for the Board to consider is did Mr. Randolph meet the standard as an independent contractor or was he, in fact, an employee who was being taken advantage of by an unscrupulous Contractor who didn't do what he should—by taking out taxes or providing Compensation insurance—and who was skating by with an exemption for himself. • The Board should examine both sides of the issue. • Mr. Randolph has a contracting license and he did issue an invoice using his old letterhead,but was it an invoice or was it a time card. That is another test. • The Board should carefully examine/review the standards of an independent contactor versus an employee. Patrick White asked the Respondent if he filed a W-4 and the response was"no." Mr.White noted a written contract had not been submitted specifying that Rick Randolph was an employee. At the time the work was performed,he worked"as needed." Rick Randolph stated he was often removed from the job site to work at another location, such as in Fort Myers. Chairman Lantz noted the IRS and the Ordinance have different definitions of independent contractor. He asked if a person was paid in cash,was he still considered to be an employee or an independent contractor or subcontractor. Attorney Neale stated the question was who was responsible taking out the taxes. The employee was not required to ask if taxes were taken out and if there was Workers' Compensation coverage before accepting the paycheck. Terry Jerulle stated the Respondent is a state-certified Contractor who suddenly "played dumb"—he worked for a Contractor who was not a licensed electrician but hired him to perform electrical work. The Board was asked to believe the Respondent did not realize he should be licensed to perform any electrical work and that a Permit was required. Mr.Jerulle stated he found the presumption to be insulting. The Respondent submitted an invoice on his own letterhead for electrical work performed. While he understood Attorney Neale's point,he knew his vote on the issue. He continued that for the Respondent to use the excuse that he was hired by the hour—he should he should have known better as a certified building contractor. 10 161 2 ./A9 September 21,2011 Rick Randolph stated he only disconnected the electrical box. He did not hook anything up—there was no danger to anyone. He equated it to removing old drywall and not installing a new piece. He further stated Mr. Waring going to hire an electrical contractor to hook up what was needed. Chairman Lantz noted there is a difference between a safe disconnect and one that is not. Mr. Randolph stated he turned off the breaker box. Chairman Lantz stated he has been called to many job sites and found that the wrong breaker had been turned off—which was an unsafe situation. Whether the Respondent knew how to do the work or not didn't matter—he was not licensed to perform the work. He stated the Citation allows the Board to impose an additional fine and his opinion was the fine should be the maximum allowed. He stated he,too, was offended that the Respondent hid behind the"employee"excuse. Rick Randolph reiterated he was hired as an employee and stated his mistake was putting his time on an old invoice. Richard Joslin asked the Respondent if he had a payroll record to submit as proof of his employee status and the response from Mr. Randolph was"no." Richard White asked if there was other testimony or evidence to be submitted. Attorney Neale reminded the Board there was only one piece of testimony concerning the Respondent's employment status—his testimony. Mr. White noted the Respondent's testimony explained his use of the invoice form and nothing challenged or refuted his testimony as a rational or logical explanation. Whether he was operating as an employee or independent contractor,the only piece of evidence submitted by the County was the invoice. The Respondent has refuted he was an independent contractor/subcontractor. Even if he was an employee,the Respondent should have known better due to his certification. The Board should decide how much work was done. He continued that he was convinced there was a roofmg violation. The amount of electrical work done consisted of pulling a breaker or main. He asked for additional testimony about the electrical work. Investigator Keegan stated there were three rooms with new wiring. He referenced the invoice concerning the number of hours spent performing the work. Mr. White referenced the invoice: 2 hours of electrical on May 3, 2011. He asked the Respondent to define the scope of work performed for the two hours. Rick Randolph stated he disconnected the electrical by shutting down the breakers. He disconnected the air conditioner's box to remove the siding. He ran wiring through the wall but it was not connected to anything. Mr.White stated he was convinced the violations were valid. There was an intent on the Respondent's part to perform actions or work that was unlicensed. He continued if the Respondent did not have status as a Certified Building Contractor, his vote might have been different. Terry Jerulle asked Investigator Keegan if he questioned Mr. Waring concerning the Respondent's status. Investigator Keegan stated he did and Mr. Waring responded that Mr. Randolph was a subcontractor. 11 161 2 199 September 21,2011 Attorney Neale explained Mr. Waring's response was hearsay and was used to controvert the Respondent's testimony. Rick Randolph countered that Mr. Waring lied. Attorney Neale cited another element from the Ordinance: • An"employee"means any person who works for or is under the supervision or control of a licensee,provided that said employee does not hold himself out for hire or engage in contracting except as an employee. Mr. Neale stated the other test to be made by the Board: • Did the Respondent hold himself out as a Contractor or did he hold himself out as only an employee? In response to a question from the Board, Attorney Neale explained hearsay can be used as evidence, but at a lower level than direct testimony. He stated direct sworn testimony has more weight than hearsay. Thomas Lykos asked Investigator Keegan to read his testimony into the record and provide a copy of his written statement for the Board to review. Thomas Keegan's statement: "On July 26,2011, I received a call from Customer Service in regard to unpermitted and unlicensed work at 411 Gulf View Drive. I made a site visit and spoke to Mr. Randolph of General Home Construction&Aluminum who stated that he used to be an employee for Storm Control but was no longer and that the homeowner had since hired him to take over the job. Mr. Randolph showed me the work that was done which consisted of electrical,plumbing, and interior alterations such as sliders and windows. An atrium was replaced and had been closed in. Doors were replaced. The size of the opening and the frame was altered. A window was removed and replaced with a door. All the work was uiiperniitted. I proceeded to issue a Slop Work Order. I called and spoke to the homeowner." Thomas Lykos stated the first site visit was in July but the invoices or timecards were dated"April"and"May." There was a window of time between the end of May and July 26th—it is not known when Mr. Randolph left Storm Control as an employee and took over the job. There are timecards from April and May. There is testimony from Investigator Keegan that Mr. Randolph stated he left the employment of Storm Control and took over the job as the Contractor for the job. Thomas Keegan's statement(continued): "On August 4, 2011, I met with Rob Waring, the Qualifier for Storm Control and addressed the permitting/licensing issues. At that time, Mr. Waring stated that he subcontracted the work to Mr. Randolph and supplied a contract stating so." 12 16 1 * 9 September 21,2011 Mr. Lykos asked if Rob Waring showed Investigator Keegan a contract between himself and Mr. Randolph as a Subcontractor. Mr. Keegan stated the Board had a copy of the document. It was determined the document in question was actually the two invoices between the parties which the Investigator referred to as a"contract." Michael Ossorio noted the dictionary defines a"contract" as a proposal. He referred to Item"E8"—"Proposal submitted to Storm Control." Richard Joslin stated a proposal that has been signed is a contract. Attorney Neale clarified the document did not resemble a proposal—it was an invoice. The three elements of a contract are an offer, acceptance, and consideration—they were not present in the document. Mr. Lykos noted in the construction industry a verbal agreement constitutes a contract. Attorney Neale stated there was direct testimony concerning an employment arrangement, but only hearsay that there was a contract. Mr. Lykos stated there was an invoice from one construction company to another construction company—but the testimony was the document was not an invoice, it was a time card. He asked the Respondent where the other time cards were. Attorney Neale stated the Board was to determine whether or not the violations cited are valid. Everything else may be persuasive or interesting,but what happened on August 8, 2011 when the Citations were issued is the relevant issue. • Was the work described on the invoices performed in April and May? Thomas Keegan stated he made his determination based on the work that had been completed and the information contained in the invoices. Patrick White moved to approve finding that, with reference to Citations #6482 and#6483, the Respondent was not in violation breed upon the fact that he was operating as an employee. Mr.White said he bought the Respondent's"story"because it made sense. He further stated maybe the Respondent should have known better—maybe he should have checked for Permits,but that was not his job. The Respondent signed on as an employee at$25.00 per hour. From the Respondent's perspective, even though he was a CBC,he limited the scope of his exposure by only operating as an employee. Chairman Lantz stated the issue has been polarizing. He asked if there was a second in support of Mr. White's motion. (A second in support was not made.) Chairman Lantz asked for another motion to be made. 13 161 2 A 9 September 21,2011 Richard Joslin moved to approve finding that, with reference to Citations #6482 and#6483, the Respondent was in violation and fines are assessed in the amount of$300 per Citation. Second by Patrick White. Motion carried, 7— "Yes,"/1— "No." Jon Walker was opposed. I. Thomas Shalicross—Waiver of Examination (Reinstatement of License) Michael Ossorio noted Mr. Shalicross was not present. BREAK: 10:41 AM RECONVENED: 11:00 AM VIII. PUBLIC HEARINGS: A. Case#2011-09: William Edward Luker,III, d/b/a "Wel-Built Contractors,Inc." Rob Ganguli,Licensing Compliance Officer,noted that Mr. Luker was not present for the Hearing. Attorney Neale asked the County to enter testimony on the record concerning the notification process. [Excerpt: Page 12 of the Minutes of the Contractors' Licensing Board Meeting held on July 20,2011: "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. 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 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."] 14 • 161 2 k.. September 21,2011 Michael Ossorio stated for the record the Respondent was present at the Board's meeting on July 20, 2011 and requested a Continuance which was granted. Due to an issue with his address,the Respondent acknowledged for the record that he received proper Notice during the Hearing of the September 21st Hearing date. Mr. Ossorio further stated he met with the Respondent approximately one week after the July meeting and reminded him of the date for the September Hearing. The Respondent stated he intended to clear up the outstanding issues with City of Marco Island Building Department prior to the September meeting. He confirmed he called the Respondent several times and spoke with him on September 20th to remind him the Hearing was scheduled for September 21, 2011. The Respondent stated he would"try to attend." The Board members were polled and confirmed they were familiar with the Hearing procedures. Rob Ganguli requested to enter the information packet previously distributed to the Board members into evidence. Thomas Lykos moved to approve the request. Second by Richard Joslin. Carried unanimously, 8—0. Mr. Ganguli referred to Board to the Evidence Packet's Table of Contents: • Item E-10: an Agreement between the City of Marco Island Building Department and William E. Luker, III • Items E-11 through E-15: email correspondence between the three entities monitoring the activity taking place • A letter from Robert H. Mahar, Building Official for the City of Marco Island, dated September 7, 2011 (last page of the packet) Richard Joslin moved to approve entering the letter from Robert H. Mahar as County's Exhibit "A"in Case#2011-09. Second by Thomas Lykos. Carried unanimously, 8—0. Rob Ganguli presented the County's case: • The case came before the Board at the July 20, 2011 Hearing at which time the Respondent requested a Continuance which was granted • The Respondent contacted the Contractors' Licensing Office on the day before the Hearing claiming he had not received adequate notification of the Notice to Appear • Mr. Luker is the Qualifier for Wel-Built Contractors, Inc. and is a State- certified General Contractor, License#CGC 1516708 • The Respondent was scheduled to appear before the Board on September 21, 2011 for failure to obtain Building Permits for work that was completed and resulted in a willful Building Code violation. Mr. Ganguli presented the following Summary: "On February 18th,2011, 1 received a complaint from the City of Marco 15 161 2 September 21,20 1 Island Building Department regarding multiple building permits applied for on December 1, 2010 by Wel-Built Contractors, qualified by William Luker, (License#CGC1516708). The permits were for the replacement of windows in individual units at the Seabreeze South apartment complex at 190 North Collier Boulevard, Marco Island, Florida. Contractors'Licensing was made aware of two separate occasions when the Building Department notified Mr. Luker that his permits were ready for issuance, but despite this,they were never picked up, and the Deputy Building Official of Marco Island observed that the window replacements had been completed. A meeting was held with Bob Mahar, City of Marco Island Building Official, who advised that he would not take punitive action against Wel-Built Contractors if the permits were closed out and the accumulated fees collected. I contacted Mr. Luker who attended a second meeting with the Marco Island Building Official on March 7, 2011. Mr. Luker was advised of a Building Code violation for working without permits and given the option of addressing this matter by obtaining his permits, required inspections, C/Os, and making installment payments in the amount of$1000.00 per month until the outstanding balance totaling$6,708.50 was paid. The City of Marco Island Building Department outlined the terms and time lines for the installment payment which Mr. Luker agreed to as an alternative solution. Despite this agreement, Mr. Luker did not comply with these terms. Having been afforded an opportunity to comply, Mr. Luker's inability or unwillingness to resolve his outstanding permitting issues with the City of Marco Island Building Department denotes a violation of Florida Building Code, Section 105.1 pertaining to permits, and,therefore, is a subsequent violation of Collier County Ordinance 2006-46, Section 4.2.2.,which states: "Willfully violating the applicable Building Codes or laws of the State,City,or Collier County." Mr. Ganguli referenced the letter from Robert Mahar, admitted as County's Exhibit"A." Patrick White noted it was a strongly worded letter from the City of Marco Island's Building Official and cited the following statement: "This is a willful Building Code violation of the highest magnitude and I strongly recommend revocation of his[Mr. Luker'.51 permitting privileges within Collier County. " Michael Ossorio requested that the contents of the letter were read into the record for the benefit of the public. Rob Ganguli read the following: 16 • 16I 2 r t September 21,2011 City of mo Is_and September 7, 2011 Contractor Licensing Board Members: Mr. William Edward Luker,III or Wel-Built Contractors,Inc,have made no attempt to resolve or satisfy the original complaint. There are still twenty one (21)permit applications waiting to be processed in our files at the City of Marco Island. The work associated with these permit applications has been completed without the permits being issued or paid for. This is in violation of Section 105.1 Florida Building Code-Building(2007 Edition). Mr. Luker has been given many opportunities to resolve these Code violations. His only actions, in this matter,have been to bide more time,not to resolve the issues. This is a willful Building Code violation of the highest magnitude and I strongly recommend revocation of his permitting privileges within Collier County. The building community cannot afford to have deceptive contractors or licensed contractors defrauding the public. I have every intention of filing a formal complaint with the Department of Business and Professional Regulation at the conclusion of this Hearing. A stern ruling by this Board will speak volumes as to how seriously the citizens of Collier County consider deception and fraudulent activities being conveyed by State-certified contractors. Robert H.Mahar Building Official- BU1369 Marco Island,Florida State of Florida, County of Collier Sworn to and subscribed before me this 7th day of September, 2011,by Robert Mahar,the Affiant, who is personally known to me. /s/ Betty L. Larson Notary Public—State of Florida Commission Number: DD 710624 (Notary Seal) Commission expires: December 29, 2011 17 161 2 A9 September 21,2011 Thomas Lykos asked if the work had been inspected. Rob Ganguli stated the work may not have been inspected since the permits were not issued. Michael Ossorio noted Inspectors will not perform inspections—it is not within their purview to perform site inspections without a Building Permit. They may have been reviewed by the Deputy Building Inspector but not formally inspected. Mr. Lykos stressed it is important that the work is inspected to verify that it was done properly and to Code. Patrick White concurred and noted the homeowners' insurance policies may not be eligible for a rate reduction or provide coverage—there is a potential for added harm to the consumers. Rob Ganguli presented the County's Closing Statement: • Despite numerous chances to rectify the permitting issues with the City of Marco Island, Mr. Luker has failed to do so. • The Continuance granted by the Contractors' Licensing Board at the July 20th Hearing was another opportunity to appear but he not complied. • Numerous attempts were made to monitor Mr. Luker's progress but the attempts to contact him were unsuccessful. • Mr. Luker again waited until the day before the scheduled Hearing to contact the Contractors' Licensing Office,again claiming he had not received adequate notification of the Hearing. Lee Horn moved to approve closing the Public Hearing. Second by Richard Joslin. Carried unanimously, 8—0. Attorney Neale stated: • The Board is to ascertain in its deliberations that fundamental fairness and due process were afforded to the Respondent. • Hearsay evidence may be used to explain or supplement any evidence but shall not be sufficient, by itself,to support a Finding in this or any other case unless admissible or objection in Civil actions in Court. • The Standard of Proof in actions where a Respondent may lose his privileges to practice his profession is that the evidence presented must prove the Complainant's case in a clear and convincing manner. • The Standard of Evidence is to be weighed solely as to the charges set out in the Complaint. • The only charges the Board may decide upon are the only ones to which the Respondent has had an opportunity to prepare a defense. • The damages awarded by the Board must be directly related to the charges. • The decision made by the Board shall be stated orally at the Hearing and is effective upon being read, unless the Board orders otherwise. • The Respondent, if found guilty, has certain appeal rights to the Contractors' Licensing Board, the Courts, and the State Construction Industry Licensing Board, pursuant to Florida Statutes and Rules. 18 161 2 September 21,2011 • The Board shall vote upon the evidence presented in all areas and if the Respondent is found 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 Complaint. Lee Horn moved as follows: "In Case #2011-09, Collier County Board of Commissioners versus William Edward Luker,III, d/b/a Wel Built Contractors,Inc., (License#CGC1516708) (Collier Certificate Number 33893), the Respondent is found guilty of Count I, Section 4.2.2, of the Administrative Complaint, "Willfully violating the applicable Building Codes or laws of the State, City or Collier County." Second by Terry Jerulle. Carried unanimously, 8-0. Attorney Neale stated the Board is limited in the number of sanctions that can be imposed since the Respondent is a State-certified General Contractor. • The Board may deny the issuance of Building Permits for Collier County or the City, or require the issuance of Permits with certain conditions • Notice shall be given to the Florida Department of Business and Professional Regulation within fifteen(15)days after the Board has decided to deny/restrict the issuance of permits. The Board is to consider the following factors before imposing sanctions: • the gravity of the violation, • the impact of the violation, • any actions taken by the violator to correct the violation, • any previous violations committed, • any other evidence presented at the Hearing by the parties relevant to the Sanctions as appropriate With respect to Sanctions,Patrick White moved to as follows: • To deny all future Building Permit pulling privileges in Collier County for the Respondent, • Request that Staff provide the appropriate notice to the Florida Department of Business and Professional Regulation within the stated time frame, • Request that Staff send a cover letter and a copy of the Order issued by the Board to each individual listed in Exhibits E18 through 37 alerting the homeowners to obtain Permits and required inspections of the work that was performed. Michael Ossorio stated the Building Department has notified the individual owners. Bob Mahar and his Staff will also notify them of the Findings of Fact. 19 161 2 A9 September 21,2011 Mr. Ossorio noted the State accepts recommendations from local regulatory Boards and the CL Board could recommend assessing an additional fine as part of the Motion. He suggested that Mr. White amend his motion concerning denial of permit pulling privileges to include the City of Naples,the City of Marco Island, and unincorporated Collier County. Mr.White clarified his Motion referred to future permits—not the open permits that currently exist. Mr. Luker remains responsible for fulfilling the work. Mr. Lykos stated that was a problem. There was a discussion concerning how to handle the issue of open permits and protect the consumers who contracted with the Respondent to perform work. It was noted the Permits have been issued in the Respondent's name, but until they were physically picked up and paid for,they are not considered to be "pulled." Mr.White stated the intent of his Motion was to revoke the Respondent's permit pulling privileges in all of unincorporated Collier County, Marco Island, and the City of Naples. The homeowners are to be notified by the County that the permits have not been pulled and inspections have not been done. Thomas Lykos recommended notifying the State that the CL Board supported revocation of the Respondent's license, assessing the maximum fine allowed, and restitution to be made to the homeowners for their expenses to obtain permits and inspections. Patrick White accepted Mr.Lycos'suggestions and amended his initial Motion to incorporate the recommendations. Patrick White restated his Motion as follows: • Approve denying all permit pulling privileges in Collier County, (incorporated and unincorporated), the City of Naples, and Marco Island, • Notify the unit owners identified in County's Exhibits E18-E37 of the Board's Order, • Recommend to the Florida Department of Business and Professional Regulation (Construction Industry Licensing Board) to deny all permit pulling privileges, revoke the Respondent's license, impose fines in the maximum amount allowed, and provide for restitution to be made to the identified unit owners for their expenses. Second by Thomas Lykos. Michael Ossorio stated notifying the State was the first step in the process in a lengthy process. He knew the City of Marco Island has already been in contact with the homeowners. Chairman Lantz called for a vote on the Motion. Carried unanimously, 8—0. 20 161 2 A 9 September 21,2011 Findings of Fact: 1. William Edward Luker, III, d/b/a Wel Built Contractors, Inc., is the holder of record of State License#CGC1516708 and Collier Certificate Number 33893. 2. The Board of County Commissioners of Collier County, Florida, was the Complainant in this matter. 3. The Board has jurisdiction of the person of the Respondent. • William Edward Luker, III, was not present during the Public Hearing and was not represented by Counsel. 4. All notices required by Collier County Ordinance #90-105, as amended, have been properly issued and were personally delivered. 5. The Respondent acted in a manor that was in violation of Collier County's Ordinances and was the one who committed the act. 6. The allegations of the facts, as set forth in the Administrative Complaint for Case#2011-09 as to Count I, Section 4.2.2—"Willfully violating the applicable Building Codes or laws of the State, City, or Collier County," were found to be supported by the evidence presented at the Hearing. Conclusions of Law: The Conclusions of Law alleged and set forth in the Administrative Complaint for Case Number 2011-09 as to Count I were approved, adopted and incorporated herein,to wit: • The Respondent violated Collier County Ordinance#90-105,as amended, Section 4.2.2 - "Willfully violating the applicable Building Codes or laws of the State, City, or Collier County"in the performance of his contracting business in Collier County by acting in violation of the Section set out in the Administrative Complaint with particularity. 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#90-105, as amended,by a vote of eight(8) in favor and zero (0)opposed, a majority vote of the Contractors' Licensing Board members present,the Respondent has been found in violation as set out above. Further, as ordered by a vote of eight(8) in favor and zero (0) opposed, a majority vote of the Contractors" Licensing Board members present,that the following disciplinary sanctions and related Orders are hereby imposed upon the holder of Contractor Certificate of Competency, State License#CGC 1516708, Collier County Certificate#33893: a. Revoke all permit pulling privileges throughout Collier County (incorporated and unincorporated),the City of Naples, and Marco Island; 21 161 2 A 9 is September 21,2011 b. Request that Staff for the City of Marco Island send notices to the homeowners affected by the case regarding the Board's Findings and their options concerning future actions, c. Recommend to the State of Florida Construction Industry Licensing Board to revoke the Respondent's license; impose fines in the maximum amount allowable; make provisions for restitution to be made to the identified unit owners. Richard Joslin moved to approve closing Case #2011-09. Second by Jon Walker. Carried unanimously, 8-0. IX. REPORTS: Jamie French stated: • Outlined the new procedures instituted by the Building Department to streamline the time Contractors spend in line waiting to obtain Permits and processing license renewals. • Wait times at the Business Center's counter have been significantly reduced. • He presented a status report on the progress concerning the installation of the new computer program, "City View." He noted during the transition period the existing program, "C/D-Plus"remains active and operational. • Approximately every six weeks to two months,the County holds an Industry forum/meeting between Senior Management, members of the CBIA, members of DSAC,members of the local building industry, representative of local permitting companies,and representatives of the Planning Commission. • The changes instituted may require augmenting or updated the current Contractors' Licensing Ordinance. • He will report back within the next three months. • When questioned about possible fee increases, Mr. French stated the last fee increase was three years ago. • A larger contribution from the General Fund has been applied to the Contractors' Licensing Office, i.e., salaries for Mr. Ossorio and one employee are paid by the General Fund. • Collier County Business Model: o The Building Department is set up like a vertical business. o The Building Department receives little to no contribution from the General Fund to offset the cost of business. o Permit fees have been reduced. • Reporting capabilities have been enhanced by the installation of the "CityView"model and there has been an increase in Industry activity. Plan reviews have increased since March—the average is approximately 2,200 permit applications per month. • Re: Inspections—the average is approximately 2, 500 per month. o August average—approximately 4,000 inspections 22 2 A9 161 September 21,2011 • The new Permit times deadlines (5 day turnaround for single trades/10 days for 2 trades/15 days for multiple trades) instituted approximately six months ago have been met and are continuing to be met • There is no additional charge for the new FEMA Review • If an inspection is a"next day,"an Inspector will call ahead to verify that the Contractor is ready. "Time Certain" inspections can also be scheduled. • A part-time inspector(contract employee)may be hired on an'as-needed basis, subject to approval by the Board of County Commissioners Terry Jerulle concurred there has been a big improvement in service and approved publishing the Inspector's cell phone numbers online. Mr. French provided a brief update concerning Code Enforcement's Inspectors and the Licensing Compliance Officers—where they may overlap,their responsibilities—in response to a question from the Board. A technical Building Code issue is referred to the Building Official (Gary Harrison). It was noted that Mr. Harrison may elect to retire in December. X. MEMBER COMMENTS: • Patrick White stated he will not be able to attend the October meeting. XI. NEXT MEETING DATE: Wednesday, October 19,2011 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 12:10 PM. COLLIER COUNTY CONTRACTOR LICENSING BO Kyle Lantz, Chairman The Minutes were approved by the Board/Chairman on t/l/ , 2011, "as submitted" 14---1-15-R "as amended" ( 1. 23