CLB Minutes 02/15/2012DECEIVED
MAR 2 2 2012
roard of County Commissioners
MINUTES OF THE
February.,Kf2012
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COLLIER COUNTY CONTRACTORS' LICENSING BOARD
MEETING
Februa L16)12
Naples, Florida
LET IT BE REMEMBERED that the Collier County Contractors' Licensing
Board, having conducted business herein, met on this date at 9:00 AM in
REGULAR SESSION in Conference Room #610, Collier County Growth
Management Division/Planning & Regulation Office, 2800 North Horseshoe Drive,
Naples, Florida, with the following Members present:
CHAIRMAN:
Vice Chair:
Fiala
Hiller ✓
Henning N-
Coyle
Coletta�
ALSO PRESENT:
Lee Horn
Richard Joslin
Michael Boyd
Terry Jerulle
Kyle Lantz
Thomas Lykos
Robert Meister
Jon Walker
Patrick White
Michael Ossorio — Supervisor, Contractors' Licensing Office
Michael D. Gentzle, Esq., and James F. Morey, Esq., Attorneys for the
Contractors' Licensing Board
Steve Williams, Esq., Assistant County Attorney
Rob Ganguli, Licensing Compliance Officer
Mist. Cares:
Ian Jackson, Licensing Compliance Officer
Dde:��Z.ZI t 2
1 Item #t: l Loom 2, jl-S
Copies m:
February�2012
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 Lee Horn called the meeting to order at 9:02 AM and read the procedures to
be followed to appeal a decision.
Roll call was taken and a quorum was established. All members were present.
II. ADDITIONS OR DELETIONS:
(None)
III. APPROVAL OF AGENDA:
Patrick White moved to approve the Agenda as submitted. Second by Thomas Lykos.
Carried unanimously, 9 — 0.
IV. APPROVAL OF MINUTES — January 18,2012:
Corrections:
Page 20, the Contractors' Licensing Board meeting ended at 11:15 AM.
James F. Morey, Esq., Attorney for the Board, noted Mr. Boyd abstained from
voting during the January meeting. He requested to include Form 8 -13,
entitled "Memorandum of Voting Conflict," in the Minutes and to reference it as
Exhibit "A" on Page 18.
Patrick White moved to approve the Minutes of the January 18, 2012 meeting as amended.
Second by Thomas Lykos. Carried unanimously, 9 — 0.
V. DISCUSSION:
Attorney Morey requested that Michael Boyd read the "Disclosure of Local Officer's
Interest" portion of Form 8 -B, "Memorandum of Voting Conflict," into the record as
follows:
"The Respondent who was the subject of the Complaint in question holds
the same license and provides the same services as I do. The Respondent
did not attend the Public Hearing and did not provide testimony. While I
am not aware of any direct special benefits I would receive by the possible
disciplining of the Respondent, to avoid even the appearance of impropriety
or subsequent argument by the Respondent that I may have voted in such a
way to take advantage of a business opportunity and, thus, obtain a special
benefit, I disclosed my concerns orally at the meeting on January 18, 2012
prior to participating in any of the discussions. Moreover, I decided that
abstaining from voting on the measure was proper under the circumstances."
Mr. Boyd signed the Memorandum on January 31, 2012.
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VI. NEW BUSINESS:
(Note: In each of the cases heard under this Section, and Section VIII, "Public
Hearings," the individuals who testified were sworn in by the Attorney for the
Board.)
A. Mary Ann Mulligan — Request for Waiver of Examination/License Re- instatement
Michael Ossorio, Supervisor — Contractors' Licensing Office, provided
background information:
• Ms. Mulligan's license lapsed in Collier County in 2001
• She has maintained a license in Lee and Charlotte Counties and in the City of
Cape Coral
• She requested a Waiver of the requirement to take the Business Procedures test
Chairman Horn noted Ms. Mulligan's Business credit report lacked any
documentation.
Mary Ann Mulligan replied she paid cash for tools. She stated she installs cabinets
and doesn't purchase very much equipment or materials. She deposits payments into
her business account and writes checks from the account as needed.
Patrick White noted Mulligan's Cabinet Installation, Inc. was incorporated on
January 1, 2004.
Vice Chairman Richard Joslin asked if Ms. Mulligan's personal credit report
should be reviewed since there was no business report to review.
Michael Ossorio explained that a Business credit report had been submitted — it
simply had nothing on it. He also noted there were no complaints or liens against
the company. He further stated the County recommended reinstatement of her
license.
Thomas Lykos asked if the Ordinance requires payment of no more than three years
of back fees.
Mr. Ossorio concurred.
Mr. Lykos stated the only reason why Ms. Mulligan appeared before the Licensing
Board was to request a waiver of the requirement for testing.
Mr. Ossorio reiterated it was his job to review the application and if the criteria was
met, he would issue the appropriate license. The question before the Board was
whether or not to waive the requirement for testing since Ms. Mulligan's license was
in "expired /cancelled" status. In order for her license to be reinstated, she submitted
an application and a credit report as required.
He continued since Ms. Mulligan was still in business and had been working in
other counties, it would be superfluous to require her to take a test.
Ms. Mulligan clarified that she took a "finished carpentry" exam, as required by
Charlotte County, approximately four years ago.
Kyle Lantz moved to approve the request for a Waiver of Examination. Second by
Patrick White. Carried unanimously, 9 — 0.
February 12012
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B. Robert J. Spano — Contesting Citations(s)
Citations: 46740 ( "Unlicensed Tree Trimming ")
Date: January 27, 2012
Fine: $300.00
Description of Violation:
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.
Robert Spano:
• Received a Citation on January 27th for unlicensed contracting
• Was contacted by Ian Jackson and met at the Contractors' Licensing Office
on January 27th
• Had not realized that his license was not renewed in Collier County
• Due to a clerical error, the business tax receipt was paid but the license was
not renewed
• Paid the fees to renew his license which is in "active" status
• Requested leniency requiring the fine
• Has been in business since 2009
Michael Ossorio provided a brief overview of the licensing renewal process and
noted Mr. Spano's license was in "suspended" status at the time the Citation was
issued. He stated Mr. Spano acted quickly to submit an application to reinstate his
license and to pay the required fees. He further stated the County would not object if
the Board decided to waive imposing the fine.
Vice Chairman Joslin reminded the Board that exceptions have been made in
the past, i.e., if a violation was abated prior to the date of the Hearing, the Board
waived the Citation.
Patrick White asked Mr. Spano what he would to do in September 2012 that
was different from his actions in September 2011.
Mr. Spano replied the renewal rested on his shoulders. He knew the County
sent a renewal notice in September — his only explanation was the document was
misplaced but the renewal date has been noted on his company's business calendar.
He did not foresee another problem.
Mr. White asked if Mr. Spano's business practice had been modified as the result of
receiving the Citation.
Mr. Spano concurred.
Terry Jerulle asked if Mr. Spano could be found guilty of the violation but not
required to pay the fine.
Michael D. Gentzle, Esq., Attorney for the Board, referenced Section 487.127 of
Florida Statutes. He noted the Licensing Board could find in violation and order a
violator to pay a fine or it could dismiss the Citation.
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k1n,
Terry Jerulle noted if the Citation was dismissed entirely, there would be no history
to reference if Mr. Spano ever appeared before the Board again for the same
violation.
Patrick White stated the violation would remain on the record even if the Citation
was dismissed.
Jon Walker asked Mr. Spano if he was contesting the violation.
Robert Spano replied he was not contesting the violation — only asking for leniency
concerning the fine.
Chairman Horn asked Mr. Ossorio if his Office's records would still note that there
had been a violation.
Michael Ossorio stated if the Citation was dismissed, a Non - Compliance Order
would be issued. He further stated "City View" [the County's computer program]
would note that a Citation had been issued but was dismissed.
Mr. White asked if a "Non - Compliance Order" was the equivalent of a minor
violation and Mr. Ossorio concurred.
Kyle Lantz moved to approve dismissing Citation #6740. Second by Robert
Meister.
Jon Walker suggested amending the motion to approve upholding the Citation
while dismissing the fine.
Kyle Lantz agreed to amend his Motion. Second by Robert Meister. Carried
unanimously, 9 — 0.
VII. OLD BUSINESS:
A. Orders of the Board
Thomas Lykos moved to approve authorizing the Chairman to sign the Orders of
the Board Second by Vice Chairman Joslin. Carried unanimously, 9 — 0.
B. Case #2011 -11: Motion for Re-Hearing.— Duane O. Thomas, d/b /a Duane
Thomas Marine Construction, LLC
John F. Hooley, Esq., of Garber, Hooley & Holloway, LLP, appeared on behalf of
the Respondent, Duane O. Thomas, who was present.
Chairman Horn asked why a re- hearing had been requested.
Attorney Hooley stated the purpose was to revisit the sanctions that were imposed
and requested the Board review the Sanctions.
Chairman Horn asked if there was new evidence or a reason that the Board had not
been made aware of at the time of the initial Hearing.
Attorney Hooley stated the Board was to impose Sanctions after reviewing the
following:
• Gravity of the violation,
February 012
• Impact of the violation on the public's health, welfare and safety,
• Actions taken by the violator to correct the violation,
• Previous violations committed by the violator, and
• Any other relevant evidence presented by the parties at the Hearing.
Attorney Hooley stated Mr. Thomas did not represent himself very well — "he did
somewhat of a bad job."
Patrick White noted the standard for a re- hearing identified the grounds for the re-
hearing, as follows:
• A fundamental error had occurred which resulted in a failure of due process,
• The decision was contrary to the evidence, or
• The Hearing involved an error on a ruling of law and/or fact which was
fundamental to the decision of the Contractors' Licensing Board.
He asked which of the grounds was the basis of Mr. Hooley's Motion.
Attorney Hooley replied a fundamental requirement of law, noted in 4.3.1 (b), was
defined as a "minor violation." He stated in reviewing the ruling of the Board, the
mitigating circumstances relating to the work were not addressed.
He continued, Mr. Thomas admitted he was working without having received a
permit which does require action. However, the Board's punishment should have
been ameliorated by the factors surrounding the work.
He further stated the Order failed to make "Findings," as required by Section
4.3.5.3.
Patrick White asked if the ground was that a fundamental error occurred which
resulted in a failure of due process. "Yes or no ?"
Attorney Hooley replied it was not a fundamental error.
Patrick White: "Notice and opportunity to be heard ?"
Attorney Hooley: "He had a notice and opportunity to be heard."
Patrick White: "I will take that as a `no'."
Attorney Hooley: "Yes."
Patrick White: "The second is `the decision was contrary to the evidence.' Is it
your position that it is or it isn't ?"
Attorney Hooley: "It is my position that the decision wasn't but that the penalty
was."
Patrick White: "We made a decision. The third is that the Hearing involved an
error on a ruling of law and/or fact that was fundamental to the decision of the
Contractors' Licensing Board. If you don't get in under the second one as to what a
decision is, I don't think you can get in under the third, either."
He continued, "What I'm trying to help you articulate for the record and for this
Board to understand, is — what you are asking for — is it the third ground as well ?"
Attorney Hooley: "Yes, because I felt the Board did make a decision but I don't
believe it considered the ameliorating factors as required by the Ordinance in
accordance with the set forth specifications."
Patrick White: "And that there weren't written Findings ?"
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February, 2012
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Attorney Hooley: "Correct."
Patrick White: "It seemed essential to me that we understand which grounds the
Motion was based upon."
Terry Jerulle: "I guess I'm still not clear."
Chairman Horn requested clarification from the Board's attorneys.
Attorney Morey noted Mr. White cited Section 22.204 of the Code of Laws
Ordinance. He stated Mr. Hooley must claim that a fundamental error occurred in
the process.
He continued, noting the Order of the Board recited, "... that after due
consideration of all factors required under the Collier County Code of Laws and
Ordinances 22- 203(c) and based upon the evidence and testimony presented. . . "
He stated there was a recitation in the Order that all the factors were considered. The
Order did not have specific binding "Facts" which enumerated a listing in detail
exactly which factors were considered. The Order stated the Board did consider all
relevant factors, which were the required factors. The Board has the ability — if it
determines that the Findings were inadequate and not specific enough — to grant the
Motion for a Re- Hearing and hold a Hearing on a specific issue or as requested,
simply hear the penalty phase. A Public Hearing would be held, the charge to the
Board would be given, deliberation would take place considering all the factors, and
the Board could decide to change its initial decision, or uphold the penalty, or
change the penalty. The Board must feel comfortable with and believe that there
was a fundamental error in the Findings.
Chairman Horn asked if the Board could reopen just the penalty phase as long as
the Respondent agreed he was guilty of a violation.
Attorney Morey: "That is correct." He explained that during a re- hearing, the
Board could limit the issues to a specific issue, including going directly to the
penalty phase.
Chairman Horn asked if additional notice was required or if the Board could
proceed.
Attorney Morey stated since there had been proper notice and the Respondent was
present, along with his attorney, the Board could proceed because the Motion for a
Re- Hearing was filed within the required time frame.
Vice Chairman Joslin asked if a motion to approve was necessary from the Board
before a re- hearing could be held.
Attorney Morey explained the Board could grant the Motion for a Re- Hearing or
deny it. If the Board granted the Motion, the Public Hearing would go forward,
evidence would be heard, and the penalty phase would be opened and the penalty
would be discussed. He reminded the Board that the violation had been established.
Patrick White noted the Board could set the Re- Hearing for the next Board
meeting.
Attorney Morey concurred that Mr. White's suggestion was also an option.
Patrick White stated if the Re- Hearing was set for a later date, according to the
Ordinance, the time period to file an appeal would also be "stayed."
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Attorney Morey: "That is correct."
Patrick White: "There's nothing that says that a Notice of Appeal cannot be filed
prior to the Re- Hearing being decided. Or, is it essentially an attempt to restate what
I otherwise would expect -- the jurisdictional limits of the Board for entertaining
what is a quasi-judicial matter on appeal — which I believe is very strict. I'm trying
to dance on the head of this pin in a way that doesn't prejudice the County but also
puts this Board in a position to understand that if we choose to hear it and move that
to [one] month from now, that it puts the Respondent in a position where he has to
make decisions to act or not.
He further stated he was one of the two dissenting votes. "It might be quite
surprising to hear me analyze and come to the conclusion that I think we fully vetted
every one of those factors, whether they were ameliorating or mitigating or
aggravating. I don't think they were stated that way in the Ordinance. The
Ordinance states each Board member is to weigh the factors in accordance with the
evidence presented and the testimony heard. I weighed the factors and came to a
different conclusion that seven of my colleagues and I respect that."
He continued, "The point is — as to the scope of the Re- Hearing — and the grounds
upon which the decision is being challenged as to the penalty imposed, my position
is that we fully considered every one of those factors in detail and there is no
requirement, in my understanding of the Law, that in this type of a matter — that the
factors are to be stated with specificity. There are plenty of cases in quasi-judicial
matters where written orders are required, in particular Code Enforcement cases,
where a similar kind of standard exists, and I think we did our jobs and I believe that
the Order as a matter of precedence ought to be respected to the degree that it says,
as our Board's counsel indicted, after due consideration of all factors required and
that is what we did."
He further stated, "I think that is the standard that a Court is likely to look at and
come to the conclusion that it's a tough three - pronged test of a quasi-judicial matter
and because I was one of the people on the negative side of the motion, and also
looking at and trying to find help for this Board when there have been few re-
hearings, and based on the two grounds that are the basis of this motion, I would not
be comfortable voting in favor of granting the Motion for Re- Hearing."
He concluded that "because of the lack of clarity about the timing and of having a
re- hearing or not, it makes more sense to me to dispose of this today and give the
Respondent an opportunity to go to Court if he thinks that this Board needs to have
written, specific Findings to put into the Order. If a Court thinks that's the case, we
will have a re- hearing. I would prefer to have the Court tell us to do that than to do
it on our own — to start out on a greater path than is in the Ordinance. We have over
the years done an ever - increasing, more precise job of working within the
framework of the rules that the Board of County Commissioners established and I
don't want to tread onto some new ground where I don't think the Courts have gone
without a Judge telling us."
Finally, he urged the Board members to ask questions before making a
determination.
February � 2012
Chairman Horn stated it did not make sense to go above the Ordinance especially
since the video recording was available and could be used as evidence in a third -
party hearing. He noted a Court Reporter could produce a certified transcript if
required.
He further stated in every case that has come before the Board, the Board's
attorneys reviewed the factors to be considered and the penalties, especially when
the Respondent was a State- certified Contractor since the penalties are different.
"We hear it during every single case and it is repeated into the record."
Attorney Hooley stated he agreed with Mr. White but he did not perceive the
Motion for a Re- Hearing as precedent- setting move by the Board or that the Board
would be required to do it each and every time. He did not see the need for changes
to the Statutory or adjudicatory scheme.
He further stated Mr. Thomas was asking the Board to reconsider the factors at
least with regard to one of the prior Citations. The Board didn't note that he
mobilized prior to receiving the permit. Mr. Thomas applied for the permit, was
cited on one day, and the permit was issued the following day.
He concurred there was a violation, "but it was just on the cusp of a violation."
He obtained documents from the City of Marco Island verifying that the type of
work done was allowed at the time — that it was the ultimate factor for the Board to
consider.
He pointed out granting a Motion for a Re- Hearing would not re -write the
Ordinance and going through the factors would not be a divergence from what the
Board normally does.
Patrick White countered it was the statement in the Respondent's Motion requiring
written, specific Findings that concerned him as a precedent- setting. He stated if
that aspect of the re- hearing request was withdrawn, he would be less concerned.
The process comes down to a vote — individual votes by the Board members — and
after considering the factors, the penalties made sense.
Thomas Lykos noted that he stated at the previous Hearing, the Respondent could
have made a phone call to the Building Department before he started the job. If he
had put the effort in at the beginning, the Respondent would not have been cited for
a violation.
He further stated "we vetted this case — we vetted the issue of whether or not past
violations were documented properly." He stated he was offended that the Board
was asked to invest more time in the case and that the thoroughness of the vetting
process was in question.
Attorney Morey suggested, if there was no further discussion, a Motion to grant or
deny the Re- Hearing could be made.
Jon Walker moved to deny the Motion for a Re Hearing. Second by Thomas
Lykos.
Discussion:
February ,?6, 2012
Patrick White:
• Questioned what constituted the nature and scope of a "Cease and Desist"
Order and whether or not the two prior incidents had been considered as
violations.
• He stated at the initial Hearing he questioned whether the two prior incidents
(screen -shot identified) involving the City of Marco Island constituted
violations.
• He noted the Hearing Minutes were changed during the January meeting:
o On Page 12, 2nd paragraph, 4th line — the word "refusal" was changed
to "failing"
• The sentence was corrected as follows:
"The issue was his [the Respondent's] inability to obtain a
permit before starting work and the Respondent's fail in to
follow the County's regulations. "
• He stated the case was heard and did not think re- hearing the case would alter
the outcome or assist a Court in anyway to be able to dispose of the matter.
Vice Chairman Joslin:
• Stated when he made the motion during the initial Hearing, he felt the
penalty was correct for the gravity of the violation.
• It would have been very simple for the Respondent to contact the County
prior to beginning the job if it was an emergency situation. He chose not to
make the call.
• We knew the violation did occur due to sworn testimony given by the
County.
• To hear the case again could result in a more severe penalty phase.
Attorney Hooley:
• Mr. Thomas appreciates the power of the Board and is concerned about
blemishes on his license, being placed on probation for a year, and the
financial punishment. His reputation in the marine construction field is
important to him.
• He is not here to "get off Scott- free."
• He has requested the Board's indulgence to take another look at the case and
he recognizes the fact that even more severe penalties could be imposed.
• Mr. Thomas has not taken an Appeal to the Circuit Court or any other place.
• Mr. Thomas is asking for reconsideration of some of the terms of the Board's
Order.
Thomas Lykos:
• Choosing to be a General Contractor means we live under the rules and
regulations of the industry. We follow the laws of the industry that we are in
— as set forth for our industry.
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February 12012
Attorney Hooley explained Mr. Thomas was not calling into question the Board's
ability to look at the facts — he was asking the Board to re- examine the factors. He
admitted he was guilty as charged and was asking only about the penalty phase.
Vice Chairman Joslin asked if there was any new evidence to be presented by the
County.
Michael Ossorio responded that the County's position was that it had no position.
The case was presented and the Licensing Board made its decision.
Chairman Horn called for a vote on the Motion made by Mr. Walker: To deny the
Respondent's Request or Motion for a Re- Hearing.
vm_&
Patrick kef asked if the Motion should state why the Request for a Re- Hearing
was denied. He suggested adding the Request for a Re- Hearing failed to proffer
facts that met either the 2nd or the 3rd ground as cited in Section 22 -204.
Jon Walker amended his Motion as follows: To deny the Request for a Re-
Hearing based on that the fact there was no probable cause that the first case was
not properly vetted.
Attorney Morey suggested the following language: "To deny the Motion for a Re-
Hearing based on the fact that no fundamental error occurred in the first Hearing."
Mr. Walker amended his Motion and Mr. Lykos offered his second in support of
the amended motion. Carried unanimously, 9 — 0.
BREAK. 10: 00 AM.
RECONVENED: 10:1 S AM
VIII. PUBLIC HEARINGS:
B. Case #2012 -02: Raymond V. Trotta,
(d/b /a: Naples Tile, Marble, Carpet & Wood, Inc.)
Chairman Horn noted the Respondent, Raymond V. Trotta, was not present.
Terry Jerulle stated he would abstain from voting due to a possible conflict of
interest because he employed Mr. Trotta's company several years.
Ian Jackson, Licensing Compliance Officer, stated the Notice of Hearing had been
hand - delivered to Mr. Trotta on January 23, 2012.
Chairman Horn outlined the manner in which the Public Hearing will be conducted:
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February j6, 2012
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• Hearings will be conducted pursuant to the procedures contained in Collier
County Ordinance #90 -105, as amended, and Florida Statutes, Title XXXII,
"Regulation of Professions and Occupations, " Chapter 489.
• The Hearings are quasi-judicial in nature.
• Formal "Rules of Evidence" shall not apply.
• Fundamental fairness and due process shall be observed and govern the
proceedings.
• Irrelevant, immaterial, or cumulative evidence shall be excluded.
• All other evidence of the type commonly relied upon by reasonably prudent
persons shall be admissible, whether or not such evidence would be admissible in a
trial in the Courts of the State of Florida.
• Hearsay evidence may be used for the purpose of supplementing or explaining
any evidence but shall not be deemed sufficient by itself to support a Finding,
unless such hearsay would be admissible over objection in a civil action in Court.
• The "Rules of Privilege" shall be effective to the same extent that such Rules are
now, or hereafter may be, recognized in civil actions.
• Any member of the Contractors' Licensing Board may question any witness
before the Board.
• Each party to the proceedings shall have the right to call and examine witnesses,
to introduce Exhibits, to cross - examine witnesses, to impeach any witness
regardless of which party called the witness to testify, and to rebut
any evidence presented against the party.
• The Chairperson or, in his/her absence, the Vice Chair, shall have all powers
necessary to conduct the proceedings at the Hearing in a full, fair, and
impartial manner, and to preserve order and decorum.
• The general process of the Hearing is for the County to present an Opening
Statement to set forth the charges and, in general terms, how the County intends
to prove the charges.
• The Respondent will present his/her Opening Statement setting forth, in general
terms, defenses to the charges.
• The County will present its Case in Chief by calling witnesses and presenting
evidence.
• The Respondent may cross - examine the witnesses.
• After the County has closed its Case in Chief, the Respondent may present
his/her defense as described previously, i.e., to call and examine witnesses, to
introduce Exhibits, to cross - examine witnesses, to impeach any witness
regardless of which party called the witness to testify, and to rebut
any evidence presented against the party.
• After the Respondent has presented his/her case, the County will present a Rebuttal
to the Respondent's presentation.
• When the Rebuttal is concluded, each party is permitted to present a Closing
Statement.
• The County is allowed a second opportunity to rebut the Respondent's Closing
Statement.
• The Board will close the Public Hearing and begin deliberations.
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February�2012
• Prior to beginning deliberations, the Board's Attorney will give a "charge" to the
Board, similar to the charge given to a jury, setting out the parameters on which
the decision will be based.
• During deliberations, the Board can request additional information and
clarification from the parties.
• The Board will decide two different issues:
• Whether the Respondent was guilty of the offense as charged in the
Administrative Complaint. A vote will be taken on the matter.
• If the Respondent was found guilty, the Board must decide the sanctions to
be imposed.
• The Board's Attorney will advise the Board concerning the sanctions and the
factors to be considered.
• The Board will discuss the sanctions and vote.
• After the matters are decided, the ChairNice Chair will read a Summary of the
Order to be issued by the Board. The Summary is a basic outline of the Order and
may not reflect the same language contained in the Final Order.
• The Final Order will include complete details as required under State laws and
procedures.
Vice Chairman Joslin moved to approve entering Case No. 2012 -02, Collier
County License #33805, Board of County Commissioners vs. Raymond V. Trotta,
d1h1a Naples Tile, Marble, Carpet & Wood, Ina, into evidence. Second by Kyle
Lantz. Carried unanimously, 9 — 0.
Chairman Horn entered the information packet into evidence as County's Exhibit
«A.„
Ian Jackson, Licensing Compliance Officer, presented the County's Opening
Statement:
• The County will show through documented facts and sworn testimony that
Raymond V. Trotta failed to secure compensation for his employees in violation
of Florida Statute 440.10 (1)(a).
• Mr. Trotta violated Collier County Ordinance 90 -105, Section 22 -201 (6).
• The Notice of Hearing was hand - delivered to Mr. Trotta on January 23, 2012.
Mr. Jackson stated he spoke with Mr. Trotta and, although he was aware of the
Hearing time and location, the Respondent was unable to attend due to health reasons.
Mr. Trotta provided a statement for the Board's review.
(A copy of the statement was distributed to the Board.)
Patrick White moved to accept the statement and admit it into evidence as
Respondent's Exhibit "A." Second by Thomas Lykos.
Motion carried, 8 — "Yes " 10 — `No " /1— "Abstention." Terry Jerulle abstained from
voting.
Mr. Jackson read the statement into the record.
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February 12012
(A copy of the statement is attached as Page 23 of the Minutes.)
It was noted the date of the violation, "10/04/3011," was incorrect — the year should be
2011.
Chairman Horn asked if the Respondent's license was active.
Mr. Jackson responded affirmatively.
Case in Chief.'
Jack Gumph, State of Florida Workers' Compensation Investigator, appeared as the
County's witness.
Ian Jackson asked Mr. Gumph to verify that:
• He was at a construction site located at 14403 Marsala Way on or about
October 4, 2011
• He encountered three employees of Naples Tile, Marble, Carpet & Wood, to
wit: Cheryl Sheldon, Sara Newman, Glenn Snyder, who were performing
construction while under contract to Mr. Trotta
• Mr. Trotta was operating with Workers' Compensation provided through an
employee leasing program
• At the time, the three employees were not listed on the leasing program
• The action constituted a violation of Florida Statutes 440.10(1)(a).
Jack Gumph confirmed the Statute had been violated.
Mr. Jackson noted the violation of Florida Statutes 440.10(1)(a) also constituted a
violation of Collier County Ordinance 90 -105, as amended, Section 22- 201(6).
Vice Chairman Joslin asked if there were other employees in addition to the three
mentioned and the response was "no."
Patrick White asked if any of the individuals mentioned were officers of the
corporation and the response was "no."
Mr. Gumph explained that a PEO Leasing Company is used by Contractors to
provide payroll and Worker's Compensation insurance. The employees are
technically employed by a PEO Leasing Company. The name of the leasing
company was Progressive. When he called to verify the roster of employees for that
day, he was told that Mr. Trotta had not run payroll for two or three weeks and had
no employees on the roster. It was not the first day of the job.
Vice Chairman Joslin asked what duties the employees were performing at the job
site.
Jack Gumph noted a gentleman in the garage was cutting tile. The Job Foreman, a
young lady, was laying the in the breezeway and the other young lady was sweeping
up.
Ian Jackson asked Mr. Gumph to provide his background information for the
record.
14
February 14 2012
Mr. Gumph noted he is employed by the State of Florida Department of Financial
Services — Division of Workers' Compensation as a Compliance Investigator. His
duties included performing inspections (construction sites and non - construction
locations) to verify compliance with the Workers' Compensation Law, i.e., Chapter
440 of Florida Statutes. He has been employed in the position for approximately 2
'/2 years.
He stated:
• He spoke to the individuals at the job site. The job foreman identified the
employer as Ray Trotta.
• He spoke with Mr. Trotta to ask how the employees were insured.
• Mr. Trotta indicated he used a PEO Leasing Company.
• He contacted the leasing company and was told Mr. Trotta's employees were
not on the roster for that day.
• Two of the three employees had been on leasing program
• One worker was a friend who did not work for the company but was there as
a "helper." (Mr. Trotta was not aware the individual was on the job site.)
• The employees indicated they worked for Mr. Trotta "off and on" — while
they had not been paid, he had promised to pay them.
Chairman Horn asked who would have been liable if an employee had been injured
on the job.
Mr. Gumph stated the General Contractor, Coastal Breeze Homes, LLC, would
have been responsible. He stated he verified the General Contractor was insured.
Thomas Lycos asked if the home under construction had been a custom home
built for a specific owner, and if the GC did not have insurance coverage, could an
injured employee file suit against the homeowner and the response was "yes."
Mr. Gumph noted even though Mr. Trotta used his employees on an infrequent
basis, because he had not run them through the leasing company for a period of at
least three weeks, it was the policy of the leasing company to consider them as
(automatically) terminated. Mr. Trotta was required to contact the leasing company
to reinstate the employees for them to be covered under the leasing company's
Workers' Compensation policy and to be paid.
He further stated when he spoke with the Respondent, Mr. Trotta acknowledged
that he knew his employees were not on the leasing company's list.
Patrick White noted the time line was not known, but the Respondent's
acknowledgement indicated the degree of disregard on his part.
Michael Boyd noted the Respondent was not State - certified or registered and asked
what actions were taken by the State.
Jack Gumph replied that a "Stop Work" Order was issued, and State auditors levied
a penalty against him and his company for the violation. He stated the job was
completed by another tile contractor hired by the General Contractor.
Ian Jackson concluded the County's presentation, stating the County proved the
Respondent violated Collier County Ordinance 90 -105, as amended, Section 22-
15
February 2012
201(6), i.e., "Disregards or violates, in the practice of his contracting business in
the County, any of the building, safety, health, insurance, or Workers' Compensation
laws of the State or Ordinances of the County. "
Terry Jerulle inquired about the State's fine.
Jack Gumph stated the Respondent was fined $13,632.08 on October 19, 2011
and the fine had not been paid. It was a punitive fine. The company had a window
of 20- business days to pay the fine or enter into a payment agreement.
Chairman Horn asked if the Respondent's permit pulling privileges had been
suspended by the County.
Michael Ossorio noted a General Contractor pulls permits for a job site. When the
State issues a "Stop Work" Order, a copy is placed in the Permit file and the GC
cannot pull additional building permits. He stated the Respondent's company was
active in the County's system, i.e., his Certificate remains active until September.
When the State issues a "Stop Work' Order, it applies throughout the State.
Jack Gumph concurred, stating the Respondent is not allowed to not work
anywhere in the State until the requirement was satisfied.
Thomas Lykos moved to close the Public Hearing. Second by Patrick White.
Motion carried, 8 — "Yes " 10 — "No " 11— "Abstention." Terry Jerulle abstained from
voting.
Chairman Horn stated the Public Hearing was closed.
Attorney Morey outlined the Charge to the Board:
• The Board shall ascertain in its deliberations that fundamental fairness and due
process were accorded to the Respondent
• Pursuant to Section 22- 203(g) (5) of the Codified Ordinance, the formal Rules
of Evidence set out in Florida Statutes do not apply.
• The Board shall consider solely the evidence presented at the Hearing in its
deliberation of this matter.
• The Board shall exclude from its deliberations irrelevant, immaterial and
cumulative testimony.
• The Board shall admit and consider all other evidence of a type commonly
relied upon by reasonably prudent persons in the conduct of their affairs,
whether or not the evidence so admitted would be admissible in a Court of
Law or Equity.
• Hearsay evidence may be used to explain or supplement any other evidence
but hearsay, in and of itself, is not be sufficient to support a Finding, unless
such hearsay would be admissible over objection in a civil action in Court.
• The Standard of Proof in actions where a Respondent may lose his privileges
to practice his profession is that the evidence presented by the Complainant
must prove the Complainant's case in a clear and convincing manner.
• The Burden of Proof on the Complainant is a larger burden than the
"Preponderance of Evidence" Standard set in civil cases.
16
February 2012
• 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 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 the Florida Administrative Code.
• 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.
Patrick White moved to approve finding the Respondent "guilty" as set forth in
the Administrative Complaint and in violation of the Code, Section 22- 201(6)
pertaining to violation of the Workers' Compensation Law, Section 440.10(1)(a)
and that fundamental due process was afforded the Respondent and, based upon
all relevant evidence and testimony, to a clear and convincing degree, the
Respondent did so violate as set forth in the Administrative Complaint.
Second by Kyle Lantz.
Motion carried, 8 — "Yes " 10 — "No " /1— "Abstention." Terry Jerulle abstained
from voting.
Attorney Gentzle stated since the Board found there was misconduct by the
Contractor under Section 22- 203(b) (1), the Board may impose any of the following
Disciplinary Sanctions individually, or in combination:
(1) Revocation of the Collier County (or City) Certificate of Competency,
(2) Suspension of the Collier County (or City) Certificate of Competency,
(3) Denial of the issuance or renewal of the Collier County (or City) 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 said
Board at a Hearing noticed to consider said purpose.
(5) Restitution;
(6) A fine not to exceed ten thousand dollars ($10,000);
(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) Reasonable legal and investigative costs for the prosecution of the violation.
17
Februaryf, 2012
Attorney Gentzle advised the Board that when imposing disciplinary sanctions on a
State - certified Contractor or person who was found to have violated the Ordinance,
the Contractors' Licensing Board shall consider the following:
(1) The evidence presented at the Hearing;
(2) The gravity of the violation;
(3) The impact of the violation on public Health/Safety or Welfare;
(4) Any actions taken by the violator to correct the violation;
(5) Any previous violations committed by the violator, and
(6) Any other evidence presented at the Hearing by the parties relevant as to the
sanction which is appropriate for the case given the nature of the violation or
the violator.
He continued, stating in addition to any action that the Collier County Contractors'
Licensing Board may take against the individual or business, and any fines that may
be imposed, the Board shall issue a recommended penalty to the State of Florida
Construction Industry Licensing Board. The penalty may include:
a. A recommendation of "no further action ";
b. A recommendation of suspension, or revocation, or restriction of the
registration;
c. A fine to be levied by the State of Florida Construction Industry Licensing
Board.
d. Any combination of the above.
Chairman Horn asked the County for its recommendations.
Ian Jackson introduced a three -page document and requested to enter it into
evidence as County's Exhibit `B" for consideration during the penalty phase.
(A copy of the report was distributed to the members and attached as Pages 24
through 26 of the Minutes)
Patrick White moved to accept the document and enter it into evidence as County's
Exhibit "B." Second by Vice Chairman Joslin.
Motion carried, 8 — "Yes " 10 — "No "/I — "Abstention." Terry Jerulle abstained
from voting.
Michael Ossorio stated the County would not request any investigative costs.
Mr. Jackson described the contents of County's Exhibit `B ":
• The first page was a copy of the Comment Listing Report which outlined the
past history of the Contractor. He noted the Contractor had been cited in
2005 for a similar incident — "no Workers' Comp. Insurance."
• The second page was a copy of the 2005 Investigative Report,
• The third page was a copy of Citation #2408, issued on January 12, 2005.
Chairman Horn questioned the second entry on Page One of the Report, asking if it
was an actual violation or a note in the system.
Michael Ossorio confirmed the entry was not a violation.
18
February X, 2012
Patrick White noted it was not the Respondent's first Workers' Compensation
violation and there was one prior violation, i.e., January 12, 2005.
Michael Ossorio concurred.
Chairman Horn asked the County for its recommendation.
Michael Ossorio stated the County did not have a recommendation.
Kyle Lantz noted the financial punishment levied by the State was adequate. He
recommended probation.
Patrick White noted a tile contractor would probably not pull a Building Permit.
He asked for clarification between a "revocation" and a "suspension" of the
Contractor's certificate.
Michael Ossorio explained a "revocation" is a finite removal of the Certificate
while a "suspension" could indicate a limited period of time until the Respondent
appeared before the Contractors' Licensing Board or submitted an application. If a
license was revoked, the Contractor could petition the Board for a Hearing at a
specified date and time. He confirmed that once a license has been revoked, it was
"finished."
Chairman Horn noted the State levied a fine in the amount of $13,000 which the
Respondent might or might not pay.
Patrick White stated of the options presented, given the prior violation, he
recommended a revocation of the Respondent's license along with a public
reprimand.
Chairman Horn asked if the Respondent intended to stay in business.
Investigator Jackson concurred with the Chairman's assessment.
Thomas Lykos summarized:
• The Respondent must pay the State levy of $13,000+ before he will be
allowed to return to work
• Mr. White recommended that the Board revoke the Respondent's license
• If the Respondent wished to re- instate his license, he would be required to
apply to the Board.
He stated he agreed with Mr. White's recommendation.
It was noted the Respondent did nothing to mitigate the situation, i.e., he did not
reimburse his employees for unpaid wages or bring the Workers' Compensation
policy into compliance.
Jack Gumph outlined the State's repayment option: The Respondent was required
to make a down payment of ten percent of the fine ($1,300) and would have sixty
months — interest free — to pay off the fine.
Kyle Lantz suggested that revocation was too severe and noted the Respondent will
pay a hefty fine and will not be allowed to return to work until all conditions have
been satisfied. He recommended suspension of the Respondent's license.
Vice Chairman Joslin agreed with Mr. Lantz.
Thomas Lykos and Patrick White reiterated their support for revocation.
19
February J,�',,2012
Jack Gumph stated he met with the Respondent after the fine was levied and
explained to Mr. Trotta that he had twenty business days to enter into a payment
plan. Mr. Trotta indicated, based on his financial situation and poor health, that he
could not do so.
Mr. Gump noted the State of Florida does not want Contractors to shut down or
completely stop working. He stated Mr. Trotta can call him at any time to set up a
payment plan.
He further stated the Respondent had the right to file an Appeal prior to the twenty -
day deadline (after service of the penalty). The Respondent could have produced
evidence to reduce the State's penalty. After the deadline expired, the State would
not consider any reduction of the penalty.
He continued the State could collect the penalty via placing a lien against the
Respondent, enlisting the services of a collection bureau. He noted there is the
ultimate possibility of instituting criminal charges against the Respondent. He stated
the business owner could remedy the situation by entering into a payment agreement
at any time during the process.
Patrick White requested that the Respondent provide proof that his employees had
been compensated before the revocation could be lifted.
Chairman Horn asked if the Board could require continuing education.
Attorney Morey explained that under probation, certain conditions could be
imposed by the Board including a re- education component. He stated the Ordinance
does not specifically state that the Board could impose a requirement to compensate
other people since it is not related to the license.
Mr. White noted there was no prohibition and compensation was allowed as a lesser
penalty for probation and he thought it could be imposed
Vice Chairman Joslin reminded the Board that the State took the position of trying
to help Contractors in trouble, as evidenced by the availability of a payment plan,
and stated the Board should not impose penalties that were more severe than the
State.
Kyle Lantz noted the Board had never revoked a Contractor's license in the past for
a Workers' Compensation violation. The Respondent has been punished by a
$13,000 fine. He recommended suspension.
Michael Boyd moved to approve revoking the Respondent's License. Second by
Patrick White. Motion carried, S — "Yes " 13 — "No " /1— "Abstention." Terry
Jerulle abstained from voting.
Chairman Horn stated:
This cause came on for public hearing before the Contractors' Licensing Board
on February 16, 2012 for consideration of the Administrative Complaint hi
Case #2012 -02 filed against Raymond V. Trotta, d/b /a "Naples Tile, Marble,
Carpet & Wood, Inc.," the holder of record of Collier County Certificate
#33805.
FIN
February X 2012
\i5
• Service of the Complaint was made in accordance with Collier County
Ordinance 90 -105, as amended.
• The Board, at this Hearing, having heard testimony under oath, received
evidence and heard arguments respective to all appropriate matters, therefore
issued its Findings of Facts and Conclusions of Law as follows.
Findings of Fact:
• Raymond V. Trotta, d/b /a "Naples Tile, Marble, & Wood, Inc.," is the holder
of record of Collier County Certificate #33805.
• The Board of County Commissioners, Collier County, Florida, Contractors'
Licensing Board is the Petitioner (Complainant) in this matter.
• The Board has jurisdiction of the person of the Respondent.
• Respondent, Raymond V. Trotta, was not present at the Public Hearing held on
February 16, 2012, and was not represented by Counsel at the Hearing.
• All notices required by Collier County Ordinance 90 -105, as amended, have
been properly issued and were personally delivered
• The Respondent acted in a manner that is in violation of Collier County
Ordinance and is the one who committed the act.
• The allegations set forth in Administrative Complaint as Count I, under Section
22- 201(6), "Disregards or violates, in the practice of his contracting business
in the County, any of the building, safety, health, insurance, or Workers'
Compensation laws of the State, or Ordinance of this County, " have been
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
as Count I have been approved, adopted and incorporated herein, to wit:
"The Respondent violated Section 22- 201(6) of Collier County
Ordinance 90 -105, as amended, and Florida Statutes 440- 10(1)(a) 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 in
Collier County Ordinance 90 -105, as amended, by a vote of 8 in favor, none in
opposition, and one abstention, a majority vote of the Board members present,
the Respondent has been found in violation as set out above.
• Further, it is hereby ordered by a vote of 5 in favor, 3 in opposition, and one
abstention, a majority vote of the Board members present, that the following
disciplinary sanction and related Order are hereby imposed upon the holder of
Collier County Certificate of Competency #33805, to wit: revocation of the
Respondent's license.
21
February 91 2012
Chairman Horn noted the case was closed.
IX. REPORTS:
Patrick White requested an upstate of the Budget information that was to have
been supplied by Ken Kovensky.
Thomas Lykos stated he met with Mr. Kovensky and Jamie French. He agreed
with the methodology presented and the allocation of expenses contained in the
budget and was satisfied that the numbers were reasonable.
X. MEMBER COMMENTS:
(None)
XI. NEXT MEETING DATE: Wednesday, March 21, 2012
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 Chairman at 11:45 AM.
COLLIER COUNTY CONTRACTOR
LICENSING BOARD
Lee
The Minutes were approved by the Board/Chairman on
"as submitted" (_J OR "as amended"
22
, YaC4 9 2011