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CLB Minutes 08/15/2012 August 15,2012 130TVIW33 MINUTES OF THE COLLIER COUNTY CONTRACTORS' LICEN G.BQARf, MEETING August 15, 2012 Naples, Florida LET IT BE REMEMBERED that the Collier County Contractors' Licensing Board, having conducted business herein, met on this date at 9:00 AM in REGULAR SESSION in Administrative Building "F," 3rd Floor, Collier County Government Complex, Naples, Florida, with the following Members present: Fiala f Hiller ✓ Henning —rt.! Coyle r CHAIRMAN: Lee Horn Coletta 3C> Vice Chair: Richard Joslin Michael Boyd Terry Jerulle Thomas Lykos Robert Meister Jon Walker Excused: Kyle Lantz Patrick White ALSO PRESENT: Michael Ossorio — Supervisor, Contractors' Licensing Office James F. Morey, Esq. —Attorney for the Contractors' Licensing Board Jeff Wright, Esq. —Assistant County Attorney • Rob Ganguli —Licensing Compliance Officer Misc. rres: Karen Clements —Licensing Compliance Officer Date: k k1131 r2., item i#!V :2—_ "-1.. 1 August 15,2012 130/RnW311 MINUTES OF THE `I COLLIER COUNTY CONTRACTORS' LICEN G.B,QARf. MEETING August 15, 2012 Naples, Florida LET IT BE REMEMBERED that the Collier County Contractors' Licensing Board, having conducted business herein, met on this date at 9:00 AM in REGULAR SESSION in Administrative Building "F," 3rd Floor, Collier County Government Complex, Naples, Florida, with the following Members present: Fiala Hiller ✓ Henning 1 IT Coyle r CHAIRMAN: Lee Horn Colette 1(i Vice Chair: Richard Joslin Michael Boyd Terry Jerulle Thomas Lykos Robert Meister Jon Walker Excused: Kyle Lantz Patrick White ALSO PRESENT: Michael Ossorio — Supervisor, Contractors' Licensing Office James F. Morey, Esq. —Attorney for the Contractors' Licensing Board Jeff Wright, Esq. —Assistant County Attorney Rob Ganguli —Licensing Compliance Officer misc. Corres Karen Clements —Licensing Compliance Officer Date: item 1 ire to August 15,2012 NOTE: 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. Seven members were present. II. AGENDA—ADDITIONS OR DELETIONS: (None) III. APPROVAL OF AGENDA: Thomas Lykos moved to approve the Agenda as presented. Second by Vice Chairman Joslin. Carried unanimously, 7—0. IV. APPROVAL OF MINUTES—June 20,2012: Changes: • Page 13, under question by Vice Chairman Joslin,the amount of the payment made was corrected to $4,919.70. Thomas Lykos moved to approve the Minutes as amended Second by Jon Walker. Carried unanimously, 6—0. (Note: Robert Meister could not vote to approve the Minutes because he did not attend the June 20`h meeting.) V. DISCUSSION: (None) VI. NEW BUSINESS: (Note: In cases heard under Sections VI and VII, the individuals who testified were first sworn in by the Attorney for the Board.) A. Doreen J. Visser—Contesting Citation Business: "Willowood Home Design,LLC,d/b/a Willowood Kitchen & Bath" Citation(s): #7165 ("Unlicensed Advertising") Date Issued: June 15, 2012 Firie Amount: $300.00 2 August 15,2012 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. Raymond Visser: • He was contacted by Rob Ganguli concerning a problem with the company website; • The problem was the word"installers;" • When they purchased the business,the website was already running; • The website is hosted by"Kitchens.com;" • They had no idea they were in any violation due to the language on the website; • They added, "Legal Notice: Local permitting, licensing, and Codes apply"to all pages of the website; • It is an"international"website—they do business internationally; • Does not understand how Collier County can claim to have jurisdiction over a world-wide website; • Does not think they should have been cited without first receiving a warning and an explanation of why there was a violation—he thought they had corrected the problem. Chairman Horn asked how long ago they purchased the business and the response was "six years ago." He noted the language that caught his attention on the website was: "In addition to providing the professional installation of cabinets and countertops, we are able to arrange for plumbing, electrical work or major structural jobs—whatever you need " Chairman Horn continued, stating his problem was that the Vissers were not licensed—they merely had a Business Tax Receipt and only made cabinets. Mr.Visser responded if a customer needed a General Contractor,they would make a referral ("introduction)—the website stated"to arrange for." Chairman Horn explained that was one of the functions of a General Contractor and may have been why they were cited. Mr. Visser stated he was informed by Michael Ossorio of another problem --the only category of subcontractor he could hire was a cabinet installer. He thought he had been cited only for the language issue. Chairman Horn asked Rob Ganguli to explain why the Citation was issued. Rob Ganguli, Collier County Licensing Compliance Officer, stated: • A complaint was received by the Contractors' Licensing Office on May 22nd regarding internet advertising of Willowood Home Designs, LLC, stating they could provide cabinet installation services; 3 August 15,2012 • There was no information concerning licensing—the owners had only a Business Tax Receipt for retail sales; • Mr. Ganguli contacted the owners and advised them of the complaint and the violation. Abatement measures were discussed. • On June 15th, he met with Doreen and Raymond Visser: o The disclaimer has been placed on the website in an effort to come into compliance; o He noted that the Visser had taken remedial action; o A Citation was issued for"advertising self or business organization as available to act as a Contractor"without being duly registered or certified; • The phrase, "cabinet installation,"was the trigger. Thomas Lykos noted he knew"Ray and Dorrie" as members of the CBIA("Collier Building Industry Association"), but has never conducted business with them. He stated his existing relationship would not impact his ability to be objective regarding the matter before the Board. Jon Walker asked about the website designer. Raymond Visser explained the website was hosted by"Kitchens.com" and the arrangement was "inherited"when they purchased the business. He stated have worked for clients in England,New York City,the Cayman Islands. Jon Walker stated the information on the website and the testimonials provided gave the impression that they were operating a business in Collier County. Mr. Visser acknowledged the majority of their business was from Collier County and that is why the legal notice was placed on each page—to protect the business— but their clients were not limited only to the Collier County area. Thomas Lykos noted even though the Vissers were from outside the U.S., since they chose to buy and operate a business within the U.S.,they must learn the laws and follow them. Even if they have clients from outside the U.S. they cannot ignore the laws of Collier County when operating a business in Collier County. Mr.Visser reiterated he did not understand how Collier County could claim jurisdiction over a website that was not strictly limited to only Collier County—it is a world-wide website. He stated they were not trying to avoid anything—they did "cue diligence"—and always try to comply with the law. He understood why there are rules and regulations. He further stated they did everything that they thought they needed to do to come into compliance. Mr. Lykos countered the Vissers were using the international aspect of their business to "water down"or not communicate their limitations with their Collier County clients. He suggested the website should state: "In Collier County, we are not licensed to install cabinets. In Collier County, we are not licensed to hire plumbers, electricians—it is strictly the responsibility of a homeowner." If the website listed the restrictions within Collier County, while offering to provide the names of three licensed General Contractors that a homeowner could interview, 4 August 15, 2012 there would not have been a violation. The disclaimer they placed on the website was not specific enough to Collier County. He further explained since the Business Tax"license"was in Collier County and their business was in Collier County,they must observe the laws of Collier County. Chairman Horn referenced Page 3 of the website, "Working with Willowood,"and stated the very top of the page notes "Willowood Kitchen and Bath, Kitchen Design, Bathroom Remodeling,Naples, Florida." The business address is North Tamiami Trail in Naples. The business telephone number is a local number. Based on that information,the Board considers it to be a local issue. The information tells a consumer the business is based in Naples, Florida. He suggested the matter could be settled by removing the sentence, "In addition to providing the professional installation ... etc."from the website. Vice Chairman Joslin concurred, noting the website gives the impression that "Willowood"can handle a project from start to finish but the current license for the business allows them to build and sell cabinets and nothing more. Mr. Visser again stated the actual language was that they could"arrange for"—not that they were doing the actual work. Vice Chairman Joslin countered that a General Contractor"arranges"things—he does not do everything himself but hires subcontractors to complete a job. Mr. Visser stated his attorney informed him there should have been a meeting to explain the violation which did not happen—they were simply fined. He stated he will continue to make changes to the website as necessary—they have already made changes they thought were sufficient. Chairman Horn asked if the Respondents would be willing to allow Michael Ossorio and the County to examine the website and explain exactly what changes are necessary to come into compliance. His question to the Respondents was, "Would you be willing to remove language from the website?" The response was, "yes." Vice Chairman Joslin asked if the owner from whom they purchased the business was, in fact, licensed to perform the work as advertised on the website. The response was, "no." Mr. Visser indicated he should consider obtaining a General Contractor's license. He stated he understands what is required and why it is required. Chairman Horn asked Mr. Ossorio if there have been any other complaints lodged against this company since 2006. Michael Ossorio stated he was not aware of any other problems. He explained the Mr. Visser could obtain a cabinetry license by taking and passing the Business Procedures test. Until he does so, he should remain within the realm authorized by the Business Tax Receipts, i.e., retail sales. 5 August 15, 2012 Rob Ganguli asked the Respondent if he received information concerning licensing. Ray Visser confirmed that he had been provided information on how to obtain a cabinet installation license. Thomas Lykos asked the Board's Attorney to read the Ordinance concerning contested Citations. Attorney Morey referred to Florida Statutes, Chapter 489, "Contracting," and Section 2-203 of the Municipal Code. He stated if a Citation is contested,the Board has the ability to uphold the Citation as issued, as well as to overturn the Citation in a situation where remedial measures have been taken and there has been no harm to the public. Vice Chairman Joslin stated after being in business in Collier County for six years, the Respondent should have realized the website was advertising services that could not be provided under his license. He stated he supported upholding the Citation as issued. He asked if the change to the website had been made. Doreen Visser had spoken to Mr. Ganguli on the phone and stated the disclaimer was added to the website prior to their meeting in June. She further stated it was initially only on Page 3 of the website but was added to each page on the website. She asked that the fine be waived since they had complied. Michael Ossorio stated merely adding the disclaimer was not sufficient to correct the violation prior to the Hearing. Vice Chairman Joslin concurred. Ray Visser countered he had discussed adding the disclaimer with Rob Ganguli who thought it was sufficient. He stated they did what Mr. Ganguli asked them to do. If the mediation wasn't enough, they should have been contacted and told what else was necessary. Chairman Horn asked Mr. Ganguli what he told the Vissers were the changes necessary to correct the website. Rob Ganguli stated he did not advise the Vissers to do anything—they decided themselves to add the disclaimer which he admitted he viewed as an effort to take some type of remedial action. He stated he was not in a position to determine if the remedial action was or was not sufficient. Chairman Horn asked Mr. Ossorio what was required to bring the web pages into compliance. Michael Ossorio agreed with the suggestions made by Thomas Lykos. He concurred that the following statement should be removed "In addition to providing the professional installation of cabinets and countertops, we are able to arrange for plumbing, electrical work or major structural jobs—whatever you need " Suggestion: Mr. Visser could insert a disclaimer on the website to clarify that the above statement does not apply to the City of Naples, the City of Marco Island, 6 August 15,2012 Everglades City, or unincorporated Collier County. Mr. Ossorio stated he would be willing to explain to Mr. Visser in detail exactly what was necessary to come into compliance. He suggested calling the Contractors' Licensing Office to make an appointment. Mr. Ganguli noted during his meeting with Mr. and Mrs. Visser, he acknowledged their remedial action of inserting statement of"Legal Notice"on the website, but did not confirm that the action would be sufficient to bring them into compliance. Vice Chairman Joslin moved to uphold Citation #7165 together with the fine of $300.00. Second by Jon Walker. Discussion: Thomas Lykos stated he was conflicted and that the goal of the Board is to achieve compliance, not inflict punishment. He further stated there were no clear-cut actions that the Respondent could take in the situation before the Board. There was intent on the part of the Respondent to take remedial action although it was not sufficient in his opinion. Chairman Horn asked the Board's attorney if the motion to uphold the Citation failed,what options were available to the Board. Attorney Morey responded if the motion failed, a new motion could be made as long as the Hearing was open. County Attorney Jeff Wright agreed with Mr. Morey's assessment. Terry Jerulle stated he was also conflicted. The impression from other pages on the website was that the Vissers would oversee a project—which is what a General Contractor would do. There was further discussion concerning the options available to the Board. Mr. Ossorio noted the Board had, in the past, withdrawn a Citation when a violation had been abated prior to the Hearing. It was rare, but had been done previously. The Respondents were given information concerning how to obtain a license. He stated that, in the County's opinion,the Vissers had not met the burden of meeting the requirements to waive the Citation. Mr.Visser stated he was very willing to make whatever changes are necessary to the website. He further stated if he had been given clear direction,the changes would have been made prior to the Hearing. He stated it would be easier to delete the page rather than to revise the website due to the difficulty of dealing with the webmaster. Mr.Lykos explained a number of risks relating to the advertising claims versus the type of insurance coverage—it is more serious than just misunderstanding the rules 7 August 15, 2012 and laws of Collier County. He stated the Respondent could have put a client and the client's property at risk because there may not be adequate insurance protection in the case of a problem. Mr. Visser stated he was "quite willing to put it right and not buck the system." Chairman Horn called for a vote and restated the Motion to uphold the Citation. Motion carried unanimously, 7—0. Mr. Visser indicated he would file an appeal. Attorney Morey advised Mr. Visser to consult with his counsel and asked the County Attorney to provide information concerning the appeals process to the Respondent. B. Darlene Rowe—Credit Report(s) Ms. Rowe explained she was appearing before the Board to qualify her company, Dazzling Floors, Inc. (Trade: floor covering installation) The company has been in business since 1999 in Florida but is new to Collier County. Michael Ossorio stated: • The application is for approval of a floor covering license. • The Applicant took and passed the Business Procedures Test. • Ms. Rowe is licensed in other jurisdictions that do not require taking and passing the Business Procedures Test. • There was a question concerning her business credit report which is why the application was presented to the Board. Chairman Horn stated he had read Mr. Rowe's letter of explanation concerning the 2006 judgment against her company in the sum of$11,269.00. Ms.Rowe explained she has not yet paid anything on the judgment. At the request of Vice Chairman Joslin, she reiterated the background concerning the judgment. She stated her company was subcontracted to install tile and was supplied the tile by Destin Floors. There were no complaints about the workmanship. Approximately four months later, she was requested to replace the tile for free because the client's wife changed her mind about the color and she refused. When questioned about a collection on her personal credit report, she stated she had undergone three surgeries and lost two houses to foreclosure. Mr. Ossorio stated if a business has been open for 12 months or longer,more emphasis is placed on the business credit report. He noted medical issues or a foreclosure was not an indication that a contractor could pay his/her business expenses. 8 August 15,2012 Vice Chairman Joslin stated, in the past, the Board had approved granting a probationary license when there were credit issues. He noted she had achieved an 86% score on the Business Procedures Test as evidence of her knowledge of her trade. Ms. Rowe stated she had worked for Carpet One for 13 years in Okaloosa County, Florida,without any problems. Michael Ossorio stated the County recommended granting a probationary license for six months. If there are no problems at the end of the six month period,her Certificate should be changed to "active status." Thomas Lykos suggested a one year probationary period with review of her credit reports at six and twelve months to give her time to demonstrate some improvement. Thomas Lykos moved to approve issuing a probationary license for a period of twelve months. The Respondent will return to present her current business and personal credit reports to the Board at six and twelve months. The Board will make a final determination concerning her license at the end of the probationary period. Second by Terry Jerulle. Carried unanimously, 7—0. C. Jeff Yingling—Review Credit Report Chairman Horn welcomed Mr. Yingling who was appearing to qualify the company, "Paints & Coatings, Inc." He asked the Applicant if he knew a Frank Jackson of North Port, Florida. Mr. Yingling responded, "Yes." Chairman Horn explained there were some minor discrepancies ("housekeeping issues") concerning the Verification of Construction Experience that Mr. Jackson submitted. He noted Mr. Jackson's Affidavit of Integrity and Good Character was also incorrectly completed. He requested that Staff review the documents. Chairman Horn asked the Respondent to explain the Company's "major"credit issues. Jeff Yingling stated: • He and his partner began the company in 1994 and have devoted their time to compliance and safety issues for jobs with confined spaces. They were field-oriented and worked each job site. • In 2008,the Office Manager and another employee were found to have embezzled several hundred thousand dollars from the company, including the theft of payroll tax deposits. • The employees were fired,prosecuted by the State's Attorney, and convicted of First Degree Grand Theft --they are serving sentences in jail. 9 August 15, 2012 • The company has entered into a repayment plan, approved by the IRS, and has enacted new office procedures and internal controls to prevent a similar situation from happening in the future. • Neither Jeff nor his partner took a paycheck for 2010 and most of 2011 to keep the company going. • The payroll taxes are current and the company is on the road to recovery. A CPA who reviews the payroll on a monthly basis. • He has become computer literate which he was not in 2007 and he is more office oriented now. Mr. Yingling explained the company usually works for utilities and, in 2008, worked primarily in Lee County, with only a few jobs in Collier County. The company provides special paints and coatings for drinking water and for wastewater pipes and lift stations. They clean out sewer systems and drinking water tanks. Michael Ossorio stated Paints & Coatings, Inc. was hired by Collier County Public Utilities. He received a Citation because he was not licensed to work in Collier County. He has been licensed to work in Lee County for years but forgot about obtaining licensing in Collier County. The Applicant has taken and passed the Business Procedures Test and the Painting Exam. There have not been any complaints made against the company in Collier County. The immediate concern was the business credit. Vice Chairman Joslin asked if the monthly payments pursuant to the IRS repayment plan were being made on time. Jeff Yingling replied affirmatively. Michael Ossorio confirmed the County recommended approving a Certificate for Painting. Thomas Lykos moved to recommend approving a Certificate for Painting. Second by Vice Chairman Richard Joslin. Carried unanimously, 7—0. Jeff Yingling noted the Citation fine had already been paid. VII. OLD BUSINESS: A. Nelly Nava—Review Credit Report Chairman Horn noted Nelly Nava was appearing for Board review of her recent credit report. He stated Ms.Nava had been on probation and has been required to present her credit reports to the Board every six months. He stated he did not see very much improvement in her personal credit report. Ms. Nava stated: • The year started off slowly with only a few job—she did not make enough money to make regular payments, although she is making payments. 10 August 15,2012 • She has not applied for business credit because she is afraid of rejection due to her personal credit problems. • She stated her credit is a"bit better." Chairman Horn noted the American Express balance was reduced by $800. He stated the other balances remained about the same. Ms. Nava continued that her son required surgery in 2011 and she is paying the medical bills incurred for his treatment. Michael Ossorio stated his only complaint was that Ms. Nava would call him frequently and requested that the Board"move forward with this if possible." It was noted this was her 3rd six-month appearance before the Board. Vice Chairman Joslin moved to end the probation and allow Ms.Nava to "start fresh." Second by Chairman Lee Horn. Carried unanimously, 7—0. B. Orders of the Board Vice Chairman Joslin moved to approve authorizing the Chairman to sign the Orders of the Board Second by Robert Meister. Carried unanimously, 7—0. VIII. PUBLIC HEARINGS: (Note: In the following case, the individuals who testified were first sworn in by the Attorney for the Board.) A. Case#2012-09: Lucius Blackwell, d/b/a "AAA Air-Conditioning& Refrigeration,Inc." Chairman Horn noted Mr. Blackwell was not present at the Hearing. Chairman Horn outlined the general process of the Public Hearing: • The County will present an Opening Statement to set forth the charges and, in general terms,how it 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, i.e.,to call and examine witnesses, introduce Exhibits, cross-examine witnesses to impeach any witness regardless of which party called the witness to testify, and rebut any evidence presented against the party. 11 August 15, 2012 • 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. • 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: o Whether the Respondent was guilty of the offense(s)charged in the Administrative Complaint, and a vote will be taken on the matter. o 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. Vice Chairman Joslin moved to approve entering the packet for Case No. 2012-09, Board of County Commissioners vs. Lucius B. Blackwell, d/b/a "AAA Air Conditioning&Refrigeration, Inc., "License#CAC-1816210, into evidence. Second by Terry Jerulle. Carried unanimously, 7—0. • Chairman Horn entered the information packet into evidence, marked as County's Exhibit "A." Michael Ossorio referred the Board to Exhibit E-8 and stated a letter of notification of the Hearing(Exhibit E-7)was sent, via Certified Mail,to the Respondent's last known address in West Palm Beach, Florida. He confirmed the County was ready to proceed. Chairman Horn concurred that the Respondent had been properly noticed and determined the Hearing could proceed. Karen Clements, Licensing Compliance Officer,presented the County's "Case in Chief'and stated: • She received a complaint on May 31, 2012 from Greg Governale,the son of Marilyn Governale, regarding 2018 Duke Drive,Naples, Florida. • AAA Air-Conditioning&Refrigeration, Inc. is a State-certified Contractor, License#CAC-1816210, from West Palm Beach, Florida. • The Company was contracted on April 27th to install a condensing unit, an air handler, and a dehumidifier at a cost of$8,050.00 • A deposit of$3,750.00 was paid and the Company proceeded with the work. • A Permit was not obtained. 12 August 15, 2012 • Marilyn Governale is experiencing problems with the air-conditioning unit. • AAA Air-Conditioning is not registered with Collier County. • Mr. Blackwell was contacted and came to the Contractors' Licensing Office the on June 1St to register the company. • He was unable to register the company because he did not have proof of insurance. • Michael Ossorio gave him a Notice of Non-compliance which he signed. • Mr. Blackwell spoke with Jim Turner from the Plumbing Department and received the necessary paperwork. • Instead of returning with the documentation completed, he went to his car and left. • Numerous phone calls were placed to Mr. Blackwell ---his response was stall tactics ... he was always waiting for"something" (paperwork, information, etc.) • The Notice of Hearing was sent to Mr. Blackwell via Certified Mail and it was received. • On July 16th, an email was sent to AAA Air-Conditioning but there was no response. (See Exhibit E-12) • Tom DeGram, Interim Chief Building Official, was contacted concerning the case(Exhibit E-13). He determined there was a willful Code violation of Section 105.1 of the 2010 Florida Building Code(Exhibit E-14). • The violation has not been abated. Chairman Horn asked if the job required a permit and inspections and Ms. Clements replied affirmatively. He asked if a State-certified contractor was required to register with Collier County before beginning a job. Karen Clements concurred. Michael Ossorio met with Lucius Blackwell on June 1st and he was issued a Non- compliance Order to inform him (and all State-certified Contractors)that they must pull a building permit to be in compliance. Mr. Blackwell assured Mr. Ossorio that it was an oversight and apologized. He stated he would obtain the required building permits. He continued the Governales were waiting for the Board's decision to avoid being in breach of contract. They have another contractor who will pull the required permits to install a new air conditioning unit. He stated the Governales have filed a complaint for misconduct with the State Board. Chairman Horn reiterated the system has not been permitted and not C/O'd. Jon Walker asked if restitution was ordered by the Board and verified the customers paid over$3,000 as a deposit. Karen Clements stated they had paid the entire amount of$8,050 to the Contractor. Chairman Horn noted that since the Contractor was State-certified, different rules applied. Attorney Morey stated he would explain the regulations to the Board during the penalty phase of their deliberation. 13 August 15, 2012 Thomas Lykos stated the Board was required the protect the consumer and the case before the Board proved why the rules were necessary. Robert Meister noted the Contract stated the owner was responsible for obtaining a permit (see Exhibit E-11) and confirmed the statement did not absolve the Contractor of his responsibility to register in Collier County. Michael Ossorio stated the County recommended the Board determine that the Contractor was guilty of a willful violation of the Florida Building Code, and concluded the County's presentation. Vice Chairman Joslin moved to close the Public Hearing. Second by Thomas Jerulle. Carried unanimously, 7—0. Attorney Morey read the Charge to the Board and outlined the Charge as follows: • 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 or 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. • 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 ordinary Civil cases. • 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. 14 August 15, 2012 • The Board shall also make Findings of Fact and Conclusions of Law in support of the charges set out in the Complaint. Chairman Horn noted the Respondent had been properly served notification of the Hearing. Michael Ossorio referred the Board to the second page of the Administrative Complaint which detailed Count I. Chairman Horn read the County into the record as follows: "Collier County Ordinance 90-105, as amended, Section 22-201.1(2) states, `Willfully violating the applicable Building Codes or Laws of the State, City or Collier County. " Vice Chairman Joslin moved to approve that in Case #2012-09,Petitioner versus Lucius B. Blackwell, d/b/a "AAA Air-Conditioning& Refrigeration,Inc."the Respondent was found guilty of violating Count I of the Administrative Complaint as stated. Second by Thomas Lykos. Carried unanimously, 7—0. PENALTY PHASE: Attorney Morey stated if, after a Hearing has been conducted, the Contractors' Licensing Board found there was misconduct by a State-certified Contractor within the meaning of Section 22-201,the Board may, but shall not be required to, impose any of the following Disciplinary Sanctions individually, or in combination: (1) The Board may deny the issuance of Collier County Building Permits or require the issuance of Permits with specific conditions; (2) Notification and information concerning such permit denial(s) shall be submitted to the Florida Department of Business and Professional Regulations within fifteen days after the Contractors' Licensing Board decision. Attorney Morey further advised the Board that,when imposing any of the possible Disciplinary Sanctions on a Contractor holding a Certificate of Competency or a State-certified Contractor who has been found to have violated the Ordinance,the Contractors' Licensing Board shall consider the following: (1) All of 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(s); (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(s) or the violator. 15 August 15,2012 He concluded in addition to any other action that may be taken,the Contractors' Licensing Board may also issue a recommended penalty to the State's Contractors' Licensing Industry Board. Chairman Horn asked the County for recommendations. Michael Ossorio stated: • To pull the Respondent's Building Permit privileges for the City of Naples, the City of Marco Island, and all of unincorporated Collier County, and • To authorize the Contractors' Licensing Office to send a Certified letter to the State with the Findings of Fact and a recommendation for revocation of the Respondent's Certificate in the State of Florida, as well as imposing full restitution with penalties and an investigation to be conducted by the Department of Business and Professional Regulations. Michael Boyd asked if the Respondent could be fined for the County's costs. Mr. Ossorio confirmed the Board could recommend that the State order the Respondent of pay all costs incurred by Collier County related to its investigation. When asked about a public reprimand, Mr. Ossorio stated the Board had not previously requested that the State issue a public reprimand against a State-certified Contractor. Chairman Horn noted the Board could ask. Chairman Horn moved to recommend approving the following actions: • pulling the Respondent's Building Permit Privileges for Collier County and its municipalities; • granting permission to the Contractors'Licensing Office to send a Certified letter to the State requesting revocation of the Respondent's license, restitution for the homeowner, an investigation to be conducted by the State, reimbursement to Collier County for its investigative costs, and that a public reprimand be issued Second by Vice Chairman Joslin. Carried unanimously, 7—0. Chairman Horn outlined the Board's Order: • This cause came on for public hearing before the Contractors' Licensing Board on August 15, 2012 for consideration of the Administrative Complaint in Case#2012-09 filed against Lucius B. Blackwell, d/b/a"AAA Air-Conditioning&Refrigeration,Inc.,"the holder of record of State Certificate#CAC-1816210. • 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, and issued its Findings of Facts and Conclusions of Law as follows. 16 • August 15, 2012 Findings of Fact: • Lucius B. Blackwell, d/b/a"AAA Air-Conditioning&Refrigeration, Inc.," is the holder of record of State Certificate#CAC-1816210. • 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, Lucius B. Blackwell, was not present at the Public Hearing held on August 15, 2012, and was not represented by Counsel at the Hearing. • The Respondent had been properly noticed concerning the Hearing. • All notices required by Collier County Ordinance 90-105, as amended,had been properly issued and were personally delivered. • The Respondent acted in a manner that is in violation of Collier County Ordinances and is the one who committed the act. • The allegations of fact as set forth in Administrative Complaint as to: o Count I, under Section 22-201.1(2): "Willfully violating the applicable Building Codes or Laws of the State, City or Collier 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 to Count 1 has been approved, adopted and incorporated herein,to wit: "The Respondent violated Section 22-201.1(2) of Collier County Ordinance 90-105, as amended, in the performance of his contracting business in Collier County by acting in violation of the Sections set out in the Administrative Complaint with particularity." 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 seven(7) in favor and none (0) in opposition, 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 7 in favor,and none in opposition, a majority vote of the Board members present,that the following disciplinary sanctions and related Order are hereby imposed upon the holder of State Certificate of Competency#CAC-1816210,to wit: o Pull all Building Permit privileges in Collier County; o The Contractors' Licensing Office is to send a Certified letter to the State recommending revocation of the Respondent's license, restitution to the homeowner, an investigation to be conducted by the State,reimbursement to Collier County for its investigative costs, and that a public reprimand be issued. 17 August 15, 2012 Chairman Horn noted the case was closed. IX. REPORTS: • Mr. Ossorio noted the Office has been working with the Department of Financial Services regarding shell companies (a corporation that opens without obtaining a license and only minimal insurance coverage) . He stated approximately 25 "Stop Work"Orders have been issued during the past three months throughout Collier County. He will provide the Board with information concerning the issue. X. MEMBER COMMENTS: • Vice Chairman Joslin requested that the County Attorney investigate what would happen to a Citation if a Motion on the floor failed. County Attorney Jeff Wright stated he would research the issue for future discussion. He stated if a motion failed,the Board could not take any action. A follow-up motion could be made which the Board could vote upon. • Vice Chairman Joslin asked if a Board's decision regarding whether or not to uphold a Citation could also be appealed. County Attorney Jeff Wright noted an appeal could be made. The Respondent has the right to a re-hearing within 20 days following the Board's decision. He referenced Section 22-204 of the Ordinance. • Attorney Morey stated the Board's earlier motion to uphold a Citation was appropriate as stated. He suggested an alternative motion have been phrased to deny the Respondent's request to waive the Citation. He further stated the Respondent had contested the issuance of the Citation. There was further discussion. It was noted there have been questions in the past concerning the Board's action if a Motion fails, is the Respondent not liable for payment of a fine. Attorney Morey stated he would report to the Board concerning options to "fine tune"the process. • Michael Ossorio outlined the Standard Operating Procedures regarding issuance of Citations and stated it was explained to a Respondent that the back of the Citation contained instructions concerning how to contest a Citation. A Respondent is also provided with a copy of the Ordinance. • Mr. Ossorio stated that for future Hearings,the Board would be provided with a full copy of any Citation(both front and back)issued. He noted a Respondent may change his/her mind concerning whether to pursue contesting a Citation or decide to pay the fine even after the back of the Citation was signed. XI. NEXT MEETING DATE: Wednesday, September 19, 2012 Board of County Commissioners' Chambers, 3rd Floor—Administrative Building"F," Government Complex, 3301 E. Tamiami Trail,Naples, FL 34112 18 • August 15,2012 There being no further business for the good of the County,the meeting was adjourned by the order of the Chairman at 11:15 AM. COLLIER COUNTY CONTRACTORS LICENSING BOARD 9 Lee Hor , Chairman The Minutes were approved by the Board/Chairman on l� , 2012, "as submitted" ( 1 OR "as amended" ( 1. 19