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CLB Minutes 01/16/2013 CONTRACTORS LICENSING BOARD Minutes January 16 , 2013 ropEaNEMJanE 16,2013 FEB 20 2013 BY: MINUTES OF THE COLLIER COUNTY CONTRACTORS' LICENSING BOARD MEETING Fiala Hiller January 16, 2013 Henning Naples, Florida Coyle v• EOICIId 'Hovnce LET IT BE REMEMBERED that the Collier County Contractors' Licensing Board, having conducted business herein, met on this date at 9:00 AM in REGULAR SESSION in Administrative Building "F," 3rd Floor, Collier County Government Complex, Naples, Florida, with the following Members present: Chairman: Richard Joslin Vice Chair: Patrick White Members: Michael Boyd Ronald Donino Terry Jerulle Kyle Lantz Miss Robert Meister Jon Walker Llate: Excused: Thomas Lykos Copies to: ALSO PRESENT: Michael Ossorio — Supervisor, Contractors' Licensing Office Jeff Wright, Esq. —Assistant County Attorney James F. Morey, Esq. —Attorney for the Contractors' Licensing Board Karen Clements—Licensing Compliance Officer 1 January 16,2013 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 Richard Joslin called the meeting to order at 9:01 AM and read the procedures to be followed to appeal a decision. Roll call was taken and a quorum was established. Eight voting members were present. Michael Ossorio, Supervisor—Contractors' Licensing Office,noted Board Member Thomas Lykos had been excused. II. AGENDA—ADDITIONS OR DELETIONS: Deletion: • Under Item VI, "New Business:" (A) Jerome J. Jeker—Contesting Citation (The request to withdraw was made by Mr. Jeker.) Continuation: • Under Item VIII, "Public Hearings:" (A) Case#2013-01: BCC vs. Brenton L. Mongan, d/b/a"Naples Property Pros"was continued to the February meeting. III. APPROVAL OF AGENDA: Vice Chairman Patrick White moved to approve the Agenda as amended. Second by Robert Meister. Carried unanimously, 8—0. IV. APPROVAL OF MINUTES—December 19,2012: Kyle Lantz moved to approve the Minutes as presented. Second by Jon Walker. Carried unanimously, 6—0. (Note: Michael Boyd and Robert Meister could not vote to approve the Minutes because they did not attend the December meeting.) V. DISCUSSION: (None) VI. NEW BUSINESS: (Note: Regarding cases heard under Section VI, the individuals who testified were first sworn in by the Attorney for the Board) 2 January 16,2013 B. Dagoberto Barcelo—Credit Report Review Applicant: Dagoberto Barcelo d/b/a"Barcelo's Custom Cabinets and Millwork, Inc." Mr. Barcelo explained the reasons for his personal credit problems: • Due to the economic downturn, he had been laid off as a cabinet maker by his former employer • He was unable to find employment and lost his house due to foreclosure • He resorted to using his credit cards to meet his expenses (food, rent, etc.) • He decided to open his own company as a custom cabinet maker in order to improve his situation Chairman Joslin noted Mr. Barcelo is a woodworker who made cabinets and has applied for a license to install his work product. He commended-Mr. Barcelo on his test results; the score for the Business Procedures exam was 90%. Michael Ossorio confirmed Mr. Barcelo had taken the examination at GITS, LLC, which is a Board-approved testing facility in Ocala. Chairman Joslin stated Mr. Barcelo presented serious credit issues. The Applicant stated his priorities were to make money since he cares for his 73- year old mother. Mr. Barcelo further stated he had been advised to open his own business since he has the skill and experience in the trade. He guaranteed that if his license application is approved, he will pay all of his obligations and noted he is attempting to establish a payment plan. Vice Chairman White noted the Applicant had received a citation for installing cabinets without a license and requested an explanation. Mr. Barcelo stated he had been working for a General Contractor on Marco Island who was to have included his name on the payroll. The General Contractor failed to do so. When the citation was issued, the Applicant immediately paid the fine. Mr. White stated if the Applicant became a Contractor, it would eliminate this type of problem. He asked the Applicant if he would make every effort to pay off his debts if a license was granted. Mr. Barcelo stated every penny of profit would be put back into the company to allow it to grow. He explained his biggest problem was with the Bank of America and he was obtaining information concerning a new government program that may apply to his situation and arranging a payment schedule for his credit card bills. Chairman Joslin requested recommendations from Staff. Michael Ossorio suggested approving the application for a license while imposing a one-year probationary period. The Applicant will be required to return to present his business and personal credit reports for the Board to review. Jon Walker asked if the Applicant if he understood he would be required to prove to the Board that he had made some progress paying down his debts. Mr. Barcelo responded, "Yes." 3 January 16, 2013 Jon Walker moved to approve granting a license to the Applicant with a one-year probationary period. Vice Chairman White offered a second and added the requirement that the Applicant was to return at the end of the one-year probationary period to provide updated personal and business credit reports. Mr. Walker amended his original Motion to include the suggested addition. Second by Vice Chairman White. Carried unanimously, 8—0. Chairman Joslin instructed Mr. Barcelo to contact Contractors' Licensing Office Supervisor Michael Ossorio to complete the required paperwork. VII. OLD BUSINESS: A. Orders of the Board Vice Chairman Patrick White moved to approve authorizing the Chairman to sign the Orders of the Board Second by Terry Jerulle. Carried unanimously, 8—0. VIII. PUBLIC HEARINGS: A. Case#2013-02: BCC vs. Robert E. Elwell,Jr. Respondent, Robert E. Elwell, Jr., was not present or represented by Counsel. Chairman Joslin outlined the manner in which the Public Hearing will be conducted: • 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. 4 January 16,2013 • 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. • 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 is guilty of the offenpe as charged in the Administrative Complaint. A vote will be taken on the matter. o If the Respondent is 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 Chair/Vice 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. 5 January 16,2013 Vice Chairman White moved to approve entering Case No. 2013-02, Collier County Board of County Commissioners vs. Robert E. Elwell, Jr., d/b/a "Service Star Cooling& Heating,Inc.," consisting of the Administrative Complaint and Exhibits into evidence. Second by Kyle Lantz. Carried unanimously, 8—0. Chairman Joslin entered the information packet into evidence as County's Exhibit "A." Karen Clements, Licensing Compliance Officer,presented the County's Opening Statement: • The Respondent is Robert E. Elwell, Jr., d/b/a"Service Star Cooling & Heating, Inc." • The Respondent is licensed by the State of Florida as a Certified Class A Air-Conditioning Contractor, License No. CAC-0568252 • May 1, 2012: Received a complaint from Kobie Kooling concerning discovery of the installation of an a/c unit at 6216 Bellerive Avenue, Bldg. 17,Apt. # 1702, for which a permit had not been pulled. • May 3, 2012: A site inspection was conducted. The homeowner, Mrs. Martens, stated she had been solicited by Service Star to install a new a/c unit since they were in the area and could give her a"good price"to do the job. • May 14, 2012: A Permit was issued • May 17, 2012: Called the Respondent; reminded him the Permit was to be picked up and an inspection scheduled upon completion. • May 23, 2012: Inspection was schedule for May 25th • May 25, 2012: Inspection failed—installation did not comply with Code requirements. • September 20, 2012: Contacted"Michael"at Service Star. A second inspection was to be scheduled. • September 24, 2012: Calls were placed to Service Star and to Robert Elwell. Messages were left. • September 26, 2012: Received call from Robert Elwell who stated inspection would be called in on September 27, 2012. • October 1, 2012: Final inspection was scheduled. • October 2, 2012: Contractor's license with State had not been renewed—he must re-register with Collier County; Inspection results will be entered into Collier's system at that point • October 10, 2012: Mr. Elwell stated he would no longer qualify Service Star Cooling and Heating after Permit has been completed • October 12, 2012: Robert Elwell called-- Service Star had retained a new qualifier. • October 23, 2012: Spoke with"David"at Service Star"Enterprises"—new company name—who stated the company will not stand behind previous work. Contacted Mr. Elwell who stated he was retaining an attorney. Ms. Clements advised Mr. Elwell to hire a company to finish the work. 6 January 16, 2013 • October 26, 2012: Left several messages for Mr. Elwell. Did not receive a response. • October 29, 2012: Received a phone message from Peter Mackey, counsel for Robert Elwell. • November 1, 2013: Spoke with Mr. Mackey who stated the owner of Service Star had been arrested several times for involvement in"Ponzi" schemes (investment swindles). He further stated options were under consideration to rectify the situation with the homeowner, Mr. Martens. • November 27, 2012: A Non-compliance Letter was sent and the hearing was scheduled for January 16, 2013. Ms. Clements noted the County received a fax dated January 15, 2013 (at 5:34 PM) from the Mackey Law Group, P.A. She read the contents of the letter into the record: "As you know from our previous letter of December 19, 2012, we represent Robert E. Elwell, Jr. We are cognizant of the January 16, 2013, 9:00 a.m. Contractors'Licensing Board hearing. Mr. Elwell is not able to be at the hearing due to health reasons. As we previously referenced, he has heart problems. It is our understanding that the decision to be made tomorrow is whether to revoke Mr. Elwell's permitting privileges with Collier County. Based on our letter of December 19, 2012, Mr. Elwell's health and Mr. Elwell's finances, we are informing you that he has not objection to the revocation of his permitting privileges for Collier County. Mr. Elwell appreciates any consideration that you can provide to him as a result of his unfortunate association with Salvatore Tavoclacci. Please call me if you need any assistance whatsoever and/or if you would like to speak with Mr. Elwell. Sincerely, MACKEY LAW GROUP, P.A. (signed) Peter J. Mackey" (Note: A copy of the letter was distributed to the Board members.) Ms. Clement stated she requested direction from Thomas L. DeGram, Collier County Chief Building Official, who stated he considered the situation to be a "willful Code violation." Ms. Clements verified that Mr. Elwell had been properly notified of the Hearing via certified letter delivered to his attorney, Peter Mackey, on December 8, 2012. 7 January 16,2013 Chairman Richard Joslin moved to enter the letter from Peter Mackey,Esq., dated January 15, 2013 into evidence as County's Exhibit `B." Second by Vice Chairman Patrick White. Carried unanimously, 8—0. Terry Jerulle asked if Mr. Mackey's letter of December 19, 2012 had been included in the information packet previously presented to the Board members. Vice Chairman White noted Attorney Mackey's letter of January 15, 2013 referenced the Respondent's Collier County Certificate of Competency(Number 201100001915) while the Administrative Complaint referenced the State License (CAC-058252.) He asked for clarification that the Board would decide whether or not to revoke the Respondent's permit pulling privileges in Collier County under the State License. Michael Ossorio confirmed. Mr. White asked how the Respondent's Collier County Certificate of Competency would be effected. Mr. Ossorio responded the CAC would become inactive. Mr. White clarified the permit pulling privileges would be revoked and the Certificate of Competency would be inactive. Karen Clements produced a copy of Attorney Mackey's December 19th letter. (Note: Vice Chairman White reviewed the letter.) Chairman Joslin asked if the job had ever been completed. Ms. Clements replied it had not passed inspection and a Certificate of Completion has not been issued. Michael Ossorio referred the Members to Exhibit E-13, "Inspection History." Vice Chairman White referred to Mr. Mackey's letter and stated, "in essence," the situation appeared to be a pattern of practice throughout the state with respect to Salvatore Tavolacci,the owner of Service Star. He noted there may be other victims throughout the State. He further stated the letter noted Mr. Elwell was not in a position to do anything to correct the situation due to his health issues and finances. Michael Ossorio stated the charge was "willful Building Code violation." • The Chief Building Official reviewed the Building Permit. • The Respondent chose to qualify a company even though he had no ownership in it. • The Respondent chose to pull and sign for Building Permits in Collier County. • A deposit was taken from a Collier County homeowner. • The installation was inspected twice and failed twice. • The Respondent is responsible to rectify the situation—to complete the job, have the work inspected and pass inspection for the consumer. 8 January 16,2013 Mr. Ossorio stated the company and the qualifier are responsible to make amends to the homeowner. He further stated the local Licensing Board is the first line of defense for consumers. He continued that if the Board finds there has been a violation, a letter will be sent to the State's Construction Industry Licensing Board. All consumers who have been harmed by this contractor would be notified and sent a State complaint form. Chairman Joslin asked if Service Star had been re-qualified in Collier County under a new qualifier. Mr. Ossorio stated the new company name is Service Star Enterprise with the same business address and telephone number. He reminded the Board that Mr. Elwell had previously been before the Board for prior willful Code violations. The previous order of the Board required Mr. Elwell to personally pull building permits and could not rely on the company to do so. Michael Ossorio stated County would rest its case under Count I which charged a violation of Ordinance 90-105, as amended, Section 22-201.1(2), "Willfully violating the applicable building codes of law of the State, City or Collier. " Vice Chairman White asked if the new company was operating in Collier County. Mr. Ossorio confirmed that Service Star Enterprises (formerly Service Star Cooling and Heating, Inc.)was currently conducting business in Collier County under a different qualifier. Vice Chairman White moved to approve closing the Public Hearing. Second by Terry Jerulle. Carried unanimously, 8—0. 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 shall 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 by 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. 9 January 16,2013 • The Burden of Proof on the Complainant is a larger burden than the "Preponderance of Evidence" Standard set in 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 only ones to which the Respondent has had an opportunity to prepare a defense. • The damages awarded by the Board must be directly related to the charges. • The decision made by the Board shall be stated orally at the Hearing and is effective upon being read, unless the Board orders otherwise. • The Respondent, if found guilty, has certain appeal rights to the Contractors' Licensing Board,the Courts, and the State Construction Industry Licensing Board ("CILB"),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. Chairman Joslin asked if it was possible to track the State's actions regarding the Contractor. Michael Ossorio responded the State will notify Collier County of the progress of its independent investigation. e noted the investigation process may take months or years before it is conclude ; Vice Chairman White askecfhe Board 0 could make a recommendation to the State's Construction Industry Licensing Board ("CILB") for further action in addition to the requested penalty. He asked the County for its recommendation. Recommendations: • Indefinite suspension or revocation of the Qualifier's Building Permit pulling privileges under State License#CAC-058252 for the City of Naples, Marco Island, and unincorporated Collier County; • Payment of$1,000 to Collier County for investigative costs incurred; • The State conduct a full investigation into the matter, and • Revocation of the Qualifier's State license Attorney Morey reminded the Board that if a decision was made that a violation occurred,there is to be a finding of guilty of willful violation Vice Chairman White moved to approve finding the Respondent,Robert E. Elwell, Jr.,guilty of the violation as charged and that the evidence presented demonstrated that he willfully violated the Building Codes. Second by Terry Jerulle. Carried unanimously, 8—0. Attorney Morey advised the Board that that when imposing disciplinary sanctions on a State-certified Contractor who has been found to be guilty of misconduct,the Contractors' Licensing Board shall consider the following: 10 January 16,2013 (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 Respondent to correct the violation; (5) Any previous violations committed by the Respondent, 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. Mr. Morey verified the Board is allowed to recover administrative costs but cannot impose a fine on a State-certified Contractor. Terry Jerulle asked if a public notice (reprimand) could be published. Michael Ossorio confirmed the Board could only recommend to the State that the State publically reprimand the Respondent; the County did not have the authority to publish a press release. Vice Chairman White moved to accept Staffs recommendations and to approve imposing the following Sanctions: • Denial of all further Building Permit privileges for the Respondent in Collier County, the City of Naples,Marco Island, and Everglades City; • Requesting that the CILB order the Respondent to pay$1,000 to Collier County for administrative/investigative costs incurred; • Recommending to the CILB to revoke the Respondent's state license; • Recommending to the CILB to order a public reprimand of Mr. Elwell. Second by Terry Jerulle. Kyle Lantz suggested adding a recommendation to the State to impose a fine of $5,000 in addition to the other Sanctions. Vice Chairman White amended the Motion to include recommending that the CILB impose a fine of$5,000 on the Respondent. Second by Terry Jerulle. Carried unanimously, 8—0. Chairman Joslin stated: • This cause came on for public hearing before the Contractors' Licensing Board on January 16, 2013 for consideration of the Administrative Complaint filed against Robert E. Elwell,Jr., d/b/a"Service Star Cooling& Heating, Inc.,"the holder of record of State License#CAC-058252. • Service of the Complaint was made in accordance with Collier County Ordinance 90-105, as amended. • The Respondent was not present, and was not represented by Counsel. • The Board, at this Hearing, having heard testimony under oath, received evidence and heard arguments respective to all appropriate matters, therefore issues its Findings of Facts and Conclusions of Law as follows. 11 January 16,2013 Findings of Fact: • Robert E. Elwell, Jr., d/b/a"Service Star Cooling & Heating, Inc.,"is the holder of record of State License #CAC-058252. • 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, Robert E. Elwell, Jr., was not present and was not represented by Counsel at the Public Hearing held on January 16, 2013. • All notices required by Collier County Ordinance 90-105, as amended, have been properly issued and were personally delivered via certified mail. • 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 22-201.1(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 I have been approved, adopted and incorporated herein, to wit: o 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 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, 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 8 in favor, 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 License#CAC-058252: o Robert E. Elwell, Jr., d/b/a"Service Star Heating and Cooling, Inc." is required to $1,000 to Collier County for administrative costs incurred; o Deny all further building permit pulling privileges indefinitely in Collier County, the City of Naples,Marco Island; o Request that the State Construction Industry Licensing Board revoke his License; o Request that the State of Florida Construction Industry Licensing Board impose a maximum fine $5,000in penalties, and o Request that the CILB issue a public reprimand. 12 January 16,2013 Chairman Joslin noted the case was closed. IX. REPORTS: • Michael Ossorio stated a Resolution was passed by the State Legislature which authorized the Department of Business and Professional Regulations to allow "grandfathering"of any State-registered Contractors who wished to apply for State certification. He explained the process and noted it could be done administratively —an appearance before the State Licensing Board was no longer required. X. MEMBER COMMENTS: (None) XI. NEXT MEETING DATE: Wednesday, February 20, 2013 Board of County Commissioners' Chambers, 3`d Floor—Administrative Building"F," 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 Vice Chairman at 10:15 AM. COLLIER COUNTY CONTRACTORS LICENSING BOARD 1 rhwd_Jauaslin, Chairman The Minutes were a roved by the Board/Chairman on 1 INY , 2013, "as submitted" OR "as amended" ( 1. 13