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HomeMy WebLinkAbout20150317SM Minutes�BASfir�q, PARTMPAl SEBASTIAN POLICE DEPARTMENT 1201 Main Street, Sebastian, Florida 32958 Code Enforcement Division CITY OF SEBASTIAN, FLORIDA MINUTES SPECIAL MAGISTRATE CODE ENFORCEMENT HEARING March 17, 2015 1. The hearing was called to order at 2:00 p.m. by Special Magistrate Kelley H. Armitage. 2. Present: Special Magistrate Kelley H. Armitage, City Attorney Robert Ginsburg, Building Official Wayne Eseltine, Code Enforcement Clerk Susan Lorusso. 3. Ms. Lorusso swore in staff and all persons that would be speaking. 4. Procedure for Enforcement of Contractor Licensing Statutes (Sec. 2-195) Case No.: B15-1014 CHARLES S. STADELMAN DBA CHARLES S. STADELMAN, CONSULTING 146 MABRY STREET, SEBASTIAN, FLORIDA 32958 Magistrate Armitage read the docket. Mr. Wayne Eseltine, Building Official identified himself, his position and years of service. He testified that Charles S. Stadelman doing business as Charles S. Stadelman Consulting was sent a citation through certified mail on February 9, 2015 regarding work performed at 572 Peterson Street for acting in the capacity of a contractor without holding a certificate of competency issued by a local construction board or certification issued by the State of Florida, commencing or performing work for which a permit is required without such permit being in effect, and falsely presenting himself or business organization out as a licensee. Mr. Eseltine said a fine totaling $800.00 was imposed in accordance with Resolution R-09-30 and administrative costs of enforcement are $192.00. Magistrate Armitage inquired how the $800 fine was obtained and Mr. Eseltine stated two violations are $250.00 each and the third was for $300.00. Magistrate Armitage asked if the citation was received by Mr. Stadelman and Mr. Eseltine presented the USPS signature confirmation sheet showing it was received on February 12, 2015. Magistrate Armitage entered this sheet as Evidence #1. Magistrate Armitage asked Mr. Stadelman if he had any questions for Mr. Eseltine, and he said he did. Mr. Stadelman asked Mr. Eseltine if he or anyone else saw him give a business card to the property owner and that the business card they have is for State Energy Conservation and not for Charles S. Stadelman, Consultant. Mr. Eseltine said the charge is based on the information provided by the complainant. Mr. Stadelman asked if the contract states anywhere that he is representing himself as a contractor and Mr. Eseltine replied he uses the term consultant in the contract. Mr. Stadelman asked Mr. Eseltine if there were any other inconsistencies with the contact that would warrant other charges as he states he only represented himself as a consultant. Mr. Eseltine noted that the contract specifically states, "Contract for Services" and lists specific services Mr. Stadelman would be providing and those services are what only a general contractor is allowed to provide. Mr. Stadelman said it was an estimate and that Ms. Messersmith was to pick the contractor she wanted to hire and pay that contractor directly. Mr. Stadelman would assist her in choosing materials and supplies for the work to be done. Mr. Stadelman also said he would meet the contractors, let them into the house, and lock up at the end of the day. Mr. Eseltine stated that he wrote the citation because this Contract for Services in which you were going to be compensated for and it is contracting under the law. Mr. Stadelman claimed he did not hire any subcontractors. Mr. Stadelman stated what he described as very poor condition within the house as bathrooms were either not working or just barely usable. He added that he had been talking with her for many months and in December (2014) he said their working relation has gone farther than what he would like it to be and he got a consultant license, got a general contractor and tried to help her coordinate things as much as possible. The only way he could be compensated to monitor from January to March was to put something in writing. Mr. Eseltine said the business tax receipt is not a license. Magistrate Armitage entered the Contract for Services into evidence as Evidence #2. Magistrate Armitage noted that Mr. Stadelman's fee is based upon the scope of work rather than an hourly rate. Mr. Stadelman explained the additional $75.00 per hour was strictly if he had to do anything over and above what he already did and to prevent her or anyone else adding on additional work. There was extensive discussion regarding the wording of the contract and whose benefit it was written for. Magistrate Armitage stated that this contract was a contradiction to contract law as it built in Mr. Stadelman's fee into the cost of a general contractor. Magistrate Armitage also stated that Mr. Stadelman had a fiduciary responsibility to his client, which is Ms. Messersmith and not the general contractor or his subcontractors. Mr. Stadelman identified himself for the record as Charles St. John Stadelman, Jr. of 146 Mabry Street, Sebastian, Florida. Magistrate Armitage questioned Mr. Stadelman regarding how he came up with terms of the contract for his fee being based on the work that was to be done. Mr. Stadelman said it was the way he gets paid and that nobody pays him by the hour, which Magistrate Armitage viewed to be the working as a general contractor or protecting the interest of the general contractor and not his client, Ms. Messersmith. Magistrate Armitage stated that Mr. Stadelman owed fiduciary responsibility to his client and this contract only financially protects him. Mr. Stadelman repeatedly stated that he could not project how long the job would take and was unable to estimate his time based on an hourly rate and that was why he calculated a percentage on the cost of the job for his fee. Mr. Stadelman brought up the issue of a family emergency that caused the workers to leave the job on a particular day. Ms. Messersmith stated that one does not plan for a family. Mr. Ginsburg asked Mr. Stadelman to look at copies of checks Ms. Messersmith wrote out to him and what were they paying. Mr. Stadelman then said some of the checks were for 2 previous work that was not part of this contract and that he was an officer of a company that originally had gone out there and he added he is an officer of a construction company. Mr. Ginsburg stated that the homeowner has already paid Mr. Stadelman close to the total contract price. Magistrate Armitage asked why were the checks written out to him and Mr. Stadelman said he would pay the general contractor and sub -contractors. Ms. Elana Messersmith of 572 Peterson Street, Sebastian, Florida and Mr. Robert Messersmith of 457 Columbus Street, Sebastian, Florida approached and gave testimony. Magistrate Armitage said he hears from the city that Mr. Stadelman is operating as a contractor and Mr. Stadelman says he is just a sweetheart and doing whatever you want. Ms. Messersmith thought Mr. Stadelman was her contractor. She had attempted to contact other contractors but none responded except Mr. Stadelman. Ms. Messersmith said she thought because his card had State Energy Conservation that he would be working in an environmentally safe manner. Ms. Messersmith also stated that of all the men that came to her house to work she never thought they were a separate entity from Mr. Stadelman. Answering Magistrate Armitage's question Ms. Messersmith said she thought the workers were employees of Mr. Stadelman because he would pay them at the end of each day even if what they were working on was not finished. She added that she never made out a check to anyone but Mr. Stadelman. Ms. Messersmith also stated she never got an itemized bill from Mr. Stadelman even after asking for it many times. Magistrate Armitage asked Mr. Messersmith if he was present during the contract negotiation and signing or during the construction. Mr. Messersmith said he was brought in after the contract had been signed. Mr. Messersmith said he went to his mother's home to assist her with other issues and paperwork and at that time he saw work was being done at the house and he found the contract. He discussed the amount of checks his mother had written out with her and asked for copies of everything she had regarding the work being done under this contract. His mother did give him copies of everything she had and he saw there was extensive work being done and looked for any building permits that should have been pulled for the work. Finding none on the website, Mr. Messersmith then contacted the building department to see if they have any building permits pending and there were none. He then researched the contractor's name and Mr. Stadelman was not in the system as a licensed contractor. Mr. Messersmith then met with the building official, Mr. Eseltine, and gave him copies of everything he had. Mr. Eseltine was concerned about the scope of work being done without permits. Magistrate Armitage asked Mr. Messersmith if he had any contact with Mr. Stadelman and he answered yes, after he found the signed contract he asked Mr. Stadelman for itemized receipts and Mr. Stadelman told him they don't generally do that in this business. Mr. Messersmith said he did in time get some receipts from Mr. Stadelman but in many cases the totals were cut off or the dollar amounts were unreadable or cut off as well. Magistrate Armitage asked Mr. Messersmith if he had ever discussed the scope of work with Mr. Stadelman. Mr. Messersmith said he may have but could not recall exactly when or what may have been discussed. He did remember that Mr. Stadelman explained himself as a consultant and Mr. Messersmith said he was not up on construction law so could not determine the difference between consultant and contractor as Mr. Stadelman was presenting to him. Magistrate Armitage explained that a consultant will work on behalf of an individual. 3 In answer to Magistrate Armitage's question, Mr. Messersmith said he really was unable to determine what Mr. Stadelman's job was in the whole scope of work. Mr. Ginsburg asked Mr. Messersmith if Mr. Stadelman gave him or his mother a business card. Mr. Messersmith said he did not receive any and Ms. Messersmith said she received several but was unable to find all of them. Mr. Ginsburg showed Ms. Messersmith copies of business cards and asked if any of them looked like card(s) she received from Mr. Stadelman. Ms. Messersmith identified the State Energy Conservation card as the one given to her by Mr. Stadelman. Mr. Messersmith said he also has seen those cards. Mr. Ginsburg showed the copies to Mr. Stadelman and asked if he recognized them, he said yes. Mr. Ginsburg asked if he provided them to the property owner and Mr. Stadelman said not in relation to this. The copies of the cards were placed in the record as Evidence #4. Responding to Magistrate Armitage's questions, Mr. Messersmith said he came on board with this when he reviewed the paperwork, found no permits were pulled, no license on file for Mr. Stadelman, he is unable to make sense of the accounting for the job, and yes work has been done at his mother's house but not finished. Ms. Messersmith described areas of paint overspray but that she only discussed it with her son. Mr. Messersmith did discuss those issues as well as portions of the bathroom work still not completed with Mr. Stadelman, who said it was all warranty work. Mr. Messersmith asked Mr. Stadelman for the sub -contractors contact information to discuss the work yet to be done; Mr. Stadelman said it would cost him more money if he did that, causing much confusion. Mr. Messersmith did state that he was led to believe the warranty was with Mr. Stadelman and not the sub- contractors. Mr. Stadelman asked Mr. Messersmith that other than the overspray was there any other issued he had with the work done at his mother's house. Mr. Messersmith said that there were still portions of the bathroom still not completed such as the tile. Mr. Stadelman asked Mr. Messersmith if he cancelled the job due to a family emergency and Mr. Messersmith said he put the job on hold due to the emergency. Mr. Stadelman repeatedly questioned Mr. Messersmith regarding the condition of his mother's house and Mr. Ginsburg objected to the line of questioning being asked as it does not have any relevance to the circumstances that brought us here today. Magistrate Armitage agreed and informed Mr. Stadelman to keep on track with regard to the contract. Mr. Stadelman continued asking Mr. Messersmith if he witnessed himself, Mr. Stadelman, giving anyone in the house his business card, and Mr. Messersmith said he did not. Mr. Stadelman asked Mr. Messersmith if he felt what was being done in the house was getting done and being completed, Mr. Messersmith said work was being performed. Mr. Stadelman then stated that work was progressing along until the family emergency occurred, his workers were unable to work, then two days later he was issued a cease and desist order by the Building Official. Mr. Stadelman also stated that there were no complaints about the monies, that part has been perfect up to this point even though they may not have gotten a complete billing. Magistrate Armitage questioned Mr. Stadelman as to why the checks were made out to him and not the general contractor and by this procedure the warranty would be from Mr. Stadelman and not the contractors or sub -contractors. Mr. Stadelman stated Ms. Messersmith was only paying him for consulting services. Magistrate Armitage asked if his consulting services consumed almost $22,000. Mr. Stadelman said some of those were from a previous job with her. He added that he set up the consulting firm to assist Ms. Messersmith in getting the work on her house completed. Mr. Stadelman said as long as Ms. 4 Messersmith took care of the bills he would take care of everything else. Mr. Stadelman said he believes he is only before the magistrate because he did not pull permits for the work and insisted that the money was not an issue with Ms. Messersmith. Magistrate Armitage called upon Mr. Ginsburg who stated based on the definition of contractor, building contractor, residential contractor and contracting in state law, we believe that the circumstances that we heard today means that this gentleman acted in those capacities with respect to this job without being properly licensed, and that's what he was cited for. Mr. Ginsburg added that they believe that the business cards that are in evidence, excluding the drywall contractor which is another issue and is not being dealt with today, the two Xerox copies come from the front and back of the same card. Mr. Ginsburg added that because of that they believe th\at Mr. Stadelman is representing himself as a contractor. There is a license number on the card that he handed to Ms. Messersmith. Mr. Stadelman claims that the card was from an earlier contact with Ms. Messersmith when she contacted that company for an issue she had with her solar hot water heater. Mr. Stadelman insisted that he did not represent himself as a general contractor. Magistrate Armitage called on Mr. Eseltine for any closing comments. Mr. Eseltine stated that the city believes as a consultant Mr. Stadelman was acting as a contractor without assuming the liabilities or responsibilities that the contractor has to assume by state law ensuring that the contractors he is hiring are covered by workman's compensation insurance, none of that has been verified but that is something that a contractor assumes that liability. There are certain things a contractor does when entering into a contract and receives compensation; clearly the definition says that if you do that type of thing you have to be a contractor. He added that they do care about the citizens and are protecting them from unlicensed contractors. Magistrate Armitage called on Mr. Ginsburg for closing comments. Mr. Ginsburg said that we have heard a great deal of testimony today about what happened and in our view the evidence points to the fact that the Respondent, despite whatever intentions he had or didn't have, the way he conducted business in this transaction placed him under the definition of contractor under state law and that in order to be in that position he needed to be certified and that is what this complaint is all about. The amount of money charged for the job, the quality of the work, is not really the issue here today and there has been a great deal of discussion about that. The issue is what the Respondent did with respect to this residential property and its improvement, its repair and he did enough to bring himself under the state law definition. That's our position and that's why he got the citation. Mr. Stadelman stated he is an officer of a construction company, part of a construction company, it's not that I'm out here doing this willy-nilly, I've been an officer of a construction company for nine years, it wasn't something I just did yesterday. He said he was trying to do the best he could under the circumstances. Magistrate Armitage asked Ms. Messersmith if she wished to continue to have the services done that are in the contract, does she wish to continue to work with Mr. Stadelman. Ms. Messersmith said she would have to think on that before making a decision. Magistrate Armitage stated if she wished to continue, she must meet with the general contractor and proper permits are to be applied for and approved by the building department. Also, Mr. Messersmith should meet the general contractor, who Mr. Stadelman said was Bill McLaughlin, and all should work together if Ms. Messersmith wishes to go forward with this contract. Magistrate Armitage advised Mr. Stadelman that he would take the evidence under consideration and render a decision, which will be mailed to Mr. Stadelman. 6. Hearing adjourned at 3:46 p.m.