HomeMy WebLinkAbout11162010SM MinutesCITY OF SEBASTIAN, FLORIDA
MINUTES
SPECIAL MAGISTRATE CODE ENFORCEMENT HEARING
November 16, 2010
1. The hearing was called to order at 2:00 p.m. by Special Magistrate David Hancock.
2. Present: Special Magistrate David Hancock, City Attorney Robert Ginsburg, Building
Official Wayne Eseltine, Building Inspector Daniel Hainey, Code Enforcement Clerk Susan
Lorusso.
3. Hearing of Code Violation:
Case No. B10 -1006
James Thomas Clark
1627 US Hwy 1, Suite 211
SEBASTIAN POLICE DEPARTMENT
1201 Main Street, Sebastian, Florida 32958
Code Enforcement Division
Magistrate Hancock swore in all persons that would be testifying or offering information during this
hearing.
Mr. Ginsburg gave a brief description of the citation issued by the City of Sebastian noting two
details; one for the failure of the contractor to register with the city and the other for the installation
of an air conditioning system without an appropriate permit. The portion of the code in question is
26 -171 (a) and also Section 489.127 (1) (h) of the Florida Statutes. Mr. Ginsburg called Wayne
Eseltine.
Mr. Eseltine identified himself, stated he is the Building Official for the City of Sebastian and has
held that position for six years. Mr. Eseltine testified to the following: that VacuVent entered into a
contract with Mr. John Hueseman, owner of 873 Clearmont Street, Sebastian to install new
mechanical air conditioning equipment and other associated services in conjunction with existing
duct work; that in October, 2010 Mr. Hueseman inquired at the Building Department about
VacuVent and the building permit; at which time it was discovered VacuVent had not been issued a
permit for the air conditioning work; the Respondent was not a registered contractor with the
Building Department according to city records; Respondent was issued a citation by certified mail on
10/12/10; on 10/25/10 Respondent's attorney requested an appeal to the Special Magistrate.
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Mr. Eseltine continued that on October 27, 2010 Respondent's representatives came to the Building
Department to register VacuVent as a licensed contractor and showed proof of licensure, insurance
and workman's compensation coverage. Respondent's attorney was sent a notice to appear before
the Special Magistrate.
Keith McCormick identified himself as representing James T. Clark and Coastal Environmental,
LLC, which is the qualified contractor. Mr. McCormick identified the company as Coastal
Environmental, LLC d/b /a/ VacuVent and requested the citation be amended to Coastal
Environmental, LLC rather than James T. Clark. He and added that Coastal is the qualifier and
James T. Clark is the certificate holder. Mr. McCormick said all reference from this point on will be
Coastal. Mr. McCormick cross examined Mr. Eseltine on the Building Department's procedure for
registering and renewing licensed contractors.
Mr. Ginsburg called Dan Hainey. Daniel Rainey identified himself as Chief building Inspector for
the City of Sebastian for four years and has been employed by the City of Sebastian as a building
inspector for six years. Mr. Hainey testified he was called to 873 Clearmont by the homeowner Mr.
Heuseman to perform an inspection of the work performed. Mr. Hainey testified he saw the
equipment in place both inside and outside the house but did not perform any inspections as there
was no permit issued for the work. Mr. Hainey said the homeowners informed him that the
contractor who installed the unit also did the electrical work. Mr. Ginsburg asked Mr. Hainey if it is
his testimony that the electrical work was done in order to install the system that is in place now and
Mr. Hainey responded in the affirmative. Mr. McCormick cross examined Mr. Hainey.
Magistrate Hancock asked if Mr. Ginsburg had other witnesses and he said no. Magistrate Hancock
then asked Mr. McCormick if he had any witnesses and he responded that he did.
Mr. McCormick called Michele Fornabaio, who testified that she has worked for Coastal for one
year and has been in charge of obtaining permits for various aspects of contracted work. Mr.
McCormick asked Ms. Fornabaio if she reviewed and is familiar with composites of Exhibit A and
she responded yes. Mr. McCormick entered into the record Composite Exhibit A with no objection
from Mr. Ginsburg. Mr. Ginsburg cross examined Ms. Fornabaio to ascertain why she filled out the
forms and sent them to the City of Sebastian. Ms. Fornabaio said she registered Coastal with many
municipalities at one time. Mr. Ginsburg asked if she had pulled a permit for the work to be done at
873 Clearmont. Ms. Fornabaio said she spoke with Linda in the Building Department who told her
no permit was necessary to replace a plug -in wall unit air conditioner. Mr. McCormick offered
Exhibit B, which was the page detailing Ms. Fornabaio's notes on her conversation with Linda on
May 5, 2010. Ms. Fornabaio stated Daniel McKusker overheard her conversation with Linda.
Mr. McCormick called Daniel McKusker, who identified himself as the general manager of Coastal
since July 2010 and previous to that he was a sales manager and also oversaw obtaining building
permits during April and May 2010. Mr. McKusker testified he had every intention to install a plug
in unit to replace the existing one, but they found the wiring to be bad and replaced the wiring and
hard -wired the new unit to the panel box. Mr. Ginsburg cross examined for clarification of the two
separate contracts. Mr. McKusker said one was for the air conditioner unit and one for the air
quality. Mr. Ginsburg verified with Mr. McKusker that no permit had been pulled for work on either
contract however permitting fees were charged. Mr. McKusker stated when the contract was entered
into and signed, a permitting and processing fee was charged as they thought there would be
permitting needed. The conversation between Ms. Fornabaio and Linda took place the day after
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contract signing. Mr. Ginsburg asked if the Hueseman's paid the permitting fee and Mr. McKusker
could not verify without reviewing his records. Mr. McCormick objected to questioning as not
having relevance to the issue of a required registration nor whether the building permit was or was
not pulled. Magistrate overruled the objection as this is the way the city will or will not establish
whether work was done within the confines of the jurisdiction of the city. Mr. Ginsburg stated the
document is relevant as it carries their letterhead and it notes permitting and a fee for same.
Mr. Ginsburg withdrew the citation with respect to the registration based upon testimony of Ms.
Fornabaio and Mr. McKusker. Mr. Ginsburg is concerned that the installation of the air conditioning
system and the electrical work done on site required a permit.
Mr. McCormick closed stating the appellant always obtains a building permit when necessary
however was directed by a representative of the Building Department that none was needed for this
type of work. He stated the citation should be dismissed with prejudice.
Mr. Ginsburg closed by quoting the conversation between Ms. Fornabaio and Linda of the Building
Department where Linda said there was no need for a permit when it is a plug -in replacing a window
unit. Mr. Ginsburg stated the unit installed was more than just a plug -in unit causing a
reconfiguration of wiring and duct work.
Mr. McCormick added a quote, "No good deed goes unpunished," referring to the additional work
done by the installers.
Magistrate Hancock said he would like to take matters under advisement, consider and review the
evidence and the Florida Statutes. Magistrate Hancock said he would adjourn the hearing and issue
a written decision within ten days.
The hearings were adjourned at 3:10 p.m.
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