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HomeMy WebLinkAbout10162012SM Minutes�����r�, �o�i+�� �,��aar��,�� � .� � SEBASTIAN POLICE DEPARTMENT 1201 Main Street, Sebastian, Florida 32958 Code Enforcement Division CITY OF SEBASTIAN, FLORIDA MINUTES SPECIAL MAGISTRATE CODE ENFORCEMENT HEARING October 16, 2012 L 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, Code Enforcement Clerk Susan Lorusso. 3. Mr. Hancock swore in staff and all persons that would be speaking. 4. Initial Hearing of Code Violation: Magistrate Hancock read the violation case to be heard and called on Mr. Ginsburg. Case No. B12-1008 William R. Lowe 994 Schumann Drive DBA Sonic Pool Leak Detection Sec. 26-171 (a) acting in the capacity of a contractor without being issued a certificate of competency from a local construction board or certification from the State of Florida Sec 26-171 (c) advertising in a local newspaper that he is qualified to act in the business of a contractor. Mr. Ginsburg read the case and called Mr. Wayne Eseltine, who stated his name and position as Building Official with the City of Sebastian for eight and a half years. Mr. Ginsburg asked Mr. Eseltine to describe the circumstances of the case. Mr. Eseltine stated that on September 12, 2012 a formal complaint was filed with the Building Department by Mr. Charles Zavesky, owner of 738 Benedictine Terrace. In that complaint Mr. Zavesky stated that Mr. William Lowe, doing business as Sonic Pool Leak Detection, attempted to find and repair a leak in his pool on two separate occasions in July, 2012. Mr. Zavesky stated in his compliant that his pool was still leaking and he had to call another company to have the leak found and properly repaired. Mr. Zavesky also stated in the complaint that he was unable to obtain a refund from Sonic Pool Leak Detection. Mr. Eseltine continued that on September 13, 2012 Mr. Lowe was sent a citation for acting in the capacity of a contractor without being duly licensed to repair pools. He was also cited for advertising his business in the newspaper. A fine of $250.00 payable within ten days was imposed for the unlicensed contractor activity in accordance with Resolution R-09-30. Mr. Eseltine stated that Mr. Lowe came to the building department on September 28, 2012 and elected to seek an administrative hearing to contest the citation. FL State Statutes 489.105 define a licensure is required to construct, service or repair a pool in the State of Florida. Mr. Eseltine concluded that the building department is seeking the original fine of $250.00 plus administrative fees of $163.18 to be paid within ten working days. Mr. Eseltine presented Magistrate Hancock a packet which included a copy of the receipt showing Sonic Pool Leak Detection repaired a pipe, a copy of their ad, a copy of the complaint, and a copy of the state statutes that were referenced. Magistrate asked Mr. Lowe if he would review these documents prior to them being admitted into evidence. Mr. Lowe had no objection. Mr. Ginsburg asked if a fine was imposed on Mr. Lowe with regard to the ad in the newspaper and Mr. Eseltine responded he did not as there is no prohibition against advertising to be a leak detector as long as the ad does not include repairs. Mr. Ginsburg then called Mr. Charles Zavesky to approach the podium and confirmed that he was sworn in; Mr. Zavesky replied he was. In answering Mr. Ginsburg's questions Mr. Zaveslcy stated his address is 738 Benedictine Terrace in Sebastian, he did pay Mr. Lowe $135.00; that Mr. Lowe attempted to repair his pool twice; that he called and paid Ken's Spa who ultimately fixed the leak; the location of the leak fixed by Ken's Spa was different than the one Mr. Lowe attempted to iix. Mr. Zavesky stated he requested a refund on four difference occasions of Mr. Lowe, who said he would take care of it but never did. The rested its case. Mr. Lowe approached and said everything is true; that he is paid to find leaks but does not and cannot do repairs. Mr. Lowe presented his original receipt for which Mr. Zavesky paid $135.00 for leak detection. Mr. Lowe stated he returned a second time with a diver to double check the location of the leak. Mr. Ginsburg confirmed with Mr. Lowe that it is his testimony that he attempted to locate the source of the leak and he did not attempt to repair the leak. Mr. Lowe replied yes and added it would not have cost $135.00 to repair a leak. Mr. Ginsburg then asked Mr. Lowe if he put any putty around any pipe and Mr. Lowe said he sees a lot of these and if he puts a little putty on a pipe he does not do any plumbing or repair work. Mr. Lowe added that they are sent out by Perfect Image Pools to find leaks, and it is Perfect Image Pools that would do any repair worlc if needed. When aslced by Mr. Ginsburg if he used putty to fix a pipe Mr. Lowe said he could not remember. Mr. Ginsburg stated that the city's position is that Mr. Lowe in this case went beyond just pool detection services and attempted to make a repair on Mr. Zavesky's pool. The city believes that once you cross that line the state statutes apply. There was discussion about the statute as it relates to servicing. There also was discussion regarding the Mr. Zavesky's receipt for service by Sonic Pool Leak Detection with regard to writing added to Mr. Zavesky's receipt but not on Mr. Lowe's copy. Mr. Ginsburg stated that this case shows an attempted repair which is why Mr. Zavesky called Mr. Lowe back when his pool continued to loose water. Mr. Ginsburg added it is that attempted repair where Mr. Lowe stepped over the line of just detecting where the leak occurred to repairing the leak. Magistrate Hancock read from the receipt submitted as evidence, "paid check found a small leaks repaired pipe possible leakage" and an astrick mark to the left. Magistrate Hancock asked Mr. Zavesky if it was his writing, he state no; Magistrate Hancock then asked Mr. Lowe if it was his writing and he stated no. 2 Mr. Ginsburg summarized that the city believes Mr. Lowe went beyond locating a leak and attempted to perform a repair. Mr. Ginsburg concluded that the city would waive the administrative costs of $163.18 if Mr. Lowe would refund the $135.00 that Mr. Zavesly paid him. If Mr. Lowe agrees to that, then he would only be responsible for the $250.00 fine to the city and a refund to Mr. Zavesky. Magistrate Hancock asked Mr. Lowe for his comments. Mr. Lowe stated he found the leak, told Mr. Zavesky what to do, and was paid for his service. He also stated that he did not charge for the second time of going to Mr. Zaveslcy's property. Mr. Lowe stated he did not do anything wrong as he did not repair any leak. Magistrate Hancock stated that based upon the evidence submitted and the testimony of both Mr. Zavesky and Mr. Lowe, he believes Mr. Zavesky's testimony is more persuasive and he is also concerned about the language found on the receipt, which in part says repaired pipe and Mr. Zavesky testified it is not his handwriting; Mr. Lowe testified it's not his handwriting. As the writing is substantially similar to the writing on the rest of the receipt, based on the evidence presented his decision is going to be a finding in support of the city's position that the defendant did at least attempt a repair and will enter an order for a fine of $250.00 plus administrative costs of $163.18. 5. The hearing was adjourned at 2.45 pm.