Tuesday, December 12, 2017
News Roundup

Pinellas County Construction Licensing Board plays fast and loose with disciplinary process

The Pinellas County Construction Licensing Board doesn't report to anyone, not to the local county commission like every other similar board in the state, and not even to the Florida Legislature which created it.

The lack of oversight contributes to a fast and loose approach to how it handles complaints against contractors, a Tampa Bay Times investigation has found.

Take a hearing to rule on a homeowner's dispute with contractor Tom Tafelski, also the vice chair of the licensing board. His fellow board members joked about judging one of their own.

"I'll recuse myself…," Tafelski said last year. "I won't vote."

The room erupted with laughter.

"This is great," Tafelski said. "I love it."

It took just three minutes for them to dismiss the complaint.

The board's mission is to protect taxpayers from shoddy contractors, but homeowners feel cheated, ignored and even stonewalled, the Times found. Contractors feel the same way and some believe the board targets anyone who speaks out.

The board's lack of accountability came up repeatedly during the 60 interviews conducted for the investigation, which also included a review of more than 5,000 pages of public records and 17 hours of the licensing board's audio recordings.

Among the findings:

• At least seven times, homeowners hired Tafelski, a licensed inspector, to assess their allegations against contractors. He then sat on the panel that ruled on those same cases. The contractors weren't aware of Tafelski's prior involvement. Tafelski even voted on cases after acknowledging that he had worked for the homeowner.

• In at least three cases, Tafelski declared a conflict and abstained from voting. The county, however, has no record that Tafelski filed the mandatory disclosures when officials abstain from a vote.

• Contractors and consumers often wonder what rules govern the disciplinary hearings. Many complained that they were not told when the hearings happened, so they couldn't participate, and only learned the outcome when a notice arrived in the mail. Executive Director Rodney Fischer said repeatedly during meetings that the panel required three votes to rule on a case but then he allowed cases to proceed with just two.

• Fischer and members of the panel mocked the public, targeted critics, and turned the recorder off when it suited them. In one case, Fischer said he wanted to "shut ... up" a homeowner.

• Until recently, the board kept no written minutes of the disciplinary hearings, which experts said violates Florida's public records law. The failure leaves consumers and contractors in the dark about how their cases were decided. Board officials also gave conflicting accounts of what public records were available.

"None of this surprises me," said St. Petersburg contractor Bruce Simmons. "I've been raising hell for five years about the way this board operates. They pit the contractors against the public. No one has ever listened."

Tafelski declined to comment and told the Times to stop calling him. Fischer has spoken to the Times in the past, but he did not respond to multiple requests to discuss the findings of this investigation.

Richard A. Harrison, an adjunct professor at Stetson University's College of Law and an expert on government law, said the inability of a board to follow basic ethical and procedural rules could jeopardize many of the panel's decisions.

If one contractor successfully contested a ruling based on the board not following basic protocols, many others could follow. The possible result: years of fines and suspensions wiped away, Harrison said.

"They clearly have no understanding of the conflict of interest issues," Harrison said, "or the requirement of voting or abstaining under the ethics code that governs all public officials."

• • •

The Florida Legislature established Pinellas' unusual licensing board in 1973 to create uniformity in the county's construction and fire codes. It has an annual budget of $1.8 million collected from fees and fines, and a paid staff of 10 — an executive director, five office workers and four investigators.

The board of directors consists of 21 men — 14 are private contractors who volunteer. The other seven are building and fire officials across Pinellas County.

The full board meets every two months. A county attorney advises the board, and a stenographer takes minutes.

The smaller panel, which the board calls a probable cause committee, usually includes three or four members and meets every six weeks or so. The panel determines whether there is reason to believe contractors committed infractions. Fischer, 72, the executive director since 2001, runs the hearings. The county does not send an attorney, and there is no stenographer.

Tafelski, a 66-year-old licensed builder, roofer, aluminum contractor and home inspector, has been with the licensing board for more than 20 years. Since 2013, the Times found seven cases where a consumer hired Tafelski to inspect their property because of a problem. He then sat on the panel that judged whether the contractor had done something wrong.

Tarpon Springs homeowner Allan Gore, for instance, was in a dispute with his roofer in 2015 when he paid Tafelski $500 for an inspection. Tafelski's report blamed the roofer for poor workmanship.

The panel reviewed Gore's complaint at an August 2015 meeting.

"I have been involved in this case," Tafelski said, according to a recording. "So, I would recuse myself from voting."

"We're supposed to have three (votes)," said Fischer, laughing. "You can't recuse yourself."

Tafelski then voted with two other board members to clear the roofer whose work he had criticized. He reasoned that while the work was poor, it did not violate licensing laws.

Gore did not know that Tafelski voted until the Times contacted him.

"That doesn't surprise me," he said.

Tampa contractor Robert Ossi wasn't happy either with how the panel handled his permitting dispute.

Tafelski disclosed during the October 2016 hearing that he had worked on the case.

"Let me announce that I was brought in on this case by an attorney," to act as a consultant, Tafelski said. He then made a motion to rule against Ossi.

Fischer spoke up: Could Tafelski make the motion if he worked on the case?

"Oh. You tell me. Again, I don't have a conflict of interest. ... I am not involved in doing the work," Tafelski replied. "I am just simply aware of the job."

"We need a unanimous decision," Fischer told Tafelski. "We need your vote if we're going to move forward."

Tafelski and the other two members then voted that there were grounds to sanction Ossi.

Ossi said he was never notified about the hearing, and the board knew he was represented by an attorney.

"We would have been there if we knew about it," Ossi said. "This is not right. I didn't commit a violation."

Paul Skipper, the chairman of licensing board, said his fellow board members should not vote in disciplinary hearings if they also worked for the consumer or contractor.

"It would be a conflict," Skipper said, who is also a home builder.

Skipper, who is not a member of the probable cause panel, said he didn't know that Tafelski was voting on cases that he also worked on as an inspector. Neither did other board members the Times contacted.

"If there was some kind of conflict, you'd want to remove yourself from that voting," said Danny Sandlin, a Safety Harbor building official and licensing board member who does not sit on the smaller panel. "That only makes sense."

Harrison, the government law expert from Stetson, said only the board member can declare whether he has a conflict. Other board members cannot do that for him.

Prior involvement in a case is not necessarily grounds to abstain from voting, he added.

"It seems odd but is probably not a conflict under the ethics code ...," he said. "So while this looks bad and may raise other issues ... I don't think that alone is an ethics code violation."

• • •

Tafelski may be on shaky ground when it comes to filing the disclosures the state requires when an official has a conflict.

The Florida Commission on Ethics requires officials to file a disclosure form within 15 days of declaring a conflict.

The form clearly states that it must be included in the written minutes of the meeting, given "immediately" to other board members and "read publicly at the next meeting."

Tafelski announced potential conflicts during proceedings and abstained from voting in at least three cases. For instance, he didn't vote on a roofing dispute in October 2013 and on a contractor's appeal in September 2014.

Two other times, Tafelski inspected a property involved in a dispute that the panel later ruled on. But there was no written record or audio recording to show if Tafelski voted on the case or how he voted.

A search of county records from 2010 to 2016, however, did not find any disclosure forms from Tafelski.

In fact, the county could locate only one disclosure form filed by any of the 33 men and one woman who have served on the licensing agency's full board over the last seven years. Skipper, who was once the chairman of Cornerstone Community Bank, filed it in November 2015, after he abstained from voting on a complaint with ties to the bank.

Failing to file the disclosure could violate Florida's ethics laws, said University of Miami professor Anthony Alfieri, the founder and director of the School of Law's Center for Ethics and Public Service.

"The failure to do so should trigger a compliance investigation," he said, by the Pinellas-Pasco State Attorney's Office, the state Office of the Inspector General and even the Florida Attorney General's Office.

Pinellas County Attorney Jim Bennett declined to share the legal advice his office has given to the licensing board about conflicts of interest, citing attorney-client privilege. He also would not explain why he sends an attorney to the full board meetings but not to the disciplinary hearings.

"Maybe we should start," Bennett said.

• • •

The panel has trouble following some of its own rules, too, the Times found.

Fischer said repeatedly on the recordings that the panel needs a quorum of three votes to rule on a case and the three votes need to be unanimous. But they have judged cases with just two votes.

One example: Susie Prior paid Tafelski $1,545 in 2014 to perform an inspection of her St. Petersburg home. He found grounds for Prior to file complaints against several contractors.

"So, this involves leaks," Tafelski can be heard saying at a August 2016 hearing. "Let me first disclose that I was hired as a consultant on the job, so I will recuse myself from voting."

Another member of the panel asked if they could decide with just two votes.

"We'll vote with two," Fischer said.

The two members decided to clear the contractor.

Can they do that with just two votes? Fischer would not say.

The board did not until recently keep written minutes of its disciplinary hearings, so there is no comprehensive record of how each member voted or any tally of votes.

Harrison, the Stetson government law expert, said a quorum of three is too small when combined with a requirement that every vote be unanimous. But if the quorum is three, and one voter has to recuse themselves, then they shouldn't be voting at all.

"They can't take any action," he said. "They have created a systemic failure. It's a ridiculous way to structure a board."

Harrison also noted that failing to keep written minutes creates opportunities for contractors to challenge their cases.

"If a meeting takes place in violation of the Sunshine Law, any action taken after such a meeting is legally void," he said. "If a probably cause determination is legally void, so is anything that happens after that in the same case."

• • •

The Pinellas licensing board is subject to public record laws, but taxpayers have struggled to obtain records from the board. Officials have given conflicting accounts to taxpayers and the Times about what records it keeps.

St. Petersburg homeowner Linda Zamparelli recalled her battle to get the records of her 2014 complaint, which the full board had rejected.

In July 2014, she filed a public records request for "all documents" related to her case. Administrative manager Anne Maddox wrote back that the board had no records of the probable cause hearing where Zamparelli's complaint was heard.

"If they are nonexistent, I would like to know how the probable cause process goes forth without some sort of notes or something," Zamparelli wrote in July 2014.

Zamparelli kept at it. "We have a sunshine law and an open government," she emailed back on Oct. 24, "at least we are supposed to. "

Maddox eventually sent a list of the first initial and last name of the board members at the probable cause hearing, but did not identify which ones voted.

But, as it turned out, there was a recording from the hearing. The Times had found the 12-minute audio file as part of its investigation. Zamparelli only learned about it in November when the Times called her to talk about her case.

"They were not honest with me," Zamparelli said. "At every turn, they seemed to not want to give me records."

First Amendment Foundation President Barbara Petersen, an expert on Florida's public records law, said failing to take and keep minutes of probable cause hearings violates the law. The law requires written minutes, not recordings, she added.

"And as a contractor, I would be alarmed at the lack of the required record," she said. "How is a contractor to have any sense of what the board has done and might do?"

Pinellas County Commissioner Janet Long said residents frequently complain about their dealings with the board. Commissioner Karen Seel said she suggested to Fischer in 2015 that he put his agency's records online so consumers can check on complaints before hiring contractors.

Fischer rebuffed her, she said, and told her the agency doesn't keep electronic records.

"They didn't have the records on computer. They had them in files," Seel recalled Fischer telling her.

But the agency does keep electronic records — it just takes a while to get officials to admit that, and then hand them over.

In August, the Times made a public records request for a database of complaints against contractors. Fischer and Maddox both said the agency doesn't have electronic records. They said the complaints were in ledgers.

"Just what is all of this about?" Fischer asked. "Who sent you here? If you want records, we will give you the records. I will charge you an exorbitant amount of money."

On Oct. 31, Maddox sent an email saying it would cost $75,051 to review the paper files of 11,432 complaints.

But on Nov. 10, after the Times had proof that the agency had electronic records, Maddox said she could provide a database of 22,650 complaints.

The Times paid $218 to obtain it.

• • •

The Times also requested all the audio recordings from the panel between 2013 and 2016. Board officials said they only had recordings from some months.

The 17 hours they handed over highlight the anything-goes-nature of the meetings. Fischer stops the recorder when he pleases. He and others attack contractors, who aren't there to defend themselves. They make fun of homeowners, too.

During a January 2015 hearing, Fischer explained how he hates being recorded.

"They get me on enough stuff around here," Fischer said. "I don't need this recorder."

At the same meeting, members joked about a woman who had spent 5½ hours over two days waiting to address her complaint. She had returned that day, and was waiting in the board's lobby.

Why, they asked, did they have to hear from her at all?

"Because this little old lady has sat out there for the last hour and a half in a wheelchair," Fischer said.

Laughter erupted.

"Make it short and sweet," Tafelski said.

Soon after, the recorder was turned off.

The recordings also show how the panel singled out critics, both homeowners and contractors, for extra attention.

St. Pete Beach condo owner and retired corrections officer Al Vellucci, 76, was frustrated with the way the board handled his 2015 complaint. He wrote letters to elected officials.

At an April 2016 hearing, Fischer said he feared Vellucci would call the board's chairman again. He then asked a staffer to poke around to see if Vellucci, who is not a contractor, had violated any construction laws in St. Pete Beach so that the city could fine him.

Fischer told the staffer to call a St. Pete Beach building official who once sat on the panel.

"Just to ... shut Vellucci up," Fischer said. "A simple phone call."

St. Pete Beach has no record of Vellucci ever violating construction laws.

In another case, the panel wanted to postpone a decision involving a general contractor because they said they did not have enough information. Fischer interjected, suggesting on tape that they go ahead and proceed against the contractor, who was a longtime critic of the board.

"So moved," Tafelski said.

The panel then voted against the contractor. But they weren't done talking about him.

"Can we do this off the record?" investigator Betty Wiseman said. "Let's do this off the record."

"You want to shut that off?" Fischer said.

The recording then stopped.

Since the Times investigation began, the panel stopped audio recording the meetings.

• • •

Every contractor the Times spoke to complained that lack of oversight gave the board too much power. They wished the board reported directly to a county department like similar licensing boards in Florida.

"They're nothing but a bunch of good-old boys who look out for each other," said St. Petersburg contractor Darren Clark. "They pick and choose who they want to fine... They choose who they want to target."

Palm Harbor roofer Jason Loiacano said all contractors want is a consistent and fair playing field. He talked about a 2013 complaint where records show he was officially cleared. But he was still fined $300.

The records don't show why Loiacano was fined and he didn't know either. But he paid it anyway.

Why? The roofer said he didn't want to "anger Fischer," possibly jeopardizing his roofing license. He chalked it up "as a cost of doing business in Pinellas County."

"It's a lot easier to pay the fine than try to argue about it to go away," Loiacano said. "I want to be on Rodney's good side. I don't want to get on his bad side."

Petersen, the public records expert, said a licensing board with "no oversight is not a good idea."

"The Legislature needs to fix this," she said.

Peter Lipman, who served as the licensing board's first executive director from 1973 until 1981, said he thinks it should be disbanded.

"It's the fox guarding the hen house," said Lipman, a retired lawyer who now lives in Las Vegas. "It's gotten completely out of hand."

Times senior news researcher Caryn Baird contributed to this report. Contact Mark Puente at [email protected] or (727) 892-2996. Follow @MarkPuente

     
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