Pinellas licensing board executive director settled hundreds of cases without getting his board's approval
Mark Puente, Tampa Bay Times Staff Writer
Friday, May 26, 2017 8:14pm
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Eleanor Morrison complained to the Pinellas licensing board in 2015 that her contractor installed crooked walls and windows and poured too much concrete for her carport.
A panel of experts reviewed the evidence and ruled in her favor. The contractor faced a fine and possible license suspension.
That's when Rodney Fischer stepped in.
The longtime executive director of the Pinellas County Construction Licensing Board met with the contractor one-on-one, after which he dismissed the complaint.
No fine. No suspension. No public record outlining why he made the decision after the experts had reviewed the same case.
"It bothers me," said Morrison, of Treasure Island. "I feel like I didn't have my day in court."
Fischer held similar private meetings a lot during his 16-year tenure, the Tampa Bay Times found. After the meetings, he often waived or lowered fines and sometimes dismissed complaints entirely.
The 15 board members the Times reached for comment said Fischer made many of the decisions without their approval. And the Times found that the agency's records included hundreds of cases that were settled or dismissed that never came before the board.
Gay Lancaster, who took over as the agency's interim leader after Fischer stepped down in January, said the Times' findings troubled her enough that she alerted the county's inspector general and Pinellas-Pasco State Attorney Bernie McCabe.
"Never would I be one-on-one in a meeting with someone where a fine was levied or changed," she said.
For its investigation, the Times interviewed more than 30 people, reviewed hundreds of the licensing board's case files and thousands of pages of other public records, and analyzed a database of 22,000 complaints and citations.
Among the other findings:
• Fischer stressed in writing that contractors could face higher fines and license suspensions if they ignored his request to meet with him.
• Homeowners didn't know that Fischer was meeting with contractors to settle their cases. They wondered why they weren't invited to tell their side of the story.
• The agency could not fully account for all the fines it issued over the past 16 years. The electronic tracking system, for instance, included hundreds of cases with no indication of whether the agency collected the fines. In hundreds of others, there was no final resolution listed at all.
• Since 2014, county officials have twice asked to look at the agency's records, including its finances. Both times, officials said that Fischer stood in the way, arguing that the agency was independent from the county and not required to comply with the requests.
Bill Loughery, a former chief assistant prosecutor for Pinellas and Pasco counties, said local government agencies should be so transparent that the public can quickly understand how they track information and money.
"It's highly suspicious when there is not a check and balance," Loughery said, speaking generally, not specifically about the licensing board. "The public has to understand how the processes work."
In a statement to the Times, Fischer's attorney, Marion Hale, disputed that her client had somehow left the board members in the dark. She said they were "well aware" that Fischer was meeting with contractors. They even received copies of the letters Fischer sent to contractors requesting they meet with him, she said.
Hale also wrote that the board's former chairman, Paul Skipper, "assured Mr. Fischer he had full authority to handle these cases," and that he didn't need board approval for cases he settled, a claim Skipper disputes.
"The board could have heard all of these matters had it wanted to but it did not," Hale wrote.
• • •
Fischer joined the licensing board in 1973, the year the Florida Legislature established it to help regulate building codes and protect homeowners. He became executive director in 2001.
The Pinellas board doesn't report to anyone, not the county or even the Legislature. That makes it unlike any other similar board in the state. That also gave Fischer considerable power.
In 2014, for instance, a board investigator cited a contracting company for failing to obtain 26 permits to install air conditioners.
The board's panel of experts reviewed the evidence and ruled against the company. At $300 for each infraction, the company faced a $7,800 fine.
The panel then discussed whether Fischer should hammer the contractor or go easy, according to a recording of the meeting. Fischer interrupted, reminding them that while they decide if a contractor committed an infraction, he determines the punishment.
"We can pretty much charge whatever we want with those numbers," Fischer said.
As he did in hundreds of cases, Fischer then sent the company a letter.
"You are required to schedule an appointment with me to discuss the substance of the complaint and the possible resolution in lieu of a hearing," many of the letters said.
Another letter Fischer often sent stated the message in bold words, calling it "imperative" to schedule the meeting.
Both letters said that failing to meet with Fischer could lead to stiffer penalties and a license suspension.
Two months later, Fischer met an official with the air conditioning company and reached a $3,900 settlement, records show.
In Eleanor Morrison's case, Fischer met with contractor Jason Donton for less than 15 minutes before dismissing the complaint. Donton told the Times that he convinced Fischer that he completed the work required by the contract.
Morrison wasn't invited to the meeting. In fact, she had no idea Fischer had dismissed the case until months later when a Times reporter called her.
She questioned why Fischer was allowed to go behind closed doors to confer with a contractor whose work the board's own panel of experts had found faulty. She also wondered how Fischer reviewed the same evidence and came to a different conclusion.
"I didn't know whether to laugh, cry or scream," Morrison said.
In 2016, contractor Dennis McGinnis received one of Fischer's letters after the panel of experts had ruled against him. While McGinnis sat in the board's lobby with a stack of paperwork waiting his one-on-one meeting, Fischer opened a glass door to deliver a message.
I decided to throw this case out. You can go home, McGinnis remembered Fischer saying.
Surprised, McGinnis told Fischer that he was prepared to use his stack of records to refute the allegations.
You want me to reopen the case? McGinnis recalled Fischer asking. McGinnis, who said he didn't know why Fischer dismissed the case, walked out the door.
Homeowner Louise Phillips, who filed the complaint against McGinnis, questioned whether the agency is fulfilling its watchdog role for consumers.
"I don't know how he made that decision," Phillips said about Fischer. "I would like to have somebody else really look at my case."
• • •
The 15 board members the Times reached said they did not know Fischer settled cases in private meetings without board approval. Several said they were too busy with their full-time jobs to know the details of the agency's entire operation.
"I was not aware of negotiations between Mr. Fisher and the contractors," interim board chair Rick Dunn wrote in a statement.
Hale, Fischer's attorney, said her client "conducted these matters as his predecessors had done prior to his appointment."
The previous executive director, William Owens, died in 2001. But Peter Lipman, the board's first executive director, from 1973 until 1981, said he did not meet with contractors privately to settle or dismiss any disciplinary cases.
"We didn't operate that way," said Lipman, a retired lawyer who now lives in Las Vegas. "There was no such thing."
Building officials in Hernando, Hillsborough and Pasco counties told the Times that they were not allowed to dismiss complaints or negotiate fines in private meetings.
"Everything we do is in public," said Jim Blinck, executive manager of Hillsborough's development services. "There are no decisions made behind closed doors."
Hale also said that the meetings "were not private." She said investigators and the board's administrative manager, Anne Maddox, "often attended."
But Ken Burnett, a former deputy police chief in Illinois who worked as a board investigator from 2013 to 2015, said investigators were rarely in the meetings, which he described as "an almost daily occurrence."
"Fischer met with most of them alone," he said. "We didn't know what the fines were or what he did in his office."
• • •
When the board's 21 members meet every eight weeks, they usually spend some time approving fines and other discipline against contractors. The cases are listed on the written agenda and the board's decisions are recorded in the meeting's official record, also known as the minutes.
But the Times analysis found that many cases were not listed in either one of those documents, and there was no indication in the agency's tracking system that the board members were ever asked to approve them.
The tracking system, for instance, showed that licensed contractors paid fines in 442 cases filed in 2015. Yet the board approved only 145 of those fines, according to the meeting records.
Consider another example.
In some cases, contractors don't challenge complaints and agree in advance of the board meetings to pay the fines.
In 2010, the board approved 135 of those unchallenged cases, according to records. Last year, the board approved only eight.
Why the huge drop?
Maddox, the administrative manager, said Fischer stopped taking most of the unchallenged cases to the full board for approval to speed up the process, which helped save money.
"We were trying to avoid doing some paperwork," Maddox said.
Hale said that Skipper, the former chairman, gave Fischer the authority to settle cases in which the contractor did not request a formal hearing before the full board. In those cases, she said, Fischer did not need to get the board's approval. The meeting agendas did not list the settlements, but Fischer informed the board, she said.
"Mr. Fischer had authority to settle matters," she wrote.
Skipper said he did not grant Fischer that authority. He added that he didn't know Fischer dismissed complaints or fined contractors without the board's approval.
"He shouldn't have done that," Skipper said.
Division of Administrative Hearings Chief Deputy Judge Lisa Nelson said a judge or other presiding official can hold voluntary meetings to discuss evidence and procedures. But any recommendation that stems from such a meeting, including fines or dismissals, must then be approved by a governing authority, like a board of directors, said Nelson, who agreed to speak to the Times about the administrative process but not specifically about what was happening at the Pinellas licensing board.
Richard A. Harrison, an adjunct professor at Stetson University's College of Law and an expert on government law, said contractors could file legal challenges in court to have the sanctions voided if Fischer acted on his own.
"It would be extraordinary, if not unheard of, for the board of an agency to give the executive director blanket authority to negotiate and make final decisions without any oversight, reporting or approval," Harrison said.
• • •
As for the agency's record keeping, Lancaster acknowledged that even she has had problems understanding the system since she took over as interim director a few months ago.
Lancaster called the electronic tracking system "badly antiquated." Pinellas County Commissioner Karen Seel wants the county to spend $744,000 for a new tracking system, records show.
"We're struggling to show the process all the way across," Lancaster said.
The tracking system, with 22,000 cases filed since 2001, included at least 1,100 that lacked any indication of a final outcome, such as whether the case was closed, dismissed or whether a fine was paid.
The tracking system also referenced payment plans, but the agency could not say how many contractors were on a payment plan, or how much money those contractors still owed. Investigators track the payment plans on their computers and periodically update the system, Maddox said.
"You have to check each individual case," she said. "You can't pull a report. Much of the system doesn't work."
And the information in the tracking system didn't always match the written records from the board meetings.
In July 2016, for instance, the minutes show that the board approved 28 fines of $500 each for expired permits. The tracking system, however, showed the agency resolved six of those cases for $300 and another 17 for $426.
In those cases, the records didn't match because the agency allowed contractors to pay the lesser amount right up to the start of the board meeting. So while the board was approving a $500 fine, the contractor had paid $300 a few minutes earlier.
Lancaster told the board last week that county Inspector General Hector Collazo called that practice "insanity" because it created conflicting records.
• • •
Twice in the past three years, Fischer has cited the agency's autonomous status to keep county officials from examining its records.
In 2014, auditors from the Pinellas County inspector general wanted to review the tracking system during an investigation into possible misconduct by an investigator.
Fischer contended the system held confidential bank records and Social Security numbers, records show.
The refusal outraged Myriam Irizarry, chief deputy and general counsel to Clerk of the Circuit Court and Comptroller Ken Burke.
In response, she wrote a three-page memo outlining how the licensing board chairman gave auditors permission to obtain the records, but Fischer "still rebuffed" the request. She demanded "immediate and unrestricted access" to all records.
"The crucial records have been deliberately thwarted, which is obstructing this formal investigation," wrote Irizarry, who is now a Pinellas County judge.
Hale said Fischer did not "thwart" any investigation, writing: Fischer was told the inspector general "did not have authority to review the records as the board is not a division of the county government."
In 2015, Burke told the governing board that his office could perform several audits for the agency instead of it paying an outside firm. Fischer reminded his board members that the agency was not a county department and could reject the request, which they did.
"He put obstacles in our way," Burke said. "It put us in a very awkward position."
Times news researcher Carolyn Edds and data reporter Eli Zhang contributed to this report. Contact Mark Puente at mpuente@tampabay.com or (727) 892-2996. Follow @MarkPuente.
The investigation so far
A series of Tampa Bay Times reports has raised questions about how the lack of oversight at the Pinellas County Construction Licensing Board contributed to a fast and loose approach when it handled complaints against contractors. Previous coverage of the licensing board.
Executive director Rodney Fischer stepped down Jan. 31 after a Times report about how he treated residents and disciplined contractors.
The agency is now under investigation by a grand jury. The Pinellas County Office of the Inspector General is also examining its finances and operations. The Times reported earlier this month that the agency is running out of money as fines and citations have decreased.
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