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CEB Minutes 08/24/2000 RAugust 24, 2000 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD OF COLLIER COUNTY Naples, Florida, August 24, 2000 LET IT BE REMEMBERED, that the Code Enforcement Board, in and for the County of Collier, having conducted business herein, met on this date at 9:00 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Clifford Flegal Roberta Dusek Don W. Kincaid Darrin M. Phillips Peter Lehmann George Ponte Rhona Saunders Diane Taylor NOT PRESENT: Kathryn M. Godfrey-Lint ALSO PRESENT: Jean Rawson, Attorney, Code Enforcement Board Michelle Arnold, Code Enforcement Director Maria Cruz, Enforcement Official Page I Cas.~ No. 2000-02b Case ~o. C,.}~_ No. 2000-ozu August 24, 2000 CHAIRMAN FLEGAL: All right, sorry for the delay. We'll call the Code Enforcement Board to order, please. May we have the roll call? Caught Maria in mid-step. MS. CRUZ: Good morning. For the record, Maria Cruz, code enforcement investigator. Let the record show that Ms. Kathryn Godfrey informed our office that she was going to be absent today. Roberta Dusek? MS. DUSEK: Here. MS. CRUZ: Clifford Flegal? MR. FLEGAL: Here. MS. CRUZ: Don Kincaid? MR. KINCAID.- Here. MS. CRUZ: Peter Lehmann? MR. LEHMANN: Here. MS. CRUZ: Darrin Phillips? MR. PHILLIPS: Here. MS. CRUZ: George Ponte? MR. PONTE: Here. MS. CRUZ: Rhona Saunders? MS. SAUNDERS: Here. MS. CRUZ: Diane Taylor? MS. TAYLOR: Present. MS. CRUZ: Thank you. CHAIRMAN FLEGAL: We have a full board. Our alternate will participate, except in voting. Approval of our agenda. Do we have any changes, additions, deletions? MS. ARNOLD: Yes, we do. For the record, Michelle Arnold, code enforcement director. We have a deletion under public hearings, Item E, Board of County Commissioners versus Edda Theiss and Eisa Cantoni is in compliance, so we're removing that. Also, under old business, if we can move Board of County Commissioners versus Epifanio Hernandez and Manuel Hernandez up, if our hearings are running later. The attorney representing that respondent has a 10:00 hearing. And that's a quick item. It's requesting a payment schedule. And then the other items under old business, Board of County Commissioners versus Anthony Varano, both items are Page 2 August 24, 2000 being deleted and moved to our next hearing schedule. CHAIRMAN FLEGAI.: Any other changes or additions? I'd like to add, under comments, if we get the time, I'm going to ask Ms. Rawson to explain our latest piece of paper from Southern Exposure, so we know what's happening. Any other changes? MS. ARNOLD: No. CHAIRMAN FLEGAL: I'd entertain a motion to accept the agenda as changed. MS. SAUNDERS: I move that we so accept the agenda as changed. MR. PONTE: Second. MR. LEHMANN: I'll second. CHAIRMAN FLEGAL: We have a motion and a second to accept the agenda as changed. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. Approval of our minutes from the July meeting. Are there any changes, corrections? Hearing none, I'd entertain a motion to accept the minutes as submitted. MR. LEHMANN: So moved. CHAIRMAN FLEGAL: Do I hear a second? MR. KINCAID: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the minutes as submitted. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. We will now open our public hearing portion of the meeting. First case, 2000-026, Board of County Commissioners versus Brian K. Greenling. MS. CRUZ: Case No. 2000-026, Board of County Commissioners versus Brian K. Greenling. Let the record show the respondent is not present. The notices were sent out as required by certified mail, posted at the property and at the courthouse. Page 3 August 24, 2000 I'd like to request that the composite exhibit provided to the board and as well as to the respondent be admitted at this time into evidence, please. CHAIRMAN FLEGAL.' Do I hear any objections from any of the board members? I'd entertain a motion to accept the exhibit. MR. PONTE: So moved. MS. TAYLOR: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the exhibit as submitted. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. MS. CRUZ: The alleged violation is the construction of a guest house without first obtaining the necessary Collier County building permits. This is a violation of Ordinance 91-102, Section 2.1.15.1, Section 1.5.6, and Section 2.7.6, Paragraph I and 5. The address where the violation exists is 1383 14th Avenue Northwest, Naples, Florida, and is more particularly described as Gordon River Homes, all of Lot 46, plus the east side of 15 feet of Lot 47. The owner of record is Brian K. Greenling. The address of record is 1383 14th Avenue North, Naples, Florida. The violation was first observed on May 24th, 1999. The notice of violation was given to the respondent on June 1st, 1999, requesting compliance by June 22nd, 1999. The last reinspection was conducted yesterday, August 23rd, revealing the violation remaining. At this time, I'd like to call Investigator Susan Mason, please. (Speaker was duly sworn.) MS. MASON: For the record, my name is Susan Mason. I'm an environmental specialist for code enforcement. This case was the result of a citizen complaint initially regarding someone living in the structure in the -- located to the rear of 1383 14th Avenue North. On May of 1999, I did confirm that -- the use of this accessory structure as a guest house being rented out by Mr. Greenling. I did speak with Mr. Greenling. He was recently -- had recently purchased the property in March of '99, and informed him that this area was zoned single family; he could not use the Page 4 August 24, 2000 building for that purpose and the person needed to move out. And then upon further investigation with the property cards, it showed that there was no electric or plumbing in the house in the -- excuse me, in the accessory structure in the rear back when it was first recorded in 1962. And electric and plumbing had been added by someone else without permits. Also, there was a portion of the structure that was in violation of setbacks. It was 11 inches into the setback, which is supposed to be seven and a half feet on the western side. After numerous contacts with Mr. Greenling, we did have a meeting that consisted of Mr. Greenling, Ed Morad, who's the code enforcement supervisor, and myself in November of 1999. Mr. Greenling agreed to remove the part of the structure that was in the violation setbacks, to get the electrical and plumbing permits, and Mr. Morad gave him a 30-day extension at that time. In January, I did confirm that the portion of the structure in violation of setbacks had been removed. So that violation was abated. However, the permits had not been obtained. In February of 2000, I did have another conversation with Mr. Greenling. He stated he would apply for the permits, that all the papers were ready, and he would do it within the week. After numerous calls and site visits, leaving cards, I had had no contact with Mr. Greenling. In July of 2000, I did have an opportunity to again inspect the site. The structure is located behind a privacy fence and locked, so unless Mr. Greenling is there, I can't gain access to the structure. And I did observe that the plumbing and the electrical were still in place. There were no permits. I have been able to contact his roommate and was out there yesterday. I talked with George, that's his roommate's name, and he does not know of any work having been done. No permits have been pulled. I have not had any contact with Mr. Greenling, upon leaving messages and business cards on a weekly basis for the past month. And I attempted to even reach him at work, but his roommate didn't know where he worked, so I couldn't do that. CHAIRMAN FLEGAL: Anyone have questions for Ms. Mason? MS. SAUNDERS: Yeah. Do you know if the structure is occupied at this time? MS. MASON: In July it was not. And he had -- there was -- at Page 5 August 24, 2000 the time of the initial inspection, there was a range in there that had been removed. Because that classifies it then as a guest house type structure. That has been removed. It was still gone. However, all the other items were in there. And it did not appear to be occupied. MS. SAUNDERS: Can I just clarify one other thing? We -- this is on t4th Avenue North. That's in the City of Naples? MS. MASON: No, it's in the county. It's that strange part -- MS. SAUNDERS: Okay, I just-- MASON: -- where there's city right across the street, MS. but -- MS. SAUNDERS: Right, okay, got it. MS. DUSEK: I have one question. If he gets his permits, then what -- the work that was done is done correctly, or is it a safety hazard? MS. MASON: I'm not an electrician, I'm not certified as an inspector, but it did -- the electric did appear to have a box that could possibly be up to today's codes. The plumbing seemed reasonable. But the inspector would have to make that call. Mr. Greenling has just arrived. CHAIRMAN FLEGAL: Okay. The setback issue? MS. MASON: That's taken care of. He removed the section that was in the setback, so that's no longer a violation. CHAIRMAN FLEGAL: Any other questions for Ms. Mason? Thank you. Mr. Greenling, would you like to address the board? We're talking about your violations. MR. GREENLING: That's fine. (Speaker was duly sworn.} CHAIRMAN FLEGAL: All right, sir. MS. ARNOLD: Please state your full name for the record. MR. GREENLING: Brian Keith Greenling. I can say that I have procrastinated a little bit. And Susan has been very generous with me on time. But at the moment, I just right now can't afford to do -- I'm about ready to lose my house, I'm borderline in filing bankruptcy, and I'm trying just to recoup whatever I can. And really, I think the most difficult thing for me is that they don't provide a booklet or -- I've been trying to do whatever they want me to do, and then every time I go, it becomes very Page 6 August 24, 2000 discouraging. And at one point I just said you know what, I have other things that are more pertinent to this at the present time. And I've been spending a lot of time out of town trying to recoup my financial losses because I'm about ready to lose my business, my house and everything. So it's kind of a teeter-totter, which is more important to me right now. And if things pick up for me during season, then I'll have money and I can afford to pay for -- I think what they want is a plumbing permit and an electrical permit. Well, that all costs money right now. I can't afford to pay it. It's just it's not -- and she knows that I'm in a financial bind. But she's -- she's been wonderful with me. I can't ask for anybody better than her. I'm sure any other code enforcement officer would have probably slapped handcuffs on me 10 months ago. CHAIRMAN FLEGAL: Not quite that drastic, sir, but we understand. MR. GREENLING: But I -- it's not that I'm avoiding it. I mean, she can tell my house has been let go, because I just can't afford it right now. And, you know, it's just -- it's just a matter of hopefully things will pick up, and then by that time I'll get back on track. CHAIRMAN FLEGAL: Okay, sir. Any questions for Mr. Greenling? MS. SAUNDERS: Yeah. What are the costs that they have quoted you for getting the permits? MR. GREENLING: I'm sorry, I have to read lips. MS. SAUNDERS: What are the costs that have been quoted to you for getting the permits? MR. GREENLING: Well, I mean, they have to come out and do a plumbing permit. And then I have -- they're asking for a second survey. That's another -- I mean, I'm looking at spending 1,000, $1,500 to really get them what they want and taken care of and done with. It's not a two or $300 issue. If it was that, then I would have done it a long time ago. MS. TAYLOR: When this started a year ago last May, did you talk to the department about your problems with -- MR. GREENLING: Are you talking about the -- MS. TAYLOR: When you were first warned in May of 1999 -- MR. GREENLING: Right, that was for the renovations I'd first done. I don't think that has anything to do with the guest house. Page 7 August 24, 2000 Was that the guest house? MS. MASON: Both issues. MR. GREENLING: Yeah, then it came to -- yeah, that was just for me being procrastinating. I'm guilty of it. I'm sorry. But it's just for me being a procrastinator. And then finally when I got on the ball, I tried to put full force into it. And then every time I would go in and somebody would tell me that I need something. You have a panel of eight people that go in -- or six people. And you go in, you tell them what you're doing. Then they tell you what they need. Next time you go in, and you've gotten all the paperwork that they ask for and everything they ask for, go to a different person. They give you six or seven other things that they want to you do. And three of the things that you've done are totally irrelevant to them. So it's just a -- after a while I got really discouraged. I mean, I really think she can vouch for me as being discouraged. I -- you know, I get pulled at wits ends on it. There's no book that I can buy that can say this is how you have to do everything according to code. I asked her several times, is there a book that I can buy that will tell me exactly what I need to do that will make everybody happy? And there's not. Everybody tells me everything different. I get pulled in all different angles. No offense, I just can't do it anymore. It's too trying on me. And then I -- and then all these other things happen, and, you know, right now I just can't afford to do it. I know, it doesn't sound like much, but when you're in my shoes right now, it's tough. CHAIRMAN FLEGAL: Any additional questions? MR. GREENLING: I'm sorry? CHAIRMAN FLEGAL: I'm asking my board members, any additional questions for Mr. Greenling? Thank you, sir. MR. GREENLING: That's it? CHAIRMAN FLEGAL: Yes, sir. MS. DUSEK: Michelle? MS. ARNOLD: Yes. MS. DUSEK: Do you know exactly what is being requested and what those costs would be? I mean, is it a matter of getting Page 8 August 24, 2000 the plumbing and the electrical permit? Is this an easy process, or is it as elaborate as just was discussed? MS. ARNOLD: I'm not sure exactly what the additional six or seven requirements that is being asked of him for -- from the different customer service reps that are in the building department. As far as I know, he needs to obtain a permit for plumbing and electrical. The electrical may require a contractor, because we don't ordinarily allow owner/builders to do electrical work because of the safety factors. And as far as the survey, I'm not sure that's needed, because he's already removed the area that was encroaching within the setbacks. But we'll be happy to, you know, meet with Mr. Greenling and a customer service rep, you know, will set up a meeting so that we can all hear what needs to be submitted on his side and those types of things. CHAIRMAN FLEGAL: Michelle, to be realistic, I guess is the best word I can think of, he needs these permits for the two items, plumbing and electrical? MS. ARNOLD: Correct. CHAIRMAN FLEGAL: If he were to walk in off the street today, is this typically a one-week problem, two-week problem, three-week problem? Can you give me a hint as to if I walked in today and said I needed these two permits, what would it normally take me? MS. ARNOLD: It should be a two-week process. CHAIRMAN FLEGAL: Okay. MR. GREENLING: Mr. Constantine-- CHAIRMAN FLEGAL: Flegal is the name. Come up here, sir. MR. GREENLING: In the beginning that's not what all they wanted. They asked for detailed -- CHAIRMAN FLEGAL: We understand. But you're down to that's all you need right now. MR. GREENLING: Right, right, right, which -- CHAIRMAN FLEGAL: That's all we're interested in, is what you need now. MR. GREENLING: Which is great for me. CHAIRMAN FLEGAL: Okay? That's all we're talking about. MR. GREENLING: I can probably pull that. CHAIRMAN FLEGAL: The only problem is those two things right now. Page 9 August 24, 2000 MR. GREENLING: Right, right. But it wasn't like that -- I wanted to state for the record, it wasn't like that in the beginning. CHAIRMAN FLEGAL: Right. But you've also had 15 months MR. GREENLING: Right, I know. CHAIRMAN FLEGAL: -- that you procrastinated. It's not quite that's all. MR. GREENLING: No, I know, but they wanted like the wall detail -- CHAIRMAN FLEGAL: That's fine. MR. GREENLING: -- architects to come out and give me an architectural view. CHAIRMAN FLEGAL: We understand that. MR. GREENLING: Right. I just wanted to state that for the record. CHAIRMAN FLEGAL: Our only problem right now is you're in violation because you don't have permits for electrical and the water. That's all I'm interested in. MR. GREENLING: That was the only two things -- CHAIRMAN FLEGAL: That's why I asked the question, how long it would take to get those two items. MR. GREENLING: Fine. I can take care of that. CHAIRMAN FLEGAL: That's what you'll be judged on. Any comments from the board? Finding of facts? MR. LEHMANN: Mr. Chairman, I'd make a motion that we do find the respondent in violation of the referenced code sections. And as a -- as an order of the board, I think we should follow staff's recommendation for a correction of the violation by obtaining the necessary permits or remove the electrical and plumbing from the accessory structure within 14 days or a fine of $50 be imposed each day that the violations continued past said date. MS. SAUNDERS: I'll second that, if we add that all costs involved be included in the fine. MS. DUSEK: I'd also like to make a comment that I'd like to see a longer period of time, because the word should was used, that it should take that long. It may not. We've heard enough cases to know that things do not get accomplished that quickly. So I'd like to see at least another week given to him. Page10 August 24, 2000 MR. PONTE: I agree. MR. KINCAID.' I would second that comment. MS. SAUNDERS: I'll go along with that. CHAIRMAN FLEGAL: Mr. Lehmann, would you -- MR. LEHMANN: I'll be agreeable to modify the motion in accordance with that, that we add the cost of prosecuting the case, as well as administrative costs, and an extension for 21 days instead of 14 days. CHAIRMAN FLEGAL.' Okay, we do have a finding of fact that there is a violation existing. And we have a recommended order that the violations be corrected or removed by obtaining permits or whatever else may be required within 21 days. If that is not accomplished, a fine of $50 a day go into effect, and that the costs of bringing the case before the board would be included. MS. DUSEK: I second that. CHAIRMAN FLEGAL.' We have a motion and a second. Any comment? All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FI. EGAL.' Thank you. Mr. Greenling, do you understand? MR. GREENLING: Yes, sir. CHAIRMAN FLEGAL: Okay. You have 21 days to solve the problem, or we're going to start fining you $50 a day. MR. GREENLING: I appreciate it, thank you. MS. ARNOLD: Mr. Chairman, if we could move that old business item now and -- CHAIRMAN FLEGAL: Okay. If the balance of the board has no objections, we'll close the public hearings for a short period of time and we'll get to the item of Hernandez request for a payment plan. Let me ask the staff this question. Have you seen this request? Do you know what it is? MS. ARNOLD: No, we haven't seen any -- CHAIRMAN FLEGAL.' Do you have the slightest idea -- MS. ARNOLD: -- written request. CHAIRMAN FLEGAL: -- what they're going to ask us? MS. ARNOLD: We have received a check from the respondent that was addressed to the -- or paid to the wrong Page 11 August 24, 2000 person, so we had to return that check. But the check amount was for $500. So I'm not sure if the schedule is $500 a month. The attorney's here and -- CHAIRMAN FLEGAL: How much money is owed? MS. ARNOLD: The total of the fines are -- I think that was the one we reduced the fines to 5,000. CHAIRMAN FLEGAL: Okay. MS. ARNOLD: Is that correct? MS. KIRBY: No. MS. ARNOLD: Is it 9,000 then? MS. KIRBY: 8,700. CHAIRMAN FLEGAL: Okay. We just need to know what number we're starting with. Okay, $8,700 is the number we're starting with? MS. ARNOLD: Yes. MS. KIRBY: 8,750. CHAIRMAN FLEGAL: 8,750. Okay. (Speaker was duly sworn.) MS. KIRBY: My name is Lisa Kirby, from Craig, Cavanaugh and Cavanaugh for the respondents, Epifanio and Manuel Hernandez. And it's Case No. CEB-99-044. And actually, I did correspond with the Code Enforcement Board about a proposal for a plan, and the board graciously -- thank you for hearing me early, I appreciate that. The board graciously reduced the fine to the Hernandez' to 8,750 on July 22nd. And the Hernandez' have sent two checks, one to me, which I forwarded to code enforcement, and another $500 check to code enforcement. They were made out to CO0. I've been in con -- the respondents are moving, they were in Tennessee, now they're in Ohio. I've been in contact with a relative of the respondents, and they're getting a message to them that it was made out to the wrong name. So my proposal would change a little bit from the letter I wrote on July 20th -- well, I don't think it could have been July 20th, since the board reduced the fine earlier. I'm sorry, it was May. May -- June 28th, I apologize. To 17 payments of $500. The first payment on September 1st would be for $1,000. The two payments that they've actually already made, they will be forwarding a check to me for the $1,000, which they've already made, and the Page 12 August 24, 2000 remaining payments to be made on the 16th of each month, commencing September 16th. $500 through September of 2001. The remaining payment, which would be the 18th payment in the amount of $250, so that the fine would be made by October of 2001. CHAIRMAN FLEGAL: Ms. Arnold, do you have any problem with this? MS. ARNOLD: No. CHAIRMAN FLEGAL: Any member -- MS. ARNOLD: It seems pretty fair. CHAIRMAN FLEGAL: -- have a problem with the payment schedule? MR. LEHMANN: Ms. Rawson, does this place any restrictions on the board? MS. RAWSON: No, because we've got a recorded order. CHAIRMAN FLEGAL: And until this is paid off, we still have a leg to-- MS. RAWSON: Yeah. CHAIRMAN FLEGAL: -- foreclose if we so desire. MS. RAWSON: Certainly. MR. LEHMANN: And the form of payment is by check? MS. KIRBY: Yes, it would be by check. MR. LEHMANN: Personal check? MS. KIRBY: Yes. MR. LEHMANN: Would the respondent be interested in altering that to a cashier's check so the county doesn't have any problems with the check bouncing or anything like that? MS. KIRBY: I could certainly, when I get in touch with them -- first the $1,000 check is probably already on the way, so that may be a personal check, but I could reach them through their relative. CHAIRMAN FLEGAL: The only addition I would add to this: If the board is going to agree to a payment schedule of this, I would want it understood that if they miss payments, miss a payment, whatever, or send checks made out to the wrong people or at the wrong address, my recommendation to the board would be at that point the whole amount becomes due. I don't want a payment due on the 16th and then all of a sudden we're getting checks sent on the 29th and then we get checks made out to the wrong people. And the next thing you know, this Page 13 August 24, 2000 17-month period is now into three years or five years. That won't MS. KIRBY: No, no, that won't -- I would imagine giving them a five-day -- not to foreclose on the 17th, due to the mail, give them a grace period. But yes, that's doable. CHAIRMAN FLEGAL: If the payment's due on the 17th, they need to send it early enough to get it here on the 17th. MS. KIRBY: That's reasonable. I'm sure they are aware of that. CHAIRMAN FLEGAL.' And again, you must understand that if they miss the payments, staff tells us payments weren't made, the board's order would be we call the total amount due immediately, okay? Is that understood? MS. KIRBY: Sounds reasonable. CHAIRMAN FLEGAL: I would make a recommendation to the board that that's the way we approve the payment plan. Any comments? MS. TAYLOR: Well, I agree with Peter also, that it should be in a cashier's check. CHAIRMAN FLEGAL: Yeah, I don't have a problem with that. Just to make sure that -- MS. TAYLOR: I agree. MS. KIRBY: If the first check -- I will try to get ahold of them today. If the first check -- CHAIRMAN FLEGAL: If it's in the mail, we understand that problem. But the rest of them should be in some type of a, you know, money order or cashier's check, something that is immediately negotiable. MS. KIRBY: That's fine. Now, my only question is, should I prepare an order? Or do you need an order, are you going to prepare that or should I? I can certainly do it. CHAIRMAN FLEGAL: As far as the payment plan, I don't think there needs to be an order, does it? MS. RAWSON: Well, it probably doesn't need to be an order, but you want to probably reflect this in some kind of writing. MS. KIRBY: A letter, is that sufficient? MS. RAWSON: Michelle, do you want an order? MS. ARNOLD: An agreement would be fine; an agreement between them and the Code Enforcement Board. Page 14 August 24, 2000 CHAIRMAN FLEGAL: Why don't we do it this way: Ms. Rawson, this is what the board would agree to as a payment plan. Would you prepare a letter of agreement of that nature on the board's behalf and submit it to their attorney, and they can sign acceptance of-- MS. RAWSON: Certainly. CHAIRMAN FLEGAL: -- our plan and send it back to you? MS. RAWSON: Certainly. CHAIRMAN FLEGAL: Okay. MS. KIRBY: And I'd just like to also include in that, that the checks are be sent directly to the Code Enforcement so they wouldn't come from me. MS. RAWSON: Why don't you give me a call later, Ms. Kirby, and we'll get the details ironed out. CHAIRMAN FLEGAL: Yeah. And make sure we get it -- they understand who they're to address them to so they don't go to one department and then all of a sudden they're going through the county for a month, okay? MS. KIRBY: Thank you so much. CHAIRMAN FLEGAL: Thank you. MS. DUSEK: Does this have to be in a form of a motion? MS. RAWSON: Yes, I think you should vote on that. CHAIRMAN FLEGAL: I made a motion that we do that. Do I hear a second? MR. LEHMANN: I'll second. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? All those in favor, signify by saying aye. (Unanimous vote of ayes.} CHAIRMAN FLEGAL: Thank you. Close old business for a minute and go back to our public hearings. We'll reopen those and do Case No. 2000-27, Gladys Rodriguez. MS. CRUZ: Let the record show that Gladys Rodriguez is present. I've provided the respondent and the board a packet. I'd like to -- CHAIRMAN FLEGAL: You can just sit down for a minute. MS. CRUZ: I'd like to request this packet to be admitted into evidence, if there's no objection from the respondent. CHAIRMAN FLEGAL: Did you receive a packet from the -- MR. FERGUSON: No, we submitted a packet to you all. Paget5 August 24, 2000 CHAIRMAN FLEGAL: Yes, but did you receive a packet also from the county? MR. FERGUSON: Yes. CHAIRMAN FLEGAL: Okay. Do you have any objection to them submitting that as evidence? MR. FERGUSON: No. CHAIRMAN FLEGAL: I would entertain a motion that we accept the packet as submitted. MR. LEHMANN: So moved. CHAIRMAN FLEGAL: Is there a second? MS. TAYLOR: Second. CHAIRMAN FLEGAL.' All those in favor, signify by saying aye. (Unanimous votes of ayes.) MS. CRUZ: The alleged violation before this board in this case is interior renovations to a residential structure, resulting into four dwelling units, not meeting Collier County code requirements and not obtaining proper Collier County building permits. The sections being violated is Ordinance 9t-102, Section 2.t.11, Section 2.2.4.2.1 and Section 2.7.6, Paragraph I and 5. The address where the violation exists is 5233 Martin Street, Naples, Florida, and is more particularly described as Naples Manor Addition, No. 1, Block 3, Lot 18. The owner of record is Gladys Rodriguez. The address of record is One Bluebill Avenue, No. 605, Naples, Florida. The violation was first observed on November 17, 1999. A most current notice of violation was given to the respondent, personally served on January 13th, year 2000. Was asked to -- compliance be obtained by January 28th, year 2000. And the last reinspection was conducted by Investigator Jason Toreky on August 23rd, revealing violation remaining. At this time I'd like to call Investigator Jason Toreky. (Speaker was duly sworn.) MR. TOREKY: My name for the record is Jason Toreky. I'm a code enforcement investigator. I'm sort of going to go in brief over this, how the case has transpired over time. September 2nd -- well, before I get started, the previous investigator, Leo Lamelas, which is now attending FHP, I've taken the case over from him. This is basically his part of the Page 16 August 24, 2000 case. September 2rid, 1999, code enforcement received a complaint that a house had been made into apartments and that more people residing than was permitted. September -- the next day, on September 3rd, Mr. Lamelas visited the site to verify the complaint. He was unable to gain access to the structure. On November 17th, 1999, Investigator Lamelas and code enforcement supervisor, Ed Morad met Mr. Ferguson on-site to inspect the property. Four dwelling units were observed, one on the second floor and three on the lower floor. Mr. Ferguson stated that he did not see any renovations or improvements to the property in the last five years. He also stated the property was purchased by the present owner in October of 1998 as a four-plex unit, and no renovations have been done since that time. On December 10th, 1999, research indicated the house was originally permitted as a single-family unit, not a multi-family. Also observed was a washer and dryer hooked up underneath a staircase, which was not permitted. Research had shown the improvement was not permitted. January 13th, 2000, Mr. Lamelas met with the property owner, Mr. Ferguson, at our code enforcement office. He was advised of the violation and -- oh, and the owner was present at that time. And they were advised of a violation and a notice of violation was issued, was signed. Pretty much since that time it was -- the case has been presented to the Code Enforcement Board, which is here today. On July 31st, 2000, I've taken over the case. I've made several attempts to contact the owner and agent and was unsuccessful. The numbers that were provided within the case history, two of them were disconnected, two of them there was no answer. I went to the property, the owners' address, to try to contact them, was unable to. On August 1st I did a site visit and spoke to tenants on the second floor. They stated that there was four units within the structure, just four different tenants there. I have obtained photographs of the second floor unit. On August 18th, I did another site visit. I spoke with the -- another tenant in another section of the house, in the structure, and obtained pictures of that unit, too; kitchens and bathrooms Page t7 August 24, 2000 in both units. I have photos of the units that I have pictures of. I can show you on the projector. And first I'm going to show you an actual floor plan of the structure. It's approximate, what we believe. Oh, I also want to make a point that the zoning for this district is residential single family. It states that on the property card of the residence when it was originally built. As of all the permits for the structure, there's one permit that has been issued and CO'd and that was for sewer hookup, which is stated on that, that it was single-family then. And as far as any other permits, there's two permits to -- two permits were -- according to our record, on the property card, which those permits were shown for Unit 2, which is right here, which used to be a carport, which -- to be converted -- to be closed in, as living space. Both the -- and the other permit, we have no record of what that was for. Both these permits were never finaled. We have no permits for anything that was -- any improvements that have been done to this property to make it four units. The -- let me see. MR. LEHMANN: Investigator Toreky, did you say that Unit 2 actually did go through a permit application? Closed that in for residential -- MR. TOREKY: According to our-- MR. LEHMANN: -- use? MR. TOREKY: Yes. And it was stated on -- it was not stated. There was two permits issued back in 1962. It was -- it was noted that the tax collector observed that there was a screen enclosure there. In 1982, a permit was obtained -- was applied for to close that in and make it living space, this unit right here. That permit was never finalized. Neither of the -- and the other permit that we don't know what it was for, that was never finalized either. MR. LEHMANN: But the permit in 1982 was actually granted to enclose the first floor Unit No. 2? MR. TOREKY: Yes. MR. LEHMANN: Although it was never finalized. MR. TOREKY: Yes. MR. LEHMANN: Do you know how far along in the process it was inspected? Page 18 August 24, 2000 MR. MS. dwelling unit or just -- TOREKY: No, I do not. SAUNDERS: But was that permit to turn it into a second MR. TOREKY: No, it was not. MS. SAUNDERS: Okay, it was to increase -- MR. TOREKY: In 1992~ it was single family. MR. LEHMANN: So I'm a little confused here. You say that we're still under single-family zoning, but yet the building department actually issued a permit to close this in under what occupancy? As storage, as habitable space, as a separate unit? MR. TOREKY: As living space, as an addition to the structure. MR. LEHMANN: As an addition. MR. TOREKY: Additional living space. MR. LEHMANN: So we're still assuming that we have one occupant; he's basically enlarging his house. MR. TOREKY: Exactly. MR. LEHMANN: He's not adding a new tenant space with a separate -- MR. TOREKY: Exactly. MR. LEHMANN: Okay. And that's a premise under which this permit was issued. MR. TOREKY: Exactly. MR. LEHMANN: Thank you. MR. KINCAID: I have a question. What do you mean by it wasn't finalized exactly. MR. TOREKY: It was never issued. The permit was never issued. MR. KINCAID.' Never issued. It was just granted by the code board; is that right? MR. TOREKY.' Oh, I'm sorry, the permit was issued, it was not CO'd. MR. KINCAID.' Oh, okay. MS. ARNOLD: For the board's information, when you obtain a building permit, you have so long before you request an inspection. And if you don't request an inspection within that time period, the permit is voided out, so it's null and void. So it's as if you have never obtained a permit for the use. MR. LEHMANN: So for the record, on this particular case, this permit for the expansion in essence is null and void. Page19 August 24, 2000 MS. ARNOLD: Correct. CHAIRMAN FLEGAL: Right. MR. LEHMANN: Thank you. MS. TAYLOR: I have a question about inspections. When Ms. Rodriguez bought this, it had to be inspected. Did the inspector not realize that this was a multi-family dwelling? MR. TOREKY: Let me state also, Ms. Rodriguez purchased the property in 1998. She purchased this with -- these improvements had already been done to the property. As far as the inspections go, if she purchased the property -- CHAIRMAN FLEGAL: There are no inspections required when you purchase property. None. MS. TAYLOR: Really? CHAIRMAN FLEGAL: No. That's only if the buyer wants the inspection. You can buy anything without looking at it. I have one question. Have you been inside the downstairs at all? MR. TOREKY: I've been inside the second floor, which is Unit 4 here. CHAIRMAN FLEGAL: Okay. That's upstairs? MR. TOREKY: Yes. CHAIRMAN FLEGAL: Okay. But downstairs, have you been downstairs at all? MR. TOREKY: Yes, I have. In Unit 1, this unit right here. Let me note that there's only one entrance into each one of these four units. Well, I shouldn't say that, there's only one entrance into Unit 4 and Unit I that I've observed. MR. LEHMANN: There's not access between Unit I and Unit 2 and 3? MR. TOREKY: I did not observe -- MR. LEHMANN: No internal access, okay. CHAIRMAN FLEGAL: The only reason I asked the question is on the card it was noted back in '62 that this two-story has no partitions downstairs. So to me it was just one big open space, and somewhere along the line somebody's turned it into four units. Okay. MR. TOREKY: Also, I have several photos. Let me go through the photos real quickly, briefly. Observed right now is -- I observed on the 18th three FP&L meters for the property. There's three breaker panels, which we have no record of permit Page 20 August 24, 2000 for. There's several other improvements without permits. This was inside the panel. Receptacle there, not to code. Underneath the stairway that gains access to the second floor, there's a washer and dryer type room underneath, which we have no permits for that improvement for plumbing or electrical. MR. LEHMANN: Could you zoom into that real quick? And what I'm looking at is the electrical, the outlet. Is that actually an outlet without a cover plate and possibly a hanging fixture of some sort or, is that just a lamp being stored? MR. TOREKY: I'm not sure if that lamp is plugged in, but there is a lamp fixture sitting behind there. CHAIRMAN FLEGAL: Question, while you're there. Do I note that on this washing machine it has a -- it's coin operated? MR. TOREKY: Yes. MR. LEHMANN: Is this -- in this particular picture, is the condition of the electrical system now per code? MR. TOREKY: I can't make that decision, but I believe no. MR. LEHMANN: Because we have a comment up top, washer and dryer with electrical not to code. MR. TOREKY: I don't believe it is. Not without a face plate cover. It's a safety hazard. MR. LEHMANN: That's my concern is we may have a safety issue, as far as I'm concerned. MR. TOREKY: And there's no permits for any improvements there and, you know, it may not be grounded or anything like that. MR. LEHMANN: Can I ask you another question. How do we -- maybe I'm naive about the system, but how do we obtain three FP&L meters with panels without a permit? Does Florida Power and Light not require some sort of permitting? MR. TOREKY: I think before 14 years ago they didn't -- it wasn't necessary. MR. LEHMANN: So it was kind of a grandfather type thing? MS. ARNOLD: I think prior to 14 years ago the coordination wasn't there. And, you know, we did find there was a problem, so the county and FP&L got together, and now they do require some authorization from the county before they put in these meters. MR. LEHMANN: Do we have any comment back from FP&L Page 21 August 24, 2000 as far as their position on this right now? MS. ARNOLD: There's just a letter that the respondent's attorney provided us, saying that they installed a meter. But that doesn't -- further than that, there's no, you know, statement from FP&L that they received county authorization for those meters. CHAIRMAN FLEGAL: If you could go back to your picture where you had the panels, breaker panels. Over in the corner, I think you have a close-up of the electrical plug that's -- MR. TOREKY: Oh, yes. CHAIRMAN FLEGAL: -- wedged in there? MR. TOREKY: I have a photo just exclusively for that. CHAIRMAN FLEGAL: Is that -- when you observed that -- is it wired in? MR. TOREKY: Yes, it is. I can't say that it's wired into the panel, but there's wires to it. CHAIRMAN FLEGAL: Wires coming from it to -- going someplace? MR. TOREKY: Yes. CHAIRMAN FLEGAL: Okay, big time safety hazard. MR. TOREKY: Here's an overall view of those panels and the washer and dryer underneath the staircase there. MR. LEHMANN: So this is exterior use? MR. TOREKY: Yes. MR. LEHMANN: So not only do the electrical outlets violate code simply because they are -- they have unprotected conductors inside of them, they also violate code because they're not waterproof. MR. TOREKY: I believe so. I'm going to briefly show you the entrances that I observed, and according to the drawing that I have. Unit 4 -- actually, I'm going to start with Unit 1, which is this front unit right here. I'm going to show you photos -- the entrance to that. And also, I've gained access to that unit there. This is the entrance right here. CHAIRMAN FLEGAL: And that's the entrance to unit -- MR. TOREKY: To this unit right here. CHAIRMAN FLEGAL: -- 17 MR. TOREKY: Unit 1. CHAIRMAN FLEGAL: Okay, and you can go between Unit I Page 22 August 24, 2000 and no other unit, correct? MR. TOREKY: I did not observe all the way in the rear of Unit 1. CHAIRMAN FLEGAL: Okay. MR. TOREKY: I basically came and I took a picture of the kitchen area, which I'll show you here in a few seconds. This unit goes all the way through to the rear. Like I said, I'd like to make a note, there's only one entrance into that unit. The kitchen is right here. I have several other pictures. This is another picture of that entrance, that same entrance there. MS. DUSEK: Code requires two entrances, or two ways to exit a piece of property? MR. TOREKY: Yes, it does. Two means of egress. This is the picture of the inside of that unit. There's a stove right here, a sink and a refrigerator. MR. LEHMANN: Investigator, could I just interrupt one second? You mentioned a comment about the code requiring those means of egress. When was this built? What year? MR. TOREKY: It was built in '59. MR. LEHMANN: Okay. So the construction would actually comply to the codes in 1959, not the codes -- MR. TOREKY: Exactly. But it's stated on the original property card that lower floors were partitioned only. Well, in 1962, it stated that. CHAIRMAN FLEGAL: It stated there were no partitions. MR. TOREKY: Yes, no partitions. CHAIRMAN FLEGAL: No partitions. So these partitions didn't exist, so you did have two entrances to a big open room. It kind of leads me to believe, reading the property card, that this may have been a stilt home that somebody closed in the bottom. MR. TOREKY: That's sort of what we were thinking. I'm going to go to Unit 2, which is this unit right here. This is the one that we were discussing about the permits that were never CO'd. The total square footage on this is 264. I did not observe the inside of that. I have photos of the front door to that. This is one of the photos here. That entrance is from the front of the property. Page 23 August 24, 2000 And I'm going to go to Unit 3, which is the unit behind that, this unit right here. The total square footage on that unit is 330 square feet, approximately. There is only one entrance to that that I know of. I did not observe the inside of this unit. I can show a picture of that. MR. LEHMANN: If I could interrupt real quick. Michelle, the fire housing code, does it not require minimum square footage? Does the Unit 2 comply with that, that 264? MS. ARNOLD: Yeah, there is a minimum square footage, and it's -- but it would -- I'm not sure it's really relevant here, because it's only a single-family district, and we wouldn't allow multiple units. And I'm not -- I don't recall the square footage off the top of my head, but there is a minimum square footage for -- MR. TOREKY: In 1966 -- we've checked some of the records. If this was zoned multi-family in 1966, it still would not meet the criteria for square footage. MR. LEHMANN: Correct. I'm just trying-- MR. TOREKY: Not only that, but the overall square footage of the property is less than what would be required in 1966 in a single-family dwelling. And Unit 4, which is the second floor, here's a picture of the stairway to the entrance of that. I have a picture of the -- this is the bathroom that's up there, which is above. This here unit, Unit 1, there's a -- I believe there's a bathroom here and then the second floor, there's a bathroom here. They're on top of each other. Like I said, here's a photo of the kitchen for that Unit 4 for the second floor. And I've shown one in the bathroom. And that's pretty much it. CHAIRMAN FLEGAL: Any other questions for Mr. Toreky? MR. TOREKY: Excuse me? CHAIRMAN FLEGAL: I asked if there were any other questions for you. MS. SAUNDERS: Yeah, I have one question. This property is being managed, if I read your notes right, by a real estate property manager? MR. TOREKY.' Yes. Mr. Ferguson. MS. SAUNDERS: He knows the rules. MR. PONTE: Just one point of clarification. There are only two bathrooms shown on the schematic -- Page 24 August 24, 2000 MR. TOREKY: That I've observed. MR. PONTE: -- that you observed. You were in Unit 2. Is there a bathroom there? MR. TOREKY: I was not in Unit 2. MR. PONTE: Oh, you were not in Unit 2. MR. TOREKY: In Unit I and in Unit 4. Ed Morad, supervisor, when he met originally with Leo Lamelas November t7th, 1999, the two of them did observe all four units, and observe kitchens and individual dwelling units, four of them, so -- MS. ARNOLD: Mr. Morad is here, if the board would like him to just state what he witnessed on that occasion. CHAIRMAN FLEGAL: Yeah, I have a couple of questions for him. (Speaker was duly sworn.) MR. MORAD: For the record, Ed Morad, code enforcement supervisor. CHAIRMAN FLEGAL: Good morning, Mr. Morad. On this drawing we're looking at, you have personally been in Units 1, 2 and 3? MR. MORAD: I've been in all four units. CHAIRMAN FLEGAL: All four, okay, terrific. In Units, specifically right now, 1, 2 and 3, did you observe bathroom facilities, kitchen facilities? Could you tell me what you saw in those three units right first? MR. MORAD: Yes, sir. I observed bathroom units and full kitchen units in every dwelling unit. CHAIRMAN FLEGAL: Okay. And then up in Unit 4, you observed the same thing upstairs? MR. MORAD: Yes, sir. CHAIRMAN FLEGAL: Is there -- on this drawing, I don't see a way to get from Unit 2 to Unit t or from Unit 2 to the outside. Is there a door or -- MR. MORAD: I did not observe any doors from the inside, leading to any other units. CHAIRMAN FLEGAL: Inside to any other units? MR. MORAD: That's correct. CHAIRMAN FLEGAL: So you can -- there's only one way in and out of each unit? MR. MORAD: That's correct. CHAIRMAN FLEGAL: Okay. Anyone else have any questions Page 25 August 24, 2000 for Mr. Morad? Would you like to make any additional comments, sir? MR. MORAD: No, sir. CHAIRMAN FLEGAL: All right, thank you, sir. Any other questions for staff at this moment? Okay, Ms. Rodriguez or her attorney, whichever. MR. FERGUSON: I'm William Ferguson and I'm not a real estate agent. I just take care of the property for Mrs. Rodriguez. THE COURT REPORTER: Excuse me, let me swear you in first. MR. FERGUSON: I'm sorry. (Speaker was duly sworn.) MR. FERGUSON: Good morning, gentlemen, ladies of the board. The property we're talking about here -- CHAIRMAN FLEGAL: Let me ask you one question, sir. You're a property manager, you're not a real estate agent, you're not an attorney? MR. FERGUSON: I'm a registered agent for her. CHAIRMAN FLEGAL: Okay, very good. Thank you, sir. MS. CRUZ: Mr. Chairman, if I may, the respondent's representative provided the board copies of exhibits. I'd like to mark that exhibit Respondent's exhibit. It's comprised of seven pages and is titled The Property Record Card. I'd like to introduce that into evidence. CHAIRMAN FLEGAL: Any objections? MS. ARNOLD: Those are the two documents that I handed out to you this morning. CHAIRMAN FLEGAL: Okay, that's fine. Any objections? I make a motion we accept them. MR. LEHMANN: So moved -- second. CHAIRMAN FLEGAL: All those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Yes, sir. MR. FERGUSON: Okay, Ms. Rodriguez bought the property in 1997, not 1998, as the gentleman stated. I did some investigation on it since we've got the complaint. First, the complaint in November, Mr. Morad -- THE COURT REPORTER: I'm sorry, I can't hear you. Page 26 August 24, 2000 CHAIRMAN FLEGAL: We can't hear you. Is that mike on? MR. FERGUSON: -- was timely unfair to us on stuff. But we had other issues which they're aware of. We bought another property from another gentleman that owned the same property at 2721 Van Buren, and it's took us five months to get that to an area which we can get that thing occupied correctly. This other property, we put on the wayside for a little bit until this notice came here, so we could correct one problem at a time. And it took a tremendous amount of ability with the code enforcement and the building department to get this one other one settled. Ms. Rodriquez and myself is wanting to settle this program the same way. It just unfortunately got to the front of the board, they lost communications. I don't know why. It doesn't make any difference. We don't need to point any fingers at this time. Just the communication gap got lost. All my tenants -- or Gladys' tenants has our telephone numbers to get ahold of us because of problems and stuff. I know the other gentleman's just taken over from Lewis. You know, it's just one of those things. The confusion on this property, I pulled -- as you see in front of you right there, the only thing that code enforcement found at the time was this first one. It just shows us that other permit. The second one is quite lengthy here. It has all the adjustments and stuff on it. And it has some permit numbers on it and stuff. I can't tell you if they've been CO'd or not. I talked to FP&L, Mr. Conners, and he's sent me letters. Now, you've got one letter there, but it doesn't complete it completely. It's on the way. FP&L is a little slow. And we received our notice just a couple of days ago. Must have been on the 18th, because it was sent to Bluebill Avenue, not to the Gulfshore address. Which is no fault of anybody else's, just a matter of record. But you have the other address on it. 3399 Gulfshore, which is on the complaint. So we started investigating this, FP&L, Mr. Conners, which is an engineer over there. All these meters was installed on the following dates, which I got certified letters coming from them. And also, there's a reinspection on March 26th, 1993, for some reason or another. But No. I meter was installed November 1, 1975. No. 2 was Page 27 August 24, 2000 installed May 1 of 1984, and No. 3 was installed February 1st, 1977. And then there was a complete reinspection on March 26th, t993. Also, the letters from the state from FP&L, they had the County Commission permission to install these meters. But I've got to get that in writing to make sure of it. That's one of the issues that we're going to settle. As far as permitting goes, I did some research down there. I'm not totally done yet. It's hard to go back this far to find stuff, believe me. I've put a good effort on. Mr. Morad's put a good effort on it. We just need some more time to go through and make sure what these things are. Sometimes permits are lost this far back. We don't know for sure. But FP&L has assured me that they had the county's blessings to install these meters. And I want to get that in writing. In a few more days, get that in writing. And when I put that down, it might settle some of the stuff. Mr. Conners is going back to find out through his research at FP&L to find out what -- how they're installed and who authorized them. Otherwise, in the county they have -- sometimes the electrician calls in for a final inspection, and then when you turn that in to the county, then the CO comes at that particular point in time. So we've got to look at that area. The other area, the property itself is changed. It was, for some reason, if you look at the thing they have down here, 5237 Martin Street. In 1990, they changed that over to 5233 Martin Street. They combined a couple of lots. I don't know the whole story on this yet. I've got to go with Mr. Skinner and get some more in-depth why they did that. And that's one of the reasons you can't find a lot of information on this particular project. MS. ARNOLD: For the board's information, what happened was the lots were combined, Lots 17 and 18, and then at that time period they were split to two separate lots. MR. FERGUSON: I'm not aware of that until I go totally through it. Like I said, this was a very quick grab through to get some stuff. The -- they have -- there's several notes on these things that we got to investigate to make sure of what has been done. We've got to track down these permits and find out, you know, if Page 28 August 24, 2000 the final has been issued. They say it has been issued, but we need to do that to make sure what to permit for, number one. And number two, to make sure it does approximately -- FP&L assures me that -- you know, again, I've got to wait for those letters to get here to certify what I'm saying here. What -- Ms. Rodriguez and I would like to have some time to research this. Like I said, we bought it -- I've been in town 25 years and that house has been the same for at least 10 to 15 years. It hasn't changed, okay? And I just can't believe FP&L would inadvertently go out there and put out things without being properly informed. I find that hard to believe. Because I've been in town a long time. I just got my house CO'd out in the Estates, and it was back in 1976, and they came out and I had to go through the county to get the CO. So I don't -- you know, whether -- you know, stuff slips through the cracks I'm sure in this day and age. But, you know, when you transfer records to microfilm or stuff, there's some stuff that could be missed. And that's what -- there's a lot of confusion about this thing. You know, we bought it in good faith, and there's been other corrections made. The washer and dryer, you know, I thought that anything under $500 we didn't have to worry about too much. We'll fix that. We'll get the electrical permit on that. We had an electrical engineer do -- everything's done. Now, on the picture of the face plates missing off of it, you know tenants, you know, sometimes, and they have a light there they plug in when they work at night, you know. That's a lamp right there, I know what that is, that's plugged into the thing. The other stuff was done certified, and I'll get the proper stuff and have their permits pulled down on that within a reasonable amount of time. It's just a matter of getting ahold of an electrician, getting him down to the courthouse and getting it done. CHAIRMAN FLEGAL: I guess my first comment is that FP&L put the meters in isn't the problem. First problem is you have a single-family residence, unless the zoning has changed, that you've turned into apartments. FP&L can't help you. They can't change zoning. So I'm not that concerned right now about what FP&L did. I'm more interested in why do we have apartments in a single-family residence. Page 29 August 24, 2000 MR. FERGUSON: I can't answer your question 100 percent on that, but what I'm saying -- and, you know, somewhere there's a permit to do this. I'm sure. I've just got to research and find it. CHAIRMAN FLEGAL: Permit won't change the zoning. MR. FERGUSON: Yeah, but down here it says -- let me go through here. MS. DUSEK: While he's searching, Michelle, I have a question for you. When was this zoned residential single family; do you know? MS. ARNOLD: Years ago. It's -- how far back do we -- MR. MORAD: It's always been in that area. MS. ARNOLD: It's always been a single family. Probably that's the original zoning once it was changed from agricultural to-- MS. DUSEK: So that took place in the Fifties or Sixties? MS. ARNOLD: Possibly. Probably in the Fifties. Whenever the subdivision was submitted to the county. MR. LEHMANN: And Michelle, do your records show whether or not a variance had been approved by the BCC? MS. ARNOLD: No, we have no records of a conditional use or some sort of variance for this particular property being used for multi-family, as opposed to single family. CHAIRMAN FLEGAL: Okay. Now-- MR. FERGUSON: Okay, I found the thing here. CHAIRMAN FLEGAL: .- regardless of this, you said two lots were added together and then split. This deed is in 1998, okay? So we're dealing with Lot 18 is where this unit sits. MS. ARNOLD: Just Lot 18, yes. CHAIRMAN FLEGAL: So this combining and re-splitting basically is of no interest. We're dealing with Lot 18. That's where the unit sits. MS. ARNOLD: Correct. CHAIRMAN FLEGAL: And that happened in '98. What transpired way back yonder is immaterial. MS. ARNOLD: It actually happened in 1990, I believe. CHAIRMAN FLEGAL: Yeah, but the actual -- Ms. Rodriguez purchased this in '98. MS. ARNOLD: Right. CHAIRMAN FLEGAL: Okay. So that's all we're interested in. What they did back in the Nineties has no bearing. Okay. Page 30 August 24, 2000 MR. FERGUSON: On Naples Manor Addition 1, they have a note here, on 7-26 of 1984, due to extensive remodeling on both Unit 2, I and 3, reclassification for 1985, both are reclassified to R3-plus. And it's initialed by J.R., to move the override on the condition of these residences also. CHAIRMAN FLEGAL: Okay. The property appraiser's office doesn't authorize anything. They go out and appraise property for tax purposes, period. They have no authority to grant variances, issue permits, any of that. All they're doing is appraising a piece of property. And those comments on their cards are, you know, internal comments to tell them what to do in their book, and that's their classifications. Doesn't have anything to do with the permitting office. MR. FERGUSON: I understand. CHAIRMAN FLEGAL: Unless they reference a permit number that they -- MR. FERGUSON: Well, they-- CHAIRMAN FLEGAL: -- review. MR. FERGUSON: -- reference the permit numbers through here, as you observed. CHAIRMAN FLEGAL: It's still a single residence which has turned into apartments. That's what we're -- our problem is. MR. FERGUSON: And you understand our problem. We bought something that's -- you know, like I said, it goes back to the original problem that we had. We were taking care of one problem, we're taking care of this problem. We've just got to get to the bottom of it and fix it. That's the ideal situation on the thing. The problem is that the -- you don't have the old records to reference, to go back. I have not found anything. If we could find some old records, we could go back and research this a little bit more. Obviously because FP&L did some and put the cans in, okay. True, that does not authorize anything. But they have to be queued from somebody else on a permit, and that's what they're telling us, okay? If they come up with the permit numbers and stuff of this nature, then we're fine on this particular area. Is that correct? CHAIRMAN FLEGAL: Not necessarily. MS. ARNOLD: No. MR. FERGUSON: If I got a county permit number authorizing Page 31 August 24, 2000 this, it does not -- CHAIRMAN FLEGAL: The zoning had to be changed somewhere. MR. FERGUSON: Well, something had to be changed somewhere to authorize it, because the county allowed the addition, is what I'm saying. If they allowed the addition, then they knew. Okay. And then the reinspection on March 26th of '93. MR. LEHMANN: Mr. Ferguson, do you have any documentation that would prove to the board that the county has officially rezoned this for the intended use as opposed to single family? MR. FERGUSON: Not at this time. I was short on time to present this. And that -- like I said, we were handling another problem at the time, which the board took care of also at time on 2720 Van Buren, which was a serious problem down there. We took care of that. And it's hard to put your resources and your money complete to take care -- we solve one problem at a time. And we're not here to get out of anything. We'll solve this problem. But I want to do it in the best interest of both people. My client, on the money part, and on the board to make this correct, okay? MR. LEHMANN: I'm just trying to get to the crux of the case, basically. And correct me if I'm wrong, we have a property that is actually zoned for single-family use; we have an existing multi-family use in it. There is no documented proof that a variance to the zoning was ever approved by the county. We have a permit for Suite No. 2 that was never finalized, so there's no certificate of occupancy. So in essence that permit is null and void. So in essence what I have is a property that not only is not zoned for the use that it's incurring right now, but also the construction that was done to modify the property for its intended or actual use now was never permitted nor approved. Are any of those two statements incorrect? MR. FERGUSON: What you're saying is absolutely correct, okay? What I'm trying to do is find that stuff to make it -- you know, I haven't investigated. It goes before the zoning board yet; I haven't went there yet. I have -- there's several places that I have to get to to resolve this. There's enough confusion on this. Page 32 August 24, 2000 What I'm asking for is some extra time, three days to go through this, to make sure Mr. Morad over here and Michelle Arnold and stuff and get this resolved. We resolved the first one, you can ask them, on the 2721 Van Buren. We got that resolved. And we will get this resolved also in a timely manner now, that we can turn our full focus onto. MR. LEHMANN: In a yes or no response, are -- MR. FERGUSON: I said no. MR. LEHMANN: -- there tenants living in these units? MR. FERGUSON: I said no. CHAIRMAN FLEGAL: No, no, another question. MR. LEHMANN: At this point in time, at this point in time, are there tenants living in Units 1, 2, 3 and 4? MR. FERGUSON: That's correct. MR. LEHMANN: Are there tenants using the washing machine facilities and other facilities in this particular residence? MR. FERGUSON: I'm not going to dodge the question. I'm going to say yes, but they're broke down right now. MR. LEHMANN: Thank you. Ms. Arnold, do we have any documentation from the county that would refute those conditions? MS. ARNOLD: No. But let me have Mr. Morad, who's done the majority of the research, with -- MR. MORAD: Yes, I'd like to add to the fact that the tax collectors is taxing this structure as a single-family residence. Utilities is charging as a single-family residence. If that helps. MR. LEHMANN: Thank you. MS. TAYLOR: May I ask you, sir, you said you're a registered property manager for this property. Do you manage other properties as well? MR. FERGUSON: Yes. MS. SAUNDERS: Are you aware that a Certificate of Occupancy is required for rental properties? Do you not advise your clients of that, particularly when the property is transferred? MR. FERGUSON: Everything went through a bank. Everything was okayed by the bank. MS. SAUNDERS: And the loan for the bank was as a multi-dwelling? Page 33 August 24, 2000 MR. FERGUSON: Four units. MS. SAUNDERS: I find that incredible, considering if they gave a financing on it. They would not have gotten a clear title. MS. TAYLOR: Without an inspection. I got clear title and everything. Then you've got a claim against your title MR. FERGUSON: MS. SAUNDERS: attorneys but that's -- MR. FERGUSON: MS. SAUNDERS: MR. FERGUSON: the problem, okay? That's neither here or there, okay? That's correct. That's all I need. I'm not interested -- I'm interested in fixing CHAIRMAN FLEGAL: Any other questions for Mr. Ferguson? Thank you, sir. MR. LEHMANN: Mr. Chairman, I think this is a fairly clean case -- CHAIRMAN FLEGAL: So do I. MS. TAYLOR: So do I. MR. LEHMANN: -- so to speak. I would make a motion that we do have a finding of fact in the fact that we do have a violation of the referenced sections of the code. I was trying to go back and look at staff's recommendation. MS. ARNOLD: If I may, we've come up with a more detailed recommendation, just to identify specifically what needs to be done. Our recommendation would be to revert the building back to a single-family dwelling, with access to all of the rooms internally; obtain building permits for the kitchens that were added. The square footage of the structure is such that it would allow for one -- an additional kitchen. MS. SAUNDERS: One. MS. ARNOLD: So they could possibly get permits for an additional kitchen. Obtain permits for the two downstairs bathrooms; obtain permits for the outside laundry area, if obtainable; obtain permits for the electrical panel boxes; and obtain permits for the additional electrical meters. If permits are not obtainable for any of these improvements, then they should remove them. CHAIRMAN FLEGAL: Before getting these permits, should they -- don't they first have to get it rezoned? MS. ARNOLD: Well, what they would -- they can attempt to Page 34 August 24, 2000 get it rezoned. They wouldn't be -- qualify for rezoning, because the county has a minimum lot frontage and those types of requirements for rezoning. So that probably is not a valid -- CHAIRMAN FLEGAL: I guess what I'm looking at is you're saying they could get permits for extra kitchens, extra bathrooms and all of this. I mean -- MS. ARNOLD: But the use has to be a single-family structure. CHAIRMAN FLEGAL: Correct. So, I mean, unless we're going to get rezoned, them getting these permits to put all these in, I mean, they go get the permits and I can almost -- I can't guarantee it, but I'm sitting here, and I'll lay you odds, if they get these permits, there'll still be renters in here. This is not going to be a single-family dwelling. MS. ARNOLD: My point is if -- the first part of the recommendation is to revert it back to a single-family dwelling. And to do that, they would have to make an internal connection from all the rooms so that it's one -- it functions as one unit, rather than four units. MR. LEHMANN: Michelle, in your recommendation to revert it back to a single-family dwelling, do we get into the county's requirement of the 50 percent rule in saying that modifications in essence equate to 50 percent of the property value, now we have to build for current building codes instead of the existing -- MS. ARNOLD: Yes. And the county would also look at the flood levels, whether or not the improvements on the lower level is within the appropriate elevation. MR. LEHMANN: My concern in asking that question is that we may get into a situation where we are asking these people to revert it back and find out that they now have unusable space on the first floor. CHAIRMAN FLEGAL: Yes, I think that's what happened. MR. LEHMANN: But obviously, I mean, this is a very clean case for me. I just want to make sure that we know what's going on, The next thing, as far as the permits go, I don't have any problem with what you're saying. Your recommendation showed 45 days to obtain those permits? Do you still feel that's an appropriate time? MS. ARNOLD: We can give them an additional -- I would Page 35 August 24, 2000 extend that to 60 days. MS. DUSEK: I'm concerned. MS. SAUNDERS: I have a concern. MS. DUSEK: I'm concerned about being so specific on what we're requiring of them. CHAIRMAN FLEGAL: Yeah, that's what I was going to ask Ms. Rawson. I think we're way too detailed. I think the finding of fact is that they're in violation. And what the board needs them to do is to comply by either removing the violation or obtaining the necessary permits, period. Let's not get detailed in which permits, because I don't want to get trapped into you didn't mention that one, so that we didn't have to do it. I don't like doing that. MR. LEHMANN: Another consideration for the board is that we do have what appear to be safety issues relating to the electrical systems in the building. And again, Jean, is that within our purview to say take care of these also? MS. RAWSON: Well, if you look at your violation description, interior renovations to a residential structure resulting in four dwelling units not meeting Collier County code requirements, and not obtaining proper county building permits. So you need to reflect your order to take care of the violation that we've alleged has been committed. CHAIRMAN FLEGAL: And part of that violation is the electrical. That would cover the -- MS. RAWSON: That's-- CHAIRMAN FLEGAL: What seems to be a visual -- MS. RAWSON: Sure, that's under the permits, I think. CHAIRMAN FLEGAL: Correct. Okay. And from a safety standpoint, I think if Michelle would tell us if doing this is reasonable within your original 45 days, because there may be a safety factor, I'm not for stretching it out. I would say obtain whatever is required in the way of permits to bring this into compliance within 45 days. Once you get the permits, the permit may give you the right to go "X" days to convert it back. I don't want to say plus an additional three months, I want to say get the permits within 45 days. MS. ARNOLD: I was just mentioning, if you wanted to extend, we could possibly extend the permitting for them to Page 36 August 24, 2000 submit permits. That period. Not to say the time to correct the violations. CHAIRMAN FLEGAL: I like 45 days personally. They can always come back and ask for an extension. I need something to progress. They seem to be looking into the problem. Keeping a little heat on them is to our advantage. MS. ARNOLD: That's fine. MS. SAUNDERS: Mr. Chairman, what I see actually is that they basically bought a four-unit building that they knew was not zoned properly, and they were caught. And what I'd like to see is it returned to a single-family dwelling unit within 30 days. It gives the tenants 30 days' notice that they have to vacate. We're real sorry. Then they can go ahead and get their permits and get the rest of it done reasonably. But I want it removed and changed to a 30-day -- to a single-family occupancy as fast as we possibly can do it. And then you can at least go back and fix the rest. So I'm afraid they're going to have to lose some rents. CHAIRMAN FLEGAL: Ms. Rawson-- MS. SAUNDERS: Is that -- CHAIRMAN FLEGAL: -- I think -- can we not only just say get the required permits within "X", and if they don't come up with them in that "X" days, then it automatically, since the zoning hasn't changed, is single-family and their tenants will have to be out within that time period? MS. RAWSON: It's single-family, anyway. CHAIRMAN FLEGAL: Now, yeah. MS. RAWSON: It's a single-family unit, according to the zoning. But of course, you know, we can't vary the zoning. All you can do is tell them to get the permits. If they're not able to get the permits, you know, then your fine's to going to kick in. CHAIRMAN FLEGAL: Right, okay. But we as a board can't, I don't believe, today say throw your tenants out in the street within "X" days. MS. RAWSON: No. CHAIRMAN FLEGAL: Okay, I didn't think so. So we're limited to ordering them to get the permits within "X" or start being fined. And if they don't get the permits or get the zoning changed within that time limit, the fine kicks in. I think what would be the time limit and the amount of the fine would be the Page 37 August 24, 2000 fire under them to do the correct thing. MS. RAWSON: Correct. CHAIRMAN FLEGAL: Okay. MS. TAYLOR: Michelle, exactly what permits do they have to get? Go over that one more time. Exactly. MS. ARNOLD: Well, they would have to obtain permits for all the improvements. And which was noted in the testimony of the investigators was improvements for kitchen, bathrooms, the laundry area. MS. TAYLOR: But a single-family home only needs one kitchen and no more than two bathrooms, correct? Especially a house of this size. CHAIRMAN FLEGAL: No, but you can have as many as you want. MS. ARNOLD: Right. CHAIRMAN FLEGAL: That's a family's decision. MS. ARNOLD: Right. MS. SAUNDERS: And they're already there, so -- CHAIRMAN FLEGAL: I mean, there are four-bedroom houses with six bathrooms, so, I mean, you can't -- MS. ARNOLD: A single-family house can have more than one kitchen. It's just based on the square footage of the overall house. So there's no limits on the number of bathrooms you can have, and there is allowances for additional kitchens, if you have the applicable square footage. MR. LEHMANN: My concern in citing the finding of the board and the order, actually, is again, we don't want to become too specific. MS. ARNOLD: Yeah. MR. LEHMANN: The responsibility of the board is to achieve compliance. However the respondent decides to do that is immaterial to the board. CHAIRMAN FLEGAL: Right. MR. LEHMANN: My recommendation for the wording of the order of the board is exactly that, to achieve code compliance. Not necessarily to revert the structure into any manner, but that we achieve code compliance within a certain period of time or else, you know, a fine or some penalty kicks in. My recommendation would be a time period of 60 days. That's fine. Page 38 August 24, 2000 MS. SAUNDERS: 60 days to return the property to a single-family dwelling and obtain all permits to bring it into compliance? MR. LEHMANN: No, 60 days to comply with the code. CHAIRMAN FLEGAL: Just to comply with the code. MR. LEHMANN: Period. CHAIRMAN FLEGAL: That way if they can generate whatever, then that's fine. MR. LEHMANN: Michelle, is that in accordance with what staff is looking at? MS. ARNOLD: I think it's simple that way, but ordinarily, we typically give a little bit more guidance as to what that is. And, you know, we can -- if you want to keep it simple, say 60 days to CHAIRMAN FLEGAL: Well, let me try this on for -- MS. ARNOLD: -- revert it back into a single-family dwelling. CHAIRMAN FLEGAL: I don't like -- MS. ARNOLD: And obtain all permits. MR. LEHMANN: The concern I have in saying that is I don't want to let us into a loophole. Quite frankly, to me this is a very clean case. There's really not anything else they can do, in essence. I don't know that the board's position on the official record should state to do a particular action. CHAIRMAN FLEGAL: Right. I think the finding that there is a violation, I think the order -- let's put it in this type of a sentence: That the respondent come into full compliance with the Collier County Zoning and other ordinances by whatever method, be it rezoning and/or obtaining permits; and that they do this within a time period of, if 60 days is the number, within 60 days. If that does not occur, a fine will be imposed of "X". Is that pretty basic and simple and -- MS. ARNOLD: That would work. CHAIRMAN FLEGAL: Kind of covers every base, I think. Is that -- how's that for the board? MR. LEHMANN: You're looking at zoning issues? CHAIRMAN FLEGAL: Well, I say if they can get it rezoned, that's their privilege. MR. LEHMANN: No, I say in your order you're referring to zoning issues-- CHAIRMAN FLEGAL: I said come into compliance with Page 39 August 24, 2000 zoning and Collier County ordinances. So right now the zoning is single family. So if they can get it changed, they can get it changed. We don't care. MS. DUSEK: Can you just say come into compliance? What I'm concerned about is the safety issue. There seems to be one. And when you apply for a permit, you have what, three months in order -- in which to comply with whatever that permit is? MS. ARNOLD: Six months for an inspection. MS. DUSEK: And so that's delaying this process. I don't know how quickly we can make them move on it. If they apply for permits, they have a certain amount of time in which -- CHAIRMAN FLEGAL: Well, we said comply with obtaining permits within 60 days. So we've limited it to 60, not knowing whether there in fact -- it appears to be a safety issue, but I don't know that we can shorten that. Can we, Ms. Rawson? Can we add another item in our order because we -- it appears to be a safety issue? I mean, we don't know that for a fact. That hasn't been presented to us. We have just see pictures of it. I mean, if it's just cover plates missing, Mr. Ferguson could go down there today and put cover plates on it and we wouldn't know the difference. MR. LEHMANN: Or there may be no power to those lines. CHAIRMAN FLEGAL: Yeah. I mean, we have no way of knowing that. MS. RAWSON: I don't think there's any testimony that there's a safety issue. Just what you saw in the photographs. CHAIRMAN FLEGAL: Okay. So I think limiting it to coming into compliance with zoning and/or other Collier County ordinances to get into compliance is about as straightforward as we can get. MS. SAUNDERS: But are we saying bring it into compliance in 60 days or applying for permits within 60 days, which then extends it another six months? MR. LEHMANN: Well, I don't think that the respondent within that 60-day time period can actually apply for the permits and finish the construction so that we actually achieve the CO within 60 days. CHAIRMAN FLEGAL: No, but if he can't get the permits to do what's already been done, his only choice is to convert it back. So he wouldn't be able to obtain -- Page 40 August 24, 2000 MR. LEHMANN: Right. CHAIRMAN FLEGAL: -- permits. So he can -- he's probably going to find that out, I would think, pretty quickly when he goes down to apply. MR. LEHMANN: I suspect a 30-day time period in going back and forth with permitting for him to find out the answer is no. CHAIRMAN FLEGAL: And pulling all these things out, if that's what he has to do. I don't know, if you can find the crew, he can go in there and pull all this stuff out within a week. MS. SAUNDERS: I would be much more comfortable if we said apply for the permits within 30 days and bring into compliance within 90 days. I just don't want a stalling tactic. MR. LEHMANN: I agree with your thought process. However, in wording it, bring into compliance in 60 days, if he obtains permits. Let's use the devil's advocate -- Okay. -- position, that he can actually can obtain a MS. SAUNDERS: MR. LEHMANN: permit for this -- MS. SAUNDERS: MR. LEHMANN: Okay, comply-- -- can he achieve that construction and actually receive the CO's, which means he's in compliance within those 60 days? MS. SAUNDERS: So you're saying apply for permits within 30 days and bring it to compliance within 60 days? CHAIRMAN FLEGAL: I think he's doing the whole thing. MR. LEHMANN: Michelle, does the application for a permit or the issuance of a permit signify compliance with the code? Do you actually have to do construction? MS. ARNOLD: No, it doesn't signify compliance, because you have to final out -- you have to follow through. I mean, it's already been presented that there were permits obtained, but they never completed the permitting process, so they were voided -- null and void. CHAIRMAN FLEGAL: Are we making this a little too more difficult? We all seem to be -- MR. PONTE: We are. CHAIRMAN FLEGAL: -- looking at construction. First of all, this stuff exists, so he's not going to build anything. All he needs is a permit for the electric he's already done. The kitchens and baths he's already put in. We're not saying rebuild them. So it's Page 41 August 24, 2000 not like you've got a six-month construction project. MR. PONTE: And, Mr. Chairman-- CHAIRMAN FLEGAL: At worst, he would have to tear it all out, which in de-construction, for lack of a better word, is a short time. MR. PONTE: And Mr. Chairman, you've got to focus on the major violation here, which is the fact that he has a structure which is an apartment house in an area for single-family homes. And that's what the real violation is. Everything else falls into place after you address that. We're getting hung up on -- CHAIRMAN FLEGAL: MR. PONTE: -- we're CHAIRMAN FLEGAL: I think coming in -- getting hung up on minute details -- Yeah. MR. PONTE: -- when the real focus of this entire case is the violation of the fact that he's got four dwelling units in what should be a single-family residence. CHAIRMAN FLEGAL: Correct. Yeah, we got sidetracked on construction. There is no construction. It all exists. At worst, he's going to have to unconstruct (sic} it. So I think coming into compliance within 60 days by obtaining whatever it is he has to obtain, or removing whatever it is he has to remain (sic}, is feasible. I don't find that to be a problem. MS. TAYLOR: I agree. MS. DUSEK: I somehow like that wording better than being so specific with permitting. CHAIRMAN FLEGAL: Okay. MS. DUSEK: Because I agree with George, that we're losing our focus, I think. It's a zoning problem. And I don't know how quickly this can be resolved. CHAIRMAN FLEGAL: Well, he always has the right to come back and ask for more time. But I think what we need to do is leave the fire underneath him, so that gives him the pressure which he can turn around and use other places, hopefully. MR. FERGUSON: May I make a comment? CHAIRMAN FLEGAL: Yes, sir. MR. FERGUSON: What you're saying is very reasonable, okay, and we can do our stuff within the 60 days. And if we find that it's a little more difficult, which on the other one we did, it took five months, okay-- MR. PONTE: Mr. Ferguson, let me interrupt you just for Page 42 August 24, 2000 clarification purposes. When you say you can do your stuff, what stuff is that? MR. FERGUSON: Well, we've got to work with the code board and go down. And like, you know, we've had meetings down there and we need go over exactly what we need with the building department and with the code and stuff. We go down and we have these meetings and then I go from there to get the permits and stuff and what I need. It takes time to do this, okay? MS. TAYLOR: You've already had a year. This started a year ago. MR. FERGUSON: I understand that. But do you understand also we had another problem with the same person we bought off of? We took -- and these guys will verify it, we took care of it. It took five months to do this, okay?. Some stuff I understand the board's contingency, but we are people that are going to take care of the stuff, and we're wishing the time to do this in a timely manner. We're not going to run. MR. PONTE: The occupancy violation would then continue. It's existed for over a year. The danger to -- MR. FERGUSON: It existed for 10 years. MR. PONTE: -- life also exists and continues to exist. And it just seems to me that's what we should be addressing. CHAIRMAN FLEGAL: Okay, let's do this before we -- we're getting sidetracked again. If we give him 60 days and he feels that's insufficient, he can come back and ask for an extension. If at that time, if he does that, we're still worried or upset that the tenants are there and he hasn't made sufficient progress, we can deny the extension, and he'll have to be in compliance immediately, start getting fined. And if his tenants are still there, we feel something -- we can't raise the fine, but we can amend our order to do something a little more drastic like, you know, we want the tenants out because of the safety factor or because you haven't complied by getting the permits and getting all the electrical approved, so on. So let's not try to do that right away. Let's give him 60 days and see what he does. MS. DUSEK.' I'm not in favor of 60 days because I think that we have an issue of -- I don't think, we all know that we have this multi-family in a single-family zone. And I want the issue resolved much faster than that. So I'm not in favor of 60 days. I would be in favor of 45, but not 60. Page 43 August 24, 2000 MR. LEHMANN: I would second that at 45. For if no other reason other than what my colleague said, but it allows us as a board to review this within 60 days. CHAIRMAN FLEGAL-' Okay. MS. SAUNDERS: The other thing I would like to see when we get to that point is a substantial fine. Because we've already run into people who -- it's more valuable to keep the renters in there and the low fine, so I would -- CHAIRMAN FLEGAL: Let's do Stage 1, which is we have found that is there in fact is a violation, okay? Everybody's in agreement with that. Item 2, the order of the board is that they correct the violations and come into full compliance within 45 days. Is that palatable to everybody -- MR. PONTE: Yes. CHAIRMAN FLEGAL: -- so far? Okay. Item 3, if this does not occur, what is the pleasure of the board? MS. SAUNDERS: I would put a fine of $250 per day. MR. PONTE: I would second that. CHAIRMAN FLEGAL: Any comment with that number? It's not up to you, sir, to comment on the number. Sorry. None? Okay. Do I hear a motion that it is the order of the board that they come in -- the respondent come into full compliance by obtaining whatever is required or removing whatever is required within a 45-day period? MS. SAUNDERS: So moved. MS. TAYLOR: Second it. CHAIRMAN FLEGAL: Okay. And that if that does not occur, a fine of $250 a day will take effect. MS. SAUNDERS: Yes, plus costs. CHAIRMAN FLEGAL: I'm sorry, plus costs. I understand. I forgot that. My fault. Do I hear a motion to that effect? MS. SAUNDERS: So moved. CHAIRMAN FLEGAL: I'll make it, if that's what I need. MS. SAUNDERS: Go ahead, you make it. CHAIRMAN FLEGAL: I'll make a motion that we do it that way: 45 days, $250 a day, if it's not in compliance, with the costs. Page 44 August 24, 2000 MS. TAYLOR: Moved and seconded. CHAIRMAN FLEGAL: Okay. Any further questions? All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Okay. Mr. Ferguson, do you understand? 45 days. MR. FERGUSON: Yes, sir. But I'd like to make a comment also. Please take into consideration that we are trying to comply and not to punish us for past deeds that's been done. CHAIRMAN FLEGAL: We've made our order. You have 45 days or a fine kicks in. You can come back, if you feel that that's -- time's crunching on you and ask for an extension. And at that time, if you can prove to us you deserve one, we'll consider it. Okay? MR. FERGUSON: Thank you very much for your time. CHAIRMAN FLEGAL: Let's take a five-minute break, please. (Recess.) CHAIRMAN FLEGAL: Are we all back? Okay, we'll call our meeting back to order, please. And the next case, public hearings are reopened, 2000-028. MS. ARNOLD: Mr. Chairman, there has been a request to move Item 6 -- I'm sorry, 5(A), to hear that before the next public hearing. And whatever the board's pleasure. CHAIRMAN FLEGAL: Why? MS. ARNOLD: The -- if the attorney would like to approach the board? MR. FRIDKIN: Your Honor, Mr. Chairman, it was-- MS. ARNOLD: Please do it in the microphone. CHAIRMAN FLEGAL: You have to be on the record, sir. MR. FRIDKIN: In the hopes of brevity -- CHAIRMAN FLEGAL: Just a moment, sir. MR. FRIDKIN: For the record, my name is Jeff Fridkin. I am an attorney, Board Certified in civil trial law, as a specialist in business law litigation by the Florida Bar. I'm here representing Mr. and Mrs. Combs on a -- what I hope is a brief matter, shouldn't be a long matter, and was just hoping -- I'd heard that the respondent on one of the cases before you isn't here. And the hope was that perhaps rather than incur the additional cost of being here, that we might be able to move rapidly through and Page 45 August 24, 2000 get on about some of our business. And I know you have many other items of business yourself. That was the purpose for the request. CHAIRMAN FLEGAL: I appreciate the comment, but there's other people that are here, too. We tried to accommodate one person because they had somewhere else to be. The other people have -- need to move along too. So he'll have to wait his turn. MR. FRIDKIN.' Very good. CHAIRMAN FLEGAL.' Thank you, sir. All right, 2000-028. MS. CRUZ: Board of County Commissioners versus Ralph James Williams, Trust. Let the record show that Mr. Williams is not present. The alleged violation before this board is clearing and filling of wetlands in an area zoned agricultural, without first obtaining the required federal, state and local permits. I'd like to request that the exhibit provided to the board and to the respondent be admitted into evidence at this time, please. CHAIRMAN FLEGAL: Any objections from the board? I'd entertain a motion. MS. SAUNDERS: So moved. CHAIRMAN FLEGAL.' Do I hear a second? MR. LEHMANN: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the packet as entered. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. MS. CRUZ: The sections being violated here is Section 2.7.6, Paragraph I and 5. Section 2.2.24.5. Sections 2.2.24.6.5, and Section 3.9.3. The violation exists at Union Road and is more particularly described as Folio Number 802640202. The owner of record is Ralph James Williams. The address of record is 18476 Pioneer Road, Fort Myers. The violation was first observed on November 18th, 1999. The notice of violation was provided to the respondent on November 22nd, 1999, with the request to comply by December Page 46 August 24, 2000 12, 1999. A reinspection was conducted August 23rd, revealing the violation remaining. I'd like to request that Investigator Susan Mason come to the podium at this time, please. (Speaker was duly sworn.} MS. MASON: For the record, my name is Susan Mason. I'm an environmental specialist for Code Enforcement. This case was the result of a complaint generated by the State of Florida, Department of Community Affairs. I first visited the property on November 1 lth of 1999, observed vegetation had been removed and fill added approximately 80 foot by 330 feet, and agricultural land within a special overlay district, an area of critical state concern, with a special treatment overlay. And a special treatment overlay is a county provision which provides for special regulations for areas of environmental sensitively and/or historical or archeological significance. In this case it was due to the environmental significance sensitivity. The two problems with this property relate to the fact that in these special treatment overlay areas, site alteration plans are required to be approved by the county before any site work is performed. And also -- which no approvals, no permits had been obtained for working on this property. The other significant problem is that as part of the special treatment overlay, only one-tenth or 10 percent of a property is allowed to be impacted. And this tract had -- this is a five-acre tract, and already one-half acre, which would be the allowed amount, had been impacted by the original dredging done by South Florida Water Management on a canal that's located on the western edge of this property. So all the fill that was added would not be allowed under the special treatment overlay. I did have a meeting with Mr. Williams and Barbara Burgeson, who's an environmental specialist with planning, to discuss the issues, and that was back in January of this year. Mr. Williams and I discussed various options allowing him to use his property as much as possible. The area impacted, he could place a modular home or something similar -- the old area of impaction, he could place a home. He wanted to remove the fill that he added to the new area and use it as a pad for the house. And I told him I could give him some time to go ahead and pull his permits, move that fill and use it on his site. And he Page 47 August 24, 2000 was having difficulty obtaining a survey for the property to get the necessary permits. I did confirm -- he stated that the surveys were extremely expensive due to the location. Businesses don't seem real interested in going out and doing small tracts of land. And it would be -- the cheapest I had confirmed was 2 to $3,000 for the survey. In May he req -- excuse me, in March he requested an extension of 30 to 45 days to obtain the survey, due to the expense, which was granted. But in May of 2000 no permits had been obtained. I hadn't had any contact from Mr. Williams. I did a site visit. The fill remained. There was no evidence of a recent survey, no survey stakes or anything like that, that showed evidence that he had obtained a survey. And I have had no contact with Mr. Williams until on the 18th, he did call me saying that he had made arrangements for the fill to be removed from the property, and hopefully it would be done by the recheck of yesterday. He did state that he was recovering from surgery and that was why he hadn't done something sooner. Yesterday when I was out on the site I did observe a backhoe was on the site; however, there was no dumpster or any means to remove the fill from the property. A small amount of fill had been removed from the area in violation, but was spread merely on the roadway that runs through the property. And so basically minimal progress was made and the violation remains. CHAIRMAN FLEGAL: Ms. Mason, did you have any discussions with Mr. Williams as to how this got filled in or when it got filled in? MS. MASON: Initially in our conversation he stated that when he bought the property, it was on there. But the initial violation was observed actually -- or the complaint was submitted by the Department of Community Affairs in June. The complainant had sent some photographs that it was there. And he had purchased -- it was just -- it was fresh fill. And he had purchased the property three months prior to that, I believe it was. And then he did admit that he had placed the fill himself. CHAIRMAN FLEGAL: He filled it himself, okay. Any questions for Ms. Mason? Page 48 August 24, 2000 Thank you, Ms. Mason. Comments from the board? Finding of fact? MR. LEHMANN: Respondent is not present? CHAIRMAN FLEGAL: No, sir. Ms. Arnold, we did get proper notification and -- MS. ARNOLD: Yes, we did. CHAIRMAN FLEGAL: -- posted everywhere? MS. ARNOLD: Yes. And there was a -- the card was signed and returned to us. CHAIRMAN FLEGAL: Very good. Thank you. MS. DUSEK: I make the motion that a violation does exist, if there is no other discussion, against the Board of County Commissioners and Williams -- excuse me, Ralph James Williams, CEB Case No. 2000-028. The violation is of Section 2.7.6, Paragraph I and 5, and 2.2.24.5, and 2.2.24.6.5, and 3.9.3 of Ordinance 91-102, the Collier County Land Development Code. The description of the violation: Clearing and filling of wetlands in an area zoned "A" agriculture, ACSC/ST, area of critical state concern, special treatment, without first obtaining required federal, state and local permits. MS. TAYLOR: I'll second that motion. CHAIRMAN FLEGAL.' Okay. Any comments? All those in favor that a violation does exist, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL.' Ms. Arnold, do we know how this fill, this 80 by 330, do we know how deep that was? I mean, is it like a foot of fill, five foot of fill? Maybe Ms. Mason could tell us better. MS. ARNOLD: I don't know. Yeah. MS. MASON: I didn't take any measurements, but I would estimate it to be between three and four feet deep. CHAIRMAN FLEGAL.' Okay. What I'm looking for is a time limit in my mind to take that much fill out and -- MS. MASON: It's a fair amount of fill. CHAIRMAN FLEGAL: Okay. MR. PONTE: But the backhoe's on-site. MS. MASON: Yes. CHAIRMAN FLEGAL.' Okay, order of the board. MR. LEHMANN: Mr. Chairman, I'd recommend that we follow Page 49 August 24, 2000 staff's recommendation to correct the violation by removing the fill within 30 days, or a fine of $50 will be imposed for each day the violation continues. MR. PONTE: I second that. CHAIRMAN FLEGAL: With the added item of plus costs. MS. SAUNDERS: Thank you, I was just going to say that. MR. LEHMANN: Yes, I'd agree to amend the order. CHAIRMAN FLEGAL: Okay. So we have the order of the board to be that the respondent remove the violation within a 30-day time limit, or a fine of $50 per day be imposed for each day the violation continues past said date, and that the respondent pay the cost to prosecute the case before the board. MS. ARNOLD: Can I just make an addition? Part of the violation was the removal of vegetation, and no permits were obtained. Within the Land Development Code, there's language that says when there is violations of that particular section, that we could require the property maintained free of exotics. I don't -- if the board desires to add that to -- add that condition to the order to correct, they have that ability to do that. MR. LEHMANN: Mr. Chairman, I'd amend the order again to add the clearing -- any vegetation that was previously removed to be restored so that the wetlands are returned into their original condition. MS. DUSEK: And would that take care of any exotics? MS. ARNOLD: Well, the comment is to direct or inform the property owner that they need to maintain the property free of exotics. CHAIRMAN FLEGAL: Free of exotics, not adding something. MS. ARNOLD: Right. Correct. MR. LEHMANN: Returning it to the original condition, exclusively of exotics. MS. MASON: Plus it did appear to be an area that had not been impacted by exotics. However, that amount of land to mitigate, to truly return it to a functional wetlands, would be rather expensive. MR. LEHMANN: Any recommendation? MS. MASON: If the property was remained free of prohibited exotics, there's a significant amount of native vegetation in the area, that it should repopulate itself, as long as it was returned to an acceptable grade. Page 50 August 24, 2000 CHAIRMAN FLEGAL: Okay. So if we just remove the fill, Mother Nature will take care of herself? MS. MASON: Yes, as long as we don't let the exotics in. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: Do I have to reamend my order again? Let's go back to the original order anyway. MS. ARNOLD: Yeah, and the only addition, if it would be the board's pleasure, would be to add the language to maintain the property fee of exotics. Prohibited exotics. CHAIRMAN FLEGAL: Okay, I think-- I personally feel uncomfortable doing that, because when we wrote him up, we wrote him up for clearing and filling the wetlands. We didn't write him up for exotics. I have a problem with at this time ordering something -- somebody to do something with exotics when they weren't written up for that in the beginning. That kind of-- MS. MASON: I do understand that. But the only reason, though, the exotics would kick in is the fact that that the vegetation was removed illegally, and part of the ramifications for that is to maintain the property free from prohibited exotics. MR. LEHMANN: Are we not reiterating the code already? CHAIRMAN FLEGAL: You just say clearing and filling. You didn't say, you know, that he has an exotic problem. MS. MASON: He doesn't. CHAIRMAN FLEGAL: Okay. So -- but you need to understand, I'm not comfortable with the board all of a sudden entertaining an exotic problem when that wasn't the original problem. We're now adding something that wasn't there. I don't like doing that. That's just personal. It seems like we're -- you know, oh, gee, we've caught you taking two steps to the left, oh, but you might take two steps to the right, so we're going to warn you not to do that. You didn't catch him in the beginning. If you catch him doing that, come back and we'll stress it. That's my feeling to the board. MR. PONTE: I agree. CHAIRMAN FLEGAL: I think we stick with your original order. MS. TAYLOR: Actually, it was Bobbi. CHAIRMAN FLEGAL: It was Bobbi that did that? Okay, I'm sorry. Bobbi did that. If we stick with the original unamended, I Page 51 August 24, 2000 think we're where we should be, that he comply within 30 days and/or a fine will kick in at $50, plus costs. Everybody comfortable with that? MS. SAUNDERS: Yes. CHAIRMAN FLEGAL: We have a motion and a second? MR. PONTE: You have a second. CHAIRMAN FLEGAL: Okay. All those in favor, signify by saying aye. Any opposed? (No response.} CHAIRMAN FLEGAL: Thank you. Next case is Mastro, Case No. 2000-029. MS. CRUZ: Board of County Commissioners versus Lisa -- I'm sorry, Todd A. and Lisa A. Mastro, Case No. 2000-029. Let the record show that the respondent is present, Mr. Mastro. I'd like to request that the packet provided to the respondent and to the board be admitted into evidence at this time, if there's no objection from the respondent. CHAIRMAN FLEGAL: Mr. Mastro, do you have any objection, sir, of them submitting the packet? MR. MASTRO: No. CHAIRMAN FLEGAL: I'm sure you got a copy of it. MR. MASTRO: I don't have it with me. CHAIRMAN FLEGAL: If you have no objection, sir, that's all I'm -- MR. MASTRO: No. CHAIRMAN FLEGAL: Okay, thank you. MR. LEHMANN: Mr. Chairman, I move that we admit it. CHAIRMAN FLEGAL: Okay, do I hear a second. MS. SAUNDERS: Second. CHAIRMAN FLEGAL: All those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Thank you. MS. CRUZ: The alleged violation before the board is a playhouse constructed in a residentially zoned district without first obtaining. the proper Collier County building permits. It is a violation of the Land Development Code No. 91-102, Section 1.5.6, Section 2.7.6, Paragraph I and 5, and Section 2.1.15, Paragraph I and 2. Page 52 August 24, 2000 The address of record is 5036 28th Avenue Southwest, and is more particularly described as Golden Gate, Unit 7, Block 245, Lot 6. The address -- the owner of record is Todd and Lisa Mastro, who reside at 5036 28th Avenue Southwest, Naples, Florida. The violation was first observed on September 18th, 1999. A notice of violation was provided to the respondent -- I'd like to make a correction. The violation was first observed on September 8th, 1999. The notice of violation was provided to respondent on November 16th, 1999, and he was asked to comply by December 15, 1999. It is my understanding that as of August 23rd, the violation remains. At this time, I would like to call Investigator Jim Hoopingarner. (Speaker was duly sworn.) MR. HOOPINGARNER: For the record, my name is James Hoopingarner. Last name is spelled H-O-O-P-I-N-G-A-R-N-E-R. I'm a code enforcement investigator for Collier County. The complaint was received by customer services on September 3rd, 1999. On September 8th, 1999, I made a visit to the address and location and did observe a raised platform with a tree house built upon it. At this time, if I may, if I may lay this down here, I think you also may have Item 28 in your packet which reflects a good photograph of the -- nobody was home. I left the card for Mr. Mastro and he did return my call later on that afternoon. I advised him of the violation. As I had researched, there was no permits for the structure. Also, the structure is in setback violation. As you can see here, on the right is the property line, side property line. Over to the left in back of the shed is the main structure. The photograph is taken from the front of the lot, street side. I've talked to Mr. Mastro on the phone and he said no, that he had not obtained a permit, that he didn't think he needed to. It was a playhouse for his kids and he didn't realize he needed a permit. At this time he was advised that he would need a permit and also that he would have to seek something, possibly a variance for the setbacks. He was given verbally 30 days to comply. Page 53 August 24, 2000 On October 8th, Mr. Mastro stopped into the office and talked to me and advised that he had went to permitting and planning and they were going to require him to have a contractor look at the structure to make sure it met hurricane specifications. Also, they were going to request a survey to determine where the playhouse could be put, because it's going to have to be moved because it didn't meet the setback requirements. He asked for an additional 30 days, which was granted. On November 15th, we made a recheck. No permits had been applied for. At this time the notice of violation was sent to him by certified mail, which he did sign for. And he was to correct by December 15th, 1999. On December 16, '99, I made a check. Still no permits being applied for. I contacted Mr. Mastro, and he advised that he did have a contractor that was supposed to help him out. Also, that he was going to have a survey done, and please extend him for another 30 days, which we did. On January 18th, still no permits applied for. Contacted Mr. Mastro and he said he was having a hard time getting a survey done, that the man was busy. That he was supposed to be done in two weeks and please give him another 30-day extension, which we did. On March 8th -- correction, on March 1st, 2000, I spoke with Mr. Mastro, as there was still no permits applied for. At this time, he advised that he was going to file a federal land patent with Collier County government, which would make him exempt from Collier County code ordinances and enforcement. He advised that he would leave a copy at my office when he had filed. On March 15th, Mr. Mastro did stop into my desk and gave me a copy of the land patent which he did file with Collier County. And he says this makes him exempt, makes his property exempt from code enforcement, Collier County ordinances, and that at this time he does not intent to do anything further. We submitted this documentation to Melissa Vasquez, assistant county attorney, who is no longer with Collier County. And she came back on March 21st and advised that the document does not make Mr. Mastro exempt from Collier County codes and ordinances. Page 54 August 24, 2000 I called up Mr. Mastro and advised him of that. And he said as far as he was concerned he was sure it did and that he was not going to take any further steps to obtain any permits. And that's why we are here today. CHAIRMAN FLEGAL: Any questions for Mr. Hoopingarner? Thank you, sir. MR. HOOPINGARNER: Thank you. CHAIRMAN FLEGAL-' Mr. Mastro? (Speaker was duly sworn.) MR. MASTRO: My name is Todd Alan Mastro. CHAIRMAN FLEGAL: Your turn to say something sir, if you'd like. MR. MASTRO: Well, this is a law that was written in 1856. It hasn't been used very often. It was something that was issued by the United States Department of Interior, the Bureau of Land Management. If you don't have common land, you're able to obtain this patent, which I did. I filed with the federal government. I also filed with the State of Florida. I was not required to file with the county. The only reason why I did was because of this tree fort situation. It gives me allodial title rights to my property. CHAIRMAN FLEGAL: Okay. That's your statement? MR. MASTRO: Well, first of all, when this packet was issued to me was supposedly sent to me on the 7th of this month. It was at that time that I was supposed to submit my defense by Friday, I want to say, the 17th. I was out of town. I had two days in which I contacted Maria Cruz on this matter. I actually went down to code enforcement and got the packet. I'm under the impression that this is a federal law in which I applied and received a land patent on my property. It does state the plot numbers and where it is located. As far as permitting goes, I did attempt to get permitting. Unfortunately where it is located, the only place that I could actually relocate this fort would be in my front yard. Me and Mr. Hoopingarner, we went around the house and measured. I would be infringing on my home easement anywhere in the back perimeter of my backyard. CHAIRMAN FLEGAL: Okay. Anybody have any questions for Mr. Mastro? MR. PONTE: I have one. Just curious to why you're led to Page 55 August 24, 2000 believe that the federal patent exempts you from any kind of Collier County rules and regulations. MR. MASTRO: Because it does state in the patent that it excludes me from -- it says no government agency or other sovereign powers can place any lien, attachment or encumbrance on land held in an allodial state. Land patents still today are the highest evidence in title that has ever been refuted in any court. MR. LEHMANN: Where are you referencing that, sir? CHAIRMAN FLEGAL: That's in the write-up from the -- I can't remember his name, president at that time. MR. PONTE: Rutherford B. Hayes. MR. LEHMANN: You're actually referring that into the handwritten statement? CHAIRMAN FLEGAL: Yeah, that's in the -- MR. MASTRO: I have some in type here. There are some books on land patents, entitlement, allodial titles. Which I don't have yet. I have sent away for that. It takes about six weeks. So under -- I thought I was free and clear. Up until August 7th is the first time that I learned that I was in violation, after submitting this in March. MR. LEHMANN: Ms. Rawson, would you define for the board allodial? MS. MR. MS. RAWSON: What was the word? LEHMANN: Allodial. Is that the correct pronunciation? RAWSON: I think it is. And I can't define it for you. MR. LEHMANN: I'm looking at the assignee's declaration of land patent. And my understanding on Page 2, second paragraph, it defines allodial as free, not holden to any lord or superior, owned without obligation of vassalage or fealty. MS. RAWSON: It's an ancient English word from the feudal system, so that's close enough. MR. LEHMANN: And again, as I continue to read down this document, my understanding of this document, it is a document that will transfers title, in essence, a title transfer. MS. RAWSON: That's correct. MR. LEHMANN: It is not a document that references anything including -- and the handwritten document from President Hayes. There's nothing in either of these documents that gives me to believe that I have any variance from any county Page 56 August 24, 2000 ordinance at all, other than to -- as a superior claim to property ownership. Is that a correct understanding? MS. RAWSON: That's correct, Mr. Lehmann. I've actually done some research on land patents in preparation for today's hearing. A land patent is exactly what you said it is. It's a device conveying land, similar to a deed but issued by the United States government. And the primary function -- and also, most of the cases that I read have to do with land ownership. It gives you exclusive land ownership. So usually you'll find the cases to defeat challenges to property ownership. There are no cases that I could find, and I read them all the way back to the 1800's, that state that land patents provide any immunity from the county regulations. I found a couple of cases that are not exactly on point, but very close, that tell me that land patents are not intended to protect the land from any debts for payments pursuant to the laws. And that was in an 1852 case. There's a more current one, County of Yakima versus Confederated Tribes and Bands of the Yakima Indian Nations, which is a 1992 case, which is United States Supreme Court case in which the Yakima Nation challenged the county's authority to impose and levy taxes on their patented land, and the United States Supreme Court stated that the county was able to impose taxes on the patented reservation lands. So in my opinion a land patent does not give you immunity from county ordinances. And finally, you know, and I know you know this because we talk about this every month, you don't have the authority to decide the validity of a land patent. You only have the authority to decide whether or not there's been a code violation, and if so, try and bring the alleged violator into compliance. That's expressly your job under the federal -- I mean, under the state statute in the county ordinance. But it is my opinion that land patents do not give you immunity. CHAIRMAN FLEGAL: Okay. Any further questions for Mr. Mastro? MR. MASTRO: I have one. I submitted one of these forms. This was a land patent that was approved in La Belle, Florida in 1993. CHAIRMAN FLEGAL: Fine, sir. MR. MASTRO: He was in code violation with a solar panel Page 57 August 24, 2000 that he had put up to operate his pool, which is probably half the size of this room, and they had to drop the code violations against him, under this patent. This is how I find out about all this. When I was on the news, this gentleman called me and steered me to the patent. There are three other cases in La Belle, Florida in the past 10 years that have been approved that had code enforcement problems that were dropped due to the defense of the land patent. So-- CHAIRMAN FLEGAL: I think you need to understand what this board does, okay? Title to your property is not something we can talk about. We can't say yes or no as far as this title and this patent. That's not our purvey. We're only limited to if we feel you've violated something, we can find you in violation and tell you to correct it or you're going to be fined. If you feel that that is a burden to you because of this land patent, then you need to go to a court of law. We can't help you there, okay? Do you understand where we are? MR. MASTRO: Yeah. CHAIRMAN FLEGAL: We're only interested in did you violate something as we understand the ordinances. The title to your property has to go somewhere else. MR. MASTRO: I do want to state that you can purchase a prefabricated fort. You can spend up to $10,000 on it. Or a wooden swing set, you could exceed the expenditure of $770, which code enforcement says I do have to apply for permitting if you exceed that in expenditure. I actually received this wood for free. That's one of the reasons why it was built. MR. LEHMANN: Mr. Mastro, the issue is not cost of the materials. The issue is the fact that we have a structure in a setback zone and a structure without permits. MR. MASTRO: But it doesn't have to be a permitted structure. If I was to move, this fort would come with me. But if I was to move it anywhere else on my property, I would be exceeding easement upon my home structure. MR. LEHMANN: I think if you actually went back to the building department and asked them to give you an official interpretation of the structure from either the building official or SPCCI, you'll find out that they will define this as a permanent structure. And that is what we have to go by. We go by the Page 58 August 24, 2000 codes that are in effect at that time. And as Ms. Rawson had said, the board's only recourse is to look at the issue and find out whether or not we have a code violation. It appears clear to me that although the structure is a gorgeous tree house, I mean, this is great, we actually do have a code violation in the fact that this structure is sitting in the wrong place. So the board's powers are very limited in what we can do. We can look at this and say we have a structure sitting in the wrong location and does it or does it not violate code. That's all that we can do. MR. MASTRO: Believe me, I have tried to get contractors out there. When I tell them it's a tree fort, they're so busy, they don't have time. They actually laugh at me. Trying to get a surveyor out there; as soon as I said it was for a tree fort, they didn't want to touch it. And it wasn't just the matter about the money, it was more humorous to them than a money situation. MR. LEHMANN: What you're asking the board to do is to have a finding of fact on those issues. We can't. We can only have a finding of fact on one very narrow issue; are you or are you not complying with the codes as published in govern -- and in effect at the point in time. MR. MASTRO: Well, the patent issue here is obviously an opinion to the board. The only way that this could be decided is in a court of law. CHAIRMAN FLEGAL: Correct. MR. LEHMANN: Correct. CHAIRMAN FLEGAL: We can't do that. MR. MASTRO: That's what I'll do. MR. LEHMANN: The finding of-- CHAIRMAN FLEGAL: That's what you need to do once we find whatever we're going to find. MR. LEHMANN: The finding of the board may be in fact that you do have a violation that does exists. And your defense legally may be in the future to say well, the codes don't apply to me because of this patent. We can't grant a variance. MR. MASTRO: I understand. MR. LEHMANN: It's outside of our jurisdiction. CHAIRMAN FLEGAL: Thank you, sir. MS. DUSEK: Before we cite, assuming that we will, in Page 59 August 24, 2000 looking at the statement of violations and request for hearing, and 2.1.15, Paragraph I and 2, I'm just wondering if 2 does in fact apply. Maybe I'm not reading it correctly. MR. LEHMANN: I have the same opinion. MS. DUSEK: Okay. This is -- does everyone see where I'm reading? Prohibited uses and structures, Paragraph 2. MR. PONTE: Could I have the reference again, please? MS. DUSEK: 2.1.15, prohibited uses and structures, Paragraph 2. MR. LEHMANN: Page 14 of your packet, the last paragraph. MR. PONTE: Thank you. MR. LEHMANN: My understanding of this section is that this applies to roadside sales and may not be applicable to this particular instance. MS. TAYLOR: I'm looking at how high up this is, and what would happen if a hurricane came through. I mean, that would fly everywhere. MR. MASTRO: I assure you, it's stronger than my house. MS. SAUNDERS: I think you're right in that Section 2 does not apply. So perhaps we ought to remove that from -- MS. RAWSON: Let me ask Ms. Arnold why she cited those particular sections of the zoning ordinance. MS. ARNOLD: 2.1.5 -- 2.1.15, it may be that we don't have the complete section of that paragraph, you know, all of the wording of that paragraph. But I don't have it with me. But that's something -- I mean, what's stated right there is not applicable to this particular case. But I don't know what the balance of that section says, so -- MR. LEHMANN: Ms. Arnold, in the future, I'd recommend if you want the board to approve a code section, please give us the complete section. MS. ARNOLD: It should be the completed section. MR. LEHMANN: I personally cannot approve a violation of this particular code based on the evidence we have. CHAIRMAN FLEGAL: If we have a finding of fact, if the board is uncomfortable, they should eliminate whatever item they're uncomfortable with. I don't have a problem doing that. MS. DUSEK: I make a motion that we do have a violation in the case of the Board of County Commissioners versus Todd and Lisa Mastro, CEB Case No. 2000-029. And the violation is of Page 60 August 24, 2000 Sections 1.5.6 and 2.7.6, Paragraphs I and 5, and 2.1.15, Paragraph I of Ordinance No. 91-102, the Collier County Land Development Code. The violation is a playhouse constructed in a residentially zoned district without first obtaining proper Collier County building permits. MS. RAWSON: Before you vote on that, could I read you the rest of the ordinance? CHAIRMAN FLEGAL: Please. MS. RAWSON: On your ordinance on Page 14 of your packet, you end with road includes all medians in all -- you know, I could read you the rest of that paragraph, but it wouldn't help you. Let me read you the very next section. "The storage, display or sale of any items, services, materials or products, whether finished or unfinished, processed or natural, other than that from within, or as part of the normal operation of a permanent structure authorized by the Collier County Land Development Code, shall only be allowed in accordance with Section" -- which is a different section. So there is another section on 2.1.15 that indicates, you know, that it's illegal to have the storage, display or sale of any items, services, materials or products. So I guess you need to consider whether or not this tree house is the storage, display or sale of any items, service, material or products. MS. DUSEK: I don't know how we could determine that. I would say let's negate that part. MR. LEHMANN: Unfortunately I don't have a Land Development Code book in front of me and I -- CHAIRMAN FLEGAL: I think if the board will -- the violation exists, and whether we include Item 2 of 2.1.15 or not, I think is probably immaterial. He's violated in the other sections. I don't know that we need to get that nitpicky. If he corrects or proceeds to get his exemption, then it's all moot anyway. I think we've done enough by the finding of fact of what we have found him to be in violation of. MS. DUSEK: I agree. CHAIRMAN FLEGAL: Okay. So we have a motion and a second that there in fact is a violation. Any further discussion? All those in favor, signify by saying aye. Any opposed? Page 61 August 24, 2000 (No response.) CHAIRMAN FLEGAL-- Thank you. Now the order of the board. MS. SAUNDERS: I'd make it real simple, that the respondent be required to correct all violations within 15 days or a fine of $50 per day be incurred thereafter, plus costs, court costs. MR. LEHMANN: So we're going to correct all violations? MS. SAUNDERS: Yes, with costs. MR. KINCAID: I think we ought to give him a longer period of time. MR. LEHMANN: We're going to correct all violations within 15 days? MS. SAUNDERS: Yes. MR. LEHMANN: Or the -- CHAIRMAN FLEGAL: Or $50. MS. SAUNDERS: Or $50 per day fine. The reason I don't believe in giving longer is he's had four or five 30-day extensions. I think the land patent's a very clever tactic. He can go to court to find out if that's right or not. It seems to be it's an awfully expensive way to delay what we're trying -- there's a violation there. We don't know if it's a safety violation or not, but we know it's been dragging on for well over a year. We've cooperated extensively. I think there's a limit to how much time you give somebody to do it. CHAIRMAN FLEGAL: Ms. Rawson, question. If we did -- the order of the board was to do something in t5 days or the fine kicks in. If during that period Mr. Mastro decides to go a legal route to investigate his patent to see if that in fact is true, he could come back to the board and request, you know, hey, I've now turned this over and I'm on the court docket and it's going to be who knows how long. Can I have a stay or can you move this out so the fine doesn't kick in, because he's now under the control of a court, which nobody has control over, really; it's time is time. MS. RAWSON: Yes. And I would suggest that he do that. If-- yeah, I'm not sure how soon he can get back on our agenda. You've given him 15 days to get the permit or either remove the structure. If during those 15 days he were to hire an attorney and file some kind of a lawsuit for declaratory judgment or whatever, then maybe he could come back next month and tell Page 62 August 24, 2000 you that he's done that, and then you could -- CHAIRMAN FLEGAL.' Yeah, and even though -- MS. RAWSON: -- hold off. CHAIRMAN FLEGAL: -- the fine may have kicked in, we can at least change the date. MS. RAWSON: Correct. CHAIRMAN FLEGAL: Okay. So we do have a method to assist him, if he needs it. MS. RAWSON: Yes. CHAIRMAN FLEGAL.' Okay. MS. TAYLOR: It's really cute. MS. SAUNDERS: Yeah, it's very nice. CHAIRMAN FLEGAL: So does everyone understand that if we set the 15 days, if that's the pleasure of the board, even though he, Mr. Mastro, couldn't get to us until our next meeting, which would be like 30 days, we could at that time shift the 15 days forward and the fine would not kick in. So we could give him some assistance down the road. MS. DUSEK: I just have a question about that. Let's say in fact he does file a case. Are we going to just keep this as an open end until that case is resolved? CHAIRMAN FLEGAL: Well, the order of the board would be in place. And if I understand how it works, we would -- we could extend the time to get his case resolved. But should it be resolved let's say against him, would -- the fine would then revert back to the original starting date. Am I correct, Ms. Rawson, is that how that works? MS. RAWSON: Well, again, that would be the pleasure of the board. But what you could do is if you find a violation and you give him a time, and then if he doesn't comply, the fines kick in, he comes back and says well, I filed this lawsuit, what you can do is amend your order to change the date that the fines kick in until the decision is rendered on his civil suit. MR. LEHMANN: I would recommend to the board that the 15-day period is too short, simply for the fact that it probably limits the respondent's ability to seek other means of correction, such as obtaining a variance. MS. ARNOLD: Staff's recommendation was to give him two weeks to submit for a variance, if that's the choice he's making, to keep the structure, you know, on the property in its current Page 63 August 24, 2000 location or elsewhere. Because he had indicated that even if he moved it elsewhere, there may be another setback problem with rela -- in relation to the primary structure. So our recommendation was to give him two weeks to submit for a variance and then 15 days after determination of the variance, if it was an approval, to obtain that permit. CHAIRMAN FLEGAL: Okay. I -- if the board does anything, again, we're doing two things, we're asking -- or staff has recommended two things: A variance, and if you get it, then obtain permits. I think what the board should say is maybe stay focused on one thing, come into compliance by "X" date. How he does that is his problem. So obviously 15 days may not be enough time. So if we make it 30 days, however he comes into compliance, I think is what the board's looking for. Whether it's variance, permits, removal, whatever, we don't care, just come into compliance. MS. SAUNDERS: I would argue, though, that 15 days is enough time to apply for the variance, and I would be very receptive next month or next meeting if somebody -- if he came back and said I have applied for a variance to extend or, you know, release some of the fines. If it goes 30 days, we've got a little more stalling tactics. I think it's time to -- CHAIRMAN FLEGAL: Well, I don't know that he could -- even if he gets a variance, he still wouldn't have the permits. So he'd have to do them both at the same time, and I don't know with the variance if you could apply for permits. MR. PONTE: Mr. Chairman, Mr. Mastro has a question. CHAIRMAN FLEGAL: Yes, sir. You have one? MR. PONTE: No, I just wanted to point out that Mr. Mastro has a question for us and I have a question for him. MS. SAUNDERS: Would you come back up? MR. MASTRO: In order to apply for a variance, you have to have your property surveyed. That is the problem. Even 30 days would be a problem to get somebody out there to survey the property. CHAIRMAN FLEGAL: Okay. MR. MASTRO: That's been -- that was the problem from the beginning, was trying to get -- to comply. I had to go through court in certain steps to obtain a contractor to approve my base structure. And then I had to get a surveyor out there to survey Page 64 August 24, 2000 and then apply for a variance. I couldn't get either one of them. I tried for months. I absolutely tried. But every time I said it was over a tree fort, they thought it was humorous. MR. LEHMANN: Mr. Mastro, I think that if you went to a surveyor and said that you had an order from the board to comply within a certain period of time, that would hopefully give you a little bit more weight in persuading him. CHAIRMAN FLEGAL: I'm visualizing what you're telling me as gee, I want to comply but nobody will come to my property. That's unfortunately not our problem, because in essence we're saying that's okay, you can just be in noncompliance forever because nobody will come to your property. That's not what we're here about. We find you in violation, and now we're going to give you a time period and you need to do whatever it takes to get in compliance, period. If that means tearing it down, if that means getting a variance by -- I don't care where you bring a surveyor from, or if it means filing an order in court, whatever. Otherwise, you can see if you just tell us gee, nobody will come to my property, okay, for the next 200 years it just sits there because the man says nobody will come to his property. That's a personal problem. Somewhere there's an appraiser in the United States of America that will come to your property. That's your problem to get him. MR. MASTRO: That has been a problem. That was the problem leading up -- CHAIRMAN FLEGAL: Okay, but you understand where we're coming from. MR. MASTRO: I understand. CHAIRMAN FLEGAL: Okay. MR. MASTRO: And then I ran into this stuff, and it kind of took over my angle. CHAIRMAN FLEGAL: So-- MR. LEHMANN: Mr. Chairman, if we don't have a motion right now -- or do we have a motion for -- MS. DUSEK: Not on the recommendation. CHAIRMAN FLEGAL: Not on a recommendation. No, not on the order of the board. We've found a violation, now we're at the order and we've just been discussing it. So there's not a motion as to the order. Page 65 August 24, 2000 MR. LEHMANN: I would make a motion that we do order the respondent to correct the violations within a 30-day period of time, or a fine of $50 be imposed each day thereafter. MS. DUSEK: I second. CHAIRMAN FLEGAL: Okay. Could we amend it to include costs of-- MR. LEHMANN: Yes, sir, and I apologize for forgetting again. CHAIRMAN FLEGAL: Okay. We have a -- MR. LEHMANN: One of these days you're actually going to let me give a motion and let it stand without amending it. CHAIRMAN FLEGAL: We'll try. We have a motion and a second for the respondent to come into compliance within 30 days, and if not, a fine kicks in of $50 a day until compliance is obtained, plus costs of prosecuting the case. And we have a second. Any questions? All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Okay. Mr. Mastro, do you understand, sir?. MR. MASTRO: Yes, sir. CHAIRMAN FLEGAL: Okay, thank you. MR. MASTRO: Thank you. CHAIRMAN FLEGAL: We'll close our public hearings and we'll go to new business, which is a request for reduction of fines. Case No. 98-024. We have submitted a motion by the Combs for a reduction of fines, and I believe they are represented by Mr. Fridkin. MR. FRIDKIN: Yes, sir. CHAIRMAN FLEGAL: Mr. Fridkin, would you like to speak to the board first, sir? MR. FRIDKIN: If I may, sir. CHAIRMAN FLEGAL: Okay. THE COURT REPORTER: If you'd raise your right hand, I'll swear you in at this time. MR. FRIDKIN: You can say what you're going to say and then -- I'll tell you, I'm not here to give any testimony. I do not have personal knowledge of any of these facts and circumstances. I'm an advocate. CHAIRMAN FLEGAL: It's your motion, correct, sir? Page 66 August 24, 2000 MR. FRIDKIN: Yes, sir. CHAIRMAN FLEGAL: Okay, then you -- tell us why you submitted, that's what we really want to know. MR. FRIDKIN: Thank you, sir. Thank you very much. I have to tell you, I've been struck watching what you all are doing here. It's -- you give a lot of yourselves to come in and spend the time and effort and try to do right by the community. And I had not had the privilege or the time to watch what you all do. It's extraordinary, because actually, you exercise a judicial function. There really aren't, to my knowledge, too many public boards with laypeople that volunteer their time to come in and do what you all do. You make findings about whether people have violated codes, which is something usually judges do. And you do something else that's even more extraordinary, you have the power to later determine whether or not you are going to fine somebody or take their property as a result of them not doing what you've found. We're here today with a spirit of -- what's the saying -- to err is human, to forgive is divine. You made some findings, and I don't know that it's this board, but a board -- in November of 1998, which are not the subject of what we're here asking for relief from. What you found in November of 1998 was that the Combs' property out on Goodland, the so-called Margood property, was in violation of your ordinances. And you set forth something that had to be done. And it follows very closely, Mr. Flegal, to your comment earlier. You were unwilling, and I thought very wisely, from your own personal sense, not to impose new duties on somebody in the form of these exotics where they hadn't been given notice about something on the front end. And that was your personal feeling. And your personal feeling actually mirrors very closely to the requirements of the constitution of the United States. Because there's this concept called due process, and people are supposed to be notified about what happens to them. And I applaud you, your instincts were absolutely on target. Moving that same concept to what we're dealing with today, on the 24th of November of 1998 -- and this is attached to your packet, if you have it. It's Exhibit A. It's the finding of facts and Page 67 August 24, 2000 conclusions of law and order of the board. If you look on the second page in Paragraph 2, it describes specifically what Mr. and Mrs. Combs need to not do in order to avoid a fine. What it says is -- I wish I would have highlighted it in your package. But it reads that if the respondents use the utilities in violation of this order, then, and in that event, the respondents shall be fined $250 per day until compliance is achieved. Now, we're not here questioning any aspect of that. That's the order of this board. But what that did was that put Mr. and Mrs. Combs exactly on notice about what they must not do. This particular finding here is what gives your board the lawful and legal authority to start to impose fines. What this tells you, and it's what's -- it's fancy words called jurisdictional. It is what creates the authority and the power of this board to issue a fine. Without this finding, you can't do it. But you had it, and you did have the authority to issue a fine if the respondents use the utilities in violation of this order. Then and in that event the respondent shall be fined $250 per day. So what happened next? Well, there was a notice of hearing issued on April 5 of 1999, and the notice of hearing appears in your packet as Exhibit B. And it says in the notice that at the public hearing Mr. and Mrs. Combs will be given an opportunity to be heard. It goes on to say that the board will consider the affidavit filed by the Code Enforcement Board official in support of the official's motion for an order imposing fines. I think that's probably standard language of what you sent out, but it's the actual language that these folks got. What were the affidavits that were filed? They're attached also. They're in the file. And they're affidavits from a -- I think it's Code Enforcement Officer Hedrich, who reports that inspections occurred on March 24, on February 3 and on February 23. And those affidavits, by the way, are in your packet as part of Composite Exhibit B. And what it says is that it points out that the order -- it points out correctly that the order said that Mr. and Mrs. Combs were to obtain permits. Then it goes on to say and to immediately cease and desist the use of all utilities on the Page 68 August 24, 2000 subject property. But then when you go on to Paragraph 2 and 3, it says there was an inspection. And then Paragraph 3 says corrective action ordered by the board has not been taken by the respondents. Please recognize that corrective action was not required as part of any authorization to impose a fine. What your order with respect to the fine said is that if they use the utilities in violation of this order, that's not corrective. That's saying don't do it. If they don't use the utilities in violation of the order, then there's no justification for putting forward a fine. That's the clear and ambiguous language of the order. What -- MR. LEHMANN: Mr. Fridkin? MR. FRIDKIN: Yes. MR. LEHMANN: Can I please interrupt you for a second? MR. FRIDKIN: Sure. MR. LEHMANN: I think we're getting a little off task here. If you go back to the order of the board, Item No. I of the board says that the respondents correct the violations of Section 2.7.6, Paragraph I and 2 of Ordinance No. 91-102 in the following manner. MR. FRIDKIN: Correct. MR. LEHMANN: The first statement in there says by obtaining all necessary permits by December 13th, 1998. MR. FRIDKIN: Agree, 100 percent. MR. LEHMANN: The second statement was conditional, upon current use of it. It was in addition to the order of the board. The order for the board originally was to obtain the permits, and secondly, until he had obtained those permits, he was not allowed to use the facilities. It was not as if we had said don't use the facilities and you've complied with the board's order. The board's order was in two parts. The first part, obtain the permits, get yourself in code compliance, and until that happens, you cannot use the facilities. MR. FRIDKIN: I appreciate what you said, Mr. Lehmann, because I'm getting the sense that there are things in this order you wish were there. But in fact -- MR. LEHMANN: Not at all. MR. FRIDKIN: -- again, you're enabling -- under Florida Statutes, Section 120.09, you have no authority to issue a fine except as such fine is authorized under an order where all the Page 69 August 24, 2000 due process requirements were given. And while I'm not conceding, I'm also not arguing that there were any due process violations on November 24th. But what your orders of November 24 clearly and unambiguously said is what I've read. There isn't any other language in there that you can read. It doesn't say that if respondents do not obtain all necessary permits by December 13, 1998 and use the utilities, then and in that event. So we're not getting off task at all. I'm really trying to bring you back to what your order tells you. MR. LEHMANN: Let's read the order in its entirely. MR. FRIDKIN: Sure. MR. LEHMANN: Item No. I of the order, which I've already read, states that the respondents correct the violation of Section 2.7.6, Paragraph I and 5 of Ordinance No. 91-102 of the Collier County Land Development Code in the following manner: By obtaining all necessary permits by December 13, 1998, and to immediately cease and desist the use of all utilities on this property until the permits are obtained. MR. FRIDKIN: Yes, sir. MR. LEHMANN: 2, that the respondents use the -- that if the respondents use the utilities in violation of this order, then and in that event, the respondent shall be fined 250 days (sic) until compliance is achieved. MR. FRIDKIN: Correct. That's exactly what it says. CHAIRMAN FLEGAL: Let me -- I've been waiting for this, because I have a problem with your motion. It's where you talk about no evidence, no this, no sworn testimony. First of all, it's not a hearing. That portion is not a hearing. We're not in a public hearing. Issuing these letters is an administrative function, okay, per Florida Statute, per our ordinance. We -- it says shall not have a hearing, okay? We don't need a hearing. They come to us and they give us this letter and we agree that we impose the fine. It's not a hearing, okay? Everybody seems to be calling these things hearings, and I can't find that anywhere in the statute and in the ordinance. MR. FRIDKIN: I said that-- CHAIRMAN FLEGAL: We don't need any sworn testimony. THE COURT REPORTER: Please repeat what you said, sir. MR. FRIDKIN: I said I only mention it, sir, because it was in Page 70 August 24, 2000 your notice. CHAIRMAN FLEGAL: Okay. But you say no evidence or sworn testimony. Well, it's not required. We have the affidavit. The affidavits state that these people are still in violation, okay? Corrective action as ordered. Corrective action to me was not only get permits, stop using the electricity. Understand? That's corrective action. Stop using electricity, period. That's corrective action. If you stop, you've corrected what I've told you to do. Now, in our minutes -- you talk about the minutes and you refer to them -- MR. FRIDKIN: Yes. CHAIRMAN FLEGAL: -- back there in a couple of places. But what you leave out is on Page 30 of the minutes, we have Ms. Arnold telling us that on these visits, which are shown in the affidavits, Mr. Hedrich found the utilities were being used. Page 30. MR. FRIDKIN: I see that. CHAIRMAN FLEGAL: On February 23rd, March 24th, Investigator Hedrich visited the site and found the utilities were being used. Okay, you're not in compliance. You're using the utilities. Sorry. MR. FRIDKIN: Ms. Arnold was an unsworn, not an officer -- CHAIRMAN FLEGAL: We don't take sworn des -- it's not a hearing. You keeping going to this sworn testimony and all that. MR. FRIDKIN: I'm going to your Exhibit B, sir. I'm sorry, I can only go by what your government entity does. You sent out something called a notice of hearing. I've got it in my hand. It's No. B on your list. CHAIRMAN FLEGAL: I understand it. You also got my letter that I sent that said it was not a hearing, didn't you? Because you reference it. MR. FRIDKIN: I understand that your -- CHAIRMAN FLEGAL: Okay. MR. FRIDKIN: -- letter that came out after the fact says that. But the truth of the matter is if you look at Florida Statutes 120.09, it is a hearing, and there are due process requirements that have to be met. There's no ifs, ands or buts about it. You may not understand it, but it is -- CHAIRMAN FLEGAL: No, I understand it. Page 71 August 24, 2000 MR. FRIDKIN: -- the law. CHAIRMAN FLEGAL: No, I understand it. I don't have a problem with it. My problem is that you're referencing all this stuff. They were using the utilities. And when we imposed a fine, it was up to the point where they stopped using the utilities. MR. FRIDKIN: Mr. Flegal, and I've asked Ms. Arnold to confirm this, I challenge you to find one iota of information in any of your materials that shows the utilities were used. In fact, they were impossible to be used. They had been rendered disabled by Mr. Combs. They weren't -- not only weren't being used, they couldn't be used. And you have nothing, absolutely zero, information in your files to indicate that utilities were being used. Ms. Arnold's unsworn statement was incorrect. But just as importantly, even had she personally seen the use of utilities, which was impossible, because they had been disabled, she saw it on two occasions, not 101. Don't forget, we're dealing with $25,250 that you all imposed. CHAIRMAN FLEGAL: You need to understand something right up front. You're supposed to stop using them back here. MR. FRIDKIN: Yes, sir. CHAIRMAN FLEGAL: Whether you used them one day or one minute down here six months later, you used them. All these days count. Just bear with me. Because you're saying gee, it's one day out of 101, and it doesn't work like that. You were supposed to stop back here, period. Now, nextly, Mr. Combs did come up and talk. It's in the minutes. His words. He wasn't sworn in, we just let him talk what he wanted to say. MR. FRIDKIN: Yes. CHAIRMAN FLEGAL: And that's the way it works. It's not a hearing, he's not required to be here, he's not required to talk, but we let him talk. MR. FRIDKIN: I'm just going by your notice. CHAIRMAN FLEGAL: Okay? Bear with me. During that whole time he talked, he said nothing that by the way, I disconnected the power, by the way, FP&L took the box out, by the way -- he said none of that. I reread it three times to make sure. He just said gee, you know, I'll see what I can do. MR. FRIDKIN: So the record's clear, he said he didn't use it, Page 72 August 24, 2000 you recognized he didn't use it, because you even made a comment indicating that you recognized he didn't use it. You know, here's where I guess I'm coming from. I am wanting to argue -- I hate to argue with you, but I need to argue to you that you've got enabling powers that were exceeded here. I'm hopeful that you will recognize that those enabling powers were exceeded and correct the mistake by eliminating, not reducing. It needs to be eliminated. The finding does not meet the requirements of due process of law, and you have every opportunity to fix it, merely by recognizing. This shouldn't be a vendetta. You're doing a good job trying to do the public's good. There is no evidence, not a scintilla of evidence, that Mr. and Mrs. Combs used the electricity. And in fact they did not. MS. ARNOLD: Can I address that? I did not -- you are correct, I did not witness it. But we do have an affidavit from the investigator and photographs from the investigator on two occasions where he actually witnessed it. We have photographs today, at least on February 3rd, 1999, where the electricity and the utilities are being used. That, as the chairman indicated, was not presented, because we were at the time submitting imposition of fines with an affidavit of noncompliance. The investigator goes out to the site, witnesses what they witness, and they report back and note back in their affidavit whether or not the board's order is being met. And my comments in the minutes that you make reference to state on February 23rd and 24th Investigator Hedrich went out to the site. And we also have an affidavit of noncompliance showing that he was there on the 3rd and the 23rd of February. And the pictures that I have today, which are dated the 3rd of February, show the actual utilities being used. MR. FRIDKIN: Well, that was not in the files. I mean, nor is it in the records. MR. LEHMANN: Excuse me, Mr. Fridkin, let me please ask some questions. Ms. Rawson, am I understanding this correctly in that Mr. Fridkin is saying the first part of our order is invalid because of a technical error?. MS. RAWSON: I don't really think that's what he said. He's -- his argument is that you found that fines should be imposed Page 73 August 24, 2000 because the utilities were used. And what he's saying is that, and I don't disagree with him, that there's no evidence in the record other than Ms. Arnold's statement that the utilities were being used. And so I understand exactly where he's coming from. Ms. Arnold is telling you she didn't have to put that in the record because it wasn't a formal hearing, it was just an imposition of fines. And as you know, we always notice alleged violators before we impose fines. And if they're here, we give them an opportunity to say something. But you're also correct in that it is not a, quote, hearing. So that evidence that Ms. Arnold is giving you today was not presented to you, and it's not in the record. MR. LEHMANN: Is the first part of the order valid? And based on the first part of the order, can the board impose the fine? MS. RAWSON: Well, the board did impose the fine. MR. LEHMANN: I understand that. Do we have any technical error or any error of law where the board would not be allowed to impose a fine based upon the first part only? MS. RAWSON: I can only give you my opinion, because, you know, judge is not written in front of my name. In my opinion, we have a valid order. CHAIRMAN FLEGAL: That's what I thought. MR. LEHMANN: My next question is for you, Mr. Fridkin. Do you at this point in time have a permit for those facilities? MR. FRIDKIN: The facilities no longer exist. MR. LEHMANN: Okay, so you've removed them. I have on Page No. 35 of the minutes from April 22nd, my questioning of Mr. Combs himself, and I'm reading six paragraphs down where it starts: "Mr. Lehmann: Mr. Combs, the order of the board reads in actual two parts for your violation, the resolution of your violation. The first part, and I'm reading from the code -- excuse me, from the order. The first part is to obtain all necessary permits by December 13th. And the second part is to immediately cease and desist use of all utilities. Do you have necessary permits or have necessary permits been received?" Mr. Combs' response: "I've tried my best. I've tried my best. I even hired a licensed contractor to make sure. Tried to get him Page 74 August 24, 2000 to take the permits out. I've tried that three times. They will not give me a permit, for why not." Mr. Lehmann: "Ms. Rawson, please explain to myself and possibly the board and the respondent at this point in time what remedies are available to the respondent, should he choose to appeal the board's decision for the imposition of fines." So we've gone over all of this as far as it is clear in my mind what Mr. Combs needed to do to comply with the board's order. I'm not of the understanding that we're getting out of this imposition of fines due to a technicality on the first part of the order and then an absence of evidence proving that the use didn't exist on the second part. I'm having a hard time accepting that. MR. FRIDKIN: I can appreciate that. Because I think I understand what you're saying. But the reality is your legal document that created your rights -- I'm not saying that it is an invalid order at all. I'm saying that when you applied the order as it is written, it only authorizes the imposition of fines in that limited situation where you find that the utilities were used. And it only authorizes it. And, you know, I mean, you -- the final answer to that question, if my interpretation -- and I recognize it's only my interpretation. If my interpretation is correct, my hope is that the board won't lead us to having to go to the Circuit Court to find out. Because that's -- then the forgiveness will still be divine but there will be some attorney's fees associated with it. And the Administrative Procedures Act will authorize us to seek recovery of those attorney's fees. And we don't want to go there. Because if you think about what your purpose was, if you think about what you were trying to accomplish when you entered the order in November of 1998, you were trying to get a use that you recognize to be not in compliance stopped. And the way you did it, whether you intended or not, it may not have been as artfully drawn as you would have liked, but it read that you're not to use these utilities, and you're going to be fined $250 for each occurrence, if that should happen. And that's what Paragraph 2 says. Number one, he didn't use the facilities. And there's no evidence to support. I can't deal with what Ms. Arnold says now. CHAIRMAN FLEGAL: We've heard this part before, so let me Page 75 August 24, 2000 tell you where we came from when we made in decision, and as far as I'm personally concerned, it stands. We had an investigator present at our non-hearing affidavits that said violations existed. Violations to me are you didn't have the permits and you didn't cease using the utilities. Sorry. We have the two affidavits. That's what this board, as I remember, because I was there, based that on. The investigator said the violations existed. MR. FRIDKIN: He said that things hadn't been corrected. He doesn't say anywhere in his affidavit no -- I mean, just take a look. It's clear, he doesn't says it. I'm not making this up. The language is right there. He said -- CHAIRMAN FLEGAL: Corrective action ordered hasn't been done, correct? MR. FRIDKIN: That's right, he said -- CHAIRMAN FLEGAL: To us the board -- I was here. MR. FRIDKIN: Yes, sir. CHAIRMAN FLEGAL: Corrective action is get the permits, cease the utilities. Two things. Plain English. Plain English. Sorry. You didn't do it. That's what he told us, they have not done it. MR. FRIDKIN: And you were kind enough to explain quite clearly what your thinking was, because you said up there that -- you're talking to Mr. Combs, you're say now up to today you've still remained in partially in noncompliance, because you did quit using utilities. CHAIRMAN FLEGAL: Correct. MR. FRIDKIN: So the county is -- code enforcement department has come to us and says since your order states that he gets charged 250 a day if he doesn't get his permits, which it doesn't say, they're here to say he hasn't got his permits, we want you to exercise and impose the fine. That is what happened, that's what this board knows happened, and it's incorrect. CHAIRMAN FLEGAL: No, we imposed the fine for the utilities for 101 days up till when he went out there. MR. FRIDKIN: But you said that he did quit using the utilities. I mean, that's what the language in your own comment CHAIRMAN FLEGAL: At a certain point he quit using. He Page 76 August 24, 2000 didn't quit using it that day is what we were told. MR. FRIDKIN: I wasn't here. I'm just reading your words. CHAIRMAN FLEGAL: No. And what you're missing is we were told he quit, but not until a certain day. And we only fined him for those days that we were told on this affidavit. MR. FRIDKIN: No, sir, what you did was you fined him for 101 days, $250 a day. From December 13 of 1998 all the way through the -- it was 101 days. It's $25,000 worth of fines -- CHAIRMAN FLEGAL: Right. MR. FRIDKIN: -- and you did it with no one telling him, no one with any knowledge, certainly your officer that was the person in power to do it, telling you that there were -- CHAIRMAN FLEGAL: Well, we're not going to get anywhere, because we have a difference in semantics and that isn't going to wash. MR. FRIDKIN: It's more than semantics. CHAIRMAN FLEGAL: I personally -- I'm not for the motion to reduce the fines. So what's the pleasure of the board? We can sit here and argue for two or three more hours and it won't get us anywhere. MS. DUSEK: I feel that the order of the board is correct, and I agree with my chairman. MR. LEHMANN: I'll second or third that idea. CHAIRMAN FLEGAL: Any other comments? MS. SAUNDERS: I agree also. I think we did have testimony, I trust our Code Enforcement Board officials, and I have their word that they had done the inspections and they had found the utilities being used. So I'm very comfortable with the order staying and the fine not being reduced. CHAIRMAN FLEGAL: I would then make a recommendation, if there's no -- MR. PONTE: I'd just like to have a word here. CHAIRMAN FLEGAL: Okay, George. Sorry. MR. PONTE: I think that the order of the board is poorly worded, and I think that in Section 2, which has been read several times, it states quite clearly, when Randy Merrill wrote the order, that if the respondents use the utilities in violation of this order, then and in that event the respondents will be fined. So I would take an exception to the general feeling of the board. CHAIRMAN FLEGAL: I'm comfortable that we did it based on Page 77 August 24, 2000 the utilities and not the permits. I would offer a motion that we deny the motion for reduction of fines. MS. SAUNDERS: I'll second that. CHAIRMAN FLEGAL: Any further comments? All those in favor, signify by saying aye. MS. TAYLOR: Aye. CHAIRMAN FLEGAL: Aye. MR. LEHMANN: Aye. MS. SAUNDERS: Aye. MS. DUSEK: Aye. CHAIRMAN FLEGAL: Those opposed? MR. PONTE: Nay. MR. KINCAID: Nay. CHAIRMAN FLEGAL: Two nays. The ayes have it. Motion denied. MR. FRIDKIN: Thank you, Mr. Chairman. CHAIRMAN FLEGAL: Thank you, sir. Case No. 99-046. I assume this is another request for reduction of fines. We don't have any material on this, so -- is that what we're doing? MS. ARNOLD: Yes, it is. CHAIRMAN FLEGAL: Okay. MS. ARNOLD: This is a request from the respondent, so you have the mike. CHAIRMAN FLEGAL: Okay, sir. (Speaker was duly sworn.) MR. O'CONNER: I feel a little unlucky to follow that first act. But I'd like to say that you are very professional, a very handsome group of professionals. I'm delighted to be here again. CHAIRMAN FLEGAL: Yes, sir, we remember you. MR. O'CONNER: I'm here to try and get these fees waived. Not reduced but waived. I feel that they were imposed on a situation I had no control over. Basically we complied with the request for a permit as of April the 11th, 12th. Within the request we also had to have it CO'd, which I understand my contractor never picked up on. So we basically, as you put it, dropped the ball. We dropped the ball to the tune of $150 a day. It's now going up to like 20,000. The permit itself and all the problems we had getting it is Page 78 August 24, 2000 this. I've got 24,000 invested in that. And I'd like you to realize that I obviously wouldn't invest that kind of money to flagrantly avoid pulling a CO. After our last -- after my last appearance here, I enrolled the office of Pam Mac'Kie. We had the CO within two days. Two days. Why I didn't do it a year ago, I don't know. It's one of those things. But I was so frustrated with the progress that I was making down at the county I called Mac'Kie's office. They got involved. Within two working days I was CO'd. That's what I should have done a year ago. I wouldn't be here. And that's my story. CHAIRMAN FLEGAL: Michelle, our order imposing fines, when did we do that? MS. ARNOLD: We imposed fines July 5th. CHAIRMAN FLEGAL: In the amount of? MS. ARNOLD: $19,650, plus another $887.70 for operational costs. CHAIRMAN FLEGAL: Have we had a letter of affidavit of compliance yet submitted? MS. ARNOLD: It's on today's agenda. CHAIRMAN FLEGAL: Oh, okay. So -- and that order went to what date? I'm sorry. MS. ARNOLD: The order was from March 1st, 2000 through July 10th, 2000. CHAIRMAN FLEGAL: Okay. And the compliance date that you're going to tell us he came into compliance? MS. ARNOLD: He came into compliance on -- MR. O'CONNER: July the tlth. CHAIRMAN FLEGAL: One additional day? So we're talking another -- MS. ARNOLD: Yeah, he came into compliance on July 10th. That was when the -- CHAIRMAN FLEGAL: So we covered everything that -- MS. ARNOLD: Oh, no, that's not it, I'm sorry. That was the affidavit of noncompliance. I'm sorry. MR. KINCAID: The gentleman says the 11th. MR. O'CONNER: The 11th is when we received the CO. CHAIRMAN FLEGAL: What we need is something that -- the county has to tell us when they actually come out and investigated and find you were in compliance. Page 79 August 24, 2000 MS. ARNOLD: 31st. CHAIRMAN FLEGAL'- compliance till July 31st. July for. Okay. The Certificate of Occupancy was issued July So he didn't come into MS. ARNOLD: Technically. CHAIRMAN FLEGAL: Okay. So we have from July 10th to 31st that we haven't -- MS. ARNOLD: That we haven't done an imposition of fines CHAIRMAN FLEGAL: -- actuated, you know, another letter of imposition of fines. So the fine is higher than the 19 some odd, plus the $800. I just wanted the board to understand what they're dealing with. There's a bigger number than the original 19 something. But he is in compliance now. We will get to that in a minute. So if they're going to consider something, whether it's a waive of all of it, some of it, whatever, they should know those numbers. Anything else you would like to tell us, sir?. CHAIRMAN FLEGAL: No, I pretty much -- that's how I feel about the situation. I think the whole episode's been miscommunicated all the way down the line. But at least we've put it to some kind of conclusion. And I sure you that I haven't tried to circumvent any of the rules or regulations of Collier County. CHAIRMAN FLEGAL: Okay. Thank you, sir. MR. O'CONNER: Thank you. MS. DUSEK: I would agree with the respondent. I can remember most of this case and all that he went through to get where he is today. And so I'm very forgiving of this particular respondent. CHAIRMAN FLEGAL: I understand what you're saying. I think we should keep in mind that through some of his frustration in dealing with people, he also, as we said last time, jokingly or not, dropped the ball. So he's not totally without blame. MS. DUSEK: Agreed. But-- CHAIRMAN FLEGAL: I guess I'm not totally willing to let him walk without something, some small chastisement, maybe. MS. SAUNDERS: I would be very forgiving also. And I think a fair chastisement would be to pay the cost to the county for dropping the ball. I mean, I agree, the county certainly bears Page 80 August 24, 2000 some responsibility in not making it easier. I commend Pam Mac'Kie's office and the fact that you two got together to do that. So I would be very comfortable in releasing all the fines, with the exception of the costs, which I think you said were like 800 and something dollars. MS. ARNOLD: Yeah, it was $877.70. MS. SAUNDERS: I feel it's fair to ask him to pay the $887.70, and I would be in favor of forgiving the rest. MR. PONTE: I would second that, if you put it into a motion. MS. SAUNDERS: So moved. CHAIRMAN FLEGAL: Any other comments? We have -- I'm sorry, sir? MR. LEHMANN: Go ahead. CHAIRMAN FLEGAL: We have a motion and a second to forgive the fines, with the exception of the costs, which are some number. And we have it seconded. Any other comments on it? All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Mr. O'Conner? MR. O'CONNER: Thank you very much. CHAIRMAN FLEGAL: Old business. Mr. Varano. MS. ARNOLD: We actually have -- there's another item on your new business. CHAIRMAN FLEGAL: Oh, I'm sorry, Shad Davis. MS. ARNOLD: This is a request for imposition of fines. The board heard this item on August 24th -- I'm sorry. I'm sorry, the board -- MS. RAWSON: July 27th. MS. ARNOLD: -- yeah, heard the case on July 27th, and at that time they found the respondent in noncompliance, with an order-- this is that particular property -- CHAIRMAN FLEGAL: I remember. MS. ARNOLD: -- you know, that was minimum housing code violations, and you ordered the immediate vacation of the property and securing the property effective August 3rd. CHAIRMAN FLEGAL: Okay, we're dealing with fines from when to when, please? Page 81 August 24, 2000 MS. ARNOLD: The request is from August 3rd, 2000 till today. MS. SAUNDERS: Michelle, is the property still occupied? MS. ARNOLD: The request from the board is to secure the property. The property is still not secured. CHAIRMAN FLEGAL: Okay, so we're dealing -- MS. ARNOLD: With the first part of the order for the -- CHAIRMAN FLEGAL: 2t days, if we include today. I guess I feel uncomfortable including today, since it's not over yet. Close of business yesterday would be reasonable, so from August 3rd through August 23rd is 20 days, and we're dealing with $250 a day, I believe-- MS. ARNOLD: Yes. CHAIRMAN FLEGAL: -- plus costs? MS. ARNOLD: The total for the fine would be $5,000. MR. LEHMANN: Ms. Arnold, do we have the other sections of the board's order complied with? Are we just looking at -- MS. ARNOLD: The electrical part of it, it has been complied with. MR. LEHMANN: So the safety issues are complied with? MS. ARNOLD: I think the safety issues have been complied with. Let me have the investigator that has done the inspections report on the progress of this project. MS. RAWSON: Do you want her sworn in, Mr. Flegal? CHAIRMAN FLEGAL: Yeah, if she's going to -- MS. RAWSON: I know this is not a hearing, but I think it's a good idea to swear here in. CHAIRMAN FLEGAL: Yeah, just in case. (Speaker was duly sworn.} MS. VanPOUCKE: For the record, my name is Cathy VanPoucke. V-A-N-P-O-U-C-K-E. Collier County code enforcement investigator. To date, the -- they have pulled a permit for electrical work. The contractor has pulled the permit. I know that there has been electrical work in there. I've advised them, however, that they do need to obtain an inspection, which has not been done. The building is no longer occupied, but has not been secured. CHAIRMAN FLEGAL: Okay. Michelle, I'm having a little problem here. If I read the order, it says if he doesn't vacate the property and secure the premises within 24 hours, and correct all Page 82 August 24, 2000 the health and safety electrical violations by such and such a date, or reimburse the county for correcting and correct all the violations within 30 days, then there'll be a fine. And the 30 days isn't up till August 27th, and today is August 24th. MS. ARNOLD: Right. CHAIRMAN FLEGAL: His 30-day period isn't up, so how can we impose fines yet? MS. ARNOLD: Because his time period of August 3rd is up. CHAIRMAN FLEGAL: Well, we gave him two things to do. Do one or reimburse the county for correcting it. And the county didn't do that. And then it says and correct all the violations within 30 days. So we can't -- I don't see us doing this. Ms. Rawson, help me here. Am I off base? MS. RAWSON: Did he vacate the premises within 24 hours? MS. VanPOUCKE: Yes, ma'am. MS. RAWSON: Are the health and safety electrical violations corrected? MS. VanPOUCKE: We won't know that until they have an inspection done, which they haven't done. MS. ARNOLD: And part of the problem is that they've already done work, and just they haven't followed through to request the appropriate inspections. They've gotten a permit for it and they just haven't followed through. So to have the county go in and remove the improvements they've done is -- it wouldn't make sense. CHAIRMAN FLEGAL: Okay, I guess the way I'm reading this sentence is this seven days we've given him was correct the health and safety violations within seven days, or reimburse the county for correcting the health and safety violations. Okay, just that section. MS. ARNOLD: Correct. CHAIRMAN FLEGAL: And correct all the other violations within 30 days. Then and in that event, there will be a fine of $250. So to me the fine doesn't start till August 27th. MS. SAUNDERS: But Cliff, the very first part of that says if they do not vacate and secure the -- CHAIRMAN FLEGAL: Yeah, but you have to go on to when the fine kicks in. You can't break it up, I don't think. Am I right, Ms. Rawson? MS. RAWSON: No, I think that's right. They vacated it. We Page 83 August 24, 2000 don't know whether the health and safety concerns have been taken care of because they haven't done an inspection yet. MR. LEHMANN: I think we have a number of problems with this particular order. Part of the problem I think is in the wording. The intent of the order, because I remember it specifically, said secure or vacate said premises. If you don't do that within 24 hours, a fine of $250 kicks in. That's not what the order says. If -- the next part of the order was to correct all the health and safety items within seven days, and if that is not done, then the fine kicks in. Again, that's not what the order says, simply because of the little word "and" in the last sentence. You're using -- you're saying if the respondents do not -- and I'm reading from Item No. 2 now-- CHAIRMAN FLEGAL: Correct. MR. LEHMANN: -- of the board that if the respondents do not vacate and secure the premises within 48 hours -- excuse me, 24 hours, correct all health and safety electrical violations within seven days, August 3rd, 2000, or reimburse the county for correcting those violations, and correct all violations within 30 days. So in other words, we're saying all three of those things have to be done before the actual fine kicks in. I don't -- MS. DUSEK: That's the way I read it also. MS. RAWSON: I agree with you, that's what it says. But I think what we're doing here today is trying to decide whether or not we've taken care of the health and safety violations, and if not, you can impose a fine. And I don't think you have any evidence about that. MR. LEHMANN: That's my concern. I would have thought that at this point in time after seven days would have transpired, the county would have taken some action to either one, send an inspector out there to make sure that the health and safety issues were taken care of, or two, do it themselves. That was the order of the board. CHAIRMAN FLEGAL: Yeah, we gave you the right to do it. MS. ARNOLD: You gave us the right to correct the violations. CHAIRMAN FLEGAL: The health and safety. MR. LEHMANN: The health and safety violations. MS. ARNOLD: And I don't think it would be appropriate for Page 84 August 24, 2000 the county, after somebody has already issued -- been issued a permit, to go in and redo or remove as directed by the order. I mean, the problem that we have with this particular order is that in order to -- for them to comply with that first part, they have to get permits. And the permitting process allows for a certain time period before they have to request a permit. And it wouldn't make sense for the county to go in and do something on top of an open-ended permit. CHAIRMAN FLEGAL: Okay, I -- the order's been issued and we could say -- you know, this all happened a month ago, so today rehashing the way it's written, it's done. Now we have to -- do we impose fines or don't we? And I guess the way I'm looking at it, and Ms. Rawson can tell me if I'm going down the wrong path, I don't see that we can impose the fine today, because August 27th hasn't got here yet. MS. RAWSON: Well, that, and I don't think you have evidence about the health and safety. You know, it's not going to go away. It will come back. And if the health and safety violations are not taken care of, or if the rest of this order is not fulfilled, you can always go back and impose fines. And you can go back to August the 3rd to impose the fines, if the evidence tells you that's what you should do. MS. ARNOLD: Actually, the reason why we're here is for the 24-hour time period of vacating and securing the property. And the property wasn't secured. MR. LEHMANN: I have a problem in voting for a fine of $250 a day for a respondent for failing to lock a door, when he's already vacated it and may have taken enough provisions to make sure -- MS. ARNOLD: Well, that's the board's choice. But we're bringing it back to you and you have the ability to impose it or not impose it. And we're just trying to follow the board's order. And the 24-hour period, it says vacate and secure. And we're reporting to you within that 24-hour period it has not been secured. MS. TAYLOR: I hope you haven't forgotten how bad this was. CHAIRMAN FLEGAL: Oh, no, I remember. MS. TAYLOR: I mean, this was incredible. MR. LEHMANN: This is why I'm very disappointed with this Page 85 August 24, 2000 particular case and this particular order, because we were very specific in the wording of the order and how the fines would kick in and what had to be done. And the order is not written according to the board's vote. We were very specific as to what would happen and when those fines were going to kick in and what was going to happen to actually protect this property. Because as my colleague said, this was a mess. It was not only a mess, but it was a safety hazard. And we were very concerned about somebody getting in there and getting hurt. MS. DUSEK: I think we have to look at the way the order was written, and I'm not comfortable with imposing fines today. I don't want it to come back to haunt us. MR. LEHMANN: I agree with my colleague. I'm very disappointed with how the order was written, but unfortunately I have to agree with my colleague. MS. SAUNDERS: But the only concern I have is based on the fact that it does say to secure the property and the fact that we're being told now that the property is not secure, I am comfortable imposing fines, because the property wasn't secured. And as I recall, the owner was very concerned about he couldn't get these people, these animals, as he called them, out. Well, in that case, by not securing the property, he's causing the same thing again. So I'm not wanting to be as lenient. I think we can go even -- I do agree, the order was not written as specifically as we would like. But I think based on the fact that the order does say that he will have it secured within 24 hours and the fact that we have testimony now that it is not secured, I am then comfortable in putting the fine in. MS. DUSEK: I don't feel -- if you don't mind me just inserting this. I don't feel that we're being lenient. I don't think any of us want to take that route. But by the very last sentence in paragraph one when it says "and by correcting all violations within 30 days," that's connecting it all together, and that's why I feel we can't impose a fine until August 27th at our next meeting. MR. PONTE: But take a look at Paragraph 2. I mean, it does say -- what we're looking at here is the vacating the premises and securing the premises within 24 hours, and it says within seven days. It says August 3. Or -- and that's where the fine is. Page 86 August 24, 2000 So according to the report, I mean, it has not been complied with and the date is August 3. MS. ARNOLD: You're confusing the -- we're here only on the 24-hour period. MR. PONTE: Right, that's what I'm looking at. MS. ARNOLD: The 24-hour period -- MR. PONTE: Paragraph 2. MS. SAUNDERS: Ms. Rawson, are you comfortable with -- MS. ARNOLD: There was a 24-hour period granted for vacating and securing. MR. PONTE: That's right. And he failed to do that. MS. ARNOLD: There was a seven-day period until August 3rd granted for correcting the health -- electrical violations, and then there was a 30-day period granted for all other violations. And if that's incorrect, then I need clarification on what the order CHAIRMAN FLEGAL: Ms. Rawson? MS. RAWSON: Yes. CHAIRMAN FLEGAL: In reading the order, I don't believe, and please correct me, that the way it's written, if it hasn't been secured within 24 hours, the 250 kicks in. Then you go to another section that if he doesn't do it by August 3rd there's another 250. And then if he doesn't do it within 30 days there's another 250. I don't read the order that way. That may have been our intent, but that's not the way I read the order. I read it just 250 if you don't get it done within 30 days, period. But we can't go back and impose 250 for each of those three items. MS. RAWSON: I think the concern is whether or not it's secured. CHAIRMAN FLEGAL: Okay, but I guess what I'm getting at is if we voted today to impose the fine based on security, they come back next month and say oh, the inspection didn't happen, the health and safety, by August 3rd -- MS. RAWSON: I'm not comfortable with your imposing a fine yet. I think I mentioned that earlier. CHAIRMAN FLEGAL: Yeah. Well, I hear my colleagues, and I think they're leaning toward and I think the county is leaning toward that we can do the secure part and fine them, then we can do the health and safety and fine them, then we can do the August 27th and fine them, and that's not the way I read this. Page 87 August 24, 2000 MS. RAWSON: It would be my recommendation that you bring it back next month that it's been inspected and that we know what the status of that property is, but that you don't impose the fines today. You haven't lost the right to impose them next month. You haven't lost the right to go all the way back to August the 3rd to impose them. MS. TAYLOR: We should have-- MR. LEHMANN: Mr. Chairman? MS. TAYLOR: Excuse me, we should have done what I suggested when this came before us, $250 per violation. That would have covered all this and taken care of it. Right? MR. LEHMANN: We do have that. If you read the order on the first page of the -- the first sentence on the second page of the order, it says -- CHAIRMAN FLEGAL.' It says per violation. MR. LEHMANN: -- per violation. CHAIRMAN FLEGAL: The problem is vacating the property and securing it isn't a violation of anything. That's just what we ordered him to do. Having your property with renters in it isn't against the law, I mean, unless you're in the wrong place. So that's not a violation. We have to stick to what the violations are, so don't get -- MS. SAUNDERS: Well, Mr. Chairman -- CHAIRMAN FLEGAL: -- hooked up on that. MS. SAUNDERS: -- I would defer to Ms. Rawson's legal advice. If she feels that we should not incur fines at this point -- CHAIRMAN FLEGAL.' I'm not comfortable doing it. MS. RAWSON: I think let's put it on next month's agenda and get a report and see what the status of that property is. And, you know, probably the inspector would have the pleasure of going back out there. MR. LEHMANN: Do we need that in the form of a motion? CHAIRMAN FLEGAL.' Well, it's a request for imposition of fines from the county, and at this point the board -- I don't know, do we need a motion that we're not going to impose? I mean, I don't have a letter saying we want to impose "X". I mean -- MS. RAWSON: It's a request for the imposition of fines brought to you by the staff. CHAIRMAN FLEGAL: Okay. Yeah, so -- MS. DUSEK.' So do we need a motion to -- Page 88 August 24, 2000 CHAIRMAN FLEGAL: -- we need a motion to do that, or do we just-- MR. LEHMANN: In other words -- CHAIRMAN FLEGAL: -- the board's not going to entertain your request. MR. LEHMANN: Can the board act without a vote? MS. RAWSON: I'd be more comfortable if you -- CHAIRMAN FLEGAL: Okay. MS. RAWSON: -- voted. CHAIRMAN FLEGAL: We have a request from the staff to impose fines on Shad Davis. Do I hear a motion that the board deny the request? MS. DUSEK: I make a motion that we deny the request -- MS. SAUNDERS: Second. MS. DUSEK: -- and put it on the agenda for next month. MR. LEHMANN: I second it. MR. KINCAID: Second. CHAIRMAN FLEGAL: We have a motion with a whole lot of seconds. Any further comments? All those in favor, signify by saying aye. (Unanimous vote of ayes.) CHAIRMAN FLEGAL: Thank you. Okay, we moved Varano to September. Now we're down to filing affidavits of compliance. Oh, that's the good stuff. MS. CRUZ: Could I do these collectively, or would you like me to do -- CHAIRMAN FLEGAL: I have no problem. You have three of them. And if they're all in compliance, just submit them. I mean, I don't know see that we have to do them individually. We can make a motion to accept all the affidavits and get on with it. MS. TAYLOR: May I ask a question real quick? Did Mrs. Horbal come into compliance? She was supposed to have done something within 30 days or the fines kicked in. Do you know what has happened with those illegal trees? MS. CRUZ: Mrs. Horbal? MS. TAYLOR: Yes. MS. CRUZ: I believe she's got till the 27th? MS. ARNOLD: Yeah, she has till the 27th, actually. So she has till -- Page 89 August 24, 2000 MS. CRUZ: August 27th. MS. ARNOLD: So we gave her a full 30 days. But the trees are still there. CHAIRMAN FLEGAL: Let's do the affidavits. That's not on the agenda, so let's move on. It's getting close to when we have to get out of here. MS. CRUZ: Cases No. 2000-14, Board of County Commissioners versus Glen and Susan R. Eisenberg. Case No. 99-46, Board of County Commissioners versus Terence Fitzgerald and Philip O'Conner, and Case No. 2000-020, Board of County Commissioners versus Pantry Shelf of Immokalee, these cases appeared before the board. The board ordered the respondent to take certain corrective action to correct the violations they were found in, and staff would like to file an affidavit of compliance stating that these respondents have taken the corrective actions to comply with the board's order. CHAIRMAN FLEGAL: Okay, I would entertain a motion of the filing of affidavits on the three items, Case 2000-14, 2000-20 and 99-046. MR. LEHMANN: So moved. MS. SAUNDERS: Second. MR. PONTE: Second. CHAIRMAN FLEGAL: We have a motion and a second. THE COURT REPORTER: I heard two seconds at one time. CHAIRMAN FLEGAL: I don't think we stand on ceremonies on that. Pick a name. We have a motion and a second that we accept them. All in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FLEGAL: So moved. We have a foreclosure report that's supposed to be done by the county. MS. ARNOLD: Yeah, and the county attorney is on her way down. MS. RAWSON: She was here earlier. CHAIRMAN FLEGAL: Okay. How about while we're waiting on her to come down, Ms. Rawson would you give us a short -- MS. RAWSON: Yes. CHAIRMAN FLEGAL: -- brief on how we're doing on Southern Page 90 August 24, 2000 Exposures, or what they're doing, or -- MS. RAWSON: I asked the staff to include in your packets this months the petitioner's rely to our response. What happens in an appellate process is one side writes the brief, then the next, the other side, the respondent, gets to file an answer brief. We provided both of those for you, and some of you I think were even so diligent as to read the whole thing. And now I have -- the other side then gets to reply only to our respondent's brief. And that's what's happened here. And that's why I gave it to you, so you have the whole story. What happens next, nothing yet, that I know of. Sooner or later we'll end up in court arguing all these briefs. CHAIRMAN FLEGAL: Okay. MS. RAWSON: But I just wanted you to have the whole picture. CHAIRMAN FLEGAL: Very good. Okay, I believe I saw the county attorney's representative. MS. RAWSON: Ms. Chadwell is here. CHAIRMAN FLEGAL: Chadwell. You're on. MS. CHADWELL: I guess I come to the podium, right? Let me introduce myself. I'm Ellen Chadwell. I'm a new attorney with the county attorney's office. I started on June 12th, I believe. And I've currently been assigned to handling some of the foreclosure actions on these code enforcement liens. I understand that it's been the commitment of our office to report to you on a quarterly basis, which we are more than willing to do. And I guess today we're going to -- I'm just going to report to you where we stand on what I refer to as batch one and batch two of some foreclosure cases that came to my office over the past two months. There were -- Michelle, did you give them a copy of the report? Okay, those 199 -- what I've got referred to here as '99 cases, But we have -- I've been -- I have ordered additional title work on these. The last title commitment that was obtained was back in May of 1999 when they were initially forwarded to our office. So naturally we have to update that so that we can make sure that we name all the proper defendants when we file the foreclosure action. Page 9t August 24, 2000 I've gotten -- that was ordered in July, and I'm still waiting on a couple commitments on some of these cases. I've gone ahead and proceeded to draft the complaints. I've got paralegals else in my office working on locating some addresses and preparing the summonses. And we have also requested that code enforcement go back out and inspect the property and see what the status of that is so that we can make sure our allegations are correct. I believe we had -- we had anticipated that there might be a settlement proposal presented to the board today on the Varano matters, and it looks like we're going to probably -- not probably, but we're going to proceed with drafting the complaint on the '94 case and initiate foreclosure on that as well. There is a case pending in '97 for foreclosure. That was filed by our office by Ms. Vasquez, so that is pending and we will proceed with that. I guess at this point we needed to ask for some reauthorization? Okay. In reviewing these files, it came to my attention that we had some procedural problems, and I advised the code enforcement to rerecord some of these orders imposing fines and liens. As you're aware, the statute requires that there be a three-month period of time within which the violator is allowed to comply with the order, and when that time runs then the board is authorized to authorize my office to proceed with the foreclosures. I've spoken with Jean on this point and we feel that it is -- the board may authorize in advance basically saying that when that three-month period arrives, that the county attorney's office may proceed with the foreclosure action. So at this point in time, there were a couple of these cases that were listed on the status memo, in particular the Tost case, that's Case No. 97-032; the Hill case, which is Case No. 97-033; and the Board of County Commissioners versus Combs case, which is 98-024. We would ask that the -- those orders were recorded on July 24th, 2000. We ask that when the three-month period runs, that our office be authorized to foreclose, to initiate foreclosure proceedings on those. We would also request that as to the cases that are listed down there under August, 2000 cases, we're going to need Page 92 August 24, 2000 advanced authorization or reauthorization on all those cases as well. So if you'll allow me to go through the names and the case numbers, then you'll be able to take formal action on those. CHAIRMAN FLEGAL: Let me ask a question. You made a comment that you had to refile or re -- I'm lost as to why we have to redo something. MS. RAWSON: Because the orders were not all certified. They were recorded promptly, but they weren't certified copies always that were recorded. We are going to cross all of our T's and dot all of our I's so there's no problem with the foreclosure. Ms. Chadwell and I have had discussions about this, and it's prudent that we certify them and rerecord them and let the time run so that we do it right so that when it's foreclosed on, you know, we'll win. CHAIRMAN FLEGAL: Okay. MS. CHADWELL: So these cases are the Board of-- Board of County Commissioners versus Ron and Veronica Barnhart, Case No. 99-030; Board of County Commissioners versus Bruce G. Wood, Case No. 99-031; Board versus Lorraine Burgess, Case No. 99-055; Board versus Tony R. Finger, Case No. 99-035; Board versus Homer and Priscilla Betancourt, that's Case Nos. 99-026, 027 and 028; Board versus Beverly Ann Coleman and others, Case No. 99-056; Board versus James Keiser and Southern Exposure of Naples, Inc., Case No. 98-005; Board versus Keith Stevenson, Case No. 99-023; Board versus Shadow Court Fuels, Inc., Case No. 99-052; Board versus Richard Kniebes and Marsha Townsend, Case No. 99-073; and Board versus Rose Casteel, Case No. 99-049. We would ask that the board order today or authorize our office to commence foreclosure proceedings on October 30th, the year 2000. In the event that the orders have not been complied with by these -- CHAIRMAN FLEGAL: 13 cases, is that what we have? MS. CHADWELL: That was 11, I believe. 11 on this -- of these more recent cases. CHAIRMAN FLEGAL: Okay, Betancourt-- MS. CHADWELL: And then we authorized three, so a total of 13. MS. ARNOLD: Barnhart has three cases. CHAIRMAN FLEGAL: Yeah, Barnhart has three, so -- Page 93 August 24, 2000 MS. CHADWELL: And then the order is one -- CHAIRMAN FLEGAL: Your foreclosure will do all three, right? MS. CHADWELL: Yes. CHAIRMAN FLEGAL.' Okay. And the reauthorization for which three, please? MS. CHADWELL: Tost, Case No. 97-022. CHAIRMAN FLEGAL-' And Hill and then -- MS. CHADWELL: Hill and then Combs. CHAIRMAN FLEGAL: Combs if it gets -- if they don't pay. Okay, I have no problem with that. I would entertain a motion that we authorize the attorneys -- county attorney's office to proceed with these at the time period that they are permitted under the law. MS. DUSEK: I so move. MR. LEHMANN: I second it. MR. PONTE: I second. CHAIRMAN FLEGAL: We have a motion and a second. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FLEGAL.' Okay. Ms. Chadwell, I have a question or two, I guess, or comment, however. Board got a memo last week that -- last month, I'm sorry, at our last hearing between you and Ms. Arnold, about our hearings and orders imposing liens and fines. I understand a lot of your comments. I have some, I guess, comments of my own. One of the things you talk about is the interest in the board to expedite the process is understandable, given the infrequency that we meet. We meet once a month. I don't think that's infrequent. The ordinance states that we should meet when we're requested, and we can only meet when code enforcement brings cases to us and says they need a hearing, or we -- or at least once every two months, so I think we meet quite often. If there were more cases, we'd meet more often. We can't -- we can't really call a meeting. We need the code enforcement to tell us when they want a meeting. I understand your comment about having people come forward, as long as you understand what we're -- we're not against that, it's just that we seem to have been stuck in a rut Page 94 August 24, 2000 that people keep calling these hearings, and I wish we could get away from that, because that bothers me. We're not required to have a hearing or anything. MS. RAWSON: I have one suggestion. You know, we could change the notice and we won't call it a notice of hearing. Would that help? Because I notice that that was one of the arguments. CHAIRMAN FLEGAL: Yeah, I mean, it's-- MS. RAWSON: Let's just call it a notice of imposition of fines and not call it a hearing. CHAIRMAN FLEGAL: That's not even required under the law. I mean, I'm not arguing that we do it to be nice. I'm just saying it's not required. And people have gone along, you used same word, hearing. It's not a hearing. MS. CHADWELL: Well, you're -- CHAIRMAN FLEGAL: We keep being trapped into that word. MS. CHADWELL: -- conducting are yourself as if you're having a hearing, so you either should do it or you shouldn't. CHAIRMAN FLEGAL: No, we close the public hearings and then we just do our administrative procedure. MS. CHADWELL: Well, I think Ms. Rawson has a very commendable idea. MR. LEHMANN: Ms. Chadwick (sic), are you suggesting that we change the way that we conduct business on administrative tasks? MS. CHADWELL: As a litigator, I see -- and I listened to one of the arguments that was made here today, and I don't know how he's going to fair in Circuit Court on that. I think that clearly the board is not required to have a hearing because the statute doesn't require it. I simply -- you know, at this point I'm not advising the board that it should change the way that they conduct themselves. I, to be honest with you, haven't given it an extremely thorough review. I haven't attended your meetings. I think that when notices go out and certain procedures are followed, it gives the indicia of holding a hearing. And I think that sometimes that's problematic. And that point was brought clear today, I thought. So at this point, I -- no, I'm not advising the board to conduct itself any differently, other than my letter was to suggest that notices, I think, at every available opportunity are worthwhile. And I understand the goal of the board to abate. It is to -- Page 95 August 24, 2000 the primary goal is to abate violations. So I think that putting your foot down and letting them know that you are prepared to enforce these to the extent of taking somebody's property, or foreclosing on someone's property, that the notices may bring some benefit in that it may reap some resolution of the problem, short of going to litigation. MR. LEHMANN: My recommendation again, in consideration of that, is I think Jean has a very valid point in changing the notice of hearing. MS. RAWSON: We can change it to the notice of imposition of fines. But, you know, I feel very strongly, and we've had this discussion before, the 14th Amendment due process rights have got to be followed. CHAIRMAN FLEGAL: I don't have a problem. I have a problem when everybody keeps saying we're having a hearing, and that's not what we're doing. It's an administrative procedure. And I want to get away from that word. I think it's trapped the board too many times. And everybody seems to lean on that word, for some reason. The public hearing portion is when we do the cases. After we close the public hearings, it is not a, quote, hearing anymore. We're doing an administrative procedure, which we don't have to have the public at, according to the statute. I understand due process. I'm not against that. But what I want to do is get this board away from being trapped by these people that keep saying well, at the hearing you didn't take his testimony, you didn't do -- we don't have to do that. Please get us away from that. We keep getting trapped in there. And I think that's wrong. It creates more problems than it helps. For this board, anyway. MR. LEHMANN: I think maybe one solution to that would be to change the notice, and also change -- or change the title of the notice, but also change the wording in the notice so that the wording reflects the fact that respondent may not have the opportunity to speak before the board. MS. RAWSON: Well, I'm not comfortable with that, but I'll tell you what we'll do: Ms. Chadwell, Michelle and I will get together and see if we can't redraft a notice. You know, I suggest that the three of us probably get together and have lunch and talk about a few things anyway. MR. LEHMANN: I don't want to compromise due process. Page 96 August 24, 2000 CHAIRMAN FLEGAL: I'm not interested in that either. But at the same time, I want -- I don't want the board to get bogged down in things that it doesn't have to get bogged down into and get trapped in corners where you didn't do this, and you didn't take this under oath. We don't have to do that at that section. So let's not get -- there isn't a court. We can operate, I won't say loosely, but without the rigid parameters of court, I think it needs to be that way. Otherwise, all you'll ever have on this panel is a bunch of lawyers, and that's not the object of the panel -- or the board. Other items. Maybe I'm looking for you to give me some advice here when I -- having people come and we understand that. I'm looking at your last paragraph. It alerts the violator when we send them the notice, and it won't solve anything, it provides the violator additional nature and it become important and assures that he's aware of the imposition of the lien and prospects of foreclosure. (Ms. Dusek exits boardroom.) CHAIRMAN FLEGAL: All that information is given out in advance, plus everything's recorded in the clerk of court. So, I mean, I think there is public notice. Not that I'm against all these letters, but I'm -- MS. CHADWELL: I guess in reviewing -- and please understand that, you know, I've only -- this is a new area for me, and so I can't claim to be thoroughly abreast of everything. But I notice that on some of these hearings, that the violator or the alleged violator is not even in attendance, which is his choice or her choice, because they are getting the notice. But there is, and you see it all the time, in my -- is that sometimes things fall through the crack and people really, they don't understand the nature of what they're receiving in the mail, or they don't understand that this board is serious and that they really are going to foreclose on their property. And if we're going to go in and foreclose on a piece of property and try to recover, you know, and justify that, you know, I would feel more comfortable being able to say to the judge that all these avenues or points of entry were given to this person. They had adequate notice. Because believe me, there will be people who will come into a court of law and whine that they haven't received anything, Page 97 August 24, 2000 they didn't know what was happening to them, et cetera, et cetera. So I think that in the interest of showing that they've had every opportunity to be educated as to the severity of these orders, you know, I don't -- it's a minimal expense and you may actually get a few of these cases resolved. CHAIRMAN FLEGAL: Well, I guess where I'm coming from is when we issue the orders, the orders are filed, as I understand the process, correct? MS. RAWSON: They're recorded. CHAIRMAN FLEGAL: Correct, they're recorded. MS. RAWSON: Yes. CHAIRMAN FLEGAL: And then when we do the imposition of fines, that's recorded. MS. RAWSON: Yes. CHAIRMAN FLEGAL: And all these documents are sent to these people. So, I mean, I personally am hard pressed to say you're not getting any kind of -- I mean, if you don't want to pickup your mail, that's not my problem. And we have people that don't do that. When you send it certified, as soon as they see something certified, I'm not going to the post office. So that doesn't really help us that much. I think being recorded in a public record is great. MS. CHADWELL: One comment, and that is that an action of foreclosure is an equitable action. CHAIRMAN FLEGAL: Right. MS. CHADWELL: And judges do sometimes make interesting decisions -- CHAIRMAN FLEGAL: Yeah, but I'm just saying -- MS. CHADWELL: -- under the interest of fairness. CHAIRMAN FLEGAL: -- I know people that won't go pick up certified mail. I mean, I know that. So we do send it, and I think recording it is what we need to continue to do. And I'm not against sending other letters, but I don't know that that's really going to -- people want to violate the system, they're going to -- those kinds of people will do it. The good people will comply the day they show up here and we give them 30 days to do something. MS. RAWSON: Well, I think what-- CHAIRMAN FLEGAL: Probably 90 percent of them get in compliance real quick. Page 98 August 24, 2000 MS. RAWSON: I think what she's trying to tell you, there's a difference in equity and law. You know, in other words, the black letter of the law is not always followed in an equitable or fairness kind of a proceeding. And what she's saying is that if the judge doesn't think what we did was fair, even though we followed the black letter of the law, you get an interesting decision. I just didn't want -- that was a very good comment she made. I didn't want that to go past you. CHAIRMAN FLEGAL: No, I understood that. MS. CHADWELL: I think you may want to reassess, too, in about six months. I mean, you may want to look and see, you know. I think the whole process needs to be supervised very closely for quite a while, and you may determine that the letters are a complete, you know, waste of time or that you may change other aspects of the process. But I think for right now it's -- you know, it's a small suggestion and it's -- CHAIRMAN FLEGAL: I have no problem with the letters; although whoever is going to draft them, and normally staff does, I think because they're quote, unquote, from this board, I want those letters to at least go to Ms. Rawson and she tell the board that they're acceptable. I don't want letters drafted and just sent out on our behalf. MS. RAWSON: Well, I wouldn't do that. And in addition, I'd like to say that Ms. Arnold and I are delighted that Ms. Chadwell is in our corner. And I think that the three of us will come back to you from time to time with other suggestions about how to expedite the process and how to make the process work better to achieve compliance. CHAIRMAN FLEGAL: Good. And we're glad to have you on the team. We've needed somebody. MS. CHADWELL: Thanks, I'm glad to be here. CHAIRMAN FLEGAL: We're going to look to you to do a lot of stuff. MS. CHADWELL: There's a lot of stuff to be done. CHAIRMAN FLEGAL: Thank you, Ms. Chadwell. Next meeting is September 28th. Hopefully everyone will mark that down. Any other business? MS. ARNOLD: No other business. Page 99 August 24, 2000 CHAIRMAN FLEGAL: Staff? Ms. Rawson? MS. ARNOLD: No. MS. RAWSON: I think that's it. CHAIRMAN FLEGAL: And a motion to adjourn. MS. TAYLOR: So moved. MR. PONTE: Second. CHAIRMAN FLEGAL: We have a motion and a second. those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Thank you kindly. All There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 1:00 p.m. COLLIER COUNTY CODE ENFORCEMENT BOARD CLIFFORD FLEGAL, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC., BY CHERIE' R. LEONE, RPR Page 100