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CEB Minutes 11/30/2000 RNovember 30, 2000 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida, November 30, 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: CHAIRPERSON: Clifford Flegal Roberta Dusek Don W. Kincaid Darrin Phillips George Ponte Rhona Saunders Peter Lehmann Diane Taylor NOT PRESENT: Kathryn Godfrey Lint ALSO PRESENT: Jean Rawson, Attorney, Code Enforcement Board Michelle Arnold, Code Enforcement Director Maria Cruz, Enforcement Official Page1 11/22/00 11:38 FAX 941 403 2345 COMMUNITY DEVELOPMENT * CLERK OF BRD ~00! CODE F~ORC~MENT .BOARD OF COLLI~-R COUNTY, Date: November 30, 2000 at 9:00 o'clock A.M. T-ocation: 2301 E. Tamiami Tr., Naples, Florida, Collier Co%mty Goverrunent Center, Administrative Bldg, 3rd Floor NOTE: A/qY ~ERSON W%{O DECIDF. S TO APPEAL A DECISION OF THIS BOARD WILL N~ED A R~CORD OF T~E PROCEEDINGS PEKTAINING THERETO, AND THEREFORE MAY NEED TO ENSUB~- THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHIC~ RECORD INCLUDES THE TESTIMONY AND E%rIDENC~ UPON WHICM THE APPF2%L IS TO BE BASED. NEITHER COLLIER COUNTY NOR ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. 2. 3. 4. 6m 12. ROLL CALL AppROVAL OF AGENDA ~99ROVAb OF MINUTES October 26, 2000 ~UBLIC. h~ N.GS A. BCC rs. Fraveio, Inc. B. BCC rs. Fravelo, Inc. C. BCC rs. Fravelo, Inc. D. BCC rs. Naples Dial Tone and Telephone E. BCC ws. Florida Metal Master, Inc. NE~ BUSINES. g A. BCC rs. John Danks 0~D.B~S~NESS REPORTS F~lin~ Af~idavi~e o~ C~m~ltance A. BCC rs. Mario D. & Nine=ta Magisfro B. ~CC rs. Mark A. & Su~an M. ~armon C. BCC vs. Gayle N. co,holly Estate COM~ENT~ NEXT ~TING December 28, 2500 ADJOURN CEB NO. 2000-037 CEB No. 2000-038 CEB No. 2000-039 CEB NO. 2000-040 CEB No. 2000-042 CEB No. 2000-031 CEB NO. 2000-022 CEB No. 2000-017 CEB No. 2000-034 CEB No. 2000-032 November 30, 2000 CHAIRMAN FLEGAL: I'll call the meeting to order please. Please take note, any person who decides to appeal a decision of this board will need a record of the proceedings pertaining thereto and, therefore, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Neither Collier County nor the Code Enforcement Board shall be responsible for providing this record. May I have the roll call, please? MS. CRUZ: Good morning, for the record, Maria Cruz. Let the record show that Kathryn Godfrey Lint informed me she was going to be absent due to health reasons. Roberta Dusek? MS. DUSEK: Here. MS. CRUZ: Clifford Flegal? CHAIRMAN 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: Ms. Rhona Saunders? MS. SAUNDERS: Here. MS. CRUZ: Diane Taylor? MS. TAYLOR: Present. MS. CRUZ: Thank you. CHAIRMAN FLEGAL: Approval of our agenda. MS. SAUNDERS: I move for approval of the agenda. CHAIRMAN FLEGAL: We need one change first, please. MS. SAUNDERS: With the change of-- sorry -- the next meeting date to be December 18th. MS. CRUZ: Also there's an addition under reports, item 7, we'd like to add item D, the status of foreclosures. CHAIRMAN FLEGAL: Any other corrections or additions? If not, I would entertain a motion. MS. SAUNDERS: Now I'll move to have the agenda accepted as amended. Page 2 November 30, 2000 MR. LEHMANN: Second. CHAIRMAN FLEGAI.: We have a motion and a second to accept the agenda as changed. All those in concurrence, say aye, please. Any nays? Thank you. Approval of our minutes from October 26th. MS. DUSEK: I make the motion that we accept the minutes. MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and a second to accept our minutes as submitted. All those in favor say aye. Any opposed? Thank you. Move to the public hearing section. Now open to public hearings. Ms. Rawson, I have a question for you. MS. RAWSON: Yes. CHAIRMAN FLEGAL: The first four items are all linked. Since the first three items are the same party, even though they're different case numbers, that's because they're different, I think, lots or plats, can we do them together, but call them -- reference the case numbers individually in doing our order? MS. RAWSON: Yes, you could, because the evidence will be the same on those three. MS. ARNOLD: For the record, Michelle Arnold. I was going to ask that we do that. In fact, is it possible to hear all four cases and then take action against the different parties when we're doing the board's order, because the evidence will also be the same under case number D? MS. RAWSON: That's possible, yes, but we'll be sure we have four separate orders. CHAIRMAN FLEGAL: Okay. First case, BCC versus -- is it Fravelo, is that how you say that? MS. ARNOLD: Fravelo. UNKNOWN SPEAKER: Fravelo. CHAIRMAN FLEGAL: Okay. Sorry for the mispronunciation. We'll do cases 2000-37, 38, 39, and also the Naples Dial Tone, 40. We'll hear all that evidence at one time. MS. CRUZ: Case numbers 2000-037, 2000-038, 2000-039, 2000-040, Board of County Commissioners versus Fravelo, Inc. Page 3 November 30, 2000 and the Board of County Commissioners versus Naples Dial Tone and Telephone. Let the record show that the representative of Fravelo, Inc. is present. A packet was provided to the respondents, to the board and to the clerk of the board. I'd like to request that this packet be admitted into evidence, marked Composite Exhibit A. CHAIRMAN FLEGAL: Ma'am, did you receive this packet? MS. ZAMBON: Yes. CHAIRMAN FLEGAL: Do you have any objections that they submit it to us as evidence? MS. ZAMBON: No, I don't. CHAIRMAN FLEGAL: All right. Thank you. I'd entertain a motion -- THE COURT REPORTER: Excuse me, what's her name? CHAIRMAN FLEGAL: That's Mrs. -- MS. CRUZ: Fravelo, but her name is Paola Zambon. CHAIRMAN FLEGAL: I'd entertain a motion to accept the package as evidence. MR. LEHMANN: So moved. MS. SAUNDERS: Second. CHAIRMAN FLEGAL: Any objection? All those in favor, signify by saying aye. Thank you. MS. CRUZ: The alleged violation before this board is the installation of public telephones on residential zoned properties, not in accordance with Collier County codes. This is a violation of Ordinance Number 91.102, Section 1.5.6, Section 2.1.15, Paragraph 1, and Section 2.2.6.2.1. The violations exist at the following properties: 4901 26th Place Southwest, Naples, Florida, more particularly described as Golden Gate, unit 7, block 248, lot 30. The other location is 4697 24th Place Southwest, Naples Florida, more particularly described as Golden Gate, unit 3, block 81, west half of lot 41 and lot 42, and the other address is 4901 26th Place Southwest, Naples Florida. It's more particularly described as Golden Gate, unit 7, block 248, lot 30. The property -- the owner of record is Fravelo, Inc. The address of record is 4380 27th Court Southwest, number 140, Naples, Florida, also a registered agent of Fravelo, Inc., in care of LA Estates Realty, address 1833 County Road 951, Naples, Page 4 November 30, 2000 Florida. The violation was first observed on September 1st, the year 2000. The notice of violation -- the most current notice of violation was provided to the respondent on October 31st, the year 2000, via personal service, with a corrected date of November 6th, year 2000. A reinspection was done yesterday, November 29th, revealing these violations remaining. At this time I'd like to call investigator James Hoopingarner, please. We need to swear him in. (The speaker was sworn.) MR. HOOPINGARNER: For the record, my name is James Hoopingarner, that's H-O-O-P-I-N-G-A-R-N-E-R. I'm a Collier County code enforcement investigator. As stated we have four cases we're hearing this morning. One of them are actually mine. The other ones was by Investigator Campbell. However, he is out of the area and couldn't be here today, but I did follow through on the investigations with him, we combined our efforts and did them altogether. So I can testify to the locations and that the telephones are there at these locations and also they were still there as of 2:00 p.m. yesterday. All three cases, or four cases, as we'll call -- were opened up September 1st, the year 2000. We were getting complaints from the Golden Gate Civic Association about these phones being commercial pay phones installed upon residential property. Also, the phones, as you can see by the pictures in your packet, if you have them, if not, I have -- I can put on the screen here, they are put on a concrete pad, and therefore they stand by themselves, and the way I understand from planning, which we will have a planner here to explain this more in detail to you, that these are structures, and therefore they have not been permitted and no permits have been applied for them. So they are in violation. We did observe all three pay phones at 4901 26th Place, 4697 24th Place, 2400 50th Terrace. NOV's, or notice of violations were sent to the Fravelo Incorporation (sic). The registered agent for that incorporation (sic) is Mr. Paola Zambon, and his wife is here today in the room with us and her name, I believe is Loredana -- Loredana, yes, ma'am, thank you. Page 5 November 30, 2000 Also the contractor, or the installer of the telephones was sent notice of violations on September 28th, Mr. Thomas Keese, who is a representative or owns the Naples Dial Tone and Telephone. Mr. Keese evidently went into contract with the Fravelo Incorporation, allowing them to put the phones on the property. As I advised, we sent notice of violations to the incorporation (sic) and Mr. Keese that they were in violation, that the phones needed to be removed. We have the green cards or the returns in the packet that they did receive them, and as of this date, they have not been removed. That's basically it. As I say, we have a planner that's going to be here who can explain the technical (sic} of this case. CHAIRMAN FLEGAL: Anybody have any questions? MS. TAYLOR: Well, I do. I would like explained to me how does someone just form a company, go out and put in phones? I mean, you have to get permission from whom to do this sort of thing? MR. HOOPINGARNER: I think just -- MS. TAYLOR: You can't just go put phones somewhere. MR. HOOPINGARNER: Yes, ma'am. I think this will be brought out during the testimony on what took place. Like I say, the contractor who went into agreement with the property -- mind you, he had permission from the property owner to install these phones, but there are some technicalities that have arisen, and I think this will be explain by our planner technician. MS. TAYLOR: That's not my question. My question is, in order to install phones, public phones, you have to have permission from the state or somebody, surely. You can't just decide well, I'm going to have a phone company and go out and put phones on properties, you just can't do that, surely. MR. HOOPINGARNER: At this time, ma'am, I'm sorry, I can't answer that question. MS. DUSEK: I have one question. MR. HOOPINGARNER: Yes, ma'am. MS. DUSEK: If they were to install these phones on another portion of the property where they would not be seen, is that allowed? MR. HOOPINGARNER: I think it may be, but there again, the Page 6 November 30, 2000 representative from the planning department will explain that to you, on what they have to do and can't do with those phones. CHAIRMAN FLEGAL: Any other questions for Mr. Hoopingarner? Thank you, sir. MR. HOOPINGARNER: Thank you. MS. ARNOLD: At this time I'd like to ask Ron Nino, he's the planner for the county's planning department. MR. NINO: Good morning, folks. For the record, my name is Ron Nino. (The speaker was sworn.) MR. NINO: Again, my name is Ron Nino. I'm the current planning manager and my duties primarily include, amongst others, opining us to the intent of the provisions of the land development code. In the matter of these telephones, telephone booths, we opine that a telephone booth is freestanding, clearly accessible to the public at large, is a commercial structure, and therefore not a permitted use in a residential zoning district. However, a telephone may very well be an accessory, an ancillary use in a residential district, much like your washing machines and your recreational amenities, we can construe a telephone, particularly in a rental housing project, as having the same accessory relationship as do those other items that I addressed. Therefore, it was our position that a telephone had to be clearly accessory (sic) and ancillary to the use of the residents of that project, and to meet that objective, it obviously had to be internal to the project. It had -- probably most likely be on the common grounds, i.e., the pool site or the laundry site or the post office that is internal to the project and serves the project. I'd be happy to answer any questions for you. CHAIRMAN FLEGAL: Okay. You say it has to be on the common grounds, if this is an apartment complex, all the grounds are common. MR. NINO: Well, we mean common -- we're referring to the common grounds that fairly serve the residents' recreational and convenience relationships. CHAIRMAN FLEGAL: Well, I mean looking at-- MR. NINO: The strip of land that's along a public street, while Page 7 November 30, 2000 it is common grounds for maintenance purposes, sure, they can walk on it and they can play on it, it is not the central focus of the accessory uses as in the case of a swimming pool. Now, if the swimming pool were along an external street, clearly a pay phone could be within that complex, but not right at the street line. We wouldn't consider a structure right at the street line, which is obviously open and available to the public, as meeting the intent of the accessory rec -- accessory rule, which says the use is primarily for the purposes and use of the residents of the project. CHAIRMAN FLEGAL: So if they relocate these to one of these areas that the county considers, quote, unquote, common, then the phones would be permitted? MR. NINO: Correct. MR. LEHMANN: Mr. Nino, is there a location in the code that you can reference me to that specifically addresses -- MR. NINO: The accessory definition. MR. LEHMANN: And that section would be which? MR. NINO: The definition -- the definition for accessory. Do you have the code with you? MS. ARNOLD: No, we don't. MR. NINO: Section 6, it would be very early, because it's an A, alphabetically, so it would be one of the first definitions in 63. MR. LEHMANN: Is that in our packet? MR. NINO: Yes, if you have a land development code. MS. ARNOLD: No, it's not. MR. LEHMANN: You're telling me that we do have a section in the land development code that specifically defines -- MR. NINO: A section in the land development code that specifically defines the word accessory and ancillary. MR. LEHMANN: Okay. CHAIRMAN FLEGAL: And one of my questions was, and you've covered it before I could ask it, but the accessory uses are permitted under 2.2.6.2.2, uses and structures that are accessory and incidental to the uses permitted. MR. NINO: Correct. CHAIRMAN FLEGAL: So if it was, quote, unquote, on this common area, it would be accepted as an accessory? MR. NINO: Yes, it would. MS. SAUNDERS: If that were the case, sir, would it need a Page 8 November 30, 2000 permit if it was within the common area, if let's say it was adjacent to a laundry room or something? MR. NINO: It would have to be displayed -- it would have to be displayed on the site development plan, because all those accessory uses are subject to -- as is the rental complex or the condominium complex, subject to a site development plan. So the structure would have to be identified on the site development plan, and after that, I would assume there would be a requirement for building permits, since there is an electrical connection there, I assume, and there may even be some kind of concrete support base, and to that extent, it would be subject to the obtaining of a building permit. CHAIRMAN FLEGAL: Let me ask you another question. Let's assume, since I don't know anything about this complex, let's assume they don't have like a pool area or a laundry room area, if these phones were -- I'm trying to think -- say located between two buildings that weren't accessible, quote, unquote, at a public road -- I mean, any public person can drive into a rental complex, so it's tough to say that's not accessible to the public. You can drive into any apartment complex, you don't have to live there, they're not secure. So the public can drive in anywhere. What I'm looking for is if they move them, not knowing where they are in relation to the complex, to the end of a -- or by a sidewalk between a couple of buildings if there's no other place to put them, is that acceptable? MR. NINO: It would have to be clearly designed and placed in such a manner that it is apparent that the primary user would be the tenants of the project. CHAIRMAN FLEGAL: Okay. I'm looking for a way to, you know, maybe assist these, rather than get them from the outskirts, if they move them between buildings, at the sidewalk or where the parking lot is, again not having a layout of how this thing is laid out. MR. NINO: That's obviously a subjective determination, one that rests administratively with our department. CHAIRMAN FLEGAL: Okay. Thank you. MR. PHILLIPS: How close to the roads are these phones and what -- MR. NINO: I don't know anything about the geographical location of the issue that is before you of the telephone Page 9 November 30, 2000 placement. MS. ARNOLD: We can have the investigator correct me if I'm wrong, but I believe that they're directly adjacent to the sidewalk; is that correct? MR. HOOPINGARNER: Right, adjacent to the right of way. MS. SAUNDERS: Sir, are you familiar with the company, Naples Dial Tone and Telephone, and do they normally apply for permits to put in their phones or have they ever, if you know? MR. NINO: No, I'm not familiar with them, nor do I know if they've ever made an application to our department to indicate on a site development plan in conjunction with a multi-family project, or condominium project, a request to install telephones. MS. SAUNDERS: But that would be the requirement, if I'm understanding you, whether they put it in a common area that was remote from the public or not, the company's installers or the contractor would need to come in and get a permit in order to do that? MR. NINO: They would need to seek a plan approval to do that. We don't issue permits. We're the planning section. We only deal with the administration of the zoning ordinance. MS. SAUNDERS: Right. MR. NINO: But we're a prerequisite step to obtaining a building permit, and that prerequisite step is that you seek our approval to a site plan that identifies the location of all buildings and structures. MS. SAUNDERS: Okay. MR. LEHMANN: And again, you're defining a freestanding telephone as a building or a structure? MR. NINO: Yes. CHAIRMAN FLEGAL: Is that also in your definitions? MR. NINO: I believe it is. MR. LEHMANN: Again, by what grounds are you applying that definition to a telephone? MR. NINO: The definition defines a structure as any object that exceeds the height of 30 inches above grade. MR. LEHMANN: And that is in the code? MR. NINO: Yes. MS. SAUNDERS: If a telephone is installed against a wall, you know, not with concrete, but just one of these coin operated telephones, does that still require going through your department Page 10 November 30, 2000 and the rest of it? MR. NINO: Yes, they'd have to iljustrate that on a site development plan. They have to iljustrate all infrastructure, and a telephone is a type of infrastructure. MR. LEHMANN: If I want to install a telephone in any location, would I have to go through a plan approval, a permitting approval process? MR. NINO: If it's con]unction -- if it's in con]unction with a multi-family residential project and it's not -- not a telephone that's in your suite, in the rooms that you occupy, then it is a piece of infrastructure that would have to be labeled. MR. LEHMANN: So if I had an existing apartment complex or an existing condominium, hotel, motel or whatever, and I wanted to install a telephone near the pool or around by the street or anywhere that's a freestanding structure similar to this, I would need a permitting process -- MR. NINO: You would need an approval process, and subsequently a permitting process. MS. SAUNDERS: If it were installed inside, say inside a laundry room, would it need -- MR. NINO: No. MS. SAUNDERS: So it's what's exterior? MR. NINO: It's when it becomes an object -- when it becomes a functioning object unto its own, independent of any other facility. Clearly, if it was a phone on a wall in the laundry room, we wouldn't -- there's no way you're going to be able to show that on a site development plan and it would not require our approval. MR. LEHMANN: Basically, you're saying anytime a telephone is installed, it falls into the definition of an accessory structure -- MR. NINO: Correct. MR. LEHMANN: -- and you need plan approval? Thank you. CHAIRMAN FLEGAL: Any further questions? MR. PHILLIPS: How about a vending machine? Say I want to put a vending machine outside in a common area where there was really, you know, nothing else, no laundry room, no swimming pool, would a permit and this planning process be required to put a vending machine in? MR. NINO: Yes, provided the vending machine isn't selling Page 11 November 30, 2000 newspapers, because that's a whole different issue. MR. KINCAID: You say is not for selling newspapers? MR. NINO: Not for selling newspapers, because we can't control that issue. CHAIRMAN FLEGAL: Any further questions for Mr. Nino? MR. PONTE: I think I have a question, Mr. Chairman, for the inspector. CHAIRMAN FLEGAL: Mr. Hoopingarner? MR. PONTE: Inspector, when you've been out to the site, have you toured the area, have you seen coin operated machines, laundry machines or other such items that would tie in with this, move the phone to a coin operated laundry area, for example? MR. HOOPINGARNER: No, sir. All three locations are small triplexes or quadplexes. They have no pools, they have no laundry facilities. If I may, I have some pictures here that maybe iljustrate a little bit better where these phone are located, and you can see that the intent of these phones were not put there for the residents of the building. They are stuck right out there by the roads, by the right of ways. In other words, they're intended to draw business from the street to come on to this property to use these phones. If I may. CHAIRMAN FLEGAL: Sure. MR. PONTE: Also, what would you estimate the population is of this complex? Is it 50 families, 20, 30? MR. HOOPINGARNER: No, I'm talking triplexes, quadplexes, where there is only, say four families to the building, I believe that's right. They're small. They're not big condominiums. This is located at 2400 50th Terrace. If it shows up there right, right in the background, you can see the street here. This is 24th Avenue. Right over here to the left is 50th Terrace. Now, this is right on the very edge of the parking lot for this unit. The main building sits way back in here off the picture, roughly 30 to 35 feet maybe. So, you know, it's not up by the building. It's not intended for the use of the residents. It's strictly put right out here right in the corners of the right of way. It's not in the right of way, but it's right on the very edge, and it's intended for the use of people passing by on the street, and they're basically all the same. This is at 4697 24th Place. Again, this picture is taken -- this Page 12 November 30, 2000 is the sidewalk right here. This building right back here is actually 4697 24th Place. You can see that the phone isn't even in their front parking lot or nearby, where it supposedly would be used by the residents, and right across the street is a Mobil Station and McDonald's in Golden Gate City, so it was put there for access for these people to use the phone, a commercial phone. The same thing with this one. The road right here in front, this is the street right here, 26th Place. Back here is the building. As you can see, the phone could have been installed in between the buildings if it was intended for the use of the residents, which it's not. It's placed right out -- next to the right of way by the street, so it enhances it for all street people to use it. CHAIRMAN FLEGAL: That answered my questions. MS. DUSEK: I want to be clear. I think I understand that if they are to have these phone booths, they have to be put in common areas, such as a pool area. They don't have that. MR. HOOPINGARNER: No. MS. DUSEK: So is there a common area where it would be permitted for them to put these phone booths? MR. HOOPINGARNER: Possibly in this unit here, it could be located back in between the buildings. You know, that would be in what we call a common area, because there's no laundry room, there's no pool, there's no mailboxes, that would be considered a common area again. There again, planning would have to advise to that, but these other two pictures I showed you, they're basically at, you know, common areas. It's a large building that fronts the street. MS. TAYLOR: Well, if they are saying this is for these complexes, don't these people have phones in their apartments? MR. HOOPINGARNER: This, I don't know. Maybe the property owner can enlighten us on that. MS. TAYLOR: Most everybody has a telephone? MR. HOOPINGARNER: Most everybody, yes, ma'am. MS. TAYLOR: So obviously this is for street use then? MR. HOOPINGARNER: It was placed there for commercial. MS. TAYLOR: Yeah. CHAIRMAN FLEGAL: I think it's a question we'd have to ask the telephone contractor if he's here. Any other questions for Mr. Page 13 November 30, 2000 Hoopingarner? Thank you, sir. MR. HOOPINGARNER: Thank you. CHAIRMAN FLEGAL: Ma'am, would you like to -- MS. ZAMBON: Do I have to -- CHAIRMAN FLEGAL: Yes, ma'am, you need to come -- if you want to talk to us. We won't bite, I promise. She'll be fine. Swear her in please. (The speaker was sworn.) MS. ZAMBON: Loredana, L-O-R-E-D-A-N-A, the last name is Zambon, Z-A-M-B-O-N. Good morning. First of all, I'd like to know if somebody from the company is here. CHAIRMAN FLEGAL: The telephone company? MS. ZAMBON: The telephone company. MS. CRUZ: Apparently, he's not. CHAIRMAN FLEGAL: Evidently not. MS. ZAMBON: No. You see, the problem is they approached us to get those pay phones, they are for public use, yes, but I mean I thought they would get the respective permission and do, you know, according to the law. So I really cannot tell you anything. It was up to them, because he's the one -- he doesn't want to take the phones down, and they have a contract that says that it's their equipment, so I cannot take it down myself without getting into problems. So I don't know what to tell you, because with me (sic), I can take them down any day, any time, whatever. CHAIRMAN FLEGAL: But when he approached you, from the very beginning, the phones were intended for use by the general public? MS. ZAMBON: Yes, public use, yes, yes. No problem with that. CHAIRMAN FLEGAL: That's fine. MS. ZAMBON: That was the idea, but I thought he would get the permission or whatever before installing them. MR. PONTE: Miss Zambon, do you share in the profits from the company? MS. ZAMBON: Oh, yes, they offered us five percent commission. That's what they were going to give us. MS. CRUZ: I believe the contract is in your packet. Page 14 November 30, 2000 MR. LEHMANN: Yes, it is. The contract specifically states 20 percent. MS. SAUNDERS: Twenty percent after you pay the cost. MS. ZAMBON: Which I have not seen any money, you know, no nothing. MS. SAUNDERS: Have you asked them -- have you asked them to take the phones down since this started? MS. ZAMBON: Yes, but he won't, because according to him he said that he stopped by the office, he spoke to somebody, but just on a personal basis -- I'm sorry, my English. CHAIRMAN FLEGAL: You're fine, no problems. MS. ZAMBON: I'm a little bit nervous. He said that he was planning on putting pay phones and the person he talked to said there was no problem, but then he didn't go ahead and get written permission, so I really don't understand, you know, what happened. MS. SAUNDERS: But since you got served with the notice from code enforcement, have you been in touch with him to say -- MS. ZAMBON: Yes, but he won't -- he won't take it down. MS. SAUNDERS: Did you put that request in writing to him by any chance? MS. ZAMBON: No, because I was hoping he would come here first and then I will do that, because that's what I'm planning on doing. I'm going to write him that if he doesn't take them down, I will, and then -- I don't know if he's going to sue me. You are witnesses, right? MS. SAUNDERS: How long is your contract for, do you know? MS. ZAMBON: Three years, I think it says, yes. As I tell you, I have no problem with taking them down. It's just this guy. Since I have the contract signed, that's why I haven't done anything. CHAIRMAN FLEGAL: Okay. That's fine. MS. ZAMBON: That's why I don't want to get in touch with a lawyer either. You know what I mean? I mean, why do I have to go through lawyers? MS. SAUNDERS: Doesn't sound to me like you've done anything wrong. CHAIRMAN FLEGAL: Any other questions for Ms. Zambon? MR. PHILLIPS: You haven't notified the telephone company to remove the telephones? Page 15 November 30, 2000 MS. ZAMBON-' Not in writing, because he's got your papers. I think that would be more than enough for me, I mean, or maybe I should. I'm going to -- I mean, I'm going to take action after this hearing, because I was hoping to see him here because I called him, but what can I tell you. I'm more pissed off than you are. CHAIRMAN FLEGAL: Any other questions? Thank you, ma'am. Ms. Rawson, I have a question for you. MS. RAWSON: Yes. CHAIRMAN FLEGAL'. The -- Naples Dial Tone isn't here, they have been served. We don't have a problem proceeding since they didn't show up, as I would understand it, am I correct? MS. RAWSON: As long as they had notice, we don't have a problem proceeding. CHAIRMAN FLEGAL: My next question to you is, if the board would be so inclined, and if they do find that there is an infraction, and we order these phones removed, we have that power, am I correct? MS. RAWSON: Yes, you do, because obviously this respondent can't do it. An interesting thing about that contract, it's a basic premise of contract law that if you enter into a contract that is for an illegal purpose, it's void. CHAIRMAN FLEGAL: Correct. MS. RAWSON: And if he didn't have the permits, and he has placed a structure in a residential area that's not permitted, then that is a void contract. CHAIRMAN FLEGAL: Okay. MS. DUSEK: Is that considered an illegal purpose? MS. RAWSON: Yes, if it's a violation of the county ordinance it is. So that might help this respondent to know that. MS. SAUNDERS: Ms. Rawson, in that case would it be better if the county took down the phones with the permission of the property owner or do we direct -- CHAIRMAN FLEGAL: I wouldn't direct the county to do anything. I would direct Naples Dial Tone to remove the phones, if that's what the board so orders, and give them X days to do that. If they don't, then they would be in violation and we could put a stiff penalty on that. MS. RAWSON: I'd rather see you order the phone company to get their telephones back. Page 16 November 30, 2000 CHAIRMAN FLEGAL: I would not like the possible liability if we had the county remove a structure. MR. LEHMANN: Do we have the right, Ms. Rawson, to impose a penalty and fines against Naples Dial Tone, even though they are not the owner of the property? MS. RAWSON: Well, under their case you do. CHAIRMAN FLEGAL'. They more or less, have they not, like leased a small space where the phone is? MS. RAWSON: But they weren't -- well, they were. All four of these cases are being heard together because the fourth case against them has to do with these three, so they're really all interrelated cases, and I think that under the last case number, which is the Naples Dial Tone and Telephone, 2000-40, you can invoke the fines. That would be the better way to do it. MR. LEHMANN: You said we do have the right to impose fines against Naples Dial Tone even though they're not the owner of the property? MS. RAWSON: Under their case number. MR. LEHMANN: That's correct. MS. RAWSON: In other words, under these first three case numbers, you can direct Naples Dial Tone to remove the telephones, but you can't fine them under those case numbers because they're not the landowner. You can fine them under their case number, however. CHAIRMAN FLEGAL: You treat them the same as you would as somebody who's renting a piece of property. They don't own the property, they're renting, and we go for the property owner and the renter. MS. RAWSON: Correct. MR. LEHMANN: Would it be better for the county's position -- if the board so chose to in essence dismiss charges against the first three charges, would it be actually better to find a notice of violation or find a violation did occur and not impose a penalty on those three cases, or would it be better to dismiss those three cases and just find a violation for the last case? MS. RAWSON: I wouldn't like to see you dismiss those cases, because there is in fact a violation that is occurring on those pieces of property. MR. LEHMANN: Right. CHAIRMAN FLEGAL.' Which are locked into the 4th case? Page 17 November 30, 2000 MS. RAWSON: Correct. CHAIRMAN FLEGAL: It's not -- you don't necessarily, because it's beyond the first three cases' ability to remove something, you don't necessarily have to fine them to remove it, you can find that they were guilty of an infraction, and just forgo any type of fine and then the fining part would go to the person who actually is causing the infraction to incur; would that be correct? MS. RAWSON: You certainly can do that. MS. ARNOLD: Can I ask a question for clarification? Is it the position that we cannot request the property owner to remove it after a certain number of days, because it's -- the property belongs to someone else, is that the position? MS. RAWSON: Well, it's not her property, clearly. In addition to which, she didn't place it there, clearly. My guess is that the telephone company would like to probably have the telephones back and that you're probably going to be more successful in achieving compliance by ordering the telephone company to remove them, and if the telephone company doesn't remove them and we're back here, we'll have to get the county to remove them, I guess. MR. LEHMANN: This is the kind of case where we have a renter and an owner, and I certainly would like to have the backup assurance that if the renter does not resolve the problem, that the owner then is empowered to resolve the problem, and possibly if you say the contract is null and void -- MS. RAWSON: It is. MR. LEHMANN: Once we find a violation has occurred, then the owner would no longer be bind (sic) by that contract and prevented from removing the property. MS. RAWSON: That's correct. MS. ARNOLD: That was the question, and that was the reason for staff's recommendations, because if we find that there is a violation, it's located on real property that belongs to the respondent, and hope that she could request somebody else to remove them, and, of course, return the actual structures to Dial Tone if they choose not to remove it within the time frame specified. CHAIRMAN FLEGAL: We don't place the property owner in jeopardy if we order them to remove somebody else's property from their property, do we? Page 18 November 30, 2000 MS. RAWSON.' Well, you know, I'd like to see you order Naples Dial Tone to remove it first, and if they don't remove it, then the property owner removes it. MS. DUSEK: Do we include that today? I think what we're all struggling with is yes, we ask the telephone company to remove it, but prior to that, we're going to be reviewing the three cases of the property owner. In the event the telephone company doesn't remove it and we have said to the property owner that we're not fining you, can we come back later and readdress -- MS. RAWSON: You can't readdress the fine against the property owner. You can make the fine start running as to the telephone company if they don't remove it within a certain period of time. MS. DUSEK: But then how do you lien them if they don't comply? MS. RAWSON: Well, under the fourth case you can lien any property that they own. CHAIRMAN FLEGAI.: You would take the phones? MS. RAWSON: Correct. MS. SAUNDERS: Or any other assets? CHAIRMAN FLEGAL: Or any other property that they have -- MS. RAWSON: And I imagine they have a few other phones around the county. CHAIRMAN FLEGAL: So you can lien the corporation. MR. LEHMANN: The -- quick question. If this board so chooses to do so, could they find the primary responsibility for Dial Tone for the removal, initiate a finding of fact and a fine process to have a time period, and following that time period, if no action was taken, issue secondary responsibility to the property owner -- MS. RAWSON: Yes. MR. LEHMANN: -- with a fine to kick in at that date, at a later date, and then extend that to a period of time until it gets resolved? MS. RAWSON: Correct. MR. LEHMANN: If the phones are removed at any point in time, those fines -- the dates of those fines terminate, in essence. Now, if the board were to do that, does that place the property owner in any jeopardy with this contract or any -- Page 19 November 30, 2000 anything relating to removing these phones if the property owner is required to do so? MS. RAWSON'. In my opinion no, because that's a void contract because it's for an illegal purpose. MR. LEHMANN: Thank you. CHAIRMAN FLEGAL: All right. Okay. What we first must do is, the first three cases, 2000-37, 38 and 39, we must have a finding of fact that there in fact is a violation, and let's do that part first, and then I'll give you some instructions on how I think you should do an order based on what I've heard everybody talk about, because we have to mix one with the other and we're doing -- you have to do one first before you can get to the one that has the real action to do on it. So let's first have a finding of fact on those first three cases. MS. DUSEK: Can we make a finding of fact in one statement, but citing the different case numbers? CHAIRMAN FLEGAL: Yes. MS. RAWSON: Yes. MS. DUSEK: Then I make a motion that there is a violation in the Board of County Commissioners versus Fravelo, Incorporated, case number 2000-37, case number 2000-038 -- that's 037 also, and case number 2000-039, and the violation of sections is point -- 1.5.6, 2.1.15, number 1, and 2.2.6.2.1 of Ordinance Number 91-102, the Collier County Land Development Code. Description of the violation, installation of public phones on residential zoned properties not in accordance with Collier County codes. MS. SAUNDERS: I'll second that motion. CHAIRMAN FLEGAL: We have a motion and a second that there in fact is a violation on the first three cases. Any discussion? All those in favor, signify by saying aye. Any opposed? Thank you. Now, we found that there is in fact a violation. When you're considering the order of the board, I think you must in your mind remember that we're going to possibly order the actual owner of the structures to remove them and give them so much time. So in this case you must add that time to these first three cases to give this owner some time. Page 20 November 30, 2000 Example, if we're going to give the phone company 15 days, then if you want to give this owner 15 days, you really then must give them 30, because they need the first 15 days for the phone company to react. So keep that in mind when you're trying to do an order. MR. LEHMANN: Mr. Chairman, just to simplify it, can we postpone the order of the board for these three cases and proceed to the finding of fact and the order of the fourth case and then come back to these cases? MS. TAYLOR: I don't think that's a good idea. I think we just need to do it. CHAIRMAN FLEGAL.' I personally don't -- I think if we all have in our mind, and I suspect, based on what I've heard, what's going to happen, I think we already know what's going to happen in the fourth case. So I think if we're reasonable about picking a date now and make it -- in my estimation, I would say a minimum of 30, maybe 45 days on these three cases would be sufficient time, it would be safe, then if you want to attach any type of fine after that, i.e., 30 or 45 day period, do it. That would give sufficient time to process the fourth case. MR. PONTE: Mr. Chairman, are you suggesting putting a fine against the property owner, that is Fravelo, Inc., for these cases, or are we saying we're finding of fact that there is a violation, then I need guidance as to how we don't impose some kind of penalty, seeing we found against. CHAIRMAN FLEGAL: What I'm proposing, if the board is interested, in these three cases, you give a long time period for them to get the problem resolved, because hopefully somebody else is going to resolve the problem for them. MR. PONTE: I understand. CHAIRMAN FLEGAL: At the same time, just in case, on the outside chance something doesn't occur -- MR. PONTE: Yes. CHAIRMAN FLEGAL: -- I think it is prudent that you attach a fine also to kick in. So that should the phone company not do anything, should the owner choose not to do anything, there is a fine rather than oh, we didn't do anything, because as you all know, if you don't impose a fine, you cannot come back later and impose a fine. You must do it. You can always reduce a fine, but you can't impose a fine at a later date. So that was my only Page 21 November 30, 2000 suggestion, that we have a long time period and a fine associated at the end of that long time period, just in this case. MR. PONTE: I understand. MS. DUSEK: I'd like to make a motion that we in these three cases, as cited earlier, that we request the -- or ask the homeowner to remove the telephone and the stand within 45 days or a fine of $50 per day will be imposed, and that $50 would be per telephone. MS. SAUNDERS: I think that's fair. That gives her an extra 30 days if she needs it. Hopefully, she won't need it. MR. LEHMANN: So you're basically referencing each case as 45 days, $50, period? MS. DUSEK: Yes. MR. LEHMANN: Since there are three different cases, three phones? MS. DUSEK: Yes. MS. TAYLOR: I don't like the word ask. From this board, it needs to be ordered, not asked. MR. LEHMANN: The order of the board will say ordered. CHAIRMAN FLEGAL: We understand. Thank you. MR. LEHMANN: I would second my colleague's motion. CHAIRMAN FLEGAL: So everybody understands, it's a 45 day period on each of the first three cases with a $50 fine on each of the first three cases. MS. ARNOLD: Fifty dollars fine per day or -- CHAIRMAN FLEGAL: It's a fine per day after the 45 days. MR. PONTE: Per phone? CHAIRMAN FLEGAL: Well, there's one phone per -- MR. KINCAID: Per violation. CHAIRMAN FLEGAL: Everybody on board? We have a motion, do we have a second? MR. LEHMANN: Yes. CHAIRMAN FLEGAL-' We have a second from Mr. Lehmann. Any further discussion? All those in favor, signify by saying aye. Any opposed? Thank you. Ma'am, do you understand what we've said? MS, ZAMBON: Yes, but I have one last question. Do I have to wait until you send the owner of the telephone company a notice Page 22 November 30, 2000 that he has to take them down? Can I just go ahead and just do it? CHAIRMAN FI. EGAL: No~ you can't do anything until he fails to do whatever we order him to do. Okay? MS. ZAMBON.' How do I know if he's not (sic) going to do it? CHAIRMAN FLEGAL: Well, if you'll just sit there and wait a minute, we're gonna give him a time period, and you'll know what that time period is, okay, if you'll just bear with us a minute. Okay. Now, case number 2000-040, Naples Dial Tone and Telephone. We need a finding of fact that there is in fact a violation. MR. LEHMANN: I would so move -- excuse me. MS. DUSEK: I'll make a motion that in the case of Board of County Commissioners of Collier County versus Naples Dial Tone and Telephone, in the case CEB number 2000-040, that a violation does exist, that the violation is of sections 1.5.6, 2.1.15, number 1, and 2.2.6.2.1 of Ordinance Number 91-102, the Collier County Land Development Code. The description of the violation is installation of public phones on residential zoned properties not in accordance with Collier County codes. MS. SAUNDERS: I'll second that notion. CHAIRMAN FLEGAL: We have a motion and a second that there in fact is a violation. Any discussion? All those in favor, signify by saying aye. Any opposed? Thank you. The order of the board -- since we're dealing with property on somebody else's property, and having heard testimony that evidently this firm seems reluctant to do anything, it would be my strong recommendation to the board that if we're going to impose any type of fine, that we make it fairly stiff. MS. SAUNDERS: I agree. CHAIRMAN FLEGAL: With that in mind, I'm open to the order of the board. We need a time period and a fine. MR. LEHMANN: Define stiff. CHAIRMAN FLEGAL.' I would recommend stiff. MR. LEHMANN: Define it. CHAIRMAN FLEGAL: Max. MS. DUSEK: I seem to be the one voicing all the motions today, so I'll just continue. Page 23 November 30, 2000 In the case of 2000-040, I make a motion that we order the removal of the three phones and the three stands within 15 days or a fine of 250 per day, per phone, be imposed. MR. LEHMANN: My comment to that, although I agree with the first part. The fine, again, seems a little excessive, bearing in mind the seriousness of what we're dealing with. We're dealing with a bunch of phones. Granted, the respondent isn't -- isn't cooperating and needs to have more of a nudge in that direction, but I think $250 may be a little -- may be a little excessive. I think maybe 100, 150 may be more appropriate, but I think 250 is gonna get -- is heading in the wrong direction, especially if you look at what the board has to consider in assessing the fine. MR. PONTE: I agree with my colleague. MS. TAYLOR: I agree with Bobbie. Just make it stiff. MR. PONTE: I think that we are dealing with telephones. It's not a matter of life or limb or health or security and that -- given that the maximum fine that we can impose is $250, for the most serious of violations, I think we have to take the view here, though there is a violation and we should treat it seriously, it shouldn't be the maximum fine. MR. LEHMANN: The Florida Statutes actually asks the board, or mandates to the board that we consider the gravity of the violation, any action taken by the violator to correct the violation and any previous violations committed. Obviously, we don't have any action by the respondent to correct the violation, so that should weigh on the board. We don't seem to have any previous violations that we know of, and the other side is the gravity of the violation. The gravity of the violation is we have three phones that were installed without -- MR. PONTE: Permits. MR. LEHMANN: -- without permits, a violation of the code. What we're asking the respondent to do is incur a $750 a day fine. MS. TAYLOR: That's if he doesn't take them down. If he does, he doesn't have any fines at all. MR. LEHMANN: That's correct, but that's the case in all of our cases. If they comply, they don't have any fine. MS. TAYLOR: Okay. There you go. CHAIRMAN FLEGAL: Let's -- maybe to help everyone, would it Page 24 November 30, 2000 be feasible for the members to accept, rather than the $250, per phone, if we do it just flat $250 a day as an incentive, based on this violation, since he seems to be uncooperative? MS. DUSEK: I like that. CHAIRMAN FLEGAL: Rather than per phone, let's just do it per day, how's that? MS. DUSEK: That's fine. MS. SAUNDERS: I think that's fine also. MS. DUSEK: I amend the motion. MR. LEHMANN: I could imagine that $250 a day would exceed whatever income they're producing from those phones. CHAIRMAN FLEGAL: Correct. MR. LEHMAN: So that would be an incentive. CHAIRMAN FLEGAL: Right. If that's -- if you would amend to that. MS. DUSEK: I amend the motion that it be $250 per day, not per phone. CHAIRMAN FLEGAL: Okay. So we have 15 days to remove the phones from the property or impose a fine of $250 per day until the phones are removed. MS. SAUNDERS: Plus costs, right? MR. LEHMANN: Always. CHAIRMAN FLEGAL: And also, you know, the cost associated with prosecution as a separate item. MR. LEHMANN: If my colleague would permit, I'd like to amend the motion further by adding any type of accessory components attached to these phones, such as power lines, telephone lines. CHAIRMAN FLEGAL: Yes, whatever it took to put the phone there, he needs to remove it. MR. LEHMANN: Correct, I would second the motion in that form. CHAIRMAN FLEGAL: Okay. We have a motion and a second. Any further discussion? MS. SAUNDERS: I have just one further comment. If it takes -- if the phone company does not do anything, it takes the property owner three days after the 15 days are due, I assume then that we're going to fine him for those three days that the telephones are still up? CHAIRMAN FLEGAL: Yes. The way it works is that this order Page 25 November 30, 2000 would be against the company. If the company fails to remove the phones for whatever time period and the owner of the property has to remove them, if the property owner takes two weeks, then the telephone company is going to be fined for that two week period. MS. SAUNDERS: And not the property owner? CHAIRMAN FLEGAL: Right, because the property owner would still be within their time period. MS. SAUNDERS: Fine. Okay. CHAIRMAN FLEGAL: Any further questions? All those in favor, signify by saying aye. Any opposed? Thank you. CHAIRMAN FLEGAL: Ma'am, do you understand? We've given the phone company 15 days. At the end of that time, if he doesn't remove the phones -- MS. ZAMBON: After the 15th day, I can remove it. CHAIRMAN FLEGAL: You can remove them. MR. LEHMANN: The 16th day. CHAIRMAN FLEGAL: The 16th day, you can go have the phones removed because you still have another 30 days to do that. MS. ZAMBON: Perfect. Thank you very much. MS. SAUNDERS: And he will receive the notice from the court, so then you may not even need to correspond with him. MS. ZAMBON: Can we go now? CHAIRMAN FLEGAL: Yes, ma'am. MS. DUSEK: Thank you. CHAIRMAN FLEGAL: Next case, BCC versus Florida Metal Master, case number 2000-042. MS. DUSEK: Mr. Chairman, for the record, I'd like to remove myself from this case. One of the parties works for my company. So I will sit, but I will not discuss or vote. CHAIRMAN FLEGAL: Very well. MS. CRUZ: Mr. Chairman, the staff has provided a package to the respondent and also to the board and to the clerk of the board. Let the record show that the respondent is present and if there's no objection from the respondent, I'd like to request that this packet be admitted into evidence, marked Composite Exhibit A. Page 26 November 30, 2000 CHAIRMAN FLEGAL: Mr. Trapasso, do you have any objection, sir, that they submit this package to us? MR. TRAPASSO: No objection. CHAIRMAN FLEGAL: I'd entertain a motion to accept the package. MR. LEHMANN: So moved. MS. SAUNDERS: Second. CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. CRUZ: Also, there was provided a defense package from the respondent. I'd like to have that package also introduced into evidence, marked Respondent Exhibit A. CHAIRMAN FLEGAL: I'd entertain such a motion. MS. SAUNDERS: So moved. MR. LEHMANN: Second. CHAIRMAN FLEGAL: All those in favor, signify by saying aye. Any opposed? Thank you. MS. CRUZ: The alleged violation before this board is incomplete construction, slash, installation of a stormwater inlet in the right of way as required per SDP 99-125. The violation exists at 4443 Arnold Avenue, and it's more particularly described as Naples Industrial Park, non-recorded block B, lot 29. The owner of record is Florida Metal Master, Inc. The director of this corporation is Mike Trapasso. The address of the corporation is 4425-B Progress Avenue, Naples, Florida. The violation was first ob. served on July 25th, year 2000. A notice of violation was prov, ded to the respondent on October 26th, year 2000, requesting compliance immediately. The last reinspection was conducted on November 29th, revealing the violation remains. At this time, I'd like to call Investigator Teresa Beck, please. MS. BECK: Good morning, for the record, Teresa Beck, Collier County Code Enforcement. (The speaker was sworn.) MS. BECK: Good morning. CHAIRMAN FLEGAL: Morning. MS. BECK: In July of this year, this particular case was referred to our office by Tom Kuck, the engineering review manager. The referral was in the form of a memo that was directed to Michelle Arnold, dated July 10th -- excuse me -- of Page 27 November 30, 2000 2000 from Mr. Kuck, informing our office that there was a violation of Metal Masters, Incorporated, there was a violation of the site development plan they had obtained, stating that Mr. Trapasso had not completed the site development plan and the right of way requirements as agreed upon. With this memo, there were two letters that were attached to it. The first letter was dated April 19th of 2000. It was signed by Mr. Trapasso, agreeing to install a catch basin at the location of the business by May 19th of 2000. The second letter that was attached was a letter dated June 2nd of this year sent by Tom Kuck to Mr. Trapasso, notifying him that he had until June 16th to complete the right of way improvements, as a final notice. After that time, I pulled the site development plan and the right of way permits to review them before I went to the site. On July 25th, I did go to the site, take some photos, show that there was no catch basin inlet installed at the location that was required. I went to Bill Spencer to help clarify the exact violation and the exact location to make sure I had everything correct. Once that was verified, I did send the notice of violation to Mr. Trapasso and then I conducted a -- oh, I'm sorry, I received a telephone call from Mr. Trapasso on August 14th of this year, basically he stated he wanted to get this work out. I advised him that he needed to talk to Tom Kuck and referred him to speak to him. Then Mr. Kuck came to see me later on in that day, and stated that he did speak to Mr. Trapasso and that we could agree upon a 30 day extension for him to complete the project. On September 14th, I conducted a reinspection and found that no inlet had yet been installed. I went back again on October 23rd, again another reinspection, nothing had been installed, and at that time, I referred the case to the code enforcement board. Since then I've done two other inspections, on November 14th and again yesterday, November 29th, and at that time no inlet had been installed. CHAIRMAN FLEGAL: Do you have current pictures of this site? I'm looking at pictures that was taken back in, I think September. Do we have something -- are they the same or -- MS. BECK: This is the business that is direct -- located directly right of Metal Masters. Page 28 November 30, 2000 This photograph here is the area in which the inlet was supposed to have been installed. CHAIRMAN FLEGAL: On the subject property, are there two entrances? MS. BECK: Yeah, this photograph here shows that there's two entrances into the business. I got back as far as I possibly could to try to show both entrances there. MR. LEHMANN: And the issue at hand is a culvert that's actually to be installed to the right side of the right driveway; is that correct, on this photograph? MS. BECK: Correct. Let's see if I can get a better -- MR. LEHMANN: I'm assuming we see two culverts in the center, in the center drainage -- MS. BECK: Yeah, in this photograph here, the location right here is where it should have been installed at. CHAIRMAN FLEGAL: Okay. But on the other side, on the left side of your picture, of that driveway, is there a culvert there? MS. BECK: On this particular-- here? CHAIRMAN FLEGAL: Right there. MS. BECK: There is one here, there is one here, and again, there's another one on the left side of the west driveway. CHAIRMAN FLEGAL: Obvious question, if we have a culvert on the left side of the right drive, as you're facing it, what's it connected to? I mean, water just flows in the pipe and stops? MS. BECK: I don't know. I honestly cannot answer that. I do know that there is -- on the businesses that's located to the right of them, on their -- they have one driveway that goes into that business, on the east side of their driveway, there is a grate and so forth for an inlet there. Other than that, maybe Mr. Spencer or Mr. Kuck would be able to answer what may be there. CHAIRMAN FLEGAL: Okay. On the SDP that was submitted, 99-125, is the drawing that we see on page 27 of the packet, is that the drawing that's part of the SDP or can somebody tell me what was actually submitted as -- to be accomplished? MS. BECK: What might be best here, if I let you -- let Mr. Spencer explain that, because there was a change. He was the one that agreed to have this installed. That's -- I'm going by their information, what they gave to me. CHAIRMAN FLEGAL: I'm really interested in the original SDP that was submitted back in November or whenever it was. Page 29 November 30, 2000 MS. BECK: There are several drawings. If you might give me just a moment. CHAIRMAN FLEGAL: If it's a question you can't answer, I understand, and I'll-- MS. BECK: To my expertise, I feel it would be better if they answer it. They were the ones that agreed upon the SDP and signed off on it for the approvals. CHAIRMAN FLEGAL: Very good. I don't have a problem with that. Any further questions for Ms. Beck? Thank you. MS. CRUZ: At this time, I'd like to call Bill Spencer to the stand, please. (The speaker was sworn.) MR. SPENCER: Bill Spencer, planning services, engineering II. I issued this right of way permit in conjunction with the SDP approval to install two driveways onto this piece of property with a pipe under each driveway mitered into a concrete culvert. Subsequently, they had a conflict with a neighbor's pipe, an existing pipe, and I talked to the engineer and we agreed to tie them pipes together, as long as he provided drainage across his driveway, so the drainage would continue to the west to the outfall. He installed it and we went and inspected it and that drainage did not cross the driveway the way it was constructed. So to alleviate that drainage problem, we instructed him to install that catch basin to collect that drainage on the east side of the driveway, to get it down into the pipe so it would drain on to the west to the outfall, and we revised the plan to reflect that and sent that to the engineer and to the property owner or the contractor to have that installed. Subsequently, he was ready for a CO at that time, and we asked him to write a letter stating that he would install this within 30 days or so, I don't remember the exact letter, that letter is attached to your packet, that he would install that within so many days and he signed it for his CO, because we didn't want to hold up, you know, his business, and from that day on, we had no -- you know, no work done since then. Since he got his CO, he just flat refused to do any work that we agreed on. MR. LEHMANN: Mr. Spencer, could you show me the original SDP that was permitted and approved for this project? Page 30 November 30, 2000 MR. SPENCER: Okay. The SDP and right of way is two separate issues. MR. LEHMANN: I apologize. MR. SPENCER: The SDP is approved, then the right of way is reviewed and approved with all conditions attached to the right of way permit regardless of what the SDP approval is. So in many cases, the SDP approval right of way work does not coincide with the right of way permit requirements. We do that to -- because sometimes the right of way is more involved with turn lanes, drainage structures, different problems, and we don't want to hold the SDP up resolving these problems, off-site issues. So we go ahead and release the SDP, pending the approval of the right of way permit for all right of way conditions. MR. LEHMANN: So you're saying that the right of way permit would actually supersede the requirements of the SDP? MR. SPENCER: Yes, sir. MR. LEHMANN: Do you have the original right of way permit? MR. SPENCER: Yes, sir, it's in your packet, I believe, a copy of it is in your packet. MR. LEHMANN: Would you show me which pages we should be looking at? MR. SPENCER: I have the original here, though. Do you need to see it? MR. LEHMANN: If you can put it on the monitor, that would be great. MR. SPENCER: Let me show you, the original SDP, what I received is this. MR. LEHMANN: If we could just orient that so that the bottom of the screen is south, so to speak. MR. SPENCER: This is the driveway in question. It's an out only driveway. MR. LEHMANN: Mr. Spencer, can you orient that and turn it counterclockwise? CHAIRMAN FLEGAL: Yes, put Arnold Avenue on the bottom of the screen. Yes, thank you. MR. LEHMANN: Thank you. MR. SPENCER: This is the driveway in question here. There was no pipe shown on the original SDP drawings that I received. I don't really get the finished project of the SDP approval. That's a separate package that I keep in my office. Page 31 November 30, 2000 MR. SPENCER: MR. LEHMANN: to the right? MR. SPENCER: At the time, I receive the approval of the SDP, then I pull that package out and resolve all right of way permit problems. Okay. So this is what I received originally. Then I issued this -- let me turn it over, make the same -- this is the driveway that we issued. It's a typical driveway form that we use to make it so we can issue permits quicker. Because of the conflict with this existing pipe right here, I told the engineer if he provided the drainage, that this would drain across this driveway and get into this side here, I wouldn't have a problem with just connecting -- he attempted to, by putting a shallow swale here, across this driveway here, which -- it is not working. This water will not get out of here and cross this without raising about a foot -- it holds about a foot of water back. So therefore, then we instructed him to revise it and correct it to this form here, which is, the inlet's right here. Tie these two pipes together, so the water will come out of this area here into this inlet and drain on to the west. MR. LEHMANN: My question, and bear with me, I'm trying to follow the time line of what's happening here. Originally an SDP and a right of way were approved without the catch basin installed; is that correct? MR. SPENCER: Right, and -- but it was issued without this pipe connected and the other pipe also. MR. LEHMANN: Right. So the original SDP and the right of way showed a culvert with a mitered end cap? Yes, sir. Assuming there's a swale, or something else Right, there would be an open swale between the two pipes to collect the water. MR. LEHMANN: An open swale? MR. SPENCER: Uh-huh. MR. LEHMANN: So to the right we should have an open swale on this particular property that we're looking at to collect the water that's coming off of the property to the right? MR. SPENCER: Right. MR. LEHMANN: Through this swale or into the swale, into the culvert and continue on eastward. MR. SPENCER: Westward. Page 32 November 30, 2000 MR. LEHMANN: MR. SPENCER: MR. LEHMANN: MR. SPENCER: MR. LEHMANN: Thank you. Okay. That wasn't done? No, sir. Why was that not done? MR. SPENCER: Because of the conflict with an existing pipe, because of the length of the pipe that had to be installed and the new driveway would overlap the existing pipe, therefore it would not work. MR. LEHMANN: Okay. MR. SPENCER: So he said -- the engineer and I got together, he called me on the phone, and he said he would provide drainage across this driveway, which they attempted to. Okay? MR. LEHMANN: By a shallow swale? MR. SPENCER: By a shallow swale, but it didn't work. They built it and it didn't work and it will not work. Elevations proved that out. MR. LEHMANN: Did the county approve the shallow swale concept? MR. SPENCER: No, sir. MR. LEHMANN: That was never approved? MR. SPENCER: Well, we approved to do it that way, but if it doesn't work, then it's an offending material in the right of way. Something that doesn't function is offending material, and therefore is in violation of the right of way ordinance. MR. LEHMANN: Let me step back again. At this point in time in history, we now have an approved right of way and approved SDP that basically shows a culvert with an end cap that's supposed to be collecting from the property on the right. That was -- it was (sic) unable to install that, so the engineer came back and told you that an option to that or an alternate, now revision, would be that we create a shallow swale in the driveway and that would solve the problem. At this point in time were those two options approved by the county? MR. SPENCER: Yes. MR. LEHMANN: Okay. The county approved those options, field investigation shows the shallow swale across the driveway was not working? MR. SPENCER: Right. MR. LEHMANN: What authority does the county have, at this Page 33 November 30, 2000 point in time now, to order the property owner or the engineer to change it again? MR. SPENCER: At the beginning of the -- when I talked to the engineer on this design, I told him if he could get it to function, we wouldn't have to put a catch basin in, but if it wouldn't function, he would have to put a catch basin in. MR. LEHMANN: So you're basically saying that we have an approved assembly or approved design, but unfortunately because of the existing conditions on-site, it doesn't function, therefore it's invalid? MR. SPENCER: Right. MS. SAUNDERS: Did you put that in writing, sir, or was that a verbal discussion? MR. SPENCER: MR. LEHMANN: right to do that. MR. SPENCER: MR. LEHMANN: it. Just verbal between myself and the engineer. And I'm assuming that the county has that I did it. I don't know if it's -- That wasn't the question. I know that you did MR. SPENCER: I probably wouldn't be able to answer that. That would have to be a legal -- MR. LEHMANN: So going forward in history now. The county's asked them to -- or rejected the shallow swale, and in turn, what happened now? MR. SPENCER: Well, I had the engineer come back with this design here, you see the engineer drew this up, with the inlet, and we presented this to the owner and we got a letter from him stating he would build it in accordance with this here plan right here that you see in front of you, and that hasn't occurred yet. MR. LEHMANN: So the design is we're going to cut back the existing driveway in the shaded area and install a catch basin so that we now catch what's happening on the right to go into the culvert -- into the below surface piping for proper drainage? MR. SPENCER: Yes. MS. ARNOLD: May I ask a question of staff? Is this stamp now superseding the previously (sic) approval? MR. SPENCER: Yes. MS. ARNOLD: Is that a verification that this is now the valid requirement for the project? MR. SPENCER: Right, it's stamped there and it's dated with Page 34 November 30, 2000 the latest date revision on it. MR. LEHMANN: This stamp and this date that this was approved was prior to CO? MR. SPENCER: Was what? Prior to CO? LEHMANN: CC, the certificate of completion, or was it MR. after? MR. MR. SPENCER: This here? LEHMANN: Yes. MR. SPENCER: Was after we found out that what they had built did not -- was not working. MR. LEHMANN: Prior to the certificate of completion? MR. SPENCER: Prior to the certificate of occupancy. MR. LEHMANN: If you can continue forward then. MR. SPENCER: Okay. So w.e had the engineer draw this up. It was prior to CO. The owner sa,d he's ready for the CO, he would not have time to install this here new revised plan because he needed the CO to open up his businesses, and in the past we've always worked with the property owners to accept letters that if they would do it in accordance with this here approved plan, that we would go ahead and release the CO, and we gave him so many days to have it accomplished and he just hasn't done it yet. MR. LEHMANN: Did you release a final CO or a temporary condition -- MR. SPENCER: Final CO. MR. LEHMANN: You released the final CO? CHAIRMAN FLEGAL: Question, Mr. Spencer. Why does he have to cut his driveway back? MR. SPENCER: He really doesn't. His neighbor, it goes over -- this here radius is out in the public right of way, the county -- the Board of County Commissioners accepted this, but not for maintenance, back several years ago. I don't know if that's in your package or not. CHAIRMAN FLEGAL: Okay. MR. SPENCER: But since it's public right of way, he can go with that design, he is not encroaching on private property. It's in public right of way, since that's a one way out only, this neighbor here on his right side or his east side was complaining about that apron encroaching over in front of his property. So -- CHAIRMAN FLEGAL: Let's stop -- hesitate a minute. MR. SPENCER: Okay. Page 35 November 30, 2000 CHAIRMAN FLEGAL: You said that the county accepts this, because it's out in the right of way and he's allowed to do it. Now you said his neighbor's complaining that he don't like it. Is he allowed to do it or isn't he? MR. SPENCER: He is allowed to do it. CHAIRMAN FLEGAL: Fine. I don't care what his neighbor says. You're making him change it because the neighbor complains? MR. SPENCER: No, I talked to him about this and he said ne would change it to appease the neighbor. CHAIRMAN FLEGAL: But he doesn't have to? MR. SPENCER: Doesn't have to. As far as the county's concerned, he doesn't have to. He just said he would. CHAIRMAN FLEGAL: But he does -- but part of the deal is he's got to put this grate in to collect the water. MR. SPENCER: Right. CHAIRMAN FLEGAL: But if he does the grate and doesn't change the driveway, are you gonna -- would you be happy? MR. SPENCER: I will. CHAIRMAN FLEGAL: Would he be legal? MR. SPENCER: Yes, as far as the county's concerned, he would be legal. MR. LEHMANN: And, Mr. Chairman, that's really the issue that's in front of the board, is the driveway and the grate. CHAIRMAN FLEGAL: Right, that's -- but in reading -- since the packet's in evidence, one of the tradeoffs may be rather than tear up the driveway, just put the grate in, he may be willing to do that. If he's gonna have to tear his driveway up, maybe he's not willing to do that, so I just want to make sure if he leaves the driveway the same, he's permitted to do that by the county. MR. SPENCER: By the county. CHAIRMAN FLEGAL: Now you can continue, sorry I interrupted you. MR. SPENCER: The reason why I went ahead and told the engineer to design it this way, because this is a one way out, and your radius on a one way out can go out to the center of the street, you can use the street as part of your radius, because when you're making a left turn out of there, you're going to the opposite side of the street, and it's just a matter of not tearing up the driveway. It's just a matter of cutting along that line and Page 36 November 30, 2000 removing that excess concrete, and that was an easy fix and that I thought would help the neighbors get along. CHAIRMAN FLEGAL: Okay. MR. SPENCER: That's the only reason why that was designed that way. CHAIRMAN FLEGAL: In installing this grate and whatever else, I assume besides just digging a hole and putting a grate there, he's gonna probably have to set something -- I assume the drainage pipe is underneath it? MR. SPENCER: Yes, sir, the drainage pipe -- CHAIRMAN FLEGAL: He's got to cut into it and put a culvert or something? MR. SPENCER: Yes, sir. The basic way it's accomplished, you dig a hole around the existing pipe, you cut sections -- a two foot section out, you go down about eight inches below the pipe for a footer and then build your block up around it and close it in and put your grate on it. That's the simple version of it. MR. LEHMANN: Do we have any drainage problems right now on the right-hand side? MR. SPENCER: Yes, sir, it floods. After every rain, there's water standing and it backs up into his neighbor's property. MR. LEHMANN: So we do have an existing problem right now? MR. SPENCER: Yes. CHAIRMAN FLEGAL: Prior to him doing this, putting the driveways and that in, I don't know what was there previously, was there a swale there that collected the water or -- MR. SPENCER: Yes, sir, it was an open ditch. MR. LEHMANN: Did we have any drainage problems prior to construction? MR. SPENCER: No, sir. MR. LEHMANN: So it's evident that the construction is causing the flood problem? MR. SPENCER: Yes, sir. CHAIRMAN FLEGAL: Any further questions for Mr. Spencer? Thank you, sir. MS. ARNOLD: We also have the supervisor for the department here. Did you have anything to add, Tom? (The speaker was sworn.) MR. KUCK: Yes, my name is Tom Kuck. I'm engineering review manager and Bill is one of my staff members. I think he Page 37 November 30, 2000 covered the situation very well. I'd be happy to answer any questions you may have, but again, what was originally permitted then was not constructed properly. We identified the problem with -- because you have stormwater coming down between these -- the lot lines here and the runoff from here, and by not having the inlet structure there, you have no way for this water to get from this area here on over to the swale that goes to the west, and when we met out there, as Bill indicated, at the time they wanted the CO, we identified that problem, and I said if they would provide us a letter agreeing to put that inlet in within -- and I don't know if I gave him 15 days or 30 days, that we would go ahead and issue him a CO. They did furnish us a letter and agreed that they would put it in in that time frame, and then I had (sic) several subsequent reminders to the owner and -- as has been testified, to date, nothing has occurred. CHAIRMAN FLEGAL: Any questions for Mr. Kuck? Thank you, sir. Any further questions for the staff? Mr. Trapasso, if I keep pronouncing it wrong, I'm sorry. MR. TRAPASSO: That's all right. (The speaker was sworn.) MR. TRAPASSO: I don't know if you've had a chance to review the packet I submitted, but I would ask you to turn to page nine, and this is the original approved design by Mr. Spencer. If you turn to page ten, you'll see on February 25th, that the design was changed at my expense. This design was complied with. The entire project was completed and I was trying to get our certificate of completion. Mr. Cirou, the neighbor, didn't like the design, so he called the county engineers, they showed up, and at Mr. Cirou's request for a catch basin with no basis -- it had not rained from the time that I called these people in -- excuse me -- for my CO, till the time that they drew this third design on page 11, there was no rain and no evidence that this system didn't work as designed by Mr. Spencer. Now, I've been there through the entire rainy season, not once has there been standing water. There is no evidence of standing water. Surely, Mr. Cirou would have called the engineers had there been evidence of standing water or somebody would have taken photos. This does not occur. It drains perfectly. Page 38 November 30, 2000 In fact, when Mr. Cirou's sprinkler kicks on, the water from his sprinkler system runs right across the driveway and into the culvert, as designed by Mr. Spencer on the 25th. Mr. Kuck basically put me in a real bad situation and forced me to sign this letter, or I couldn't move into my new building, and the only reason I signed that letter was because financially Mr. Kuck was putting an extreme burden on me, and that's where we are today. The question of the concrete, no one has ever told me that this was not a requirement, that this was an option. It's on the plan, and of course, I refuse to cut the concrete out. There's eight inches of concrete reinforced connecting the driveway. The county instructed me to put it in. I put it in. Now they're instructing me to take it out. The question is how many times do you have to put something in and take something out at the county's discretion and at my expense? Therefore, I refused to do any work, and as stated, there is no reason to have put this culvert in and there is no evidence showing that there is a flooding situation on the property. I've watched it every time it rained, it drains just fine, and I just don't feel I should have to do this kind of work after the fact to please the neighbor who's complaining. This has nothing to do with engineering at this point. The design -- we had professional engineers that design these things, professional engineers that I paid to design the site development plan and the county pays to make sure these things all get approved and work according to design. Now, if they can't figure it out after the third time, I feel I shouldn't be responsible for having to make up for the county's mistakes at my expense. MR. LEHMANN: Mr. Trapasso, can I ask you a few questions? First off, you had brought our attention to the driveway form on page nine, which you had referenced was the original driveway permit. On there it shows the culvert terminating in a mitered inlet. Is that on your property? MR. TRAPASSO: driveway? MR. LEHMANN: MR. TRAPASSO: MR. LEHMANN: We're talking about to the right of the right That's correct, sir. That was never constructed like that. Could you explain why this was not Page 39 November 30, 2000 constructed? MR. TRAPASSO: I can't specifically say why, because at some point in time when they were doing the construction, getting ready to put these structures in, on February 25th Mr. Spencer decided that it was to be connected to the existing culvert in front of the neighbor's yard. The two pipes were to be joined and no end wall put in. This was at Mr. Spencer's request and my expense, and this is the way the project was completed. The final design, the third design on page 11, was done at a time when it hadn't rained -- for some reason, Mr. Spencer is claiming that the system as installed, that he designed, doesn't work, and it had not rained, I'm sure you can verify this with the weather bureau, at any time between the time I called for my CO and Mr. Spencer's claiming it did not work. I see no basis for his claim and he has not been out there apparently during the rain and looked at the situation. It does not flood. It's impossible for it to flood. The water flows over the driveway. It can't flood the neighboring property. MR. LEHMANN: Okay. The question again that I have on page nine is, the culvert is not installed on the property, so we've already deviated from your right of way plan -- CHAIRMAN FLEGAL: I think -- let me ask a question here, because I think if I understood, I believe it was Mr. Spencer, right, and Mr. Kuck, the picture on page ten, they issued a redesign that told you rather than to have that culvert, that you could put the two pipes together, the existing pipe on your neighbor's yard, just run yours out, therefore you wouldn't need your culvert on your right side of the driveway? MR. TRAPASSO: That's correct. CHAIRMAN FLEGAL: Is that correct? MR. TRAPASSO: That is correct. CHAIRMAN FLEGAL: What this drawing is showing, that they've eliminated, although they didn't cross it out, but I can see where they've drawn straight lines and I think it's -- I don't know what that word is, if that's supposed to be ban or band. MR. TRAPASSO: That little word says band. CHAIRMAN FLEGAL: Band, to connect the pipes. That's what I thought. So they've eliminated the culvert on the right side of the property by letting these two pipes be joined together? MR. TRAPASSO: That's correct. Page 40 November 30, 2000 CHAIRMAN FLEGAL: Okay. That's what I thought. MR. LEHMANN: And apparently, this is not constructed either? MR. TRAPASSO: Yes, it is constructed as shown on page ten. That is how the property was completed at the time I requested my certificate of occupancy in April, later -- the earlier part of April. So what we did, we complied with Mr. Spencer's second design here. Then upon the neighbor complaining he didn't like it, the third design was completed. My question is, how many times do you design and redesign a simple swale? CHAIRMAN FLEGAL: You're telling us that since the project -- I don't want to use the word started -- but was almost completed, and the time that they have asked you to install this culvert and grate, that there was no rain and/or flooding and even since that period of time, up until today, if there has been any rain, you personally haven't seen any flooding on the properties? MR. TRAPASSO: That is correct. At the time this third design on page 11 was issued, the entire project was complete. This was a finished project ready to be moved into. So this is all after the fact designing here, and as I said, this design is just -- was done just to solve the problem of Mr. Cirou, the neighbor continuously complaining to Mr. Kuck, and that is why this concrete is shown and must be removed -- it says remove existing drive, because Mr. Cirou plans on bringing action against the county to get this concrete out from in front of his building. It's clear that we have obviously a problem here with the neighbor and this is to not -- I mean, I am not the one that does the designs. We simply complied with the various designs that the county has put in front of us here, and we're just trying to, you know, run our business without being interfered with by the county and continuously sent letters from code enforcement, et cetera, on completing a design that's not even necessary. As I said, there's no evidence of flooding. It has never flooded and Mr. Spencer's statements saying that this system doesn't work as he designed it is totally incorrect. It works fine, and I would like to see evidence of it not working. MR. LEHMANN: Let me take a step backwards, if we could, Mr. Trapasso. The original right of way approval was on page nine? Page 41 November 30, 2000 MR. TRAPASSO: Yes, sir. MR. LEHMANN: That apparently didn't work, so we ended up with the right of way approval on page ten, which shows the culvert actually connecting onto the joint property. MR. TRAPASSO: That's correct, that's the way it was built. MR. LEHMANN: That's the way it was built, this is the way it was approved through a revision process through the county? MR. TRAPASSO: That's correct. MR. LEHMANN: How did we get to -- and I know that we're repeating the issue, I apologize for that. How did we get again to page 117 Now, this is occurring because of a site visit showing -- MR. TRAPASSO: This was occurring when I called -- the building was complete. I called for CO. I was ready to move into the building. MR. LEHMANN: Prior to this -- you calling for CO, we're thinking we're building under page ten. MR. TRAPASSO: Yes, it was completed as on page ten. MR. LEHMANN: Okay. MR. TRAPASSO: Shortly before this design, maybe a day or two, on page 11, I called for CO. Then Mr. Spencer, Mr. Kuck and the neighbor decided that this would be another design and have to be complied with or I wouldn't be able to be move into the building. This final design on page 11 was performed after the entire project was completed. MS. TAYLOR: Mr. Trapasso, what is the cost of installing this traffic grate -- traffic-bearing grate? MR. TRAPASSO: It's thousands of dollars, ma'am. MS. TAYLOR: Is it? MS. ARNOLD: If we could have staff address the -- you know, their position as to how they were requiring this revised plan on page 11 of Mr. Trapasso's document. CHAIRMAN FLEGAL: Any more questions for Mr. Trapasso? MR. LEHMANN: Not at this time. CHAIRMAN FLEGAL: Thank you, sir. You can sit down for the time being. Thank you very much. MR. SPENCER: Bill Spencer again. The reason why we came up with this third design is -- he called for final inspection for CO, we went out and did the grade work for the inspection and through that grade work, to approve what's out there, determined that what was there would not work. Therefore, this Page 42 November 30, 2000 third design came about so that the water would flow, but through the grades that we performed at the time of the inspection, it proved that the elevations would not work properly, and that had nothing to do with water or anything else. That's just reading a level and determining elevations of the driveway, elevations of existing ground, elevations of the pipe. CHAIRMAN FLEGAL.' And you're basing this on the elevations of his property versus the neighbor's property or something? MR. SPENCER: The right of way elevations. It has nothing to do with -- really nothing to do with the properties. CHAIRMAN FLEGAL: Okay. MR. SPENCER: This is strictly in the right of way. CHAIRMAN FLEGAL: And water is to flow off his property into the right of way or -- MR. SPENCER: Right. CHAIRMAN FLEGAL: -- what I'm trying to understand, maybe if I can tell, you can help me. I'm looking at a picture on staff's Exhibit 28, and judging from the lay of the land, his property sits above the right of way and the water is going to run downhill out into the street. I'm trying to understand what this culvert is going to do, you know, why we had to do this, because I'm not visualizing this? MR. SPENCER: The drainage coming from the property, to drain out to the right of way, and that water has to go into the ditch or get into the pipes somehow to disburse to the outfall, the water draining off both properties, going out to the right of that driveway, has nowhere to go when it gets there. That's determined through elevations. It has nothing to do with standing water or anything else. That water will drain there and sit in the right of way. If that driveway to the -- if the existing driveway that he built was put down low enough so the water could drain across it, then we wouldn't need the catch basin. That driveway that he built, that (sic) existing now, was not built with a deep enough swale so the water could run across it. Therefore, it holds the water back on the east side of that driveway. The easiest fix, other than tearing out the driveway and rebuilding the driveway, is to put an inlet in there. An inlet doesn't cost thousands of dollars. You can have one constructed for probably 1,500, something like that, 2,000. Page 43 November 30, 2000 MR. KUCK.' I'd like to just pick up a little bit again. Going back to this drawing that you have on the display there, again, original design called for mitered end sections here, so any of the runoff from Arnold Avenue, coming this way or from the existing property here or coming from the newly developed property here, would have been able to get into the open end of that mitered end section and going to the west. When they made the interconnection of those pipes, you eliminate any place for the water coming down here, for the runoff from Arnold Avenue or from this lower property here to -- by putting the inlet in, you'd be able to intercept and bring that water and direct it on to the west, and the way it stands right now, you've got a low area here that will flood and there's no provision for runoff from Arnold Avenue from this area right here to get over here and get over here, because the driveway, by being at a higher elevation, is kind of like a damn or a block. CHAIRMAN FLEGAL: Okay. MR. KUCK.' I would also like to correct the record that it was the owner of this property that directed us to require this type of a change. I'm a professional engineer, and in my mind and also the engineer that did the alterations here, we were all in agreement, that this was the best fix to correct a bad situation. CHAIRMAN FLEGAL: Okay. I guess one of my questions was going to be, you -- back in February, you come up with the -- connecting the two pipes. Then you waited till the middle of April or something and say, whoops, that isn't going to work. Had you not been out to the site and known that you were gonna have -- I mean, the land didn't change between February and April? MR. SPENCER: Again, if that driveway was constructed at proper elevations on top of the pipe, it would have worked without a catch basin, the water would have drained across that driveway. That driveway was not -- CHAIRMAN FLEGAL.' You mean he changed his SDP that he submitted? MR. SPENCER: He didn't put a low enough grate on that driveway, so the water could run across the top of the driveway from that east side. MR. LEHMANN: Do we have any documents in our package that would specify what elevation he had to put this driveway in? Page 44 November 30, 2000 MR. SPENCER: I don't believe so. MR. LEHMANN: And so when you say he should have done this, by what standard or what method are you communicating that information to the respondent? MR. SPENCER: The engineer of record is supposed to provide design work that's functional, and I accepted his design work as -- I didn't actually go out there and double-check a professional engineer. I accepted his work as -- his word. MR. LEHMANN: And I'm assuming it's Mr. Kepple; is that correct? MR. SPENCER: Yes, sir. MR. LEHMANN: Mr. Kepple, when he designed this, with the plans that you reviewed, did it show what this driveway elevation should be, or are you -- in other words, was there a specific elevation that we're supposed to build to and we did not build to that that's causing the problem? MR. SPENCER: I'm not sure. MR. LEHMANN: Or is it a standard of just saying that it just has to follow this standard? CHAIRMAN FLEGAL: Let me tell you where at least I'm confused and I think Peter's trying to do -- I'm going to make it real simple. You say because the driveway didn't have a swale in it. In February you told him to connect two pipes, okay, on the right side of this property. MR. SPENCER: Providing the drainage would work. CHAIRMAN FLEGAL: Bear with me. You said connect these two pipes. Now, looking at the driveway, whether that driveway -- put that picture back, sir, whether this driveway is a half a foot higher or a half a foot lower, when the water runs off and goes to the right, because you connected the two pipes, still ain't got nowhere to go, it's just going to soak into the ground? MR. SPENCER: No, sir. If that driveway is lower, it will run across. Run across-- CHAIRMAN FLEGAL: It's going to run across to his neighbor's property? MR. SPENCER: No, the water flows to the west, sir. It flows to the west. CHAIRMAN FLEGAL: I mean, you're asking for this, right where the pan is about now, that's where you want this culvert. I'm saying if this water runs off, even if there's a little swale in Page 45 November 30, 2000 this driveway, it's going to run out into the road, and Mr. Kuck said before water from across the street is going to run over and ground into the culvert. Back in February, you didn't have the culvert there. Now, all of a sudden you want the culvert. I'm confused here. MR. SPENCER: We had an open swale there. We didn't have a driveway there either. CHAIRMAN FLEGAL: No, you told him to connect the two pipes. MR. SPENCER: Right, providing that the drainage would function. CHAIRMAN FLEGAL: But you didn't decide that until April? MR. SPENCER: No -- I'm -- this was discussed with the engineer. He called me, said we have a conflict with the neighboring pipe. He was supposed to put an 18 inch, the neighboring pipe was 15 inch. I reduced the 18 inch to 15 inch pipe, okay, in conversation with the engineer. He said because of the length of the pipe, it would overlap the neighbor's pipe. So therefore, I said if you can make the drainage work, I would allow that to be connected. If not, a catch basin would have to be installed, and he said his client did not want to put a catch basin in at this time. CHAIRMAN FLEGAL: Let's hesitate a moment. You're doing this in February? MR. SPENCER: I don't recall the dates. CHAIRMAN FLEGAL: My problem is-- MR. SPENCER: It was prior to the installation of anything in the right of way is when we did this. CHAIRMAN FLEGAL: You revised this thing in February and I'm getting the feeling that you engineers are talking to each other, but nobody is talking to the property owner until after the fact. MR. SPENCER: Well, we deal with the engineer during construction, because they do the design work. MR. LEHMANN: That's a typical process. MS. ARNOLD: What happened was, there was a design, it was revised because of the conflict with the size of the pipe adjacent to the new construction -- CHAIRMAN FLEGAL: Right. MS. ARNOLD: -- and the engineers agreed that they'd try the Page 46 November 30, 2000 modification to see whether or not it would work. The modification didn't work and it's not draining appropriately, so the plan was then revised to come up with an alternate solution to the drainage problem and that's where we are today. The property owner and the engineer agreed to do that and to date the modifications haven't been made. MS. SAUNDERS: I'm hearing conflicting testimony and I'd like to clarify from your side. The property owner has testified there is absolutely no drainage problem. Could you tell us what evidence you have that there is a drainage problem? MR. SPENCER: Well, like I say, when we out -- when he called for a final inspection, okay, for a CO, we went out and did -- we check out all the grades to make sure everything is functional. Through that grade work, it was determined that it would not function properly. MS. SAUNDERS: Has there been any -- MR. SPENCER: That's why we denied CO until it was corrected. He said he needed his CO and would there be anything he could do to get his CO until he had time to correct this problem, and so we came up with the letter. He said he would do it. The revised plan was issued to correct this drainage problem. He said he would build it in accordance with this plan and that hasn't been done. That is the bottom line. CHAIRMAN FLEGAL: But you actually haven't witnessed any flooding, all you've done is shot some grades and said this isn't going to work, correct? MR. SPENCER: Right. CHAIRMAN FLEGAL: Correct. MR. SPENCER: You know, grades, you shoot your grades -- CHAIRMAN FLEGAL: I understand. I'm just saying there hasn't been any flooding, so we really don't know whether this works or not, other than the engineering of shooting grades, saying well, on paper, it isn't going to work, correct? MR. SPENCER: Right. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: Let me visit that area one more time. When you do your grade work, you are shooting these grades according to a standard. What is that standard? MR. SPENCER: Built in accordance with the plans. MR. LEHMANN: Of whose plan, the engineer of record? Page 47 November 30, 2000 MR. SPENCER: The approved plan with the right of way permit. We check the inverts of the existing -- MR. LEHMANN: I'm getting confused again on what the approved plan is. I've got page nine, which shows a culvert. Page ten, that shows an extension, but neither one of these show any elevation heights. So you're again shooting these elevations based on what? MR. SPENCER: They show the elevations, 9740. The other driveway is 9725 and 9735. The property line on the west end is 9725. Since that was closed in, we just spot checked the existing elevations around them to determine if it would function or not, because we had to pick up the water from that west side, and that's when it was determined through the elevation -- existing elevations that it wouldn't work. MR. LEHMANN: The existing site as it stands now, how does it compare with the elevations shown on page ten, which I assume is the as-built condition and the approved right of way package, as it stands prior to CO? MR. SPENCER: The elevations of the pipe are correct. The elevations of the swale is not. It will not function the way it's constructed. MR, LEHMANN: What is the elevation of the swale? MR. SPENCER: I have no idea what the elevation of the swale is right at this moment. MR. LEHMANN: Did you shoot the elevation of the swale? MR. SPENCER: No -- I did, yes, we didn't write them down. We just determined that, you know -- but if you need that information, I can obviously go out and get that information. CHAIRMAN FLEGAL: What we're trying and having a little problem with, or at least I am, and I think Peter is and one or two other of our members is, on paper and through -- and I have great respect for engineers, on some engineering numbers, we're saying something is not going to work. You know, through history a lot of people said you can't fly, but we're flying, you know, so that's the way it goes. Here we're saying this isn't going to work based on some numbers, but we actually don't know whether we're getting any flooding. If we get a torrential downpour and we wouldn't get any flooding, gee, it works. MS, ARNOLD: But we have -- the board has to keep in mind, we have an approved SDP or right of way plan that says this is Page 48 November 30, 2000 what you should do. CHAIRMAN FLEGAL'- I understand that, but they changed that in midstream, that's my problem, and I think it's a problem with some other members. MS. ARNOLD: But that happens in the process, and it was approved prior to the issuance of the CO. MR. LEHMANN: Ms. Arnold, which one of the pages is the approved plan? Is it nine, ten, or eleven? As the testimony stands right now, it's apparently page ten. CHAIRMAN FLEGAL: I mean, what you're doing, what it seems to us is somebody submits something and the county just keeps changing this at their whim and nobody knows what they're doing, and I'm having a little problem with that. MS. ARNOLD: The final approved plan for -- on page ten it shows you the entire project. CHAIRMAN FLEGAL: Right. MS. ARNOLD: That was approved back in December or whenever that was stamped. MR. LEHMANN: February. MS. ARNOLD: It was modified before the issuance of the CO for that one driveway and that is the final approved plan that applies to that driveway. MR. LEHMANN: Here's my problem, and maybe I'm not looking at this correctly. I have a building owner, and my understanding of the process is the owner goes out and hires an engineer and says design me a piece of property or put a design down so it will work, these are the criteria I want, and typically they're very general, they're not very specific. So the engineer turns all that into specific information. So the engineer of record talks to the building department or the planning department, and they in turn are professional engineers. So you have an engineer talking to an engineer and they can discuss specifics about the project. As soon as I get a site approval, now the owner is thinking, hey, these professionals figured it out, let's go ahead and build it. That's apparently what they attempted to do with what's on page nine. Okay. So they started construction, saying we're gonna build page nine. During construction, obviously an obstruction was noticed where they had to go back and revise what was built. Then we Page 49 November 30, 2000 got to page ten. Okay. The owner is thinking, all right, these professionals are looking at it, they've got an obstruction, this is what they've figured out as a solution. I don't have a choice, I've got to do it, so he does it. Okay. Now, I'm saying how do we get to page eleven? The owner is saying aye need a CO, and his question -- my question would be, how did I get to page ten without figuring out I've got the problem that prompts page eleven? I thought you guys were looking at it. MS. ARNOLD: And the grate that shows on page nine for the swale, as well as the driveway, is not -- it wasn't discussed on page ten. I mean, the pipe that was revised on page -- CHAIRMAN FLEGAL: The grade's the same. MS. ARNOLD: -- ten. CHAIRMAN FLEGAL'. The grade didn't change, that's my problem. MR. KUCK-' The grades didn't change, but I think going back and even looking at it now, there's really two options. You could go back to the original one that was approved with the mitered end section, which I think they thought it would be an improvement connecting the pipes, the mitered end section will work fine. The cost saved by not putting the mitered end section in, should almost pay for the cost of the inlet, but there's two ways to correct the problem. One is to put the inlet in the way the modified permit was submitted through the engineering firm. The other is, yes, you could go back and put the mitered end section on, but there was a conflict, and I guess for aesthetic purposes, and I'll have to ask Bill, I wasn't part of that, I got involved at the time they wanted the CO and I said, look, you need to pick up the water from the roadway and from the adjacent property, and with the elevations of the new driveway, you've got an obvious low spot here and there's no way to pick that water up, so an inlet was suggested as one of the cures for it, and everybody at that time was agreeable to it. There was no objection from the owner. The engineer was consulted and he thought it was a correct procedure to follow, so that's where we are today. CHAIRMAN FLEGAL: I don't think we're disputing, as Michelle has pointed out, that you've got a piece of paper that says you Page 50 November 30, 2000 should put a culvert with a grate on it and you've issued it and you say he didn't do it and now you find him in violation, we understand that. What we're trying to figure out is how we got there, and part of your testimony has been well, with these elevations we shot at some point, it's not going to work, but if I look at the elevations on December 10th, they're still 9745, in February, they're still 9745, I assume in April, they're still 9745. So I guess my problem is personally, you've gone through all this time period and all of a sudden, this man's done all this work relying on, quote, unquote, these engineers, you've come up and said, whoops, this isn't going to work, we want you to spend a bunch more money to solve this problem. Now, that's where we're at, trying to make a decision. We're not saying he's probably not, so to speak, guilty of not following this document that you've issued. What we're trying to figure out is when you issued this document, it seems like it should have been issued a long time ago and this problem wouldn't have existed, but it seems like you went through all this time period, nothing has changed, elevations are all the same, they're your numbers not mine, and now we're saying, gee, we're gonna cite you because you didn't do this. He's about to CO his building, somebody decides, oh, I read the numbers, it won't work, now you need to make this change. If you agree to make it, we'll give you your CO. The guy is between a rock and a hard place, he'll agree to anything at this point. He's like most people, you know, he wants to get his building open. So we're trying to be fair at (sic) everybody, and that's why we really want to understand who did what at what point in time, and yet we still don't know what you've actually done won't work. MR. SPENCER: Well, through the numbers, it won't work. CHAIRMAN FLEGAL: But the numbers on these documents that we're looking at are the same. They've never changed. MR. SPENCER: Right, that's because of the -- the grades of the pipes won't change, they shouldn't change, that's invert of the ditch, the existing ditch out there before it was closed in with pipes or driveways went across them pipes, so those elevations shouldn't change. What the elevations should have changed for drainage purposes is above the pipes, on top of the Page 51 November 30, 2000 pipes, which that's what's creating the problem, is the elevations above the pipes wasn't installed at the proper elevations. CHAIRMAN FLEGAL: Are you saying that is -- that when he laid the driveway, he laid the driveway higher than he was supposed to? MR. SPENCER: In accordance with the drainage, yes, it's too high. CHAIRMAN FLEGAL: In other words, if we looked at a set of drawings that he submitted originally, I'll just pick off the wall, the driveway was supposed to be 18 inches high from the center line of the road and he actually put it in 24 inches high, just hypothetically? MR. SPENCER: The original drawing was straight off the parking lot, straight down to the road, that was the original drawing, the original way it was issued. The engineer and I got together because of the conflict with the two pipes, and I said well, we need to put an inlet there to pick up the drainage. The engineer said no, I'll put a swale in the driveway, which he attempted to put a swale in the driveway, there is a definite swale in the driveway. That swale is not deep enough so the water can get over across the top of it without backing up on the east side. MR. KUCK: I think what Bill is saying, the swale that they attempted to put across the driveway here, the elevation of that swale is higher than what the ground is out here, so there's no way to, when water's coming in here, to bring it on across. CHAIRMAN FLEGAL: Okay. Instead of the driveway having a little concave in it -- MR. KUCK'. Right. CHAIRMAN FLEGAL: -- it's more or less flat. MR. SPENCER: Well, there is a definite swale there. It's just not a deep enough swale to pick up the water from the east side. CHAIRMAN FLEGAL: But putting this swale in, was this on any drawing or was this just talked about among the engineers? MR. SPENCER: The engineer designed it, Terry Kepple. MR. LEHMANN: It was on a drawing? MR. SPENCER: No. CHAIRMAN FLEGAL: Okay. It was just talk? MR. SPENCER: No, that's his design. I think he went out there and set the grades for it. Page 52 November 30, 2000 MR. LEHMANN: Is there anything on paper? MR. SPENCER: I don't believe so, because our talk was over the phone. As you can see I just drew it in by hand, say (sic) band. I said just make sure the drainage functions across the top of that -- to relieve the water from that east side, and he said he would and I took him at his word. CHAIRMAN FLEGAL: Okay. MS. TAYLOR: I'm very concerned about the ramifications of this board maybe not bringing Mr. Trapasso into compliance, that's what's really worrying me. MR. LEHMANN: I don't think at this point the board has even got into that area. I think we're still trying to understand the issue. CHAIRMAN FLEGAL: Yeah, we haven't got that far yet. I don't -- I would say there's probably not a likelihood that we're not going to find some finding of fact. What we're trying to understand is before we get to that stage, we want to make sure we understand who said what to whom and who put what on paper at what period of time first. MR. LEHMANN: My personal problem is, I'm having a hard time understanding by what standard or what governing entity are you upholding the respondent to constructing what you have, what you're asking for, and that's what I'm saying. By what standard, how or what justifies you to say the drawing on page 11 is the way it should have been and that he did something wrong? MR. SPENCER: Okay. It's called -- in the right of way ordinance, there's a clause called offending material and any time a contractor builds something or puts something in the right of way under a permit and it creates a conflict, regardless if it's built in accordance with the plan or not, if it's still a conflict, it's his responsibility to fix the conflict so there's no longer a conflict in the right of way, and that's under offending material in the right of way ordinance, 9364. MR. LEHMANN: So what you're saying is by the standards of that ordinance, you have then gone out and done a field inspection and determined that you will have offending material and you're calling in that ordinance to give you the right to ask this respondent to change the approved design? MR. SPENCER: That's one method, yes -- Page 53 November 30, 2000 MR. LEHMANN: Is that what you're doing? MR. SPENCER: -- of getting this accomplished. MR. LEHMANN: The problem I have is, again we have an owner, who -- typically owners tend to be a little bit divorced from the intricacies of the process -- he's done it one way, he's done it a second way, and now we're asking him to do it a third way. MR. MR. MR. MR. MR. SPENCER: LEHMANN: SPENCER: LEHMANN: SPENCER: MR. LEHMANN: He didn't do it -- he's only done it one way. That's correct. He never did it the first way. And that one way, was it approved or not? On paper it was approved. So as far as the owner's concerned, he thinks he's doing what you guys asked him to do? MR. SPENCER: Absolutely. MR. LEHMANN: Now we're saying, at the point in time when he's getting ready to get the CO, we're holding him hostage and saying -- MR. SPENCER: He never constructed it the first way it was issued. CHAIRMAN FLEGAL: But you agreed to the change, because you issued and signed off on it. MR. SPENCER: Right. CHAIRMAN FLEGAL: So let's not hold him at fault for the first time. You agreed to, quote, unquote, maybe assist to make it fit MR. KUCK: He didn't build it three times, he's only built it one time. CHAIRMAN FLEGAL: But there's -- we're going through three drawings, that's the problem. MR. LEHMANN: At the point in time when he's calling in for a certificate of occupancy, now you're saying what we approved isn't going to work? MS. ARNOLD: What they verbally approved. CHAIRMAN FLEGAL: You signed off on it, so you approved it. MR. SPENCER: We approved that design, as long as it would function. CHAIRMAN FLEGAL: It doesn't say that on this piece of paper. MR. SPENCER: Doesn't say it on a piece on paper, but when Page 54 November 30, 2000 you build something in the right of way it's got to function. CHAIRMAN FLEGAL: I understand, but what we're concerned with -- I mean, anybody can just issue a piece of paper every day and the public is held captive to somebody just issuing a piece of paper and that's not fair to the public. MS. ARNOLD: Well, the real -- the other situation that the board has to keep in mind is that staff was not going to issue a certificate of occupancy, and the only reason why they issued the certificate of occupancy was that the owner agreed to correct the problem, and that's why we're here today, because the owner is not complying with the agreement that he made with the county to correct the problem conditioned upon the approval -- you know, that was a condition about the issuance of the certificate of occupancy. MR. LEHMANN: I understand that. The problem I have with that process is at that point in time when the owner is trying to get a CO, as Cliff said, he will sign anything to get the CO, you have him hostage, he's got his hands tied behind his back. He's got no other alternative other than to say I'll do whatever you want. That bothers me as a member of the general public. As a member of the construction industry, I understand exactly what you're saying as far as follow the standards and do it right. The other thing that bothers me is you have three professionals here that are supposed to understand on paper whether something is gonna work or not. You have a layperson there that hasn't got a clue, he's hiring engineers and we as a county hire engineers to be able to tell us specifically whether or not something is going to work. All three of them got together and said yes, it will work. Now you're saying no, it didn't. MR. KUCK: Well, I'd like to interject one thing. You're talking about the three different plans. Plan one, which was the way it was permitted with a mitered end section, that would have worked. They came forward and decided for whatever reason to connect those pipes. So then you get into plan number two. Part of plan number two, you would have to take and put a swale across that driveway to pick up the water on the east lower side. That is the direction they went, but they did not get the swale in the driveway cut low enough to pick up that water. So the third plan Page 55 November 30, 2000 MR. LEHMANN: Can I interrupt for just one second, please? You're saying plan number two required a swale across the driveway. MR. KUCK: That's correct. MR. LEHMANN: I don't see any swale here on the driveway. As I look at this, I'm seeing we're connecting the pipe from the far right and that goes under the driveway in a culvert to a mitered joint on the other side. MR. KUCK: That's on plan number one. MR. LEHMANN: No, that's on plan number two that's on the screen right now. So to me, this means you got rid of the mitered terminus onto the outfall. MR. KUCK: Again, it's my understanding that when Bill talked to Terry Kepple, the engineer that designed this, when they agreed to do that interconnection, and I guess what you're saying is it's not in black and white, but part of that agreement on the interconnect was that they would swale that driveway, so you'd be able to take the water from the east across there to runoff water. When we went out to do the CO, that did not occur. It was not built low enough to do that. So that's when we identified the easiest fix and that gets into plan number three, would be to put an inlet in, in lieu of that. Now, I don't know if I complicated or -- CHAIRMAN FLEGAL: No, you made it real easy, and let's ask a real easy question. We keep talking about a swale on the driveway. On some drawing is there this swale called out? MR. KUCK: I do not believe, and Bill can correct me if I'm wrong, it's my understanding that in Bill's conversation with Terry Kepple that was part of what was agreed upon, they can go ahead and interconnect the pipes, but they would have to take and swale that driveway to pick up the lower area on the east side of the driveway. CHAIRMAN FLEGAL: I understand that part. What I'm looking for, is there some piece of paper, other than a couple of engineers, the county's engineers and his engineers talking to each other on the phone saying, gee, put a one inch swale, a two inch swale, a four inch swale, whatever, is there any document that says that? MR. SPENCER: No, sir, there's not. Page 56 November 30, 2000 CHAIRMAN FLEGAL: So there's possibly a loss of verbal communication between engineers, the owner and his concrete people saying how they're supposed to do it and it just ended up where it isn't going to work, is that about where we're at? MR. KUCK: You're correct. MR. SPENCER: But they did install a swale across that drive. CHAIRMAN FLEGAL: It's not deep enough. MR. SPENCER: It's just not deep enough to handle it. CHAIRMAN FLEGAL: Let's take about five or ten minutes for our stenographer, please. I think we're at a point where we can come up with an answer. (A brief recess was had.) CHAIRMAN FLEGAL: We'll call the meeting back to order, please. And we are still on case 2000-042. Does anybody on the board have any additional questions they would like to ask anyone from the staff or the respondent, or are they prepared to issue a finding of fact? MS. SAUNDERS: Yes, we are. MS. ARNOLD: I would just like to add that we do have a final approved document on April 14 -- or April 11th of 2000 that is what we based our violation on, and that's the document that we submitted our notice of violation and initiated the process based on. That's the final document that was approved that the staff agreed would correct whatever drainage problem is there. Also, we do have the letter from the property owner stating that he would correct the violation and comply with that final plan, and that's what we based our case on. MR. PONTE: I'd like to ask Jean, is that letter of the 19th -- that's the letter you're referring to, Michelle, right? MS. ARNOLD: Correct. MR. PONTE: Is that a contract? Does that make a contract MS. RAWSON: I would call that a contract, but we're not here on a breach of contract. We're basically here because the county has filed an affidavit of noncompliance based on the 4/11, which is on page 11 in your packet. That's the last approved plan and that's what's not in compliance and that's why we're here. CHAIRMAN FLEGAL: Right. Page 57 November 30, 2000 MS. RAWSON: a contract. MR. PONTE: Thank you. CHAIRMAN FLEGAL: Okay. finding of fact that there, in fact, But in answer to your question, it probably is Is there, from the board, a is a violation? MS. SAUNDERS: Mr. Chairman, I'd like to summarize my thought very briefly. I do not believe that there is a violation. The reasons I do not is that the county approved, then changed, then reapproved what the property owner was asked to do. It kind of sounds like recounting chads, but -- I believe any changes that were requested were basically done verbally, if they were. I'm very disturbed by the county's actions. I don't feel they were equitable to the property owner, and I feel that some supreme pressure or coercion was actually put on the property owner. I would hold that the letter that he signed was not a valid letter. And I'm not a lawyer, but I think he was coerced into signing it, I really do. And to top it all off, we have testimony from the property owner that is sworn that there is no drainage problem. We have testimony from the county that says, on paper there's supposed to be a drainage problem but we don't have any evidence that there is. I think if there's a problem at all the county caused it, and so I see no violation as far as the property owner is concerned. MR. PONTE: I concur. I don't believe that the county has made its case. I don't see that the evidence is here. And it would be my recommendation that the charges be dismissed against the respondent. CHAIRMAN FLEGAL: If you would like to make a motion, we'll see if that would garner a second and any carrying. MR. PONTE: Okay. In Collier County versus Florida Metal Master, Incorporated, CEB Case 2000-042, the Collier County Enforcement Board at a public hearing on the -- what's today's date? CHAIRMAN FLEGAL: 30th. MR. PONTE: -- on the 30th of November, year 2000, finds from the evidence that the charges contained in the affidavit of violation filed in this cause have not been sustained by the evidence and, therefore, the charges against the respondent should be dismissed. MS. SAUNDERS: I will second that motion. Page 58 November 30, 2000 CHAIRMAN FLEGAL: Okay. We have a motion and a second for the dismissal of charges for lack of evidence, to simplify it. Any question? All those in favor, signify by saying aye. Those opposed? MS. TAYLOR: Yes. CHAIRMAN FLEGAL: Okay. Motion carries, six to one. Charges are dismissed. MS. ARNOLD: So it's the board's position that there was no violation of proof? CHAIRMAN FLEGAL: There's no finding of fact that there, in fact, is a violation. MS. ARNOLD: Okay. CHAIRMAN FLEGAL: That's all we have to do, isn't it? MS. RAWSON: Yes, legally that's it. CHAIRMAN FLEGAL: Okay. Thank you. MS. SAUNDERS: Thank you. Sorry. CHAIRMAN FLEGAL: That concludes the public hearings. Public hearings are closed. On to new business. CEB-2000-031, imposition of fines, it's an administrative procedure. MS. ARNOLD: Okay. Let's see here. On September 28th the board heard this particular case, which is Board of County Commissioners versus John Danks, code case number 2000-031. That was a violation of repairing a roof and structure without first obtaining Collier County building permits. The board at that time gave the respondent until November 12th to comply or fines of $150 would be imposed each day the violation remained. Staff has prepared an affidavit of noncompliance reflecting the date of November 17th, and at this time we're asking that fines be imposed for the amount of $750 for a period of November 14th through November 17th at a rate of $150 per day plus $626.16 for operational costs. CHAIRMAN FLEGAL: I have one question. We gave the respondent until November 12th, which I assume carries through till midnight. What happened to November 13th? We're starting on November 14th. MS. ARNOLD: I agree, I agree. I just was wondering the same thing. Page 59 November 30, 2000 CHAIRMAN FLEGAL: Are we giving a free day here? So let's -- I think your paperwork needs to be corrected. MS. ARNOLD: We would add an additional 150 to the 750, for a total of 900. CHAIRMAN FLEGAL: I would entertain a motion to accept the imposition of fines. MR. LEHMANN: So move. MS. TAYLOR: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the imposition of fines as correct. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. Old business. Request for reduction of fines. I don't see anything in our packet, so -- MS. ARNOLD: There -- this was on your prior agenda, Board of County Commissioners versus Shad Davis. The attorney requested to be placed on the agenda today for a reduction of fines, and I believe he is here today. MR. GARBER: Good morning, ladies and gentlemen of the board. CHAIRMAN FLEGAL: One moment, sir. Would you swear him in. (Witness was sworn.) CHAIRMAN FLEGAL: Before we start, sir, I would like to preface this by telling you, we are not going to rehear the case. You requested a reduction in fines. What you need to do is convince us that the fines should be reduced, okay? We are not going to rehear the case. You need to understand that. MR. GARBER: Okay. CHAIRMAN FLEGAL: Okay? MR. GARBER: I had hoped to give a brief rundown, but I will not do that. I will just get into exactly why we think that it should be done. I had submitted a letter from a Russell Garwood. He's the licensed electrical contractor that did the work on the property and received a CO -- or a permit to do that. I have, in addition to that letter -- I hope the board has copies of that letter. I sent it in. I have one copy of that, but I do have two copies -- Page 60 November 30, 2000 CHAIRMAN FLEGAL: Okay. Let me stop you a second. Michelle, do we have this letter, or whatever it is? There's nothing in our package, so -- MS. CRUZ: I'll have the copies made. CHAIRMAN FLEGAL: Okay. Continue, sir, till we get the copies. MR. GARBER: Okay. I do have copies of an affidavit that he came by and signed yesterday. The letter that he wrote did not give dates that I thought the board might be interested in in order to make a full determination of how to weigh his statements. I have nine copies with me. Can I distribute them now? MS. ARNOLD: I'll do that for you. CHAIRMAN FLEGAL: Ms. Arnold will take care of that. Thank you. Okay. MR. GARBER: This board in a meeting on July 27th found that Mr. Riina, who is the representative for Shad Davis, was in violation of several different code aspects on his property on Davis Boulevard, and the board found three types of violations and they gave fines of $250 for each one of these violations. They were, number one, that there was a life safety violation that had been found by the Collier County electrician, Kurt Luedtke, inspector, in one of the buildings that he had out there. Because of that, the board gave Mr. Riina 24 hours to lock up and secure the property to prevent the danger from being -- anybody in the public to be exposed to that. The board then gave him a $250 a day fine for every day after that 24 hours that it was not secured. The board gave him seven days to cure the life safety electrical condition on the property with a $250 a day fine for every day thereafter that it was not cured. Then finally the board gave him a $250 a day fine for all the other violations that he had, and he had numerous violations. There were screens out, some electrical receptacles were not property covered, that type of thing. Those were all to be done within 30 days or else there would be a $250 a day fine. Mr. Riina felt that he already complied with this but he had an unlicensed electrician that went in there before July 28th. Apparently no permit was pulled. The electrician was not here to tell us what he did, and so there could be no finding of fact other than what the electrical inspector originally said back in Page 61 November 30, 2000 January, that, in fact, there was a life safety violation out there. When Mr. Garwood, who is a licensed electrician, went to the property in, I believe he said, August 2nd of -- I'm sorry -- July 29th of this year with Mr. Riina, he found that, in fact, there were no life safety violations. They had been corrected in the time since the electrical inspector looked at the property in January of 2000. There were, however, electrical problems that needed to be fixed. He went ahead, got the permit, called in the same inspector, Mr. Luedtke, to come in and look at the property. According to Mr. Garwood, Mr. Luedtke also confirmed that there were no life safety violations at that time. And over the period of the next month, he proceeded to do the work. According to him, he spoke with Cathy Van Poucke who told him that since there were no life safety violations, that the fines would be waived. And he did not realize the urgency of having the work done and he tried to fit it in with his scheduled work otherwise as best he could. He was not able to finish the work until about the 2rid of September of this year. That was right before Labor Day. And he was able to get inspected and certified then on the 5th, I believe, of September. Based upon those facts, if, in fact, those are the facts, I would ask that the fine be reduced. The fine had been calculated by the board to be approximately $19,500. And I believe they arrived at it roughly in this fashion. They counted 24 hours to lock and secure the property, which, by the way, Mr. Riina says he did. He nailed boards over the doorway and boards over the windows, but he says that it was broken into after that and he had to go back and reaccomplish it a couple of times and each time people went in and broke into it. Nobody lived in the property in this period. It was not inhabited. It was not for rent. He did not live there. Anyway, 24 hours from July 27th would have started on July 28th, until the 6th of September, that would have been 40 days. So $250 times 40 days, and then I believe the board went with the $250 a day for every day after the 3rd of August on correcting the life safety electrical work. That would have been 33 days at $250. And finally, I believe they imposed a fine of $250 for every day after the 27th of August that the other work had not been Page 62 November 30, 2000 certified as being completed. That's 10 days. When I added all that up, I came to 83 days at $250 a day. It actually -- my figures came to 20,750, but I think the discrepancy may be that the order of this board was not actually signed until the 1st of August, I believe, which was a few days later, and I ran my calculations from the day of the board hearing. So the board achieved a fine of 19,500. I would ask that the fine be reduced in light of Mr. Garwood's affidavit. If there was no life safety violation on the property on July 28th, 2000, then there was no need that the property should be secured against the public because there was nothing threatening the public. I would ask that that element of the fine be eliminated, and I would further ask that the element of the fine pertaining to the life safety violation, which apparently had been corrected prior to the meeting of the board on July 28th, that that not be imposed either; however, I do acknowledge that there was some other work that had to be done. And going by my calculations, there was 10 days' time at the end of 30 days that the work had not been done until the 6th of September, and that's $250 a day for 10 days. I got $2500. Based on these facts that I have learned and I am now presenting to the board, I would ask that Mr. Riina's fine, Shad Davis' fine be reduced to $2500. Thank you. Can I answer any questions? CHAIRMAN FLEGAL: Okay. The county-- on the 8th of August is the first time the county stated that there were no life threatening health or safety problems, correct? MR. GARBER: That's my understanding, yes. CHAIRMAN FLEGAL: Okay. So between the time the order went in, which is 7/28, until August 8th, there possibly were life threatening -- MR. GARBER: Mr. Garwood told me he did not do any work in that intervening period. MR. PONTE: I'd like to remind my colleagues that there are -- I think my memory is correct, that the other life threatening situation there involved the empty swimming pool, that was one. There were sanitation problems. So we're not just addressing electrical problems. CHAIRMAN FLEGAL: Correct. Page 63 November 30, 2000 MR, GARBER: May I respond briefly to that? CHAIRMAN FLEGAL: Surely. MR, GARBER: I was at the board hearing that day, and there was some discussion as to what life safety meant, and I believe that the consensus of the board, and my notes indicate this, that the life safety problems that the board was concerned with -- and you are exactly right, there was an empty swimming pool -- but the ones that they meant by this order were the electrical ones outlined by Kurt I. uedtke in his report of January 6th, 2000. That centered around a control panel in one of the buildings out there. There were three aspects of that control panel that apparently represented a life safety hazard. CHAIRMAN FLEGAL: One thing that can, I guess -- I won't say concerns me, but I can't find a proper word. This courtesy inspection that was done on August 8th by Mr. Luedtke where he says these didn't exist -- and prior to that, evidently Mr. Riina had work done by an unlicensed electrician without permits. You actually didn't get any -- a, quote-unquote, official inspection with permits and everything until September 5th. MR. GARBER: That's correct. CHAIRMAN FLEGAL: Prior to that time all you had was a -- and I don't know what Mr. Luedtke did, you know, whether he walked through or whether he took -- opened breaker -- I don't know. But since you didn't have any, quote-unquote, permitted work done, it's safe for me to make the assumption that I'm really not sure officially, as we all must live by, that everything was corrected until at least this September 5th date. That's when you actually got a certification that the final inspection was done by the county and said, yes, you've corrected everything. Is that what I'm reading in this affidavit, item 9? MR. GARBER: My understanding is there was a final inspection on September 5th. CHAIRMAN FLEGAL: That's what I'm saying. September 5th is when we actually got a final inspection that said everything had been corrected. MR. GARBER: That's correct. CHAIRMAN FLEGAL: And prior to that~ all you had was somebody walk through -- and again, not being there, I don't know what he looked for, looked at, you know, and said, well, I don't see any life threatening at this point. Page 64 November 30, 2000 MR. GARBER: Yes. CHAIRMAN FLEGAL: But we didn't get it actually signed off, which is what our order said you had to do, get it solved, not just have somebody walk through and say, gee, looks okay to me. You could have had the milkman do that, so that doesn't work for me. MR. GARBER: That's correct. There were numerous small electrical things that all had to be done. CHAIRMAN FLEGAL: Okay. I just want to get, from my own perspective, into when we actually had somebody from the county inspection office go say, yes, you've done what you're supposed to do, and that happened on this September 5th date for the electrical? MR. GARBER: That's my understanding. CHAIRMAN FLEGAL: Okay. MS. SAUNDERS: Sir, am I correct that on August 8th when Mr. Luedtke walked through, he couldn't grant a -- an electrical permit or approval because there were still some minor problems? So you couldn't have gotten a final inspection on August 8th? MR. GARBER: That's my understanding. There was numerous minor electrical work that had to be done. MS. SAUNDERS: Okay. CHAIRMAN FLEGAL: Yes, ma'am. MS. ARNOLD: The inspector is here for the -- that testified on this particular case. If you-all have any questions for Ms. Van Poucke, she's here. CHAIRMAN FLEGAL: Just to refresh our memories to make sure what dates we're doing. Does staff have the actual dates that were used for imposing the fine? If you'd give us those, please. MS. ARNOLD: There is the initial 24 hours, which was 7/29, through September 5th. CHAIRMAN FLEGAL: Twenty-ninth through the 5th, okay. MS. ARNOLD: And then there was the date of August 27th for correcting all violations within 30 days, which is August 27th through, again, September 5th. CHAIRMAN FLEGAL: Okay. MS. ARNOLD: Okay. And then we also had the August 3rd date for correcting all the health safety electrical violations Page 65 November 30, 2000 within seven days, and we calculated from August 4th to September 5th, and that was based on obtaining permits, and a permit record was checked, and we had no indication from the electrical inspector that any courtesy inspection was done. CHAIRMAN FLEGAL: Okay. I just want us to be -- so that if any consideration is to be considered, I want to make sure that we all understand what time periods we're dealing with so that -- while we may or may not agree with whatever, that we're all working at least with dates that were issued originally. And if we make any changes, they should be based on the understanding of what the original dates were. MS. SAUNDERS: The August 4th through September 5th, the last one, was for which violations? CHAIRMAN FLEGAL: The health and safety. MS. ARNOLD: Yes. MS. SAUNDERS: Okay. Not the electrical? MS. ARNOLD: Yes. MS. SAUNDERS: Okay. CHAIRMAN FLEGAL: Just to make it easy, 4th through the -- MS. ARNOLD: We have those numbers figured out if you want us to -- CHAIRMAN FLEGAL: Okay. The only one I haven't got yet is the July 29th through September 5th. How many days is that? MS. ARNOLD: July 29th through September 5th, two hundred -- no. CHAIRMAN FLEGAL: That's the only one I didn't do so far. MS. ARNOLD: Thirty-eight days. CHAIRMAN FLEGAL: Thirty-eight or thirty-nine? Through September 5th. That's five there, 31 in August and three in July? That's 39. MS. ARNOLD: Well, the -- CHAIRMAN FLEGAL: Three, 31, and five? MS. ARNOLD: The number that we calculated was 38 days. CHAIRMAN FLEGAL: Okay. I'll live with your number. MS. DUSEK: The July 29th through September 5th, were those for health and safety? CHAIRMAN FLEGAL: That was not securing the building. That has to do with the 24-hour period; does it not, staff? MS. ARNOLD: Uh-huh. CHAIRMAN FLEGAL: So not having the building secure is Page 66 November 30, 2000 what they're -- MS. ARNOI,D: Right. CHAIRMAN FLEGAI.: -- they base that on. The other item has to do with electrical and then health and safety, so you have three items. If you're going to consider anything, you can consider one, two or all or none. MS. SAUNDERS: I am inclined to -- based on testimony, to agree that on number one, which was the life threatening ones, that it appears that that was taken care of, although, I agree, they had not gotten the final inspection. But it sounds to me like some dates and times fell into play there. If we take the word of the electrical -- the electrical contractor, who says there weren't any -- and Mr. l,uedtke who says that he did a courtesy inspection and that he didn't find anything, so I would suggest that the property owner did what he could for that portion of it and, perhaps, look at eliminating that portion of the fine. I think the other two still hold and that they just didn't get the rest of it fixed. I throw that out for the board's discussion. CHAIRMAN FLEGAL: Okay. The time period you're dealing with is the 10-day period? MS. SAUNDERS: No. I think it's July 29th through September 5th, which is what we called -- that was the first violation, the life threatening one. CHAIRMAN FLEGAL: That's for not having the building secured. MS. SAUNDERS: That's right. CHAIRMAN FLEGAL: Okay. That's the one you're talking about? MS. SAUNDERS: That's correct. CHAIRMAN FLEGAL: Okay. Has staff got the figures on -- let me ask this question so maybe it will help some of the members. On the 24-hour, which is the 38-day period, do you have a dollar figure for that, on the 38 days? MS. ARNOLD: Ninety-five hundred. CHAIRMAN FLEGAI,: Okay. And on the other one, the 10 day would be pretty easy, that's $2500, that's the period, 27th through August 5th, and then the 33-day period, do you have that one? MS. ARNOLD: Eight thousand. CHAIRMAN FLEGAI.: Eight thousand even? Page 67 November 30, 2000 MS. ARNOLD: Yeah. CHAIRMAN FLEGAL: Okay. We're looking at -- this all totals up to $20,000, and I think we came to 19 something, so -- any additional comment from anybody else on the board? MR. LEHMANN: Ladies first. MS. DUSEK: My general feeling is that -- I remember this case, and what a disaster the property was and it was going to be a mammoth job to try to correct it. And I think he did make some effort, and I agree with Rhona. I like her suggestion. MR. LEHMANN: Well, my comment revolved around actually the issue, number two, where we cured the life safety issues. According to the affidavit we have, Mr. Luedtke -- is that correct -- had performed a courtesy inspection on the 8th of August, and according to that, the affidavit is saying that Mr. Luedtke had approved it as far as no life safety issues existed at that time. Unfortunately this is the only evidence we have of that condition. CHAIRMAN FLEGAL: You say Mr. Luedtke is here? MS. ARNOLD: Oh, no. Ms. Van Poucke. We weren't given that affidavit other than today. Had we been given that information, we could have verified some of the things that are in it. MR. LEHMANN: That's my point. MS. ARNOLD: I mean, one of the things that is being pointed out in the affidavit is that Inspector Van Poucke told them that the fines were going to be waived. She stated that she said no such thing. So, you know, there is -- yes, it's a legal signed document saying that this is what he's testifying, but we had no information prior to this meeting to verify any of it. MR. LEHMANN: Regardless, we did have a final inspection on the electrical on the 5th. CHAIRMAN FLEGAL: Fifth, right. MR. LEHMANN: So we do have evidence supporting that on both sides of the case. CHAIRMAN FLEGAL: Right. And the reason I asked the question earlier was this is -- the 5th is really the only date that you, I think, should officially accept as the work being done, because that's when the inspector signed off and certified that everything had been done. Prior to that, I think, as Riina's attorney represented that stuff may have been done by an unlicensed, unpermitted applicant, which that doesn't mean that Page 68 November 30, 2000 it was done correctly, and we can only -- I mean, we wanted the work done correctly. MR. PONTE: You could take point eight though, Mr. Chairman. He says he finished the work on September 2 and couldn't get the inspection done because of the Labor Day holiday. CHAIRMAN FLEGAL: Yeah. MR. PONTE: So we're only talking three days there. CHAIRMAN FLEGAL: Seven hundred fifty dollars, and if you apply that to each item, so three times three -- you know, you're at about 22, $2300 off the 19 something. MS. SAUNDERS: But we also do have some evidence that says that they could never have gotten a final inspection approval on August 8th or any time earlier because there were some non-life threatening electric work that had to be done. I don't think we -- I mean, I don't think he could have given -- he possibly could have gotten one, and I hate to fine him for something that would have been impossible. MR. LEHMANN: Ms. Rawson, explain a point of law to me. An affidavit is equivalent to a witness' testimony in the absence of the witness; is that correct? MS. RAWSON: Yes. Clearly, it's hearsay, however-. CHAIRMAN FLEGAL: That's correct. MS. RAWSON: -- this -- we, you know, relax the rules of evidence in a code enforcement board hearing. This is the attorney who brought it in. An affidavit is a sworn statement under the penalties of perjury that whatever you've alleged there is the truth to the best of your knowledge and belief. So it would be -- it's more difficult because you can't cross-examine an affidavit. And Ms. Arnold pointed out that she didn't have an opportunity to verify the information. But in answer to your question, yes, it's a sworn statement that Mr. Russell Garwood is telling you the truth. MR. LEHMANN: And my problem with it is the fact that we don't have the opportunity to cross-examine, as you say, or to question what's happening with the other side's witness. CHAIRMAN FLEGAL: I've said it twice. I guess what concerns me is remembering the property, remembering the case, I'm a little reluctant to accept somebody's sign off, I guess, that's not official. I understand Mr. Luedtke was trying to -- Page 69 November 30, 2000 probably trying to do them a favor and help them as best he could. And remembering pictures of the property and what it looked like, many things could have changed. People could have put plates over this, covered that, covered that, and you walk through, again, not having the luxury of asking Mr. Luedtke what he did. I still fall back to the September 5th, and I will acquiesce, since we had a holiday there, that I'm not diverse to going to September 2nd. But I don't know that I can, with good conscience, go all the way back to August 8th without a whole lot more information. MR. LEHMANN: I would agree with my colleague because the only official document that we have as a board is what occurred on September 5th from the county, barring the affidavit, obviously. And I think, you know, it's only fair to go back to September 7th (sic), because if the work was completed in a condition that was approved on the 5th, just getting the inspector out there those three days -- MR. PONTE: He said he completed the work -- I finished the electrical work on or about September 2. MR. LEHMANN: Right. CHAIRMAN FLEGAL: Right. He said the 7th. MR. PONTE: I thought you said the 7th. CHAIRMAN FLEGAL: It was an error. MR. LEHMANN: I'm sorry. CHAIRMAN FLEGAL: I wouldn't have a problem with that. I understand and we take him at his word. He signed the affidavit, so I have no problem going back to that. But going beyond that, I have a little problem. And as I'm sure the attorney representing Mr. Riina understands, that Cathy -- is it Poucke or -- I don't know how you say it. MS. ARNOLD: Van Poucke. CHAIRMAN FLEGAL: -- Poucke saying the fines would be waived. That's kind of like a judge issuing an order and the lawyer saying, you don't have to pay it. That's never going to happen. In this case, this board issued an order, and nobody else is going to change it but this board, so whether it was or it was not said, we'll let it ride, but unfortunately, I think, since Mr. Riina has at some point hired an attorney to look into this, I'm sure the attorney was aware that no one could change that other Page 70 November 30, 2000 than this board. So the pleasure of the board? We have three time periods, one starting September 20 -- I'm sorry, July 29th going to the 5th, one starting August 4th going to the 5th, one starting August 27th going to the 5th. Is it the board's pleasure to do anything with those time periods to reduce the fine? MS. SAUNDERS: Well, just to make some things happen, I will move that the board waive the fines for the period of July 29th through September 5th for the one viola -- the life threatening violation and retain all other fines with the reduction -- with the date running through September 2nd rather than September 5th for the incurrence of all fines. MS. DUSEK: I second it. MR. PONTE: So I understand this, you are suggesting that the fine be waived -- I'm just restating it as I think I heard it -- for the entire period, July 29th through September 5th? CHAIRMAN FLEGAL: That's one section. MR. PONTE: For one -- MS. SAUNDERS: For the first one only. By my figuring that would reduce $9500. I'm saying we retain the fines for the other two, except we cut them off at the 2nd rather than the 5th, which would leave a fine of $9,000 plus expenses. MS. ARNOLD: Based on what evidence? What -- MS. SAUNDERS: I am accepting the affidavit which says that the electrician did not make any life threatening -- any corrections to any life threatening indication there and that Mr. Luedtke did walk through -- MS. ARNOLD: Okay. But the section that you're modifying pertains to securing the building. MS. SAUNDERS: Ah. CHAIRMAN FLEGAL: Yeah, that's-- MS. SAUNDERS: I stand corrected. Just a moment. CHAIRMAN FLEGAL: The three sections where one was securing the building, i.e., making sure it's locked up, boarded up, whatever word or -- you know, I mean, I guess you can go to extremes and say you have an armed guard on the property to keep people away, but anyway, we just said board it up or do something with it. Then we had the life threatening, i.e., electrical type that he had to correct within a period, and then we had the other items -- Page 7t November 30, 2000 MS. SAUNDERS: Which are the life -- CHAIRMAN FLEGAL: -- I think were health and safety, or something, issues. MS. SAUNDERS: Which are the life threatening electrical problems that had to be fixed? The fines for that particular portion is what I'm suggesting we eliminate. CHAIRMAN FLEGAL: Okay. Is that the portion that stems the -- I need to ask that. Is that the portion that stems the 10-day period, the life threatening? Not having the order in front of me, I can't -- it's tough for me to remember what it said. But since we have three distinct time periods -- MS. ARNOLD: August 3rd -- so she has August 4th through September 9th. CHAIRMAN FLEGAL: Okay. That's the life threatening. MS. ARNOLD: Yes. CHAIRMAN FLEGAL: That's the 33-day period. MS. ARNOLD: Yeah, that's the 8,000. CHAIRMAN FLEGAL: Eight thousand and fifty dollars, or whatever it works out to be. MS. SAUNDERS: All right. Then I'll revise my motion to indicate that the period from August 4th through September 5th, that the fine for the life threatening, life safety issues should be waived. All other fines should be kept in place. MR. KINCAID: Through the 2nd. MS. SAUNDERS: Through the 2nd of September. CHAIRMAN FLEGAL: Does everybody understand the motion on the floor? To waive the 33-day period, which is 8,000 and some odd dollars. The other time periods are to remain the same with the reduction from September 5th down to September 2nd, which is three days in each case, which is two, four, six -- $750 of each of those, so eliminate the 8,000 some odd dollar fine, reduce the $9500 fine to 8,000 something, and reduce the $2500 fine down to $1750 or something like that, plus costs. Is everybody on board with that motion? MR. PONTE: I think so-- CHAIRMAN FLEGAL: I may have messed -- MS. DUSEK: I'm confused. MR. PONTE: -- but on the electrical portion, the date of August 8th would be the earliest date that you could assume, because it was just an informal courtesy inspection, that there Page 72 November 30, 2000 was no life threatening that existed. Up until that time, it did. I don't see we could possibly consider reducing the fine starting July 29th. CHAIRMAN FLEGAL: No, she's not reducing -- MR. PONTE: Twenty-seventh. CHAIRMAN FLEGAL: -- that one on the front end. She's reducing that one just three days on the rear end. MR. PONTE: On the rear end, which has to be done as well. CHAIRMAN FL. EGAL: No. She's not bothering that on the front end at all. MR. PONTE: Yes, she is. MS. ARNOLD: Yes, she is. She's saying to modify that altogether, to waive that altogether. CHAIRMAN FLEGAL: No, not on the 24-hour one. She's reversed herself on that. MR. PONTE: I'm saying that a fine should exist in one until August 8th. You want to stop the fine there. CHAIRMAN FLEGAL: Okay. MR. PONTE: On the electrical. I'm only talking the electrical work. CHAIRMAN FLEGAL: Okay. MR. PONTE: But to stop it just because -- for no reason. CHAIRMAN FLEGAL: Okay. I see what-- MR. PONTE: The earliest date. MS. DUSEK: You're saying July 29th through August 8th? CHAIRMAN FLEGAL: No. MR. PONTE: I'm saying the fine should run July 29th through August the 8th. MS. ARNOLD: You're confuse -- CHAIRMAN FLEGAL: You're dealing with the wrong item. MS. ARNOLD: You're saying that it should go from August 4th to August 8th. CHAIRMAN FLEGAL: August 8th. That's a different item. MS. ARNOLD: Right. CHAIRMAN FLEGAL: You have to separate the items. I thought that was a little confusing here. MS. ARNOLD: And what Ms. Saunders is saying is to waive that or reduce it altogether. CHAIRMAN FLEGAL.' She's saying reduce it altogether, waive it altogether rather than charge him for the four days, from Page 73 November 30, 2000 the 4th through the 8th. MR. KINCAID: May I say something? CHAIRMAN FLEGAL: Yes, sir. MR. KINCAID: It seems like we've had a situation here where the evidence that we've been presented is a little bit in the background. We're not really up to date on what has really transpired since we gave the order, and that's the way I feel about it. And I don't feel like we're coming to a conclusion because we really don't understand which way we're going because we don't have the knowledge. I don't know how anybody else feels about it, but -- MR. LEHMANN: Well, I think we've reviewed this case and reviewed this case. MR. KINCAID: I think we ask for a continuance. MR. LEHMANN: For myself I'm comfortable with the evidence as far as the case goes. MR. KINCAID: Okay. All right. MR. LEHMANN: We're discussing basically a reduction of fines. My colleague, Ms. Saunders, had said for the curative process of the life safety issues, she wants to eliminate that completely; is that correct? MS. SAUNDERS: That's correct, because based on the affidavit in front of us, I think the owner moved as rapidly as they could to prove that there was no life threatening issue. MR. LEHMANN: On the issue of securing the residence, that remains, and the issue of-- MS. SAUNDERS: All the other-- MR. LEHMANN: .- all the remaining remains. MS. SAUNDERS: That's correct. CHAIRMAN FLEGAL: Correct. MS. SAUNDERS: I've seen no evidence that they did anything about securing the premises or anything else until -- as a matter of fact, I've seen no evidence that they've done it now. We've only got evidence in front of us on the electrical work. I don't believe we actually have evidence that the property's been secured and all health and safety factors have been eliminated. MR. LEHMANN: I have a difficult time eliminating the fines completely on the correction of the electrical life safety issues. CHAIRMAN FLEGAL: Okay, that's fine. We only have a motion on the floor and not a second yet, so the discussion's Page 74 November 30, 2000 fine. Let's -- for everyone's ease, let's try it this way. Let's -- since we have three items, let's separate the three items and maybe we can move a little quicker. Let's take the first item, which is securing the building, which is a time period of duly 2gth through September 5th. Does the board wish to do anything to reduce that fine for that period? 11/15. SAUNDERS: I would like to ask the staff if they've gone by and seen if the building is secure or not, if we have a -- GHAIRMAN FLEGAL: Well, this is dealing with time that's already passed, so whether it's secured today or not is immaterial. MS, SAUNDERS: No. I meant during this period. MS. ARNOLD: Yes, we did, and we presented you-all with information that we had, and that's where we came up with the fines the way they were. GHAIRMAN FLEGAL: Right. 11/15, ARNOLD: And it was based on information that was provided to us and inspections that were done almost on a daily basis. MS, SAUNDERS: Okay. I recall now. MS. ARNOLD: And, you know, we haven't had a chance to even verify any of this information. GHAIRMAN FLEGAL: Okay, that's fine. Let me get back to my question. Does the board wish to do anything with that particular item of our order and time period? MS. SAUNDERS: No, MR. PONTE: I don't. CHAIRMAN FLEGAL: Okay. Let's move to the next one, which is, I guess, the life threatening, which runs from August 4th through September 5th. MS. DUSEK: Or 2nd. MS. SAUNDERS: That's a Thursday. CHAIRMAN FLEGAL: Well, the order, the way we imposed the fine, it was to the 5th of September. I'm asking you, do you wish to do anything with that as it was imposed? Now, if you wish to reduce it to the 2rid that's one thing, but right now it's currently imposed August 4th through September 5th. Does the board wish to change that -- and this is the life threatening item -- in any way? Page 75 November 30, 2000 MS. SAUNDERS: Life threatening electric or -- MR. LEHMANN: Correct. MS. SAUNDERS: Okay, life threatening electric. CHAIRMAN FLEGAL: Yes. MS. SAUNDERS: That is the one that I would like to modify because it appears to me, based on the affidavit, that there was some attempt to -- that it was taken care of. CHAIRMAN FLEGAL: Okay. And your motion would be to modify it how? MS. SAUNDERS: My motion would be to waive it, because as close as I can tell from the time they tried to get -- you know, they didn't get an electrical permit to even get in there until August 2nd. At that time the electrician is telling us there was no life threatening electrical problem. I would be happy to do it subject to verification by the staff, because I hear what Michelle is saying, and I am uncomfortable with the fact that it hasn't been verified, but -- MR. LEHMANN: Well, it was verified on September 5th. CHAIRMAN FLEGAL: It was done on the 5th. So what we're concerned with is during the 4th through the 5th is why we imposed it, and we need you to -- or we need someone on the board, if your motion is to waive it -- you know, I guess at least tell us why, and I think you've done that, because you feel that he started on the 2rid to do the work but we didn't actually get verification until the 5th, and you're saying since the inspector went through there as a courtesy on the 8th and said he didn't see anything, you feel that the fine should be waived based on that. Does that kind of cover it? MS. SAUNDERS: That's a good summary, yes. CHAIRMAN FLEGAL: Okay. MR. KINCAID: I'll second it. CHAIRMAN FLEGAL: We have a motion and a second to waive the electrical life threatening fine, which is a 33-day period, August 4th through September 5th. We have a motion and a second. Any further discussion? MR. LEHMANN: My concern with that is that we don't have any supporting evidence to show that. At best we have an affidavit that can drop it back to the 8th of August. But unfortunately this affidavit, there's no way for us as a board to confirm or deny what's in the affidavit, other than taking it on its Page 76 November 30, 2000 face value. CHAIRMAN FLEGAL: Understood. MS. DUSEK: Michelle, I just have one question for you. In that time frame someone went out there, inspected the electrical and said it still wasn't in compliance even though this affidavit, which we can't verify, says that there was this informal inspection on the 8th? MS. ARNOLD: My staff doesn't have the ability to perform an inspection like that. The affidavit is indicating that someone from our building department went out on the 8th and did a courtesy inspection and determined that there was no health safety issue. We're in contact with the building department on a regular basis. They're located right next door to us. We were in contact with the electrician during that time and explained to him that information needed to be given to our office if any subject inspections were -- occurred and none -- neither one of those things happened. CHAIRMAN FLEGAL: Okay. When we actually imposed the fine back -- and I've lost track of time now, when -- MS. ARNOLD: Right. CHAIRMAN FLEGAL: -- last month or the month before that, I think it was, since we imposed the fine as of September 5th, your presentation to us was that prior to September 5th -- MS. ARNOLD: There was no inspection. CHAIRMAN FLEGAL: -- these inspections hadn't occurred -- MS. ARNOLD: Right. CHAIRMAN FLEGAL: -- and according to your inspectors -- MS. ARNOLD: Right. CHAIRMAN FLEGAL: -- the violations still remained, that's why you wanted to impose the fine? MS. ARNOLD: Exactly. CHAIRMAN FLEGAL: Okay. We have a motion and a second to waive this one. Is there any additional discussion? All those in favor of waiving this portion of our order, signify by saying aye. Those opposed. NO. MR. LEHMANN: Nay. MR. PONTE: Nay. CHAIRMAN FLEGAL: One, two, three. Okay. We have three Page 77 November 30, 2000 nos. Were there any additional nos? And we have one, two, three -- did you vote yes, sir? I didn't hear you. MR. PHILLIPS: I did, yes. CHAIRMAN FL. EGAL: Okay. So we have four to three, so the motion carries. And the last item is the time period, 27 August through September 5th, which is a 10-day period for the finalizing of the other items. Is it the board's desire to do anything with that item? MS. SAUNDERS: No, I'll leave it alone. CHAIRMAN FLEGAL.' Okay. So the only amendment to our order is to waive the time period, August 4th through September 5th. Ms. Rawson, since we voted on it, you will take care of amending our order? MS. RAWSON: Well, I don't think I'll have to amend the order. What I think I'll do is I'll prepare an order on his request for reduction of fines. CHAIRMAN FLEGAL: Okay. MS. RAWSON: And as I understand it, it's by 33 days, correct? CHAIRMAN FLEGAL: Yes, ma'am. MS. RAWSON: Okay. CHAIRMAN FLEGAL.' That's it. All right, sir? MR. GARBER: Thank you. CHAIRMAN FLEGAL: Yes, sir. Any more old business? Seeing none, we get to reports. MS. ARNOLD: Okay. We are filing a release of order for case number 2000-17, which is Board of County Commissioners versus Mario and Natita (sic) Magistro, and we filed an affidavit of compliance on November 20th certifying that that violation has been abated. CHAIRMAN FLEGAL: Okay. MS. ARNOLD: Equally we're doing -- we're filing an affidavit of compliance for code enforcement board case 2000-034, Susan Harmon and Mark Harmon, for compliance, and that was also done on November 20th. And the third item is code enforcement board case 2000-032, Gayle Cormoily Estates. Again, it was an affidavit of Page 78 November 30, 2000 compliance that was filed on November 21st of this year. CHAIRMAN FLEGAL: Okay. I would entertain a motion to accept the three affidavits of compliance presented to us. MR. PONTE: I'll make the motion. MR. LEHMANN: Seconded. CHAIRMAN FLEGAL.' We have a motion and second. All those in favor, signify by saying aye. So moved. Foreclosure status, our favorite subject. MS. ARNOLD: Yes. We have Ellen Chadwell here from the County Attorney's Office. I do have a report that I would like to hand out for the board so you can follow along her -- MS. CHADWELL: I'd like to say good morning to everybody here on the board. I'm sorry you didn't get this report in advance, and I do apologize for the format. I think in the future we'll do it in sort of a spreadsheet layout. That's probably more information than you require. It's my way of tracking what kind of action I need to take, and I use that for my own personal routine, so -- CHAIRMAN FLEGAL: Not a problem. I think we can probably all adjust. MS. CHADWELL: Okay. CHAIRMAN FLEGAL: What we're basically interested in is what you're doing and where we stand. MS. CHADWELL: Okay. What I've done is, our office has received a total of 27 cases so far. Five of those are currently in litigation, meaning the suits have been filed for foreclosure. Those are all the older cases that were outstanding from many, many years ago. There's been a lot of time consumed in locating people. People -- ProPerty owners have died in some instances or the property has been transferred or changed hands or what have you. But at any rate, there are five suits pending. Currently there are four suits which have either been closed or have been settled, and by settled I mean that the property owner is making payments toward the lien. Those are cases -- I think the one or two that were closed -- one was clo -- a couple of them were cl -- one was Holland, which I believe the board had waived the fees other than the prosecutorial costs last time you met, and T&A Dockside, which was closed at the code enforcement department's instruction. MS. ARNOLD: Actually with Holland we really didn't get Page 79 November 30, 2000 authorization from the board. That particular item was on the agenda at the same time that the reduction of fine came on the agenda, and you reduced the fine all except for the costs for operations. CHAIRMAN FLEGAL: Okay. MS. ARNOLD: And so we don't really have your authority to go ahead and foreclose on that. We have not received any payments on that particular one yet. MS. CHADWELL: Okay. Nonetheless, it was sent to my office, and I think at this point I've been instructed by Michelle to go ahead and prepare a letter to Mr. Holland. Evidently he hasn't made his payment yet, so -- MR. LEHMANN: And for Mr. Holland we have $6217 MS. CHADWELL: Yes. There are a couple cases, one -- that are in abatement currently. The Combs case, which you heard on a motion to reduce, I think, a couple months ago, is currently on appeal to the Circuit Court. I have filed a motion to dismiss one of those appeals, and they have asked for an extension of time to respond to that by the 15th of December, which I have granted. Briefs will be coming due shortly. So it's my recommendation that no further action regarding foreclosure take place until we determine -- allow the appeal to run its course and the judge to rule, because the judge may make some decision that impacts the lien amount or the fine amount, so -- The other cases, the Keiser Southern Exposure case, which I understand there was a recent ruling in from Judge Brousseau -- it's not my position to advise the board on what that was, so I'll -- but that case -- I've been -- I'm recommending, and it's our office's position that no action be taken on the -- any foreclosure until that matter finally resolves itself on the appeal level. There are a couple cases that -- where the property owners are actively working on complying, meaning they're going to abate the violation. And once that's -- hopefully that will be effected very shortly on one and possibly no later than the end of December on the other, at which point we'll address a resolution of the liens once we can fix that amount as of the date of abatement of the violation. There are a couple, three cases where I've recommended no action on. These are all cases where the lien amount is fixed at Page 80 November 30, 2000 a sum less than $1100, and the property has either passed hands through a foreclosure prior to the lien being perfected or the property is homestead, and we haven't gotten any response from the property owner. It's not even worthwhile, in my opinion, to pursue the -- to pursue personal property. One of these is in the amount of $230 dollars, so that seems a complete waste of time. CHAIRMAN FLEGAL: Well, homesteaded property -- we can't foreclose on homesteaded. MS. CHADWELL: Right, but you have the opportunity to go engage in post-judgment execution as to personal property. But for $230, it would cost you more to locate any personal property than it would be to -- that you would collect. So there are three cases that, like I said, I'm going to recommend -- and I think Michelle, we've talked about it, and I think it would probably be her agreement that we take no further action on those. CHAIRMAN FLEGAL: What I'd like to see you do for the board on cases where you have recommendations of this type, because of the monetary value and that, since we've instructed you or more or less, quote-unquote, ordered you to proceed, if you would write us a document saying, this is my recommendation that you give me the authority to waive all this and let's just forget it, so the board can take that under advisement, make a motion, and do so so that we're on the record. What you and Michelle talk about is one thing. Under the ordinance we instruct the county attorney to foreclose. So if you don't want to foreclose for some reason, you come back to us and we'll decide, yes, that's a good recommendation, we'll do it. MS. CHADWELL: Well, I think you need to, perhaps, get some advice as to whether really this board has the authority, once it is sent to my office, to make an adjustment. I -- and recently we submitted a stipulation for your approval which you declined to approve. And it's going to be my position that once the lien is perfected and you authorize foreclosure and it is sent to the County Attorney's Office, that it is the county's lien. The rights and interests in that lien belong to the Board of County Commissioners of Collier County. So when it comes to settlement -- issues of settlement or recommendations as to -- or decisions to take no further, I don't -- with all due respect and Page 81 November 30, 2000 appreciation of your hard work, I don't believe it's your -- you have the power at that point to make a decision. So while I'd be more than happy to advise the board as to what my recommendation would be via memo, I think ultimately the determination lies with Michelle Arnold as director of the code enforcement department and as authorized through the county, Collier County, empowered by Collier County, to make those types of decisions. CHAIRMAN FLEGAL: Okay. I'm not going to debate you. I accept that, except explain to me, we've told you to foreclose and you now say it's the attorney's, Collier County's. Now what you've done is you've turned around and you're asking Michelle if it's okay to foreclose? MS. CHADWELL: No. The board -- because you're the -- CHAIRMAN FLEGAL: Why -- you've lost me somewhere. MS. CHADWELL: You're the judicatory body. You make the decision as to the amount of fine. You are also, pursuant to the statute, required to authorize our office to foreclose. The lien, however, belongs to Collier County. You are acting as an agent of Collier County in some respects in making the determination as to what the amount of the fine is, whether there's been a violation, that sort of thing. But I don't believe that unless you -- because the statute doesn't authorize you to take any further action or empower you to make any decisions beyond that point. Unless you receive that power specifically from the Board of County Commissioners, I believe that your duties are done and that the rights and the interests in that lien belong to the county, and the only one who can make a decision regarding that is the county or its delegate. So there is some issue even as to payment plans. As long as the county -- these people are making the payments that -- there's no issue. But if we were to compromise an amount, I'm not sure -- I'm not sure after it comes to our office that we have the authority to do that. That's the county's determin -- I mean, we, meaning the board, has the authority to do that. And I shouldn't say we because I don't represent you-all. But I believe anything that compromises that interest, that secured interest through this code enforcement lien, is a decision that has to be made by Collier County through its governing body, the Board of County Commissioners, so that's -- Page 82 November 30, 2000 MS. DUSEK'. I'm a little bit confused now because we can impose a lien; is that correct? MS. CHADWELL: You can issue an order imposing the fine. It's not a lien until it is properly recorded pursuant to statute. MS. DUSEK: Okay. But that would lead to a lien on the property? MS. CHADWELL: Once it's properly recorded, then that becomes a lien. MS. DUSEK: Right. Who issues the order to foreclose? MS. CHADWELL: You, in essence, issue an order. It's not technically an order, but you are authorizing our office, and I think -- to go forward with foreclosure. And I think the statute provides for it in that way because you're the body to determine, you know, the penalty and how it's going to be enforced. So you make the decision that, hey, we want to see this go to foreclosure, but as far as compromising or adjusting the amount of that lien, you don't have the authority from that point forward to do so. CHAIRMAN FLEGAL.' I guess what we're looking at, just so we understand, is since the statute says, and as I kind of remember, we instruct or order, whatever, the county attorney to proceed with foreclosure. We're looking at it from the standpoint that, okay, once we've said, go do this, we're looking at -- if you decide that it shouldn't be done, we should be involved somehow. And I guess what we're hearing you say is, gee, it would be like me hiring an attorney. I can hire him, but after that I don't have the right to say stop, you know, I don't want to do this anymore. MS. ARNOLD: I believe what -- CHAIRMAN FLEGAL: You're taking that and giving it to somebody else, and that's confusing to us. MS. RAWSON: I don't think that's exactly what she said. And I think that when you say we still need to be involved, I think that she will report to you, but I don't think you vote on whether or not -- just the same way we didn't sign the stipulated agreement to accept payments on a payment plan. Because once we've ensured compliance, issued liens -- well, had liens on the property by recording our orders and then you've authorized the county attorney, go foreclose, what she's saying is, settlement thereafter is in the hands of the county. Page 83 November 30, 2000 MR. LEHMANN: Mr. Chairman, I agree with Ms. Chad -- CHAIRMAN FLEGAL: Yeah, I don't have a problem with what she's saying, other than I was getting confused by saying, the attorney's office is now going to code enforcement to decide whether they do anything, and I'm trying to figure out how that works. MR. LEHMANN: Well, Ms. Chadwell, can I -- MS. CHADWELL: Chadwell. MR. LEHMANN: I'm sorry. I agree with what we're saying here in the fact that it makes logical sense on who possesses the lien at that point in time. The lien belongs to the county. The representative is the Board of County Commissioners -- CHAIRMAN FLEGAL: Right. MR. LEHMANN: -- who, in turn, have designated Michelle's office as their official designee. They haven't designated the code enforcement board as the official designee, so that makes perfectly logical sense. Florida Statutes 162 also supports the facts, we are not the governing body. CHAIRMAN FLEGAL: Right. MR. LEHMANN: Okay. And the lien belongs to the governing body. So it makes sense of -- what we're saying here is that we no longer control that lien. Once we authorize the County Attorney's Office to impose the lien, that's all that we can do and that's all that we have authority to dictate. What they choose to do with that lien once they've been authorized, whether they choose to amend their payment plan or waive it entirely or whatever, it's their entity to deal with, and their responsible to the general public at that point in time. We've exercised our responsibility to the fullest extent of our authorizations. CHAIRMAN FLEGAL: I understand all that. What I'm trying to keep in perspective is, we do all this work and ask for foreclosure, and then I want to know what happens. I just don't want somebody else all of a sudden, for whatever reason, saying, it's not worth going on, it's not dollar-wise feasible. I think after all this work that we go through to impose fines and investigate things, that we need to know that somewhere when the fruit is done or unripe or whatever that, gee, we did all we could and it's just not economically feasible for us to continue and therefore -- MS. ARNOLD: And we can report that back to the board. We'll provide that. Page 84 November 30, 2000 CHAIRMAN FLEGAL: And it's kind of like we started the car and now all of a sudden you never get to see it race. It's just -- MS. CHADWELL: Well, I think you should, and I think that it's my intent -- I've been tracking my time very closely, although our office does not charge off any of our attorneys' time and it's not our intention to do so. I think this board and Michelle need to have a good idea of what it really costs to go forward with these so that in the future assessments can be made. This is fairly new as far as this post-order enforcement, you know, going through foreclosure, at least that's what I've gathered from -- of recent date, is that this hasn't been done in the past evidently, if you've got a '91 case hanging out there that's never been foreclosed on so -- and we hope to report all that to the board so you can evaluate these cases and the time that's spent in making your decisions in going forward to foreclosure or, perhaps, in readjusting how you draft some of your orders. MR. PONTE: Ms. Chadwell, you have it right. The problem was that we were creating scofflaw people. I mean, they were just ignoring the order, and that's why the lien list was as long as it was when you took over and before, really, this board got active and said, what's happening to the foreclosures. So how do we make certain that a scofflaw pattern doesn't develop? MS. CHADWELL: Well, I think you're doing that now in that you've -- you've made it clear that it's this board's desire that these cases move along and that they get sent after three month -- that they get authorized to foreclosure after three months and taken from there and that there be an effort made to collect on these. And I can assure you that my office -- it's not my nature to throw up my hands and say, I really don't want to mess with this, but certainly when you're looking at a $230 fine, anybody -- MR. PONTE: Yes. MS. CHADWELL: -- looking at it is going to recognize the waste in that. MR. PONTE: No question. MS. CHADWELL: So I guess my promise to you is that I will intend to pursue these as aggressively as necessary. And Michelle -- that's Michelle's approach as well. And I think you will start seeing that people realize that you are serious about this. Collier County is serious about enforcing their codes. And, Page 85 November 30, 2000 you know, you won't see liens accruing over years and you won't see these huge liens. You'll see people taking care of the problem early in the process. And I have -- you'll probably see on there a lot of letters that went out. I have sent an awful lot of letters out, and I know that there might be mixed emotions on the part of the board as to how useful sending letters is or effective it is. I have had some success, I have had some response from that. My feeling is that -- and in talking to these people there is some surprise that there's further action going on. I mean, they really thought that it would slip through the cracks and they'd go about their business and they'd never have to deal with this. And now when they realize that somebody's ready to file a lawsuit against them, you've got their attention, which is your purpose. So, you know, all I can do is make that commitment to you. I appreciate, in sitting here and watching your work, you know, that you do spend a lot of time. It's not an easy area to adjudicate. There are a lot of technical issues that you have to hear and consider and understand, and it's our office's commitment to see that these are aggressively pursued and to report back to the board as to what it's costing to do that, how effective are certain methods that we're using, and you will certainly know -- you will be aware of those results. And it's just -- unfortunately it's not a quick process, but we hope to give you sufficient feedback so you do feel that your time here once a month is worthwhile. CHAIRMAN FLEGAL: Well, that's what we're interested in. We want to see an end to -- of course, the perfect way is, once we issue an order, they comply real quick and see everybody's happy. But when they don't, we are interested in going the full limit of the law so that people don't sit out there and say, well, no big deal going before that board. They never do anything. You know, they issue an order and then it's just kind of thrown in the trash, nobody ever comes after us. That's not the purpose. We want to keep the county attractive. That's why the ordinances are in place, and we're interested in, you know, since you're handling all this, you telling us what's going on so we at least know, oh, cool, she's taken it as far as she can, and for whatever reason if you choose to end something because of the dollar amount, we certainly understand. Page 86 November 30, 2000 But we'd like to know that so we can say, well -- okay? And that may factor in what we do next time. You know, maybe if you fine somebody a dollar a day, you know, and 30 days, and in three months, you know, that's only 90 bucks, I don't expect you to foreclose on somebody for $90. I understand the feasibility of that. So it might factor into, yes, we need to be a little more strenuous and give these people the incentive to comply because they have, for whatever reason, not paid attention. And that's what we're looking for. So if you're going to help us in that, that's great, we like that. MS. CHADWELL: Well, I've also discussed with Michelle, there are some things that perhaps can be done during the hear -- the public meetings in front of the board. That can make my job a little bit easier. One that comes immediately to mind is that we get under oath the person's physical residence or address where they're living so that -- and their full legal name so that when it comes down to, time to really locating them and getting legal service of process on them, we have a location where we can find them. It's not to say they won't lie under oath, but certainly it would be helpful to that have information in a sworn setting. So going back to my list -- CHAIRMAN FLEGAL: That's fine. MS. CHADWELL: -- we've got three cases that our only avenue, option of collection, is post-judgment execution, which means we have to locate personal property and determine if it's liened and what value it might have, whether it's worthwhile to pursue that. I think we're in discussions on those with Michelle as to what action we're going to take on that. So we'll be happy to report that back to the board when we've had some additional time to consider those options. There are five cases which I'm rating -- excuse me -- waiting on the title commitments to come back to my office, at which point it's my intention to initiate the lawsuits for foreclosure. Those have looked like viable candidates and -- but as a matter of procedure, it's necessary for me to review a title commitment to make sure that I have named all the appropriate parties. I may also determine, in looking at what type of secured interests there are in the property, that it may no longer appear to be a viable property for purposes of foreclosure. But hopefully those searches should be in in the next week or two, at which Page 87 November 30, 2000 point we'll commence that evaluation and preparation of suit papers. There's two cases that are currently in negotiation for settlement in obtaining the payment on the liens. And finally, there's one suit that we're considering options on. Because of a prior -- because of a mortgage on the property and the value of the property, it's questionable whether this one is a good candidate to pursue. But because there appears to be an existing violation, meaning the violation hasn't ever been abated, that it may be one that the county wants to pursue notwithstanding insofar as -- CHAIRMAN FLEGAL: Which one is that? MS. CHADWELL: That's Keith Stevenson. We need to go out and do an inspection, see if his mobile home is still -- still on the property, if anyone's residing there. So there will be, in all likely event, some action taken on that if the violation is still pending. MS. DUSEK: I have a question. Just looking at this last case, Wood, which is very prominent in everyone's mind. If someone is attempting to make payments, do you postpone foreclosure? MS. CHADWELL: If they have recognized their obligation, meaning they say, hey, my client knows he owes us money, can we work out some kind of payment arrangement -- MS. DUSEK: Well, when I look at this one, you seem to be compromising, compromising, but they're not really coming forward with the amounts that they should be paying -- this is on the Wood case -- and this has been going on for years. I just wonder in my own mind why you just don't go ahead and foreclose. MS. CHADWELL: Well, if I don't -- you know, if I talk to Mr. Pires and I don't have some payment in our hand by next week, we'll go forward with foreclosure on this. To me, it's new in my office. I can accept the fact or appreciate the fact that you guys maybe have been dealing with this. I think he had a previous violation and an order which he satisfied. He is making -- he did make a $200 payment or something but -- and part of why we refused on the 500 was that would stretch it out over three years. The county's not in a position of being a collection agency and monitoring, administering accounts, so -- but, yeah, it is my intent to go forward with this. If we don't get something, Page 88 November 30, 2000 you know, either a commitment from them to do that or a payment in which event we'll just -- I'll order a tile commitment, we'll procedure with a foreclosure suit. But I hear you and I will tend to that question. CHAIRMAN FLEGAL: May I ask you a question on Stevenson? You made the comment that because of, I guess, the money owed on the property or mortgage or whatever, which --just looking at the -- since it's 99-023, I assume this took place in -- seeing the date here of June '99, I don't know if that was -- when this was imposed or what the deal was. At some time didn't we revise the ordinance to put us in a priority position? And I think that was early in '99. MS. CHADWELL: It was filed and accepted by the Secretary of State on April 16th, 1997. From that date forward, any mortgage recorded in Collier County is recorded subject to being inferior to our code enforcement lien; however, this mortgage was established in 1997, so it's not going to help us today. CHAIRMAN FLEGAL: Didn't help us. Oh, well. MS. CHADWELL: Any more questions? CHAIRMAN FLEGAL: No, ma'am. Thank you very much, very good. MR. LEHMANN: Ms. Chadwell, just one more thing. If I could, I'd recommend -- you had mentioned that you were putting together a number of recommendations for the board. If you could put those together, nicely address that to our attention so we can take a look at what you're mentioning? I think it's a good MS. CHADWELL: MR. LEHMANN: for the hearings. MS. CHADWELL: MR. LEHMANN: Address what to your attention? Your recommendations for the proceedings Oh, okay. You had mentioned that, a recommendation for on-the-record testimony of addresses and names and so on and so forth. MS. CHADWELL: Okay. I'll be happy to do that. We're also -- or I keep promising Michelle that I am going to work with her in developing a procedure for the motions to reduce fines, which I think is -- MR. LEHMANN: Right. MS. CHADWELL: -- is really necessary. And I noticed you Page 89 November 30, 2000 had some concerns about the affidavit and the ruling today, and I had -- and it would be my recommendation to Michelle at the -- you know, in the future that, perhaps, this last-minute submittal of evidence should be objected to or the hearing continued. MS. RAWSON: You know, if it was a regular hearing, we have very specific rules that apply, and they have to get that information to the board within so many days in advance. But since these aren't really hearings, you know, I agree with you. We really need to work out a procedure, and we probably need to work out probably a better order of imposition on fines and certainly on motions to reduce fines, because we really didn't used to be a motion hearing body and we have become one. MS. ARNOLD: Right. MS. CHADWELL: So -- but we will be happy, you know, whatever we're working on, we'll apprise the board of. And please just be a little more -- be patient for a little bit -- while longer, because like anything else, this is an area that hasn't been fully determined by the courts. There are a lot of legal issues that come up. There's procedural issues. Once you start effectively utilizing what you have in place, you started making changes and adaptions (sic), and I think that's where you are now, kind of in a growing pain phase, and I would just ask you to please hang in there and we'll try to get it as efficient and as effective as possible. CHAIRMAN FLEGAL.' I think Michelle told us one time that, you know, we could get an update like quarterly, and that's why I had asked the question. It's been more than three months since I've heard anything on foreclosures. MS. ARNOLD: No, it's been three months. MS. CHADWELL: Nope, nope. CHAIRMAN FLEGAL: Has it been three months? MS. ARNOLD: Uh-huh. CHAIRMAN FLEGAL: Well, I knew it was getting close because it sticks in my mind, what's foreclosures doing. I haven't heard anything. MS. CHADWELL: And I should have had this -- CHAIRMAN FLEGAL: And I looked back in the minutes, and it's been a while, because I did that specifically before I asked Michelle's office, and it was -- MS. CHADWELL: You know, as far as recommendation goes, Page 90 November 30, 2000 that won't be on a quarterly basis once we have to -- when I get to the point where I feel we need to have a decision, you know, and Michelle and I talking about -- like I'll go back to my office and hopefully before the week is out or earlier next week, I'll have prepared something for you, to submit to you, and I'll have to, I guess, mail it to them when they're not seated. MR. LEHMANN: So you are saying that on a regular basis you'll advise us of which cases are ready for the board to decide whether to go to foreclosure or not? Is that what you're -- MS. ARNOLD: Well -- MS. CHADWELL: Not as to foreclosure. MS. ARNOLD: -- we do that. We -- our office will present those cases that were -- where the three-month time period has lapsed, and I'll bring requests for recommendation to proceed with foreclosure. What she will provide information to the board on is those where we decide it's not feasible to pursue the process. MR. LEHMANN: Okay. CHAIRMAN FLEGAL: Terrific, okay. MS. CHADWELL: Thank you very much. CHAIRMAN FLEGAL: Any additional reports? I don't see any. Any comments? Our next meeting is the 18th. MS. ARNOLD: Correct. CHAIRMAN FLEGAL: It's a Monday? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Is it going to be at nine? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Okay. Everybody make a note, a little change due to the holidays. We agreed to it before, so don't be surprised that in a couple of weeks you're going to get in your little book again. Any other comments? I'd entertain a motion. MR. LEHMANN: So moved -- MR. PONTE: Seconded. MR. LEHMANN: -- to adjourn. THE COURT: We have a motion to adjourn and a second. All those in favor, signify by saying aye. Thank you very much, everyone. Page 91 November 30, 2000 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:46 p.m. COLLIER COUNTY CODE ENFORCEMENT BOARD CLIFFORD FLEGAL, CHAIRPERSON These minutes approved by the Board on presented or as corrected , as TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC., BY SHERRIE RADIN AND TERRI L. LEWIS, NOTARY PUBLIC. Page 92