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CEB Minutes 07/16/2001 RJuly 16, 2001 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD OF COLLIER COUNTY Naples, Florida, July 16, 2001 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 9:01 a.m. In REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Clifford Flegal Roberta Dusek Rhona Saunders Peter Lehmann George Ponte Diane Taylor NOT PRESENT: Kathryn M. Godfrey-Lint Darrin M. Phillips Kathleen Curatolo ALSO PRESENT: Jean Rawson, Attorney, Code Enforcement Board Maria E. Cruz, Code Enforcement Official Michelle Arnold, Code Enforcement Director Page 1 07/12/01 15:58 FAX 941 403 2345 COMMUNITY DEVELOPMENT * CLERK OF BRD ~002 CODE ENFORCEMENT BOARD OF COLLIER COUNTY, AG E~D A Date: July 16,2001 ~t 9;00 o'clock Location: 3301 E. Tamiami Tr., NaDles, Florida, Collier County Government Center, Administrative Bldg, 3rd Floor NOTE: ANY PERSON WEO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS ~ERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE TH~kT A V~RBATIM RECORD OF THE PROCEEDINGS IS MADE, W~ICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WEICH TEE APPEAL IS TO BE BASED. NEITHER COLLIER COUNTY NOR THE CODE ENFORCEMENT BOARD S~LL BE RESPONSIBLE FOR PROVIDING THIS RECORD. APPRQVAL OF AGEND_A APPRQVAL OF MINUTE~ PUBLIC HEAR G A. BCC vs William G. Schrack B. BCC vs Patrick W. and Erin L. Rose C. BCC VS John and Sheila Barry D. BCC vs Jose A. Ortega ~. BCC VS A.L. Dougher~Y Co., Inc. F. BCC vs B.F. FU. Myers, Inc. G. BCC vs. Jason James Billing~on H. BCC vs. Cleveland A. an~ Carolyn Blocker I. BCC vs. Leonardo Portal CEB NO. 2001-041 CEB No. 2001-045 CEB No. 2001-052 CEB No. 2001-060 CEB No- 2001-061 CEB No. 2001-062 CEB No. 2001-063 CEB No. 2001-064 CEB No. 2001-065 Nk'W BUSINESS Request ~or ~O~ition O~ Fines/Lien A. BCC vs. Victor V. Ira B. BCC rs, James Joseph Grant, Jr. C. BCC =s. Robert A. Mitchell D. BCC vs. Phillip A. and Anna Marie Marrone E. BCC vS. Mini Max Market, Inc. CEB NO. 2001-015 CEB No. 2001-020 CEB NO. ]001-021 CEB No. 2001-018 CEB No. 2001-030 QLD BUSINESS DXscussion and approval of CEB Rules and Regulations REPORTS Filing of A~fidavi~ ot CCe~li&nce A. BCC vs. Phillip A. and Ax%ha Marie Marrone B. BCC vs. Mini Max Market, Inc. CE~ No. 2001-018 CEB No. 2001-030 9. ~0. NEXT MEETING DATE July 26, 2001 ~1. A__OJOURN July 16, 2001 CHAIRMAN FLEGAL: Call the Code Enforcement Board meeting to order. Please make a note that 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. Roll call, please. MS. CRUZ: Good morning. For the record, Maria Cruz. Let the record show that Ms. Kathryn Godfrey and Darrin Phillips informed staff of their absence today. Roberta Dusek. MS. DUSEK: Here. MS. CRUZ: Clifford Flegal. CHAIRMAN FLEGAL: Here. MS. CRUZ: Peter Lehmann. MR. LEHMANN: Here. MS. CRUZ: George Ponte. MR. PONTE: Here. MS. CRUZ: Rhona Saunders. MS. SAUNDERS: Here. MS. CRUZ: Diane Taylor. MS. TAYLOR: Present. MS. CRUZ: And Kathleen Curatolo. CHAIRMAN FLEGAL: You didn't hear anything from Kathleen, did you, Maria? MS. CRUZ: Excuse me? CHAIRMAN FLEGAL: You didn't hear anything from Kathleen? MS. CRUZ: Yes, sir. Both Kathleen and Mr. Phillips. Oh, I'm sorry. No, not Kathleen Curatolo. CHAIRMAN FLEGAL: Okay. On our agenda are there any Page 3 July 16, 2001 changes? MS. ARNOLD: For the record, Michelle Arnold, code enforcement director. We are asking that we move Item A to the last item. The investigator on that particular case has had a family emergency this morning, and we're going to just postpone it until the last public hearing. And then there's been a request to move Item H uP* MS. TAYLOR: H to A, you mean? MS. ARNOLD: Yeah. CHAIRMAN FLEGAL: You want to switch A to the bottom and H to the top? Is that what we're doing? MS. ARNOLD: Okay. And there's -- there's one other change. There was a recent submittal for a continuance to the 26th, and that's Item B, Board of County Commissioners versus Patrick W. And Erin L. Rose. The Roses submitted a fax letter wanting to be heard, because they're still out of town, on the 26th, rather than today. CHAIRMAN FLEGAL: On that particular case, Ms. Rawson, I need to refresh my memory. MS. RAWSON: Yes. CHAIRMAN FLEGAL: When there's a proposed violation -- alleged violation, it's against the owners of the property; correct? Not just the people that are on the property; it's against the owners of the property or both? MS. RAWSON: Well, it could be either or both. We always cite the owner, but a lot of times, if you recall in the past, you actually order the people who are in possession of the property to pay the -- to have it repaired or come into compliance. CHAIRMAN FLEGAL: Okay. MS. DUSEK: But if they don't, then it's the owner's responsibility? MS. RAWSON: Well, ultimately it's always the owner's Page 4 July 16, 2001 responsibility, but it's not uncommon for you to also list a tenant or someone in possession if they are the person who may have, in fact, been responsible for the alleged violation, and they are the ones that are probably in a position to come into compliance and abate the violation. So we've done that in the past, but ultimately it's always the responsibility to the owner. CHAIRMAN FLEGAL: Of the owner. And if the people aren't associated with the property, then the chances of doing anything to them are kind of slim to none. MS. RAWSON: Probably that's why we name more than one person. CHAIRMAN FLEGAL: Okay. Ms. Arnold, on the Rose one, I was going to bring it to your attention; I found that, over the weekend, that property was sold in May of this year. The Roses don't own the property. They sold it to John and Betty Ferguson on the 14th of May. I suspect maybe that's why these people haven't been talking to you. MS. ARNOLD: Well, we'll have to verify that and get the -- CHAIRMAN FLEGAL: Here's a copy of the deed if you want it. So I -- continuing something against people that don't own the property is, I think, nebulous. MS. ARNOLD: Well, they're still representing themselves as the owner, and they're the ones that are requesting the continuance. My staff will verify that information and get the -- the public records. There is one other change on the agenda. But if the Roses no longer own that property, what we'll have to do is notify the current owner. And, as the law indicates, they are responsible for notifying the prospective or current owner of the pending code case. CHAIRMAN FLEGAL: This is out of the public records. They don't own the property. MS. ARNOLD: The other change for the agenda is under old Page 5 July 16, 2001 business. There's also a request that Board of County Commissioners versus John and Rita Goodman be put under old business. If you want to hear that item prior to our discussion of the rules and regs, that'll probably be more appropriate. CHAIRMAN FLEGAL: Ms. Rawson, I have another question. MS. RAWSON: Yes. CHAIRMAN FLEGAL: These folks, I believe, were here last time. MS. RAWSON: Yes. CHAIRMAN FLEGAL: Okay. I mean, can you just keep coming back forever? Is that the rule? MS. RAWSON: Well, of course, he's got 30 days in which he can take an appeal of the last order to the circuit court. I mean, I guess he can come back and ask you again. There's no prohibition for them asking the board to hear them. MS. DUSEK: Is it the board's decision to hear them or not to hear them? MS. RAWSON: Yes. Always in your discretion. CHAIRMAN FLEGAL: Okay. We'll add it to the agenda. Any other changes? MS. ARNOLD: Nope. CHAIRMAN FLEGAL: I'd entertain a motion to approve the agenda as changed. MR. LEHMANN: MS. SAUNDERS: So moved. Second. CHAIRMAN FLEGAL: those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: We have no minutes. public hearings. First case will be 2001-0647 doing? Moved Item H up? We have a motion and a second. All We'll open the Is that what we're Page 6 July 16, 2001 MS. ARNOLD: Yes, that's correct. CHAIRMAN FLEGAL: Okay. MS. CRUZ: This case is Board of County Commissioners versus Cleveland A. And Carolyn Blocker, Case No. 2001-064. Let the record show that Mr. Vince Cautero is here representing the respondents. I'd like to request that the packet that was provided to the respondent and to the board be admitted into evidence marked Composite Exhibit A if there's no objection from the respondent's representative. MR. CAUTERO: Vince Cautero for the record. No objection. CHAIRMAN FLEGAL: Okay. We have a request to submit county's packet as Exhibit A. I entertain a motion to accept that. MS. DUSEK: So moved. MR. LEHMANN: Second. CHAIRMAN FLEGAL: I have a motion and a second to accept the county's exhibit. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: You can sit down for a moment, sir. We'll let the county do their side first. MS. CRUZ: Mr. Chairman, Members of the Board, the alleged violation before this board is a violation of Ordinance No. 98-76 of the Collier County Building Construction Administrative Code, Section 104.1.1. The violation is described as alteration of a structure without first obtaining all required Collier County permits. This violation exists at 121 Sixth Street North, Immokalee, Florida, and is more particularly described as Miller's Park, Block 5, Lots 1 and 2. The owner of record is Cleveland and Carolyn Blocker. Their address of record is 1303 Christian Terrace, Immokalee, Florida 34142. The violation was first observed on December 28th, 2000. A notice of violation was provided to respondent on December 29th, 2000, with a compliance date of January 7th, 2001. The last Page 7 July 16, 2001 reinspection was conducted on July 13 resulting in violation remaining. I'd like to call at this time investigator Leo Fernandez, please. We could have the investigator sworn in. (The oath was administered.) MR. FERNANDEZ: For the record, my name is Investigator Leo Fernandez. This case was generated through an anonymous complaint on December 28th, 2000, claiming that there had been construction without a permit at the said address of 121 Sixth Street North, Immokalee, Florida. The complaint was specific in stating that the construction was done on the existing porch slab. I went out to the address and observed an enclosure on a porch slab. There was no permits posted. I returned back and checked for permits issued. There were none issued or applied for. Then I proceeded to make contact with the owner, Mr. Cleveland Blocker. He confirmed that he didn't have any permits and that he would hire a contractor to resolve the issue, the contractor being Jackie Williams. The final outcome was that Mr. Blocker was denied permits to this construction due to setbacks and density issues. CHAIRMAN FLEGAL: There are still no permits as of today? MR. FERNANDEZ: No, sir. CHAIRMAN FLEGAL: None have been applied for? MR. FERNANDEZ: No, sir. CHAIRMAN FLEGAL: Has Mr. Blocker told you that he's trying or not trying or anything like that? Have you had any contact with him? MR. FERNANDEZ: Mr. Blocker said he would take his chances with the board. CHAIRMAN FLEGAL: Okay. Any questions for the county? MS. DUSEK: Perhaps you can't answer this, but I guess the only way that he could get any sort of permit would be through a Page 8 July 16, 2001 variance? MR. FERNANDEZ: I believe so. CHAIRMAN FLEGAL: Any additional questions? Thank you, sir. Is Mr. Blocker here? MR. CAUTERO: Good morning, Mr. Chairman and Members of the Board. Vince Cautero for the record. Mr. Blocker's not here. I am representing him. He has authorized me to speak on his behalf. I'll be very brief. And perhaps, if the board wishes, I can-- CHAIRMAN FLEGAL: Can we swear him in also, please. (The oath was administered.) MR. CAUTERO: Again, Vince Cautero for the record. I'll be brief, and perhaps we can let you move on to your next case. Mr. And Mrs. Blocker do not dispute the violation citation or that there is a violation on the property. And as Mr. Fernandez said in his presentation, application to the Collier County Board of County Commissioners through the Planning Commission is the remedy that we seek. Building permits cannot be obtained at this point in time because of the setback issue, at a minimum. There may be density issues as well. And as of last Thursday, I was fortunate enough to speak with a member of the planning department staff, Ross Gochenaur, who spent some time with me talking about different options regarding the density issue. There may be another way of solving this problem short of removing the structure which has caused the violation. If I may use the video visualizer, I just want to talk to you about -- thanks. You'll notice -- and this map is looking northward at the intersection of Second Avenue and Sixth Street in Miller's Park subdivision. There are three structures on the two lots. For building purposes these two lots serve as a development site, and the -- the portion of the structure which has caused the violation is a covered slab which was made into a dwelling unit. Page 9 July 16, 2001 In your packet there's a letter from Fred Reischl from planning staff that stated that the slab itself is not at issue in terms of setback. But once it was covered, numerous violations, of course, were triggered. I'm sorry if I'm not picking up on the microphone here. So at first when I talked to the planning staff about a variance, we then uncovered that there may be some density issues as well. Mr. Blocker, indeed, did tell Mr. Fernandez that he wished to state his case. But in subsequent discussions with me after the citation was issued by the code enforcement department, he instructed me to apply for all necessary permits and state that to the Code Enforcement Board today. He has instructed me to apply to the Collier County planning department for either a variance and/or zone change or other applications that would be necessary to the planning department in order to resolve this. So he wishes to see that through, and he has authorized me to say that to you. We don't want to waste your time. He admits that there's a violation. He wants to correct it. And, obviously, if he cannot correct it by virtue of the fact of getting an approval by the board, he would remove the violation. He asked me to state that on the record. I will have to get the information to the planning department. With their summer break, I don't see me getting to them -- even if I submit within two to three weeks, which is probably the shortest time, I doubt the planning department would get me on their docket until October-- the Planning Commission-- maybe November. So I don't know how that factors into your decision-making, but I can tell you on the record that he has instructed me to apply for a variance, and I will be doing it. MS. SAUNDERS: occupied right now? MR. CAUTERO: MS. TAYLOR: Mr. Cautero, is the property rented and Yes, it is, ma'am. What is your position here? Are you -- I know Page 10 July 16, 2001 you're representing him, but how-- MR. CAUTERO: I'm a planning consultant, and our firm is on -- Mr. Blocker -- we have a continuing services agreement with the Blocker family to represent them in various matters, survey work, engineering work, and so forth. I'm a planning consultant with Wilkison & Associates. MS. TAYLOR: It seems like you've switched camps. MR. CAUTERO: I don't understand what you mean. MS. TAYLOR: Well, you were with code division. Now you're with something else, and now you're representing someone who's in It just is so weird to me. I'm trying to get this straightened violation. out. MR. MS. MR. MS. MS. MR. CAUTERO: I no longer work for Collier County. TAYLOR: I know you don't. CAUTERO: I haven't for nine months. TAYLOR: I know you don't. I know. DUSEK: I have a question for you. CAUTERO: Yes, ma'am. MS. DUSEK: This was first noted in December, and now you are just getting ready to approach the planning board for a variance. Why did it take so long? MR. CAUTERO: At first-- and I wasn't involved in this early on. Mr. Blocker only talked to us about this a few months ago, so I cannot speak for his early conversations with the code enforcement department. But I do believe -- and I think it's stated in your packet in Mr. Fernandez' chronology -- that Mr. Blocker was attempting to seek building permits because that's what the citation read. The citation read a violation of the Building Construction Administrative Code. It's actually more than that. And if I'm correct -- and Mr. Fernandez can correct me if I'm wrong -- Mr. Blocker did seek to apply for the building permits through his contractor. The building Page 11 July 16, 2001 department did their job and did it well. When we went to the building department, they found out they couldn't issue building permits because there are planning issues associated with this as well. That took some time. I don't know exactly how much time it took. MR. PONTE: Mr. Cautero, given your November estimate in terms of time, what would you guess it would take to complete this entire judgment on the part of the county and/or remove the violation? What are we really talking? You mentioned November. Are we talking -- MR. CAUTERO: I think that's the earliest I'll be -- I'm guessing -- to get on their docket. The planning department, I know, has numerous applications that they deal with. If I applied in early August, which I think would be the shortest time for me to gather the paperwork, I doubt they'd probably put me on the Planning Commission docket until October, maybe November. I would ask for an earliest date as possible. MR. PONTE: And if that happens, that would result in what? MR. CAUTERO: An ultimate hearing in front of the Board of County Commissioners who would have the ultimate say over whether it's approved or not. If they wouldn't approve it, I'm at a loss to -- as to what remedy there would be. But a variance isn't necessarily the only remedy. I've talked to the planning staff about some other remedies: Lot line adjustments, rezones, and those kinds of things. I'm not saying that's going to happen, and I'm not saying we're even going to apply for that. There are options, and I'm just providing my client with options as to how we can remedy this. MR. LEHMANN: Mr. Cautero, you had indicated the property is currently being rented out; is that correct? So it's occupied right now? MR. CAUTERO: Yes, it is. MR. LEHMANN: This case has gone on for a little while Page 12 July 16, 2001 anyway, and now you're asking the board to approve or to consider extending the time frame again to November to seek a variance. MR. CAUTERO: I don't believe it was heard by the board previously, so I'm not asking you again, if I'm correct. I think this is the first time you're hearing the case. MR. LEHMANN: That's true. MS. SAUNDERS: That's true. MS. DUSEK: To follow up on Mr. Ponte's question to you, if you're heard by the planning board in November, latest date, from November to when do you think you would have a decision on whether you could get a variance or not? MR. CAUTERO: As soon as the planning -- as soon as the application would be forwarded to the Board of County Commissioners, which is dictated by the staff. MS. DUSEK: And that's usually what? A month? MR. CAUTERO: It's usually a month, maybe 45 days. It depends on their docket. MS. DUSEK: Assuming the variance is denied, then you're going to pursue another avenue? MR. CAUTERO: No. I'm-- no. And thank you for that question. I apologize if I confused the board. I'm going to give Mr. Blocker the best recommendation I can once I get all the facts from the planning department. The planning department and I have not even come to an agreement yet on what the density rating system is for this property, so there's some unanswered questions. I'm going to recommend to Mr. Blocker that he goes in with all the applications that he needs to at one time. I'm not going to recommend that he goes for a variance and then another mechanism. I want to be able to solve this problem one time and tell him what he can do in front of the board and what his options are, and then it's up to him to pursue them or not pursue them. And if he does pursue Page 13 July 16, 2001 them and he's denied, then he would have to make the decision as to whether he's going to fight his case in front of you or remove the violation. And my recommendation to him has been to remove the violation. But he hasn't sought -- he has not exhausted all of his administrative remedies and legislative remedies at this point. He may administrative -- I take that back -- the building permits. He may. He has not exhausted his legislative responsibilities (sic) or quasi-judicial. MR. PONTE: Just to help me better understand this entire case, given the pressure that the commissioners have on their docket and time, other than the one legal aspect, what is it that's really driving this case? There seems to be a lot of very high-powered effort for what appears here to be a very small matter. What's -- MR. CAUTERO: Well, I -- I'm sorry. MR. PONTE: The property is rented, but there's something here I just don't understand. MR. CAUTERO: What's driving this? MR. PONTE: Yeah, what's driving it? MR. CAUTERO: What's driving it is an encroachment to a side setback of approximately 3 1/2 feet and no building permits. But he can't get the building permits until this is cleared up. There are other issues. There are at least three issues. Those are two. There may be a density issue depending on how the rating system shakes out with the planning staff. And, again, I could not come to an agreement with Mr. Gochenaur on that issue. "Agreement" may be a harsh word. We don't have all the information we both need yet. That issue was not uncovered in the paperwork that you have. The only issue that you have in front of you is one that dealt with no building permits being applied for. And then as the case progressed, it was determined rather quickly that there was a need for Page 14 July 16, 2001 a variance. So it is solvable in front of the Board of County Commissioners in accordance with the adopted ordinances, and Mr. Blocker has decided that he wants to seek those remedies. And if not, then he'll have to make a decision as a property owner. I can only tell you what we would like to do as a property owner. At this point in time, he's instructed me to apply for all of the legislative and/or quasi-judicial applications he can. MS. SAUNDERS: Mr. Cautero, do you have any idea how much the property is rented for? MR. CAUTERO: No, I don't, ma'am. MR. LEHMANN: Ms. Arnold, staff had recommended 30 days, and can you tell me why you came up with 30 days? And I'm assuming that you have an understanding of-- of Mr. Blocker's intentions as far as variances. MS. ARNOLD: We were not aware of the intentions of Mr. Blocker until after these -- these reports were prepared. MR. LEHMANN: Okay. CHAIRMAN FLEGAL: Any other questions for Mr. Cautero? MS. TAYLOR: It just seems like there's a little black cloud hanging over this whole thing. CHAIRMAN FLEGAL: Thank you, sir. MS. SAUNDERS: IfI have had to guess -- and I may be assuming or prejudging -- I think it's a financial issue. And I think the gen -- the owner is attempting to obtain as much rent as he can before he's asked to take it down. MR. FERNANDEZ: I'd like to add that as far as the units being rented, that whole property is rental units, and there are vacant units there. So he would be able to move those people and take care of that violation by removing it. MR. LEHMANN: Investigator Fernandez, in your opinion, is this structure in safe, sound condition? Is there any safety issues? Page 15 July 16, 2001 MR. FERNANDEZ: It's put together with T-111 siding. I wouldn't -- I'm not -- MR. LEHMANN: But is it structurally sound? Do you see any safety issues? And the reason I ask that is because in the package here, we have -- we have an Ordinance 103.5.1, unsafe buildings or system, that's been referenced and starred. And maybe that was just - - you copied another page that was already starred or -- okay. So the safety of the structure is not at issue? MR. FERNANDEZ: No, because I'm -- I'm not an expert to be able to confirm that. MR. LEHMANN: I just want to -- MR. FERNANDEZ: I know that talking with Mr. -- the contractor, Jackie Williams, he did state that there -- the roof was 6 1/2 at one point, 7 at another. And then, again, the slab is not a home slab, you know, needed for proper foundation. MR. LEHMANN: But those issues can be solved in the permitting process when they go through that process. Thank you. CHAIRMAN FLEGAL: Any further questions for anybody? MS. DUSEK: I have one for either Michelle or Ms. Rawson. If we -- we've heard testimony today that they cannot get building permits, and the violation is asking that they get building permits. I mean, he's in violation, but if we're requesting that he get a building permit and we already know he can't, I'm not sure how we address this. CHAIRMAN FLEGAL: Well, he has the right to go and ask for a variances. MS. RAWSON: He does. CHAIRMAN FLEGAL: I mean, you can't take that right away from him. I mean, the county's asking that he remove the alterations. That's their recommendation. But if there's another method, he has to be given that opportunity. You just can't say "tear your house down" Page 16 July 16, 2001 when he can go before somebody and ask for a variance of some type. You have to give him every latitude to do whatever. MS. DUSEK: I understand. I'm just not sure how we identify that. Do we still say -- MS. RAWSON: Well, I think you have to still say -- because the nature of the violation is that he did the structure without having a permit. Now, you, in fashioning your order, can say, "Well, either get a permit, or you know, remove the structure." But as Mr. Flegal has correctly pointed out, since the testimony is that he intends to apply for a variance, give him plenty of time to do that so that it may go away. If he gets a variance, then he doesn't have to tear the structure down, and he doesn't have to get a permit. MS. ARNOLD: Well, the permit would still be required regardless of whether or not the variance is approved. So the ultimate corrective action would be to obtain a permit. There may be additional steps, including a variance or, as Mr. Cautero indicated, a lot line adjustment. There are other steps that may be preceding obtaining a building permit. MR. LEHMANN: Mr. Chairman, I would move that we do have a finding of fact in this case. MR. PONTE: Let me -- just a thought here or clarification. We had a case some time back that went to the county commissioners for a variance. It did not please the county commissioners that it went to them for a variance. And they said that we were -- that is this board, was empowered to handle that sort of question. Now, I think rather than what appears to be a very venial item going to the county commissioners, there must be another way to rethink this. MS. RAWSON: Well, I don't think you have the right to tell the respondent that they don't have the right to go before the county commissioners and apply for a variance, and this board doesn't have the power to grant variances. So that's their due process right to go Page 17 July 16, 2001 before the county commission. And so this board can only look and see, again, is there a violation of the ordinance; and if so, what do we do to make them come into compliance, and how much time do we give them to do that? He says, "Well, we're going to go get a variance." And, as Michelle has properly pointed out, then there'll be a permit after that. So you can only do what you're empowered to do: Find out whether or not there's a violation, and then give him time to come into compliance. MS. SAUNDERS: If I may, I see the going before the county commissioners almost as an appeal process to what we're trying to do now. MR. LEHMANN: No. MS. SAUNDERS: In that I think there's a violation -- we've been told that there's no permit that can be granted -- I think our portion of this is clear. And if somebody wishes to pursue it further, which is certainly their right, then they have that right. And then that would come back to us at that point, if it was granted, and they could, indeed, say, "Look, we pursued our other options, and your fine is incorrect because we've gotten the approvals at this point." But I don't -- I'm kind of leery -- I'm very leery of providing almost another seven, eight months of time to -- MR. PONTE: Rhona might be right. pretty solid. That line of thinking is CHAIRMAN FLEGAL: That won't work. First of all, because to appeal an order of the board you only get 30 days. We already know that even to try and get a variance isn't going to happen in 30 days. So if you tell the man to tear his building down, which is our only option, he'd have to tear that section of the building down. Then if he got his variance, who's he going to -- you know, we made him tear a building down, didn't give him the opportunity to go get the variance. That is not an option. Page 18 July 16, 2001 MS. SAUNDERS: But could he not choose to face the penalties that we're putting on and then come back to the board and say, "I believe we should have a reduction in fines or elimination of fines because we've gone further and appealed it"? Is that -- CHAIRMAN FLEGAL: Why would the board take away somebody's right to go do something that is out there? They have the right to go ask for a variance. Why do you want to take that away from him and tell him to tear his building down and fine him if he doesn't tear it down when he has the right to go do something else? MS. SAUNDERS: In my opinion-- CHAIRMAN FLEGAL: I don't understand that. MS. SAUNDERS: In my opinion, it's because we've taken it -- or it's come as far as this board can -- has to make a decision. We have no jurisdiction to -- or no authority to insist that they go further with the county commission. He may just delay it further. I -- maybe I'm wrong, but I see this very much as a delaying tactic. MR. LEHMANN: Well, I would -- I would recommend to my colleagues that if that was a concern, that the order of the board be worded properly to address that. MS. SAUNDERS: Okay. If there's a way to do that, I would be happy to. CHAIRMAN FLEGAL: I'm violently against taking away somebody's right to do something else to come into compliance. That's not why we're here. MR. LEHMANN: I think we're losing sight of why we're here as a board. We're here to hear cases and, quite simply, to determine whether a finding of fact has occurred. Did the respondent violate the codes or not? And then, if we find that a violation did occur, to achieve compliance; not to fine somebody or whatever, but to achieve compliance. And I think that's really what it is. So if you don't mind, I'd like to go forward with at least the Page 19 July 16, 2001 finding of fact portion at this hearing. And I would move that in the case of 2001-064, Board of County Commissioners versus Cleveland A. And Carolyn Blocker, that a violation does, indeed, occur -- does exist, and that violation is violation of Section 104.1.1 of Ordinance 98-76, the Collier County Building Construction Administrative Code ordinance. The description of violation is the alteration of a structure without first obtaining all required Collier County permits. The location where the violation exists is 121 Sixth Street North, Immokalee Florida, more particularly described as Folio No. 0000060182480009, Miller's Park, Block 5, Lots 1 and 2. MS. DUSEK: I second the motion. CHAIRMAN FLEGAL: There is a finding of fact and a second. Any further discussion of the motion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Order of the board. MR. LEHMANN: It would be my recommendation on the order of the board that we, in essence, take staff's recommendations as well as the respondent's request in mind. I would request that the board order the respondent to pay all operational costs incurred in the prosecution of the case and to remove said alterations within 30 days following response from Collier County commission, code variance request. In other words, we allow the respondent the opportunity to present his case before the board. If the board-- excuse me. If the Collier County Commissioners deem that it is not in a position to grant the variance, in that case then we order the respondent, within 30 days, to remove the structure. MR. PONTE: I second the motion. CHAIRMAN FLEGAL: You're going to have to put a time limit in there somewhere. You can't just say leave it open because then he could go to the planning and then before the commission, you Page 20 July 16, 2001 know, hypothetically, any time within the next X years. So you're going to have to put some time frame of X months to explore all his avenues. And if that doesn't happen within the end of that X-months period, within 30 days he'd have to remove the structure. MR. LEHMANN: Good point. MS. DUSEK: I'm a little bit uncomfortable with the motion stating that they go before the county commissioners. I think that it should state that he either remove or obtain building permits, and then that would be any avenue that he chooses. But to specify and say "Go before the Board of County Commissioners" I don't think should be in our motion. MR. LEHMANN: Point well taken. Michelle, how long do you project for the respondent to take to go through the variance? Do you agree with Mr. Cautero's assessment of November? MS. ARNOLD: Well, he's spoken to the planning staff as short as last week, I understand, and that's probably the -- the schedule that they indicated to him. So right now the board's going through their summer recess, and so it is pushing things out a little bit further. So November is probably a reasonable time for them to get -- MR. LEHMANN: You would concur with that rough time frame? MS. ARNOLD: Uh-huh. MR. LEHMANN: All right. Then I would amend the order to reflect a time period to allow the respondent until December 31 st. That gives him a month to play with. If the board doesn't meet at their November schedule, he has until December 31 st and -- to hear it and then within 30 days after that. So, in essence, it has to be resolved by January 30th or the 31 st of January 2002. That should give the respondent plenty of time to address any means that he requests, and we achieve compliance by a set date. MS. DUSEK: Are you adjusting your motion to just say remove Page 21 July 16, 2001 or get building permits, or are you still going to include that they go before the-- MR. LEHMANN: I don't care what the respondent does as far as his action. All I care is compliance. And compliance, to me, is defined as receiving the building permits, receiving the variance, by whatever means that the respondent chooses to come into compliance with the codes. That's all I care about. CHAIRMAN FLEGAL: I think what your motion said, Peter -- and we've had a couple words -- if I can semi-paraphrase it, that the respondent come into compliance by whatever means by December 31 st; and if he cannot come into compliance by December 31st, 30 days thereafter he will remove the structure. Is that what you were saying? MR. LEHMANN: In essence, but I basically gave a time frame of January 30th. CHAIRMAN FLEGAL: Well, that included the 30 days. MR. LEHMANN: As long as he complies. Whether or not he removes the structure, whether or not he achieves his variance or gets a permit or howeVer means he wants to do that, but I want to see the case resolved by January 30th. MS. DUSEK: All right. Let me just ask a couple of questions. MR. LEHMANN: One second, please. Jean, is that -- is that -- MS. RAWSON: You can do this one of two ways. You can say come into compliance by December 3 l st; or if they can't come into compliance, to remove the structure by January 30th of 2002. Or you could say simply have permits or remove the structure by January 30th of 2002. That gives him six months to do whatever it is he's going to do. And either, by January the 30th, the building is going to be down -- or the structure, addition's, going to be down, or they're going to have permits. MS. DUSEK: If they can meet with the county commissioners Page 22 July 16, 2001 in November, maybe October, why are we giving until January 30th? MS. RAWSON: I didn't make the motion. MS. DUSEK: Well, I'm looking at you, Jean, but I -- MR. LEHMANN: You need to ask me. MS. DUSEK: I understand that. That's where I was really-- CHAIRMAN FLEGAL: I think Mr. Cautero's remark was he could get an answer from the planning department in November and then get on the county commissioners' docket to go before them, and he didn't know how long -- that may be 30 days, and now all of a sudden we're into December. MS. DUSEK: Okay. I misunderstood. I thought he was going before the county commissioners by November. CHAIRMAN FLEGAL: No. That was just the planning. MR. LEHMANN: Let me ask Mr. Cautero again. Again, your time frame that you're looking at again? MR. CAUTERO: MR. LEHMANN: MR. CAUTERO: MR. LEHMANN: MR. CAUTERO: Well, again-- Reiterate that again. I'm sorry, sir? Would you reiterate that time frame again? Sure. If I submit the application in early August, which is my intention -- to get the paperwork together, I believe that's the quickest time I can do it -- I don't see any way the Planning Commission is going to be able to hear this before the end of October. If they do, that's fine. That's great. I'm predicting a November hearing. And just to clarify -- and I apologize that I confused anyone on that, and Ms. Arnold especially. When I spoke to Mr. Gochenaur, we talked about this whole issue. I didn't speak to him about specific dates. I spoke to another staff member about dates on a client that I'm representing on a rezone application, and that was the time frame that I was given. So I used that as a gauge, but I heard it on another Page 23 July 16, 2001 application. But the point is still the same. I'm looking at applications probably running concurrently with these two clients. So I'd be very surprised if I was -- if the planning staff was able to get this petition on their docket for the planning -- the planning staff to get it on the docket for the Planning Commission before November if I apply in August. If they do get it on in October, that moves everything up about 30 to 45 days. MS. DUSEK: And then from there it would be another month to go before the county commissioners? MR. CAUTERO: It's approximately 30 to 45 days, unless the system has changed since I left, between Planning Commission and board. It may be sooner. I don't know. I know the board meets twice a month, and they hear public hearings, it's my understanding, at every meeting that they meet except workshops. But the rule of thumb that I always used was 30 to 45 days after the Planning Commission. But if the Planning Commission can hear this in October, everything would be moved up 30 to 45 days. MS. DUSEK: I would feel more comfortable doing it at the end of the year, December 30th, and, if he had to, come back and ask for a continuance. I'd like to see this tightened up. MR. LEHMANN: Well, the time frame that I had given originally was December 31st for compliance, which allows the time frame that Mr. Cautero had reiterated again, and that -- that should be sufficient enough time to go before the planning council, to go before the commissioners, and receive a yes-or-no answer. MS. DUSEK: But compliance could mean also removing it. MR. LEHMANN: That's correct. So in other words, for myself on my motion, I'm saying "Get your answers by the 31 st of December. I want to see compliance achieved within 30 days thereafter. If you need to remove the structure to comply because Page 24 July 16, 2001 you got an answer of no from the commission, I will give you 30 days to remove the structure." MS. DUSEK: I think that they should be prepared to go in either direction by December 30th. MR. LEHMANN: Okay. MS. DUSEK: I think if they -- if they get the variance, that's fine. But they should be prepared to remove on that same day if they can't get the variance. I'd like to see it to the end of December. MR. LEHMANN: Obviously you can't remove a structure with one day's notice. It takes a little time to get the -- MS. DUSEK: I mean, that's why I think they -- if they plan ahead to prepare for that-- anyhow, your motion, I would like to amend it to read at the end of the year, December 31 st. MR. PONTE: I understand what you're saying about the end of the year, but I think that given what Mr. Cautero has suggested in terms of timetable, that is November, and then to attempt to get -- go before the commissioners takes 30 or 45 days, then we have to go along with Peter's suggestion for the end of December for one step and then compliance or whatever by the end of January. MS. TAYLOR: I agree. CHAIRMAN FLEGAL: Okay. Let's do it this way: We have Peter's motion for the end of December plus 30 days to do whatever, which gets us into -- towards the end of January. That motion's on the table. Is there a second to that motion? MS. TAYLOR: I second it. MR. PONTE: I'll second. CHAIRMAN FLEGAL: Any further discussion? We have a motion and a second. Jean, do you understand what we're trying to do? MS. RAWSON: I think so. Compliance by December 31st or remove or obtain permits by January 30th. That's -- Page 25 July 16, 2001 MR. LEHMANN: Right. that, but you got the gist of it. MS. SAUNDERS: that? MR. LEHMANN: Yes. I was not very eloquent in saying Did you want to put an amount of fine on CHAIRMAN FLEGAL: Let's wait. We have a motion and a second. We'll have to come back to that since we skipped that part of it. All those in favor of the timetable signify by saying aye. MR. LEHMANN: Aye. CHAIRMAN FLEGAL: Aye. MR. PONTE: Aye. MS. TAYLOR: Aye. CHAIRMAN FLEGAL: Any opposed? MS. SAUNDERS: Opposed. CHAIRMAN FLEGAL: One. MS. DUSEK: Two. CHAIRMAN FLEGAL: Now, how about a fine should this not occur? And you can -- Jean, since we have two dates in there, do we want to just -- could we put a fine at each date period, or are we further ahead just to do it one time if he doesn't get it all done by the end of January. MS. RAWSON: Well, I would prefer you just give him one time. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: My recommendation for the board's consideration is to follow staff's recommendation on the fine, $50 a day -- MR. PONTE: I agree. MR. LEHMANN: -- if it is not resolved by the 30th of January. CHAIRMAN FLEGAL: Okay. The first motion, you did get Page 26 July 16, 2001 the prosecution costs, didn't you, Jean? MS. RAWSON: Yes. CHAIRMAN FLEGAL: Okay. We have a motion on the table that should the final date not be met, there'd be a fine of $50 per day thereafter. Is there a second? MR. PONTE: I'll second it. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Those opposed? (No response.) MR. LEHMANN: Mr. Cautero, I just wanted to -- as a parting comments to this, I think you get the tone of the board. We're not anxious to rehear this case. I think we are very serious that something needs to be happening. Something needs to happen to resolve this case by the 30th of January, period, one way or the other. MR. CAUTERO: Again, if I may take up a moment of your time, I appreciate your comment. I thank you for it. And I'm just as anxious to see Mr. And Mrs. Blocker's property come into compliance so the violation is removed. And, again, they were just trying to go through the process to exhaust all their remedies before they -- they have to remove the structure. They just would like to plead their case in front of the board, but I appreciate your candor. Thank you. CHAIRMAN FLEGAL: Next case is 2001-052, John and Sheila Barry. MS. CRUZ: Mr. Chairman, before I request the packet be admitted into evidence, I'd like to make a correction on the table of contents on that packet. The respondent should read Barry Land Development of Southwest Florida, Inc., as it does on the rest of the Page 27 July 16, 2001 pages of the packet. Let the record show that the respondent's representative, that would be John Barry, is present. I'd like to request that the packet provided to the board and to the respondent be admitted into evidence if there's no objection from the respondent. CHAIRMAN FLEGAL: Mr. Barry, do you object to the county submitting this package to us? MR. BARRY: No, sir. CHAIRMAN FLEGAL: All right. Thank you, sir. MS. CRUZ: I'd like to request that this packet be admitted into evidence and marked Composite Exhibit A. CHAIRMAN FLEGAL: I have a request to submit the packet. Do I hear a motion? MS. DUSEK: So moved. MR. LEHMANN: Second. MR. PONTE: Second. CHAIRMAN FLEGAL: All those in favor signify by saying aye. (Unanimous response.) MS. CRUZ: The alleged violation before this board is a violation of the Land Development Code Section 2.6.20.1.2, Section 2.6.20.1.5, Section 2.6.20.1.7, Section 1.5.6, and Section 2.1.15. The description of the violation is the operation of a commercial business from a residential zoned residence generating more traffic than normal. The violation exists at 4135 Pine Ridge, Naples, Florida. This property is more particularly described as Golden Gate Estates, Unit 26 east 75 feet of Tract 95. The owner of record is Barry Land Development of Southwest Florida, Inc. The address of record is 4160 Seventh Avenue Southwest, Naples, Florida. The violation was first observed on February 8th, 2001. A notice of violation was provided to the respondent on April 1 lth, 2001, with a compliance Page 28 July 16, 2001 date of April 27, 2001. David Scribner. CHAIRMAN FLEGAL: please. As of July 13, violation remains. Investigator Could we have Mr. Scribner sworn in, (The oath was administered.) MR. SCRIBNER: Good morning, ladies and gentlemen. You'll notice in this case that -- kind of a protracted amount of time before Barry Land Development was actually cited in this case, and part of that was a little confusion as to ownership of the property. I've got a map up on the screen here. The green shaded area is the subject piece of property owned by Barry Land Development Corporation. The yellow is actually owned by John and Sheila Barry. That's their residential property. These two properties, as you can see, abut one another. Originally I was told by Mr. Barry that he and his wife own the green piece of property, and a notice of violation was given at that time to John and Sheila Barry. Mr. Barry signed for that. It was later determined that Barry Land Development actually owned that piece of property, so a second notice of violation was provided to Mr. Barry as president of the corporation of Barry Land Development. This piece of property is being used for the storage of dump trucks and other construction equipment involved with Barry Land Development. This is an estate zoned lot with access off of Pine Ridge Road. I had -- Mr. Barry admits that the trucks are stored there and that he has four employees that come every day in the morning to pick up these dump trucks, leave the property, drive out onto Pine Ridge Road, and go about their day's work. Also stored on the property, as you can see through some of these photos that were provided to you, is a fuel storage tank. These employees have been coming to the property as late as last Friday. I checked the property by accessing a neighbor's property. Page 29 July 16, 2001 That was Mr. Danca. I don't know -- Mr. Danca was supposed to be here this morning -- he is here -- and he's willing to testify as to what's been going on on that property. Originally the report indicated that there might be a well that was put on this property. I checked that out. It's not a well. What Mr. Barry has done is actually run a water line from his residential property over onto the unimproved property and uses that just to wash out his trucks. I have had several discussions with Mr. Barry. I don't believe that there's going to be any dispute of the material facts here. The one thing that we will concede is that the storage of the fuel well is not hazardous material. It's not allowed to be stored there. It's kind of a moot point at this point, because that's the green lot, the shaded lot, is an unimproved property, and you really can't use that for storage of anything. So whether it's hazardous or not is really immaterial. MS. TAYLOR: He has stated to you that he has no intention of terminating this business on residential property, hasn't he? MR. SCRIBNER: That's correct. MR. PONTE: Investigator, he -- Mr. Barry was -- did receive a license to operate out of 4160 Seventh Avenue Southwest. Did he -- has he told you or indicated to you why he would not get another license to operate the business? MR. SCRIBNER: He doesn't need another license to operate the business at the present location. He's got a home occupation license. He cannot operate that home occupation if he's not living on this property. This green property is not his property. MR. PONTE: I see. MR. SCRIBNER: It belongs to Barry Land Development. CHAIRMAN FLEGAL: Any additional questions for the investigator? MS. SAUNDERS: Yes. I have one question. MR. SCRIBNER: The other -- the other thing that I should Page 30 July 16, 2001 point out, that home occupations do not allow for employees to come onto the property. MS. SAUNDERS: That answered my question. MS. DUSEK: That license is just for offices? MR. SCRIBNER: Right. And he could operate out of his home. He could drive a dump truck off of his property, his property. He couldn't -- he can't legally drive a dump truck off of this green shaded area because that's unimproved property. MS. DUSEK: So do I understand you to say that if he were to bring the dump trucks onto his property, he's allowed more than one dump truck? MS. TAYLOR: No. MR. SCRIBNER: Well, he could have a dump truck. He can have equipment there that he uses himself. He just can't bring employees to the property. MS. TAYLOR: Right. CHAIRMAN FLEGAL: Any additional questions for the investigator? MS. TAYLOR: Have you seen any sign of where they have changed the oil and put it in the ground? Have you seen any signs of that? MR. SCRIBNER: No. One of the things I would point out, that when I originally got this case, there were some trees that were actually on the neighbor's property, Mr. Danca, Mr. Danca's property. And when I pointed that out to Mr. Barry, the property was really cleaned up. There was some metal that was being stored there, some, what we call, rebar for construction. That was removed. The only thing that's on the property now are the storage of vehicles, the dump trucks or the employees' vehicles that are there when they take the trucks, and the fuel storage tank. It's a 500-gallon tank. And I note that part of the problem with that also is the delivery of the fuel. I Page 31 July 16, 2001 actually saw a fuel truck delivering there. The home occupations ordinance does not allow for that to happen. CHAIRMAN FLEGAL: Okay. Any additional questions? Thank you, sir. MR. SCRIBNER: I'd like to ask Mr. Danca to come up and testify, if he would. (The oath was administered.) MR. DANCA: Good morning, ladies and gentlemen. My name is Gary Danca. I am a resident of Collier County. I live at 4145 Pine Ridge Road Extension, which is three lots down from the green shaded lot that you see on the screen. I guess I'll just give you a little history. I built my residence in 1978 with the intent on living in a rural area. And in the early 1980s, I bought the two lots adjacent to my property to the east, which is -- the 75-foot lot that I own is, in fact, adjacent to that green shaded lot on the screen. My intent was always to either provide a residential building lot for my children or some outside party that may wish to live in a rural setting. Albeit, with Pine Ridge Road now heavily traveled, it's not as rural as it was 20 years ago. However, you still get some quiet enjoyment with the woods setting. Some months back I observed this commercial limerock road being constructed and a couple of months later found out that, in fact, it was to be used as an access road for a trucking business. I get up very early in the morning, let my dog out, go get the newspaper. And many mornings I -- there's a smell of diesel fuel in the air all the way to my residence, which is over 225 feet away, a lot of noise coming in and out of there, both in the early mornings between five and six and again in the evening and on weekends and, you know, a lot of heavy door clanging and, you know, cleaning the trucks and so forth. My concern with the use of the property is that any individual wanting to live in a rural setting or on any single-family lot certainly Page 32 July 16, 2001 does not want to have to put up with dump truck traffic going past their bedroom window. And this lot being adjacent to that, that's, in fact, what would happen. I have a concern about the fuel storage and what that might do to the groundwater for future use as a residential well and just generally the noise that it creates. So that -- that's really what -- where I fit into this. CHAIRMAN FLEGAL: Okay. MR. SCRIBNER: Mr. Danca, have you noticed any dust as a result of the trucks coming in and out of the property? MR. DANCA: Not close to my residence, no. CHAIRMAN FLEGAL: Any other questions for Mr. Danca? Thank you, sir. You did say that the fuel, though, was not hazardous material or it is? MR. SCRIBNER: No. It's a 500-gallon storage tank. Basically this is unimproved property. You can't have it on there anyway, so that one issue, under the home occupations, is really a moot point at this -- all the other issues are certainly pertinent. you, CHAIRMAN FLEGAL: Okay. sir. Mr. Barry. (The oath was administered.) MR. BARRY: Good morning. Any other questions? Thank My name is John Barry. I do own the residence on Seventh Avenue. My company owns the property behind that residence for my dump trucks to come and go. Since -- excuse me. I'm nervous. Since 1997 I've occupied (sic) a home occupational license and had -- had my dump trucks going out off of Seventh Avenue which, I guess, was out of compliance. I really didn't know that at the time. I applied for a home occupational license that states I have four employees with a hauling business leaving -- I assumed it was from -- leaving from my residence. They knew I was keeping the trucks there. I didn't assume that they would suspect that I would drop them off in front of my house for the Page 33 July 16, 2001 drivers as they came in. It operated for about three years. At that time I decided that if -- if I was to purchase property behind me, I could access Pine Ridge Road a lot easier, going onto a busier street rather than coming onto Seventh Avenue Southwest, which is a residential side street off of 951. I purchased the land through my company in order for my trucks to be stored there. On both sides of that -- the reason why I purchased this property was because the residency is not on either side of the lot that I bought. There's a buffer zone. I thought that it would be a lot easier, a lot more nuisance-free for residents that lived around me that I would have the trucks parking back further off of Pine Ridge Road and not around residents that do live on Seventh Avenue. I did this with good intentions. It was not to -- you know, not to try to get away with something. I didn't -- I didn't do this out of a code violation knowingly. I did -- I did this, you know, through a lot of thought and paid good money for this property off of Seventh -- off of Pine Ridge Road -- excuse me -- that is adjacent to my property on Seventh Avenue. My contention is here that -- I tried to -- you know, and I understand Mr. Danca's concerns here, you know. I mean, I live there too, you know. I don't want to contaminate the well or the well water. It's a 500-gallon storage tank that is diesel fuel, and by definition diesel fuel is not a hazardous material at all. It is considered to be an equivalent to a home heating oil, which is, you know, stored around the country in a lot of different homes. It is not hazardous. The oil -- there is nothing spilled there. I mean, I own the land. I don't want to contaminate the land. I have a well in the back of my house. I don't want to contaminate that. I'm going to take very good precautions to make sure that, you know, there's no contamination of any materials onto the ground. I do have four Page 34 July 16, 2001 employees that do come and leave. They come in the morning, sometimes six o'clock. Four vehicles go out. My vehicles do leave onto Pine Ridge Road and then return in the evening when they're done for the day. Normally, you know, they're in and out in five minutes. The traffic on that -- on that undeveloped lot is probably less than my residence. I mean, you have four trucks coming in at night and four trucks -- or four trucks leaving in the morning and four trucks coming in at night, you know, a total of 16 trips. If you count the vehicles that come in when the employees come in in the morning and then leave in the morning, that's 16 trips a day. I'm also about 250, maybe 300, feet away from a big commercial development that has just been put in that more noise and -- and litter and debris has come up from that section being developed into a commercial devel -- into a commercial site, being a strip mall and a gas station that was put there. You know, I -- I do understand that this is a residential area. Like I said, I wasn't trying to get away with anything. I did try to conform as best I could at the particular time when I received the notice. I cleaned up the lot a lot. There was some debris over my property line onto Mr. Danca's property. I cleaned that up within a week's notice that I had of it. I tried to, you know, do what I can, but ! have not the means to go out and purchase another piece of property. And I told David Scribner, the code enforcement officer at that time, I said, "I put all my money and efforts into improving this property. You know, there's no residences around there." And I said, "If something got built there, I certainly would move; or if my business increased in volume, I certainly would move." You know, I don't want to live next to a construction site either, but my -- you know, it's my opinion that it's not bothering anybody. I did write a letter to Mr. Danca explaining my position. I said, you know, "If there's anything that I can do to be of service" -- you Page 35 July 16, 2001 know, "If you have any questions, maybe me and you could work something out, you know, to where, you know, I can understand your concerns face to face with me." I did write him a letter. I'm assuming he got that letter. I had no response from Mr. Danca to me, not to my person. CHAIRMAN FLEGAL: Mr. Barry, since this started do you understand that what you're doing is a violation of county ordinances? MR. BARRY: Yes, sir. I -- I understand that. But the fuel is not -- is -- being stored where it is is a violation. If I moved it 50 feet onto my residence, it would not be. I mean, the real concern -- yes. I do understand that the four employees leaving my residential area is - - is a violation. CHAIRMAN FLEGAL: Okay. The storage of your vehicles on the property is the violation. MR. BARRY: No, sir. I can store vehicles on my property. CHAIRMAN FLEGAL: No. MR. BARRY: I understand. I'm saying. CHAIRMAN FLEGAL: Let's not deal with your house because you weren't cited for your house. MR. BARRY: I understand. CHAIRMAN FLEGAL: Let's get back to the piece of property. Do you understand the property you're using now you're using illegally? MR. BARRY: Yes, sir. CHAIRMAN FLEGAL: Okay. I just want everybody to understand, especially you, because this board can't tell you you can do that. All we can do is say you're in violation, if that's what we decide, and we're going to tell you to remove everything. MR. BARRY: I understand that. Not on this piece of property. But if I move them 50 feet, is what Page 36 July 16, 2001 CHAIRMAN FLEGAL: But you need to understand that you, in fact, are doing something that is illegal. Now, if you want to put them on your own personal property, then that's another matter. That will clear everything up and get it away from us. MS. TAYLOR: No, it won't. If he has employees coming, he's still in violation. CHAIRMAN FLEGAL: Let's stick with the existing problem, which is this piece of property. MS. TAYLOR: Well, you're telling him one thing that isn't right. CHAIRMAN FLEGAL: Okay. If you move the vehicles, I don't know if it'll be a violation, but that's what you're going to have to do. Okay. Where you move them, I don't know. Whether you can move them to your other piece of property and be legal, I don't know that. You have to talk to code enforcement. But I want you to understand that because you're saying you're cleaning up this property, that isn't helping. The violation is what you're doing with it. Okay. It's nice that you're trying to clean it up, but the violation is you have the vehicles there. Do you understand that? MR. BARRY: I understand that fully. CHAIRMAN FLEGAL: Okay. I'm getting the opinion that you're trying to clean it up and hoping to work it out with your neighbor, and that isn't going to be good enough because you're still going to be in violation, unfortunately, and we're going to tell you to do something about that. MS. SAUNDERS: Sir, you indicated that if your business grew, this property would not be satisfactory for it anyways. MR. BARRY: That's correct. MS. SAUNDERS: Do you have any projected plans on when that might happen? MR. BARRY: I wish I could grow in extreme amounts. I -- I Page 37 July 16, 2001 do have a couple of contracts in the works right now, and anything could happen at any time or nothing could happen. I don't know. I don't want to speculate about that. CHAIRMAN FLEGAL: Any other questions for Mr. Barry? Thank you, sir. MR. PONTE: I do have a question, though. The description of the violation is the operation of a commercial business from residentially zoned residence generating more traffic than normal. Now, that green piece of property is owned by the company and is separate from the residence; is that not true? It's in a residential area, but the description of the violation is just as I said. So I'm not sure where the violation really is, so I'm asking staff to clarify that. MS. ARNOLD: The property is zoned estates, which is rural residential. MR. PONTE: Even though it is not owned-- he's not living on that property and -- MS. DUSEK: I think what he's doing -- it's zoned residential. He's operating a business on a residentially zoned property. MS. TAYLOR: Yes. It's very plain. MS. DUSEK: Which he's not allowed to do. MS. SAUNDERS: You are allowed to operate certain businesses on residentially zoned property. The question becomes are you allowed to operate four trucks. MS. ARNOLD: The activity that's occurring on that residentially zoned property is what is prohibited. The storage of the vehicles, the storage of the tank, the trips with the employees going back and forth on that particular property is prohibited because that residentially zoned property, the estates zoned property, is unimproved, so no uses should occur on that property. MS. SAUNDERS: So if it were improved property, hypothetically what he is doing would be legal? Page 38 July 16, 2001 MS. ARNOLD: No. MS. SAUNDERS: No? Why wouldn't it be? MS. ARNOLD: Because under the home -- if he hypothetically had a residence on that property, he can have a home occupation, but the home occupational license prohibits activity such as employees traveling back and forth onto that property. You cannot have your employees come to your property to conduct business. The home occupational license is intended to be an office for the individual residing at that property. MR. SCRIBNER: One other thing I think the board needs to be aware of is the residential property that Mr. Barry and his wife own -- is that he lives in the home. He has a garage that is right adjacent to this green piece of property that's highlighted, and employees certainly go over to the garage there. So there's potential problems that are derived from that. And the fact of storing the vehicles, his vehicles, moving his vehicles over onto his residential property, at this point he has no access to the rear of that other than through the green property, which would still make it a violation. Using this green piece of property to traverse to get to the rear of his other property really wouldn't solve the problem. All we're doing is moving it 50 feet. We'll be back here in a month. MS. TAYLOR: Absolutely. Everything that he is doing is a major violation. MR. SCRIBNER: All I can say is yes, and I don't think you'd want to live next to that violation. MS. TAYLOR: No, I wouldn't. MS. ARNOLD: For the board's information, on page 18 of your packet, it provides information on the home occupation, what's permitted, what's prohibited, Section 2.6.20. MR. SCRIBNER: The other thing I'd point out is this is a copy of Mr. Barry's occupational license from 1998, and you can see under Page 39 July 16, 2001 "remarks" it says, "Must comply with Section 2.6.20 of the Land Development Code." That's -- that pertains to home occupation. MS. DUSEK: I make a motion that a violation does exist between the Board of County Commissioners versus Barry Land Development of Southwest Florida, Incorporated, CEB No. 2001- 052. The violation is of Sections 2.6.20.1.2 and 2.6.20.15 and 2.6.20.17 -- .1.7 and 1.5.6 and 2.1.15 of Ordinance No. 91-102 as amended, the Collier County Land Development Code ordinance. And the description of the violation is the operation of a commercial business from a residentially zoned residence generating more traffic than normal. MS. TAYLOR: I second that. CHAIRMAN FLEGAL: Okay. We have a motion and a second. I would ask you both that -- as I'm understanding 2.6.20.1.7, which says no on-premise use or storage of hazardous materials, he's not doing that, so I find it very difficult to find somebody in violation of something they're not doing. That's why I asked the investigator about the diesel fuel. It is not a hazardous material. MS. DUSEK: That's a good point, Mr. Chairman, and I don't know if there is a section that would address that one issue of the storage tank. CHAIRMAN FLEGAL: Well, he hasn't been cited for it so ... MS. ARNOLD: 1.5.6 is illegal -- CHAIRMAN FLEGAL: MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Is the other one? Okay. But this one, we can't find him in violation of something that he's not doing. MS. DUSEK: All right. I'll amend my motion to eliminate that one section. MS. TAYLOR: But it is a violation. MS. DUSEK: It's not hazardous material. Page 40 July 16, 2001 CHAIRMAN FLEGAL: I'm sorry. It's not hazardous material. MS. TAYLOR: You cannot put a storage tank on a piece of ground just to put a storage tank. They've got a truck coming in there to supply it. You've got some leakage. You've got to. When you see somebody filling a tank, you have a certain amount of leakage. Now, that's just plain fact. I've seen it with my own eyes. MR. SCRIBNER: What it amounts to is that's covered under the 1.5.6 part of the ordinance. MS. TAYLOR: But they're trying to make a point that this tank is okay, and it isn't okay. MS. DUSEK: No, we're not-- CHAIRMAN FLEGAL: No. MS. DUSEK: -- saying that the tank is okay. We're just saying that it's not hazardous material. Another section does address that, but it's not hazardous, so we can't really cite him. MR. SCRIBNER: In all honesty, there's probably more fuel being stored in the truck tanks than there are on that tank that's sitting on the ground when they're parked on the property. MS. TAYLOR: That's probably true too. CHAIRMAN FLEGAL: Would you amend your motion, please. MS. DUSEK: MR. PONTE: Yes, I did. I amend it to eliminate that section. I just need a little clarification here. We're using Section 2.6.20, and it refers to a residence, not a residentially zoned area. Is this citation correct? It clearly talks of a residence, and this is not. Maybe a residential -- residentially zoned area. MS. ARNOLD: In 2.6.20.1 -- MR. PONTE: Yes. MS. ARNOLD: -- in any zoning district which permits residential dwellings. It's talking about the uses that permitted -- are permitted in the zoning district. I think you're making reference to Page 41 July 16, 2001 the affidavit-- MR. PONTE: No. 2.6.20.1.2 says, "The use does not generate more traffic than would normally be experienced at a residence." MS. ARNOLD: Right. And in that section it's talking about the traffic, so you would be looking at the traffic generated by the use of a residence and say you're not going -- you're not supposed to generate more traffic than a normal residence would generate, and that's what it's prohibiting. MR. PONTE: I understand. Is there not a statute that would apply here or part of a code that would apply and clearly state residentially zoned? MS. ARNOLD: It does say that. MS. DUSEK: In the first -- George, in 2.6.20.1 -- MR. PONTE: Yes. MS. DUSEK: If you kind of dissect it as you read it, "In any zoning district which permits residential ..." This green space does permit residential, and it is in a zoning district which does permit residential, and that's how it's being addressed. It doesn't say that it has to have a house on it or an approved property, but it's in a zoning district. MS. ARNOLD: Right. I think what's confusing to Mr. Ponte is under the statement of violation and request for hearing, under paragraph 2 it says, "Operation of commercial business from a residentially zoned residence." It should have said "property" rather than "residence," and that's just our description. That's not what the ordinance states. MS. DUSEK: Well, then perhaps in my motion I should change that to property so it would be more clearly understood. MR. PONTE: Yes. MS. DUSEK: Okay. So there are changes to my motion: One is eliminating 2.6.20.1.7, and the other is changing residentially Page 42 July 16, 2001 zoned residence to property. CHAIRMAN FLEGAL: We have an amended motion. Does our second still stand? MS. TAYLOR: Nope. I'm disgusted about the tank. MS. SAUNDERS: I will second that. CHAIRMAN FLEGAL: Okay. We have a motion -- a revised motion and a second. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: MS. TAYLOR: No. CHAIRMAN FLEGAL: Those opposed? Okay. Order of the board. MS. SAUNDERS: I have some thoughts. I agree with you. There clearly is a violation here. I think we've also got to -- an individual who's making an attempt to comply or to do what he thinks is right who is running a small business, and I see that as a -- okay. Let's give him a little bit of time to get-- to make this change which is a major change for the business. So I'd like to -- in the recommendation from staff, I'd like to give him substantially more than the 30 days. And I also believe that the fine of $150 a day, given the violation, is way too strong considering the last one which we just did which is an illegal residence which was $50 per day. So my suggestion would be that we give him, as well, till the end of the year to comply and then put a fine of $50 a day on that. And hopefully his business will have grown or he'll have found something else -- some way else to correct it. We're not having-- and I think that still fits with what the neighbor is asking, which he doesn't want his property permanently damaged. So it's a compromise, to me, that I believe makes some sense. MS. TAYLOR: I disagree 100 percent. MS. DUSEK: I agree with you, Rhona, especially on the fine Page 43 July 16, 2001 issue. I don't know of giving him till the end of the year, but I do agree with you on the fine. I think that is too high. MR. PONTE: I think the fine is too high, and I think the -- well, the suggested fine is too high and that the time frame is too short. MS. DUSEK: I do too. MR. PONTE: That should be extended. I have a feeling the business is going to grow, and given the climate and the one here, it could take a little time. I think the end of the year is reasonable. MS. DUSEK: Okay. I'll go along with that. CHAIRMAN FLEGAL: Right now we have a motion for December 30th? MS. SAUNDERS: Sure. CHAIRMAN FLEGAL: To -- MS. SAUNDERS: To come into compliance. CHAIRMAN FLEGAL: To come into compliance. MS. SAUNDERS: And after that a fine of $50. CHAIRMAN FLEGAL: And additionally to pay prosecutional costs? MS. SAUNDERS: Yes. MS. TAYLOR: What about the road that he has put in through here? What about that? Is he going to have to replant that or what? You've got to be more specific. And he has known for a long time, and he has blatantly said, "No. I am not coming into compliance," and he has told this investigator he won't do it. He's known what he's doing all the time. CHAIRMAN FLEGAL: He wasn't cited for building a road, so we can't order him to undo a road since he wasn't cited for it. If they want to cite him for that road during this period, they can do that. I think if they -- it seems that there is a willingness now, at least, to try and work this out. He's been trying to clean up his property. I think if the county works with him, he'll probably do something about that Page 44 July 16, 2001 without having to come back here. MR. BARRY: Can I -- CHAIRMAN FLEGAL: Not right now, sir. So as far as the road goes, I understand what you're saying, but I think it would be improper to order him to take up a road that he hasn't been cited for. That really needs to be addressed later. So right now we have December 31st to come into compliance with everything we found him in violation of, and if he doesn't, a fine of $50 a day. And so that's the motion on the table. Do we have a second? MR. PONTE: I'll second that. MS. ARNOLD: Can I explain our motion (sic) with respect to the fine? What -- what we came up with was so that we would avoid the respondent, as a course of doing business, just pay the fine. And that -- that's where we came up with $150 per day each day the violation exists. And we're trying to think about prior activities where people just pay the fine and not really correct the violation. CHAIRMAN FLEGAL: Well, $50 a day -- I mean, you know, $1500 a month, maybe he has a great business, but I don't think he'd be wanting to write a check every month for $1500. MS. ARNOLD: I just wanted to explain our recommendation. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion from the board? All those in favor signify by saying aye. MS. SAUNDERS: MR. LEHMANN: Aye. Aye. CHAIRMAN FLEGAL: Aye. MR. PONTE: Aye. MS. DUSEK: Aye. CHAIRMAN FLEGAL: MS. TAYLOR: Yes. I oppose. CHAIRMAN FLEGAL: Okay. Those opposed? Mr. Barry, did you want to tell Page 45 July 16, 2001 us something? MR. BARRY: Yes. I'd like to say something, fact, that I do have ROW, right-of-way permit, so I do have access onto that property which was permitted. CHAIRMAN FLEGAL: Next case, No. 2001-060, Jose Ortega. MS. CRUZ: Let the record show that Mr. Ortega is present. I'd like to request that the packet that was provided to the respondent and to the board be admitted into evidence, please. CHAIRMAN FLEGAL: Mr. Ortega, do you object to the county submitting all this paper to us? MR. ORTEGA: Yes. CHAIRMAN FLEGAL: You do object? MR. ORTEGA: (Nodded head.) CHAIRMAN FLEGAL: Do you understand what I'm asking you? MR. ORTEGA: (Shook head.) CHAIRMAN FLEGAL: Okay. If someone can interpret. Maria, can you-- MS. CRUZ: I can interpret. MR. MORENO: I the one live in this property because we bought this property together, and I'm trying to fix this property myself. CHAIRMAN FLEGAL: Okay. You'll get your chance. All I want to know first of all is, does he object to the county giving us this paperwork to read? MR. MORENO: No. CHAIRMAN FLEGAL: Okay. You can sit down, and we'll call you in a minute. Thank you. You can sit down, Mr. Ortega, and we'll get to you in a second. Okay. Could I have a motion to accept the county's Exhibit A? MS. DUSEK: So moved. Page 46 July 16, 2001 MS. SAUNDERS: Second. CHAIRMAN FLEGAL: We have a motion and a second. All those in favor signify by saying aye. (Unanimous response.) MS. CRUZ: The alleged violation before this board is a violation of Section 2.7.6, paragraph 1 of Ordinance No. 91-02 (sic) as amended, the Collier County Land Development Code, and violation of Section 104.1.1 and Section 105.5 of Ordinance No. 98- 76, Collier County Building Construction Administrative Code. The description of the violation is repair and replacement of an exterior wall of a mobile home without first obtaining all required Collier County building permits. The violation exists at 3107 Karen Drive, Naples, Florida, and is more particularly described as N G + T C L F No. 2, Section 23, Township 50, Range 25, commencing at the northwest comer of Lot 100, South 89 degree east 666.81 (sic) feet to the point of beginning in the south 89 feet -- 89 degree east 60 feet, south 139 feet, north 89 degree west 60 feet. The name of the owner is Jose A. Ortega. His address of record is 261 Eugenia Avenue, Fort Myers, Florida. The violation was first observed on March 28th, 2001. A notice of violation was provided to respondent on April 5th, 2001, with a correction date of April 23rd, 2001. Violation remains as of July 13th, 2001. I'd like to mm to investigator John Kelly, please. (The oath was administered.) MR. KELLY: Good morning, Chairman, Members of the Board. John Kelly, Collier County code enforcement investigator. This case was initiated by me on March 28, 2001, at which time I was rechecking another violation at the property. I believe it was litter. That has since been abated. When I was there, what I did observe was the skin of this trailer having been partially removed and new Page 47 July 16, 2001 plywood and a window frame apparently having been installed into a mobile home. Both of these pictures would indicate what was there on March 28th. Please note that I did place a stop work order at that time. Also on that date I did request a notice of violation, prepared one, and had it sent to the property owner. Receipt for that certified mailing was returned. To date I've had no contact with Mr. Ortega. He is an out-of-county resident, and I was unable to obtain a telephone listing. I had spoken to Mr. Moreno, the resident, and did not receive a telephone number for Mr. Ortega. My latest visit, which was Friday, is similar to this photograph which was taken in April. You'll note that much of the wood siding has been removed; however, there are interior repairs or modifications that would require a permit. It -- to my knowledge, a permit is not obtainable without engineering, being that this is a -- a mobile home. And that would conclude my testimony here. MR. PONTE: Investigator, just for my own information here before we get into the facts of this case, recently we heard a case involving litter on Karen Avenue, so we're making some effort to clean up the area, I would gather. Is there a reason that there was no litter citation here? MR. KELLY: There was. I've had numerous cases at this property, and every time I go back to reinspect one, I initiate another. When I went back Friday, an unlicensed vehicle complaint was opened. MR. PONTE: Okay. Thank you very much. CHAIRMAN FLEGAL: Can you describe the work that's being done? I mean, looking at the pictures, I'm not sure actually what's taking place out there. MR. KELLY: I think the -- the work is done to the satisfaction of the tenant, however not to the satisfaction of the county, as no Page 48 July 16, 2001 permits were obtained. CHAIRMAN FLEGAL: Okay. Do we know what the work was? MR. KELLY: Yes. It's indicated. You'll see plywood surrounding the air conditioner of this window. Windows, exterior windows, do require a permit. It is apparent in another photograph -- this is the same window -- that there was no window at that time, so it had been removed and reinstalled. MS. TAYLOR: The gentleman with the cap is the one that's living there; is that correct? MR. KELLY: No. The gentleman in the white T-shirt is the resident. MS. SAUNDERS: So there is an occupancy permit for this mobile home; is that right? MR. KELLY: I believe there is. Given the age of the property, I'm uncertain. MS. SAUNDERS: Okay. MS. TAYLOR: All this stuff is still around there? MR. KELLY: No, ma'am. MS. TAYLOR: None of it? MR. KELLY: No, ma'am. CHAIRMAN FLEGAL: Any further questions? Thank you, sir. Mr. Ortega. (The oath was administered.) CHAIRMAN FLEGAL: Mr. Ortega, do you understand English? Is this going to work for you, or do you need some help? MR. ORTEGA: Not perfect, but he help me. CHAIRMAN FLEGAL: If you need some help, we'll get you some help. MR. ORTEGA: I think better I need some help. CHAIRMAN FLEGAL: You tell us your side, sir. Page 49 July 16, 2001 MR. MORENO: I can tell -- I can tell you everything what happened. I can tell exactly because I the one that did it. I the one that living there with my kids. I have five kids. MR. LEHMANN: Sir, would you be able to translate for Mr. Ortega? MR. MORENO: Yeah. But I the one respond to everything to you guys today because I the one who -- he's not been living in the house. I the one living there. MR. LEHMANN: I understand that, but we can only address Mr. Ortega. CHAIRMAN FLEGAL: to address it to him. Since he owns the property, we have MR. ORTEGA: One question. We get this property together. We pay together. But that trailer no belongs to me. It belongs to him. MR. MORENO: The trailer is mine. I bought the trailer before we get the land. And before I get the land, it was trash in there, more than there is right now. So I cannot do a lot of things when I own by myself. You know, I got five kids. I working at nights in a restaurant, so I keep it clean, and I try to -- I'm improving the house. That's the only way I can do. MS. RAWSON: I don't have any problem with the board addressing the tenant since he's the owner of the trailer and since he speaks English, and then you can also address the owner of the property. It might be easier since -- MR. MORENO: I can respond to everything. MS. RAWSON: All right. It might be easier -- since I believe the owner-- or someone testified that the owner doesn't live in the county, you might get more information out of the tenant. CHAIRMAN FLEGAL: Okay. I guess one of my questions is, Mr. Ortega, you own the land? Page 50 July 16, 2001 MR. ORTEGA: Yes. CHAIRMAN FLEGAL: And you, sir, own the trailer. MR. ORTEGA: Yes. MR. MORENO: Together with him, but I bought the trailer before he bought property. CHAIRMAN FLEGAL: Okay. But am I correct in saying he owns the land, and you own the trailer. MR. ORTEGA: Yes. You're right. CHAIRMAN FLEGAL: Okay. You pay him rent to have a trailer there? MR. MORENO: No. CHAIRMAN FLEGAL: It's just a deal between the -- MR. MORENO: Yeah. CHAIRMAN FLEGAL: Okay. MR. PONTE: The violation's really against the trailer. CHAIRMAN FLEGAL: I guess that's what I was about to ask Ms. Rawson. The violations are against the trailer not the, quote, land -- MS. RAWSON: Correct. CHAIRMAN FLEGAL: -- so have we cited the wrong person? MS. RAWSON: Well, we've cited the landowner because if there was ever a lien to be applied, it would be on the land, and it would run with the land. So the owner, ultimately, is always responsible. You could have also cited the owner of the trailer. MS. DUSEK: How would this work if we decide there is a violation since we haven't cited the owner of the trailer? MS. RAWSON: You have to ask the owner of the land whom you have cited to come into compliance. Then he tells his partner, who owns the trailer, to come into compliance. But you have to cite the landowner because that's who the violation was sent to. MS. DUSEK: If it had been sent to both, we could cite both? Page 51 July 16, 2001 MS. RAWSON: If it had been sent to both, you could cite both, or you could cite one or the other. CHAIRMAN FLEGAL: Okay. I think I got that worked out. Did you do all this work yourself, sir? MR. MORENO: Yeah. CHAIRMAN FLEGAL: Okay. And the changes that they've showed us is what you did? Did you -- closed in this window and put the air-conditioning unit or-- MR. MORENO: Okay. I got an instant here. About four months ago, I got an -- you know, I was out to buy something, and my kid was at home by himself. My kids are 11, 8, and 7 years old. So some -- one of the friends called 911. The police came into my trailer, tell me all the kind of stuff, that this trailer -- you live in this trailer. And I said, "Look, this my trailer. I wish I could live in another place." I wish I could live in Pelican Bay or maybe -- whatever, but that's where I can afford to live. So they took a picture inside, out, and everywhere. Okay. And then the insurance come to my house. They might be going to help me with the materials so they can fix my trailer, but nothing's been done, so I have to do it myself. If I no do anything to this trailer and the trailer fall on me when I'm sleeping, that's okay because I did nothing. But I have to do something. I didn't know that for under $500 you need a permit, you know, to replace a partial -- something in the wall or put a window you need a permit, because $500 -- it's not a $4,000. It's not a major repair to the trailer. It's just one wall, and it's going to cost me, like, $200 in material, and that's what I've been doing. I can't do it all at once, and I can't go to hire engineers to come into my place to tell me, "Oh, you need this and this," because I need, like, probably $10,000, and I don't have $10,000. MR. LEHMANN: Did you just replace a window? Is that what Page 52 July 16, 2001 you said? MR. MORENO: The window and the air condition. There was no air condition in the trailer in the picture you see, so I put the one in the living room -- I took the one from the living room, and I put it to my room because it was too hot in the summer. MR. LEHMANN: But according to the pictures that I'm looking at -- and I'm a little confused here. Did you take a window out? MR. MORENO: No. The window wasn't there but -- MR. LEHMANN: You cut a hole in the side of the trailer and put a window there? MR. MORENO: I put the air conditioning where the window is. MR. LEHMANN: So-- MR. MORENO: And the other window still there. The only thing I did is just cover the window because the trailer has those things that, you know, you can lift them and put them back on. MR. LEHMANN: Could you put picture -- page 17 up on the screen? So if you look at the bottom picture, for instance -- could you just blow that up on the bottom one there? MR. MR. MR. windows MR. MR. MR. MR. MORENO: Yeah. That was -- LEHMANN: So there was a window here originally? MORENO: Yeah. The hole -- one, two windows. Six in the trailer. There's two, four, six. LEHMANN: So you took these out. MORENO: Huh? LEHMANN: You took these windows out? MORENO: One, the one right where the air conditioning Okay. is. MR. LEHMANN: conditioner in? MR. MORENO: Yes. MR. LEHMANN: You took a window out and put an air And that's all you've done? Page 53 July 16, 2001 MR. MORENO: Well, I remove -- the wood that he told me to remove, then I remove it, because I was planning to reinforce the wall. But he no want it, so I take it out again. And then I started partially where the metal thing is to, you know, make it look better. That's all. MR. LEHMANN: Did you change anything structural on the trailer? MR. MORENO: Huh? MR. LEHMANN: Did you change anything structurally on the trailer? MR. MORENO: No. All the same, the walls. MR. LEHMANN: The opening was already there? MR. MORENO: The windows all were there. There's two, four, six windows in the trailer, and two in the front, like you see those two protected windows? Everything's clear now. You see the wall right there? That's what I'm trying to get another wall. But the wall is -- it's still there, you know. MS. DUSEK: I'm trying to follow this. And, Mr. Kelly, originally when you went out there, there was plywood siding on the side of the trailer, and you asked him to remove that? MR. MORENO: I remove it. MS. DUSEK: And so he did that. And the only thing now that he's being cited for is that section where he took the window out and put the air conditioner in and then put the plywood back in place where the window was; is that correct? MR. MORENO: Yeah. MR. KELLY: Yes, ma'am. And also by the top photo on page 17, you'll note the window was totally removed at one time. MR. LEHMANN: I'm very confused because it seems like all that was done here was a window was taken out and put back and -- or I should say two windows were there. They were taken out. One Page 54 July 16, 2001 was put back, and the other was blanked off. It doesn't seem like the structure of the building was changed. MR. KELLY: The framing, however, for the window was, and that requires an inspection. MR. LEHMANN: The framing was changed on the trailer? Because it looks like the same size opening. MR. KELLY: For that window it appears to me that it has -- regardless if the window came out, that now requires an inspection once it's back in. CHAIRMAN FLEGAL: I guess I'm having, I guess, maybe a similar problem in that with what he -- he's done the work himself. In looking at what he's done, I mean, a couple of sheets of plywood, if they were, you know, 20 bucks a sheet, that's probably a lot of money. Isn't there a $750 limit on what you're allowed to do yourself, and you don't need permits but you do need an inspection? MR. KELLY: With exception to exterior windows and doors. CHAIRMAN FLEGAL: Okay. And where -- what item is that in-- you didn't cite him for that. MR. KELLY: That's-- CHAIRMAN FLEGAL: You cited him for not having permits. I'm trying to get-- MR. KELLY: That's part of the building administrative code. He wasn't cited -- he was cited for not obtaining a permit under the Building Code 104.1.1. CHAIRMAN FLEGAL: But that says, I think, if you go on -- we didn't get the second page -- that there's an exception. And if it's under $750, all you need is -- or does it say somewhere else that that doesn't apply to windows? MR. KELLY: That would not apply to anything requiring an inspection, which includes doors and windows of the exterior walls. MS. DUSEK: Where does it say that? Page 55 July 16, 2001 MR. MORENO: Changed a door, a front door. CHAIRMAN FLEGAL: That's not what I read, but let me go back. MS. SAUNDERS: You did not put in any electrical outlets or anything? MR. MORENO: No. CHAIRMAN FLEGAL: Okay. I guess where I'm having my problem, Mr. Kelly -- and help me out here -- is under that 104 when it talks about exceptions, it says do not require permits but inspections can be required. And then it goes down and it says, you know, less than $750 unless specifically required by an ordinance or fee resolution. And then it says except structural components -- now, he didn't change any structure -- or fire related assemblies -- he didn't do anything to that. Where do we get into windows and doors are different? I'm lost here so help me out. MR. KELLY: I believe windows and doors are part of the structure. It has been made clear to me by the building department that exterior windows and doors do require a permit. MR. LEHMANN: I don't have that section.' Do you have a copy of it? MS. DUSEK: But that -- I'm confused. If a window already exists, it doesn't seem to me that it would apply to the structure. If a window was cut through and had not been there before, then I think that ordinance would apply. But since a window was already there, I'm having a difficult time finding a violation. MS. ARNOLD: According to the building department, if you're replacing your windows, exterior windows or doors, you should get a permit because they want to make sure that they're reinstalled according -- appropriately so that the wind load and the integrity of those elements, whether it's a door or a window, are meeting county code. So it doesn't -- the $750 exemption doesn't apply when you're Page 56 July 16, 2001 talking about windows and doors, exterior. MS. DUSEK: Is there someplace where that's defined, Michelle? I know it says structure, but is there someplace where it's more defined to say if replacing a window? MS. ARNOLD: No. That's just information that we've received from the building officials. CHAIRMAN FLEGAL: In the building code, does it make a difference between a house and a trailer? MS. ARNOLD: Well, there's different rules that apply to a trailer. There's -- there's engineering requirements and stuff like that when you're replacing the outside siding because those units are manufactured elsewhere and then brought on site. So there's different guidelines that apply to a mobile home than concrete block structure or, you know, those types of things. So any structural integrity -- any structural modifications to a mobile home would require engineered drawings. MR. LEHMANN: And you're defining a structural modification in this case in replacing a window? MS. ARNOLD: Correct. MS. DUSEK: It's really closing up a window. MR. LEHMANN: And that would require an engineer to do a design document or something? MS. ARNOLD: Well, I'm not sure that particular part of it would require engineer -- when Mr. Kelly went to the site, there was more improvements, as he indicated in his testimony, with the supporting of the wall. And I think that's where the structural component was questioned, whether or not they were making modifications. The only thing that's left in this case would be the modification to the window because they've since removed the plywood. MR. LEHMANN: Again, I think my -- my problem with this is Page 57 July 16, 2001 it seems to me -- and maybe I'm wrong, and maybe I'm just not understanding it. But it seems to me as if the respondent has taken one window out and either reinstalled the same window or only half of it or just left it out completely and then boarded over the top of it. I don't understand how he structurally compromised -- MR. KELLY: He would then-- excuse me. He would then have to place siding over this window, and that, too, requires a permit. MR. LEHMANN: But, again, siding is not in the code, is it? I mean, are you saying that we have to mandate to him how he closes that off? MR. KELLY: I believe the building department would say yes. MR. LEHMANN: He has to put siding on it? I could assume some sort of weatherproofing, yeah. And maybe they're looking at siding as that. MR. KELLY: Even stucco requires a permit. MS. ARNOLD: Basically what we're saying is that the window improvements require him getting a -- a building permit for replacement or modification of a window. MR. LEHMANN: At this stage of the game, how easy or difficult would it be to obtain this permit that we're talking about? MR. KELLY: I would like to ask if they've made any attempt to contact a building official and attempt to resolve this issue having been made aware of it. MR. MORENO: I will as soon as I -- I call -- every time I call one phone, they transfer me to the other phone. And then the other phone they say call and call. I say, "Well, can I get information to get a permit, or can I get a -- on the 50 -- $500 or $750, do I need a permit?" "Oh, you got to call this number." Then I call this number. They say, well -- I didn't get information. I got three different numbers, and nobody give me answers if I need a permit for a Page 58 July 16, 2001 thousand or $500. So I have to go to person to -- but then again, he's the owner of the land, so they don't issue a permit to me because he's -- owned the land. So he has to go with me or sign me up a power paper so they can -- I can go over there to do that. I want to get this thing livable. I don't want to live like this. I don't want to live in the street, either, you know. That's the only place I can afford to live. CHAIRMAN FLEGAL: Okay, sir. Let me -- let me see if we can't get you some help here and try to do something. Any other questions for him? Thank you, sir. You can sit down. See if we can't come up with a MS. DUSEK: I'm still a little hazy about things being defined in the code. I don't see it. CHAIRMAN FLEGAL: I don't either. MS. DUSEK: And I'm having a problem with that. MS. SAUNDERS: I agree with you. I really don't think there's a violation. I think there may have been one at one time, but I think it's past that. I just don't see the purpose of what we're -- of putting these people through hoops at this point. MR. LEHMANN: Well, I can understand what Michelle is saying regarding the code and the fact that we have altered the structure. And I step backwards from my previous comment because the window itself is part of the envelope of the building, and you want to protect that envelope and make sure that these windows are installed to resist the high wind conditions and all that. So I can understand how they're saying it should be a -- considered a structural issue, per se. But, again, it's kind of a technicality of the code. I just can't envision this being a big problem. This is just a window. You know, somebody should come up with some screw patterns or nailing patterns to attach it to the building and go on with life. Page 59 July 16, 2001 MR. PONTE: The only way to find our way through this is to find no violation. Otherwise, we're opening, really, a Pandora's box here. If, in fact, an inspector goes out to take the window -- to look at the integrity of the window, certainly there might be questions about the integrity of the mobile -- we're just exacerbating a not good situation. And just looking at the charge and getting it settled most easily and reasonably, I think, is to find no violation. MR. LEHMANN: Well, I'm-- my concern with that is do we, again, set a precedence and leave the county, then, open to challenge any time they find that there is a violation. MR. PONTE: It's the discretion of the board here. CHAIRMAN FLEGAL: I think each case has to stand on its own merits. MR. PONTE: Yes. CHAIRMAN FLEGAL: And in this particular case, again, case by itself, I think these folks were trying to do the right thing. It sounds like they're trying to been -- trying to be working with the county and cleaning up some other issues and doing what they're told. And we're down to one window which, believing the testimony, he's making calls trying to understand what to do. I tend to agree with George that, you know, I'm not prone to find this violation. I think what he needs more than anything is a little help. MS. DUSEK: I make a motion -- CHAIRMAN FLEGAL: Somebody to tell him what to do really. He doesn't seem to be getting that. MS. DUSEK: I make a motion that there is no violation. MS. SAUNDERS: I'll second that. CHAIRMAN FLEGAL: We have a motion and a second that there, in fact, is no violation. Is there any further discussion? MR. LEHMANN: I don't know that I could support the fact that there would not be a violation, but I can certainly support the fact that Page 60 July 16, 2001 the homeowner is doing everything he's supposed to do in the right manner. And sometimes dealing with the county on this $750 issue is boggling for people that are not in the profession. MS. DUSEK: I can't find anyplace that we could cite him. And, therefore, I cannot, in good conscience, say that there's a violation. MR. LEHMANN: I understand your position. CHAIRMAN FLEGAL: Any further discussion? We have a motion and a second. All those in favor that there is none -- not a violation signify by saying aye. MS. SAUNDERS: Aye. CHAIRMAN FLEGAL: Aye. MR. PONTE: Aye. MS. DUSEK: Aye. CHAIRMAN FLEGAL: MS. TAYLOR: Yes. MR. LEHMANN: I would be opposed. CHAIRMAN FLEGAL: understand what we've said? MR. MORENO: Yeah. All those opposed? Okay. 4 to 2. All right, sir. Do you CHAIRMAN FLEGAL: There is no violation. What I would suggest is that you contact the county, Ms. Arnold's office, and see if she can't direct you to the proper person that you can talk to. Okay? MR. MORENO: Okay. CHAIRMAN FLEGAL: Thank you, sir. Do you need a break? THE COURT REPORTER: Please. CHAIRMAN FLEGAL: Let's take -- it's about eight minutes to eleven. Let's go to eleven o'clock. Let's take a break for about six, seven minutes. (A break was held.) CHAIRMAN FLEGAL: The next case is going to be -- we're Page 61 July 16, 2001 going to do a little shifting because we have a scheduling problem -- 2001-065, Leonardo Portal. MR. BOLGAR: Mr. Chairman, for the record, my name is Bill Bolgar. I'm the supervisor for Collier County code enforcement. I'm sitting in for the director. And also for the record, I want you to know I have 18 working days left. CHAIRMAN FLEGAL: Then why did you come here, Bill? MR. PONTE: Now I understand why you're staying low. MS. CRUZ: Thank you, Mr. Chairman. CHAIRMAN FLEGAL: Ma'am? MS. CRUZ: Thank you. The case is Board of County Commissioners versus Leonardo Portal, Case No. 2001-06. I'd like · to request -- let the record show that Mr. Portal is present along with an interpreter. I'd like to request that the packet that was provided to the respondent and to the board be admitted into evidence, marked Composite Exhibit A, if there's no objection from the respondent. CHAIRMAN FLEGAL: Okay. Mr. Portal, is that-- am I saying it right? Do you object to the packet being submitted to us? MR. PORTAL: No. CHAIRMAN FLEGAL: Okay. Thank you, sir. I'll entertain a motion to accept the county's exhibit. MS. DUSEK: So moved. MR. LEHMANN: Second. CHAIRMAN FLEGAL: We have a motion and a second. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Yes, ma'am. MS. CRUZ: The alleged violation is a violation of Sections 2.7.6 paragraph 1 and Section 1.5.6 of Ordinance No. 91-102 as amended, the Collier County Land Development Code. The description of the violation is structure on property erected without Page 62 July 16, 2001 first obtaining the Collier County building permits. The violation exists at 1764 48th Street Southwest, Naples, Florida, and is more particularly described as Golden Gate Unit 4, Block 141, Lot 7. Owner of record is Leonardo Portal. His address of record is 1764 48th Street Southwest, Naples, Florida. The violation was first observed on September 13, the year 2000. A notice of violation was provided to the respondent on September 28th, 2000, with a compliance date of October 30th, 2000. The final reinspection was conducted on July 13 resulting in violation remaining. I turn the case over to Investigator James Hoopingamer at this time. CHAIRMAN FLEGAL: Would you swear him in, please. (The oath was administered.) MR. HOOPINGARNER: Ladies and Gentlemen of the Board, for the record, my name is James Hoopingarner, H-o-o-p-i-n-g-a-r-n- e-r, Collier County code enforcement investigator. This case pertains to property at the address of 1764 48th Street Southwest in Naples, Florida, which is in Golden Gate City. The property is owned by Mr. Leonardo Portal. On September 13th the case came in anonymous that there was being a building enclosed in the backyard without permits posted or permits obtained. I did go out to the site and make a site visit and did observe, indeed, a shed in the rear yard, approximately 25 feet by 35 feet, being enclosed. You may go -- I think you have the pictures in your packet. If not, you can see them on the screen. Here's the type of building we're talking about. I -- no one was home at the time, and I left a card and came back and researched. There was no permits for the building. At a later date, I contacted Mr. Portal, who advised that part of the building was already there when he purchased the property. He purchased the property approximately four months from the initial Page 63 July 16, 2001 date of origination of the case. And he just stated he didn't realize there wasn't any permits, also didn't realize that he had to have permits for finishing enclosing the building. I believe the building started off to be an open pole barn building, and Mr. Portal wanted to enclose it more and make it into a workshop. And so far there has been water ran to the building and also electricity with a fuse box being installed in the building. On September 28th Mr. Portal was given, in person, a notice of violation that he did need to obtain permits for the building before any further work could be done. And he was advised that there was no permits for the original structure, so he would also have to obtain permits for that also. We have been working with Mr. Portal; however, we -- over ten months, and we still have no permits applied for at this time. Also, the structure does still remain. MR. PONTE: Investigator, why has the permitting services company not produced something, that is Shalonda Washington? MR. HOOPINGARNER: Yes. I have talked to Washington Permitting, Shalonda. Mr. Portal was to -- on these type of sheds and buildings, they have to have engineered tresses for the building to make sure that they withstand the hurricane pressures we have down here. So before she could make application for a permit, she had to have engineered drawings and plans for these tresses, which she has not received; therefore, she cannot make an application for a permit. Also, there is a setback issue here on the building, also, from the rear property line. CHAIRMAN FLEGAL: investigator? Thank you, sir. MR. PORTAL: Yes. CHAIRMAN FLEGAL: (The oath was administered.) CHAIRMAN FLEGAL: Okay, sir. Any other questions for the Mr.-- is it Portal? All right, sir. Tell us your side. Page 64 July 16, 2001 THE INTERPRETER: When he bought the property, the garage was already built in the back. And all he did was he just put up a wall, and he didn't know he was supposed to have a permit for that. CHAIRMAN FLEGAL: Since this has been going on for some time, does he now understand that he needs these permits? THE INTERPRETER: Right. Yes, he does. CHAIRMAN FLEGAL: This company that he's working with, Washington Permits, when is he going to get them the paperwork they need to help him? THE INTERPRETER: I talked to Shalonda, and she said that the gentleman that was supposed to do the drawings, he did them wrong. He's got them right here. And I think that's why the county wouldn't take them. So he went back and talked to him, and he hasn't came back no more. So he's just waiting to hear from him on the drawings. CHAIRMAN FLEGAL: Okay. So he's waiting on his drawing person -- THE INTERPRETER: Right. CHAIRMAN FLEGAL: -- to do the right drawings? THE INTERPRETER: Right. CHAIRMAN FLEGAL: Is that what we're doing now? Do you have any idea when that's going to happen? THE INTERPRETER: He talked to him last week, and he said he would get back to him. CHAIRMAN FLEGAL: But he didn't say when he would get back to him? THE INTERPRETER: Yeah. He didn't say when. CHAIRMAN FLEGAL: Anybody else have any questions right now? MS. TAYLOR: Yes, I do. Is it because -- you haven't gotten these drawings back or information on them, is it because that they Page 65 July 16, 2001 were paid with a check that bounced, and they won't do any more work for you? THE INTERPRETER: No. Actually, it was because the gentleman up there the first time, he did something wrong, that's what happened, in the drawings. MR. LEHMANN: Bill, can I ask you a question real quick from the county side? If the respondent gets the truss engineering, is there any other engineering he needs or any other documents he needs for the permit. MR. BOLGAR: I think he's probably going to have to show a site development plan, where the building is located on the premises. And probably, since the -- no other part of that building was permitted, he's going to have to show a little bit about how the rest of the building is constructed. MR. LEHMANN: So you're -- MR. BOLGAR: Not necessarily engineered drawings, though. MR. LEHMANN: You're saying he actually needs an SDP, a site development plan? MR. BOLGAR: Well, yeah. Site improvement plan, correct. He's going to have to submit a site plan showing -- because as I understand it, he might have another problem there with getting a permit if it violates the setbacks. MR. LEHMANN: With the setback requirements. But if it -- the setback requirements aside, permitting for the building should be easy. MR. BOLGAR: engineered drawings. It should be easy if he submits the proper I don't think he's going to have a problem. CHAIRMAN FLEGAL: Okay. Any other questions for Mr. Portal? MS. DUSEK: I'm trying to follow this. You hired someone to draw the plans for you, and they drew them incorrectly? Page 66 July 16, 2001 THE INTERPRETER: Right. So then he had to go back and do it again. MS. DUSEK: And now -- THE INTERPRETER: He's actually been taking a long time. MS. DUSEK: Is the same person going to be doing -- THE INTERPRETER: Yes, the same person. MS. TAYLOR: But they have stated they won't do any more work for you because your check bounced. CHAIRMAN FLEGAL: Okay. We don't have that information on the record. MS. TAYLOR: Yes, we do. CHAIRMAN FLEGAL: No. We have -- MS. TAYLOR: Look on page 8. Read the paragraph starting 5/29/01. CHAIRMAN FLEGAL: We have the investigator notes that there is a problem. We don't have the correct information from the architect that that happened. So that's basically all hearsay, so we don't know that to be a fact. That's what you need to keep in mind. That's the way it works. MS. TAYLOR: Well, that's what it says. CHAIRMAN FLEGAL: But that is a note from somebody, so it really doesn't mean anything. It's not, quote, concrete evidence. MR. HOOPINGARNER: Mr. Chairman, if I may, on the plans that they're saying he did wrong, Washington Permitting requested at first the engineering for the trusses so that she could at least apply for a permit and show there was some progress. What happened was the engineer did the drawings and the plans to show the building partially cut away so that he would meet the setback requirements; therefore he did not get the trusses done, and that's where we're standing. CHAIRMAN FLEGAL: Okay. But the -- that wasn't what she was talking about. She was talking about something totally different. Page 67 July 16, 2001 MR. HOOPINGARNER: Right. That's a moot issue also. CHAIRMAN FLEGAL: Okay. Any further questions for Mr. Portal? Okay. Thank you, sir. You can sit down. Thanks. MR. LEHMANN: Bill, from the county's point of view, how long would it take to address the setback requirements? MR. BOLGAR: To-- MR. LEHMANN: Setback requirements. MR. BOLGAR: Well, he has a couple of options here. I mean, if he is, in fact, in violation of the setback, he's probably going to have to get some type of a variance or, like Investigator Hoopingarner said, they're going to shorten the building a little bit to come into compliance, you know. But if he's going for a variance, he's -- it's going to probably take a good six weeks, eight weeks. CHAIRMAN FLEGAL: We had that in a previous case so ... MR. BOLGAR: I've just been informed it might take a little longer because the commissioners are on vacation. CHAIRMAN FLEGAL: That's okay. We've had one of those already this morning. MR. LEHMANN: You weren't paying attention this morning. MS. DUSEK: He wasn't here. CHAIRMAN FLEGAL: He wasn't here. Okay. MR. LEHMANN: I'm trying to make 1 of your last 18 days as hard as possible. MR. BOLGAR: Thank you. CHAIRMAN FLEGAL: First order of the board is to fact-- find a violation unless there's further discussion needed. MS. DUSEK: Well, he hasn't been cited for the setback violation -- CHAIRMAN FLEGAL: No. MS. DUSEK: -- is that correct? So it's just getting a building permit for the structure that's there. Page 68 July 16, 2001 CHAIRMAN FLEGAL: Correct. You got to make a motion before you leave. MS. DUSEK: I make a motion that in the -- with the Board of County Commissioners, Collier County, in the case of Leonardo Portal, in the case CEB No. 2001-065, that there is a violation. The violation is of Sections 2.7.6 paragraph 1 and 1.5.6 of Ordinance No. 91-102 as amended, the Collier County Land Development Code ordinance. The description of the violation, a structure on the property erected without first obtaining all required Collier County permits. MR. LEHMANN: I'll second that motion. CHAIRMAN FLEGAL: We have a motion and a second that there, in fact, is a violation. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Those opposed? (No response.) CHAIRMAN FLEGAL: Order of the board. MR. LEHMANN: Before we have an order of the board, my comment would be it seems to get a permit for this, we do have setback requirements that need to be met. We're not just doing the building. We probably ought to take that in consideration. CHAIRMAN FLEGAL: Whatever it takes to get the permit he has to meet, you know, so ... MR. LEHMANN: I'm just thinking the time frame. MS. DUSEK: Yeah. MR. PONTE: Ninety days. CHAIRMAN FLEGAL: Yeah. I think that's a good item, Peter. And maybe we should keep in mind what we did the first time around, because one of his options is a variance versus removing part of the building, so maybe we ought to give him every opportunity. Page 69 July 16, 2001 MR. LEHMANN: Well, my recommendation would be just extend it to the same deadline, December 31 st. You have until December 31st to obtain a permit or achieve compliance. And if that cannot be achieved, then you have 30 days to remove the structure. MS. DUSEK: Is that your motion? MR. LEHMANN: With the exception that a fine of $25 be imposed for every day of noncompliance, plus all operational costs incurred in the prosecution. CHAIRMAN FLEGAL: Okay. The only change I might recommend is instead of 25, make it 50 to be consistent with our first one. We did that with the first case that had basically the same problem, and I don't see any difference here. The man is trying, but I think $50 is a more reasonable fine if he doesn't comply. MS. TAYLOR: I agree. CHAIRMAN FLEGAL: Would you make that change, sir? MR. LEHMANN: I would so amend my motion. CHAIRMAN FLEGAL: Okay. We have a motion on the floor. And also operational costs? MR. LEHMANN: Already in the motion. CHAIRMAN FLEGAL: Okay. Thank you. MR. PONTE: I'll second the motion. CHAIRMAN FLEGAL: We have a motion by Mr. Lehmann and a second by Mr. Ponte. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Mr. Portal, do you understand what we've just done, sir? We're giving you until December 31st to obtain permits or whatever. And if you don't do that, you then have 30 days to remove this building. If you don't comply, you're going to get Page 70 July 16, 2001 fined $50 a day. Okay? All right, sir. Thank you. Next case is CEB 2001-061, A. L. Dougherty Company. I hope I said that right. MR. LEHMANN: Did we do Ortega already? CHAIRMAN FLEGAL: Yes, we did Ortega. MS. CRUZ: Let the record show that Mr. -- I'm sorry, I didn't get your name -- Stanley Bunner representing A. L. Dougherty Company, Inc., is present. I'd like to request that the packet that was provided to the respondent be admitted into evidence, if there's no objection from the respondent's representative. CHAIRMAN FLEGAL: Sir, do you object to the county submitting the package to us? MR. BUNNER: I do not. CHAIRMAN FLEGAL: All right. Thank you, sir. I'd like to entertain a motion to accept the county's exhibit. MR. LEHMANN: So moved. MS. DUSEK: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the county's exhibit. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) MS. CRUZ: The alleged violation before this board is Section 3.9.3 of Ordinance No. 91-102 as amended, the Collier County Land Development Code and section of the Collier County litter and weed ordinance, Sections 5 and 7, number-- Ordinance No. 99-51. The description of the violation is removal of pine trees without first obtaining a vegetation removal permit. This violation exists at Vanderbilt Road, Naples, Florida. And this property's more particularly described as Section 48, Range 25 -- I'm sorry -- Township 48, Range 25, Section 17, the northeast quarter of the Page 71 July 16, 2001 northeast quarter of the north half of the southeast quarter of the northeast quarter plus the southwest quarter of the southeast quarter of northeast quarter, less the right-of-way areas 74.30 feet. The owner of record is A. L. Dougherty Company, Inc. The registered agent is Phyllis K. Dougherty. The address of record is 2 East Main Street, Suite 200J, Towne Centre, Danville, Illinois 61832. The violation was first observed on October 16th, year 2000. The notice of violation was provided to the respondent on October 31st, the year 2000, with a compliance date requested by 12/8/2000. Violation remains as of July 13, the year 2001. I'll turn the case over to Investigator Alexandra Sulecki at this time. MS. SULECKI: Good morning, Mr. Chairman, Board Members. My name is Alexandra Sulecki. I'm an environmental specialist in the code enforcement department. And this case came to my attention in October of 2000 when I visited the property to advise another investigator on an exotic plant case. While I was there I noticed that 39 large pine trees had been cut down and were laying on the ground. I also noticed trash on the ground consisting of metal, plastic, paper, and cloth and debris, appliances, things like that. I contacted the corporate owner in Illinois and spoke to an agent describing the trash and the tree-cutting violation, and a local attorney then contacted me and said that his client had no knowledge of existing problems. I then e-mailed some photos of the site to the owner's agent and contacted her by phone. After this there was no contact received from the owner or agents to resolve the violation, so I sent a notice of violation requesting that the litter be removed and a plan be submitted to replant the trees. I then spoke to a second local attorney for the owner who agreed to remove the litter but not to replant the trees. She sent me some copies of correspondence between the owner and an environmental Page 72 July 16, 2001 consultant from 1997 that advised of a possible trespasser on the property who may have cut a few trees. The letters discussed calling the sheriff, and the consultant advised the owner that it created an unsafe condition for him to work in. So they were aware of this problem in 1997. Three years later, by the time I got there, 39 trees were down. The reason the environmental-consultants were there is because there's an eagle's nest in one of the trees close to this area, and it has to be monitored and protected. So people were on the site pretty much continually, I would imagine, doing that. Apparently a homeless veteran -- this is what I was told-- lived on the property, and he was cutting trees. I don't know why, but that's what I was told. I don't know who cut the trees down. But I accepted that the owners were not responsible or had not asked for the trees to be cut down. I accepted that. She lived in Illinois. I didn't see any reason for her to be doing that. So I met with my supervisor to see if I could reduce the replacement requirement which is inch for inch, not tree for tree. And there were 243 inches removed from that site. And dividing this by 3 inches, which is the minimize size of the replacement tree, that came to 80 trees. I asked if I could allow for a one-to-one replacement instead, considering the circumstances, and my supervisor approved. So I offered this as a compromise, good-faith effort to resolve the violation. And about this time the trash was all removed, so that got rid of part of the violation. The local attorney didn't respond to my offer, but I did get a call from Mr. Don Corace of Signature Communities who said he had an option to buy the property and that he would be willing to mitigate in order to resolve the case. He wanted to know how much it would cost to donate funds equal to the replacement cost, because that's one of the options for resolving these types of cases. And so I calculated Page 73 July 16, 2001 the amount. It was $11,000. This is considering 40 trees at $275 apiece. And this price was established by parks and rec, which includes not only the plant material -- which I double-checked in the plant finder to see -- to make sure the prices were still current -- but includes installation costs. So Mr. Corace did not respond to the offer other than to say the amount was a little bit bigger than he expected. Then in March of this year I got a call from Karen Bishop, an environmental consultant for Signature Communities, who asked if 40 trees could be planted on an adjacent property owned by Signature as part of a golf course landscaping. I agreed to this, but I never received the plan, and that's why we're here. Today prior to this hearing, I talked with Ms. Bishop, who's in the room, and she did give me a plan. The plan shows 40 trees -- I didn't count them, but I am assuming there's 40 in there -- located on the edge of the golf course area. And that's fine, and I accept the plan that would resolve the mitigation. The timing of the planting is really the only thing, in my mind, that remains to be worked out. And Ms. Bishop's indicated that the property is still in the permitting stage, and she wouldn't feel that the plants should-- the trees should go in until there was irrigation and the golf course has been constructed. But the trees are on the edge of the roadway, and I think they can be -- the area can be gotten to without going in the interior sections where the golf course construction's going to occur. It's the rainy season. It's a good time to plant. Some form of on-the-spot irrigation could be provided for a short period of time to get them established. So I think waiting for months and months for a golf course to be constructed and for irrigation to be put in -- I would ask for a shorter time than that. CHAIRMAN FLEGAL: I'm a little confused. On this piece of property, what you're telling us is somebody other than the owner is Page 74 July 16, 2001 going to put trees on some other piece of property, and that will abate this violation? MS. SULECKI: Essentially correct. CHAIRMAN FLEGAL: What are you asking us to do? MS. SULECKI: Well, the owner-- CHAIRMAN FLEGAL: The owner isn't involved. MS. SULECKI: -- is ultimately responsible for this, but Signature Communities has agreed to perform the mitigation because they have an option to buy on the property. I'm not concerned who mitigates. If the owner has an agreement with the purchaser and he's willing to mitigate for this violation, that's fine with me. CHAIRMAN FLEGAL: I'm not done asking my questions. Do you have a copy of this agreement? We didn't get one yet? MS. SULECKI: I just received it. I do. It's not an agreement. It's just a plan showing the location of some trees. CHAIRMAN FLEGAL: Have you talked with the owner at all about this proposed deal? MS. SULECKI: I have not -- I've never talked to the owner herself, only her agent, and I was referred to local attorneys. So I have not talked to the owner, only agents and attorneys. CHAIRMAN FLEGAL: Okay. And the -- this attorney that you spoke with, did they say anything about this proposed agreement? MS. SULECKI: No. The last correspondence I had with the owner's attorney was that the position of the owner was they would remove the trash but not replace the trees. CHAIRMAN FLEGAL: Okay. Any other questions for Ms. Sulecki? MS. DUSEK: Yes. Alexandra, the -- this agreement that you spoke of, who gave -- who told you about it, or what do you have in writing that there is such an agreement? Page 75 July 16, 2001 MS. SULECKI: disagreement (sic). MS. DUSEK: Properties. that. I'm sorry. I don't understand which The agreement with the owner and Signature MS. SULECKI: I don't-- I really don't know anything about MS. DUSEK: How did you get that information? I mean, it's -- MS. SULECKI: Let's see. I think Mr. Corace called me or-- let me just look back here in my notes because I have it. Okay. Mr. Corace of Signature Communities called me after I spoke with the attorney who didn't respond to the offer of half the trees, and he stated he had an option to buy on the property. MR. LEHMANN: Investigator Sulecki, let me try to summarize again. You have a property owner that you have not been in contact with. MS. SULECKI: Agents and attorneys for, yes, I have been. MR. LEHMANN: Agents and attorneys. Now you have a third party, who reportedly has an option to buy, has stepped forward and said, "We will mitigate for the owner." You have reviewed that mitigation plan. Have you approved it? MS. SULECKI: No, because I just received it, but my first look at it is that it would be sufficient to resolve the violation. MR. LEHMANN: Do you have anything in writing that substantiates this agreement between the county, the third-party purchaser, and the owner? MS. SULECKI: No, I don't. As far as I'm concerned, the owner is still ultimately responsible. MR. LEHMANN: Ms. Rawson-- MS. RAWSON: Yes. MR. LEHMANN: -- we are obviously going off of testimony as evidence. We have no record of this agreement or anything of that Page 76 July 16, 2001 nature. MS. RAWSON: yet. Well, we haven't heard from the respondents CHAIRMAN FLEGAL: We haven't heard from the other side, so let's first deal with the county side and ask them all the questions we can think of. Any further questions for Ms. Sulecki? MS. TAYLOR: I have one -- two, actually. How big is this area again where these trees have been taken down? MS. SULECKI: The whole area is 47 acres -- 74 acres. But this area, I would say, approximately 2 acres, maybe, where the trees were taken out of. MS. TAYLOR: But the whole thing that Mr. Corace is interested in purchasing is 74 acres or 47 acres? MS. SULECKI: That's the parcel where the violation occurred. There are several -- a couple parcels in that area that I believe he is getting ready to develop. There is one -- this one, which is on the west side of Vanderbilt Drive, and the other one where the golf course is is on the east side of Vanderbilt Drive. MS. TAYLOR: And do you know how long he's been interested in purchasing this property? MS. SULECKI: No, I don't. MR. PONTE: What would be your realistic timetable? What would be satisfactory to accomplish the planting of these 40 trees? MS. SULECKI: Well, Ms. Bishop has indicated that the exotics have been removed from the parcel where they would be planted and that they would be enhancing a buffer that would be remaining. So I think that they could go in any time and have some supplementary watering and just be allowed to exist there. I don't see any real reason to stop it. They're right on -- it's right on the edge of the road. The area's easily accessible. Page 77 July 16, 2001 MR. PONTE: And it would be, in your opinion, easy to get the supplemental watering system in? MS. SULECKI: I don't know, but I see the City of Naples doing it all the time along Golden Gate Parkway. MR. PONTE: So you're talking, like, trucking it in. MS. SULECKI: Small -- yeah. They bring in a small golf cart type thing. CHAIRMAN FLEGAL: Any additional questions for Ms. Sulecki? Thank you, ma'am. (The oath was administered.) CHAIRMAN FLEGAL: Would each of you state your names, please. MR. BUNNER: Good morning. My name is Stanley Bunner, B-u-n-n-e-r, representing A. L. Dougherty. MR. GRANT: I'm Richard Grant. I'm an attorney. I represent Signature Communities and Vanderbilt Partners Two which are involved in the option. MS. BISHOP: Karen Bishop, permitting person for Signature. MR. GRANT: Mr. Chairman, could I just make one comment? Ms. Bishop has got to go, if we could maybe let her talk shortly. CHAIRMAN FLEGAL: It's your nickel, so whoever wants to talk first. MR. BUNNER: Ms. Bishop has a family commitment. She has to leave. So we're going to go out of order here. I'd like to just describe this property for you. The actual total amount of the property owned by Dougherty corporation is -- exceeds 500 acres, the vast majority of which is forested. This particular subparcel is 74 acres. As we heard, 39 trees within 2 acres is actually the affected area. My purpose was simply to demonstrate to the board that A. L. Dougherty Corporation has no -- did not fell the trees and did not Page 78 July 16, 2001 order the trees be felled. The remainder of the presentation is going to be by Mr. Grant on behalf of the optionee. MS. BISHOP: Karen Bishop again. What I wanted to show you was the total parcel here. This was zoned a little over a year ago as a total piece of property. So the one section that is in question here -- I'll show you where that falls. Right there. But the total property, as you can see, is on both sides of Vanderbilt Road and goes all the way to U.S. 41 at the top end. MR. GRANT: This is 41, Vanderbilt Drive (indicating). MS. BISHOP: So we have been involved in this property for a couple years now, starting with the zoning and then moving on to the environmental permitting. Now, one of the differences between a undeveloped piece of property prior to permitting and permitting is what you can and can't do during that time frame. Now, if you notice the rings around these areas, there's an eagle habitat that the eagle's nesting season -- we have a primary zone and a secondary zone which covers the whole west side of the Vanderbilt Drive property. The eagle's nesting time is from October to May 15th, where you cannot do anything in that -- in those zones at all. Also, to get to these areas, you would have to cross turtle habitat. And there -- on the south side along that property there is probably about 80 turtle holes and a lot of scrub habitat. I have not yet acquired that permit to allow me to take equipment in there to be able to cross that habitat. That is a violation and fining problem, not to mention what that would do with my current ongoing environmental permitting. We are scheduled for the South Florida Water Management Board in September, which is the first Thursday in September. Then we will get our core permit after that. As soon as I have those two permits in my hand, then I can achieve my local permits, which I am right now doing simultaneously, but I still can't get one before the Page 79 July 16, 2001 other. Upon those permits, then what I suggested to Alex was that we would go in at the normal time that I would be building the rest of this stuff and put this in at that time. It's a lot more than just going in there and just plugging in a few trees because the right-of-way there is going to be increased. We have to figure out how much of that I'm giving away, what I'm going to have to enhance, and I am going to be bringing trucks in through some of this area as access to these properties because I have wetlands that I can't touch in these areas, and I have to work around those. This is a very unique site, very unusual, and will take some time and thought to get this process done. We want to put the trees in. We've always wanted to put the trees in. We have gone through great pains to save a majority of the site and the trees that are on there. Putting them back where they were before, there was the potential that I could, since they are in uplands, once the eagle's tree falls down and he moves somewhere else, that I would literally get a permit to remove those trees in the future. So we worked out a spot where we knew they would be in there forever, which would be along the right-of-way. But it isn't as easy as going in there from one side and plugging these little trees in because we have to still do a lot of grading, and we have to find irrigation sources, and I have to get permits for those things. So time frame-wise I wouldn't be able to imagine that I'm going to be able to put these trees in place until after the first of the year. I mean, just -- if I get my permits, that won't be until probably October. And then from then it'll take me time to get the trucks out there, to get the dirt in place, and to get these plans implemented. But certainly after the first of the year we should have some opportunity to get those irrigation lines in place to put those trees in. Any questions? CHAIRMAN FLEGAL: Any questions for Ms. Bishop? Page 80 July 16, 2001 MS. SAUNDERS: How much after the first of the year? MS. BISHOP: Unfortunately, the construction schedule keeps shifting. We actually had intended to start construction for the whole site two months ago, but environmental permitting has pushed our process and pushed our process and pushed our process. And so when I spoke to Alex several months ago, we had anticipated getting our permits by May. Now I won't get my permit from the district until September, so my whole permit time frame shifted, so I'm -- I'm guessing spring. That would be somewhere February, March we should be able to get those things in and enhance what we already have there. But I don't want to just go haphazardly stick some trees in there and then find out that I need to bring some fill into this area, because the golf course is close by, to regrade these areas. You know, all of those things can't happen until you're actually in the field doing it. It's a lot of hand waving that goes on while you're in the field trying to work around what's existing and what's not existing. MS. DUSEK: I have a question. Yes, ma'am. Forgive me. You're representing Signature MS. BISHOP: MS. DUSEK: Properties? MS. BISHOP: MS. DUSEK: Yes, ma'am. Since I don't have a copy of the title to know who owns this property, do you own this property? MS. BISHOP: No, ma'am. Ms. Dougherty owns the property. Her attorney is here. MS. DUSEK: Okay. And do you have an agreement with them to do this? MS. BISHOP: Yes. We have a contract for purchase. And I'm not sure exactly what written agreement we have with Ms. Dougherty to take over this, but the attorneys will know more about that. Page 81 July 16, 2001 MR. LEHMANN: My concern is that our action is with the property owner. MS. BISHOP: Correct. MR. LEHMANN: If Signature Communities chooses not to exercise their purchase option, where do we stand then? MS. BISHOP: And I can appreciate that thought if I hadn't been working on this job for 2 1/2 years and know how much money we've spent with consultants and where I stand with my permits and that I have bulldozers waiting to get on that site. So I'm going to suggest to you our commitment is 110 percent on this site. I am building a sales trailer right across the street from this as we speak, getting that permit for that on already permitted property so that I can, in fact, move forward. There is, in my humble opinion, no way Signature's not going to move forward with this. We are, in fact -- have signed contracts with consultants and construction people to build this golf course. MS. SAUNDERS: When do you anticipate settling on the property? Do you know? MS. BISHOP: Settling? Do you mean buying it? MS. SAUNDERS: Buying it. CHAIRMAN FLEGAL: I think we need to get the attorneys for that. Let's have some more questions for Ms. Bishop, or are we done with her, strictly on the, quote, environmental side -- MS. BISHOP: I need to pick up my son from school. CHAIRMAN FLEGAL: -- or tree side and leave the technical side to the attorneys. MS. BISHOP: Is there anything else you guys need? MR. LEHMANN: Investigator Sulecki had indicated that she had recommended installing the trees now and then irrigating, and your objection to that is primarily what? Page 82 July 16, 2001 MS. BISHOP: I think it's premature because what I have to do in those buffer areas until the work gets started around it and I start removing -- I can't remove all the stuff that's in the wetlands either. So I have to wait until I get moving in that area to see what I get to save and what I don't get to save. Some of that area where there's trees now is future right-of-way for Vanderbilt that -- that stuff's going to be history. And if I go and plant it in that now and then it gets felled by the county later, it doesn't make any sense. So what I would like to do is put this in my construction schedule like I am. And when we're finished with this site, it's going to be an awesome-looking site, and the perimeter and the buffers around this are going to be tremendous. I mean, it's not going to be -- it's not going to be cheap or chintzy. It's going to be abundant with its vegetation along those edges. MR. LEHMANN: Just out of curiosity -- and I don't know if this pertains, but I'm assuming your plan has gone before the planning board? MS. BISHOP: Oh, we've already got our zoning, and all of that has already been taken care of. MR. LEHMANN: Are they aware of this mitigation plan? MS. BISHOP: Well, no. I mean, we weren't aware -- our zoning was taken care of last year. The mitigation plan itself-- I have my buffer plan in for the golf course. This is beyond that. So this is additional to what I have to do, and I didn't add that to the buffer plan because I didn't -- it's not to count as what would be your normal buffers. This is beyond that. So this is -- that permit will have more than what it needs for. CHAIRMAN FLEGAL: Any other questions for Ms. Bishop? CHAIRMAN FLEGAL: Thank you, ma'am. MR. GRANT: I'm Richard Grant again. I represent Signature Communities, which is involved in the option. Let me just try to Page 83 July 16, 2001 answer some of the questions, if I might. Signature or its entity will complete the closing, by plan, probably in October, if not sooner. That's when the option runs out, so it's either then or it won't. I'll let Mr. Bunner, who represents A. L. Dougherty, the owner, address your question, Mr. Lehmann, about what would happen if our client didn't buy the option. That's a good question. Basically, you know, what we're trying to do is to get this mitigation done in conjunction with the planned development of the property. And as Ms. Bishop explained, to try to rush the process, there's some permitting issues as to whether you could even do it, but it's more likely to be for naught. If you don't plant them at a time when you can irrigate them, if you plant them before you know exactly where to put them, until you get landscaping plans approved, you're likely to just do something that ends up getting damaged. There's no permanency to it. These trees were cut years ago, as best anybody can tell. The owner didn't do it. Nobody knows who did it. It seems reasonable that the mitigation, which Signature is willing to do in settlement of this, be permitted to be done in conjunction with the planned development of the property, and that's what we'd ask that you do. The ordinance that prohibits removal of vegetation requires that the person being cited be the one at fault. We didn't do it, and the owner didn't do it. ! don't even know that there's a technical violation here. But we're willing, nonetheless, to resolve it in settlement and mitigate for it. And I'll let Mr. Bunner address the question about what happens if Signature doesn't buy the property. MR. BUNNER: Should Signature not buy the property, of course A. L. Dougherty will mitigate in accordance with the county's desires and as quickly as possible. I think the only reason why mitigation hasn't occurred to date is simply, as Mr. Grant said, it Page 84 July 16, 2001 would not make sense to just willy-nilly plant trees in an attempt to mitigate when those trees are going to be removed. And so that's the only reason why there's been no compliance and no mitigation to this point. CHAIRMAN FLEGAL: Part of our problem is your client is the owner of the property. MR. BUNNER: I agree. CHAIRMAN FLEGAL: Okay. What we've heard, at least in my contention, sounds wonderful, except that the board only has power over your owner. And if we do anything, we're going to tell them to do something because we have no guarantee that he will buy the property, he won't buy -- it's really moot because we're stuck with the owner. That's what happens when you own a piece of the property. You're at risk. So we need to -- you've just said you're willing to mitigate, which is fine. So as long as you understand that whatever the board does is going to be done against you, whether we give enough time for all this other to take place, we'll see when everybody starts trying to work this out among ourselves. So as long as we understand that, that you're the one -- your client is the one going to be held responsible. I mean, I see no actual, quote, deed that's changed hands. This is all maybe, and we all know people wake up one day, and things change for whatever reason. So your client's the one on the hook. Do we understand that? MR. BUNNER: I understand your concern that you don't see the contract, and you can't be sure that Signature-- CHAIRMAN FLEGAL: Well, the contract still hasn't done anything because it hasn't transferred title so -- MR. BUNNER: Right. One thing I would point out to the board is that this particular section, 3.9.3, does state in relevant part that it shall be unlawful for any firm, association, joint venture, Page 85 July 16, 2001 partnership, estate, trust, syndicate, fiduciary, corporation, group, or unit of federal, state, county or municipal government to remove or cause to be removed vegetation without first obtaining a vegetation removal permit from the development services director, except as hereinafter exempted. I would point out to the board that I believe that this case actually differs from those that I heard this morning in that there is an issue as to who cut down these trees, and I -- I respectfully disagree that this particular section is a strict liability section. I would contrast it with, let's say, Ordinance 99-51, Section 5, which was earlier, supposedly, an issue with litter, where it says the unauthorized accumulation of litter or improper storage of litter or improper dumping of abandoned property or litter as described in Sections 6, 7, 8, 9, or 10 in or upon public or private property is hereby declared to be a public nuisance. Now, that is clearly a strict liability section. It doesn't matter who puts the trash on; the owner's responsible. And I think that the language is different in these two sections for a reason. One is intended to prevent litter from accumulating, and it holds the owner responsible. And the other is to prevent people from removing vegetation without a permit. This A. L. Dougherty has not done. We presented an affidavit from A. L. Dougherty saying that at no time did they remove any vegetation or authorize any vegetation to be removed, and so I would respectfully disagree that necessarily the owner's on the hook. I think we first have to make that finding, and that would have to be based on evidence that the owner, in fact, cut the trees down, which I don't believe is before the board. But in any event, as far as mitigation goes, we will certainly work with the county and mitigate in the event that Signature does not exercise the option. And we would simply ask that the board consider an adequate time frame wherein you can see if Signature Page 86 July 16, 2001 actually exercises the option and carries out the mitigation that they have provided a plan for. MR. LEHMANN: Jean, may I ask you real quick as a follow-up to that, let's assume that a third party went onto somebody's property and cut down trees. Is the owner responsible or no under the current ordinance? MS. RAWSON: You know, I was listening to his argument, and actually that's a very interesting legal argument. It has been the history of this board that we always go back on the landowner whether they're, in fact, not the ones that created the violation of the ordinance, that needs to, you know, be -- come into compliance. And his argument is that this is not a strict liability ordinance. I find that to be a very interesting argument, and I don't have a definitive answer to you other than no matter who did it, we always make the violation run with the land, which is another thing, because if Signature Properties ends up purchasing this property and there's already a lien on this property, it's going to run with the land, and it's going to be ending up to be Signature's problem thereafter as well. CHAIRMAN FLEGAL: Maria, let me ask a question. The defendant's packet that was in the -- everybody's book, was that part of your A, or was that separate from your-- MS. CRUZ: That would be a separate exhibit. CHAIRMAN FLEGAL: Okay. What I'd like to do, sir, is you submitted some documents -- MR. BUNNER: I did. CHAIRMAN FLEGAL: -- that they gave us. I'm assuming you're requesting that we accept these as your defense packet? MR. BUNNER: I do. CHAIRMAN FLEGAL: We've had a request. Maria, do you object? MS. CRUZ: No, sir. Page 87 July 16, 2001 CHAIRMAN FLEGAL: Okay. I need a motion to accept the defense packet. MS. DUSEK: So moved. CHAIRMAN FLEGAL: Do we have a second? MR. LEHMANN: Second. MS. SAUNDERS: Second. CHAIRMAN FLEGAL: All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Just to get all your paperwork on the record, that's what we need to do. Thank you. Any further questions for either Mr. Grant or Mr. -- is it Bunner? MR. BUNNER: Bunner, yes, sir. CHAIRMAN FLEGAL: -- Bunner? Okay. MS. DUSEK: Before he leaves I-- Ms. Rawson, just with your comment which is a response to his comment, are you saying that ultimately we don't have to find the homeowner in violation? MS. RAWSON: No, I didn't say that. I said I find that to be an intriguing and interesting legal argument that he made. My recommendation to the board is that if you find that there is a violation and if you decide to give them time to come into compliance based on all the testimony you've heard today, that you continue to cite that particular section. And it's going to go against the land, which is the landowner. Now, the testimony I've heard today doesn't lead me to believe that anybody is going to be less than cooperative. And so I -- I believe that we're going to end up getting this problem resolved. CHAIRMAN FLEGAL: Any further questions for either of the gentlemen, or would you like to say anything else? MR. BUNNER: No. Thank you. CHAIRMAN FLEGAL: Thank you. Would the county like to Page 88 July 16, 2001 say anything else? MS. SULECKI: that was given to me. the permitting issues. Yes. I just wanted to briefly review this plan Ms. Bishop talked about the eagle's nest and That-- those issues are with the property on the west side. The area where she has talked about putting trees is on the east side, so that doesn't interfere with the permitting issues there. And I'm not -- I'm not sure if-- if-- she spoke to me about an existing buffer and enhancing an existing buffer. But she also said that she may be wanting to grade and change areas over there, so I'm not sure what good the plan is if it's not in stone. If it's just some idea, maybe it's not something that should be approved at this point. CHAIRMAN FLEGAL: Well, I don't think what is going to happen is that this board is going to approve any type of plan. That's going to be up to the county. What we may say is that by such and such a date, they -- that the owner mitigate the problem, and how the plan gets approved is up to the county. The board, I don't think, is going to approve any type of a plan. MS. SULECKI: No. I understand that. I just wanted to say that I might not be willing to approve a plan that's not a firm plan. CHAIRMAN FLEGAL: That's understandable. MR. LEHMANN: And I think rightly so. MS. DUSEK: And I don't think the plan right now is a consideration because they don't own the property, so I'm still going after the homeowner -- I mean the landowner right now who owns the properties. But in this violation section, Mr. Bolgar, since the litter has been removed, I wouldn't think that violation of Sections 5 and 6 would be in order. MR. BOLGAR: That's correct. MR. LEHMANN: Well, I am still personally having a little difficulty with this section. And Mr. Brunner? Is that correct? CHAIRMAN FLEGAL: Bunner. Page 89 July 16, 2001 MR. LEHMANN: Bunner. Thank you for bringing my attention to it. I really appreciate that. But, you know, in many senses you're reiterating what I felt and questioned. My concern, again, is can we legitimately have a finding of fact that the owner is in violation if the code ordinance is unclear as to who it applies to? MS. DUSEK: I think the ordinance, as in most law, is the intent of the way it's written. If I were to leave, go to work and I'm gone all day and someone comes onto my property and does some destruction to it, I'm responsible. I cannot say who did it or didn't do it. The county can't say to me you did it; someone else did it. So I think the intent of the ordinance is to the landowner. CHAIRMAN FLEGAL: I think in this particular case I understand the owner's attorney and what he's saying. I think the board should maintain its consistency -- consistent position with what has happened over the past years. We've always gone after the owner of the property. And in this case there seems to be a definite agreement that this property is going to change hands in the near future and that the new owner is more than willing to do whatever it takes, probably exceed what we would recommend. So I think the current owner is somewhat -- I won't say protected but in good hands, as they say, that this problem's going to go away. Plus the owner's representative has stated that should this not happen, they are more than willing to mitigate the condition. I think we should be consistent. And understanding what everybody is saying and what the actual paragraph reads, I don't think the board should change their position that they've held for many years. I think that would create a bigger problem. MS. RAWSON: If I could give the board a little comfort, I don't have the entire Land Development Code, obviously, at my fingertips. We could probably go and look at the whole development code. But it's my recollection that under the enforcement section, the owners Page 90 July 16, 2001 are held liable for whatever violations occur on their land. So while the strict liability language may not be in this particular statute that you've -- this ordinance you've cited him for, it might be in another part of the code in-- under enforcement. MS. DUSEK: But we can go ahead and cite this particular -- MS. RAWSON: It would be my recommendation. CHAIRMAN FLEGAL: I think to be consist -- did you wish to say something else, sir? MR. BUNNER: Might I? CHAIRMAN FLEGAL: Yes. MR. BUNNER: I would only say that I didn't intend to create a whole legal hodgepodge pointing that out; although I do stand by that position. But I asked you only to consider it. And I was encouraged by Mr. Lehmann's statement earlier that the purpose of meeting as a board is, in fact, to make this finding of fact and to achieve compliance. It's not strictly some punitive measure to cite a landowner. And I point this out only that -- to show that the landowner, in fact, was not responsible for this violation. It's not the same kind of case that you've been dealing with up until now. And so in light of the fact that everyone is cooperating and we intend to mitigate, either Signature or this landowner, A. L. Dougherty, I would just ask that the board consider giving us adequate time to do so and do so in a prudent manner, rather than simply throwing in some trees because they've been missing for three years. MR. LEHMANN: And the time frame you're recommending is? MS. DUSEK: I think Ms. Bishop said probably January, did she not? MR. GRANT: Well, I think she said by the end of the year, but I think she said basically it would be spring before we'd likely be doing work on the property that would -- I mean, if you want a Page 91 July 16, 2001 specific date, I think we'd like to have until April the 1st. We'd like to have until April the 1 st. CHAIRMAN FLEGAL: And I appreciate that, and personally, I mean, you know, this problem has been here for a long period of time, and it -- X period of time more I don't think is going to hurt anybody at this point. It is a piece of property that's about to be developed, so I think time is not an issue. It's very different than somebody's house or front yard or backyard. MS. RAWSON: IfI might, the staff has located the section of the ordinance to which I was referring. Section 1.9.4, liability under the Land Development Code, any owner, tenant, or occupant of any land or structure or part thereof; any architect, engineer, builder or contractor; any other agent or other person from a corporation, either individually or through his agents, employees, independent contractors who violates the provisions of this code or who participates in, assists, directs, creates, or maintains a situation that is contrary to the requirements of this code shall be held responsible. So it's my belief that under that liability section, that's broad enough. That would give you the comfort level to make whatever finding that you need. And that should answer your question too, Mr. Lehmann. MS. DUSEK: I'd like to make a motion that with the Board of County Commissioners versus A. L. Dougherty Company, Incorporated, CEB Case No. 2001-061 that there is, in fact, a violation. And the violation is of Section 3.9.3 of Ordinance 91-102 as amended, the Collier County Land Development Code ordinance. The description of the violation is the removal of pine trees without first obtaining a vegetation removal permit. CHAIRMAN FLEGAL: Okay. We have a motion that there, in fact, does exist a violation. Do I hear a second? MS. TAYLOR: I second. Page 92 July 16, 2001 CHAIRMAN FLEGAL: We have a second. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Order of the board. MS. SAUNDERS: I would suggest that perhaps we ask them to obtain an approved mitigation plan within 60 days and to revegetate the property by April 1st, 2002, so that we've got the plan in place, and they have to work with Alex to make sure they've got that and then give them the time they need to actually plant them. MR. LEHMANN: I would recommend that the 60 days is probably too short to obtain an approved mitigation plan simply because they don't know how that's going to interact with the golf course. My recommendation is just to allow -- and taking into account the respondents, they seem to be working very well trying to solve the problem in a very educated and informed manner. I would recommend that they obtain an approved mitigation plan and revegetate in accordance with that approved plan by April 1st of 2002, if that would be acceptable. MS. SAUNDERS: Sure. I think that's acceptable. CHAIRMAN FLEGAL: To come into compliance by obtaining a mitigation plan -- an approved mitigation plan and coming into compliance by-- is it-- MR. LEHMANN: April 1st, 2002. CHAIRMAN FLEGAL: April 1st, 2002. MR. LEHMANN: I would also recommend -- and, Rhona, this is for yourself-- that the respondent be ordered to pay all operational costs incurred in the prosecution of this case and that a fine of $50 per day be imposed for each date the violation remains. Page 93 July 16, 2001 MS. MR. MS. MR. MR. SAUNDERS: Agreed. LEHMANN: You would accept those amendments? SAUNDERS: Absolutely. BUNNER: After April lst? LEHMANN: That is correct. MS. DUSEK: If you don't come into compliance. CHAIRMAN FLEGAL: Starts April 1. We have a motion on the floor. Do I hear a second? MR. LEHMANN: I'll second it. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussions from the board? MR. LEHMANN: I would -- do you happen to want to speak on something? MR. GRANT: Could I ask a question? I honestly have no idea what the operational costs involve. It seems to me that given the history of this, it's not entirely reasonable that this owner should have to pay them, but I don't know how much money we're talking about. Does anybody have any idea? MR. LEHMANN: Maria, the operational costs typically that we see are, I'm assuming, a thousand dollars or less; is that correct? MS. CRUZ: That's probably correct. MR. BOLGAR: That's close. MR. LEHMANN: But you did bring up a good point. MR. GRANT: Well, the point is that we didn't do it. I mean, I think the evidence -- the owner didn't do this. MR. LEHMANN: I would so amend my order to reflect that the operational costs be removed from the order. MR. BOLGAR: Mr. Chairman, let me point out that we don't know who did it, but we don't know, in fact, that they didn't do it. CHAIRMAN FLEGAL: Yeah. I mean -- MR. LEHMANN: Well, we have -- we have a tremendous Page 94 July 16, 2001 amount of testimony indicating that it was a squatter of some sort. CHAIRMAN FLEGAL: We have a submission of a signed affidavit from the owner saying that they didn't do it. So, I mean, as far as testimony goes, I -- I'm not going to sit here and call the lady a liar. She signed the affidavit. I'll accept her word just like I'm accepting everybody else's word. So from that standpoint, I'm assuming she didn't do it. MS. SAUNDERS: In this case I do agree that I think perhaps the operating costs should not be assessed, so I will accept that change. MR. LEHMANN: And I apologize. I seconded the motion instead of made the motion, so I can't amend it. MS. SAUNDERS: But you can - MS. DUSEK: Just one point. This started in 1997, if I remember correctly. CHAIRMAN FLEGAL: Well, no. Well, this actual case started October 16th of 2000. MS. DUSEK: Yes. CHAIRMAN FLEGAL: Another department found the problem back in '97. MR. BUNNER: And if I may, that was -- that was one tree in 532 forested acres that was cut down in '97 at that point. CHAIRMAN FLEGAL: So the time line really started October 16th of 2000. Okay. We have a revised motion. I think the -- dropping the operational costs and still leaving the April 1 st date and $50 a day thereafter for noncompliance; am I correct? MS. SAUNDERS: Yes, that's correct. CHAIRMAN FLEGAL: MR. LEHMANN: Yes. CHAIRMAN FLEGAL: second? Peter. Okay. Do we still have a second-- -- on the revision? Who's making a Okay. Any further discussion? Page 95 July 16, 2001 All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Motion carries. Thank you, gentlemen. MR. LEHMANN: Mr. Bunner, before you leave I just wanted to express my personal appreciation. I like it when respondents and their agents come to us and make us think about things. (Ms. Dusek left the boardroom.) MR. BUNNER: Thank you. MR. LEHMANN: So I appreciate it. It was very well thought out, and I appreciate that. MR. BUNNER: If you're interested in further research, I disagree, actually, with the county's interpretation of that liability paragraph as well. MR. PONTE: We knew you wouldn't. CHAIRMAN FLEGAL: Next case -- make a note for the record Ms. Dusek had to leave. Case No. 2001-062 B F Fort Myers, Inc. MS. CRUZ: Let the record show that respondent or respondent's representatives are not present. CHAIRMAN FLEGAL: Okay. MS. CRUZ: I'd like to request that the packet be admitted into evidence marked Composite Exhibit A. CHAIRMAN FLEGAL: Do I hear a motion to accept the county's exhibit? MS. RAWSON: I know that they were here earlier. MS. CRUZ: They were here, and I believe that there was some kind of agreement made with the investigator. MS. RAWSON: Okay. MS. CRUZ: But that could be stated in -- during the testimony. Page 96 July 16, 2001 CHAIRMAN FLEGAL: exhibit? aye. Okay. Motion to accept the county's MS. TAYLOR: So moved. CHAIRMAN FLEGAL: Do I hear a second? MR. LEHMANN: Second. MS. SAUNDERS: Second. CHAIRMAN FLEGAL: All those in favor signify by saying (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) MS. CRUZ: The alleged violation is the missing and damaged trees caused by excessive pruning and reduction with heading cuts. This is a section of 2.4.3.6 and Section-- I'm sorry. This is a violation of Section 2.4.3.6 and Section 2.4.3.7 and also Section 3.9.3 of Ordinance No. 91-102, the Collier County Land Development Code. This violation exists at 10941 Airport Road North, Naples, Florida, and is more particularly described as Green Tree Center, Tract C. Owner of record, B F Fort Myers, Inc. Address of record is 12910 Shelbyville Road, Louisville, Kentucky 20243. Violation was observed on February 20th, 2001. Notice of violation was provided to the respondent on March 3rd -- March 6th, 2001, with a compliance date of April 13,2001. Violation remains as of today. Turn the case over to Alexandra Sulecki again. (The oath was administered.) MS. SULECKI: For the record, my name is Alexandra Sulecki, environmental specialist, code enforcement department. This is a Wendy's, the Wendy's up on Immokalee Road. And because this is a landscape case where damage was done to trees, required landscape trees and because it's the first of these types of cases that I've presented to you, I'd just like to take a minute to give you my Page 97 July 16, 2001 qualifications in this area. First, I have a B.A. In environmental studies. All my major projects were plant and tree related. I'm a certified arborist. This certificate was earned by completing a four-week course of study and passing a test; a master tree farmer, which was a seven-week telecom course from Clemson University. That's tree country, in case you don't know; Georgia. I am required to take 30 continuing education units in arbor culture yearly. These are the types of classes that I take. If you can't read it, it's tree biology, all types of pruning classes. And I've been enforcing these laws for three years. In Collier County we have a pruning code, 91-102, Section 2.4.3.6. That's one of the citations that I gave in this case. The other is 2.4.3.7, the maintenance. The pruning ordinance applies to required landscape trees or those that were planted as part of approved landscape plans. This mainly pertains to commercial properties and condominium common grounds, although, to a lesser extent, single-family homes. In addition to requiring specific landscape elements like buffers, parking areas, shading, this code requires that the landscaping be maintained in a healthy fashion by watering it, fertilizing it, and using an industry standard for proper pruning. And that's the ANSI-A 300 standard which has been given by the National Arborist Association, and this standard prescribes cuts that are the least damaging to the trees and practices that are least damaging. The reason for this code is threefold: Services, safety, and aesthetics. In services there are: Trees absorb stormwater runoff; they cool buildings, parking areas, and sidewalks; and they filter pollutants. For safety, healthy trees are less likely to fall on people or cause property damage. And for aesthetics, the trees and the landscaping soften harsh urban lines. And I want to refer to a handout that I gave you previously. This Page 98 July 16, 2001 is from Broward County, but it was just so good and concise that I thought I'd give it to you. It describes the two major problems that we see in landscaping here: The hatracking and the overlifting. Both of these are damaging to trees, and that handout gives you some idea why. Okay. So in February 2001, as a result of a complaint, I visited Wendy's property at Immokalee and Airport Roads, and I observed there 25 damaged trees. They had been topped to varying degrees. You have some pictures in your packet of those trees. Here's one of them. The code says that excessively pruned trees are to be replaced by the owner, but I have to apply this with a little bit of prudence because it makes no sense to require the removal and replacement of trees that are kind of borderline damaged and that are likely to recover. So it's a question of degree of damage and of species of tree and location of tree, really. So that's where my knowledge comes into play when I go to a site and evaluate what needs to be done to bring a property into compliance. That may mean replacing trees. It may mean simply leaving the trees alone. It may mean agreeing to get a professional to perform a restoration technique on the tree in a couple years. In this case I decided that two of the damaged trees were bad enough to be replaced. One other tree was missing from the landscape plan -- well, it was on the plan but missing from the property. So initially I required three trees to be replaced: Two to be removed and replaced and one just to be planted. And these are the reasons why I required that. This was one of the trees that I required to be replaced. And as you can see, it's been almost completely defoliated, and I've got a circle around the bottom here which shows that it's got what's called included bark, which means it's not strongly attached there, and you've got the tree growing in two separate directions. And eventually there's a likelihood for failure. It's not Page 99 July 16, 2001 positive, but it's a likelihood. So considering that, considering the structure of the tree, which is poor to begin with, and the landscape plan, which I pulled out of the original file -- and I'll show it to you here. This is the original landscape plan with the trees. This is the tree you're looking at up there. There was a notation on the plan for that and a couple other trees, that they have been previously topped. A tree topped once can recover, maybe, depending on age and species. A tree topped twice has a lot harder time. So for those reasons I chose that tree to be replaced and another tree. MR. LEHMANN: Investigator Sulecki, could I interrupt you just one second? Is a possibility for this topping due to power lines? Is this a -- in the photo is this an illusion, or are those lines passing over the top of the tree or beside it? MS. SULECKI: It's an illusion. They're not passing over the top of the tree. MR. LEHMANN: Thank you. MS. SULECKI: This is what happens in the crown of trees after they're topped. This is where the branch was topped off. You get all these little sprouts coming up the side which are weakly attached, and you have rot entering the tree. That may take five years, ten years, who knows, for the tree to accumulate enough rot to become a hazard, but you've sent it on that path when you perform this type of work. The other tree is a mahogany tree, and this is a picture of it when I first saw it. This is a picture of it today. Now, most people would look at that tree and say, "Oh, it looks great. It's come back. It looks wonderful." But this is what all that nice new growth is hiding. Underneath there it's rotting. And this particular tree is right next to a parking area, and it's also got some structural damage. So I chose those trees as the worst of all of them and required the replacement of Page 100 July 16, 2001 them. The other tree was simply missing. So in March I sent a notice of violation requiring the replacement of these trees and a six-month assessment for the recovery of the other trees. I contacted the store manager who was here earlier, Ralph Madieras -- he's a regional director-- and I explained the violation and asked him who had trimmed the trees. It turned out that a Fort Myers landscaper who does their -- all of their properties in the district had done it. Apparently he wasn't aware of Collier requirements, partly because he wasn't licensed in this county. So we did fine him $300 for that. Around this time I received another citizen complaint about these trees. So I've had two. Since that time I've rechecked on 30-day intervals but found no replacements. I spoke to Mr. Madieras, who agreed to replace the trees as soon as he could arrange it. I gave him a 30-day extension. Again, that didn't happen. Called him again a couple of times and didn't get any return calls, so here we are. I made a site visit Friday, and one of the trees that I showed you appears to -- the crown appears to be coming back pretty vigorous and healthy, so I'm going to hold back on requiring the replacement of that. So at this time I'm going to alter my recommendation to remove and replace one tree and replace one missing tree. I spoke with Mr. Madieras before the hearing, and I explained to him what I was going to tell you and what I was going to ask for. And he agreed that that was fine, and he would have it done by Wednesday. So I think that's it. I would like an order -- a finding that there was a violation, though, and some incentive because he hasn't come through before. MS. SAUNDERS: He agreed to do it by Wednesday of this week? MS. SULECKI: and have it done then. don't know. Well, he agreed to meet me on site Wednesday I don't know if he meant arrange for it later. I Page 101 July 16, 2001 CHAIRMAN FLEGAL: Any questions for Ms. Sulecki? Thank you. MS. SULECKI: Thank you. CHAIRMAN FLEGAL: Finding of fact by the board. MR. LEHMANN: I would so move that in the case of 2001- 062, Board of County Commissioners versus B F Fort Myers, Incorporated, that a finding -- excuse me -- that a violation does exist. It's a violation of Section 2.4.3.6 and 2.4.3.7 and 3.9.3 of Ordinance 91-102 as amended, Collier County Land Development Code. The description of the violation is missing and damaged trees caused by excessive pruning and reduction with heading cuts. CHAIRMAN FLEGAL: We have a motion that there is, in fact, a violation existing. Can I have a second? MR. PONTE: I'll second. CHAIRMAN FLEGAL: There is a second. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Order of the board. MR. LEHMANN: I move that the CEB order the respondent to pay all operational costs incurred in the prosecution of this case and replace damaged and missing required landscaping trees within 30 days or a fine of $50 a day be imposed each day the violation remains. MS. SAUNDERS: I'll second that. CHAIRMAN FLEGAL: Okay. Ms. Rawson, I think the correct terminology is prosecution costs, not operational costs; correct? As I remember the -- MS. RAWSON: I think it's prosecutional costs. And-- Page 102 July 16, 2001 CHAIRMAN FLEGAL: Operational can get misleading. MS. RAWSON: -- ifI understood the testimony of Ms. Sulecki, she is only requiring two trees. Maybe we should be more specific. CHAIRMAN FLEGAL: Do we need to specify the number of trees, or do we need them to come into compliance? MS. RAWSON: No, because -- well, you don't probably have to because she knows, but originally there were a lot more than that. CHAIRMAN FLEGAL: I'm just wondering out loud, Ms. Sulecki, if we say, for whatever reason, replace one tree and then all of a sudden this other tree that you're giving them room on starts going bad for some reason, then you're going to have to come back before us; where if we just say come into compliance, then if you and Wendy's work out one tree, two trees, three trees -- as long as you're happy, would that satisfy you? MS. SULECKI: Yes. But I also -- and I built this into the notice of violation, a six-month recheck to see how trees are doing. I don't know how that would work in with an order of the board because actually all the trees on this property were damaged to varying degrees. MR. LEHMANN: Ms. Sulecki, I'm open to your opinion as far as how you would like the order worded. My intent on this thing is just to achieve compliance, and I do realize that you need to recheck the trees within six months. We've given you a 30-day deadline -- or we've given the respondent 30 days to correct that. Would a better wording of this be 30 days to achieve an approved mitigation plan and replace all required trees, and the mitigation plan would reflect a six-month recheck or something of that nature? MS. SULECKI: Well, we don't generally have mitigation plans on landscape trees, but in this case you might call it that to include a six-month recheck. MR. LEHMANN: Ms. Rawson, you know what I'm trying to Page 103 July 16, 2001 do. How do we do that? MR. PONTE: I think we're overextending ourselves. I mean, a six-month recheck, why not a 12-month recheck, and why not an 18- month recheck, and why not rechecking in perpetuity for the life of the tree? That's what we're doing, isn't it? So what we really just want to say is to resolve the problem. And if they are not maintained, it will, in due course, be discovered, and another case will come before us. MS. SULECKI: That's true. CHAIRMAN FLEGAL: Yeah. We could get out of hand by all of a sudden getting into writing orders that go on forever, and we don't want to do that. We want them to come into compliance. And if that's one or three trees, that's between you two. You work that out. Whatever makes both of you happy. And if they don't do it, we're going to fine them by a certain date. But then you decide how many trees. We're just going to ask them to come into compliance. Okay? MS. SULECKI: Fair enough. Thank you. MR. LEHMANN: Having said that I would leave my motion unchanged. CHAIRMAN FLEGAL: Okay. We have a motion on the floor. MR. PONTE: I'll second it. CHAIRMAN FLEGAL: And we have a second. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: (No response.) CHAIRMAN FLEGAL: James Billington. MS. CRUZ: Any opposed? Okay. Next case is 2001-063, Jason Mr. Chairman, if I may make a correction, the Page 104 July 16, 2001 respondent should be Jason James Billington and Marie Davey Starr, and that is reflected on the notice of hearing and all the other documents, with the exception of the table of contents, in the packet that was provided to the board. CHAIRMAN FLEGAL: Somehow I've got -- I've got to find that one, or did I not have that? Got it. Starr? MS. CRUZ: I believe Ms. Starr is. Is Mr. Billington here or Ms. Before I ask-- I'd like to request that the packet be admitted into evidence if there's no objection from Ms. Starr. CHAIRMAN FLEGAL: Ms. Starr, do you object? MS. DAVEY: (Shook head.) CHAIRMAN FLEGAL: Thank you, ma'am. MS. CRUZ: And before we admit it into evidence, I'd like to make a correction on page 4 of that packet to include Marie Davey Starr as respondent also. (A discussion was held off the record.) MS. CRUZ: Let the record show that the correct name should be Starr Marie Davey. CHAIRMAN FLEGAL: Okay. We have a request to accept the county's exhibit. Do I hear a motion? MS. SAUNDERS: So moved. CHAIRMAN FLEGAL: Do I hear a second? MR. PONTE: I'll second. CHAIRMAN FLEGAL: Any question? All those in favor signify by saying aye. (Unanimous response.) MS. CRUZ: The alleged violation brought before this board is the conversion of a single-car garage into a living area without first obtaining all the Collier County building permits. This is a violation of Ordinance No. 91-102, Section 2.7.6, paragraph 1 of the Land Page 105 July 16, 2001 Development Code. The own -- the address -- the violation exists at 4340 22nd Avenue Southwest, Naples, Florida, and is more particularly described as Golden Gate Unit 1, Block 9, Lot 4. The owners of record are Jason James Billington and Starr Marie Davey. The address of record is 4340 22nd Avenue Southwest, Naples, Florida. The violation was observed first on January 9th, 2001. Two notices of violations were provided to the respondent. One was dated 1/19/01, and the other one was dated 2/23/01. These requested compliance; the first one by October -- by January 24th, 2001 and the most current one until -- compliance by March 12th, 2001. Violation remains as of July 13, 2001. Turn the cases over to Investigator James Hoopingarner. (The oath was administered.) MR. HOOPINGARNER: For the record, my name is James Hoopingamer, H-o-o-p-i-n-g-a-r-n-e-r, Collier County code enforcement investigator. I've been up here once before, but good morning again-- I guess good afternoon. This case again was brought to our attention by an anonymous complainant which stated at the address of 4340 22nd Avenue a single-car garage was being enclosed for the purpose of living space. Even prior before going to the site, I checked the records for permits, and there was no permits on file for this sort of structure. Arriving at the site, I did observe -- if you'll notice the screen, Item No. 13, you can see the front of the garage, the door has been removed and a window inserted. Also, on the left side of the building, a window was removed, and an air conditioner was put into the space where a window was. The first time I was there, neither Ms. Davey nor Mr. Billington were home. I contacted a friend who was there, Ricky Sanchez, talked to him. He advised he didn't believe there were permits for the building. Also, none was posted at Page 106 July 16, 2001 the time I was there, which was required. At this time a notice of violation was issued which the friend, Mr. Sanchez, signed, that the building should be corrected by January 24th. Upon making contact -- finally contacting Ms. Davey and talking with her, it will be noted on the deed that this property is owned by Jason James Billington, a single man, and Starr Marie Davey, a single woman. During the course of this investigation, it was learned that Mr. Billington no longer resides at this address and only Ms. Davey resides at this address. Upon talking with her, she basically agreed upon the violation, but advised that she was in no way financially or physically capable of correcting the matter. Attempts to contact Mr. Billington was made without success. I finally was able to contact his father, Duane Billington, and he said that due to the domestic problems involved, that probably his son, Jason, was not going to get involved in this situation whatsoever. Ms. Davey is still residing at the home. As of this date, we still have no applications for permits, and the violation still remains. I would like to bring to the board's attention, though, that this morning prior to coming here, Mr. Duane Billington, the father of Jason and the grandfather of two children that reside with Ms. Davey, advised that he would be, with Ms. Davey's permission, willing to help in trying to obtain and get the permits and try to get this matter corrected. That's basically what I have. MS. SAUNDERS: Sir, would the property be permitable if-- MR. HOOPINGARNER: Yes. These sort of things -- I can't say where it would be permitable, but these things in the past have been permitted. They'll have to, of course, have it surveyed and show the height of the property due to our flooding condition here in Florida, and also the alterations would require permits. But these items have been permitted in the past. Page 107 July 16, 2001 MS. SAUNDERS: And what they basically did was take a garage and convert it into a bedroom? MR. HOOPINGARNER: That was their intention. They didn't get that far along with it. Basically what was done is what you see. No interior moderations were made. I put a stop work order on it. No further work has been done, no electric, nothing like that. MS. SAUNDERS: So if a permit were not obtained, would they have to put the garage door back on and change -- MR. HOOPINGARNER: Yes. They'd have to restore it to the original permitted condition. MR. PONTE: Did the father-in-law, in the conversation -- was he aware of the costs of what might lie ahead in his helping to obtain these permits? MR. HOOPINGARNER: I-- MR. PONTE: Do you know what I'm saying? Did he have -- MR. HOOPINGARNER: Yes. I believe, according to himself, his son's sort of a building inspector. Just what, I don't know. And also, if I'm not mistaken, I believe he may have also been the person that may have done some of this work. So maybe that's another reason that he's willing to help correct it. MR. PONTE: Thank you. CHAIRMAN FLEGAL: Any other questions for the investigator? Thank you, sir. MR. HOOPINGARNER: Thank you. Ms. Davey. (The oath was administered.) MS. DAVEY: My name is Starr Davey. CHAIRMAN FLEGAL: You can pull that down a little closer. MS. DAVEY: The bedroom was originally -- or the garage was originally turned into a bedroom for my daughter that was born. She passed away at two months old. We would have had three children in Page 108 July 16, 2001 a two-bedroom home. His father and my ex were doing the bedroom together when my daughter was born. As far as I knew about it -- I didn't know much about what they were doing. I know that his dad is an inspector, so I figured what he was doing was okay. After there was a domestic violence that happened, which he is no longer to be in the house -- I'm only on the deed. I don't own the house. Technically Jason Billington owns the house, but I did sign the deed in case something happened to him, that me and the children would have a home. I know that it's in violation. I don't have any -- I'm basically trying to save the house on my own, pay for children, child care. I don't have very much extra money at all when it comes down to all the bills that I have. In talking with the investigator today, he said that Jason's dad would be willing to help out with the cost of paying for it. Whether or not that could be -- later on down the line really come true is just -- I don't know. MR. LEHMANN: Ms. Davey, first off, I speak for myself and probably for the board, our condolences on your loss. This arrangement with Mr. Duane Billington, is that acceptable to you? Is that possibly a solution to this problem? MS. DAVEY: Yeah. I don't have any problem with him coming around. The problem is with my ex. MR. LEHMANN: And you have a restraining order against Jason? MS. DAVEY: Yes. MR. LEHMANN: Do you think this can happen relatively quickly? Do you think Mr. Billington can help you get through this process relatively quickly? MS. DAVEY: To be honest, I'm not really sure. I don't know. The first -- when I got the notice of coming to court (sic) for this, I did contact his father for the first time after the incident happened. Page 109 July 16, 2001 The incident was as of November 30th, and I haven't spoke with him since then until the time that I called him and gave him my concerns with what was going on and how much trouble that I was in, that I needed help. MS. TAYLOR: He is the grandfather of your children; right? MS. DAVEY: Yes. CHAIRMAN FLEGAL: Ms. Arnold, starting basically from scratch, which is, I assume, where she's starting from, to apply and obtain the permits, is a 30-day period reasonable? MS. ARNOLD: Depending on what they want to use it for. If she wants to leave it as is and use it for storage, that would be a quick turn around because there's not a lot of other improvements that would be required for that space. But if she wants to do further modifications with respect to using it -- converting it into a bedroom, it may involve a little bit more in terms of the submittal for the plans. MR. LEHMANN: She can leave the improvements in place and just reclassify it as a storage space -- MS. ARNOLD: Yeah. The only-- MR. LEHMANN: -- even though it doesn't have the garage door and -- MS. ARNOLD: Right. And the only concern that I have was -- is with respect to the air-conditioning unit. I don't know how that whole thing was wired. Maybe she could answer that or the investigator, because I don't know whether or not the wires are interior or exterior or whatever. MR. LEHMANN: Are we not going to get into the issue again of the window opening that was there and that they took out and blanked of~. MS. ARNOLD: Again, according to the building department, the improvements that were made require a permit. MR. LEHMANN: But what I'm saying is to get this permit, do Page 110 July 16, 2001 you foresee her having to go through the whole engineering process? MS. ARNOLD: No. CHAIRMAN FLEGAL: Because it's structural. I mean, before we said when somebody took a window out and replaced it, that was structural. Now, they've done exactly that. They've tak. en a window out and a door out. So now do they have to go through more hoops? MR. LEHMANN: Took a door out and put a window in. MS. ARNOLD: The comments that I was making at the prior case was whether -- to make the determination whether or not a permit was required. Whether or not they have to get structural plans, that wasn't -- that's not being required with the replacement of this. They just simply need to get a building permit indicating on there that they are replacing a window or installing a window unit where a window once was. They just need to provide that information. MR. LEHMANN: But before we said if you alter the structure of the building, which was interpreted as saying the window by the county -- MS. ARNOLD: Correct. MR. LEHMANN: -- and obviously this board didn't agree with that interpretation-- MS. ARNOLD: Right. MR. LEHMANN: -- so to speak -- but my question is, here we've taken an overhead garage door out. We've put a wall there with a window in it. And then outside of the house, we've taken what seems to be a window out and blanked it off and put in an air- conditioning unit. Has this particular respondent altered this to the point where a structural review would be required which would force her to get engineering and all the rest of that? MS. ARNOLD: And my answer is no, and I think maybe what was -- you mistook my comments with the prior case. That -- Page 111 July 16, 2001 whether or not they required structural drawings to be submitted with the permit was not what I was saying. The question -- the removal of the window, or in this case a garage door, modifies the structural integrity of the structure, the building; therefore, it requires a building permit. Now, whether or not, with the submittal of that application, structural drawings are required, I did not say that they were required. It's just -- in making a determination whether or not a permit is required, you have to determine whether or not the structural integrity of the building is being affected. And with this particular modification, what -- my understanding of what would be required is that they have to show and -- depending, again, what they want to use it for. If it's just storage, the elevation determination would not be required because it's not a habitable space, but they would need to obtain a building permit to show the changes that were being proposed from the original permitted structure. MR. LEHMANN: I'm just looking at it from a time line point of view. If we don't have any engineering, it seems like it's a fairly straightforward -- MS. ARNOLD: It's a-- MR. LEHMANN: If we involve engineering, it seems to drag the process out. I know in your recommendations you had recommended 30 days -- or staffs recommendations, 30 days. That was my concern on that. MS. ARNOLD: And I would just have to ask whether or not they're going to use the structure as a habitable space or a nonhabitable space. CHAIRMAN FLEGAL: Ms. Davey, do you understand what we're talking about? If you just want to store stuff in the room, it's a whole lot easier. If you want to make it a bedroom or a living space, it gets a little more difficult. So that's a determination only you can make. Page 112 July 16, 2001 MS. DAVEY: Okay. For money purposes I would probably say storage. If his dad comes into it, I don't know if he is going to be willing to make it into a bedroom and get into those. But as for me, no. I'd probably just do a storage. MR. LEHMANN: And maybe one option you may have, since the storage avenue seems to be the easier way to get everybody off your back and get you into compliance, maybe it's to proceed with the storage, get that approved by the county, and use it as storage until you might want to go through a further application and try to convert it later on into a bedroom or something. What we're trying to achieve is compliance as quickly as possible within reason. MS. SAUNDERS: What would the cost be on getting the quick permit for converting it to storage space, roughly.'? MS. ARNOLD: I'm not really sure. I mean, I think a typical permit, if you're not involving any electrical or the sort, is about $52. MS. SAUNDERS: If you have the air conditioner, which is already in there then, so it would involve some electrical, that would bring it up a bit higher. MS. ARNOLD: It all depends on how they connected it. If it's just a matter of plugging it in, I don't know. MS. DAVEY: I -- I'm sorry. CHAIRMAN FLEGAL: Yes, ma'am. MS. DAVEY: I know that they -- all they did was plug it in. That wall already had a plug. They had plugs on both sides of the wall. MR. LEHMANN: That's probably the easy way. CHAIRMAN FLEGAL: I have a question for Ms. Rawson. Both names are on the deed to this property. MS. RAWSON: Correct. CHAIRMAN FLEGAL: And one person who is named on the deed can't go onto the property. Page 113 July 16, 2001 MS. RAWSON: That's correct. CHAIRMAN FLEGAL: And we're discussing ways to solve this problem with the other person who's on the deed. Are we building ourselves a minor problem here in that when we cite them, we're going to have to cite both of these people; and yet one person, whether they want to or not, is not allowed to go near the property? MS. RAWSON: No. I think you want to cite them both, and then I think you want to ensure that both of them make the property come into compliance. He can have this property come into compliance without actually violating his restraining order and being there. They own this property as joint tenants with right of survivorship, so she might be happy to know that she is, in fact, an owner, even though she thinks she isn't. But I believe he can make the property come into compliance without actually being present on the property. CHAIRMAN FLEGAL: Okay. In other words, he could send somebody to get -- MS. RAWSON: Sure. His dad. CHAIRMAN FLEGAL: -- the permitting or whatever, whether it's his dad or somebody else. MS. RAWSON: Correct. CHAIRMAN FLEGAL: Okay. I just don't want us to get boxed in. Okay. Any other questions for Ms. Davey? MR. LEHMANN: And I don't think we should disclude Jason from this process. CHAIRMAN FLEGAL: No. MS. DAVEY: Can I ask you a question? CHAIRMAN FLEGAL: Yes, ma'am. MS. DAVEY: How does it work if he can't be found? CHAIRMAN FLEGAL: Well, if he disappears, unfortunately it's going to be -- whatever we do will be against both of you. If he, Page 114 July 16, 2001 in fact, disappears, you're still left. I mean, it's kind of the old rule of thumb. If everybody runs out of the building except you, you're going to catch it. You know, there's no way around that, unfortunately, because you are one of the owners. Any other questions for Ms. Davey? You may sit down now. Thank you. Okay. Finding of fact by the board. MR. PONTE: Who wants to do that? MR. LEHMANN: This is not something I look forward to. CHAIRMAN FLEGAL: I know it's distasteful but unfortunately ... MR. LEHMANN: I'm going to give it -- let me premise (sic) it first off. There's some cases that just don't seem to make sense, but I have to go forward with it. We do have a finding of fact in the case of-- code enforcement Case No. 2001-063, Board of County Commissioners versus James Jason Billington and Starr Marie Davey. We do have a violation of Section 2.7.6, paragraph 1 of Ordinance No. 91-102 as amended, the Collier County Land Development Code ordinance. The description of the violation is a conversion of a single-car garage into a living area without first obtaining all required Collier County permits. The address would be 4340 22nd Avenue Southwest, Naples, Florida, more particularly described as Folio No. 0000035643520006, Golden Gate Unit 1, Block 9, Lot 4. CHAIRMAN FLEGAL: We have a motion that there, in fact, is a violation existing. Do I hear a second? MS. TAYLOR: Second. MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a second. Any further discussion? MR. LEHMANN: Thank you, guys, for letting me be the bad guy. Page 115 July 16, 2001 aye. CHAIRMAN FLEGAL: The hard one's coming up. MR. LEHMANN: This motion, for me, is very distasteful. CHAIRMAN FLEGAL: All those in favor signify by saying (Unanimous response.) CHAIRMAN FLEGAL: The order of the board. I would throw on the table for my colleagues the fact that this is probably a unique situation. The lady may or may not get help immediately. We ought to try to be as lenient as possible in time and possible fine so that she has some -- can gather some type of resources and get some -- as much help as possible. In her case maybe you could keep that in mind when you're coming up with an order. MR. LEHMANN: Might I ask a question, Ms. Davey, real quick? Are you using this for anything other than storage right now? MS. DAVEY: Not-- no. MR. LEHMANN: You're not even using the area? MS. DAVEY: No. CHAIRMAN FLEGAL: Okay. Order of the board. MS. SAUNDERS: Well, how does it sound if we basically give her -- or them 90 days to get the permit, which I think is a fairly simple one. What I'm struggling with is in one way I'd like her to have a little bit of a clout against her ex-father-in-law to get him to finish this bedroom, but I understand that she has none. However, that's the only reason I'm looking at a fine at all, is maybe that will prompt him to try and do something. I'm throwing this out as a discussion. CHAIRMAN FLEGAL: Since he's not an owner -- may be a real nice grandfather. You don't know. But whatever price you affix toan owner really doesn't ramble downhill. He's just liable to say, "Gee, too bad." You don't know the circumstances. So I don't think that's a-- a line of thought, anyway. Page 116 July 16, 2001 MR. PONTE: Well, it's -- I agree with Rhona. I think we have to put something to it in order to get Mr. Billington's attention and that if, in due course, nothing has happened and transpired, then, of course, the other co-owner could apply -- or ask for a reduction of the fine. But I think in order to get the attention of the two Mr. Billingtons, we have to put some money on it that will have some fining the MR. MR. LEHMANN: My concern is that we're going to end up wrong party. PONTE: I agree. LEHMANN: Because, unfortunately, I think we're going to end up refining -- fining Ms. Davey because she's here and present. And, unfortunately, it seems to me that she's the unwitting victim in this situation. MR. PONTE: do our dollar a day. one party MS. MR. MS. MS. MR. direction. I agree, Peter. But at the same time if we -- let's If we -- if we go to the dollar-a-day scenario, the Billingtons really won't care, or $25 a day. MR. LEHMANN: Ms. Rawson, do we have the right to fine and not the other? RAWSON: Yes, you do. LEHMANN: Can we not, as a board, fine Mr. Billington? RAWSON: Yes, you can. SAUNDERS: Oh, I like that. LEHMANN: I would suggest we take an avenue in that MR. PONTE: Absolutely. CHAIRMAN FLEGAL: Ms. Rawson, if we had an order that says come into compliance in X days, period; then the next part of the order was for noncompliance, Party A is to be fined X dollars per day thereafter, and forget Party B -- MS. RAWSON: Yes. We've done that before. Page 117 July 16, 2001 CHAIRMAN FLEGAL: Cool. MS. TAYLOR: But does anybody know where he is? CHAIRMAN FLEGAL: Well, the bottom line is the fine can run, and ultimately the fine runs against the property. And if we got into foreclosure, unfortunately Party B is going to suffer but -- MS. SAUNDERS: Not necessarily because if they own the property jointly, it comes out of his part of it. CHAIRMAN FLEGAL: Well, I don't know if it's homesteaded or not. MR. LEHMANN: My concern here in this case is, quite frankly, it appears to me as if we have a husband -- and I'm probably getting into personal ground that I shouldn't. But it appears to me as if we have a husband that is not responding to the situation, whether he cannot or chooses not to. Quite frankly, I have my own personal opinions of how that runs. I look at Ms. Davey, and I say she, in essence, is the victim. MS. TAYLOR: But is he a husband? MR. LEHMANN: Well, but, again, that's a personal -- MS. TAYLOR: That makes a difference. MR. LEHMANN: Well, he still is the property owner. MR. PONTE: He's a co-owner. MS. TAYLOR: That's true. MR. LEHMANN: Now, my position here is if we fine Mr. Billington and the property forecloses, I mean, he basically says, "Tough beans, the property forecloses." Now the property forecloses on this young lady unless it's a homestead. CHAIRMAN FLEGAL: Ms. Davey, I was going to ask you, do you know if this property has been homesteaded? MS. DAVEY: Yes, it has. CHAIRMAN FLEGAL: It has been. Okay. MS. DAVEY: And to answer your question about the Page 118 July 16, 2001 foreclosure, I've stopped the house out of foreclosure, and I'm taking over payments. With my injunction of protection, it's permanent, and that gives me legal custody of the home and the children. And as of Friday, this Friday -- last Friday, he got all the rights taken away from his children. MR. LEHMANN: Okay. The last -- the last thing that I would want to happen is some action from this board taking your home away from you. CHAIRMAN FLEGAL: But as I remember, Ms. Rawson, foreclosed (sic) property we can't foreclose on from this board. MR. LEHMANN: We can't-- CHAIRMAN FLEGAL: I mean, a mortgage company can do that, but we can't order that done, as I understand the statute. MS. RAWSON: Well, we do foreclose on property, but you authorize the county attorney to foreclose on the property when we haven't collected our fines. MR. LEHMANN: Yes. But we cannot foreclose on a homestead. CHAIRMAN FLEGAL: I think the statute says if it's homesteaded, you-- MS. RAWSON: Oh, I see what you're saying. CHAIRMAN FLEGAL: -- the county can't foreclose on it. A mortgage company can, but the county can't if it's homesteaded. MS. RAWSON: Right. CHAIRMAN FLEGAL: That's the way I remember the statute reading. So we're at least -- she's got some protection from this board if Mr. Billington doesn't pay. MS. DAVEY: May I ask one more question? CHAIRMAN FLEGAL: Yes, ma'am. MS. DAVEY: If perchance his father doesn't come forth and help me with this, what -- what can I do? I know no procedures. Page 119 July 16, 2001 CHAIRMAN FLEGAL: I understand. What we're probably going to recommend, I think, is an order that something be done within X time period and then a fine. But at the same time, we're going to ask the county if they can't get somebody to give you some guidance since you're kind of out there floundering on your own. Somebody is going to have to help you, and obviously it's not forthcoming from anywhere else. So we don't want to see fines if there's another way out. And if this is just filling out some paperwork, surely we can get somebody in the county to get you to come down, give you the paperwork, show you how to fill it out. You can do it yourself. Now, the amount of money you may need, we don't know yet, but the county can help you with that. They'll tell you what you need, and then you can find out - - maybe you can borrow it, whatever; or say, gee, as long as I can come up with it in this window we give you, then you'll be fine. Okay. That's what I think we're going to do. I don't know that for sure, but I think that's what's going to happen. MS. DAVEY: Thank you. MR. LEHMANN: And I commend you for taking the responsibility of addressing this, and I also commend Mr. Duane Billington for stepping forward and being willing to help you. I'm not overly pleased about Jason's activity, but that's neither here nor there. CHAIRMAN FLEGAL: Okay. Now, order of the board. Thank you, ma'am. I think somebody mentioned before a possible 90-day period? MS. SAUNDERS: I mentioned 90 days, yes. CHAIRMAN FLEGAL: And I wouldn't be upset with -- I think the county has recommended $50. Under the current guise of what's going on, $25 might be more realistic. I don't think we're going to put any pressure on this other owner. I think the number is -- has no Page 120 July 16, 2001 meaning, really, personally to him. MR. PONTE: It does. CHAIRMAN FLEGAL: Not to him. MR. PONTE: No, not to him, perhaps, but it does if it then comes home to roost. MR. LEHMANN: Your recommendation, as I understand it, is for -- to obtain the permits for the improvements or remove the same within 90 days, so you're asking for removal within 90 days? MS. SAUNDERS: I really don't want them to have to remove it. MR. PONTE: That would be very -- CHAIRMAN FLEGAL: Why don't we just say come into compliance. MS. SAUNDERS: Okay. Good. CHAIRMAN FLEGAL: And whatever method that gets, they'll -- the county can tell her -- or them is a better word. MR. LEHMANN: Here is my consideration for this. If it is as simple as what Michelle is saying, that we're just going to use this for storage and we don't need to get engineering to get the permits, 90 days is more than sufficient. If for some reason to get the storage permit, we need engineering because we took out the front door, now 90 days is a little short, and we're putting undue pressure on -- CHAIRMAN FLEGAL: Well, I think at that point after -- if that comes up, I think Ms. Davey can then come back to us and ask for an extension. But to try and second guess that they may, in fact, want to use it for a room at this point -- she said storage right now, so let's let her go that direction. MR. LEHMANN: No. I'm not talking about occupancy. I'm talking about the fact that this garage door w~ts taken out -- Michelle's shaking her head. MS. SAUNDERS: So come into compliance within 90 days is Page 121 July 16, 2001 reasonable. CHAIRMAN FLEGAL: I think that's a good sentence. And then however that happens, we'll leave it between the property owner and the county. MR. LEHMANN: And you're saying a fine of $25 or-- CHAIRMAN FLEGAL: I personally-- MR. LEHMANN: -- 50? CHAIRMAN FLEGAL: -- think that's a nice number, but I'm just one member. MS. TAYLOR: I agree. MS. SAUNDERS: I agree with 25. MR. PONTE: We want the problem to go away. CHAIRMAN FLEGAL: Yeah. That's all we want. MS. SAUNDERS: I'll go along with that. You know, I don't know if either one of those figures will help get her what she needs to get. So I'll stay with 25, and I would still hope we never have to impose that. And I would like to leave out of this the prosecutional costs, to waive those in this case. Second time I've done that. Only time I've ever done it on Code Enforcement Board. CHAIRMAN FLEGAL: Okay. We have a motion on the floor, 90 days, $25, and no prosecutional costs. Do I hear a second? MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Ms. Davey, do you understand? giving you 90 days to get permits or whatever. a fine of $25 a day will be imposed. We're If that doesn't happen, Page 122 July 16, 2001 I have one question, I guess, before we actually close the order. We have this fine against both parties. She didn't specify one or the other, so right now it's against both. MS. SAUNDERS: Thank you. I would -- can I amend -- you're absolutely right. CHAIRMAN FLEGAL: So if you want to add to the order before we leave, you can, that the fine would apply to, and then you can name the party. MS. SAUNDERS: I would like to add to the order, if the board agrees to, that the fine would apply only to Jason James Billington. MR. LEHMANN: I would second that. CHAIRMAN FLEGAL: Okay. We have a motion and a second to add to Our order that the fine apply only to Mr. Billington. Any other discussion? All those in favor signify by saying aye. (Unanimous response.) MS. DAVEY: Thank you. CHAIRMAN FLEGAL: Thank you, ma'am. MR. LEHMANN: Ms. Davey, I would implore you, if for some reason you're having any problems with this, county staff can help you with this. They can bring you to different people that can help you with this. If you're still having problems and you end up having to go back and forth and explain the situation -- CHAIRMAN FLEGAL: Call and ask Ms. Arnold and I'm sure she can direct you to somebody who can give you some guidance on what you need to do. MR. LEHMANN: Often this board is not too tolerant to listen to excuses on why you can't do something, but I think we do have a unique situation here. MS. TAYLOR: Excuse me, but I need to ask something. Do you have sole ownership of the house now? Is that what you said a Page 123 July 16, 2001 while ago? MS. RAWSON: Occupancy. CHAIRMAN FLEGAL: Occupancy, not ownership. The deed's still in both their names. MS. SAUNDERS: I would hope you could still get it done into a bedroom. MS. DAVEY: That would be nice, but right now just a storage is-- MS. SAUNDERS: Whatever you can do. MS. DAVEY: Yeah. MR. LEHMANN: And good luck to you. MS. DAVEY: Thank you. Thank you very much. CHAIRMAN FLEGAL: Thank you, ma'am. Last case, Case No. 2001-041, Schrack. MS. ARNOLD: We're going to continue it. CHAIRMAN FLEGAL: You're asking us to continue it? MS. ARNOLD: Yeah. CHAIRMAN FLEGAL: Does the board agree? MS. SAUNDERS: Sure. CHAIRMAN FLEGAL: We need a motion to continue it, please. MR. LEHMANN: So moved. CHAIRMAN FLEGAL: Do I hear a second? MS. SAUNDERS: Second. CHAIRMAN FLEGAL: We have a motion and a second to continue Case 2001-041. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: (No response.) CHAIRMAN FLEGAL: The county's asking for a continuance. Any opposed? Closes the public hearing. Page 124 July 16, 2001 New business, imposition of fines. This is administrative, so hopefully this will go rapidly. MS. ARNOLD: Okay. The first one is Board of County Commissioners versus Victor V. Ira. Staff is requesting -- this particular case was heard before the board on April 26th, 2001. At the time the board found the respondent in violation and ordered correction of the violation by June 25th, 2001, or fines of $25 per day would be imposed each day the violation continued. Staff is at this time requesting that the board impose fines for the amount of 700 -- $175 for a period of June 26th through July 6th -- July 3rd, 2001, and that would also include prosecution costs of $459.64. CHAIRMAN FLEGAL: There's a request from the county to impose fines on Case 2001-015 in the amount of $175 plus prosecutional costs of 459.64. Do I hear a motion to do same? MR. LEHMANN: So moved. MS. SAUNDERS: Second. CHAIRMAN FLEGAL: Motion and a second. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Okay. Next case, two thousand eighteen (sic). MS. ARNOLD: Yes. This case was heard on March 19th, Board of County Commissioners versus James Joseph Grant, Jr. At that time the board found him in violation and ordered correction to occur by June 30th, 2001, or a fine of $25 a day would be imposed. The respondent has come into compliance as ordered by the board; however, staff is requesting that the board impose prosecutional costs of $567.52. CHAIRMAN FLEGAL: We have a request to impose the prosecutional costs on 2000-018 (sic). Do I hear a motion? MS. ARNOLD: I'm sorry. That's the wrong amount. I'm sorry. Page 125 July 16, 2001 I read the wrong amount, and he -- and I was reading the wrong -- I apologize. I was reading the wrong executive summary. For Grant they -- they were heard on April 26th, again, and the board ordered two compliance dates: A May 26th, 2001, date for one violation, and then a June 25th, 2001, date for the other violation, or fines of $25 per day would be imposed per violation. We're at this time, because of failure to come into compliance, requesting the board impose fines of $925 for the period June 26th through July 3rd, 2001, and prosecution costs of $600.40. CHAIRMAN FLEGAL: Okay. We have a request to impose the fine and prosecutional costs. MS. SAUNDERS: I'll so move. MS. TAYLOR: Second. CHAIRMAN FLEGAL: We have a motion and a second. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: The Mitchell case. MS. TAYLOR: What happened to Marrone? CHAIRMAN FLEGAL: I don't know. I've got the case, but I don't -- MS. ARNOLD: I know. The order is all mixed up in my book too. That's why I was reading the wrong -- I'll get to Marrone at the end. In fact, we'll treat it under filing of compliance because they're in compliance, and we'll talk about the prosecution charges at that time. Okay. So we're at Mitchell. This case was heard by the board April 26th, 2001. Again, a violation was found, and the respondent was ordered to come into compliance by June 25th. Staff at this time is requesting that the board impose fines for noncompliance from the period between June 26th to July 3rd. And that is written in your executive summary as $175, but it should be 700 because it's per violation. So that cost is $700 for the fines and a total of $567.84 for Page 126 July 16, 2001 the prosecution costs. CHAIRMAN FLEGAL: We have a request to impose fines and prosecutional costs. MS. TAYLOR: So moved. MR. PONTE: Second. CHAIRMAN FLEGAL: We have a motion and a second. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Now Mr. Marrone? MS. ARNOLD: Okay. This case was heard on the 19th of March, and the respondent was ordered to correct the violation by June 30th, 2001. They have corrected the violation; however, we're requesting that prosecution costs of $567.52 be imposed. CHAIRMAN FLEGAL: Okay. We have here -- you're asking us to do two things: Accept the affidavit of compliance and impose a fine for-- MS. ARNOLD: Yeah. The affidavit of compliance is for the actual -- CHAIRMAN FLEGAL: Work. MS. ARNOLD: Yeah. And that's the report. You don't really need to take action at all. CHAIRMAN FLEGAL: Okay. So we have a request to impose the prosecutional costs for someone who has come into compliance, which we've done in the past. MR. PONTE: Excuse me. This is not in compliance. MS. ARNOLD: Yes. This one is for the vegetation. This is -- we had two cases against-- MR. PONTE: Oh, vegetation. Okay. I'm sorry. MS. ARNOLD: And the vegetation was required by June 30th, and they're in compliance. MR. PONTE: Sorry. Page 127 July 16, 2001 CHAIRMAN FLEGAL: Okay. Do I hear a motion to -- MS. TAYLOR: So moved. MR. LEHMANN: Second. CHAIRMAN FLEGAL: We have a motion and a second to impose fines for the operational -- for the prosecutional costs. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Mini Max Market. MS. ARNOLD: This one, again, was heard on March 19th of 2001. The respondent was found in violation and ordered to correct by July 8th, 2001. Again, the respondent is in compliance; however, staff is requesting that the prosecution costs of $526.18 be imposed. CHAIRMAN FLEGAL: I'd entertain a motion to impose the fines for the prosecutional costs. MR. PONTE: So moved. MS. TAYLOR: So moved. Okay. I'll second. CHAIRMAN FLEGAL: We have a motion and a second to impose the prosecutional costs. aye. (Unanimous response.) All those in favor signify by saying CHAIRMAN FLEGAL: Okay. That's all the imposition of fines. We have a request that has been submitted by Goodman and Love to be heard to reduce fines. We did this at the last meeting. They are back to ask us to reduce the -- I think what we imposed was the prosecutional costs, so they're making a request to reduce that cost. Accepting such a request is at the pleasure of the board. So my question is, does the board wish to hear the request to reduce the prosecutional fines? MS. SAUNDERS: I think we owe them the courtesy of listening to the request for a five-minute period or something. MR. PONTE: I think we've heard this, and we've heard it again, Page 128 July 16, 2001 and we've heard it again. I don't know how many more times we're supposed to be indulgent and hear it yet again. CHAIRMAN FLEGAL: Okay. Do I hear a motion to not hear the request? MS. TAYLOR: So moved. CHAIRMAN FLEGAL: We have a motion to not hear the request to reduce the fines further. Is there a second? MR. PONTE: I second. CHAIRMAN FLEGAL: We have a motion and a second to not hear the request. Is there any discussion? All those in favor signify by saying aye. MR. LEHMANN: Aye. CHAIRMAN FLEGAL: Aye. MR. PONTE: Aye. MS. TAYLOR: Aye. CHAIRMAN FLEGAL: Any opposed? MS. SAUNDERS: Opposed. CHAIRMAN FLEGAL: Okay. 4 to 1. MR. LOVE: Excuse me, board. I just want you to read one paragraph of your order of the board. That's all. And I'd like Ms. Rawson to comment on that. Then I'm out of here. Two minutes. I feel this-- CHAIRMAN FLEGAL: hear it, sir. Sorry. We're not -- we voted not to MR. LOVE: Well, it doesn't matter. I believe that you have made a mistake in your finding, and it's your order of the board. And I was supposed to comply to your order of the board, and I'm hoping that you will comply to your own order because I have cited here something that needs to be read that will take 30 seconds. And I appeal to Ms. Rawson, whose signature, along with yours, Mr. Flegal, has signed this affidavit. Page 129 July 16, 2001 CHAIRMAN FLEGAL: We heard this -- MR. LOVE: No, you didn't. CHAIRMAN FLEGAL: We heard your request to reduce fines. We reduced them except for the prosecutional costs. MR. LOVE: And according to this right here, it says that -- paragraph 2 of your order of the board, that if the respondents do not propose a plan of action to the county within 15 days, August 10th, 2000, and remove all prohibitive exotics and litter by February 15th, 2001, then and in that event, there will be a fine of $50 per violation plus all costs incurred prosecuting this action imposed for every day the violation continues to exist. We were found in compliance by that date, so there should be no cost. You already wiped off the -- CHAIRMAN FLEGAL: We wiped off the cost of the violation, but not the -- MR. LOVE: I'm appealing to your attorney to -- to look at this. CHAIRMAN FLEGAL: Sorry, sir. It stands. If you want to -- MR. LOVE: But you're going against the -- CHAIRMAN FLEGAL: -- file an order with the Court, you may. MR. LOVE: Do you really want to take up the time of the -- CHAIRMAN FLEGAL: The board's made a decision, sir. We're done. Sorry. MR. LOVE: Mr. Lehmann said earlier today that the ord -- that the purpose of this board is to help people come into compliance and to not fine them. I think it's a great quote that-- MR. LEHMANN: But I also do not want to rehear this again. MR. LOVE: I don't want you to rehear it. I just want -- MR. LEHMANN: The board-- (Several speakers at once.) CHAIRMAN FLEGAL: Excuse me. We're done, period. Thank you, sir. Page 130 July 16, 2001 MR. LOVE: No, you're not done. CHAIRMAN FLEGAL: Okay. We'll do it the hard way. MR. LOVE: I would like your attorney to just advise you on what this says, and then I'm gone. Then I'm gone. CHAIRMAN FLEGAL: I've pressed a button. I've called security. Obviously he doesn't understand the word "we're done." The next item is a discussion of the rules and regulations. I've got to leave directly. I think Mr. Lehmann has to leave. We have some other members who are already gone. I think this item needs to be -- we haven't ever gotten the exhibits yet to review. I did find some things, and we need to talk about this. I think we ought to set this up for probably, if the board would not object, sometime in August. I won't be here for the next meeting. I'm going on vacation Wednesday. I won't be back until August 3rd. So for our orders, Ms. Rawson, you'll have to set them up for Mr. Lehmann to sign because I won't be here. MS. RAWSON: You mean these orders? CHAIRMAN FLEGAL: The orders we just did today. I'll be gone for two weeks, so they'll have to be signed and out by -- MS. RAWSON: When are you leaving? CHAIRMAN FLEGAL: Wednesday. Unless you can get them -- I'm leaving Wednesday at noon. So if you can get them done before Wednesday at noon, I'll come down and sign them. But if you can't, then Mr. Lehmann better come sign them. MS. RAWSON: Okay. CHAIRMAN FLEGAL: Okay. But as far as the rules and regulations, I'd appreciate it if we'd do this when I get back so we can talk about them and when everybody's here, at least four members. We've got one, two missing now and a couple that have to leave in the next 15 minutes, and I know it's going to take longer than 15 minutes. Is that sufficient with the other members? Page 131 July 16, 2001 MR. PONTE: Yes. MS. TAYLOR: Yes. CHAIRMAN FLEGAL: And the next meeting is July 26th. And make note I won't be here. I've said-- I've told the secretary, and I've told the chairman. And we did get a -- is this both -- is this one exhibit or both exhibits? I think there's two exhibits called out. can't remember the other one, but I thought there were two exhibits. Maybe there's one, but I was thinking there was two. MS. ARNOLD: There were -- I think there are -- I agree. I think there were two. CHAIRMAN FLEGAL: I think there's two. MS. RAWSON: There's Exhibit A and B. I think what you handed in was Exhibit B. MS. ARNOLD: Right. This is for what they submit for rehearing. MS. RAWSON: Right. And the other one was for the abatement of fines, and I think you probably have that one. That's Exhibit A. I made some changes on -- CHAIRMAN FLEGAL: You can either mail them or e-mail them to everybody. I think you've done that before. Okay. Any other items? I'd entertain a motion to adjourn. MS. TAYLOR: So moved. CHAIRMAN FLEGAL: Yes, ma'am. I think Michelle had something. MS. ARNOLD: I think we just need to state for the record there's two report items: One is the -- Marrone is an affidavit of compliance, and the other one is Mini Mart (sic) for the affidavit of compliance. CHAIRMAN FLEGAL: Okay. The county has filed affidavit of compliances along -- on the two orders. 2001-018, 2001-030. Page 132 July 16, 2001 They were in your book. They don't require any action. They've just been given to us. Okay. Now I'd entertain a motion to adjourn. MS. TAYLOR: So moved. CHAIRMAN FLEGAL: Okay. Thank you, everybody. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 1:16 p.m. CODE ENFORCEMENT BOARD CLIFFORD FLEGAL, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY BARBARA DRESCHER, NOTARY PUBLIC Page 133