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CEB Minutes 08/23/2001 RAugust 23, 2001 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD OF COLLIER COUNTY Naples, Florida, August 23,2001 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 9:03 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 Kathryn M. Godfrey Darrin M. Phillips Peter Lehmann George Ponte Rhona Saunders Diane Taylor ABSENT: Kathleen Curatolo ALSO PRESENT: Michelle Arnold, Code Enforcement Director Janet Powers, Code Enforcement Operations Jean Rawson, Attorney Page 1 August 23, 2001 CHAIRMAN FLEGAL: Let's call the meeting of the Collier County Code Enforcement Board to order. Please make note any person who decides to appeal a decision of this board will need a record of the proceedings pertaining thereto and, therefore, may need to insure 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. POWERS: Good morning. Janet Powers, operations manager, code enforcement. Roberta Dusek. MS. DUSEK: Here. MS. POWERS: Clifford Flegal. MR. FLEGAL: Here. MS. POWERS: Kathryn Godfrey. MS. GODFREY: Here. MS. POWERS: Don Kincaid. CHAIRMAN FLEGAL: Mr. Kincaid has resigned so ... MS. POWERS: Pardon me. Peter Lehmann. MR. LEHMANN: Here. Darrin Phillips. MS. POWERS: (No response.) George Ponte. MR. PONTE: MS MS. MS. MS. MS. (No response.) CHAIRMAN FLEGAL: George Ponte, here. · POWERS: Pardon me. Rhona Saunders. SAUNDERS: Here. POWERS: Diane Taylor. TAYLOR: Present. POWERS: Kathleen Curatolo. We have all our permanent members Page 2 August 23, 2001 present. Approval of the agenda. Are there any changes, additions, corrections? MS. ARNOLD: Yes. For the record, Michelle Arnold, Code Enforcement Director. There's been a request to hear the old business item first prior to our public hearings, and that's Board of County Commissioners versus William G. Schrack and Eric W.-- I mean, William Schrack. That's a motion for a rehearing. CHAIRMAN FLEGAL: You're asking us to do that before the public hearings? Any board members have any objections? That the only change -- correction? MS. ARNOLD: That's correct. CHAIRMAN FLEGAL: I'd entertain a motion to approve the agenda as changed. MS. DUSEK: So moved. CHAIRMAN FLEGAL: Second? MR. LEHMANN: I'll second. CHAIRMAN FLEGAL: All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Approval of minutes. Are there any additions or corrections to those minutes? MS. DUSEK: I make a motion that we approve the minutes for July 16th and July 26th. MS. SAUNDERS: I'll second. CHAIRMAN FLEGAL: We have a motion and second by Ms. Saunders. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) Page 3 August23,2001 CHAIRMAN FLEGAL: (No response.) CHAIRMAN FLEGAL: have a request for a rehearing. Any opposed? Our first course of business is -- we Ms. Rawson, as I understand requests for rehearings, there are only two reasons to initiate a request: One, being something that was contrary to the evidence and other being an error on the ruling of law; is that correct? MS. RAWSON: That is correct. CHAIRMAN FLEGAL: And reading the motion that was submitted to us I don't see either of those presented in this motion. That being said, I would probably recommend to the board that we not rehear this case. MS. TAYLOR: If that's a motion, I'll second it. CHAIRMAN FLEGAL: It was a recommendation, but if you'd like to make it a motion -- as chairman I'd rather just recommend something to the board and discuss it. MR. PONTE: Let me ask the question. I understand the point for the hearing, but one of the points -- seven in that letter, that points out that Judge Martin found the respondent not guilty on more than one occasion. CHAIRMAN FLEGAL: I guess my comment would be -- and I'll -- I can relay it to Ms. Rawson, but after reading your minutes of what was presented -- the evidence presented was clear. There was supposed to be a contract with Waste Management. There was none. The only other option was a permit to do it himself, which there was none. That was the only two choices. We don't know what took place in court or whether -- I honestly don't know, but for this board it seemed pretty clear to me reading your minutes that what was presented to you was, in fact, truthful. And based on the evidence I think you did the right thing. MR. MOON: If we could actually address the motion. I'm the Page 4 August 23, 2001 attorney for the Schracks, and I think -- for a starting point on this -- I'm sorry. James Moon for the record. For a starting point on this is why Counselor Plant wasn't here is we were under the understanding when this was brought to hearing Mr. Sorrow had an emergency and we agreed to continue this. It was our understanding this was going to be continued on a 30-day cycle. We received notice of a hearing -- I believe it was the day before the actual hearing date. I'm in court and a trial situation. I can't clear my docket, and thus your hearing was held, and that's the reason for the motion for rehearing. We'd simply like to present our case. As Mr. Ponte pointed out, we've tried this case before the judge, and we would expect either from the board or code enforcement some type of notice more than 24 to 48 hours that you're going to conduct a hearing, and that's what we were provided and that's why we weren't here. MS. ARNOLD: For the record, Michelle Arnold. What happened -- my recollection of the case that was continued at that time Mr. Moon was present and we did say it would be continued to the following meeting, and I was in the process of looking back in the minutes to determine whether or not he waived that notice requirement and I believe that he did. And we sent a courtesy notice because we weren't required to send another notice of the actual meeting. MR. MOON: Counsel -- I'm sorry. Counsel didn't waive -- I was actually -- I spoke with Mr. Zachary at the last meeting, and Mr. Zachary understood I had to be in another courtroom at that time. ! left and Mr. Zachary said that the board -- if I'm not mistaken, Mr. Zachary would send me -- see that the board would send us notice of the hearing, because at the time I left there was no determination as to when it would be continued to. MR. LEHMANN: I reviewed the minutes of all the meetings, and on July 16th-- excuse me, on June 18th, which was the initial Page 5 August 23, 2001 hearing, counsel for the respondent did waive notification. That would refer to the July 16th meeting -- MS. ARNOLD: Right. MR. LEHMANN: -- in which counsel was not present, and it was continued on the July 16th meeting. So counsel did not waive notification for the next scheduled meeting of July 26th. MS. ARNOLD: He was present the day that we continued it. MR. LEHMANN: Not according to the minutes. We continued it twice. MR. MOON: I was -- I was present. The reason it was continued the second time was because code enforcement's officer on the day of the hearing had a family emergency and had to leave, and that was Mr. Sorrow. I was present prepared to go forward and I had agreed because of family emergency. I'm not going to force a person to come in and testify in a situation like that. MR. LEHMANN: But, again, I do not read any waiving of any notification. MR. MOON: That's correct. There was no waiving by counsel. MR. LEHMANN: My concern, Ms. Rawson, is time frame on this one. Has the respondent complied with, first off, the time frame and then, obviously, the reason for the motion? MS. RAWSON: Well, the reason for the motion has been correctly stated by your Chair. You only request a rehearing if it's contrary to evidence or there was an error of ruling of law. What -- what Mr. Moon is saying is that he may have waived in June for the July meeting. In July it was continued at our request -- at the request of the county, and he didn't waive for the following hearing. And, you know, you're going to have to make a determination as to whether or not you want to rehear it based on that. CHAIRMAN FLEGAL: There was -- I notice a letter that was sent by the county on the 17th, which is the day after the 16th Page 6 August 23,2001 meeting where it was continued, telling them there would be a meeting on the 26th. So notice was sent, and as I think I've heard before in and other instances, the United States mail is not a carrier for either one. It's mailed. It's mailed. You submit an affidavit that you mailed it, and that's that. So based on the decision the board made on the 16th on the evidence that was presented, i.e., there are only two ways around the violation. I think this board is probably really hard-pressed to do anything other than follow the ordinances. I don't say that with any great authority other than we have to live with what's presented at the time, and I think notice was sent that it didn't get there or he didn't receive it or he didn't pass it on. You know, you can lay blame a whole lot of places. I don't think that would be fair to anybody because you can always point fingers. So I guess I'm back to my original understanding of what it takes to have a rehearing unless Ms. Rawson has some other guidance for us. MS. RAWSON: Those are the only two grounds for rehearing. MS. DUSEK: My only concern is that he was here and we asked for the continuance the second time. MR. LEHMANN: My concern, in this particular case -- and I understand and agree with my colleague, our Chair, regarding the code. My concern is has due process been served? MS. RAWSON: Correct. The issue is not the grounds for rehearing as much as it is the notice requirement. MS. SAUNDERS: I think in the interest of fairness we may, indeed, need to go exactly where we went before, but I do think they are entitled to a hearing. They followed procedure as closely as possible. Whatever -- whatever reason, it fell through the cracks. I'm inclined, even though we have a very long docket, to try and give them their hearing and proceed justly. MR. LEHMANN: Ms. Rawson, does this board have the Page 7 August 23, 2001 discretion to grant a rehearing even though it goes contrary to what the ordinance is saying? MS. RAWSON: You can grant a rehearing and then because of the notice requirement, but then when you grant the rehearing, you're going to have to look at it as a rehearing and apply the two fundamental reasons; error of ruling of law or contrary to the evidence. You're not going to rehear the whole thing. What you're going to do is if you are concerned about Mr. Moon's lack of notice and you let him argue the motion for rehearing and you look back and see what the board did on the 16th -- or whatever day it was that you entered your ruling -- then you're going to look at those two reasons as to whether to change your decision. CHAIRMAN FLEGAL: And the two reasons are -- MS. RAWSON: The two reasons are -- CHAIRMAN FLEGAL: -- contrary to evidence presented -- MS. RAWSON: -- or an error on the ruling of law that was fundamental to the decision of the board. CHAIRMAN FLEGAL: Right. Which -- I don't know -- off the top of my head I find hard to argue because the minutes don't reflect that. MS. SAUNDERS: Well, I'd like to hear what the attorney has to say on those two points given that that's what we're entitled -- that's what his appeal is entitled to be on. CHAIRMAN FLEGAL: Somebody make the motion to approve the rehearing, and we will go forward. MS. SAUNDERS: I will move that we approve the rehearing. MS. DUSEK: I second. CHAIRMAN FLEGAL: We have a motion and a second. Is there any further discussion? All those in favor signify by saying aye. MS. SAUNDERS: Aye. Page 8 August 23, 2001 MR. LEHMANN: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. CHAIRMAN FLEGAL: Those opposed. No. No. MS. TAYLOR: No. MS. GODFREY: No. CHAIRMAN FLEGAL: Okay. I really need to -- because I really couldn't tell. All the ayes will you raise your hand, please? One, two, three, four. All the no's. One, two, three. Okay. Four to three, motion passes. We will rehear based on the two points called out in the ordinance and the statutes. MR. MOON: If I could clarify simply, you want me at this juncture for the rehearing the point of law that was contrary or -- MS. RAWSON: Or the evidence that was -- the decision was contrary to the evidence or was based on an erroneous rule of law. MR. MOON: Okay. If I may, I simply cannot address whatever evidence was presented, as the board is aware I wasn't present. I can't tell you what was presented by the county at this juncture. MS. ARNOLD: Can we -- can we set another hearing date? MS. RAWSON: Yes, you can. And what I would suggest is that we give him a copy of that portion of the minutes. MS. ARNOLD: Right. Because staff, quite frankly, doesn't have that information today either because we just thought we -- you were going to act on that motion. MS. RAWSON: If you decide to rehear it and Mr. Moon's argument-- well, you did, and Mr. Moon's argument's going to be about the evidence and the law that was presented, he needs to have an opportunity to read the transcript and prepare. CHAIRMAN FLEGAL: Well, let's -- let's put this on the docket for the next meeting. Page 9 August 23,2001 MR. MOON: waive my requirement? CHAIRMAN FLEGAL: next meeting is? MS. ARNOLD: Yeah. 27th. MR. MOON: September 27th. CHAIRMAN FLEGAL: Okay. Could we set the date right now, please, and I'll Michelle, can you tell us when the The next meeting will be September Thank you. Public hearings. First, Case 2001-069, BCC versus Kramer, Angileri, Grech, and RaceTrac. MS. POWERS: For the record, Janet Powers. This is a violation of Sections 2.4.3.7 and 2.4.4.4 of Ordinance 91-102 of the Collier County Land Development Code. The description of the violation is failure to properly maintain and upkeep the required minimum landscaping. The location address where the violation exists is Livingston Woods Lane, Naples, Florida, more particularly described as Folio No. 38454000000, Golden Gate Estates, Unit 35 N 406.59 feet of Tract 61. Name and address of owners or persons in charge where the violation exists: Kramer, Wendell L.; Salvadore F. Angileri; Salvatore C. Grech, 258 Mentor Drive, Naples, Florida 34110; and RaceTrac Petroleum, Attention: Julie Bowen, 300 Technology Court, Smyrna, Georgia, 30082-5232. The date the violation was first observed is March 5th, 2001. The date the owner or person in charge was given notice of the violation was June 27th, 2001. Date on which violation was to be corrected July 25th, 2001. The date of reinspection, August 22nd, 2001. The results of reinspection were that the violation remains. MS. ARNOLD: For the record, Michelle Arnold. We do have along with this particular case a motion to dismiss from the attorneys representing RaceTrac. Our county attorney staff has reviewed that motion, and they may want to speak to that particular motion. We want to hear that first prior to determining who we would be hearing Page 10 August 23, 2001 the case against, and if there is no objections we can at this time enter the information provided into evidence. We need a motion to that effect. CHAIRMAN FLEGAL: Is there someone here representing the respondents? Would you-- are you, sir? MR. BROOKER: On behalf of RaceTrac. CHAIRMAN FLEGAL: On behalf of RaceTrac. Okay. Anyone representing Mr. Kramer, Angileri, or Grech? (No response.) CHAIRMAN FLEGAL: Okay. Do any of you people object to the county submitting their package of evidence to this board? No I'd entertain a motion to submit the county's objections? Okay. package. MS. DUSEK: Exhibit A. I make the motion that we accept the county's MR. LEHMANN: Second. CHAIRMAN FLEGAL: Okay. We have a motion and a second to accept the county's exhibit. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Okay. I think at this point, since we have the evidence entered, we also have a motion to dismiss on behalf of RaceTrac. Would you like to tell us about that, sir, and we can do something about that to see if it is dismissible or not. MR. BROOKER: For the record, my name is Clay Brooker with the law firm of Young, van Assenderp, Varnadoe & Anderson. We represent Respondent RaceTrac Petroleum in this matter and have filed a Motion to Dismiss that was submitted last Friday, I believe. Essentially, we are not the owner of the property where the violation has been alleged to exist. The -- as just was read to you, the Page 11 August 23, 2001 description of the property is the north 406.95 feet of Tract 61 of Golden Gate Estates Unit 35. RaceTrac Petroleum is the owner, as evidenced by the general warranty deed attached to the Motion to Dismiss, of the south 225 feet of that same tract. Those two legal descriptions do not overlap. We are simply not the owner of the property. There is a private agreement in place with regard to the installation and maintenance of the vegetation at issue; however, this board, I would suggest is -- the jurisdiction or authority of this board is limited to the actual code ordinances that the county has adopted and the particular ordinances in effect or which have been alleged to have been violated refer to the owner of the property. We would submit and suggest that RaceTrac Petroleum be dismissed from this case, and if there's any other claims that the owner of the property has against RaceTrac, that would be a private matter between the parties. CHAIRMAN FLEGAL: Question: The notice of violation on the four hundred and some feet, that's not a legal description; that happens to be where the violation is. So the tract runs from, I think, Pine Ridge to Livingson -- whatever it is -- whatever that street is. What's -- do you know the depth of that tract? MR. BROOKER: I don't know the exact depth. I would guess -- and this is only a guess -- 650 feet or so, and I'm -- the only reason I come to that number is I'm adding the 406 feet which is the north portion which has been noticed for the violation, and the south portion that RaceTrac owns is 225 feet. You add those two together. CHAIRMAN FLEGAL: I understand that the only problem is the four hundred and something isn't the legal description of the property, I don't believe. That's just what the county said where the violation exists. I'm trying to find out actually how deep, because if it's less than the six something, then your two hundred would overlap; do you understand what I'm trying to say? Page 12 August 23, 2001 MR. BROOKER: Yes. I believe I understand, but I'd like to make it clear that it does not overlap as far as we know. The -- the property on which the alleged -- the violation has been alleged to have exist is not owned by RaceTrac. MS. SAUNDERS: Is that property leased by RaceTrac? MR. BROOKER: No, it is not. MS. SAUNDERS: You have nothing to do with that property? MR. BROOKER: There is a private agreement. And it -- so would you be considered a MS. SAUNDERS: tenant of that property? MR. BROOKER: MR. LEHMANN: each side? MS. ARNOLD: Yes. MR. LEHMANN: Okay. No, we would not. Ms. Arnold, a typical section is 660 feet long So we have 666 feet of which RaceTrac is claiming ownership of 225? MS. ARNOLD: Well, in this particular piece, it's an estate lot, and it probably is about 650 in this particular case because of some right-of-way that's been claimed in the southern portion of it for Pine Ridge. And the portion that RaceTrac sits on is the southern portion of the property, and the subject violation is on the northern portion of the property. I think that the county attorney's office may at this time speak -- want to speak to the motion that's been presented to you to indicate the county's position on that particular motion. MR. LEHMANN: Thankyou. CHAIRMAN FLEGAL: Thank you, sir. MS. BELPEDIO: Good morning. My name is Jennifer Belpedio for the record. I represent the county attorney's office and the code enforcement. We are not going to object to the Motion to Dismiss on the grounds cited that Mr. Brooker has presented. Page 13 August 23, 2001 According to Section 2.4.3.7 of the Land Development Code, the owner of the property is responsible for the maintenance. The property appraiser's records that we have indicate that RaceTrac is not the owner at the time of the violation and currently. In addition, there is this easement retention agreement. That is not an agreement that the Code Enforcement Board should be interpreting. The Code Enforcement Board is a quasi-judicial board and should not be involved in the reading of a contract. That is more of a legislative sort of matter, and because of that we will not object to the motion and ask that you grant the motion. MR. LEHMANN: I might recommend to my colleagues that I agree with the county's attorney as far as our responsibility in this. The agreement appears to be a private agreement between two parties that we have no jurisdiction over. I, for one, would agree to the dismissal. CHAIRMAN FLEGAL: Is that a motion? MR. LEHMANN: That would be a motion to agree to the Motion to Dismiss. (Outburst from audience.) CHAIRMAN FLEGAL: Excuse me. No, sir. Not in a Motion to Dismiss from RaceTrac. If you want -- if your problem is the disagreement, then you two people need to fight that out in court. We can't help that. MR. KRAMER: The problem was not the agreement. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: Let me explain myself. I think respondent's attorney has -- has discussed the situation very well and concisely. This is a very black-and-white issue as far as the code goes and as far as this board goes. The agreement has nothing to do with what we have a jurisdiction over. So to me it's a very black-and-white situation. Page 14 August 23, 2001 CHAIRMAN FLEGAL: Okay. I'm going to do what I probably shouldn't do and make a large assumption. Since we haven't heard any evidence from the county or from the other parties, we -- all we have is RaceTrac saying they're not involved and we're believing them, which in this five seconds is tolerable because we haven't heard anything else. Ms. Rawson, if we heard the case, okay, and after hearing the evidence presented by all parties, could this board determine at that time that one of the parties is not involved and -- MS. RAWSON: You can take his Motion to Dismiss under advisement. You've heard what he had to say, and it's undisputed by the county that RaceTrac does not own the northern part where the violation exists. You can accept that as fact. Now, you can take that under advisement until the end of the case and make your decision and also make your decision on the Motion to Dismiss at that time. There's nothing wrong with your doing that. CHAIRMAN FLEGAL: I'm just-- to make sure that everybody gets a fair shot and having not heard anything yet -- and I understand the county's agreeing that this party isn't involved, but there seems to be a possible dispute of that, and until this board knows that if we, in fact, dismiss the party, then there's no way to call them back after the fact. I think we're safer in dismissing them at the end. MS. RAWSON: That's fine. There's not a problem with that. Attorneys are used to courts taking things under advisement until the end of the proceedings, so I would ... CHAIRMAN FLEGAL: I guess I would ask my colleague, Mr. Lehmann, if you would defer your motion to automatically dismiss until we actually hear everything and at that time if the evidence so precludes that we should do that then we do it, just to be safe rather than sorry. MR. LEHMANN: Certainly. I have no objection to that. Page 15 August 23, 2001 CHAIRMAN FLEGAL: Anybody -- any of the other colleagues on the board object? MS. DUSEK: I second that. CHAIRMAN FLEGAL: Okay. All right, sir. Thank you. Do we need to vote on taking it under advisement to the end? MS. RAWSON: I guess so. CHAIRMAN FLEGAL: Okay. If you'd revise your motion to take this under advisement until the end of hearing this particular case, I would appreciate it. MR. LEHMANN: I so move to do so. MS. DUSEK: And I second. CHAIRMAN FLEGAL: And we have a second. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Okay. County can present their case. MS. ARNOLD: At this time I'd like to call Allen Kennette, the investigator on this case. MR. KENNETTE: It's K-e-n-n-e-t-t-e. Good morning. I am Allen Kennette, Code Enforcement Board. CHAIRMAN FLEGAL: I think you're going to have to speak up, sir. I can just barely hear you. MR. KENNETTE: My name's Allen Kennette. I'm from Code Enforcement Board. This is a case against the vegetation and landscaping agreement that they had with the parties for the Angileri property and RaceTrac. This was on March 5th of 2001 we received a complaint from the staff that the landscaping on the Livingston Woods Lane that abuts the RaceTrac Petroleum and Service Gas Station is not up to specifications, that the vegetation is dying off. On that date I went out and looked at the property and observed Page 16 August 23,2001 the trees to the front of the wall not producing any leaves, the shrubbery in front of the wall also was in, roughly, 20 to 24 inches in height, not quite to what the SDP was requiring of 24 inches to be planted in front of the wall. The back section of the wall there was some Maples and some Cypress back there that were also -- looked to be dying off. At the time we had that cold snap that came through possibly damaging some of the vegetation. I did call Alex Sulecki who is an environmental specialist to take a look at the plants, which she did. At that time she determined that possibly the cold that we had for those five or six days had done some damage to the trees, but at this time they seemed to be still living but not thriving, and if they didn't start producing leaves within 30 days that they were going to die off. So we put a recheck on it that we were going to recheck it in 30 days. On March 20th I did go back out there and observe that some of the vegetation seemed to produce some green leaves on them in the front of the wall, which would be the smaller shrubs, but the bigger trees that were planted were not producing any type of leaves. They were still in the dead-looking state. Due to the SDP which was 98-28 the PUD on the property showed that RaceTrac was responsible for the planting of the vegetation and the landscaping of that retention area that abuts the RaceTrac Petroleum which are two separate parcels. At the time on April 3rd I made another site visit, and there had been nothing done to the property. The vegetation was dying off, and at that time we sent a notice of violation to RaceTrac due to the fact that they were the responsible parties who planted the vegetation and were supposed to maintain the proper maintenance of the shrubbery and the planting. We gave them a correction date of April 27th. On April 17th we discussed it with my director and at that time we decided that due to the relandscaping or retention easement that Page 17 August 23, 2001 was looked at by counsel that the property owners of the property, which would be Wendell Kramer, Sal Angileri, and Salvatore Grech were the property owners -- that they would be basically responsible for lack of the maintenance and checking the irrigation system that was out there. Okay. We sent them a notice at that time on April 17th for the violations of the maintenance and the watering of the property with a compliance date of May 18th. On April 26th I received a letter from Mr. Kramer who stated that he was in receipt of our Notice of Violation of the property being not taken care of, and at that time he pointed out that he had talked to Marco Bay Construction Corporation who was doing RaceTrac at the time and also helping with the planting of the trees, that he pointed out there were some -- several trees on the property at that time that didn't look healthy. They kind of looked like they were dead already. He said that the respondent would look into it and they would take care of any of the dead vegetation before they left and that any of the landscaping would be taken care of by them until the property was sold. I looked through all the records and all the minutes that we had for the property in the SDP and could not locate anything that confirmed that, that RaceTrac Petroleum and Marco Bay Construction would be responsible for any of the vegetation. I got a call from Julie Bowen who said the landscaper, GLM Landscaping from Lakeland, Scott Grimm who is the president and his landscaping advisor, Jimmy Vessels, will meet me at the property, and they will look at it to see if the vegetation is, in fact, lacking maintenance or watering. Or if there is a problem with the vegetation itself, that they will correct it. They did come out. We reviewed it. We looked at it. At that time they determined that the vegetation was just due to lack of maintenance, that it wasn't watered properly, that the watering system around the wall has a timer on it. The timer was not functioning and Page 18 August 23, 2001 there was nobody taking care of the problem, and they would not replace any of the dead vegetation because it was not their problem. I called RaceTrac again and got ahold of the representative, Julie Bowen, and informed her of what was going on. She said that due to that fact that her president of the company said that they would not replace any of the vegetation because the property owners were responsible due to the -- due to the written agreement that they had on the replacement of the vegetation. On June 11 th -- that's when I called. I'm sorry. On June 1 lth is when I called them. And at the time I also called Mr. Kramer on June 11 th and advised him that I did talk to RaceTrac and I did talk to the landscapers and that due to the fact of the maintenance and the lack of maintenance and not the watering of the property that the vegetation is dying off and that due to the owners of the property, that you were responsible to replace and maintain that property. At that time Mr. Kramer said that there was a problem with the agreement between RaceTrac and them, that they were never notified. They were never given the proper tool to regulate the watering system, that they felt that they weren't responsible for it and they were not going to do anything to the property because they would be blamed for the vegetation dying off. At that time, on June 9th, 2001, we sent a letter to -- letter to Mr. Wendell Kramer and RaceTrac to inform them of the CEB hearing coming up which was set for last month, and at that time we noticed that we were using the wrong folio number for the property which was the property next to it which we -- at the time corrected the folio number to the proper property which designates them as being the owners of the property, and nothing had been done at that time. On July 10th we received a call again from Ms. Bowen and their attorney, Chuck Olderman, who also pointed out that the retention agreement and the Item No. 6 states that all that of the property and Page 19 August 23, 2001 all the maintenance will be taken care of by the property owners, that their responsibility was met, and that they will not correct the problem. And at that time we sent a letter to state that we will have a hearing on this date here which we're having now for the violations. The staff recommendation for the violation would be that the CEB board order the respondents to pay all operational costs incurred in the prosecution of the case and to replace the dead vegetation; hydroseed the retention area which does not look like it was ever hydroseeded or it just died off; maintain the vegetation within 30 days by September 22, 2001, or a fine of $150 imposed for each day it is not in compliance. CHAIRMAN FLEGAL: I have some questions, and I'll start with maybe the easy ones. In the evidence you presented to us, tell me why you've cited RaceTrac for this violation. Reason I ask this question is in talking to us, you continually talked about this agreement and SDP so -- and yet you cited them for two sections of the ordinance that have nothing to do with either one of those. So I'm trying to get a handle on why you cited RaceTrac. MR. KENNETTE: The reason we cited RaceTrac was that they initially were the installers of the vegetation, the landscaping, the retention area. To come up -- to bring that up to code in the agreement that they had with the Angileri property which was subdivided that they bought the front portion of it to put their gas station and convenience store in, and that was a requirement for them to maintain the -- to plant the vegetation in the rear. At that time we feel -- we felt that they were in violation because it wasn't planted correctly and that the property -- that the landscapers may have used bad plant material, and we wanted them to review it, to look at it to see if, in fact, it was the landscapers that did not use the right material on it. CHAIRMAN FLEGAL: I guess where I'm having trouble is Page 20 August 23,2001 what you've cited them for is maintenance which is the owner of the property. RaceTrac is not the owner of the property. Okay? I'm kind of on the county's side on this one. The other section is --just has to do with size of plants and, again, I go back to you and talk about the SDP and the agreement, and SDPs are covered in another section. I think it's 3.3.11 which you didn't cite before. And you keep referring to the SDP, so I'm having trouble pulling these people in under the conditions that you've brought forth to us, and that's -- that's why I'm kind of asking you these questions. Why are you-- you cited the owner, and I'm having trouble getting anybody else but the owner at this point into this. MR. KENNETTE: Well, at the -- at the first it would be the reason that we did not -- we cited the two sections, the maintenance, the shrubs and the hedges that we thought the heighth of the shrubs in the front of the wall were not to the proper specification of the SDP. That's why we were using that as the shrub and landscaping -- the shrubs and hedges which is a 2.4.4.4 for the heighth, and the SDP showed the diagram of how the shrubbery and where they were supposed to be planted and the heighth and the numbers that were supposed to be used. And that's why we got the environmental specialist to look at it and which at that time she said they were planted somewhat to what the SDP said, but some of the shrubs were on the smaller size, but that could be due from a lack of them growing because they hadn't really started to flourish. CHAIRMAN FLEGAL: Okay. And everything that you submitted in the package, the pictures and that, all these plants seem to be along this wall. Is that a correct assumption from -- I reviewed from what you submitted? MR. KENNETTE: Roughly, 60 percent are along the wall and the front and the back section. There are a few to the rear of the property line which is on the -- on the hill of the retention area, there Page 21 August 23, 2001 are a few Maples and Cypress trees that are on that bank and are dead. CHAIRMAN FLEGAL: And the wall is, I guess, the track or-- yeah. Sixty-one runs from Pine Ridge back to Livingston, kind of like a corridor, I guess, typical estates lot. MR. KENNETTE: Yes. CHAIRMAN FLEGAL: And this wall is it back at Livingston, or is it on the side? Where is this wall in relation to this piece? MR. KENNETTE: This wall is exactly to the north section of Livingston Woods Road which would be the northern part of the RaceTrac. RaceTrac is in the southern section. The wall is on Livingston Wood Lane. CHAIRMAN FLEGAL: Okay. That particular piece of property is owned by whom? MR. KENNETTE: That particular piece of property is owned by Wendell L. Kramer, Salvadore F. Angileri, and Salvatore C. Grech. MR. LEHMANN: Investigator Kennette, is it code enforcement's position at this point in time that RaceTrac is a party to this case? MR. KENNETTE: At this point in time, no, we don't feel they are. MR. LEHMANN: Thank you. CHAIRMAN FLEGAL: Okay. Any other questions? MS. DUSEK: Just for my own clarification, RaceTrac was responsible for planting; the owner is responsible for maintaining? MR. KENNETTE: Yes, they are. MS. DUSEK: And, Ms. Rawson, if RaceTrac was involved with the SDP but the owner wasn't, the owner is still responsible for whatever those requirements were? MS. RAWSON: Well, I think the county attorney properly Page 22 August 23, 2001 pointed out under our Land Development Code you can -- you have to look to the owner if there is a violation, and if there is a side contractual agreement between other parties I believe she instructed you that you are a quasi-judicial board and not a legislative body that gets into the decisions as to the interpretations of contracts. CHAIRMAN FLEGAL: Any other questions? Thank you, sir. MR. KENNETTE: Thank you. CHAIRMAN FLEGAL: All right. The three of the four parties, Mr. Kramer, Mr. Grech, Mr. Angileri -- whichever one would like to come first, one or all. (The oath was administered.) CHAIRMAN FLEGAL: State your name, sir. MR. KRAMER: My name is Wendell L. Kramer. I am one of the owners of the Angileri PUD. In 1997 we entered into a contractual agreement with RaceTrac Petroleum. We went through the rezoning process with them, and at that time the county put some unusual restrictions on this particular project for some unknown reason. We're not quite sure at this time why. They required that RaceTrac do certain things before they would be allowed to participate in business. So that's why you keep hearing RaceTrac involved in the building of-- or having to do with landscaping on our property or the rear property, because in the contractual agreement we have with RaceTrac they were responsible to put up a wall and they were responsible to do the landscaping according to county code. Now, these things are cited as violations as not being planted correctly. They weren't planted correctly when they were approved whenever some inspector had to look at them, I guess, to give RaceTrac the approval to open for business, because it was part of the contingency that they had to do these things before they could operate for business. That's the part that has the owners confused, Page 23 August 23, 2001 because we were suddenly cited for things that were incorrect, but they were also incorrect when they were planted at when it was Racetrac's responsibility. Now the owners are being cited and RaceTrac is bowing out because they don't want to have any responsibility for things that they did incorrectly. Some of the things that I'll go over -- and I would like to have you ask questions if you want to -- they -- on December 13th I was at the job site when RaceTrac was under construction, and I talked with the superintendent at that time. His name was Marco Bay Construction, Leonard Burkhardt his name is. At that time I discussed with him that there were dead trees that had been planted along the wall. This was before they ever opened. He said, "Don't worry about it. The landscaping people will be coming in. They will be replacing any dead trees and take care of anything that has to be replaced." I took that as his word of doing that. They claim that the trees died of lack of water. The water meter for the watering of those things, the trees and landscaping back there, is in Racetrac's name, still is. I haven't -- we haven't accepted responsibility for that because they have a 90-day period where they would replace dead vegetation. They're claiming they weren't watered properly. Well, that isn't the owner's fault. It's their fault. They were in control of the water meter and the watering of the vegetation back there. I requested after it was brought to my attention that they provide me with the remote control. I don't know if you understand how it works with the setting the timer on sprinklers without electricity. They did that two days ago. I finally got that in the mail where they sent that to us. So even if we would have taken responsibility for the watering of those, we didn't have the apparatus to even control or even to water accordingly. We had to set the timer according to county code. Certain days you can water and certain days you can't. Page 24 August 23, 2001 We didn't even have the ability to do that. RaceTrac was supposed to in the contract construction and installation -- they were to cause to be constructed masonry wall, trees, shrubs along Livingston Wood Lane as required by Section 3.4 of the Angileri PUD. These were to be done in accordance with county code. They were not. They were not. MR. LEHMANN: Mr. Kramer-- Mr. Kramer, sir? Over here. MR. KRAMER: Coming out of the speaker back behind me. MR. LEHMANN: Do you have any evidence -- any written evidence of Racetrac's incorrect work being installed? MR. KRAMER: Repeat that again. MR. LEHMANN: Do you have any written evidence that Racetrac's work was incorrectly installed? MR. KRAMER: That what was incorrectly installed? CHAIRMAN FLEGAL: Let's just stop a minute. First of all, our major problem is you have talked about your contractual agreement with RaceTrac. This board has no power over that. We're only interested in the ordinance. That's our only power. MR. KRAMER: We realize that. CHAIRMAN FLEGAL: Okay. So unfortunately that -- you two people have a problem on a contract. Regardless of when you did it, we can't help you. What we're probably looking at -- and I'm only one of seven -- is the violation of the code that you were cited for we need to make some kind of determination. If what you're telling us -- and I believe it is probably the truth, we may try to get you some time to get this corrected so that you two can do your legal battle somewhere else, because we can't do that for you. What we're probably going to do is find as the ordinance says the owner is responsible. Unfortunately, you are the owner, understanding this contract that you have that's in dispute. Okay? I fully understand Page 25 August 23, 2001 that part of it. Unfortunately, I just can't do anything about it because I don't have any power. So you need to understand what we're here to do. We're only here to find that there is or is not a violation of the Collier County ordinance. What caused that violation in some cases will affect what we decide, and in this case you probably have a good reason that this happened; we just can't do anything about it. We can give you some time in getting it corrected that may help you settle it between the other parties. Okay? So you need to understand that because you may be looking for us to help you but, unfortunately, there's no way we can help you. MR. KRAMER: Then would it be too much to ask that there be some time involved for us? CHAIRMAN FLEGAL: When we get to that stage, I think -- we haven't got that far yet, but when we get there, I think what you hear us say among ourselves, hopefully, will be to give you time to do that. I can't guarantee that right now, but hopefully that may happen. MR. KRAMER: The unfortunate situation is that it's a very difficult area to maintain. You've got undeveloped property on this side. You've got undeveloped property on that side, and our PUD isn't finished yet. Two-thirds of our PUD is undeveloped. It's just raw land. Now, we're trying to maintain a small area around all this where weeds and stuff are growing, and the sprinkler system isn't put in correctly. Things are planted too close to the wall. There was no proper matting put down to keep weeds from growing. It's almost -- the gentleman there from Collier Irrigation yesterday looking at it, and he said it would be impossible to maintain this because of it's planted wrong. But the thing is we didn't do it. They did it under a contract, and they were supposed to be doing it according to county code. Now the county is saying we can't help you even though it was Page 26 August 23, 2001 done wrong. CHAIRMAN FLEGAL: Yeah. I understand that part of it, and I have empathy for you, but you have to realize what we're charged with the authority to do, and it's very limited. So I think your recourse is somewhere else, unfortunately. MR. KRAMER: Okay. I want to hear what you asked but -- MR. LEHMANN: Again, I just wanted to say I agree whole- heartedly with our colleague, our chair. He said it very succinctly what this board's responsibilities and abilities are. We are very limited in what we can do. I sense that this is very much a civil matter between the two parties as opposed to a matter that this board can actually rule on. MS. SAUNDERS: Peter, I'm concerned with just one thing that I heard. I agree with what you're saying. If the county approved the landscaping when it was put in by RaceTrac, then that concerns me because we do have a permit and an occupancy permit that was given there, and that does give the county some accountability or responsibility, I believe. CHAIRMAN FLEGAL: Not -- it's not to this board. Unfortunately, that's something that they need to address, again, somewhere else. You find nothing in the ordinance that says the county's going to cite themselves for doing something wrong. I mean, everybody-- MR. KRAMER: Well, we realize it's a different division or different department of the county, but that's our big concern right there is that these things were done incorrectly. CHAIRMAN FLEGAL: Unfortunately. MR. KRAMER: They were approved by the county for them -- CHAIRMAN FLEGAL: That's, again, something we can't address to get you out of that situation. We can somewhere in our mind when we make a determination -- when we get to that stage -- Page 27 August 23, 2001 maybe think about that to give you some time to resolve this in this other matter which may be civil which I think is probably the only recourse. MR. KRAMER: One of the reasons we object to Racetrac's Motion to Dismiss is the fact that Allen Kennette and the different members of the code enforcement team gathered a lot of data that was very favorable, we feel, for us because of-- and that's why we didn't want the county to be completely out of it in the -- CHAIRMAN FLEGAL: But you must understand for us, again, the two paragraphs that you were cited for really directs everything to the owner, and you're the owner of that piece of land, not RaceTrac. So we can't do anything to them. We may sympathize with you, but that's to be done somewhere else. Okay? So as long as you understand that. I'm not trying to get out of anything, but you need to understand where our power lies, and it's very limited. MR. KRAMER: We don't have any problem with that, and we understand that as long as there would be provision made to give us time to get this resolved before we start getting fined and they start piling up, because it's a very difficult situation to maintain. CHAIRMAN FLEGAL: I understand, and hopefully when we get to that section of our rulings, you'll hear us talk about it, because we're going to do that in the public right here. Once we hear everybody's side, I'll close the public hearing section of the case, and we will debate among ourselves as to what to do, and you'll hear that. MS. DUSEK: Mr. Kramer, I have a question. Your PUD, what's your time frame for development? You said that right now right around that area that is required to be maintained that it's almost impossible to maintain. What do you have to do to make it possible to maintain? What time frame? MR. KRAMER: I'm glad you brought that up. We are in the plan right now to develop the remaining part of the PUD, and when Page 28 August 23, 2001 we do that we would have completely removed everything that they put in there and relandscaped the whole thing so it looks attractive and the way it should be done. That's what our plans would be. We're talking to some people right now about putting an office park or something like that in there. And it would be all redone. MS. TAYLOR: Then why don't you just remove it now? MR. KRAMER: Pardon? MS. TAYLOR: Why don't you just remove it now? MR. KRAMER: Because -- because when you do construction, you can do a lot of damage to things around it, and when you're constructing a large project, you usually wait and do the landscaping at the end. MR. LEHMANN: Do you have a time frame for your completion of the PUD? MR. KRAMER: We fully expect that within two years it would be completed, maybe sooner. MS. ARNOLD: I'd like to mention something for the board. The particular section that we cited them for is maintenance. And just to answer Ms. Taylor's question, they wouldn't be able to remove the vegetation and not replace it because that vegetation has been planted there as a requirement that there's a buffer between the commercial area and the residential adjacent. Now, the complaint stemmed from the residents to the north of this particular property. CHAIRMAN FLEGAL: Any other questions for Mr. Kramer? Thank you, sir. Would any of the other owners like to say anything? MR. KRAMER: Thank you very much. CHAIRMAN FLEGAL: Thank you, Mr. Kramer. MR. GRECH: Salvatore Grech. CHAIRMAN FLEGAL: Excuse me, sir. We have to swear you in to get you on the record. The oath was administered.) Page 29 August 23,2001 MR. GRECH: Yes. Salvatore Grech. Thank you for hearing us, first of all. We would not be here today if the county when they came out to that property originally would have noticed all the violations and all the things that were done wrong and made RaceTrac at that point in time correct it, correct the sprinklers, correct the plants and the trees. We wouldn't be here today. We as taxpayers and property owners depend on that man to make that decision. We can't make that decision. If he makes the wrong decision, at that point in time RaceTrac would have been fully responsible and financially to repair and replace everything that was out there. We depended on a man to make the right decision. Now we're to the point where, obviously, he did not make the right decision. So I don't know how the county as a code enforcement bureau can put the responsibility on us when responsibility should have been on him making the right decisions at the right time. CHAIRMAN FLEGAL: I hear what you're saying, but in the code and the way it's written and what you were cited for, unfortunately, specifies the owner of the property that somebody may or may not have given you good or bad information. MR. GRECH: It's the county. CHAIRMAN FLEGAL: It's not -- it's not our purview to make that determination. It's good information to give us to think about, but we're charged with when somebody is cited for a paragraph or a couple of paragraphs or a section with what that says and if-- are you in violation or aren't you. It's really black or white. How you got there is part of when we get to our determination saying, well, he got there because ... So we ought to give him a little -- you're going to hear that, hopefully, when we debate about it. It's good information but not something we can sit here and say, "Gee, that's okay. We'll throw this case out because the county messed up." I don't know if they did or didn't. Page 30 August 23, 2001 MR. GRECH: I really don't want you to throw it out, and we want our property to look right. I just want the responsibility to go to the right parties. CHAIRMAN FLEGAL: And right now under the code the responsibility is the owners, and we can't change that. That's the way it's written, and that's all we can judge it on. MR. GRECH: Even when the code enforcement officer tells us that at the very beginning it was done wrong? CHAIRMAN FLEGAL: Unfortunately, sir, yes. MR. LEHMANN: Mr. Grech, you may have a private issue between yourself and RaceTrac. MR. GRECH: My private issue is between us and the county who approved it at the very beginning when it should have been prepared day one. That's my issue. Not with anybody -- not with RaceTrac. My issue's with the county who said it was okay. I don't know if it's okay or not. Wendell doesn't know. Sal doesn't know. All we know is that the county said it's okay, so it must be okay. MR. LEHMANN: I understand what you're saying. As our chair had mentioned, it's not within the purview of this board to address that particular issue. CHAIRMAN FLEGAL: All right. Hopefully, we'll come to some decision that will be good for everybody. MR. GRECH: Thank you. CHAIRMAN FLEGAL: You have to give us a chance and keep your fingers crossed. MR. GRECH: I will. Thanks a lot. CHAIRMAN FLEGAL: How about your other member; does he wish to talk? MR. KRAMER: No. CHAIRMAN FLEGAL: Anybody else? Attorney for RaceTrac, sir? Page 31 August 23,2001 MR. BROOKER: Thank you. Clay Brooker, again. Just for the record, we all have to object to any reading of the contract or any consideration of this board of the contract. I would like to make a distinction. There's been a lot of talk about installation. That's not what we're here about. We're here about maintenance, and as a matter of fact there has been no dispute over the ownership of the property. Thank you. CHAIRMAN FLEGAL: We understand that. Thank you, sir. Any other comments from anybody? The county? We've heard the county attorneys. MS. ARNOLD: We failed to swear in Investigator Kennette. So if he can be sworn. MS. RAWSON: And would the court reporter swear him in and ask him if his testimony as previously given is true to the best of his ability. (The oath was administered.) MR. KENNETTE: Yes, it was. And I'd just like to point out that we are going for our -- our contention is it's the maintenance of the property, not so much the landscaping. CHAIRMAN FLEGAL: Any other comments? MR. LEHMANN: Mr. Chairman, would you like to proceed with the motion or the order of the board? CHAIRMAN FLEGAL: Well, first -- just a minute. We have another comment. Yes, sir. MR. GRECH: We don't have any trouble with the maintenance of it. As long as it's done right by RaceTrac, we'll maintain it. CHAIRMAN FLEGAL: We understand that, sir. Thank you. Okay. At this time I'm going to close the public hearing portion. I think before we do the order of the board it would be prudent to act on the Motion for Dismissal. MR. LEHMANN: Mr. Chairman, I would reiterate my previous Page 32 August 23,2001 motion that the Motion for Dismissal be granted. MS. DUSEK: Second. CHAIRMAN FLEGAL: We have a Motion to Dismiss RaceTrac from these proceedings and second. Any further discussion? MS. SAUNDERS: I have a bit of discussion. I'm sorry. CHAIRMAN FLEGAL: Okay. MS. SAUNDERS: I need to go against that and the reason being that the county approved the landscaping by RaceTrac. I think that still keeps them involved in the entire issue. Even if they are no longer the property owners, they are a party to it in my mind because they got the permit for it. CHAIRMAN FLEGAL: Unfortunately, they don't meet the requirements of the two sections cited so ... MS. SAUNDERS: ! understand. I'm still going to vote this way. CHAIRMAN FLEGAL: Any further discussion? All those in favor signify by saying aye. MS. GODFREY: Aye. MR. LEHMANN: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MS. TAYLOR: Aye. CHAIRMAN FLEGAL: Aye. Those opposed? MS. SAUNDERS: Aye. CHAIRMAN FLEGAL: Six to one. Motion to Dismiss is granted from Racetrac's standpoint. Okay. Now, as to the current owners of the property. MS. DUSEK: I'd like to make a motion. CHAIRMAN FLEGAL: Yes, ma'am. MS. DUSEK: That in the case of the Board of County Page 33 August 23, 2001 Commissioners versus Wendell Kramer, Salvadore Angileri, Salvatore -- Salvatore Grech in the CEB Case No. 2001-069 that there is a violation. That the violation is of Sections 2.4.3.7 and 2.4.4.4 of Ordinance 91-102 of the Collier County Land Development Code, and the description of the violation is failure to properly maintain and upkeep the required minimum landscaping. CHAIRMAN FLEGAL: Okay. We have a motion that there, in fact -- MS. TAYLOR: I'll second it. CHAIRMAN FLEGAL: -- a violation. We have a second. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Now the order of the board. MR. LEHMANN: Opposed? CHAIRMAN FLEGAL: (No response.) CHAIRMAN FLEGAL: I'm sorry. Opposed? Thank you. I heard everybody say aye, I guess. Order of the board. MS. DUSEK: I'd like to make some comments. I think we should give quite a bit of time to this and that the fines should be probably around $50 and not 150. I think that the owner of this property is well intended, and I think that there is some responsibility -- although we can't legally give it to RaceTrac; therefore, in my comments, not necessarily making a motion, I think we should give maybe a six-month time frame and a $50 fine. CHAIRMAN FLEGAL: Any other comments? MR. LEHMANN: Ms. Arnold, was there a reason staff recommended 30 days and $150? I'm sure there was. MS. ARNOLD: Well, we have been in communication with the property owners as well as RaceTrac since March. They're well aware of the requirement to maintain the irrigation out there. They Page 34 August 23,2001 just need to maintain the vegetation and replant some of those that have failed to maintain since the installation, and I think we felt 30 days was a sufficient time to get that landscaping replaced. MR. LEHMANN: My comments for board's consideration. Respondent has indicated it's a two-year buildout for his PUD, their plan. Also if we extend to six months, we're probably back in the dry season, which is not a good time to be planting. I would recommend following staff's recommendation. MS. TAYLOR: I agree. CHAIRMAN FLEGAL: I guess my only comment is based on the testimony given and understanding that there was factors, i.e., disagreement and such that seems to be under debate which we have no authority over, I realize we could give a short period of time and a fine and they could come back and ask for it to be abated. But I think in all fairness they said they just now got a way to actually water the property because it was controlled by somebody else. I don't have a problem with giving them a long period of time. The six month I think is fine. The $50, again, until they get this all settled, which it may go away quicker than we think. MS. TAYLOR: We've gotten into a, quote, six-month trap here that's going to come back and bite us in the you know what. We need to stop this six-month thing. This can be done in a much shorter period of time than six months. MS. DUSEK: Let me give part of my reason for the six-month time frame. They already have the irrigation system there, so watering is not going to be the problem, providing they can keep this remote in their hands. This may allow them some time to clear the property around it, to do whatever has to be done in order to keep this property available to be maintained. Right now the testimony was that there are a lot of weeds and plants and it's difficult to maintain this property, so I think this might allow them some time to clear Page 35 August23,2001 around it and make it easier. MR. PONTE: The staff recommendation, actually, has two points to it, and maybe we ought to consider when coming up with time frame and the fine to have two different views on this. One of the recommendations is that the respondent replace the dead vegetation, and the other is that they maintain vegetation. Well, it's possible to maintain the existing vegetation and not to go forward with the replacement until such time as their dispute is settled with RaceTrac. So you would have perhaps -- say you start maintaining it as of today whatever's there, and the replacement is another issue. MR. LEHMANN: As my colleague has pointed out, the water source is available now, so it can be irrigated now. I consider it unfair for this respondent to have a six-month period of time when the general public and all other respondents that we deal with are given 30 days approximately, so, again, I support staff's recommendation of the time frame anyway. The fine is open to discussion, but I think 30 days is more than sufficient based on the testimony we've received. MS. TAYLOR: I agree. CHAIRMAN FLEGAL: Okay. Please keep in mind that even though they have the remote to control the water, the actual water meter is owned and on someone else's property who can shut it off at any time. MR. LEHMANN: But that's not for consideration before this board. CHAIRMAN FLEGAL: I understand, but that you're saying that they can maintain it because the water is there, and you need to tenure that with they do not control the water. MR. PONTE: No. But they can maintain it because the vegetation is there and they own the property. How the water gets there is not the issue quote. Page 36 August 23, 2001 CHAIRMAN FLEGAL: Well, it's what was stated by the county, that it's not watered properly so ... MR. LEHMANN: At this point in time, we're probably in the best period of time during the year to actually plant with the least requirements for watering or irrigation of any sources. So I feel that going into the six-month period we're just putting ourselves into a bad situation and unfortunately for the respondents placing them in a bad situation by the board trying to be kind to them in a sense. I think at this point in time -- and I restate it. I think the time period of 30 days is more than sufficient; certainly no longer than 45 or 60 at the most. MS. DUSEK: We don't automatically give every respondent 30 days. I just wanted to clear that up. We take it on a case-by-case issue. CHAIRMAN FLEGAL: Okay. Any further discussion, or do we have a motion for an order? MS. SAUNDERS: I would like to say that I like George Ponte's suggestion of splitting it, frankly. Get the maintenance done with what's there right now. Perhaps give them 60 days to see if they can salvage any of the property-- any of the vegetation there so they are not required to spend more money and throw it away in two years. So I would strongly support 30 days to maintain the existing vegetation, 60 days to replace any vegetation that must be replaced at that time. MS. DUSEK: Michelle, let me ask you, what do you mean by maintain? What will be your determination if you go back in 30 days and check? What is your criteria for maintaining? MS. ARNOLD: To maintain the vegetation alive. I mean, we've got dead vegetation there that-- MS. DUSEK: So in 30 days if they water-- in 30 days do you think that's going to revive the vegetation that's there now? Page 37 August 23, 2001 MS. ARNOLD: No. There's some that's not -- you can't revive it. They have to replace it. MS. DUSEK: Okay. That part, the part that they have to replace -- we'll set that aside, but the part that's there now and needs to be maintained within 30 days, when you go back out to look at that vegetation, what are you expecting to see? MS. ARNOLD: Growth as well as maintaining the grass that's there. They need to cut it. Just like we would require any other property owner when they plant something as a part of minimum requirements to cut and trim and mow and -- MS. DUSEK: If you see -- MS. ARNOLD: -- and water. MS. DUSEK: What's concerning me is the 30-day maintaining looking at the vegetation. When you say "growth," if you see just a little bit of growth, then that's going to assure you that it's been maintained, the vegetation that's alive now? MS. ARNOLD: Well, we're probably not going to want to continue -- we're hoping that the property owners will water the vegetation and-- and-- you know, maintain it in terms of trimming it and cutting it on a continual basis. I'm sure the property owners to the north of us will let us know if it's not being continually maintained, because they were the ones that initially forwarded the information to the county with respect to the fact that there was no maintenance of that vegetation. So we would in 30 days go out to see -- depending on what you recommend. If you require them to plant, we'd go out to determine whether or not they replanted the dead vegetation and to see whether or not the vegetation that remains there is healthy. MR. LEHMANN: Mr. Chairman, I would move that we move to an order of the board, and I would make a motion that the CEB order the respondent to pay all operational costs incurred in the Page 38 August 23, 2001 prosecution of this case and to replace the dead vegetation, hydroseed the retention area, and maintain the vegetation within 30 days, which would be September 22, 2001, or a fine of $150 to be imposed for every day of noncompliance. MS. RAWSON: 2002. MR. LEHMANN: I'm sorry? MS. RAWSON: 2002. I think you said one. In 30 days you said. MR. LEHMANN: Yes. MS. RAWSON: Okay. MR. LEHMANN: Let me revise that to a fine of $100 per day. MS. TAYLOR: I second that. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? MS. DUSEK: I think that's too stringent. MR. LEHMANN: In what term? MS. DUSEK: In both the time frame and the fine. MR. PONTE: And I think there are two issues. One is maintenance and the other is replacement, and the replacement issue is totally different. It has to be separated. MS. DUSEK: I agree. MS. TAYLOR: Well, if they're dead, they're dead. MR. PONTE: Yes, I know. It's not the responsibility at this point. We have an action going between the respondent -- MS. TAYLOR: But that's not our problem. MR. PONTE: I know. MS. TAYLOR: This has to be brought into code regardless, and the owners are responsible. MR. PONTE: That's correct. MS. DUSEK: I think replacing requires a longer period of time, for sure. Page 39 August 23, 2001 CHAIRMAN FLEGAL: We have a motion and a second, and I get the opinion that the motion and second is not going to be revised. MR. LEHMANN: Well, I certainly don't mind revising the fine section, but I'm very much opposed to extending the time period out, especially into a six-month period of time. If the board would like to see a lower fine, I'd be happy to listen to it, but certainly the time period I feel is more than sufficient. MS. DUSEK: So your time period is for replacing and maintaining? MR. LEHMANN: Yes, ma'am. It is very much like we do for many, many cases. CHAIRMAN FLEGAL: Any further discussion? Okay. We'll vote on the motion which is 30 days and $100. Was that it? That was the seconded motion, and I didn't hear anybody revise it. All those in favor signify by saying aye. MS. TAYLOR: Aye. MR. LEHMANN: Aye. MS. GODFREY: Aye. CHAIRMAN FLEGAL: All those opposed. No. MS. SAUNDERS: No. MS. DUSEK: No. MR. PONTE: No. CHAIRMAN FLEGAL: Okay. Show of hands for ayes, please. One, two, three. Show of hands for the nays, please. One, two, three, four. Let's try another motion since that failed. MR. LEHMANN: At least it got the ball rolling. CHAIRMAN FLEGAL: Would it be acceptable -- I'll just make a comment. I don't want to make the motion, but I have no problem with the amount of the fine being $100. I, too, am looking at the time period hearing everybody's comments about six months. Now, I Page 40 August 23, 2001 understand the growing season. I think to give the respondents a fair chance of doing something. They can always sue to get their money back. I understand all that stuff, that maybe a 60-day period might be a little more tolerable to some of the people who voted no. MS. SAUNDERS: I would accept that. I think that's a little fairer anyway. MR. LEHMANN: If that is the motion, I would second that motion. MS. SAUNDERS: So -- so 60 days and keeping the $100 fine per day at that point. MR. PONTE: I think the $100 is excessive for this situation and that we should consider reducing that. MS. DUSEK: I do too. MR. PONTE: Our maximum fine is $250, and $100 for something that's in general dispute I think is far too high. MS. DUSEK: I agree. MS. SAUNDERS: I would be happy to amend my motion to $50 per day. MR. LEHMANN: I would second the amended motion. CHAIRMAN FLEGAL: Sixty days and fifty dollars. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: (No response.) CHAIRMAN FLEGAL: Any opposed? Motion carried. Gentlemen, you know -- do you understand what we've done? Okay. RaceTrac is out of this, but for the three owners we've given you 60 days to bring your property into compliance with the code, you know, by replacing dead plants, watering, cutting the grass, whatever it is you have to do. If you don't do that in 60 days, you're going to start being fine $50 a day until you do that. So I guess what yOu need to do is two things. Try Page 41 August 23, 2001 to resolve your problem with RaceTrac as quick as possible, and while that's moving forward you need to be getting your ducks in a row to get the property done before the 60-day period and the fines start kicking in. I mean, you could let the fine kick in and come back to ask us down the road and ask us to reduce it because you finally settle with RaceTrac. You're allowed to do that, but I would work at trying to get your property in line. You can always add, I guess, whatever cost to any suit you have with RaceTrac. You-all can work that out, but what we're giving you is 60 days. At the end of 60 days, if the county says the property still looks the same, you're going to get fined 50 bucks for every day until you solve it, and that just keeps mounting. And then what we're going to do is we're going to issue a lien against the property in the amount of the fine. And that fine will keep growing, and the lien will keep growing, so if you ever go to sell it, you're going to have to settle the lien with the county first. Okay? Best we can do for you, gentlemen. MR. LEHMANN: Mr. Chairman, could I recommend a break for the court reporter? CHAIRMAN FLEGAL: Yeah. I think we need to give the court reporter -- let's take five minutes, please. MS. ARNOLD: Can I just ask for one modification on the agenda real quick, because this is going to be a quick item. We would like to request that Item No. D under public hearing, Board of County Commissioners versus Michael O. And Judith F. Frye, be continued for 30 days. I discussed this matter with the representatives for the owner, and he has no objection and would like to waive his advertisement rights -- I mean, notification. We would rather do it that way. CHAIRMAN FLEGAL: Board have any objection to continuing the case at the county's recommendation for 30 days or until the next meeting? Page 42 August 23, 2001 MS. SAUNDERS: Sure. CHAIRMAN FLEGAL: Do I hear a motion to do that? MR. LEHMANN: So moved. MS. SAUNDERS: So moved-- oops. Second. CHAIRMAN FLEGAL: We have a motion and a second to continue the Frye case until our next meeting. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Let's take five minutes, please. (Brief recess taken.) CHAIRMAN FLEGAL: The next case under public hearings is Case No. 2001-070, Valsez, Soto, and Psarson. MS. ARNOLD: Pearson. There was a typo. CHAIRMAN FLEGAL: Pearson, okay. MS. POWERS: Janet Powers for the record. This is a violation of Sections 2.6.1 -- excuse me, 2.6.7.1.1 of Ordinance No. 91-102 Collier County Land Development Code. Description of the violation, illegal storage of an unlicensed inoperable vehicle upon residentially zoned property. Location for the violation is 300 Areca Avenue, Naples, Florida, more particularly described as Folio No. 0000071782000001, Sabal Shores, Block E, Lots 3, 4, 5, and 6. Name and address of the owner or person in charge of the location where the violation exists is Valsez, Blas; Soto, Roberto V; and they are at 300 -- 3000 Areca Avenue, Naples, Florida 34112. Robert T. And Mirna P. Pearson, registered agents, 3000 Areca Avenue, Naples, Florida 34112. The date the violation was first observed was April 23rd, 2001. Date the owner or person in charge was given notice of the violation is 4/23/01, 5/9/01, and 6/7/01. Date by which the violation's to be corrected, 5/3/01, 5/19/01, and 6/15/01. Date of the reinspection, August 22nd, 2001. The results of the reinspection, the violation Page 43 August23,2001 remains. MS. ARNOLD: I'd like to make a correction for the address of the agents. The address of the agents is actually 2031 Swenson Run, Naples, Florida 34105, and that's where the notice of violation was sent as well. We'd like to enter the packet into evidence as Composite Exhibit A, if there's no objection. CHAIRMAN FLEGAL: Is Mr. Valsez or Soto or the Pearsons - - any representatives here from those people? I need 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.) MR. KELLY: Good morning, Chairman, members of the board. John Kelly, Collier County Code Enforcement investigator. This case is brought to you today as a proactive patrol case which was initiated by me on April 23rd, 2001, having observed a blue Datsun 200 SX with no tags displayed in a tight parking lot which is a common parking area serving approximately 10 to 12 units on four lots at this location. At that time I had obtained the vehicle identification number for the vehicle from the dashboard. I contacted the motor vehicles department. The identification number was not on file, subsequently posted the notice of violation and requested the same be mailed to the property owners at the address of record which was the same as the violation address, 3000 Areca Avenue. The complaint stated on that notice of violation was April 3rd. That mailed notice of violation Page 44 August 23,2001 subsequently came back to our office on May 16 noting by the postal service "addressee unknown." On May 9, 2001, I rechecked the location observing that the violation remains. As I had received the notice of violation back, I effected an official posting of a notice of violation at 3000 Areca Avenue and the Collier County Courthouse with a compliance date of May 19, 2001. I was unable to obtain telephone numbers for either of the listed owner of the property by means of the published telephone directory or information 411. On April 22nd, 2001, returned to the location at the ten-day mandated time for an official posting that had elapsed, found the violation continued. I had spoken to residents about the complex. The majority did not speak English. Those that did it was very limited. I was unable to obtain any information on the property owner, how rent was paid, or who the vehicle owner or operator might be. On may 23rd, 2001, ascertained the property to be a registered rental dwelling unit with our department, meaning that the owner had assigned an agent and that agent had assumed some liability for the property as per a signed agreement. That's a part of the registration process. And so they were notified by notice of violation which came back green card signed by -- I don't think it was either Robert T. Or Mirna P. Pearson, but it was a Pearson. I was unable to read the first name. The two telephone numbers that we had provided to us on the rental registration application both came back "out of service." So I was unable to contact them. I had made a trip to their residence, and that failed as well. Having had no contact from either owner, being unable to obtain any information on the vehicle, and being unable to contact the rental agents, I proceeded to request that the case be scheduled for hearing. An official posting of the notice of hearing was effected at the Page 45 August 23, 2001 property on August 16, 2001. Maria Cruz-Acevedo effected the official posting at the courthouse. And my last recheck of the property was August 22nd. Observed the violation remained. I checked the currency of the address with the property appraiser's office. Still found to be 3000 Areca Avenue for which it is not believed they reside there and continue to be unable to make any contact. Code Enforcement is requesting that the board order the respondent to pay administrative costs, repair the vehicle, and obtain current valid tags to keep the vehicle stored outside, or to order the county to abate the violation by having the vehicle towed. MR. PONTE: Inspector Kelly, this would meet the definition of an abandoned vehicle? MR. KELLY: It -- actually, that would be a determination you would have to make. They weren't cited for abandoned property. There is no definition that I know of for abandoned vehicle. An abandoned -- abandoned property would have no value other than salvage. I cannot say that the car has absolutely no value. CHAIRMAN FLEGAL: I have a problem, Mr. Kelly, in that you're citing two individuals and what you're calling a registered agent. My memory serves me in discussions with your code enforcement director and county attorney's office that these agents are not liable for the owners deals. They are just people who are supposed to take letters and information from code enforcement and pass them on. Has something changed? MS. ARNOLD: No, that's correct. MR. KELLY: That might be my error. CHAIRMAN FLEGAL: So these people aren't supposed to be part of this if they are just rental agents? MS. ARNOLD: We provide you with information with respect to who all the parties that were notified of the violation. The rental Page 46 August 23, 2001 agent as well as the property owner was notified of the violation. The investigator misspoke with respect to the liability assigned to the agent. CHAIRMAN FLEGAL: But you're bringing before this board these people as respondents, and I'm trying to figure out why. They're just -- I mean, are we now bringing all rental agents, attorneys who act -- everybody's going to be brought before us now because they are agents of somebody? MR. KELLY: If they are to receive correspondence, they need to be named. MS. ARNOLD: All parties that are provided notice are named as respondents. MS. DUSEK: But can they be cited? MS. ARNOLD: We're not asking you to cite them in our recommendation. Our recommendation would be against the property owner. CHAIRMAN FLEGAL: This says Board of County Commissioners versus them, so -- I mean, you're the one that brought the case to us. I'm trying to get a handle on who you want us to make determinations against, and I don't understand agents being cited for something. MS. ARNOLD: And my answer-- my response to the board would be that we're asking the board to cite the property owners. MS. DUSEK: So not the agents. MR. LEHMANN: As clarification, the property owners are Valdez and Pearson; is that correct? MR. KELLY: I believe it's Blas Valsez and Roberto V. Soto. MR. LEHMANN: You say Roberto Soto is the owner, because in the statement of violation he's not named as the owner of the property. MS. ARNOLD: Yes, he is. Page 47 August 23, 2001 MR. LEHMANN: Yes, what? MS. ARNOLD: Yes, he is on the notice. MR. LEHMANN: Item No. 4 on the statement says the name and address of the owner or person in charge. Oh, I see. Okay. I apologize. So who are we citing? MS. DUSEK: The owners. MR. LEHMANN: Which would be who? MS. ARNOLD: The Sotos and the Valdezs. MR. LEHMANN: Thank you. I'm slow on the upswing. CHAIRMAN FLEGAL: Well, I guess -- you know, I'm still confused, but that's okay. Your letter of statement of violation and request for hearing is -- I just find it difficult dragging in all these agents. Okay. Any more questions for Mr. Kelly about the violation? MS. ARNOLD: If-- if you want clarification, similar to a property dealing with renters, we notify all affected parties. We wouldn't necessarily be asking you to cite the renter in a particular case, especially if it was a case dealing with that unit and the owner's requirement to improve that unit. But we have to and it's noted also in your particular -- in your rules and regulations that we do cite affected parties. CHAIRMAN FLEGAL: But the renters may be the violators. It may be the renter's car. You don't know that. You didn't cite the renters here. MR. KELLY: There's no way to determine ownership of the vehicle. Perhaps the sheriff's office has some way to obtain unknown numbers for me, but I have no way of knowing. MR. PONTE: And you did make inquiries, and none of the tenants had anything to do with the car? MR. KELLY: None of them confess to owning the car. CHAIRMAN FLEGAL: Any other questions for Mr. Kelly? Thank you, Mr. Kelly. Page 48 August 23,2001 I would suggest that the first thing the board do is remove the Pearsons from this case, period, then get on to the -- is there, in fact, a violation? MS. DUSEK: I would like to make the motion that in the case of Board of County Commissioners versus Blas Valsez and Roberto Soto in the case of CEB 2001-070 that there is a violation and that the violation is of Section 2.6.7.1.1 of Ordinance 91-102, the Collier County Land Development Code. The description of the violation is illegal storage of an unlicensed inoperable vehicle upon residentially zoned property. MR. LEHMANN: I'll second that motion. CHAIRMAN FLEGAL: We have a motion and a second. There, in fact, exists a violation against the owners of the property, Mr. Valsez and Mr. Soto. 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. PONTE: Follow staff recommendation. MR. LEHMANN: Is that a motion? MR. PONTE: I think the question was -- I'll make it a motion. MS. TAYLOR: I'll second it. MR. PONTE: Why not. I'll make a motion we follow staff recommendation? CHAIRMAN FLEGAL: You need to make a motion rather than just say that so that our attorney knows what our motion is, please. MR. PONTE: I'll make a motion that the county remove the vehicle and assess the cost to the property owner, if the property owner can ever be located. CHAIRMAN FLEGAL: That's okay. We can assess it to the Page 49 August 23,2001 property. How about the -- would you add to that pay for the prosecution costs? MR. PONTE: Yes. Yes. And, of course, pay for the prosecution costs. MR. LEHMANN: In your motion is there any time frame, or is this an immediate action -- MR. PONTE: Immediately. MS. TAYLOR: Now can I second it? Can I second it now? CHAIRMAN FLEGAL: Yes, ma'am. MS. TAYLOR: For the third time, I second that. CHAIRMAN FLEGAL: Okay. We have a motion and a second. The order of the board is to direct the county to immediately remove the vehicle and assess the costs. MS. DUSEK: Do they understand immediately? I don't know if that's today, tomorrow. MR. PONTE: As soon as possible, practical. CHAIRMAN FLEGAL: We don't mean in the next five minutes but immediately meaning within a reasonable period of time which will probably take a couple of days to process paperwork. MR. LEHMANN: And in your motion, sir, you reference the respondent to pay all operational costs and the removal costs also? MR. PONTE: Yes. CHAIRMAN FLEGAL: We have a motion and a second to do Any further discussion? All those in favor signify by saying that. aye. (Unanimous response.) CHAIRMAN FLEGAL: Those opposed. (No response.) CHAIRMAN FLEGAL: Motion passes. The next case is 2001-071, Daniels and Brown. MS. POWERS: This is a violation of Section 103.5.1 and Page 50 August 23, 2001 101.4.10 of Ordinance No. 98-76, the Collier County Building Administrative Code. Description of the violation is unoccupied structure not maintained in a safe condition. The location where the violation exists is 4620 Acadia Lane, Naples, Florida, more particularly described as Folio No. 0000022624160003, Avalon Estates, Unit 1, Block 6, Lot 5. Name and address of the owner or person in charge of the location where the violation exists, Phleany Daniels and Jennifer Brown, whose P.O. Box 90068, Naples, Florida 34104. 'The date the violation was first observed was April 26, 2001. The date the person or owner in charge was given notice of the violation was 5/11/01. The date on which the violation was to be corrected was 5/22/01. The date of reinspection, August 22, 2001. The results of that reinspection are that the violation remains. John Kelly. We would admit this packet into evidence, Composite Exhibit A. CHAIRMAN FLEGAL: Is Mr. Daniels or Ms. Brown or some other representative here? (No response.) CHAIRMAN FLEGAL: I would 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 to accept the county's exhibit. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) (The oath was administered.) MR. KF. LLY: Once again, John Kelly, Code Enforcement Investigator. This case was initiated on April 26th the result of a Page 51 August 23, 2001 phone call from a Collier County Sheriff's Office deputy. They were alleging that there was an abandoned house with broken windows, no doors, and hidden by weeds. I'll just note that the weeds have been addressed separately. We bid them out, roughly, every 30 to 60 days to county contractors because we've been unable to make contact with the owner. Continuing with the allegations of this case, on April 26 I performed my initial investigation which revealed a vacant single- family type structure in severe state of disrepair, the result of current neglect. The primary entrance is by means of a front door that's connected to a mezzanine or enclosed porch. The door is missing to that porch which allows for free access to the interior of the entire structure. A review of prior cases on that property revealed that the structure had been inspected in '97, was found not to be unsafe, and was boarded up at that time to prevent any safety issues. At that time I prepared a notice of violation for the violations of the Building Construction Administrative Code Ordinance 98-76, specifically Sections 103.5.1 as in it's -- the structure in it's present state is inherently unsafe and poses a fire hazard in respect to fire arson and 101.4.10, as the structure and systems therein have clearly not been maintained. The complaint state of that notice of violation was May . 10, 2001. On May 11,2001, the previously mailed notice of violation was returned by the postal service indicating "undeliverable, no such address" or rather "no such number." I proceeded to review the documentation that was mailed, determine that it was to a P.O. Box, determined that the P.O. Box number on record was that utilized on correspondence and also confirmed that with the Property Appraiser's Office that they were using the same P.O. Box number. I was unable to obtain any telephone information pertaining to Page 52 August 23, 2001 either of the owners by means of the published directory or 411 information. At that time I effected official posting of the notice of the violation at both 4620 Acadia and at the Collier County Courthouse complaint date of May 22nd allowing for the ten-day required time span. On June 25,2001, I ascertained from the Tax Collector's Office that the property was delinquent for the 2000 tax year and ascertained that the Tax Collector's also using the same address for mailings. I rechecked that date, revealed the structure remains unsecure. On 8 -- rather August 16, result of any contact or other means of notifying the residents -- or not the residents, the property owner, I effected official posting of the notice of hearing at both 4620 Acadia, and Maria Cruz-Acevedo effected the posting at the courthouse, and at that time it was observed that the violation remains. And on August 22nd, yesterday, I performed my final recheck prior to the hearing. This photo here accurately demonstrates the front door is absent, and just for better visual here's the north side of the structure. It would be code enforcement's recommendation that the board order the owners to pay administrative costs, secure the structure within 15 days, ordered -- direct the county to abate the violation by boarding over all windows and doors at the property owners' risk and expense. MR. PONTE: Investigator Kelly, how -- estimate for me the distance of this abandoned property to the Avalon Elementary School. Is it-- is it less than a quarter of a mile? MR. KELLY: It's probably right at -- about that. It might even be less. I can't tell. MS. TAYLOR: Is there any evidence that this has been used for a drug house or anything like that? MR. KELLY: No. CHAIRMAN FLEGAL: Mr. Kelly, I notice that you have Page 53 August 23, 2001 submitted a picture of a FP&L unit on the house. Was it working when you were there? MR. KELLY: No. CHAIRMAN FLEGAL: It was not. Did you check with FP&L to try to get an address just to see if we could find these people? MR. KELLY: No. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: Investigator Kelly, has the building official deemed this particular building as an unsafe building as referenced by Section 103.5.1 of Ordinance 98-76, Collier County Construction Administrative Code? MR. KELLY: The building official has not, no. It was a -- but let me review the ordinance here. You're questioning which section, please? MR. LEHMANN: Section 1.3.5.1. You will find it on page 15 of the package. This is one of the sections that the violation alleges. MR. KELLY: Okay. Yes. The building official has not. MR. LEHMANN: Has or has not? MR. KELLY: Has not. That was a determination made by me while at the location being unsecured that there is a threat of arson and that anyone can go inside, do anything they wish, making it an unsafe environment, both to those that may be inside and to those surrounding the property. MR. LEHMANN: Ms. Arnold, my understanding of the code, the referenced ordinance places that decision solely on the building official; is that correct? MS. ARNOLD: I can't answer that question. I believe that an unsafe condition could be determined by the investigative staff, but to declare it an unsafe structure would be the responsibility of the building official considering that this structural stability of the property. Page 54 August 23, 2001 MR. LEHMANN: Well, the definition on page 12 of the same ordinance, Section 1.2.1, the definition of the building official, it states that (as read): "The term building official in this ordinance is not a job title but includes those persons with authority to act on specific items involved in the permitting process, plan review compliance, inspections, and/or investigations. Any persons occupying the position of building official as designated hereafter shall be considered the local building official as referenced in Chapter 553.73 Florida Statutes." So my question, again, is, has a person acting in the authority of the building official deemed this an unsafe building according to that code section? MS. ARNOLD: Yes. It would be the compliance investigator. MR. LEHMANN: So the answer is "yes." MS. ARNOLD: Yes. MR. LEHMANN: Thank you. MR. PONTE: I think we can also look at this as a common- sense issue. Given the proximity of the school we have a attractive nuisance that's a hazard. MR. LEHMANN: I agree with my colleague. I think we have clear issue of public safety, health, and general welfare. MS. GODFREY: On page 17 if you notice at the bottom of the picture, there's a small ball, small child's toy, ball on the bottom picture of page 17 in the doorway. So, apparently, children are playing in there? MR. KELLY: I do see the ball. I was inside the structure and did not observe any-- anything. Other than perhaps this ball, which I did not observe, there was nothing else to indicate -- MS. GODFREY: We need to have it enclosed as soon as possible. CHAIRMAN FLEGAL: I guess I have a question for Ms. Page 55 August 23, 2001 Arnold. Under the ordinance that's referenced on page 15, Ordinance 76-70, which if the building official which you say has declared this unsafe, it can be rehabilitated or demolished. Why haven't we done it already? Why are we asking this board to order it to be done? I'm just curious. MS. ARNOLD: Could you -- could you restate your question? CHAIRMAN FLEGAL: Okay. Under one of the sections you're citing, 103.5.1, it says that (as read): "All such unsafe buildings, structures, or service systems are hereby declared illegal and shall be abated by repair or -- and rehabilitation or by demolishing in accordance with provisions of Ordinance 76-70 as amended." So if it's been declared unsafe, why hasn't it already been demolished? MS. ARNOLD: Well, because in Ordinance 76-70 it requires that there's percentages apply before we can go ahead and do it without further direction. CHAIRMAN FLEGAL: Okay. Any other questions for Mr. Kelly? Thank you, Mr. Kelly. MS. DUSEK: I'd like to make a motion. CHAIRMAN FLEGAL: Yes, ma'am. MS. DUSEK: I'd like to make a motion that a violation does exist in the case of the Board of County Commissioners versus Phleany M. Daniels and Jennifer Brown and the CEB Case No. 2001- 071, and the violation is of Sections 103.5.1 and 101.4.10 of Ordinance 98-76, the Collier County Building Administrative Code. The description of the violation is unoccupied structure not maintained in a safe condition. MR. LEHMANN: I will second that motion. CHAIRMAN FLEGAL: We have a motion and a second that there, in fact, does exist a violation. Any further discussion? All those in favor signify by saying aye. Page 56 August 23, 2001 (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Order of the board. MR. LEHMANN: Mr. Chairman, I would recommend and move that the CEB order the respondent to pay all operational cost incurred in the prosecmion of this case and further order that the county immediately contract to secure the structure and assess cost of abatement to the respondent. MS. DUSEK: I second that. MR. PONTE: What about -- we have the cost there, but what about the fine to the respondent -- to the owner? CHAIRMAN FLEGAL: Well, if we -- if we -- if we have the county abate, there's nothing you can fine for because the code violation has been taken care of. We've had the county abate the violation so there's nothing to fine for. MR. PONTE: I just wonder if it doesn't seem as if we're doing all the work, paying all the bills, and we have a guilty party who is not going to have to do anything. CHAIRMAN FLEGAL: Well, we'll assess the cost to the guilty party which -- MR. PONTE: If we can find them. CHAIRMAN FLEGAL: Well, we'll have to after-- after three months after it's all recorded, including when they bring the cost back to us, then we impose the fines, slash, costs, which the fine will be the cost of what the county spends, and file it. Then three months later we can direct the county attorney to foreclose on the property. That's about as far as we can go. We'd have to do that on a fine anyway 'cause you're not going to find them, so it's just another way around to get it there. MR. LEHMANN: And as clarification for the record, I'd like Page 57 August 23, 2001 this to be effective immediately as far as the county's actions as soon as possible. CHAIRMAN FLEGAL: Okay. The only question I have is, Ms. Rawson-- MS. RAWSON: Yes. CHAIRMAN FLEGAL: -- understanding that so far they've been unable to find this person, do we need to give this person any kind of notice or can we just abate it immediately because it is a hazard? MS. RAWSON: Well, you're gonna -- if assuming you're going to enter an order today, we're going to send a copy of this order to the address where they were served with the statement of violation and -- you know, so that's going to be noticed to them. If your order is that the county immediately secure it and assess the cost, they will get a copy of this. CHAIRMAN FLEGAL: Okay. I guess what I'm trying to say is we don't have to -- based on the information that nobody's been able to find them yet, so we know that they are probably not around -- we don't have to give them any time to abate it. We can abate it immediately because we feel it is unsafe. MS. RAWSON: Certainly. Absolutely. CHAIRMAN FLEGAL: Okay, good. I'm comfortable with that. We have a motion and a second to direct the county to abate this immediately and assess the prosecution costs. Any further discussion? We have a motion and a second. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: (No response.) CHAIRMAN FLEGAL: 2001 Any opposed? We skipped the Fryes. Next case is -074, Ms. Maroules -- Maroules. I hope I'm saying that right. If Page 58 August 23, 2001 not, I apologize. MS. POWERS: This is a violation of Section 6 Paragraph 1 and 2 of Ordinance -- excuse me, No. 2000-68, Collier County Noise Ordinance. Description of the violation is a parrot squawking at 63.2 decibels over county ordinance requirements. Location of the violation is 164 Coral Vine Drive, Naples, Florida, more particularly described as Folio No. 0000065221760009, Palm River Estate, Unit 1, Lot 44, OR 1627, page 287. The name and address of the owner or person in charge of the location where the violation exists, Penelope P. Maroules, 164 Coral Vine Drive, Naples, Florida 34110-5718. The date the violation was first observed was May 4, 2001. The date the owner or person in charge was given notice of this violation was May 7, 2001. The date on which the violation was to be corrected was May 4, 2001. The reinspection, August 22, 2001. The results of that reinspection showed that the violation remain. I would like to enter this packet into evidence, Composite A. CHAIRMAN FLEGAL: Is there a representative for-- MR. RANKIN: Yes, Mr. Chairman, there is. My name is Douglas Rankin. I'm an attorney. I'm representing my client here, and before we proceed I had filed a-- given the short notice we'd received -- and in this case there won't be any debate about when we received it because I understand they probably should have the return receipt card back by now for a Motion for Continuance in this matter. My -- the dates she gave you are very misleading. Those are the dates that they first attempted to drag us into -- well, excuse me -- about the third attempt to drag us into county court over this matter. My client knew nothing that the county was still pursuing anything along these lines until last Wednesday the 15th of August when she was served with this matter finally which, I guess, they claimed to have mailed it on August 8th. As you know when you get certified mail and you're not home, you get a little slip. It doesn't tell you Page 59 August 23,2001 who's sending it. Her slip initially indicated for her to go to the Goodlette Road Post Office. She did. It wasn't there. It was at the Immokalee Road Post Office, and she got it on the 15th and immediately brought it to me. We require witnesses to be here on this matter, especially the veterinarian for these birds, because a lot of what they're indicating and the way this ordinance is structured that's going to be very relevant. And there's just no way -- (Microphone feedback.) That violates the noise ordinance. Anyway, there's no way for us to get witnesses here in that short a basis. The other reason for my request for continuance is my client, having no idea any of this was still pursuing, had plans to be out of state starting either late on the 21st or early on the 22nd, and she is currently out of state, a long- planned trip which she had nonrefundable tickets for in Alabama somewhere. I -- in speaking with counsel for the county and right before we started, I asked him why they were still contesting our Motion to Continuance. They indicated that somebody allegedly seen her here yesterday. Well, we'll have to hear that testimony and -- but in the future if that's proven wrong, they're going to have some answering to do, like, if my client brings back receipts where she's spending money in Alabama from yesterday. But that's not the only basis for our Motion for Continuance. Our basis for Motion of Continuance is also the fact that we have insufficient time to prepare our case and bring the necessary witnesses here and/or take their deposition outside the hearing and introduce their deposition here. We do not in any way admit that a violation has occurred here and -- by the way, I also object to the packet. They have only included a couple of pages of the applicable ordinance, if they gave you what they gave me, which is not what you need. You need the Page 60 August 23, 2001 entire ordinance. I happen to have it from the county sessions before, but the packet I received is missing pieces of the ordinance. Also I would have a problem -- and I noticed your procedures here earlier, and I was looking at the case law in my computer before I got up here, and I didn't -- a lot of this is going to revolve around me cross- examining their code enforcement officer also, and I didn't see that happening in other cases. I hope I'll be allowed that due process. CHAIRMAN FLEGAL: Yes, you are. MR. RANKIN: Because I just didn't see that happening. CHAIRMAN FLEGAL: Nobody has asked to do it, but you are allowed to do that. MR. RANKIN: All right. But this is going to involve my client testifying, it's going to involve her veterinarian testifying and it's going to involve me getting the code enforcement officer. They -- CHAIRMAN FLEGAL: Okay. Okay. I've heard all that. I guess the one thing I haven't seen is I haven't seen a Motion for a Continuance. MR. RANKIN: It's in my response to statement of violation. MR. LEHMANN: Mr. Rankin, please let me interrupt. Your response to statement of violation, you do reference not only a Motion for Continuance but you also mention a Motion for Dismissal; is that correct? CHAIRMAN FLEGAL: That's what I had on page 9. MR. RANKIN: Yeah. But it requests both -- you know, I only had a day to prepare it, so -- and I'm a very busy practitioner, and this was not expected at all. And ! got this on noon of the 15th, and we had to have it done by noon on the 17th, so it wasn't -- CHAIRMAN FLEGAL: Okay. Let's -- let's do one thing. I really wanted to ask if you object to the county submitting their package and then you -- and then we're going to ask, you know, if you have something to submit, so let's do it this way. First, is there Page 61 August 23,2001 objection to the county submitting their package to the board, yes or no? MR. RANKIN: Yes, there is, because I believe their investigator's going to have to testify to admit those matters. CHAIRMAN FLEGAL: Okay. That's fine. So there is an objection. MR. LEHMANN: Mr. Chairman, I have a question that, to me anyway, is kind of the core basis to this particular case. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: The statement of violation references a parrot squawking; an animal is making a noise. The reference Noise Ordinance 2001-68 refers solely to man-made sounds -- man-made sounds and reference that on page 10. The question I have, quite frankly, is does this even apply? MR. RANKIN: That's a good question. He picked up on one of the several matters. CHAIRMAN FLEGAL: If everybody will wait a minute and let me do what I'm supposed to do, maybe we can do this in order. First of all, we haven't heard the case, so what you're talking about doesn't apply until we hear it, and then we can ask the question. We first have to hear it before we know what we're talking about. Okay. Secondly, the same applies to you. I understand your objection, but we haven't heard the case. MR. RANKIN: Yes, Your Honor. CHAIRMAN FLEGAL: So we can't sit here and say -- and we haven't had the package submitted to us as evidence, so we also can't say what we've read because it's not evidence yet. It's just information you can read in the telephone book. So none of that applies. So there is an objection to the package being submitted. Now, my question is for Ms. Rawson, get back to the beginning. Since Page 62 August 23, 2001 there is an objection to the package being submitted, if we proceed it will have to be based solely on testimony if we decide to proceed with the case, correct, because the package has been objected to? MS. RAWSON: That's correct and -- you know, then as he testifies he can certainly move as he testifies for the introduction of those pieces of paper one at a time. CHAIRMAN FLEGAL: Okay. MS. DUSEK: I have a question, Ms. Rawson, in that respect. The part that he objects to, can it be given to him now for his approval and then the whole package be submitted? MS. RAWSON: Well, if he only objects to the one section. I believe you referred to the fact that you only have a portion, not the entire section of that ordinance and-- you know, I don't know if that's the only thing he objects to, but I suppose he says it's not. MR. RANKIN: It's not. I'll solve that problem. MS. RAWSON: If it were yes, it could be cured. MS. DUSEK: But it's not. CHAIRMAN FLEGAL: Okay. Now, since we have an objection to the package being submitted, we'll stop a minute because we also have a defense packet being submitted, and we have to receive it, so by the same token we get the county to ask them if they object to your -- your package, or are you just making a Motion to Continue? Is that what you want to do? THE WITNESS: Mr. Chairman or Mr. Honor -- Your Honor. I'm sorry. I'm so used to -- CHAIRMAN FLEGAL: Chairman. MR. RANKIN: Mr. Chairman, the purpose of my packet -- you know, I intended if when I have my client here to submit all this by testimony or by testimony of their people or by testimony of the complainants, which I don't see here, which is somebody else I need to subpoena, because in the past these violations are based on Page 63 August 23, 2001 complaints that they're -- they have made statements that are impossible or contradictory or whatever. That's the kind of-- that's the kind of thing I need, you know. The only part of this I would like you to consider today, and the only reason it's not split out is because I didn't have enough time to split it out, is the portion for continuing this matter because most of my grounds for Motion to Dismiss are based -- you're going to have to hear the case, you're going to have to take them under advisement like you heard -- in the previous -- your first case today, I believe, in order to be able to rule on them. And one of your board members picked up on one of the many problems with this noise ordinance in this situation. So, basically, the only thing I even want you to consider to save a lot of time and argument and get you-all to lunch sooner is that can we proceed under due process given that we had such a short time to prepare and given the fact that my client's in Alabama or wherever she is. CHAIRMAN FLEGAL: I understand. So you're asking us for a Motion to Continue this to, hopefully, our next meeting. MR. RANKIN: Yes, sir. And we will be well prepared to deal with it in a substantive matter at that time. CHAIRMAN FLEGAL: Okay. So we have a submission from the respondent's counsel petitioning us for a continuance to our next meeting. Ms. Rawson, as I understand how we operate since, you know, right now the county's package hasn't been submitted, defendant's -- respondent's package is for a continuance. We can vote on this now, and at that point whatever we decide is -- can happen. MS. RAWSON: Yes, you could. Actually, he could make the motion for continuance orally, and you could consider it. So you don't have to admit his entire packet to vote on a Motion to Continue. Page 64 August 23, 2001 CHAIRMAN FLEGAL: I wasn't going to admit it. What I was -- I was going to take it at face value as to what he said it is, just a request for a continuance, and ask the board members if they would accept the respondent's attorney's request for a continuance to our next meeting. MR. MOUNTFORD: If I may be heard. My name is William Mountford. I'm the assistant county attorney, and I've taken on the handling of this matter on behalf of Code Enforcemem. May I be heard with regards to the Motion for Continuance? CHAIRMAN FLEGAL: Yes, sir. MR. MOUNTFORD: Thank you. I'm not familiar with boards particularly, not because I'm above them, just that nobody ever told me to go to one before. Been in a few courtrooms. So this board is aware of this matter, and I conferred with opposing counsel before his appearance here today to try to tell him that I had heard on an information and belief with regards to whether the availability of Ms. Maroules -- I didn't say I had any hard evidence one way or the other, so I sort of disagree with his attitude that I'm coming in here with guns ablazing trying to say something. With that said and done, originally this matter was scheduled on July 18th, 2001, in the county court before Judge Turner. At that date I appeared on behalf of the county the matter being listed with Judge Turner or filed with Judge Turner before my involvement in the matter with my witnesses ready to proceed. Judge Turner at that time indicated that this case was listed on his criminal docket. I said, Your Honor, this is not a criminal case. This is a civil infraction, and it involves civil penalties only. Judge Turner then said that this matter along with all these types of matters are confusing because of the way the enabling act -- in my world, the statutes, the ordinances and rules of regulations were so together that they created a confusion, which I agreed with him. Page 65 August 23,2001 And I said, "Well, Your Honor, under those circumstances since it's on your criminal docket as an arraignment only, I would request the court treat it as a civil matter, and we go forward." The judge said he would be glad to do so at that time, and he was going to apply the following: The Florida Rules of Criminal Procedure to the matter, which means proof beyond a reasonable doubt, and all the criminal procedure safeguards would apply but for the Fifth Amendment, and that if he so found at the conclusion of the hearing, he would impose a civil infraction. And he said he would go forward with that, and I said the county code enforcement was ready, willing, and would abide by that and we would go forward, but he said it was subject to the consent of opposing counsel, Mr. Rankin. And Mr. Rankin could not consent to that or did not consent at that time and asked for an adjournment. At that time, of course, I conceded and said I would be glad to go along with an adjournment. In the meantime, I felt that based upon my review of the ordinance that the Code Enforcement Board would be a better way to handle this matter since it is a civil matter only, since you have the right to impose noncriminal penalties and fines, and more importantly, you may render a decision which is equitable and expedient, and I think that's the key to this. This isn't a criminal matter. This is a matter that basically involves the unreasonable interference, in my opinion, based upon the evidence with the enjoyment of life and property of the Collier County citizens. So that's where we are. Now, I have my witnesses here again today. On August 8th certified mail return receipt requested was mailed to Ms. Maroules. You have the affidavit. She did not sign for it until August 15th. That is not the responsibility of the county. She had time between then. Assuming everything went wrong on the mail, she had from August 10th to pick this up, and she did not pick it up until August Page 66 August 23,2001 15th. I do not think that -- I think that the county complied with its responsibilities by way of the rules and regulations and the Code Enforcement Board. And since my witnesses are here again for a second time since I've been involved in this matter, I would request that the Motion for Continuance be denied. MR. RANKIN: Mr. Chairman, I would disagree with his statements. I did not ask for continuance. Judge Turner made it abundantly clear that he wasn't there to hold trials that day. He was -- what Judge Turner offered to do was hear my motion to dismiss the matter on technical grounds that day and at which time -- which would not have involved his witnesses in any respect -- and at that point they simply dismissed the matter, and we did not know this was going forward at all until the 15th. CHAIRMAN FLEGAL: Okay. Hearing both of you I understand what you're saying. Bottom line with this board is what happens in the courthouse other than something being submitted as evidence really has no bearing on this board. We're our own quasi- judicial operation and based on what is submitted to us at the time our determination is what we want to do, hear continue, dismiss, whatever. Right now proceeding is -- since somebody objects to the county information being submitted to us, our choice is we can do it by listening to people, but at the same time the respondent, in trying to be fair to them, has asked for a continuance based on certain things. So now the board -- ! think we've heard enough from both attorneys. Excuse me. The board needs to decide -- excuse me. Do we want to continue, or do we want to hear it. And we already know from the attorney that he doesn't have enough people or documentation here to present a case, which would seem unfair that something the board is going to have to talk about to make a determination. Excuse me. Page 67 August 23, 2001 So I think we've heard enough from both the attorneys. If you'll permit the board to make a decision, we'll try to do that. MS. TAYLOR: My concern is that somebody's suffering because of this bird noise. Anything that's offensive to the ears is noise, and I lived with a macaw for months -- taking care of my son's macaw. And I'm telling you they are noisy. They don't squawk; they scream big time. CHAIRMAN FLEGAL: Okay. Please understand first what you must consider is we have heard actually no evidence, so all we know, officially, is that there is a case between two people that wants to come to us. MS. TAYLOR: And my point is that we should hear from these people who are here who are suffering from listening to this racket, and that's what it is. It's noise big time. MS. GODFREY: At this time we don't know that. CHAIRMAN FLEGAL: We don't know anything other than two people want to come to us to discuss something. Nothing has been submitted as evidence, so we can't consider anything. We must consider, do we take the next step to hear anything. That's what we have to do first. MR. LEHMANN: And with respect to my colleague, our chair correctly points out, in essence, a point of order of the board. At this point in time, we cannot consider evidence from either packet, and I incorrectly misspoke previously, and I agree with our chair that at this point in time we're here to address the Motion to Continue solely. CHAIRMAN FLEGAL: See, we officially don't know there's a noise problem because we haven't had anything submitted. I'm sorry, but that's the way it is. It may sound funny, but we don't know that yet. MS. TAYLOR: Have you ever been around a macaw? CHAIRMAN FLEGAL: But we don't know there's a problem. Page 68 August 23, 2001 Being around them has nothing to do with it. We, as a board, can't take any action because we officially don't know there's a problem SO... MS. ARNOLD: If I may add-- for the record, Michelle Arnold -- the notice provided to the respondent is -- was done in accordance with the rules and regulations, so the time periods were -- were met. Part of the objection from Attorney Rankin is that there wasn't sufficient time, and I just give that information to you. CHAIRMAN FLEGAL: Okay. I understand that the county's trying to say there's sufficient time. I don't have a problem with that. We've had a request that the other side doesn't have its people here. They want to subpoena a lot of people. They want to bring a lot of people to present. And trying to administer this and giving everybody a chance, the fact that something was mailed and X days was given and people were out of town, I think, logically, this board needs to understand that you can't just say, "Well, that's too bad. They had ten days. The fact that a lady was going out of town is immaterial. She should have stayed here." Now, I don't see anybody on this board canceling their vacation to show up for this when they have nonrefundable tickets. I'm sorry. You got to use a little logic. Let's get back to reality. We have two people that want to come before us and argue a case. One has asked for a continuance based on certain facts. They need time to bring a lot of people and documentation forward. We need to consider, are we going to give them that time, or are we going to say, "No, we're proceeding today." So we have a motion or a request for a continuance from the respondent. What I want the board to do is consider, do we act on it and approve it, or do we say, "No, we're going to continue." That's all you need to do right now. MR. LEHMANN: Ms. Rawson. MS. RAWSON: Yes. Page 69 August 23, 2001 MR. LEHMANN: If the board choses to deny the request for continuance, do we violate due process? MS. RAWSON: In my opinion, you need to give everybody a full opportunity to be heard in all fairness so that both sides can adequately present their case. While I understand the position of the county attorney -- and I'm sorry that the witnesses are here and that they also had to appear in the county court. And while Ms. Arnold is correct that timely notice was given, the fact still remains that the respondent is not present, and it would be very difficult for Mr. Rankin to be able to go forward without his client here. MR. LEHMANN: Mr. Chairman, based on that I would move that we -- we grant the respondent's request for continuance. MR. PONTE: I'll second that if that's a motion. MR. LEHMANN: That is a motion. CHAIRMAN FLEGAL: Okay. We have a motion and second to grant the continuance to the next meeting date. Any further discussion? All those in favor signify by saying aye. MS. SAUNDERS: Aye. MS. GODFREY: Aye. MR. LEHMANN: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. CHAIRMAN FLEGAL: Aye. Those opposed. MS. TAYLOR: No. CHAIRMAN FLEGAL: Okay. Six to one. MR. MOUNTFORD: May I be heard on one brief point, Mr. Chairman. Is there any chance that this could be set down for a special hearing? I don't know the procedures. MR. RANKIN: I'll be happy to waive notice. Just give me a date and a time. MR. MOUNTFORD: In order -- because this may turn into a Page 70 August 23, 2001 rather lengthy proceeding. MS. SAUNDERS: Mr. Chairman, further on that, the next meeting is on September 27th. That is Yom Kippur, which is the High Holy Day of the Jewish calendar, and that's not a very good meeting to do, for some of us any way, so I would very much favor a special meeting because I really have a problem with meeting on Yom Kippur. CHAIRMAN FLEGAL: Well, let me ask the two attorneys before I ask the board. If we -- how much time do you need to get prepared? Is two weeks sufficient? MR. RANKIN: Oh, that's -- that's more -- that's sufficient, Your Honor, as long as we don't put it on a day when I've got an arbitration. CHAIRMAN FLEGAL: We don't know what day might be be available but would two weeks be -- MR. MOUNTFORD: Ready, willing, and able from tomorrow on. CHAIRMAN FLEGAL: Michelle -- MR. MOUNTFORD: Hopefully able. CHAIRMAN FLEGAL: Since -- if I'm remembering the rules correctly and we have enough members here, if we want to call a special meeting and there's -- the room's available in two weeks, can we do that? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Okay. What I would suggest-- I would probably make a motion to the board that we have a special meeting for this case only. Not knowing -- sounds like there's going to be a lot of people -- to be held and if the room is available in approximately two weeks, if the other board members would second and agree to that, and it will be judged by when the room is available. So we'll have to be little flexible. Page 71 August 23, 2001 MS. ARNOLD: And the availability of legal counsel. CHAIRMAN FLEGAL: And, of course, of our attorney. MS. RAWSON: Thank you. MS. GODFREY: I second that. CHAIRMAN FLEGAL: We don't go anywhere without our attorney. So I throw the motion out there to have a special meeting in approximately two weeks depending on availability of the room. MS. DUSEK: I second that. CHAIRMAN FLEGAL: Ms. Dusek. So we have a motion and a second. Any further discussion with board members? Again, depending on the day -- and I think Michelle can either fax this or e- mail us and say these are the two days, and she can do the same to the two attorneys, and hopefully the majority of us will pick one, and we'll get on with it. So any further discussion? If not, all those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Okay. Gentlemen, approximately two weeks, and the county will notify you when that is. MR. RANKIN: So I don't need the calendar now. Thank you. MR. MOUNTFORD: If I may be heard. Prior to your voting on this, I was approached by one of the neighbors of the alleged violator who said she will be out of town for the month of September, and she made an inquiry of whether or not you could listen to her testimony now. If counsel doesn't object, I will either submit it by an affidavit -- CHAIRMAN FLEGAL: I think that's best. MR. RANKIN: Or we could take her deposition. MR. MOUNTFORD: Or if he wants to take her deposition. MR. RANK1N: Because I'm going to have to take the Page 72 August 23, 2001 veterinarian's deposition. We can take hers. You and I could talk about that afterwards. I'm not -- I'm not trying to be obstructionist here. I just deal with the real world. CHAIRMAN FLEGAL: Yeah. We're not going to hear anything but affidavits or depositions we'll be glad to take. You gentlemen work all that out. MR. MOUNTFORD: So the board is aware, the person I'm referring to is Ms. Ellie Donahue, one of the neighbors here today. That's all. Thank you very much. I'll work it out with counsel. CHAIRMAN FLEGAL: Next case, 2001-075, Briarwood and-- is it Hitchock? MS SAUNDERS: Hitchcock. CHAIRMAN FLEGAL: Hitchcock, okay. MS. POWERS: This is a violation of Sections 3.3.11 of Ordinance No. 91-102, the Collier County Land Development Code and SDP No. 95-58. Description of the violation is failure to install the ball netting for the driving range along the westerly edge of the parcel. Location of the violation is 5051 Radio Road, Naples, Florida, more particularly described as Folio No. 0000024755002504, Briarwood Plaza, Tract A. Name and address of the person in charge of the location where the violation exists is McAlpine Briarwood, Inc., 1100 Fifth Avenue South, Suite 201, Naples, Florida 34102-6407, McAlpine Briarwood, Inc., care of Shutts & Bowen, R.A., 201 South Biscayne Boulevard, Miami, Florida 33131. And Briarwood Driving Range, Charles Hitchcock, 5051 Radio Road, Naples, Florida 34104. The date the violation was first observed is June 25th, 2001. The date the owner or person in charge was given notice of the violation is June 25th, 2001. The date on which the violation was to be corrected was July 5th, 2001. The date of reinspection, August 22nd, 2001. And the results of that reinspection are that the violation Page 73 August 23, 2001 remains. Exhibit A. CHAIRMAN FLEGAL: Briarwood or Mr. Hitchcock? submitting the package to us, ma'am? MS. DEPAUW: No. CHAIRMAN FLEGAL: Okay. accept the county's exhibit. MR. LEHMANN: So moved. MS. DUSEK: Second. If we could enter this packet into evidence as Composite Is there anyone here from any of the Do you object to the county I'd entertain the motion to CHAIRMAN FLEGAL: We have a motion and a second. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: All those opposed? (No response.) MS. GODFREY: Mr. Chairman, I need to make an announcement. CHAIRMAN FLEGAL: Yes, ma'am. MS. GODFREY: I had lived in Briarwood for five years. Would anybody have a problem with me hearing this case? CHAIRMAN FLEGAL: You had nothing to do with the golf course or the golf driving range? MS. GODFREY: No, sir, but I was a resident of Briarwood. CHAIRMAN FLEGAL: I don't find that a problem, Ms. Rawson. MS. RAWSON: I don't think because she lived there she has a conflict. CHAIRMAN FLEGAL: Okay. That's what I thought. MS. DUSEK: I have one question before we start. I just wanted to know if we've given proper notices. It looks like it's dated for 17th of August. Page 74 August 23,2001 MS. ARNOLD: Yeah. I was just going to speak to that. This case is being brought to you under the emergency provision of your rules and regulations because of the concern that we have with respect to the public safety with the opening of the road. The planned opening of the road is August 30th, and we wouldn't be able to hear this case other than on this particular hearing before the road is opened. CHAIRMAN FLEGAL: Is that permitted, Ms. Rawson? MS. RAWSON: Well, I think you can ask the representative of Briarwood if she has a problem with moving forward today because she's waiving the -- you know, the time limits because of the emergency that Ms. Arnold -- and she is here. She wants to move forward today and doesn't object. I don't think there's a problem. CHAIRMAN FLEGAL: Ma'am, do you object to moving forward today? Did you have enough notice or-- yes, please, and state your name, please. MS. DEPAUW: My name Anja Depauw, and I'm assistant secretary for McAlpine Briarwood. A-n-j-a, and the last name is D-e-p-a-u-w. And John Wancline (phonetic) is president, and he only received this yesterday. And he's been out of town. He's had surgery for cancer, but he asked me to come in his place about five o'clock last night and just to tell you he's sorry he can't be here. He's in the Bahamas. He tried to call and get it rescheduled or talk to someone about this but he asked me to just say that he understands what the requirements are and that he understands that McAlpine Briarwood are the owners of the property. But that he feels the conflict is between the county and the tenants and he also said that their requirement of a 50-foot fence is a little in excess, and that's -- CHAIRMAN FLEGAL: My basic question, I guess, is -- and you have the right. If you object to us proceeding today, then we'll -- we can put this to another day, and it sounds like to me that your Page 75 August23,2001 people understand the problem, but they have some problems with the violation and really aren't ready to proceed. That's what I'm getting from you. MS. DEPAUW: All's I can say is what he said to me is if you wanted him to be here that it would have to be continued, otherwise, if it didn't matter, proceed. That's all. CHAIRMAN FLEGAL: In all fairness, is my opinion correct that it sounds like this really needs to be another time? MS. ARNOLD: Well, the concern I have is the public safety. CHAIRMAN FLEGAL: I understand that, but at the same time if you have a respondent that says, we have to at least consider it. So I want to make sure I cover all bases. The county don't get a free run here. MS. RAWSON: Why don't we ask Ms. Depauw when he would be available because if he's just had surgery and he's in the Bahamas, it might be too long of a delay. CHAIRMAN FLEGAL: Yeah, okay. MS. DEPAUW: I'm not 100 percent sure of his schedule, but he's usually in Naples, like, on Tuesday and Wednesday, I believe. CHAIRMAN FLEGAL: Okay. So the surgery other than-- it must have been minor. MS. DEPAUW: That's -- that's why he hasn't been in Naples in the past. CHAIRMAN FLEGAL: Okay. MS. DEPAUW: I don't know if he's going to require treatment or not. Like I said, he brought this to me at five o'clock last night and told me to be here, so I'm not even prepared. MS. DUSEK: Are you saying that his regular schedule is he's always here on Tuesday and Wednesday and the rest of the time he's not? MS. DEPAUW: That's my understanding. I don't know if-- if Page 76 August 23, 2001 you schedule it that he can mm his schedule around. I don't know. MS. GODFREY: Ms. Arnold, isn't the road supposed to open on the 30th -- due to open on the 30th? MS. ARNOLD: That is correct. MS. TAYLOR: Well, this is an emergency hearing; correct? So we must take that into consideration here. Whether a man can be here or whether he can't, we've got to worry about the public at this point. MS. SAUNDERS: I do agree. I think we do need to proceed because it's an emergency. If there's something that has to be done, we can give him as much as time as we can while still considering the safety issues involved. MS. GODFREY: The road has been under construction for two years, so he's known about this problem for two years so my opinion is that we continue with the case. MS. SAUNDERS: Continue hearing the case. MS. GODFREY: Yes, continue hearing the case. CHAIRMAN FLEGAL: Okay. MS. DUSEK: And, Ms. Rawson, under the circumstances of an emergency, public safety, we are all right legally? MS. RAWSON: We are. In addition to which there is a representative here, although I really hate to put her on the spot. She's already been put on the spot enough, but there is a representative here from Briarwood, Inc., and based on her testimony, not only is the -- I don't know whether he's the president of the corporation, the CEO, or what, but he is unable to be here. He's in the Bahamas. He apparently is only here when he is here on days when this board doesn't meet, and so you need to take all that into consideration along with the fact that Ms. Arnold has indicated to you of the emergency nature. MR. PONTE: In addition to whatever we might find, Ms. Rawson, the remedy would be the erection of that fence -- that fence. Page 77 August23,2001 That won't stop the -- the -- won't prevent balls from rolling into the street or hitting a car. Is there a mechanism -- not ours, but elsewhere -- that can then preclude, stop the driving range from operation so that the safety factor isn't stopped? That is the hazard is removed. We can rule and say, "Put up the fence," but it's not going to stop any -- it's not going to in any way reduce the hazard once the road opens on the 30th of August. MS. RAWSON: You have some leeway in making decisions. You know, of course, I realize we haven't heard any of the evidence yet in terms -- in crafting what you are asking them to do to come into compliance. And based on the evidence that you hear, if you give them so much time to do something to abate the violation, like build a fence, and until that's done that they cease operation, I mean, you probably have that power. MR. LEHMANN: Ms. Rawson, do we need to take a vote to go forward? MS. RAWSON: I think in view of the fact that -- you know, what I heard from the representative, the secretary here, was kind of like a Motion for Continuance. You should consider that and vote on that first. MS. TAYLOR: I make a motion we go forward today. MR. LEHMANN: In light of concerns of public safety, I will second that. CHAIRMAN FLEGAL: Okay. We have a motion and a second we go forward, i.e., denying the request for continuance. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Okay. We will proceed. (The oath was administered.) Page 78 August 23,2001 MR. REPICKY: For the record, my name's Dave Repicky. MS. ARNOLD: Can I just make a quick -- have a quick question. Did we accept the exhibit? MS. DUSEK: I don't think we did. MS. RAWSON: I don't think so. MR. PONTE: I don't think so. CHAIRMAN FLEGAL: I think we asked the question if she objected, and she said no. I don't know that we made a motion to enter it. Okay. We will back up a second, sir. If you'll bear with us. I would entertain a motion to accept the county's exhibit. MR. LEHMANN: So moved or seconded. MS. DUSEK: Second. CHAIRMAN FLEGAL: We have a motion and a second. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Okay. Thank you, sir. MR. REPICKY: My name's Dave Repicky, R-e-p-i-c-k-y, Code Enforcement Investigator for Collier County. I originally brought this case by John DiMartino on the 21 st. He was at Briarwood Driving Range and observed that they have not extended their netting along the Livingston Road along with the landscaping and irrigation. I went to investigate on the 25th. I talked to Mr. Wayne Dahlstrom, who is the golf pro. I asked him how can I get in contact with Mr. Hitchcock, who is the owner of the driving range and the leasee from McAlpine Briarwood, Incorporated. I called Mr. Hitchcock from the office there at the Briarwood Driving Range. He referred me to talk -- he didn't want to talk to me at the time. He said, "Go talk to my engineer." The engineer would not return my phone calls at that time. So at that time as noting the violation in the SDP of not having the 50-foot netting or the landscaping irrigation, I issued notice of violation to him at that time Page 79 August23,2001 with a correction date of July 5th, 2001. On June 28th my supervisor, Ed Morad, and another investigator, John Marsh, went along Livingston Road at the backside of the Briarwood Driving Range and did discover golf balls along the roadway and in the ditch area there. Balls were approximately two to three feet from the roadway at that time. On July 5th I went back for my reinspection to see if anything has -- had been done. Nothing had been done at that time as far as putting netting up or the landscaping. Excuse me. On 6/29 there was a meeting in Commissioner Henning's office with our director, Michelle Arnold, Nancy Siemion, an architect for landscaping, Ed Morad, which is my supervisor, Mr. Dahlstrom, and they were working on a -- trying to work on a compromise about the landscaping and the netting at that time. The consensus was that there would be no variation on the landscaping and they would be required to put up safety netting which was six foot high. The netting was put up, but no landscaping has been put in since. That it didn't matter if the wall -- talking about putting up the wall. Didn't matter if the wall was put up or not; the landscaping still had to be put in along with the irrigation. A letter dated August or received August 22nd -- dated August 17th from Wayne Dahlstrom, who is the golf pro at the driving range, saying that they were happy to work and try to make the changes as necessary and make some concessions on getting that done. At this time still nothing has been done for that. Then a letter dated August 8th from Thomas Cook, Engineering Service Director of Collier County Engineering, made a determination that the 50-foot netting would have to be extended from Radio Road across Livingston Road around the back area. At that time I went to inform Mr. Dahlstrom. He said Mr. Hitchcock was out of town. I said, "Would you please leave message to get Page 80 August 23, 2001 back." Mr. Hitchcock never returned any phone calls according to Mr. Dahlstrom. So on August 15th I administered a correction of violation reciting the correct violations that are noted now. And August 16th -- or after that it was determined between me and the Code Enforcement Director, Michelle Arnold, that this should be a code emergency meeting to be held to get the violation corrected. On the 16th I personally delivered to Wayne Dahlstrom and McAlpine -- sorry -- McAlpine Briarwood the notice of the Code Enforcement Board hearing on the 16th of August, and we faxed it to their registered agent. And is there any questions? CHAIRMAN FLEGAL: I have a couple. The original -- what you submitted and what you keep talking about the SDP and I see in this letter approving a preliminary is about there should be some ball netting needed to be extended. What does the final SDP say? Did it ever get approved, and what does it say? MR. REPICKY: I got approved site plan and diagram, but this is all that was in the -- what you have in front of you is what I had. I have the diagram right here for you. CHAIRMAN FLEGAL: I guess what I'm saying is, other than the preliminary SDP, there is no final approval of the SDP? MR. REPICKY: I can't answer that right now. CHAIRMAN FLEGAL: Okay. And then until -- MR. REPICKY: There's approval of the final site about plan on the drawing -- final blueprints, if that is your question, which I can show you today. CHAIRMAN FLEGAL: Okay. Then until the 8th of this month it wasn't determined that a 50-foot netting would be required, and now how did we -- how did the county, I guess, force that upon the owner or the whoever? Right now what we've got is a letter from two county people to each other, so how did we get it -- I say "we" Page 81 August 23, 2001 meaning the county -- how did we get it to the owner of the property? MR. REPICKY: According to the site plan itself, on the drawings the 50-foot netting extends down Radio Road, and then inside the letter it says (as read): "Continuation of the netting from Radio Road across Livingston Road." That's where we determined the 50-foot height. CHAIRMAN FLEGAL: Okay. MR. PONTE: So it's always been 50 feet. The six-foot fence was something the owner just -- MR. REPICKY: That's what he and the commissioner discussed but-- MR. LEHMANN: You said that you do have a copy of that SDP or some diagram. MR. REPICKY: I've got the diagram where I could show you, sir. MR. LEHMANN: If we could see that, please. MR. REPICKY: Yes, sir. MS. GODFREY: Investigator, what is the size of the netting that is along Radio Road to Livingston Road in the record? MR. REPICKY: That's 50 foot, ma'am. MS. GODFREY: That's the 50 foot. CHAIRMAN FLEGAL: Yes, ma'am. You go ahead. You need time. You just shout, and we'll take a break. MR REPICKY: Excuse me just a minute to get the right diagram. MR. LEHMANN: Could you put it on the teleprompter, please. MR. REPICKY: See right -- I don't know if you see it right here (indicating). MR. LEHMANN: Could you reduce that slightly? MR. REPICKY: I'm not machine friendly. CHAIRMAN FLEGAL: Go the other way and then move the Page 82 August23,2001 paper as you do that. There you go. MR. REPICKY: Is that sufficient, sir? CHAIRMAN FLEGAL: Crank it just a little bit more like you were going, same direction and-- because this will get bigger. Slide the paper the other direction. I think you need to go left or right. I don't know which way it is, up or down. You're making it smaller. Turn the other way, and the words will get bigger. There you go. Ah, now slide the paper. Great. Stop. MR. REPICKY: From this portion here where the driving range starts to here is 25 feet high. From this midpoint here along Radio Road to the edge which comes approximately right here (indicating) is 50 foot, and they're asking for the 50 foot to continue from here. CHAIRMAN FLEGAL: I assume Livingston Road is up here somewhere? Okay. MS. ARNOLD: Livingston Road. MR. REPICKY: It shows the easement right now, but that is Livingston Road, so right now the pole stops here, approximately right here, along Radio Road, and they want a continuation along the backside. CHAIRMAN FLEGAL: Thank you. MS. DUSEK: Was that in the original SDP? MR. REPICKY: Yes, ma'am. This is the original. MS. DUSEK: To do the 50 foot? MR. REPICKY: Yes, ma'am. MS. DUSEK: Okay. CHAIRMAN FLEGAL: Now, the 50 foot netting was only in the original to along Radio with a statement that -- what's it say here -- if the golf course still exists -- if the driving range still exists at the time, then the netting shall be extended, so it's kind of automatic that you accept it at the 50 foot -- it means a 50 foot netting. MR. REPICKY: Yes, sir. Page 83 August 23, 2001 CHAIRMAN FLEGAL: I understand that part. My question is: This was agreed to by whom? MR. REPICKY: By Mr. Hitchcock. CHAIRMAN FLEGAL: Okay. What I'm getting to is Mr. Hitchcock isn't the owner property. He is leasing the property. MR. REPICKY: Correct. CHAIRMAN FLEGAL: I'm trying to get everybody in the right position. MR. REPICKY: Yes, sir. CHAIRMAN FLEGAL: So as far as the man that owns the property, we really-- MS. RAWSON: The corporation, I think. CHAIRMAN FLEGAL: Yeah, Briarwood McAlpine. We're really against, I guess, this Briarwood Driving Range. Charles Hitchcock is the person that agreed to put up the fencing, not McAlpine Briarwood; correct? MR. REPICKY: Yes, sir. CHAIRMAN FLEGAL: So we get all the players straight here, because what I don't want us to do is be looking at trying to order somebody to put up a fence that didn't agree to it in the first place. MR. REPICKY: I agree. CHAIRMAN FLEGAL: Okay. Any other questions? MS. GODFREY: It's my understanding that the original PUD for Briarwood where the driving range is would be a shopping mall or shopping center; is that correct? MR. REPICKY: I can't answer that right now for you. CHAIRMAN FLEGAL: Any other questions? MS. DUSEK: Well, I'm a little confused. McAlpine Briarwood is the owner of the property; is that correct? CHAIRMAN FLEGAL: Correct. They own the land, but they leased it out. Page 84 August 23, 2001 MS. DUSEK: Charles Hitchcock is leasing it from them? MR. REPICKY: Yes, ma'am. CHAIRMAN FLEGAL: Correct. MS. DUSEK: How can we cite him and not-- I mean, McAlpine is not being represented, or did they ever agree to this -- this SDP? Did they ever agree to -- MR. REPICKY: No. Just Mr. Hitchcock for the development of the driving range. MS. DUSEK: Then can we go ahead and cite the owner of the property even though he didn't agree to it? MS. RAWSON: Well, I think you have to cite him because he's the owner. When you issue your order and your requirements, you can require that the leasee do something to bring it into compliance as opposed to the owner. We've done that before. CHAIRMAN FLEGAL: Question. Since it's a good question from Ms. Dusek, but if we were so inclined, since we have a leasee that seems to have done all this agreeing to do these things with the county, if the board were to cite the owner that there's a violation but order the leasee to correct the discrepancy, the violation, could part of the order be if the leasee -- you know, he could just sit there and say, "Well, I'm not going to do it" and let the fine roll up "because I don't own the property, and you don't have anything to lien anyway" -- could we at the time we issue this order saying, "You have X days to put this up, and if you don't put it up, you must cease and desist from operating your golf driving range"? MS. RAWSON: I think you can. I don't know of any prohibition from you doing that. You could also say, "And if you don't do it within so many days, the owner will do it." You can also do that. CHAIRMAN FLEGAL: Yeah. I'm looking at stopping-- curtailing the safety aspects. So if we tell them, "Put it up. If you Page 85 August 23, 2001 don't put it up, then cease operation." And then if he doesn't cease operation -- I realize, you know, you're not looking to lien anything, but at that time we can, I guess, ask the county attorney to take some other method by going to the courthouse and getting an injunction or whatever and ceasing the whole thing since he's violated our order. MS. RAWSON: It's tantamount to, "Either come into compliance or remove your structure. It's come into compliance or stop your operation." CHAIRMAN FLEGAL: Okay. Good. I was just looking for a way to curtail to make sure we solve the safety problem. MR. REPICKY: Mr. Chairman, our recommendation would be that the respondents pay all operational costs and install the 50 foot netting within two weeks of the opening of Livingston Road and then within 30 days have the landscaping in place. If the netting's not in place, the county will abate the violation of the netting. The landscaping would be $100 per day. MR. PONTE: I don't think we can wait for that. I think that you have to curtail operation as soon as the ribbon-cutting ceremony is complete on Livingston Road. It has nothing to do with waiting 15 days. CHAIRMAN FLEGAL: I was going to ask Ms. Rawson that question because we're dealing with, quote, unquote, a safety, quote, emergency issue, giving an order that, "Oh, well, you can stay in business after the road opens" kind of negates kind of why we're trying to do this in the first place, I think. We either need to get it done by the 30th -- if that's the date. If it slides, that's fine, then our order can slide with it, but I think we need to be, "You do this the day at the latest the road opens, or you are stop business." I think that's really only the safest way. MS. RAWSON: I would rather see you put a real firm date in there rather than make it contingent on the happening of an event, Page 86 August 23,2001 i.e., the road opens. CHAIRMAN FLEGAL: Okay. Okay. That's not a problem. MR. LEHMANN: I'm a little confused here. Maybe you-all can clarify it for me. We have an SDP that's been issued, to whom, the leasee or the property owner? Are not SDPs issued to property owners? MS. ARNOLD: No. You -- you can -- you can have an SDP that is issued to the tenant for the property, and in that-- in those cases the property owner will sign over the authority to utilize that property. The same thing is what happened in the first case where we had RaceTrac on property that was previously owned by the Angileris, Kramers, and all the other parties. MR. LEHMANN: So this board is looking solely at Charles Hitchcock as the responsible party. MS. ARNOLD: To throw more confusion into the case, the property's actually being run by another party. The -- the actual driving range is run by another party, and I just wanted to bring that up because I wanted to provide the board with a letter that was submitted by that party to us this morning. I want to provide that document and give you some time to review it. CHAIRMAN FLEGAL: Okay. Other than the leasee, no one else has been cited, so I don't think there is anything for us to consider. MS. ARNOLD: Well, out of fairness to that person who is doing that business, I want to provide that information to the board because they have submitted it to us and -- and from this letter it looks as though he's trying to do what he can to help curtail the safety problem and not impact the public. So I just -- CHAIRMAN FLEGAL: I appreciate that, but, I mean, he's not an issue, unfortunately. He's not been cited, and we can't order him to do anything 'cause he's not involved. So seeing that he's trying -- I Page 87 August 23,2001 mean, that's kind of like the neighbor across the street saying "Well, that's okay. I go cut the grass every day." It's really immaterial. MR. LEHMANN: I think Ms. Arnold is trying to say he is an interested party simply because if this board orders the business to cease and desist, it's his business, not Mr. Hitchcock's business. MS. ARNOLD: Exactly. CHAIRMAN FLEGAL: I understand, but since he wasn't cited, we really can't help him. We can only order somebody else to do something, and he's going to be affected because his boss, or whoever this guy is, the person he leased from, didn't do what he said, unfortunately. MR. LEHMANN: We may as well take a look at the letter, Michelle. MS. RAWSON: I think she's just offering some additional evidence in your packet for your review which I think you have certainly the right to do. MR. LEHMANN: Can we do that, order a business to cease and desist without a true business owner having any say-so in the matter or not even being cited in the violation? MS. RAWSON: Well, I think in this particular instance your order has to be directed either to McAlpine Briarwood, Inc., or Charles Hitchcock because that's the two people that you've cited. CHAIRMAN FLEGAL: And Mr. Hitchcock agreed in the SDP that there would be a driving range. The fact that he subleased the driving range to Joe Blow, unfortunately, is not this board's concern. He agreed to driving range conditions, so we would have to order Mr. Hitchcock to cease all driving range conditions -- you know, activities. MS. RAWSON: You can't -- you can't order Joe Blow to do anything. CHAIRMAN FLEGAL: Right. Page 88 August 23, 2001 MS. RAWSON: But you can certainly include in your packet the letter Ms. Arnold has, and if whoever is running the driving range finds out what the order of this board is -- and I assume he will -- I'm sure he will do what he can do to comply so that Mr. Hitchcock and McAlpine Briarwood, Inc., are not going to be in violation. But that's up to him. You're not ordering him to do that. CHAIRMAN FLEGAL: Yeah. We can't order him to do anything, so really his name has no bearing. MS. DUSEK: Right. But I think that we should send him a copy of the order. MS. SAUNDERS: I think we should see the letter. MR. PONTE: If we do that we have not mitigated the danger. He can't continue to operate the golf course. CHAIRMAN FLEGAL: No. No. You're not understanding. We need to order-- since Mr. Hitchcock agreed to the SDP that he was going to have a driving range and he would do it under condition A, he has not done that. So we can order him to cease and desist from having a driving range until he meets that. The fact that he subcontracted it out is between him and the poor fellow that he subcontracted to. He's the one that agreed he would put up the fence. We can order him to do that, and the other fellow is just getting caught. MR. PONTE: I agree, but it needs that other step somewhere in order to get the driving range operator -- CHAIRMAN FLEGAL: But he wasn't cited. MR. PONTE: -- to stop. MS. SAUNDERS: He is an interested party. CHAIRMAN FLEGAL: He wasn't cited, so you can't do anything to him, period. You need to leave him out. MS. DUSEK: What I would -- what I'd like to suggest is that we look at the letter, that we cite Page 89 August 23,2001 Mr. Hitchcock and McAlpine. After we cite them for whatever and whatever penalty it is, that we copy this to this business owner. CHAIRMAN FLEGAL: Not a problem with that, but you just have to leave this business owner out. He is not part of that. MS. DUSEK: Yes. I understand. CHAIRMAN FLEGAL: Well, everybody keeps wanting to bring him in here. MS. DUSEK: No. I think we just want that information out -- MR. PONTE: Because it's a danger issue that's why we're looking at it, and if we send all these letters all around but the operator of the driving range elects to ignore it, he wasn't cited, he just ignores it. CHAIRMAN FLEGAL: That's fine. MR. PONTE: Unless there is another mechanism. CHAIRMAN FLEGAL: The mechanism that Mr. Hitchcock agreed to have a driving range, you instruct he's not allowed to, so if he has a lease with somebody and continues letting that lease go, he's in violation of our order. He has to cease all operations, period. He has to cancel his lease until he complies. MR. LEHMANN: Might I suggest to the board we haven't heard respondent's testimony, and I'm not so sure we finished with the county's testimony. Could we at least finish with that before we get into these issues? Seems like we're going down a track that maybe we're not ready to go down. MR. REPICKY: I'm finished. Any questions you have? CHAIRMAN FLEGAL: I don't have any questions. Thank you. Anybody else? Ma'am, do you have anything to say? I know you're representing McAlpine Briarwood. MS. DEPAUW: Just what I already said. CHAIRMAN FLEGAL: Yes, ma'am. Thank you. Page 90 August 23, 2001 MS. SAUNDERS: I would still like to see the letter that the county has as part of the evidence of the package. CHAIRMAN FLEGAL: Sure. We're not -- unless you want to accept it as evidence? Evidence to what I don't know. That's what I can't understand, but unfortunately it means something. MS. SAUNDERS: I think the county has asked it be admitted as part of their package; am I correct? MS. ARNOLD: What -- I brought that up because the operator of the driving range submitted that as -- and I wanted to provide that as information for the board's consideration. I also provided a copy to the representative from McAlpine Briarwood. CHAIRMAN FLEGAL: Ms. Rawson, I have a question for you. On the owner of the land, since he leased the land to somebody to do with whatever, assuming that they were to do it in accordance with the codes, they went and got the SDP and all that, and he didn't agree to any of this SDP at all -- MS. RAWSON: You can certainly find he's not in violation. CHAIRMAN FLEGAL: I was going to say, what do we find him in violation of because he didn't agree to anything? MS. RAWSON: You can find him not in violation of anything. You can only find the leasee in violation; however, because he's the owner of the land, I'm certainly going to send him a copy of the order. CHAIRMAN FLEGAL: I understand that part, but I'm -- I'm looking at when we get to the order of the board so that we can try to get it as clean as possible. I'm having a hard time finding out what to do to the owner of the actual land since he never agreed to the SDP to begin with. He wasn't even party to it. He just leased somebody a big piece of dirt and left. MS. RAWSON: But since he's the owner of the land he would have the power to see to it that the golf driving range doesn't operate Page 91 August 23, 2001 illegally or without being in compliance. MS. DUSEK: So do we cite him in the motion? MS. RAWSON: He's been cited. MS. DUSEK: I mean, do we -- do we find him in violation as well as the leasee? I'm a little confused. MS. RAWSON: There have been occasions in past years where the Code Enforcement Board has not found owners of land in violation but only the leasees in violation. So that's a possibility, but realize, of course, that in terms of fines and recording the fine against the land, foreclosure actions, you can't do anything to leasee. CHAIRMAN FLEGAL: Well, I guess I'm having -- I'm having a real problem in trying to foreclose on land that had nothing to do with what the problem is. I'm hard-pressed to do that, where I don't have a problem ordering a business to stop being a business and then ordering the county to put him out of business if he doesn't. And, granted, we're probably never going to see any money because there's not a whole lot there other than a little building and a bunch of netting which isn't worth much, you know, if you took it and sold it at auction so -- but ! have a problem in trying to think that down the road we would foreclose on somebody that didn't have anything to do with anything. MS. RAWSON: Well, you might not ever want to foreclose on the landowner. My comment is that certainly you can find that the leasee is the one that's in violation and order the leasee to do something. CHAIRMAN FLEGAL: Yeah. Since he agreed to the SDP, that's kind of the road I'm down. But the owner didn't agree to any of this. He just said, "I have a piece of land" and somebody said, "Hey, lease it to me, and I'm going to build a shopping center or a hotel or whatever," and the guy says, "Fine. Pay me X per year or you get a 99-year lease or something." Page 92 August 23, 2001 MS. RAWSON: That's certainly within the discretion of the board. I think that the county properly served both the owner and leasee. They didn't really have a choice here. CHAIRMAN FLEGAL: I don't have a problem with that. MS. DUSEK: I'm concerned because I feel that the owner of the land should be cognizant of the businesses there. They can't just carte blanche let a business operate and if it goes against the county ordinance allow that to happen. MR. LEHMANN: Not only cognizant but responsible. MS. DUSEK: That's right. So I think they both have to be found in violation because if the leasee decides "I'm going to continue to operate" -- I mean, I just think that the ultimate responsible person is the landowner. MR. LEHMANN: And I would assume that in any agreement between a property owner and somebody that leases the land there would be something in there that would give the owner of the property control of what is happening and fixing the things if there were violations of the law or ordinance or something of that nature. That's an assumption, and you know what happens when you assume. CHAIRMAN FLEGAL: Okay. We're ready to find, in fact, there is a violation? MS. ARNOLD: I have some information. You had a question about the preliminary site development plan. CHAIRMAN FLEGAL: Yes. MS. ARNOLD: The planner for that particular site development plan is here. He can explain what that means, preliminary versus final. MR. BELLOWS: For the record, I'm Ray Bellows with Planning Services. CHAIRMAN FLEGAL: Okay. Just to get you on the record, let's swear you in. Page 93 August 23, 2001 (The oath was administered.) CHAIRMAN FLEGAL: Thank you, sir. MR. BELLOWS: Yes. I'm a planner with the county, and I've worked on this project. The preliminary site development plan was the planning review function of the site plan process, the final done by the engineering section, and they look at the engineering details, water management, area stormwater retention, and we looked at the planning issues, the setting of the building, the netting issue. And part of the review process we coordinate with the transportation department, their concern was the netting should be placed along the future extension of the roadway when it's constructed. CHAIRMAN FLEGAL: Okay. What my question was leading to -- I see a letter that says -- wherever it was -- something about this approval of preliminary site development plan, blah, blah, blah and subject to the following. And I was just wondering because at the end of the letter there it says, "Final site development plan was to be submitted." Did that happen and did they meet your requirements? I mean, it's nice to make a recommendation, but did they submit the final and agree to it? That's what I'm trying to -- MR. BELLOWS: Yes, they did. CHAIRMAN FLEGAL: Okay. It's not in our package, so I'm just wondering -- MR. BELLOWS: Yeah. The basically it's -- it's the site development plan -- preliminary plan, like, where it says planning review. At first we would generate that letter, and that goes along with the final submission, and then the planner gets a copy of the final submission to make sure that those stipulations have been accomplished. CHAIRMAN FLEGAL: I want to make sure that the people agreed to it in a final form so it wasn't, "Well, they never agreed to that." I don't want to get caught. Okay. Great. Thank you. Page 94 August 23, 2001 MR. BELLOWS: Thank you. CHAIRMAN FLEGAL: Okay. MS. DUSEK: I'd like to make a motion. CHAIRMAN FLEGAL: Okay. Ms. Rawson, would I be correct in making this motion that there is violations; we're going to have to have two orders, one for an owner and one for leasee? MS. RAWSON: No. You don't have to have two owners. I mean, you don't have to have two orders. One order will do, because there's one notice of violation against two people. CHAIRMAN FLEGAL: Okay. MS. RAWSON: And so there's only going to be one order. In crafting your order, you might have different requirements of the landowner as opposed to the leasee, but I can put that in one order. CHAIRMAN FLEGAL: Okay. MS. DUSEK: I would like to make a motion that there is a violation in the case of the Board of County Commissioners versus McAlpine Briarwood, Inc., and Charles Hitchcock in the CEB Case No. 2001-075. The violation is of Section 3.3.11 of Ordinance No. 91-102, Collier County Land Development Code and SDP 95-58. The description of the violation, failure to install the ball netting for the driving range along the westerly edge of the parcel. MR. PONTE: And, in addition, was there -- maybe I missed it -- I thought we needed a landscaping and irrigation on page -- MS. DUSEK: That's the only one. CHAIRMAN FLEGAL: The violation is the ball netting. MS. DUSEK: It's just the ball netting. I know that they spoke about -- CHAIRMAN FLEGAL: Page 2 says -- MS. SAUNDERS: It says landscaping, doesn't it? MS. GODFREY: Landscaping. Page 95 August 23, 2001 MR. PONTE: Landscaping and irrigation is required per SDP 95-58 as part of the description of the violation. CHAIRMAN FLEGAL: I'm kind of like Bobbie. I'm reading page 2 which is a statement of violation request for hearing. It says the violation is -- MR. PONTE: That's what I'm talking about too. On the executive summary, description of violation mentions landscaping irrigation as required. MR. LEHMANN: Well, the violation of Section 3.3.11 of Ordinance 91-102 which is referenced in this specifically states where violating the SDP that's been approved. That specifically states in that referenced section that the violation of the terms of the approved site development plan, which includes, by the way, the landscaping, the netting, and everything else, shall constitute a violation of this code. So I know that the statement of violation request for hearing does not specifically address the landscaping issues. I believe them to be a part of this violation properly so even though it might be a typographical error. Would I be incorrect in that assumption? MS. RAWSON: No. I think you're correct because the statement of violation clearly says 3.3.11 so ... MR. LEHMANN: I'm making a lot of assumptions. Thank goodness I got one right. MS. DUSEK: That does seem to cover it all. CHAIRMAN FLEGAL: In your description of violation, you just said the netting? MS. DUSEK: I did. CHAIRMAN FLEGAL: Why don't you include installation of landscaping and irrigation along the Livingston Road section of the property? MR. LEHMANN: As per-- Page 96 August 23, 2001 CHAIRMAN FLEGAL: As per the SDP. MR. LEHMANN: SDP 95-58. MS. DUSEK: All right. I amend it to say exactly what Cliff just said. CHAIRMAN FLEGAL: Okay. Thank you. MS. DUSEK: Do you need that repeated, Ms. Rawson, in the description of the violation? MS. RAWSON: We're reading this from -- from staff. CHAIRMAN FLEGAL: I'm reading from the actual notice of violation on page 7. MS. RAWSON: Okay. I can get it off of there. Thank you. MR. LEHMANN: You can't get it off of-- I see. Getting it off the notice of violation. CHAIRMAN FLEGAL: Yeah. MR. LEHMANN: Got you. If that's a full motion, I will second it. MS. DUSEK: Yes, it is. CHAIRMAN FLEGAL: Okay. Let me ask Ms. Rawson one question. We've cited McAlpine Briarwood and Charles Hitchcock. Do we need, Ms. Rawson, to -- for Mr. Hitchcock, since he's a person, do we need to include -- which I assume is his operation-- the Briarwood Driving Range or just him personally? Is that enough? I don't know if that's a company or just an operation or whatever. MS. RAWSON: He's been cited just as himself, but he has been sent the notice of violation to the Briarwood Driving Range. That's part of his address. I don't know whether that's a business or a d/b/a for McAlpine or his business. I'm not sure, so I think you're safe in just staying with him. CHAIRMAN FLEGAL: Okay. So we have a motion and a second that there, in fact, is a violation. Any further discussion? All those in favor signify by saying aye. Page 97 August 23, 2001 (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Order of the board. COURT REPORTER: Chairman, could we take a short recess? CHAIRMAN FLEGAL: Yes, ma'am. Before we do the order, let's take -- COURT REPORTER: Oh, we could finish the order. CHAIRMAN FLEGAL: That's not a problem. ! don't know how long and drawn out it may be, so let's take five minutes. It may not be a three-minute discussion. (Brief recess taken.) CHAIRMAN FLEGAL: Call the board back to order, and we're on the order of the board. Oh, I'm sorry, our attorney's talking. Jumped in pretty quick. So we're still on the same case, but now we're down to order of the board as to what we want to do with the people we have found in violation. MS. GODFREY: There's only seven days till the road opens. CHAIRMAN FLEGAL: I -- I honestly have no idea. I don't know if Michelle does, but we'll ask her. Do -- with what needs to be installed, Michelle -- which I assume they're going to have to put up some gigantic telephone poles and then string this netting and all that and I don't know if that's accomplishable in this short a time period. I honestly don't. So I think we're going to be faced with asking them not to let anyone drive golf balls for some period of time. Do you have any idea how long it might take to get the netting up? MS. ARNOLD: It -- we -- prior to this hearing, I got some estimated times from the transportation department if they were to have their contractor, for example, do the work. And it would take them five days to order the material and then another two weeks to -- Page 98 August 23,2001 or a week to install it. So we're probably looking at, you know, a month to do it. CHAIRMAN FLEGAL: From start to finish? MS. ARNOLD: From start to finish. MR. PONTE: May I make a suggestion. Suppose we were not to put any time on it but simply leave it 50 feet of netting no later -- 50 feet of netting prior to the opening of the roadway. CHAIRMAN FLEGAL: Well, we know the roadway is going to open the 30th, at least tentatively right now, which is only seven days. MR. PONTE: Well, that would lead us on to the next statement which would be something that "If this is not done, you cannot operate." MR. LEHMANN: Let me ask a strange question. I'm not a golfer so, I mean, I don't understand the whole concept. The different clubs are set to drive at different ranges; is that correct? CHAIRMAN FLEGAL: Yes. MR. LEHMANN: We're worried about clubs that are driving at a 300-yard range. Can we restrict the tenant to permitting use of the driving range at certain distances? CHAIRMAN FLEGAL: I'd say -- I'd say that's almost impossible to police because you've got -- and I can't remember. I've driven by there. I can't remember how many stanchions are out there, but he's probably got at least 15 places. So you've got 15 people standing out there. You need 15 people standing beside you so you don't pick up the wrong club, so I think -- MS. RAWSON: Some people, though-- some people who think they're going to hit it 300 yards only hit it 100. CHAIRMAN FLEGAL: Yeah. MR. LEHMANN: That shows you how knowledgeable I am. MR. PONTE: One of the things he did agree to do in this letter Page 99 August 23, 2001 is to shift the driving slots, whatever you want to call them, so the longer distance was not on Livingston Road. So the shorter-- CHAIRMAN FLEGAL: Understanding what you're saying, but you must, again, go back to this fellow isn't the problem, and we have no power over this fellow, so we can't say shift anything because he's not involved as this case is before us. So you-- nice information; unfortunately, nothing you can do with it. MS. DUSEK: If we say something that this must be accomplished in 30 days, if the road opens prior to that 30 days, the business must cease until the netting is put up. CHAIRMAN FLEGAL: Well, we've already been told by the county the road's going to open on the 30th. So I think we need to accept -- because the county's the one opening the road, we need to accept their authority that it will open on that day short of a hailstorm or something. MS. GODFREY: And you've got to be reminded the road has been under construction for two years. They've known this requirement was needed. It was necessary so ... MS. DUSEK: Right. I understand that. MS. GODFREY: They wait until the last minute. MS. DUSEK: The only thing is mechanically Michelle just said she thinks it will be a 30 days before -- MS. GODFREY: They had two years. They had the opportunity months ago to take care of this problem and had it done. They started on -- Radio and Livingston started, what, 18 months ago on Radio Road there and they went up that way. So they've known. MS. DUSEK: I understand that, and what I'm saying is we give them the 30 days to complete it and then the fines kick in, but -- MR. PONTE: It doesn't stop the golf balls. MS. DUSEK: Wait a minute. Wait a minute, though. But business must cease and desist once the road opens if the netting isn't Page 100 August 23, 2001 upi CHAIRMAN FLEGAL: Okay. I think we're going to have to put a date with that, and the 30 days -- we don't know that the owner can't get it done sooner than 30 days. I mean, we're making a big assumption that everybody can only do it in 30 days. So I think we need to pick dates and give a definite date to do things. And as far as fines go, as with everybody else, they can always ask for an abatement, but I think to install the netting by X, if it is not installed by X, you then cease and desist until it is installed, and then the fine starts at X. MS. TAYLOR: Then that's August 30th. If it isn't done by August 30th, the business must stop. CHAIRMAN FLEGAL: That's what I would take from that, because that's the day the road opens. MR. LEHMANN: That simplifies that. MR. PONTE: But what -- what -- what authority do we have to do that? We can tell the owner anything, but the owner is going to be -- what's his incentive to do it, to stop it? range will keep on shooting the balls out. problem at all. MS. TAYLOR: think twice. The owner of the driving We're not addressing that Well, when the fines kick in, then he's going to MR. LEHMANN: The gentlemen who would be responsible for paying the fines are not paying the fines. If my colleague is -- if I understand my colleague -- MR. PONTE: That's what I'm saying. MR. LEHMANN: We are finding against the owner of the property and the first leasee of the property. The operator of the golf course is second leasee to the first leasee. So by instilling fines to the owner and the first leasee we have not got to what would be the cause of the problem. Page 101 August23,2001 CHAIRMAN FLEGAL: Unfortunately, it wasn't brought before us, so you can't be concerned about that. MR. PONTE: It was an emergency situation which is the golf balls. MR. LEHMANN: Well, maybe the solution to this thing is something much more simpler as far as an order of the board. Just say, listen -- you know, "As soon as the road opens, you cease and desist all operations until the netting gets installed per the SDP." MR. PONTE: That's what we're saying. I'm just not sure who we address that to. MR. LEHMANN: The people that we have addressed. MS. DUSEK: Well, I think -- I think you have to give dates, though. I think you have to say that the operation ceases and desists by -- on August 30th. The netting must be completed by September 30th, whatever date we decide, or the fines kick in, something to that effect. Since the road is opening on August 30th, we know it's impossible for him to get the netting up by August 30th. So you give him time, another 30 days or whatever, and then the fines kick in, but the operation must stop. MR. PONTE: If the operation stops, then there's no reason for the netting. MR. LEHMANN: Let -- let me throw something else on the table. MR. PONTE: If the operation stops, then there's no reason for the netting. CHAIRMAN FLEGAL: Okay. I think we got way off field. I mean, this is all mumbo jumbo. Let's get back to reality. You have a golf course, and we're talking safety issues, golf course going to Livingston Road. Your choice is, period, that you do the following: You cited the owner and the man that is leasing the property and agreed to the SDP and agreed to have this golf course and agreed to Page 102 August 23, 2001 put up the netting, and he hasn't done it. You cite him to give him X days to do it. If he doesn't he must cease operation. If on that day the county says he hasn't ceased operation, then, I guess, what we do is direct the county attorney's office to go to court and get an injunction and put him out of business, period. The poor guy that is subleasing isn't part of this conversation, unfortunately, so you got to quit considering him. That's reality. MS. TAYLOR: Well, then you say it. CHAIRMAN FLEGAL: I mean, we're all talking about the guy's going to stay in business. No. You have a county attorney. You direct him to do something. And I'm sure they'll go over to the courthouse, get an injunction, send the sheriff over there to shut the guy down, and he won't be driving golf balls. Real simple. I'm sorry; that's just reality. MS. TAYLOR: Is that a motion? CHAIRMAN FLEGAL: No. I'm trying to get everybody back to reality and make a motion. MS. DUSEK: I think we're all saying the same thing. ! think we realize that the operation has to stop for the safety of the public, but if the operation -- we don't want to just put somebody out of business. If he can accomplish this within three weeks, but the first week -- I'm getting confused myself. August 30th he has to stop the operation of the business, but he has until a certain time. Even if he's out of business for three weeks, he may still want to function in that business at a later time once he gets that net up. Do you understand what I'm saying? CHAIRMAN FLEGAL: I understand. I think it's easier-- I don't like to make motions as a chairman, but I'll try. I think the motion should be along this line. I may have to ask Ms. Rawson -- do we make this -- is it -- I don't know the right word -- reality to make this order against the property owner and the leasee. I mean, I Page 103 August 23, 2001 guess we can come back at a later date because I don't know what the property owner -- what effect he may have on the leasee and the legality. I mean, we're not reading leases and all that other mumbo jumbo. I want to do it as direct as possible to get the problem solved by the 30th and -- MS. RAWSON: If you make the order against both the leasee and the landowner, probably you're going to insure that it gets done. CHAIRMAN FLEGAL: It gets done. Okay. MS. DUSEK: I have a question before you start your motion, Cliff. And in the recommendation by the staff, you said no later than two weeks from the opening of the roadway and yet you considered this an emergency situation. CHAIRMAN FLEGAL: We talked about that previously, and I asked Ms. Rawson. I said, "I don't think we can legitimately call this an emergency and then because we're worried about the road opening and then give the guy two weeks after the road opens. That's not what I call an emergency, so we will wipe out that part of it." Their recommendation falls short there, so we're not even going to consider that. My motion would be that the respondents -- get back to their names -- McAlpine Briarwood, Inc., and Charles Hitchcock install a 50 foot safety netting along the Livingston roadside of the property as well as installing the required landscaping and -- remember the other word "irrigation" as required by the SDP no later than August 30th. MS. ARNOLD: Can I make one -- ask one question? Could we say "required netting, landscaping, and irrigation" instead of 50 feet? CHAIRMAN FLEGAL: I thought it said 50 foot on the SDP. MS. ARNOLD: Well, it says, "extend the netting." It doesn't really -- CHAIRMAN FLEGAL: Well, the netting is 50 foot on the drawing you showed me. Page 104 August 23, 2001 MS. ARNOLD: Right. It's 25 in one portion and 50 in another portion. MS. TAYLOR: And that's what's required; right? CHAIRMAN FLEGAL: But the 50 is down to Livingston Road so when you extend it, you're extending a 50 foot piece of netting. MR. PONTE: It's the height. That doesn't sound like height, 50 foot length of netting. MS. ARNOLD: I think we'll be covered if we just say "required netting, landscaping, and irrigation." CHAIRMAN FLEGAL: Okay. That's the next part of it. I have no problem with that. Okay. So that's-- MS. DUSEK: I just have one question with that part, Mr. Chairman, and that is the landscaping, to have that all done within the week? MR. PONTE: Should be separated. MR. BELLOWS: Can I comment on the -- can I comment on the landscaping? MS. DUSEK: Yes. MR. BELLOWS: I used to own my own landscaping irrigation company, and it takes no time to put in irrigation and landscaping down there. They can do that within a week. MS. DUSEK: If they get the people to do it. That's the problem here. MR. BELLOWS: You can make it as the same requirement as the netting. CHAIRMAN FLEGAL: I mean, I don't have it -- if you want to separate it, we'll separate it. I'm not adverse to that. What I'm trying to do is get this forward and get it over with. If you want it as two sentences, we can break it up that the two people -- my motion change it and make it that McAlpine Briarwood, Inc., and Charles Hitchcock install the netting, the continuation of the netting as Page 105 August23,2001 required by the SDP before August 30th -- before August 30th. Whether they do it tomorrow or the night of the 29th I don't care just so long as it's before the 30th. MS. SAUNDERS: Do you want to add to that "or cease operation"? CHAIRMAN FLEGAL: I haven't gotten that far yet. Item 2 would be that McAlpine Briarwood, Inc., and Charles Hitchcock install landscaping and irrigation as required by the SDP before September 7th. Item 3, failure to install the netting by the August 30th date -- and I don't know all the legal words -- Ms. Rawson will -- institute or something -- an immediate cease of operation of the driving range on said property. Whatever -- however you would put that legally would be nice. Let's see, that respondents McAlpine Briarwood and Charles Hitchcock be responsible for paying the prosecution costs for bringing this case before the board. I think we're down to Item 5, failure to install the landscaping and irrigation by September 7th will institute a fine of $50 a day. MS. DUSEK: Fifty dollars, yes. CHAIRMAN FLEGAL: Reason I'm not putting a fine on the netting is we'll put them out of operation, so you can't fine them since you put them out of business. We just want them to get the netting up. So there's five items. That's my motion. I don't know if I missed anything. MR. PONTE: What we missed was -- you did it and stopped, because we don't have the wording actually "failure to install the netting by August 30th will" -- I know what we're trying to say -- you threw it to Jean, but I don't know. CHAIRMAN FLEGAL: No. Jean? MS. TAYLOR: Result in-- CHAIRMAN FLEGAL: That was my Item 3; wasn't it, I put that as Item 3. I said, "If you Page l06 August 23, 2001 don't have the netting by August 30th." MR. PONTE: That he not-- CHAIRMAN FLEGAL: That's what I told her to do. Oh, really? That you will go out of business, MR. PONTE: cease and desist? MS. DUSEK: She's got to word it correctly. CHAIRMAN FLEGAL: You're going to stop doing the driving range. MR. PONTE: That's my question. What does it say? CHAIRMAN FLEGAL: Cease and desist, or whatever I said there. MS. RAWSON: Item 3 is if the safety netting is not installed by August 30th, 2001, then the driving range operation is to cease until the netting is installed. MR. PONTE: Okay. Thank you. CHAIRMAN FLEGAL: MS. TAYLOR: Okay. CHAIRMAN FLEGAL: I thought I did that. Okay. I think I covered everything. MS. DUSEK: You did a very good job. I had one question. CHAIRMAN FLEGAL: Okay. MS. DUSEK: And this really to go to Jean before we vote on this. If they don't cease, does this automatically mean that the county will go out, or do we have to include that? CHAIRMAN FLEGAL: I don't think the order will say that. I think once we vote on the order and it is an order, we can then direct or ask -- we can't direct code enforcement to do anything. We can ask code enforcement that if they go out on the 30th and the netting is not up, we would then like them to inform the county attorney's office, and we would direct the county attorney's office to take the next step, which is get an injunction, because they're not following our order and go out there and serve it. I think that's the proper Page 107 August23,2001 MS. ARNOLD: MS. RAWSON: copy of the letter. procedure. I'm not sure, but the county attorney's office is here, and hopefully I said it the right way. MS. DUSEK: So we don't need to include that in our order? CHAIRMAN FLEGAL: No. Because our order is to the respondents. We're not giving an order to the county attorney's office. That would be a direction should the order not be obeyed. MS. DUSEK: Second. CHAIRMAN FLEGAL: So we have a motion and a second. Any further discussion? Gee, great. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. Michelle -- MS. DEPAUW: What was the last date? CHAIRMAN FLEGAL: September 7th for the landscaping and the irrigation. Michelle, when your people go out on the 30th to check on the netting, if it is not there, I would like you to inform the county attorney's office. And we're telling them now that if she informs you it's not there, we would like you to get whatever legal paper you need to go out there and serve them and put them out of business until they do it. MS. DUSEK: Michelle, may I request that you also give a copy of this order to this person. Oh, definitely. I will be happy to do that if you give me a CHAIRMAN FLEGAL: That was the last case. I close the public hearings. MR. BELLOWS: Thank you. CHAIRMAN FLEGAL: Thank you. New business is Page 108 August 23, 2001 imposition of fines and, hopefully, these will go quickly because it's administrative and the county's just going to present each one, and we'll take a vote on each one. MS. ARNOLD: This first one is -- CHAIRMAN FLEGAL: I think it's Free Methodist Church. Is that the one you have? Do you know? MS. TAYLOR: Came into compliance, didn't they? CHAIRMAN FLEGAL: We didn't impose the fines. They went a couple days past. MS. ARNOLD: Right. This first case is Board of County Commissioners versus the Florida Conference of Free Methodist Church, Code Enforcement Board Case 2001-005. We heard this particular case on February 22nd, 2001. At that time the board found the respondents in violation and ordered them to secure the building within 14 days, and that was by March 14th, and in the event that they did not comply that the county would go ahead and take care of the securing of the building. Staff has prepared an Affidavit of Noncompliance for the dates of March 15th and 16th and is requesting that the board impose fines in the amount of $600 for the abatement of the violation. CHAIRMAN FLEGAL: Okay. The $600 is -- that's the cost for the county doing it? MS. ARNOLD: Yes. Yes. CHAIRMAN FLEGAL: Okay. I need a motion to impose the fine. impose the fine of $600 against the Free Methodist Church. in favor signify by saying aye. MS. DUSEK: So moved. CHAIRMAN FLEGAL: Do we have a second? MS. GODFREY: I will second that. CHAIRMAN FLEGAL: We have a motion and a second to All those Page 109 August 23, 2001 MS. SAUNDERS: Aye. MS. GODFREY: Aye. MR. LEHMANN: Aye. CHAIRMAN FLEGAL: MS. DUSEK: Aye. MR. PONTE: Aye. CHAIRMAN FLEGAL: MS. TAYLOR: No. Aye. Any opposed. CHAIRMAN FLEGAL: Six to one. Next case. MS. ARNOLD: The other is Board of County Commissioners versus Terry. N. Arce and Albertina Cardona. This case was 2001-023. It was heard by the board on April 26th and at which time a finding of fact and conclusion of law found the respondent in violation of the code cited. The respondent was required to obtain all applicable after-the-fact permits and submit an approved mitigation plan within 7 days and complete such mitigation plan within 60 days. The respondent was also ordered to pay operational costs, and in the event that they did not comply with the board's order, fines of $25 per day would be imposed. Staff is requesting that the board issue an imposition of fine in the amount of $350 for the period of July 26th through August 9th, which is at a rate of $25 per day, and an additional $430.10 for operational costs. MR. PONTE: Before we vote on that, Michelle, I had gone back to just check my records -- my personal records on this case indicated that we were going to fine $50 per day. It was originally 25, and I thought we changed it to 50. Maybe you could check that and verify that. MS. ARNOLD: Yeah. We'll have to -- CHAIRMAN FLEGAL: The actual order of the board is 25. MS. ARNOLD: Right. Page 110 August 23, 2001 CHAIRMAN FLEGAL: That's what was signed and mailed out, so all I can conclude is that's what we voted on. That's what it is. MS. ARNOLD: Yeah. I mean, if you like, I can look at the minutes for that. CHAIRMAN FLEGAL: If the order's been issued, it's 25. Again, the minutes mean nothing. The order's the order. It's 25. So I need a motion to impose the fine. MS. TAYLOR: So moved. CHAIRMAN FLEGAL: second from-- MS. DUSEK: Second. CHAIRMAN FLEGAL: aye. We have a motion from Diane and All those in favor signify by saying (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) MS. ARNOLD: Next item, Board of County Commissioners versus Ronald A. Haar, Jr. This Board of-- CEB Case 2001-031. This case was heard by the board on the 24th of 2001, and the respondent was found in violation and required to obtain a renovation permit within 60 days by July 23rd. The respondent was also ordered to pay operational costs and in the event that the board's order was not complied with that a fine of $75 per day would be imposed. Staff is requesting that the board issue an imposition of fine in the amount of $525 for the period of July 25th through July 31st. Additionally, operational costs of $528.46. MR. LEHMANN: Michelle, that period of time was July 25th or 24th? My executive summary says the 24th. MS. ARNOLD: The 24th through the 31st, the day after. CHAIRMAN FLEGAL: Had to get it by the 23rd, so it should start the 24th. Page 111 August 23, 2001 MS. ARNOLD: Right. CHAIRMAN FLEGAL: Entertain a motion. MR. LEHMANN: So moved. MS. TAYLOR: Second. CHAIRMAN FLEGAL: Motion and a second to impose the fines. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) MS. ARNOLD: The next item Board of County Commissioners versus Enrique Iglesias. This is Case No. 2001-037. This case was heard on the 24th of May 2001 and the respondent was found in violation and ordered to submit and obtain an approved mitigation plan within 30 days by June 23rd and complete the same mitigation plan within 60 days, of approval by 23rd of July. That doesn't-- I question that date because -- oh, well, within 60 days. Not 60 days of approval. The respondent was also required to pay operational costs and in the event that they did not comply with the board's order fines of $75 per day would be imposed. Staff is requesting that the board issue imposition of fines in the amount of $4,725 for the period of June 23rd through August 9th as well as $614.88 operational costs. CHAIRMAN FLEGAL: Entertain a motion to impose fines. MS. TAYLOR: So moved. MR. LEHMANN: Second. CHAIRMAN FLEGAL: A motion and second. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) Page 112 August 23, 2001 CHAIRMAN FLEGAL: Michelle, on this one I would probably recommend that since our fine is getting up there that that now when we file this, the three-month clock starts running once we file it, that you might keep track of this so you can tell us in case we want to advise the county attorney to foreclose. Because if this gets too big -- I don't know what the property's worth, but it may get above and beyond what's reasonable. MS. ARNOLD: Okay. We will do that. The next case is Board of County Commissioners versus Claude Martel. This is Case 2001- 055. This case was heard on June 28th, 2001, at which time the respondent was found in violation and requested to remove all litter within 30 -- let me check what it says. CHAIRMAN FLEGAL: Within 30 days. MS. ARNOLD: Was it 30 days? CHAIRMAN FLEGAL: Yeah. Remove litter and weeds within 30 days, July 28th. MS. ARNOLD: Okay. Within 30 days and pay operational costs. Further, the respondent was ordered to pay $100 per day in the event they did not comply with the board's order. At this time we're requesting that we issue imposition of fines in the amount of $1,100 for the period of July 29th through August 9th and operational costs in the amount of $626.92. CHAIRMAN FLEGAL: We need a motion to impose the fines on this case, please. MS. TAYLOR: So moved. CHAIRMAN FLEGAL: Do I have a second? MS. GODFREY: Second. CHAIRMAN FLEGAL: We have a motion and a second to impose the fines. All those in favor signify by saying aye. Unanimous response.) CHAIRMAN FLEGAL: Any opposed? Page 113 August 23, 2001 (No response.) MS. ARNOLD: The next case is Board of County Commissioners versus James Seals and Marion Smith. This is Case 2001 -- can't find it-- CHAIRMAN FLEGAL: 2001-056. MS. ARNOLD: Yeah. I skipped through too many pages here, 056, and this case was heard on June 28,2001. And the respondent was found in violation and ordered to remove all litter within 14 days as well as pay operational costs. Fines of $25 per day would be imposed in the event that the board's order was not complied with. Respondent has obtained compliance as ordered by the board; however, staff requests at this time to impose operational costs in the amount of $393.86. CHAIRMAN FLEGAL: I need a motion to impose the cost for prosecuting the case before the board. MR. PONTE: So moved. MR. LEHMANN: I'll second. CHAIRMAN FLEGAL: second. Any discussion? MR. LEHMANN: Yes. Okay. We have a motion and a Release the order of Affidavit of Compliance. So compliance was actually completed when? Oh, I apologize. You're just citing operational costs. CHAIRMAN FLEGAL: Right. Yeah, no fine. Just operational costs as the order states. 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.) MS. ARNOLD: And, finally, Board of County Commissioners versus Jean Claude Martel, Code Enforcement Board 2001-058. This case was heard on the 28th of June 2001, and the respondent was Page 114 August 23, 2001 found in violation and ordered to remove all litter within 30 days and to pay operational costs. In the event that the board order was not complied with, a fine of $100 per day would be imposed. Staff is requesting that the board order imposition of fine in the amount of $1,100 for the period of July 29th, 2001, through August 9th, 2001, and operational costs of $619.12. CHAIRMAN FLEGAL: I'd entertain a motion to impose the fines. 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: Any opposed? (No response.) CHAIRMAN FLEGAL: Affidavits of Compliance. MS. ARNOLD. We have three, one of which is the Board of County Commissioners versus Florida Conference -- MR. LEHMANN: Michelle, excuse me, just point of order. The next item on the agenda is the CEB Rules. CHAIRMAN FLEGAL: Well, I was trying -- I was just trying to get the other things out of the way. MS. ARNOLD: Right. These are quick. CHAIRMAN FLEGAL: Administrative -- I think easier to just do them and then come back and do that one. MS. ARNOLD: If I may continue. The first report is an Affidavit of Compliance for the Board of County Commissioners versus the Florida Conference of the Free Methodist Church. They are now in compliance. The other is the Board of County Commissioners versus Ronald A. Haar, Jr. And the third is Board of County Commissioners versus Page 115 August 23, 2001 James Seals and Marion Smith. All of them are now in compliance. CHAIRMAN FLEGAL: Good. Thank you. Last item is discussion and approval of our rules and regulations. MS. ARNOLD: Before we start that, I did check on our break with the county manager's office regarding availability of this room for that bird case. Just going to throw those dates out to you, and if you-all could get back to me after you check calendars. One date is Tuesday the 4th, which is after Labor Day. CHAIRMAN FLEGAL: Okay. MS. ARNOLD: Monday the 10th, which is the following week, and Friday the 14th. CHAIRMAN FLEGAL: I think the 10th is a great day. MS. TAYLOR: I do too. MR. LEHMANN: That's fine. I'll work around it. CHAIRMAN FLEGAL: How about the 10th for everybody, okay? Tenth? Tenth? Tenth? Everyone, but you're not sure yet. MS. DUSEK: It sounds fine, but I don't know. CHAIRMAN FLEGAL: Do you know, George? MR. PONTE: I don't think so. MS. ARNOLD: If you-all just want to give me a call. CHAIRMAN FLEGAL: Tell everybody -- I'll be out of town on the 14th, so those of you that have a question, why don't you get back to Michelle. If it looks like we'll miss three of you, then we'll try to readjust. Jean, how are those dates for you? MS. RAWSON: Well, the 14th is the best date for me because it's the furthest one out and I have less to move, and I guess what was the other one, the 10th? CHAIRMAN FLEGAL: Least? MS. RAWSON: Next worst or next least worst. CHAIRMAN FLEGAL: I think the 4th is probably too short, really. It's a day after a holiday, and there's going to probably be a lot Page 116 August 23,2001 of people out-of-pocket after the holiday. Maybe the other attorney trying to get everyone would be a problem. The ones of us that have a problem with the 10th why don't you get to Michelle and tell her yes or no and, Michelle, if it looks like it's a no for the other three, then come back to the rest of us and say, "The 10th isn't going to work we're going to have to do the 14th." And then we'll all just have to adjust. I'll make whatever date work -- work for me. I'll fit it in so I'm available for whatever. MS. ARNOLD: We're tentatively doing the 10th and then -- CHAIRMAN FLEGAL: If that fails I think the 14th is next logical one. MS. TAYLOR: And our regular meeting is on the 27th? CHAIRMAN FLEGAL: On the 27th. MS. SAUNDERS: I would just like to raise my question again on the 27th. I feel that this is one Jewish holiday that should be exempt from those kinds of things. It's like saying you're going to hold a hearing on Christmas Day. MS. TAYLOR: Are you the only one affected by that? MS. SAUNDERS: I don't know, but I would think the public would be. MS. RAWSON: Is the courthouse closed that day? I bet it is. CHAIRMAN FLEGAL: The county's not off that day, is it? I didn't think so. MS. SAUNDERS: No, the county would not be off. CHAIRMAN FLEGAL: So it's just, unfortunately, another day. MS. SAUNDERS: Okay. I think it's in very bad taste, that's all. CHAIRMAN FLEGAL: Okay. Now, we're back to the rules and regulations. It's quarter after one. We had gotten some exhibits, and with the last draft we got lots of questions, because there's some stuff that don't match the other draft we're working on, so we have a lot to change, so this isn't going to be quick and fast or whatever good Page 117 August 23, 2001 words. Would it be acceptable -- this special meeting we're going to have and whatever this day is, since it's just one case, why don't we do this then? MS. DUSEK: What I'm thinking is we keep postponing this every single month because of a full docket. If we could at least get started with part of it. CHAIRMAN FLEGAL: There is nothing panicky to change. MS. DUSEK: But, I mean, we have to get this resolved sooner or later. And I think every time we have a meeting we find a reason not to do it. CHAIRMAN FLEGAL: ! don't see it that way. MR. PONTE: Just in the interest of freshness, if we were to tack it on to the special meeting, whenever that is, and just have the two issues, just have the two items. MS. DUSEK: That sounds like it's going to be an awfully long meeting. CHAIRMAN FLEGAL: Let's say it lasts two hours. We've been here since nine. We'd be a lot fresher at 11 than at 1:15. CHAIRMAN FLEGAL: I mean, we changed the thing that everybody wanted that was important, which was picking a chairman, so the other stuff is -- I mean, we can't -- really can't do anything until later anyway. Why don't we just get it done once and be done with it rather than a paragraph at a time. MS. TAYLOR: What if I think something needs to be added. Should I wait? CHAIRMAN FLEGAL: Well, when we get to it, you want to add something, yeah, we need to get it all in there, if somebody has something. Let's not keep revising this every month. Let's do it once and, hopefully, it'll last for a year or two or three, but I'm, you know, at the -- whatever the board wants to do. I'm just saying it's getting late, you know, for all of us who haven't had lunch yet. Page 118 August 23, 2001 We're operating fairly well and trying to follow all the rules, and another couple of weeks or another month or so, I don't think it's a big panic as long as we do it. That's the important thing. So I'm open to suggestions. Do it now. Do it at the special meeting. Do it at the next regular meeting, or whatever. MR. PONTE: I move that we attach it to the special meeting agenda. MS. TAYLOR: Or order pizza. CHAIRMAN FLEGAL: That doesn't sound too bad. MR. LEHMANN: Cliff is buying. MS. DUSEK: If we do it at that meeting, I would like to make sure that it gets done that day. I think-- CHAIRMAN FLEGAL: I understand what you're saying, Bobbie. MS. DUSEK: I want to get it over with, and we're going to keep finding changes and keep finding changes. I want to get this over with. CHAIRMAN FLEGAL: I think that's what it's all about too. I mean, if it needs to be changed, we need to change it. Okay. We have a motion that we do it at the special meeting. Second to that or MS. TAYLOR: I'll second that. CHAIRMAN FLEGAL: We have a motion. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: All those opposed? (No response.) CHAIRM FLEGAL: Michelle, will you add it to our -- that will be the only two items we have, the one case and this. Next meeting is a special meeting on whatever date Michelle finally gets everybody's agreement on, the 10th or 14th, and then after that our Page 119 August23,2001 regular meeting is the 27th. I'd entertain a motion to adjourn. MS. TAYLOR: So moved. MR. LEHMANN: Second. CHAIRMAN FLEGAL: I have a motion and a second. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Thank you. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 1:19 p.m. CODE ENFORCEMENT BOARD CLIFFORD. FLEGAL, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY CAROLYN J. 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