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CEB Minutes 09/27/2001 RSeptember 27, 2001 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD OF COLLIER COUNTY Naples, Florida, September 27, 2001 LET IT BE REMEMBERED, that the Code Enforcement Board, in and for the County of Collier, having conducted business herein, met on this date at 9:01 a.m. In REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Clifford Flegal Roberta Dusek Peter Lehmann George Ponte Diane Taylor NOT PRESENT: Kathryn M. Godfrey-Lint Darrin M. Phillips Rhona Saunders Kathleen Curatolo ALSO PRESENT: Jean Rawson, Attorney, Code Enforcement Board Maria E. Cruz, Code Enforcement Official Michelle Arnold, Code Enforcement Director Page 1 COD_E_ENFORCEM~T BOARD OF COLLI~-R COUNTY. FLORIDA_ DaCe: Sep~e~e~ 27, 2001 ac 9:00 o'cl~k A,H. Location: 330~ ~. ~mf~ T~., ~aple~, Florida, Col~e~ County Gove~n~ Cen~r, NOT~: ~ PERSO~ ~0 DECIDES ~0 APP~ A DECISION OF ~HIS B~ ~LL NE~ A RECO~ OF T~ PROCEEDINGS P~RTAINING ~ER~O, ~ ~E~FO~ ~y ~ TO ~S~ ~T A V~R~TIM ~CO~ OF T~E PR~EEDINGS IS ~E, ~ICH ~O~ IN~ES TH~ T~TIMO~ ~ ~ID~CE UPON ~CH T~ ~p~ IS ~ ~ ~S~. ~ITHEa COLLI~ C~ NOR ~E COD~ ~ORCE~NT BO~D S~LL BE ~SPONSIBLE FOR PROVIDING THIS R~CO~. 2. ~PPROVA~ OF A;END~ 3. ~PPROVAL OF HZNUTES August 23, 2001 A. BCC vs. WilXimm G. Schrack and Eric William Schrack B. BCC vs. Charles ~. Goings C. SCC vs. ~erald K. Davidson D. BCC vs. Ricky L. Bell A. BCC vs. Stephen N. Nedinger B. BCC vs. Stephen M. Medinger C. BCC vs. Randy b. Johns and borria J. D. BCC vs. Chad Ducton E. ~CC v~, Adol£o Carca F. BCC vs. B. F. F~. Myers, Inc. G. BCC vs. Blas Valsez, Rober~o A. BCC vs. Dale L. & Cheryl A. S. BCC vs. Todd A. and Lisa A. Mas~ro DAi~isAonlnd a~J;)ro~Ll o£ (:~Blmxel ?. F~liz~gAf£idavica of A. BCC vs. Dale L. & Cheryl A. Horbal B. BCC va. Todd A. and Lisa A. Mastro C. BCe vs. Stephen ~. ~edAnger D. BCC vs. Stephen M. Medinger £. 9CC vs. Chad Du==on F. BCC vs. Adolfo Carta G. BCC vs'. B. P. F~. ~yers. Inc. H. BCC vs. ~las Valsez. Rober~o So~o October 25, 2001 CEB No. 2001-041 CER No. 2001-076 CEB No. 2001-077 CEB No. 2001-078 CEg ~o, 2000-035 CE9 No. 2000-036 CEB No. 2000-042 CEB No, 2000-053 C~ No. 2000-0S4 CEB No. 2000-062 CEB No. 2001-070 CEB NO. 99-069 CEB No. 2000-029 CEB No. 99-069 CEB No. 2000-029 CEB No. 2000-035 CEB No. 2000-036 CEB No, 2000-0~3 CEB No. 2000-054 CEB No. 2000-062 C~B No. 2001-070 September 27, 2001 CHAIRMAN FLEGAL: We'll call the meeting of the Code Enforcement Board of Collier County to order. Please make note that any person who decides to appeal a decision of this board will need a record of the proceedings pertaining thereto and, therefore, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Neither Collier County nor the Code Enforcement Board shall be responsible for providing this record. Roll call, please. MS. CRUZ: Good morning. For the record, Maria Cruz, code enforcement investigator. Let the record show the following members have called in and informed they will be absent: That's Kathryn Godfrey, Darrin Phillips, and Kathleen Curatolo. Roberta Dusek. MS. DUSEK: Here. MS. CRUZ: Clifford Flegal. CHAIRMAN FLEGAL: Here. MS. CRUZ: Peter Lehmann. MR. LEHMANN: Here. MS. CRUZ: George Ponte. MR. PONTE: Here. MS. CRUZ: Rhona Saunders. (No response.) MS. CRUZ: Diane Taylor. MS. TAYLOR: Present. MS. CRUZ: Thank you. CHAIRMAN FLEGAL: Approval of our agenda. Are there any changes, additions, corrections to the agenda? MS. ARNOLD: For the record, Michelle Arnold, code enforcement director. I have no changes to the agenda. I just would like to make one introduction, if I may. I have hired a new supervisor Page 2 September 27, 2001 within my department, and I just wanted to have him stand up for a moment to introduce him. His name is Kenneth Tahfs, and he's been with us for about two weeks. You may be seeing him a little bit more often at these meetings but -- or recognizing his name on some of the reports that you review from time to time. CHAIRMAN FLEGAL: Good. MR. LEHMANN: Welcome, sir. MS. TAYLOR: Welcome. CHAIRMAN FLEGAL: The only note I would make on our agenda, hopefully we're going to get to our rules and regulations. Since they're under old business, I would recommend to the board that we do all our other business first, file everything and make that the last item we discuss. Other than that, that's just a comment. Since there are no changes or additions, I would entertain a motion to approve the agenda. MR. LEHMANN: So moved. MS. DUSEK: Second. CHAIRMAN FLEGAL: We have a motion and a second. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Approval of minutes from August 23rd. Are there any changes or corrections to the minutes as submitted? Hearing none, I would entertain a motion to approve the minutes as submitted. MR. PONTE: So moved. MS. TAYLOR: Second. CHAIRMAN FLEGAL: We have a motion and a second to approve the minutes as submitted. All those in favor signify by saying aye. (Unanimous response.) Page 3 September 27, 2001 CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. We'll now open our public hearings. First item, Board of County Commissioners versus William Schrack -- I hope I said that right -- and Eric Schrack, Case 2001- 041. MR. MOON: Good morning again. It's my understanding that we were supposed to be here to argue -- I'm sorry. James Moon for the defendants. It's my understanding we were supposed to be here to argue the two points that we're allowed for an appeal today as opposed to a hearing itself. And this morning there was something else that came to light after speaking with a code enforcement officer. I would ask for a 30-day continuance because it's brought to my attention that there is a possibility of a commercial exemption for the Schrack family, and we'd like to explore that opportunity because if he is given a commercial exemption, this matter would be over. MS. TAYLOR: Why would you say commercial when these are for tenants? MR. MOON: This is a commercial business. MS. TAYLOR: But also isn't there a whole line of tenants that are included in this? MR. MOON: No. That's not correct. This is one business, All Seasons of Naples. He's the only tenant in the building. He's a commercial tenant. And Mr. Schrack had previously submitted a -- for an exemption. And I believe the exemption that he submitted, if I'm not mistaken, was a residential exemption, and I think code enforcement had sent that back to him saying that was incorrect. But we'd like the opportunity to submit it because I think the one he did fill out originally last year was a residential, and you guys -- CHAIRMAN FLEGAL: Okay. Let's stop a minute. Everybody stop. First of all, we haven't heard this case yet, so you get two Page 4 September 27, 2001 choices. You get to hear the case, or you can ask for a continuance. I don't want to -- you don't need to be talking about it because we don't know anything about it yet. It hasn't been presented to us. It hasn't been here. So those are your two choices right now: We can hear it, or you can ask for a continuance. MR. MOON: Okay. We'd ask for a continuance for 30 days so we can explore the possibility of a commercial exemption. And, like I said, it was my understanding that I was simply here to argue for the rehearing under two specific points that counsel had told us at the last hearing we could do, and it's my understanding that the county attorney's office is prepared to go forward on a hearing. MR. LEHMANN: Mr. Moon, might I refresh your memory. On July 18th, at that hearing, you and your client were informed that a commercial exemption does exist. We had asked you specifically whether or not you had applied for that. The answer was no. We had asked the county specifically whether that was applied for. The answer was no. So your client and yourself have known that a commercial exemption does exist since that meeting. MR. MOON: If I could stop you, my client has never been present before the board. On July 18th I can assure you he was not present, and I can assure you that he did not answer that question. If you check the notes, you'll see that neither Mr. Schrack, William or Eric, was present before this board. I mean no disrespect to you for that, but if it was brought to our attention before this morning, I would have had my clients, most certainly, fill out a commercial exemption. It's been brought to my attention today, and now I'm stuck here, you know. I would like the opportunity to do this, but I can't because here it is 9 a.m., and I'm at the hearing. CHAIRMAN FLEGAL: Okay. Are you asking this board for a continuance? MR. MOON: Again, I ask the board for a 30-day continuance. Page 5 September 27, 2001 There would be no prejudice. CHAIRMAN FLEGAL: What's the county's pleasure? for a continuance. Okay. That's all. End of sentence. We'll hear your side. They've asked MR. ZACHARY: Robert Zachary, county attorney's office. The county is ready. I really don't have an objection to the continuance. The outcome of all this is either his client has to comply -- has to comply with the ordinance. And if he gets a commercial exemption, that will put him into compliance, and that's what we really want to get done. CHAIRMAN FLEGAL: Right. MR. ZACHARY: So, I mean, if he's assuring us that within the 30 days he will have that exemption or at least have it applied for, I don't really have a problem with the continuance. CHAIRMAN FLEGAL: Okay. Thank you. Thank you, sir. MS. ARNOLD: Mr. Zachary, can I ask you a question with respect to this? On the notice of violation -- or I guess I should refer this to Mr. Moon. There is a notice of violation that indicates on there some -- well, it's about the commercial service. It's not about the exemption. Have your -- has your client been receiving notices from the solid waste department? MR. MOON: I believe he's refused all of the notices. They're sent via certified mail, and they were sent to an old address. The client does not live at that address, and that's one of the problems. CHAIRMAN FLEGAL: Okay. All this board is interested in-- MR. MOON: I'm sorry. I was just -- CHAIRMAN FLEGAL: I understand. We're not interested in any of that either. Request for a continuance or for us to hear the case. Right now you asked for a continuance. The county has no objection. I'll put it to the board. There's been a continuance requested till the next meeting, but I would entertain a motion to that Page 6 September 27, 200 ! effect or a motion to deny the request. MR. PONTE: Motion to continue, I'd make that motion. CHAIRMAN FLEGAL: Okay. Do we have -- MS. DUSEK: Second. CHAIRMAN FLEGAL: We have a motion and a second to continue to our next meeting. Any further discussion? All those in favor signify by saying aye. MR. LEHMANN: Aye. CHAIRMAN FLEGAL: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. CHAIRMAN FLEGAL: Any opposed? MS. TAYLOR: Yes. CHAIRMAN FLEGAL: Okay. 4-1. It's continued till the next meeting. MR. MOON: Thank you. CHAIRMAN FLEGAL: The next case, Board of County Commissioners versus Charles Goings, Case 2001-076. MS. CRUZ: Let the record show that the respondent, Charles Goings, is present. I'd like to request that the packet that was submitted to the board and also served to the respondent be admitted into evidence, marked Composite Exhibit A, if there's no objection from the respondent. CHAIRMAN FLEGAL: Is Mr. Goings here or a representative? MS. CRUZ: Yes, sir. CHAIRMAN FLEGAL: Do you object to the county submitting their package to us, sir, so we could -- MR. GOINGS: No, sir, I do not. CHAIRMAN FLEGAL: Okay. Thank you. That's all for right now. You can sit down, please. Page 7 September 27, 2001 Hearing no objection, I'd entertain a motion to accept the county's exhibit. MR. LEHMANN: So moved. MS. TAYLOR: 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.) CHAIRMAN FLEGAL: Thank you. MS. CRUZ: This is Case No. 2001-076, Board of County Commissioners versus Charles H. Goings. The alleged violation before this board is the violation of Section 1.5.6 and Section 2.7.6, paragraphs 1 and 5 of Ordinance No. 91-102, the Collier County Land Development Code. The description of the violation is enclosure of a carport and placement of a shed structure without first obtaining the proper permits. The violation exists at 547 101st Avenue North, Naples, Florida, and this is more particularly described as Naples Park No. 3, Block 39, Lot 13. Owner of record, Charles H. Goings. Address of record, 547 101st Avenue North, Naples, Florida. The violation was first observed on November 1 lth, 2000. A notice of violation was provided to the respondent on January 9th of 2001 with a correction date of January 30th, 2001. The last reinspection was conducted yesterday resulting in violation remaining. At this time I'd like to present Investigator Shawn Luedtke. MR. LUEDTKE: Good morning. Shawn Luedtke, Collier County code enforcement investigator, for the record. CHAIRMAN FLEGAL: Will you swear him in. And, Mr. Goings, would you stand up and be sworn in, please. (The speakers were sworn.) Page 8 September 27, 2001 MR. LUEDTKE: Again, Shawn Luedtke, Collier County code enforcement investigator, for the record. I received a complaint on November 7th of 2000 in reference to a shed and an enclosure of a carport into a living structure. I responded on November 11 th and observed the shed on site and the enclosure of the -- of the carport. I pulled property cards, did some research on the property. And on the property card it does have a specific note by the appraiser that there was a 10-foot-by-12-foot aluminum awning-type roof with a dirt floor on the property, which wasn't present during my site visit. I was unable to find any permits for conversion of the carport into a living structure. And I spoke with Mr. Charles Goings on the 29th, and he requested an extension because he felt that he could find permits for that renovation. On February 20th Mr. Goings was going to set up a meeting with our chief builder, Jerry Ballard, to discuss options to correct. He was unable to find any permits at that time. He -- I left a couple messages on March 5th-- excuse me. Correction. Mr. Goings had -- I talked to Mr. Goings on March 5th, and he told me he left a couple messages for Mr. Ballard and had no response. On April 10th myself and Supervisor Jim Hendrixson spoke with Mr. Goings on site and did tell him by April 16th that he did need to either have the process in the works or have some type of progress to abating the violation. We were going to give him two weeks or a citation was going to be issued. On April 23rd we -- we noticed the violation did observe (sic), no permits were obtained, and we sent a citation certified mail to Mr. Goings. On May 9th I received a call from Mr. Goings. He advised me that he request -- that he was granted an extension by Chief Building Official Ed Perico due to some plans problems he was trying to submit. The citation had been issued, so we processed the citation to be dismissed against Mr. Goings because we were unaware of any Page 9 September 27, 2001 extension granted by Mr. Perico. Mr. Perico gave 30 days at that time. We rechecked it on July 10th, violation remained, no further action had been taken by Mr. Goings, so a second citation was sent certified mail, and that citation was returned to us unclaimed. At that time we processed it on July 31 st for a Code Enforcement Board hearing. We were able to find an older permit for -- a '91 permit for the shed, which is no longer an issue. It was CO'd, but we do not -- we weren't able to find any permits for the carport. In 1999, just as a note, Mr. Goings did pull a permit, 6/14/99, to repair the roof to an existing carport, which was not on site when I checked the site back on November 1 lth, 2000. There was no carport. CHAIRMAN FLEGAL: I believe you just said that the shed is no longer an issue; is that correct? MR. LUEDTKE: Yes, sir. We were able to find an older permit. CHAIRMAN FLEGAL: Okay. And that was determined back in May when you -- is that -- when was it determined the shed wasn't an issue? MR. LUEDTKE: We were able to find it within the last couple of weeks, sir. CHAIRMAN FLEGAL: Okay. MR. LUEDTKF.: It wasn't listed under the address in our CD system, so it took us a while to find it. MS. DUSEK: The only issue right now then is the enclosure of the carport? MR. LUEDTKE: Into a living structure, yes, ma'am. MR. PONTE: Is there any possibility that an old permit exists for that -- the carport, and that is filed elsewhere like the shed? MR. LUEDTKE: I've done a lot of research. I've checked-- we Page 10 September 27, 2001 have older books going -- this is an older house built back in the early '60s or maybe even earlier than that. And we have older books that list permits, and I've searched through those, and I was unable to find anything. I've ran through the CD Plus under name, under address, under folio number trying to find anything that would come back to that address, and I have not been able to find any permits for the enclosure. CHAIRMAN FLEGAL: You stated that the first citation was dismissed? MR. LUEDTKE: Yes, sir. CHAIRMAN FLEGAL: And you issued another citation in July of this year which, I assume, is for both the shed and the carport or just -- MR. LUEDTKE: Yeah. It was for both violations. CHAIRMAN FLEGAL: Okay. The citation that was issued in July, is there a reason that that hasn't been submitted to this board? MS. ARNOLD: The citation goes through the court system. It doesn't go through this board. CHAIRMAN FLEGAL: Okay. So what you've -- what you're bringing before this board is based on this -- I just want to make sure we're doing it right -- this notice of violation that was issued back in January. MR. LUEDTKE: Yes, sir. CHAIRMAN FLEGAL: Okay. And when you issued your citation, I assume it was based on that notice of violation from January also; right? MR. LUEDTKFi: Yes, sir. CHAIRMAN FLEGAL: Okay. And you dismissed the citation, but you didn't submit -- dismiss the violation. I'm kind of confused. MR. LUEDTKE: That's correct. We dismissed the citation not because the violation had been corrected, but because somebody else Page 11 September 27, 2001 within our-- within our department -- or excuse me -- the building department granted an extension we were not aware of. So Mr. Goings was not at fault for that. We couldn't cite him for not working on the problem because he had been in and talked to somebody at that time. CHAIRMAN FLEGAL: Okay. That's what I wanted to get out. MR. LUEDTKE: Okay. CHAIRMAN FLEGAL: Any other questions for Mr. Luedtke? Thank you, sir. Mr. Goings. MR. GOINGS: Good morning, Councilmembers. My name's Charles Goings, and this is a very entertaining issue. A little more than 14 years ago I bought the home, perhaps young and naive in the legal matters of this sort of thing. The carport that we're discussing was enclosed at that time. I have records, through photographs, that it has existed for many, many years. I have really no actual proof other than description of the property at the time that I purchased it. I didn't come here expecting to defend this. The -- Ed Perico he spoke of, when he issued the extension and nothing -- the citation arrived and then I got a letter from the judge saying that this issue had been dismissed, I was under the impression that the issue of the carport had been dismissed and not just the citation. I don't know what to tell you about this other than, you know, I think it's rather ridiculous. I purchased the home, bought title insurance and-- which seems to have been of no use in this situation. I'm not here to argue the point. It's just that the structure existed when I bought the home. I've done no improvements to it since then. And what do you want me to do? CHAIRMAN FLEGAL: Okay. I understand what you're saying. MR. GOINGS: Okay. CHAIRMAN FLEGAL: Any questions for Mr. Goings? Page 12 September 27, 2001 (No response.) CHAIRMAN FLEGAL: Thank you, sir. Ms. Arnold, I assume what the county is looking for is -- since the carport was enclosed, that some kind of permits are needed or -- I don't know if there's another -- other than the permits, if he can get anything else. Is there anything other than permits? MS. ARNOLD: That's correct. What we've asked him to do is obtain a building permit for the improvements, the enclosure of the carport. CHAIRMAN FLEGAL: Okay. For him to do that, time line and effort involved -- understanding that he has just told this board that, you know, he originally purchased the house that way, so he's now got to try to clean up something that existed when he purchased it. So I'm looking for a time period and what all might be involved. MS. ARNOLD: It appears to me from the testimony that Mr. Luedtke gave that Mr. Goings has been working with Ed Perico and his inspectors to identify what needs to be done exactly to obtain the building permit. MR. GOINGS: I went there with some simple drawings, and Mr. Perico informed me that it would take much more extensive structural examination and, you know, all kinds of-- extensive is a good word -- looks at the property as if-- you know, I've got to take a wall apart and see how it was built and dig a hole beneath the slab so I can see if the slab was poured thick enough, etc., etc. I find these proceedings a bit ridiculous. MR. LEHMANN: Mr. Goings, has Mr. Perico or Mr. Ballard or anyone in the building department informed you whether or not this structure will be reviewed under the current building codes or the codes that -- MR. GOINGS: That's what they're telling me, current building codes. This house was built in 1955. Page 13 September 27, 2001 MR. LEHMANN: Okay. Consideration for the board, my understanding of this thing is that Mr. Goings will need to submit structural plans, which means involving a structural engineer. He will also have to renovate the structure to meet building codes, current building codes, as he's indicated. So this is not something that's simple and easy for him to do. This is, in essence, trying to permit a 1955 structure according to current codes. As I see it, he has two options under the current ordinances we have: Either to go that route or to remove the improvements and turn that back to a carport. MR. GOINGS: Yeah. Which means removing one-third of my living quarters that I purchased. CHAIRMAN FLEGAL: I was going to say, that's probably not really an option. It probably costs more to do that than try for the permits. MS. TAYLOR: Michelle, have you seen proof that this was like this when he purchased the property? Has he shown you proof that it was like what he says it is when he purchased it? MS. ARNOLD: Well, you would have to probably refer that to the investigator because he's the one that has, you know, had more involvement with the case. But what we would look at is not whether or not someone purchased the problem, but whether or not a permit was -- exists. And that would be simply what we're looking for, if the improvements were done with permits authorizing the improvements, and that's all we would be looking at. And to -- and then we would advise the property owner what they need to do to come into compliance, and in this particular case, it would be to obtain a building permit. And, as Mr. Lehmann has indicated, in this case he'd probably have to do some structural drawings to show that wind loads are being met and certain safety conditions are being met. MS. DUSEK: I have a question for the inspector. You Page 14 September 27, 2001 reviewed the property card in the appraisers office? MR. LUEDTKE: Yes, ma'am. MS. DUSEK: And at that time you said it showed a carport with a dirt floor; is that what -- MR. LUEDTKE: It doesn't physically show one, but there is a note made by the appraiser that does say 10 foot by 12 foot, aluminum awning-type roof, and then post dirt floor. MR. PONTE: And when was that dated? MR. LUEDTKE: property card. MR. LEHMANN: It's not dated sir. It's not dated on the So, Investigator Luedtke, just to summarize again the facts of the case -- and correct me if I'm wrong -- you are telling us that as far back as the public records go, you have no indication that an enclosed area is permitted, and all we have is a carport -- MR. LUEDTKE: That's correct. MR. LEHMANN: -- is that correct? It -- it seems, unfortunately, very black and white on this particular case because we have an instance where a property owner has purchased a piece of property that may have been in compliance or may not have been in compliance prior to his purchase. And, unfortunately, the board's action can only go along the current property owner. So, in essence, he bought the problem. CHAIRMAN FLEGAL: Mr. Goings, the carport, I assume it is attached to the house? MR. GOINGS: Yes. It's obvious that at one time it was a carport. MR. PONTE: Mr. Goings, do you have any photographs that are dated on the back? You know, sometimes -- MR. GOINGS: I might be able to find some date material; however, as I mentioned, I didn't come here expecting this was the Page 15 September 27, 2001 issue today. I thought, actually, it was still the shed that was under question, so this came as a total shock to me. CHAIRMAN FLEGAL: When did you buy the property, sir? MR. GOINGS: September, I think 14 years ago. CHAIRMAN FLEGAL: Okay. Any other questions? MS. DUSEK: Mr. Goings, you said you did absolutely nothing to this carport? MR. GOINGS: I put a new front door. MS. DUSEK: Pardon me? MR. GOINGS: I put a new front door on the place, which is part of the enclosure. That's the only improvement I've done in the 14 years. It's been my son's room for the entire time. MR. LEHMANN: You've spoken with Mr. Perico. Has he given you any options such as obtaining a variance or anything of that nature? MR. GOINGS: He said that it would have to be pursued through court, that I would have to make an appeal for that. CHAIRMAN FLEGAL: Any further questions for Mr. Goings or the county? MS. DUSEK: I guess I have one more. Is there a CO on this property which would show what the CO was for? MR. LUEDTKE: I was not able to find one. You go back to the '60s, and all they have is just the CO slip. MS. DUSEK: It doesn't indicate what was -- MR. LUEDTKE: It doesn't indicate anything, but even that I wasn't able to find on this property. MS. DUSEK: Just my thoughts. I'm having a struggle with this because of county records not being where I think they should be and -- although I understand the county's point of view that your enclosure is not according to standards today, and there are no records of when it was done and if it was ever CO'd. So I have a Page 16 September 27, 2001 straggle for you and for the county on this issue. I just wish there had been some better proof from the county and some better proof from Mr. Goings. MR. GOINGS: I believe I could provide proof that that's the way I purchased it. I'd also like to make the comment that we're talking about a 50-year-old neighborhood with lots of houses with lots of code violations, and only through the reports of neighbors are these brought to light. I can understand the need to improve the neighborhood. It's a beautiful place to live, and I want to keep it that way too. But this seems to be a bit of a goose chase to me. MR. LEHMANN: The frustrating part for this board, quite frankly, is that we have very limited authority. We cannot grant variances. We can basically hear a case and determine whether or not a violation exists and, if so, then achieve compliance with that violation. And that's where we're at with this one. We certainly understand all of the surrounding circumstances. CHAIRMAN FLEGAL: Mr. Goings, did you at any time when this problem come up go back to -- like you said, you know, title insurance was worthless. Did you investigate that at all? MR. GOINGS: I couldn't find my title company. CHAIRMAN FLEGAL: They're no longer in existence? MR. GOINGS: They're no longer in existence. CHAIRMAN FLEGAL: I see. Okay. Just looking for a way -- MR. GOINGS: Isn't that cute how that works? CHAIRMAN FLEGAL: All right, sir. Thank you. MR. GOINGS: Thank you. CHAIRMAN FLEGAL: the county? (No response.) CHAIRMAN FLEGAL: MR. GOINGS: Any other questions for Mr. Goings or Thank you, Mr. Luedtke. Oh, excuse me. Page 17 September 27, 2001 CHAIRMAN FLEGAL: Yes, sir. MR. GOINGS: If I may, I'd just like to say while this has been a very frustrating process, Mr. Luedtke is a fine gentlemen and you should be happy to have him working for the county. CHAIRMAN FLEGAL: Thank you. MR. PONTE: Just for my knowledge, is there any limitation on how long something can be not in compliance? In this case we're going back 14 years, and it was not in compliance prior to it being purchased. It could have been not in compliance 20 years ago. MR. LEHMANN: Not to my knowledge. CHAIRMAN FLEGAL: There's no, quote, unquote, statute of limitations that I've ever been told about of not complying with an ordinance. MS. TAYLOR: It's not grandfathered in, no. CHAIRMAN FLEGAL: No. There's -- you know, I've said this many times. There's nothing that I've ever seen in writing that, quote, is called a grandfathered-in clause. I don't think that exists. You have to write something when you write an ordinance that anything that existed prior to a certain date doesn't have to comply, but there is no general grandfathered-in clause. MR. LEHMANN: If you remember testimony from the county attorney's office, we have received testimony on the basis of the fact in direct opposite to that, that there is no grandfathering, and the county does have the right to go back and correct if there -- MR. PONTE: I think we have to use some common sense here. There are hundreds of homes in East Naples and Old Naples that would probably have the same set of circumstances. I don't know what to do with it. I'm in a real quandary. MR. LEHMANN: Well, I think-- MR. PONTE: Just follow the letter, it doesn't make too much sense. Page 18 September 27, 2001 CHAIRMAN FLEGAL: Okay. MR. PONTE: It doesn't make any sense. CHAIRMAN FLEGAL: I think we should keep in mind, our responsibility is to find whether there is or is not a violation. That's one. Then what we -- then we have the right to impose our order as to what to do about that violation. So I think Part A of our authority is quite clear: Is there or is there not a violation? In this case, unfortunately, I think there is. The next part gives us a little leeway. MR. PONTE: But I might argue that I'm not certain that there is because the county can't find any records. That's the county's problem, not Mr. Goings' problem. It becomes Mr. Goings' problem, but it shouldn't be if the county can't find the records. MR. LEHMANN: But we have testimony that indicates that a carport structure was permitted and was there. We see in the photographs in the evidence package that there is no carport anymore. It is an enclosed structure. Also, it's Mr. Goings' testimony it is an enclosed structure. So I feel, again, with our chairman that it is very black and white as far as whether a violation exists or not. MR. PONTE: Yeah. But I think we have to consider the fact the investigator worked long and hard on this and eventually found the documentation to cover the shed. It doesn't mean that even though the original documents talked about an unpaved garage area, carport, that a subsequent document isn't missing. CHAIRMAN FLEGAL: Okay. One thing you need to keep in mind is our decision can be based only on the evidence presented. Right now the evidence from the county is there is no -- according to their investigation, they can't find a permit. So we have to accept that. Now, did it exist, didn't it exist is a-- all they've said is they've searched the records, and all they can find is on a county document in the property assessor's office that it was a carport with a dirt floor. So that's what's been presented as evidence, so we need to Page 19 September 27, 2001 stick with that part of it. MR. PONTE: But the witness said the same thing about the shed three weeks ago. CHAIRMAN FLEGAL: I understand that. But we have to make a decision based on what they presented to us. And right now their presentation is something from the property appraiser's office that the only, quote, unquote, record they can find is this carport with a dirt floor. MS. ARNOLD: Can I make one other note, that there was testimony as well indicating that there was a 1999 permit for improving the roof of the -- of the carport, which when he was there in November of 2000, the investigator saw no carport. MR. GOINGS: Excuse me. May I speak? CHAIRMAN FLEGAL: Yes, sir. We need all the information we can get. MR. GOINGS: Yes. I believe the wording is wrong because when I applied for that permit, it was a roof repair, and the word "carport" was not used. MR. LUEDTKF~: All I have is a copy of the -- the actual permit here, and it does say roof repair to existing carport, 20 square foot. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: MR. LUEDTKE: MR. LEHMANN: Investigator Luedtke, may I see that, please? Yes, sir. It clearly does describe in the job description, roof repair to existing carport. MR. PONTE: I have a question for the investigator. When you viewed the property, can you determine whether or not the new structure is new, built since 1999 as opposed to the old house built many years ago, or does it blend in just perfectly? MR. LUEDTKE: Well, you can tell that it was a carport just by the way the roof overhang is of the structure. If you're asking me if I Page 20 September 27, 2001 could tell if it was built in the early '90s versus the '60s, I couldn't say. It's the same color of the house. MR. PONTE: Same material? MR. LUEDTKE: Yeah. They're both wood-type structures. MS. DUSEK: This is a permit; is that correct? MR. LUEDTKE: Yes, ma'am. MS. DUSEK: When this permit was granted in 1999, why wasn't something brought before this board at that time that this enclosure was-- MR. LUEDTKE: Yes, ma'am. That's an express permit. That's a form that they can fill -- that a petitioner can fill out, bring in, and have -- and have -- just turn it into the officials up front, and they'll process it at that time. So they're not required to do a site visit at that time. MS. DUSEK: Are they required to do a site visit, period? MR. LUEDTKE: To CO that type of permit, yes, ma'am. MS. DUSEK: And did they CO this permit? MR. LUEDTKE: It was CO'd. I don't understand why it wasn't turned over to us at that time when the inspector went out there. MS. DUSEK: So the inspector only looked at the roof when he CO'd it; he did not consider the rest of the carport in-- MR. LUEDTKE: I believe so, yes, ma'am. CHAIRMAN FLEGAL: Any other questions? MS. TAYLOR: I just think that we need to keep in mind that the decisions we make, if we don't make the right ones, will come back to haunt us in the future. CHAIRMAN FLEGAL: Correct. MR. LEHMANN: Well, as I stated earlier, I think this is a very black-and-white case. I think a violation does exist. I think it is unfortunate that Mr. Goings might have purchased a problem and not knowing it, and I feel for him because he's really the -- he's really the Page 21 September 27, 2001 one that hurts the most in this. But I would so move in the case of 2001-076, BCC versus Charles H. Goings, that a violation does exist. That violation is of Section 1.5.6 and Sections 2.7.6, paragraphs 1 and 5 of Ordinance 91-102, Collier County Land Development Code. The description of the violation would be the enclosure of a carport without first obtaining proper permits. MR. PONTE: Before we vote on that, I'd just like to stress my concern about the suspicion that I have that documents are missing and that the old county documents from 1960 -- gosh, think how this county's changed in the last five years. Go back to 1960 and '65 and 1970, and we're having difficulty finding the documentation for what happened. I think there is real reason to think here that the county has not proved its case. MS. TAYLOR: But we can't help that. What happened years ago, we have no control over that, absolutely none, nor do they. So we have to stick to the facts that are before us. That's what our job is, to stick to the facts that are before'us. MR. PONTE: But it's up to the county to prove and to convince me that an application does not exist, and I am not convinced of that. I think that an application could have existed but is lost. CHAIRMAN FLEGAL: Okay. And that's a correct assumption by you. And the best way to voice that assumption is if the motion is seconded and called for a vote, then voting against the motion is what you should do. MS. DUSEK: I want to say that I concur with Mr. Ponte. And I'm also disturbed by the fact that that 1999 permit, when they went out and checked the roof, didn't investigate it any further at that time and gave him a CO. MR. LEHMANN: Well, again, the county inspectors as far as the building department may not be looking at that. When he goes Page 22 September 27, 2001 out and does a roof inspection, he's looking solely at the roof, and he may not put the correlation together whether this is a carport or a structure or whatever. So that doesn't bother me so much. Again, I think it is this board's sole responsibility to view the evidence and base our judgment on the evidence. The evidence we have heard supports my motion. We have not heard any evidence from Mr. Goings, unfortunately, that would refute the county's accusations. And I'm basing my motion, unfortunately, on the strict order of the law, so to speak, that guides this board. CHAIRMAN FLEGAL: I agree with the vice-chair. And one thing we must keep in mind on the roof repair. As I understand the system, when an inspector goes out to look at if you've completed the job you requested the permit for, they don't pull all the permits for your house. If you repair the roof on your house, that's all they go and look at. If you put in a new electrical panel, that's all they go and look at. They don't look at, you know, every wire running through your house. You do the panel. If you put in a swimming pool, they look at the swimming pool, not did you do your driveway the right way. So I understand the inspector doing the roof repair and CO'ing it. That doesn't bother me because that's all they were asked to do. The inspector does not work for the code enforcement department. So I understand that part of it. I'm a little torn in what we ask -- when we get to that stage, what we're going to ask Mr. Goings to do. But based on what's been presented as evidence, I don't have a problem with the fact that there seems to be an existing violation. But we have a motion. Do we have a second to that motion? MS. TAYLOR: Second. CHAIRMAN FLEGAL: We have a motion and a second that a violation does exist. Is there any more discussion? All those in favor signify by saying aye. Page 23 September 27, 2001 MR. LEHMANN: Aye. CHAIRMAN FLEGAL: MS. TAYLOR: Aye. CHAIRMAN FLEGAL: MS. DUSEK: Nay. MR. PONTE: Nay. Aye. Opposed? CHAIRMAN FLEGAL: It's 3-2. Motion carries. Now, order of the board. This is where I think it's maybe a little more trying to -- trying to resolve the problem and how we might assist Mr. Goings. I understand from the county that this is probably not going to be a short, inexpensive issue for him. And it seems like since his title insurance company doesn't exist anymore, that he's kind of left just standing there by himself. I don't know how else to put that. Any ideas for an order from the board? MR. LEHMANN: Well, as I made the initial motion, let me just preface my comments in saying that I certainly do feel for Mr. Goings. In my opinion, he's bought a mistake, in essence. I would recommend that we allow Mr. Goings more than sufficient time to respond to this. I don't see this as being any potential life safety issue or any major concern at this point in time. I would recommend that, as an order of the board, the CEB order the respondent to pay all the operational costs incurred in the prosecution of this case and obtain all required permits or return the structure to its original use within six months' time and possibly a fine of $25 a day being imposed' each day after the violation continues. The purpose of such a low fine is, again, to try to give Mr. Goings as much leeway and as much help from our side as we can to help him solve this. Same thing with the time. MS. DUSEK: Since the motion did pass and we have to make a recommendation, the one thing I feel quite strongly about is not having him pay prosecution costs. Page 24 September 27, 2001 MR. LEHMANN: Okay. MR. PONTE: I think we must keep in mind the cost that is likely to be incurred by the respondent in coming into compliance here. He has already had conversations and talking about rebuilding the structure. I think we should give him sufficient time to explore other avenues for possible remedies, explore legal counsel -- MS. TAYLOR: Now-- MR. PONTE: -- because -- MS. TAYLOR: -- there we go again. MR. PONTE: -- I just think we have to keep in mind that the costs that will apply to the respondent are way and above anything I'm sure was intended. MR. LEHMANN: Well, this is the purpose of my motion as it stands. Staff had recommended 45 days. I -- I look at Mr. Goings' position and believe that his costs are going to be substantial in obtaining permits and to renovate the structure to meet the current codes and to obtain a permit for this structure. So he already is under that difficult situation. Again, staff's recommendation of 45 days I feel is too short for the period of time. This is why I recommended six months to possibly give him enough time to pursue any other avenue that he chooses. Again, it is our choice; just obtain compliance. CHAIRMAN FLEGAL: I think one avenue open to Mr. Goings is there's always the avenue of seeking a variance of some type. And I think giving him six months to look into that, I don't know that -- the exact process. I don't know that he has to go to court to do that or whether he can just get himself a lawyer and seek it through the -- through the county. But rather than spend all the money to do the other, I would probably investigate that really diligently first. I think the six months is reasonable. I know he's in a hard spot, but I think that's the best we can do based on what we've heard. That Page 25 September 27, 2001 gives him the opportunity to invest a couple -- investigate a couple different avenues, which is -- really what we want is compliance. How he complies is immaterial as long as he complies. I think he does have two or three avenues to go down, and six months should give him the time to do that. MS. ARNOLD: Can I just make a statement that I don't believe a variance would be applicable in this situation because we're asking for obtaining a permit. In cases where variances would be applicable is if there was a problem with the setbacks or some of the other requirements for the development within that zoning district. So we're not dealing with, you know, setback or encroachment problems where -- which would warrant a variance. What we're dealing with is the actual requirement for a permit for improvements. MR. LEHMANN: Are you indicating that there is no way a variance could be used as a solution to this? In other words, the BCC does not have the authority to grant a variance or a grandfather-type construction? MS. ARNOLD: Right. I don't believe there is that ability to do a variance. I mean, what we would be asking the board to do is to waive the requirement to get a building permit. CHAIRMAN FLEGAL: I'm not sure that's not in their purview, but I'm not a lawyer for the county. I think that's an avenue he should investigate because he seems to feel he has pictures and all this other stuff. So the fact that -- again, that Mr. Ponte said, that documents can't be found, if Mr. Goings can prove that something does exist or had existed previously, there may be a way around it. I think we should give him that option. We shouldn't take all his options away from him. If the county feels that there isn't that option, that's their opinion. We need to stick with the opinion and what the recommendation and order of this board will be. ' MR. LEHMANN: Ms. Rawson. Page 26 September 27, 2001 MS. RAWSON: Yes, sir. MR. LEHMANN: Let me ask you a question. If our order is revised to say instead of obtaining permits or remove the structure, if we specify just to achieve compliance, something as broad as that, is that an acceptable order? MS. RAWSON: Well, I think he can't achieve compliance unless he has a permit. MR. LEHMANN: But, again, the purpose of my order is to try to give Mr. Goings as much freedom to pursue any avenue of compliance he chooses. The only thing I'm interested in is that we do have compliance. MS. RAWSON: You usually don't make it that broad. You usually are pretty specific because the ordinance that he has been cited for has to do with not having a permit. And so when you cite him for not having a permit, I don't know how else he can comply but get a permit. I understand that this is a very difficult case, and I appreciate and have sympathy for Mr. Goings too. I just need to tell the board that you remember that we have to be consistent in all of our orders. And sometimes I know that's difficult because, you know, you're -- you feel sorry for some of these people more than others. And Mr. Goings is here, and it's not his fault, and everybody wants to help him. You know, but you're faced with what you're faced with. And, you know, you just have to remember that we have to be consistent in whatever orders that you -- this board gives out. MS. DUSEK: Ms. Rawson, I have a question for You. If we go ahead with this order and ask him to get building permits and then for some wonderful reason he finds that he -- through the Board of County Commissioners or however he proceeds with a variance -- does get a variance or does get some exemption, then what does that do to this order? That means that he doesn't have to get a permit. Page 27 September 27, 2001 that. MS. RAWSON: That's correct. He comes back and tells us MS. DUSEK: And then we just drop it. MS. RAWSON: Sure. I mean, I don't know -- you haven't done the second part of your order, and I don't know what you're going to require him to do or for how long because you haven't voted whether or not there are costs or fines imposed. But assuming there were, like your typical order, he comes back and says, "I got a variance." So then you can act accordingly. MS. DUSEK: I also just want to make a personal comment in addressing -- when you said that we feel sorry for people, yes, we do at times. But my decision in voting against the motion was the lack of recordkeeping, the lack of responsibility from the county. So I just wanted to -- MS. RAWSON: No. I understand. And you have every right to consider the evidence as presented before you, and you make your decision based on the weight of the evidence that you hear. It's not the first time, unfortunately, that we've had somebody come who got -- who bought a house that was old and, you know, just had the luck of being the one in their neighborhood that got cited. And I don't know what we can do about the fact that records don't exist way back. But we probably will have cases like this again, which is my caution about consistency. CHAIRMAN FLEGAL: Right. We -- we have a motion on the table. Mr. Lehmann, did you amend your motion to remove the prosecution costs? We haven't had a second yet, and somebody had made that comment. Would you amend it, or do you want to leave them in? MR. LEHMANN: Well, my consideration about the prosecution costs is this is something that the county has pursued and has expended expenses in pursuing it; although I do understand my Page 28 September 27, 2001 MS. MR. MS. colleague's comment regarding Mr. Goings. MS. DUSEK: I think that the county has to assume some responsibility, and that would be the part that they would assume. MR. LEHMANN: Then I would be agreeable to amending the motion to remove any reference to operational costs and prosecution. CHAIRMAN FLEGAL: Okay. So your motion is for six months, and if he hasn't come into compliance by obtaining permits or removing the structure, it's $25 a day thereafter? MR. LEHMANN: Yes, sir. CHAIRMAN FLEGAL: Okay. That's the motion on the floor. Is there a second to that? MS. TAYLOR: Second. CHAIRMAN FLEGAL: We have a motion and a second. Is there any further discussion on it? MR. PONTE: I think the fining part, if we're going to go ahead with that, is too high, particularly on a per diem cost. If the respondent is attempting to come into compliance and is exhausting all avenues, that, in itself, is going to be costly before he even starts reconstructing the building. And I just think that the -- we're just adding penalty on penalty on penalty, and we should be very careful about the fining here. TAYLOR: We went through this once before too. PONTE: And we'll go through it again. TAYLOR: A dollar MR. PONTE: And we'll CHAIRMAN FLEGAL: a day, remember? go through it again. We have a motion with a second on the floor for six months and $25 a day for noncompliance. further discussion before vote on that motion? All those in favor signify by saying aye. MS. TAYLOR: Aye. CHAIRMAN FLEGAL: Aye. Any Page 29 September 27, 2001 MR. LEHMANN: Aye. MS. DUSEK: Aye. CHAIRMAN FLEGAL: MR. PONTE: Nay. CHAIRMAN FLEGAL: you understand? MR. GOINGS: Yes, I do. Those opposed? 4-1, motion carries. Mr. Goings, do CHAIRMAN FLEGAL: What we've ordered is you have six months to resolve the problem somehow. MR. GOINGS: Right. CHAIRMAN FLEGAL: Okay. If you don't resolve it in six months, you're going to be assessed a fine of $25 a day until you do resolve it. MR. GOINGS: Right. CHAIRMAN FLEGAL: You do have the right to come back before this board at some point. And let's say you're working toward resolving it, but the six months is almost upon you, you can come back and tell us all that and ask for an extension. And we'll listen to what you're doing, and we'll ask the county if that is what you're doing and all that kind of thing. MR. GOINGS: And thanks, those of you who applied the human factor into this. I think if you were to actively pursue finding code violations in a neighborhood such as Naples Park or East Naples, that you would be completely inundated with ridiculous cases. And, again, thanks, for those of you who applied the human factor. CHAIRMAN FLEGAL: All right, sir. Thank you. Next case, Board of County Commissioners versus Gerald Davidson, Case 2001-077. One moment. MS. CRUZ: Let the record show that the respondent is present, Gerald K. Davidson. I'd like to request of the respondent if there's Page 30 September 27, 2001 any objection to admitting the packet into evidence that was provided to him and to the board. CHAIRMAN FLEGAL: Is Mr. Davidson here? Do you have any objection to the county submitting their package to us? MR. DAVIDSON: Could I just have a point of order with you? It'll just take a second. CHAIRMAN FLEGAL: Come on up. He's not being sworn in. He's not going to give any testimony. He's going to ask a question. MR. DAVIDSON: I am Gerald K. Davidson. I own the property in question, 2181 Platt Road. I'd like to save this board a lot of time and trouble, first of all. I own lots of properties. I'm a multimillionaire. Okay? This property's expendable for me. It's not here -- I'm not going to be intimidated or humiliated by the board's actions towards this property. It's expendable. Okay. Now, having said that, I can save this board a lot of time because this man is being diligent in his job. All my properties are up for sale. I'm leaving Collier County. We've already entered into possible negotiations of selling this property along with three other homes. Okay? Yachts, everything's for sale. Collier County I find hostile, overregulated, and I do not wish to live here. So I can save you a lot of time telling you if you'll give me a little time -- I don't want to go through this diatribe of 30 pages here. I just simply want to tell you that I will resolve this issue. It's going to take maybe 90 days, and I'm going to systematically give you a report. I do have counsel. And I can get many counsels here to represent me. I don't want to go through all this. I understand -- I acknowledge the responsibility. I plead guilty, and all I'm asking you is for a little time to withdraw from your county, period. Do you have a question? CHAIRMAN FLEGAL: For us to make a decision, sir, we first have to hear the case. We can't make a decision until we hear Page 31 September 27, 2001 something. MR. DAVIDSON: It's 30 pages. CHAIRMAN FLEGAL: I'm just telling you under the rules -- MR. DAVIDSON: Okay. I'm just telling you -- but you have my -- you know, I can save you time. I'm going to comply with it. I plead guilty. Thank you. CHAIRMAN FLEGAL: Whatever. Okay. My question to you, sir, was do you have any objection to the county submitting all these papers to us? MR. DAVIDSON: I'd like you to accept them and accept my responsibility. I plead guilty. I don't want to listen to it all. CHAIRMAN FLEGAL: Okay. There's been no objection from the respondent. I'd 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.) CHAIRMAN FLEGAL: Okay. MS. CRUZ: This case is Board of County Commissioners versus Gerald K. Davidson, Case No. 2001-077. The alleged violation before this board is illegal storage of inoperable and/or vehicles with invalid tags in an unpermitted zoning district and illegal accumulation of litter consisting of, but not limited to, washers, dryers, appliances, plastic, wood, metal, vehicle parts, mowers, and paper products. This is a violation of Section 1.5.6, Section 2.1.15, Section 2.6.7.1.1, and Section 2.6.7.2.1 of Ordinance No. 91-102. Also, it's a violation of Sections 6 and 7 of Ordinance No. 99-51, the Collier County Weeds and Litter Ordinance. Page 32 September 27, 2001 This violation exists at 2181 Platt Road, Naples, Florida, and is more particularly described as the west half of the northeast quarter of the northwest quarter of the southeast quarter less the south 30 feet of Section 47, Township 27, Range 25. The owner of record is Gerald K. Davidson. His address of record is 4273 20th Avenue Southwest, Naples, Florida. The violation was first observed on December 20th, 2000. Most current notice of violation was provided to the respondent on July 30th, 2001, requesting compliance by August 13,2001. And as of yesterday the violation remains. I turn the case over to Investigator Jeff Letourneau. MR. LETOURNEAU: For the record, my name is Jeff Letourneau. (The speaker was sworn.) MR. LETOURNEAU: For the record, my name is Jeff Letourneau, Collier County code enforcement investigator. On December 20th of 2000, I received an anonymous complaint about 2181 Platt Road. I made a site visit on that day, and I observed violations of a large amount of accumulation of litter and approximately 35 vehicles which were inoperative, derelict, or partially dismantled, all of which had no current tags. I talked to a Mr. Robert Schultz, who stated he was a caretaker of the property, and he told me that Mr. Davidson was in Kentucky, and he had no way of reaching him at that time. I posted a notice of violation at the property. On January 17th I made another site visit. All the violations remained. Nobody was there, so we sent Mr. Davidson a notice of violation in the mail to his property of record in Golden Gate City at 4273 20th Avenue Southwest, which was returned, eventually, undeliverable. On February 7th I went out and did another site visit. I talked to two friends of the owner that were in the front yard removing some of the litter. They stated that Mr. Davidson was ill and still in Page 33 September 27, 2001 Kentucky and they were trying to help the caretaker abate some of the violations, but they were leaving the area in a week and didn't feel they could really take care of the situation. They didn't know a phone number where I could reach Mr. Davidson. I went to 4273 20th Avenue Southwest to see if I could find anybody living at that area, you know, to give me some information about Mr. Davidson. And nobody was there, but there was a for sale sign. And I wrote the number down, and I called and left a message. On March 2nd I made another site visit. A small amount of litter was removed. All the vehicles were still there. I talked to Mr. Schultz, the caretaker, and he stated he hadn't heard from Mr. Davidson. I made another phone call to the number I found on the for sale sign, and the man answered the phone and said he did not want to listen to what I had to say. On March 19th I returned. All the violations remained. Through another investigator I found a number to Mr. Davidson's son-in-law, and he gave me a number where I could reach Mr. Davidson in Kentucky. I called Mr. Davidson, and he stated he never received any of the notices, but he did know that there was violation on the property through word of mouth. He stated that he was coming to Naples in April, and he would be more than willing to cooperate and clean up the property. We sent another notice of violation to his Kentucky address which was -- which Mr. Davidson received. On April 25th I made another site visit, and I observed a small amount of the litter removed and a few vehicles removed. On -- let me see. Okay. On May 24th I did another site visit, and not too much progress had been made. I called Mr. Davidson and left a message, and a CEB warning letter was sent. June 15th I made another visit, and all the violations remained from the previous time. On July 9th I went to the property. All the violations remained, Page 34 September 27, 2001 and I took a video of the property while I was there. Basically I made three more visits on July 27th, August 14th, and yesterday, and everything has remained since the video I made on July 9th, which I have ready to -- ready to show right now. MS. ARNOLD: Is the board interested in viewing the video or -- CHAIRMAN FLEGAL: Is it any different than the pictures you've submitted with your package? MR. LETOURNEAU: Not really. But there's -- you know, there's less violations than there was in the beginning, but there's still a large amount out there. CHAIRMAN FLEGAL: I don't -- from my own standpoint, I don't need to see a video. Pictures are fine. MS. TAYLOR: How many acres is it? MR. LETOURNEAU: I think it's a 5-acre lot, agricultural. CHAIRMAN FLEGAL: Any other questions for Mr. Letoumeau? MR. PONTE: Yeah, I do. Is the property enclosed in any way? In other words, can kids get in there easily and access all of these abandoned cars and boats. MR. LETOURNEAU: It's not enclosed. There's kind of a fence back off from the road maybe 50 feet, but there's no gate on it, and both sides are wide open. MR. PONTE: In your opinion is it unattractive and a dangerous nuisance to kids? MR. LETOURNEAU: It could be. You know, it could be. There's not any kind of, like, refrigerators or anything they could get into, but they definitely could -- people could get into cars out there. MR. PONTE: Thank you. CHAIRMAN FLEGAL: Any other questions for Mr. Luedtke (sic)? Page 35 September 27, 2001 Thank you, sir. Mr. Davidson, would you like to get on the record officially now, please. MR. DAVIDSON: Yeah, sure. Let's talk about it. (The speaker was sworn.) MR. DAVIDSON: First of all, I'm a humanitarian. You don't know me from Adam. Okay? That's fine. I want to explain to you why those things are there. First of all, the cars and trucks that are out there are various friends of mine that asked me over the years, "Do you mind if I park this vehicle?" First of all, if we could explain to you exactly where this place is, 2181 Platt Road is at the very end of a very isolated area. I submit to you there are really no children in the area that run around there. It's a very isolated area at the very end of the road. When I went there, it was originally going to be for an experimental station because I work on patents. I'm an inventor/scientist. I hold patents and so on. This was going to be an experimental station. We were going to bring in some people from MIT and some smart, brilliant people. And we were going to bask in the sun and use these various and sundry items there as parts and so on, much like General Motors or anybody else. They have these scrap yards and that, and basically what we do is put the stuff out on the ground so we can see it and so we can get to it. We don't put it in buildings because it's too much trouble to find it. You lay it out on the ground. You go there to an area. And you need plastic, you need metal, whatever you need, you've got it there. So it's going to be an experimental station. And along with that, I also work with the court system bringing derelicts such as the homeless Bob Schultz out there to live, who's going to kill himself. Pulled him out of the swamp, took him out there. He's living out there in a little trailer. He's a recluse. He Page 36 September 27, 2001 wants to live there, and he's not bothering anybody. Essentially, as a neighbor I'm a good neighbor. I'm not really bothering anybody. That's the main thing. I'm not trading (sic) on anybody. Nobody's harmed in any way by whatever's on that property. As a matter of fact, my next-door neighbors use my property to go through. So the neighbor on my left is friendly to me. The neighbor on my right is a good friend of mine, Mac. The only new person -- possibly the pit out here that you guys or somebody permitted, which I think is a dereliction of responsibility -- I don't know if this code has anything to do with it, but you permitted a dump or a real pit, a gravel pit, to be dug right adjacent to these residential homes, thereby making them unlivable practically. Mr. Schultz has been subjected to dust and dirt every day because a permit brings the dirt right to the edge of my property. You can't hardly live out there because of this. But anyhow, doing all these things, all this stuff was done in good faith. And I never realized that you guys had all these ordinances and regulations that said on your own property that you can't store things. The only thing that I'm being condemned -- now, if I had a big building and I threw everything in that building, we wouldn't even be talking about it. Or if I go to the expense to license each and every vehicle, then you got nothing to say, have you? The litter's been picked up. There's little or no litter on that property. There may be a few things. We haven't been able to bum things because during that dry season and all this coming under condemnation, you couldn't burn anything. You couldn't get one permit to burn anything. But I will submit to you that we have burned a lot of things. That so-called litter there doesn't really exist. So all we're really talking about is a bunch of vehicles that happen to be out there on that property, vehicles that are owned by other people, vehicles that are not hurting anybody. And really it's a nonissue, as Page 37 September 27, 2001 far as I'm concerned. But there again, all I got to say, I'd like to explain to you I would like to systematically -- you could fine me, sure. You could fine me. You could take the property if that's your will if you think that serves the community. But I'm telling you if you give me a systemic period of time, let's say 30 days, I will give you reports. I'll give you pictures like you like to use. I got a camera. I've got pictures. We'll submit to you and show you and document what we've removed from the property. Those same very things we'll bring back to you and show you that they've been removed. But other than that, I realize -- and you know what? I'm going to tell you another thing. How would you like this whole place filled up with complaints? How would you like this whole thing with -- standing down the hall with complaints about properties and people not living up to your code of conduct? How would you like this place just overwhelmed with people? That's possible to do. Should I do it as a vendetta against this so-called code board? You know what I'm talking about, just like this man here that was brought here and humiliated by what he's doing. How would you like all of East Naples, every violation that we have there, how would you like all those to come before the board? How would you like everything that I can find to come before the board? The only thing I -- I think you understand my point. Do you understand what I'm trying to say to you? Give me time to remove. I will leave the county. I will give you back your county, and I will make it cleaner than it was when I got in it. That's all I have to say. Do you have any questions? Do you understand where I'm coming from? Thank you. MR. PONTE: Well, I have a question for Mr. Davidson. You're going to clean this up, and you keep talking in terms of increments of 30 days. Are you going to complete the job in 30 days? Page 38 September 27, 2001 MR. DAVIDSON: I can't complete it all because first of all, a lot of that property does not belong to me. I even asked Mr. Letourneau to get back to me. You have, like, a situation here where if you don't have a title to a vehicle, that vehicle doesn't belong to you, then nobody wants to take it. The junkyards do not want it, a vehicle that was left there on the property. I asked him. I said -- is that true, Jeff?. What was the answer to that? MR. LETOURNEAU: About the vehicles being up at the property? CHAIRMAN FLEGAL: Excuse me. MR. LEHMANN: Mr. Davidson, would you please return to the podium, please. We would like to actually hear your comments. We just want to make sure. MR. DAVIDSON: That's all right. Go ahead. You had a question? What do you want? What is it? MR. LEHMANN: were. MR. abandons me, since out to the Did I ask it? I just wanted to hear what your comments DAVIDSON: Okay. Jeff, did I ask you-- somebody a vehicle on my property, I said, "I want you to find out for the junkyards will not take it without the title, do I pull it road and forget about it? What do you want me to do?" you to do that, to find out what you wanted me to do with MR. LETOURNEAU: Yes, you did. MR. DAVIDSON: And what was the answer? MR. LETOURNEAU: I didn't have an answer for you. MR. DAVIDSON: You have (sic) an answer. Does the board have an answer? Do you have an answer? MS. ARNOLD: We can get -- I'm talking over here. We can get somebody to remove the vehicle from your property if you give us authorization to remove it. If that's your desire, we can -- we can Page 39 September 27, 2001 have that-- MR. DAVIDSON: Without a title? MS. ARNOLD: Yes. If it's not your vehicle and -- MR. DAVIDSON: Then Jeff doesn't know this. You should tell Jeff this. MR. LETOURNEAU: I wasn't aware of this, sir. MR. LEHMANN: Mr. Davidson, let me make a few things clear, and then I'll let you proceed. First off, this board does not make the codes. We have no ability to write a code, an ordinance. We have no ability to provide a variance to any of those codes or ordinances. We only have the ability to review cases and determine whether a violation exists or not. Please keep that in mind. When you're addressing this board, please keep that in mind. MR. DAVIDSON: But you're just -- MR. LEHMANN: You may be asking us to do things that we do not have the right to do. Okay? Secondly, please keep this in a civil manner because we are trying to proceed and -- MR. DAVIDSON: You know why people like me are hot? You know why people like me are hot, just like Mr. Goings said and he -- the gentleman over here, Mr. Ponte? What we have here is selective code enforcement. Now, that's a touchy part with me because this man -- and, like I said, you want some business and that? This man drives right by serious violations that have been there for years that have continued for years and could still continue today. It's selective enforcement of the code. MR. LEHMANN: that. MR. DAVIDSON: how that would be -- CHAIRMAN FLEGAL: And, again, this board has no control over Okay. Well, I'm just telling you you can see Okay, sir. All we're interested in, Page 40 September 27, 2001 unfortunately, is your case. MR. DAVIDSON: Right. And compliance. CHAIRMAN FLEGAL: Anybody have any questions for Mr. Davidson? MR. PONTE: Well, he didn't answer my question. CHAIRMAN FLEGAL: I don't think he's going to remove them in 30 days, and I -- MR. DAVIDSON: I'm going to systematically start removing them today, as I can. They're all for sale. Those vehicles are for sale. I can furnish you with evidence that they're in magazines. Many of these vehicles that are operable are for sale. I'm actively trying to remove these properties. Fining me would be a gross injustice. MS. DUSEK: Mr. Davidson, again, referring to Mr. Ponte's question -- MR. DAVIDSON: Right. MS. DUSEK: -- you mentioned 30 days. MR. DAVIDSON: I -- it's too big of a project for 30 days. Do you realize how many vehicles and how much stuff is on -- there's 30 pages of stuff. MR. LEHMANN: Mr. Davidson, this case was originated on December 20th of the year 2000. MR. DAVIDSON: Tons and tons of things -- unfortunately I can't document -- have been removed from that property. Those were things that were going to be used on an experimental basis, such as washers and dryers, for alternative energy source to see if we could make -- they were, if you will, collections of items. They were resources. The only violation here is the fact they're not housed. But let me ask you this now. There was some variations here. Supposedly if they're behind fences, they're in a closed area, in a fence such as a cyclone fence or maybe trees in front of it, I've heard that maybe that's acceptable to the board if it's in a closed area. There Page 41 September 27, 2001 is a fenced-in area, you know. The only difference is that you'd like to have them in buildings. So I suggest to you that if it's an enclosed area, they are one and the same, an enclosed area, whether it's a fenced in area or a building. MR. LEHMANN: Mr. Davidson, whatever would be acceptable to the board would be whatever the code reads. MR. DAVIDSON: Does it say that? Is there a variation? What is the interpretation of that? Can you give me an interpretation on that? MR. LEHMANN: Let me proceed. You had indicated 30 days is not sufficient time. MR. DAVIDSON: Thirty days is a partial period of time where we can make some -- make a -- in other words, a systemic report to him, verify with cameras what we've removed, and thereby until it's all taken over, you know, whatever the -- MR. LEHMANN: How much time would you require to have everything removed? MR. DAVIDSON: I think -- I think a fair -- a fair thing -- six months I should be no issue at all. Okay. I don't see what the time -- if we were -- first of all, let me explain. If we were hurting anyone, if we were doing anything on this property that was hurting anyone -- and I could even get statements from my good neighbors that might support me and say, "Mr. Davidson's a great neighbor. We have no problem with whatever he wants to do on his property since it's his -- on his property behind his fence." MS. TAYLOR: You're trashing the land. MR. MS. MR. MS. MR. DAVIDSON: I'm trashing the land? TAYLOR: You can't do that. DAVIDSON: Trash is in the eye of the beholder, ma'am. TAYLOR: Well, it sure is in my eye. DAVIDSON: What might be considered your trash, my Page 42 September 27, 2001 trash might be a different interpretation of what that trash is. MS. TAYLOR: I'm not going to argue with you, Mr. Davidson. Be quiet a minute. I'm not going to argue with you. You have trashed this land. You have a dump there. MR. DAVIDSON: That trash has been removed. of-- MS. TAYLOR: All of it? MR. DAVIDSON: Most of it's been removed. Ninety percent MS. TAYLOR: Just a minute. How are you going to sell these cars if they aren't yours, and you don't have a title? MR. DAVIDSON: That's what I asked Mr. Letourneau. MS. TAYLOR: I'm asking you. You just made the statement that they were for sale. MR. DAVIDSON: Most of them are. MS. TAYLOR: I'm asking you. MR. DAVIDSON: A great number of them are for sale. They are for sale. Most of-- all -- any operable vehicle out there is for sale. I can prove it. They're in magazines right now. Many of these cars -- vehicles are good vehicles. I submit to you again, the only problem you have, if I license them, then what would you say? MS. TAYLOR: I'm not talking about that. MR. DAVIDSON: I'm just talking about if they were licensed. If I go out and spend $10,000 on -- MS. TAYLOR: Mr. Davidson, I'm not talking about that. Answer the question that was asked by -- MR. DAVIDSON: I told you the trash -- if you go out there right now, we've burned tons and tons of trash out there. We've removed tons and tons of so-called litter. We're down to just a few small piles of litter, and the only reason we couldn't remove those, because we couldn't burn anything at the time. There was an ordinance. You couldn't do nothing. Page 43 September 27, 2001 CHAIRMAN FLEGAL: Okay, sir. We're way beyond what-- the information we need. I hope there are no further questions from the board. MS. TAYLOR: No, not me. CHAIRMAN FLEGAL: Good. Thank you, sir. MR. DAVIDSON: Thank you. MS. DUSEK: Before we make a motion on whether there's a violation, I notice that in the statement of violation that they're citing 2.6.7.1.1 and 2.6.7.2.1. And I don't have a copy of that violation, that code. CHAIRMAN FLEGAL: The 2.6.7.1.1 describes vehicles not in operating condition or with tags. 2.6.7.2.1 is that you can park vehicles on property, I think, for a maximum of six hours during a -- and something in your rear yard or something like that during a seven-day period or something. MR. LETOURNEAU: Can I make a statement about that? When I first went out to the property, I had not been out for code enforcement very long, and I had made a mistake on the first posting on the 2.6.7.1 (sic), that -- about the vehicles, because if you look at that ordinance, that only pertains to residential or estate areas and not agricultural areas. MS. DUSEK: So that's not part of the violation. MR. LETOURNEAU: Right. MS. DUSEK: And that's 2.6.7.2.17 MR. LETOURNEAU: 2.6.7.1, I believe. My supervisor caught the mistake later on, and the NOV that I served on him later was for the 1.5.6, the illegal land use and unauthorized outside storage of vehicles. So I believe that 2.6.7.1 would not apply to this property at this time. MS. DUSEK: And what about 2.6.7.2.1 ? MS. ARNOLD: It's the opposite. Page 44 September 27, 2001 MS. DUSEK: Okay. Because I don't have a copy of that. CHAIRMAN FLEGAL: 1.1 is having -- being inoperable and no tags, so that would apply. I don't think it limits it to residential. I think it limits everything. MR. LETOURNEAU: Oh, it does? Okay. CHAIRMAN FLEGAL: And 2.1 is something about parking in a residential area. MR. LETOURNEAU: Okay. My mistake then. Sorry. MS. DUSEK: So now is it my understanding, Mr. Chairman, that all the violations cited are correct? CHAIRMAN FLEGAL: There are -- instead of five cited violations or -- there are only four: 1.5.6, 2.1.15, 2.6.7.1.1 of 91-102 and Section 6 and 7 of 99-51. The only one we eliminated was the 2.6.7.2.1. MS. DUSEK: I make a motion that in the case of the Board of County Commissioners versus Gerald Davidson in the CEB Case No. 2001-077 that a violation does exist; that the violation is of Sections 1.5.6, 2.1.15, 2.6.7.1 of Ordinance No. 91-102, the Collier County Land Development Code, and Sections 6 and 7 of Ordinance 99-51, the Collier County Weeds and Litter Ordinance. The description of the violation is illegal storage of inoperable and/or vehicles with invalid tags in an unpermitted zoning district; and, two, illegal accumulation of litter consisting of, but not limited to, washers, dryers, appliances, plastic, wood, metals, vehicle parts, mowers, and paper products. CHAIRMAN FLEGAL: We have a motion that there, in fact, does exist a violation. Do I hear a second? MS. TAYLOR: Second. CHAIRMAN FLEGAL: Is there any discussion? Thank you. Hearing none, all those in favor that the violation does exist signify by saying aye. Page 45 September 27, 2001 (Unanimous response.) CHAIRMAN FLEGAL: Those opposed? (No response.) CHAIRMAN FLEGAL: 5-0. Order of the board. MS. DUSEK: I think when we consider the recommendation that we should extend the period of time. Now, I know Mr. Davidson has asked for six months. I think that's too long. The county has asked for 30 days, and I think that's too short. So some compromise in between. MR. PONTE: I might say that it's just right on the button. There are only 35 cars there, and some of them you can drive off. MS. TAYLOR: Right. MR. PONTE: That's a car a day. CHAIRMAN FLEGAL: Well, but there's other things he has to get rid of too. MR. PONTE: Well, Mr. Davidson has testified that he has removed tons and tons and tons of litter and that it's in good shape. CHAIRMAN FLEGAL: I believe he also said he couldn't do it in 30 days. MR. PONTE: MS. DUSEK: MR. PONTE: MS. DUSEK: He refused to answer my question. No. He did. He said it would take six months. Six months is way too long. That was answering your question. CHAIRMAN FLEGAL: Let's find a compromise somewhere between 30 and six months. MR. PONTE: How about 317 MS. TAYLOR: I agree. CHAIRMAN FLEGAL: It's a time period. You have to put it out there and see what everybody else thinks. MS. DUSEK: I'd like to make a recommendation that the CEB order the respondent to pay all operational costs incurred in the Page 46 September 27, 2001 prosecution of this case, obtain valid license plates for all operable vehicles, and remove all inoperable vehicles and litter within 90 days or a fine of $50 per day be imposed upon (sic) each day the violation continues. MR. PONTE: I think $50 a day is a scofflaw penalty for someone who is a multimillionaire. MS. TAYLOR: I agree. MR. PONTE: And I think the penalty should be in the range of 100 to $150 a day. MS. TAYLOR: I agree. MS. DUSEK: I don't think that it should be based on the person's ability to pay. MR. LEHMANN: I agree with my colleague. I think $50 a day is fairly standard for this board as far as this type of a violation. It has nothing to do with his financial ability. MR. PONTE: Well, he introduced -- MR. LEHMANN: I understand. CHAIRMAN FLEGAL: That's not what we should consider. I would recommend that your motion -- you only gave the respondent an out by obtaining tags to remove the vehicles. He can -- I think he should have the right to sell the vehicles without getting tags. I don't think you should force him into having to go get tags for all the vehicles if he chooses to sell them. As long as he complies with the ordinance, I think that's sufficient. Whether he gets a tag or sells a vehicle, as long as it's removed or it's towed off by -- who cares? MS. DUSEK: All right. Well, then would it be better to say obtain valid license plates and/or remove? CHAIRMAN FLEGAL: I guess -- MS. DUSEK: Then that gives him the choice of doing either. He can remove them, or he can get valid license plates. MR. LEHMANN: If he sells them and removes them off the Page 47 September 27, 2001 property, that achieves compliance. CHAIRMAN FLEGAL: I don't care whether he gets tags. I guess my problem, Ms. Rawson, in just saying you have to get a tag, if they're not his vehicles to start with, I don't think that he's going to run out and buy a tag for it. So your ordering him to do that is -- MS. RAWSON: You can just order him to come into compliance or remove the vehicles. CHAIRMAN FLEGAL: Right. MS. RAWSON: And, you know, while -- while I'm reminded -- about the fines, let me just remind you again what the ordinance says as well as the statute. When you're deciding what fine to impose, remember you must consider the gravity of the violation, any actions taken by the violator to correct the violation, any previous violations committed, and any other relevant evidence. CHAIRMAN FLEGAL: Okay. I think if you just would amend your motion to come into compliance by -- MS. TAYLOR: No more than 60 days. No more. CHAIRMAN FLEGAL: Well, I'm trying to get rid of the license plates. I really don't like that being in the order. I don't like limiting somebody to that option when there's other options available. MS. DUSEK: Well, why don't we just say come into compliance for all operable vehicles and inoperable vehicles, and then however he comes into compliance -- CHAIRMAN FLEGAL: That's fine. I just wanted to get rid of that license plate part. MS. DUSEK: Well, then I amend it to say come into compliance for all operable and inoperable vehicles. I still would like to see it done in 90 days. CHAIRMAN FLEGAL: I don't have a -- I'm not arguing that point. I just was interested in the tag part. Thank you for amending it. Page 48 September 27, 2001 MR. LEHMANN: You have deleted the reference to removing inoperable vehicles? MS. DUSEK: Well, I've said come into compliance, so whatever that takes. If it's removing it -- and it seems to be a lot to do, which is my reason for doing 90 days, and our purpose is to have him come into compliance. So 90 days. I don't think that this is a hazard to anyone to have 90 days there. MS. TAYLOR: He's had since last December to come into compliance. MS. DUSEK: And he has been working on it, and he, I'm sure, will follow through this time. MS. TAYLOR: It's too long. MR. PONTE: I agree. MS. ARNOLD: Can I just ask a quick question? Does the motion include removal of litter? MS. DUSEK: Yes. CHAIRMAN FLEGAL: Yes, it did. My only question was the license plate part of it. She included that. MR. PONTE: I'd also like to suggest that the fine of $50 a day is much too low. We're not talking about a lot with some litter. We're not talking about 1 acre with some litter. We're talking about 5 acres with litter. And although we want to look back at other cases and use them as a precedent, I don't recall in my time on this board ever having a case of 5 acres of litter. I think it's exceptional. CHAIRMAN FLEGAL: Right now there is just a motion for 90 days and $50. So are you proposing something other than the $50? MR. PONTE: Yes, I am. I'm proposing something in the range of 100 to $150. MS. DUSEK: I -- I don't think that's in line with the violation. I really don't. It's not a safety issue. MS. TAYLOR: It could be. Page 49 September 27, 2001 CHAIRMAN FLEGAL: Since we have the motion for six months -- or I'm sorry -- for 90 days and $50, is there a second to that? MR. LEHMANN: I'll second that. CHAIRMAN FLEGAL: Okay. We have a second. Anybody wish to discuss further? We have a motion on the floor which we must vote on. MS. TAYLOR: Ninety days, he'll be gone. MS. DUSEK: Whether he's here or whether he's not, the violation has to be remedied. MS. TAYLOR: It does. And the sooner the better. MS. DUSEK: Well, he could go tomorrow. That really shouldn't have anything -- MR. LEHMANN: If that is your concern, then I would recommend amending the motion to include provisions for the county to abate the problem after the 90 days. MR. PONTE: I agree. MR. LEHMANN: The only question I have is how do we -- how do we recoup that cost, which may be substantial? MS. DUSEK: Well, as -- as recouping all of our costs and fines, a lien goes on the property. And then if it's not corrected, it goes into foreclosure. CHAIRMAN FLEGAL: Ms. Rawson, I think one more time so that everybody can at least remember, when we file liens by imposing our -- the costs, besides a lien on the property under the statute and the ordinance, we also have the right to -- MS. RAWSON: Any other lands owned by the respondent. CHAIRMAN FLEGAL: Any other lands and also personal. MS. RAWSON: Certainly. In a foreclosure, whatever they can collect. MR. LEHMANN: We have given up the right for personal Page 50 September 27, 2001 holdings. MS. RAWSON: It's not personal property. It's any other lands. And I think he testified he owns other properties. MR. LEHMANN: Because our lien has been made superior to others. And in doing so, we've given up personal property from the respondent. MS. RAWSON: That's correct. MR. LEHMANN: So we may attach the lien to any other holdings of a real estate nature. CHAIRMAN FLEGAL: Okay. So everybody understands that they're not worried that, you know, if he sells this particular piece, we don't have any way. Okay. So the motion on the floor is 90 days and $50. Any further discussion? All those in favor signify by saying aye. MR. LEHMANN: Aye. CHAIRMAN FLEGAL: Aye. MS. DUSEK: Aye. CHAIRMAN FLEGAL: Those opposed? MR. PONTE: Nay. MS. TAYLOR: Nay. CHAIRMAN FLEGAL: 3-2, motion carries. Mr. Davidson, do you understand, sir? MR. DAVIDSON: Mr. Ponte says 5 acres. It's probably only 1 acre or less. CHAIRMAN FLEGAL: We're done -- MR. DAVIDSON: This man I think needs to know this. It's not 5 acres, Mr. Ponte. It's 1 acre. CHAIRMAN FLEGAL: My question is, do you understand what our order was? MR. DAVIDSON: I understand what you're saying. I'm just saying this property, of course, to me is expendable. If you want to Page 51 September 27, 2001 put a lien on it or take it, that's -- CHAIRMAN FLEGAL: My questions was, did you understand our order? Yes or no? MR. DAVIDSON: Let me ask you -- CHAIRMAN FLEGAL: Yes or no, sir? MR. DAVIDSON: Yes, I understand it. CHAIRMAN FLEGAL: Thank you, sir. Next case -- do you need a break, ma'am? (A discussion was held off the record.) CHAIRMAN FLEGAL: Next case is Board of County Commissioners versus Ricky Bell, Case No. 2001-078. MS. CRUZ: Yes. Mr. Chairman, members of the board, let the record show that the respondent is present, Ricky L. Bell. And I'd like to request the respondent, if there's no objection, to admitting the packet that was provided to him and to the board be admitted into evidence at this time. CHAIRMAN FLEGAL: Mr. Bell, do you have any objection to the county submitting their paperwork to us? MR. BELL: No, sir, I don't. MS. CRUZ: Would you please mark this as Composite Exhibit A and admit it into evidence. CHAIRMAN FLEGAL: Okay. I would entertain a motion to accept the county's exhibit. MR. LEHMANN: So moved. MS. DUSEK: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the county's exhibit. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: (No response.) CHAIRMAN FLEGAL: Any opposed? Thank you. Page 52 September 27, 2001 MS. CRUZ: This case is Board of County Commissioners versus Ricky L. Bell, Case No. 2001-078. CHAIRMAN FLEGAL: You can sit down, sir. MS. CRUZ: The alleged violation before the board here is enclosure of a structure, the lower level of a stilt home, without first obtaining the proper permits. This is a violation of Ordinance No. 91-102, the Collier County Land Development Code, Section 2.7.6, paragraphs 1 and 5; and a violation of the Ordinance No. 98-76, the Collier County Building Construction Administrative Code, Section 104.1.1, Section 105.5, and Section 106.3.1. The violation exists at 2662 Riverview Drive, Naples, Florida. The description of the property is Gulf Shores Block 4, Lot 18. Owner of record is Ricky L. Bell. The address of record is 2662 Riverview Drive, Naples, Florida. The violation was observed on March 29th, 2001. Two notices of violation were provided to the respondent. One was dated April 13th, 2001, with a correction date of April 30th, 2001; and the most current was provided on July 11 th, 2001 requesting compliance by July 21st, 2001. As of yesterday the violation remains. No permits have been obtained. I turn the case over to Investigator John Kelly at this time. (The speaker was sworn.) MR. KELLY: Good morning, Chairman, members of the board. This case was received by me on March 29th, 2001, allegation of ground level improvements without having obtained appropriate permits. I was able to first perform an interior investigation on April 13th, at which time it was observed there were part -- the downstairs was enclosed. Partitioned walls were going up at that time with electric observed in the partitioned walls. It primarily consisted of a great Florida-type room and two garages, one of which was further separated into a work area. The work was in progress at that time. No permits were Page 53 September 27, 2001 observed as posted, none found to have been issued. A notice of violation was subsequently issued after verbal warnings for voluntary compliance on April 12, 2001, ordering that permits be applied for and obtained or the violation be removed. On about May 1st, 2001, I was contacted by a recognized contractor within the county that he had been retained by Mr. Bell to assist him in abating the violations. Further investigations to date reveal no permits having been applied for or obtained. Subsequent attempts to contact the contractor have failed. On June 25th, 2001, I had obtained the property card for the property in question, identified two permits having been issued to this property: One for the principal structure itself and one for a pool. I proceeded to obtain a copy of the permit issued for the principal structure which revealed that the ground level had been constructed in a totally open environment, no walls. It further identified 1746 -square feet of living space, 871 square feet of porch space, and 1221 square foot carport, which wasn't observed at the location. A second notice of violation was subsequently issued on July 11 th for those additional violations found, that being the total enclosure of the downstairs rather than just interior work to enclose the -- to include walls, windows, doors, and the additional siding that had been placed on the residence. That request did -- had a compliance date of July 21st. On July 23rd, there having been no additional action taken by either the owner or his contractor, the case was referred for hearing this date. I would like to put a couple documents on the viewer here. The picture on the screen now represents the three-story structure as it remain -- as it exists today. You'll note there's a garage, windows on the lower level. Next I'll show the original permit here. The -- this is a copy of the plans. I have an actual full copy of the plans if anyone would care to see them. This was submitted with the original Page 54 September 27, 2001 application showing the downstairs totally open. It would be -- code enforce -- oh, additionally, I did talk to Gene Chartrand, the FEMA coordinator for our department. He reviewed the paperwork, determined that the property is below flood level. It's in an AE-9 flood zone. The ground level slab elevation is at 6.5 feet; therefore, it is below flood. The finished living elevation of the first floor is at 15.8 feet, meaning that approximately, oh, 4 feet of the ground level is below flood. That being the case, per Mr. Chartrand, the only permitted uses downstairs are for limited storage and vehicle parking. He stated that you may have an enclosed interior stairway. He didn't -- he didn't specify how large that can be. It actually could be the entire downstairs; however, then you would need to meet the requirements for hydrostatic flow venting so flood waters can pass through the structure. Then my final visit was performed yesterday. I had a pleasant conversation with Mr. Bell. It's my understanding that he's had some problems with contact with the contractor, who I know personally went on vacation during this case as well. It seems to be a failure to basically communicate between the parties. I'm of the opinion he desires to come into compliance. And that leads us to our recommendation that the board order Mr. Bell to bring the property into compliance by either obtaining permits or removing the improvements and restoring the property to its originally permitted state within 45 days or a cost of $50 per day plus costs. CHAIRMAN FLEGAL: Any questions for Mr. Kelly? MR. PONTE: I have one. Just a clarification. Did you see any of this in progress, any of this construction progress? Did you see that? MR. KELLY: No, sir. I -- not until I made entry did I observe Page 55 September 27, 2001 it going on. The garage doors are usually closed there. Since my coming onto the area, the structure had always had a lower enclosed level, so I never noticed it during routine patrols. MS. DUSEK: Mr. Kelly, just so I understand, he is allowed to have an enclosed garage or he isn't? But he cannot have the electrical work in there? MR. KELLY: He can have -- what he has if he includes venting -- it's my understanding he would need to come into FEMA requirements. The building materials utilized below flood would be - - need to be approved by that agency. And, like I say, he would need to add flow vents for water to pass through. MR. LEHMANN: Mr. Kelly, what's the current occupancy classification of "lower level" as it stands today? MR. KELLY: Pardon me? MR. LEHMANN: The current occupancy classification, what is he using it for now? Are there -- MR. KELLY: Parking of vehicles, storage, and basically it looked like a Florida room, a fully enclosed patio. MR. LEHMANN: Refresh my memory again. You are citing this respondent because he has enclosed his first floor level without a permit. MR. KELLY: Correct. MR. LEHMANN: And the enclosure that he has constructed is being used for storage and vehicles. MR. KELLY: It is being utilized presently for a purpose I believe to be in-- not being a violation itself, the use of the property. MR. LEHMANN: And, again, you had indicated that you believed that he may not be able to obtain a permit for this simply because it is below flood plane elevation. MR. KELLY: Not without making certain corrections which would be specified by the building department bringing the property Page 56 September 27, 2001 into FEMA requirements. MR. LEHMANN: Thank you. MR. KELLY: You're welcome. CHAIRMAN FLEGAL: CHAIRMAN FLEGAL: Mr. Bell. Any other questions for Mr. Kelly? Thank you, sir. MR. BELL: Good morning. First of all, yeah, I found out when Mr. Kelly came that, I guess, I was out of compliance or whatever. But just to fill in a little bit here, I bought this house in '91. The house as it was showed, all of the outside is the way it was when I bought the house. It was a two-car, fully enclosed downstairs and everything with a downstairs stairway opening into the garage area and so forth. The work that I had done as a homeowner, just do it myself, was finishing off some of that inside with drywall. It had electrical down there, and I just added some additional electrical and stuff. But as far as the outer appearance of the house I had not changed other than the one door out by the pool was a single door and I put in, like, a French door where that single door was on the back. As far as the house being fully enclosed, it's always been fully enclosed since I bought it, so this was kind of news to me, or shock. ! guess the permits never showed it actually being enclosed. But as he also said, I did contact Mike Brito, a contractor, and he supposedly was handling all this for me. When I got both notices, I carried them to him. He told me he was dealing with somebody at the county. He kept telling me, "Don't worry. I'm taking care of it. You're in the clear. I'm a contractor. They can't do nothing to yOU." And he is hard to get ahold of. He's been doing a lot of work in Sarasota also here lately, besides being on vacation. And -- but I had contracted him to clear this up and get it straightened out for me so I Page 57 September 27, 2001 could be legal. Other than that, that's it. I mean, I am in violation but ... CHAIRMAN FLEGAL: Where do you stand as far as you and he trying to resolve this problem? MR. BELL: Well, I tried to -- I didn't even know about this hearing until yesterday afternoon when Mr. Kelly came. I had a thing from the post office to pick up a certified letter which I hadn't gotten around to picking up yet, and Mr. Kelly came to the house yesterday afternoon, which was the first aware (sic). And I've tried to call Mike Brito this morning and yesterday afternoon and hadn't got ahold of him yet, so I hadn't talked to him. But in the past he's assured me this was -- he was taking care of it, and it was going to be, you know, getting the permit and getting everything brought up to whatever it had to be. So I've been kind of strung out by him, if that's the right word and the use. So as far as having a definite answer right this minute, I don't until I get ahold of him or either drop him and get somebody else that's more up to what the actual codes are and everything. MR. LEHMANN: Mr. Bell, you had indicated that your renovations included hanging drywall and putting in some additional electrical, and then you removed a door and put in a wider door; is that correct? MR. BELL: Yeah. On the very back where my pool is from where the garage is was just always a regular door going out, and I put in a double-wide door instead of a single-wide door. MR. LEHMANN: Did you have to change the structure of the building, the supporting structure, to do that? MR. BELL: No, no. The supporting -- this house is -- I think they call it Eporcore (phonetic). It's concrete columns, and then it's all steel eyebeams and concrete floors. And the in-between walls are just filler walls, I guess you'd call them or whatever. They have Page 58 September 27, 2001 nothing to do structural whatsoever. That's when-- when Mr. Kelly first came to me, I told him, I said, "I'm not doing anything structural. It's all already here. I'm just finishing off what was never finished originally." I'm just, you know, trying to give it a finishing look on the inside of the garage because it was just -- on the inside part was just 2 by 4's. The outside was always the way it is now. So that's why I didn't realize I was getting into a big can of worms here just by finishing off some of the inside like a lot of do-it-yourself homeowners, adding another couple receptacles here or there that's already -- didn't realize, you know, again, opening a can of worms. MS. DUSEK: Mr. Bell, you said you bought the property in '917 MR. BELL: I'm almost sure it was January of'91. It might have been '90, but I'm pretty sure it was '91. MS. DUSEK: Do you know -- and the house was the way it is today except for the few adjustments you made. Do you know when the house was built? MR. BELL: I believe it was built in 1990 or 1989. It was only a year old when I bought it. I bought it through FP&L from -- one of their engineers had built it, and they transferred him, and I bought it through FP&L power company. MS. DUSEK: Mr. Kelly, my next question. MR. KELLY: Yeah. The permit application date is December 15, 1988, and so I'm assuming it would have been finished in 1989. We do have a copy of the CO. It's in the file. MS. DUSEK: MR. KELLY: does. MS. DUSEK: MR. KELLY: And does the CO show that it was enclosed? It shows a two-level structure, same as the permit And that permit showed an open area underneath. Correct, the application for that permit. Page 59 September 27, 2001 MR. LEHMANN: Investigator Kelly, do you have a set of the permit drawings that go along with that permit? MR. KELLY: Yes, sir. MR. LEHMANN: And what do those drawings show? MR. KELLY: They -- would you like to see them up close? MR. LEHMANN: Please. CHAIRMAN FLEGAL: Mr. Bell, from the talks you had with Mr. Brito-- MR. BELL: Yes, sir. CHAIRMAN FLEGAL: -- in your opinion, does it seem like he's willing to try and resolve this problem for you, or he's just really -- or is he merely giving you some lip service? I mean, it's been about four months since you started talking, and nothing's really happened. MR. BELL: Right. Yes, sir. I've felt that way at times, but I've also checked with other people that I know in town. I'm a contractor myself, but I'm a infrastructure. I do asphalt paving and stuff, not actual buildings, so I know a lot of people in the industry. But I've checked on some other people I know very, very well that I trust dearly, and they assured me that he -- he'll do what he says he's going to do, and he's more than capable. It's just that I know he's been going through a divorce settlement, and he's had a couple -- his plate's been overloaded. So that's what I've been getting through other people. Like, he will do it; he's just -- he's got his plate loaded and, you know, bear with him, bear with him. And that's what I've been trying to do. CHAIRMAN FLEGAL: Any other questions for Mr. Bell? MR. LEHMANN: Just for the board's information, the permit plans do show it being an open area. CHAIRMAN FLEGAL: Thank you, Mr. Bell. MR. PONTE: Just one question, Mr. Bell. Do you have a Page 60 September 27, 2001 contract with Mr. Brito? MR. BELL: Just a verbal. We didn't do a written contract because, like I say, we both are in the construction business. MR. PONTE: Just a handshake. MR. BELL: Just a handshake, yeah. MR. PONTE: Thank you. CHAIRMAN FLEGAL: First order of business for the board, is there, in fact, a violation existing? MS. DUSEK: Well, unfortunately, it appears as though there is, and so I guess I'll be the culprit. In the case of the Board of County Commissioners versus Ricky Bell in the case of CEB No. 2001-078, I find that there is a violation. The violation is of Section 2.7.6, paragraphs 1 and 5 of Ordinance 91-102, the Collier County Land Development Code; and Sections 104.1. I and 105.5 and 106.3.1 of Ordinance 98-76, the Collier County Building Construction Administrative Code. The description of the violation is the enclosure of a structure, in parentheses, lower level of a stilt home, without first obtaining all necessary permits. CHAIRMAN FLEGAL: Okay. We have a motion that there, in fact, does exist a violation. Any discussion? Do I hear a second? MS. TAYLOR: Second. CHAIRMAN FLEGAL: We have a second on the motion. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Those opposed? (No response.) CHAIRMAN FLEGAL: Order of the board. MR. PONTE: Well, I think as we look at this order, my feeling is that Mr. Brito is the one who's at fault here, not Mr. Bell. Mr. Bell Page 61 September 27, 2001 has tried to do everything possible to comply. MS. DUSEK: I agree with you. And I'm thinking, therefore, we should extend the time frame. And, also, I'm for a lower fine of $25. Mr. Bell, before I make a recommendation, I wanted to ask you what time frame do you think that you can come into compliance? The county has recommended 45 days. I know a lot depends on you getting this contractor, but we also have to be reasonable and say if this contractor's not going to be available for six months, you've got to go with somebody else. MR. BELL: Right. Yes, ma'am. I was going to say, I'm not familiar with the permitting process on the structural part of a building in the county and all. And that would be more Mike's alley as far as to answer that question. But I would think, you know, maybe 60 days or whatever. But, like I say, I really don't know. I would hope he'd be able to do it. I would have hoped he would have got it done a lot sooner than now. CHAIRMAN FLEGAL: But you didn't change any structural components of the building. They're still as built. All you did was put up some -- for lack of a better word, some 2-by-4 walls between these concrete pillars that hold the structure up. MR. BELL: Correct. Yes, sir. That's correct. And, like they say -- I don't know where the downfall is here neither, but they keep saying about the bottom being all open. Like I say, when I bought it in '91 -- and it was on the title search also and the -- the appraisal thing and everything that it was enclosed with two garage doors, with the windows, just as it looks now on the outside. That was all existing, so this is kind of a new surprise to me saying that that was never down there, because even the inside stairway that came down into the garage and everything was a hallway with a closet and all, and that's just all drywall. So I tend to -- too, that that wouldn't have came down just drywall out in the open weather, that it had to always Page 62 September 27, 2001 be closed in. So I don't know if there's something been misplaced at the county or -- we can find or what if we get to looking. CHAIRMAN FLEGAL: Thank you, sir. MS. DUSEK: Michelle, you're asking that he obtain permits within 45 days. CHAIRMAN FLEGAL: Or return the structure to its original -- MS. DUSEK: Right. And if he can't get the permits, then he has to put it back the way it was. MS. ARNOLD: Correct. MS. DUSEK: I make a recommendation that the CEB order the respondent to pay all operational costs incurred in the prosecution of this case and obtain all necessary permits, if obtainable, or return structure to its previously permitted condition within 60 days or a fine of $25 per day be imposed each day violation continues. Is that a MR. LEHMANN: You made a recommendation. motion? MS. DUSEK: That's my motion. CHAIRMAN FLEGAL: Thank you, Mr. Lehmann. going to say the same thing. $25. I was MS. DUSEK: I wasn't paying attention to my words. MR. LEHMANN: We try to listen to you when you speak. MR. PONTE: You said 60 days. · MS. DUSEK: Sixty days and-- CHAIRMAN FLEGAL: The motion on the floor is 60 days and MS. TAYLOR: I second that. MR. PONTE: I just -- I'm a little uncomfortable with returning the structure to its previously permitted condition. I mean, is there another way we can sort of word this? I mean, what we're asking him to do is, "Hey, if you don't get it done in 60 days, tear out the bottom floor." Page 63 September 27, 2001 CHAIRMAN FLEGAL: I think under-- if you look at it from-- our authority is to gain compliance with the ordinance. And if you don't have a permit issued, then the building has to look like it was, quote, unquote, permitted to look like back at day one. So that's kind of our only two choices: Get a permit or put it back the way it was. It may sound bad, but really our only two choices. MS. DUSEK: I hear what Mr. Ponte is saying, because if we say you have 60 days to get a permit, all right, day 59 he finds out he can't get a permit, then we're expecting in one day for him to put it back the way it was. CHAIRMAN FLEGAL: But he has the right to come, at that point, back to the board and say, "Look, I've tried everything, been working diligently, and here's all this information. It hasn't worked out. Can you give me an extension?" He has that right to request us to do that, and we can grant him an extension. It's just not automatic that he's got one day to tear the bottom out of his house or he's going to start getting fined. He can always come back and ask for more time as long as he can prove to us that he's doing something to move forward. If he just comes back and he sat there for 59 days and didn't even bother to ask for any help or seek any assistance, then I would be prone to say, "Tough." But if he's shown me he's really been working at this, I'd probably be prone to try and help him. So he has that option. MR. PONTE: Can I just ask staff a question? What's the likelihood of his being denied a permit -- MS. ARNOLD: As the -- MR. PONTE: -- given the flood zone considerations? MS. ARNOLD: As the investigator testified, the way the facilities are being used currently is not the issue. The permit is the issue. He can get a permit to use it for a garage and to use it for storage. And he may have to make some modification to comply with Page 64 September 27, 2001 the FEMA regulations, but that's not the issue. MR. PONTE: Thank you. CHAIRMAN FLEGAL: Okay. Does that answer your question? MR. PONTE: Yeah. CHAIRMAN FLEGAL: Okay. So the motion and second is 60 days and $25. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Those opposed? (No response.) CHAIRMAN FLEGAL: Mr. Bell, do you understand, sir? We're giving you 60 days to resolve the problem. MR. BELL: Yes, sir. CHAIRMAN FLEGAL: If not, a fine is going to start at $25 a day until you do resolve it. But, like I've said, if you're working diligently and that 60th day is creeping up on you and you haven't resolved it, you do have the right to ask the county to put you back on our agenda and ask for an extension. And, you know, if you can prove that you've really been gung ho at this, we would probably be likely to grant it. But as I say, if you haven't done anything, we're probably going to say no. MR. BELL: I understand, and I appreciate it. Thanks a lot. CHAIRMAN FLEGAL: All right, sir. Thank you. That'll close the public hearing section. Let's take a five-minute break, please. (A break was held.) CHAIRMAN FLEGAL: We'll call the board back to order, please. Next item of business is the request for imposition of fines. MS. ARNOLD: For the record, Michelle Arnold, code Page 65 September 27, 2001 enforcement director. The first item is Board of County Commissioners versus Steven M. Medinger, Case 2000-035 -- 2001- 035. This case was heard by the Code Enforcement Board on May 24th, 2001, at which time the violator was found in violation, and the board ordered to obtain all necessary permits within 90 days and to pay operational costs as well as -- if not -- if the respondent was not in compliance within the time noted, a fine of $50 per day would be imposed. Staff at this time is recommending that the board impose fines for the amount of $300. And that would be for the noncompliance dates August 24th, 2000 (sic), through August 30th, 2000 (sic), which accrued at a rate of $50 per day, plus an additional $534.16 for operational costs. CHAIRMAN FLEGAL: I also notice that the respondent has come into compliance; correct? MS. ARNOLD: Yes. I was going to note that. After -- much of these requests for imposition of fines are in compliance, so I'll just note that we are going to also file an affidavit of compliance for those individuals. CHAIRMAN FLEGAL: Okay. Fine. We have a request before us to impose the fines on Case 2001-035. MS. TAYLOR: So moved. CHAIRMAN FLEGAL: We have a motion -- MS. DUSEK: Second. CHAIRMAN FLEGAL: -- to impose a fine. Do we have a second? Ms. Dusek? All those in favor sigmify -- excuse me -- signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Couldn't get that out. MS. ARNOLD: And as the chairman mentioned, this particular respondent for this case is in compliance, and we will be filing an Page 66 September 27, 2001 affidavit of compliance. The other case is, again, an affidavit of noncompliance (sic) and an imposition of fines. This case was also heard on the 24th of May 2001. And the respondent was given 90 days to come into compliance, ordered to pay operational costs. And, also, if not in compliance by the time provided, a fine of $50 per day would be -- would accrue. Staff is at this time requesting that the board impose fines for the amount of $300 reflecting the noncompliance dates of August 24th, 2001, through August 30th, 2001, at a rate of $50 per day plus operational costs of $526.48. MS. TAYLOR: So moved. MS. DUSEK: Second. CHAIRMAN FLEGAL: We have a motion and a second to impose the fines as requested on Case 2001-036. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) MS. ARNOLD: This case also is in compliance, and we will be filing an affidavit of compliance. The next case on your agenda is Code Enforcement Board-- Board of County Commissioners versus Jean C. Jacques, Case No. 2001-040. This case was heard by the board on August 18th, 2001, and the board found the respondent in violation and ordered to obtain permits for permittable structures on the property with certificate of completion by August 18th, 2001. He was also ordered to remove all litter by July 18th, 2001, and to obtain all valid tags for operable vehicles by July 18th, 2001. The board also indicated operational costs would be assessed. And fines of $50 a day would be imposed in the event the respondent did not comply with the order to obtain Page 67 September 27, 2001 CHAIRMAN FLEGAL: impose the fines as requested. aye. permits for permittable structures. Fines of $25 per day would be imposed if the respondent did not remove all the litter. And an additional $25 per day would be imposed in the event the respondent failed to acquire valid tags for operable vehicles. The respondent is -- remains in violation, and we are at this time requesting that fines be imposed in the amount of $4,050 reflecting the dates in one case of August 19th, 2001, through September 13th, and that would be for a total of $1250. And the other amount is for the two other violations noted and reflecting the dates of July 19th, 2001, through September 13th, 2001. The operational cost for this particular case has accrued to the amount of $611.90. MS. TAYLOR: So moved. MR. PONTE: Before we move on that, though, this was a junkyard case of abandoned vehicles and litter and that sort of stuff, as I recall. Can we go in and clear it up, seeing that we have in the order that operational costs would be covered, seeing he's done nothing? CHAIRMAN FLEGAL: No. The order of the board was limited for him to do it. The order of the board did not contain .a paragraph that states that if he doesn't do it, we could order the county to do it, so we can't do that. The existing order stands as it was issued. MS. TAYLOR: Once again, so moved. MS. DUSEK: Second. We have a motion and a second to All those in favor signify by saying (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) MS. ARNOLD: The next item is Board of County Page 68 September 27, 2001 Commissioners versus Randy L. Johns and Lorrie J. Johns, Case No. 2001-042. This case was heard by the board on the 18th of June 2001, at which time the Johns were found in violation and ordered to obtain permits for the mobile home on the subject property within 60 days or fines of $50 per day would be imposed. Additionally, the board ordered that operational costs would incur-- or be imposed for this particular case. This case continues to be out of compliance, and staff is at this time requesting that the board impose fines in the amounts of $1,150 for a period reflecting the dates of August 19th, 2001, through September 11 th, 2001, at a rate of $50 per day, plus operational costs of $588.16. MS. TAYLOR: So moved. MS. DUSEK: Second. CHAIRMAN FLEGAL: We have a motion and a second to impose the fines as requested by the county. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) MS. ARNOLD: Okay. The next case is Board of County Commissioners versus Chad Dotson (sic), Case No. 2001-053. This case is in compliance, and we will be filing an affidavit of compliance. On June 28th, 2001, the board heard this case and found the respondent in violation and ordered them to complete Phase II of the already approved mitigation plan within 45 days or fines of $50 per day would be imposed. The respondent was also ordered to pay operational costs. At this time we would request that the board impose the operational costs at an amount of $507.32. MR. LEHMANN: And are those operational costs up to the date that compliance was achieved? Page 69 September 27, 2001 CHAIRMAN FLEGAL: impose the fines as requested. aye. MS. ARNOLD: Yes. MS. TAYLOR: So moved. MR. LEHMANN: Second. I have a motion and a second to All those in favor signify by saying (Unanimous response.) CHAIRMAN FLEGAL: Those opposed? (No response.) MS. ARNOLD: The next item is Board of County Commissioners versus Adolfo Carta, Case No. 2001-054. This case is also in compliance. And the case was heard by the board on June 28th, 2001, at which time the violation was found, and the respondent was ordered to obtain after-the-fact building permits within 45 days. The respondent was also ordered to pay operational costs and any -- and would be imposed $100 per day any day that the violation continued past the August 12th date. Staff is at this time requesting that the board impose fines in the amount of $1,000 reflecting noncompliance dates of August 13th through August 23rd, which accrued at a rate of $100 per day, and operational costs for $392.90. MS. TAYLOR: So moved. MR. LEHMANN: Second. CHAIRMAN FLEGAL: We have a motion and a second to impose the fines as requested. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Those opposed? (No response.) MS. ARNOLD: Okay. Board of County Commissioners versus B. F. Fort Myers, Incorporated. This case is now in compliance, and we will be filing an affidavit of compliance. The board did hear this Page 70 September 27, 2001 case on July 16th, 2001, and found the violation to exist. The respondent was requested to replace damaged and missing landscaping trees and ordered to pay a fine of $50 per day in the event the violation continued. The respondent was also requested to pay all operational costs. The respondent did obtain compliance within the board's order; however, staff is at this time requesting imposition of fines for the operational costs in the amount of $383.40. MS. TAYLOR: So moved. MR. LEHMANN: Second. CHAIRMAN FLEGAL: We have a motion and a second to impose the fines for the operational costs as requested. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Those opposed? (No response.) MS. ARNOLD: Okay. Now we have Board of County Commissioners versus Blas Valsez and Roberto Soto. This case was heard by the board on August 23rd, 2001, and is now in compliance, and we will file an affidavit of compliance. At the August 23rd hearing, the board found the respondent in violation and ordered the immediate removal of the vehicles by staff, and the cost for removal of the vehicles would be assessed by -- to the respondent. The board also ordered that the operational costs be assessed. At this time we would -- we request that the board impose the operational cost of $377.26. MS. TAYLOR: So moved. MS. DUSEK: Second. CHAIRMAN FLEGAL: We have a motion and a second to impose the fines as requested by the county. All those in favor signify by saying aye. Page 71 September 27, 2001 (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: That covers our new business. Old business, request for dismissal of some fines. MS. ARNOLD: The first item is Board of County Commissioners versus Dale L. And Cheryl A. Horbal. MR. LEHMANN: Mr. Chairman, since I recused myself from this case when it was originally heard, I do so again, recuse myself from this case. CHAIRMAN FLEGAL: Okay. MS. ARNOLD: Does that affect our quorum at all? MS. RAWSON: Four is a quorum. CHAIRMAN FLEGAL: Four out of seven is a quorum. MS. TAYLOR: I say no. MS. ARNOLD: Well, the respondent is present. CHAIRMAN FLEGAL: Yeah. Is Mr. And Ms. Horbal here? Okay. Let's give them the opportunity to tell us why. (The speaker was sworn.) MS. HORBAL: My name is Cheryl Horbal, H-o-r-b-a-1. And I'm here today to respectfully request that the fines that have been imposed on us be negated as I am in compliance of removing the two Java Plum trees as of August 2001, and that's in compliance with Collier County Code Ordinance 3.9.6.6.6. Should I continue with an overview? CHAIRMAN FLEGAL: Just tell us why you want us to waive the fines, please. MS. HORBAL: Okay. As of the time that we were notified of the violation, we immediately began to work on trying to obtain a variance due to the age of the trees and the fact that we purchased the property with the knowledge -- or with the understanding that the Page 72 September 27, 2001 trees could remain on the property. Once Collier County informed us of this a year later, we, again, started working on obtaining a variance. When we realized that a variance could not be obtained, we then had to hire legal assistance in order to contact the builder. When you build a home, you rely on professionals, and we had relied on the professionals at Rottlund to provide a professionally landscaped lot. As professionals, they failed to provide that to us, so we did have to contact Rottlund Homes and ask that they remove the trees from the lot at their expense. Rottlund Homes, at the time of our contact, had pulled out of Collier County. They're no longer building in Collier County. So our lawyer had to contact them through the Tampa office, and none of the people that built our home are involved anymore with Rottlund Homes. So they had to do research in order to backtrack and find out what exactly had gone on. Rottlund Homes then proceeded to obtain the necessary permissions and bids in order to remove the trees. It cost Rottlund Homes $5,250 to remove the trees, but they did agree to remove them. They stood up to their end of the contract and did remove the trees at their expense. It did take us longer to come into compliance, obviously, because we did want to save the trees. They were over 25 years old and 60 feet tall. If they were younger trees, it wouldn't have even been an issue. But because of the age of the trees and the height of them, we did want to save them. So we are in compliance. It is going to cost us approximately -- we've spoken to a landscaper already. It is going to cost us as homeowners approximately $4,000 to replace the trees, as we now have lost all our privacy and are visible to the road behind us. And that is why I'm asking for the county-- Collier County Commission -- or the board, rather, to negate the charges. CHAIRMAN FLEGAL: Michelle, do we know what the amount is to date? I mean, until this was -- achieved compliance, Page 73 September 27, 2001 which was -- I don't know what date -- sometime in August, I guess, of this year? MS. ARNOLD: Our calculation shows that it's up to $17,550. That's not including the operational costs. CHAIRMAN FLEGAL: Seventeen thousand five -- MS. ARNOLD: Five hundred and fifty. CHAIRMAN FLEGAL: -- fifty, plus the operational costs. MS. ARNOLD: Which are $950.35. MS. DUSEK: Mrs. Horbal, did you ever request before the board to ask for an extension? MS. HORBAL: Yes, ma'am, we did. When we realized that we -- because we had to receive an extension to go before the Collier County Board of Commissioners, and we did that twice, I believe. So, yes. I have all the documentation of all the extensions and all the work that we've been doing and the communications between all the various different people. So we've been working tireless (sic) on it. It hasn't -- it hasn't been something that's been on a back burner. We've been working on it. MS. DUSEK: I think I do remember you coming before us for one extension, but I'm not sure -- when you knew that you were really lagging behind, did you come before us again and ask? Because otherwise, if we had given you the extension -- MS. HORBAL: ! don't think so. I think Michelle and I -- Michelle and I at that time had met in her office and -- but no. I don't think we -- I came before you and formally asked for an extension, no. Michelle and I were just in contact in her office. MS. ARNOLD: I believe she came back to the board, and at that time she was advised that once in compliance, that she could come back and request a reduction of fines. So she didn't come back to you again to ask for an extension. She came to you once and then was advised to request a reduction of fine or a waiver of fine, and Page 74 September 27, 2001 that's what she's doing right now. You do have this particular item on your reports to note that they are, in fact, in compliance, and we will be filing that affidavit of compliance. MR. PONTE: Well, compliance has been achieved, though certainly in a prolonged method. I think certainly the costs to the county should be reimbursed, and then if the Horbals have -- any other complaints really ought to be against Rottlund Homes. MS. HORBAL: Well, I do want to mention that Rottlund did take responsibility and did remove the trees and, in fact, are going to, according to Longshore's landscaping committee, the back of the property is to be landscaped with Guava Plums. And Rottlund has said that they would put Guava Plums in there. They obviously are not going to replace the trees for us, but they would put Guava Plums back there. But I think it's important to note, too, that we did have a clean CO from the county, and this problem kind of snowballed because Rottlund didn't catch the problem, and then the inspector from the county did not catch the problem either. And so it kind of snowballed, you know. And so I kind of feel like, you know, we were caught in the middle between two professionals. One didn't do their job, the other didn't do their job, and then we were caught in the middle between the two of them. And, as I said, we depend on the professionals. We didn't know the difference between a Guava Plum and Java Plum up until the time this came to our attention. We do now, but we didn't know then. MS. DUSEK: Michelle, I have a question for you. I don't mean to put you on the spot, but do you feel that the Horbals have been working in a timely fashion? I know that when they first came before us, they really did not want to remove these trees. MS. ARNOLD: I feel that the Horbals have been doing -- working diligently to get some sort of compliance, because at the Page 75 September 27, 2001 time of the hearing, they were somewhat advised to pursue other avenues other than removal. So they did pursue those other avenues, were unsuccessful. But as soon as a decision was made, they attempted to, you know, get in contact with the contractors, and they -- they were finally successful. And once the contractors were contacted, they contacted my office and have been keeping me abreast of what's been going on. So I think that they've been, you know, working with us to let us know that they are proceeding towards compliance. MS. TAYLOR: Well, I definitely would want to see the operational costs left. CHAIRMAN FLEGAL: I think in being reasonable -- because I remember when it first came before us and that they did come back and ask, and I think they have been trying. And based on what Michelle just said, I'm not against reducing the fine portion of it. The operational cost, I would be for letting it stand. MS. DUSEK: When you say "reducing the" -- CHAIRMAN FLEGAL: The fine right now is 17,550. I have no problem, because of what the -- I under -- I remember the situation and what they were doing. And ! believe that they have probably tried very hard to keep their trees, and it just didn't work out. It's now been resolved. I don't think we or the county gain anything by forcing them to pay $17,550 or putting a lien on their property. I think it was an unfortunate situation, and they were kind of caught. They've tried. It's been accomplished. I would be in favor of reducing the fine to zero, but letting the operational costs remain. MR. PONTE: Okay. That's the clarification. Eliminating the fine is what you're really saying. CHAIRMAN FLEGAL: Yes. Any motion from the board? MS. TAYLOR: So moved. CHAIRMAN FLEGAL: To do what? Page 76 September 27, 2001 MS. TAYLOR: What you just said. CHAIRMAN FLEGAL: Just to clarify. MS. TAYLOR: What you just said. CHAIRMAN FLEGAL: What I just said. Okay. MS. TAYLOR: Drop all the fines but keep the operational costs. CHAIRMAN FLEGAL: Okay. Reduce the $17,550 fine to zero, but retain the $950.35 operational costs. MS. TAYLOR: Yes. CHAIRMAN FLEGAL: Okay. We have a motion to that effect. MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? All those in favor signify by saying aye. (Unanimous response with Mr. Lehmann not voting.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Ms. Horbal the $17,550 is wiped out. You still owe $950.35. MS. HORBAL: Thank you. Am I able to get a copy of a detailed printout of the operational costs? Because I'm unfamiliar with what that is. CHAIRMAN FLEGAL: We can't help you there. You'll have to talk to the county about that. MS. HORBAL: Okay. Thank you. CHAIRMAN FLEGAL: Next case, Todd and Lisa Mastro. MS. ARNOLD: This is a request from the Mastros for a reduction or a dismissal of fines, and the Mastros are present. CHAIRMAN FLEGAL: Okay. Mastros. Yes, sir. Would you like to come up and tell the board why we should honor your request? Page 77 September 27, 2001 (The speaker was sworn.) MS. MASTRO: My name is Lisa Mastro. This has been ongoing and not timely, and I do apologize for that. If you recall, the whole purpose of our violation was we did not obtain a permit before building a playhouse in our backyard. When this was brought to our attention, we did go .down to code enforcement. We were informed that we would need to get a survey done and bring in some simple drawings. And we did that. And, unfortunately, upon bringing those drawings and the survey down, we then -- it was determined that we were -- not only did we not have a permit, but we also were in the easement. To obtain a permit, we would have to get a variance or remove the structure to come into compliance with what the original problem was, is that we did not have a permit. We did talk with some professionals, and they had suggested instead of going the route of the variance, which had a fee associated with it and, of course, you folks could have denied, that we attempt to move the structure. So we hired a crane company, which was very difficult to find somebody to do this particular type of work on the budget in which we were working in. But we did do that based on the survey that we had, and we were informed how far that we needed to move it to get it within the appropriate amount of space so that we would not need to obtain a variance to then obtain the permit. When they moved it and we had a survey redone, we found out that we were still 1 foot 7 inches in the easement. We could not move the structure any further without jeopardizing the space between the structure and our home. And also, the concrete footers that are underneath the structure, had we moved it forward any further-- we could have moved our water system, and then we could have moved it forward the 1 foot 7 inches, but the support of the structure, the footers underneath the structure, if we would have Page 78 September 27, 2001 moved it that additional 1 foot 7 inches, would have been no longer supporting the structure. It would have been, then, off the footings. So that did not seem to be an option, that 1 foot 7 inches. We did go down and get the application for a variance. I will humbly submit that we had a very difficult time filling out the application, and we did call on a significant amount of individuals to assist us with the filling out of that application. At this time the cost of that application was $450. This was before the first of the year. When we actually went in with a filled out application, a gentleman down at code enforcement's office actually ended up ultimately helping us fill it out, Chahram. We were then informed that the fee was $1,025. We have three children, and this was after Christmas, and we simply could not afford to pay that at the time. It took us three -- I'm sorry. CHAIRMAN FLEGAL: That's all right. Take your time. This isn't drastic, so just calm down. MS. MASTRO: I know. CHAIRMAN FLEGAL: a problem. MS. MASTRO: It took us three months -- well, there were several determining factors. One was, is we could just be throwing the money away if you didn't approve it, and that was a consideration. And we did some -- we finally found -- I'm so sorry. CHAIRMAN FLEGAL: That's all right. Just take a break. MS. MASTRO: To make a long story short, we finally applied for the variance in March and paid the fee. And it was not until May 3rd that we were seen in front of you, and at that time you did approve it. And it was June 14th, and we appeared in front of the commissioners, and they also approved it. And on June 25th we finally got our permit. And we are in compliance. We would have never -- I know there's lots of-- there's lots of other incidentals, but It's been really frustrating. I understand. Just take your time. Not Page 79 September 27, 2001 since I can't even get through this part, let's skip that. CHAIRMAN FLEGAL: That's fine. You're doing real fine. Just take your time. MS. MASTRO: I guess I just want to express that the fines against us are approximately $13,500 currently. We did have to do all this work ourselves except for-- and unfortunately with all of that came -- with moving it, we had to change some of the structural things. We had to get additional drawings. The simple drawing we had was not okay. We did have somebody actually volunteer to do a drawing, a contractor or draftsman. That was not even good enough. And when we moved it, we had to change where the stairway was, and we had to change a couple of things. We had to have it redone. All these things that seem to be very small were very time- consuming, not to mention my husband digging in the backyard and hitting lines. This started out very innocent, and we have tried very diligently, and we are in compliance. And I heard you mention previously about the lien on the property when you were talking either about -- you know, either things that you're just doing a fine on them right now or dismissing or coming -- there is -- this is a lien on our property. We are trying to refinance our property. And I've been rather emotional the last couple of weeks in speaking with some of the members of code enforcement and county employees and have been pretty emotional about it because this is holding this up. And it's -- we're just trying to do something great for our kids, and I hope that you'll take that into consideration. Thank you. CHAIRMAN FLEGAL: Okay. Thank you. MS. TAYLOR: Well, I want to say that's one of the neatest playhouses that I have ever seen in my life, truly. It is really nice. I hope the boys appreciate it big time. CHAIRMAN FLEGAL: Michelle, tell me what the fine is to Page 80 September 27, 2001 date, just so we know. MS. ARNOLD: It's $13,650. CHAIRMAN FLEGAL: Okay. date? MS. ARNOLD: MS. MASTRO: other thing? And the operational cost to To date it is $841.28. Would it be possible for me to just say one CHAIRMAN FLEGAL: Yes, ma'am. MS. MASTRO: On the date that the original $50 a day fine became imposed, I was here by myself. And, actually, I remember specifically speaking with you or you had asked a question. And you -- because I had asked for an extension at that time. Some of this, I had explained, was taking far long -- we didn't realize that we were going to run into the problem with the variance and that moving it was not going to be sufficient. It was before, of course, we applied for the variance. And in lieu of giving us an extension, you had said after you're in compliance, you know, you can come back, and you can ask for a reduction or a dismissal. And that is why since -- as I said, it has been a long time, and that is, in addition, why we have not been back in front of you. It seemed there was no further discussion on requesting an extension. Thank you. CHAIRMAN FLEGAL: All right. Questions by the board? MS. DUSEK: No. CHAIRMAN FLEGAL: Motion by the board? MS. DUSEK: I make a motion that we eliminate the fines except for the operational costs. CHAIRMAN FLEGAL: Any discussion? Any second? MR. PONTE: Perhaps we could think in terms of reducing the operational costs somewhat as well in that the respondents had gone forward with an estimated cost of preparation of $400 and then found Page 81 September 27, 2001 the fee to be a thousand dollars to go ahead. Given all the costs that they have encountered with cranes and what have you, I just think we ought to not only reduce the fine or eliminate the fine, but also consider reducing the operational costs. They've paid a lot of money. MS. DUSEK: I'm a very empathetic person and I do empathize with this situation and with others that have come before us. But I think when we have operational costs, that is the least that we should have a respondent incur because the violation was there to begin with. So I think by us reducing the fine -- I mean eliminating the major fine is being very generous. MR. LEHMANN: Also, let's not let us forget who pays for operational costs. It is the taxpayers of Collier County. And I agree with my colleague. I think that the least that we can do is recover the operational costs that the county has incurred. First off, let me take a step backwards. For myself, this was a very, very displeasing case. We're talking about a playhouse that these people are trying to provide for their children. And because of the restrictions that this board has, a finding of fact is a finding of fact. I certainly don't have any objection at all with granting the respondents' waiver -- a request for a waiver of the fines, but I think the operational costs should remain. MS. DUSEK: I do too. CHAIRMAN FLEGAL: Okay. The motion currently on the floor is reduce the $13,650 fine to zero and that the operational costs of 841.21 -- is that it? MS. ARNOLD: Twenty-eight. CHAIRMAN FLEGAL: -- remain intact. Is there a second to that? MS. TAYLOR: I'll second that. CHAIRMAN FLEGAL: Okay. We have a motion and a second. All those in favor signify by saying aye. Page 82 September 27, 2001 (Unanimous response.) CHAIRMAN FLEGAL: Those opposed? (No response.) CHAIRMAN FLEGAL: Okay. Mr. And Mrs. Mastro, do you understand? We've waived the fine, but you still owe the county $841.21 (sic). MS. MASTRO: Can I ask one question? CHAIRMAN FLEGAL: Yes, ma'am. MS. MASTRO: Because of our refinancing, of course, and not getting a clear title because this is a lien on our property, I've been informed that this does have to go in front of the Collier County Commissioners before it can be recorded on our document. CHAIRMAN FLEGAL: No. That's not tree. No. The -- our order now will be to reduce this lien that's been imposed from whatever it is down to just this 841.21. If you pay that, then the lien will be lifted. Okay? MR. MASTRO: Can we do that today? CHAIRMAN FLEGAL: I guess. You have to get with the county. If you can go over there and pay it, they'll tell me it's been paid and -- MS. ARNOLD: Okay. The -- what she was referring to was the satisfaction. Once the lien is satisfied, that's what goes to the Board of County Commissioners for release. You know, it's just a formality. But if you were to pay it today, we could prepare the documents and put it on the next available agenda. But I would imagine that the title company knowing that that is being secured, you know, the payment's been-- CHAIRMAN FLEGAL: I would suspect if we ask the county attorney's office that -- you know, if you pay your fine today, they're not going to have a problem trying to get the Board of County Commissioners to do something really rapidly to help you out since Page 83 September 27, 2001 you're trying to refinance your house. MS. RAWSON: And, Mr. And Mrs. Mastro, I can say that they probably need a recorded copy of the order from today, and I'll have that to Mr. Flegal by tomorrow to sign. And then if we get it to Michelle and she gets that recorded, that should help release your lien too. MS. MASTRO: Thank you. CHAIRMAN FLEGAL: Okay. That -- I think we're -- the only other item under old business is doing the rules and regulations. And I'd like to just skip over that and get the reports filed, and then we'll come back and do the rules and regulations. Let's get that little bit of business out of the away. MS. ARNOLD: Under the reports the first item was Dale L. And Cheryl A. Horbal, Case No. 99-069, and we are filing an affidavit of compliance for that. And the other one is Board of County Commissioners versus Todd A. And Lisa A. Mastro, Case No. 200-029, and we are -- we have already filed an affidavit of compliance for that. CHAIRMAN FLEGAL: Okay. That leaves us with the only business is to finalize our discussions -- MS. DUSEK: Excuse me, Michelle. Did you do Stephen Medinger in there also? MS. ARNOLD: I previously noted that Mr. Medinger-- when I talked about the imposition of fines -- CHAIRMAN FLEGAL: When we went through the imposition of fines, they were all listed up there. Okay. Rules and regulations. The last set we had I think is dated June 19th from Ms. Rawson, and then we got some Exhibits A and B sent to us. I assume everybody got Exhibits A and B. I hope everybody had a chance to go through the June submission that was given to us. MS. ARNOLD: Can I just note for the record Rhona Saunders Page 84 September 27, 2001 had indicated that she wouldn't be here, I just recalled, because of the Jewish holiday. So I wanted to note that for the record. So it was an excused absence. CHAIRMAN FLEGAL: Thank you. There are in the June submission, trying to make this, hopefully, our last-ditch effort in -- I know we've made a lot of improvements to them. I found some submissions which I didn't understand from our first set that we went through, so I need to ask about those and then some other possible changes. And some of it are just words. So let's go through the -- and to do the exhibits, why don't-- as we go through, when the exhibits pop up, let's just do them at that time since they apply to a specific section. Everybody got their copy of the June -- page 1, no problem? (A discussion was held off the record.) CHAIRMAN FLEGAL: Page 1. Yes, sir. MR. PONTE: On the very top up here, mine is the June 27th too. But in the very top in the nice type it says the 19th. CHAIRMAN FLEGAL: Okay. Mine just says the 19th. I had mine -- MS. TAYLOR: Mine does too. CHAIRMAN FLEGAL: -- e-mailed, I think, or faxed. I can't remember. But ... MR. LEHMANN: I guess I got the wrong one. I'll follow along. If I ask dumb questions, it's because I'm looking at -- CHAIRMAN FLEGAL: If you ask dumb questions, you'll be with the rest of us, so don't feel like a stranger. Page 1, no problem. MS. ARNOLD: And the only notation that I had on that page -- and it's been a while since we've talked about that -- was further clarification in Section 1 about the alternate voting in the absence of a regular member. I don't know why -- like I said, it's been a while. I don't know why I have that notation. In Section 1 under board, I had Page 85 September 27, 2001 a note on my -- my copy. CHAIRMAN FLEGAL: On page 1 ? MS. ARNOLD: I'm sorry. Page 2. CHAIRMAN FLEGAL: You had me really confused. That's not on my page 1. What happened? Page 2, Article IV. MR. PONTE: Cliff, Mr. Chairman, just so we're all on the same page, page 2 is the preceding page, not by actual count. Page 2 doesn't have an Article IV on it. CHAIRMAN FLEGAL: Two on the bottom. MR. PONTE: Page 2 at the top. CHAIRMAN FLEGAL: That's not -- MR. PONTE: That's not the right page. CHAIRMAN FLEGAL: No. Page 1 happens to be a transmittal sheet which has nothing to do with the rules and regulations. MR. PONTE: I know that. That's why I was confused. CHAIRMAN FLEGAL: So let's deal with the rules and regulations. MR. LEHMANN: To make life easy, let's reference the page numbers on the bottom of the page. CHAIRMAN FLEGAL: The actual rules and regulations. Page 1 is cool. All right. Page 2, Article IV, election of officers. What was in our first draft for some reason is not what's printed here, and my question is why? Originally it said, "A candidate receiving a majority vote shall be declared elected and shall serve a term of one year, comma, or until a successor has taken office. No one member shall serve more than two consecutive terms of-- as chairman." That's not what reads in the page 2 from the June -- whether it's 19th or 22nd. Why was it changed or-- because we voted to get that last sentence in because that was important to everybody, but now it's not there. MS. RAWSON: I don't have an answer to that question. I Page 86 September 27, 2001 wrote what I thought you voted on. But I've got it on the screen, so I'm happy to fix it. CHAIRMAN FLEGAL: I can show you what -- what was original because I highlighted all the changes, and then we actually voted. And I can't remember the date. We'd have to go way back, but it was -- that sentence was wanted, and everybody agreed because, if you'll remember, my argument was we couldn't change these. MS. RAWSON: Give me the words again. I'll fix it. CHAIRMAN FLEGAL: The sentence is "No one member shall serve more than two consecutive terms as chairman." MS. ARNOLD: I thought that that was at the request of Ms. Dusek. CHAIRMAN FLEGAL: Yeah. We had a discussion, and we voted on it, to do it that particular day. MS. DUSEK: And he's right. I have the same earlier copy where it states exactly what he said. It was written down earlier. MS. RAWSON: This is the second sentence. CHAIRMAN FLEGAL: Yes, ma'am. MR. LEHMANN: Here's one of my -- here's the first of what may be many dumb questions. Section No. 1 on mine references that we can only have this election at the annual organizational meeting. Did we not change that? CHAIRMAN FLEGAL: No. MR. LEHMANN: I thought we had changed that. CHAIRMAN FLEGAL: No. What we changed was originally -- currently our -- our rules state that you can only change the rules and regulations at that meeting, and then there -- there's also -- and it's on the last page under miscellaneous -- that you could discuss, update, and adopt, or something like that, at any time. And Ms. Rawson said, well, since they're conflicting, you could do it Page 87 September 27, 2001 currently, and that's what everybody seemed to want to do, so we did it at that meeting. But that's -- I think that was back in -- my memory isn't that good -- May or something. MS. RAWSON: I think it was too, but the nomination and the election of officers are going to stay every March -- CHAIRMAN FLEGAL: Right. At the organizational meeting. MS. RAWSON: -- to make it consistent. MR. LEHMANN: If we do not nominate or elect officers in March, do we then -- are we then forced to wait another year to do that, or can we do that-- MS. RAWSON: No. But I would hope that that's always going to be our organizational meeting, and it'll be on our agenda for March of every year, and I don't know any time that we haven't done that. But it -- but I think it ought to be done consistently, and I think March has always been the organizational month. MR. LEHMANN: Well, I don't mind -- I don't mind the time of the organizational meeting. MS. RAWSON: But to answer your question, no. If we didn't have a meeting in March, we'd have to do it in April. CHAIRMAN FLEGAL: And we've done that for one reason or another. I can't remember -- in fact, I guess this past year March was a problem, and we said let's defer to April when there was -- I can't remember whether-- there weren't enough people present or something. But we did it actually in the April meeting. MS. RAWSON: Yeah. I don't think that's going to be a problem. I'm just trying to keep us consistent. If we had an eight- hour hearing, you know, in March and we decided not to do it until April, that's the pleasure of the board. MR. LEHMANN: I just don't want to be locked into a position where we-- MS. RAWSON: We're not going to be. Page 88 September 27, 2001 MR..LEHMANN: Okay. Good. MS. TAYLOR: Well, I have a question. I have a couple of things. I don't know where it should go, but I know we were given an order one time to never bring up or suggest to anyone that has been brought before us what they must do when they walk through those doors, legal advice, whatever. That's not our job. And we were told once not to do that anymore, but we continue do it. And I think it's very important that we do not give them advice as to what they should do when they leave here and walk out those doors. That can come back -- that can be serious. I don't know where you'd put it in here, but I think it's very important. MS. ARNOLD: I just think that maybe if we -- if the board is going in that direction, that probably the counsel for the board could kind of recommend that we not go in that direction rather than it being included in the rules and regulations. CHAIRMAN FLEGAL: Well, rules and regulations aren't something, as I understand them to be, that you write down each and every thing that you do. There's supposed to be some unwritten common sense, for lack of a better word, because if you write down everything, this could end up being 800 pages. This is supposed to be an overview. I think it's already way bigger than it should be, but that's okay. It seems to be what people want, but I'm not for expanding it. We have a lot of things in here that really don't apply to this board. There are things that -- not that we're ordering or anything, but that the code enforcement department should do. And we have no authority over them, so why it's even in our rules and regulations is beyond me, but that's okay. That seems to be what people want. But I don't think we should get really detailed. When you get really detailed, that's when things do bite you, because if it's in here and you don't do it -- if ! was sitting out there and was an attorney and you Page 89 September 27, 2001 didn't follow your own rules, I'd be the first one to scream that, you know, you didn't give my client a fair shot because you didn't even follow your own rules. MS. RAWSON: I would agree with Mr. Flegal. There's certain common sense things that the board obviously operates under. And, you know, there's certain things that are not in here that I know that you know. And if we need to have a workshop once in a while, I'll be happy to do that. But, I mean, it's not in here that you're going to obey the Sunshine Law and not talk about these cases outside of here, but I know you know not to do that, but it's not in here. It's not in here that you don't go run around and look at all of the properties that are going to come before you, but I know you know not to do that, so that's not in here. So there's a lot of just common sense stuff. And I know you're not going to talk about the respondents before you come here because you know you can only base your decisions on the evidence presented before you at this hearing. So I don't want to put you guys in a spot that it looks like we're dictating every single thing that you have to do because you have to do that by law anyway. So a lot of common sense just kind of goes along with it. It doesn't need to be in writing. CHAIRMAN FLEGAL: I know what you're saying, Diane, and I -- there's a lot of avenues open to these people that they may or may not know about. And I don't think we've ever said, "You should do this." I think you're relying on the times -- and I was probably the culprit, but I feel strongly about it, that if somebody doesn't like an ordinance and they want to change it, we can't do that. The people that change ordinances are the county commissioners. Now, the fact that a county commissioner doesn't want to talk to anybody about changing an ordinance, that's their prerogative. But they have that authority; we don't. So these people need to Page 90 September 27, 2001 understand they can go speak to their representative -- just like they can go to the state capitol and speak to a senator or a congressman -- and say, "Hey, I'd like to get the law changed." That's what those people do. I think these people have the right to know that. I just feel like that. That's why we have people in charge of the county. You can walk over there and say, "I think this is a dumb law. You ought to change it." If they say, "I don't care," that's their privilege, but at least you should have the right to walk in there. I mean, that's how I feel about it. And I'm not -- I'm not advising them legally to go do tha~; that's just an option that I would pursue. If I don't like the law, I'd go knock on the door and say, "Mr. Commissioner, you represent me, and this is wrong, and I'd like it changed." MS. TAYLOR: What we're here for is to face these facts that are brought before us, nothing more. CHAIRMAN FLEGAL: I understand that. MS. TAYLOR: And it's not telling them go get legal advice, go do this, go do that. That's not our job. What they do when they walk out, that's their business. And if they're intelligent people, they'll know what to do. It's not for us to tell them. CHAIRMAN FLEGAL' Okay. I understand that. But I don't think we need to write down here that we're not allowed -- everybody's allowed to make private comments. If we're going to say "Don't do this," then it should be, "Don't tell people that you don't like the trash in their yard." That's not your place. If I take your comment, as we're only to do the evidence, the fact that you argue with somebody that you don't like the way his property looks is immaterial. You're here to decide that the county has decided he's in violation, so we don't want to do that. I don't think you need to get that detailed. I think everybody should voice how they feel -- MS. TAYLOR: You mean in here? Page 91 September 27, 2001 CHAIRMAN FLEGAL: Yeah -- no. We don't want to write in here -- MS. TAYLOR: That's fine. But if we all understand that, we are not -- that's not our job. It's not. CHAIRMAN FLEGAL: I understand that. But everybody gets to make their comments that they feel about it, and I respect everybody's comments. You have the right to make them. Whether they're good or bad or right or wrong, you have the right. This is your little podium. And, I mean, if it gets out of hand, yes, one of us will say, "Excuse me." But most of us have -- I've never seen us get out of hand, so I think we're in good shape. The -- I had a question, and I can't remember what section. Maybe I'll get it -- okay. Section 4, we got that sentence in. Section 5 where we talk about seven members, for some reason Section 1 has been changed from what it was in the original. We now say, "If there is not a quorum, the first alternate shall have the right to vote. And if two members are needed to make" -- that's -- I don't know where that came from or whose idea that was. MS. ARNOLD: I had it in my notes that we were to add it. CHAIRMAN FLEGAL: Well, there's a seven-member board with two alternates. Automatically if one of the seven permanent members is out, the first alternate will serve, and they automatically get the right to vote. If two members are gone, two permanent members, then both alternates get to serve, and they get to vote. If only three permanent members show up and two alternates, obviously the alternates have now become members, so you would then have five members, which is automatically a quorum. All you need is four. So I don't know where this came from. And I read it, and I said, "Wait a minute. You're stating how alternates get to vote and" -- MS. RAWSON: I think the reason that -- as I recall the Page 92 September 27, 2001 discussion, it was to make it clear that the first alternate is the first person to vote and not the second alternate, in case there was a dispute over which alternate. And we always have to look and see who was chosen as alternate first, who was chosen as alternate second. I think it was just to clarify which alternate is the first to vote, as I recall the discussion. MR. LEHMANN: Jean, is not -- is that not specified in the statute? MS. RAWSON: No, it is not. That's why we wanted to clarify it. I mean, that's what we've been doing, but it's just to clarify it so there won't be a dispute over which alternate has the right to vote. MS. ARNOLD: I think that there were a couple meetings where we had -- not discussion of the -- the rules and regs, but during the meeting that maybe I raised the question, you know, who should be voting or whether or not we needed to have an alternate vote. And I think that's -- that when we originally started talking about the rules and regs, that there was discussions about putting in language about the makeup of the board and clarifying who votes when in terms of the alternate. And I thought we had agreed to put that in because my notes show that -- add a Section 1, and then renumber all the sections. CHAIRMAN FLEGAL: I mean, I just -- when I read it, I -- it's just not the way, I guess, my mind works and how the board works. I'm more along the lines of Ms. Rawson, that the first alternate -- and normally I try to say if someone is absent, that Mr. Or Ms. Such and Such will now serve as a voting member when they're required so that they understand they have the right to vote. Maybe that section should be reclarified, Ms. Rawson, and I wrote something down and-- to try and make it, I guess, really simple. Maybe that's a scary word to say. So there would be more, quote, unquote, specific and match -- I mean, I think the first sentence is great because that's what it is; it's a seven-member board Page 93 September 27, 2001 with two alternates, period. What I did, rather than the sentence that's there -- it had nothing to do with a quorum. A quorum is unimportant because you first have to say that the alternate members are going to serve if there's only three permanents and no one else here. So I tried to get it down to something like this' "An alternate shall be designated to fill any regular-member vacancy at any meeting, with full voting rights." That -- you know, if we show up and there's just three of us and there's two alternates, I would suspect the chairman at the time would say, "You two are going to serve today as regular members, and you will have the right to vote," and then you just move on. I think that keeps it kind of simple. If regular members are absent, then you, you know, will designate which alternate, whether it's the first or the second -- MS. ARNOLD' That -- that was my comments that I started talking about before we even got to the page. And I had some language that said that "the alternate shall have the right to vote in the absence of a regular member," and it didn't really reflect whether or not there was a quorum. And, you know, if we wanted to clarify that the first alternate would get the first right and the second alternate, the second right, then that would be fine. But then we would kind of be eliminating the language about whether or not it's a quorum. CHAIRMAN FLEGAL' Yeah. That's -- I don't think that's needed because it -- I mean, common sense tells you if there's not a quorum, then you don't have a meeting. So you just can't say, "Well, we don't have a quorum, so the alternates will participate." No. The alternates are for a reason. They're there to assist you because it's supposed to be a seven-member board, period. So if two of your regulars are gone, you'd move into two alternates. MS. DUSEK: Cliff, would you just read your wording again? CHAIRMAN FLEGAL: Yeah. And Ms. Rawson may -- I don't know if it doesn't work, but she may wish to change it. All I've said Page 94 September 27, 2001 for the second sentence is "An alternate shall be designated to fill any regular-member vacancy at any meeting, with full voting rights." Now, you can designate -- MS. DUSEK: I make a motion that we change it to simplify it according to the language of the chairman, and if it needs to be -- CHAIRMAN FLEGAL: I mean, I think that's -- is that pretty easy, Ms. Rawson, straightforward? MS. RAWSON: That is. And you are the one that would designate which alternate is going to -- CHAIRMAN FLEGAL: Yeah. The chairman should just say -- you know, because I think we know -- based on the way Michelle has told us when they're appointed, we pretty much know who came in first, unless they both show up at the same time. MR. PONTE: What did we -- I just need a little clarification on that one. What's a first alternate and a second alternate? Is it by appointment or-- MS. RAWSON: It depends on-- MR. PONTE: -- the one sitting to your right? MS. RAWSON: No. Which order the commissioners appointed you. CHAIRMAN FLEGAL: How the commissioners appointed them. MR. PONTE: Shouldn't we have a little, just, clause in there that says alternate, whatever, by date of appointment, so we know who's first? MS. TAYLOR: We know that. MR. PONTE: Well, maybe we do, but we're not going to be here forever. MS. ARNOLD: Yeah. But staff would know. CHAIRMAN FLEGAL: Staff would know because they -- they're the ones that get it before the chairman finds out who's been Page 95 September 27, 2001 appointed. Staff knows. They get the letter first. MR. PONTE: I know, but -- MS. TAYLOR: It's Darrin and-- CHAIRMAN FLEGAL: But you're making these -- again, you're making these way too detailed. MS. ARNOLD: We have to respect the court reporter and try to speak one at a time. CHAIRMAN FLEGAL: Yell at us, please. You're allowed. MS. RAWSON: I would like for you to repeat the sentence again, if you would. CHAIRMAN FLEGAL: Okay. "An alternate shall be designated to fill any regular-member vacancy at any meeting, with full voting rights." That way the chair has to designate somebody, whether it's alternate one, alternate two. They just -- it just doesn't automatically happen. That way the person knows that, hey -- because the way the -- the way it's supposed to work, even though there's seven of us sitting here and two alternates -- alternates can always ask questions; they just can't vote. So you must designate them as being a participating member for the voting process. MS. DUSEK: Do we need to vote on this? CHAIRMAN FLEGAL: Not yet. We're going to vote on everything. I mean, you -- these are just throwing out for us to talk about. MS. DUSEK: Can we vote on it as we go? MS. RAWSON: You can, because I think, actually, we voted on all of them last time. CHAIRMAN FLEGAL: Oh, we did? I didn't remember that. MS. RAWSON: We did, and they all passed. And now what you're doing is you're amending them, and that's okay. That's fine. CHAIRMAN FLEGAL: I don't even remember -- I didn't remember us voting on these (indicating). Page 96 September 27, 2001 MS. RAWSON: You did. CHAIRMAN FLEGAL: I remember voting no the one item about consecutive terms. MS. RAWSON: No. I think we voted on the whole thing. CHAIRMAN FLEGAL: I didn't remember that. MS. RAWSON: But it's -- we can make amendments, remember, at any time, because we voted on that. MS. DUSEK: Do we need to vote on this amendment? MS. RAWSON: I think we do. MS. DUSEK: All right. I make a motion that we accept the chairman's change for this Article -- what is it-- V, Section 1, that last sentence. MR. LEHMANN: Before I vote on this, I just want to be clear on what we're saying with -- what you had said, Cliff. The statutes allow us -- the statutes mandate that the alternatives (sic) are automatically going to take a position as a voting member on the board when there's an absence. MS. RAWSON: No. CHAIRMAN FLEGAL: No, they do not. MS. RAWSON: That's not in the statute. CHAIRMAN FLEGAL: That's not in the statute. MR. LEHMANN: It says in Statute 162 -- MS. RAWSON: It says that you have seven members and two alternates. MR. LEHMANN: It says, "The local governing body may appoint up to two alternate members for each Code Enforcement Board to serve on the board in the absence of board members." So that tells me if I have a board member that's absent, the alternate automatically takes that position. 'MS. ARNOLD: That was my language. MS. RAWSON: That's right. Page 97 September 27, 2001 MR. LEHMANN: My understanding of what our chairman is saying is -- intent of his words in this section is to force the chair to designate which alternate takes that position; is that correct? CHAIRMAN FLEGAL: Right. MR. LEHMANN: Okay. MS. RAWSON: That's what he says -- that's what he's saying. MR. LEHMANN: Sounds goods to me. MS. RAWSON: It's like, you know-- MS. DUSEK: I think we're making -- we're elaborating too much on a simple sentence. MS. TAYLOR: Like mountains out of molehills. I've made a motion. Does someone want to MS. DUSEK: second it? MR. PONTE: I'll second it. CHAIRMAN FLEGAL: Okay. We have a motion and a second on this Section 1. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) MR. PONTE: Before we move to Section 2 of the same article, let me just make a suggestion regarding movement -- positioning here so it's logical. Go to page 3, bottom of page 3. The section on quorums, which is currently labeled Section 6, I'm just suggesting it should be moved to insert it between Section 1 and 2, because you're talking about quorums, or it goes under Section 6. It's just in the wrong position. MS. ARNOLD: Well, we're going to be taking out the language referring to quorum in Section 1, right, and replacing it to -- MS. RAWSON: Yes, we are. Section 5 is a paragraph on quorum all by itself. CHAIRMAN FLEGAL: Section 1 is not even going to refer to Page 98 September 27, 2001 a quorum, period. MR. PONTE: All right. CHAIRMAN FLEGAL: That second sentence starting "If there is," that whole sentence is gone. MR. PONTE: Right. All right. MS. DUSEK: Next. CHAIRMAN FLEGAL: Section 2, the only thing I noticed is -- from our other one is the words in the second line at the very end. It says, "at other times as needed and determined." That wasn't in prior, but now all of a sudden it's in. Did we agree to change something that I missed? MS. ARNOLD: Yeah. I had a -- MS. RAWSON: I think we did. MS. ARNOLD: -- notation. I had a notation "and determined by the board," but it was worded better. MS. DUSEK: I have that notation also, "determined by the board." CHAIRMAN FLEGAL: Okay. I didn't have a note so ... MS. RAWSON: Can I word it better, Michelle? MS. ARNOLD: Yeah, I guess. MS. RAWSON: Okay. Give me your wording. MS. ARNOLD: No, no, no. Your -- the way you have it -- I guess you've improved -- I just had "and as determined by the board." CHAIRMAN FLEGAL: Okay. That's fine. I just didn't see it there, so evidently I didn't write it down. I missed it. I apologize for that. Page 3, I don't have anything. Anybody find any -- MR. LEHMANN: Can I ask a silly question again? CHAIRMAN FLEGAL: Sure. MR. LEHMANN: Where we talk about quorum, it says four members. Is that permanent members, alternate members? Page 99 September 27, 2001 CHAIRMAN FLEGAL: Four members. Four members. Four is four. It doesn't require permanent, alternate, because if you don't move an alternate over, again, you can't have a quorum. So it's just four members make a quorum. Okay. Page 3 is gone. Page 4. My only question was in Section 4, the fourth line down we state that "the alleged violator must submit 15 copies." Ms. Rawson, my problem is if we're saying that he must submit copies, we're now saying he's not allowed, under any premises, to have a rehearing because he didn't submit 15 copies. When we say "must," that's pretty -- that puts you in a little box, and if you don't do it, it don't work. I don't really like words that put people in boxes. MS. ARNOLD: I guess we could object to it. If they didn't do that, we could state an objection, but it's always up to the board whether or not they want to grant the rehearing. CHAIRMAN FLEGAL: I guess all I'm saying is when you -- when you tell somebody they shall do something or they must do something, you've now taken away all the other options. MS. DUSEK: Well, shouldn't they, though? Shouldn't it -- CHAIRMAN FLEGAL: I'm not saying they shouldn't. I just -- I think that word should be "the alleged violator should submit 15 copies," and that way if he does, fine; if he doesn't, fine. We can then still make a decision. But once you say he must submit it, if he doesn't submit it, then he doesn't have the option of having a rehearing -- MS. ARNOLD: Well, this is actually -- CHAIRMAN FLEGAL: -- because he didn't comply. MS. ARNOLD: This is actually for the hearing, the original hearing. CHAIRMAN FLEGAL: MS. ARNOLD: And-- CHAIRMAN FLEGAL: Right. But you're saying, again, for the Page 100 September 27, 2001 hearing that he must do something prior to the hearing, and if he doesn't do it-- suppose he was out of town-- MS. RAWSON: If you want to use the word "should" instead of "must," I don't have a problem with that. I don't want you to use the word "may." CHAIRMAN FLEGAL: Right. I think "should" is a better word instead of "must," that you leave the option open to -- I mean, suppose he was in a, who knows, car wreck, his plane's late, whatever, and he says, "Hey, I couldn't get here, and now you're not even going to let me submit this." I don't like that. MS. ARNOLD: They have to do this in advance of the hearing for your packet. CHAIRMAN FLEGAL: I understand. But, again, it's -- once these are finally approved and the world gets them, I don't want somebody to come back and say, "You didn't give me the right to get my data in late." So I'd like to see "should" in there instead of "must." MS. RAWSON: Done. Oh, you have to vote. MS. DUSEK: Well, if Ms. Rawson has no problem with it -- I'd like to hold them to doing something before they come which will help guide us through it. MS. TAYLOR: There are some things in this life that we must do. We must. CHAIRMAN FLEGAL: Well, but there's -- these are our rules. And, you know, trying to give a guy some due process, I don't -- MS. ARNOLD: It hasn't really caused a problem. The language "must" has been in there, but it's not going to hurt it to change it to "should," either. The only thing we changed in this respect was the number of copies was reduced from-- CHAIRMAN FLEGAL: Right. MS. ARNOLD: -- 20 to 15. Page 101 September 27, 2001 CHAIRMAN FLEGAL: I remember we changed that. I throw it out. If you're not interested, that's fine. I'm not the final say. MS. TAYLOR: "Must" gives it a little more authority, I think. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: Since I wasn't here for the original one, I'm going to back up just a minute into Section No. 3. The concern I have with Sections 3 and 4 is the time periods that we're allowing respondents to receive information and to turn it back to us. In Section 3 we say, "The secretary of the board shall provide notice to the alleged violator as herein provided at least 10 days prior to the hearing." Now, that notice is defined as the day we put a stamp on it and it's postmarked. If we assume three days traveling in the mail, we're down to seven days by the time the respondent receives his notice. Then in Section 4 we go on to say that he has to provide his -- his defense package five days prior to the hearing. So in my book that only leaves the respondent two days to find out what his defense package is going to be, put it all together, and then physically give it to us. I think that's a little bit short for due process. MS. DUSEK: Keep in mind that the investigator has been in contact with this person for some months prior to actually -- MS. ARNOLD: We talked about this, you and I, I think. And one of the processes that is not in here that my office does is provides -- you know, the investigators have been testifying that we issue them a CV warning letter. We provide them-- we've changed the wording -- prehearing notice. And we provide them a notice of the meeting prior to -- once we've made a decision that we're going to prosecute before the Code Enforcement Board, we've given them that. So it's before we even start preparing our packets for your review and to be submitted to them. For this time period to apply, we've already given them a prehearing notice notifying them that this Page 102 September 27, 2001 is going to the board and that -- you know, that this is the potential date that your case is going to be -- MR. LEHMANN: Well, the prehearing notice, if I remember right, doesn't say specifically which date the hearing is going to -- MS. ARNOLD: Yes, we do have a date in there. MR. LEHMANN: There is a specific date in there? MS. ARNOLD: Yes, we do. MR. LEHMANN: And how long in the future does that occur? In other words, how far ahead of the hearing does the respondent receive this? MS. ARNOLD: In most cases it's at least two months before the hearing. MR. LEHMANN: Two months before the hearing. MS. ARNOLD: Yes. MR. LEHMANN: Okay. So why do we have what we have in here now? MS. ARNOLD: Because this is for when we actually notify them, as the statute requires us to notify them, prior to the actual physical hearing. We give them another notice. And then at that point we give them all the information that you are going to review that we've prepared so that this -- they're getting all the information in their packet at that point. MR. LEHMANN: So why do we have any reference to preparing all this information five days beforehand? MS. ARNOLD: Because it -- we're giving them an opportunity to provide information to be presented to you prior to the hearing, for your review. MR. LEHMANN: I understand that, but that's already in the ordinance. Why are we repeating it here in our rules? MS. ARNOLD: It's already in the ordinance? MR. LEHMANN: Yes. Page 103 September 27, 2001 MS. RAWSON: No. The ten days is not in the ordinance, other than posting. MR. LEHMANN: No, no. The five days. That's what I'm talking about. At least I thought it was, anyway. I may be mistaken. MS. DUSEK: What five days are you talking about? MR. LEHMANN: To provide the evidentiary package back to the secretary of the board. MS. RAWSON: I'm not sure that's in the ordinance. It might be. But the ten-day rule is in there because the ten-day rule appears in the statute under posting and -- as well as the ordinance. But the ten- day rule doesn't apply to the certified mail. CHAIRMAN FLEGAL: And the letter they get two months before doesn't guarantee that there's going to be a hearing anyway. So I really don't hold a lot of notice to a letter sent two months in advance. MS. ARNOLD: Because they could come into compliance before then. CHAIRMAN FLEGAL: I mean, you know-- Right. Or anything could happen or-- MR. LEHMANN: And I apologize. It is not in the ordinance. But my concern here is somewhere in this time frame the respondent needs to be officially notified that the hearing is on the date of so- and-so and then given proper time to provide -- to prepare his defense and provide it to us. CHAIRMAN FLEGAL: Well, that's why I wanted to change the word "must" to "should," because that eliminates the five days. He could come in the day before and -- I mean, he could walk in that day and say, "Hey, I'm finally here, and here's a package." And then we make a decision whether we want to see it or not. MS. RAWSON: I thought we did change it to "should." MR. LEHMANN: We did. Page 104 September 27, 2001 CHAIRMAN FLEGAL: Well, no. never did vote on it. MS. DUSEK: We didn't vote on it. CHAIRMAN FLEGAL: didn't like it. MS. RAWSON: Oops. Diane didn't like it, so we We didn't vote on it because Diane I changed it. A discussion was held off the record.) MR. LEHMANN: Let's take a situation where we have attorneys involved, witnesses involved. How as -- how am I, as a respondent, going to get everybody together in two days' period of time and make sure that they're available and put together the defense package? Now, luckily we've been dealing with relatively minor cases where the general public is able to present their own cases, but what if we're not? MS. DUSEK: Well, Peter, I think we have to have some guidelines -- MR. LEHMANN: I agree. MS. DUSEK: -- in there, and you can't cover every base. You can't -- you just have to have some guidelines for people to follow. And I think it's not that these people are unaware that something isn't (sic) about to happen. So they're going to be preparing themselves for this eventual date, and it's not as though the day before, "Oh, my, I had no idea that I was in violation." MR. LEHMANN: That's not what I'm saying. MS. DUSEK: Well, I think that -- MR. LEHMANN: I understand the respondents know that they have a case. MS. DUSEK: And they're preparing for it. They should be. MR. LEHMANN: Then why do we not have -- why do we have so many cases where the respondents prepare no defense at all? MS. TAYLOR: Because they think it's going to go away. Page 105 September 27, 2001 That's what they think. They've ignored it all that time for months. MR. LEHMANN: My concern is due process. CHAIRMAN FLEGAL: Well, the ten days is locked in by the statute, so we can't do anything about that. MS. RAWSON: But the due process is not a problem. Now, in answer to your questions about the attorneys who are hired at the 11 th hour and don't have time to get their packet together, you know very well they'll come in here and ask for a continuance. We see that every month. MR. LEHMANN: It was a good fight; right? CHAIRMAN FLEGAL: Okay. So we're leaving the word "must," and we're going on to the next page. MS. DUSEK: Did you want to have an official vote on "must"? CHAIRMAN FLEGAL: Well, it seemed when we were talking "must," a couple people said they liked "should" and people should be made to do certain things so ... MS. DUSEK: How many want "must"? MS. TAYLOR: Me. MS. DUSEK: I'll go along with it. Three of you want "should"? MR. LEHMANN: It doesn't make a difference. CHAIRMAN FLEGAL' I just think it's better because it gives them more -- MS. DUSEK: MR. PONTE: Then "should" goes in. "Should." MS. TAYLOR: Do you know this is page 4 of page 11 ? CHAIRMAN FLEGAL: Oh, that's all right. MS. TAYLOR: This is all over one little bitty word, and we're going to be here until six o'clock tonight. CHAIRMAN FLEGAL: No, we won't. Page 5. MS. ARNOLD' What was decided on "should" and "must"? CHAIRMAN FLEGAL: "Should." And we're going to vote on Page 106 September 27, 2001 the whole mess when we're done here to make it really official, the way you should do it. I don't think you should vote section by section. I have a problem in this prehearing procedure, Section 1. This is talking about what code enforcement and the respondent should do, and our rules state that "code enforcement investigator shall contact." We have no authority to tell code enforcement to do anything, period. There's no discussion about that. We don't have that authority. That word should not be "should" -- or "shall." It should be "should." If they don't want to talk to them, that's their privilege. But we can't direct them to do anything. They don't work for us. We have no power over them. MS. RAWSON: I don't have any problem with "should." MR. PONTE: "Should" or "may." CHAIRMAN FLEGAL: Well, I mean, it's -- I'm just saying "shall" is the wrong word because we have no power to say code enforcement shall do anything. MS. DUSEK: But doesn't that leave it open, that they can or they can't? CHAIRMAN FLEGAL: We have no power over code enforcement. You have to start there. They don't work for us; we don't work for them. MR. PONTE: I don't think the word, then, should be "should." It should be "may." CHAIRMAN FLEGAL: You have to get to that premise. Well, I understand. "Shall" and "may," to me, MS. DUSEK: are the same. MR. PONTE' No. CHAIRMAN FLEGAL: No. MS. RAWSON: No. "May" means that-- CHAIRMAN FLEGAL: Definitely not. Page 107 September 27, 2001 MS. DUSEK: Because "shall" leaves it open. You may or you may not. CHAIRMAN FLEGAL' No. "Shall" is-- MS. RAWSON: "Shall" is a mandatory word, and "may" is a permissive word. And, you know, Cliff is right. We can't order them what to do. And I don't care if you put "may" in there because obviously we've got it in here, so we're telling them it's really a good idea that they follow this procedure. CHAIRMAN FLEGAL: Again, it's our rules of what we think, to govern ourselves, should occur. And we think code enforcement should talk to these people, but we can't order code enforcement to talk to these people. So that's the wrong word. Whether it's "should" or "may," I don't care. Ms. Rawson is the expert. MR. PONTE: "May." MS. RAWSON: "May" is probably better. CHAIRMAN FLEGAL: Okay. And also on the very last sentence there it says, "At the prehearing conference, the following shall occur." It should be "may" occur because we don't know what's going to happen, if there is a conference or if there isn't. That was the only two things on that page. MS. RAWSON: Well, all of the things that we tell them to do at the prehearing conference are "shall." CHAIRMAN FLEGAL' Well, but we're not at the prehearing conference. The prehearing conference is between code enforcement and the respondent. This board is not there, so we don't know what's going to happen. MS. DUSEK: Since we're not at the prehearing conference, that's what code enforcement is doing. CHAIRMAN FLEGAL: Correct. MS. DUSEK: So why did we change it at all? CHAIRMAN FLEGAL: Well -- Page 108 September 27, 2001 MS. DUSEK: Do you know what I'm saying? CHAIRMAN FLEGAL: I mean, I don't even know why it's in here myself, but it is because somebody wanted it in here. And all I'm saying is if there is a conference, what transpires there may occur. Beyond that I don't -- we don't know what's going to happen, nor, really, do we care, because it's not, quote, officially a case before us. MR. PONTE: Cliff makes an interesting point. That being the case, you would eliminate all of Section -- Article VIII. MS. ARNOLD: Well, I'd like it to remain in there because we're intending on providing this to each of the respondents so that they have an idea of what's going to occur at the board meeting, you know, what's expected of them when it comes to appeals and the like. My recommendation would be to change the "shalls" in paragraph -- or subparagraphs A and B to "may," and then keep the word "shall" where we're talking about any evidence -- "any facts or evidence stipulated to shall be submitted" because we want you-all to be privy to whatever was agreed to if we have a conference. CHAIRMAN FLEGAL: Well, we assume that would be part of your evidence. I don't have a problem with that "shall." That's not one I crossed out. I just did the first two. MS. DUSEK: So we're crossing out "shall" in that sentence and also in A and B? MS. ARNOLD: Right. CHAIRMAN FLEGAL: I don't have a problem with those "shalls" because I would assume if you're having a conference, that these are the things that you shall do. That was my thought there. That's why I didn't change them, but I understand. MR. PONTE: You have just reminded me that we have discussed all of this before, and you're absolutely right, because I remember arguing that we have two booklets or two sets of rules, so we have been all over this before. Page 109 September 27, 2001 MS. ARNOLD: Yes, we have. MR. LEHMANN: Jean, do we have any definition on what the word "will" means? MS. RAWSON: "Will" is closer to "shall." MR. LEHMANN: So do we want to change the word "will" to-- MS. RAWSON: In law we either use the word "shall" or "may," so when we're messing around with words like "should" and "will," I'm not -- MS. DUSEK: Let's not spend time on -- MR. LEHMANN: I mean, as I go through this, I see the word "shall" all over on-- MS. RAWSON: Well, "shall" is a very important legal word. MR. LEHMANN: Do we want to change all of this stuff?. CHAIRMAN FLEGAL: It has to go by what does the paragraph -- this particular paragraph isn't between the board and anybody. That's the problem. The other parts it may be between the board and somebody. MS. RAWSON: I'm changing those all to "may." MR. LEHMANN: When we get into Article IX, for instance, we're talking about-- CHAIRMAN FLEGAL: Let's wait until we get there. MS. TAYLOR: Does anybody want to chew on this? MR. LEHMANN: Can I borrow that? MS. TAYLOR: Yes, you may. CHAIRMAN FLEGAL: Okay. Now we're down to the bottom of page 5. No other changes? MR. PONTE: No. I have -- MR. LEHMANN: Wait a minute. There's a "shall" in there. MR. PONTE: I have a suggestion here. In Section 2, hearing motions, on line 2 of Section 2, it says, "The investigator shall be Page 110 September 27, 2001 MR. PONTE: CHAIRMAN MR. PONTE: CHAIRMAN Page 6. delivered to the board's attorney" and the code enforcement director, I would think it should say. Otherwise the director is out of the loop, not mentioned here at all. MS. ARNOLD: We had this discussion. CHAIRMAN FLEGAL: What we're talking about here is any motion that is made by the violator or code enforcement department needs to be submitted to this board. MR. PONTE: Because it says "the board's attorney." MS. RAWSON: And the opposing party. So that includes Michelle if she's not the one that made the motion, and that includes the other attorney if she's the one who did make the motion. And that leaves me, as your attorney, in the loop. That's correct. FLEGAL: Does that solve it, George? Yep. FLEGAL: Okay. Bottom of page 5, we're done. MR. LEHMANN: Can I go now? CHAIRMAN FLEGAL: I guess. I was -- you can go first. MR. LEHMANN: Well, I was just saying if we talk about "shall," this is how we're doing the hearings. We don't follow this, and we're using the word "shall." Item B, "The respondent shall be asked if he wishes to contest the violations." We never ask that. We assume it. You know, just -- so do we need to go through here and take out these words "shall"-type things? MS. TAYLOR: That's legal jargon, isn't it? MR. LEHMANN: Yes. But are we setting ourselves up in saying that -- have we committed a technical flaw in the proceedings if we don't ask these questions? (Ms. Dusek left the boardroom.) CHAIRMAN FLEGAL: Well, basically -- because one of my Page 111 September 27, 2001 question marks here is, why is this even here? Because we don't do this. And if you're going to -- I haven't seen it done in the four years I've been here. Nobody ever asks the respondent if you want to contest the violation. I mean, so why would you even bring it up? You're here. The violation's against you. If they stand up and say, "Yeah, I want to contest it," what do we do? Say, "Well, that's okay. We're going to proceed anyway." So it was stupid even asking the question. So I have a problem with that. I don't think when you go across the road here to the courthouse that the judge sits there and says, "Do you contest what's being brought against you?" Their attorneys do all that in advance, I think, unless I've missed something. So I don't know why the question's there for this board. But once we approve it, we're going to have to start doing it. MS. ARNOLD' I'm sorry. I didn't hear what you guys were -- CHAIRMAN FLEGAL: Item B on the top of page 6. MR. PONTE: Then just change the word to "may," and you don't have to do it. It may happen or may not happen. MR. LEHMANN: Jean, where does that place us, as a board, if we ask whether the respondent contests the violation; he says yes or no? MS. RAWSON' Well, we may have a hearing even if he doesn't. We have people say all the time "I'm in violation," but we still have the hearing. So we can change that to "may." That's not a problem. I like the second sentence, and the second sentence is in there because it's very important if you want us to foreclose. CHAIRMAN FLEGAL' Right. I don't have a problem with the second -- I understand the second sentence. It's just the first -- the first sentence doesn't take place. MS. RAWSON: I don't want to hold you strictly accountable if you didn't ask and say those words. And we usually know within a Page 112 September 27, 2001 few minutes if they're going to contest. If they're here, they're going to say something. CHAIRMAN FLEGAL: But hypothetically, Ms. Rawson, if we leave this sentence as it is -- and it says the respondent shall be asked if they wish to contest it -- and if they're not here, we haven't been able to ask the question, and we're not going to be able to get a name and address anyway. MS. ARNOLD: Can we -- can we change it to say, "The respondent/alleged violator shall have" -- CHAIRMAN FLEGAL: May be asked. MR. PONTE: May be asked. MS. ARNOLD: -- "shall have the right to contest the violation"? CHAIRMAN FLEGAL: No. Anybody has the right to contest it. That's why we're having a hearing. MR. LEHMANN: I think the sentence -- the whole sentence is totally irrelevant. It doesn't matter whether the respondent contests it or not. Nothing changes the outcome of the hearing. CHAIRMAN FLEGAL: I'd just be for eliminating the first sentence and keeping the second sentence. MR. LEHMANN: I agree with that. MS. RAWSON: It's at the pleasure of the board. As I told you before when we had the last long discussion over these, we didn't make this stuff up. We got a lot of other people's Code Enforcement Board rules and regulations from a lot of other counties in the state, and I'm sure that's where we got that sentence. But you can decide how to change it. If you want to eliminate it, you know, hit the delete button. MR. LEHMANN: Well, you are -- MS. RAWSON: It doesn't have to be there. MR. LEHMANN: -- our legal advisor. Page 113 September 27, 2001 MS. RAWSON: It doesn't have to be there. That's my -- CHAIRMAN FLEGAL: I would be in favor of eliminating the first sentence and keeping the second sentence. Let's get their full name and permanent address because it is important for the county. But I just -- I see no purpose to just start asking everybody, "Do you contest the county bringing this before us?" I mean, why not stand there and say, "Yes." They're going to get outvoted anyway. We're probably going to proceed with the hearing, so why even ask the question? MS. RAWSON: Well, I don't think that was the -- what it says. I think it's, "Do you say you're in compliance? Do you contest that you're not in compliance?" It's like guilty, not guilty is basically the purpose of that sentence. But to hold you strictly liable if you fail to ask that question, I can see your concern. CHAIRMAN FLEGAL: Well, if he stands up and says, "I'm in compliance. I don't know why I'm here," then it shouldn't even be before this board. MR. PONTE: It's sort of-- Jean's right. It's sort of a question of, "How do you plead, guilty or not guilty?" MS. RAWSON: It is. It's exactly, "What's your plea?" MR. PONTE: So just change it to "may," so we're off the hook. We don't have to ask the question. CHAIRMAN FLEGAL: I'm game. If that's what you like, cool. I'll live with it. I don't have a problem. "Shall" to "may," would that be acceptable? MR. PONTE: "Shall" to "may." MS. RAWSON: Fine. MS. ARNOLD: Maria has a point of clarification. And I hate to go backwards instead of forwards, but on-- in Section 2 under Article VIII on page 5, she's curious about the language that says the motion being delivered in envelopes with postage prepaid. And she's Page 114 September 27, 2001 wondering -- CHAIRMAN FLEGAL: Oh, yeah. I missed that one. I have a little question mark here. Yeah. We don't give them the right to hand-carry them in, and I think that's wrong. I don't think you should force somebody to mail something. However they want to bring it, if they want to hand-carry it, if they want to send it with their attorney, if they want to send it by courier, or they want to send it by mule train, I don't care. MS. RAWSON: So is the suggestion that the period come after the word "motion" and eliminate "in envelopes with postage prepaid"? CHAIRMAN FLEGAL: Yeah, I think that's sufficient. Sorry. I had a little question mark, and I missed it. Thank you, Maria. That was B at the top of the page. I have a note here that C is different from the last time. The last time we had a very big article that started with the word "evidence," and now it's been cut down, and I don't understand why. MS. RAWSON: I don't have any specific recollection of that discussion. CHAIRMAN FLEGAL: Right here -- okay. Currently it stops with a period at the word "board." The way it was previously, there was a semicolon there, and it continued on to say, "However, in the ruling on a party's objection, the board shall consider the inability of the objecting party to respond or rebut the evidence sought to be introduced due to the introducing party's failure to submit its evidentiary packet in advance of the hearing pursuant to Article VII, Section 4." All that's gone, and I'm just curious as to why. MR. PONTE: Cliff, I think what happened in that, my notes indicate that that part, "However, in ruling on a party's objection," that was all new wording that was added this time around. The original wording was -- this is back to original wording. Page 115 September 27, 2001 MS. RAWSON: I think you said it was too wordy, and you deleted it the last time we had this discussion. CHAIRMAN FLEGAL: I didn't have any notes. So, I mean, I made notes, and maybe I fell asleep 87 times here, but okay. Whatever. That was my question there. And as we go down we have -- there was an old Item I which, again, is now missing. But, in fact, there's -- the original Item H is missing and the old Item I is missing. MS. ARNOLD: The -- the rebuttal language is still there. CHAIRMAN FLEGAL: Well, currently you come down to G with "The board and its attorney can question," that's fine. Then when you go to the new H, "Parties to rebut evidence" -- MS. ARNOLD: Right. It just changed -- the wording was changed. CHAIRMAN FLEGAL: The wording is changed for some reason. And then you go to the new H, it's a short sentence instead of a long sentence, and I don't have any -- MS. ARNOLD: You mean the new I7 CHAIRMAN FLEGAL: The new I is different than the old I. MS. RAWSON: I remember having this very lengthy discussion about our procedures, and I can only tell you that I think that's what you agreed to the last time. You wanted to make the rebuttal evidence discretionary because you didn't want to have a ten- hour hearing. And you also wanted it -- you know, I wanted to give them the right to make a brief closing argument. We changed that to "may," I think, because sometimes -- and judges do this too. Sometimes they don't want to hear any more. They got it. MR. PONTE: You're absolutely right. I remember mentioning something about five minutes or using the timer. You're absolutely right. CHAIRMAN FLEGAL: Okay. Nothing else on page 6.9 Page 7, first, the paragraph at the top of the page, my only Page 116 September 27, 2001 comment was we talk about the $250 and the $500. Since you're giving the board its rules and regulations, why don't we put in there -- because I don't know whether some people know this or not, but on a repeat violation, you don't have to have a hearing under the statutes and the ordinance. The county can come to us with a repeat violation, and we do not have to have a public hearing. MS. ARNOLD: I don't understand what you're saying. You mean we do not have to have -- CHAIRMAN FLEGAL: It could be an administrative-type thing, just like you're doing filing notices of compliance. You don't have to bring the fellow here and say, "You're a repeat violator. Explain." We don't need to do any of that under the ordinance and the statute. On a repeat violation, we can just make a motion on the board and say, "Based on the evidence from the county, he's a repeat violator. He has to do the following. It's 500 bucks a day if he doesn't." MS. ARNOLD: that -- I mean -- MS. RAWSON: Right. But that's considered a hearing. Isn't It's a hearing that they don't require notice for. But I think it's consistent with the whole paragraph because it says when you find them in violation, we'll issue the order. Then it goes on to say what you'll think about in the fine. And then it says you can order the operational costs and that we'll give it to them within ten days. CHAIRMAN FLEGAL: Okay. But I'm saying the $500 portion, going from 250 to 500, you don't have to do in a hearing. Those specific words are written in the statute and the ordinance. MR. LEHMANN: Can you tell me where? MS. ARNOLD: The statute -- and I think it's making reference to our citation process, too, which we have in effect, where if it's a reoccurring problem, we can fine up to $500 for that repeat problem. Page 117 September 27, 2001 But I think we also have in the past brought cases to you that the respondent has kind of, just as a course of doing business, just paid the fine and continues to violate. So in those cases I think we would have to have that person adjudicated or, you know, they would have to have a finding in some sort of court of law, including the Code Enforcement Board, to deem it a repeat violator. And then you can assess $500 each time the violation occurs or whatever else you may want to do. CHAIRMAN FLEGAL: Let me find it because that's not the way it reads. Okay. Looking at 162.09, Item 1, "If a finding of a violation or a repeat violation has been made as provided in this part, a hearing shall not be necessary for issuance of an order imposing the fine." Now, am I misunderstanding the English language? MR. PONTE: I don't understand, Cliff, where you're looking at anything having to do with the hearing. I'm not focused on the right section here. MR. LEHMANN: Again, Mr. Chairman, you're looking at the administrative fine section. We don't need to do a hearing to do a fine anyway. But if you look at Section 162.06, Section 3, it says, "If a repeat violation is found, the code inspector shall notify the violator, but is not required to give the violator a reasonable time to correct the violation." It goes on to say that the inspector must notify of a hearing, and we will have a hearing. CHAIRMAN FLEGAL: Okay. What the inspector has to do, this board doesn't care. And the administrative fine, under 162.09, Section 2, states it's $250 a day or $500 a day for a repeat. But I'm saying for a repeat violation, you don't have to have a hearing to impose that $500 a day. MR. PONTE: Yeah. But why do you want to insert that language in our rules? CHAIRMAN FLEGAL: Because if you have rules and Page 118 September 27, 2001 regulations and you're spelling out -- as I understood, what you wanted in these rules and regulations was how this board was to operate so everybody knows it. That's why you wanted to expand them this way. All I'm saying is you made a sentence that you can go from 250 to $500 for repeat violations. Why not tell yourselves that a hearing's not necessary when you go to $500? MR. PONTE: I think it just goes beyond the scope of the paragraph. MS. ARNOLD: I think we may -- I think we may have to get legal clarification on that, because I think we had an opinion before with the prior legal counsel for the board saying that we do have to actually -- that we do actually have to have a hearing and have the case adjudicated as a -- MS. RAWSON: I think it went back to the definition of the word "hearing." MS. ARNOLD: Or repeat or re -- MS. RAWSON: It depends on what "is" means, you know. The definition of the word "hearing," does that mean a hearing in which we have to require the notice? We always send them notification when we're going to impose fines. They come if they want. They get it in the mail. So it depends on the definition of the word "hearing." But I think that due process being what it is, everybody was very nervous about saying, "Okay. This is a repeat violation, and now it's $500" if you don't have the respondent here. MR. LEHMANN: Well, Jean, again, what are we talking about with the imposition of fines? Is that an administrative or -- MS. RAWSON: See, ! 62.09 says, "If a finding of a violation or a repeat violation has been made as provided in this part" -- so that's done -- then "a hearing shall not be necessary for the issuance of the order imposing the fine." So we're really talking here in this section about whether you have to have a hearing to impose the fine, not Page 119 September 27, 2001 whether you have to have a hearing to determine whether it's been a repeat violation. MR. LEHMANN: Still lost, because every day under new or old business, we impose fines as an administrative task, whether that's a repeat violation or not. Are you talking about something different now? MS. RAWSON: No. are two different things. Repeat violation and imposition of fines MR. LEHMANN: No. As I understand it, what Cliff is referencing in this administrative fine section of the statute, it says when we physically impose the fine. Now, something must have happened to have a finding of fact and conclusion of law to allow us to impose those fines. MS. RAWSON: You had a hearing. MR. LEHMANN: We had a hearing. That's what I'm saying. If we add in the ruling -- or the words that our chairman is looking at, are we saying we don't have to have a hearing? MS. RAWSON: No. CHAIRMAN FLEGAL: You still have to have a hearing to find them guilty of a repeat violation. MS. RAWSON: Yes. MR. LEHMANN: So why are we changing anything? MS. RAWSON: I don't think we are. I don't think we did. CHAIRMAN FLEGAL: We haven't changed it yet. MR. PONTE: We're not. MR. LEHMANN: I tell you, you know, when you miss the first meeting when you go over these things, you're lost forever. CHAIRMAN FLEGAL: Okay. Now we're -- MR. LEHMANN: Are you adding those words in there? CHAIRMAN FLEGAL: No. Nothing. It's going to stay like it is. Page 120 September 27, 2001 Item L, second sentence it says -- and this is different than when we get in the back. It says, "The written request for a rehearing (see Exhibit A)." I have a problem -- and, again, I go back to we're not giving them, the respondents, any option. When we do the Exhibit B, it says -- I think we said "may be in the form of," and I think it should be that because we're now telling these people that they can't ask for a rehearing unless it's in this specific format that's being suggested. I think you're taking a lot of people that may be not very well educated, live out in the boondocks, and everything else, and you're telling them to fill out a complicated piece of paper just to ask for a rehearing. I'm not necessarily believing that that was the intent of the statute. I think that everybody ought to be able to say, "I don't think I got a good deal and -- based on the following," because there is only two things that they can ask a rehearing for. Why we want to make it so difficult on a specific piece of paper -- I'm just saying the words should be "may be in the form of." If they write it down on some blank piece of paper for whatever reason, I think that should be acceptable. MS. RAWSON: Well, you know, I can change it, but I don't think that was the intent of the sentence. The sentence says, "The written request for rehearing (see Exhibit A) shall specify the precise reasons thereof." They don't have to use Exhibit A. They can write us a letter and tell us what their specific reasons are. I don't think the intent was ever that they had to put it on this piece of paper, but we're giving them this piece of paper to help them in case they don't know how to do it. CHAIRMAN FLEGAL: But when you say "see Exhibit A," to me, that tells me that that's my only choice. MS. ARNOLD: Well, we can -- MR. PONTE: Just delete the Exhibit A. Page 121 September 27, 2001 CHAIRMAN FLEGAL: No. I'm just saying add the words "may be in the form of," a request for rehearing (see Exhibit A). It can be in any kind of form. I personally wouldn't care what it's in. MR. PONTE: The request shall be in writing. It has to be in writing. CHAIRMAN FLEGAL: Oh, I'm not saying it's not in writing. MR. PONTE: So just eliminate reference to "see Exhibit A." MS. RAWSON: I can -- I like better "may be in the form of Exhibit A." CHAIRMAN FLEGAL: Yeah. I mean, I think that's much better, myself. MS. TAYLOR: I'd like to also say that there are very many very intelligent people living in the boondocks. CHAIRMAN FLEGAL: Also, where -- right where it's the 20 days, about two sentences down, I think we did this before, Jean. Twenty days from the date of mailing I think is correct, isn't it? It's just not mailing; it's the date of mailing, is what it should be? MS. RAWSON: Yes, it should be. That's right. CHAIRMAN FLEGAL: And also, in the next-to-last sentence there, again, 20 days from the date of mailing. MS. RAWSON: That's correct. CHAIRMAN FLEGAL: Okay. MS. ARNOLD: Mr. Chairman. CHAIRMAN FLEGAL: Yes, ma'am. MS. ARNOLD: I had a question. Previously we had a different Item M, and it was removed from this version of the rules. And that Item M indicated, "In the event the violation is a violation described in Section 162.06, paragraph 4, Florida Statute, the board may direct the local governing body to make all reasonable repairs required to bring the property into compliance." If we take that out, you can't direct us to do -- to correct the violation. Page 122 September 27, 2001 CHAIRMAN FLEGAL: Who said? MS. ARNOLD: I guess you can but ... CHAIRMAN FLEGAL: We can direct you to do anything. MS. ARNOLD: But why would we be taking that out? CHAIRMAN FLEGAL: I mean, I don't know why it was taken out. I'm just saying that doesn't mean we can't do it. MS. RAWSON: I think-- CHAIRMAN FLEGAL: Under the law we -- MS. RAWSON: I think the reason we took it out is because it was one of those things that they said we're telling you guys what to do. MS. ARNOLD: Okay. That's right. MS. RAWSON: But I'd like to put it back in because we have other things in here that we tell you what to do. CHAIRMAN FLEGAL: Just because it's not here doesn't mean we can't order it. Ms. Rawson, you think it should be back in? MS. RAWSON: I think just to be consistent, since we're going through everything. And they're -- part of the reason we're doing this is so they understand what's going to happen. They need to know that that might happen, and they're going to have to pay the county. CHAIRMAN FLEGAL: Okay. I don't have a problem with it being in. I mean, its not being there doesn't curtail us from doing it, so I don't have a problem if it's back in. If Ms. Rawson would like to see it in, I'm for it. MS. RAWSON: That's good. And, Michelle, if you'll give me that language -- not right now but at the end -- I'll stick it in here. MS. ARNOLD: Okay. CHAIRMAN FLEGAL: I have a note. And I'm trying to make head nor (sic) tails of my note here, so give me a second. Okay. The last -- Item 10 on the very last page -- or on the bottom of page 7, again we use that famous word "shall." "After an order's been issued Page 123 September 27, 2001 by the board and date of compliance has been set, the code enforcement investigator shall make a reinspection." We can't order them to reinspect anything. They should make a reinspection, but the board can't order them to make a reinspection. MS. RAWSON: I'll put "should." CHAIRMAN FLEGAL: Okay. Any other on page 7? Page 8, first line, again we're saying the code investigator shall file a document. We think he should, but we can't force him to do that. Without it, nothing's going to happen so ... MS. TAYLOR: So is it "should" or "may"? CHAIRMAN FLEGAL: In this case -- MS. RAWSON: It's more than "may." CHAIRMAN FLEGAL: Yeah. We're going to need it to take some kind of action, but we can't order it done. That's the problem. MR. LEHMANN: Same thing with the second sentence. MR. PONTE: Same thing with -- exactly. CHAIRMAN FLEGAL: Well, yeah. Well, the -- I think the second sentence is -- is that asking our secretary to do that, Ms. Rawson, do you think, or is that -- MS. RAWSON: Yes. CHAIRMAN FLEGAL: Okay. See, we can order our secretary to do anything because the secretary works for us, so that's not a problem. MR. LEHMANN: How are we going to order our secretary to send something that was never filed? CHAIRMAN FLEGAL: Well, you're assuming that it is filed because it says "a copy of said affidavit." So if it's filed, then she will send it. If it's not filed, she can't send it. Down in-- that's Article XI, the first sentence, "A certified copy of an order imposing a fine," it says "may." That should be "shall" because that's something that when we impose a fine, it's our order. Page 124 September 27, 2001 And as our attorney, Ms. Rawson, do you file these on behalf of the board? MS. RAWSON: Your secretary does. CHAIRMAN FLEGAL: Okay. So that should be a "shall." We can make the secretary file these. Anything else on page 8? Page 9 -- oh, wait. Something we forgot. Do you want to do the attachments as we go or-- MS. ARNOLD: Sure. CHAIRMAN FLEGAL: Would that be easier or just do them after? We already talked about attachment -- Exhibit A. Do we want to do them or wait for the end? MS. ARNOLD: Let's go ahead and do them. MR. LEHMANN: Wait till the end. CHAIRMAN FLEGAL: Okay. Wait till the end. Page 9, Section 1, I changed the word "application" to "request." I don't know whether that's important or not. MS. RAWSON: I think we call it -- well, we can call it request. That's good. CHAIRMAN FLEGAL: It is a request for reduction, so I'm trying to be consistent. Ms. Rawson, I have a -- I guess a question or two in that it says, "The request shall contain the following information." I'm a little concerned that if somebody sends their request and it doesn't have specifically all these items, are we allowed to accept it? Should that be "the request should contain" or "may contain"? MS. RAWSON: Where are you? CHAIRMAN FLEGAL: Because if they leave -- the second sentence, Section 1. "The request shall contain the following information," and then it goes through a whole bunch of them, A through I. So this means that under our rules if they don't give us this information, it's no good? Page 125 September 27, 2001 MS. RAWSON: Well, we need that information. We can make it "should," and when they're here we can get the rest of this information. But this is going to make the determination for you as to whether or not you're going to reduce or abate their fines. And if you're not, we're going to need all this information to foreclose. CHAIRMAN FLEGAL: Okay. I guess -- I'm just saying, you know, I think when you -- well, let's take Item B, names of all owners of the property. Well, we assume when we wrote an order originally at the hearing it was to the owners of the property, so why would we need to know that? MS. RAWSON: Because they're always selling the property before they get here. We've had a lot of them that come in here, and then we find out that the property has been transferred. CHAIRMAN FLEGAL: No. But this is to reduce the fine. MS. RAWSON: Correct. CHAIRMAN FLEGAL: So they were here. We wrote an order and said, "Do it by this date, or you're going to get fined." The county went out and said they didn't do it, came to us, asked us to impose the fine. We imposed the fine. Now these same people have come before us to say they want to reduce it. Why would the owners have changed? They wouldn't be here. I'm just -- I'm confused as to names of all -- we had the property owners before. Why would it be any different? MS. ARNOLD: I think sometimes it has -- we have a case right now where someone was representing themselves as a property owner, and they, in fact, are not the -- is not the property owner. And the documentation where he transferred ownership had not been filed in the public records, so we didn't have access to it. So at least we would have -- if it's a public hearing process and we're going through this request, we could at least have that this person was representing themselves as the owner as a part of the information provided to you. Page 126 September 27, 2001 I don't know. I mean, it's not -- it's few and far between. I mean, it's not a lot of times that that happens. MS. RAWSON: It's probably more important at the time we impose the fine or do the order. CHAIRMAN FLEGAL: I would-- I mean, I would think-- I mean, when you're coming here to ask me to reduce $15,000 to nothing, I really don't care who owns the property. I'm assuming you own it; that's why you're here. If there's 47 owners, why aren't they with you or -- I mean, I don't know. It just seemed like a dumb question. MS. ARNOLD: I think the reason why most of this is here, too, is because in the event we do have to foreclose, we have some of this information and the completed information as opposed to part of it or whatever. So I think when Ellen has been going through the foreclosure process, you know, there's been some additional deeds in the -- in the process, and either some or all of the property owners have changed. I mean, that's all in the public record for the most part but -- CHAIRMAN FLEGAL' Well, I mean, them giving us an attachment doesn't make it legal. I mean -- MS. ARNOLD: No, it doesn't. CHAIRMAN FLEGAL' -- they can say there's 15 owners, and if it's not recorded in the courthouse and there's only one owner, there's only one owner. It's really immaterial what they tell us. Just curious. Okay. I think that "shall" should be "may" contain, personally. Again, I go back to if you're dealing with some people who may not be of a-- I hate to use the word "higher learning." They may not understand that they have to give us all this information, and they might not know where to get it. So they may just want to come in and say, "Hey, I did what you told me and" -- like the lady that was here today, you know -- "help me." So I just have a problem when Page 127 September 27, 2001 you say somebody has to do something or there's no other way out. MS. RAWSON: The first sentence says "may." The second sentence, the request, I think "should" is probably better than "may." CHAIRMAN FLEGAL: I don't have any problem with "should." I think that's much easier, because if they forget something, they can still submit the request. I'm -- I wouldn't panic about it. I'm more interested in looking in their eye and having them tell me their problem than reading it. Section 2, the last word there, shouldn't that be "article" rather than "rule"? Is that just a mis -- MS. RAWSON: Section 2? CHAIRMAN FLEGAL: Section 2. MS. RAWSON: "Dismissal shall be without prejudice to the respondent to file another motion in accordance with this rule"? CHAIRMAN FLEGAL: Yeah. I mean, what -- is it this particular article or this section? ! mean, what does "rule" mean? MS. RAWSON: Well, I actually meant rules and regulations, but I can change that word if that's confusing. CHAIRMAN FLEGAL: I just didn't know what "rule" meant. If it's "rule" -- we're talking about this particular article, so why don't we just say "in accordance with this article"? MS. RAWSON: Okay. CHAIRMAN FLEGAL: And the word "motion" should be "request" because -- isn't it? Aren't we talking about requests rather than motions? MS. RAWSON: Yes, we are. MS. ARNOLD: Do we -- do we have other requests, though, other than reduction or abatement? CHAIRMAN FLEGAL: We have request for rehearing. MS. ARNOLD: So maybe it should be broader-- more broad. MS. RAWSON: You're right. Page 128 September 27, 2001 CHAIRMAN FLEGAL: We're all going to have to go to English class, I think. MS. RAWSON: You know, we can say "to file another request in accordance with these rules." How's that? CHAIRMAN FLEGAL: Whatever. I just got confused when it said "rule." What rule? I didn't know what -- MS. RAWSON: If I say "these rules," that's pretty clear that it's everything. CHAIRMAN FLEGAL: Okay. Section 3, my only question is we've given ourselves Items A through I that we must consider, because we say "the board shall consider." Why did we do that, or why are we doing that? MS. RAWSON: I think I probably got this language from another county. And it's -- I don't have to make it "shall," but it's -- it's a checklist for you. CHAIRMAN FLEGAL: Okay. Well, again, I'm-- the word "shall" always worries me. When you tell me I -- that means I have to do it and -- MS. RAWSON: Let me put "should." That's fine. CHAIRMAN FLEGAL: Then also, sticking with that same section, why is the last sentence there? Section 3 talks about what we consider in making a decision, but yet you're saying that the respondent's failure to comply are grounds for dismissal. So what does that have to do with what we're considering? I got confused. MS. RAWSON: The last sentence or the next-to-the-last sentence? CHAIRMAN FLEGAL: Well -- oh, there's more on the last page. Okay. Yeah. The next-to-the-last sentence. "Failure of the respondent to comply with the requirements set forth above," well, we're doing the considering. He doesn't have anything to do with Page 129 September 27, 2001 Items A through I. Am I -- MR. PONTE: That's absolutely correct. MS. RAWSON: You're right. That sentence is probably in the wrong paragraph. CHAIRMAN FLEGAL: Why is it in that section? MR. PONTE: It's a typo. MS. RAWSON: It's gone. MS. ARNOLD: I think it's a -- you use the next two sentences in the -- that paragraph, and maybe we shouldn't have. MS. RAWSON: Right. They're in the wrong paragraph. MR. LEHMANN: Actually, I think both of those sentences ought to go back up into the end of Section 1. CHAIRMAN FLEGAL: I just got confused when I got down that far. I said, "Gee, because we're having a problem deciding on something, what's he got to do with it?" But anyway. MR. LEHMANN: Again, I think both of those sentences ought to go in the tail end of the first paragraph of Section 1. CHAIRMAN FLEGAL: Section 17 MR. PONTE: I think that's right. I think that's where it came from. CHAIRMAN FLEGAL: Would you move those, Ms. Rawson? MS. RAWSON: Sure. MR. PONTE: I think that's where it came from. CHAIRMAN FLEGAL: Any more on page 9? Page 10. MS. TAYLOR: I have one -- CHAIRMAN FLEGAL: Yes, ma'am. MS. TAYLOR: -- in Section 2. Section 2, it should read "No board member shall knowingly discuss any case with any alleged violator prior to or after the final resolution of the case by the board." CHAIRMAN FLEGAL: There's nothing -- no law against Page 130 September 27, 2001 discussing it after. MS. TAYLOR: what the board's decision is. CHAIRMAN FLEGAL: MS. TAYLOR: Law or CHAIRMAN FLEGAL: just -- I'm having a hard time Yes, there is, when they start apologizing for No law against that. not, we shouldn't do it. I understand what you're saying. I'm that you're now going to start telling individuals what they may or may not do. I have a problem with that. MS. TAYLOR: I thought that's what this whole thing's about. CHAIRMAN FLEGAL: No. This is how the board conducts its meeting. What happens after the meeting -- again, you're supposed to use a little good sense. On top of-- I understand, and we'll -- I'll think about it while we're working down here, and I may jump on your side of the fence. Give me a couple minutes to ponder it. Section 4. MR. PONTE: Are you on Article -- CHAIRMAN FLEGAL: I'm at the top of the page on page 10. MR. PONTE: Okay. CHAIRMAN FLEGAL' Section 4, is that what everybody's got? Ms. Rawson, it says at the end of the first sentence, "reduced or released." Isn't that -- shouldn't that be "reduced or abated," or is released the right word, and I just -- "why a fine should be reduced or released." Maybe "released" is the right word. I don't know. MS. RAWSON: "Abated" is better. I agree. CHAIRMAN FLEGAL' And then the last line -- MS. ARNOLD: Should it be "abated," "fines abated"? Shouldn't it be "dismissed" or "released"? I mean, "released" -- MR. LEHMANN: What does Webster have to say about it? MS. RAWSON: Well, what our orders say is order on abatement/reduction of fines, slash, lien. MS. ARNOLD: Oh, okay. Page 131 September 27, 2001 MS. RAWSON: So it's probably--"abated" means it goes away, so it's not the same thing as "reduced." It's clearly the same thing as "released," but consistently I guess we can call it abated. CHAIRMAN FLEGAL: Okay. Section 6. What's that last sentence mean, Ms. Rawson? Is there something that says -- that's taking personal property away from us? MS. RAWSON: Yes. CHAIRMAN FLEGAL: What did that? MS. RAWSON: The statute in 1999 took the personal property away from us. CHAIRMAN FLEGAL: It did? MR. LEHMANN: When we applied for superior lien rights, we lost the personal property. MS. RAWSON: Right. We can't attach the personal property anymore, so I'm just protecting us if it was imposed before 1999. CHAIRMAN FLEGAL: Okay. I didn't know where that was, and I kept thinking, what actually did that? So I'll have to -- if you would, sometime just tell me what statute did that so I can read it. MS. RAWSON: Actually, it might have been an ordinance. MS. ARNOLD: Yeah. It was an ordinance. MR. LEHMANN: It was an ordinance. CHAIRMAN FLEGAL: Big difference between an ordinance and a statute, so that's why I'm asking. MS. RAWSON: It's a Collier County ordinance. CHAIRMAN FLEGAL: I know the ordinance, when it was rewritten, did that, but the statute didn't take that right away from us. MS. RAWSON: But we have to follow the Collier County ordinances. MR. LEHMANN: It is Ordinance -- CHAIRMAN FLEGAL: I remember seeing it in the ordinance, but the statute has it there, so I'm just wondering why it was removed. Page 132 September 27, 2001 So, in other words, since the ordinance did it, we're not allowed to fall back on the statute? MS. RAWSON: (Shook head.) CHAIRMAN FLEGAL: Okay. The -- I have two things that I think we should at least maybe think about if we're -- and, Ms. Rawson, maybe you can advise us. Since we're putting things in the rules and regulations that govern how we operate, I know from time to time we have asked the code enforcement department to give us status reports, and we've asked the county attorney to give us status reports. Should that be part of our rules and regulations, that we -- the board should ask on a quarterly basis for some reports, or is it just something we hopefully remember to do and hope they give us the information? MS. RAWSON: Well, if you're going to put that in there, we can put that in there where you talk about foreclosures. And I'm not sure -- CHAIRMAN FLEGAL: Well, I mean, I'm not saying whether it's quarterly. But I'm just saying that let's assume we're not here and there's seven other people ten years from now and along the way nobody's ever asked for any reports. I think it's nice if you have a set of rules to say, "Hey, the board should ask for some information. That way you know what's happening." Because, you know, everybody's liable to move up the chain of command or leave or who knows what. I don't think they read them anyway, but we're writing them. I just throw it out, that I thought it would be nice to put in our rules and regulations that the board should ask the county to give us some information. MS. ARNOLD: Is that in the board's ordinance? No? CHAIRMAN FLEGAL: No. MS. ARNOLD: I thought there was somewhere we had something about quarterly reports. Page 133 September 27, 2001 CHAIRMAN FLEGAL: I don't remember seeing anything about any kind of-- MR. LEHMANN: There is reference in the ordinances and the statutes that requires the secretary of the board to report quarterly to the county commissioners -- CHAIRMAN FLEGAL: Right. MR. LEHMANN: -- regarding our activity, but there's nothing in there that says that we have to ask staff to do anything. CHAIRMAN FLEGAL: But we got a couple -- I don't know how far back. We said, "Gee, we're making all these orders." And we asked Michelle, and she was kind enough to at least start telling us on a -- I think it was quarterly you gave us a report. This is what's been transpiring, so we know that, gee, we do all these things. And are they still open, closed, whatever? And then when we got into foreclosures, the county attorney's office was nice enough to -- I think they offered to do it on a quarterly basis. But nowhere other than our memory does that exist, and I'm just saying it would be nice, probably, to put in your rules and regulations that on some basis -- and I don't know whether it's quarterly, month -- whatever is convenient -- that we could remind people who are on this board that they should ask for this information so that they know what you're doing every month. You're not just sitting here making decisions and then you never know what happens after that. MR. LEHMANN: But that is -- that is the future board's prerogative. I think we should just leave it open -- CHAIRMAN FLEGAL: Okay. MR. LEHMANN: -- and allow the board to act as it sees fit ten years from now. CHAIRMAN FLEGAL: If they don't want information, that's fine. MR. LEHMANN: That's correct. Page 134 September 27, 2001 CHAIRMAN FLEGAL: Well, they don't even know to ask for it. That's the problem. That's all I'm saying. If it's in here, they would know to ask for it. If it's not there, they may not know to ask for it. But that's okay. MS. ARNOLD: Would that go under miscellaneous or something like that? MS. RAWSON: There's no other -- I was looking through here. There's no other place I could see that it would really fit, so it would be miscellaneous. MR. LEHMANN: Then we could put a statement in there that basically says, "At the board's discretion, it has the opportunity or ability to ask staff about reporting." And just as an informational statement, that's fine. CHAIRMAN FLEGAL: I thought that's what I said we should do. But, I mean, just assume that there's seven other people and they don't know to ask that. If you write it in here, then they know to ask about it. Ms. Rawson, the only other item I had that would work under miscellaneous, would it be helpful -- I'm thinking of a sentence that says -- since these are our rules and regulations governing ourselves, to get us out of the lock position of following them, would it be helpful under miscellaneous if we had an item that said the board could waive full and specific compliance with their rules and regulations? MS. RAWSON: You can't waive full compliance because about three-fourths of it is either the ordinance or the statute repeated. CHAIRMAN FLEGAL: Well, but these are our rules and regulation so -- MS. RAWSON: We have to follow the law. Now, there might be a section that says you could-- CHAIRMAN FLEGAL: I guess my -- first of all, the ordinance Page 13 5 September 27, 2001 says we -- I think it says we may establish rules and regulations. All I'm saying is we add a section to say, "Okay. I want to waive the rules and regulations of the board." We're not waiving the ordinance or the statutes or anything. We're just waiving -- MS. RAWSON: I know it was in here -- CHAIRMAN FLEGAL: -- this (indicating) piece of paper. MS. RAWSON: It's in here somewhere. Here it is. "The order of business may be suspended by a vote of the majority of those members." So you don't have to do the order of business the way it says it in here because under Article V, you've already given -- Article VI you've already given yourself the right to suspend the order of business. MR. PONTE: But what he's suggesting, Jean, really makes Swiss cheese of the whole thing. MS. RAWSON: It does. These are the rules, but we don't have to-- CHAIRMAN FLEGAL: The order of business is just the agenda. I mean, what I'm saying is if the board so desires, we voted -- we vote to approve these because they're ours. Why can't we at the same time vote, if we choose for a particular meeting or whatever event, to waive full compliance? What I'm looking for is from the board's standpoint, everything we say and hear, the board shall do this, the board shall do that. If the board votes to not do that -- if somebody's sitting out there and says, "Ah, ah, ah, you didn't do line 6, page 7, so I'm raising heck," well, we suspended it. We didn't have to do -- MR. PONTE: You can't do that. We've spent a lot of time going through the rules and regulations. CHAIRMAN FLEGAL: Not a problem. MR. PONTE: And if you just waive it, you do it the next year, the next March meeting. Page 136 September 27, 2001 CHAIRMAN FLEGAL: No, no. I didn't want to waive them totally. I'm just saying if you say that -- let me find an example. MS. ARNOLD: Are you trying to say there may be a specific item that wouldn't necessarily apply to a case, so you wouldn't necessarily have to consider that for your -- CHAIRMAN FLEGAL: No, no, no. It has nothing to do with a case. MR. PONTE: He just wants a trapdoor, an escape. MS. RAWSON: I understand what he wants. But the problem is these rules are going to be sent out in the packet to all the respondents, so you can't say, "Well, we're going to apply the rules to this case and not the next case" because that's a huge violation of due process. MR. LEHMANN: And I think even by changing the word "shall" to "should" or "may," that leaves a lot of freedom. CHAIRMAN FLEGAL: Okay. MR. PONTE: I have just one, just making this a little longer. In Section 1 in Article -- whatever it was -- XIII -- on the same page, page 10, Section 1, it says -- and this is just groundwork. It says "not inconsistent." Should it not be "in a manner consistent with"? "Not inconsistent" looks to me to be a double negative. MS. RAWSON: Could be. MR. PONTE: How about just saying adopted in a manner consistent with state statutes and county ordinances? MS. ARNOLD: Or you could just say "consistent with." MR. PONTE: Yeah, "in a manner consistent with." MS. RAWSON: It is a double negative, and that's been in there all these years. CHAIRMAN FLEGAL: Okay. Now we're -- is that that for that part of it? We're down to the exhibits? MS. TAYLOR: Well, what about my Section 2? Page 137 September 27, 2001 CHAIRMAN FLEGAL: Oh, I'm sorry. Thank you. Tell me again. Section 2, we're going to do what now? You want to do what? "No member shall knowingly discuss" -- MS. TAYLOR: --"any case with any alleged violator prior to or after a final resolution by the board." And I witnessed this myself, and it was -- CHAIRMAN FLEGAL: Okay. But I think what you -- MS. TAYLOR: -- the wrong thing to do. CHAIRMAN FLEGAL: I understand where you're coming from. I think when you say "after," you've now said -- and you're talking about a specific type of conversation after. But if you put that in there and you walk out in the hall and hypothetically the people come up and say, "Gee, you know, I understand what you" -- and you can't discuss anything. You're talking about-- no. And you're allowed to discuss it. I mean, you can be anywhere, and the county commissioners discuss things that they're, you know, out of. You're talking about one specific type of discussion, but the sentence you gave erases any type of discussion. Do you understand what I'm saying? MS. TAYLOR: Yeah, I do. But this was an apology -- CHAIRMAN FLEGAL: I understand where you're -- MS. TAYLOR: -- which should never happen. CHAIRMAN FLEGAL: Well, but your sentence limits people from saying anything. In other words, you've covered me even acknowledging in the hall that the thing took place. MS. TAYLOR: I understand what you're saying, but do you understand what I'm saying? CHAIRMAN FLEGAL: And I know the instance, so I understand where you're coming from. But I think putting that patch is -- the patch is way too broad for what you're trying to do. MS. TAYLOR: This is why we need workshops, to sit down Page 138 September 27, 2001 and discuss these things among us. CHAIRMAN FLEGAL: Yeah. I'm aware of the instance, and it's 1 -- it's, like, 1 word out of 50, and what -- but the way you want to change it, you're covering all 50 words, so we could walk out the door and not even be allowed to acknowledge the people were here -- MS. TAYLOR: I understand that. CHAIRMAN FLEGAL: -- because we can't discuss anything. MS. TAYLOR: I understand that. CHAIRMAN FLEGAL: That's too limiting. MS. TAYLOR: But we have to stop that absolutely. CHAIRMAN FLEGAL: So maybe the best place to do that is a workshop among all of us with -- and I can talk to Jean about the item, and maybe she can find a way to discuss it with us. How's that? MS. TAYLOR: Yes. Fine. CHAIRMAN FLEGAL: Okay. Anything else on the actual document itself?. Can we gO to the exhibits? Exhibit A would be first. Peter, you don't have any? MR. PONTE: I don't have any exhibits. CHAIRMAN FLEGAL: You don't have any exhibits? MR. PONTE: No. MS. TAYLOR: No. CHAIRMAN FLEGAL: Well, I've scribbled all over mine. MS. ARNOLD: We have some copies. CHAIRMAN FLEGAL: These were faxed to me July 23rd from code enforcement because I said I didn't have any. I just assumed everybody else got them. MS. TAYLOR: No. MR. PONTE: We didn't. MR. LEHMANN: It pays to have clout and be the chairman. CHAIRMAN FLEGAL: I don't know about that but -- Page 139 September 27, 2001 MS. ARNOLD: I'll go make copies of these. MS. TAYLOR: Shoot. I did have one. Thank you. CHAIRMAN FLEGAL: I had mine, so hey. I guess my first comment is at the top we say "In the circuit court" -- what's that got to do with this board -- across the top of it. MR. PONTE: It certainly does. CHAIRMAN FLEGAL: Because it's a request for this board to have a hearing. What's that got to do with court? MS. RAWSON: Nothing. CHAIRMAN FLEGAL: Okay. MS. RAWSON: We can take that out. CHAIRMAN FLEGAL: Yeah. I'm -- I get a little gun-shy when we start talking about court since we don't have that kind of-- we're not the court. Where we -- starting out, second line, it says "Respondent," ba-ba-ba-ba, "rules and regulations, requests that Code Enforcement Board enter an order granting a hearing." We don't enter orders granting a hearing. We -- there's no order entered. We just agree to have a -- have a rehearing. It's not an order. An order is what we sign and file in the court; right? MS. RAWSON: Well, we probably don't really enter an order but -- CHAIRMAN FLEGAL: Why can't we say just "requests Code Enforcement Board grant a hearing"? Because that's what we do. We take a vote, and we grant yes, we will or no, we won't. MR. PONTE: What's that read? CHAIRMAN FLEGAL: Just take the words "enter an order" out. And instead of"granting," it should be "grant." Item 2, I personally see no reason for this board to know someone's social security number or for it to be available in any kind of public record. Page 140 September 27, 2001 MS. RAWSON: foreclosures. CHAIRMAN FLEGAL: MS. RAWSON: Okay. CHAIRMAN FLEGAL: You have to have it when you're doing This is a request for a rehearing. We'll get it later, then. So I -- I just get real gun-shy when we start asking people's private information that this board doesn't really need. If-- and as far as the foreclosure goes, if the county attorney wants it, then let them ask for it. This board shouldn't be asking for it. Item 3, it says "Respondent owns property." Do we -- don't we deal with respondents who aren't the property owners? MS. RAWSON: We do, but the property owner's also included. CHAIRMAN FLEGAL: Well, but I'm saying the renter may ask for a rehearing for whatever reason. So Item 3, I mean, where it just says -- would he put in "not applicable" or something? MR. LEHMANN: Is it not very rare that we actually cite the tenant as opposed to the owner? MS. RAWSON: We always cite them both. And if they want a rehearing, it's going to benefit the owner, so we need to know the property. CHAIRMAN FLEGAL: Okay. But it's the respondent owns property. It doesn't say -- and the respondent may not be the property owner, so that was my only question. If it's the tenant, he doesn't actually own the property. He's just a tenant there. MS. RAWSON: Well, we could say "has an interest in." CHAIRMAN FLEGAL: Why can't we just say "The property subject to the violation is located at"? Why do we have to state a respondent? MS. RAWSON: That's fine. CHAIRMAN FLEGAL: You know, instead of "respondent owns," why can't we just say "property which is the subject of Page 141 September 27, 2001 violation"? MS. RAWSON: That's good. CHAIRMAN FLEGAL: I understand that one. Now, this is a rehearing. Item 6 was questionable, but I'll skip that. What- Item 7-- MR. LEHMANN: Let's go back to Item No. 4. If you're changing Item No. 3, then Item No. 4 ought to be changed, too, to say "the property is owned by" and just put the owner of the property. MS. RAWSON: Okay. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: So we delete the word "also." MS. RAWSON: Right. CHAIRMAN FLEGAL: Cool. Item 7 1 was -- if they're asking for a rehearing, there is only two items under which they can ask for a rehearing, so why do we care if the violation was corrected? MS. RAWSON: Good point. CHAIRMAN FLEGAL: Or uncorrected? I mean, Item 7, to me, has no bearing whatsoever because we either had to not follow the evidence, or we made a mistake in law. Whether you correct it or didn't correct it is immaterial. MR. PONTE: But the second part of 7 holds. CHAIRMAN FLEGAL: It doesn't matter that he was unable to correct the violation. He has only two ways to request a hearing (sic). MR. PONTE: That's why he's requesting it. He was unable to correct the -- CHAIRMAN FLEGAL: That's not a reason under the law. Sorry. The only two reasons you can request a hearing is that we did not follow the evidence presented or that we made a mistake in interpreting the law or whatever that word is. That's the only two reasons. Page 142 September 27, 2001 MR. PONTE: The tree house fell down and no longer exists. CHAIRMAN FLEGAL: That's not a reason. The evidence when he was here said the tree house existed. That it collapsed later is immaterial. MR. PONTE: But he's asking for a rehearing. MR. LEHMANN: Our chair is extremely right. CHAIRMAN FLEGAL: That's not a reason for a rehearing. MR. LEHMANN: There are two reasons: Either we had a -- an error involving a ruling of law, or it was contrary to the evidence. CHAIRMAN FLEGAL: To the evidence, and if the evidence of the day was the tree house was there, that's all we can consider. You can't come back later and say the wind blew it down. Too bad. MR. LEHMANN: The statute says -- CHAIRMAN FLEGAL: Back then it was there. MR. PONTE: Okay. MR. LEHMANN: The statutes are very -- CHAIRMAN FLEGAL: Yeah. They limit us. Those are my -- oh, and then on-- the certificate of service states that "postage prepaid." I think we should give them the opportunity to bring it. They don't have to mail it, do they, Ms. Rawson? MS. RAWSON: No. They can bring it in. Where is that? CHAIRMAN FLEGAL: Very last page, certificate of service. I hereby certify, true correct, 15 copies were served by regular U.S. I mean, you've told them they can't submit Mail, postage prepaid. this except by mail. MS. RAWSON: I can say "or by," and then I'll put a line. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: Can we not just delete the words? MS. RAWSON: No. You need to put in there -- you need to make them say how they served it. Mostly they serve it by -- certificates of service are all alike. You either do it by U.S. Regular Page 143 September 27, 2001 mail, or you do it by fax, or you do it by personal delivery. So I can give them a line in there to say how they did it. CHAIRMAN FLEGAL: Okay. That was my only comment onA. Exhibit B, again-- you don't have it? MS. ARNOLD: We have copies of B. CHAIRMAN FLEGAL: Oh, okay. I was going to say -- MR. LEHMANN: You know, we're going to have to get voted chair so we get some paperwork. No. I think you're going to have to bring what MS. ARNOLD: we give you. MS. TAYLOR: MS. ARNOLD: MS. TAYLOR: Sorry. I'll say I didn't have this one. I thought I just asked you about that. I thought you were talking about the first one. CHAIRMAN FLEGAL: The top of Exhibit B, again, we're talking about the circuit court, and I think that doesn't need to be there. And this is a request for abatement or reduction of fine. And, again, I have a problem with -- in Item 1 we ask for their social security number. That is none of this board's business in reducing a fine. It has absolutely no bearing. Sorry. MR. LEHMANN: Can we go back up to the first paragraph and delete the "interim order granting"? CHAIRMAN FLEGAL: We do that. We have to enter an order reducing the fine. It's the only way we can we reduce it. MR. LEHMANN: Okay. CHAIRMAN FLEGAL: Yes. Again, Item 2 where we talk about the respondent being an owner of the property, I think that should read the same as our Exhibit A, which the property is located at, the property subject-- take out "respondent owns." And then the second part of that, who owns it, that's nice to know. Page 144 September 27, 2001 Under Item 4, I guess we need to know or we're probably interested in what he did to -- what corrective measures he's taken? I don't know why that would make any difference but -- MS. RAWSON: If you look back at the rules, I think that's one of the things that you're going to consider. CHAIRMAN FLEGAL: We're going to consider? Okay. That was my only comments on B. MR. LEHMANN: We're going to do the same thing on the certificate of service on this one also? CHAIRMAN FLEGAL: I think it's done the right way. It gives them some options, doesn't it? MR. LEHMANN: It's got hand-deliver and mail. It doesn't have fax. CHAIRMAN FLEGAL: Okay. As long as they have some other way to do it other than mail is all I was really interested in. Any other comments on B? MR. PONTE: Yeah. I just have a question on B because you stuck me with this logic here. Why is the respondent in this particular document able to say he's "unable to correct the violation because of" when he's asking for an abatement of fines; and in the other he's asking for a rehearing, but is not able to tell you why he -- CHAIRMAN FLEGAL: Because in a rehearing the statutes and ordinance are very specific. There's only two reasons for a rehearing. The reducing of fines -- there is nothing whatsoever in the statute or ordinance about reducing fines other than the board has the right to reduce them. It doesn't say under any conditions. But for a rehearing they are very specific. There are only two reasons. MR. PONTE: Okay. MS. ARNOLD: Just one note, that we'll go back to the actual rules and modify where the reference to social security numbers were in the actual bodies because they were listed. Page 145 September 27, 2001 CHAIRMAN FLEGAL: Oh, they were? MS. ARNOLD: Yeah. CHAIRMAN FLEGAL: I must have missed that. Thank you. Yeah. We don't want -- this board has no reason to know that. If the county attorney wants it, that's their privilege. But I don't want this board to have access to that information, nor do I want any of our documents that are open to the public, available to people, with that kind of information. MS. ARNOLD: Okay. Jean, on page 9, Section 1 is where the reference is to social security number, and then also Item D -- or wait. That's it. CHAIRMAN FLEGAL: Okay. Any other comments on A or B, Exhibit A or B? Okay. Now, Ms. Rawson, we've gone over the rules and regulations, and I think everybody is relatively happy with our changes that we made, and they're happy with Exhibits A and B. Do we now need to make a motion and have a vote on accepting the rules and regulations and Exhibits A and B as heretofore changed by this board? MS. RAWSON: Yes, we do. CHAIRMAN FLEGAL: Okay. Who wants to make that motion? MR. PONTE: I'll make a motion that we accept the changes and amendments to the rules and regulations and exhibits as set forward in this meeting. MS. TAYLOR: I second that. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? Page 146 September 27, 2001 (No response.) CHAIRMAN FLEGAL: Ms. Rawson will make up -- Okay. 4-0. We now have them, and MS. RAWSON: Maybe we can sign them next month. CHAIRMAN FLEGAL: -- new copies and bring them to our next meeting, which will be October 25th, and we will sign them. Any other comments? MS. ARNOLD: I just have a quick comment that we had a workshop before the Board of County Commissioners, and it went very well, and I would encourage you all to watch that if you have an opportunity. They rerun our programs. I'll check with the office of public information to see when it's going to be rerun again, but it was -- it was very interesting. The board was encouraging and, you know, it went well. It was informative. MR. LEHMANN: Can you obtain tapes of this? Do they make a tape? MS. ARNOLD: Uh-huh. That's all I have. MR. LEHMANN: Just in case I'm not available at the time they're rerunning it. CHAIRMAN FLEGAL: Or he doesn't want to sit in front of TV and watch it. MR. PONTE: A VCR on your expense account, is that what you're after? MR. LEHMANN: Unfortunately we don't have an expense account, so it doesn't work that way. CHAIRMAN FLEGAL: Any other business? I would entertain a motion to adjourn. MS. TAYLOR: So moved. MR. LEHMANN: Second. CHAIRMAN FLEGAL: All those in favor signify by saying aye. Page 147 September 27, 2001 (Unanimous response.) CHAIRMAN FLEGAL: Thank you very much for a long day. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 1:49 p.m. CODE ENFORCEMENT BOARD CLIFFORD FLEGAL, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY BARBARA DRESCHER, NOTARY PUBLIC Page 148 ORM THER LO AL PUBLI cOUNt, MUNICIPAL, AND O' THE WHO MUST FILE FORM 8B This form is for use by any person serving at the county, city, or other local le~l of government on an appointed or elected board, council, commission, authority, or committee- It applies equally to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Section 112.3143, Florida Statutes. Thc requircmcn, ts of this law are mandatory;, although the usc of this particular form is not required by law, you are encouraged to use it in making the disclosure ~-quired by law. Your responsibilities under the law when faced with a measure in which you have a conflict of interest will vary greatly depending on whether you hold an elective or appointive position. For this reason, please pay close attention to the instru, c~ons on this form before completing the reverse side and filing the form. INSTRUCTIONS FOR COMPLIANCI~ WITH SECTION ~42.3~43, FLORIDA STATUTES ELECTED OFFICERS: : ' A person holding elective county, municipal, or other local public office NIUST ABSTAIN f~om voting on a measure which inures to his special private gain- Each local officer also is prohibited from knowingly voting on a measure which inures to the special gain of a principal (other than a governha, ent agency) by whom he is retained. In either case. you should disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure' on which you are abstaining from voting; and WITHIN I$ DAYS AFTER THE VOTE oCCURS by completing and filing this form with the person responsible for record!ng the minutes of the meeting, who should incorporate the form in the minutes. APPOINTED OFFICERS: A person holding appointive county, municipal, or other local public office N1U~T ABSTAIN from voting on a measure whirl inures to his special private gain. Each local officer also is prohibited from knowingly voting on a measure, which inures to th, special gain of a principal (other than a government agency} by whoUl he is retained. A person holding an appointive local office otherwise may participate in a matter in which he has a conflict of interest, but mu! disclose the nature o1' the conflict before making any attempt to influence the decision by oral or written communication, whe.th~ made by the officer or at bls direction. IF YOU INTEND TO MAKE ANY ATTEMPT TO II~FLUE~CE. THE DECISION PRIOR TO THE MEETING AT WHIC THE VOTE WILL BE TAKEN: · You should complete and file this form (before making any attempt to influence the decision) with the person responsible recording the minutes of the meeting, who will incorporate thc form in the minutes- · A copy of the form should be provided immediately to the other m.embers of the agency. · The form should be read publicly at the meeting prior to consideration of the matter m which you have a conflict of IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT 'ITHE MEETING: · You should disclose orally the nature of your conflict in the measure before participating. · You should complete the form and file it within' 15 day~ after the vote occurs with the pe~on responsible for recording the minute~ of the meeting, who should incorporate the form in the minute~. .. DISCLOSURE OF LOCAL OFFICER's INTEREST measure came or will come before my agency which (check one) inured to my special private gain; or inured to the special gain of (b) The measure before my agency and the nature of my interest in the measure is as follows: · by whom I am retaine~L Date Filed Signat urea' NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §!!2_317 (1955). A FAILURE TO MAKE ANY REQUIREI DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING LMPEACHMENT. REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION. REDUCTION ir SALARY. REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED $5,000.