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CEB Minutes 10/25/2001 R October 25, 2001 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD OF COLLIER COUNTY Naples, Florida, October 25, 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 9:02 a.m. In REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Clifford Flegal Roberta Dusek Rhona Saunders Peter Lehmann George Ponte Diane Taylor Kathryn M. Godfrey-Lint Kathleen Curatolo NOT PRESENT: Darrin M. Phillips ALSO PRESENT: Jean Rawson, Attorney, Code Enforcement Board Maria E. Cruz, Code Enforcement Official Michelle Arnold, Code Enforcement Director Page 1 Da~e: ~coba~ 25~ 2001 ~ ~,00 ~'~ ~,~ ~ca~i~: ~01 E. T~i~i Tr., Naples, Florida, Collier C~nty Gove~n~ Canter, ~/nis~rm=ive Bld~, 3r~ Floor OF THE D~E~I~S PERTAINING ~RR~O, ~ TH~aEFO~E ~Y ~ED 2. APPROV~ OF ~. AP~ OF_ ~I~g Sd~f 27, 2001 4, P~LIC ~INGS A. ~C vs. P~el~ P. ~roules ~ ~o. 2001-~7~ B. ~C v~. William G. Schrack ~d Eric Willi~ S,hrack CE~ NO. 2001-041 5. ~ ~. ~C vs. Phle~y ~. Dan~ls a~ J~ifer ~r~ C~ No. 2~01~071 C. ~C vs. McA1Dine Bria~, Inc. a~ Charles ~i~chco=k CEB No. Execution uf Cude Enforcement Board Rules ~ R~ulat~ons 7. ~E~TS N~F 29, 2001 ~0. ~ October 25, 2001 CHAIRMAN FLEGAL: We're calling the Collier County Code Enforcement Board to order, please. Please note any person who decides to appeal a decision of this board will need a record of the proceedings pertaining thereto and, therefore, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Neither Collier County nor the Code Enforcement Board shall be responsible for providing this record. Roll call, please. MS. CRUZ: Good morning. For the record, Maria Cruz, code enforcement investigator. Roberta Dusek. MS. DUSEK: Here. MS. CRUZ: Clifford Flegal. CHAIRMAN FLEGAL: Here. MS. CRUZ: Kathryn Godfrey. MS. GODFREY-LINT: Here. MS. CRUZ: Peter Lehmann. MR. LEHMANN: Here. MS. CRUZ: Darrin Phillips. (No response.) MS. CRUZ: George Ponte. MR. PONTE: Here. MS. CRUZ: Rhona Saunders. MS. SAUNDERS: Here. MS. CRUZ: Diane Taylor. MS. TAYLOR: Present. MS. CRUZ: And Kathleen Curatolo. MS. CURATOLO: Here. MS. CRUZ: Thank you. Page 2 October 25, 2001 CHAIRMAN FLEGAL: Approval of our agenda. Are there any changes to our agenda as submitted? MS. ARNOLD: Yes. For the record, Michelle Arnold, code enforcement director. Item A under your public hearings, Board of County Commissioners versus William G. Schrack and Eric William Schrack, we're removing that from the agenda at the request of the solid waste staff, whose case that is. CHAIRMAN FLEGAL: Ms. Rawson, I have a question. MS. RAWSON: Yes. CHAIRMAN FLEGAL: That case, it's a request for rehearing by the respondent. MS. RAWSON: Correct. CHAIRMAN FLEGAL: Michelle just said that the solid waste wanted it removed. The respondent asked for the rehearing. Shouldn't he be the only one to be allowed to remove it? MS. RAWSON: Well, he's not here, and apparently they might know he's not coming. MS. ARNOLD: I'm assuming that the solid waste department has spoken to Mr. Moon, who's the representative for the Schracks. And because he's in the process of applying for that commercial exemption under the ordinance he's been cited for, I'm assuming that that's partly why the solid waste department has requested the removal of that particular item. MS. RAWSON: I'm not real concerned about it because he was present here the last time, and he knew that it was set for today. I think he even might have probably waived notice, and he's not here today. Since it's his motion, he's the one that has to go forward with it. CHAIRMAN FLEGAL: Okay. I guess my question is, if we're removing, does that still give him the option of saying, "Oh, you just removed it, and I still want my rehearing"? Page 3 October 25,2001 MS. RAWSON: He can ask for a rehearing if it's timely. You know, that's up to him, but he's not here. It's his motion, so I don't have any problem with taking it off of the agenda. CHAIRMAN FLEGAL: Okay. Any other changes? I would entertain a motion to approve the agenda as changed. MR. PONTE: So moved. MR. LEHMANN: Second. CHAIRMAN FLEGAL: All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. Approval of the minutes of September 22nd (sic). Are there any changes or additions to the minutes? Hearing none, I would entertain a motion to approve the minutes as submitted. MR. LEHMANN: 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.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. We'll now open our public hearings. First case, Andrew and Letty Espinoza, Case 2001-079. MS. CRUZ: Let the record show that the respondents, Andrew or Letty Espinoza, are not present. The notice of hearing was provided to the respondent via certified mail, posting at the property and at the courthouse. I'd like to request that the packet that was Page 4 October 25, 2001 provided to the respondent and the notice of hearing be admitted into evidence, marked composite Exhibit A, please. MS. DUSEK: I make a motion that we accept the exhibit. MS. TAYLOR: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the county's exhibit on this case. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) MS. CRUZ: This is the case of Board of County Commissioners versus Andrew and Letty Espinoza, Case No. 2001- 079. The alleged violation brought before this board is a violation of Ordinance No. 91-102, Sections 2.6.7.1.1 and Section 1.5.6. It's the description of large commercial dumpster placed on the residential property and the parking or storage of a vehicle without the license -- valid license plate. The violation exists at 300 Country Club Drive, Naples, Florida, which is more particularly described as Palm River Estates Unit 8, Lot 35. Owner of record of subject property is Andrew and Letty Espinoza. Their address of record is 300 Country Club Drive, Naples, Florida. The violation was first observed on July 31st, 2001. Notice of violations were provided to the property owner on August 3rd, 2001, with a compliance date of August 9th, 2001. And another one was provided on September 24th, 2001, with a compliance date of September 28th, 2001. As of yesterday, October 24th, violation remains. I'd like to call Investigator Larry Schwartz at this time, please. (The speaker was sworn.) MR. SCHWARTZ: Good morning, Members. My name is Page 5 October 25, 2001 Larry Schwartz. I'm an investigator for the Code Enforcement Board -- code enforcement division. This case is in reference to CEB Case 2001-079. On July 31st I received a complaint of a illegal dumpster on residential property at 300 Country Club Drive. I proceeded to that location. I observed an orange dumpster parked in the driveway. At that time I had a conversation with the owner, Mrs. Letty Espinoza, and informed her that she couldn't have the dumpster there. She told me that she was doing some major cleanup and that it would be there for a very short time. I told her that I would monitor the situation, and I would be back on -- a few days later to check on it. I came back a few days later, and it was August 3rd, and very -- very little work had been done. And at that time I also noticed a blue Cadillac parked in the driveway that had no -- no plates on it. At that time I issued -- I didn't issue -- I wrote out a notice of violation for the Caddy and for the dumpster that was on the property. I came back there the day after the notice was to have been corrected, which was August 10th I came back there. The blue Caddy did have current tags. The dumpster was still there. And at that point not -- I didn't see any more progress being -- any work being done in the area. I came back there a couple weeks after that and noticed that the dumpster was still there and still no progress. I came back again, and I had a conversation with Mr. Espinoza. And he says that he was going to go see if he could get a permit but that it wouldn't be there long. I've made numerous trips to that location, and the dumpster was there. And in September I also noticed that a brown Volvo was there taking the place of the Caddy, and that, too, had no tags on it. At that point I posted a notice of violation since I had not received any verification that they accepted the notice of violation the first time. I came back again in September, and both the dumpster and the Volvo were there. The Volvo had no tags, and the dumpster still had very little debris in it. On September 7th I went back again, and both Page 6 October 25, 2001 were there. I checked the files to -- the computer to see if a permit -- he, in fact, did get a permit. No permit was ever issued. So I don't know if he applied for it, or he didn't receive it. In September I called up Mrs. Espinoza, and I told her I was going to issue her a citation for the dumpster. She told me that I should do what I have to do. I've been making numerous checks on that location as late as yesterday, and the violations of the Volvo and the dumpster still exist at that location. I'm making a recommendation to the CEB board (sic) that the respondent pay all operational costs of this proceeding and that they be given ten days to remove the violation or that a fine of $25 per day per violation be assessed. Thank you very much. MR. LEHMANN: Investigator Schwartz, I understand the county's concern regarding the car, the automobile. Can you inform me how the dumpster -- or what code section the dumpster actually violates? MR. SCHWARTZ: Section (sic) 91-102, 1.6.5, permitted use. What they're doing is they're not using the dumpster. They're storing it. This is the third or fourth time that they have proceeded to put a dumpster on their property and left it there for numerous months without really doing any work. MR. PONTE: Investigator, are they living in that-- in that house? MR. SCHWARTZ: To my knowledge. MR. PONTE: So when you telephoned, that's -- that's the place you reached? MR. SCHWARTZ: That's correct. MR. PONTE: How do they get in and out of that garage? MR. SCHWARTZ: It has also a circular drive, so they must be parking their private cars on the circular drive and not using the garage. Page 7 October 25, 2001 MR. PONTE: Have you seen cars, other vehicles there? MR. SCHWARTZ: I've seen other vehicles parked in the circular driveway. MR. PONTE: And they're all tagged, other vehicles? MR. SCHWARTZ: The Caddy was not. I -- but they have a van which has been legitimately tagged. MR. LEHMANN: Investigator Schwartz, I'm still confused about the dumpster. I'm still trying to find a code that would prohibit this respondent from using that dumpster as -- as she is using it. I have not come up with one. And the code sections that are referenced in the violation are 2.6.7.1.1, which references vehicles or trailers. A dumpster is not a vehicle or a trailer. And Section !.5.6 that the violation notices, it's referenced as a building or a structure. So I'm still confused as to which ordinance we're violating. MS. ARNOLD: 1.5.6 is for prohibited use -- uses. CHAIRMAN FLEGAL: But it says building or structure. Are you trying to say that you're considering a dumpster a structure? I mean, it's kind of your own choice; otherwise, that doesn't fit. MS. ARNOLD: That particular section of the ... MS. DUSEK: Mr. Schwartz, do you know, when you contract to have a dumpster delivered to your property, do you have to have a permit? Do you have to do something through the town or the county first? MR. SCHWARTZ: Not at all times to my knowledge, no. But I don't think you could store a dumpster there if you were not using it, just to store it there, on a residential property for months at a time. CHAIRMAN FLEGAL: But every time you've been there, there's been stuff in it? MR. SCHWARTZ: The first time I went, not -- on a prior case, it was blank, but they finally did remove it. There was nothing in it. This time it looks like they started, but they never completed Page 8 October 25, 2001 anything. They just did a minimal amount of work. CHAIRMAN FLEGAL: Well, but I mean, is it trash or is it -- I mean, I'm trying to figure out what's in it. MR. SCHWARTZ: It's lawn waste, yard waste. CHAIRMAN FLEGAL: Okay. So you don't know whether it's being emptied or not emptied. MR. SCHWARTZ: No, I don't. CHAIRMAN FLEGAL: It just happens to be every time you go, there's something in it. MR. SCHWARTZ: But I go quite often. CHAIRMAN FLEGAL: Okay. But I'm just saying, you don't know if in the interim it gets emptied and then refilled. MR. SCHWARTZ: No, I don't. MS. TAYLOR: How big is this lot? I mean, just how much yard waste can there possibly be? MR. SCHWARTZ: It's a comer house. It's a fairly nice-sized lot. MS. TAYLOR: And when you see it, does it look like a jungle? MR. SCHWARTZ: For some reason, they mowed the weeds recently. But yes, it was looking very, very bad there. MR. LEHMANN: Comments for the board. The reason I asked that question is, I don't have any problems with vehicles itself, but I'm not so sure that we are citing the respondent in the proper violation of the ordinance with regard to the dumpster. MS. DUSEK: I agree with you. CHAIRMAN FLEGAL: I have the same problem. MS. ARNOLD: In the notice of violation that was sent to the respondent, which is on page 9 in your packet, they-- he -- the investigator cited him for Section 1.5.6 as well as 2.1.15, prohibited uses and structures. 2.1.15, prohibited uses and structures, it Page 9 October 25, 2001 indicates any use or structure not specifically permitted in the zoning district as a permitted use, conditional use, or use allowed by reasonable implication shall be prohibited. That was -- that particular section was what they -- one of the sections that were cited to correct this particular violation, but it was omitted from your statement of violation document. But the respondent actually was sent this notice of violation indicating that they can't use the dumpster continually the way they were using it. MR. LEHMANN: So what you're saying is that -- is that in a residential property, a person cannot use a dumpster. MS. ARNOLD: If-- the way they're particularly using that dumpster. If they had an activity going on on that particular site, they could rent a dumpster, as they've done in this particular case, and utilize it as a part of that activity. They have had this dumpster apparently, from the testimony of the investigator, for several months with no activity whatsoever, and it's -- it's just being stored on the site. If they're using it for garbage purposes, that's not a permitted use, for their garbage. I mean, you have to have -- you have to use the garbage bin that is provided. CHAIRMAN FLEGAL: But he hasn't said that. He says it's -- vegetation is what you've said; correct? MR. SCHWARTZ: That's what I've seen in it, yes. CHAIRMAN FLEGAL: Okay. So garbage isn't an issue. And putting vegetation in the dumpster is a use of a dumpster. What you're trying to cite them for is that that dumpster's been there a long time? MR. SCHWARTZ: It's -- yeah. The amount of time, and it's been there numerous times. CHAIRMAN FLEGAL: Okay. Did you call the owner of the dumpster to see if they've ever picked it up and brought it back or changed it? Page 10 October 25, 2001 MR. SCHWARTZ: I called the owner of the dumpster, and they told me that they don't -- they didn't bring it back, and they're not going to remove it as long as the person is paying the rental fee. CHAIRMAN FLEGAL: Okay. They never emptied it; is that what you're -- MR. SCHWARTZ: They never said they did, no. MS. DUSEK: Do we have -- Michelle, is there somewhere in the ordinance that specifies how long someone can keep a dumpster or what the use of the dumpster is? I mean, does it say, well, you can only use it for lumber and drywall and, you know, that sort of thing if you're renovating? Is there anything that defines what the use is or prohibited use is? MS. ARNOLD: No. There's nothing in the ordinance that would indicate a time frame because with construction activity, you -- it'll vary, or activity -- you know renovations could vary, or improvements in your yard, the time frames could vary. But what we would look at is the -- the district and the activity that's going on at a particular site to see whether or not it's as -- a reasonable use of that dumpster. And it appears that they've just stored it there for some time, and they haven't been utilizing it for any purpose. MS. DUSEK: So this is more of a subjective decision on how it's being used and how long it should be there. MS. ARNOLD: Well, you've got to look at the zoning district and what the permitted uses are in the zoning district to kind of like fall back to see whether or not someone could store a dumpster at a particular site. And that's not a permitted use in that particular residential area. The -- the storage or use of a dumpster is kind of accessory to some other activity that may be occurring at the site. MR. LEHMANN: Investigator Schwartz, did you not testify earlier that the respondent is paying rent for this dumpster? MR. SCHWARTZ' Well, that's what the -- the dumpster Page 11 October 25, 2001 company said. MR. LEHMANN: Okay. So this respondent, obviously, is paying for this dumpster to be there, so I'm not so sure I would understand why you would say they're storing it. Why would you pay to have something stored on your property? I'm -- I have a hard time with this because, in essence, I feel that we're kind of reaching for the code here that would end up setting precedence and preclude anyone on a residential property to ever get a dumpster out on their site for any length of time at all for whatever reason. MS. TAYLOR: Well, now, if everybody wants to rent a dumpster and put it in their driveway and every once in a while clean their yard and put the trash in it from their yard and then just continue to rent, rent, rent, we'd have dumpsters all over Collier County, and wouldn't that look nice? This is just for something of their convenience. When they want to clean their yard, they put in the dumpster; right? Well, you can't do that. CHAIRMAN FLEGAL: Well, the problem is we're trying to find out where it says you can't do that. Right now it -- you only can't do it because code enforcement doesn't like it. We're trying to find out, where does it say it in the ordinance that there's some kind of time limit? If he's cleaning his yard every third week because that's all he can do and he's trying to make this major renovation on his landscaping -- and maybe he's in and out of town. I don't know. I'm looking -- I'm reaching for some reason to find this citation. MS. ARNOLD: It's not a matter of whether or not code enforcement likes it. It's a matter of whether or not this activity is allowable in that zoning district. And the zoning district doesn't allow someone to continually have a dumpster in their front yard and utilize it as they may or may not want to. It is not a use that is permitted in the zoning district. CHAIRMAN FLEGAL: Where does it say that? Page 12 October 25, 2001 MS. ARNOLD: Under permitted uses and structures. The zoning code or the Land Development Code doesn't have a -- you know, a specific description for every particular instance. And there are interpretations that need to be made of the -- the zoning codes, and it is our interpretation that this activity is not a continual permitted use in that zoning district. There is -- the Land Development Code won't say -- it's not designed to have time frames for every particular use because you have -- with -- with different activities the time frames may vary. So you're not going to find in the Land Development Code a particular section that has an answer for every particular instance that we're bringing before you. We've identified that this use and the activity, we believe, is a continual activity, and it's not one that is described as permitted in that zoning -- that residential zoning district. Now, you-all will have to look at that and weigh that and determine whether or not you concur with that determination. But there's not going to be something in the code that says 5 days, you know, 30 days, 3 months. MS. DUSEK: As I look at the code that you've cited him for, not the one that was in our statement of violation, then I can agree with you because if we look at that first paragraph it says as permitted use, conditional use, or use allowed by reasonable implication shall be prohibited in such zoning districts. So I think that that kind of explains where the staff is coming from because you have to use some discretion in abusing the use for any length of time, and I think it says it in that first paragraph. My question to Jean is since it wasn't in the statement of violation, can we -- because he was cited for that, can we include that today? MS. RAWSON: You're talking about 2.1.157 MS. DUSEK: Yes. Page 13 October 25, 2001 MS. RAWSON: It's not in the statement of violation. It's not in the affidavit. It is in the notice of violation that was sent to him. And then he signed -- well, I don't know that he signed for it. It was sent to him on 8/3 and 8/9/01. MS. DUSEK: So can we consider that.9 MS. RAWSON: Well, technically it probably should be in the affidavit and the statement of violation. So although he was aware of the 2.1.15, it probably should be in the statement and the affidavit. So you need to decide whether or not the two sections that are cited, in specific the 1.5.6, doesn't cover this, as well. MS. DUSEK: In my opinion, that does not cover it. As far as the vehicle goes, the one section does. But for the dumpster I don't see a violation according to the statement of violation, and I don't know whether it can be brought back with the correct -- MS. RAWSON: I think what you have to determine is whether or not a dumpster is a structure, and it is being used, because those two words are operable in 1.5.6. It's a structure, and it says no structure can be used, in whole or in part, other than specifically permitted by the provisions of each zoning district. MS. DUSEK: Well, that's my point. You know, personally, I don't see it as a structure. MR. PONTE: It's not a structure. MS. DUSEK: I don't see it as a violation today. But if the staff were to bring it back again under the correct violation, can they do that? MS. RAWSON: Yes. MR. PONTE: So we could move forward on the violation regarding the untagged vehicle. MS. RAWSON: You have to decide whether or not this dumpster's a structure, basically. MS. ARNOLD: I have a question. We've -- we've modified the Page 14 October 25, 2001 statement of violation and/or the affidavit at the board meetings previously. Wouldn't that be something -- I mean, as long as the notice of violation, which is the official notice to the respondent of what sections of the code is being violated, states the appropriate sections -- CHAIRMAN FLEGAL: You've modified them before where you've made a mistake in the -- as I remember, calling out-- the specific numerical call-out of a paragraph, and the period was in the wrong place, or we left one 6 off, and it was somewhere else. But we've never actually added an item to the statement of violation, as I remember. MS. ARNOLD: Well, my recollection is that we have but ... MR. LEHMANN: Jean, can I get some clarification also? Do we as a board have the right to interpret the ordinances, as Ms. Arnold had indicated? MS. RAWSON: Yes. MR. LEHMANN: All right. So we have the ability to interpret. We cannot waive, obviously. MS. RAWSON: And she's perfectly correct, and it's true in any body of law. Everything is not in the ordinance. Everything is not in the statute. There are cases out there that interpret these things, but you don't have any case law in front of you. So you have every right to interpret and determine what that really means and read it all very carefully and decide if it fits. MR. LEHMANN: And this board's decision must solely be weighted on its decision, review, or interpretation of Sections 2.6.7.1.1 and Section 1.5.6. We cannot consider Section 2.1.157 MS. RAWSON: Well, what Michelle is saying, and it's true, that on the NOV the respondent was notified of that section. Now, whether you want to consider that section since -- and read it with the rest that are cited in the affidavit and the statement, you can do that. I Page 15 October 25, 2001 don't think -- I'm not sure that we can actually amend the statement, but I think you have every right to read them all together and determine whether or not there's a violation. MR. LEHMANN: Okay. So-- MS. RAWSON: We have to do that a lot. I mean, you have to read statutes together. And, I mean, she didn't cite the zoning statute, for example, which you can do. So you have to look and see what the violation is and determine by your interpretation of the statutes as a whole, as well as the specific ones cited, whether or not there's a violation. MR. LEHMANN: Thank you. MS. DUSEK: I think I understood that. I -- I'm a little confused about how we would come to a decision today. MS. RAWSON: I think your-- I think your-- I think your argument has to hinge on whether or not you think it's a structure and -- and the wrong use because of the zoning in that area. MS. DUSEK: Well, in my opinion, and as I -- CHAIRMAN FLEGAL: Let me ask one question before we go on. We're now debating uses here. Do we have any more questions for Mr. Schwartz? He's standing up there very patiently, and we're kind of discussing among ourselves, which is not what we want to do right now. MR. PONTE: I have one question for him. Has the volume in the dumpster changed at all? I mean, has it increased, or is it the same volume? MR. SCHWARTZ: It has increased a little. MR. PONTE: A little. MR. SCHWARTZ: Well, it has increased, yes. MR. PONTE: Twenty percent? Fifty percent? MR. SCHWARTZ: Approximately 50 percent. MR. PONTE: So it is being used. It's not just -- Page 16 October 25, 2001 MR. SCHWARTZ: It wasn't -- I would say for the first few visits I went there it was minimal. And then up until maybe a week ago or two weeks ago, it's -- MR. PONTE: Being used. MR. SCHWARTZ: Being used, yes. MR. LEHMANN: Investigator Schwartz, how long was -- how long, again, has this dumpster been there in any one period of time? I don't mean being brought there, taken away, and brought back again. MR. SCHWARTZ: This time it was brought there July 31 st. MR. LEHMANN: Okay. So it has been there since July 31st. MR. SCHWARTZ: And prior to that it was there for a month or -- a month or two. MR. LEHMANN: Do you have any idea what the capacity of this dumpster is? Is it a 10 yard, 20 yard, or 30 yard? MR. SCHWARTZ: I have no -- MR. LEHMANN: Okay. Do you have any idea what the length of this is? MR. SCHWARTZ: It looks approximately 15 feet. MR. PONTE: The size of a car. MR. SCHWARTZ: A little bigger than-- MR. LEHMANN: So to actually make a dent in filling this up noticeably, it would take some quantity of material. MR. SCHWARTZ: Yes. CHAIRMAN FLEGAL: And it has been -- and the quantity has increased at various times that you've gone there. MR. SCHWARTZ: Mostly in the last two weeks. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: Another question for you. Do you think that the quantities that have been added on a regular basis are in excess of what would normally be picked up by Waste Management or whoever picks up the vegetation in a normal residential property? Page 17 October 25,2001 MR. SCHWARTZ: Yes. MR. LEHMANN: It would exceed the quantities they would normally pick up? MR. SCHWARTZ: Yes. MR. LEHMANN: Because I've given them a lot of stuff to pick up. I mean, I've given them piles of stuff. MR. SCHWARTZ: Well, I'm sure if it was cut up and bundled the way it should be, they could have been used right from the beginning, and there would be no need for the dumpster. MR. LEHMANN: Okay. MS. ARNOLD: I just have a point of clarification on Section 1.5.6. That particular section says no building or structure or part thereof shall be erected, altered, or used. And then it also says or land or water used. So it also refers to the use of the land. It not only limits it to the building or structure. CHAIRMAN FLEGAL: But you don't require a permit for the dumpster to be there, so using the land, that's -- I mean, you're really stretching now that somebody's put something on their land. There's not a permit required for a dumpster to start with. MS. ARNOLD: No. That's -- that's -- that word "permitted" is permitted uses within the provisions of that zoning district. CHAIRMAN FLEGAL: Permitted use of your land, you're allowed to call and get a dumpster brought to your land, and you don't need a permit. So you're allowed to use your land for that purpose. MS. ARNOLD: Correct. But-- CHAIRMAN FLEGAL: Now what he's being cited for is he put something on his land that is felt to be there longer than it should be. That's really what we're down to. Something on your land longer than we think it should be there, that's really what the problem is. MS. TAYLOR: How many times before have they had a Page 18 October 25,2001 dumpster there? MR. SCHWARTZ: I know I've handled it at least once, and I think there was one or two other investigators that handled it. Once prior to this. MS. TAYLOR: So unless this is, like, 3 acres, 2 or 3 acres, this should have all been done with the first couple of dumpsters. Now they're using this dumpster as a convenience, is what they're doing. MS. RAWSON: Let me point out, too, that in -- you know, don't be concerned whether 2.1.15 has been cited or not cited because the same word "structure" is in there, and so you still have the same discussion. MS. DUSEK: But at the beginning it says any use. MS. RAWSON: Well, I think "use" is also in 1.5.6. MR. LEHMANN: My -- my concern on the dumpster isn't that this is something that maybe shouldn't go on. I think -- I think it has gone on far too long. But my concern is, what violation do we -- what code ordinance do we violate by saying it's gone on too long? That's what I'm trying to find. How do I justly say, yes, this six, eight months, whatever has transpired, is too long? By what ordinance have I violated a time period? And I can't find any. CHAIRMAN FLEGAL: I mean, let's narrow it down to some real specifics. 1.5.6, it's not a building; it's not a structure. Sorry. I can't put a dumpster into either one of those words. Then we go to land or water used in whole or in part other than specifically permitted. You're allowed to put a dumpster on your property. The question is for what time period, which is not called out here. So what's he violating? He's allowed to put a dumpster there. The question is time period. So I don't see where 1.5.6 works. I'm having a problem with that. MS. SAUNDERS: It does say no building or structure or part thereof. And I would argue that if he's using the dumpster as a Page 19 October 25, 2001 continuous dumping site -- CHAIRMAN FLEGAL: It's still not a building or structure. MS. SAUNDERS: I would call it a structure just as though I built a -- kind of a small trash area that I continually kept there. I would say that this is an abuse of what the use of a dumpster normally would be. And by maintaining it there on a permanent basis, it becomes -- a very unusual structure, but it becomes a part of structure, which is a landfill dump. MS. TAYLOR: I agree. MR. PONTE: You're the wordsmith. Do we have a dictionary with us? CHAIRMAN FLEGAL: Let's get back to Mr. Schwartz, though. Are we done with Mr. Schwartz? We could maybe let him sit down since we're obviously debating on what we're going to do. We keep doing that. Any more questions for Mr. Schwartz? Thank you, sir. MS. DUSEK: I think that's a very good point, Rhona. MS. SAUNDERS: I think what concerns me about this case is not whether you've got the right to have a dumpster there or not. I think they -- it sounds to me like the property owner is specifically abusing what a normal use would be for a dumpster and not being at all responsive to an attempt to get some information or to respond to the code enforcement people. And, therefore, I can stretch my understanding to say they've changed what a dumpster normally would be used for. And if I lived in the neighborhood, frankly, I don't think I'd want a dumpster sitting in front of my neighbor's house forever because it's convenient to dump stuff in it. So I'm okay at least with saying that Section 1.5.6 -- that under this violation as has been cited, that we can cite him under that. MR. PONTE: Your logic is right and the motion is right, but the citation is wrong. And that's where we're stuck, I think. Page 20 October 25, 2001 MS. SAUNDERS: Well, our attorney has said that we can cite him under this, that we're not -- I think I -- you know, the word "structure" is something that -- none of us are attorneys -- if an attorney can argue -- can advise us -- MR. PONTE: No. "Structure" is a word in the English language. CHAIRMAN FLEGAL: Right. MR. PONTE: And it doesn't need an attorney to interpret it. MS. SAUNDERS: Or part thereof. CHAIRMAN FLEGAL: Well, part thereof, of what? MS. SAUNDERS: A part thereof-- CHAIRMAN FLEGAL: No. You've cut the sentence up. You can't do that. It says "no building or structure or part thereof." "Part thereof" is of the building and structure. It's not "part thereof" of space. MR. LEHMANN: But my colleague does bring up a very interesting point, and the point is if I alter the use of a dumpster -- CHAIRMAN FLEGAL: Okay. How-- MR. LEHMANN: -- to a permanent storage place -- MR. PONTE: That's not the case here. CHAIRMAN FLEGAL: That's not the case. He didn't alter the use. The use of a dumpster is to put stuff in. He's putting stuff in it. MS. TAYLOR: At one time. When you're doing a -- CHAIRMAN FLEGAL: It-- it-- MS. TAYLOR: -- major project -- just let me finish. When you're doing a major project, you have a dumpster come in. You rent a dumpster, you bring it in, and you fill it, and they dump it. If you need it again, you fill it again, then they have it dumped. You don't just put one there for convenience to use or rent over and over and over. You just don't do that. MR. PONTE: Well, he is doing it. Page 21 October 25, 2001 MS. TAYLOR: Well, he shouldn't be. MR. PONTE: And he's paying rent to do it. MS. TAYLOR: Well, rent has nothing to do with it. Of course he has to pay rent on it, or they would come and get it. MR. PONTE: Well, it implies that it is being used. MS. TAYLOR: When he wants to use it. We all take care of our yards, if we have yards. We either bundle it and put it out for Waste Management, or we have a dumpster rented there, and we put it in there for our convenience. CHAIRMAN FLEGAL: Okay. I think we've argued it to death. Let's -- MS. TAYLOR: Well, I don't think so. CHAIRMAN FLEGAL: Yes, I think we have. Let's get -- MS. TAYLOR: I don't. CHAIRMAN FLEGAL: -- to an order of the board. Is there, in fact, a violation? There's no sense in continuing to try to convince each other. We need to get to an order. MR. PONTE: Are we going to separate these two violations? CHAIRMAN FLEGAL: There's -- there's one -- there's three sections called out. One is the illegal land use, prohibited use of structures, and storage of unlicensed vehicles. That's the three items they have been cited for, only two of which were in the affidavit. MS. DUSEK: I make a motion that in the case of the Board of County Commissioners versus Andrew and Letty Espinoza in the Case CEB No. 2001-079 that there is a violation, and the violation is of Sections 2.6.7.1.1 and 1.5.6 of Ordinance 91-102, the Collier County Land Development Code. And the description of the violation is large commercial dumpster placed on residential property and the parking/storage of vehicle without valid license plate. MS. SAUNDERS: I second that. CHAIRMAN FLEGAL: We have a motion and a second that Page 22 October 25, 2001 there is, in fact, a violation. Any further discussion? All those in favor signify by saying aye. MS. SAUNDERS: Aye. MS. GODFREY-LINT: Aye. MR. LEHMANN: Aye. MS. TAYLOR: Aye. MS. DUSEK: Aye. CHAIRMAN FLEGAL: Those opposed? MR. PONTE: Opposed. CHAIRMAN FLEGAL: Likewise, no. The ayes I heard-- was there three or four? Four? MR. TAYLOR: Five. CHAIRMAN FLEGAL: Peter, was your hand up? MR. LEHMANN: Yes. CHAIRMAN FLEGAL: Okay. Five. I didn't hear them all. Order of the board. MS. SAUNDERS: I recommend that the respondent be ordered to pay all operational costs incurred in the prosecution of this case and abate all violations within 10 days or a fine of $25 per day per violation will be imposed each day the violation continues. MS. DUSEK: I second, if that's a motion, Rhona. MS. SAUNDERS: That's a motion. I move. CHAIRMAN FLEGAL: Okay. We have a motion and a second for the respondent to first pay all the prosecutorial costs in this case and to -- what was it, ten days, Rhona? MS. SAUNDERS: Yes, within ten days. CHAIRMAN FLEGAL: Okay. -- abate the violations within 10 days or a fine of $25 per day per violation will be imposed. All those in favor signify by saying aye. MS. SAUNDERS: Aye. MS. GODFREY-LINT: Aye. Page 23 October 25, 2001 MR. LEHMANN: Aye. MS. DUSEK: Aye. MS. TAYLOR: Aye. CHAIRMAN FLEGAL: Those opposed? MR. PONTE: Nay. CHAIRMAN FLEGAL: No. Okay. Next case, Board of County Commissioners versus Sidney J. Hubschman, Case No. 2001-080. MS. CRUZ: Let the record show that the respondent is not present; that would be Sidney John Hubschman. The case is Board of County Commissioners versus Sidney John Hubschman, Case No. 2001-080. The alleged violation brought before this board is violation of Section 3.9.6.6.6 of Ordinance No. 91-102. The description of the violation is accumulation of prohibited exotics including, but not limbed to, Brazilian pepper, melaleuca, and earleaf acacia on improved estate-zoned property. The property exists at 2600 Coach House Lane, Naples, Florida, and is more particularly described as Easton Park at Coach House Lane, Lot 1. Owner of record is Sidney John Hubschman. The address of record is 2600 Coach House Lane, Naples, Florida. The notice of violation was provided to the respondent via certified mail, and we do have receipt of that. The violation was first observed on June 20th, 2001. A notice of violation was provided to respondent on July 13,2001, with a compliance date of July 23rd, 2001. I'd like to call investigator-- CHAIRMAN FLEGAL: Are you going to submit any evidence? MS. CRUZ: Yes, please. I'm sorry. I'd like to request that the packet that was provided to respondent be admitted into evidence. CHAIRMAN FLEGAL: Okay. Do I hear a motion? MS. DUSEK: So moved. Page 24 October 25, 2001 MR. LEHMANN: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept into evidence 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: Thank you. At this time I'd like to call Susan Mason. (The speaker was sworn.) MS. MASON: Good morning. For the record, I'm Susan Mason, environmental specialist for code enforcement. This case was the result of an anonymous complaint, and upon investigation I observed an accumulation of prohibited exotics including Brazilian pepper, earleaf acacia, and melaleuca on improved estates-zoned property. The notice of violation was issued by personal service, and I talked with Mr. Hubschman on the site. And he said he would remove the exotics, but he needed a little bit of time. He did request an extension of 30 days, which was granted, for the removal. At the end of the extension, Mr. Siesky, who is Mr. Hubschman's attorney, contacted us and requested a meeting with Michelle Arnold, the assistant -- a county attorney, and myself. And at that meeting they decided they wanted to request a hearing before the Code Enforcement Board. Inspection yesterday did show that a small amount of the exotics were removed from the northwest comer of the property; however, the majority of the exotics do remain on site. I've had some conversations with Mr. Hubschman. He said that he was going to be removing the exotics, that he just needed more time. MS. DUSEK: When you spoke to him about needing more Page 25 October 25, 2001 time, you felt -- you didn't give it to him? I mean, how -- when was this conversation? MS. MASON: That was yesterday, but he's been saying for the past couple weeks that he was going to have it done; it would be finished. And I told him it was scheduled on the 25th, and no work was started until a few days ago. MR. PONTE: Did he give you any idea as to when it would be completed? MS. MASON: I asked him that, and he said within two weeks he should have it done. MR. LEHMANN: This case originated on June 20th, and you say that how much has been accomplished since then? MS. MASON: Oh, probably about 20 linear feet. It's a big lot. It's 660 feet deep. The exotics are primarily on the side edges, and he probably did about 20 feet of it on one side. So not very much. MR. LEHMANN: So in 3, 3 1/2 months, we've got 20 feet worth? MS. MASON: Uh-huh. MS. SAUNDERS: Susan, ifI read your notes, though, or read between the lines in your notes, it sounds like he's planning to sell the property. He wants the exotics there until he sells it because he doesn't like what the neighborhood properties look like. MS. MASON: That was what was stated in the meeting that we had. MS. SAUNDERS: Which makes me very concerned that giving him two weeks, three weeks, four weeks, or whatever until the property is sold isn't going to make a darn difference and you're going to pass this on to a new property owner who's not aware of what might be happening. And it sounds also like he's gone back and forth. He hired an attorney. The attorney said give us an extension. And then he said, "No, we changed our minds." Page 26 October 25, 2001 MS. MASON: Uh-huh. CHAIRMAN FLEGAL: Any other questions for Ms. Mason? Thank you. Decision of the board. MS. DUSEK: I make -- I'm ready to make a motion that in this case of the Board of County Commissioners versus Sidney John Hubschman, Case CEB No. 2001-080, that there is a violation. The violation is of Sections 3.9.6.6.6 of Ordinance No. 91-102, the Collier County Land Development Code. The description of the violation is accumulation of prohibited exotics including, but not limited to, Brazilian pepper, melaleuca, and earleaf-- however you pronounce that -- acacia on improved estates-zoned property. MR. LEHMANN: I'll second that. CHAIRMAN FLEGAL: We have a motion and a second that there, in fact, does exist a violation. Any further discussion. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Order of the board. Before we do that, I have one question. Ms. Mason, to get rid of the exotics that are there, you folks have recommended 21 days. Is that reasonable? Can he do it in 21 days? I mean, without starting at, you know, eight o'clock tomorrow morning and working 21 days straight, is that feasible for him to -- MS. MASON: I believe so. He said yesterday that he could have it done in two weeks, so that's even an extra week. CHAIRMAN FLEGAL: Thank you. Okay. Order of the board. MR. PONTE: Before we make an order, I'd like to make a suggestion. The photos presented by staff show the premises. It looks like a park. It looks like a well-kept park. And although the respondent's in violation, I would recommend that the fine be at the Page 27 October 25, 2001 $25-a-day level rather than the 50. CHAIRMAN FLEGAL: Let's see who proposes what. MR. PONTE: I'm sorry? CHAIRMAN FLEGAL: Let's see who proposes what for the order first. We haven't got to the fine. Nobody's made -- MR. PONTE: I thought we were in discussion. CHAIRMAN FLEGAL: Nobody's made a recommendation yet. MR. PONTE: All right. CHAIRMAN FLEGAL: Okay. Order of the board. MS. TAYLOR: I think we should follow staff's recommendation that the respondent pay all operational costs incurred in the prosecution of this case and remove all prohibited exotics within 21 days or a fine of $50 per day will be imposed. MR. LEHMANN: I'll second that motion. CHAIRMAN FLEGAL: We have a motion and a second for the fine of $50 to remove everything within 21 days and pay all prosecutorial costs. Now, any further discussion? MR. PONTE: No. I've made my point. CHAIRMAN FLEGAL: Okay. No further discussion? All those in favor signify by saying aye. MS. SAUNDERS: Aye. MS. GODFREY-LINT: Aye. MR. LEHMANN: Aye. CHAIRMAN FLEGAL: Aye. MS. DUSEK: Aye. MS. TAYLOR: Aye. CHAIRMAN FLEGAL: Any opposed? MR. PONTE: Opposed. CHAIRMAN FLEGAL: Thank you. Next case, Board of County Commissioners versus Penelope P. -- is it Maroules? I hope I'm -- if I'm saying that wrong, I apologize. Maroules. Okay. Case Page 28 October 25, 2001 No. 2001-074. MS. CRUZ: Mr. Chairman, let the record show that the respondent is present. A copy of the packet and the notice of hearing was provided to the respondent. I'd like to request that this packet be admitted into evidence, marked Composite Exhibit A, please. CHAIRMAN FLEGAL: Okay. MS. MAROULES: I don't think I want the packet to be admitted evidence. CHAIRMAN FLEGAL: We'll make note of that. The county has requested to submit their packet as evidence. I'd entertain a motion. We need to understand that if nothing is submitted, we will have to make a determination solely based on verbal evidence. MS. RAWSON: Well, basically, they've made a motion. She has objected to the motion. You need to make the decision as to whether the motion passes or not. CHAIRMAN FLEGAL: We haven't made the motion yet. They've asked for it. MS. SAUNDERS: I move that the packet be admitted into evidence. MS. TAYLOR: I second that. CHAIRMAN FLEGAL: Okay. We have a motion and a second. We'll also make note that there is an objection to submitting the packet. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. MS. CRUZ: The alleged violation brought before this board is described as parrots squawking at 63.2 decibels over county ordinance requirements. This is a violation of Ordinance No. 2000- 68, Section 6, paragraphs 1 and 2. This violation exists at 164 Coral Page 29 October 25,2001 Vine Drive, Naples, Florida, and is more particularly described as Palm River Estates Unit 1, Lot 44. Owner of record is Penelope Maroules. Address of record is 164 Coral Vine Drive, Naples, Florida. The violation was first observed on May 4th, 2001. A notice of violation was provided to the respondent on May 7th, 2001, with a compliance date of May 4, 2001. At this time I'd like to turn the case over to Assistant County Attorney William Mountford. MR. MOUNTFORD: Mr. Chairman, members of the board, my name is William Mountford, and I'm the assistant county attorney who will be handling this matter today. As of yesterday afternoon at five p.m., I became aware for the first time that prior counsel, Mr. Rankin, will no longer be representing Ms. Maroules in this matter. Preliminarily, maybe Ms. Maroules can come on up front so she doesn't have to sit in the back. I assume that you would prefer that so she can be present for everything. CHAIRMAN FLEGAL: Wherever she's comfortable. MR. MOUNTFORD: I did telephone Mr. Rankin as a matter of professional courtesy, and also I believe -- I think it would be ethically appropriate for me to determine whether or not my -- my being advised that he no longer represented her was true. He chose not to tell me one way or the other because he considered that to be confidential, but I understand he will not be here today. Under those circumstances, I was well prepared to try this as if it was a case of novel impression before you. But I will try to abbreviate that, but I will get the -- hopefully by competent evidence, get the salient facts before you so you know where Mr. Dantini, on behalf of the code enforcement and neighbors, are coming from. But that's -- the issue is excessive bird noises and how it's affected the quality of life of the neighbors. And I don't know if Ms. Maroules would like to add anything to that. And if you want Page 30 October 25, 2001 me to, I can then proceed and present some testimony. I will shortcut it, but not shortcut it enough that I don't think that we at least make the minimal proof. Thank you. CHAIRMAN FLEGAL: Ms. Maroules, would you like to make any type of opening statement, or would you prefer to hear the other side? You need to come over here, ma'am. We'll swear her in as soon as she gets there. (The speaker was sworn.) MS. MAROULES: I elected to not use my counsel because I only sought to settle this matter in a fair and equitable way, and that hasn't happened over the last several months. I engaged the attorney originally because I found the situation so terribly upsetting that I didn't feel like I could deal with it on my own. But it just has been perpetuated and perpetuated. And in a letter that I received the day before yesterday from Mr. Rankin, he was talking about appeals and fines and further Code Enforcement Board hearings. And I -- all I'm looking for is to get away from this problem right now and find some fair and equitable solution to it. I know that I was cited on the 4th of May, and I made a substantial change in what -- the way in which my birds were being maintained at that time. I said, "Well, this is -- I can't be annoying people. If there's a code that I'm violating, I need to make a change." And I moved my birds into my house, and that's where they have been since May 4th. They are my pets, my very much beloved pets, and I allow them to come outside, when I'm at home, for a while. And I think that that's not inappropriate in our neighborhood. And the -- the notice of violation says that I have to remove the parrots from any outside location where they would constitute a continual violation to the noise ordinance. And my property was monitored. I have been harassed. My property was monitored a number of times after May 4th and found not to be in violation. And Page 31 October 25,2001 then again on the -- the 12th of June, there was a reading that was over violation, that my birds were outside in the morning. I let them out in the morning for a few minutes before I go to work, and they just happened to squawk, probably because they saw a stranger on the property. And I -- you know, but I have made substantial changes, and I am concerned. And I just want this matter to be -- to be resolved. CHAIRMAN FLEGAL: Okay. You can sit down, ma'am, and we'll call you back. Thank you. Yes, sir. MR. MOUNTFORD: I'd like to call Mr. Dantini. MR. DANTINI: Good morning, ladies and gentlemen. For the record, Gary Dantini, code enforcement investigator. THEREUPON, GARY DANTINI, a witness, having been first duly sworn, upon his oath, testified as follows: DIRECT EXAMINATION BY MR. MOUNTFORD: Q. Mr. Dantini, what's your present position? A. Code enforcement investigator for Collier County. Q. And how long have you been so employed? A. Approximately four years. Q. Are you a designated code official? A. Yes, I am, sir. Q. Do you have a particular expertise? A. Yes. I have through FACE and also through Larson Davis. Q. And what is your expertise in code enforcement? A. Noise specialist and sign specialist. Q. And you were trained by the county? A. That's correct. Q. And you were also trained by the Florida Association of Page 32 October 25,2001 Code Enforcement? A. That's correct and Larson Davis. Q. And you also were trained on the operation of the machine. And what was that machine called? A. That's a Larson Davis 824 sound meter. Q. And that measures noises? A. It measures sounds, yes. Q. Okay. And you were trained by the manufacturer. A. That's correct. Q. And you were certified by the manufacturer. A. Correct. Q. The machine in question, do you have it with you today? A. Yes, I do. Q. Can you show the board what it looks like? A. It's on the -- on the monitor right now. Q. And that's the full extent of the machine? A. Yes, it is. Q. Does that machine make noise -- A. No. Q. -- when you operate it? A. No, the machine does not make any noise at all. Q. Did that machine disturb the local parrot or macaws that you were observing the noises from? A. It was cockatoos, and no. Q. Thank you. The machine was calibrated by the manufacturer prior to your use? A. Yes. Q. And generally the procedure -- when you use the machine for testing sounds, what do you do? A. We calibrate the -- we check the calibration of the equipment before we make the readings. Page 33 October 25, 2001 Q. And then do you set it up? A. And then we set the equipment up for the reading itself. Q. And how many readings do you do? A. I start with doing an ambient noise, the background noise, without any noise source from a potential violation. And that gives me an idea of what the -- the area environment is as far as noise. Q. Now, directing your attention to what brings us here today, and that is the violation charged to Ms. Maroules, did you, in fact, do a test on May 4th, 2001 ? A. Yes, I did. Q. Would you tell us, was the machine calibrated that day? A. It was calibrated before I went out to the site. Q. And who calibrated it? A. I did that myself. Q. And that's what you were trained to do? A. That's correct. Q. And you went to the site. Where did you go on that day? A. That morning what I did was parked in Mr. Kastner's driveway, which is behind Mrs. Maroules' house. And that's at 174 Flame Vine Drive, I believe it was. Q. Now, let me ask you this: Ms. Maroules's property is at 164 Coral Vine Drive? A. That's correct. Q. Where is that property in relation to the Kastner property? A. It's right behind it. Q. Do they adjoin in the rear yards? A. Yes, they do. Q. And when you went there that day, what time was it? A. It was approximately seven o'clock. Q. In the morning? A. In the morning, a.m. Page 34 October 25, 2001 Q. And when you went there, where did you go? A. Like I said, I parked in Mr. Kastner's driveway and got out of the vehicle and did an ambient reading of the area and then went back into my truck -- at that time the birds had not been put out -- and waited for any kind of sig -- any sounds from the parrots. Q. So this board knows, when you say you were sitting in the driveway, you're not on the rear of the property facing Maroules; you have a -- you have a garage and a house intervening. A. Right. There's an obstruction between it, so there's no visual contact. Q. And when you were sitting in your truck, what happened? A. That's when I observed the noise from the birds squawking. Q. Did you hear them while sitting in your truck? A. Yes, I could. Q. And then what did you do? A. I proceeded to go between the two properties of Mr. Kastner and Ms. Donahoe. And there's a little hedge that's kind of in between the two properties. And I stood behind the hedge, approximately about 70, 75 feet from where the birds were. Q. Where were the birds? A. At that time the bird was in the back lanai on May 4th. Q. Is that screened in? A. Yes, that's screened in. It's a pool, screened in. Q. And was it one or more birds? A. At that time I just observed one bird. Q. And could you tell what kind of bird it was? A. It was a cockatoo. Q. And you were approximately 75 feet away? A. Approximately, yes. Q. On the property of Mr. Kastner and Ms. Donahoe? A. Right. I was straddling the two pieces of property. Page 35 October 25, 2001 Q. And at that point in time, could you still hear the birds? A. Yes, very much so. Q. And did you administrator a test? A. Yes, I did. And at that time there was a reading, and there was a violation. Q. Before you get to that, let me ask you a question. A. Sure. Q. You were at least 50 feet away from the birds; correct? A. Yes. Q. Was the machine at least 3 feet off the ground? A. Yes. Q. Were you at least 4 1/2 to 5 feet from any wall? A. Definitely. Q. Did you need a wind barrier that day? A. No. There was -- there was no wind at all. It was clear and sunny. Q. Did you run the test? A. Yes, I did. Q. For how long a period of time did you run the test? A. The test was run for a minute duration, just over a minute in duration. Q. And as a result of that, did you come to a conclusion after looking at the ambient and second test run at the source? A. Yes. There was a violation. The noise source came to an average over a one-minute period of time of 63.2 decibels. Now, the birds don't have to squawk for a whole minute to come to this conclusion, as far as the ambient noise. If the birds -- excuse me, of the source noise. If the birds squawk and go up to 85, 90 decibels and then drop back down to where the ambient noise is and then go for a few seconds and then squawk again and it's 80, 90 decibels and then comes back down, the machine takes that reading over that one- Page 36 October 25, 2001 minute period of time and averages the highs and lows of that period. And that's how the county has tried to give the benefit of a doubt of a violation, of getting a total average noise over a one-minute period of time instead ofjust taking the spikes of the noise. Q. So tell us, what was the ambient reading that day? A. The ambient reading of that day was 51.3 and -- Q. And what was the second reading? A. And the second reading was 63.2. Q. What constitutes a violation? A. Sixty decibels is a violation, and this was 3.2 decibels above that. And that doesn't sounds like much, but to double a noise is only 10 decibels. So if you hear a noise and you double it, it's only just 10 more decibels. It isn't 60 more decibels; it's just ! 0 more. Q. Did you also have a reading as to the second type of-- Type 2 noises? A. Yes. There was what they call the octave band noise levels, and there was two bands that were in violation also. The octave bands are very -- very precise because you can tell which pitch is making a noise as far as if it's a high pitch or a low pitch. And these happened to be in the higher band range of 2,000 hertz and 4,000 hertz, and they were both in violation of the ordinance. Q. After you did your reading, what did you do? A. At that point, I went to the -- I wrote up a notice of violation to give to Mrs. Maroules and went to her front door. She came to the door. I explained who I was, why I was there. And she said, "Just one moment, please." She went back to the lanai, got her cockatoo, brought it out in the front, put it down on the sidewalk in front of her house where we were talking, and she demanded to see what the octave bands were at that time. And I told her I'd get the machine out and proceeded to assist her in showing how I came about the reading and what the reading was on the machine. Page 37 October 25,2001 The bird kind of walked away, and she got a little hysterical. She wasn't feeling good that day. She had laryngitis. And she went and got the bird, and then took the bird and put it up in a tree and proceeded to become a little bit more upset. Q. At that point did you choose to leave? A. Yes. I said this was not a good time to be talking to her, and I left at that point. Q. Let me ask you this: Was it the same bird that was generating the noise previously read? A. It looked like it was the same bird. Q. Did you leave that day? A. Yes, I did. Q. As a result of that, did you issue a -- any type of notice or-- A. Yes. I went back to the office, and on the -- on May 7th, I sent out a notice of violation to her. Q. You then -- Ms. Maroules just told this board that you were -- she was subject to harassment by you. When was the next time you had an occasion to go back to the area of the Maroules property? A. Well, I went back on May 16th and did -- Q. Did you go on her property at that time? A. No, ! did not go on her property at all. I was at the same location that I was previously on the other readings. I always take my readings at the same location so they become accurate. I did a reading on May 16th, the 17th, the 30th, and at that time -- and also on May 5th. There was -- either the birds weren't there, or there was no violation at that time. Q. Did you go back again in June? A. Yes. I went back on June 12th and did another reading. I got an ambient reading of background noise of 48.1 and also observed a minor violation of 60.7. At that point we don't -- Page 38 October 25, 2001 Q. Is that still a violation? A. That's still a violation. Q. But you didn't charge her with a violation that day, did you? A. No, I did not. But at that day that was -- had been over 30 days since we sent the notice of violation, which had not been signed by her. I had that notice, and I had her sign the notice on that day for the first violation. Q. And then you-- A. So she got her notice of violation. Q. Then did you go back on June 14th? A. Yes. Q. And, again, did you run tests? A. Yes, I did. Q. And, again, did you perform the procedures that are required to administer the tests? A. I did the same procedures as far as checking the calibration and did the ambient reading of 50.3 and also got a violation of 64 at that time. Q. Now, where were you standing when you ran these tests? A. At that same -- same location as I was before. Q. And was there one bird or more birds at that time? A. At that time there was two birds, and they were in a different location. They were put out into a tree to the -- as you're facing the lanai from the back, it would be on the left-hand side. And there was two cockatiels (sic) there. Q. Now, during this course did you have occasion to go on her property to disturb these birds? A. No, I did not. Q. And did your machine disturb these birds while you were running -- A. No. Page 39 October 25,2001 Q. And were you making noises that would attract the birds' attention? A. No. I made no noise whatsoever. Q. And were you able to determine from your observations what type of birds these were? A. Yes. Q. And what were they? A. They were cockatoos. Q. And what was the reading on that date? A. The violation reading was 64.0, and the ambient was 50. And 60 is a violation. Q. Now, during that date, besides administering the tests, did you have any occasion to video or tape what was going on? A. Yes, I did. I have a -- a digital camera that will do 60 seconds of play time with sound, and I -- after I did my readings, I took -- the sample of-- of the reading that I took was done by this camera right here, and we have a video of that. Q. And I ask you, can you play that video for the benefit of the board right now? A. Yes. Could we roll that, please, Mrs. Arnold? The first one that you're hearing is just without any noise. Q. And what's that a picture of?. A. That's a picture of the back yard with the trees. (Videotape is playing.) A. That's one of the spikes that-- Q. Was that the noise that you heard that day? A. Yes. Q. And that noise, is that a fair and accurate representation of the noise that you heard that day? A. Yes. Q. Is that a repeat of it? Page 40 October 25,2001 A. Yes, it is. And there'll be two more. And you'll hear Mrs. Maroules on the last one trying to quiet the birds. She was telling them that she was going to take them in. Q. So that was the noise that you heard when you went that day; is that correct? A. That's correct. Q. Did you also hear these bird noises while sitting in your truck in the front of the property on that date? A. That's correct. Q. And would you say that that was a fair and accurate representation of those noises when you did the first reading on May 4th, 2001 ? A. That's correct. MR. MOUNTFORD: I have nothing further at this time of this witness. If Mrs. Maroules wants to ask him some questions. CHAIRMAN FLEGAL: Ms. Maroules, do you have any questions for Mr. Dantini? We'll ask you first before the board asks him some. If you do, you need to come over here, ma'am. MS. MAROULES: I just wanted to make available -- CHAIRMAN FLEGAL: What I want to know is if you have some questions of what he just said. Anything that he said over the past few moments, do you have any questions about that that you'd like to ask him? You'll get your chance to present. CROSS-EXAMINATION BY MS. MAROULES: Q. Do you know what a macaw looks like? A. I know what a macaw looks like, yes. Q. Okay. Because you didn't hear my cockatoo on the first day. That was the only thing. I did have -- my cockatoos were not outside. A. I observed-- Page 41 October 25, 2001 CHAIRMAN FLEGAL: Okay. That's fine. You can tell us when they were or weren't. Do you have any other questions for him, for Mr. Dantini, about what he has told us? Q. Mr. Dantini, I do have a question about the nature of the noise that -- does -- does the ordinance allow for short, sporadic noises, impulse noises? MR. MOUNTFORD: Objection to that question. I think the ordinance speaks for itself, and it isn't in Mr. Dantini's field to answer that. CHAIRMAN FLEGAL: Explain your question more to me, ma'am, and then we'll see if we want Mr. Dantini to answer it. MS. MAROULES: When I read the ordinance and I read some of the definitions, it defined impulse noises versus continuous man- made noises, and it had a 10 decibel higher limit. The impulse noises had a 10 decibel higher limit than the continuous noises. CHAIRMAN FLEGAL: Okay. MR. MOUNTFORD: By definition impulsive sounds are sounds of short duration, usually less than one second, with an abrupt onset. MR. DANTINI: That would be, like, a gunshot or a -- CHAIRMAN FLEGAL: Pneumatic hammer or something like that? MR. DANTINI: Right. CHAIRMAN FLEGAL: Okay. Does that help you, ma'am? MS. MAROULES: Well, we heard the sounds. I mean, that as clear. CHAIRMAN FLEGAL: Okay. You can-- all I'm interested in is what he's told us. And if you don't have anything else, when your turn comes up you can tell us all that, and we'll take that as evidence. Okay? Okay. Questions for Mr. Dantini from the board? I have some. Page 42 October 25, 2001 MR. PONTE: I have some as well. MR. LEHMANN: Well, stand in line. CHAIRMAN FLEGAL: Right of prerogative. I'll be chairman and go first. On the evidence that has been submitted to us and that you have verbally submitted to us, Mr. Dantini, my questions go this -- in this vein: On May 4th you took these readings, and they were over the limit. And you have told us that you have written up your notice of violation, and you gave a copy to Ms. Maroules on that day? MR. DANTINI: No. I did not give a copy that day. She was very upset, and I -- CHAIRMAN FLEGAL: You didn't give it to her. You spoke to her, but you didn't give her the notice. MR. DANTINI: That's correct. That was not the time to do that. CHAIRMAN FLEGAL: Okay. Now, you sent her a notice, this notice, dated May 7th. In your notice that you wrote up on May 4th, you told her to correct May 4th, but you didn't send it to her until May 7th. Kind of odd that you'd tell somebody to correct something three days -- you know, you mail it three days later. That bothers me a little bit. But then you told her to correct May 4th. Did you go back any time on May 4th other than your initial visit to see if she corrected? After you faced her and told her that there was a noise problem, did you go back later that day? MR. DANTINI: No, I did not. CHAIRMAN FLEGAL: Did you go back the next day? MR. DANTINI: No. The last -- the next time I went back was May 16th. CHAIRMAN FLEGAL: Was there any noise? MR. DANTINI: At that time, no. CHAIRMAN FLEGAL: So she basically corrected. You told Page 43 October 25,2001 her to correct. You went back on the 16th, and there was no noise, so obviously she did what you told her. I have to assume -- MR. DANTINI: On that day, yes. CHAIRMAN FLEGAL: Okay. MR. DANTINI: On that day. CHAIRMAN FLEGAL: All I'm interested in is on the 4th you find a violation. You visit her face to face. You wrote up a notice and told her to correct it. You went back and there was no noise. Am I correct so far? That's what your documents state, and that's what you've said. MR. DANTINI: That's correct. CHAIRMAN FLEGAL: Okay. Now-- MS. GODFREY-LINT: Mr. Chairman. I'm sorry. Mr. Chairman, May 4th was on a Friday, so it was Saturday -- CHAIRMAN FLEGAL: They work Saturdays. MS. GODFREY-LINT: Do they? Okay. Excuse me for interrupting. I apologize. CHAIRMAN FLEGAL: That's all right. Now, the next time you heard the noise was June 12th, but it was so low that it was a date that, you know, it's -- I think what you said is it was such -- low and your records state that you didn't write it up because it was just a shade -- MR. DANTINI: A shade over, yes. CHAIRMAN FLEGAL: Okay. So then the next, quote, noise was June 14th. MR. DANTINI: That's correct. CHAIRMAN FLEGAL: And that's when these birds were in a tree. MR. DANTINI: That's correct. CHAIRMAN FLEGAL: Okay. And they were her birds? You know that for a fact, or you just think they were her birds? Page 44 October 25, 2001 MR. DANTINI: They didn't have a license on them. CHAIRMAN FLEGAL: Okay. What I'm trying to find out is, you know, there are -- I've seen parrots in Collier County flying around. So I'm trying to get to, were they her parrots? MR. DANTINI: It looked like the one that I saw on the 4th that she had handled and brought in the front of the house. It looked like the one. They're white. CHAIRMAN FLEGAL: Okay. MR. DANTINI: And so it's difficult to distinguish them. CHAIRMAN FLEGAL: That's my questions. Let's try to go down in some semblance of order. How's that? We'll just walk down the line. MS. DUSEK: If I might just make a comment to what Cliff just said. In defense of the county, when you have noise, it's not always there every single day. So I don't think the violation of May 4th and the fact that he sent it out later is -- is really an issue. I wanted to ask you, how does the ambient noise factor in to your decision on the noise level? MR. DANTINI: It's a good question. The ambient noise has to be at least a minimum of 5 decibels below the source noise or violation. And if not, then you have to make corrections for-- for that. If it gets close to 3, then the ambient noise and the source noise become null and void, and there is no violation whatsoever. But since this was 10 over, then there was no correction needed to be made for -- between the ambient and -- and the source noise, and so it becomes a pure noise that we can take the reading and use it as a -- a good violation. MS. DUSEK: Okay. And my other question is, what was the longest period of time that you heard the noise, the bird noise? Were you there for five minutes and you heard it for five minutes straight, or was it two minutes, one minute? Page 45 October 25, 2001 MR. DANTINI: Well, no. I was probably there approximately 20 minutes total, and of all that time, the birds were squawking on and off. MS. DUSEK: For that 20-minute period. MR. DANTINI: Right, for that 20-minute period, they were out, that I saw. MR. PONTE: Investigator, when you were being trained to operate the device, did they mention to you that there was a high- frequency, nonaudible signal which could be emitted by that device? MR. DANTINI: No, they did not. MR. PONTE: Like a dog whistle? MR. DANTINI: No. They didn't mention that at all. It just takes in noise. It doesn't emit noise. MR. PONTE: I'm confused by a lot of these numbers, and I'd like to just look at page 16 for a point of clarification for me. If I'm reading it correctly, the running time on the machine -- this was on the May 4th read -- was a minute and seven seconds. MR. DANTINI: That's correct. MR. PONTE: And there are three violations there where it spiked above; that is, the one opposite the 1600, 2,000, and the one at 4,000? MR. DANTINI: I just marked the 2,000 and the 4,000. MR. PONTE: So is the violation like a dog bark? In other words, it's just (indicating); it lasts but a millisecond? MR. DANTINI: No. A dog bark does last a very short period of time, but as you notice from the -- the sample, that they squawk, squawk, and it goes from low and then builds up to a higher pitch and then drops back down again. So it isn't as if-- a dog can't hold a bark for a long time, where a bird can sustain that for quite a while. MR. PONTE: But during the course of the minute and seven seconds of this run, there were, perhaps, three seconds of actual Page 46 October 25, 2001 violation, even though the machine averages it. MR. DANTINI: No. No. There was a lot more than three seconds of violation, definitely. MR. PONTE: What would you say? MR. DANTINI: I would say between the squawks there was maybe -- well, let's put it this way: There was probably a total of 10, 15 seconds of violation. MR. PONTE: Fifteen? MR. DANTINI: Yeah, in that-- MR. PONTE: And you were -- when you took your readings, you were how -- how distant from the birds? MR. DANTINI: Approximately 70 to 75 feet away. MR. PONTE: Thanks. MS. TAYLOR: Mr. Dantini -- MR. DANTINI: Yes, ma'am. MS. TAYLOR: -- I don't call them squawks; I call them screams. I had a macaw. It was my son's, and I lived with that bird for about six months, and it's enough to curdle your blood. Those screams just make your hair stand on end. I don't care how short it is, and I don't care how long it is. And when they get tuned up, I'm telling you they go on and on and on, and you can hear them for blocks. MR. DANTINI: Yes. I agree with that. MS. TAYLOR: It's not a squawk; it's a scream. MS. GODFREY-LINT: Mr. Dantini, the last one, where Ms. Maroules was yelling at the birds, that was a cockatoo; is that correct? MR. DANTINI: That's correct. MS. GODFREY-LINT: Because I owned one, and that was a temper tantrum scream. I owned one, and he that was -- he was throwing a temper tantrum, he or she was, and you can hear them Page 47 October 25, 2001 outside the house. CHAIRMAN FLEGAL: Let me get one more question on this side. MS. CURATOLO: I have a question. Could the squawks have been precipitated by your actions, in your opinion? MR. DANTINI: No. I did not move. I did not do anything. I was standing still. There was durations of time that there was no squawks at all, none -- MS. CURATOLO: Could the birds see you? MR. DANTINI: -- whatsoever. I don't know how good their vision is, but it's possible they probably could see me, at least my upper part of my body. But they had squawked like that before they saw me because I was approximately -- oh, I would wait about five minutes listening to the birds before I would go back there and do the reading so that there wouldn't be anything interfering as far as whether I was the cause of it or if there was other circumstances around the area that would cause that. MS. TAYLOR: Well, just seeing a bird makes them take off, anything. CHAIRMAN FLEGAL: Peter, you had some questions? MR. LEHMANN: Yes. Investigator Dantini, you said you calibrated your equipment. MR. DANTINI: I checked the calibration, yes. MR. LEHMANN: Okay. And you calibrate that each day; is that correct? MR. DANTINI: Each time that we use the equipment, yes. MR. LEHMANN: How do you do that? MR. DANTINI: On the system itself, there's certain procedures you go through as far as get to the check point of calibration. You have a calibrator, which is like a-- it's an electronic tuning fork. It's approximately the same thing that they do for radar detectors. And Page 48 October 25, 2001 you put it on the end of the microphone, and you turn it on, and the machine checks the calibration of what's on here and the frequency that's in the -- on the calibrator itself. MR. LEHMANN: Okay. And how often does this calibrator need to be calibrated? MR. DANTINI: Well, we do it every time that we use the equipment. MR. LEHMANN: You calibrate the calibrator or your equipment? MR. DANTINI: Oh, the calibra-- I'm sorry. The calibrator is once a year. MR. LEHMANN: Okay. And that is certified? MR. DANTINI: Yes, it is. MR. LEHMANN: And your certification is current in that? MR. DANTINI: That's correct. MR. LEHMANN: Next question, the code section that -- that we have referenced in the violation, this is Section 6, paragraphs 1 and 2 of Ordinance No. 2000-68. I'm assuming that you're referencing Section 6-B-1 and 2, is that correct, or is it A-1 and 2? MR. DANTINI: I'm sorry. I'd have to take a look. MS. DUSEK: I have that same question. MR. DANT1NI: B. MR. LEHMANN: He references Section 6, paragraphs 1 and 2 of the ordinance, and I'm assuming that means Section 6-B-1 and 2. MR. DANTINI: That's -- that would be, yes, B-1. I'm sorry. MR. LEHMANN: Okay. And in this ordinance, as I read the preamble to the ordinance if you go to page 10, the second "whereas," it is referring to man-made sounds, not animal-made sounds. MR. DANTINI: Well, I understand what you're saying there, but if you read the first paragraph of the -- or first sentence of that, it Page 49 October 25,2001 says no sound shall violate any sound standard provision of this ordinance unless the offending sound exceeds the then existing ambient noise (sic) level of at least 5 decibels from Table 1. MR. LEHMANN: And where are you referencing that from? Which part of the ordinance are you looking at? MR. DANTINI: That's on 1, B-1. MR. LEHMANN: B-1. MR. MOUNTFORD: If I may be heard -- MR. LEHMANN: I understand what you're saying. MR. MOUNTFORD: If I may be heard on the issue of the applicability of 2000-68 to the issue of man-made -- I believe that's where your driving force is. MR. LEHMANN: Yes, sir. MR. MOUNTFORD: Sounds by animals, I think that -- as this board is well aware, that the original ordinance involved in this was 90-17. And in that ordinance it talked about not -- it didn't make a distinction between man-made. It made -- it was directed towards the elimination, regulation, and restrictions, sources and occurrences of noise at decibel levels which are contrary to the public health and welfare. That ordinance was amended in 1993 by 93-77, and it changed nothing in there, but it added and, slash, or amplified sounds, which leads me to believe that the ordinance -- the purpose of it was it increases this board's ability to render a decision, not to decrease it. So it added to your natural noise or sound, amplified sound. And then again in 2000-68, it seems to me that it reaffirmed what it did in 90-17 and 93-77 by adding over and above the area that you were concerned with or Mr. Dantini referred to, and that is no sound shall violate the standard provisions of this ordinance unless -- and then that's section 6-B-1. So that's -- I would just like to point out that I think that the Page 50 October 25,2001 purpose of the ordinance was to expand this board-- or anyone who's hearing a violation of this concern and not restrict it to amplified sounds. And I just offer that to you for your consideration. MR. LEHMANN: Okay. Thank you. Mr. Dantini, again, we talked about birds. We talked about dogs, in essence. How do you differentiate between a bird noise versus a dog noise, for instance? Are you saying one is an acceptable noise whereas one may not be an acceptable noise, or how do you differentiate that? MR. DANTINI: No. The differentiation of that would be that one is more constant than the other, and that's the difference that we come up with as far as -- a barking dog has a short duration. The bird is -- has an elevated noise that will go up and then come back down and then go back up again. So it's more of a readable source that you can take. It's a more constant noise. MR. LEHMANN: Okay. And, again, the code that you referenced does, in a sense, give the respondent the benefit of the doubt in your recordings because you average your sounds. MR. DANTINI: That's correct. If we spiked it, it would be up in the 90s on some of them, as far as decibel readings. MR. LEHMANN: And were those actual readings for the time that the bird was making noise? Did you actually get in the 80-to-90 decibel range? MR. DANTINI: Definitely. MR. LEHMANN: And that is quite a difference from 60. MR. DANTINI: Yes, it is. That's why they average it out so that there is that benefit that goes to the assumed violation. MR. LEHMANN: Okay. MS. SAUNDERS: Mr. Dantini, when we talk about the birds being outside in a tree, that is outside the lanai area? MR. DANTINI: Yes. She puts them outside. MS. SAUNDERS: Okay. And just one other question. You've Page 51 October 25,2001 made one, two, three -- six or seven trips, I guess, to measure the sound levels and stuff. Is that consistent with a noise violation normally, to go back several times? MR. DANTINI: Well, under these circumstances, what I did was -- to be fair with everybody, was that I went out and did it without anybody knowing that I was going to be there so that there wouldn't be any prejudice whatsoever as far as when I read it and how I read it and that I was trying to be fair to everybody, the neighbors and for Mrs. Maroules. MS. SAUNDERS: Okay. Thank you. MR. PONTE: One question, Investigator. Did you take any readings when the birds were not in sight? MR. DANTINI: Yes, I did that. MR. PONTE: And when was that, and what sort of readings did you get? MR. DANTINI: Those were -- in my May readings -- like, for instance, on May 16th there was no birds. They -- the ambient background noise at that time was 49.8, 49.5. So it was very consistent as far as the ambient noise for that area because there's traffic in the morning, and it picks up everything. There's also construction of the golf course. It picked up that background noise, the rumblings from the equipment, the backup whistles, things like that. So it was a true and accurate -- I wanted to make sure I got a true and accurate ambient background noise, whether there was other birds in the area. This is why I kind of like to go kind of in stealth and -- and take the readings without anybody knowing that I'm there. MR. PONTE: Did you get a violation reading when the birds were not in sight? That's what-- MR. DANTINI: No. Not even close. MR. PONTE: So we can assume the birds were then indoors or -- because they were out of sight? Page 52 October 25, 2001 MR. DANTINI: Assuming, yes. And this is what I told Mrs. Maroules. This was a very easy violation to eliminate, and that would be to keep the birds inside. MR. PONTE: Thank you. CHAIRMAN FLEGAL: Maybe a point of clarification, Mr. Dantini. MR. DANTINI: Yes. CHAIRMAN FLEGAL: The original citation-- I need to go back to this because I think it's important -- was May 4th, and you made three trips where there was no noise on May 16th, May 30th, and June 5th. MR. DANTINI: On the -- at that time, yes. CHAIRMAN FLEGAL: Okay. And then on June 12th you found some noise, and on June 14th a fair amount of noise over the limit. MR. DANTINI: Right. CHAIRMAN FLEGAL: And in your statement of violation, as you state, when it was first observed was May 4th, and then you were giving notice on May 7th, and violation to be corrected May 4th. And you reinspected June 14th, and you say violation remains. You make no comment that it obviously had been corrected on May -- three dates. Is it consistent that what code enforcement does is somebody gets this notice and they solve the problem, that you go back 39 days later, and it's again -- you really don't consider that they've solved the problem? MR. DANTINI: Not if they leave the birds back out and it violates again. See, one thing about the bird noise, it isn't like garbage or anything else. It's an irreversible violation. In other words, once the violation happens, it's a violation. There's nothing you can do. CHAIRMAN FLEGAL: I understand that. My point is, you Page 53 October 25,2001 asked for something to be done and went back and checked, and there was no noise. So I'm looking for -- you're saying now that whenever you go back out, to infinity, there's still a violation. It's not a new violation? I mean, because she obviously did correct. The noise went away. MR. DANTINI: Well, any time that you put the birds inside, it's -- like I said, it's a irreversible type of violation -- it's going to correct it at that time. The thing was that I've had discussions with the neighbors, and the neighbors were always in contact telling me that the birds are out or that -- I would call and ask them if the birds had been out and if they've squawked some more, and they said, "Yes. What are you going to do about it?" dah, dah, dah, dah, dah. And that's when-- CHAIRMAN FLEGAL: What I'm looking for is -- and trying to get enough information is, if we were to -- to, in fact, find a violation and look for a way to correct it, by what you're telling me and what I'm seeing, there almost is no way to correct this. MR. DANTINI: Yes, there is. They leave the birds inside, and that'll correct the problem. They won't -- they won't have the ability to go outside and squawk and make another violation. That's -- the easy correction on it is keep the birds inside so they don't squawk. MR. LEHMANN: If this board orders that the respondent were to keep the birds inside as the order of the board and the respondent decides one day to put the birds outside again, is that a new violation? Is that a continuation of this violation? I think that's what our chair is trying to get to. MR. DANTINI: Sure. Only if the birds go above the 60-decibal level over a one-minute period of time, if it's read that way. MR. LEHMANN: Again, is that a new violation or a continuation of this violation? CHAIRMAN FLEGAL: Well, the way they think, it would be Page 54 October 25,2001 MR. MOUNTFORD: It would be a reoccurring. MR. LEHMANN: It would be a repeat violation. CHAIRMAN FLEGAL: So -- but, in essence, in putting these birds -- if that was the solution, and I'm still not convinced -- in the house, if the door's open to the lanai -- and I don't know her house, but let's say she has a big slider-- and they're sitting in the house and squawk and you take a reading and it's above, we haven't solved the problem. So now we're telling somebody you not only have to keep your pet inside, but you have to keep all your doors and windows closed. MS. TAYLOR: Well, if this is making people suffer -- I don't care if they're two blocks away -- we have to consider this. And it's suffering, believe me, to listen to one of these birds. You've got to take this into consideration, Cliff, and you're just way over. You're not thinking about the people who are suffering from this noise, and it is definitely a noise, big time. CHAIRMAN FLEGAL: What I'm doing is looking for information of how we might solve the problem without putting undue duress on somebody else too. Okay. Thank you, Mr. Dantini. Any other questions for Mr. Dantini? MR. MOUNTFORD: Yes. I have a few by way of follow-up. REDIRECT EXAMINATION BY MR. MOUNTFORD: Q. Mr. Dantini, one of the allegations or defenses here is that -- is the fact that maybe your presence alone aggravated these birds to make the noise. Did you hear these bird noises when you were sitting in your truck around behind the house or in the front of the house? A. Yes. I had stated earlier that there was a time that I waited, like, five minutes listening to the birds without my presence at all. Page 55 October 25,2001 Q. And when you ran these readings on these various occasions, you did not have occasion to go on her property or make noises to disturb these birds, did you? A. No. Q. In fact, you were on the adjoining property owner's property making no noise whatsoever other than standing. A. That's correct. Q. And the birds still made the noise. A. Correct. Q. And the other area, I guess, I was concerned about, the quality of this machine. Does the machine that you use meet the standards of the noise ordinance? A. It exceeds it. We're required to have Type 2 as a minimum. This is Type 1 equipment, so it's far more accurate. Q. And this machine was purchased in February of 2001 ? A. That's correct. Q. And it was calibrated by the manufacturer at that time. A. Yes. Q. And it's well within a year when these tests were done; is that correct? A. That's correct. Q. And when you went back on those other occasions, were the birds out every time? A. Not every time, no. Q. So there would be no bird noise when there was no birds there on May 5th and May 6th; is that correct? A. That's correct. Q. And to clarify, why did you not give Ms. Maroules the notice on the day of May 4th, 2001, instead of waiting until May 7th to mail it? A. Because she was very, very upset. Page 56 October 25,2001 Q. Describe how she was upset. A. Well, she got to the point where she was -- went to the -- the front yard and was down on her hands and knees and was in hysterics at that point and -- Q. Did you think it was appropriate at that time to leave? A. Yes. Q. Thank you. CHAIRMAN FLEGAL: Mr. Dantini, just to get some volume levels here because -- to make sure everybody understands the noise level, what's the -- have you ever done the noise level on somebody that might have a motorcycle parked in their driveway? MR. DANTINI: No, not at all. CHAIRMAN FLEGAL: So you don't know whether that's over the level or not or -- you know, when they start up and -- MR. DANTINI: We don't do motor vehicles that are under the manufacturer's recommendation as far as muffler-wise. If it did not have a -- excuse me. I did do an airboat. How about an airboat? CHAIRMAN FLEGAL: Whatever. MR. LEHMANN: We're looking for something to tell us -- CHAIRMAN FLEGAL: We're trying to get some kind of-- MR. DANTINI: Sure. CHAIRMAN FLEGAL: -- feel here. MR. DANTINI: Yes. The airboat was a violation because it was nonmuffied, and -- but it did not exceed what the -- the birds did. If you look at your -- a violation of, say, May 4th or even -- well, we'll just use May 4th. You'll see under -- just above the date in the center where it says May 4 and it says 7:35 -- CHAIRMAN FLEGAL: Right. MR. DANTINI: -- if you go above that and you'll see the Ln start. The Ln's give you an idea of what the highest and lowest reading was in that duration, and one of them was 99.0. And 99.0 is Page 57 October 25,2001 quite loud. That tells you what the highest spike was for that time. MS. DUSEK: Did I understand you to say that in comparing it to the airboat sound, that this was louder? MR. DANTINI: Yes. CHAIRMAN FLEGAL: Okay. I was trying to get a -- some kind of feel so that-- MR. PONTE: Can I try one more? MR. DANTINI: Sure. MR. PONTE: Compare it to a barking dog. MR. DANTINI: Well-- MR. PONTE: What would -- what would that spike at? An airboat's 99 or 89. A barking dog -- MR. DANTINI: It wouldn't come close -- a barking dog would not come close because of the -- the frequency of a dog bark is much lower than what a frequency of a bird squawk is. MR. PONTE: So the -- it's -- what you're measuring, too, is sharpness, not just loudness. MR. DANTINI: Yes. Also, you know, it does the whole frequency range from the lowest to the highest, and the highest are the ones that are the most annoying that we get most of the complaints on. MS. TAYLOR: A bird's scream is piercing. It goes right through your brain. CHAIRMAN FLEGAL: Any other questions for Mr. Dantini? Thank you, sir. MR. DANTINI: Thank you very much. CHAIRMAN FLEGAL: Ms. Maroules. MR. MOUNTFORD: I have additional witnesses if you-- CHAIRMAN FLEGAL: Oh, I'm sorry. Give us a moment. We have some more witnesses on the county's side, please. All right, sir. Sorry. Page 58 October 25,2001 MR. MOUNTFORD: Mr. Ascolese. THEREUPON, JOSEPH ASCOLESE, a witness, having been first duly sworn, upon his oath, testified as follows: DIRECT EXAMINATION BY MR. MOUNTFORD: Q. Mr. Ascolese -- am I pronouncing it correctly? A. Yes, you are. Q. Where do you reside? A. I reside at 159 Flame Vine Drive. Q. And where is that in relation to the Maroules property? A. It is one house over from behind her. Q. And you have adjoining rear yards versus front yards; is that correct? A. Yes, we do. Q. And how long have you lived at Flame Vine Drive? A. Twenty-three years. Q. How long have -- in your opinion, have you had a bird noise problem? A. Almost 4 years, 3 1/2 to 4 years. Q. And when did it start? From what area, I should say? A. It started from behind my house. Q. And can you identify specifically from behind your house, where behind your house? A. Mrs. Maroules' -- I hope I'm pronouncing that right -- lanai. Q. And that was 3 1/2 years ago? A. Yes, it was, maybe more. Q. And that's been ongoing since that time? A. It's been a daily torture. Q. And when you say "a daily torture," on a daily -- on a given Page 59 October 25,2001 day when you would hear noises coming from her property, when would they generally occur? A. Sporadically, morning, noon, and night. Usually early in the morning, as early as six o'clock in the morning, seven o'clock in the morning, whatever, until it got dark. Q. And you don't mean it would persist for eight or nine hours, do you? A. I have a tape recording of Memorial Day 2000, which the birds squawked for almost five hours. Q. Well, we'll get to that in a moment. But I want -- A. I just wanted to tell you that it does last. The durations do vary. Q. I want you to tell this board that you -- about the noise problem as you perceive it. And it's been ongoing for a period of years; is that correct? A. That's correct. Q. Now, so they have some perspective, on a daily basis when you hear a noise problem generally over the period of time, when would the noise occur; morning, noon, night or-- A. Usually morning and evenings and sometimes in the afternoon. Q. And how long in the mornings would they last? Was it dependent upon anything? A. It varies. I've kept records for three months at the request of animal control. Q. Are they the records -- A. You have them here. Q. -- that I made part of this packet and that -- A. Okay. You have them. But to make it quick, I have 7:30 to 10:00 in the morning, 8:30 to 9:00 in the morning. Here's one 7:30 to 8:47. It just -- it can vary from minutes to hours. Page 60 October 25,2001 Q. Well, you were here for Mr. Dantini's testimony about May 4th and June 14th -- A. Yes. Q. -- of the year 2001. A. Yes. Q. Have you heard the noises since May 4th, 2001 ? A. Absolutely. Q. On an ongoing basis? A. On a daily basis. Q. Every day? A. Except when she was away on vacation or something, maybe a week it would stop. Q. And you can testify that the birds are hers as distinguished from wild birds flying in the neighborhood? A. Oh, absolutely, yes. After 3 1/2 years, I think you know. Q. Now, they don't know this -- A. Yes. Well-- Q. -- so that's why I have to ask you. A. -- let me tell you. I know that these are her birds. I've gone to the edge of my property. I've observed them while they are screeching and wailing away. Q. Now, with regards to the noise that they make, at what portion of your property can you hear these noises? A. I can hear them from my kitchen with the windows closed. Q. And does -- can you hear them while you're outside, obviously? A. Absolutely, yes. Q. And in what way does it disturb you? A. It disturbs me when I try to watch TV, whether I'm talking on the telephone, whether I'm eating dinner or breakfast, whatever. It disturbs me in my house. It has completely taken the enjoyment of Page 61 October 25,2001 having company sit out on my lanai. Q. Why? A. You can't even hear yourself talk to the other person. You can't hear what they're saying, nothing. It's that loud and that screeching and that irritating that it's just -- I can't conceive why nobody has done anything about this up to this point. Q. Now we're getting afield, but let me just ask you this to leave it un -- it doesn't go unanswered: Did you try to do something in the past in a different venue, so to speak? A. Well, I notified -- Q. Domestic animals. A. First of all I started out with-- CHAIRMAN FLEGAL: Excuse me. Excuse me. We're interested in what happened from May 4th to now. What has happened in the past or didn't happen -- we're here from May 4th forward. Prior doesn't interest us. MR. MOUNTFORD: I'm getting to it right now. A. The same thing happened. It's gone on and on and on. Q. Mr. Ascolese, May 4th, you heard Mr. Dantini testify as to his being on the property that day and running -- A. Yes. Q. Were you present that day? A. Yes, I was. Q. And on that date do you know whether or not the birds were disturbing to you? A. They woke me up that morning, seven o'clock in the morning -- approximately seven o'clock in the morning, because I remember it well. Q. And you listened to his tape of the sounds that he did on June 14th, 2001; is that correct? A. Yes. Page 62 October 25,2001 Q. And would you say that that was a fair and accurate representation of the noise that you could hear? A. Yes. Q. And it was an -- ongoing for years; is that correct? A. Absolutely. Q. Now, on May 4th you were present, and the noise disturbed you; is that correct? A. Yes. Q. Since May 4th did you ever-- were you ever disturbed by bird noises at any other time up to the present time? A. Before or after? Q. Since May 4th. A. Since May 4th, yes. Q. Has she corrected the problem-- A. No, she-- Q. -- and kept the birds inside? A. -- has not. The times vary during the day. She has been more careful at what period of day she's put them out -- Q. When they're-- A. -- but they still are very irritating. Q. When they're outside. A. Yes. Q. But when she keeps them inside, you don't have the problem; is that correct? A. I hear them faintly. I mean, that might be one solution. It may be the only solution without her having to get rid of the birds. Q. Before we get to the solution, we have to -- A. Yes. Go ahead. Q. The board has to make a determination as -- A. I'm just saying -- my point is when she does keep them inside, it's livable. Page 63 October 25,2001 Q. Thank you. Now, you submitted an affidavit which I put as part of the packet, and I'm showing you -- it was an affidavit of complaint; is that correct? A. Yes. Q. And that was a recording made by you or a writing made by you for a three-month period when you thought that the noise level was excessive; is that correct? A. That's correct. Q. And was that truthful at the time it was made? A. Yes, it was. Q. And is there any difference between what the noise is now and the noises when you made this in March of 2001 ? A. Duration-wise; loudness, no. Q. And on your own did you find it necessary to tape these birds at some point in time? A. Yes, I did. Q. And did you bring that tape recording with you? A. Yes, I did. Q. And would you please -- do you need to set that up? A. I can just plug it right in for you if you'd bear with me here. CHAIRMAN FLEGAL: This is noise from what point in time? MR. ASCOLESE: This was -- MR. MOUNTFORD: I will -- BY MR. MOUNTFORD: Q. You made this tape; is that correct? A. Yes, I did. Q. And where did you make the tape? A. I made this tape from my lanai behind my house. Q. And when did you make this tape? A. The year 2000, Memorial Day weekend. I remember it well because I have a birthday that we were celebrating. Page 64 October 25, 2001 Q. And if I may ask-- MS. MAROULES: I object to-- CHAIRMAN FLEGAL: Something that happened in 2000 doesn't interest us. We're dealing with May 5th -- May 4th of this year. There was no citation from the year 2000. MR. ASCOLESE: That's up to you. It was similar to -- MR. MOUNTFORD: I was going to-- MR. ASCOLESE: -- Mr. Dantini's tape. CHAIRMAN FLEGAL: We're not interested in information prior to that time. MR. ASCOLESE: Well, I don't know why you don't want to hear it because it's -- CHAIRMAN FLEGAL: Sir. MR. MOUNTFORD: Mr. Ascolese, please. The purpose of the tape, Mr. Chairman, is to have testimony establish that that is a fair and accurate representation of the same or similar noises that occurred on May 4th and since that time. CHAIRMAN FLEGAL: We've heard the birds. Mr. Dantini had a video for us. We've heard it. We don't need any more noise from the year 2000 or the year-- you know, whatever. MS. TAYLOR: I wanted to hear it. CHAIRMAN FLEGAL: It's not relevant. MS. TAYLOR: It is relevant. Those birds' voices have -- CHAIRMAN FLEGAL: It is not relevant -- MS. TAYLOR: It is relevant. CHAIRMAN FLEGAL: -- because the citation -- MS. TAYLOR: It is relevant. CHAIRMAN FLEGAL: -- is May 4th of this year. MS. TAYLOR: Same sounds. MR. ASCOLESE: Could I state something? This is the seventh time I've been to the courthouse area: Twice in Judge Turner's Page 65 October 25,2001 courtroom in the last year and a half, three times requested by animal control to be there when the fines were given out down in the fine room, and twice here. It adds up to seven, and we are going on being daily tortured. I have to leave my house it's so bad sometimes. Company, you can't have a dinner. You can't entertain. Why has this been allowed to go on? I don't care if you listen to the tape because it's very similar to -- CHAIRMAN FLEGAL: You're asking the wrong people. We're here to deal with a citation of May 4th of this year, period. MR. ASCOLESE: Okay. CHAIRMAN FLEGAL: That's what this board's power is, a citation presented to it. The citation is May 4th, 2001. MR. ASCOLESE: Okay. Except-- BY MR. MOUNTFORD: Q. The noise that you heard on May 4th, 2001, is the same or similar to the noise you heard when you made this tape in the year 2000 -- A. Yes. Q. -- on Memorial Day weekend? A. Yes. Q. And are you testifying that when you heard the noise on May 4th and on June 14th, 2001, it was the same as on your tape? A. It wasn't as loud as what's on my tape. That was just a baby thing. This is the real stuff. Q. The tape is different than the video one that you heard from Mr. Dantini? A. My tape is different than his? Q. I'm asking you. The noise that you hear when you're on your property, on May 4th-- A. Yes. Q. -- was it disturbing to you? Page 66 October 25,2001 A. Absolutely. Q. Did it disturb the quality of your life? A. Yes. Q. Was it as loud as his videotape showed or louder? A. Mine is louder. Q. Yours doesn't count if it's not the same as what you heard on May 4th. That's what rm trying to ask you. Is it the same noise -- A. It's the same noise, the same type of noise, yes. MR. MOUNTFORD: Again, I would offer it for the board's consideration if there's an issue of whether or not there was duration of the loudness and the extent of the loudness in terms of the violation. That would be my offer of proof at this time as to that tape. MS. SAUNDERS: Mr. Chairman, as somebody who's not familiar with these sounds, I would find it helpful to hear it again. CHAIRMAN FLEGAL: Okay. You're going to listen to something that's over a year old, played on a different machine that we don't know how it was recorded, the level of the machine playing it. It really is not, quote, a true representation. MS. TAYLOR: It's bird sounds. CHAIRMAN FLEGAL: It's just a bird sound that you could probably go and buy in a video store, and you'd hear a bird. MS. TAYLOR: I find that totally-- MS. DUSEK: We have to accept his testimony that it is correct and that it is -- CHAIRMAN FLEGAL: If you want to hear something from a year ago, that's your privilege. MR. MOUNTFORD: I'm offering the tape based on his verbal testimony. MR. ASCOLESE: Excuse me. It's only -- I could play it for 15 seconds, and you would get the point. I mean -- Page 67 October 25,2001 MR. LEHMANN: Mr. Chairman, I think-- MR. PONTE: I think the introduction would be prejudicial in that we're emotionally involved with this, and we can assume the sounds are unpleasant. It's not within the framework of this particular case, and we have heard a recording that reflects what we're looking at. And I think if you look at what you hear, tapes made a year ago just exacerbate a prejudicial possibility. MS. TAYLOR: But let-- MR. LEHMANN: I agree with my colleague. MS. TAYLOR: I'm telling you-- MS. RAWSON: If I can suggest something, we have had a motion from the attorney for the county that you listen to the tape. I don't think there's any question that it's credible evidence in terms of this is the man who tape-recorded it on that date, and that's what he heard on that date. Whether or not you want to hear it is up to you. There's been an objection from the respondent that you hear it. There's been discussion among some of you that you don't think it's relevant. I would suggest you take a vote whether or not to hear it or not. MS. TAYLOR: I vote that we listen to it. CHAIRMAN FLEGAL: Would you make -- MS. DUSEK: May I just ask before I -- before I vote on this, is this sound that you're -- that you have on that tape the same sound that you heard a week, two weeks ago, a month ago? MR. ASCOLESE: I heard it last Saturday evening. MS. DUSEK: And it would be the same? MR. ASCOLESE: The same thing, same thing. And it's very it's not a big deal because it's very similar to Mr. Dantini's tape that he had, the screeching sounds. It sounds like screeching brakes. MS. SAUNDERS: I move that we hear the tape. MS. TAYLOR: I second it. Page 68 October 25, 2001 MR. PONTE: I would move that we rehear Mr. Dantini's tape if you want to hear it again. CHAIRMAN FLEGAL: We have a motion and -- I assume from Rhona, and a second by Diane to let the tape be played. Is there any further discussion? I think it is irrelevant, personally. All those in favor signify by saying aye. MS. SAUNDERS: Aye. MS. GODFREY-LINT: Aye. MS. DUSEK: Aye. MS. TAYLOR: Aye. CHAIRMAN FLEGAL: One, two, three, four. MS. TAYLOR: Five. CHAIRMAN FLEGAL: Where's the fifth one? MS. TAYLOR: Me. CHAIRMAN FLEGAL: One, two, three, four. MS. CURATOLO: For the record, I'm not voting. CHAIRMAN FLEGAL: You're not voting. Yes. You're not a member. There's seven of us. All those against? MR. PONTE: No. CHAIRMAN FLEGAL: No. MR. LEHMANN: Nay. CHAIRMAN FLEGAL: Okay. Four to three. Play the tape. (The tape was played.) BY MR. MOUNTFORD: Q. Now, Mr. Ascolese, let me clarify something, if I may, with you. That tape that you made Memorial Day weekend of 2000, it was done on your lanai? A. Yes, it was. Q. Coming to the time present, since May 4th and this period of time, is that a same or similar noise that you hear when you're on your lanai or in your house when those birds are squawking? Page 69 October 25, 2001 A. Yes, it is. Q. Is it the same length, or is it -- I -- differentiate between loudness and the duration of loudness. A. Duration is -- it varies. The loudness is approximately accurate and the same. Q. Now, the loudness is the same; it's just the length of time; correct? A. That's correct. Q. And would you say on May 4th that was the same noise that you heard except for maybe the duration? A. Yes. Q. And since May 4th have you heard that noise again? A. Absolutely. Q. And from the Maroules -- the property-- the birds on that property. A. Yes. Q. Thank you. CHAIRMAN FLEGAL: Sir, I have a question. Since May 4th you say you've heard that noise. MR. ASCOLESE: Yes. CHAIRMAN FLEGAL: Have you called the code enforcement department and reported it? MR. ASCOLESE: Many times. CHAIRMAN FLEGAL: Filed a complaint? MR. ASCOLESE: Yes, sir. CHAIRMAN FLEGAL: Since May 4th? MR. ASCOLESE: Yes. CHAIRMAN FLEGAL: You have? MR. ASCOLESE: Yes. CHAIRMAN FLEGAL: Okay. Do you know who you spoke to? Page 70 October 25,2001 MR. ASCOLESE: Mr. Dantini. CHAIRMAN FLEGAL: Okay. And did you ask him to come out and take readings? MR. ASCOLESE: Yes. CHAIRMAN FLEGAL: Did he? MR. ASCOLESE: I'm not sure if he came out any further since the last time we were here, but he did come out a few times. I can't really substantiate the dates for you. CHAIRMAN FLEGAL: You don't know the dates you called, but say you called. MR. ASCOLESE: Time has lapsed, yes. CHAIRMAN FLEGAL: Okay. Any other questions? MR. PONTE: Just one. We were careful to find out how distant -- how far Mr. Dantini was from the birds when he took these measurements. How far is your lanai or where you took these recordings? MR. ASCOLESE: Good question. I -- I'm thinking it was approximately 120 feet. MR. PONTE: Thank you. CHAIRMAN FLEGAL: Any other questions? MR. MOUNTFORD: Yes. BY MR. MOUNTFORD: Q. Mr. Ascolese, you're not home all day, are you? A. No. Q. You work? A. Yes. Part time. Q. And the other thing is we had your other neighbor, Ellie Donahoe, here today to testify. A. Yeah. She had to leave. Q. And she adjoins the property of the Kastners, but she had to go to work; is that correct? Page 71 October 25, 2001 A. Correct. MR. MOUNTFORD: Thank you. I have nothing further of this witness. CHAIRMAN FLEGAL: Thank you, Mr. Ascolese. (A discussion was held off the record.) CHAIRMAN FLEGAL: Mr. Ascolese, one moment, sir. Ms. Maroules, would you like to ask him any questions? CROSS-EXAMINATION BY MS. MAROULES: Q. The only question I'd like to ask you, Mr. Ascolese, is in the four years that you've allegedly been unbearably annoyed by my birds, have you ever one time come to my house and told me that? A. No. There's a good reason for that. Your -- I believe it was your husband who was living there constantly argued with another neighbor who moved out who lived next door to Mr. Kastner. Now Ms. Donahoe occupies the house. They constantly argued back and forth and-- Q. That wasn't my question. I asked you if you ever came to my house. A. I'm telling you your answer. Q. Did you? A. This is my answer. Q. Did you come? A. No, I already said-- Q. No, you did not. A. -- no, I did not. Q. Thank you very much. A. I'm giving you the reason. Q. That's all I wanted to know. A. I handle things legally. REDIRECT EXAMINATION Page 72 October 25,2001 BY MR. MOUNTFORD: Q. Mr. Ascolese, you were just asked if you ever complained to Ms. Maroules personally. Did other people -- other neighbors complain to Ms. Maroules or her husband about the bird noise? A. Sure. CHAIRMAN FLEGAL: That's hearsay. Q. And for how long a period of time did -- MS. MAROULES: How do you know that? CHAIRMAN FLEGAL: Excuse me. MR. ASCOLESE: Because they told me. CHAIRMAN FLEGAL: That's -- that's all hearsay. Not interested. BY MR. MOUNTFORD: Q. Did you personally have -- go to domestic animal about the noise? A. Yes. MR. MOUNTFORD: Thank you. Nothing further. CHAIRMAN FLEGAL: Thank you, sir. MR. MOUNTFORD: I have two other witnesses that I think will be brief. CHAIRMAN FLEGAL: That's fine, sir. MR. MOUNTFORD: I'll call Mr. Welker, please. THEREUPON, TOM WELKER, a witness, having been first duly sworn, upon his oath, testified as follows: DIRECT EXAMINATION BY MR. MOUNTFORD: Q. Mr. Welker, where do you reside? A. At 168 Flame Vine Drive. MR. MOUNTFORD: Can the board hear Mr. Welker? A. 168 Flame Vine Drive. Page 73 October 25, 2001 Q. And for how long have you lived there? A. About ten years. Q. And you're a dual citizen, so you don't live there full time; is that correct? A. That is correct. Q. You also live in Canada, is it? A. That's correct. Q. And you just returned in the -- recently from Canada; is that correct? A. Yesterday. Q. Now, in relation to the Maroules property, where is your home located? A. My home is across from Mr. Kastner's home. Q. So from his property -- the rear of his property borders on the rear of the Maroules property. You're across the street -- A. That is correct. Q. -- from Mr. Kastner's; is that correct? A. Yes. Q. And are you aware of a bird noise problem in your neighborhood? A. Yes. With the front doors open, we can hear the birds through the whole house. Q. And for how long has this problem persisted? A. Probably 3, 3 1/2 years. Q. And do you know where the source of the bird noise is coming from? A. It's from the property behind Mr. Kastner's. Q. And do you know whose property that is? A. I think that's the respondent's property. Q. And that's Ms. Maroules? A. Yes. Page 74 October 25,2001 Q. And is that bird noise when you hear it sufficient enough to disturb you? A. Yes, it is. Q. Now, when you say -- when you hear it, say, on a given day when you would hear this bird noise, was there any general time when it would occur? A. I found that it occurred reasonably early in the morning, seven, eight o'clock, and again late in the afternoon, probably five or six o'clock. Q. And you haven't been here since May of this year; is that correct? A. I have not been. Q. And you came back last evening for the first time? A. Yes. Q. So you have not heard the birds yet? A. I have not heard the birds. Q. Now, you heard the videotape that was played by Mr. Dantini with regard to the bird noise that he observed on June 14th, 2001. Would you say that that tape was a fair and accurate representation of the noise that you would hear from the birds? A. Yes, I would. Q. And you also heard the tape that was played by Mr. Ascolese with regards to -- that was done on his lanai. Would -- could you hear the bird noises on your property of the same loudness, or would it be different? A. It would probably be less, but there's a -- there's a corridor between the two houses, between Mr. Kastner's house and Ms. Donahoe's house, and the sound seems to come right through that corridor. Q. Can you estimate the distance between your property line and the Maroules property line? There's a street-- Page 75 October 25, 2001 A. Probably 120 feet. Q. Minimum? A. I would say. Q. And you still hear the bird noises. A. Yes. Q. And they've persisted. A. Yes. Q. And at one point in time, as part of the packet that I submitted, you prepared an affidavit -- I say an affidavit. It wasn't an affidavit so much as it was a signed statement. And I asked you that -- I'm showing you this. Is that -- was that prepared by you? A. Yes, it was. Q. And was that prepared in approximately the time frame of March 2001 ? A. It would be. Q. And was that truthful at the time you prepared it? A. Yes. Q. And was it accurate? A. Yes. Q. And it describes your feelings about bird noises and the noises you heard from the Maroules property? A. Yes. MR. MOUNTFORD: Thank you. I have nothing further of this witness. CHAIRMAN FLEGAL: Ms. Maroules, do you have any questions for him? MS. MAROULES: I don't understand why this gentleman is even speaking to this panel since we're addressing the issues of things that happened between May 4th and -- CHAIRMAN FLEGAL: It's just -- it's information being provided and offered. Page 76 October 25, 2001 CROSS-EXAMINATION BY MS. MAROULES: Q. Okay. And also, are you aware of the number of parrots that are in our neighborhood? You live quite a distance away from me. How can you be sure that the parrot you're hearing is mine? Do you know how many parrots live on your street? A. I don't know how many parrots live on my street. Q. I hear the parrots on your street from my house. There's four parrots that live on your street. MR. MOUNTFORD: That's giving testimony and-- CHAIRMAN FLEGAL: Yeah. Ms. Maroules, let's stick to what he has told us. Okay? MS. MAROULES: Sorry. CHAIRMAN FLEGAL: That's all right. Any other questions? MS. MAROULES: I have no other questions except -- BY MS. MAROULES: Q. Have you ever come to my house and told me that my birds were disturbing you, sir? A. No. CHAIRMAN FLEGAL: Questions from the board. None? Thank you, sir. MR. MOUNTFORD: I better follow this up for completeness. REDIRECT EXAMINATION BY MR. MOUNTFORD: Q. Were there ever any birds on your street, which is Flame Vine? Are you aware of any parrots on Flame Vine? A. I'm not aware of any. Q. Did you ever hear any bird noises emanating from homes on Flame Vine or their back yards? A. No. Q. The only bird noises you ever heard that disturbed you were Page 77 October 25, 2001 coming from the Maroules property; is that correct? A. That is correct. Q. And you know that because you've seen them on her property? A. I haven't seen them. Q. You never saw the birds on her property? A. I never saw the birds. Q. Then how would you be aware of it? A. Just from where it's coming from. Q. You can hear the location from your -- on your ears from where -- A. We look through -- between the two houses straight back. MR. MOUNTFORD: Thank you. I have nothing further. CHAIRMAN FLEGAL: Thank you, sir. MR. MOUNTFORD: I have Ms. Kastner. THEREUPON, ILSE KASTNER, a witness, having been first duly sworn, upon her oath, testified as follows: DIRECT EXAMINATION BY MR. MOUNTFORD: Q. Ms. Kastner, where do you live? A. I live at 163 Flame Vine Drive. Q. And how long have you lived there? A. Close to ten years. Q. And is that property -- adjoins the property of Maroules? A. That's right. Q. And are you aware in your -- of a bird noise problem, from your perspective? A. ldo. Q. And when did that problem first come to start bothering Page 78 October 25, 2001 you? A. Over 3 1/2 years ago. Q. And it's been ongoing since that time. A. That's right. Q. And do you know where the bird noises would come from? A. Behind me, from Mrs. Maroules' property. Q. And do you know that from your own personal observation? A. That's right. Q. Now, during that 3 1/2-year time frame, did you ever complain to Ms. Maroules about her birds? A. No. Q. Do you know -- have you ever seen anybody else complain to her about them? A. Yes, I did. Q. And who complained to her about them? A. Mr. Jim Boot, my neighbor next door. Q. And what address did he live at? Where Ellie Donahoe lives now? A. That's right. Q. And were you present when he complained about the bird noise? A. I saw him. I was in my back yard. Q. And who would he complain to? A. To Mr. Maroules. Q. And did this go on for a period of time? A. Yes. Q. And was anything ever done about it? A. I don't know. Q. The bird noise still persists? A. The bird noise is still. Q. Now I'm going to direct your attention, to shorten this, from Page 79 October 25, 2001 the May 4th, 2001, time frame to the present. On May 4th, 2001, were you present when Mr. Dantini conducted his tests? When I say "present," were you home? A. Present. I was home. Q. And on that day do you know whether or not you heard the birds? A. I heard the birds. Q. And do you know where -- you could determine where the bird noises came from? A. Behind my house. Q. And when you heard the bird noise that day, could you hear it inside your house, or was it only on the outside? A. Inside with the doors and windows closed. Q. And did that disturb you? A. Right. Q. Were you disturbed as a result of hearing that noise? A. Yes. Q. Now, you heard Mr. Dantini -- or saw and listened to the video that he taped on June 14th. A. Yes. Q. Would you say that that would be a fair representation of the noise that you can hear in your house when the birds make noise? A. Yes, it is. Q. And would it have been the same or similar noise on May 4th when the tests were done? A. Yes. Q. Now, you heard Mr. Ascolese play his tape, and that seemed to be louder than Mr. Dantini's. Did you notice any difference, or can you testify as to whether or not you consider that to be an accurate representation of the noise? A. It's an accurate -- to the noise. Page 80 October 25, 2001 Q. Now, since May 4th, 2001, have you heard those bird noises since then? A. Yes, I did. Q. And have you heard them more than once? A. Morning, afternoon, sometimes at night too. Q. And would they be disturbing to you? A. Itis. Q. Now, let me ask you this: On a -- any given seven-day period or week, would you hear the bird noises every day or occasionally or-- A. Mostly every day. Q. Now, have you heard -- have you heard those bird noises in the month of October? A. Yes, I do. Q. And have you heard them in the month of August? A. Yes. Q. Are there bird noises when the birds are not outside? A. Sometimes they're in the lanai, and I can hear them from there. Q. But the lanai is open -- A. Yeah. Q. When the birds are inside the Maroules house -- A. I can't hear. Q. -- then the sound is not-- is all right? A. Yeah. Q. Have these bird noises somehow changed the quality of your life, living there? A. Yes, it has. Q. How has it done that? A. I get nervous. I can't sleep. Sometimes I even dream about it. Page 81 October 25, 2001 MR. MOUNTFORD: I have nothing further for this witness. CHAIRMAN FLEGAL: Ms. Maroules, do you have any questions for her? MS. MAROULES: Yeah. CROSS-EXAMINATION BY MS. MAROULES: Q. Ilse, you've lived behind me for ten years. Did you one time come over and tell me, "Shut your birds up," one time? A. No. Q. No. Okay. I do have a question about the times of day that you hear the birds now versus before Mr. Dantini cited me the first time. Has there been any difference in the level of sounds that-- in the length -- in the times and when you hear the birds? A. There's not much difference. MS. MAROULES: I just don't know how that can be, but I will have my time to talk later. CHAIRMAN FLEGAL: You'll get your say. I mean, you can only ask her her -- what she has heard. MS. MAROULES: Okay. CHAIRMAN FLEGAL: Okay. Any questions from the board? Thank you, ma'am. MR. MOUNTFORD: I just have one more question. REDIRECT EXAMINATION BY MR. MOUNTFORD: Q. Ms. Kastner, if Ms. Maroules is away and the birds are not outside, there's not a problem. A. No, there is no problem. MR. MOUNTFORD: Thank you. Nothing further. One last witness at this time. Mr. Kastner. THEREUPON, FRANZ KASTNER, Page 82 October 25, 2001 a witness, having been first duly sworn, upon his oath, testified as follows: DIRECT EXAMINATION BY MR. MOUNTFORD: Q. Mr. Kastner, you-- A. Okay. My name is Kastner, Franz. I live also in the same street as my wife, I guess. It's 163 Flame Vine Drive. I'm retired. I'm in my golden years. Oh, boy, neighbor sure is golden. I also -- Q. Mr. Kastner. A. -- am a taxpayer and a resident -- Q. Mr. Kastner. A. -- and I'm mad at the county. Q. Mr. Kastner, you've established that. Now, this board is interested in the problem that occurred with regards to noises coming from your adjoining property owner's birds. A. Yes. Q. When did you first have a problem with bird noises coming from the Maroules property? A. I can't direct answer your question because it's relevant to other stuff and not, as that gentleman said, because I paid taxes at that time. And especially the worst thing, which you people may not like to hear, animal control and code enforcement at that time when we complained -- and I was drawn in, because it didn't bug me at first. But Mr. Ascolese, we are good neighbors and so so. And it bothered me very much to be drawn in by the lady's husband who was fighting with the other neighbor, and that racket with the birds really got to me after a while. Q. So-- A. So I complained -- I tried to complain. Mr. Ascolese, because he lived there much earlier than I do -- I'm there ten years now -- he explained to me the system. You go to animal control. At Page 83 October 25,2001 that time I didn't know what code enforcement meant. Q. Let me -- A. But -- please, that's relevant. So then I went to animal control. It took -- I'm also 3 1/2 years animal control the last time because the guy quit. He told me he's sick and tired. And he quit, went back to Jersey. Q. Let me ask you this: You've had a problem with the bird noises for 3 1/2 years; is that correct? A. Yeah. Q. And for 3 1/2 years you've tried to take some action through animal control and had no -- A. Yes. Q. -- results; is that correct? And ultimately Mr. Dantini got involved from -- on the -- under the noise ordinance, and he came out and ran a test on May 4th, two thousand -- A. I know. I asked him he can sit on my -- on my lanai. Q. And were you there the day that test was conducted? A. Yeah. Q. And did you hear the bird noises that day? A. Certainly. I'm not -- Q. And did you find those bird noises disturbing to you? A. Very disturbing. Q. And that's been an ongoing problem for a period of time; is that correct? A. Three and a half years. Q. Before and up to the present day, since May 4th and June 14th of 2001, have you heard the bird noises any other time? A. Not every day but almost every day. But to add, which Joe forgot maybe to mention, she always carries the birds outside and puts them on the trees of the neighbor. And she even had -- recently had to catch them again. And the bird was sitting on a big -- it's not a Page 84 October 25, 2001 power line, but anyway, it's a thick cable. And she has a long post, and she tried before to go on another place of the power lines with a stick and a thing on it. And I figured, boy, there goes another bird. So I don't know why the woman doesn't stop that stuff. Q. Let me ask you this: The birds' noise that you hear -- A. Right. Q. -- do you know from your own personal knowledge if they were Ms. Maroules's birds, or could they have been other wild birds in the neighborhood? A. Look, I hear the birds for six years so -- and I see them from my lanai. My lot is 150 feet from the street to her backside. Okay. And then there's about another 8 feet to the screen of her lanai. And I can look through that screen -- Q. So you know that they're her birds. A. -- and I see two -- I forget how you call them -- two yellowish birds and one -- what do you call them? All colors. I can't think of the name. Q. A macaw? A. Yeah. And then I was in the house. I wanted to tell her-- Q. Now, let me ask you this: You heard the tape that Mr. Dantini prepared. A. Yes. Q. Is that a fair and accurate representation of the noise you heard on May 4th, 2001 ? A. Depending on the wind, it's -- it's not loud enough. Q. So that was at a -- that was a minimal versus a maximum -- A. You said it. Q. And can you hear these bird noises when you're inside your home? A. In my sleep and dreams I hear them. Q. And when these birds are not -- Page 85 October 25, 2001 MS. MAROULES: Is this not leading? CHAIRMAN FLEGAL: He's -- MR. KASTNER: I didn't ask you. CHAIRMAN FLEGAL: All right. MR. KASTNER: I didn't interrupt you. MR. MOUNTFORD: Mr. Kastner. CHAIRMAN FLEGAL: Sir, some manners, please. I'll take care of her. MR. KASTNER: She-- thank you. BY MR. MOUNTFORD: Q. Mr. Kastner, the question I have is this: When you're -- when the birds are not outside, do you still have the noise problem? A. I can't tell it that good because there are bushes. I can only tell if I hear them. But when they are outside her house or outside of her lanai and they scream, then I hear them. Q. Can you hear them when they're on her lanai? A. When they're in her lanai, the same -- almost the same. Q. Thank you. And since May 4th and June 14th, that's been an ongoing problem also? You -- it didn't stop after May 4th, did it, the noises? A. It came -- it took that long to get something -- Q. Did you hear my question? A. Yes. Q. Since May 4th to the present time, did you hear the bird noises? A. Not every day but almost every day. Q. And it's still continuing. A. I know that. You have to kill them almost to -- and I hate to do that, but it's not nice because if I would get away that long, if I would make a noise, I shouldn't have to pay taxes. MR. MOUNTFORD: Thank you. I have nothing further. Page 86 October 25,2001 MR. KASTNER: And the county was completely not up to their par because they still -- they spent 14 million on animal control. We went down two or three times. MR. MOUNTFORD: I think you've answered the question. CHAIRMAN FLEGAL: Okay, sir. We're -- I mean, you've told us what we need to know, sir. And I understand your frustration. Bear with us. MR. KASTNER: I would mean you, Mr. -- CHAIRMAN FLEGAL: Flegal. But that's all right. Bear with us. Are you done testifying, sir? Have you asked him all your questions? MR. KASTNER: No. I would like to say a few more words. CHAIRMAN FLEGAL: The lawyer's got you here as a -- MR. KASTNER: Okay. CHAIRMAN FLEGAL: -- witness. BY MR. MOUNTFORD: Q. Did you have anything that had to -- pertaining to these bird noises that you would like to tell the board about right now? A. Yeah. I would like to know when it's going to be over because it's a long, long, long, long time. Q. Now, let me ask you this, then: There was testimony on cross-examination by Ms. Maroules that no one, apparently, has entered -- made complaints in the past to her, and she was upset about that. Do you have any personal knowledge of any of your neighbors ever addressing the problem -- A. Yes. Q. -- of the bird noises? A. Yes. Q. What neighbor? A. Me. Q. Did you -- who did you address the problem with? Page 87 October 25, 2001 A. No. I used to have a little miniature schnauzer, and it drowned in my swimming pool unfortunately, but not my fault. So in the beginning when we moved to that -- into that house about ten years ago, right in the first few days I had a note in the mailbox from Mrs. Maroules. She complained about the dog barking. And I said, "Gee, if we go shopping"-- MR. LEHMANN: Excuse me. Mr. Mountford, could we confine the discussion to the time periods that we're talking about and the violation? MR. KASTNER: Sorry. Q. Listen to my question. Are you aware of any neighbors of yours ever complaining to Ms. Maroules about bird noises? A. Why should I? Q. How about Mr. Boot? CHAIRMAN FLEGAL: Well, don't -- don't give him names to work off of. If he doesn't know, he doesn't know. MR. MOUNTFORD: I have nothing further. Thank you. MR. KASTNER: I'm a bad-- a hard witness, huh? And don't forget I'm a volunteer. CHAIRMAN FLEGAL: That's fine, sir. Ms. Maroules, do you have any questions for him? MS. MAROULES: No. CHAIRMAN FLEGAL: Okay. Thank you. Are you ready for a -- do you need a break, ma'am? THE COURT REPORTER: That would be nice. CHAIRMAN FLEGAL: Let's take five minutes. It's been a long morning for our reporter and everybody else. (A break was held.) (The meeting recommenced with Ms. Curatolo not present.) CHAIRMAN FLEGAL: Do you have any more witnesses, sir? MR. MOUNTFORD: No more witnesses at this time. Page 88 October 25,2001 CHAIRMAN FLEGAL: Okay. I have a question for Mr. Dantini. Would you come back, please. And you're still under oath, sir. Did-- since May 4th have you received telephone calls from anyone in the area lodging complaints about the birds? MR. DANTINI: Yes, I have. CHAIRMAN FLEGAL: You have? MR. DANTINI: Yes. CHAIRMAN FLEGAL: Did you make reports on those or anything? MR. DANTINI: Just the ones that I have in the folders there from May 4th. There was a couple that I just did readings on my own just to monitor the situation. CHAIRMAN FLEGAL: No. I'm-- what I'm talking about is we've heard one gentleman say he called several times. I see nothing in your case detail report where there's any notations that you received any calls from other people other than what you did on your own. That's what I'm trying to find out. Did they call -- MR. DANTINI: Yes, they-- CHAIRMAN FLEGAL: -- and did you make notes of them or-- MR. DANTINI: No, I did not make a note of it that he called. I just -- when he called I just went out afterwards at the time that was -- that I felt that I could get a reading one way or the other on it. CHAIRMAN FLEGAL: Okay. Thank you, sir. MR. MOUNTFORD: Mr. Dantini, by way of follow-up to that question, if you had gotten a call in the morning from one of the property owners complaining about the noise, would that noise have still necessarily persisted by the time you got out there? MR. DANTINI: No. MR. MOUNTFORD: Thank you. Nothing further. CHAIRMAN FLEGAL: Done with your side, sir? Page 89 October 25, 2001 Ms. Maroules, you can come up, ma'am, and tell us your version, please. MS. MAROULES: I keep birds. I have remaining three large parrots. At one time I had another one, but she died last year in October. She was a -- a bit of a noisy bird. But the -- my three birds were quartered on my lanai. Their cages were on my lanai, and that's where the birds lived. I never heard anybody come and say to me, "Your birds are disturbing me." My neighbors didn't do that. And a lot of people really enjoyed my birds. My neighbors enjoy my birds. My next-door neighbors on both sides enjoy my birds. Neighbors up and down the street bring their children down, and my birds sit on them and talk to them. These aren't -- these aren't problem birds. And I did bring letters from their keepers that state that my birds are not maladjusted, problem, screamer birds, as Ms. Taylor seems to have had a bad experience with a screamer bird. Not all birds are the same, Ms. Taylor. Trust me. Not all birds are the same. You would be charmed if you met mine. They are enthusiastic, but they're not constant, as has been represented here. What I -- what I have experienced with my contact with the county -- as you may have picked up in the testimony from Mr. Kastner, Mr. Ascolese kind of recruited his neighbors on his street to complain, it appears. Their homes are not anywhere -- the people that were complaining -- can I -- MR. LEHMANN: You want to put it on the prompter? CHAIRMAN FLEGAL: Yeah. Let the county put it on the prompter so we can see it. That'll be fine. MS. MAROULES: The house is -- my house is 164. Kastner's, you can see, half adjoins mine, and Ascolese doesn't adjoin my property at all. It's quite a distance away. At events after the -- Mr. Dantini, who I respect very much as a scientist and a technical person, came out and showed me his readings -- when my birds do Page 90 October 25, 2001 cry -- I am not going to say that when they cry they are not loud. That would be a total misrepresentation. They make a loud noise. They can make a loud noise. I've done my best to control that since I saw the readings from Mr. Dantini that it did, in fact, violate some standard of decibels and duration. I believed him, and I moved by birds' quarters into -- into my home. My birds are no longer quartered on the lanai. That's why I have a little problem with Ms. Kastner's statement that there had been no change in the level of sound because my birds, being quartered in the house while I'm at work which is ten hours a day, have maybe 20 minutes in the morning some mornings when they're allowed outside, and in the evening when I come home from work, I'll take them out and take them for a walk out on the street or something. I've observed Mr. Kastner's company coming over and photographing my birds. I've entertained his chil -- his visitors' children with my birds. These birds have gone to nursing homes and entertained Alzheimer's residents there. They're very therapeutic and well cared for, well-regarded creatures. I just feel like I -- you know, I will do whatever it takes to -- to comply. I need some guidance. I would be -- all the options that I have -- that have been given to me so far have seemed unacceptable: That I should get rid of my birds, that I should move, or that I should confine them completely to the interior of my home, which is not healthy for them. They need to have some space to move around in. That's why I let them go on my trees in the yard. They're -- I don't -- I feel that they enhance the quality of the neighborhood rather than detract from it. This is a tropical environment. These are tropical birds. As Mr. Flegal stated, there are wild birds that fly around in Old Naples, wild parrots that fly around in Old Naples. I -- I wonder what questions you-all have for Page 91 October 25, 2001 me. CHAIRMAN FLEGAL: Is that all you'd like to tell us right now? MS. MAROULES: (Nodded head.) CHAIRMAN FLEGAL: Okay. Do you have any questions for her, sir? MR. MOUNTFORD: I have a few, if I may. CROSS-EXAMINATION BY MR. MOUNTFORD: Q. Mrs. Maroules, you heard Mr. Dantini play the tape recording of the noise that he heard on May -- on June 14th, 2001. A. Yes, sir. Q. Do you have any reason to dispute the fact that those noises occurred in that loudness? A. I have absolutely no reason to dispute that. Q. And you have -- you don't dispute the fact that when your birds are outside in the morning and if they make noise, that the neighbors can hear them inside their house? You don't dispute that either, do you? A. That I do dispute. If you're in your house with your windows closed and your air conditioning on, I don't understand how it would be possible to hear them any more than you would hear the garbage truck coming up the street. Q. So it's your opinion that if they stay in their house with their windows closed and their air conditioning on, they probably shouldn't hear them. But you don't -- you dispute the fact that they said that they did; is that correct? A. That it disturbed-- that it disturbed their lifestyle. Q. Now, these birds -- you've had birds for how long? A. My whole life. Q. Pardon me? Page 92 October 25, 2001 A. My whole life. I've had birds my whole life. Q. Then you're aware that -- I assume, that this type of birds are known to be nosier in the early morning and in early evening; is that correct? A. That's correct. Q. And they don't make noise at night because they're either covered or inside, and they don't make noise at night. A. That's correct. Q. And when birds make noise early in the morning, they make them at a -- at a pretty high intensity, do they not? A. Not necessarily. Q. Some days they do -- A. Some days they -- Q. -- some days they don't? A. Some days they're louder than others. Q. And some days -- A. But they're not chronic screamers. Q. Some days they even disturb you, don't they? A. Absolutely. Q. Now, you've take -- took the position here today that you were somewhat taken aback by the complaints of the neighbors and that you weren't aware of that until recently; is that correct? A. Restate your question. Q. You weren't aware of problems -- your neighbors complaining about the bird noise until recently; is that correct? A. I was aware that they -- that people were anonymously reporting my birds to animal control. Q. And that was going on for a period of time; is that correct? A. Yes. Q. And were you also aware that one of the neighbors of Mr. Kastner, one Mr. Boot, was continuously complaining about the bird Page 93 October 25,2001 noise to your husband, over a period of time; isn't that correct? A. No, I was not aware of that. Q. And you never saw them almost come to blows at the property line on more than one occasion? A. No, sir, I did not observe that. Q. And your husband never told you that the bird noises were distracting the neighbors? CHAIRMAN FLEGAL: We're -- we're way off here. This is all hearsay and people that haven't testified, and let's find another vein. Q. You put the birds out on the trees, is that so, upon ooccasion? A. Upon occasion. Q. And why don't they fly away? A. Because they like it there. Q. Oh, do you have to clip their wings? A. Their wings are trimmed, yeah, sure. Q. So they can't fly; is that correct? A. TheY can fly some, but they -- Q. But not much? A. -- can't fly away. Q. You seem to be concerned that the purpose of this meeting here today is to have you get rid of your birds; is that correct? A. I -- I'm concerned that that -- yes, I am. Q. Well, would you be -- if the noise problem could be abated and stopped by your keeping the birds inside, is that a problem for you? A. I keep my birds inside all the time except when I'm with them. Q. And when you're with them, it seems to be the times -- A. I control the-- Q. -- that they're outside making the noise; is that correct? Page 94 October 25, 2001 A. I control their sound. I don't allow my birds to scream un -- uncontrollably. They wouldn't do it anyway, but I don't allow them to do that. I'm aware of the problem now. And if they start -- if they start to cry out, as you saw on Mr. Dantini's tape -- I was in the bathroom when that bird started to squawk, and I was yelling out the door. And you could hear how loud my voice sounded on that tape. I wonder what portion of my voice was factored into Mr. Dantini's reading, in fact. But-- Q. Ms. Maroules-- A. -- I do -- Q. -- you leave the birds outside; correct? You leave the birds outside unattended; is that correct? A. I'm -- I am in attendance. I am at home and monitoring my birds. Q. You leave the birds outside unattended. You go inside the house, do you not? A. Occasionally. Q. And occasionally do you leave the house and leave them outside? Yes. A. I'm out in the yard. Q. In other words, you never leave those birds outside -- A. Never anymore. Q. -- when you're not-- A. Never anymore. Q. Anymore. When did that stop? A. May 4th when Mr. Dantini told me that I -- I couldn't keep them quartered outside anymore. MR. MOUNTFORD: At this juncture I do not think I have any additional questions of this witness. CHAIRMAN FLEGAL: Okay. Any questions from the board? MR. LEHMANN: Yes. Ms. Maroules, you say you quarter the Page 95 October 25,2001 birds in the home when you're away. MS. MAROULES: Yes, sir. MR. LEHMANN: And when you return home, you do take them out to the lanai? MS. MAROULES: Sometimes I do and sometimes I don't. MR. LEHMANN: You also say that you control the birds. How do you do that? MS. MAROULES: If they start to squawk, I bring them back into the house. MR. LEHMANN: And you also do testify that even the birds themselves or the sound that the birds themselves are making does even bother you. MS. MAROULES: When they squawk, that's what-- yes. I quiet them down. MR. LEHMANN: How long has that occurred? MS. MAROULES: How long has -- MR. LEHMANN: That their squawking might be disturbing to you. How long of a time period has that prolonged? MS. MAROULES: For their whole life, I mean, the whole time I've had them, I've never permitted them to scream uncontrollably when I've been at home, you know, to control it. There -- there may have been a time prior to May 4th when my birds were quartered on the lanai that they -- they could have done that. I -- you know, because if I wasn't home and they were on the lanai, I'm not going to say they didn't scream. I'm not going to say these good people at some point haven't been disturbed. But I have made a sincere attempt since Mr. Dantini's visit to control that situation. MR. LEHMANN: Just out of curiosity, what time do you go to work in the morning? MS. MAROULES: I go to work about nine o'clock. MR. LEHMANN: And you come home -- Page 96 October 25, 2001 MS. MAROULES: And I come home about six. MR. LEHMANN: Okay. So you would put the birds out in the morning before you go to work? MS. MAROULES: About 7:00, 7:30. You know, I-- I would let them out about 7:30 in the morning for a few minutes if I let them out at all. And when I come home, again, if I get home by six o'clock if there is time for them to go outside for a little bit, I let them out. It seems inhumane not to. MR. PONTE: If you were housing the birds for approximately eight hours a day, why is not housing them all of the time an acceptable option? MS. MAROULES: They're not -- they're not prisoners. You know, they need to have some exercise. They need to go out and stretch their wings and climb around something a little bigger than their cages or my front room. They're not -- birds aren't like other -- they're just different. They need -- they need -- they're wild animals. Birds are wild animals. They're not like a dog or a cat. A bird is something that exists in nature just in its own state like it is. Macaws live today -- birds exactly like my macaw live in South America. Birds exactly like my cockatoos live free and wild down in Australia, and they live perfectly good -- perfectly fine like that. If I release my birds, I don't know if they could live free. They're used to being taken care of by humans, but they certainly aren't domestic pets either. MS. TAYLOR: Mrs. Maroules, number one, I didn't have a problem bird. It was just normal and natural for that bird -- and it was a macaw. MS. MAROULES: Ma'am, how-- MS. TAYLOR: Just a minute. I'm talking to you, please. That bird screamed, absolutely screamed, and that was natural. You're worrying about your birds' health. I'm worrying about your Page 97 October 25, 2001 neighbors' health. This is hard on them, very hard on them. It's hard on your nervous system. It's hard on -- you don't eat after a while. It's very hard on people. Now, we sort of think of people first and birds later. MR. LEHMANN: I think what my colleague is, in essence, saying is that you have to consider the rights of all people. And if your right to hold a bird or to quarter a bird would impart (sic) your neighbors' rights for a peaceful place to live, then obviously this is why we're here. And those are really the core issues of this. Your neighbors have rights as well as you do. MS. GODFREY-LINT: Ms. Maroules, I had an umbrella cockatoo. And when he would go into a temper tantrum like I heard on Mr. Dantini's tape, my ears would ring after he was done. So -- and my neighbors, with the house closed up, could hear the bird -- birds, and I had more than just one bird. MS. SAUNDERS: Ms. Maroules, I've got a question. You indicated that after May 4th you had changed the pattern of how you were keeping the birds and where you were keeping them so that they were basically in the house except when you were out there attending them and controlling them, and yet we heard testimony from either three or four people that that is not -- that the bird noises were still very disturbing to them. How do you reconcile those two.9 MS. MAROULES: I think that these folks have -- have become sensitized to the sound of the birds, and they will pick it out no matter what level it's at at this point. If I hear -- if I heard my birds -- all I can say is if I hear my birds start to squawk, I'll bring them in. It's like a person with a dog that barks. Mr. Dantini doesn't think that his presence would incite my birds to squawk, but they are very, very alert because they are wild creatures, and they're watching all the time for new things in their environment. And I've seen them react just like a -- just like a watchdog to the presence of somebody that Page 98 October 25, 2001 they don't know. They react. MS. TAYLOR: We heard those birds screaming for a long time before we heard your voice yelling at them to stop it. MS. MAROULES: I explained to you that I was in the rest room, ma'am. MS. TAYLOR: No, no, no, no, no. MS. MAROULES: Yes. MS. TAYLOR: I'm talking about the tape. MS. MAROULES: On that tape, yes, ma'am. MS. TAYLOR: How do you remember that far back that you were in the bathroom? MS. MAROULES: I absolutely remember because I was extremely -- CHAIRMAN FLEGAL: Excuse me. MS. MAROULES: -- sensitized to that. CHAIRMAN FLEGAL: Let's not argue about the tape, please. MS. TAYLOR: I'm not arguing about the tape. I'm arguing about the fact that she says she quiets them, and she doesn't. She can't. If they're squawking or screaming out in the tree, you cannot get out there fast enough in order to stop them. They've already heard that. That sound has carried all through the neighborhood already. MR. LEHMANN: Again, ifI could remind my colleagues, what we are here to deal with transpires from May 4th forward. It's not anything that transpired prior to that. MS. TAYLOR: Same thing. If it was yesterday, it's the same thing. MS. MAROULES: You know, I -- I have a question. If this were a jury -- I saw the testimony -- the transcript of the meeting that happened on August 23rd when Ms. Taylor, without having heard any testimony or anything, told us about her limited experience with Page 99 October 25, 2001 her son's macaw. MR. MOUNTFORD: I object-- I object to her making-- MS. MAROULES: And I wonder if-- MR. MOUNTFORD: I object-- MS. MAROULES: I wonder-- MR. MOUNTFORD: Excuse me. I object to her making these statements at this time simply on the basis that the whole purpose of a code enforcement board by legislation -- by legislature -- the act of the legislature in enabling the county to appoint one is to have a representative number of people from the community including architects, engineers, Realtors, businesspeople, and citizens. If they wanted a fair and objective panel with no knowledge of reality, they wouldn't have said that -- or they would have said it. It was their intent to have the community represented in every aspect, and I think that's what we have here. And if somebody's had a problem with a macaw or if somebody's had a problem with a bulldozer or -- in the past -- because you have subcontractors and general contractors on this board, they bring their particular expertise and knowledge to this Code Enforcement Board. That's why you're charged with the obligation of rendering an effective, expeditious, and reasonable decision of the problem. You have a niche that allows you remedies that are not available to juries. And I'm just throwing that out to you. CHAIRMAN FLEGAL: You're correct. But it works the other way. If you also have experience that you dislike something, you can't use that in making a judgment. That's the part of the board we need to understand. Your experience counts for something to make a decision. But also, if you have a dislike in your experiences, you must leave that outside this room. You are here totally to judge what is presented to you, period, not that you like or dislike the color blue or whatever. It's what is presented to you on a particular case, period. Page 100 October 25, 2001 MS. TAYLOR: I did not dislike Clint's bird at all. I'm just telling you what it did, period. CHAIRMAN FLEGAL: Yes, ma'am. Do you have anything else? MS. DUSEK: Ms. Maroules, I have a question for you. You said that the presence of a stranger would cause the birds to squawk or scream. MS. MAROULES: I said it would cause them to react. The reactions are different. MS. DUSEK: What -- well, first of all, would any other reason cause them to react? Would another bird in the area -- MS. TAYLOR: Yes. MS. DUSEK: -- or would a child or somebody walking down the street? MS. MAROULES: Yes. If they see people, they will call to them. They'll -- they'll try and -- you know, they'll try and call out to them. That's what their call is for. MS. DUSEK: What other reaction would they have other than noise? MS. MAROULES: If it was -- if it's -- the macaw very often will cry out an alarm cry. The cockatoo, if it's approached by a stranger, will raise up its feathers and hide. You know, it pretends like it's invisible because it's -- that's how it deals with a threat. The macaw will call a cry to alert the other -- the other members of its flock, which would include me. I -- I don't know. I'm not going to stand here and pretend like I know everything about county codes and things. But I read-- I read the code, and I don't really feel like it was written to apply to animals. It mentions construction, motors, amplified music, raceways. And I notice particularly that it exempts playgrounds where -- where children scream and carry on and play. Page 101 October 25,2001 I would -- these birds are my children. You know, they truly are. I -- I treat them that way. And I respect my neighbors, and I don't want to disturb them. I just want to live my life quietly and enjoy my home and my birds. Am I allowed to have somebody else talk too? CHAIRMAN FLEGAL: Yes. If you have a witness that you would like to come up and ask some questions of, yes, ma'am. MS. MAROULES: I would -- I would ask Mr. Richard Knoke to come up. MS. GODFREY-LINT: Ms. Maroules, can I ask you a question? MS. MAROULES: Yes, you can. MS. GODFREY-LINT: How long have you had your birds. MS. MAROULES: These birds-- MS. GODFREY-LINT: Did you get them as babies? MS. MAROULES: Yes. I've had them since they were babies. The oldest is 4 -- 5. The oldest is 5, and the youngest is 2 1/2. MS. GODFREY-LINT: And they're very affectionate. MS. MAROULES: Yes, they are. MS. GODFREY-LINT: Mine was very affectionate, like a child. Thank you. MR. LEHMANN: Your name, sir? MR. KNOKE: Richard Knoke, K-n-o-k-e. THEREUPON, RICHARD KNOKE, a witness, having been first duly sworn, upon his oath, testified as follows: DIRECT EXAMINATION BY MS. MAROULES: Q. Mr. Knoke, could you please tell the panel what -- what your -- what your job causes you to do every day that you are on -- Page 102 October 25, 2001 tell them where you work. (Ms. Dusek left the boardroom.) A. Well, I work for myself, and I'm actually retired, but I mow lawns for exercise. I mow Ms. Maroules's lawn and four others on that street. I don't think you need their names, do you.9 CHAIRMAN FLEGAL: No. Q. Have you -- and you've spent quite a bit of time on Coral Vine Drive. A. Certainly. Q. And have you ever experienced a major disturbance due to the birds or heard the neighbors -- A. Back before May 4th, I saw a snake up close to your screens, and I heard the -- one of the birds or all the birds screaming about the snake. And there was a time when there was a rodent problem that raised some of their sound. Other than that you'd hear one or two squawks, screams, whatever you want to call them, and then it would be over with. I mean, there's nothing -- I mean, it's nature. I have nothing against it at all. I have no problem. A matter of fact is most of the time I don't even hear them when they scream or screech or whatever you want to call it. I have no problem. I'd love to have her next door to me with those birds because I love birds. I love dogs. And my dog, a little Lhasa apso, will make more noise than those birds ever thought of making. When the meter reader goes past our lanai, which is where the meter is, the dog will take off for a good three minutes barking at that meter reader Q. Mr.-- A. -- louder than the birds ever thought of-- MR. MOLrNTFO~: I'm going to object to the dog -- Q. Mr. Knoke, in your -- in your work -- and I know because I drive down the street every day; I see you visiting with the neighbors Page 103 October 25, 2001 -- has anyone ever expressed to you the opinion that my birds were too noisy? A. No. MR. MOUNTFORD: Objection to that. A. Absolutely not, and I've talked about it with others. MR. KNOKE: Go ahead. Your object? CHAIRMAN FLEGAL: That's all right. His objection's noted. MS. MAROULES: I -- I know that I put -- I put -- I put a letter in all my neighbors' mailboxes and said, "Please, if you have any problems with my birds, let me know," in every single mailbox on my street. And I did invite a number of people to come and speak for me here today. CHAIRMAN FLEGAL: Okay. Do you have any more questions for your witness? MS. MAROULES: All I -- I guess all I'm asking him is just to be my witness that he works on my street every day and that there's not a significant-- MR. KNOKE: I'm not there all the time, but I do get there first light. I have to wait until the dew dries before you mow the grass, but there's many other parts of taking care of it. I am there once a week, and I've never heard any problem with the birds. I have helped her get them out of the trees because this long stick thing that this gentleman back here was talking about is something that she can put up under their feet so they'll step onto it so she can bring them back down and take them into the house. And yes, you can do that in a hurry. They were complaining that you couldn't do it in a hurry to get rid of the noise of the -- I think you were the one that was complaining about her unable to control the birds. CHAIRMAN FLEGAL: Do you have any other questions for him, ma'am? MS. MAROULES: No. Thank you. Page 104 October 25, 2001 CHAIRMAN FLEGAL: Sir, do you have any questions for him? CROSS-EXAMINATION BY MR. MOUNTFORD: Q. Where do you live? A. I live in Coral -- I mean -- MS. MORALES: He lives on Crown Drive. CHAIRMAN FLEGAL: He'll answer his own questions. A. 109 Crown Drive, 597-5201. Q. That is not in the neighborhood of where -- A. It's in the neighborhood, yes. Q. Within 200 feet, 300 feet of the property? A. Oh, it's further than that. Q. So from your home you can never hear the bird noises from the Maroules property; is that correct? A. No. But I got birds right next to me that I do hear, and it doesn't bother me a bit. Q. And you mow lawns, and that -- A. I mow lawns for exercise. I'm retired. Q. And when you say the birds are easily brought in, were you there on May 4th, 2001, when Mr. Dantini ran his tests? A. He didn't let me know he was going there, or I could have been there. Q. You could have been there. A. I was not. Q. And you're aware that the birds were unattended that day? A. No. Q. Oh, you weren't aware of that? A. Before she got the -- CHAIRMAN FLEGAL: If he wasn't there, he couldn't be aware of it. I'm -- you've lost track of your -- Page 105 October 25, 2001 A. Before she got the order, her birds were out on the lanai all the time, day and night. Q. They were in there day and night during the day? A. Before the order. Q. Before the order? A. Yes. After the order she took them in the house, and they've been in the house except for the -- maybe an hour in the morning, hour in the evening. MR. MOUNTFORD: Thank you. I have nothing further. MR. KNOKE: Is that all you want? CHAIRMAN FLEGAL: One moment, sir. Anybody on the board have any questions? MS. TAYLOR: I just have one. You run a lawn mower; right? MR. KNOKE: Who's talking? There you are. MS. TAYLOR: You run a lawn mower; right? MR. KNOKE: Yes, ma'am, I do. MS. TAYLOR: And they're pretty noisy. MR. KNOKE: It depends on how fast you run them. MS. TAYLOR: Okay. That's it. Thank you. CHAIRMAN FLEGAL: Thank you, sir. MR. KNOKE: Can't help my lawn mower. CHAIRMAN FLEGAL: Ms. Maroules, do you have anything else to say? MS. MAROULES: No, I don't believe so. CHAIRMAN FLEGAL: Okay. Thank you, ma'am. You may sit down. MS. SAUNDERS: I have one more question for Ms. Maroules. CHAIRMAN FLEGAL: Oh, I'm sorry. MS. SAUNDERS: Are -- is it your testimony that it would not be possible or humane to keep the birds inside all the time? That would not be a solution? Page 106 October 25,2001 MS. MAROULES: Yes. That's my statement, and I'm going to stick with it. No, it would not be humane or decent. MR. MOUNTFORD: Ms. Maroules, you've had birds all your life? MS. MAROULES: Yes, sir. MR. MOLrNTFORD: Isn't it true that most birds (sic) of macaws and parrots, the other owners keep them inside all the time? MS. MAROULES: No, that's not true, sir. MR. MOUNTFORD: Not true. Thank you. CHAIRMAN FLEGAL: Any other questions? Thank you, Ms. Maroules. For the record, make note that Ms. Dusek has left, and we're down to six members. (A discussion was held off the record.) CHAIRMAN FLEGAL: We're down to the discussion part of the public hearing. I -- I want board members to please make note what our duty is is a complaint that was filed May 4th and that anything that happened prior to May 4th is irrelevant. Although it may bother people, may bother a board member, whatever, anything that happened prior to May 4th as regard to this action that's before us is irrelevant. Please keep that in mind while we're trying to deliberate on if, in fact, there is, is not, and what we're going to do about it. MR. LEHMANN: I might also remind my colleagues that our decisions must be based on the testimony provided to us today, not on anything else, the testimony and the evidence package in front of US. CHAIRMAN FLEGAL: And only the evidence relevant from May 4th up to today. Okay. Pleasure of the board, in fact, discussion, is there or is there not a violation? MR. LEHMANN: Mr. Chairman, would you like to proceed Page 107 October 25, 2001 with the discussion or finding of fact? CHAIRMAN FLEGAL: If the discussion will help us get to a finding of fact, I'll do that first. MR. LEHMANN: I'm ready for a finding of fact, if-- CHAIRMAN FLEGAL: All right, sir. MR. LEHMANN: -- there is no discussion. CHAIRMAN FLEGAL: Go for it. MR. LEHMANN: Mr. Chairman, I would move in the case of CEB Case No. 2001-074, Board of County Commissioners versus Penelope P. Maroules, the violation as stated would be violation of Sections -- excuse me -- violation of Section 6, paragraph B-1 and 2 of Ordinance 2002-68 (sic), the Collier County Noise Ordinance. The description of violation would be parrots squawking at levels exceeding what -- county ordinance requirements. The location and the other relevant information I'll leave for Ms. Rawson. But my finding of fact in this particular case, that a violation does exist, and we should proceed accordingly. CHAIRMAN FLEGAL: Okay. We have a motion that there, in fact, is a violation. MS. TAYLOR: I second it. CHAIRMAN FLEGAL: And we have a second. Is there any further discussion on the fact? Hearing none, all those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Those opposed? (No response.) CHAIRMAN FLEGAL: Okay. Order of the board. MR. PONTE: Now we come to the difficult part. CHAIRMAN FLEGAL: Yes. MR. PONTE: Whatever we might decide practically is unenforceable. If the violation is only clocked and only happened Page 108 October 25, 2001 during a spike that lasts a few seconds or averaged over a minute, in order to enforce this finding, we'd have to create a new department headed by Mr. Dantini to just sit out there and camp there. He'd have a new -- a new career for himself. I don't see how you can enforce it. MS. TAYLOR: Well, it's very simple. If they're out on the lanai or they're out in the tree, they're going to be screaming. That's just natural for a bird. That's just natural. She either keeps them in the house all the time, or she pays a hundred dollars per day every time they're out and screaming. MR. PONTE: Not per day. It would have to be per scream -- MS. TAYLOR: Per scream. MR. PONTE: -- because if each one is a repeat violation -- MS. TAYLOR: Each time the violation-- there is a violation. MR. PONTE: Yeah. So how do you frame that? MR. LEHMANN: Well, let me refresh my colleague's memory or readings. Staff has recommended in their order for the board, in their recommendation, they would recommend a $100 fine be imposed each time the violation is observed, and I would assume observed and documented by the county. What they're, in essence, I believe, attempting to tell us is they don't want to have to go back and have repeat violation hearings in front of the board. They want the ability each time it occurs to issue a $100 fine. Am I correct in that, Maria? MS. CRUZ: That is the recommendation from staff. CHAIRMAN FLEGAL: I have a little problem with that, and I need to ask Ms. Rawson a question. To even consider that type of an order -- I mean, you're giving someone, in essence, a blank check that says, "Oh, yeah. I heard it," but there's no verification. I mean, it could be -- you know, a squawk could be at seven in the morning, and who heard it? Somebody called it in. That's -- I mean, by the time you drive out there, it's not going to be a squawk. So unless Page 109 October 25, 2001 you're sitting there, it would be impossible for you to really verify that. I have a problem with just giving the county a blank check to -- any time you drive by and you hear a bird, you automatically fine a person a hundred dollars. Plus, I believe, unless it's changed, the citations that code enforcement has, I think they already have the ability to fine people without coming before this board unless something's changed, so they really don't need an order from us to do that. If that's what they want to do, they already have that ability. I think what we need to do is keep in mind of what -- we found a violation. We need to solve this violation. We've already had testimony that, in essence -- even though we say solve it by tomorrow, in my mind, keeping the birds in the house -- I don't know. With all the doors and windows closed, maybe nobody can hear it. So the order would have to be that Ms. Maroules never opens her doors and windows because if the birds squawked, the sound would go outside. I think we're getting a little far afield of trying to solve the problem. But if she agreed to do that today and then accidentally opened up the door a month from now, code enforcement would say she's still in violation. So I'm having problems how we solve the problem. MR. PONTE: Yeah. There's a real -- CHAIRMAN FLEGAL: There's no way -- the only way, I guess, legitimately to get a handle on this, which is, I guess, the worst course of action, is that she didn't have birds. Then you know the problem won't exist. Short of that I don't know how you control this. I really have been searching for a way to control it, and I haven't got one yet. MR. LEHMANN: I agree with what you're saying, Mr. Chair, but the comments that I want to make very clear to the board have to Page 110 October 25, 2001 do with people's rights. Ms. Maroules has the right to keep pets of her choosing. She has that right. But somewhere in our constitution or other governmental documents also balanced against a person's right to keep whatever they want is another person's right to not be harmed or inflicted by the first person's right to do something. I think that's crucial to this case. We have a respondent that has a right to keep whatever animal we want, but we also have neighbors with rights not to be disturbed in their everyday lifestyle. They did not ask for the birds to move in. They did not ask for the noise that is occurring for the birds, yet they are enduring it. They have rights also, and I think it is very important for this board to consider the neighbors' rights as much as the respondent's rights; in fact, possibly more simply because of the sheer volume of people. MR. PONTE: There's no denying that fact. I mean, that has to be the position. But how do you enforce what is -- you have to construct -- CHAIRMAN FLEGAL: Well, that's what I've been saying. I don't disagree with Peter. I'm just saying I don't know how to enforce it short of getting rid of the birds because it you put them in the house and then open the doors and they make noise, the county, possibly, is going to cite them. MR. MOUNTFORD: May I be heard? CHAIRMAN FLEGAL: Sure. We need all the help we can get. MR. MOUNTFORD: You obviously were aware that the neighbors are very concerned and upset about this. CHAIRMAN FLEGAL: We understand that. MR. MOUNTFORD: But you didn't hear any of the neighbors say make her get rid of her birds. They only requested that when they make noise in the morning and at night, that they be kept inside. That was the request they made. When those birds are in the house, Page 111 October 25, 2001 noises are bearable. I think that when you're forging a remedy, the remedy should take into effect (sic) the fact that maybe these birds should remain inside at the time that they make the noises, which is in the morning and in the late evening. CHAIRMAN FLEGAL: Okay. My-- MR. MOUNTFORD: And -- and I'm just trying to hopefully assist the board and not take the position make her get rid of those birds, because I agree that she has some rights to those birds also, but people have rights. CHAIRMAN FLEGAL: Well, my -- MR. MOUNTFORD: And the adjoining neighbors are very concerned about that. And I agree the enforceability may be difficult. CHAIRMAN FLEGAL: My problem is if we would direct her to keep her birds inside and they still make noise and the neighbors complain -- MR. MOUNTFORD: That would be another ball game. CHAIRMAN FLEGAL: I understand. So we really haven't solved the problem. MR. MOUNTFORD: We haven't tried that. CHAIRMAN FLEGAL: Well, I don't know. She says she's moved them indoors, and everybody's saying they're still making noise. So I-- MS. RAWSON: IfI can-- MR. MOUNTFORD: I believe the testimony was that she didn't move them indoors, that she kept them on the lanai. CHAIRMAN FLEGAL: She said she moved them indoors. We have testimony. MS. RAWSON: If I can jump in here, I don't want you to go too far afield with what you order the respondents to do in any case, and you're usually very careful about not doing that. And lots of times I've heard you say, "Abate the violation," period, because you Page 112 October 25,2001 don't want to, you know, tell them what to do. And I don't really think you should go as far as saying keep them in the house, don't keep them in the house. I think what you have to look at is what she's been cited for -- and now you've found a violation -- that her birds were squawking at decibels over the county ordinance requirements. So it's incumbent upon her, now that you've found a violation exists, to keep her birds from squawking at decibels over the county ordinance requirements. And how she does that is going to be up to her. Now, how you enforce it, well, if they're outside and they're squawking at decibels over the county ordinance requirements, then the Code Enforcement Board's going to bring them back here as a recurring and/or repeat violation. But I don't think you can micromanage how she treats her birds from here out. MR. PONTE: I think that's right, but the problem exists. Mr. Dantini made several visits out there and metered on several occasions and found no violation. MS. RAWSON: Well, and he may have to do it again. MR. PONTE: The question is how often is it practical to go and monitor whether or not a violation, under that kind of creation of remedy or penalty, is -- is-- CHAIRMAN FLEGAL: No. I don't -- I don't think we write an order or issue an order saying that they should be monitored forever. MS. RAWSON: I don't think you have to say anything about the monitoring. CHAIRMAN FLEGAL: I don't either. MS. RAWSON: I think you just basically tell her she has to abate the violation. CHAIRMAN FLEGAL: And that's it. MS. RAWSON: She cannot have her birds squawking at decibels above the -- the noise ordinance, period. And if-- if that Page 113 October 25,2001 occurs in the future, then I'm sure that enforcement's going to bring it back to you. CHAIRMAN FLEGAL: Yeah. That would be a repeat violation. Give her some -- like everything else, we give her some time period, whether it's close of business today, tomorrow, to abate this violation. And then if she complies, which she's done once, then that's done. If Mr. Dantini goes out there -- this is Thursday. If he goes out there Saturday or Sunday or Monday and the bird's squawking, they need to write up another violation -- and that would be a repeat -- and bring it back; correct? MS. RAWSON: I think so. CHAIRMAN FLEGAL: Okay. That's what I thought. MR. LEHMANN: Mr. Chair, at what point in time -- if we have violations, repeat violations, and continued hearings and hearings, at what point in time does the problem finally stop existing? CHAIRMAN FLEGAL: Well, when they're -- you must-- you must handle each violation as it's brought to you. You can't say, "Well, gee, this is the second time I've seen this. Now I want to do something so I never see this again in my lifetime." I don't think that's feasible or what we're here to do. MS. RAWSON: One of the things that you know you have to consider in assessing fines and in incurring and imposing those fines is whether or not the violation has been abated and whether or not this is the first time you've seen it. That's something you consider, too, when they come back and ask that fines be waived or reduced. So at some point in time you're going to consider have you heard this case before. CHAIRMAN FLEGAL: Yeah. And-- MS. RAWSON: But you can't -- you can't moni -- you can't write an order so that once you find a violation, that you can ensure that it's never going to occur again. Page 114 October 25, 2001 CHAIRMAN FLEGAL: Yeah. And repeat violations, ifI understand, do not necessarily, if I'm remembering, need a hearing; is that correct? MS. RAWSON: Well, we have a hearing of sorts on everything. CHAIRMAN FLEGAL: But we don't need to go full-blown, as I understand-- MS. RAWSON: No, we don't. CHAIRMAN FLEGAL: -- how the statute's written. MS. RAWSON: No, we don't. MR. LEHMANN: And, again, pursuant to the statutes that govern this board-- and we have to act in accordance with the ordinances, the statutes that govern us -- in determining the amount of fine or our order, the enforcement board must consider the following factors: And that is the gravity of the violation, any actions taken by the violator to correct the violation, and any previous violations committed by the violator. CHAIRMAN FLEGAL: Okay. That's easy to do. There's never -- MR. LEHMANN: Those are the only three things we can consider. CHAIRMAN FLEGAL: There's never been that violation before this board before, so you throw that out. MR. LEHMANN: Right. CHAIRMAN FLEGAL: The birds' squawking, we've heard it. How drastic is it? I don't think that's drastic enough to say, "Gee, we need a $250-a-day fine." It's no different than something else making a lot of noise. This is the first time, first offense. When she was first cited, she solved the problem. And it's occurred again, but she wasn't written up a second time. We're -- this whole thing's based on something that she solved. There was three sound readings after the violation, and there was no violation. So you take that into Page 115 October 25, 2001 consideration. So this is really a first time for the whole nine yards, and it's not what I would, I guess, put in my crystal ball as drastic. The second time it comes here, maybe we're moving up on the scale. The third time, you know, you can -- you can keep jacking the money up until you get somebody's attention. And maybe the money will get to such a point down the road that the person's -- decides to get rid of the birds. I don't know. MS. TAYLOR: But in the meantime -- CHAIRMAN FLEGAL: But right now -- MS. TAYLOR: In the meantime, these people are suffering, still suffering. CHAIRMAN FLEGAL: I understand all that. MS. TAYLOR: You don't understand the noise these birds make. I hope that somebody moves in next door to you and has a macaw. That's what I hope. You're going to change your whole tune. MR. LEHMANN: Mr. Chairman, what would you recommend as far as an order of the board? You seem to have a handle on it. CHAIRMAN FLEGAL: I don't have a handle on it. I think we should give her-- it sounds like an easy problem to solve. Everybody keeps saying put the birds indoors. I think the order should say that the birds should be moved indoors and, you know, the violation -- MR. PONTE: Mr. Chairman-- CHAIRMAN FLEGAL: -- be abated. MR. PONTE: Mr. Chairman, I don't think we have the right to tell her what to do with the birds. What we have the right to do is to tell her what to do about the violation. So we're giving her the mechanics of how to solve the problem by saying move it indoors. I don't think we can tell her to move them indoors. CHAIRMAN FLEGAL: Well -- Page 116 October 25, 2001 MR. LEHMANN: I agree with my colleague. I think the board's position ought to be to order the respondent to achieve compliance by whatever means. MR. PONTE: Period. MR. LEHMANN: Period. And then a -- CHAIRMAN FLEGAL: Okay. It's your decision. I'm just saying we've told other people to remove trash from their lot and remove this, do that, move this, buy this. Why not put the birds indoors? I don't see that big a problem. If she doesn't keep them indoors or chooses not to abide by that, she's going to get fined. That's her problem. MR. PONTE: Because the violation really isn't the presence of the macaws on the lanai. It's the noise. MS. RAWSON: That would be my problem with you having that kind of an order. You tell her to put the birds inside and she takes the birds outside and they don't squawk, now is she in violation of this order? And I don't think so because remember, the violation is that these birds squawk and it's above the decibels allowed by our noise ordinance. CHAIRMAN FLEGAL: Okay. I'll accept that. MS. SAUNDERS: My big concern is that I think we're going to be right back here in a couple of months. She has testified that the birds need to get outside at some point to get some exercise and to have some freedom. The neighbors have testified and are very attuned now to the fact that any noise is going to set them off, and they're going to be upset and call code enforcement. I don't know if it's possible for us to recommend mediation or arbitration, to put a fine in, say -- and basically-- I always come up with these wild ideas. I know. But my suggestion would be that we ask -- we tell her to cease all noise or any squawking at this time and that we ask all parties Page 117 October 25, 2001 involved to go to mediation to see if there is a time during the day, from 2 p.m. To 4 p.m., that she can work her schedule to -- to allow everybody's rights to be solved so that the neighbors aren't constantly calling and saying, "I heard the bird again." And they're right. They did. And our code enforcement guys are camping out there waiting to get you, because that's not what we're in. So I throw that out. I don't even know how we can do that, but I think that's the only way this is going to be really solved, if we come up with a time frame -- if a mediation or arbitration of an outdoor schedule is worked out somehow. CHAIRMAN FLEGAL: I have a little problem with that, and I need to ask Ms. Rawson. MR. PONTE: I think it's an excellent idea. CHAIRMAN FLEGAL: Well, it may be an excellent idea, but I have a little problem with it. MS. RAWSON: I don't think you have the order to -- the power to order people to mediation. CHAIRMAN FLEGAL: Right. MS. RAWSON: While I certainly believe it's always a good idea, that would have to be voluntary. CHAIRMAN FLEGAL: Yeah, because this violation is against Ms. Maroules, not her neighbors. So we can't order neighbors to do anything. MS. SAUNDERS: But we can order the county -- or we can ask if the county -- CHAIRMAN FLEGAL: No, we can't order the county to do anything. MS. SAUNDERS: I said we can ask if the attorney for the county might be willing to submit -- CHAIRMAN FLEGAL: Well, but that's not part of our order. MS. SAUNDERS: -- voluntarily in arbitration with the lady. Page 118 October 25, 2001 CHAIRMAN FLEGAL: Well, but that's not part of an order. So if you want to do that as a side, be my guest. But let's get back to something this board can order the respondent to do, period. MS. SAUNDERS: Okay. MR. PONTE: To do something very vague -- MS. SAUNDERS: I would like to -- MR. PONTE: -- I think we just order the respondent to abate violation. CHAIRMAN FLEGAL: Correct. MS. SAUNDERS: And I would indicate that the defendant, whether it's official or not, and -- who went to her neighborhood and asked for mediation was doing a very definite thing to abate the violation. So if there was no cooperation on behalf of the neighbors, I would see her as trying to have abated it and being unsuccessful. MR. LEHMANN: I disagree. CHAIRMAN FLEGAL: I disagree with that. MR. LEHMANN: Any mediation attempt is not abating the problem. The problem is the fact that we have a noise violation that is occurring continually over a period of time. That is the problem. Whether we talk about it -- I can talk all day long, and it doesn't keep the birds from disturbing the neighbors. You have a very real problem here, and all the talk in the world isn't going to do anything. You have to take an action with the bird somehow. You know, again, I think that this board -- I think this board is forgetting the rights of the neighbors. The neighbors have the right to live peacefully, and I think we're forgetting that. CHAIRMAN FLEGAL: No, we're not. We don't have the power to do anything -- MR. PONTE: We're not at all forgetting that. CHAIRMAN FLEGAL: -- short of ordering, you know, maybe, the birds to -- get rid of, and I'm not for that. I think that's way above Page 119 October 25, 2001 and beyond. There's a lot of other things that might possibly be done first. MS. GODFREY-LINT: Well, these birds are very intelligent. Maybe she can teach them, perhaps, not to scream when they go outside. MR. LEHMANN: I think we're having too much discussion on this. I think the bottom line is the board needs to take the position of ordering compliance, period. However Ms. Maroules decides to accomplish that, I don't care. All I care is that we obtain compliance and the problem goes away. The only thing that bothers me is typically at this stage we have a fine if that does not occur. How do we do that in this particular case? MS. SAUNDERS: How about if we give her 30 days to abate the problem, which means that she's got some time to try and do mediation if she chooses to, retrain the birds, or get them used to staying in the house all the time. MR. LEHMANN: One second. Let me -- MR. PONTE: I don't think the time -- MR. LEHMANN: Excuse me. Let me -- MR. PONTE: Just to comment on Rhona's perspective -- MR. LEHMANN: Wait a minute, George. Mediation does not solve the problem. I don't care if her neighbors all get together and say, "It's great. Let the bird squawk." The fact of the matter is the bird is exceeding county levels. Her neighbors can agree that that's acceptable to them, but that still does not abate the problem. The violation occurs when those noise levels exceed the county requirements. I don't care who agrees to it. The order is the order, and the ordinance is the ordinance, period. MR. PONTE: Yeah. I would just add on to that and say I don't think it's a 30-day situation. It's as of now. MS. TAYLOR: Now. Page 120 October 25,2001 MR. PONTE: There's no reason for a time. MS. SAUNDERS: Okay. MR. LEHMANN: Well, I think there should be a time period because in order for Ms. Maroules to do anything at all, she will require some period of time. It can be a relatively short period of-- MS. TAYLOR: Move the cages inside. MR. PONTE: Keep them indoors. They're indoors now. MS. TAYLOR: That's it. That'll take about one hour at the most. It shouldn't even take that long. (Ms. Maroules speaking from the audience.) CHAIRMAN FLEGAL: That's all right, ma'am. We're -- we're not hearing testimony anymore. All right. Does somebody want to try a order of the board? Or if not, I'll try it. MR. LEHMANN: Well, my -- my thought originally was to follow staff's recommendation of a hundred-dollar-a-day fine, but the problem is, how do we then do that hundred dollars a day? Is it an occurrence where the county has documented? CHAIRMAN FLEGAL: No. I'm-- I'm violently against giving somebody a blank check that they do on their own time. They already have that ability with a form that they use, a citation, and I think the limit on it is $250. So they already have the ability to -- MR. LEHMANN: I agree. CHAIRMAN FLEGAL: -- blank check somebody 20 times a day if they want. They don't need our authority. MR. LEHMANN: Why don't you take a stab at it. MS. SAUNDERS: Doesn't it make sense, then, that we just -- we do this with payment of operational costs; we not put a fine on it at this point? If it comes back to us as a recurring violation, then we've got another case, and we can say it wasn't solved, and we need the fine. You can't fine them for something that -- otherwise, you're Page 121 October 25, 2001 setting up code enforcement to be out there until they can find a -- if they can find a violation, just to be -- CHAIRMAN FLEGAL: That's what I said-- MS. SAUNDERS: Do we damage our-- CHAIRMAN FLEGAL: -- that I'm not going to do. MS. SAUNDERS: Do we damage our ability to do a fine -- a recurring fine if we don't put a dollar amount on it this time? MS. RAWSON: No. MR. LEHMANN: What about a one-time fee? MS. SAUNDERS: My recommendation would be that the cost -- the operational costs -- and I wonder if you have a feel for what those are at this time. MS. CRUZ: No, we don't. Not at this time. MS. SAUNDERS: They've got to be pretty high. He's been out there a lot. There's been a lot going back and forth. I think that's enough to -- for me to say, "Okay. Pay the operational costs for -- incurred in the prosecution of this case and cease -- and eliminate the problem." MR. PONTE: Rhona, make that a motion, and I'll second it. MS. SAUNDERS: I so move. I move that -- MR. LEHMANN: May I discuss the motion before we vote on it? MS. SAUNDERS: Sure. MR. LEHMANN: Your consequence to all the hassle that everyone has gone through is to pay the operational costs. MS. SAUNDERS: And have the penalty that if there is a -- if this recurs again, then it become -- it is a recurring event; and therefore, the fines can be much more substantial. CHAIRMAN FLEGAL: First of all, what the neighbors have gone through is unfortunate, Peter, but when we -- when we issue an order, you have to -- you know, we have to give the person some time Page 122 October 25,2001 to correct the problem. If not, then there is a fine associated with that. You can't sit there and say, "Oh, well, let's pick a big number because the neighbors have been going through heck." That doesn't work. This is the first case -- this is the first time this case has been here. You must use judgment. You just shouldn't slap a big number on there because it's not in, really, essence, from what I've heard on the tape -- and I realize it's probably terrible if you live there and if it goes on a lot. But right now based on what testimony's been given and paperwork, it doesn't seem like it's overpowering, at this five seconds, with what's presented. I'm not trying to belittle it. It may be. But what's been presented, which is all I can work with. I think the order should be as our colleagues have stated: You know, ask her -- order her to solve the problem immediately, whether it's in 24 hours or 48 hours. If she fails to do that, there's a fine of X until she solves it, which may be on the day she's supposed to solve it. Again, 24 or 48 hours, code enforcement goes out and hears the birds, she pays the fine. And then an hour later, a day later they don't hear it, then it's done. Then the next time they write it up and bring it back to us, and now we start taking the number up because it is very important because she has not complied. MR. LEHMANN: I understand that. But my point, again, in the motion is that the motion did not contain any daily fine. CHAIRMAN FLEGAL: Well, that was a question I was going to ask Ms. Rawson. Do we have a problem if we didn't -- and I'm not saying we won't -- put a -- we ordered somebody to comply by a date and then the only thing we asked them to pay was the prosecutorial cost, period, that on a repeat violation, we now can take the number up to the -- what is it -- $500 limit if we want to or -- MS. RAWSON: Well, because it's a repeat violation, you could. As I understand, the motion that you've passed already was that she Page 123 October 25,2001 was to abate the problem and come into compliance. CHAIRMAN FLEGAL: No. We haven't voted on that yet. MS. RAWSON: You didn't vote on that? CHAIRMAN FLEGAL: No. We're still discussing it. We've had a motion but we're discussing. MS. RAWSON: Then we had another motion over here about the costs. MR. LEHMANN: We have a motion on the table that has been seconded, and that motion is that the respondent pay the operational costs and to come into compliance within -- MS. RAWSON: Immediately? MS. SAUNDERS: We didn't say a time frame. CHAIRMAN FLEGAL: But we didn't vote on it. It's just a motion so far. MS. RAWSON: But in answer to your question, when you come back on a repeat violation, you obviously can increase the fines or have fines for the first time. CHAIRMAN FLEGAL: But we -- do we necessarily need a fine the first time to give us the springboard to do -- MS. RAWSON: No. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: And, again, I would ask my colleague that that fine be included in her motion simply because if the respondent does not comply by whatever date the board says, there's no consequence. MS. TAYLOR: I agree. MS. SAUNDERS: Okay. I see what you're saying. Then let's say within 48 hours. She complies within 48 hours, or there's a fine of $100 each time the violation is observed. CHAIRMAN FLEGAL: No. That's not-- MS. SAUNDERS: That doesn't work. No. Forget it. Page 124 October 25, 2001 CHAIRMAN FLEGAL: That's a blank check. MS. SAUNDERS: Within 48 hours, period, no fine. MS. ARNOLD: I have a -- MR. LEHMANN: Might I recommend -- excuse me. Might I recommend to my colleague that the order be revised to state that the respondent pay all operational costs incurred in the prosecution of the case and to achieve compliance within 48 hours or a fine of $100 will be imposed each -- excuse me -- will be imposed for each day that a violation continues to be in noncompliance. CHAIRMAN FLEGAL: Okay. MS. ARNOLD: For the record -- MR. PONTE: What's the difference with that and just having someone out there every other day just to do the monitoring? MS. ARNOLD: For the record-- MR. PONTE: We're back to the blank check again. CHAIRMAN FLEGAL: Well, I think if we set the time limit of 48 hours, normally -- I believe what occurs is normally it's a day -- code enforcement goes out, I guess, the next day to see if compliance has been achieved with whatever. So if they would go out the day after the 48 hours is up and there is no noise, then she has achieved compliance, and it's done. Now, if they go back the day after that and there's noise, to me that is a repeat violation, and they must write up another document and bring it back here. MR. PONTE: That's right. MR. LEHMANN: Which is a brand-new case. MR. PONTE: That's right. CHAIRMAN FLEGAL: Yes. And it's a repeat violation. So the -- the penalty phase increases drastically. MS. TAYLOR: But isn't there a fine if-- if it is not -- if she doesn't do what she's supposed to do, is there not a fine, immediate fine? Page 125 October 25,2001 CHAIRMAN FLEGAL: Well, but code enforcement has a vehicle to do that but not based on our order because she complied with the order. She met the requirement. We said get silent within 48 hours. They went out there, let's say, the 49th hour, and it was silent. That's done. MS. ARNOLD: I just wanted -- for the record, Michelle Arnold. I just wanted to make a point that with the additional time, the time frame that you're giving, whether it's 24 or 48 hours to correct, essentially what you're doing is saying you can exceed the sound levels for another 24 or 48 hours, because that's what we're bringing this to you -- this case to you about. It's an excess of the levels established in the noise ordinance. So to say we're going to give you an additional 24 hours or 48 hours, whatever that time frame is, we're saying that we're going to allow you to violate the code for that time frame again. I just wanted to state that as -- CHAIRMAN FLEGAL: And we do that on everything. We do that on every violation. We give people time, and therefore, they are still in violation of the ordinances. MS. ARNOLD: What we are dealing with is an irreversible violation, something that has occurred and stopped. When we're talking about litter, it's something that is on the ground that needs to be corrected. This particular thing is -- is an irreversible, irreparable violation that has happened, and it stopped. And that's the difference, and that's the -- I think what -- what my recommendation would be is to say to not occur again. It's not like we're saying that the birds are out there squawking as we -- as we speak like the litter violation that we bring to you that is out there existing on somebody's particular property. That's the difference. CHAIRMAN FLEGAL: I don't like telling people that, you know, you stop five seconds from now. She's not even there, so she can't solve that problem. It's occurred up till now. Unfortunately, the Page 126 October 25, 2001 people have been living with this. I think another 24 or 48 hours -- and obviously, according even to the county attorney, they only squawk in the morning and evening, so this isn't a 24 hour a day, every minute of every day that they're doing this -- is not unreasonable at this point. What we're doing is trying to solve the problem, and I don't think you solve the problem by saying you've got five seconds to comply. I think that's irrelevant -- MR. PONTE: Mr. Chairman-- CHAIRMAN FLEGAL: -- and immaterial. MR. PONTE: Mr. Chairman, I just think that it's almost a self- correcting violation -- when the squawking stops, it's over-- and that if you then put any kind of time frame on it -- I mean, if you want to do something simply because the respondent is here and say as of, you know, close of business today or whenever she's home, that's when it kicks in. But to say 24 hours or 48 hours -- I mean, the violation was May 4th, and it ended on May 4th, and anything more is another violation. So -- CHAIRMAN FLEGAL: Which they weren't written up for because it occurred again on the 12th and the 14th. MR. PONTE: So there isn't -- I don't -- there isn't a need for a time requirement. MS. SAUNDERS: I agree with you. MR. LEHMANN: Well, but my colleague -- I'm having a difficult time expressing what I really mean with this, and maybe I can do it this way. And I appreciate this because I think you've hit on it. The respondent, under the current order that we're looking at right now to vote on, if she goes home today, puts the birds in the house for a day, and then takes them out again tomorrow, the problem's still there. She's complied with the order, brand-new case, we're right back here again the day after. We haven't accomplished anything. That's my concern. This problem needs to stop on a permanent basis, Page 127 October 25, 2001 not just say come into compliance and then now you're a brand-new case, so we can find loopholes to tie us up forever on this case. CHAIRMAN FLEGAL: What's your solution to stop forever? MS. TAYLOR: A big fine. MR. LEHMANN: Staff-- staff has hit it. A hundred dollars a day each time the violation occurs. You know -- CHAIRMAN FLEGAL: Why do they need us to tell them to do that? They already have that ability. MR. LEHMANN: I -- I see no problem with them asking us to do that. We do it for every -- CHAIRMAN FLEGAL: And who makes this determination? MR. LEHMANN: It has to be recorded by staff that an actual violation has occurred identical to the testimony and the evidence that's presented to us today, which we've already decided a violation did occur. Readings can be taken and documented. MR. PONTE: Peter, if-- if the violation is, in fact, exceeding the decibel limitations that the county has and the squawk happens once this minute and once two minutes from now and once a minute after that, we're going to get three violations and $300? MR. LEHMANN: No. The fine is for a hundred -- a hundred dollars a day, a maximum of a hundred dollars a day. CHAIRMAN FLEGAL: No. That's not what this says. You're changing -- MR. LEHMANN: Then we'll change that, you know. But, you know, you have to -- you have to put something in here that controls the problem -- ultimately controls the problem. If I have a respondent that chooses to allow her birds to stay out every day and then pay the hundred-dollars-a-day fine each day that she is cited -- MR. PONTE: Each day the violation occurs. MR. LEHMANN: -- that's her prerogative. CHAIRMAN FLEGAL: But, Peter, you don't do that on Page 128 October 25, 2001 anything else. MR. LEHMANN: We don't have cases like this. CHAIRMAN FLEGAL: Excuse me. MR. LEHMANN: This is a very unique case. CHAIRMAN FLEGAL: A case is a case. It's all the same. It's a violation of an ordinance. If you have litter on the street, you tell him to pick it up by today; he picks it up. He puts litter there tomorrow, it's litter. It's a violation. Her bird squawks today, doesn't tomorrow, but squawks the next day, it's the same thing. It's all a violation. MS. TAYLOR: I would like to make a motion that she takes care of this problem by six o'clock tonight. And if she doesn't and there is another problem, a $500 fine. And then if it's brought back to us again, same thing all over. And why are you shaking your head? CHAIRMAN FLEGAL: You can't do $500. MS. TAYLOR: All right. Two fifty then. We can do that. MR. LEHMANN: Well, Mr. Chairman, we already have a motion on the table. And I think-- CHAIRMAN FLEGAL: Well, we haven't really got it ironed out what it exactly is. We keep going -- wanting it changed, so I haven't heard what it really is. MR. LEHMANN: I, for one, would like to -- to hear that motion and get it voted on so it either gets off the table and we can proceed with something more serious, or it passes. CHAIRMAN FLEGAL: Okay. Rhona, would you repeat it, please, because I know you've been asked to change it a couple times. MS. SAUNDERS: Okay, if I can. That the Code Enforcement Board order the respondent to pay all operational costs incurred in the prosecution of this case and correct the violation immediately -- correct the violation immediately. CHAIRMAN FLEGAL: Okay. That's the motion. Diane, did Page 129 October 25, 2001 you give the second before, or did you-- MS. TAYLOR: No, I didn't. CHAIRMAN FLEGAL: Okay. We have a motion on the floor. Any second to the motion? MR. PONTE: I just want to amend it slightly, so that would make it another motion. And just to continue on, or a fine of blank will be imposed each day the violation occurs or is documented. MS. SAUNDERS: Each day the violation is documented is better. CHAIRMAN FLEGAL: Okay. So then, Ms. Rawson, if we did that in that exact vein, this order would be in existence forever; correct? Because it says comply immediately -- MS. RAWSON: Yes. CHAIRMAN FLEGAL: -- or you get a fine every time the violation occurs, and there's no end to it. MS. SAUNDERS: No. Is documented. MR. PONTE: Each day. CHAIRMAN FLEGAL: Each day. Okay. There's no end to it. It's infinitum. MS. RAWSON: The violation, remember, has to be exceeding the decibels of the noise ordinance. CHAIRMAN FLEGAL: I understand, but they're saying in this order that any time it exceeds the noise level, it's an automatic hundred dollars a day. And it's kind of a blank check for the rest of this lady's natural life. MS. RAWSON: That's the -- what we do on the other cases too. I mean, it's not any -- CHAIRMAN FLEGAL: No. We put a time limit, and they comply. And when they comply by some date, we get an affidavit from the county that says they complied by the date said -- MS. RAWSON: And if they-- Page 130 October 25, 2001 CHAIRMAN FLEGAL: -- and that order's done. MS. RAWSON: And if they don't comply, we just keep fining them forever. CHAIRMAN FLEGAL: Okay. So -- so if we do this and by six o'clock tonight she complies, tomorrow code enforcement go out there and there's no noise, they issue this affidavit, this order is done. They can't fine her a week from now because her birds are squawking under this order. MS. RAWSON: That's true. CHAIRMAN FLEGAL: Okay. MS. RAWSON: It could come back on a repeat violation. CHAIRMAN FLEGAL: Good. I'll live with that because I want code enforcement to show me in the record where they go out tomorrow and check and there is or there is not noise. Otherwise, there'll be a big problem. No blank checks. MR. LEHMANN: Well, I -- I think this order is poorly crafted simply because it allows too many loopholes. This is an order with no force in it at all. It's got no teeth. I cannot support this motion. So if you please take it to a vote, I'll so document. MR. PONTE: What's the reason that you can't? What is your specific objection? MR. LEHMANN: This lady could go tonight, put the birds in the house for 48 hours, 24 hours, however she chooses, and she's complied with the order. And then the next day she can take the birds back out and go back to business as usual. MR. PONTE: No. We-- MR. LEHMANN: We have no compliance with the code. MR. PONTE: We then added-- MR. LEHMANN: We've achieved compliance for-- MR. PONTE: We then added or a fine of blank will be imposed each day the violation is documented. Page 131 October 25,2001 CHAIRMAN FLEGAL: But if they go out tomorrow and there's no noise, the violation has then been abated. It's done, like every other order. Tomorrow's Friday. MR. PONTE: That's right. CHAIRMAN FLEGAL: Saturday they choose to go out and the bird's making noise, it has nothing to do with this order. MR. PONTE: That's right. CHAIRMAN FLEGAL: That's another violation. MR. PONTE: That's correct. CHAIRMAN FLEGAL: Okay. Well, that's what Peter doesn't like. He thinks it should be -- run forever, and that's what I said, the only way you're going to stop that is get rid of these birds. So, I mean, it's impossible to issue an order where something's not going to occur short of getting rid of the birds. MR. LEHMANN: I did not -- I'm not looking for an order that places this lady under penalty of wrath -- CHAIRMAN FLEGAL: But that's what you're -- MR. LEHMANN: -- for the rest of her life. CHAIRMAN FLEGAL: -- asking us to do. MR. LEHMANN: No. I'm not asking you to support this order. I'm asking you not to support this order. CHAIRMAN FLEGAL: No. You said the way you want it is any time the birds squawk, we give them a blank check to fine her a hundred dollars. So for the rest of her life, she's going to get nailed. MR. LEHMANN: Ms. Arnold-- MR. PONTE: He said no teeth. MR. LEHMANN: Ms. Arnold, help us draft something that is acceptable. I do not want the respondent to have to live the rest of her life under penalty of wrath-- CHAIRMAN FLEGAL: Well, but wait a minute. MR. LEHMANN: -- but at the same time, I do want this Page 132 October 25, 2001 particular violation abated. CHAIRMAN FLEGAL: Okay. I don't want the county drafting our orders, first of all. MR. LEHMANN: Well, they gave a recommendation anyway. CHAIRMAN FLEGAL: That's fine. They give a recommendation. They've done that. MR. LEHMANN: That's all I'm asking for. CHAIRMAN FLEGAL: That's done. Now, they have an ability to fine people without coming to this board. I've seen it on your tickets that you issue. So they have an ability to do something to the respondent past our order. For some reason they haven't done that. And, you know, maybe they will now that we get an order out. Maybe that'll give them a little incentive to do something. I don't want this board to write a blank-check order when they already have an ability should something occur after whatever order we issue. I'm not against them bringing it back so that we can jack up the fines. And in the meantime, they have a method to handle what you're concerned about. They have on their -- whatever they call them -- notice of violations, I believe it is, because I've seen it written on the side. They can fine up to $250, and you can take people to court and do that and all that stuff. MS. ARNOLD: The -- on the notice of violation where it's making reference to the 250 per day and up to 500 is expressing the hearing process. We do have the ability to cite someone, issue a citation for a reoccurring violation. We have the option of bringing something to this board or citing something when something repeatedly exists based on whether or not we feel what's going to be most effective. And we think that bringing this item to the board-- because of the frustration that the neighbors have had and that it has been an unresolved problem for some time, we thought it would be best heard in this venue. That's why we brought it here. Page 133 October 25,2001 With respect to a recommendation, I think it would be appropriate to request operational costs and make an assessment of a penalty. The chairman is correct. We can bring this back to you as a repeat violation if it persists beyond today, and that would be probably the best way to handle it. Had we brought this case to you as a recurring problem, then you could make the determination on those instances where we provided evidence that those violations occurred; they, in fact, did occur on those dates and times; and that was a -- this is a reoccurring problem. We didn't bring it to you that way. We brought it to you as, you know, on May 14th (sic) this is what happened. And we provided testimony to the effect that it has been reoccurring, but we didn't bring it to you as a reoccurring problem. So it would be fine for you- all to, you know, make a determination did the violation exist based on the evidence that you got presented to you today, make a finding of fact of such, and assess operational costs as well as a penalty, a one-time penalty, for that occurrence. You could do that if you wanted to. And if I'm incorrect, counsel could state that. But then on the reoccurring of the problem, we can bring it back to you with the fact that you guys have found this -- there to have been a previous violation. We would bring it back to you as a re -- reoccurring problem, and at that time you can assess a $500 penalty for each occurrence that it happened based on the information that we bring back to you. MS. RAWSON: I think you probably can't issue a fine unless you find her not to be in compliance. CHAIRMAN FLEGAL: Correct. That's the way I understand it. MS. SAUNDERS: I just don't see any point in asking her to come into compliance at this point. She's not going to put the birds out tonight. I mean, that would not be very smart. And it seems to Page 134 October 25, 2001 waste our code enforcement investigator's time to say go out tomorrow. We know it's not going to happen then. She's going to try and solve it. I mean, if you're going to put any time limit on it, I'd say 90 days or something that it's not to occur within, but then -- but that doesn't do it either. So I'm going to go back to my original -- CHAIRMAN FLEGAL: You're trying to set her up to fail, and I don't like that idea. MS. GODFREY-LINT: She already said she put the birds' cages inside already. MR. LEHMANN: This board does not have the right or the authority to ask a respondent not to comply with the ordinances. We have to ask for compliance. You are asking us to approve a variance of an ordinance, which we don't have the authority to do. CHAIRMAN FLEGAL: No, Peter. That's not-- MS. SAUNDERS: No. What I'd like to do is ask her to simply pay the operational costs and solve the problem, period. I don't -- I honestly don't think we need a time period. I don't think we need a fine for it at this point because we have the mechanism in place to have the fine put on if it comes back and it reoccurs. And if we don't put a time period on it, then code enforcement doesn't have to go out and sit there and try and monitor it when there's no problem anymore. MR. PONTE: But, Ms. Saunders, if we don't put a time limit on it, the respondent can say, "Well, I'm going to do it tomorrow." MS. SAUNDERS: Okay. Then we say immediately. MR. PONTE: Or "I'm going to do it in -- next week." MS. SAUNDERS: Okay. Then we put effective immediately or effective six p.m. Today. MR. PONTE: It has to -- that 90 days has got to be -- MS. TAYLOR: Six o'clock tonight. MS. SAUNDERS: Six o'clock tonight's fine. Page 135 October 25,2001 MR. LEHMANN: Jean, let me ask again, and maybe I'm just getting stumped on something I shouldn't be. The respondent-- the board issues an order, and hypothetically the order says we'll have you comply within 24 hours, immediately, whatever. We issue operational costs. We do not issue any fine associated with that. The respondent comes into compliance and then starts the business as usual again. Now we have a brand-new case. MS. RAWSON: Repeat. MR. LEHMANN: Repeat case. Do we at that point in time then have the ability to fine for every occurrence that this thing is occurring.9 In other words, if it -- if testimony proves in that case that we've had it occur five different dates -- MS. RAWSON: Well, no. What you have -- CHAIRMAN FLEGAL: No. MS. RAWSON: What you have to do in your new repeat case is determine whether or not a repeat violation exists and then fine if they don't bring it into compliance then. But you can have a bigger fine because it's repeat. CHAIRMAN FLEGAL: It's based on that occurrence, not the occurrences that happened prior to. MR. LEHMANN: Correct. We still have a motion on the floor. CHAIRMAN FLEGAL: This is no different than any other case. You just -- everybody's making it hard because it's a bird squawking. And I understand the frustration, but it's still a case and a case of somebody not in compliance with an ordinance, whether it's a vehicle, a pile of leaves, a pile of dirt, a pile of rocks, stones in the back yard, a block building with a -- a front porch without a permit. A case is a case is a case. This just happens to be a noisy bird that's obviously created some kind of disharmony in the neighborhood. And what we need to do is get it back to reality, come up with an order that says do it by X. If it's not done, it's a fine. If she Page 136 October 25,2001 complies, great. If it occurs again the next day, the next week, let code enforcement do their job, write it up, bring it back here, take whatever fine -- even though maybe she complied and didn't have to pay one, now we can say, "Oh, it's back. Obviously she has not chose to solve the problem so it doesn't reoccur." Then attach a big number on it and see what happens. But let's just take worst case. Say she complies, then it comes back the third time, then I would probably be prone to see how far Ms. Rawson would let us go to do something drastic. But I think you must be fair to everybody to, you know, give them a chance. She did comply here. She was written up on the 4th, and there was no noise from May 4th to June 12th. That's 39 days without anything occurring, at least according to the testimony given by the county. MR. MOUNTFORD: But, if I may, the problem with that, Mr. Chairman, is whether there was compliance or not, we don't know because Mr. -- CHAIRMAN FLEGAL: Excuse me, sir. We're in deliberation. We're not open to the public. MS. MAROULES' Hey, you. MS. TAYLOR: Hey, you be quiet. CHAIRMAN FLEGAL: All right. Let's calm down, and I'll run the meeting. MS. TAYLOR: Well, try it then. CHAIRMAN FLEGAL: I'm doing a good job if everybody would keep a handle on things and quit getting excited. This isn't -- MR. LEHMANN: For the record, I think our chairman is doing an excellent job running this meeting. CHAIRMAN FLEGAL: I mean, I know everybody's excited about this, but please let's get back to, it's just a case. Put all the frustrations and feelings about it aside and get down to the basics of Page 137 October 25,2001 it, and we can get it solved. MR. PONTE: All right. Let me try. Here we go. I don't know, we have motions on the floor? MS. SAUNDERS: I withdraw anything I ever said. Go ahead, George. MR. PONTE: Let's just try it. Okay. CHAIRMAN FLEGAL: Thank you. MR. PONTE: The CEB orders the respondent to pay all operational costs incurred in the prosecution of this case and to abate the violation by six p.m. Today or a fine of $100 will be imposed each day the violation is documented. MS. SAUNDERS: Michelle, can we ask that the county attempt to enforce this or to monitor it, not tomorrow, but within a period to be determined over, say, 60 days? CHAIRMAN FLEGAL: Well, that has nothing to do with the order. MS. SAUNDERS: It does, because I don't want -- CHAIRMAN FLEGAL: No. It doesn't have anything to do with the order. Please let's get back-- we're dealing with the respondent. We have no control over the county. Anything you want to ask the county -- MS. SAUNDERS: I was going to-- CHAIRMAN FLEGAL: -- ask them after -- MR. SAUNDERS: -- amend the order ifI had a chance to ask my question, Cliff. CHAIRMAN FLEGAL: You know, we need to stick with the order to the respondent. We have no power over the county. We can ask them to do something later. MR. LEHMANN: Mr. Ponte, in your order you say or a fine of $100 will be imposed each time the violation is documented. Does that -- Page 138 October 25, 2001 MR. PONTE: Each day. MR. LEHMANN: Does that mean that you propose this order to be open ended for perpetuity? MR. PONTE: I propose it to be just as any other order. CHAIRMAN FLEGAL: Any other order. So that basically what this would do -- it would be like any other order, that as of six o'clock if the respondent solves the problem, the onus is on the county, since our order says solve it by six, to see that it is solved at six. That means they would have to go out there and see if it is solved at six. Whether it's two minutes after six or five minutes is immaterial to me. But if at that time there is no noise, then the respondent has complied with our order. This order would then be done, finished. Now, if they went out there at eight o'clock at night after they had checked at six -- and I assume they check at some reasonable time, not way after. I assume what you've been sending to us on affidavits anyway says that you check, I think, the day after the order says. If it's on the 4th, you normally go out on the 5th. What hour you go out is immaterial. If it occurs again, that would then be a repeat violation. It wouldn't be a -- a part of this order because at that time, whenever it was after six o'clock today that they check, if there's no noise, she's complied. It's done. This order is then finished. MS. TAYLOR: But what if we put that in the order -- CHAIRMAN FLEGAL: Well, then -- MS. TAYLOR: -- that if she does not comply by six o'clock tonight, then the first time that -- that she is allowing these birds to scream again, a $250 fine kicks in right then and there. CHAIRMAN FLEGAL: Now you're back to the blank check part of it, and I don't like that. MS. TAYLOR: Blank check, I don't get this blank check Page 139 October 25, 2001 business at all. CHAIRMAN FLEGAL: You're giving it to the county that they can go out any time they want for the rest of this lady's natural life, and her birds', and fine her. You're leaving an open or -- you're leaving an order that's open forever. MS. TAYLOR: No, I'm not either. I'm saying that -- CHAIRMAN FLEGAL: That's what you just said. MS. TAYLOR: Listen to me a minute. A $250 fine if she does not comply. CHAIRMAN FLEGAL: Okay. MS. TAYLOR: And then bring her back again. CHAIRMAN FLEGAL: Why? MS. TAYLOR: Because. CHAIRMAN FLEGAL: You need a way to bring her back. That would be a repeat violation. They have to write up another violation. That's what I'm suggesting they do, and nobody likes that idea. And that's exactly what you just said to do. MR. LEHMANN: The order as our colleague has suggested does say exactly what you want it to say with the exception that it's a $100 fine instead of a $250 fine. That's the only difference between your proposed order and Mr. Ponte's. (Ms. Godfrey-Lint left the boardroom.) MS. TAYLOR: Thank you, Peter. MR. PONTE: Well, we have a motion on the floor. MR. LEHMANN: rll second the motion. CHAIRMAN FLEGAL: We have a motion and a second for pay the prosecutorial costs, abate the violation by six, was it, George? MR. PONTE: Yes. CHAIRMAN FLEGAL: And if that doesn't occur, a hundred dollars a day for every day the violation continues past that point, and it's seconded by Peter. Any further discussion? Page 140 October 25,2001 All those in favor signify by saying aye. (Unanimous response with Ms. Godfrey-Lint not present.) CHAIRMAN FLEGAL: Those opposed? (No response.) CHAIRMAN FLEGAL: Motion carries. MR. MOUNTFORD: Thank you. CHAIRMAN FLEGAL: Mrs. Maroules, do you understand what we've done finally? MS. MAROULES: Yeah. CHAIRMAN FLEGAL: Okay. By six o'clock tonight you should see that the birds aren't exceeding the decibel level that the county has in their ordinance. Okay? If you fail to do that by six o'clock and the county comes out, they're going to fine you a hundred dollars a day until you do reach that compliance. Okay? MS. MAROULES: Yes. CHAIRMAN FLEGAL: Okay. MS. MAROULES: And once I reach that compliance, then I'm okay? CHAIRMAN FLEGAL: Yes, ma'am. We want compliance. MS. MAROULES: Yes. I will comply. And then what-- and then anything further I need to -- I have no intention of violating this order. CHAIRMAN FLEGAL: I understand, ma'am. Just please reach compliance by six, and I think everybody will be happy. MS. MAROULES: No. Everybody won't be happy. I'm going to tell you this: Everybody -- CHAIRMAN FLEGAL: Well, that's okay. MS. MAROULES: -- ain't going to be happy. MR. LEHMANN: Ms. Maroules, let me advise you, though, achieving compliance on your part will be very easy. The hard part will be not achieving a repeat violation. If your neighbors complain Page 141 October 25, 2001 again and the investigator goes out and documents it occurring again, it will now be a repeat violation with much stiffer penalties. MS. MAROULES: I understand. MR. LEHMANN: And each time that occurs, it'll just become more difficult. MS. MAROULES: I understand that. MR. LEHMANN: Thank you. CHAIRMAN FLEGAL: Thank you, ma'am. Okay. We'll close the public hearings. New business is request for imposition of fines. Okay. If you're going to talk, please go out in the hall. (Ms. Godfrey-Lint entered the boardroom.) (A discussion was held off the record.) CHAIRMAN FLEGAL: Case 2001-032. MS. CRUZ: Yes, sir. This is for a request for imposition of fines in Board of County Commissioners versus Eloy Fernandez and Francisco Fernandez, Case No. 2001-032. This case came before the board -- was heard by this board on May 24th, 2001, and was found in violation of removal of vegetation and addition of fill on unimproved property without first obtaining all the required Collier County permits. The board ordered the respondent to obtain all necessary permits within 120 days, which would have been by September 23rd, 2001; and further, that the respondent pay all operational costs incurred in the prosecution of the case; and that if the respondent did not comply within that time frame, a fine of $75 be imposed per day for every day the violation continued. We have an affidavit of noncompliance showing that the respondent did not comply as ordered, and we would like to request that an imposition of fines be imposed in the amount of $825, and that would be for the period of September 24th through October 5th at a rate of $75 per day, plus an additional $524.50 for the operational Page 142 October 25,2001 costs incurred in the case. MS. TAYLOR: So moved. CHAIRMAN FLEGAL: Okay. We -- is that a motion, Diane? MS. TAYLOR: It is. CHAIRMAN FLEGAL: Okay. Do we have a second? MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and a second to impose fines as requested by the county. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. The next one is 2001-071, Daniels and Brown. MS. CRUZ: Yes. This is Case No. 2001-071, Board of County Commissioners versus Phleany Daniels and Jennifer Brown. Again, this case was heard by the board on August 23rd, 2001, and it was found in violation of an occupied (sic) structure not maintained in safe condition. The board ordered the respondents to immediately contract to secure the structure and assess the costs to the property owner -- I'm sorry -- ordered the county to immediately contract to secure the structure and assess the costs to the property owner and that the respondent pay all operational costs incurred in the prosecution of this case. The county abated -- obtained compliance as ordered by the board and requests that the board issue an imposition of fines in the amount of $275 for abatement of the cost -- the abatement cost of the violation and $447.76 for the operational costs incurred in the prosecution of the case. MS. TAYLOR: So moved. MR. LEHMANN: Second. Page 143 October 25, 2001 CHAIRMAN FLEGAL: We have a motion and a second to impose costs as requested by the county. All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Request for dismissal or reduction of fines, Chad Dutton, 2001-053. MS. ARNOLD: This was a request of the respondent to modify fines. I don't know if Mr. Dutton is here. CHAIRMAN FLEGAL: Yeah, Mr. Dutton is here. Mr. Dutton, would you like to come forward and -- MS. ARNOLD: That's not him. CHAIRMAN FLEGAL: Oh, it's not him? Okay. So Mr. Dutton isn't here. MR. PONTE: I have a question, I guess, for Michelle. Alex was the investigator on this case. Do you know whether or not she has verified that Mr. Dutton did, in fact, have this accident that he claims to have and what his condition is? MS. ARNOLD: She -- I did speak with Alex, and she indicated to me that he did have, you know, the occurrence -- you know, the accidents within his family and those types of incidents. MR. PONTE: So a truck fell on him. MS. ARNOLD: He did correct the violation, I believe, by the time that the board ordered him to do so, but I think he's requesting a reduction of the operational costs. MR. PONTE: Oh, so he's completed it. CHAIRMAN FLEGAL: Okay. So he's done it. He's just looking for a reduction of the prosecution costs; correct? MS. ARNOLD: A waiver of the prosecution costs. CHAIRMAN FLEGAL: A waiver. Okay. Page 144 October 25, 2001 MS. TAYLOR: Which is how much? CHAIRMAN FLEGAL: $507.32. I understand what he's saying, but I think based on past experience -- would the county be able to -- or willing, I guess, not able, but willing to, you know, get with him and try to work out -- MS. ARNOLD: Yes. CHAIRMAN FLEGAL: -- some type of a payment -- MS. ARNOLD: Yes. CHAIRMAN FLEGAL: -- rather than, gee, we want it right now and-- MS. ARNOLD: Yes. CHAIRMAN FLEGAL: I mean, I understand there'll be a lien on his property, and we've already done that. But is that within the realm of-- MS. ARNOLD: Yes, sir, that is absolutely within the realm of what we are able to do. And I, in fact, suggested Alex contact him and ask what would be feasible for him in terms of a payment schedule. CHAIRMAN FLEGAL: Okay. Pleasure of the board with regard to the request. MS. TAYLOR: Well, I agree the board should -- or the staff should work it out with him. MR. LEHMANN: I would move that the request to waive the fees would be denied. MS. SAUNDERS: I would second that. CHAIRMAN FLEGAL: We have a motion and a second on the floor to deny the request to waive the fees. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Any opposed? (No response.) Page 145 October 25,2001 CHAIRMAN FLEGAL: Mr. Medinger, 2001-035, is he here? I notice he has two. Would you swear Mr. Medinger in, please. (The speaker was sworn.) CHAIRMAN FLEGAL: Okay. Sir, tell us what you'd like us to do. MR. MEDINGER: Well, I'm here on behalf of-- I'd like to get a reduction in my fines. I've been trying to do all this compliance with the county and everything, but I've been having a lot of problems with DEP. They're well understaffed. I've got a guy that I hired. His name's Gary Beardsley, tropical environment consultant. He was here with me the last time I came in here. He thought this problem would have been -- with the amount of time that we had, that we would have had this problem solved. Well, right as of the present time, I am in the hands of the DEP, and they said -- they told me -- or they told my -- Gary Beardsley that it would be within a couple weeks I would have my consent order. Well, the couple weeks have gone by. Now this has been a month, and I still haven't got my consent order. And until I get my consent order, I can't do nothing to the property. CHAIRMAN FLEGAL: Okay. So as of right now -- and I assume these two are tied together. MR. MEDINGER: I think the one was already -- I think I already got the one in compliance. The one about the vegetation plan, I think I got that in in time. Where I -- the mistake that we're having here today that I have a problem with was I was supposed to have my permits picked up by a certain date, and I didn't-- I was letting it go by for, like, seven days or something or six days because I got the dates mixed up. I went ahead and picked up the permits. I paid the money, but I can't do nothing to my property, so I'm in the same dilemma I was in 120-some days ago. MS. ARNOLD: Mr. Chairman, Susan Mason, who was the Page 146 October 25, 2001 investigator on this case, she's here, so if you do have any question with respect to, you know, how Mr. Medinger has been working with her towards compliance, she can -- CHAIRMAN FLEGAL: Well, my -- what I first need to find out, on either-- has he complied with either of these orders? MS. MASON: Yes. He's obtained his permits, and he does have a plan in -- in place for the northern property. He just cannot complete the plan until DEP gives him the consent order because he's not allowed to do anything on his property without their okay first. CHAIRMAN FLEGAL: Okay. So he hasn't complied with our order. MS. MASON: He did. MR. PONTE: It says he did. MS. MASON: Yes, he has. CHAIRMAN FLEGAL: That's what I'm trying to get a handle on. Did he or did he not? MR. PONTE: On 035 it says that the corrective action ordered by the board has been taken, and on 036 we've got the same finding. On 036 the action ordered by the board has been taken. CHAIRMAN FLEGAL: Well, I mean, I'm -- what i'm looking at is the order imposing, and I'm -- it says it continues until he comes into compliance. And I'm trying to find out -- you've given us affidavits of compliance. MS. MASON: Yes. MR. PONTE: In both cases. MS. MASON: Yes. CHAIRMAN FLEGAL: Okay. So now we're down to, he's in compliance. What he wants from us is this -- and they both read the same, so I don't -- you know, it looks like six days on each one plus operational costs; is that right, Michelle? MS. ARNOLD: Yes. Page 147 October 25, 2001 CHAIRMAN FLEGAL: Okay. So what you're asking us to do, sir, is waive this -- well, it's $300 on each one, plus the operational cost is a little higher on one than the other. So $834.16 on one and $826.48 on the other. Is that what you're asking us? MR. MEDINGER: Yeah. Because the first time I came in here I had to pay for the cost of this the first time. I'm going to have to pay -- I was -- this is my second time here; correct? CHAIRMAN FLEGAL: No. What you're here now for is -- you were only here once, I believe. There's only these orders, and they were done at the same time. So all you're here now to do is -- there's been a fine imposed. You owe the county money, period. What you're here for, as our understanding is, is to ask us to reduce or waive that money so you don't owe it at all. We're not hearing a case or anything. That's our understanding of why you're here. MR. MEDINGER: Yeah. To lower the fine-- CHAIRMAN FLEGAL: To lower it or waive it, whichever. MR. MEDINGER: Yeah. I do not-- because of all the problems that I'm having with the DEP. CHAIRMAN FLEGAL: No. You're in compliance, so DEP doesn't enter into our decision to help you. You complied by some date. Now tell us why we should waive the money because it took you six extra days. MR. MEDINGER: The six extra days was just because I had the dates mixed up. CHAIRMAN FLEGAL: Okay. I mean, if that's all honesty, that's what we want. Just tell us. You messed up, you messed up. That's fine. We can accept that. We just need to know. Okay. Anybody have any questions for Mr. Medinger? MS. ARNOLD: I just have a -- I need a clarification. He's -- he is request -- you're requesting to waive both the operational cost and the fines; is that right? Or are you requesting to waive just the fines? Page 148 October 25, 2001 There is -- CHAIRMAN FLEGAL: Bottom line is, do you want to pay the county any money or a little money? Let's make it real simple. MR. MEDINGER: Well, with all the problems that I'm having, a little money would be the best. CHAIRMAN FLEGAL: Okay. MR. MEDINGER: Because just for -- the simple fact is I've got a lot ahead of me to take care of besides that. I've got the plans to deal with, which I've talked to Susan about. We're going to come up with maybe a different arrangement on that too. CHAIRMAN FLEGAL: We just want to get a handle on -- right now -- and I threw the two numbers out. They're both 800 plus, is what we're talking about. MS. ARNOLD: Yeah. There's 834.16 on one, and the fine amount on that one is 300. And there's 826.48 on the other, and again, the fine amount is $300. CHAIRMAN FLEGAL: Okay. So those are the two numbers we're talking about. MS. ARNOLD: It's a total of $1,660.64 with a fine amount of $600. CHAIRMAN FLEGAL: Any items on the floor here? MR. PONTE: My feeling is he's worked hard. He's working with the government. He's in compliance, which is what we've tried to achieve and so that the fine certainly should be reduced or eliminated. As for the costs, I'm not so sure. CHAIRMAN FLEGAL: I'm open to something on the table. MS. SAUNDERS: I agree with you, George. I would be in favor of waiving fines, but not the operational costs. MR. LEHMANN: Are either of those two a motion? CHAIRMAN FLEGAL: That's what I'm trying to get. MR. PONTE: Rhona is the wordsmith. We'll let Rhona make a Page 149 October 25, 2001 motion. MS. SAUNDERS: Oh, okay. I move that the fines for Mr. Steve Medinger on CEB Case 2001-035 and 2001-036, fines be waived, however the operational costs in both those cases be maintained. CHAIRMAN FLEGAL: Okay. MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) CHAIRMAN FLEGAL: Those opposed? (No response.) CHAIRMAN FLEGAL: Mr. Medinger, we reduced each one by $300, but you still owe the operational costs. Okay. We have no old business. Affidavits of compliance. MS. ARNOLD: We have one affidavit of compliance for Board of County Commissioners versus Albertina and Terry Acres (sic), Cardona, and that was Code Enforcement Board Case 2001-023. The respondents are in compliance. CHAIRMAN FLEGAL: Good. MS. ARNOLD: And we also have, as far as reports, a report on the status of your cases heard this year. MS. CHADWELL: Good afternoon, members of the board. (A discussion was held off the record.) MS. CHADWELL: I'll be back. CHAIRMAN FLEGAL: Okay. MS. ARNOLD: Ellen Chadwell is very anxiously awaiting to give you a report on the foreclosures. CHAIRMAN FLEGAL: That's good. We like to hear that kind of stuff. Page 150 October 25, 2001 MS. ARNOLD: But I just wanted to roughly go over what it is - - the spreadsheet that you have in your folder is showing just -- and, again, these are cases that were heard in the year 2001 and whether or not those -- what the disposition is on each of those cases, the fine amounts that have been imposed and/or paid, and those cases that were heard that are now in compliance. There is a distinction, too, with those cases in compliance prior to the order made by the Code Enforcement Board. There is also a second document that's behind that. It's a colored document that is entitled "CEB Fines." MR. PONTE: Which I just want to say I think is brilliant. I just -- I saw that, and I loved it right away. Terrific. MS. ARNOLD: What -- what that is showing you is the amounts that we've collected, and we kind of give a historical perspective there for 1999, 2000, and, again, the year 2001. And we have been collecting a lot more fines, as you can see, this year. However, there is -- there was another document that we didn't include that shows that some of our cases, however-- more of our cases now, however, are being -- are coming into compliance after the board's order as opposed to before the board's order. So I'll give you that information at another meeting. CHAIRMAN FLEGAL: I think this is a great report. My question would be, is there -- for the '99 and 2000 where it seems like we -- we started to walk up the stairs, and in 2001 we were taking big jumps up the stairs to collect money. Is there anything this board needs to do for the '99 and 2000 cases to -- MS. ARNOLD: No. Those are -- they're -- those are actually just funds that we collected as opposed to whether or not those cases are just strictly 2001. Some of the fines -- amounts that are included in that 2001 date include some of those older cases. What this is showing is that previously we weren't receiving the funds that were Page 151 October 25,2001 being assessed. CHAIRMAN FLEGAL: Okay. So it's not the individual years. You're collecting the money, like, in 2001 -- MS. ARNOLD: Right. CHAIRMAN FLEGAL: -- for the '99. MS. ARNOLD: Right. CHAIRMAN FLEGAL: So we don't need to ask the county attorney's office to -- MS. ARNOLD: No. CHAIRMAN FLEGAL: -- foreclose -- MS. ARNOLD: We've already asked-- CHAIRMAN FLEGAL: -- on these people. MS. ARNOLD: We have already asked them to do that. CHAIRMAN FLEGAL: Okay. MS. ARNOLD: And I think the reason why we are increasing our collections is because we are, you know, working with the county attorney's office, and we are sending out notices more frequently and those types of things. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: So this report just reflects what is happening internally in your department. It does not reflect what this board may -- any actions this board may have taken; is that correct? MS. ARNOLD: Well, it -- it reflects the action you've taken because it shows -- you know, for instance, in 1999 we had outstanding fines of $75,000, in excess of $75,000. We only collected about 3,000 of that. In 2000 we had fines in excess of 254,000 and only, again, collected in that year $7,000. But we are getting a higher percentage of our collections in the year 2001 than we have in prior years. MR. LEHMANN: So what has this board done to change this at all? Page 152 October 25, 2001 MS. ARNOLD: Well-- CHAIRMAN FLEGAL: We've asked Ms. Chadwell to foreclose on a bunch of people, is what we've done. MS. ARNOLD: Yeah. You know, forwarding recommendations for a foreclosure action is a big part, I think, of why we -- we're receiving -- MR. LEHMANN: That's what I thought. I just want to make sure. Next -- and I think I just blew my question here trying to figure out what your answer was. You had mentioned, if I remember right, you have more cases that are settling after hearings versus prior to hearings? MS. ARNOLD: No, no, no. We have more cases that are coming into compliance after the board's order date than -- previous years they were coming into compliance before the board's order date. And I -- you know, that's just some of the analysis that we're doing in terms of our cases. And another interesting fact is that we have longer compliance times now. We're giving a little bit longer for compliance as we -- than we did previously. MR. LEHMANN: And they're still coming into compliance after the order of the board? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Do you mean after the specific date we said to comply by? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: So we're giving them more time and -- CHAIRMAN FLEGAL: And they're taking advantage of it. MR. LEHMANN: That's good-- CHAIRMAN FLEGAL: That's good information. MR. LEHMANN: -- good to know. MS. GODFREY-LINT: Do you think, Ms. Arnold, us imposing Page 153 October 25,2001 operational costs along with that is going to help? I guess in prior years we never did operational costs, and then we started doing that. Do you think that had any bearing on it, that even though they came into compliance, they still were hit with the operational costs, what it cost the county to prosecute the case? MS. ARNOLD: I think it's affecting the amounts that we're assessing. I don't know if it's really affecting the compliance date. MS. LEHMANN: Ms. Arnold, just out of curiosity, how many cases -- how many complaints do you get a month nowadays? MS. ARNOLD: A month? We're still averaging about 2,000. MR. LEHMANN: About 2,000. MS. ARNOLD: Yes. MR. LEHMANN: And we're hearing about six, eight, ten, maybe, a month. So you're achieving compliance on your own in that period of time. MR. PONTE: Excuse me, Michelle. I didn't hear the number of cases you get on an average month. MS. ARNOLD: About 2,000. CHAIRMAN FLEGAL: About 2,000. MR. LEHMANN: One thing that always strikes me about staff is staff seems to always bend over backwards trying to help the respondent to the point where I'm surprised -- sometimes we look at cases that may take a year or two years before they come to us. And my concern would be, you know, are the -- are the respondents using that period of time and not really taking staff's efforts seriously unless they hit us? You know, and then, you know, when they finally come here, do they then all of a sudden take things seriously? MR. PONTE: Well, 2,000 cases. We see so few that, you know, the folks on the line are doing a terrific job. MR. LEHMANN: Excellent job. CHAIRMAN FLEGAL: I think they take them seriously. Page 154 October 25, 2001 Okay. Next is it Ms. Chadwell's mm? MS. ARNOLD: Yes. MS. CHADWELL: Good afternoon again. I'll try to keep it a little short because you've been -- you've had a terrific morning, from what I could hear upstairs. Did you-all get a copy of, like, a sheet of paper that had some numbers on it? CHAIRMAN FLEGAL: No. MS. CHADWELL: Okay. I've got some. MR. LEHMANN: It was apparently on a need-to-know basis, and we didn't need to know, I guess. MS. CHADWELL: Just to kind of summarize everything, I've -- as the sheet indicates, we -- as of November of last year, our office was handling -- or at least 27 cases had been referred to our office for consideration for foreclosure and to resolve the outstanding violations in some. Some had already been brought into compliance, so it was a matter of getting those collected or what have you. We still have -- we're down to about 10 cases. There's 11 in parentheses because we have two separate cases in Varano. Actually, I've -- there are two separate orders, but I filed a second suit, and I'm going to -- and have described both of the properties that are eligible that were originally in violation. So we are covered on -- we've covered all our bases on that. And they could easily be consolidated, so I'm treating them kind of as one, but that just explains the parenthetical there. And you can see that half of these cases that we have remaining are in foreclosure. I anticipate filing another three in the next two or three weeks. We did successfully resolve the foreclosure on the Parks property. I don't know if you-all have been following the newspapers, but that was a big concern for a lot of residents out there. And we did obtain the certificate of title on that in October, October 11 th or 12th, I believe. So we were pleased to have taken that one all Page 155 October 25, 2001 the way and to have success -- well, I don't know if it's a success or not, but we did end up -- the county ended up obtaining title to the property. Now the county has the burden of cleaning up the -- the property, but we will be able to surplus it and then sell it to private bidders on the -- for purchase. So as far as the rest of that goes, we did -- in September I did work with Michelle in getting a resolution adopted that would kind of clarify and provide her with some authority in -- in disposing of cases that were not appropriate for foreclosure but would be appropriate for collection by a collection agency. So this resolution was adopted on, I think, September 11, and it makes it clear -- gives her clear parameters on what she can do and gives her some authority to compromise the amounts of those liens so that -- if it's appropriate. But these are typically cases that are -- fall under a $15,000 limit and for other reasons are not -- are not cases that we deem appropriate for foreclosure. Either there's little opportunity or it's homestead or whatever other bar there might be for foreclosing on the property. MS. TAYLOR: Is that with the Hill case? MS. CHADWELL: Pardon me? MS. TAYLOR: Is that the Hill case? Is that one specific case that would be considered not for foreclosure? MS. CHADWELL: The Hill? Oh, yes. Yes. I couldn't hear what you were saying. Yeah, the Hill case. And you can see on the bottom of the sheet here we've got a couple listed that will -- are in -- will be going into collection with a collection agency. Basically the only cases that are coming to my -- I haven't received any new cases from code enforcement since probably maybe last summer. You know, maybe early last fall was the last time you had to forward a case to my office. (Ms. Curatolo entered the boardroom.) Page 156 October 25, 2001 MS. CHADWELL: So that's a good sign that things are -- people are getting the message and that you're having some success in the orders that you're issuing. It seems that what's left in my office as far as what needs to be disposed of are cases that are either going to be brought into compliance or we're going to have to absolutely foreclose on. There -- of the cases that are in foreclosure, the defendants or the property owners are working to try to reach some resolution to -- they've either brought the property into compliance and they're trying to resolve something regarding the outstanding liens, or they're working to bring the property into compliance and also resolve the outstanding liens. So certainly it's getting their attention when the suit is filed. It's preferable if we could get their attention before having to file suit. But nonetheless, that's what's going on. CHAIRMAN FLEGAL: Do I remember that we can't ask you to start foreclosure proceedings until the fines -- three moths after the fine's been imposed; is that correct? MS. CHADWELL: That's correct. CHAIRMAN FLEGAL: Okay. So if I look at the list they gave us -- and I don't -- this may be one you're already working on. I'm looking at somebody called Thamavong (phonetic) or something like that where fines were imposed on June 18th. That brings me to September 18th, and they owe over $5,000 plus operational costs. I mean, I think I'd be looking to get that money. And it's probably above that by now. MS. ARNOLD: She has that one. CHAIRMAN FLEGAL: She has that one? Okay. Good. That's the biggest one. I mean, there's a lot of little ones that maybe, you know, you would pass on for collection because I'm sure it would cost you more to process this than -- to try and collect $600 than it's worth, but that one jumps out right away. Page 157 October 25, 2001 MS. CHADWELL: And sometimes you guys -- I'm sorry -- you -- the members of the board authorize our office to go forward, but the matter is resolved before it actually comes into -- CHAIRMAN FLEGAL: Right. And that's terrific. We just want to try to get the money for the county if we can or however you- all decide to settle it. MS. CHADWELL: Okay. CHAIRMAN FLEGAL: Terrific. MS. CHADWELL: Okay. Any other questions? CHAIRMAN FLEGAL: Any questions for Ms. Chadwell? Thank you very much. MS. CHADWELL: Thank you. CHAIRMAN FLEGAL: Any comments from anybody? Next meeting is November 29th. Yes, sir. MR. LEHMANN: Just a real quick question. This board before has talked and kind of breached (sic) the subject of workshops. Do we have any workshops that are in the works? CHAIRMAN FLEGAL: No. I think we should do at least one. There's a couple items I think it would be nice to talk about and have Ms. Rawson talk to us about. MR. LEHMANN: I -- I personally would like to see more in the line of ordinances, laws, and what our duties -- MS. RAWSON: I'd be happy to do a workshop. We can do it in the remainder of this year if you wish. If you notice, the next board meeting -- I think that's probably not the fourth Thursday because the fourth Thursday is probably Thanksgiving. We should probably have some discussion about when the December meeting's going to be too. But any time you want to schedule it, either on a regular board day or some other day, I'd be happy to do a workshop. MR. LEHMANN: I think it would be important because we as a board need to know more about what our job is, and it's very Page 158 October 25, 2001 important that we have a well-defined concept of what we're here to do. MS. ARNOLD: One of the -- one of the things that was mentioned in the workshop before the Board of County Commissioners was a recommendation for more workshops of the Code Enforcement Board. And I'm in the process of, you know, working with the county manager's office with respect to availability of this room. And, of course, I've got to work with Jean to see what her schedule and availability is too. And I'll be making a presentation to this board with a recommendation for additional workshops for next year. MR. LEHMANN: I understand the -- the workshops should be open to the public, but do they need to be televised, or can we have them in any room? MS. ARNOLD: Yeah, we could. MR. LEHMANN: Okay. So we could meet wherever a conference room is available for us to meet. It doesn't-- CHAIRMAN FLEGAL: Right. MR. LEHMANN: -- necessarily have to be this room; right? I -- like I say, I would like to see more of those because I think-- you know, we all take this job very seriously. The pay is lousy, but you know, we take the job very, very seriously. But I think we need to know more about what we're here to do and why we're doing it and -- and-- as well as all the other entities that -- you know, Ellen's office. You know, what can she do for us? What can she not do? In essence, you know, things of that nature. CHAIRMAN FLEGAL: Ms. Rawson, let me ask you a question because maybe this is what the board needs to do to get a workshop that has -- because we can't cover a gazillion items at once because I'm sure some of these are going to be very detailed, like Peter says, on ordinances and powers or what we should be doing. If the Page 159 October 25, 2001 members wrote down, say, two or three items that they would like to discuss, get more information about, or whatever and faxed them to you or called them to your office so that you could look and say, "Well, this is really something you shouldn't be concerned about," or "It's really not" -- MS. RAWSON: Well, I'm not likely to say that. CHAIRMAN FLEGAL: Oh, I understand that. But you know what I'm trying to say. MS. RAWSON: I would appreciate your ideas and your concerns and so that I'm sure that we discuss them all. CHAIRMAN FLEGAL: Yeah. That way we can focus to try to get something from everybody, because I'm sure each of us has a different idea of, gee, I wish I knew about this, or what does this mean? So why don't the membership, if you would, think of two or three items. And if you can fax them to Jean's office, do that. If not, call and give them to her young lady when she answers the phone. They're really nice people. Unfortunately they see me a lot. MS. CURATOLO: If I could make a suggestion, it might be a good idea for us to sit down for 15 minutes and brainstorm those issues of importance and then give Jean one list of the information that we've brainstormed, because by hearing what others have to say, ideas may come up, rather than each of us faxing and then having Jean to have to sort through and see where there's duplication. MS. RAWSON: I don't have any problem with your doing that. Just be cognizant of the Sunshine -- CHAIRMAN FLEGAL' Yeah. That's the part -- MS. RAWSON: -- Law. CHAIRMAN FLEGAL: -- I don't like about us talking about certain things together. MS. CURATOLO' Could it be done at a meeting? MS. RAWSON: It could be done at the meeting, at the end of Page 160 October 25, 2001 the meeting. CHAIRMAN FLEGAL: Yeah. I mean, we could do it in the comments section, right now, and just sit and talk about something, and Jean would keep us straight. MR. LEHMANN: And if you'd like to do it, we could do it at the end of the next meeting, for instance. By -- simply by having a -- a meeting that is open to the public -- it does not have to be televised per se, but simply by the fact that it's open to the public we comply with the Sunshine Law. And that's a good avenue to do it, sit down together in a workshop or -- or at the end of a hearing. MS. CURATOLO: I mean, that would certainly be helpful for me, being a new member of this board, to kind of play off of other people's ideas. It'll be a learning experience. MR. LEHMANN: And there's some things that maybe the older members could pass on, such as something simple, like take a ride with Michelle's people one day. Literally donate a day of your time and just go around with the inspector to see what the inspector does, and it will open your eyes. MR. PONTE: I'd like to make a suggestion about the workshops. I really don't encourage the idea to have it following a session. I think we ought to be fresh when we're in the workshop. I think, you know, we're tired now. MS. ARNOLD: Well, I think the recommendation was to come up with ideas for future workshops. MR. PONTE: Somebody had mentioned we could tack it on to a session, you know-- MR. LEHMANN: Yeah. That was just -- MR. PONTE: -- another meeting. MS. ARNOLD: Just for the ideas. MR. LEHMANN: That was just a bull session just to get some ideas on what we'd like the workshop to -- Page 161 October 25, 2001 MR. PONTE: I'm not even sure I have any ideas right now. I'm toast. MS. CURATOLO: Maybe we could come in a half hour earlier. MR. LEHMANN: I would actually prefer that if we could do that next meeting, just come up with a list of ideas, and then we'll send them on to Jean to actually make happen, if that's okay. CHAIRMAN FLEGAL: Next month is the 29th, which happens to be the fifth Thursday, and that's because of the holiday. December the 27th is the fourth Thursday, so do we need to change that, Michelle, to some other date? Has -- anybody here, is that inconvenient? Is that a big problem? Okay. Jean's got a problem already so -- and one other member. Okay. I'm sorry. And our alternate. To make sure that there's a space for us, I guess we need to -- now would be a good time to -- what's convenient for most people? MS. RAWSON: You know, on my calendar we -- this is one of the months that we were going to have two meetings if we needed to. And actually, I think I have on my calendar another day. MS. ARNOLD: December 17th. MS. RAWSON: December 17th we had already set aside for Code Enforcement Board because that was one of the possibilities in case we needed two days. I would assume, since it's on my calendar as one of the extra days in December, that this room was available. CHAIRMAN FLEGAL: Okay. How's the 17th for everybody in December? MR. PONTE: It's already on our calendar. That's a good idea. CHAIRMAN FLEGAL: Okay. We have one no but-- MS. RAWSON: It's a Monday. CHAIRMAN FLEGAL: Who else? Any more nos? MS. SAUNDERS: I'm not sure. I may not be here. CHAIRMAN FLEGAL: One, two, three, four-- there's five yeses. Page 162 October 25,2001 MR. LEHMANN: Is the room available earlier during the month? MS. ARNOLD: Well, I'm not -- I don't know. I would have to check with the county manager's office. But we have a problem when we get any closer to a prior meeting. CHAIRMAN FLEGAL: Yeah. I mean, you're only-- MS. ARNOLD: We're already moving the -- the previous meeting to the 29th. And, you know, that just gives us a couple weeks to prepare. CHAIRMAN FLEGAL: Yeah. They have to get ready for us. MS. TAYLOR: Is it an absolute sin to miss a month? I mean, Cliff thinks we just positively, absolutely will not miss a month, and I think December is so busy for everyone. If we don't have a huge load, why don't we just wait until January? MR. LEHMANN: I don't think you're going to get much objection from Michelle or her staff. MS. TAYLOR: Really? MR. LEHMANN: It's up to us, I think. MR. PONTE: Did you release the room on December 17th, or are you still holding that? MS. ARNOLD: I think we still have it reserved. MR. PONTE: I think we ought to take advantage of that. CHAIRMAN FLEGAL: I agree. What I don't like to see is, yes, we can miss a month. But let's say Michelle was -- had six or seven cases for us, and now all of a sudden January comes, and she's got six or seven or eight more. Now all of a sudden cases start stacking up. Let's just get them out of the way. Plus that's -- since you're not in compliance, that extends the noncompliance, and we're the cause of extending the noncompliance, which I heard so much about a little while ago. MR. LEHMANN: I was trying to get the date moved up. Page 163 October 25, 2001 CHAIRMAN FLEGAL: Let's everybody think about the 17th and try to do that. And those of us that have a problem -- I don't have a problem. George said he didn't. Kathleen doesn't. Peter, you okay? MR. LEHMANN: I'm okay. MS. GODFREY-LINT: I'm fine. CHAIRMAN FLEGAL: She's okay. So, Rhona and Diane, can you double-check just to make sure, or do you already know? MS. TAYLOR: I know I won't be here. CHAIRMAN FLEGAL: Okay. Rhona, you will check? MS. SAUNDERS: Yes. CHAIRMAN FLEGAL: And I need to call -- I'll call Bobbi and talk to her tonight. Okay. I'd like to entertain a motion to adjourn if there's nothing else. MS. SAUNDERS: Move we adjourn. MR. PONTE: So moved. MS. GODFREY-LINT: Second. (A discussion was held off the record.) CHAIRMAN FLEGAL: We have a motion and a second. All those in favor. (Unanimous response.) CHAIRMAN FLEGAL: Thank you. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 1:51 p.m. Page 164 October 25, 2001 CODE ENFORCEMENT BOARD CLIFFORD FLEGAL, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY BARBARA DRESCHER, NOTARY PUBLIC Page 165