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CEB Minutes 06/27/2002 RJune 27, 2002 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY BOARD OF CODE ENFORCEMENT Naples, Florida, June 27, 2002 LET IT BE REMEMBERED, that the Board of Code Enforcement, in and for the County of Collier, having conducted business herein, met on this date at 9'00 a.m., at County Commission Meeting Room, 3301 Tamiami Trail East, Naples, Florida, with the following members present: CHAIRMAN: PETER LEHMAN ROBERTA DUSEK CLIFFORD FLEGAL GEORGE PONTE RHONA SAUNDERS KATHYRN GODFREY GERALD LEFEBRE CHRISTOPHER RAMSEY ALSO PRESENT: MICHELLE ARNOLD JEAN RAWSON PATTY PATRILLI Page 1 CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA AGENDA Date: June 27, 2002 at 9:00 o'clock a.m. Location: 3301 E. Tamiami Tr., Naples, Florida, Collier County Government Center, Administrative Bldg, 3rd Floor 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. 1. ROLL CALL 2. APPROVAL OF AGENDA 3. APPROVAL OF MINUTES - May 23, 2002 MINUTES 4. PUBLIC HEARINGS A. BCC vs. David and Zenaida Felato B. BCC vs. Kathleen G. Sedlacek 5. NEW BUSINESS Request for Extension on Compliance Date BCC vs. Philip Marrone Request for Imposition of Fines/Lien Request for Reduction/Abatement of Fines 6. OLD BUSINESS Affidavits of Compliance Affidavits of Non Compliance 7. REPORTS Status Report from Assistant County Attorney Ellen Chadwell (Code Enforcement Lien Foreclosures) (Continued to July 25, 2002 Meeting) 8. COMMENTS 9. NEXT MEETING DATE July 25, 2002 10. ADJOURN CEB NO. 2002-012 CEB NO. 2002-016 CEB NO. 2001-013 June 27, 2002 THE COURT: Attention, please. I would like to call the Board of Collier County Code Enforcement meeting to order. The decisions will need a record of the proceedings pertaining thereto, and therefore we may need a verbatim record of the proceedings that 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 will be responsible for providing this record. Role call, please. MS. PATRILLI: Good morning. For the record, Patty Patrilli, Code Enforcement Supervisor. Mr. Peter Lehman. CHAIRMAN LEHMAN: Present. MS. PATRILLI: Roberta Dusek. CHAIRWOMAN DUSEK: Here. MS. PATRILLI: Clifford Flegal. CHAIRMAN FLEGAL: Here. MS. PATRILLI: George Ponte. CHAIRMAN PONTE: Here. MS. PATRILLI: Rhona Saunders. CHAIRWOMAN SAUNDERS: Here. MS. PATRILLI: Kathryn Godfrey-Lent. CHAIRWOMAN GODFREY: Here. MS. PATRILLI: Gerald Lefebre. ALTERNATE LEFEBRE: Here. MS. PATRILLI: Christopher Ramsey. MR. RAMSEY: Here. CHAIRMAN LEHMAN: As we have a permanent member missing from the board today, we will appoint our first alternate, Mr. Lefebre, for having voting rights today. Thank you. I would like to wish -- or welcome our alternates to the board. Page 2 June 27, 2002 Let's go on to the agenda, Patty. Are there any changes to the agenda? MS. PATRILLI: I understand from Michelle that Briarcliff was to be added today since they did not show last month. That would be the only change that I know of on here. CHAIRMAN LEHMAN: What is Briarcliff and where are we adding it to the agenda? MS. PATRILLI: I believe she said we were. CHAIRMAN LEHMAN: And the case would go under which category? MS. PATRILLI: It would go under the old business. CHAIRMAN LEHMAN: And you say Michelle has that information? She's not here right now. MS. PATRILLI: Yes, sir. CHAIRWOMAN DUSEK: I make a motion that we accept the agenda as amended. CHAIRMAN LEHMAN: We don't know what the amendment is yet. CHAIRMAN LEHMAN: I thought it was on Briarcliff. CHAIRMAN FLEGAL: We have absolutely no information. I don't want to add anything that we don't know what it's about. MS. PATRILLI: I would like Michelle to speak to you. I'm not sure if this was a last-minute change. CHAIRMAN LEHMAN: In the matter to expedite things, let's just put that on the table for now. And let's move to the approval of the minutes for May 23rd meeting; we'll get back to the agenda. Are there any changes, deletions, or omissions to the amendment? CHAIRWOMAN SAUNDERS: I will move for approval. CHAIRWOMAN DUSEK: Second. Page 3 June 27,2002 CHAIRMAN LEHMAN: Are there any other changes, deletions, or omissions to the minutes? MS. PATRILLI: No, sir. CHAIRMAN LEHMAN: We have a motion and a second for the approval of minutes. All those in favor signify by saying aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. CHAIRMAN LEFEBRE: Aye. CHAIRMAN LEHMAN: Any opposed? Motion passes. Minutes approved as they stand. We'll go back to the approval of the agenda and wait just a few more minutes for Michelle to return. Speak of the devil, there she is. CHAIRWOMAN SAUNDERS: Or the angel. CHAIRMAN LEHMAN: Excellent timing. Michelle, we would like to know if there's any additions, deletions, or revisions to the minutes -- or the agenda, I'm sorry. MS. ARNOLD: Yes, we do have an addition and it would be the item that we previously had on our last month's agenda, Briarwood. Mr. Charles Hitchcock is going to be added under old business, and he's requesting -- actually, no, under new business -- and he's requesting a reduction or rebatement of funds. CHAIRWOMAN DUSEK: I now make the motion again that we accept the agenda as amended. CHAIRMAN PONTE: Second. CHAIRMAN LEHMAN: We have a motion and a second. All those in favor signify by saying aye. Page 4 June 27, 2002 CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. CHAIRMAN LEFEBRE: Aye. CHAIRMAN LEHMAN: Any opposed? Motion passes. Minutes are approved as revised. Excuse me, thank you, the agenda is approved as revised. That's what happens when you sit low in this chair. MS. ARNOLD: Mr. Chairman, I'm sorry I was late for the beginning of the meeting. For the record, Michelle Arnold, Code Enforcement Director. I just wanted to formally welcome our new member, Gerald Lefebre. He is a realtor with WCI Realty and sits as our first alternate on the board. And he was previously -- he has previous experience on a Zoning Board of Appeal Commission with Connecticut, so he's got some background to serve on this particular position. And also, Christopher Ramsey is another alternate, and he's currently a financial advisor for American Express here in Naples and previously was an attorney in Pennsylvania and New Jersey and has dealt with a lot of real estate and business-related activities. And he, too, has experience with Code Enforcement Board related. So I welcome both gentlemen to our Code Enforcement Board. I have one other announcement regarding board members and that is Kathleen Cardillo -- I don't know if Patty mentioned that during role call -- is no longer on the Board because she is running for School Board. And our Advisory Board Ordinary prohibits members to serve in an advisory capacity and running for office so Page 5 June 27, 2002 she had to submit her resignation effective immediately. So any of the two Board alternates that are interested in serving as full-time members, please resubmit your resumes and they'll be considered with the others. CHAIRMAN LEHMAN: We welcome you to the board. MR. LEFEBVE: Thank you. MR. RAMSEY: Thank you, very much. CHAIRMAN LEHMAN: Let's move on to the public hearings. Patty, if you would like to proceed with the first case. MS. PATRILLI: Thank you. Our first case is CEB number 0220-12, Board of County Commissioners, Collier County, versus David and Jenida Felato. For the record, I would like to ask if the respondents are present. Let the record show that they are not present. We have provided the Board and the respondents with a packet I would like to enter at this time as Exhibit A. CHAIRWOMAN DUSEK: Exhibit A. CHAIRMAN FLEGAL: CHAIRMAN LEHMAN: those in favor signify by saying aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. ALTERNATE LEFEBRE: Aye. CHAIRMAN LEHMAN: Any opposed? passes. I move that we accept the County's Second. We have a motion and a second. All Thank you. Motion Page 6 June 27, 2002 MS. PATRILLI: The alleged violation is of ordinance number 89-6, Section 5, paragraph 1 through 16 as amended by ordinance 0222-05, Section 22-263, and Section 103.4.10 of ordinance number 98-76 of the Building Construction Administrative Code. The description of the violation is all exterior surfaces found to be sun-protected, peeling or no paint, rotted lumber over the front door, rotted fascia board on the roof, and structure and a large hole in a section of the roof. The location of the address where the violation exists is 129 1st Street, more particularly described as folio number 0000077210680007, Trail Acres, lot 2, lots 11 and 12. The name and address of the person in charge of the location where the violation exists is David and Jenida Felato, 130 2nd Street, Naples, Florida. The date the violation was first observed was February 20th of 2002. The date the owner was given the notice of violation was February 22nd of 2002, and the violation was to have been corrected by March 24th of 2002. A reinspection was done on April 15th of 2002, and the results of the reinspection is that the violation does still remain. At this time I would like to turn the case over to our investigator, Dennis. MR. MAZON: Good morning. CHAIRMAN LEHMAN: One second, please. Michelle, do we have a motion in this case to continue this particular case? MS. ARNOLD: We had a letter delivered to our office yesterday from Mr. Felato. Did the Board members receive that? MS. PATRILLI: Yes. MS. ARNOLD: Do you all have a copy of that? CHAIRMAN LEHMAN: June 25th; dated June 25th? MS. ARNOLD: Yes. CHAIRMAN LEHMAN: Jean, would this letter be considered a formal request for motion to continue? Page 7 June 27, 2002 MS. RAWSON: Yes, you may consider that to be a formal request for continuance and, perhaps before we get into the evidence you should act on that letter. CHAIRMAN LEHMAN: Do I hear any discussion from the Board? CHAIRMAN FLEGAL: I would make a motion we deny the request. CHAIRWOMAN DUSEK: Second. CHAIRMAN LEHMAN: We have a motion and a second. All those in favor signify by saying aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. ALTERNATE LEFEBRE: Aye. CHAIRMAN LEHMAN: Any opposed? Motion carries and the request is denied. Michelle, please continue. MS. ARNOLD: We'll have Investigator Mazon provide his testimony. CHAIRMAN LEHMAN: Thank you. CHAIRWOMAN DUSEK: May I say something before he starts? I'm not sure if everybody got a package. Did you? CHAIRMAN PONTE: I only had-- CHAIRWOMAN GODFREY: It was continued from last month. MS. ARNOLD: It was on last month's agenda, so if you don't have a packet with you I'm having additional ones copied. Page 8 June 27, 2002 CHAIRMAN PONTE: I have no backup; I just have the sheets. So I need all the backups. MS. ARNOLD: Let me see what the status of that is. CHAIRMAN LEHMAN: Are they being copied right now, Michelle? MS. ARNOLD: Yes. Anybody else? I provided you your copy. CHAIRMAN LEHMAN: Yes. Thereupon, (The packets were distributed to the members of the Board.) CHAIRMAN LEHMAN: Does everybody on the Board now have a copy of the evidence package? Okay. Michelle, if we can proceed then. MS. ARNOLD: Dennis needs to be sworn. Thereupon, DENNIS MAZON, the Witness herein, having first been duly sworn, testified as follows: MR. MAZON: Good morning. For the record, I am Collier County Code Enforcement Investigator Dennis Mazon. On February 20th, 2002 1 received a citizen's complaint concerning a housing code violation at 129 1st Street Naples, Florida. On the very same day, I confirmed housing code violations at 129 1st Street, Naples, Florida, consisting of unprotected peeling and/or paint, no paint, to the entire exterior surfaces of an older, unoccupied wood-frame residence. I also confirmed rotted and decaying lumber over the front door, rotted and decaying fascia board at the southwest section of the roof area, rotted and decaying lumber at the southwest bottom comer of the structure, and one large hole on the northwest section of the roof. Page 9 June 27, 2002 On the same date, I patrolled the entire subdivision of Trail Acres for like-kind violations and found two additional housing code- related violations and acted upon those. On the same date, I conducted a permit and property research of Collier County records for all housing code violations found at Trail Acres. I verified that 129 1st Street has been assessed as a residence since 1960 through our property appraisers records. And on the same date, I attempted personal contact with Mr. and Mrs. Felato at their 130 2nd Street, Naples, Florida residence with no success. I then attempted phone contact with David Felato on his page phone and left a phone message on Felato's home phone for a return call. I was unable to meet them at their residence. On the same date, I also posted a notice of violation at the Felato's 130 2nd Street Naples, Florida residence. I post the same notice of violation at 129 1st Street Naples, Florida, which is the location in question, and posted the very same notice at the Collier County courthouse. And on the same date, I sent a Notice of Violation certified mail along with all appropriate sections and codes to the Felato's at their 130 2nd Street Naples, Florida residence. On February 25th, I made early morning phone contact with David Felato, and I requested to meet with Mr. Felato so that we could discuss the matter at hand and he had refused to meet with me. On March 8th, I did a field inspection, and I confirmed that there was no progress to date on any of the repairs that were needed at this property. Again, on March 12th I received a phone call from Mrs. Ida Felato, and she requested at the time that we fax her a copy of Collier County Ordinance Number 2002-5. And I did the same, I faxed it to her and received an acknowledgment that it was faxed to her. Page 10 June 27,2002 On March 15th, I did another field inspection and there was no progress to date. And on March 15th, I sent a second notice along with related codes and ordinances certified mail to the Felato's residence. The reason for that is because the first notice, I believe, was inadvertently sent to the location in question rather than the Felato's residence. They own both properties and it was inadvertently sent to the property in question rather than the home. So we wanted to make sure that they were mailed the proper sections and the ordinance, and we did so. On March 22nd I made another field inspection and confirmed that there was no progress to date. And, again, in April, all through April and May and June, as recently as yesterday we've inspected the property to find that there's been no effort made to correct any of these matters. CHAIRWOMAN DUSEK: Dennis, when you travel through the neighborhood, you said that you found two other violations. These were at two other residences? MR. MAZON: Yes, ma'am. I only did housing code inspections because we have an assigned investigator for that area. So to be fair to the Felato's, and to do my job properly, I did a review of the entire subdivision. And I only found two others: One being a home under construction that was left abandoned for quite a while, and that's been remedied; that's been corrected since. And another where an older wood frame shed-type structure was being demolished and it was still in disrepair, and that's been corrected also. CHAIRWOMAN DUSEK: Is this home that is under violation with Mr. and Mrs. Felato, is that being occupied? MR. MAZON: No, ma'am, it's not. But under our revised ordinance, the ordinance has been amended so that it includes unoccupied structures, and we are now able to address this. And Page 11 June 27, 2002 under the new ordinance I specifically address section -- they're all section five, but I specifically address paragraphs 12(B) which speaks to exterior walls, 12(C) which addresses roof areas, and 12(1) which addresses windows and exterior doors. CHAIRMAN PONTE: Is the place secure or can children get in or vagrants get in? MR. MAZON: I would say it's a secured building. I didn't try the doors, but certainly it appeared to be secured. CHAIRMAN PONTE: So it's not rotted enough that it opens? MR. MAZON: No, it's not rotted to a point where you can walk into the building. CHAIRMAN PONTE: Or crawl into it? MR. MAZON: No, sir, the hole in the roof is a very large size where quite a large amount of water can be allowed in. CHAIRWOMAN DUSEK: Did Mr. or Mrs. Felato give you any indication that they were going to do anything? MR. MAZON: To the contrary. They indicated that they didn't wish to do anything. CHAIRMAN PONTE: When Mr. Felato refused to meet with you, did he at that time give a medical reason for wanting not to meet or be able to meet with him? MR. MAZON: No, sir, he didn't. CHAIRMAN FLEGAL: Dennis, the sections you cite, I noticed in your testimony a few minutes ago, you said this structure ordinance 2002-05 and when it revises in that section five, 8906, talks about a dwelling or a dwelling unit, and not a structure. Maybe you can't answer this, maybe the County Attorney's Office will have to answer it, but the comment in the ordinance is, I think, "intended to be used;" is that it? When you look up dwelling unit, I think it says something that's intended. Page 12 June 27,2002 And I guess my question is, whose intent? If the County decides that because it looks like a house that it's probably intended to be used or-- MR. MAZON: No, sir. It's not just the mere appearance of it. The property was permitted for residential dwelling purposes. It wasn't permitted for a storage-only type structure. The only structure on that property is that of the dwelling. We would not allow a secondary use without a principal use in place, and that principal use is that of a residence. It's also listed on the tax records as having been assessed as a residence since the '60's. Although it has been left to deteriorate to a point where perhaps it can't be occupied at this time, it was occupied, to my memory, up until the early '90's where there was an elderly woman living in that. And I think she was hospitalized and she was not able to stay in the home, and that's when the home became vacant. And then I think Mr. Felato, who lived right behind the elderly woman, purchased the property and as the deed transfer shows, and because it would be to his advantage to own the property behind him and then boarded up the house because he didn't wish to use it as a residence any longer. CHAIRMAN FLEGAL: There was a permit back before that made it a residence; correct, when they built it? MR. MAZON: It was permitted as a residence, it was -- it's been on the tax roles and assessed as a dwelling and as a residence since the '60's. CHAIRMAN LEHMAN: Investigator Mazon. MR. MAZON: I beg your pardon? CHAIRMAN LEHMAN: The building we're talking about right now, does it have cooking facilities in the building? Page 13 June 27, 2002 MR. MAZON: We were unable to get inside the building. We only assessed the damage that was to the outside, the exterior. CHAIRMAN LEHMAN: So your definition is going on -- your definition of a dwelling is going off of records, it is not going off of physical contents of building? MR. MAZON: That's correct, sir. CHAIRMAN LEHMAN: Thank you. CHAIRMAN FLEGAL: Did you notice if they have a water meter or anything like that there or any electric lines to the buildings? MR. MAZON: I wasn't looking specifically for electric lines, sir. CHAIRMAN FLEGAL: That's okay. I just asked the question. MR. MAZON: I can't answer that affirmatively. MS. ARNOLD: Can I ask a question of the investigator? Dennis, are you aware of a prior case that we've had on -- any prior cases that we've had on this property? MR. MAZON: Yes, ma'am. To my knowledge, we've had 63 or 64 cases on this property. There's been, from my knowledge, from what I've heard from the investigator, over 500 visits to this site. MS. ARNOLD: Dennis, have you reviewed any of those prior cases to determine whether or not there were kitchen facilities or any other facilities that would make this a single-family residence? MR. MAZON: I've never entered into this home. MS. ARNOLD: But have you reviewed any of the other cases? MR. MAZON: No, ma'am. MS. ARNOLD: Okay. CHAIRWOMAN DUSEK: Has this case been brought before Code Enforcement before? I mean, have the Felato's, this particular residence, has it been brought before Code Enforcement before for the same violations? Page 14 June 27,2002 MS. ARNOLD: It was brought before Code Enforcement for the violation of Section 5 previously, but that was under Ordinance 89. MR. MAZON: 06. MS. ARNOLD: 06. The ordinance has since been amended. And the reason why it was not considered at that particular time is because the ordinance didn't specify that the dwelling had to be occupied. CHAIRMAN PONTE: So in the past violations, did the Felato's make corrections? MS. ARNOLD: No. CHAIRMAN LEHMAN: Then how were the cases resolved, or are they resolved? MS. ARNOLD: The prior case that was before the Code Enforcement Board was cited under that ordinance that I mentioned, and that ordinance didn't clearly say whether or not the unit needed to be occupied. The unit was not occupied. Because there was testimony from Mr. Felato saying that unit was not occupied, the Board did not find a violation at that particular time. CHAIRWOMAN DUSEK: With all of these other previous 500 visits and however many violations, there was never an opportunity to bring the Felato's before the Board other than for that one time? MS. ARNOLD: Not under the minimum housing code under that ordinance because the Board had made a decision unless the dwelling was occupied, we could not cite him for minimum housing code violation. CHAIRMAN FLEGAL: Dennis, if I look at the pictures that were submitted, page one of the pictures, it looks like a front door. I don't see a number -- page 25 in our package -- could you tell when you were there if these, what looks like a lock, it looks like all the Page 15 June 27, 2002 wood around it is rotted away. So it doesn't really look too secure. Did you notice that when you were there? MR. MAZON: Yes, sir, the lumber around the door, but in particular over the door was not only rotting was falling away from the door. CHAIRMAN FLEGAL: So it looks like access could be really simple. That's what I'm looking for, if somebody walked up, based on this photo -- and you were there, so give me your opinion-- it looks like if I just pushed, I'm going to push this door over. MR. MAZON: It would be my belief that if somebody wanted to access this house, they could do it with very little effort. CHAIRMAN FLEGAL: Okay. CHAIRWOMAN DUSEK: Since it was previously occupied, this means there was plumbing and electrical in there. In your investigation, do you feel that there's an electrical hazard here or a potential for fire? MR. MAZON: I really can't answer that properly, ma'am, because I don't know if the electric is turned off or what the state is of that electric. But I know that there is, of course, electric going to the house of some kind. The fact remains that there is a very large hole in the roof, so whatever is in there, be it actifed or turned off, it's deteriorating rapidly. CHAIRMAN LEHMAN: Mr. Mazon, you had referenced a violation of Ordinance 2002-05, Section 22-263. As I read that in the evidence package that I have it refers to minimum square footage requirements and smoke detectors. I only have Sections 13 and 17 in my package here. Is there some other section that we're not privy to that you're referring to or is this an improper section to cite? CHAIRMAN FLEGAL: Those are the changes. Page 16 June 27, 2002 MR. MAZON: I am specific with Section 5, paragraph 12(B), paragraph 12(C) and paragraph 12(1). What you're reading is -- CHAIRMAN LEHMAN: No, sir, let me interrupt you for a second. You're referring to 8906. MR. MAZON: Yes, sir. CHAIRMAN LEHMAN: I'm referring to Ordinance 2002-05. MR. MAZON: Okay. Sorry. CHAIRWOMAN DUSEK: Does that-- the way I understand-- MR. MAZON: It makes reference to -- CHAIRWOMAN DUSEK: -- to 89-06. Does the 2002-05, is that the same as 89-06? MR. MAZON: It's amending 8906. In that section that we're making reference to is making reference to the fact that it can address unoccupied structures. CHAIRMAN LEHMAN: Do you happen to have a copy of the ordinance section for us to look at? MR. MAZON: Yes, sir. CHAIRMAN LEHMAN: We just have the amended sections. MR. MAZON: Here it is, sir. I'll bring it over to you. CHAIRMAN LEHMAN: Thank you. Going forward in Ordinance 8906, I'll review that, we refer to all 16 sections, sections 1 through 16 of Ordinance 8906, paragraph 5. And, again, you are 'indicating -- I don't mean to put words in your mouth. But the question is are you indicating that we have actual violations of all 16 sections, such as sanitary for section number one, hot and cold water supply for number two, so on and so forth? MR. MAZON: No, sir. No, I'm not. I'm stating that -- I stated that entire 1 through 16 is all section 5 paragraphs one through 16 because possibly they could be addressed if one were to enter the house; we don't know that yet. But also it's amending the entire -- it's Page 17 June 27,2002 amending 8906, so I made reference to the entire ordinance in all the sections. I thought that would make it clearer, but I guess it didn't work that way. CHAIRWOMAN DUSEK: So is my understanding the violation is of 8906 paragraph 5, 1 through 16. MR. MAZON: It's a violation of the new ordinance. CHAIRWOMAN DUSEK: I guess I don't have a revised, or I'm not understanding exactly what -- MR. MAZON: I just handed it to Mr. Lehman, 2002 -- CHAIRWOMAN DUSEK: I mean in the statement of violation where we're citing the particular numbers? MR. MAZON: Yes. CHAIRWOMAN DUSEK: Could you just tell me exactly what the violation -- what ordinances were violated. MR. MAZON: Yes. MS. ARNOLD: If you look on page ten of your packet, you'll see the ordinance that was cited. MR. MAZON: Excuse me, if I may say, the section five remains the same, section five, those paragraphs do not change in 2002-06. So paragraph 12(B), which addresses exterior walls, and it says, if I may, "Exterior walls shall be substantially weathertight and weatherproof and shall be maintained in a sound condition and good repair so as to prevent infestation, for instance." And section 12(C) addresses roofs and section 12(I), as in 8906, addresses windows and exterior doors. That has not changed; that language is the same in 2002-06. CHAIRWOMAN DUSEK: I guess what I'm trying to get at is if we're going to find a violation and if we're going to have to cite the violation, I want to know exactly what it is. You don't have to go into detail. All I need to know is 8906, what part of that is revised to Page 18 June 27, 2002 2002-05, what part of that, and 98-76, is it all of that. Do you understand what I'm requesting? MS. ARNOLD: Yeah, I understand what you're saying. And let me try to clarify things a little bit. The reason why we put both 8906 and 2002-05 in there is because when you amend an ordinance it doesn't include the entire ordinance; it only merely shows the paragraphs stricken through and underlying those sections, the wording that's going to be amended. So therefore that's why we put both ordinances in there. And the question that the Board member is asking of paragraphs 1 through 16, which specifically of those paragraphs are in violation that we observed; right? So 1 through 16 would be -- if we can kind of go through each of those, Dennis, and specify which one of those paragraphs we believe we have evidence for that's in violation. MR. MAZON: It's section five, paragraph 12(B), "Exterior walls shall be substantially weathertight and weatherproof and shall be maintained in sound condition and good repair so as to prevent infestation." Section five, again, paragraph 12(C), "Roof shall be maintained in a safe manner and have no defects which might admit rain or cause dampness in walls or interior." In section five again, paragraph 12(I), "Windows and exterior doors shall be weathertight and weatherproof and maintained in good repair." CHAIRMAN LEHMAN: So are we to understand that you are deleting all other references, or deleting references to all other code sections? MR. MAZON: Yes, sir. At this time we've not been able to confirm any other damage to the interior. CHAIRMAN LEHMAN: And that would include ordinance 2002-05 because none of those sections have been impacted? They are revising section 13 and section 17? Page 19 June 27, 2002 CHAIRMAN FLEGAL' No, they also revised the very opening statement of that section which is quite important. MS. ARNOLD: Yes. So we are saying that they're in violation of section five, and section five reads all dwelling -- it now reads with the amendment of 2002-05, "All dwellings or dwelling units, whether occupied or unoccupied, shall comply with the requirements of the section as hereafter set forth." Okay. So that is the violation, section five. And specifically what is also being cited is paragraph 12 under, section 5 which talks about the exterior and interior structure of the dwelling. And Dennis has indicated for you specifically which subparagraphs are in violation. CHAIRWOMAN DUSEK: Which are part of paragraph five. MS. ARNOLD: Exactly. CHAIRWOMAN DUSEK: And then it's also section, as amended 2002-05 section 22-263 and section 104.4.10; is that correct, of ordinance 9876. MS. RAWSON: It is my understanding section 104.4.10 has been repealed. So while it might have been in effect at the time, it is not in effect now. So we can just forget that one. MR. MAZON: That would simply address maintenance. CHAIRWOMAN DUSEK: Okay. MS. ARNOLD: And your question about section 22263, that's actually the same section five. CHAIRWOMAN DUSEK: As the amended. MS. ARNOLD: Yes. Because in one ordinance we make reference to the sections of the ordinance, and in the revision, 2002- 05, they make reference to the actual codified documents. CHAIRWOMAN DUSEK: Okay. I think I have it now. Page 20 June 27, 2002 I would like to make a motion that there is a violation in the case of the Board of County Commissioners versus David and Jenida Felato, CEB case number 2002-012 -- MS. ARNOLD: Sorry to interrupt. We do need to -- the last page of your packet, the packet that was entered to you supplemented which was a letter dated June 17th, 2002 from the Felato's. That actually is their exhibit, so we need to enter that into evidence as Composite Exhibit A for the Respondent. CHAIRMAN LEHMAN: Do you want to tender a motion? CHAIRMAN FLEGAL: So move. CHAIRMAN LEHMAN: I have a motion. CHAIRWOMAN SAUNDERS: Second. CHAIRMAN LEHMAN: And a second. All those in favor signify by saying aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. ALTERNATE LEFEBRE: Aye. CHAIRMAN LEHMAN: Any opposed? Motion carries. We have a partial motion. CHAIRWOMAN DUSEK: Continuing the motion. The violation is of Ordinance Number 89-06 section paragraph 5, 12(B), sections 12(B), 12(C), and 12(I) as amended by ordinance 2002-05 Section 22-263; is that correct? CHAIRMAN LEHMAN: One thing, you have mentioned it as paragraph five, it is ordinance number 8906 section 5 paragraph. CHAIRWOMAN DUSEK: Paragraph. Okay. Page 21 June 27, 2002 CHAIRMAN FLEGAL: I second that. CHAIRMAN PONTE: Before we vote on that, let me just ask the Board or anybody here for a little clarification. The letter from Mr. Felato we've just entered into evidence stated June 17th says that he will be showing a videotape on July 27th. I took that to be a typographical error. MS. ARNOLD: Yes, it was. We called him when we received that and informed him what the correct date was. CHAIRMAN PONTE: I see. MS. ARNOLD: Because July 27th is actually a Saturday. CHAIRMAN LEHMAN: We have a motion. Do we have a second? CHAIRMAN FLEGAL: Second. CHAIRMAN PONTE: Second. CHAIRMAN LEHMAN: We have a motion and a second. All those in favor signify by saying aye. ALTERNATE LEFEBRE: Aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. CHAIRMAN LEHMAN: Any opposed? Motion carries and we would entertain a member of the Board. CHAIRMAN PONTE: I have another question that goes back to the ordinance before we go forward. On page 11 of the packet, I guess my question is whether or not there's a clause. There is a limit as to the amount of fine, apparently, that can be levied and the second Page 22 June 27, 2002 penalty; it says maximum fine of $500. So if that holds, it's difficult to follow the recommendation. CHAIRMAN FLEGAL: I would ask Ms. Rawson, but I don't believe that applies to this board. MS. RAWSON: I don't think so. CHAIRMAN FLEGAL: This board is governed by another set of rules; not this. MS. RAWSON: Beyond your jurisdiction. CHAIRMAN PONTE: Okay. Thanks for the clarification. CHAIRWOMAN SAUNDERS: I have a comment before we debate what we want to do. I believe that this is a severe safety hazard, that the house is secured inadequately. And I would like -- and given the testimony that we have heard on the number of citations previously issued and the threatening tone of the correspondence with the Board, I'm inclined to take severe and immediate action. And I just put that out for comments with the rest of the Board. CHAIRMAN FLEGAL: Michelle, seeing that the structure is in bad -- terrible shape is probably a better word, atrocious shape -- if they wanted to demolish it, tear it down, to get a permit to do that, what kind of time would be involved? MS. ARNOLD: Since it's a residential, it's a little bit different requirements than a commercial structure, and I think someone can accomplish something like that for obtaining a permit within a week's time. Providing getting a contractor to, you know, to do the work may get a little bit longer than that. CHAIRMAN LEHMAN: Michelle, has anybody in County, meaning the building official, deemed the condition unsafe? MS. ARNOLD: They have not conducted a structure stability on this. Page 23 June 27, 2002 CHAIRMAN LEHMAN: Is it unsafe in the terms of access? MS. ARNOLD: Well, I'm just answering this based on my experience, driving by and then the photos that have been taken, there's no fence around the property. The doors appear to be secure, but, you know, it's deteriorating because of the lack of maintenance. So possibly someone could get in. CHAIRMAN LEHMAN: Investigator Mazon, please. MR. MAZON: Yes, sir. CHAIRMAN LEHMAN: Do you concur with that? Is the building safe against access or is it accessible? You were physically on-site; correct? MR. MAZON: I was physically on the site, and one could enter the home if one tried, I'm sure. It is secured, though. CHAIRMAN FLEGAL: From the condition of the building, would it be feasible if the Board determines that it may be unsafe and access is easily gained, if we ordered the doors and the windows and you said there was a hole in the roof, could that be boarded over with sheets of plywood or something? Would that keep access? I mean, anybody could get into anything if they really want, but if we had them board up the doors with plywood and the windows, could they put plywood on this hole in the ceiling? MR. MAZON: The windows and doors are boarded up, sir. CHAIRMAN FLEGAL: Okay. MR. MAZON: The hole in the roof is certainly not boarded up, but one would have to climb up on to the roof and make the hole a little bit larger to climb through it. CHAIRMAN FLEGAL: Okay. CHAIRMAN LEHMAN: So it appears as if the Respondent has taken action to secure the premises? MR. MAZON: Yes, sir. Page 24 June 27, 2002 CHAIRWOMAN SAUNDERS: But I think what we're saying also that in the state of repair it is in, whatever actions were taken are no long adequately securing the building. So it might be within our jurisdiction to say that we want the building resecured adequately. MR. MAZON: If I may say, the building is certainly secured against unwanted human entry, but as far as vermin and as far as the elements go, I'm sure that it can be -- it's entered by the rain and vermin. CHAIRWOMAN SAUNDERS: But there is a health hazard there as well, possibly. MR. MAZON: I can't attest to that. CHAIRMAN PONTE: By the photo, it appeared to me when I looked at the photo to the monitor -- you say the door has been covered over. It looks as if there was a hole there. Could we see that again? It just looked like it would be a nifty clubhouse if I was a kid. CHAIRWOMAN GODFREY: Where the locks are the wood is rotted around the locks. You could just push the door open. CHAIRMAN PONTE: It does seem access would be easy. CHAIRMAN LEHMAN: I don't think that's a fair statement to make based on the quality of the photograph whether or not that wood is rotted and you could push the door open. CHAIRWOMAN GODFREY: I can see a hole with a magnifying glass. CHAIRMAN LEHMAN: I think unfortunately we have to rely more on the testimony of the investigator who was physically on-site to make that determination. CHAIRWOMAN DUSEK: Michelle, what prompts the County to go out to decide whether this is unsafe or structurally unsound? I mean, would you have automatically requested this before it came before this Board or is this something that we can request? Because Page 25 June 27, 2002 if it's unsound, unsafe, we would take a different type of action on this, and I think this is some information that we should have. MS. ARNOLD: Well, we -- because we have not been allowed to enter on the property by the property owner, I did not take that particular route in terms of requesting an inspection from our building official to determine the structural integrity of it. I think the main thing was to try to get the problems corrected and, you know, in the event somebody did wander on to the property, at least they would be safe. If we were to request an inspection, we would have to probably obtain a warrant for that inspection. CHAIRWOMAN DUSEK: Just looking at the pictures and hearing the testimony, it seems to me that in my own humble opinion that this is a structurally unsound building and that there's hardly room for correction. It seems to me that I kind of agree with Rhona that this is a problem that we need immediate action on. CHAIRWOMAN SAUNDERS: I do feel, even though I understand the County has not entered the building, I think based on the testimony they had given us, the information before us, the photos that we have seen, I feel confident in saying that it is a health hazard and a safety hazard and it is not properly secured. I realize the County hasn't said specifically that because they haven't been able to enter, but I think we take the testimony and make the best possible judgment we can. CHAIRMAN LEHMAN: Well, I disagree. Could we have photograph number 27 on the screen. I apologize, all I have in my packet are black and whites which are actually very poor quality. But if we can just take a look. Obviously the Respondent is making some attempt to secure the residence; all the windows are boarded up, the doors locked. You know, at this point in time I would certainly hate to condemn a residence to being, quote, structurally unsound without Page 26 June 27, 2002 first making some sort of inspection or investigation to find out if it actually is. We're condemning somebody's property to a condition that we have, in a sense, no evidence other than a photograph on a monitor, which to me is very weak evidence. I think the concern of the Board would be for the safety of entrance, safety of the general public for entrance in that, children and so on and so forth. And I think that's a very real concern, but I certainly wouldn't rate the building as being unsound, structurally, based on what we've seen. CHAIRWOMAN DUSEK: The other part as mentioned, I believe it was Dennis who said maybe it can't be entered by humans easily but if you take a look at picture number -- on page 26, if there's rat infestation, which is a possibility, other types of vermins coming in, then that does pose a problem, a health problem, to the rest of the neighbors. CHAIRMAN LEHMAN: Well, then I think the Board should take that into consideration in the order in the time period in which it requests the Respondent to correct the problem. CHAIRMAN FLEGAL: I would agree. I think looking at the pictures and hearing what Dennis said, a lot of the entry problems can be solved by tearing off some fascia and replacing it, and so on and so forth which is not a big challenge. Everything I see in these pictures, you could send a handyman out there with the wood and he could repair all of this in a day. He could put something over the hole in the roof to keep the water out, slap some tar around it. These boards could all be ripped off and replaced. They're just fascia boards, and up on the ceiling, page 28, that could be torn out and replaced. So all this is reparable in a short amount of time. This is not a large project. Page 27 June 27,2002 CHAIRMAN LEHMAN: My recommendation to the Board is to consider staff's recommendation for a 30-day limit to allow the Respondent to take care of the property one way or the other. CHAIRMAN PONTE: I think we should be a little tighter than that. I agree much with what Ms. Sanders has said and that the time limit given the cases and the previous violations and the history here would be 15 days, not 30. I think that's much too easy. CHAIRMAN LEHMAN: Well, my concern is that if you're following staff's recommendation they are recommending to correct all housing violations on said property. If you limit that to a 15-day period, that would be very difficult to accomplish. You know, if you were, for instance saying make the house inaccessible by boarding up all these little points of entry within a 15- day period, that's easily accomplished. But even if they wanted to demolish the house and take it off within 15 days, it would be a little short. CHAIRMAN FLEGAL: But we only cited them, if I remember now, we said 12(B). CHAIRMAN LEHMAN: Windows, door, and roof. CHAIRWOMAN DUSEK: 12(C) and 12(1). CHAIRMAN FLEGAL: B is exterior walls. We can see from the pictures that's easily correctable, like I say, in a day. The roof, maintained in a safe manner, which might emit rain or cause dampness. You could repair that probably in a day by boarding up the hole and slapping some tar around it to keep the water out. What was the other one? CHAIRMAN PONTE: (I). CHAIRMAN FLEGAL: Windows and doors. Based on the pictures, I don't know, that's why I asked if they could be boarded up some more. This says properly fitted in a frame with hardware and Page 28 June 27, 2002 so on and so forth. If we actually forced them to put windows in there, that may be a little more challenging, but other than that most of this other stuff is correctable real quick. CHAIRMAN LEHMAN: We are actually requiring them to make the windows operable, to allow light and ventilation into it. So that may take a little time. CHAIRWOMAN SAUNDERS: I would like to consider, or offer for the board's consideration, the possibility that we give them a very short time frame in which to make the property -- make sure the property meets adequate security requirements, and then take the option of 30 days in which to resolve all problems. But we have often said that somebody has 48 hours to go in and secure the property against any invasion by either people or health hazards or anything else, and I think that's called for in this case. And then I agree that 30 days perhaps to bring it up to code or demolish it is reasonable, but I wouldn't give them 30 days for everything. CHAIRMAN FLEGAL: Ms. Rawson, question. MS. RAWSON: Yes, sir. CHAIRMAN FLEGAL: Since they were cited for this item I which is the windows and doors which has to be fitted within a frame and lockable hardware and weathertight, waterproof, windows for light and ventilation, window panes or approved substitutes without cracks, can the Board order that the windows and doors be boarded over? In other words, even though they have been cited for these problems, rather than -- and I'm devil's advocate, so to speak, maybe these people don't want to invest in putting glass windows and so on and so forth, so if the Board orders them to board these opening over, can we do that? Page 29 June 27, 2002 MS. RAWSON: You can give them an alternative. They can either correct them properly or board them over. CHAIRMAN FLEGAL: Okay. CHAIRMAN LEHMAN: Gene, again, is that alternative not available to them under home ordinances? MS. RAWSON: Yes, it is. We're trying to make the property secure and if they don't want to do it correctly because they don't have the funds, then they should board it up. CHAIRMAN LEHMAN: My point on this question is I don't think the Board -- I would not recommend that the Board take the position of providing alternatives to the ordinance. We need to ensure compliance with the code by whatever means the Respondent chooses to; not to provide an alternative to waive the ordinance. MS. RAWSON: So you're suggesting that we don't put that in the order. We just tell them to comply with the ordinance. And if they board it over, then they really comply. CHAIRMAN LEHMAN: Well, whatever means they achieve compliance is of their own choosing. All that we're interested in is obtaining the compliance with the codes and ordinances of Collier County. CHAIRWOMAN DUSEK: Michelle, I think I understand that if they're going to put windows in place and they must be operable, that they need to have a permit for that because that's a structural item. MS. ARNOLD: That's correct. CHAIRWOMAN DUSEK: And how long does that take for them to get a permit to do some of these things? MS. ARNOLD: Well, in this particular case, they're going to have to have a contractor do the work because it's not occupied by the owner and -- Page 30 June 27, 2002 CHAIRWOMAN DUSEK: So the permit would be about a week to get and whatever time after that to get a contractor? MS. ARNOLD: Well, no, they have to secure the contractor, submit the drawings to show -- or submit the information to show what modifications they would be doing to the structure, whether or not they're going to replace the windows, if they're going to be doing roofing, replacing the doors; anything to the exterior walls. They would have to identify that in their application for a building permit. Once it's submitted, it shouldn't take very long for them to review it and approve it, provided all the sufficient information has been submitted with the application. CHAIRWOMAN DUSEK: So if this were your place, how long would it take you to put this together? MS. ARNOLD: If it were my place, I would tear it down. CHAIRWOMAN DUSEK: But, I mean, if they chose to go through the process of getting a contractor, and filing for a building permit, what time frame are we talking about? MS. ARNOLD: I think a 30-day time period would be a fair amount of time to secure a contractor and at least attempt to get the work done. If they come up with delays because they're unable to secure somebody, they could always come back and petition this board and say I need additional time because of whatever the reasons are. CHAIRMAN PONTE: We have to be careful not to engineer too much sympathy and ease here. What we have is a case involving scuffle violations. These people have 500 violations stacked up against them one way or another, and we're trying to be nice and easy. Fifteen days and make the fines such they can feel it and give them a little incentive to complete the job. Page 31 June 27, 2002 CHAIRWOMAN SAUNDERS: I agree with you. I also point out in their response to us, which is their official packet that we introduced, they indicate that the property is not intended to be a dwelling. So if they don't intend it to be a dwelling, we don't need to tell them how to fix it and give them time. They're not using it that way. So I do feel we ought to be very strong in our actions on this and correct whatever, and be quite determined in it. CHAIRWOMAN DUSEK: Let me start with a motion and then you can rip it apart. I make a motion that Code Enforcement Board order the Respondent to pay all operational cost incurred in the prosecution of this case and to correct all housing violations on said property which could include demolishing the building within 30 days or a fine of $150 per day be imposed each day the violation remains. CHAIRMAN PONTE: I would happily second that motion. CHAIRMAN LEHMAN: I would request you revise the motion. We don't need to tell them how to do it. To correct all housing violations on property within 30 days is sufficient. If they wish to demolish it, that's their choice. CHAIRWOMAN DUSEK: Michelle, let me ask you, would that include demolishing or do we need to specify it, or Jean? MS. RAWSON: That would correct the violations. CHAIRWOMAN DUSEK: So we don't need to put demolish in there? MS. RAWSON: If there's no house there, there's no violations. CHAIRWOMAN DUSEK: Would they understand that is one of their options? MS. RAWSON: It's hard to say what they would understand. Page 32 June 27, 2002 CHAIRWOMAN SAUNDERS: But they are indicating they have an attorney and the attorney would certainly understand if they didn't. CHAIRMAN LEHMAN: We are not in the business of providing waivers for ordinances. CHAIRMAN FLEGAL: It's not a waiver; it's an option. have a problem with the motion. is. I don't CHAIRWOMAN DUSEK: I would like to keep the motion as it CHAIRMAN PONTE: Second it for a second time. CHAIRMAN LEHMAN: We have a motion and a second. MS. ARNOLD: In our NOV, we did have that as an option as well. CHAIRWOMAN DUSEK: I would like to keep that in the motion. CHAIRWOMAN SAUNDERS: Would anyone consider adding to the motion simply that they ensure that the property is adequately secured within seven days? CHAIRWOMAN DUSEK: No, I mean, I would like to keep it just as clean as possible and I think the motion -- CHAIRMAN FLEGAL: I like the motion as stated, and it's been seconded. CHAIRWOMAN SAUNDERS: So the motion as it stands. CHAIRMAN FLEGAL: 30 days, $150. CHAIRMAN LEHMAN: We have a motion and a second. All those in favor signify by saying aye. ALTERNATE LEFEBRE: Aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. CHAIRMAN FLEGAL: Aye. Page 33 June 27,2002 CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. CHAIRMAN LEHMAN: Any opposed? Motion carries. Let's move on to the next case, please. MS. PATRILLI: Our next case is Code Enforcement 2002-016, Board of County Commissioners, Collier County versus Kathleen G. Sedlacek. For the record, I would like to ask if the Respondent is present. MS. SEDLACEK: Yes. MS. PATRILLI: Let the record show that the Respondent is present. We have presented to the Board and to the Respondent a packet which at this time I would like to enter as Exhibit A. CHAIRMAN LEHMAN: I'll entertain a motion to do so. CHAIRMAN FLEGAL: So move. CHAIRWOMAN DUSEK: Second. CHAIRMAN LEHMAN: We have a motion and a second by Ms. DUSEK. All those in favor signify by saying aye. ALTERNATE LEFEBRE: Aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. CHAIRMAN LEHMAN: Any oppose? Motion carries. MS. PATRILLI: And we also received a packet by the Respondent that I would like to enter at this time as Respondent's Exhibit A. CHAIRMAN FLEGAL: So moved. Page 34 June 27,2002 CHAIRWOMAN GODFREY: Second. CHAIRMAN LEHMAN: Same motion with a second. All those in favor signify by saying aye. ALTERNATE LEFEBRE: Aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. CHAIRMAN LEHMAN: Any opposed? Motion carries. MS. PATRILLI: The alleged violation is of Section 3.9.6.9.4. CHAIRMAN LEHMAN: One second, Patty. Could we swear the Respondent and the investigator in for testimony, please. Thereupon, KATHLEEN G. SEDLACEK, DONALD CLINE, the Witnesses herein, having first been duly sworn, testified as follows: CHAIRMAN LEHMAN: Please proceed. MS. PATRILLI: The alleged violation is 3.9.6.9.4, 1, 2, and 3 of ordinance number 91-102 as amended of the Collier County Land Development Code. The description of the violation is mitigation planning mortality exceeding 20 percent of the total number of each species in the mitigation plan as of the one year monitoring report. CHAIRMAN LEHMAN: Ms. Sedlacek, you can sit down if you wish. MS. SEDLACEK: I haven't been here before. CHAIRMAN LEHMAN: Sorry. Go ahead. MS. PATRILLI: The address where the location exists is 1861 Golden Gate Boulevard, Florida, more particularly described as folio number 0000036916040005, Golden Gate Estates, unit seven, east 75 Page 35 June 27, 2002 feet of tract 95 and west 165 feet of tract 96. The name and address of the owner or person in charge of the location is Kathleen G. Sedlacek, 1861 Golden Gate Boulevard, Naples. The date of the violation was first observed on February 25th of 2000. The date that the notice of violation was given was March 3rd of 2000, and a second was presented on April 12th of 2002. The violation was to have been corrected on the first notice of violation by April 3rd of 2000, and on the one issued on April 12th of 2002, the violation was to have been corrected by May 12th, 2002. At this time ! would like to turn the case over to the investigator, Alex Selecki (phonetic). MS. SELECKI: Good morning, Mr. Chairman, Board members. For the record, I'm Alex Selecki. I'm with Collier County Code Enforcement; I'm a Collier County investigator. With your permission this morning, I would like to do several things. First, I would like to review the reason that we have this vegetation removal ordinance for the benefit of Mr. Cline, Ms. Sedlacek-Cline, yourselves, and any viewers at home; then I would like to explain the case itself; and then finally briefly respond to a letter that was sent by Ms. Sedlacek-Cline to you dated June 16th. Well, first a brief history of the Northern Golden Gate Estates which is the western half of the Big Cypress Swamp. It was developed in the late 1960's before we had any environmental rules. The plan of the development was simple: Put in canals, drain the land, plat lots, put in roads, and sell to willing buyers. The result of this ditching and diking was to fragment the landscape and lower the watertable, four to six feet in some places. This caused an invasion of exotic species, runoff of fresh water into canals which loaded into estuaries, which altered natural salinity gradients and damaged fish and shell fish reproduction. And it also Page 36 June 27, 2002 caused a general drying of the land that exposed formerly wet protected areas to fire. This drawdown of ground water was a big factor in the huge fires in the Estates of 1970 and 1999/2000. And it remains a factor of fire as hazard in the Estates. The problems resulting from this original Estates development are cumulative and long term. In addition there has been habitat loss, an invasion by exotic plants. If native vegetation is lost and replaced with landscaping requiring irrigation, the draw of water for application would increase. As the land is cleared, it is rendered less pervious, and then water tends to sheet flow off into canals further drying the land, increasing low class flooding, and allowing fresh water to continue to run off into the estuaries. Local and State regulators could see these environmental problems coming, and in 1991 regulations were placed into the land development code to attempt to curb the worst of these. Limits were placed on excessive clearing of vegetation, property owners could clear but only what was necessary to use their property in ways allowed by State zoning, and only with permits signifying lawful use. And I would like to show you up here the purpose as written into the code, and I'll read that for you. This is the Division 3.9, Vegetation Removal Protection and Preservation. "The purpose of this division is a protection of vegetation within Collier County by regulating its removal to assist in the control of flooding, soil, erosion, dust, heat, air pollution, and noise, and to maintain property aesthetic and health values within Collier County; to limit the use of irrigation water in open space areas by promoting preservation of existing plant communities; to limit the removal of existing viable vegetation in advance of the approval of land development plans; to limit the removal of existing viable vegetation when no landscape plan has been prepared for the site." And it goes on to talk about not Page 37 June 27, 2002 restricting mowing of nonprotected vegetation or conflicting with other sections of the code. So this is a vegetation -- it started as a vegetation removal violation. There was also a component of another violation which was a structure that had an expired permit and needed to be repermitted, so there were two issues. When I got to the property -- I received a complaint on this property in February of 2000. And I arrived to find -- let me ask you to look at your pictures on page 22, the last picture there. There were two large piles of brush, and they were sitting right at the front of the property. Right around here, Mr. Cline was building this six-foot concrete fence along here. I had driven by the property many times and seen a fringe of cypress trees there. But when I went in response to this complaint, they were cut down, and that allowed me in addition to see into the interior of the property. Here's a photograph from 1996 property appraisers records. It was two parcels then; now it's one parcel; it was actually two parcels the day I arrived on the violation. This is legal clearing. This is about an acre. You can see now almost the entire parcel is cleared. I spoke to Mr. Cline on-site that day about that, about the clearing in the front, about the condition of the entire property, and about his structure which you see there. Here, it's a barn (indicated.) And he indicated to me that he had made a deal with the previous property owner that if the property owner would clear the property, he would buy it. Well, what you're looking at is three acres of illegal clearing. And I had a choice to make at that point, would I charge Mr. Cline and Sedlacek with the entire three-acre illegal clearing done by, according to him, someone before he bought the property? At that point I asked him how many trees he personally had cleared for not Page 38 June 27, 2002 only the front here but also for that structure. There were no additional vegetation removal permits that I could find on the property, and as you may know, the initial structure gave them only authorization for an acre. Beyond that you need a separate vegetation permit, removal permit, only for additional structures or fences. So I chose to give him a Notice of Violation and cite him with the removal of the trees that he said he personally removed, that was ten cypress trees. It was difficult for me to tell how many. They were in a pile; they were all broken up. I chose to take his word. At this point I served him with a Notice of Violation, and I think there were actually two charges on there initially regarding the structure which was subsequently cleared up. He did join his properties which was required and get a building permit for the structure, and that was resolved. He asked for an extension until the rainy season, which I granted. It was an extension of 60 days. And I worked with him to choose some species. He chose cypress trees. When I arrived to look at the cypress trees, they were planted. To me it looked like they were planted too low in the ground, planted improperly. I'm a certified arboreous and I've had training in this. I advised him of that. He told me they were planted according to the instructions and he told me he was going to leave them that way, so he did. And I visited on July 1 lth and they were dead. So I advised Mr. Cline that he needed to prepare an alternate plan using native plant materials, granted him an extension. It ended up the extension ended up going about 90 days because I had provided him with some information about where to obtain native plants and some assistance in preparing the plant, and those folks were out of town on vacation and it took a while. Page 39 June 27,2002 So in October, then, of 2000 1 went back to the property and found he had planted five oaks and 21 cocoa palms. When he had initially proposed these plant materials to me, I advised him that cocoa plum were cold sensitive and he advised me that his plant people had told him that with protection they would be fine. The code says that they have to plant temperature-tolerant species, and it references a guide from the South Florida Water Management District to refer to these. And cocoa palm is listed in that guide as a subtropical species that withstands a light frost. So I couldn't say, no, you can't plant those. He did go ahead and plant those. And I came and looked at them and noted at that point that they were very small, smaller than was really required for codes, but they were planted really well. They had nice little irrigation nozzles in them and they were just in there really well. So I looked through all the materials, and even though I thought I remembered discussing plant material size with either him or his supplier, it wasn't written anywhere. So I went ahead and accepted this plant material with a stipulation that it had to survive for five years according to the code, and I sent him a letter explaining the monitoring requirements. Unfortunately about three weeks later we had a freeze. I was driving by the property during this time and never did I see any kind of protection on the plants, you know, that white blanket material that people put on things they want to save; I never saw anything like that. And I saw that the plants had died. So one year later I went back and I observed that two oaks appeared to be surviving and two were not doing well at all, all the shrubs were dead and gone. So I left a card and I wrote a letter requesting the replacement of some of the shrubs. And at this point because two of the oaks were surviving, it appeared, and two of them Page 40 June 27, 2002 had a little bit of growth at the base, I talked to Ms. Sedlacek about pruning them back, trying to get them to come back. And I asked just for replacement of the shrubs. I spoke to Mr. Cline after that and he was not happy, and he did not want to replace things because he said he already replaced them twice. I knew that, and he referred me to his wife who asked me for an extension because they didn't want another freeze to come through and lose the second batch -- third batch of plants. I agreed to an extension-- this was December-- I agreed to an extension through March. And when I went back in March nothing was planted, and I was told that they were working on it and they could not give me a date to when they could plant things. That's when I set this for a Code Enforcement Board hearing. That's essentially the story of the case. Now I would like to just respond to some statements in this letter that you received. Ms. Sedlacek states that she's complied with the requirements in a timely manner twice, and I would just note that the first -- I gave three extensions totaling 210 days. So I feel like I have worked also with them and their time issues. There is a statement in here that I referred her to a person. I just want to correct that for the record. I don't refer people to business, local business people. I do provide source information for native plants. There's some reference in here to water restrictions. And the restrictions that were in place in 2000 and also just recently do not include new plantings. So that would not have prevented watering. Around about the third from the bottom, there's a statement that I said that if they had not purchased the plants, I had no choice but to file a petition, and that's not completely accurate. What I told them was that if they could not provide me with a compliance date, if they Page 41 June 27, 2002 couldn't say for sure when they were going to plant them, then I had no choice because I could not have an open-ended promise to comply when it worked for them. And they stated they were going to plant during the rainy season. I was at the property yesterday and still there was nothing planted as of yesterday. The other thing I want to address is the issue of expense. On the last page, the second to last paragraph, where they stated they've spent $2000 already in plants that did not survive. I am sensitive to that. I do understand that when I ask people to do things it costs money, but I would like to just point out that had I chosen to acquire the replacement of all the illegally removed vegetation, which I could have done so by law, costs would have been very, very much higher. And as an example of that I brought with me two mitigation plans that were submitted to replace vegetation on a forested area like this, and they ranged from $39,400 an acre to $107,000 an acre for restoration, according to what the code requires. So at three acres of illegally removed vegetation, their cost could have been $120, to $320,000 had I chosen to apply the full measure of the code. So I feel I was extremely modest in my requirements. But the trees that I'm requiring must survive. It's required by code, it's on your page 14, Section 3.9.6.9.3, Section two, requires 80 percent survival for five years and replanting yearly if mortality exceeds 20 percent. And why require replacements and what good is it to plant, to replant vegetation, if it doesn't survive. Because it's not just about spending money but replacing something of what was lost. That benefits the community, but it also stays on their property; it belongs to them. Yesterday when I went to the property, there's one of the trees that did survive. There are some of the other trees, this one is dead Page 42 June 27, 2002 here, and there are two small oaks right there that are still surviving (indicated). However, one of them has the staking rope still in it, has never been removed, and it's now embedded in the tree and has damaged the tree. I also noted some activity on the property. I don't know what is going on there. I don't know what they're doing, but I noticed this in the back, and I also noticed this and I believe that it's possible there's an excavation violation on the property. If they have dug down more than three feet or the total area of their excavation is more than 10,000 square feet, but absolutely there is another vegetation removal violation. Because if you look to page 16 of your packets, the definition of vegetation removal on the bottom includes, "Changing the natural grade above or below the root system," and you're looking at approximately three feet of natural grade change around the base of these trees. And I checked to see if there was another, or a vegetation removal permit on the property and there is none. And I would like to change one requirement that I made in the Notice of Violation. That's it, page 11. I did two Notices of Violation here, the first one was the original clearing. The second one I wanted to be very specific about plant material, size, and what was required to resolve it, so I did another one on a subsection that was actually included in the first notice as well; just to be very clear. But I ask there for eight cypress trees because I wanted 80 percent of the original required mitigation. And I guess I made an error and I wasn't really thinking about the trees that survived. I will accept one of those oak trees, the one that's undamaged, and so I would like to ask instead of for eight replacement trees for seven replacement trees. Page 43 June 27, 2002 And to conclude I would like to recommend that you require payment of operational cost as I spent numerous calls and wrote numerous letters, had eight site visits to their property. I ask that you require the planting of seven, 14 foot 3 inch caliber Florida number one grade cypress trees, and require that 100 percent of those survive over four years to be planted within 30 days or $50 per day fine. CHAIRMAN LEHMAN: Any questions from the Board? CHAIRMAN PONTE: Yes, I have a question. Alex, just one question for you. The trees that you showed this photo of, that are dead, why are these trees not surviving? MS. SELECKI: They were small plant material; they suffered a freeze. I don't know how regularly they're getting watered. I don't know about their care. I can only surmise from what I saw on the one tree with the staking rope left on it, they're not -- they were just kind of plunked there and left. That's all -- I don't know. CHAIRMAN PONTE: So there's nothing intrinsically wrong with the soil or something of that nature that would make them not survive? MS. SELECKI: Well, oak trees don't survive everywhere. They will survive if they're still on a property like that because they do need some drainage. I would say they're marginal. If you get a good specimen and it has a good start, it can grow fine in the Estates. If it's in an area that's flooded on it's -- their site conditions are not conducive. I recommended initially cypress because that was what was taken out. MS. ARNOLD: Can I just note for the record the information that was presented by Alex regarding that additional work should not be considered as part of this case. CHAIRMAN LEHMAN: Correct. Page 44 June 27, 2002 CHAIRWOMAN SAUNDERS: Alex, I think it was on the second batch of plans that were on the approved list but very tentative and died in the frost, did their dying have anything to do with the fact that there wasn't an irrigation system in place? MS. SELECKI: No, they actually had bubble irrigation set upright to the base of their roots. It was very well set up and it was one of the reasons why I allowed it to remain and didn't require it to be placed with larger plant material. CHAIRWOMAN SAUNDERS: So you don't see any real reason to have -- any requirement to have an irrigation system in place in order to have these kind of trees, the trees you are recommending survive. MS. SELECKI: They have to be irrigated initially, but the purpose of putting native plants back in is not to have the need for irrigation systems. CHAIRWOMAN SAUNDERS: Thank you. CHAIRMAN LEHMAN: Just one second. Are you okay? COURT REPORTER: I'm okay. Thank you. CHAIRMAN LEHMAN: Any questions for Investigator Selecki? Mr. Cline, do you have anything you would like to add? MS. SEDLACEK: I would just like to say that Alex did refer us to the Native Plant Place for the second batch of plants. The lady came out, did everything, I thought professionally, and to her standards. And when they didn't live and I wrote to the Native Plant Place, she said because she didn't do the irrigation system, we didn't pay for that, she wouldn't replace the plants. So I don't get it. MR. CLINE: I'm sorry, first I would like to say good morning to you all. I would want to try to bring to the Board I appreciate the information of the back history of how the property was, and where it Page 45 June 27, 2002 was brought up today. But to bring it to the fact what we're talking about. I don't have a problem with replacing what the gentleman operating the tract removed. I don't have a problem with that. What I have a problem with and I try to get other people to come in and do it for me is to plant ten cypress trees that she wanted planted at first, and we watered them everyday. They told me to water them everyday on the sprinkler system or drip line, whatever you want to call it. They have to be watered everyday for at least 30 days. All right. Then we went ahead and did that. But at that time that's when water restriction hit and came into town and we seen it on TV and read it in the newspaper that we could only water only on odd days. Now, with new irrigation, the gentleman at the -- where I bought the trees from he said they have to be watered everyday. Not to come back or throw it back on y'alls fault or whose fault it is the trees didn't live. Now, we got together and we discussed, let's change it up a little bit -- MS. SEDLACEK: Before you go on, the place we bought the ten plants from, ten cypress trees went out of business. That's why we didn't go back to them. MR. CLINE: That's the reason I didn't go back to them to buy more plants off of the gentleman over here off of Pine Ridge because they closed up. But we did discuss it about putting in five oak trees and put in hedges that run in between the driveway, which y'all don't have the picture up there, that runs across. But like I say, I watered them. The professional people came in and planted them for me, told me how to take care of them, how to water them, and even those died. The plant that she took a picture of in the front yard, that's been dead for months. But the thing of it is for -- and I talked to her about expense. I'm a contractor, and I lose money if I'm not working. Page 46 June 27, 2002 When I don't have a problem about paying, but I don't want to continue to pay to put in trees, continue to pay to put in trees, if I knowed the land is no good. I took some soil to a friend of mine. He said the property where I put the oak trees at is on the side of the septic tank system that they put in in front of your home. He said that what that needs is a little bit more dirt in there before you plant your trees and whatever you put in there it has to be watered everyday. MS. SEDLACEK: And I didn't realize the water restrictions didn't go -- Alex told me in March of this year that water restrictions don't affect Golden Gate Estates. I never knew that. In the paper they don't say that, on the TV they don't say that. And I'm sorry I didn't know that, but she brought that to my attention in March. MR. CLINE: She brought that to our attention. I didn't know that either, but I'm just telling you how do you obey the law and break the law at the same time? And that's what I was looking at is not water on a odd day. Then I started watering later in the afternoon so that sun doesn't evaporate the water so it has more time to soak in. But to come back to the picture of the situation, I'm doing all the work, doing a full-time job myself as a subcontractor for the phone company and I'm doing all this work by myself now, and because the people we have, two professional people that come in to do this didn't do it right. I mean they did their job, everything worked out good until I started cutting back on the sprinkler system and on the water, so now I decided what I'm going to do is do it myself, add a little bit of dirt. I'll put in the sprinkler system. And this way here when I replant, I have more of a chance for these here plants to live. And I even mentioned to Alex, that's not only the native plants I'm going to put in. I plan on putting in even more than what they required to put in because there's a driveway I would like to have Page 47 June 27, 2002 running around all the driveways, all the way back to the building. And then, you know, have some more trees put in. I want to put in some fruit trees, but you can't do this if you don't have the right irrigation system for it. And as far as the level of the land, as far as the others, as far as we have to get the right level and the right mixture of the soil in there so we don't have a problem with the plants growing. The two that she says is okay, that she would accept, okay, well, they have to be redug back up because there's not enough soil over on that side. That may even die, too. So what I'm looking at, I'm going to have to replace even more - - I mean I'm going to replace -- I don't have a problem replacing what she's asked me to replace. But if I can get my own irrigation system in, allow me enough time because, like I say, I'm doing the work myself, I bought the tractor, I got the trackhoe. I got a friend that's helping me with leveling it all off, and I'm going to get the irrigation system in, plant grass, plant the shrubbery, and then this way here I have a better chance for it to continue living if I can just have enough time to get this in. And the only reason I think that we're in here because the last time she called me was when I was working and I had, like, the bottom of the day had already been turned up when she called. And I should have probably told her I would call her back but I got into a discussion with her and I got frustrated and I told her, "Just do what you got to do; I got to do what I got to do." Because I was in another job at that time trying to work out the problem I was already involved in and then to try to think about what I've got to do out here. So, on the other hand, there is if I owe her on apology for anything I said wrong, I apologize for that. But she pushes me to give her a date when I'm going to have this done, when I'm going to Page 48 June 27,2002 get done. If it don't, she's going to keep threatening. She's going to bring me in here to talk, you know, she's going to have to -- MS. SEDLACEK: So we're here. MR. CLINE: So we're here. So I figure what we do is face it, explain the situation, and we are trying to stay in compliance. We are good citizens; we're trying to take care of everything we need. I don't have a problem of putting in native plants anywhere on the property at all. Even where I'm digging up, it's going to be even more put in. But it's over a period of time. Now, what she was trying to do is get me to give her a date on the ten trees that need to be replaced. Even at that time if I'm doing all the dig, I'm doing all the moving, then I got to wait on this other friend of mine to help me level it down and then, you know, I got to work with another friend of mine to help me, so, you know, it's hard for me to give her -- I could give her the 29th. Well, the 29th comes and it's still not done. Then I'm going right back to the same situation. Then I have her calling me and calling me wanting to know when I'm going to have it done; I need to give her a date. And then to keep filing for an extension, extension. But I feel if I shared my story with how I want to, you know, to make sure these plants live and get everything, you know, like the irrigation system in, get the land levelled out a little, this way here you'll have more than what you're asking for to be put back. I mean, I understand that whatever the gentleman did when I bought the property, it was no concern of mine because it wasn't my property at the time. I bought it and this is what I want to do and since I put my - - I got a 41 by 41 building. Everything was permitted. They have the wall put up, have the building put up. They told me if I was to have a structural building I would have to join my property together; I did that. I went down and did all of that. I had all of that, you know, Page 49 June 27, 2002 everything try to get permits for everything. And as far as any additional permits to do anything else, I mean, you got to be aware of what you have to get a permit for and what you don't get a permit for. From where I was from before, you know, you own your own land, but I never had to deal with irrigation, protected trees and all this other before because, you know, we only lived down here for nine years. We came from Texas, so everything grows big over there. You don't worry about it. It's just everything is different until you learn what you can do, what you can't do. But it's been brought to discuss it with y'all to try to draw out the picture of what we're trying to get accomplished and it will be real nice place when it's done. CHAIRWOMAN DUSEK: Mr. Cline, this has been a problem for two years and I know you've tried to correct it. I thought that there was an irrigation system there now and I want to ask you why do you think the first time you planted that those trees did not live? MR. CLINE: Ma'am, she wanted me -- she specified she wanted me to put cypress trees in. It wasn't my suggestion, because I wanted to put something else other than cypress, because I have plenty of cypress trees on the land already. So I suggested I put in a different type of native plant. Well, ten trees have to be put back in. Ten trees where I put them at they should have gotten plenty of water. They was watered everyday until the restriction came along where I could only water on odd days. CHAIRWOMAN DUSEK: Do you think it could be the size of the trees you put in? MR. CLINE: No, ma'am, the trees was taller than I was, they was good-sized trees. CHAIRWOMAN DUSEK: So you're not quite sure why they died. Page 50 June 27, 2002 MR. CLINE: No, ma'am, I don't. The only thing I notice is when we watered them, like I say, and then the only time that I see where it was different is when the restriction came on because you had to water on odd days, and I started watering on odd days. It might have been a day or two I forgot to turn the water on. CHAIRWOMAN DUSEK: Is there an irrigation system now? MR. CLINE: No, ma'am, there's not. But I continue to put the black holes on the ground, with little sprinklers that come out. But what I'm in the process of doing, and I've already done pipe over all the driveways. I'm not putting in an irrigation system. I have pictures I showed you of how I want do get the irrigation system put in. You know, the money does hurt, but I'm saying to put this in, you know, what you require for right now it does, but I want to make sure I have a good arm making it to continue to water it, to make it survive. CHAIRWOMAN DUSEK: Do you understand that you need to give some sort of time frame because this has been going on for two years. Alex has given you extensions, and I don't know how long an irrigation system is going to take to put in. But you do need to give a time frame to this. MR. CL1NE: I could probably do it a little closer now on that because of all the work that's been done since the time that we spoke last. Because there's been a lot of work done since the last time we spoke. And I could probably give you a little closer, but the backyard I got that levelled out. CHAIRWOMAN SAUNDERS: What is the time frame, sir? How long do you feel you need in order to put, to complete what you need to do and put the plants in? Give us a 30, 60, 90 -- give us a date. MR. CLINE: I say within 30 to 60 days. Page 51 June 27,2002 CHAIRWOMAN SAUNDERS: So if we said within 60 days you will be in compliance. You feel that is reasonable and comfortable? MR. CLINE: Yes, ma'am. CHAIRWOMAN SAUNDERS: I don't think we need to know anything else. MR. CLINE: As far as everything that's been done. CHAIRMAN LEHMAN: Mr. Cline, let me ask you a question real quick. Do you understand the purpose of why the County would ask you to put a mitigation plan in after trees have been removed? MR. CLINE: Well, when she came -- when Alex came up to the house the first time, the gentleman was clearing so I had a permit to put a wall all the way across the front, and it was bushes and shrubs -- CHAIRMAN LEHMAN: Let me stop you there. Again, my question is to you do you understand why a mitigation plan would be required. MR. CLINE: Why should I -- CHAIRMAN LEHMAN: That's correct, that's what I'm saying. MR. CLINE: She told me I took out too many trees; she told me to put them back. CHAIRMAN LEHMAN: My request to you is why would the County, or the State, or any other agency want you to replant trees after you have removed them from your property. Do you understand why a mitigation plan-- MS. SEDLACEK: Like if they're endangered or something. CHAIRMAN LEHMAN: Well, Investigator Selecki has tried to explain, again, the purpose of what mitigation plans are. In a sense, it is to preserve what we have here in Florida. It is to preserve water table levels; it is to preserve runoff characteristics of a land; it is to preserve many characteristics of the land that make Florida, Florida. Page 52 June 27, 2002 If you can, just imagine for a second everyone of your neighbors, and you've seen the aerial property of your lot against everyone else's which is heavily wooded. If you would, imagine everyone of your neighbors doing exactly the same thing you did. Now, what would Golden Gate Estates look like on your block? MS. SEDLACEK: I have kind of an idea what it would look like because they just widened the road and took down 15 feet of each side of everything that was there, so that's what it would look like. CHAIRMAN LEHMAN: Well, the point that I'm trying to get you to understand here, just imagine the entire picture as we show on the monitor right now looking identical to your lot. The purpose, again, if we had rainwater flow instead of saturating into the ground where it could help the water table in that particular area, would run off. Instead of you having benefits of the vegetation to retain the soil and other characteristics, it would leave. So in a sense, you're creating a drier environment, so you're changing the environment. MR. CLINE: I understand what you're saying because no trees - CHAIRMAN LEHMAN: Exactly. MR. CLINE: -- it causes more of the moisture to be sucked up. CHAIRMAN LEHMAN: These and many, many other reasons are the purpose of why the County or the State requires a mitigation plan if you remove trees. This is why we have a permit process to make sure you don't remove what needs to stay. That's what Investigator Selecki is citing you for. This is why it's very important for you to install those trees, again, in a timely manner. We've gone two years now and the effects of what you have done have occurred for two years. So, again, coming to the Board saying I need more time, all we are doing is saying let those effects continue. Okay? Page 53 June 27,2002 And I don't mean to put it quite in that sense, but I'm trying to get you to understand why a mitigation plan might be required and the urgency of wanting to comply with that. That is what the Board is looking for; we're looking for compliance to the codes and ordinances that we have. And these are some of the reasons why Investigator Selecki might be pressuring you to comply. CHAIRMAN FLEGAL: Mr. Cline, a couple of times you stated, you know, Ms. Selecki comes to you and asks for time and we can't give her time. You're a subcontractor to the phone company? MR. CLINE: Yes, sir. CHAIRMAN FLEGAL: They obviously give you things to do? MR. CLINE: Yes, sir, I have jobs. CHAIRMAN FLEGAL: I assume they have to be done in some amount of time. They don't say, gee, fix a phone and you say, sure, between now and infinity. MR. CLINE: I have 30 days. CHAIRMAN FLEGAL: You say by tomorrow or something. That's what we want, you know, she asked you for a day, you say, yes, ma'am, here's the day; just like in your business. Now, you're here, we're going to give you a date. If you don't do it, you're going to be fined. MR. CLINE: Okay. CHAIRMAN FLEGAL: If you don't pay the fine, we're going to ask the County Attorney to foreclose on your property. So you're going to get a date, so now you've come full circle by not trying to just say, gee, Alex -- and you've had I don't know how many extensions, three, four, something, so you're here. So the buck stops here, as they say. We're going to give you an order. MR. CLINE: That's fine. Page 54 June 27, 2002 CHAIRMAN FLEGAL: And you're going to comply. I want you to understand that, you're going to comply. MR. CLINE: Well, now I say that's fine, too. But what I'm saying is you might have called me at the wrong day at the wrong time; just like when I was involved in doing something with another company. And I'm already pulling out my hair trying to figure out what this problem is. My problem was I should have said, Alex, let me call you back this afternoon. But I understand what you're saying. I will do it, and I don't have a problem. Like I've been saying all day, I don't have a problem with replanting anything. But now I see your urgency with why you want do get them in the ground as quickly as you possibly can. CHAIRMAN FLEGAL: After about 16 months or so, I would say, yeah, the urgency is here. MS. SEDLACEK: You're acting like we didn't ever plant anything, but we have. CHAIRWOMAN GODFREY: Mr. Cline, the first time you spoke to Alex was 2/29 of 2000. In her notes you became irate with her. The first time she spoke to you. MR. CLINE: Yes. She wanted to know how many trees that I took out of the ground. I didn't take none of them. The gentleman was on the tractor working there at that time. He was the one that was doing all the work. I wasn't doing anything. So we had to turn and ask him, "How many trees did you take out on this front part?" And he told us and she agreed. She said, "Well, you have to put these back." I said, "Okay." CHAIRWOMAN GODFREY: On 6/9 she visited, that's the rainy season, "There were ten cypress planted but appeared stressed, all needles brown, requested native tree list;" she faxed you the list. Page 55 June 27, 2002 Apparently, the first planting was done during the rainy season. Why didn't the plants survive? MS. SELECKI: May I interject here? CHAIRMAN LEHMAN: Yes, please. MS. SELECKI: The plants, when I came to see the cypress, .I informed Mr. Cline that I believe they were planted too deeply in the ground and that was the problem why I thought they were not surviving. Also on the issue of irrigation, let me just say that there is water available on the site, there doesn't have to be an irrigation system in the ground going to each plant. There's a hose, there's a spicket, water is available. We have even required replacement of vegetation on lots where there is no irrigation, undeveloped lots, and the folks are required to either irrigate it or do it during rainy season or monitor the plants. The code does not say that mitigation plants must have a formal inground irrigation system in order to go forth. CHAIRMAN LEHMAN: Mr. Cline, just for your information, according to the testimony here given today, you received approximately 210 days worth of extensions. It is not that the Board is recognizing you have planted. Apparently you have planted multiple times. The point is the plants need to survive, and whatever needs to be done to make that happen has to occur. My colleague basically is saying, we will give you an order today and that order must be complied with. He is 100 percent correct. If it is not complied with, the order has penalties along with it. They could go far as the county foreclosing on your property. So this is a very serious order, and I would like you to look at it appropriately. Page 56 June 27, 2002 Let me just leave it there and ask you if you have anything other to add or if the Board has any questions they would like to ask? CHAIRWOMAN DUSEK: I just wanted to ask one of Alex. I notice that in the statement of violation that Kathleen Sedlacek. MS. SEDLACEK: Ms. Sedlacek. CHAIRWOMAN DUSEK: Ms. Sedlacek was sited and not Mr. Cline and they are both named on the Quit-claim Deed. MS. SELECKI: Which one are you speaking of?. CHAIRWOMAN DUSEK: Well, I'm looking at page three. MS. SELECKI: That was the original one, and at that point the properties were not joined and Ms. Sedlacek owned the property by herself. The second notice which is on page 11, does reference both parties. CHAIRWOMAN DUSEK: So are we just citing her? MS. RAWSON: The statement of violation is only to Kathleen Sedlacek, so if we're going to include him in the statement of violation, which is like the pleading, he's going to have to agree that he will waive notice and then we can add him. CHAIRWOMAN DUSEK: What is your suggestion, Jean, that we add him? MS. RAWSON: Yes, because he's clearly an owner of both these parcels. But if he'll waive notice so we can include him on the statement, I think that would be the proper thing to do. CHAIRMAN LEHMAN: Is that acceptable to Mr. Cline? MR. CLINE: Yes, it is. CHAIRMAN LEHMAN: Do you have any other comments you would like to make? MR. CLINE: No, sir. MS. RAWSON: I have one question, how do you spell your name; S-A or S-E? Page 57 June 27, 2002 MS. SEDLACEK: E. CHAIRMAN LEHMAN: I would like to open it for discussion of the Board. CHAIRWOMAN DUSEK: I would like to make a motion that in the case of the Board of County Commissioners versus Kathleen Sedlacek and Donald Cline, case CEB number 2002-016 that a violation does exist and the violation is of Sections 3.9.6.9.4, 1, 2, and 3 paragraph of ordinance number 91-102 as amended by Collier County Land Development Code. The description of the violation is mitigation planting mortality exceeding 20 percent of the total number of each species and the mitigation plan as of the one year monitoring report. CHAIRMAN LEHMAN: We have a motion by Ms. Dusek. Do I hear a second? CHAIRMAN FLEGAL: Second. CHAIRMAN LEHMAN: We have a second by Mr. Flegal. All those in favor signify by saying aye. ALTERNATE LEFEBRE: Aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. CHAIRMAN LEHMAN: Any opposed? carries. Do we have an order of the Board? CHAIRWOMAN DUSEK: I just wanted to ask Alex again exactly what your recommendation is. No opposing, motion Page 58 June 27, 2002 MS. SELECKI: Well, I would like them to, per the code, have 80 percent of the mitigation survive. I'm willing to accept one of the planted oak trees as surviving and in good shape. So I'm asking for seven cypress trees, 14 foot 3 inch caliber Florida number one grade trees to be planted on the site, and 100 percent of that which would equal the 80 percent that's to survive for four years. CHAIRMAN LEHMAN: So you're asking for seven trees to be planted with a 100 percent survival years for five years. MS. SELECKI: For four years because we've already gone on one year. CHAIRWOMAN DUSEK: Are you specifying cypress or does it have to be? MS. SELECKI: I have specified cypress at this time because the other trees were not successful and cypress was what was removed, so I feel fairly certain that they can survive another round. CHAIRWOMAN DUSEK: Okay, Rhona. CHAIRWOMAN SAUNDERS: I recommend that the respondents be ordered to pay all operational cost incurred in the prosecution of this case and abate all violations of the replacement planting of seven trees with 100 percent survival rate of four years within 45 days or a fine of $50 per day for each day to be imposed for each day the violation continues. CHAIRMAN LEHMAN: Would you like to specify the three species? CHAIRWOMAN SAUNDERS: Sure, the cypress trees. And the reason I put the 45 days is it's a compromise for what Alex asked for and the time frame we finally got. I'm willing to say both parties have tried. CHAIRMAN LEHMAN: Do we have a second or a discussion? Page 59 June 27,2002 CHAIRMAN FLEGAL: Discussion is Mr. Cline said he thought he could do this in 30 days. I don't see a reason to give him 45 days to plant seven trees. If he can't do that in 30 days, he needs some help badly. I would also like to see the fine amount changed. I think with all the extensions, understanding everybody's side, it's now as the old saying goes, "Fish or cut bait." It needs to be a little incentive. You're going to do it, you're going to do it within a time limit. If you don't, you're going to get hurt; period. I think there's been enough give and take on both sides. It's time to do it. I think to make that point we need a little more severe fine than $50. CHAIRMAN LEHMAN: Rhona, do you wish to amend your motion? CHAIRWOMAN SAUNDERS: I really don't. I believe that the people have made an attempt, it hasn't worked. They have lost their temper at times, but they have tried. And I believe they're still trying and have indicated here they would like to and I feel $50 is fair. CHAIRMAN PONTE: Ms. Sanders, would you entertain changing your motion to 30 days? MS. SANDERS: Yes, I will do that. CHAIRMAN PONTE: We won't take advantage of the rainy season. CHAIRWOMAN SAUNDERS: I would amend my motion to 30 days, yes. CHAIRMAN LEHMAN: Any further discussion? We have a motion by Ms. Sanders for the Respondent to pay all operational costs incurred in the prosecution of this case, and to abate all violations through replacement of plantings as specified by Ms. Selecki within 30 days, or a fine of $50 to be imposed for each day the violation continues. Do I hear a motion to second? Page 60 June 27, 2002 CHAIRMAN PONTE: I second. CHAIRMAN LEHMAN: Mr. Ponte seconded the motion. All those in favor signify by saying aye. ALTERNATE LEFEBRE: Aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN LEHMAN: All those opposed? CHAIRWOMAN GODFREY: Opposed. CHAIRMAN LEHMAN: Can we have the opposed raise their hand. Thereupon, (Chairwoman Godfrey and Chairman Flegal raised their hands.) CHAIRMAN LEHMAN: Five to two, motion carries. Mr. Cline, do you understand what we're saying to you on this? MR. CLINE: Yes, sir. I have 30 days to plant all ten cypress trees -- I mean seven. CHAIRMAN LEHMAN: You have 30 days to comply with Ms. Selecki's requirements with the ordinance. We want to have compliance with the ordinances; that includes planting trees and other things that may be required in mitigation to plant them. If that does not occur, on the 31 st day you will start to incur a fine of $50 per day past that time. Of the trees you plant, of the plantings you put in the ground, you have to maintain 100 percent survivability for a period of four years. CHAIRMAN FLEGAL: Just to clarify something. Ms. Rawson, our order was to plant seven trees. MS. RAWSON: Correct. CHAIRMAN FLEGAL: It didn't say anything else? Page 61 June 27,2002 CHAIRWOMAN DUSEK: Seven cypress. MS. RAWSON: Seven cypress trees. CHAIRMAN FLEGAL: Our chairman was just saying, "And other things," that doesn't count. The order only says seven trees in 30 days. MR. CLINE: How big? CHAIRMAN LEHMAN: I stand corrected. MS. RAWSON: I think Ms. Selecki's said what kind of trees, maybe that would clarify. CHAIRMAN LEHMAN: She did, cypress. MS. RAWSON: No, she said what grade. MS. SELECKI: Seven cypress trees, 14 feet tall, 3 inch caliber, and Florida number one grade plant material. CHAIRMAN LEHMAN: And you'll work with respondents to make sure they understand the variety, the species; the whole bit. And they can comply through whatever information you give them. MS. SELECKI: Yes, sir. CHAIRMAN LEHMAN: Thank you very much. Before we go on to the next case, let's take a ten-minute break for the court reporter. And we'll return at 10 after 11:00. Thereupon, (A recess was taken and the proceedings continued as follows:) CHAIRMAN LEHMAN: I would like to call the Code Enforcement Board back to order, please. We concluded public hearings. Pat, if you would like to move on to new business. MS. PATRILLI: In our new business, we have a response for an extension on the compliance gate, the Board of Collier County Commissioners versus Phillip Marrone. And that is CEB case number 2001-013. The original compliance date for this case was to Page 62 June 27, 2002 be June 30th of 2002 and Mr. Marrone has notified us that he would like an extension on his compliance date. CHAIRMAN LEHMAN: I do have a slip from Mr. Marrone. He would like to speak to the Board. MR. PRITT: Sir, I didn't know I needed to make out a slip. My name is Robert Pritt. I'm Mr. Marrone's attorney. CHAIRMAN LEHMAN: Before you begin, any other discussions? MS. PATRILLI: I would like to offer that Mr. Marrone did send us a letter informing us and I would like to enter that as Exhibit A for the Respondent. CHAIRMAN LEHMAN: CHAIRMAN FLEGAL: We'll entertain a motion to do so. So move. CHAIRWOMAN DUSEK: Second. CHAIRMAN LEHMAN: We have a motion and a second; Mr. Felato, Ms. Dusek. All those that agree signify by saying aye. ALTERNATE LEFEBRE: Aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. CHAIRMAN LEHMAN: Any opposed? No opposed, motion carries. Patty, any other comments? MS. PATRILLI: No, sir. MR. PR ITT: Mr. Chairman, members of the Board, my name is Robert Pritt with the law firm of Russell and Andres. I've recently been retained by Mr. and Mrs. Marrone, the owners of Little Italy Page 63 June 27, 2002 Restaurant, to come before this Board to seek an extension of time for the June 30 deadline in the above-captioned case. Mr. Marrone had some conversations with the then County Manager, I guess Mr. Oliff?. Is he the still County Manager? MS. ARNOLD: He's still the County Manager. MR. PRITT: And received a letter August 16th, 2001, and also had conversations, I believe, with Ms. Arnold, director and received a letter October 4th, 2001. I do have copies of the letter. I don't know if they're in your file or in anybody else's file. I would like to enter those into the record. And, mercifully, I'll try not to read all of each letter. But the August 16th letter, in short, applies to extension of time for the removal of the sign. You can see a picture of the sign. This is as it exists now, I believe. And that's in front of you on the -- I can't remember what you call this thing. CHAIRWOMAN SAUNDERS: The monitor. MR. PRITT: Essentially, on August 16th, 2001, Mr. Marrone had received a letter from Mr. Oliff that says, in pertinent part, "In regards to the sign, I have discussed it further with Michelle Arnold and John Dunek. The deadline for all nonconforming signs to come into compliance With the correct code is February 1st, 2003. So even under the very best of circumstances, your sign would have to be removed by then. Understanding that you are facing a financial hardship, you could petition the Code Enforcement Board to extend the use of your current sign to the February, 2003 date. Should you submit this petition, the County would support it. This would provide you with an additional eight months and would be the legal limit of what could possibly be supported by the County staff. Page 64 June 27, 2002 I would further offer that we would assist you with preparing your request of the Code Enforcement Board," and then there are other things. There are some matters on here that I don't think have anything to do with the sign that have essentially been resolved. And the letter from Ms. Arnold dated October 4th, 2001, "With respect to the nonconforming sign case, the Board has given you until June, 2002 to remove your existing sign. I do believe that given the county deadline for all other nonconforming signs for February, 2003 and the potential unavailability of signed contractors based on that deadline the Code Enforcement may be exceptive to granting you an extension to the 2002 date. If you would like to petition the Board for an extension, please submit the request for my office, and I would arrange to have the item placed on the next available agenda." And I would like to enter those into the record, if I may. CHAIRMAN LEHMAN: Sure. MS. ARNOLD: Give it to the court reporter. CHAIRMAN FLEGAL: We do accept this. CHAIRWOMAN DUSEK: I make a motion we accept this. CHAIRMAN PONTE: I would second. CHAIRWOMAN DUSEK: This exhibit. CHAIRMAN LEHMAN: Ms. Dusek for the motion, Mr. Ponte for the second. All those in favor, signify by saying aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. Page 65 June 27, 2002 CHAIRMAN LEHMAN: Any opposed? Motion carries. Please mark the exhibits appropriately. MR. PRITT: Just by way of background, and really it's not terribly germain to the request that we're making here today, some of you may remember the case. I don't. This is the first time I've been here on this matter. But it has to do with the sign that is actually on top of the structure, the Little Italy Restaurant, been there since 1965, I believe. And there was a hearing concerning the change of the copy on the sign and involves just the repainting of the sign, not changing anything else, but just the repainting of the sign. I think instead of saying "restaurant" it now says "restaurante" and in the painting of that copy. The Board found that there was a violation and issued an order. You have a copy of the order here in your packet, I think. CHAIRMAN LEHMAN: Yes. MR. PRITT: But what we're asking today is that the order of the Board be amended to change the date from June 30th, 2002 for compliance to the February, 2003 date. I really don't know when in February, 2003 exactly what day that is, when it is, when the sign says it should be removed. MS. ARNOLD: February 1, 2003. MR. PRITT: And I think I'll stop at that. That's our request. Mr. Marrone is here. He can tell you the hardship that, as you can see from the pictures, it's a large sign. It's on the building, it's attached to the building. It's not a ground-mounted sign or a pole- mounted sign; it's a building-mounted sign. And it will do damage to the building, some damage to the building, which will have to be repaired, and the structure itself is a large structure. That is very costly for him to take down, and I'm sure of the difficulties of a business in this area over the last year. It was not great in 2001, but Page 66 June 27, 2002 it's been pretty disastrous since September, 2001. So we're respectfully requesting additional time for compliance. CHAIRMAN FLEGAL: I guess my leading question would be since you're asking for this extension, if we extend it, what assurances is the Board going to have that you're going to do it? I can see in February, he comes back and says, gee, you know, business is still bad. I can't do this. It's great to ask for extensions, but, you know, he could go out of business between now and then and now the new owner is going to be saddled with doing this. And so I'm kind of concerned that should I even consider some kind of extension, what assurance would I have that this is going to happen. MR. PRITT: Well, in your order, sir, there is a $75-a-day fine and that is something that people take very seriously. That's a power that the Board has and the power to fine. CHAIRMAN FLEGAL: I understand that. MR. PRITT: And that itself is a significant deterrent. Sorry. CHAIRMAN FLEGAL: Well, I understand that. But what we're doing is we're moving that out eight months, so my deterrent just went south for eight months. Now I'm back looking at eight months from now he could waltz back in there saying, you know, I still got these financial problems; I would like another extension. And here we are again, so I'm not big on the idea of extensions unless I know something is going to happen. MR. MARRONE: Sir, if I may. CHAIRWOMAN DUSEK: I would concur. CHAIRMAN FLEGAL: Yes, sir. MR. MARRONE: I've owned that building since 1998. I still own the property with my wife, of course, and since then I've done everything possible to improve on it, to go by the laws and the rules. Page 67 June 27,2002 It has been a financial disaster for me this year. I had hoped last year when I was here that I would have been able to accomplish your orders or your whatever. Okay. And if I could do it next month, I would definitely do it next month. I don't enjoy being here, and there's no way right now that I can work with what I have. I'm looking at about anywhere between $20,000 to $30,000; it's a lot of money. CHAIRMAN FLEGAL: Okay. And I think that's the same thing -- MR. MARRONE: I have complied with everything else; landscaping, improving on the property. I cannot handle this. CHAIRMAN FLEGAL: Okay. I think we had the same estimate, because I remember when this case was brought before the Board. It was $20,000 to $30,000 then that you would take. MR. MARRONE: We didn't have 9/11 that year either. CHAIRMAN FLEGAL: I guess the comment is I'm more prone since we have the deterrent of $75 a day, which once a fine is imposed you have the right to come before us and ask us to waive it because of some circumstance. I'm more prone to let it stand so that as the fine mounts up, the fire is already under you to get compliance. Once we move the date, we've lost our whip until way down the road. And then, as I said, you can come back in and ask for another extension because of some circumstance. I'm a little hard-pressed to do that myself. I'd rather keep the fire under you and hopefully business will pick up or whatever, and then you come back and say, you know, things got better. I've changed the sign, could you folks waive my fine. Then I probably would be on your side. Right now, I'm not there. You haven't convinced me. I don't know about the others, but you haven't convinced me. Page 68 June 27, 2002 MR. MARRONE: I know what you say, sir, about later on if I remove the sign I can ask you to waive the fines. CHAIRMAN FLEGAL: You have that right. I'm just not now willing to move my whip to some other date. MR. MARRONE: If I have the financial ability, I will remove the sign; it would have been removed already. CHAIRMAN LEHMAN: Michelle, what is the County's position on this request? Do you have a position? MS. ARNOLD: We don't have a position. This is your decision. You know, there is the 2003 deadline that all the other nonconforming signs have. I don't think an extension beyond that date would be just to all the other nonconforming signs and businesses. CHAIRWOMAN DUSEK: But I would assume, maybe this is the wrong assumption, that Mr. Marrone might have realized that if he made any changes to the sign, then it puts him into a different time frame of changing and following the new ordinance. CHAIRMAN FLEGAL: We went through that when the case was here originally. CHAIRWOMAN DUSEK: Well, I'm just bringing that to the attention of the Board again. CHAIRMAN FLEGAL: I appreciate his position and his request. My comment is I hope the Board does not grant it because I think we need the whip and let the fire be under his backside to try to resolve his problems. And I hope his business picks up and I hope make things better. CHAIRWOMAN DUSEK: Are you making that a motion? CHAIRMAN FLEGAL: Yes, I make a motion we deny the request. Page 69 June 27, 2002 CHAIRMAN LEHMAN: Before we go too much to the motion, do you have anything else you would like to add? MR. PRITT: Yes, sir, that was an interesting conversation. I don't like the way it was going at all. CHAIRMAN FLEGAL: Sorry. MR. PRITT: The imposition of a fine is something that's pretty serious; you-all know that. That's what you're here for. And it is being taken seriously that's why we're here. That's why he is paying me to be standing here beside him today. This is a very serious matter. I did not intend to and will not unless conversation goes this way, attempt to get into the merits of the case because we're asking for relief having to do with the extension. However, I think your counsel will agree and I think that the County's counsel will agree that every order that you have must be lawful. And there are some things in this order that given the opportunity if you do not grant the extension, I would like to have the opportunity to discuss with this Board. I don't know what happened or who testified or who said what at the original hearing, but if you read -- and I'm not asking you to do it today or ask anybody else to do it today -- but if you read that order carefully, and you read the code, as I have done, you will find they do not match up. That's a matter of due process, that's a matter of jurisdiction and, again, I don't want to get into those things but I would like to have the opportunity to get into those things if you decide that you can't grant something until the 2003 date at which time I believe that there's a real good chance that the problem is going to go away anyhow. If you can't grant it to that date, then I would ask you to grant relief until after the next meeting and then I would ask to be put on Page 70 June 27, 2002 the next meeting so that we can discuss and have your attorneys and your staff take a look at the order itself. CHAIRMAN LEHMAN: Mr. Pritt, if you indeed read the ordinances of the codes, you'll see that the abilities of this Board are relatively limited as well as the abilities of the Respondent to appeal certain cases and so on and so forth. So obviously we have to abide by whatever regulations we are governed by in that sense. The case has already been heard. You obviously are allowed to an appeal process according to the general procedures that fall in here. So I would just kind of reflect your comments back in those directions. And whatever processes are available to you at this time you're more than free to pursue and do however you like with the case. MR. PRITT: I understand that. And I think that's a good point, sir. The appeal process -- I understand the appeal process is covered under Chapter 162 and what you can do and what you can't do and what can be raised and what can't be raised. But at this time you are looking at an order -- you have an order and we are looking at an order and ask that something be amended on that order. And at the time that a fine starts to run, then that order needs to be reviewed so as to insure that the order is lawful in all respects. And I'm urging you, if you are not willing to grant a relief that we're asking for, which I think will probably effectively make this case go away. I'm asking alternatively that you consider allowing us to seek the amendment of the order at the next meeting. CHAIRMAN FLEGAL: Ms. Rawson, is the appeal process, do I remember it to be 30 days? MS. RAWSON: Correct. CHAIRMAN FLEGAL: After the order is issued? MS. RAWSON: Correct. Page 71 June 27, 2002 CHAIRMAN FLEGAL: The order was issued -- MS. RAWSON: About a year ago. CHAIRMAN FLEGAL: 14 months ago or something. MS. RAWSON: Correct. CHAIRMAN FLEGAL: Cool. I still make my motion we deny the request. CHAIRWOMAN DUSEK: I second. CHAIRMAN LEHMAN: We have a motion by Mr. Flegal, and a second by Ms. Dusek. All those in favor-- CHAIRWOMAN SAUNDERS: Wait a minute. Can we have some comments? CHAIRMAN LEHMAN: Oh, yes. CHAIRWOMAN SAUNDERS: Because I am opposed to the motion and for a couple of reasons. First, this is an established small business in Naples that has been working, has been here, has complied with the law, is a good business. I think the business owner has attempted to work with us. I do think there are mitigating circumstances in this. I don't think there's a major crime that has been committed by changing his sign slightly. Although, yes, it was changed and we did fine it in fault. Since the rest of the County must comply with a February, 2003 date, I don't see any reason why we can't grant an extension. I hear what you're saying, Cliff, about having a whip, however, having run a small business. I know how devastating it can be to a business to have a club hanging over you with fines that mount up, are enough to put you out of business that may or may not be removed in seven or eight months. That's a horrible thing to do to a small business owner to have that kind of a nightmare facing them when they're having other problems as well. And it doesn't seem to me in this case to be necessary. Page 72 June 27, 2002 CHAIRWOMAN DUSEK: Rhona, I can appreciate your comments and am empathetic to Mr. Marrone's business. My husband has a small business himself, so I can appreciate that. But all we're here to do is to follow the zoning code. And even though we have personal feelings about the people or the business, we have to just eliminate that and go by the code. And I think that's what we did when we issued the first order. CHAIRMAN FLEGAL: Yeah, we tried this case long ago, so we're not trying it again. We had a chance way back then to do it until February of 2003. For whatever reason we chose the time period that's in the order. It's over and done with, that's it. Now the gentleman wants an extension, and what I'm saying is no. CHAIRWOMAN SAUNDERS: And what I'm saying -- CHAIRMAN FLEGAL: That's my motion and it was seconded. CHAIRWOMAN SAUNDERS: Yes. And what I'm saying in arguing the opposed is, yes, we did try the case and that's fine, and I have no problem with enforcing that. However, he's asked for an extension just as somebody comes back and asks for a reduction of fines later. I believe there are reasons now to give the extension right now rather than harm a small business that doesn't need to be harmed. CHAIRMAN PONTE: I confer with Rhona, and for those of us who are on the Board when this case was heard, there was sort of an extension granted because we realize that there was confusion between Mr. Mazone and the County directives regarding the sign. So we granted him at his request a date that would take him beyond the tourist season, which is the reason we're here now. Now that we're going to face the fact that all such signs will be illegal in February, I agree with Rhona. All of the other points that she has mentioned, and I think we should grant the extension. CHAIRWOMAN SAUNDERS: Thank you. Page 73 June 27, 2002 CHAIRWOMAN DUSEK: I want you to keep in mind also that the other signs, if they were to change anything on that sign, would be in the same position as Mr. Marrone is today. Those people who will have to conform by February, 2003 have done nothing to their sign but have to by 2003. And we did give him an extension in time from the very first order. CHAIRMAN LEHMAN: Hearing no further discussion, we do have a motion that has been seconded and the denial of a request for an extension and compliance date. All those in favor, signify by saying aye. ALTERNATE LEFEBRE: Aye. CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN LEHMAN: All those opposed? CHAIRWOMAN SAUNDERS: No. CHAIRWOMAN GODFREY: No. CHAIRMAN PONTE: No. CHAIRMAN LEHMAN: hands for all favor. CHAIRMAN FLEGAL: Three opposed. Can I have a show in One, two, three, four. CHAIRMAN LEHMAN: Motion passes four to three. The request for motion is denied, sir. We also have one other thing that is on the table here. Ms. Rawson, do we have an official request for a rehearing to amend the motion? MS. RAWSON: No, not today. CHAIRMAN LEHMAN: Okay. So that process will take its normal course. And, Mr. Pritt, just follow the normal course if you wish pursuant to that. Page 74 June 27, 2002 MR. PRITT: My name is Pritt, P-R-I-T-T. CHAIRMAN LEHMAN: Sorry, sir. MS. RAWSON: If he files a motion and gets on the agenda, on the docket with Michelle, we'll hear that then. CHAIRMAN LEHMAN: Okay. MR. PRITT: Sir, that's what I was trying to ask for, if you turned us down on the request for the extension. I was making that motion orally. I would like to ask that the matter be reheard. CHAIRMAN LEHMAN: Sorry, you have to file it. We will file the paperwork to do so. MR. PRITT: CHAIRMAN MR. PRITT: LEHMAN: Thank you. CHAIRMAN LEHMAN: Okay. Thank you. Let's go on to the next order of new business which is Briarwood. MS. ARNOLD: This is a request of the Respondent, Mr. Charles Hitchcock, for a reduction of fines. Mr. Hitchcock. For the record, this is case number 2001-075. CHAIRMAN FLEGAL: Michelle, before he starts, can I ask the question as to -- tell us the, which I haven't found yet, tell us the status of this fine. He's asking for a reduction. What are the fines? When did we impose them? How much are they and all this kind of stuff. I don't see a copy of our order. MS. ARNOLD: The Board's order, it's -- CHAIRMAN FLEGAL: It's not in all this package that was left. MS. ARNOLD: Sorry. The Board's order was to correct the violation which involved some vegetation, planting of vegetation, and also a fence, the installation of a fence along the new Livingston Road. And you ordered the Respondent do so by September 7th. CHAIRMAN FLEGAL: Of last year? Page 75 June 27, 2002 MS. ARNOLD: Yes, of 2001, or fines of $50 per day would be imposed. And to date the case is now in compliance, the fence has been installed, the vegetation has been installed. And the total cost that has accrued since the time of compliance date is $11,032.20. MS. RAWSON: Is that fines or cost? MS. ARNOLD: That's the total fines with cost. CHAIRMAN FLEGAL: Can you separate them for us? MS. ARNOLD: Costs are $632.20, so the fines would be $10,400. CHAIRMAN PONTE: How long did that run? I remember there was a safety issue here regarding the safety netting or something, golf balls going astray. So how long was the time period -- how many days beyond the date did it take to come into compliance? MS. ARNOLD: I believe they installed the fence first and then the vegetation later. It took them -- I don't have the date where he installed the fence. CHAIRMAN PONTE: I'll make it easier. Take the $10,400 and divide it by the fine. How many days was that? MS. ARNOLD: The total days is 208 days. CHAIRMAN FLEGAL: He came into compliance by some date; what was that date? MS. ARNOLD: The Affidavit of Compliance was -- I think Mr. Hitchcock would know offhand because he called me on that specific date. I just can't remember exactly when that was. MR. HITCHCOCK: Yes, I do. Approximately six weeks before this Board met on August 23rd of 2001, the fence had been erected. The same fence, ladies and gentlemen, that exists today without modification. CHAIRMAN FLEGAL: Okay. Page 76 June 27,2002 MS. ARNOLD: The total compliance was after that date, though. CHAIRMAN FLEGAL' That's what I'm interested in. When did you comply with this Board's order? There was some date. MR. HITCHCOCK: There were two parts of the compliance, Mr. Chairman: The first part was the fence and the second part was the vegetation. The fence was immediately constructed as per code, as for STV. The landscaping was delayed considerably and only completed in April of this year. CHAIRMAN FLEGAL: Excuse me, just a second. Michelle, do you have a copy of Board's order? MS. ARNOLD: Yes. CHAIRMAN FLEGAL' Can you read it for us so we know what we're doing. The disadvantage is not having it in front of us. MS. ARNOLD: Okay. "The Respondent correct the violations of Section 3.3.11, Ordinance 91102 by installing the required safety netting along Livingston Road part of the property as required by STP 98-058 by August 30th, 2001." And then in paragraph two it indicates, "Install landscaping and irrigation along Livingston part of the property" -- it says part of the property--"as required by STP 05508 by September 7th, 2001." And it also says, "If the required safety netting is not installed by August 30th, then the driving range operation shall cease," and that operational cost would be assessed as well as a $50 per day fine starting September 7th, 2001 for the -- that was the compliance date. CHAIRMAN FLEGAL' So he had a fence by August 30th and he had landscaping by September 7th, both in the year '01. MS. ARNOLD: Yes. MR. HITCHCOCK: Excuse me. There was no fine for the fencing, sir. Page 77 June 27, 2002 CHAIRMAN FLEGAL: That's fine. I don't have a problem with that. I want the dates; that's what I'm interested in. What we're here for is because the fine is based on landscaping that was supposed to be in by September 7th and wasn't there. MR. HITCHCOCK: Correct. CHAIRMAN FLEGAL: And now you're asking us to waive that for some reason you haven't told us yet. MR. HITCHCOCK: Yes, sir. CHAIRMAN FLEGAL: I just want all these dates and numbers so when you say this is why, I know whether I should say I agree or I disagree. CHAIRWOMAN DUSEK: Michelle, I just want to ask you, I know when he came into compliance with landscaping. When was he supposed to come into compliance? MS. ARNOLD: September 7th, 2001. CHAIRMAN LEHMAN: Ms. Arnold, we have a package. MS. ARNOLD: That's his packet that he submitted. CHAIRMAN LEHMAN: My problem with this package is there is no way that we can review this in the time of the hearing here. MS. ARNOLD: You received this last month. CHAIRMAN LEHMAN: We received this last month? This is a copy of what it was. MS. ARNOLD: This item was on your agenda for last month. Mr. Hitchcock failed to be present at that meeting, and you did not hear that particular case because it was his request to have the fines reduced, not the staff's request. CHAIRMAN LEHMAN: Is this already admitted into evidence? MS. ARNOLD: No, it is not. Page 78 June 27, 2002 CHAIRMAN FLEGAL: I don't have a problem with him telling us why he wants us to reduce it. CHAIRWOMAN DUSEK: Well, I just have one more question of clarification. He came into compliance on September 7th for landscaping. MS. ARNOLD: He did not come into compliance in September. He didn't come into compliance until sometime this year for the landscaping. He was required to come into compliance by September 7th. CHAIRMAN LEHMAN: Mr. Hitchcock. MR. HITCHCOCK: Yes, sir. CHAIRMAN LEHMAN: You have the floor. MR. HITCHCOCK: Well, let me back up. There's some confusion about dates; let me correct that. And there's also, there was also a lengthy question as to the height of the netting which created this emergency meeting, so called, that you held last August 23rd. The site plan development called for netting extended along Livingston Road when Livingston Road was constructed. I'm having trouble here because I need to refute the code enforcer, Dave Repicki's (phonetic) commentary to you last August 23rd. I can't continue unless I can talk directly to him. I see that he's not here. CHAIRMAN FLEGAL: We're not going to retry the case; he just needs to tell us why he wants us to reduce the money. The case is done. Tell us why you don't want to pay the fine. CHAIRMAN LEHMAN: Mr. Hitchcock, this is not a rehearing, per se; just tell us why you would like us to reduce the fine. MR. HITCHCOCK: I had this very well rehearsed. I've been thrown a monkey wrench, and just bear with me if you would, please. CHAIRMAN LEHMAN: No problem. Page 79 June 27, 2002 MR. HITCHCOCK: The site development plan that was introduced last August 23rd at this meeting was a preliminary site development plan. An issue raised by the chairman as to why Code Enforcement didn't provide a final site development plan -- MS. ARNOLD: Mr. Chairman, I have to object because this is rehearing the case. We're not here to rehear the case; we're here to hear his request for reduction of fines. MR. HITCHCOCK: I was not here at the meeting of August 23rd. CHAIRMAN LEHMAN: Mr. Hitchcock, staff's request is so noted. Please just explain to us why you would like us to reduce the fine. Because that's all that we're here for now. We don't want to try to retry the case or hear the case at all. We're just looking at why would you like us to reduce the fine. MR. HITCHCOCK: I wish I could reduce it to the simplicity that your question indicates. It's complicated by the fact that because I wasn't here, I didn't know what had been decided, and I didn't know until I purchased this tape of that meeting of August 23rd. Evidence was introduced by Code Enforcement-- CHAIRMAN LEHMAN: Mr. Hitchcock, may I offer a suggestion? MR. HITCHCOCK: Yes. CHAIRMAN LEHMAN: Would you possibly like to withdraw your request today and have it placed on the agenda maybe next month so that it gives you sufficient time to prepare and provide to us specific reasons on why you would like the fine reduced? MR. HITCHCOCK: I don't think anything would be gained by delaying action. My problem is I came here prepared to refute testimony that you acted on in what was purported to be an emergency situation that didn't exist. Page 80 June 27, 2002 CHAIRMAN LEHMAN: Mr. Hitchcock-- MR. HITCHCOCK: The testimony offered by Code Enforcement was inaccurate. CHAIRMAN LEHMAN: Mr. Hitchcock, if you are looking to appeal the case on the basis of whatever grounds that you are looking at, there are very specific rules and regulations on how we can handle that. At this meeting today, we can only look at why we would reduce the fines that were applied. We cannot rehear the case, we cannot hear an appeal if that's what you're thinking of. We can't, in a sense, deal with the body of the case itself. MR. HITCHCOCK: I understand what you're saying. CHAIRMAN LEHMAN: And it seems to me as if that's what you would like to do. All that we can do today is hear your motion to reduce the fines. It's simply limited to that. CHAIRWOMAN DUSEK: Mr. Hitchcock, I have a simple question, I think. You were supposed to come into compliance with landscaping by September 7th. You did not come into compliance into this year. What happened? Why weren't you able to do that? Maybe that would help answer the question why you want to reduce the fines. Was there something that prevented you from coming into compliance last September? MR. HITCHCOCK: Yes. CHAIRWOMAN DUSEK: And maybe you could explain that. Maybe that's the reason why you want the reduction of the fines. MR. HITCHCOCK: Yes, at that time I was out of the country. When I returned approximately September 15th, I immediately contacted Code Enforcement, we had a number of meetings, and I protested very strongly over a several month period having to put in landscaping at all, at the back part of the range. And I argued very forcefully that it not be required that I put in the landscape. Page 81 June 27,2002 To make a very long story short, I lost. But I lost late in the year, December 2001. My lease agreement with the owner of the land requires that I vacate the premises within 90 days if the land is sold. One very good reason for me not having to put in permanent landscaping, my appeal was to Code Enforcement to defer the required landscaping until the land was ultimately sold and ultimately developed to its final use, the driving range being temporary. In addition, the landscaping that I installed around the parameter of the range cost approximately $23,000. In my lease agreement with the landowner, that money is refunded to me when the land is sold. There's no provision in the lease for the landscaping required by Code Enforcement along the back property line of Livingston Road. I attempted to contact the owner of the land and negotiate for his contribution to install the landscaping. His schedule is such that he was rarely in Naples and spends most of his time out of the country. I don't want to characterize him as evasive, but he only paid attention to the problem when Code Enforcement notified him of a violation. CHAIRWOMAN DUSEK: Were you able to work out something with him? MR. HITCHCOCK: Yes. CHAIRWOMAN DUSEK: Okay. Now, do you understand also that a lease agreement you and the landlord have has nothing to do with-- MR. HITCHCOCK: Totally irrelevant. I understand. CHAIRMAN FLEGAL: Mr. Hitchcock, based on what you just said, evidently, your lease agreement if you put in landscaping, he gives you your money back whenever he sells the property. MR. HITCHCOCK: Correct. CHAIRMAN FLEGAL: What wasn't in there is if you get any kind of fines, he doesn't give you any money back. So when the Page 82 June 27,2002 Board issued an order for you to put in landscaping, I understand you were out of the country. As soon as you got back, you decided that you wanted to fight it for whatever reason. I'm not here to argue it's good or bad, and then when you finally lost, it was late in the year and then you decided, well, okay I'll put in the landscaping. I guess my brain is saying when you got back and you got the order, if you are going to get your money back, why didn't you just put in the landscaping in knowing you would get your money back? MR. HITCHCOCK: No, there was no provision to get my money back from the landscaping along Livingston Road; it was for the other boundaries of the property when we originally built the driving range. CHAIRMAN FLEGAL: Okay. So what you said before didn't include Livingston Road. MR. HITCHCOCK: Correct. CHAIRMAN FLEGAL: So the $23,000 you said -- MR. HITCHCOCK: I will get it back when the land is sold. CHAIRMAN FLEGAL: Now you're confusing me. CHAIRMAN LEHMAN: So you have a subsequent agreement with the landowner? MR. HITCHCOCK: Yes. CHAIRWOMAN DUSEK: Now, your fine that has been opposed, what are you asking this Board to do? MR. HITCHCOCK: There's another mitigating circumstance that I have to bring forth. The construction of the fence and the height of the fence were linked directly to landscaping; they can't be separated. Code Enforcement contended that the 50-foot safety netting had to be constructed and supported that requirement by quoting the preliminary site plan development. Page 83 June 27,2002 The final site plan development changes the wording of the construction of that fence in its height substantially. It was agreed before I left town at a meeting in Commissioner Henning's office, with Michelle Arnold, with Nancy Semian, landscape architect, that the six-foot fence that I erected which complied with the wording of the final site development plan would be monitored for a period of time to assure that the netting was doing its safety job. And at the same time landscaping would be deferred until such time as a decision was made whether that fence was satisfactory or had to be torn down and a larger fence erected. That was the reason principally for the delay in the landscape. MS. ARNOLD: Can I interject? There is information in your packet that shows that there was some testing -- CHAIRMAN LEHMAN: Michelle, we don't have the package. There's been nothing entered in evidence. MS. ARNOLD: Yes, it was distributed to you. CHAIRMAN LEHMAN: Yes, I know but this has never been entered into evidence. MR. HITCHCOCK: Well, then it needs to be. CHAIRWOMAN DUSEK: Are you proposing -- CHAIRMAN LEHMAN: Are you making a motion? MR. HITCHCOCK: Yes, I am. CHAIRWOMAN DUSEK: I move that we accept the package for evidence. CHAIRMAN PONTE: I'll second the motion. CHAIRMAN LEHMAN: All those in favor signify by saying aye. ALTERNATE LEFEBRE: Aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. Page 84 June 27, 2002 CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. CHAIRMAN LEHMAN: Any opposed? Motion carries. Now please proceed. MS. ARNOLD: I'm not really sure what page it is, but it's toward the end of your packet and it's dated October 23rd, 2002. It's a letter to me from Mr. Hitchcock summarizing some testing that was conducted on the subject property to determine whether or not the height of the fence was appropriate, and that test occurred October 22nd, 2001. And subsequent to that testing there was a determination that the County would accept that fence that was installed. So between October and February there was still no vegetation that was planted. CHAIRWOMAN DUSEK: So by the end of October the County determined -- or middle of October or what? MS. ARNOLD: It was shortly thereafter and it's not in his packet. CHAIRWOMAN DUSEK: Mr. Hitchcock, do you remember being notified that they had made a determination that the net was sufficient, and therefore you were to go ahead with landscaping? MR. HITCHCOCK: Before I answer that question, ma'am, let me read from a letter to me from Mr. John Dunnuck dated October 12th, which is in your packet, second paragraph, last two sentences, "The requirement for a safety net or fence, a requirement on which the Transportation Department has insisted, must be met as well. However, the required height will be determined following an on-site analysis of the conditions by a qualified professional on or about Page 85 June 27, 2002 October 15th. You will be advised of the height requirements following the site visit." CHAIRMAN FLEGAL: Read the first sentence, too, please. MR. HITCHCOCK: First sentence of the letter? CHAIRMAN FLEGAL: Of that same paragraph. MR. HITCHCOCK: "The landscape requirements, hedge and tree, must be met as stipulated; an amendment of your SDP to eliminate these requirements would not be approved." I had applied for it. I'm being told it was not approved. I didn't give up; I kept fighting it. CHAIRMAN LEHMAN: So as of October 12th you were notified that nothing had changed with regards to your landscaping. MR. HITCHCOCK: I'm sorry? CHAIRMAN LEHMAN: As of October 12th of 2001, you were advised in writing that nothing had changed with regard to your landscaping requirements? MR. HITCHCOCK: That's correct, but bear in mind the fence still hadn't been approved. It was agreed that until that height determination was made that the landscaping would be allowed to be deferred because of damage that would be caused by erecting a new fence if that became necessary. CHAIRMAN FLEGAL: I see a minor problem, maybe it's because you weren't told, didn't understand, whatever. The Board issued an order back on such and such a date, said you have to do two things, get a fence up, put in landscaping. MR. HITCHCOCK: Correct. CHAIRMAN FLEGAL: Nobody, unless you go to court within a certain amount of time, changed that, not the County Manager, not Michelle, not the County Attorney; the order stands. We told you to Page 86 June 27, 2002 put the landscaping in, you chose not to do it. Now, why do you want us to reduce the fine? MR. HITCHCOCK: That's not correct, sir. CHAIRMAN FLEGAL: You didn't put the landscaping in. You're standing there telling us because you didn't have the fence because, you know, without the fence approval you couldn't put the landscaping in. MR. HITCHCOCK: I can understand why you're confused. CHAIRMAN FLEGAL: No, I'm not confused; we told you to do landscaping. MR. HITCHCOCK: Because I'm confused also. So please bear with me. The landscaping was not completed because it was agreed that the date of installation would be delayed until the height of the safety netting was finally determined. CHAIRMAN FLEGAL: Okay. Stop just a second. You need to understand that the only way you change this Board's order is by this Board, not anyone from the County. I don't care what Michelle said. I don't care what the County Manager said. I don't care what the County Attorney said; they can't say don't put the landscaping in. We told you to put it in, you didn't do it. Guilty, sorry. MR. HITCHCOCK: There were mitigating circumstances. CHAIRMAN FLEGAL: No. CHAIRMAN LEHMAN: Fortunately or unfortunately, you or Michelle -- we don't work for the County, in a sense. Now, Michelle, do you recall having a discussion on or about the 12th where you had verbally said something to them? MS. ARNOLD: No, I believe there was some correspondence, which as I indicated is not included in his packet. But a test was conducted of October 22nd, the test that was referred to in Mr. Dunnuck's letter and that was done October 22nd in a determination Page 87 June 27, 2002 that the fence height would be okay was made shortly thereafter, if not the day after. But it was on or around the 22nd of October, 2001. CHAIRMAN LEHMAN: What's your answer with regards to landscaping? MS. ARNOLD: The notes that were mentioned in Mr. Dunnuck's letter that he read on the record indicated that he would need to plant his landscaping. There was no modification or there would be any approval of any request for modifying those requirements. CHAIRMAN LEHMAN: As of the 22nd, 25th; somewhere around there. MS. ARNOLD: As of whenever the determination of the fence height would be, but Mr. Flegal is absolutely correct this Board directed him to do everything by September 7th. CHAIRMAN FLEGAL: We worked with you a long time Michelle and I'm going to ask you a specific question and I think I already know the answer: Did you tell Mr. Hitchcock that he did not have to comply with the Board's order? MS. ARNOLD: No, I did not. CHAIRMAN FLEGAL: Thank you. CHAIRWOMAN SAUNDERS: Am I understanding this correctly, though, that he was supposed to comply with the landscaping requirement by September 30th, it was? MS. ARNOLD: September 7th. CHAIRWOMAN SAUNDERS: However, there appears to have been some confusion until the fence height was determined. I can, in my mind, accept the fact that there might have been some confusion, even though the Board had ordered him to do that, and I can agree that perhaps the fine from September 7th until the Board actually said the fence height is determined makes sense. Page 88 June 27, 2002 CHAIRMAN FLEGAL: That's not the Board's order. The Board just said install a fence, period, by a certain date. CHAIRMAN LEHMAN: That's correct. The Board's order did not say -- CHAIRMAN FLEGAL: Say height, nothing; just said put the fence in. I don't care if it was a foot, 300 foot, 40 foot; have the fence in by a date. CHAIRWOMAN DUSEK: I think what Rhona is maybe trying to say -- wait a minute, Cliff-- I understand the Board gave the order, he was supposed to comply, he didn't comply. He has come to us today to ask for some relief on the fines, so I think with this October date we're trying to find a date in which we can work with to give him relief of fines. CHAIRWOMAN SAUNDERS: That's exactly what I'm trying to do. CHAIRWOMAN DUSEK: We understand what the Board's order was. We understand it can't be changed. Now he's coming to us and asking us for some relief. We're trying to find the date in which we can give that relief. So, Mr. Hitchcock, I'll ask you again. Your fines are $11,032.20. What would you like for us to do with those fines? MR. HITCHCOCK: Waive them. CHAIRWOMAN DUSEK: All of it? MR. HITCHCOCK: Yes, ma'am. CHAIRWOMAN DUSEK: And the reason is? Don't go into a lot of detail because we've heard everything that you've had to say, but it appears as though there was some -- you were away, that's part of the excuse. But you were back in time to do the compliance and there was a misunderstanding somewhere in October about the height of the fence. Page 89 June 27,2002 Now, I can't see any other reason except for that little bit of confusion in October that we should give you total relief to your fines unless you have something that you can quickly tell us. Because we have given you a lot of time on this which we don't ordinarily do and without going into an elaboration. I'm willing to give you some relief of the fine, but I'm not willing to waive the fine. CHAIRMAN FLEGAL: When did you install the fence? Let me ask that question. MR. HITCHCOCK: Approximately July 15th, 2001. CHAIRMAN FLEGAL: July 15th, 2001 and the order said the fence had to be in by August 30th, 2001. So the fence was in well before the order, so -- MR. HITCHCOCK: Correct. CHAIRMAN FLEGAL: what the fence is? CHAIRMAN LEHMAN: So why are we even worrying about The fence has nothing to do with it. CHAIRMAN FLEGAL: Well, she wants to give him relief because of the argument of the fence. The fence was in before the order's due date. CHAIRMAN LEHMAN: They're talking about the six-foot height of the fence. CHAIRMAN FLEGAL: Who cares the fence was in before the order. CHAIRWOMAN GODFREY: No, it was the wrong kind of fence, and we ordered him to put in a 50-foot fence as I recall; is that correct? CHAIRMAN LEHMAN: No, that was not correct. CHAIRWOMAN DUSEK: Well, the fence in part, you're right, Cliff, it appears as though there was some confusion after the fact and that's where I'm trying to be a little -- Page 90 June 27, 2002 CHAIRMAN LEHMAN: Let me try to clear this up for everybody. We have a compliance date for landscaping of September 7th, 2001. Mr. Hitchcock, for reasons he has stated did not install the landscaping as of that date. According to our order the fine immediately kicks in as of September 8th and starts accruing. According to the testimony we've heard, we have tests that are conducted on the 22nd of October and the fence that was installed was okayed at that time. No mention was made with regard to altering this Board's order with regard to the landscaping. So what Mr. Hitchcock is asking us to do is waive the fines in their entirety. I think what Ms. Dusek is saying that she has an inclination to waive a parcel amount but certainly not the entirety. Did I state the case in a nutshell? CHAIRMAN PONTE: Yes. MR. HITCHCOCK: Mr. Chairman, the reason I'm asking for waiver of the fine is that the testimony given on August 23rd to this Board -- CHAIRWOMAN DUSEK: Mr. Hitchcock. MS. RAWSON: This Board was not convened then. CHAIRWOMAN DUSEK: That would have to be done in an appeal. If you're refuting any of the testimony, that would have to have been done in the appeal. That's already behind us now. We continue to do anything about that. So if that's your -- MR. HITCHCOCK: We haven't reached the appeal stage. CHAIRMAN FLEGAL: You're well past it. CHAIRMAN LEHMAN: Actually, Mr. Hitchcock, you're well past it. MR. HITCHCOCK: How so? CHAIRMAN LEHMAN: If you read the ordinances, you'll find out there's a 30-day window. Page 91 June 27, 2002 MS. RAWSON: It's in the order. CHAIRMAN LEHMAN: It is in the order as well? There's a 30-day window in which you need to file that appeal. If that appeal is not filed, it is assumed that the Board or that the hearing stands as such. So we're not in a position to retry the case or rehear the case or appeal the case. All we're in a position here to do is to approve or disapprove your motion to reduce the fines in their entirety. MR. HITCHCOCK: I appreciate that. Your decision to fine me was based on fraudulent testimony. CHAIRWOMAN DUSEK: Now what you're saying would have to be -- MR. HITCHCOCK: It was based on fraudulent testimony. CHAIRWOMAN DUSEK: Okay. We heard you. MR. HITCHCOCK: I'm not allowed to appeal that, is that what you're saying? CHAIRWOMAN DUSEK: We heard you say that, but that is not why we're here today. MR. HITCHCOCK: I understand. CHAIRWOMAN DUSEK: If you want to say to me, "I was confused about the height of the fence after it was to be installed," I can accept that, but I can't accept anything else. So if you want to give us some sort of fine reduction, not the entire fine for that state of confusion in October, in which I'm giving you the benefit of the doubt, to say that from September 8th to October 25th within that -- that would be about 47 days; I personally would consider a waiver within that period of time, whatever that dollar amount comes out to be. And I don't know, Michelle, have you calculated a dollar amount per day for the fines? CHAIRMAN FLEGAL: It's $50 a day. Page 92 June 27, 2002 CHAIRMAN LEHMAN: Ms. Dusek, that's not necessary because, again, we don't want to try to lead the Respondent to a solution. CHAIRWOMAN DUSEK: I'm trying to help him. CHAIRMAN LEHMAN: Our job is to listen to his request and act upon his request, whatever that request may be. CHAIRWOMAN SAUNDERS: I have to say that I think we really have listened to all of the request and I think Peter, in particular, you gave him-- CHAIRMAN LEHMAN: Excuse me, can I interrupt you just one second? Mr. Hitchcock, do you have anything else you want to add? MR. HITCHCOCK: I would like to add a great deal. Unfortunately, you've convinced me that I can't do it in this forum. CHAIRMAN LEHMAN: It's not the time or the place, so to speak. MR. HITCHCOCK: I understand. CHAIRMAN LEHMAN: I would like to open this up -- MR. HITCHCOCK: What is my alternative, if I may ask? CHAIRMAN LEHMAN: Well, if you can check with staff they can recommend where to go from here, in a sense. What I would like to open this up for is the Board's discussion, so if you don't have anything else you would like to ad, if you would like to have a seat, we'll go forward. MR. HITCHCOCK: If the Board made a determination on information provided that, in fact, was illegal and-- CHAIRMAN LEHMAN: Mr. Hitchcock, let me stop you there. MR. HITCHCOCK: -- and you made that decision of imposing a fine based on false information-- Page 93 June 27, 2002 CHAIRMAN LEHMAN: I understand what you're saying, but let me stop you again. If you had an appeal to the case, based on whatever information you may consider wrong in the case, there is an appeal procedure to follow. You have gone past all that time, substantially past all that time. It's typically a 30-day window. We're now substantially past that 30 day window, so in essence, you have waived your right to appeal the case. And, again, that's not why we're here right now. We have to act on the motion that's in front of us on the agenda. It is not to revisit the case, it's not to appeal the case, it's not to do anything other than to respond to your case to waive the fines. And I don't mean to try to push you aside or run over you or anything, but there are certain procedures we have to follow, and by asking us to do what I think you're asking to do we violate those procedures and we can't do that. MR. HITCHCOCK: You're asking me to come up with reasons why landscaping fines should be either reduced or waived, and when I attempt to explain why you're not willing to take my testimony, you're leaving me very little choice. CHAIRMAN FLEGAL: Let me give you a simple sentence and listening to all of this, I'm not against you, I'm just trying to get to where this Board can legally do something. Okay? MR. HITCHCOCK: Yes. CHAIRMAN FLEGAL: I think your reasoning for reducing the fine really boils down to, look, I was out of the country, when I got back, I found all this stuff had taken place, I tried to get into it, I was a little confused about what had to be done, I went to the County, in all my meetings with the County I was maybe rightly, wrongly, misled. I eventually did that. I'm asking for your help to reduce the fine to something or waive it. That's pretty much the position you Page 94 June 27,2002 can have coming here. Anything beyond that we can't help you with. Okay? MR. HITCHCOCK: I appreciate that. CHAIRMAN FLEGAL: That's pretty much where you are; something that simple, unfortunately. MR. HITCHCOCK: Well, consider that I have made your statement, you said it very well. CHAIRMAN FLEGAL: I mean, I'm looking for a way to give you any help I can. MR. HITCHCOCK: I understand. CHAIRMAN FLEGAL: And I think that's pretty much your only position coming before us. MR. HITCHCOCK: I'll accept that. CHAIRWOMAN DUSEK: Now you need to give us a dollar amount of reduction. CHAIRMAN FLEGAL: You know the fine is $10,400, pick a number, all, some, something that we can think about. We may say yes, we may say no. We're only willing to go so far but help us out here. You pick a number, you tell us what you think. MR. HITCHCOCK: I don't mean to be facetious. CHAIRMAN FLEGAL: That's okay. MR. HITCHCOCK: The number is zero. CHAIRMAN FLEGAL: Okay. That's fine. If that's what you feel, that's fine. We just want you to tell us and then we'll work from there. CHAIRMAN LEHMAN: And, Mr. Hitchcock, believe it or not, we're really not trying to give you a hard time. MR. HITCHCOCK: I know you're not. CHAIRMAN LEHMAN: We're just trying to follow the proper protocol. Page 95 June 27, 2002 CHAIRMAN FLEGAL: We're just trying to work within the system. If that's it, sir, have a seat and we'll see what we can do. CHAIRMAN LEHMAN: I'll open the table for discussion. CHAIRMAN PONTE: IfI have it right, we would consider the fine period that being to September 7th to October 25th, let's say, because Michelle couldn't come up with an exact figure, the test was the 22nd. So, the communication of the test results was, let's say October 25. CHAIRMAN LEHMAN: So we're saying the fining period is September 27th to the 25th. CHAIRMAN PONTE: No, that should not be fined. CHAIRMAN LEHMAN: So that area should be waived, is that what you're saying? CHAIRMAN PONTE: Yes, and that fines should start or we should calculate the fines from October 25th. CHAIRMAN FLEGAL: So you want to throw out about how many days? CHAIRWOMAN DUSEK: 47 days. CHAIRMAN FLEGAL: The $50 a day. CHAIRWOMAN DUSEK: It's $2350. CHAIRMAN FLEGAL: That's what I got. CHAIRWOMAN SAUNDERS: I can concur with that. CHAIRMAN LEHMAN: Concur with that unless we have a motion. CHAIRWOMAN DUSEK: statement? CHAIRMAN LEHMAN: CHAIRMAN FLEGAL: motion? CHAIRWOMAN DUSEK: You can concur with that Is there any other discussion first? Bobby, do you want to make a I make a motion. Page 96 June 27, 2002 CHAIRMAN LEHMAN: I'll entertain it, please. CHAIRWOMAN DUSEK: That we reduce the fines by $2350 which would be from the time period of September 7th or actually the 8th through October 25th still including the operation cost of $632.20. So if I have calculated this right that comes out to $8682.20. MS. RAWSON: Can I have that again? CHAIRWOMAN DUSEK: $8682.20. CHAIRMAN FLEGAL: That would be the new fine amount. CHAIRMAN LEHMAN: Operational costs are still included? CHAIRWOMAN DUSEK: Yes. CHAIRMAN LEHMAN: We have a motion from Ms. Dusek. Do I have a second? CHAIRMAN PONTE: I second the motion. CHAIRMAN LEHMAN: Mr. Ponte has seconded the motion. Put it to a vote. All those in favor signify by saying aye. ALTERNATE LEFEBRE: Aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. CHAIRMAN LEHMAN: Any opposed? Hearing none opposed, motion carries. Mr. Hitchcock, do you understand what we have done for you, or tried to do? MR. HITCHCOCK: Yes, I do, and I appreciate that. Unfortunately, I have to do what I have to do. CHAIRMAN LEHMAN: We understand that. Page 97 June27,2002 CHAIRMAN FLEGAL: That's not a problem; that's your right. MR. HITCHCOCK: I'm going to go to the District Attorney today. CHAIRMAN LEHMAN: We understand. MR. HITCHCOCK: Thank you. CHAIRMAN LEHMAN: Have a good day, sir. other new business or old business we proceed to reports. County Attorney. CHAIRMAN PONTE: The reporters have left. CHAIRMAN FLEGAL: Michelle? MS. ARNOLD: Yes. CHAIRMAN LEHMAN: front of us -- next Hearing no I see no That's a continued item, isn't it, Then hearing no other business in CHAIRWOMAN DUSEK: I make a motion we adjourn. CHAIRMAN FLEGAL: Second. CHAIRMAN LEHMAN: All those in favor signify by saying ALTERNATE LEFEBRE: Aye. CHAIRWOMAN SAUNDERS: Aye. CHAIRWOMAN GODFREY: Aye. CHAIRMAN FLEGAL: Aye. CHAIRMAN LEHMAN: Aye. CHAIRWOMAN DUSEK: Aye. CHAIRMAN PONTE: Aye. CHAIRMAN LEHMAN: No opposed? Motion carries. The hearing date will be July 25th, 2002 at 9:00 in the morning. Thereupon, (The hearing was concluded at 12:20 p.m.) Page 98 June 27,2002 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:40 p.m. CODE ENFORCEMENT BOARD PETER LEHMANN, CHAIRMAN STATE OF FLORIDA ) COUNTY OF COLLIER ) I, Lori L. Hagedorn, Certified Court Reporter, do hereby certify that the foregoing proceedings were taken before me at the date and place as stated in the caption hereto on Page 1 hereof; that the foregoing computer-assisted transcription, consisting of pages numbered 2 though 166, inclusive, is a true record of my Stenograph notes taken at said proceedings. Dated this 26th day of July, 2002. Page 99