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CEB Minutes 08/22/2002 RAugust 22, 2002 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD PUBLIC HEARING Naples, Florida LET IT BE REMEMBERED, that the Code Enforcement Board, in and for the County of Collier, having conducted business herein, met on this date at 9:00 a.m., at County Commission Meeting Room, 3301 Tamiami Trail East, Naples, Florida, with the following members present: CHAIRMAN: PETER LEHMANN CLIFFORD FLEGAL ROBERTA DUSEK RHONA SAUNDERS GEORGE PONTE CHRISTOPHER RAMSEY GERALD LEF~_NRE KATHRYN M. GODFREY-LINT ALSO PRESENT: M. JEAN RAWSON, County Attorney MICHELLE ARNOLD, Code Enforcement Director PATTI PETRULLI, Code Enforcement Supervisor Page August 22, 2002 PROCEEDINGS CHAIRMAN LEHMANN: Your attention, please. I'd like to now to call the Code Enforcement Board of Collier County to order. Please note, any person who decides to appeal a decision of this Board will need a record of 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. If may have the roll call, please. MS. PETRULLI: Good morning, ladies and gentlemen. For the record, Patty Petrulli, Code Enforcement Supervisor. Rhona Saunders? MS. SAUNDERS: Present. MS. PETRULLI: Kathryn Godfrey? MS. GODFREY: Present. MS. PETRULLI: Clifford Flegal? MR. FLEGAL: Present. MS. PETRULLI: Peter Lehmann? CHAIRMAN LEHMANN: Present. MS. PETRULLI: Roberta Dusek? MS. DUSEK: Here. MS. PETRULLI: George Ponte? MR. PONTE: Here. MS. PETRULLI: Christopher Ramsey? MR. RAMSEY: Here. MS. PETRULLI: And Gerald Lef~vre? MR. LEFI~VRE: Present. CHAIRMAN LEHMANN: Thank you. If we could move on to approval the agenda. One second. Page 2 August 22, 2002 Just before we do that, as we.do have a quorum, we're duly called. And, also, we are one permanent member short on the Board today, so Mr. Ramsey will be voting today. Thank you. I now move on to the agenda. MS. ARNOLD: For the record, Michelle Arnold, Code Enforcement Director. I just wanted to note for the Board's information that we received a motion of objection to item number 5A-1 on your agenda. And you may at that time want to ask counsel if you have any questions as to what needs to take place at the moment. CHAIRMAN LEHMANN: Do we have an amended agenda? MS. ARNOLD: Yes. There was one, I believe, provided to all of you, continuing item 4A(1) to the September 26 meeting. CHAIRMAN LEHMANN: So you are withdrawing that from the public hearing section? MS. ARNOLD: Yes. CHAIRMAN LEHMANN: I would entertain a motion to approve the amended agenda. MS. DUSEK: So moved. MS. GODFREY: Second. CHAIRMAN LEHMANN: We have a motion from Ms. Dusek, a second from Ms. Godfrey. All those in favor, signify by saying Any opposed? Hearing none, the motion carries unanimously. If we may move on to approval of the minutes -- or excuse me. Are there any changes or additions or deletions to the minutes? MS. DUSEK: No, sir. I make a motion that we approve the minutes. MR. PONTE: I'll second that. Page August 22, 2002 CHAIRMAN LEHMANN: A motion from Ms. Dusek, a second from Mr. Ponte. All those in favor, signify by saying aye. Any opposed? Hearing none, motion carries. Thank you. I would now like to open our hearings for the public hearings. Let's proceed with the first case. MS. PETRULLI: Yes. Our first case is CEB case number 2002-020, Board of County Commissioners versus Ronald L. Gleichman. For the record, I'd like to ask if the respondent is present in the courtroom. Let the record show that the respondent is not present. We have provided the Board and the respondent with a packet that I would like at this time to enter as Exhibit A. The alleged violation is of section -- MS. DUSEK: I make a motion that we accept the Exhibit A from the County. MR. FLEGAL: Second. CHAIRMAN LEHMANN: A motion from Ms. Dusek, a second from Mr. Flegal. All those in favor, signify by saying aye. Any opposed? Motion carries. Please proceed. Thank you. MS. PETRULLI: The alleged violation is of Sections 2.7.6.1 and 2.7.6.5 of Ordinance Number 91-102 of the Collier County Land Development Code and Sections 104.1.5.1 of Ordinance Number 98- 76 of the Building Construction Administrative Code. The description of the violation is structure in the rear yard built without a permit and a washer and dryer improperly hooked up under that structure. The location where the violation exists is 541 99th Avenue North, more particularly described as folio number Page August 22, 2002 6283324004 Naples Park. The name and address of the owner or person in charge where the violation exists is Ronald R. Gleichman, 541 99th Avenue in Naples. The date the violation was first observed was January 25th of 2002. The notice of violation was given on February 21st of 2002. The date on which the violation was to have been corrected was March 3rd of 2002. The date of the last reinspection was June 24th, of 2002. And the results of the reinspection were the that the violations still remained. At this time, I'd like to mm the case over to the investigator handling it, Mr. Shawn Luedtke. MR. PONTE: Before we begin, is there any additional information that I should have, like photographic information, that was not -- I don't have it. MS. PETRULLI: Yes, Mr. Ponte. As a matter of fact, yesterday was the first time the investigator was able to actually get some photographs. We were trying to work with the neighbors to get some information, and Mr. Luedtke has that to present to the Board on the screen. MR. PONTE: Thank you. MS. ARNOLD: And once it's presented, we'll enter it into evidence. MR. LUEDTKE: For the record, Shawn Luedtke, Collier County Code Enforcement Investigator. This complaint came in on January 25th about a washer from-- It's a duplex location. One side is owned by one person and the other side is owned by a second. A neighbor called in on the adjoining side of the duplex about a person that installed a washer that was draining onto the ground, not properly hooked up. I went out, spoke with the tenant, and Mr. Gleichman's side of the duplex, who let me in the backyard,/AEUPBD I observed a Page s August 22, 2002 washer and dryer on site with a pipe that was laying just on the ground. It wasn't properly hooked up to drainage pipes. So I went ahead and sent a notice of violation for a compliance date of February 10th. On February 21st, I received another complaint from that neighbor that the washer was still running. No permits have been obtained for the proper hookup of the plumbing. I went back out on site. I wasn't able to see that the washer was running when I was out there. But at that time I did observe that there was a wooden structure, because I do have photographs that were taken from the neighbor's property. What you can see here is this from the neighbor's property, but you can see the roof here and the supports that they have. I got a little closer picture there I was able to get. CHAIRMAN LEHMANN: Mr. Luedtke, you're going to have to enlarge those monitors. They're not working here in front of us. MR. FLEGAL: We're not getting anything up here. CHAIRMAN LEHMANN: So you're going to have to at least enlarge those so we can see on the screen here. Thank you. MR. LEUDTKE: Right here is the fiberglass roof, and it has the 2 X 4 frame. That's the structure that I observed on the 21st. I went ahead and posted a copy of a notice of violation and sent it certified for a compliance date of March 3rd. On March 4th, I went back out onto the site and did see Mr. Gleichman. I met him out there. He requested a couple of weeks to obtain the proper permits for that structure and the plumbing permits to hook up that washer and dryer legally. I issued him a citation because of the time that had lapsed from the initial notice of violation and gave him 30 days to go ahead and take care of the permits required. I rechecked the site on April 4th, 18th and 29th. He was not there. I posted my card on each of those Page August 22, 2002 occasions to try to have him give me a call for an update on the situation. No contact whatsoever. On May 7th, I did get a second call from the neighbor that was it was still constantly running. I went back out and there and I did catch Mr. Gleichman on site. He admitted to me the problem still exists. He was working on it. He had no explanation other than he was attempting to get everything and he wanted more time. I issued a second citation for $255 for violation and gave an additional 30 days. I rechecked it on June 6th, and the violation remained. No permits had been obtained. So it was set for CEB. Yesterday, I revisited the site. He was not on site at all, but I went to the neighbor and got these photographs. I also got a photograph of the washer and dryer on site on that back lanai underneath the structure, and that was taken from the neighbor's property. The violation remained as of this morning as far as permits. CHAIRMAN LEHMANN' Do you have any indication why permits are not obtainable at this point in time? MR. LUEDTKE: He just does not seem to be taking the initiative whatsoever on his part. He has not come down to the office. No contact whatsoever. He keeps requesting extensions, but he's taking the initiative to do anything. CHAIRMAN LEHMANN' Is this a situation where permits can be obtained? MR. LUEDTKE: I think he can get a permit. I don't think that structure is permitable, but I think he can get a proper structure built on the back there and get proper plumbing permits for the washer and dryer to have it remain where it's at, yes. CHAIRMAN LEHMANN: So we have a situation where it can be permitable or a similar situation can be permitable, but the respondent just is not proceeding in that direction? Page August 22, 2002 MR. LUEDTKE: Yes, sir. CHAIRMAN LEHMANN: Thank you. MR. PONTE: The permit is needed for the area in which the washer and dryer are located. Is that the only area or is it the entire structure? MR. LUEDTKE: Well, the structure is going to need a building permit and, also, they're going to need permits for -- plumbing for the hookup of the washer so it drains properly and not just onto the ground. MR. PONTE: Okay. When I say structure, I mean the larger of the structure. I don't mean just the housing around the washer/dryer. We're talking about the house in which the tenant lives or the -- MR. LUEDTKE: Uh-huh. MR. PONTE: Is that what we're talking about when you say "structure?" , · MR. LUEDTKE: No. I was referring to the structure that's built over the washer and dryer, not the house itself. MS. GODFREY: What about the electrical? The dryers are 220 to run that. Is that safe? CHAIRMAN LEHMANN: In answer to that question, and I don't mean to step on your feet, but unless it's been inspected, we don't know. MS. GODFREY: Okay. CHAIRMAN LEHMANN: And Inspector Luedtke had advised us that he can't get on the property and take a look at it, and he's not an electrical inspector. MS. GODFREY: No. I was just wondering if the roof is leaking, that possibly what -- if he observed that, you know, with the 220, it's kind of dangerous. So that's -- CHAIRMAN LEHMANN: At this point in time that may be an issue -- Page August 22, 2002 MS. GODFREY' Okay. Sorry. CHAIRMAN LEHMANN: -- because we have no way of knowing whether it is or is not. MS. GODFREY: Okay. MR. LUEDTKE: The concern we have is the safety issue with this structure (indicating). It's lien 2 type structure. MS. GODFREY: Okay. MR. LUEDTKE: It's just a fiberglass-type roof with 2 X 4 supports. It's definitely some type of safety hazard. MS. GODFREY: Okay. CHAIRMAN LEHMANN: Any other questions for the County? . Yes. MR. PONTE: For whatever reason, I'm having a difficult time interpreting these photographs.. Is that a curtain divider? MR. LUEDTKE: Yes, sir. MR. PONTE: So it's just a fabric curtain that is -- MR. LUEDTKE: On that particular site, it's a fabric curtain here (indicating). MR. PONTE: Uh-hm. MR. LUEDTKE: But they have -- If we could get a little bit closer picture there (indicating). MR. PONTE: Oh, I see. And the washer and dryer is inside, . MR. LUEDTKE: Yes, sir. MR. PONTE: Okay. Thank you. MR. FLEGAL: Investigator, you stated you issued a citation for $255? MR. LUEDTKE: Yes, sir. MR. FLEGAL: Okay. I'm a little confused. If I understand the notice of violation, you have the right to do that. Why are we here? Are we going to try to penalize him twice? Page August 22, 2002 MR. LUEDTKE: No, sir. He has not paid the citations in any form. He's not showed up to court. It's still in violation, the site. We're just trying another avenue. MR. FLEGAL: Okay. CHAIRMAN LEHMANN: Any other questions? Hearing none,Investigator, thank you. And we'll close the evidentiary portion of this hearing and proceed with arguments. MS. ARNOLD: If you all want to enter the photographs into evidence as Composite Exhibit B. CHAIRMAN LEHMANN' Yes, I'd like to do so, and I'd entertain a motion to do that. MS. SAUNDERS: So moved. CHAIRMAN LEHMANN' I do hear a motion from Ms. Saunders. Do I hear a second? MR. PONTE: Second. CHAIRMAN LEHMANN' A second from Mr. Ponte. All those in favor, signify by saying aye. Any opposed? The motion carries unanimously. Please mark that as County Composite Exhibit A. And we'll proceed to arguments and discussion. MS. DUSEK: I'm ready to make a motion if that's in order now. CHAIRMAN LEHMANN: Please proceed. MS. DUSEK: I make a motion that in the case of the Board of Commissioners versus Ronald Gleichman in the case CEB 2002-020, that there is a violation; that the violations of Sections 2.7.6.1 and 2.7.6.5 of Ordinance 91-102, the Collier County Land Development Code, and Sections 104.1.5.1 of Ordinance 98-76 Building Construction Administrative Code. Description of the violation: Structure in rear yard built without permit, washer and dryer improperly hooked up under structure. Page ~0 August 22, 2002 CHAIRMAN LEHMANN: We have a motion. Do I hear a second? MS. DUSEK: So seconded. CHAIRMAN LEHMANN: Ms. Saunders has seconded the motion. All those in favor, signify by saying aye. Any opposed? Hearing none, the motion carries unanimously. We'll proceed to the order of the Board. MR. PONTE: I'd make a motion that we follow the staff recommendation. MS. DUSEK: I'd second that. CHAIRMAN LEHMANN: We have a motion from Mr. Ponte, a second from Ms. Dusek. Mr. Flegal, did you have comments? MR. FLEGAL: I just want to make sure we're not doing double duty. I get gun-shy. MS. RAWSON: MR. FLEGAL: I don't know that the double jeopardy applies. Well, the notice of violation that the county issues gives three possible penalties. One is coming here. One is a notice to appear in court. And one is issuance of a citation. And they're "ors." They're not "and/or." MS. RAWSON: Right. MR. FLEGAL: So they've issued a citation. I mean, the man didn't pay it nor go to court. I don't know what that means. Now they're coming here and we're going to do something. Is that a problem? MS. RAWSON: Well, I don't know what happened in the court proceedings. I mean, I think they can do one or the other. And I suspect if you have a findings of fact and an order entered, you know, then the court action is going to get dismissed. Page August 22, 2002 MS. ARNOLD: And we have the ability, depending on what happens here today, to withdraw the citations that have been issued. MR. FLEGAL: Okay. I just want to make sure we're not -- Since it says "or," I always get worried when you say "or," because that means you can only do one or the other, and right now you've got the citation. The fact that he didn't go to court is his problem. What did the court do? Because we're getting ready to do something which would be simultaneously with this thing hanging out there which, really, I think you have two things going at the same time; that you're going to withdraw after the fact could be a could be a problem. I don't know. I just don't want us to be a problem. MS. RAWSON: It's not a problem unless both of them are enforced. MR. FLEGAL: Okay. But we don't know what the Court said, if anything. MS. RAWSON: No, I don't know. MS. ARNOLD: The way the citation process works is if we issue a citation, similar to a traffic ticket, they have the ability to appeal it -- I mean, contest it, and a court date is set. It was never contested. If it's not paid up after 30 days, we have the ability to file a judgment. I'm not sure of whether or not we've done that step yet. But in any event, we also have the ability to withdraw any of those actions. And what I'm saying is that if the Board finds -- well, you have found in violation depending on what you all do today with respect to trying to get compliance because that's what we're trying to do and that's why we're here today, to see maybe if this action will encourage him to comply with the ordinance, we can withdraw that other action, that other citation. MR. FLEGAL: Okay. CHAIRMAN LEHMANN: Any further discussion? Page August 22, 2002 Hearing none, we have a motion on the floor to approve staffs recommendation for the order of the Board. All those in favor, signify by saying aye. Any opposed? Hearing none,the motion carries unanimously. MR. FLEGAL: I would like the County -- Since we've issued an order to withdraw their citation, could you do that on the record, please? MS. ARNOLD: We'll be filing the -- I can't recall the dismissal of that citation. MR. FLEGAL: Thank you. CHAIRMAN LEHMANN: All right. If we can proceed to new business then, please. MS. ARNOLD: Okay. The first item is a request for imposition of fine on case number 2001-013, which is the Board of County Commissioners versus Phillip and Anna Maria Marrone. The case was heard by the Board on April 26, 2001. And at that time the Board found a violation to exist and ordered the respondent to remove the sign and replace with a sign that meets the current code by June 30th, 2002. The respondent was also ordered to pay all operation costs incurred for compliance of that case, and the respondent was instructed that if they did not comply with the Board's request by removal or replacement of the sign by June 30th, a fine of $75 per day would be imposed. The respondent came into compliance on July 9th, and we are at this time requesting that the Board impose fines in the amount of $600 for the period of time from July 1st through July 9th at a rate of $75 per day, plus an additional $1,031.20 for operational costs for a total of $1,631.20. Page August 22, 2002 CHAIRMAN LEHMANN: Ms. Arnold, the Board has received a letter from Robert D. Pritt, apparently attorney for respondent. And they are requesting -- They have an objection to imposition of fine or lien and the request to strike notice of administrative hearing, imposition of fine. We would like to proceed with that document first, if we could. Ms. Rawson, would you advise the Board on the background of this particular document and how it applies? MS. RAWSON: Well, apparently, it's a request for you not to go forward with your hearing today. I can give you citations of the applicable statutes and of your rules. As you know, 162-09 allows you to enforce your orders by issuing fines. And all it says is that an Enforcement Board upon notification by the code inspector, that an order of the Enforcement Board has not been complied with by the time set, or upon finding that a repeat violation has been committed, may order the violator to pay a fine in an amount specified in this section for each day the violation continues past the date set by the Enforcement Board for compliance. That's all it says. Your rules and regulations adopted by this Board and approved by the County Commission basically say after an order has been issued by the Board and a date of compliance has been set, the Code Enforcement Board's investigator should make a reinspection to determine compliance, files the affidavit of noncompliance. And then when that happens, the Board shall meet to determine the amount of fine to be imposed. The respondent shall receive a notice of the Board meeting. So they did receive a notice of the Board meeting. The Board's determination to impose a fine, an operational or prosecution cost shall be reduced to writing. And a copy of the order imposing administrative fines shall be mailed to the violator by certified mail. That's it. Page August 22, 2002 MR. FLEGAL: MS. RAWSON: MR. FLEGAL: understand it -- Ms. Rawson? Yes. This is not a, quote, administrative hearing as I MR. RAWSON' It's not an evidentiary hearing. MR. FLEGAL: It's a procedure. MS. RAWSON: It is a procedure. MR. FLEGAL: Okay. So it's not a hearing per se. MS. RAWSON: It is not an evidentiary hearing. What we've always done, even though the law doesn't require it, is give notice to the respondents since they are likely to, you know, be fined. And if they're here,many times you have allowed them to testify, although you don't have to. This is not an evidentiary hearing. It basically ends. In 162-09, the Florida statutes just allows you to impose the fine. MR. FLEGAL: Okay. I think maybe based on what I'm reading from Mr. Pritt, he probably -- he seems to be, from a layman's point of view, stuck on the word "hearing." That may be as a result of the letters that are sent out. I'll get to that when we probably recommend we change those a little bit. But is it proper now for us to -- we have to make a motion to, I guess, reject his objection or accept it? Is that what he we need to do? MS. RAWSON: Well, if you -- I don't know if you need to make a ruling on his objection or not. You can, basically, decide whether to go forward with your hearing. So I guess you're making a ruling on his objection. MR. FLEGAL: Okay. We don't need to -- MS. RAWSON: It's not a hearing. You just need to make a decision as to whether or not you're going to go forward with the imposition of fine. Page August 22, 2002 MR. FLEGAL: Right. Okay. But we don't have to do anything about his submission formally. MR. PONTE: Do we have to read it into the record sort of thing? MS. RAWSON: MR. FLEGAL: Noted-- well, it's part of the -- It's part of the record. MS. RAWSON: It's part of the record. I believe that staff has passed it out, and, you know, we can enter it into the record. We certainly want to enter it into the record, but I don't know that it requires a vote. MR. FLEGAL: Okay. MR. PONTE: And that was my real question. Is this an official mOtion by a respondent for a request where we have to vote on or is this just a -- MS. RAWSON: It's not a motion to continue the procedure. It's just an objection to your making the procedure. MS. DUSEK: It does say request to strike. Does that mean we need to vote on that? MS. RAWSON: Well, why don't you vote on it. MR. FLEGAL: I would make a motion that we reject the objection submitted on behalf of the Marrones by Mr. Pritt. MS. DUSEK: I second. CHAIRMAN LEHMANN: We have a motion and a second. Before we vote on that, I would like to formally request that this be entered into the package as evidence or a document, whatever we need to do. Anyway, we have a motion and a second that we reject this particular document. All those in favor, signify by saying aye. Any opposed? Hearing none,the motion carries. MR. FLEGAL: I would now make a motion that we impose the fine as requested. Page August 22, 2002 MS. DUSEK: I second. CHAIRMAN LEHMANN: We have a motion by Mr. Flegal, a second by Ms. Dusek that the fine be imposed as requested by staff. All those in favor, signify by saying by saying aye. Any opposed? MS. SAUNDERS: Opposed. CHAIRMAN LEHMANN: Ms. Saunders has voiced the only opposition to that. The motion carries by a majority vote. If we could proceed to the next/(- thing. MS. ARNOLD: Okay. The next item is a request for imposition of fines on case number 2001-045, Board of County Commissioners versus Patrick and Erin Rose, regarding violations to 91-102, the removal of vegetation from approved quarter acre -- approximately a quarter acre of unimproved agricultural property without first obtaining required Collier County permits. On December 17th, 2001, the Board heard the case and found there to be a violation. At that time the Board ordered the respondent to correct the violations by obtaining an after-the-fact agricultural clearing permit or by obtaining an approved mitigation plan for the revegetation of the cleared property within 120 days by June 17th. And if the respondent did not comply with that request, fines of $50 per day would be imposed. The respondent was also ordered to pay all operational costs incurred for the prosecution of that case. I just wanted to note that we also have a request from the Roses, and I believe they are present. No.9 SPEAKER: No. I'm their attorney and I'm present on their behalf since they can't be here. MS. ARNOLD: Okay. For a reduction/abatement of fines. So until we impose the fines, then a request can be heard. At this time, staff would request that the Board impose the fines in the amount of $2,250 for the period of June 18th through August Page z7 August 22, 2002 2nd. They also have operational costs in the amount of $1,503.75 for a total fine of $3,753.75. I just wanted to note that they are in compliance at this time. MR. FLEGAL: I would make a motion that we impose the fines as requested. MR. PONTE: I'll second. CHAIRMAN LEHMANN: I have a motion by Mr. Flegal, a second by Mr. Ponte. All those in favor, signify by saying aye. Any opposed? Hearing none, the motion carries unanimously. SPEAKER: Excuse me. Is there no chance for the representative to speak.9 MR. FLEGAL: Not at this time. SPEAKER: But you've already got the motion. CHAIRMAN LEHMANN: That's correct. SPEAKER: What good is my speaking if you already had your motion? CHAIRMAN LEHMANN: Administratively, we cannot reduce fines until they're physically imposed. MR. FLEGAL: They're imposed. You'll get your chance -- CHAIRMAN LEHMANN: So we have opposed -- MR. FLEGAL: -- under old business. CHAIRMAN LEHMANN: Excuse me. MS. ARNOLD: Yeah. There is an item on the agenda, sir, after this process. I'm over here. SPEAKER: Okay. MS. ARNOLD: There is an item on the agenda for that request to be heard. SPEAKER: Later on this morning? MS. ARNOLD: Yes. CHAIRMAN LEHMANN: Yes, sir. Page August 22, 2002 SPEAKER: Okay. CHAIRMAN LEHMANN: We're just trying to follow proper procedure for this particular Board, sir. All right. If we might move on to the next item, please. MS. ARNOLD: Okay. The next item is request for imposition of fines for case number 2002-008, the Board of County Commissioners versus Jack and Elma Mae Barrs. This was a violation for the warehousing and outdoor storage of 80 to 100 motor vehicles, parts and other items on the subject property located at 2990 Sunset Boulevard. The Board heard the case on April 25th, and at that time they found a violation to exist. The Board requested that respondent come in compliance within 60 days. And if they did not come in compliance, that a fine of $75 per day would exist. Can you excuse me for a minute? I wanted to note also, and it's not in the executive summary, I don't believe, a request to continue this particular case. A compliance date was heard by the Board at the prior hearing, and that request was denied. The respondent was also ordered to pay operational costs. At this time staff is requesting the Board impose fines in the amount of $3,750 from the period of June 25th, 2002 through August 15th, 2002 at a rate of $75 per day, plus operational costs of $951.66 for a total fine amount of $4,701.66. MR. FLEGAL: I would make a motion we impose the fines as requested. MS. DUSEK: Second. CHAIRMAN LEHMANN: We have a motion from Mr. Flegal, a second by Ms. Dusek. All those in favor, signify by saying aye. Any opposed? Hearing none, the motion carries. Page August 22, 2002 The next item, please. MS. ARNOLD: Okay. The next item is Code Enforcement Board Case 2001-010, Board of County Commissioners versus Moises Castillo. And this case was a conversion of a garage into a living area without first obtaining a building permit. On May 23rd, 2002, the Board heard this case and found there to be a violation and ordered the respondent to obtain all the required building permits, inspections and certificates of occupancies for the improvement within 60 days; and if not, a fine of $25 per day would be incurred each day the violation continued. The respondent was also advised that they would have to pay operational costs for the prosecution of the case. The respondent came into compliance by July 18th, prior to the Board's request, and staff is at this time requesting operational costs in the amount of $1,370.15 be imposed. CHAIRMAN LEHMANN' Who would enter a motion? MR. FLEGAL: I would make a motion we impose the fines as requested. MR. DUSEK: Second. CHAIRMAN LEHMANN: We have a motion by Mr. Flegal, a second by Ms. Dusek. All -- MS. SAUNDERS: A comment please? CHAIRMAN LEHMANN: I'm sorry? MS. SAUNDERS: May I? CHAIRMAN LEHMANN: Yes, please. MS. SAUNDERS: If I'm reading this right, our order of the Board says that if the respondent does not comply within 60 days by July 22nd, then he is also to pay all operational costs. Since he came into compliance prior to July 22nd, it sounds to me like our order says he's not to pay. MS. ARNOLD: You're right. Page 20 August 22, 2002 MS. DUSEK: I would agree with that if the statement is correct. MS. ARNOLD: That's right. MS. SAUNDERS: It may not have been what we intended, but that's what we said; right. MS. ARNOLD: I think that was -- I think that -- If I recall correctly, I think that was a motion that you made. MS. RAWSON' I think it was what you intended. MS. ARNOLD: Yes. MS. SAUNDERS' Yes. MS. ARNOLD: It what you intended. If they did it, then there wouldn't be any further-- MS. SAUNDERS: Okay. CHAIRMAN LEHMANN: Ms. Saunders, thank you very much for the correction. MS. DUSEK: Yes, thank you. MR. FLEGAL: Really. I will withdraw my motion then. CHAIRMAN LEHMANN: We have a motion withdrawn. Do I hear a motion -- MS. ARNOLD: And we'll withdraw the item. CHAIRMAN LEHMANN: We withdraw the item. Thank you. MS. ARNOLD: Okay. CHAIRMAN LEHMANN: If we can proceed to the next item . ' of bus~ness,respondent s request for rehearing. MS. ARNOLD: Okay. This item is Board of County Commissioners versus David and Zenaida Falato. And that's case number 2002-012. The case was heard by the Board -- The case was heard by the Board on June 27th, and the violation was found, and the respondents were requested to come into compliance within 30 days'An appeal was registered with our office within the time period- - or a request for a rehearing was registered with our office within the Page August 22, 2002 time period specified by the rules and regs. And at this time we're placing this item on the agenda for your consideration. CHAIRMAN LEHMANN: Okay. Mr. Flegal, do you have a comment? MR. FLEGAL: I need to ask Ms. Rawson a question. MS. RAWSON' Yes. MR. FLEGAL: Request for rehearing based on two things? MS. RAWSON: That's correct. His request for rehearing is timely. He also followed our form, which is Exhibit A, attached to our rules and regulations, which was also correct. And, basically, our rules and regulations say that -- CHAIRMAN LEHMANN: The two items on-- MS. ARNOLD: Right. CHAIRMAN LEHMANN: -- our decision -- in our decision would be contrary to evidence -- MS. RAWSON: Right. CHAIRMAN LEHMANN: -- or we had an error on which rule of law would apply. MS. RAWSON: It's on page 7 of your rules. A party may request a rehearing of the Board's order based only on the ground that the decision was contrary to the evidences, that's one; whether the hearing involved an error on a ruling of law which was fundamental to the decision of the Board, that's two. And that's the form he filled out basically. And he's attached a legal brief to that too. So he's followed the correct procedure. So you have to make your decision based on one of those two. MR. FLEGAL: Okay. And I guess my question to you is since a lot of this is legalese, what I'm glancing at is constitutional law, the Fourteenth Amendment, so on and so forth, which is -- I don't know the right terminology but normally something that we don't get into that deeply here or we ask your advice on things and you tell us if Page 22 August 22, 2002 we're going astray. So my question to you now is: Based on what he's submitted, did we err on the side of the law, which is one other thing? MS. RAWSON: Well, the law that he cites -- Well, he cites three things. He talks about the constitutional law, the Fourth Amendment, Fourteenth Amendment and specific equal protection and due process. You obviously don't have the authority to rule on constitutional questions of law. Then he talks about Chapter 162 which, of course, is right in your province. MR. FLEGAL: Uh-hm. MS. RAWSON: So you need to determine, basically, based upon Chapter 162: Was there a violation? And if there was a violation, did you have a right to tell him to comply with 1627 So you need to determine whether or not your decision was contrary to the evidence or that it involved an error on a ruling of law based on 162, which is your province. Was there a violation of the code enforcement? CHAIRMAN LEHMANN: Is the respondent here today? Thank you. I would like to proceed with this particular issue in this manner. The Board will hear your request for a rehearing. The rehearing needs to be based on evidence or testimony presented to us in two very specific areas and limited only to those two very specific areas. We're not here to rehear the case. We're here to hear those two items specifically; how our decision was contrary to the evidence and what error on a ruling of law we may have committed. So if you can limit your discussions to those two areas, we will proceed with it. It is not the Code Enforcement Board's jurisdiction to render decisions based on constitutional amendments, as Ms. Rawson has advised us already. We also really don't have jurisdiction on other issues that you may or may not want to raise within the case. Today, Page 23 August 22, 2002 this particular aspect of his case will be heard to see if we will grant a rehearing. The end result out of today's discussion will be whether or not a rehearing is granted for a future date. Does that make sense? And that's typically following proper procedure on what we're doing. So we're not going to rehear the case. We're going to determine whether or not we will rehear the case at a future date. MS. RAWSON: And if I might on behalf of the Board and the respondent read into the record why he is asking for a rehearing based on those two reasons. The first thing says in his request is that the decision is contrary to the evidence because respondents were unable to attend due to emergency medical appointments, and the Code Enforcement was notified in person via fax and via certified mail. Then he says the hearing involved an error on a ruling on law which was fundamental, which error on which ruling of law and why was it fundamental, he writes, "Fourth Amendment, Fourteenth Amendment, Chapter 162 statutes. The Board needs to see the laws that Code Enforcement have violated against U.S. and discrimination." I'm only going to caution you that you need to focus on Chapter 162 rather than go off onto some constitutional discussion for which you really don't have the authority. CHAIRMAN LEHMANN: Okay. And again, Ms. Rawson, just for procedural sake, is the County permitted to begin discussions or the respondent begin discussions in the presentation of their request? MS. RAWSON: Yes, but you properly described the procedure. You need to make a determination today whether or not you're going to grant his request for arehearing. If you grant it, then we'll set it for another day. If you deny it, then it's over. CHAIRMAN LEHMANN: Okay. But in doing so, do we not hear a discussion or testimony from the respondents to their request? MS. RAWSON: Yes, we do. Page 24 August 22, 2002 MS. ARNOLD: Yes. CHAIRMAN LEHMANN: Okay. Do we need to vote to assume that action or can we proceed? MS. RAWSON: I don't think you need to vote to assume it, because it's on our agenda. CHAIRMAN LEHMANN: Okay. MS. RAWSON: It's his request and, you know, we can have a hearing. CHAIRMAN LEHMANN: Okay. Thank you. Then we're going to proceed. Do the witnesses need to be sworn in? MS. RAWSON: Sure. CHAIRMAN LEHMANN: Mr. and Mrs. Falato, if you'd please approach the podium, I will proceed with your request. And I'd like to ask you be sworn in. Raise your right hand and state your name and please spell it for us again or correct the spelling if it is not correct, in fact. (The respondents were duly sworn.) CHAIRMAN LEHMANN: And again, I just remind you that we're trying to limit our discussion today on those two issues that we had discussed earlier. MRS. FALATO: The reason that, like, we're asking for a rehearing is because from the very beginning when this case opened up in February, our number one intention was to come in front of the Board. We feel that there is continuous discrimination happening and everything through Code Enforcement and -- MR. FALATO: With us. MRS. FALATO: -- and also a violation of our rights. From May -- I mean from February to May, I constantly called the inspector and asked him to notify us when the hearing date would Page August 22, 2002 be -- would happen. Throughout the month of February through May, no one ever called me. MR. FALATO: No one contacted us. MRS. FALATO: On May 15th, I once again called Code Enforcement and asked them when the hearing would be held. On that day, we finally got a call from the inspector saying that the hearing would be heard May 23rd, and our defense packet had to be in by May 10th. It was already passed. So I went into Code Enforcement and asked them to grant us a continuance because I did not have enough time to get my defense packet ready. They said they would give us a continuance. Then we were set to go for a hearing June 27th. On June 25th, my husband had a medical emergency. I went into Code Enforcement and told them, "I'm sorry. We're not able to attend the hearing because of this medical emergency. Could you please give us a continuance till the next month?" And they said no. That afternoon, my husband faxed over the medical information, and I believe you have all that information. And we asked them on that fax to please call us if there was any problem. Nobody ever called us. MR. FALATO: Nobody called. MRS. FALATO: On July 3rd, we found out that the hearing was held without us. MR. FALATO: Right. MRS. FALATO: And I was out in California for the whole-- the majority part of July. And so -- MR. FALATO: Most of the time that she was in California, I was pretty much bed bound. I've got a history of back problems, okay. I've got a ruptured disc in my back now. It happened before she went to California. I was laid up, okay. So we didn't find out until after -- What was it? The 3rd? Page August 22, 2002 MRS. FALATO: It was July 3rd that we found out. MR. FALATO: On the 3rd that they held the hearing and we requested that we be heard. So hey held the hearing. They imposed some-- I guess they're imposing some sanctions on the property. August And, you know, we started -- When did we start repairs? 3rd? MRS. FALATO: August the 3rd. MR. FALATO: I started on the house August 3rd. I can only work a couple of hours at a time during the day, okay. I can't do this continuously. The work was in progress. We never had any intentions not to comply, okay. MRS. FALATO: Our intention was to come in front of the Board and state the discrimination that we feel has been going for years. MR. FALATO: Seven years. MRS. FALATO: We came in front of this Board back in 1998, and we felt at that time that we were discriminated, and we presented how many cases were open on our property. CHAIRMAN LEHMANN: Mrs. Falato, again, two issues. First, would you speak up, please. And, secondly, again, those are issues that we can't hear or render a decision. Those are issues that you have to take up in another venue simply because it's not within our jurisdiction to address those issue. MRS. FALATO: Okay. CHAIRMAN LEHMANN: Please proceed. ! apologize for interrupting you -- MRS. FALATO: That's all right. CHAIRMAN LEHMANN: -- but I just wanted to clarify how we're headed here. Page 27 August 22, 2002 MRS. FALATO: Okay. That's the reason we want a rehearing is we want our case to be reheard. The other thing is that according to-- CHAIRMAN LEHMANN: Let me back up just one second please -- MRS. FALATO: Sure. CHAIRMAN LEHMANN: -- to just take one of these issues one at a time in a sense. MRS. FALATO: Sure. CHAIRMAN LEHMANN: The first issue that you're saying we should grant a rehearing on is based on contrary to evidence. What testimony are you willing to give us now that would support that argument? MRS. FALATO: As contrary to the evidence? CHAIRMAN LEHMANN: Correct. MRS. FALATO: We feel that the inspector trespassed onto the property and took pictures that were not legal. And so we feel that presenting those pictures to you, the case should be dismissed because they were not -- they did not get our consent -- MR. FALATO: They didn't follow proper procedure. MRS. FALATO: -- to come onto our property. They did not get a warrant to come onto the property. So we feel that -- CHAIRMAN LEHMANN: Uh-hm. So you're alleging that they violated trespass -- MRS. FALATO: Yes. CHAIRMAN LEHMANN: MRS. FALATO: Yes. CHAIRMAN LEHMANN: Ms. Rawson? MS. RAWSON: Yes. -- in obtaining the photographs? Okay. Page 28 August 22, 2002 CHAIRMAN LEHMANN: Do we have any type of guidelines in which to follow to assess that particular assertion? MS. RAWSON: I don't think so. There's nothing in the statute or the rules that would help you with that. CHAIRMAN LEHMANN: A photograph is a photograph as far as this Board is concerned regardless of how it was obtained; correct. And if it was obtained under different means than what are alleged legal, then that would be taken up in another area. MS. RAWSON: It would. CHAIRMAN LEHMANN: Okay. Would that constitute any action -- or any issue that would be contrary to evidence that we would address in this particular rehearing? MS. RAWSON: Well, if you can remember the evidence that was presented on the day of the hearing -- CHAIRMAN LEHMANN: Uh-hm. MS. RAWSON: -- you had to base your decision on the evidence that was heard that day. And if that included a photograph, you probably wouldn't have known whether-- how it was taken. It was just taken by Code Enforcement Board, it is my recollection of the testimony. So you have to decide based on the evidence that was presented to you on the day of the hearing whether your decision was contrary to that evidence. CHAIRMAN LEHMANN: MR. FALATO: Also, the-- CHAIRMAN LEHMANN: Okay. Thank you. If you'll please proceed. MR. FALATO: -- repair time. You know, 30 days -- 30 days is not enough to repair that house. It's simply not enough time to repair a house, okay. And I'm not -- CHAIRMAN LEHMANN: An issue such as that that you're raising now would be addressed more on a waiver of fines as opposed to a request for a full rehearing. What you're asking us on that Page 2 9 August 22, 2002 particular issue is that the time you were given to accomplish the task was too short and the fines were imposed too speedily upon you. You can address that in a request for reduction of fines in that venue in a sense but not in the venue of a rehearing. MRS. FALATO: Okay. CHAIRMAN LEHMANN: And I'm not trying to stub each individual issue that you're bringing forward, but I'm trying to proceed in a very organized manner according to our own procedures so that you have due process as well as everything is followed properly. MRS. FALATO: Okay. What I might add is your -- Does Code Enforcement -- Michelle, does your staff go through training and have they used this as their training booklet (indicating)? CHAIRMAN LEHMANN: Ms. Falato? MRS. FALATO: Yes. CHAIRMAN LEHMANN: Hold on a second, please. Ms. Falato, again, if we can confine what we're talking about to the two main issues that we're here for. If we get off into other areas, it'll take us forever. MRS. FALATO: Okay. Well, according to the training -- According to this legal aspects of Code Enforcement, okay, it states on here that the most important thing for a Code Enforcement officer to remember is that neither Chapter 162 of the Florida statutes nor local ordinances adopting Code Enforcement regulations can authorize what would otherwise be an unconstitutional inspection. CHAIRMAN LEHMANN: Uh-hm. MRS. FALATO: So what I don't understand is you guys -- MR. FALATO: It's unconstitutional in how we got here. MRS. FALATO: And it states here that-- MR. FALATO: They have rules and regulations to follow that - Page 30 August 22, 2002 MRS. FALATO: -- Chapter 162 does not over rule an unconstitutional inspection. CHAIRMAN LEHMANN: All right. And your grounds for saying that are specifically what? MRS. FALATO: Why is it-- MR. FLEGAL: She's reading from a document that has nothing to do with this Board. CHAIRMAN LEHMANN: Well, and again, your grounds for stating that are specifically what? MRS FALATO: That Chapter 162 does not -- does not oversee breaking the Fourth Amendment. Code Enforcement -- CHAIRMAN LEHMANN: Ms. Rawson, what is the -- what is your opinion about the argument? MS. RAWSON: Well, in theory, certainly agree with her. CHAIRMAN LEHMANN: Uh-hm. MS. RAWSON: We certainly don't want to do anything that violates the constitution. However, today, unfortunately, our focus has to be on whether or not the evidence that you heard on the day of the hearing was contrary to the evidence. Your decision on that day was contrary to the evidence that you heard. CHAIRMAN LEHMANN: Okay. Thank you. And again, I don't mean to belabor the point, and I don't mean to constantly snub you on various avenues in which you're trying to approach this issue. But as Ms. Rawson said again, our purpose here today is extremely limited in scope. We're here just to hear whether or not the evidence we received was flawed, and our decisions were based on evidence that is contrary to the case in a sense. So again, we need to limit discussions on that particular issue. Once that's done, we'll proceed with the other issue of whether or not we had an error in the ruling of law or so on and so forth. But I want Page August 22, 2002 to be very clear on the first issue that you are requesting a rehearing on. MR. FALATO: You know, the inspection was done on random patrol. MRS. FALATO: On staff patrol. MR. FALATO: On staff patrol. And the day that he came out, he had to pass this house to get to our house. This house to get to our house. CHAIRMAN LEHMANN: I understand that, sir. Again-- And I apologize again. And I'm really -- I'm trying very hard to follow our procedures and make sure you have due process in your request. But again, how is any of that supporting the fact that we have contrary evidence-- MRS. FALATO: The evidence is -- CHAIRMAN LEHMANN: -- or rulings based contrary to the evidence, I should say. MRS. FALATO: The evidence is contrary because the evidence should have never been submitted. If the evidence is not legal, then you can't make a ruling on something that is -- MR. FALATO: It's illegal, and it was done -- It was done unlawful. CHAIRMAN LEHMANN: Okay. So your argument on this issue is the fact that the evidence was acquired in an illegal manner? MRS. FALATO: Correct. CHAIRMAN LEHMANN: Okay. Are there any other arguments or issues -- MR. FALATO: I want to make it clear to the Board -- CHAIRMAN LEHMANN: -- you wish to apply to this particular-- Sure. MR. FALATO: We want to make it clear that we have no problems fixing the house, okay, in coming to code. We haven't had Page 32 August 22, 2002 any problems in the past. We have always complied. We have complied when we did not have to comply, okay. MRS. FALATO: Back in '98, the same house -- MR. FALATO: We had-- MRS. FALATO: -- was brought before the Board and, at the time, we weren't found in violation. And we were asked to esthetically get the house fixed and that the Board, here, would remember if we kept the promise, and we did. MR. FALATO: Word for word -- MRS. FALATO: We did at the time. MR. FALATO: -- word for word, "It would greatly be remembered if you remembered that you kept your promise and esthetically fixed this house to satisfy certain individuals." And we did this, okay, and we had an adequate amount of time to do this. CHAIRMAN LEHMANN: And I understand. I understand what you're saying. But bear in mind again, this -- a future Board is not -- I take that back. A past board does not have the ability to commit the decisions of this present Board, nor do we have the ability to commit decisions of a future board, okay. I understand what you're saying. MR. FALATO: Okay. Can I ask how you came about putting sanctions -- MRS. FALATO: Sanctions on the house. MR. FALATO: -- on the house, for what reason? CHAIRMAN LEHMANN: What sanctions are we speaking of?. MR. FALATO: It says that we're going to be fined if it wasn't finished being repaired by the 27th. CHAIRMAN LEHMANN: Okay. According to Florida Statute 162, the Board has that right to take as an action, as an -- MR. FALATO: But is it-- Page 33 August 22, 2002 CHAIRMAN LEHMAN: -- order of the Board to achieve compliance. MR. FALATO: All right. Are you supposed to -- Does that follow under the rule of if that house had previous violations? MRS. FALATO: No. MR. FALATO: These are first-time violations, and the house has never had a violation in the past. CHAIRMAN LEHMANN: I understand what you're saying. But again, that doesn't bear on what we're talking about, okay. Again, we're looking to find out what the arguments to support your allegation that we have based our decision on evidence that's contrary to the case. So far, the only issue that I can understand -- And correct me if I'm wrong. The only issue I understand is the fact that the evidence was allegedly obtained illegally; is that correct? Or are there other issues that we need to apply to that particular argument? MRS. FALATO: For what it's worth, I don't know -- I don't know if this falls in what you're looking for, but Code Enforcement and you, the Code Enforcement Board is here to -- they are supposed to protect the public from harassment or discrimination. And quite honestly, we don't feel that we are being protected. And this case -- MR. FALATO: We're constantly being violated. CHAIRMAN LEHMANN: And let me explain kind of the purpose of why we are here in a sense. MRS. FALATO: Okay. CHAIRMAN LEHMANN: We are here to render decisions as to whether a violation of the code exists or not. Very limited scope of work. If a violation is found to exist in any particular case, then we have the authority to issue an order in a manner to prompt correction of that problem. MR. FALATO: Can we ask why -- CHAIRMAN LEHMANN: We are not here -- Page 34 August 22, 2002 MR. FALATO: -- our rehearing was denied? CHAIRMAN LEHMANN: We are not here as a Circuit Court. We do not have the powers that you are envisioning that we have. We do not have the powers to hear discrimination cases, harassment cases, other issues. We are very limited on our scope. If you have issues such as that, then you have to take those in other avenues other than what we are sitting here as this particular Board, okay. And, again, I tell you that as a polite reminder as opposed to maybe a snub of some sort, but we are very limited to what we can hear and what we can act upon. MRS. FALATO: The other thing is because we didn't -- We weren't here at the hearing and sanctions were imposed. And the majority of the month that the repairs were supposed to be fixed, my husband was not capable to do so, and I was out of state. So we ask that the date of when the property was to be fixed be extended. MR. FALATO: Be extended to a reasonable amount of time. We ask that the fines be lifted until we come into compliance within the 30 days from today. We'll have the house finished within 30 days of today. CHAIRMAN LEHMANN: Okay. Let me move on. It seems like we've kind of explored the issue of a decision contrary to the evidence anyway. Let's move on if you have any arguments supporting the case that an error occurred in the ruling of the law. MRS. FALATO: I believe I presented it to you. There was pictures submitted of what Code Enforcement took. It shows the property. It has no trespassing, no post signs on it. CHAIRMAN LEHMANN: Uh-hm. MRS. FALATO: He had to pass those no trespassing signs to take photos that were submitted to you. MR. FALATO: We have well over 150-some violations, alleged violations; 99.9 percent of them are no violations found, Page 35 August 22, 2002 okay. The house hasn't had any previous violations on it. So at this time, again, we're going to ask that the fines be lifted, give us 30 days to comply with the house. We'll get it to where you need it so it's up to code. MS. DUSEK: You're here right now before us to ask for a rehearing. MRS. FALATO: Correct. MS. DUSEK: And I think that our chairman has pretty well explained to you that part of the reasons for coming before the Board on your part are issues that we cannot entertain; a trespass issue. All we can do here is make a decision on evidence that was presented that day. And as Ms. Rawson, our attorney, said how that evidence was obtained, we don't know, but that's not our jurisdiction. Do you understand that? MRS. FALATO: That I understand. MS. DUSEK: All right. So we looked at those pictures and that was part of our reason for making the decision we made that day. So your issue of trespass is not an issue today for rehearing. MR. FALATO: May I ask, why didn't they continue it for us that day? Why did they just make the decision that this is it, it's final, and not give us the opportunity? I mean, the first hearing was postponed due to their negligence of getting a hold of us. The second hearing was due to my medical issue, and we didn't get a chance to come before the Board. MS. DUSEK: Are you saying that you were not properly notified? MRS. FALATO: Yes. MS. DUSEK: Do we have evidence of that, Michelle? MS. ARNOLD: Excuse me? Page August 22, 2002 MS. DUSEK: I don't have the case in front of me from previously how notification was made. But they' re saying that they were not given timely notification of the hearing before our Board. MS. ARNOLD: They were given timely notification. She indicated to you when she started discussion this morning that she requested a continuance of the hearing that it was originally scheduled for. So she was given over 30 days notice of the heating that, it was presented to you. MS. DUSEK: For the original one. MR. PONTE: You're talking about the May situation. MR. FLEGAL: When she requested the continuance and we -- MS. DUSEK: That was notification. MR. FLEGAL: -- granted it -- we granted it, so that was notification. Is that normally what we do, Ms. Rawson? MS. ARNOLD: No. MR. FLEGAL: That's how I remember it. MS. ARNOLD: No, it wasn't even on your agenda. It was -- we sent out a notice, and they came into the office and requested that it not be heard on that date. And it wasn't scheduled for that date. It was scheduled for the prior hearing. MR. FLEGAL: So for the -- But when it was brought before us, did they receive some kind of notification saying it's going to be heard on this date? MRS. FALATO: Verbal notification when they gave us the continuance in May. But because we had the medical emergency, we weren't able to come. CHAIRMAN LEHMANN: notified -- MRS. FALATO: Yes. CHAIRMAN LEHMANN: until a future date? You're saying you were verbally -- that the continuance was granted Page 37 August 22, 2002 MRS. FALATO: Yes. MS. ARNOLD: I'm being told by the investigator that they received a posted notice of the hearing date -- MRS. FALATO: In May. MS. ARNOLD: -- that was posted on their property. MRS. FALATO: Yes, and that was posted May 15th. The notice of the hearing, the original was set for May. We got a notification from the inspector May 15th. It was taped to our door. And our defense packet had to be in by May 10th. And that's -- MR. FALATO: So they notified us five days after you needed our defense package. MRS. FALATO: And that's why -- MR. FALATO: So, therefore, that was the reason for the first -- MRS. FALATO: First hearing. MR. FALATO: -- continuance, due to their negligence, okay. We requested the second hearing be reheard because of my medical issue, okay, and it was denied. And the sanctions were imposed and we're here now. CHAIRMAN LEHMANN: Michelle, do we have copies of the minutes from the hearing, the second hearing in which we actually heard the case? MS. ARNOLD: That would be the June hearing. And, no, I don't have anything. CHAIRMAN LEHMANN: You don't have anything available? Okay. MS. GODFREY: I can recall, Mr. Chairman, that he did have a notice from his doctor that he had an appointment that day or something. MS. ARNOLD: Right. There was a request for continuance, and it was submitted to you all for consideration, and you denied it and you heard the case anyway. Page 38 August 22, 2002 CHAIRMAN LEHMANN: Uh-hm. I was just trying to refresh my memory as to why the motion was denied. I know the Board did take that action at this time, so. MR. FALATO: Well, the reason they gave me was that-- When was the hearing supposed to be? On the 26th? MRS. FALATO: The 27th. MR. FALATO: On the 27th. On the 26th, I was scheduled for an MRI. I was heavily sedated that morning to go through the tube (sic). They give you medication to go through that. The following morning, I had another follow-up, an appointment with my surgeon. They said that the hearing was at nine o'clock. My appointment, I believe, was at eleven. I have to be there at least a half hour early. I'm still groggy from the medication they gave me the day before, and it was impossible for me to be here at nine o'clock in the morning. We didn't have the agenda, knowing that we were the first to be heard on that morning, okay. So we feel that it was a legit reason to have -- to be reheard, and the -- I have information -- -- County notified us on the 3rd that it was done MS. ARNOLD: MR. FALATO: and over with. MS. ARNOLD: I have information on the hearing, the notice of hearing. And what happened was a notice was sent out in February, it looks like. And the post office attempted to make a visit on a visited on, I guess, in February and then another one March 4th and another one March 14th, and it wasn't picked up. And we didn't get confirmation of that but -- Oh, we got the returned, unclaimed notice in our office, and the packet was picked up by the Falatos on May 16th. Yes, May 16th. CHAIRMAN LEHMANN: Again, my -- go ahead, sir. MR. FLEGAL: Mr. Chairman, I -- as far as the rehearing or the denial of the request for continuance is foggy, but what I remember is Page August 22, 2002 part of the information given to us that day were copies of a scheduled MRI from his doctor, and it was dated something like a week or so before he was to go have the MRI, but our contention then was, well, he knew when the hearing was. And it would have been easy to say, "Gee, on that particular day, can I have my MRI moved to tomorrow?" It wasn't that he was getting medicated. It was he was notified of the hearing like the month before. He was then told a week or so before the hearing he was to have an MRI. And I think what we discussed was since he had that time in there, he could have asked his doctor to reschedule his MRI. And for whatever reason, that didn't occur, so we denied the request for a continuance. I think that's kind of the way it went. Not exactly, but I think that's what I'm remembering. MR. FALATO: MS. FALATO: MR. FLEGAL: I don't believe that's correct. No. I don't have the information in front of me, but I do remember seeing something from your doctor scheduling an appointment. MR. FALATO: Those are my appointments. I don't plan and schedule those appointments, okay. They do it, all right. I have no control -- MR. FLEGAL: Sir, I understand. I go to the doctor too. I can't make it, I call and I say, "Reschedule it." And they say, "Fine." So, I mean, I've had MRIs, been the whole route, so -- MR. FALATO: These were my -- MR. FLEGAL: -- anything's reschedule able. MR. FALATO: These were my original appointments. There was nothing rescheduled. MR. FLEGAL: I'm telling you what we based our decision on. MR. FALATO: Okay. And if Page 40 August 22, 2002 US. MR. FLEGAL: MR. FALATO: You asked, and I'm telling you. Okay. I just didn't believe that that was fair to MRS. FALATO: Well, I have the original copy of what I faxed over and what we sent via mail. And these were -- These were faxed on the 25th. And nothing on these forms says that he knew about it a week prior. MR. FLEGAL: I don't have the package from last month, ma'am. I'm just telling you what my memory is going. MRS. FALATO: I understand that, but this is what we submitted for the -- MS. GODFREY: My memory, ma'am, is that he had a -- from NASA, and that he had an appointment at 2:30, I believe, or 3:30 that afternoon of the hearing. MRS. FALATO: No, it's 9:15. I have -- I have the copy that I sent. MS. GODFREY: I have the minutes at home. I read the minutes. I've got two years. I've been on the -- I remember seeing you before. MRS. FALATO: Well, can we resubmit the NASA MRI appointment times? I don't know where you've got the 2:30 appointment from, but I've got the original, and that's what we gave to Michelle and to Patti. CHAIRMAN LEHMANN: Well, again, I don't think that's necessary. MS. FALATO: It's not. It's all -- It's your decision. CHAIRMAN LEHMANN: Yes. What we are trying to do at this point in time, and it tends to get convoluted sometimes, is just determine whether or not the hearing that we had originally was done properly or whether or not we had evidence that was presented to us, and our decision was based on a decision on -- contrary to the Page August 22, 2002 evidence or whether or not we had some ruling of law that might have overturned something we would have done. I understand that you have brought up issues of trespass and issues of discrimination or harassment and issues of notification and things of that nature. Many of these issues are beyond our purview to address. The issue of not being properly notified, it is my understanding that you have been properly notified of the rehearing date -- or the hearing date, I should say, not the rehearing date but the hearing date. Now that your contention is the fact that you had commitments medically, that we have not in a sense properly addressed, I would assume. And I'm not trying to put words in your mouth. I'm trying to understand the issues. Am I correct in these assumptions or is there something else that I need to understand? MRS. FALATO: Well, what we don't understand is the first rehearing was --we were granted a continuance, um, you know, because -- MR. FALATO: You granted a continuance for the first hearing due to their neglect, but we weren't granted a rehearing due to my medical issue -- CHAIRMAN LEHMANN: Well, a continuance was -- MR. FALATO: -- because you were more concerned on your policy. CHAIRMAN LEHMANN: -- granted based on a technicality in a sense. MR. FALATO: Sorry? CHAIRMAN LEHMANN: It was based on a technicality in the fact that we need to provide you with proper notification to follow our procedural law or procedural rulings. And it was granted based on the fact that those rulings and procedures were not followed. Therefore, you had not been given proper notification and an Page 42 August 22, 2002 extension was granted to you on your behalf, period. And it was done just to protect your due process and protect your interest. MS. ARNOLD: The notice was sent. They did not pick it up. They did not claim it. And they came into our office and picked it up on the 16th. And because we knew we had evidence that they didn't physically get the packet until the 16th, we granted their request for a continuance for 30 days. The item wasn't placed on yom agenda. They were notified at that point when the next hearing was going to be. CHAIRMAN LEHMANN: Ms. Rawson? MS. RAWSON: Yes. Before you ask your question, !, basically, think that we are the second part, the second prong now, and that is whether or not your order, your ruling was contrary to any law. Now what we're talking about a notice rather than whether or not you decided there was a violation and found a violation. So I think you need to probably just focus your decision on whether or not you think that they received proper notice. Well, they did, I mean, I think by their own testimony. You, apparently, as a board denied their continuance. I mean, so you have the right to decide whether or not you should have denied the continuance. You can rehear it if you want to rehear it. But I think that we're down to, basically, whether or not they were denied any due process rights because they were not able to be here and whether you were contrary to the law when you denied the continuance. I really think that that's, basically, where we are. So it's up to the Board whether you want to rehear it or stick with your original decision. And, I'm sorry, you were going to ask me a question. CHAIRMAN LEHMANN: No, and that's -- I mean, you've, basically, preempted me in a sense. Page August 22, 2002 MS. SAUNDERS: Mr. Chairman? CHAIRMAN LEHMANN: Ms. Saunders. MS. SAUNDERS: As much as I don't especially want to rehear the case, and I do believe that we followed all due process and were correct, I can understand the concern of a medical emergency and perhaps we were-- CHAIRMAN LEHMANN: Ms. Saunders, let me interrupt you for just one second. Let's close the testimony section of the case -- MS. SAUNDERS: Oh, okay. CHAIRMAN LEHMANN: -- and then we'll open it for discussion. MRS. FALATO: One more thing? CHAIRMAN LEHMANN: Yes, ma'am. MRS. FALATO: Chapter 162 entitles us to a fair treatment by local government. And, unfortunately, we don't feel that it is a fair treatment by the local government. CHAIRMAN LEHMANN: Okay. So noted. Any other comments or discussion you wish to enter? MRS. FALATO: No. CHAIRMAN LEHMANN: Okay. Thank you. I'll close the evidentiary portion of this particular action. If you'd like to have a seat and be happy to sit up front there, wherever you'd like, okay. And now I'll open this to discussion and entertain discussion from the Board. MR. PONTE: I'll lead with my chin and simply say that I think there are many factors here that should encourage us to rehear this case. If we want to go into all of them, we could do that, but we've heard them all. And I think that it is only fair to the respondents that we rehear the case. MS. SAUNDERS: I concur. Page 44 August 22, 2002 CHAIRMAN LEHMANN: Would you elaborate on your reasons, please? MR. PONTE: Certainly, and we can go to 162, and the allegations that they did not get fair treatment by government agency. MS. DUSEK: Explain that. MS. ARNOLD: We want to hear that, yeah. MR. PONTE: We can go to the fact that the evidence that we did unknowingly accept and use was allegedly illegally obtained. MS. ARNOLD: I would have to object to that -- CHAIRMAN LEHMANN: Mr. Ponte? MS. ARNOLD: -- because there's no proof-- MR. PONTE: I said allegedly. MS. ARNOLD: -- of that. MR. PONTE: I said allegedly -- CHAIRMAN LEHMANN: Order, please, because -- MR. PONTE: -- and that the evidence was flawed in that way. CHAIRMAN LEHMANN: Mr. Ponte, just one second, please. Let's restrict our comments to one person at a time. The court reporter can't listen to four of us at once. If you would proceed, Mr. Ponte. MR. PONTE: I think there's also a question about the amount of reasonable time that they said that they needed to prepare their initial defense packet. That's the one in May. So that's a third question. I think that there are others that we've all read. I'm looking at the doctor's report for the appointment date of June 26th. I don't know why we have confusion about that. It clearly says the appointment for Mr. Falato was at 9:15 that morning. I think we should rehear the case. MS. DUSEK: If I might address each one of those issues contrary to what Mr. Ponte has said, proper notice was given the month before when they were given a continuance. Well, I guess it Page August 22, 2002 wasn't legally a continuance, but they asked that the case be postponed, and the county did postpone it for a month. On that day, that was notice, and that was more than a month's notice for them to prepare their defense package. A notice, I understand, was also posted in a timely manner on their property, timely manner. So the notice issue to me is not an issue. The trespass for the photographs, I can't address that. I don't know. I know that they have said that that was a trespass issue. But a trespass issue is not this jurisdiction. So, to me, that is not an issue. The medical issue, I agree with Cliff, that you can rearrange your appointments knowing that you had something else that was quite apparent that you should attend. And the timely notice, I've already addressed. And those are the issues I heard today, none of which I think were reason to rehear the case. MR. PONTE: I just need a point of clarification. I thought the notice was posted on May 16th and -- No. They picked it up that day. And the date that the defense packet had to be MS. DUSEK: MR. PONTE: received was -- MS. DUSEK: The 10th. May 10th. MS. ARNOLD: June, because they requested a continuance the day they picked up the packet. We agreed to not put the item on the agenda for May and put it on the June agenda and advised them what the date was of that hearing. And we advised them when their packet had to be in for that June hearing, and they complied with that. MR. PONTE: So, really, what we were saying is everything was on track and going along smoothly. They were granted a continuance. We didn't know about it. And then when the request for a continuance based on medical grounds was made, it was -- MS. ARNOLD: The item was placed on your agenda. Page August 22, 2002 MR. PONTE: Yes, but were they told before that, verbally, that the continuance would not be granted? MS. ARNOLD: We have no way of knowing what your decision is going to be. MR. PONTE: No, I understand. MS. ARNOLD: We told them that we would put the item on your agenda and that it would be your decision whether or not to hear the case. I personally explained to Ms. Falato that the possibilities did exist that the case could be heard without her being present. MR. PONTE: Okay. MR. FLEGAL: Mr. Chairman? CHAIRMAN LEHMANN: Yes. MR. FLEGAL: Back to focus on the two conditions for a rehearing based on the evidence presented the day of the hearing. Memory serves me, based on that evidence we made a decision. I haven't heard anything today that says the evidence presented that day was wrong. It was presented. We heard it. It was given under oath. Therefore, we assumed it's legal information. We based our decision on that. End of story on that. I haven't heard anything to refute that. Second point, ruling of law. I have heard nothing that said we violated 162. The constitution, unfortunately, isn't part of our purview. Specifically, 162, they gave us no chapter and verse on any paragraph in 162 that we violated. I see no basis for a rehearing. The fact that they want more time can be covered under something else. They have that right. We give that right to everybody. But on the two points that permit a rehearing, I have heard nothing for us to grant a rehearing. And, you know, again, being focused, what you may have in a gut feeling didn't count. The law states there are only two points, and I haven't heard anything to change those two points. Page ,~ 7 August 22, 2002 CHAIRMAN LEHMANN: Ms. Rawson, am I correct in assuming hypothetically, of course, that if a respondent legally determines that the evidence was obtained illegally through some other venue, would that then be grounds for our decision based on that evidence to be contrary to law? MS. RAWSON: You would have to hear evidence. And the proper motion -- and I understand that they're not attorneys, and that's okay. The proper motion would be a motion to suppression that evidence. CHAIRMAN LEHMANN: Uh-hm. MS. RAWSON: But you haven't heard any evidence to lead you to decide one way or another whether or not there was trespassing or whether or not the pictures were illegally taken. You don't have anything before you to make that decision. CHAIRMAN LEHMANN: Well, I understand what Mr. Ponte is saying and I certainly understand what Mr. Flagel is saying. And the problem in my own mind is, quite frankly, I believe, I agree with Mr. Flagel. If we are looking at this in a very strict sense, which, unfortunately, this Board is bound by, this, again, seems to be one of those cases where your heart is telling you one thing but the rules and regulations we have to follow are maybe saying something different. The evidence that was presented, I, again, see no decision that was based contrary to the evidence. As Mr. Flagel had stated, it was under oath, and I believe it to be proper evidence. Whether it is obtained illegally or not is not for us to decide simply because we have no evidence to make that decision. MS. DUSEK: Are you ready for a motion? CHAIRMAN LEHMANN: And, secondly, as far as a ruling of law, I, again, agree with Mr. Flagel. We do not have anything, unfortunately, that would tell us that we have violated any of the Page 48 August 22, 2002 MS. presented MR. MS. MR. heard. articles of chapter 162 or any of the laws or rules governing this particular Board in the transaction of its business with regard to this particular case. MS. DUSEK: I make a motion that we deny the hearing. CHAIRMAN LEHMANN: One second. MR. PONTE: Before a motion is made -- Ms. DUSEK: I was-- CHAIRMAN LEHMANN: I would like to -- Just for the Board's knowledge, I really would like to hear the discussions on this, because I really want due process to be followed in this particular case as well as all others. So please proceed with your position. MR. PONTE: The phrase that keeps coming up here amongst Board members and others is that I haven't heard, fill in the blank, haven't heard it because we really haven't heard the case. We've heard one side of the case. The County's side. It's incumbent upon us to hear both sides of the case. DUSEK: There are many times when we have cases before us where the defendant is not here -- PONTE: That's true. DUSEK: -- and we make our decisions. PONTE: That is true. But these people are asking to be MS. SAUNDERS: Yeah. IfI may also, I think perhaps we could have been a little more understanding or compassionate in granting a continuance. That wouldn't have cost us anything. So there's nothing harmed by going back and giving a continuance. The other thing I heard, which doesn't officially enter into our deliberations, is that they could get the house fixed in 30 days. Nothing would please me more than if this was -- their rehearing was scheduled for a month from today and Michelle came back to us and said they're in compliance, there is no hearing. Page August 22, 2002 Why are we being -- nitpicking this to death I think we spent a great deal of time on it. I don't believe Code Enforcement did anything wrong. I think we followed the procedures completely. But I'm hearing a consumer, a citizen, saying give me a chance to at least have my day in court. I don't think it hurts us to do that. MS. DUSEK: Rhona, if I might repeat what was repeated earlier, I believe, by Mr. Flagel -- MS. SAUNDERS: Uh-hm. MS. DUSEK: -- and, that is, if they can come into compliance, we fine them. They come back to us and ask that the fines be abated. That's the procedure I think that should be followed. I don't think rehearing the case is the proper procedure, because what we have to look at are the facts. We can't go on our emotion. We must follow the facts, and that's how we make our decision. There will be many times, if we followed our emotion, that we would make different decisions. And I think you have to look. Did they violate? Was the evidence presented correct? Was our decision correct? Yes. And I think it's yes to all of those. And if they come into compliance, they want to come back to us then and ask for a reduction of fines, then we address it that way. MS. SAUNDERS: I think one fact that is pertinent is looking at the medical request for a continuance. And we made a judgment up here that that could have been postponed, and perhaps we shouldn't have made a medical judgment. The second fact that I would say we didn't look at is that we have not -- I believe we did make a judgment based on the facts we heard. When somebody says there may be other facts to be heard, I'd like to hear them. CHAIRMAN LEHMANN: Ms. Rawson, a point of clarification. Hypothetically, if this Board decides to grant a Page 5o August 22, 2002 rehearing, we need to grant that rehearing based on the two issues that we have. MS. RAWSON: One or the other; correct. CHAIRMAN LEHMANN: If we cannot find grounds to grant it on either one of those two issues, then our-- MS. RAWSON: Then you can't grant it. CHAIRMAN LEHMANN: -- then we technically can't even grant it, . MS. RAWSON: You need to follow your own rules. MS. DUSEK: That's right. CHAIRMAN LEHMANN: there in a sense. MR. FLEGAL: MS. RAWSON: MR. FLEGAL: So we're in violation of the law Ms. Rawson? Yes. The only thing that gives us the power to grant a rehearing is the ordinance. One sixty-two has nothing about rehearings. It's only appeals. MS. RAWSON: That's right. MR. FLEGAL: And under 162, it says the only basis -- the only ground is that our decision was contrary to the evidence. And that's the evidence presented that day, period, not what might have been presented. It was the evidence presented that day; is that correct? MS. RAWSON: That is correct. MR. FLEGAL: Okay. So based on that, I don't see any basis for granting a rehearing. We made a decision on evidence that day, period. MS. DUSEK: If I might just make an addition that might make Ms. Saunders feel a little more comfortable about the medical decision: Remember, they were notified a month ahead for that particular hearing. That was ample time to have a defense package put together in their absence. Page August 22, 2002 MR. FLEGAL: Okay. Again, let's get back to the two bases. I'm having a real problem. Everybody keeps saying, well, we made a decision not to continue. That has no bearing unfortunately. MS. DUSEK: I realize it has no bearing, but it's just a comfort level -- MR. FLEGAL: I understand. MS. DUSEK: -- for one of the Board members, and that was my reasoning. MR. FLEGAL: But we need to get rid of that and get down to these two facts: Contrary to the evidence presented on the day we issued our order or an error on a ruling of law. Only two things. Again, our gut feelings or sympathy or whatever have no bearing. We have those two points. Give me something to hang my hat on, and I may side with you. Right now it's zero. CHAIRMAN LEHMANN: Let me extrapolate on what our esteemed member had indicated. It is very important for this Board to base its decision solely on those two issues. Basing your decision on any other issue may be in violation of our own rules and regulations and so on and so forth. This job that you are sitting here doing is not an easy job. The pay is lousy. And it's very difficult sometimes. You have to divorce yourself from the emotions of the case and follow strict proceedings and logic and so on and so forth. Your decision today must be based solely on the two issues. Any other discussion before we place it to a vote? MS. DUSEK: I did put a motion on the floor earlier. CHAIRMAN LEHMANN: I'm sorry. I apologize. MR. FLEGAL: All right. I'm sure it got overshadowed. Do it again, please. MS. DUSEK: I make a motion to deny the rehearing. MR. FLEGAL: I would second that. Page August 22, 2002 CHAIRMAN LEHMANN: And we are -- Just to clarify that motion, you are making a motion to deny the rehearing based on the decision that we have not the heard sufficient evidence to show us that our order was decided upon or our order is decided contrary to the presentation of evidence or that an error on which the ruling of law would apply. Is that correct? MS. DUSEK: Yes. CHAIRMAN LEHMANN: We have a motion. It is a motion by Ms. Dusek, seconded by Mr. Flagel. All those in favor, signify by saying aye. Any opposed? MR. PONTE: Opposed. MS. SAUNDERS: Opposed. CHAIRMAN LEHMANN: We have two opposed, Mr. Ponte and Ms. Saunders. The motion carries by a majority vote. Mr. and Mrs. Falato, would you please approach the podium again? It's very important for me and, I'm sure, the rest of the Board that you understand what we are doing here today and what has transpired. We are here for a very limited purpose, and that is to hear your request for rehearing, which we have done. And we have decided that a rehearing would not be warranted based on the evidence presented today and the two issues that we have to govern our vote in. You have other issues that, I'm sure, are a concern to you. There are other avenues that you have to address those issues. This Board is not the place to do that. I know that this is an issue that concerns you greatly, and we recognize that. The other issue is fines. You have the ability and the right, and correct me if I'm wrong, Ms. Rawson, but at this point in time you still have the ability to come before the Board after everything is said Page 53 August 22, 2002 and done, the violations have been abated and you have achieved code compliance, to come back before the Board and have a motion to request those fines be reduced or waived based on evidence you present at that time, again, governed within the rules and regulations and limitations of what we're able to listen to that evidence. MS. RAWSON: That's correct. It's my understanding that we don't have an order imposing any fines yet. CHAIRMAN LEHMANN: That's correct. MS. ARNOLD: Yeah. CHAIRMAN LEHMANN: Okay. So it's just -- Again, what we are trying to do, what I'm trying very hard to do is not only follow strict procedure of what this Board can or can't do in how we do our business but also protect your due process and your rights. We're here today just to do a little bit of that whole process that you're trying to accomplish. Although you may be unsuccessful in the rehearing aspect of it, you may be successful in going forth with any other issues that you have concerns with. I have no idea what the outcome of those would be. MRS. FALATO: Okay. A question for you. CHAIRMAN LEHMANN: Yes, ma'am. MRS. FALATO: There was fines imposed and the place had to be done by the 27th of July. It's now -- It's the 22nd. We've been waiting for this rehear- -- We have been waiting for, today, to see if our case would be reheard. CHAIRMAN LEHMANN: Uh-hm. MRS. FALATO: Now, those are accruing until we come into compliance; am I correct? CHAIRMAN LEHMANN: Ms. Rawson, how does the fines work in the rehearing? MS. RAWSON: Well, you have to impose them. They're not imposed yet. Page August 22, 2002 CHAIRMAN LEHMANN: All right. But are they accruing? MS. RAWSON: Well, you gave them a date in which they need to come into compliance. CHAIRMAN LEHMANN: Okay. MS. RAWSON: If they don't come into date (sic) by that compliance date, you know, according to 162, you can bring it back when you find out that they're not in the compliance and impose the fines starting on that date. That is correct. CHAIRMAN LEHMANN: All right. So to answer your question, yes, they are accruing at this point in time. And again, I just would reiterate what our counsel has advised you just now. MRS. FALATO: Okay. Now, you based you decision that at the last hearing you were presented evidence that is not contrary to what your decision was on the -- on the case. CHAIRMAN LEHMANN: The decision for the vote here was based on two issues; again, whether or not we have based our decision or our order-- MRS. FALATO: Right. CHAIRMAN LEHMANN: -- contrary to the evidence, which the decision of the board was, no, we have not based our decision on something that would be contrary to the evidence; and, secondly, whether or not a ruling of law had been in error. And again, we based our decision on the fact that no ruling of law was in error. And we are very limited into what we can address and how we can approach each particular issue and case. MS. DUSEK: I believe you will get a copy of this so you'll have it and you'll know exactly why. MS. FALATO: Okay. CHAIRMAN LEHMANN: Okay. And I appreciate the time you've taken. I hope you appreciate the time this Board has taken in trying to hear your case and try to -- Page August 22, 2002 MRS. FALATO: I have a question. CHAIRMAN LEHMANN: -- help you in any way we can. MR. FALATO: All right. At this point in time, can we ask that the fines not start until 30 days from now if the house isn't -- CHAIRMAN LEHMANN: No. MR. FALATO: -- in compliance from 30 days from now? CHAIRMAN LEHMANN: No. The proper procedure would be for us to impose the fines. And then after the fines have been imposed, much like a case we heard earlier this morning -- MRS. FALATO: Okay. They come back. CHAIRMAN LEHMANN: -- then you have the right to come back at that point in time. /AEUPBD I caution you, after you have achieved compliance would be an appropriate time then to request a reduction. Now, bear in mind that reduction may or may not be granted. MRS. FALATO: We understand that. CHAIRMAN LEHMANN: And that's based on evidence and testimony supporting your request at that time. MRS. FALATO: Okay. CHAIRMAN LEHMANN: Okay? MRS. FALATO: Thank you. CHAIRMAN LEHMANN: Thank you very much for your time. I apologize. Let's take a break for the court reporter. Let's return in 10 minutes, please. Is that sufficient time? THE REPORTER: Yes. CHAIRMAN LEHMANN: The Board is adjourned for 10 minutes. (A short recess was taken.) Page August 22, 2002 CHAIRMAN LEHMANN: I would like to proceed with item 5- C on the agenda, a request for reduction or abatement of fines. MS. ARNOLD:. The next item on the agenda is a request for reduction/abatement of fines. It's Board of County Commissioners versus John Danks, Code Enforcement Board case 2000-031. This item was heard by the Code Enforcement Board on September 28, 2000. And the respondent was ordered to comply with a finding of facts and conclusion of law and ordered to correct by November 12, 2000. And, basically, what the violation was was improvements on commercial property without first obtaining proper permits. I believe Patti provided you with a copy of the order as well as failure to have an occupational license. The respondent came into compliance on March 9th, 2001, and you have received a packet from the respondent requesting waiver of fines because of the reasons stated in that document. I don't believe anyone is present representing the defendant. CHAIRMAN LEHMANN: Any discussions? MS. ARNOLD: The investigator is here that provided evidence for that particular case, Cathy Van Poucke's case. So if you do have any questions with respect to the contents of that request -- MR. FLEGAL: Michelle, could you just tell us since I don't see it anywhere? Tell us what kind of money we're talking about so we at least know what they're asking us to reduce or abate. MS. ARNOLD: This particular case has actually been forwarded to the County Attorney's Office, too, in June. It's one of the cases that was forwarded for foreclosure action. I'll give you the amount in one minute. MR. FLEGAL: Oh, okay. Let me ask another question then. Ms. Rawson? MS. RAWSON: Yes. Page 57 August 22, 2002 MR. FLEGAL: If we've directed the county attorney to proceed with foreclosure, since we made that determination and this is now in their hands, do we have the power to waive the fines? I mean, we've turned it over to the County Attorney's Office. I would think we're out of the loop. MS. RAWSON: You are out of the loop. According to your rules and regulations, Article XII, Reduction/Abatement of Fines, Section 1, about the third paragraph: "A request to reduce/abate fines may be made after a violation has been abated. Under no circumstances may a request to reduce/abate fine be made after the Board has authorized foreclosure by the County Attorney's Office." MR. FLEGAL: Okay. So-- MS. DUSEK: So we don't have to do anything. MR. FLEGAL: -- this shouldn't even be before us. MS. ARNOLD: Yeah. And the only reason why we put it on the agenda is because of the timing on it, and the Board only in June forwarded the matter to the County Attorney's Office. I'm not sure if she's done anything to notify the respondent at that particular time. I may be wrong. I'm not sure. MR. FLEGAL: Okay. But I think the deal is that once we say the County Attorney's Office has it, then we're done. Whether they've done anything is immaterial. MS. ARNOLD: Okay. MR. FLEGAL: We've turned it over, so we're out of the picture. MR. RAMSEY: A question. It appears as though that there are two -- well, there's only one respondent but there are two parties. One is the owner. One was the tenant. The owner, obviously, is the foreclosure issue, but the tenant is no longer there. Do the fines still apply against the tenant? MR. FLEGAL: Well, the tenant-- MS. ARNOLD: It is the tenant. Page August 22, 2002 MR. FLEGAL: The tenant is also the owner. The owner owns - MR. RAMSEY: Oh, okay. MR. FLEGAL: -- the majority of shares in the company. So it's like you own the property and then you put your consulting business on the property. And then you come up and say, well, it's my tenant, I don't have any rights and that, and you own the business. It doesn't work that way. MS. ARNOLD: MR. RAMSEY: MR. FLEGAL: MS. ARNOLD: The business owner is the tenant. Is the tenant. Okay. Right. Not the property owner. And the order has been filed against the business owner, Mr. Danks. MR. FLEGAL: I would make a motion that we deny this request and from the fact that we have already turned it over to the County Attorney's Office. CHAIRMAN LEHMANN: So noted. Do I hear a second? MR. PONTE: I'll second it. CHAIRMAN LEHMANN: We have a motion from Mr. Flagel and a second from Mr. Ponte that the request be denied on the grounds that this has already been turned over for foreclosure proceedings and, thereby, would violate our own governing rules. All those in favor, signify by saying aye. Any opposed? Hearing none, the motion passes unanimously. Let's please proceed to the next item on the agenda. MS. ARNOLD: Okay. The next item is another request for reduction/abatement of fines. It's Board of County Commissioners versus Patrick W. and Erin L. Rose, Code Enforcement Board case 2001-045. You just, today, authorized the imposition of fines in the amount of $3,753.75. And that particular case, as noted in the Executive Page August 22, 2002 Summary, was for vegetation removal without authorized permits, and a representative for the Roses is present to speak to that request. CHAIRMAN LEHMANN: Okay. If you would like to proceed, sir. MR. FRANCEOUR: Yes, sir. My name is Philip Francoeur, the law firm of Samouce, Murrell and Francoeur. My client just sold some property and asked -- and he had to go back to Washington, so he asked me to be here this morning. And tried to get as many facts from him as I could to try to represent him. And I may not have all of them, but I have -- I hope I have most of them. My understanding is that this is a hearing on our part strictly for the consideration of our request for an abatement of the fines fine of $50 a day, which is a total $2,250, which is currently being held in escrow, along with the $1,503.75 for the cost to comply with the order on December 18th by the Board. That money is not -- That amount of money is not being questioned or challenged by my client. He understands that he has to pay that. He's paid the mitigation. It's strictly the fine that he wanted me to address with regard to the possibility of abatement. I could go back over all the facts, but from what I understand this morning, you really like to have people stay on point and not talk about the past and the fact that he came in voluntarily to find out whether he was supposedly to have the permit. And there was an employee, he said, at the front desk at Code Enforcement who said he didn't need a permit. So we went and removed it. And he's talking to his neighbors. His neighbors said, "Hey, I think you do need a permit." He comes back in voluntarily a second time, and they said yes, and it went on and on and on. And-finally, there was a hearing. I had a whole bunch of things I was going to say. Since we're trying to stay on track here, I won't mention them. But anyway, finally, there was a hearing on Page 6o August 22, 2002 December 18th. I'm not really even sure whether my client was here for that hearing, but he was given till June 17th to comply with the mitigation. And he was instructed to call someone named Steve. He didn't know the last name. Why, I don't know but Florida Water Management for the mitigation process, and the paperwork was started. And after two or three months, Susan Mason from the Code Enforcement Board asked him, "Well, how is it going?" And he says, "I don't know. I haven't heard a thing. I don't know where we are on that." So she told him, according to my client, "Why don't you work with Code Enforcement. We'll work on mitigation, us and you directly." So it was decided -- This was in May of this year. And so it was decided at that time, and I don't know whether it was mid-May, late May, I really don't know, that he should come and plant some trees on his property. So he flew down in June, I assume relatively early June, since the deadline was the 17th. And he got here and found out that he was going to need not only to plant them but to maintain and nuture the trees for a six-month period, which is not an unreasonable request, but he lives and works in the State of Montana. That was kind of a problem, and he mentioned that to the Code Enforcement Board. And they said, "Yeah, you're right." And the Code Enforcement Board had been most pleasant and courteous with Mr. Rose. So they decided to contact the Rookery Bay. And they finally at some point in time -- now, I'm not sure when. I suppose the timing could be pretty critical here in this decision -- that he would be to contribute $3,672. Now, I don't know how that amount was figured, but I'm not challenging that or questioning that. And that was paid, finally, on August 2nd. And a letter on August 2nd from a guy called Page August 22, 2002 Tad Bartareau to Susan Mason. A letter with a copy of the check was sent indicating that he had received it, mitigation was done, and at least he received the check and they were going to use it for some purpose of mitigation in the future. And my point is that through this process, he's been working with Code Enforcement all along, and there have been problems with Water Management, and he's been delayed in his ability to find closure on the mitigation. And so the deadline went by and he wasn't able to finalize this mitigation until he heard, I guess, from Rookery Bay, and I'm not sure whether July 2nd, July 15th, I don't know the date unfortunately, that he needed to contribute the money to them. So he did on August 2nd. And so I'm requesting on his behalf that the fine be abated because he's tried his best to try to do the mitigation. And because of problems with Florida Water Management and working with Code Enforcement, and no reflection on them, it just got past the deadline to get his mitigation check in, and it didn't happen until the 2nd of August. MS. DUSEK: I can remember a little bit about this case and the Florida Water Management and who was in charge of doing certain things, but I can't remember it exactly. Can we hear from the County's viewpoint on this request, because it sounds from the representative for Mr. Rose that he has been working diligently to get this taken care of. MS. ARNOLD: Do you want to have her sworn or anything? MS. RAWSON: I think we should. (The oath was duly administered.) MS. MASON: For the record, I'm Susan Mason, Environmental Specialist for Code Enforcement. This was my case. In regards to methods for compliance, there are a variety of different ways that Mr. Rose could gain compliance on this property. Page August 22, 2002 One of them was the permitting route. He originally stated he did the clearing for agricultural use. So I talked with him at that time about going through the process with both the State and Federal Government, to obtain their permits first, and then I'd be able to issue a County, an after-the-fact County permit. After those were obtained, he did make some contacts with the State. And on numerous occasions, when I would talk with Mr. Rose, I would give him the numbers and the names again to try to make sure I sent numerous e- mails over to South Florida Water Management, had some meetings with them on site to discuss the problems that we had and what they would require for their issues. No progress was really made on that, and I talked with Mr. Rose about doing on-site mitigation, which he said, originally, he wanted to do, because that's another method of compliance when we did discuss it. And I know, earlier, the attorney had mentioned it was six months for maintenance. It's actually a five-year maintenance afterwards for surviving -- monitoring for surviving of the plants. And he does live out of state. He thought that that probably wasn't the best compliance method. I talked to him about doing a donation of funds for off-site mitigation. I did explain to him that that would comply with the County requirements but would not necessarily help him in the future with any State or Federal violations that might come. But he decided to go with that route. He submitted the -- The way it works is the person submits, in a way, a theoretical mitigation plan to come up with the costs, because the donation of funds is based on how much it would cost to mitigate for what was lost, including installation, the actual materials and maintenance of the property for the period of time. He did come up with a plan which he submitted to me on July 24th of 2002. I reviewed it and approved it that day, and I called him on the phone. We talked briefly. I told him I approved it and gave Page August 22, 2002 him the contacts for DEP, Rookery Bay, because that was the entity he decided to donate the funds to. I gave him that information that day. He did call me a couple of days later and said he lost that information, asked for it again. Then I did receive on the 2nd a copy of the check and the letter from DEP that the funds had, indeed, been paid, which did bring him into compliance with the original order of the Board. MR. FLEGAL: Okay. Michelle, could I ask you question? Since this is an acceptable procedure, I think what we're down to is his client is willing to pay the operational cost, but there seems to be, I think, $2,200, he mentioned. I don't know if-- MS. ARNOLD: Uh-hm. MR. FLEGAL: -- that is -- Is the County willing to say, gee, his $3,600, or whatever this check is, $3,672 is acceptable in lieu of the $2,200? MS. ARNOLD: I don't particularly have a problem with it. I would ask to defer to -- MR. FLEGAL: I mean, I think that's what we're here to decide. If you say the County doesn't have a problem with it, I think we can get on with this. MS. ARNOLD: I don't particularly. CHAIRMAN LEHMANN: My understanding is the $3,600 check was a substitute means of a compliance. MS. ARNOLD: Okay. Right. MS. MASON: Right, a substitute for off-site mitigation and that was donated to public land. MS. ARNOLD: Uh-hm. CHAIRMAN LEHMANN: And that is within the boundaries of the code ordinances and so on and so forth? MS. ARNOLD: Uh-hm. Page 64 August 22, 2002 MS. MASON: Yes. CHAIRMAN LEHMANN: So whether we like that position or not, that's an acceptable method to comply with the code.9 MS. MASON: Right. MS. ARNOLD: Yes. MS. MASON: He's in compliance. He came in as late. MS. ARNOLD: Yeah. Basically, what, I mean, we typically look at is whether or not there was some communication and some progress being made, you know, from the date of your order till the compliance. And I know that on our part, we had kept communication with Mr. Rose and we were able to have conversations to see what he was willing to do for compliance. CHAIRMAN LEHMANN: So you're saying from the County's side, that there are extenuating circumstances that would support a waiver of fines because of an extended period of time that was beyond his control? MS. MASON: I personally did have conversations with Mr. Rose and, apparently, there were some family problems that were taking place. And plus, he did rather, at least with your demand, unexpectedly had to move from Naples to Montana. So it does make it more complicated when you're trying to work through issues via fax, telephone. CHAIRMAN LEHMANN: Well, and the reason I ask that is, for me, it seems very clear the two funds are not related. MS. MASON: Right. CHAIRMAN LEHMANN: The $3,672 check was a method of achieving compliance. MS. MASON: Right. CHAIRMAN LEHMANN: Now what we're looking at is the reduction of the fines that go along -- that were assessed until that compliance was met. Page August 22, 2002 MS. MASON: Uh-hm. CHAIRMAN LEHMANN: Okay. So, again, do we have extenuating circumstances in that time period that would justify a reduction in those fines? And again, I think what I'm looking for is something obviously beyond the respondent's control that he's not able to handle. MS. ARNOLD: Well, I think it sounds like the respondent was attempting to come into compliance. And, you know, with the illness, you know, personal problems, plus coordinating with the various agencies, it probably required a little bit more time than we granted him for the Board's order. So I wouldn't object to reducing the$2,250. CHAIRMAN LEHMANN: So you would not object to eliminating the fine, keeping the operational cost -- MS. MASON: Yes. CHAIRMAN LEHMANN: -- as the respondent has requested. MS. ARNOLD: Okay. Thank you. MS. DUSEK: And I make the motion that we -- CHAIRMAN LEHMANN: Before you made a motion? Sorry? Any-- MS. DUSEK: I'd just like to keep moving. CHAIRMAN LEHMANN: Any further discussion? None? Hearing none, please make your motion. MS. DUSEK: I would like to make a motion that we abate the $2,250, is it? MS. ARNOLD: Yes. MS. DUSEK: And keep the operational costs. CHAIRMAN LEHMANN: We have a motion. Do I hear a second? MR. FLEGAL: Second. Page August 22, 2002 CHAIRMAN LEHMANN: We have a motion from Ms. Dusek, a second from Mr. Flagel. All those in favor, signify by saying aye. Any opposed? Hearing none, the motion carries unanimously. MR. FRANCOEUR: Thank you for your time and consideration. CHAIRMAN LEHMANN: Thank you very much. And thank you for your patience in waiting to hear. All right. Let's move on to old business, item 6-A. MS. ARNOLD: Okay. The first item is an affidavit of noncompliance for case number 2002-008, Board of County Commissioners versus Jack W. and Elma Mae Barrs. The item is just an administrative item. We'll be filing that document. And the next item is for filing of affidavit of the compliances for the Board of County Commissioners versus Moises Castillo, and that case number 2002-010. We'll also file an affidavit of compliance for Board of County Commissioners versus Patrick W. And Erin L. Rose, and that's case number 2001-045. And lastly, affidavit of compliance for Board of County Commissioners versus Ricky L. Bell, case number 2002-078. CHAIRMAN LEHMANN: Very good. Any other comments from the Board? MR. FLEGAL: Yes, sir. Since we had a -- Back on the gentleman that was raising a question about administrative hearing versus procedure and all that, I would like to recommend that the Board recommend to the Board's secretary who is obviously the one that puts out these letters, which really come from Code Enforcement, it's titled "Notice of Administrative Hearing." I think we should eliminated the word "hearing." That doesn't apply. That's Page August 22, 2002 not in the statute. Let's call it "administrative procedure," "imposition of fine and lien." And also, in the first line where we say "Notice of an Administrative Hearing," change that to "procedure." I think that will eliminate future questions as to whether people have the right to come before us and speak. It's just paperwork, but I think it's something we ought to do. MS. ARNOLD: Yeah. I wonder, too, if there's anything that needs to kind of be clarified in the rules and regulations as well. MR. FLEGAL: I didn't read through those real quick. MS. ARNOLD: But maybe what we can do -- MR. FLEGAL: But if we just change this -- MS. ARNOLD: -- instead of going through the whole minutes - - the amendment process is just to do a letter of clarification on that particular section. MR. FLEGAL: Yeah. I think if those two words are changed in the letter that's mailed out to people, it will eliminate any more confusion. Probably the layman, when he sees "hearing" on a piece of paper, he thinks, oh, God, I've got to go, I've got to hire an attorney. MS. ARNOLD: Right. MR. FLEGAL: And he really doesn't have to do that, and we don't need the grief. CHAIRMAN LEHMANN: I take offense to that. MS. RAWSON: I would agree with that suggestion. I've got one thing just for everybody to be thinking about. Technically, the fourth Thursday in November is our meeting, and that's Thanksgiving. So I'm sure we don't want to be here. MS. ARNOLD: Are we planning ahead? MS. RAWSON: I'm always planning ahead. And so I just assume that maybe we'll meet on the 21 st, but my assumption may or may not be correct based on the availability of this room. Page August 22, 2002 MS. ARNOLD: Yeah. We'll check that and report back to the Board for the next meeting. MS. RAWSON: Next month is fine. MS. SAUNDERS: I'll let you know in advance. MS. RAWSON: Thank you. MS. DUSEK: I have one question just for housekeeping. Wasn't there one month of minutes that we never received. MS. ARNOLD: Two, actually. CHAIRMAN LEHMANN: Two. MS. ARNOLD: Yeah. We're still trying to get that from the clerk's office. MS. DUSEK: Yeah. CHAIRMAN LEHMANN: One of these days we'll be able to approve those. MS. DUSEK: Once we get them, we'll put them on the agenda and approve them. MS. ARNOLD: I just had one item for you all. I know we have been asking you to take your binders with you. We're going to change that again and ask for the binders and take any loose paperwork that you want to keep with you, and then we'll give you the binders and your packets together again for future hearings. So if you want to turn in your binders today, we'll turn the binders in, unless you don't want to do that. That's fine. CHAIRMAN LEHMANN: It is very important, though, that if we have a case that has been continued or we have -- MS. ARNOLD: Right. CHAIRMAN LEHMANN: -- evidence packages from previous cases, that they be included in the case on the hearing date that we're in. MS. ARNOLD: Yes. CHAIRMAN LEHMANN: Okay. Page August 22, 2002 next MS. RAWSON: The one was from today that was continued to month, we need to retain that packet. MS. ARNOLD: Yeah. Just leave it in, yeah. MR. FLEGAL: I didn't bring my binder, but I'll -- MS. ARNOLD: Oh, okay. MR. FLEGAL: -- bring it with me because I'll keep that. MS. ARNOLD: Okay. CHAIRMAN LEHMANN: Any further discussions? Hearing none, I would entertain a motion to adjoum. MR. FLEGAL: I make a motion we adjourn. CHAIRMAN LEHMANN: A motion, and a second somewhere? MS. DUSEK: Second. CHAIRMAN LEHMANN: Now, do we have -- Michelle, the next meeting date, you're going to advise us by what method? Are we meeting on the 26th or are we changing that? MR. FLEGAL: No, that's not till November. CHAIRMAN LEHMANN: Oh, I'm sorry. MS. ARNOLD: No, Thanksgiving. CHAIRMAN LEHMANN: All right. The next meeting date is the 26th? MS. ARNOLD: Yes. CHAIRMAN LEHMANN: Sorry. I'm getting screwed up. We have a second somewhere. If not, I'll second it. All those in favor, signify by saying aye. Okay. I hear no one opposed. Page 70 August 22, 2002 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 11:20 a.m. CODE ENFORCEMENT BOARD PETER LEHMANN, CHAIRMAN STATE OF FLORIDA ) COUNTY OF COLLIER) I, SHARON A. SULLIVAN, Registered Professional Reporter and Certified Shorthand 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 is a tree record of my Stenograph notes taken at said proceedings. SHARON A. SULLIVAN Registered Professional Reporter Certified Shorthand Reporter Page 7~.