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CEB Minutes 11/18/2002 RNovember 18, 2002 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida November 18, 2002 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. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Peter Lehmann Sheri Barnett Clifford Flegal Gerald Lefebvre George Ponte G. Christopher Ramsey ALSO PRESENT: Jean Rawson, Attorney for the Board Michelle Arnold, Code Enforcement Director Jennifer Belpedio, Assistant County Attorney Shanelle Hilton, Code Enforcement Coordinator Page CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA AGENDA Date: November 18, 2002 at 9:00 o'clock a.m. Location: 3301 E. Tamiami Tr., Naples, Florida, Collier County Government Center, Administrative Bldg, 3rd Floor NOTE: ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NEITHER COLLIER COUNTY NOR THE CODE ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. 2. 3. 4. ROLL CALL APPROVAL OF AGENDA APPROVAL OF MINUTES - October 24, 2002 Minutes PUBLIC HEARINGS A. MOTIONS B. HEARINGS BCC vs. Maxwell of Naples Corporation and Jacob Nagar Registered Agent Location: Sapphire Lakes, Tract L-4 Alleged Violation: No littoral plants or maintenance BCC vs. Maxwell of Naples Corporation and Jacob Nagar, Registered Agent Location: Sapphire Lakes, Tract L-3 Alleged Violation: No littoral plants or maintenance BCC vs. Joseph and Ida Cannistraci, Rick Johnson Individually R.A. Johnson Inc. d/b/a Rick Johnson Auto & Tire, Richard A. Johnson, Sr., Registered Agent and Richard Johnson as President of R.A. Johnson Inc., d/b/a Rick Johnson Auto & Tire Case continued from October 24, 2002 Location: Golden Gate Alleged Violation: Four landscape buffer trees were required to be planted a result of another Code Enforcement case, only one was found to be surviving and it is not in good shape. Two Carrotwood and two loquat trees along Green Blvd have been damaged by excessive pruning and still exhibit rot underneath new growth and the required landscape hedge is not present along Green Blvd and 40th Terrace adjacent to residential properties. BCC vs. Gerald K. Davidson Location: Golden Gate Estates Alleged Violation: Repeat offender of illegal land use and the repeated storage of inoperable ancVor vehicles with invalid license tags on property not approved for such use. CEB NO. 2002-027 CEB NO. 2002-032 CEB NO. 2002-026 CEB NO. 2002-033 NEW BUSINESS A. Request for Reduction/Abatement of Fines 1. BCC vs. Shad Davis Inc. B. Request for Imposition of Fines/Liens 1. BCC vs. Carl Puchhas C. Request for Foreclosure 1. BCC vs. Goings D. Others: Request for Name Change Collier Enterprises Realty Group, Inc. appealing the Planning Official's denial of a Name Change request for it's Shopping Center located at the Southwest corner of the realignment of Rattlesnake Hammock Road and Tamiami Trail East. OLD BUSINESS A. Affidavits of Compliance 1. BCC vs. Carl Puchhas 2. BCC vs. Ronald Gleichman B. Affidavits of Non-Compliance 1. BCC vs. Charles H. Goings CEB NO. 2002-009 CEB NO. 2002-018 CEB NO. 2001-076 CEB NO. 2002-018 CEB NO. 2002-020 CEB NO. 2001-076 Se REPORTS 1. Ellen T. Chadwell, Assistant County Attorney will be providing a Quarterly Foreclosure Report COMMENTS 10. NEXT MEETING DATE December 16, 2002 ADJOURN November 18, 2002 CHAIRMAN LEHMANN: I'd like to call the Code Enforcement Board to order, please. Please note, any person who decides to appeal a decision of this board will need a record of the proceedings pertaining thereto and, therefore, may need to insure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Neither Collier County nor the Code Enforcement Board shall be responsible for providing this record. May we have the roll call, please. MS. HILTON: Good morning, ladies and gentlemen. For the record, Shanelle Hilton, CEB coordinator. Peter Lehmann? CHAIRMAN LEHMANN: Present. MS. HILTON: Clifford Flegal? MR. FLEGAL: Present. MS. HILTON: George Ponte? MR. PONTE: Here. MS. HILTON: Sheri Barnett? MS. MS. MR. MS. BARNETT: Here. HILTON: Gerald Lefebvre? LEFEBVRE: Here. HILTON: Roberta Dusick has an excused absence, Rhona Saunders has an excused absence, and Kathryn Godfrey has an excused absence. CHAIRMAN LEHMANN: As we have four permanent members and one alternate, the alternate member will be voting today. If we can move on to the approval of the agenda, please. MS. ARNOLD: Okay, we have -- for the record, Michelle Arnold, Code Enforcement Director. We have a request to move Item 5(D), a request for name Page November 18, 2002 change, above the public hearing items. CHAIRMAN LEHMANN: You'd like to proceed with that first? MS. ARNOLD: Sure. CHAIRMAN LEHMANN: Okay. Any comments from the board? MR. FLEGAL: I'll wait. CHAIRMAN LEHMANN: Any other alterations? Hearing none, all those in favor of the amended agenda, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries. I'd like to move to the approval of the minutes. This is for the October 24, 2002 minutes. MS. BARNETT: Mr. Chairman, I just had one slight correction, it's the spelling of my name. There's only one R. It's S-H-E-R-I. CHAIRMAN LEHMANN: Okay. Any other changes or amendments to the minutes? Hearing none, I would entertain a motion to approve the minutes as amended. aye. MR. FLEGAL: So moved. CHAIRMAN LEHMANN: MR. PONTE: Aye. CHAIRMAN LEHMANN: Second? All those in favor, signify by saying Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries. We'll move on to Item 5(D), request for name change. (At which time, Mr. G. Christopher Ramsey enters the room.) MS. ARNOLD: For the record, Michelle Arnold. This item is Page 3 November 18, 2002 something new that's being brought to the Code Enforcement Board. You should all have a copy of the first page of Ordinance 99-76, which is the ordinance for street numbering and naming of subdivisions and projects. And along with that, you should have page 14 of that ordinance, section 17, which identifies the appeal process. And it names the Collier County Code Enforcement Board as the governing body that would hear appeals to decisions made for name changes. We have Mr. Utter here from Collier Enterprises, and he's the one that's making the request, so he'll go ahead and make his presentation. Then we also have the staff from the community development division that has been the one that conducted the review for the street name change. CHAIRMAN LEHMANN: Before we begin, if you'd like, sir, I'd like to show on the record that Mr. Ramsey has joined us. And Mr. Ramsey would be a voting member as well. MR. FLEGAL: Mr. Chairman, I need to ask a question, please. I'm a little confused. I guess I'd best direct my question to Jean. This ordinance on street numbering where the enforcement board has decided, given authority or directed or whatever to hear appeals, how does that relate to the ordinance establishing this board? 'It does not give us that authority. MS. RAWSON: This is a county ordinance, which gives you more authority than the state ordinance does. But under this county ordinance that was passed back in '99, you clearly have appellate procedure, as the Collier County Code Enforcement Board shall hear and decide appeals from the requirements of this ordinance when there's a disagreement of an interpretation, requirement or determination made by the administrative official. So you can have more powers under the local ordinance than you do under the state statute. MR. FLEGAL: Okay. Page November 18, 2002 CHAIRMAN LEHMANN: So I'm to assume that we have gone through the process where the respondent has sought administrative enactment or enforcement, has been denied, is now coming before us as a method of granting a waiver from that particular ordinance. MS. RAWSON: Well, since the -- your agenda calls this the appeal from the planning officials' denial of the name change request, I think you can safely assume that that's correct. CHAIRMAN LEHMANN: And just again, just to be clear, you are saying that we in this present condition have the authority in this very specific case to grant a waiver of the ordinance? MS. RAWSON: We have the authority under Ordinance 99-76. CHAIRMAN LEHMANN: Okay. MS. ARNOLD: You're granting not a waiver of the ordinance, but you're making a determination whether or not that decision should be modified. Decision of the administrative official. CHAIRMAN LEHMANN: Correct. I just want to be very clear that our capacity is not to grant waivers to ordinances or anything of that nature. What we are doing here is granting -- or we are basically providing a determination for the case itself, not -- MS. RAWSON: That's correct. You're determining whether or not you think that the planning officials' denial was warranted. CHAIRMAN LEHMANN: Okay. And-- go ahead. MR. FLEGAL: My only question is, is the denial, I guess, for lack of a better word, by the planning board, is that this memo that's given to it? That's all there is? MS. ARNOLD: Well, that's the memo that was just prepared and presented to the board. But we have staff here to give you a full presentation as to their determination, you know, what went into their decision-making process. MR. FLEGAL: Yeah, but there's no other paperwork like minutes from a meeting that they had with -- MS. ARNOLD: It's an administrative process. It's not a board Page s November 18, 2002 meeting. It's something that is done by staff in the community development building. MR. FLEGAL: Okay. CHAIRMAN LEHMANN: Ms. Rawson, procedurally we normally start with the county presenting its case. Is there any problem with us starting with the respondent in this case? MS. RAWSON: Maybe it would be easier if the county started, because the county can give you the background about what happened with the planning officials' denial. And I think we should probably stick to the same format, because I believe the county can give you the background before you make your decision. Then you can hear from the respondent, Mr. Utter. CHAIRMAN LEHMANN: As this is not a hearing, do we need to swear the witnesses in? MS. RAWSON: Yes. It is a hearing. It's an appeal. CHAIRMAN LEHMANN: Okay, I hear you. If we can do that. And do we have a number of witnesses that are willing to testify, or is it just one? MR. UTTER: Just one from our side. CHAIRMAN LEHMANN: From the respondent's side. From the county's side, how many? MS. ARNOLD: Just one. CHAIRMAN LEHMANN: Just for expediency, if we could swear the witnesses in right now. All the witnesses, please, if you could stand and state your name. (All witnesses were duly sworn.) CHAIRMAN LEHMANN: Thank you. And Ms. Arnold, if you could proceed with the county's side. MS. ARNOLD: We have Peggy Jarrell, who's the administrative supervisor in the addressing department here on the county's side. Peggy, if you want to -- in fact, if you could just walk the board Page November 18, 2002 through, you know, how you got this particular request and then the decision-making process. MS. JARRELL: As it stands right now, we have five Hammocks in Collier County. The ordinance states there should only be five, starting with the same name. We have six names starting with Shops in the county. And I'm sure that there's more projects starting with Shops. That's all that I have record of with the SDP process. The Hammocks -- out of the Hammocks, there are four in the East Naples Fire Department alone. There is one Shop, The Shops at Eagle Creek, which is also in East Naples Fire Department. It was under my opinion that that is for 9-1-1 criteria. There should only be five for emergency response. MS. ARNOLD: Peggy, can you just express for the board, you know, how you got the request, how you're interpreting the ordinance. So when this request came to you, what was that whole process? MS. JARRELL: When they wanted to change the name of the shopping plaza to The Shops at Hammock Cove, it was done through a sign permit. The addressing department looks at all sign permits for the purpose of duplication. That was denied, because of over-used list with the word Hammock. And that's how I arrived -- they didn't submit an SDP by the name of Hammock. The plat was recorded as Sable Bay. The shopping center was through an SDP process of CDC Shopping Center. So there was no mention throughout the planning department through the review process of anything being called Hammock Cove. MS. ARNOLD: Okay, Peggy, what criteria do you use? What part of the ordinance do you use to make a determination of whether or not something is duplicated or over-used? MS. JARRELL: Through the ordinance of 99-76. MS. ARNOLD: Well, what specifically does the ordinance Page 7 November 18, 2002 say? MS. JARRELL: Only five variations shall be permitted county-wide for names beginning with the same word, streets, like Coconut Palm Drive, Coconut Cove Drive, Coconut Wind Drive, Coconut Sway Drive, Coconut Fawn Drive. Projects: Marsh Estates, Marsh Village, Marsh Pond Community, Marsh Walk, Marsh Strand. The word Naples is the only one that's an exception to this rule. CHAIRMAN LEHMANN: For the record, you're referring to Section 13(D)(2)-- MS. JARRELL: Yes, sir. CHAIRMAN LEHMANN: -- of Ordinance 99-76, correct? MS. JARRELL: Yes, sir. CHAIRMAN LEHMANN: Thank you. Please proceed. MS. ARNOLD: Peggy has also provided you all a list. Could you explain for the board what that list is? And did you provide it to the respondent? MS. HILTON: Yes. MS. JARRELL: These are names that are throughout the county that are already over-used. So any projects that go through the planning department will reject it if they start with those names, for 9-1-1 purposes. CHAIRMAN LEHMANN: Michelle, are you looking to enter this as evidence? MS. ARNOLD: Yes. CHAIRMAN LEHMANN: Is there any other documents you wish to enter as evidence? MS. ARNOLD: The memorandum and the list of over-used project names. CHAIRMAN LEHMANN: Do we have that in front of us, or no? MS. ARNOLD: You should have the memorandum and attachment of the ordinance and the applicable pages, as well as the Page November 18, 2002 letter from Collier Land Development, Inc. CHAIRMAN LEHMANN: Okay. So I have over-used project -- over-used project names. MS. ARNOLD: Yes. MR. FLEGAL: I don't have any letter from Collier. MS. HILTON: It's in the package at the end. CHAIRMAN LEHMANN: I have an over-used project names, correct? MS. ARNOLD: Yes. CHAIRMAN LEHMANN: I have a memorandum to the Code Enforcement Board from Peggy Jarrell, dated November 13th. MS. ARNOLD: Correct. CHAIRMAN LEHMANN: MS. ARNOLD: Yes. CHAIRMAN LEHMANN: Is that the letter? We have a copy of Ordinance 99-76. I have a select number of pages here. We will enter those. Is there any other document you wish to enter into evidence? MS. ARNOLD: That's the only set of documents that we have. CHAIRMAN LEHMANN: I would entertain a motion then to enter these as Composite Exhibit A. MR. PONTE: So moved. CHAIRMAN LEHMANN: MS. BARNETT: Second. CHAIRMAN LEHMANN: aye. Do I hear a second? All those in favor, signify by saying Any opposed? (No response.) CHAIRMAN LEHMANN: Motion carries. Thank you. Please proceed. MS. ARNOLD: I have no other questions, unless you all have questions of Ms. Jarrell. CHAIRMAN LEHMANN: Yes, I think we do. I'll open it to Page November 18, 2002 MS. MR. MS. MR. county? any of the board members first, please. MR. RAMSEY: I have just one question. When you said you had this list, am I to assume that even if a project started with one of these names but what was not in an area that contained the rest of the names of that sort, for example, East Naples we have four places starting with Shop or Hammock, if the other place seeking to start with Shop or Hammock was in North Naples, would that be allowed, or simply by virtue of the fact that it has started -- JARRELL: If it's Hammock, I wouldn't approve it. RAMSEY: Then it would not be approved. JARRELL: No. RAMSEY: Regardless of the position it was situated in the MS. JARRELL: Correct, because it's within Collier County. MR. FLEGAL: Ms. Jarrell, similar type question. When you read the ordinance, the one which you read the section of, the statement is, on item three, extreme caution must be taken to prohibit any posSible similarity of building or project names along the same roadway -- MS. JARRELL: Yes, sir. MR. FLEGAL: On this particular roadway, is there any other item named, you know, Shops at Hammock Cove? MS. JARRELL: Not Shops at Hammock Cove. MR. FLEGAL: Thank you. MS. JARRELL: But we have Hammock along the same roadway for 9-1-1. MR. FLEGAL: Okay. Again, your ordinance, which you read item two, states first sentence, only five variations shall be permitted county-wide for names beginning with the same word. MS. JARRELL: Or similar sounding. MR. FLEGAL: I don't see that in item two. Show me where that is. Item two. It's very specific. It says only five variations, and Page November 18, 2002 then it says same word. road? MS. JARRELL: MR. FLEGAL: Cove. MS. JARRELL: MR. FLEGAL: Are there any same word Shops on the same Shops at Eagle Creek. Eagle Creek's a long way from Hammock Well, it's in the same fire district. It says same word, so -- okay. CHAIRMAN LEHMANN: Well, I wish to bring to my colleague's attention, the specific section you're referencing is governed by a county-wide zoning, so it doesn't have to be on the same street. It would be anything in the county. MR. FLEGAL: I'm sorry, it says, item three, prohibit any possible similarity of building or project names along the same roadway. Very specific. Doesn't say in the county, it says same roadway. MS. JARRELL: It says no street, development, building or subdivision shall bear the same name or similar sounding name as another development, building, subdivision or street in the incorporated or unincorporated area of Collier County. MS. BARNETT: Except in the following special conditions. MR. FLEGAL: Okay, keep going. What's the last part of that? MS. JARRELL: Except in the following special conditions. MR. FLEGAL: Uh-uh. Big word. Says except. MS. JARRELL: A street within a major community can bear the same name three times within that same community, as long as it's not over-used. MR. FLEGAL: I understand that. And again, it says except in the following special conditions. And item (D)(3) says you can't have similar -- possible similarity of building or project names on the same roadway. And my question was, on the same roadway is there Shops at Hammock Cove already somewhere? MS. JARRELL: No, sir. Page November 18, 2002 MR. FLEGAL: Okay, thank you. CHAIRMAN LEHMANN: I think we're getting a little bit too detailed in the code. If you read the first paragraph of the code, it basically is saying that listen, here's the rules: No street, development, building or subdivision shall bear the same name or similar sounding name as another development, building, subdivision or street in the incorporated or unincorporated areas of Collier County, except for the following conditions. So everything listed below is an exception to that rule. The rule is very broad. The exceptions are relatively narrow. The exception allows for only five variations on a county-wide basis, period. I don't see how the issues that you're raising bring up any loophole on that basis, as far as I'm concerned. Any other comments from the board? Any other questions for the witness? MR. PONTE: Is your major concern the response by the East Naples Fire Department? MS. JARRELL: Yes, sir. MR. PONTE: And how many of these similar sounding names are within the response area for the fire department? MS. JARRELL: Five. MR. PONTE: Total of five of both categories or five of each? MS. JARRELL: Five. Four in the Hammock and one in the Shops. MR. PONTE: Thank you. CHAIRMAN LEHMANN: Any other questions for the witness? Thank you. Is it Mr. Utter? MR. UTTER: Yes, sir. CHAIRMAN LEHMANN: If you'd like to proceed. MR. UTTER: For the record, my name is Pat Utter. I work Page November 18, 2002 with Collier Enterprises. I'll tell you just briefly how we ended up where we are today. We submitted our name for the shopping center -- or we were required to submit a name over a year and a half ago when we initially submitted our site development plan. At that time we did not have a name selected, but it was a requirement, so we ended up placing -- the CDC Shopping Center was the name -- CDC just stands for Collier Development Corporation -- knowing that we would change the name in the future. Once we had a name selected, about three months ago, we submitted a sign design for permitting, and it was turned down by Peggy because of the -- because of the different names that had some similarity. There seems to be five or six of each of the different names. So from there we asked Peggy if there was an appeal process. She said we could go to the head of the planning department. There's a lady named Margaret; I don't know her last name. But we asked Margaret, and she initially said yes, that she would allow our name, and then the head of the -- the head of development services then said no. In the ordinance only your board can overturn questions that regard the name -- similar type sounding names. Let me show you first what we're asking for and then I'll try to explain why we think it's reasonable to ask for this decision. MS. RAWSON: There is a packet in your-- there's a bunch of materials in your packet in the back that we probably should introduce into evidence for the respondent. CHAIRMAN LEHMANN: Thank you. Mr. Utter, what I have, and if you'd verify that this is the information you wish to enter. I have a letter from the Collier Land Development Corporation dated November 12th; is that correct? We have a graphic; is that part of that? Okay. Another graphic. Third graphic. Page ].3 November 18, 2002 MR. UTTER: Correct. CHAIRMAN LEHMANN: All right. And that's the package you wish to enter? MR. UTTER: Is there an aer-- there should have been an aerial photo. CHAIRMAN LEHMANN: I apologize, yes, there is an aerial. And I've gotten it lost in my package. All right. And you wish to enter that into evidence as Respondent's Exhibit A? MR. UTTER: The only addition, I have a large plan that I could not produce for all of you that shows the different names, where they are within the county. We stated in the letter we were going to bring that. I brought it with me. It shows where the fire substation is, and it tries to show you graphically where these different names are. CHAIRMAN LEHMANN: Okay. The comment that my colleague was just referring to is if we entered that as evidence as a package, you'd have to leave that. I'm not so sure you want to do that. But you can certainly present -- MR. UTTER: As long as I can show it to you. CHAIRMAN LEHMANN: Yeah, you can certainly present it in your testimony. Again, I don't mean to guide you, but is this what you were trying to enter as -- MR. UTTER: That's what I'm trying to enter, yes, sir. CHAIRMAN LEHMANN: I would take a motion -- or entertain a motion that we enter this as Respondent's Composite Exhibit A, the evidence package. MR. PONTE: So moved. CHAIRMAN LEHMANN: MR. FLEGAL: Second. CHAIRMAN LEHMANN: Ponte, second from Mr. Flegal. All those in favor, signify by saying aye. Do I hear a second? Okay, we have a motion from Mr. Page November 18, 2002 Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries. Mr. Utter, if you'd proceed then. And I apologize for the delay for housekeeping. MR. UTTER: No problem. This is the large aerial that you have. It's -- this one's slightly differently; very similar, though. This is a graphic of our ownership within the East Naples area. It's a project formerly known as Sable Bay. It's a 2,600-acre development. And we're currently pursuing a commercial development which is in the white area, which is at the comer of Thommason Drive and U.S. 41. And it's approximately 100 acres. We currently have a Publix that's scheduled for a CO this week and will be opening in about two or three weeks. CHAIRMAN LEHMANN: Mr. Utter, you might want to place it up on the board, just to make it convenient for yourself. MR. UTTER: Okay. This is just to show -- I brought this graphic in just to show the size of our residential project. What we're asking for is to name the shopping center The Shops at Hammock Cove and to place a sign on the comer of each of-- where Thommason Drive intersects U.S. 41 that says Hammock Cove. And I provided the two signs that we'd like to add those names on. You have -- another graphic you have in your package shows our commercial development. This is the -- it's just a sketch of what it may look like in the future. We have -- like I say, we have currently constructed the Publix shopping center, which will be opening in a few weeks. And these signs that you see, one of the pylon signs for Publix has been erected. Currently it does not have a name on it. It's blank. And we'd like to add The Shops at Hammock Cove to it. And there's a sign at 41 here. There's also a sign here. Those Page November 18, 2002 are the two pylon signs. The additional sign you see that says Hammock Cove with brick is intended to be placed on the comer at U.S. 41 and Thommason Drive. Again, and then to touch on the ordinance briefly, it says that -- it does mention that these names, there can be exceptions, if they're not on the same street. Our address is 4370 Thommason Drive, and there are no Shops or Hammocks on Thommason Drive. Beyond that, it talks about projects, and it says that there can't be five named projects with similar sounding names. And I'm going to show you a map now of where these projects are that the county's given you a list of. You may not be able to see the colors. The blue pins are showing the word Shops. There's -- these are the Shops, the blue down here. Our project is right here. This pink area is our project. This red pin is where we're asking for the name for these two different signs. The white pins show what the county's calling projects with the name Hammock. And the reason I say they call them projects, this is the Hammock Commerce Center, which is a vacant piece of land. There's absolutely nothing on it. There is some zoning, there's a PUD approved on that that has the name Hammock in it, but there's nothing existing there currently. There's another project here, it's called Hammock of Naples. It's a -- I have a photograph of that, which is -- it's a rundown old house on 24 acres, and it has a big for sale sign on it. There's no active structure on that at all at this time. There's one project here that's an apartment complex, or maybe a condominium. It's about 40 units. I have a picture of that as well. And it is called The Hammocks, and it's on Rattlesnake-Hammock Road. The other Hammock that's mentioned is Hammock Station. I Page November 18, 2002 couldn't even get it on the map, it's so far out. It's towards Everglades City. It's at the comer of U.S. 41 and State Road 29. There are no signs, I am told. I'm not even sure what kind of project it is, but it's -- I think it's more of a historical area rather than a project. Those are the four that are in the East Naples Fire District. But within the East Naples Fire District, there are many substations. The substatiOn that serves our project is shown here in Naples Manor in the yellow pin. And within the Naples -- within that substation district, the only two Hammocks are The Hammock of Naples, which is the condominium project, and this -- I'm sorry, this is The Hammocks. And then The Hammocks of Naples, which looks like a rundown old tree farm with a single residence that doesn't seem to be occupied. So there's only two Hammock projects within the substation boundary. And one is -- it's hardly a project that I would call. If we want to talk about Shops, which I don't think shops is a significant word, but there's a number of Shops in town, plazas, there's a number of shopping centers. I'm sure if we tried to find those, there's hundreds of names that are similar. But typically in Shops, I think you're going to remember the significant word, not Shops. It's going to be Waterside Shops or it's going to be Eagle Creek or it's going to be a name that's significant. You could say that "the" in front of developments is also a common word, but obviously that's not going to make someone confused about where to respond in an emergency call. The other shops are -- there is a shop, Eagle Creek is here. There's the Santa Barbara Shoppes. And there's a couple of other Shops that are a long distance from our project. And generally I think our thought is that the word project does not define these other areas that are causing conflicts with the name Hammock, and we think that's the significant word in our name. And Page November 18, 2002 that the word Shops, there's only one that's within our area, and we don't think Shops is a -- something that would confuse a 9-1-1 response time. Beyond that, the substation that serves us only has two within our substation. And then the last thing is the size of our development is -- it's the largest commercial development in the area, being 100 acres. And it's also attached to a major subdivision that will be built in the future. At this time, that's all the comments I have. I'll take some questions, if you have any. CHAIRMAN LEHMANN: Any questions from the board? MR. FLEGAL: You submitted two names, two graphics: The Shops at Hammock Cove and then another one that just says Hammock Cove. My understand -- are you asking for us to approve both of those? Is this -- MR. UTTER: Correct. We'd like to place a sign at the comer that says Hammock Cove, and then the pylon signs that are immediately behind it would say The Shops at Hammock Cove. That's what we're asking. MR. FLEGAL: Okay. I-- MR. PONTE: Ms. Rawson, I need to ask you a question. Are we -- we're certainly not in the business of naming shopping areas. It is our business rather just to decide whether or not to overturn the decision by the county in denying this request for names; is that correct? MS. RAWSON: That is correct. And the requested project name, Shops at Hammock Cove, is the one that was denied. MR. FLEGAL: I was going to ask the county. That's all I see, so I don't know where the quote, unquote, just straight Hammock Cove is coming from. MR. UTTER: That was in our letter petitioning to the board, it Page November 18, 2002 was listed. MR. FLEGAL: But this board has only been told that the denial is the word Shops at Hammock Cove. So -- MR. UTTER: I think that's correct. Because I don't think there has been a permit submitted for that name. MR. FLEGAL: So -- CHAIRMAN LEHMANN: Ms. Rawson, let me ask you a real quick question. In Ordinance 99-76, section 13, which is what we have constantly been talking about, in subsection D of that we talk about similar sounding (sic) shall be determined to -- using the following parameters. And to back up again, the main text of this section basically states that no street, development, building or subdivision shall bear the same name or similar sounding name as another development, building, subdivision or street in the incorporated or unincorporated area of Collier County, except in the following special conditions. So everything we talk about now is an exception to that rule. My question is under section D we have three items. Are (sic) those items be considered in the context of"and" or "or"? In other words, do I have to comply with each of those three conditions for the exception to take precedence, or do I comply with only one of those sections for it to take precedence? MS. RAWSON: Because it says using the following parameters, and parameters has an S on it, there is no "or" anywhere in the language. So my interpretation would be that it would be all three. CHAIRMAN LEHMANN: So I must comply with all three in order for the exception to be applicable. MS. RAWSON: That would be my take, since you don't have the word in the ordinance. CHAIRMAN LEHMANN: Okay. Any other questions from the board? Page November 1 $, 2002 Okay, Mr. Utter, I'd like you to have a seat, 'if you would, please, and I'll open it up for -- close the hearing portion and open it up for board discussion. MR. FLEGAL: I'd like to ask Ms. Rawson a question along the line that you asked. If all three items in D are to -- apply, I guess is maybe a bad choice of word, but the only one I can think of. Item one talks about roadways, so this isn't a roadway. MS. RAWSON: No. What you're -- what item D there says is you're going to decide whether or not it's similar sounding, and you're going to use these parameters. The first one has to do with roadways and the second one has to do with names, and the third one has to do again with similarity of project names and building names. So all three of those are not going to apply to one specific instance. But what you're going to do in determining whether or not -- this exception is something that you need to look at as you're going to consider all of those parameters. This is not a roadway we're talking about. So you're going to look at two and you're going to say well, does it begin with the same word, and you're going to look at three and say is it too similar to some other project along the same roadway, as you pointed out earlier. MR. FLEGAL: Thank you. CHAIRMAN LEHMANN: Any other comments from the board, or questions for the witnesses? MS. ARNOLD: I think Jennifer Belpedio wants to ask Peggy Jarrell a couple more questions, if she can. MR. FLEGAL: We're reopening the hearing now? CHAIRMAN LEHMANN: We'll reopen the hearing section to listen to this. Mr. Utter, if you would like to cross-examine the witness or ask any questions back, you have that opportunity. MS. BELPEDIO: Jennifer Belpedio, assistant county attorney Page 20 November 18, 2002 with the Collier County Attorney's Office. Peggy, I just want to ask you a couple of questions for clarification. When you typically review the sign permit applications that are forwarded to you from sign and permitting, do you pull any files or do any research to determine the names that exist in the county? And if so, what do you do? MS. JARRELL: I will pull all projects that are starting with that name to make sure that it isn't a duplication. MS. BELPEDIO: How do you do that? Does your office keep a running file of these items? MS. JARRELL: Yes. MS. BELPEDIO: Did you pull the files for these particular named places that you referenced in your memo? MS. JARRELL: Yes. MS. BELPEDIO: Would you be able to tell me what The Hammock at Lely is, what exactly that is? MS. JARRELL: It's a condominium housing project. MS. BELPEDIO: How about Hammock Bay at Marco Shores? MS. JARRELL: That was Marco Shores, that subdivision. They renamed it to Hammock Bay, which is a very large project. MS. BELPEDIO: How about Hammock of Naples? MS. JARRELL: That's a condominium. It's a small area and it may not be utilized at this time, but if they wanted to come in and rebuild it, that name's also reserved with that SDP. MS. BELPEDIO: Tell me about the reserve process, what does that mean? MS. JARRELL: That's when they come in through an SDP process and they come to my office to reserve that name for their project. That's the reason why, Hammock Isle and Hammock Park Commerce Center isn't built as of yet, but it is on our reservation for when they do start their building process. Page November 18, 2002 MS. BELPEDIO: Could Collier Land Development have reserved a name? MS. JARRELL: Yes, they could have. MS. BELPEDIO: How far in advance does one reserve a name and is able to with the county? MS. JARRELL: They usually try to do it before they even submit the petition to the planning department. There's an addressing checklist that has to be filled out by the petitioner and has to be approved and signed by the addressing department, which that, sometimes they list their names on that. We can't reject that addressing checklist, but if we see a name that's going to be used for that type of petition, we will make a note on that addressing checklist, this is over-used, it's a duplication, so that they know in advance before they submit their package to the planning department. MS. BELPEDIO: Now, I'm about halfway down this list. I believe we stopped off at Hammock Park Commerce Center. What did you say that was? MS. JARRELL: It's going to be an office park. MS. BELPEDIO: Okay, how about Hammock Station? MS. JARRELL: Hammock Station is on the comer of 29 and Tamiami Trail East. It is a restaurant, a gas station, an oil -- an oil place. That's how they submitted the SDP for that. It was called Hammock Station. They don't have a sign that's up that says Hammock Station, but that's how the SDP package was submitted to the planning department. That's the reason why I allowed more than the five' originally, which made Hammock over-used, because they don't have a sign up stating that. But it is an SDP name. MS. BELPEDIO: How about Shoppes of Pebblebrook Plaza? MS. MS. MS. MS. JARRELL: That's a shopping plaza. BELPEDIO: How about Shops at Imperial Plaza? JARRELL: The same. BELPEDIO: Shops at 9517 Page 22 November 18, 2002 MS. JARR~LL: That's a shopping center. MS. BELPEDIO: And forgive me for asking the obvious -- MS. JARRELL: They are all. MS. BELPEDIO: -- Shoppes of Santa Barbara, Shops of Marco and Shops at Eagle Creek. MS. JARRELL: Correct. MS. BELPEDIO: I have no other questions. Thank you, Peggy. MR. UTTER: Excuse me, I do have a couple of questions of Peggy. She -- could you define what a project is for me? MS. JARRELL: A project can consist of-- MS. BELPEDIO: I'd object to that. There's no reference of project in the applicable provision. What's mentioned is street, development, building or subdivision. Maybe the gentleman can point out to me where the project is. MR. UTTER: It goes on to project in two -- at the end of two it says projects as an example. Marsh Estates, Marsh Village, Marsh Pond Community. But development is fine. Development, project. What would you consider are -- or is there a definition of what a development or a project is, with relation to this ordinance? MS. JARRELL: Through an SDP process or a platted subdivision. MR. UTTER: So your names that you pull, that you cross-reference, are from platted subdivisions or SDP's? MS. JARRELL: Correct. MR. UTTER: And you mentioned that -- you made an exception because the Hammock Station did not have a sign; is that correct? MS. JARRELL: Not calling it Hammock Station. MR. UTTER: Okay. And the Hammock Park Commerce Center, is there a sign on that project? MS. JARRELL: That's still in the preliminary status, but they Page 23 November 18, 2002 did reserve that name, sir. MR. UTTER: How long ago was that reserved? MS. JARRELL: They submitted the approval of the PUD, and that was done 12-22-2000. MR. UTTER: Okay. And then The Hammock of Naples, you mentioned that's a condominium project. I have a photograph of this, and it doesn't resemble a condominium project. It looks like it has a rundown old house on it and it does have a sign. Is the name just relative to the SDP? MS. JARRELL: Correct, which was approved in 1990. MR. UTTER: In 1990. So it was over 10 years ago. It currently has a for sale sign on it and doesn't appear to be an active development for-- CHAIRMAN LEHMANN: Mr. Utter, let me interrupt you just one second. It doesn't matter whether it's an active project or not, as long as it has SDP approval, then it's considered reserved. MR. UTTER: Okay. All right, I have no further questions then. CHAIRMAN LEHMANN: Any questions from the board for the witness? MR. FLEGAL: Not for Peggy, but I have one for Mr. Utter that's -- CHAIRMAN LEHMANN: Okay. MR. FLEGAL: The exhibit you submitted to us from Collier Land Development talks about changing a name from Sable Bay Shopping Center to The Shops at Hammock Cove. And the county has denied a request for, in their parenthesis, Shops at Hammock Cove. What is the name that you -- what is the name? Is it The Shops at Hammock Cove or Shops at Hammock Cove? MR. UTTER: We would do either. But the design of the sign, I think it shows you graphically what we had anticipated. But we could easily put a "the" in front of it, if that would -- Page 24 November 18, 2002 MR. FLEGAL: I'm just trying to get a coordination here. MR. UTTER: If you'll look at the two signs that we submitted, those are the two -- that's really what we're requesting. We want to build two different signs, one that says Shops at Hammock Cove, and one that says Hammock Cove, and the two signs we provided to you. MR. FLEGAL: Okay, The Hammock Cove, unfortunately we're not interested in. We're really interested in your other one. And I'm just trying to clarify your piece of paper versus their piece of paper. Did somebody leave a word out, or-- MR. UTTER: It's possible. I mean, sometimes when you say you'll just put a "the" in front of a project, but Shops at Hammock Cove -- MR. FLEGAL: Is what you're looking for. MR. UTTER: -- is what we're asking for. MS. BARNETT: Has Sable Bay Shopping Center already been approved at one point in time and we're trying to change it? Because Sable is also on the list as incorrect -- over-used. MR. UTTER: It was originally -- the original SDP read CDC Shopping Center, and so it was not -- Sable Bay is an old marketing name. I don't think it's actually a project name anywhere. It may have been a project name. But our DRI is called the CDC DRI, and the plat was recorded as the Sable Bay Shopping Center, Sable Bay Commercial Phase I. That's the plat. But the plat is not the -- the shopping center is a parcel within the plat. MS. BARNETT: Okay. So if I'm understanding that correctly then, Sable is also an over-used word, so therefore -- MS. JARRELL: I approved Sable Bay for the plat. Sable Bay Shopping Center was never in the picture, as far as that part of it goes. It was always submitted as CDC Shopping Center, and then the plat was recorded as Sable Bay Commercial Phase I. And they also have Phase II for a plat. MS. BARNETT: But Sable's on your list of over-used words, Page 25 November 18, 2002 right, that it was -- MS. JARRELL: Because of Sable Bay, correct. CHAIRMAN LEHMANN: Ms. Jarrell, does the term "the" have any relevance in a name? MS. JARRELL: No. CHAIRMAN LEHMANN: Thank you. MS. JARRELL: There's too many shopping plazas that start with "the". I don't even count that part of it. CHAIRMAN LEHMANN: Thank you. Any other questions from the board? If you'd have a seat again, we'll close the hearing again and open it for comments from the board. Hearing no comments -- I'm sorry, did you have a comment? MR. PONTE: Well, I'd like to make one. I think we just have to take some cognizance of the size of this development project. And if the purpose is to provide easy directions to the sheriff's department or the emergency management's department or fire department, whatever, I would think that that would be quite obvious to a dispatcher that you're not talking about Hammock Station if you call someone to go to The Shops at Hammock Cove. It will be a -- it's a 100-acre project. It's not going to be misunderstood. And I think we have to just take that into recognition when we deliberate this. CHAIRMAN LEHMANN: Now, what if-- and I don't mean to be facetious, but what if the transmission was garbled through a cell phone or something like that and the only word that came out was Hammock? MR. PONTE: What bothers me even more is the location is Thommason Drive and not U.S. 41. I find that strange. I'm not quite sure what they were trying to separate, but I think that would be confusing. Everybody ending up at Dell's. MR. FLEGAL: I guess along with my two colleagues, I agree with George, that I think when you talk about Shops at Hammock Page 26 November 18, 2002 Cove versus Shoppes at Pebblebrook, if you don't know the difference between the word Hammock and Pebblebrook, you shouldn't be a dispatcher, I'm sorry. If you don't know the difference between Hammock and Santa Barbara, you need help. Peter, as for garbled, again, you're dealing with something that Shops at Hammock Cove, the word "Shops" isn't going to send a rescue unit anywhere, because shops what? It has to be shops somewhere. I think Shops, again, at Hammock Cove means something specific versus Santa Barbara, Pebblebrook, Eagle Creek, 951. The word "Shops" I don't think is the prevailing word that's going to send anybody anywhere. I'm sorry, that just doesn't sound logical. CHAIRMAN LEHMANN: Well, that's not what we were referring to. We were referring to Hammock. MR. FLEGAL: Well, and-- but Hammock-- CHAIRMAN LEHMANN: But I understand what your comments are. MR. FLEGAL: The ordinance doesn't say all words. The variations are only permitted for names beginning with the same word. And the county has picked the word "Shops". So Hammock Cove doesn't enter into the equation under the ordinance. We're worried about the word "Shops", and I don't think that's significant, personally. CHAIRMAN LEHMANN: Well, I think the code is actually very clear on this. And quite frankly, I agree with staff, that we do have an over-use of the name of Shops. Seems pretty black-and-white to me, quite frankly. MR. RAMSEY: Well, you know, if we look in the section that talks about similar sounding, in a three -- I'll call it a three-prong test for a lack of better description, obviously roadways doesn't apply. Five variations, I mean, I think we heard testimony from one witness that an additional variation was allowed because it didn't Page 2 7 November 18, 2002 have a sign. So it would seem to me that there's some flexibility in that -- perhaps not in the ordinance but certainly in practice there's some flexibility in that approval. And caution must be taken to prohibit the possibility of project names along the same roadway. This is not on the same roadway. So, I mean, as far as clarity, you know, I don't think it's on the same roadway. Thommason-- I would agree with our colleague that Thommason may be even more confusing than the name of the shop itself. MS. BARNETT: I think I'm going to have to agree with a couple of my other colleagues, that I think that it does specify the general area that it's going to be attached to. And I don't think there's going to be as much confusion as people are projecting because of the use of the same word. I do know that in dispatching, it comes out in a written form as well as over an intercom. So, I mean, it would be very clear to the fire department as far as the dispatch goes. CHAIRMAN LEHMANN: Well, the important part for me is where in the code does it say that we have made a mistake in categorizing this as they have done? Where in the code does it allow me to have five or six or seven names? The code here is basically saying there's only five variations permitted county-wide, and we already have six. Granted, we have a precedence where a sixth has been given. But again, just because we broke the rules one time doesn't mean we need to keep breaking them thereafter. I'm just not convinced that we have something that is substantially different than what the codes are saying. MR. PONTE: Well, we don't really have six, we have four that are active, two that are inactive, and one that is at great distance. CHAIRMAN LEHMANN: Activity has nothing to do with it. MR. PONTE: Well, if-- CHAIRMAN LEHMANN: It's a reserved name. Page November 18, 2002 MR. PONTE: -- if on the testimony from the county the importance of this was to assist emergency vehicles in arriving at the proper scene so there would be no confusion there, then it does. MR. FLEGAL: I'd like to ask Ms. Rawson a question. MS. RAWSON: Yes, sir. MR. FLEGAL: I need an education. Word shops, S-H-O-P-S. Shoppes, S-H-O-P-P-E-S. Same word? MS. RAWSON: I don't think so. But if I were you, I would ask the planning officials how they construe it. MR. FLEGAL' I'm asking you, because -- MS. RAWSON: In my opinion, it's a different word. MR. FLEGAL: Okay, mine, too. I didn't make A's in English, but I do know how to spell. And the item in the ordinance, as Peter suggests, is very specific. I don't care whether it says, you know, county-wide. You must read more than one word. It says beginning with the same word. Make your English language "shops", S-H-O-P-S. There are only four of them. So we're allowed to have at least one more, as far as I'm concerned. CHAIRMAN LEHMANN: Well, again, on this section that we're talking about, and for the record, section 13(D)(2) that we're referring to constantly, as my colleague states out, it specifically states only five variations shall be permitted county-wide for names beginning with the same word. But again, subsection D specifically states that similar sounding shall be determined using the following parameters. So we're defining what those parameters are. I guess the question before the board boils down to does the word shops, S-H-O-P-S, sound similar to shoppes, S-H-O-P-P-E-S. And again, it's a definition of the code. I'm having -- you know, it seems like the code seems to be very specific, but obviously I'm wrong. MR. FLEGAL: I think what you're missing, Peter, is similar Page November 18, 2002 sounding, it says use the following parameters. And that's where you get in the same words. And this isn't the same word. I don't know, I think the ordinance is straightforward. CHAIRMAN LEHMANN: Well, Jean, you're obviously saying we have two different words in the context of the code as we're reading it; is that correct? MS. RAWSON: That's my opinion, that they are two different words. But-- CHAIRMAN LEHMANN: Then I would have to defer to that. MS. RAWSON: -- you have the ordinance in front of you. And the nice thing about your job is you get to interpret it. MR. FLEGAL: Thanks. All this for free, too. CHAIRMAN LEHMANN: Any other comments? Hearing none, I will now'entertain an order of the board, a motion for an order of the board. MR. FLEGAL: Ms. Rawson, since this is our first venture into this, do we issue an order or do we make a -- what is it we do? Is it an order? MS. RAWSON: I think it's going to be an order. I'm not sure exactly how it's going to be written yet, but I think it's an order. MR. FLEGAL: And is it the order along the lines of-- MS. RAWSON: I think it's an order whether or not in your appeal of the planning officials' denial of the name change you either concur with the planning officials' denial, or you don't concur and basically you overturn the denial. CHAIRMAN LEHMANN: Right. MR. FLEGAL: Okay. That being the case, I guess I would make a motion that the board overturn the denial of the county and let the requested name Shops at Hammock Cove stand. CHAIRMAN LEHMANN: Do I hear a second? MR. PONTE: I'll second it. CHAIRMAN LEHMANN: Comments? Page 3o November 18, 2002 Again, based on what Jean is unfortunately telling me, all those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Motion carries unanimously. Mr. Utter? Mr. Utter, do you understand the order of the board? MR. UTTER: I do, thank you. Appreciate your time. CHAIRMAN LEHMANN: Thank you. Okay, we will move to public hearings. This will be the case of BCC versus Maxwell of Naples Corporation-- MR. FLEGAL: Do we have any -- CHAIRMAN LEHMANN: We don't have any motions -- and Jacob Nagar, Registered Agent. Case No. 2002-027. MS. ARNOLD: For the record, Michelle Arnold. We have two cases noted, and we'd like to hear both cases together, because all of the information and site visits and the like are similar, were taken together. So we're going to be hearing both 2002-027 and 2002-032 together. CHAIRMAN LEHMANN: Okay. MS. ARNOLD: And we do -- I just wanted to note for the record also that we do have a registered speaker representing the association on this particular item. CHAIRMAN LEHMANN: Ms. Arnold, we had a paper that was given to us. Do we have any motions at all? MS. ARNOLD: No motions. CHAIRMAN LEHMANN: No motions. Okay, thank you. MS. RAWSON: Mr. Lehmann, I think you should vote to whether you want to hear them together or not, which probably is a very good idea. But we do need two orders. CHAIRMAN LEHMANN: That's correct. We'll word the orders separately. We'll continue to do so, then. All those in favor of hearing both Page November 18, 2002 cases, 027 and 023 (sic) simultaneously, I'd entertain a motion to do SO. MR. FLEGAL: So moved. CHAIRMAN LEHMANN: Do I hear a second? MS. BARNETT: Second. MR. LEFEBVRE: Second. CHAIRMAN LEHMANN: We have a motion and a second. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries. We'll hear both cases at the same time. Ms. Arnold, if you would proceed. MS. HILTON: Good morning. Our case number, as we just went over it, is Board of County Commissioners, Collier County, Florida versus Maxwell of Naples, Corp., and Jacob Nagar as its registered agent and president, and we'd like to add Jacob Nagar personally. At this time -- it's Case No. 2002-027, and 2002-032. At this time, I would like to ask if the respondent is present in the courtroom. CHAIRMAN LEHMANN: Do we have a registered agent for Maxwell of Naples Corporation? No one at all? Okay. MS. HILTON: We have provided the board and the respondent with a packet of information we would like entered as Exhibit A at this time for both cases. MR. FLEGAL: So moved. CHAIRMAN LEHMANN: Do I hear a second? MS. BARNETT: Second. CHAIRMAN LEHMANN: We have a motion and a second. All those in favor, signify by saying aye. Any opposed? Page 32 November 18, 2002 (No response.) CHAIRMAN LEHMANN: Motion carries unanimously. Please proceed. MS. HILTON: All right. Mr. Nagar did receive it certified mail. The alleged violation is of Ordinance 91-102, as amended, section 3.5.7.2.5 of the Collier County Land Development Code, and Excavation Permit No. 59.451, section: Littoral Planting Plan. The description of the violation: No littoral plants other than cattails observed in the lake. Requirement is 80 percent of the required plantings, of which eight percent of lake banks -- specifically 186 linear feet, for Tract L-4, and eight percent of lake banks, specifically 155 linear feet for Tract L-3 -- to survive three years to ensure establishment and then for the littoral shelf to be maintained as a functional component of the lake. Location of violation: Sapphire Lakes, Unit 2, Naples, Florida, more particularly described as Folio No. 72605001953, Sapphire Lakes, No. 2, Tract L-4; Sapphire Lakes, Unit 2, Naples Florida, more particularly described as Folio No. 72605001856, Sapphire Lakes No. 2, Tract L-3. Name and address of owner where violation exists: Maxwell of Naples, Corp., Jacob Nagar, registered agent, 8001 Radio Road, Naples, Florida, 34104. Date violation first observed: February 13, 2002. Date owner given notice of violation: March 7, 2002. Date on which violation was to be corrected was June 7, 2002. Date of reinspection: September 24, 2002. Results: Violation remains. At this time, I would like to mm the two cases over to the Code Enforcement Investigator Alex Sulecki to present the cases to the board. CHAIRMAN LEHMANN: If you could swear the witness in, Page 33 November 18, 2002 please. (All speakers were duly sworn.) MS. SULECKI: Good morning, Mr. Chairman, board members. CHAIRMAN LEHMANN: Morning. MS. SULECKI: Okay, my duties have changed somewhat in the past year to concentrate on planned unit developments to make sure they're keeping their environmental commitments. And generally this means that they have removed the prohibited exotic plants from their open space preserve areas, and that they have planted and are maintaining littoral plantings. Some people call it littoral. Littoral. These are native aquatic plants at the edge of the lake, and they're required to be planted there when places are excavated. I receive memos from the planning department staff who visit and assess the PUD's on a yearly basis. If they find a problem, they refer it to me for enforcement. In February, 2002, I received a memo from the planning department, stating that Sapphire Lakes' PUD was out of compliance; specifically, they had no littoral plantings in their lakes, and they had exotics throughout the preserves. I opened cases on both violations. The exotics violations have been abated by the master association, and the other -- there are some other lakes, this lake and this lake, have been abated by the owner. This lake and this lake were constructed prior to the requirements for littoral plantings, so they don't have any. So I was focusing on Lake L-4, right here, and Lake L-3, right here. In March, 2002, I met with Jacob Nagar, who's a registered agent, director and president of Maxwell of Naples Corporation, the entity holding title to the lake parcels. I personally served him with a notice of violation and order to correct, again explaining the violation and citing Ordinance 91-102, amended, section 3.5.7.2.5, which is your page 14. This section defines the requirements for a specific Page 34 November 18, 2002 minimum amount of littoral vegetation, and tells you where and what to plant and discusses how cattails are to be addressed. They're considered to be an undesirable species, and they don't count towards the required littoral vegetation. Modification to that permit in 1996, which is your page 16, clearly states in the stipulation section on number three that the lake littoral zone shall be created and planted as indicated on the plan of record. The plan of record is over here. North, the south. This is Lake L-4 and Lake L-3. And there are some calculations on the side that are highlighted that show how many linear feet were required of littoral plantings, and these are the sections where the littoral plantings were supposed to be planted. This is another section of that plan that describes exactly what -- or how it will be planted. Shows a typical lake section and a list of plants. Okay, why are littoral plantings important? The reasons given in the code section cited, include performing functions, mimicking natural Systems to improve water quality, to filter and clean runoff from lawns and parking area, to buffer shoreline erosion, to naturally control exotic plants, and to mimic other natural functions such as used by wildlife or habitat. I don't know how many of you caught this in the paper on Saturday. It was put in there as kind of an irony, because its name is Brynwood Preserve -- oh, wait a minute, there's the preserve, okay. This is what happens when people develop these properties. And so one of the very important functions of the plantings around these lakes is habitat. Because as you can see, every -- almost every speck of it is removed in the development process. It's not the same habitat that was taken off. It's kind of-- it's different animals. But perhaps they're ultimately more compatible with people, fish and birds. Page 35 November 18, 2002 Okay, here, I have some pictures of what it's supposed to look like, to give you an idea. These were taken at all different places around the county. And they all look a little bit different, but they're beautiful. What we're looking at here is the littoral zone, is this vegetation all surrounding the lake. So you've got some different plantings in there and some cypress trees. Gives habitat for birds and fish. Here's some different kind of vegetation. You can see it a little more clearly in the foreground here, but it goes all the way around the lake like that. Here's a little different look. You can see the vegetation all along this side. The idea is for the stuff that was -- is put in after excavation to be a starter, and for the lake bank to ultimately be totally taken over by these plantings. It takes some time. And you might have spots on the lake that aren't full of vegetation, but most of it should be. That's the concept. Okay, here are the lakes at Sapphire Lakes. L-3, which is the top lake -- or the bottom lake. No littoral vegetation. This is the north end of the lake. There's a little bit of cattails there. In fact, they're exactly in the spot where the original vegetation was supposed to be planted. This is L-4, the northern lake, looking north. You can see the lake bank. There's probably a five-foot fluctuation, seasonal. And that's looking south on the same lake. There are some cattails up there in the bottom comer down here. They are around the northern fringe of that lake. Well, I gave Mr. Nagar three months to put littoral plantings in, because we were speaking about it in March, and summertime is a better time to plant them, due to the fluctuations in the lakes. I spoke to Mr. Nagar again in April to assess his progress. At that time he told me he was working with a contractor. Well, that Page November 18, 2002 didn't pan out. Later that month I spoke to him again and told him that because I had given him so long to do it, that extensions were not going to be likely. So I really wanted to keep that fire going under him. Then I spoke with another contractor and even provided him a whole set of plans, a plant list, and that didn't pan out either. A visitation in May showed no work started, and it became impossible at that time to reach Mr. Nagar. Cell phone numbers kept changing. At that time I sent and posted a CEB warning at the property, both lakes, at the courthouse, and at a unit where I was told that he stays. And I did see a car out in front of that unit that was titled to someone with his last name, so I have an idea that he received it at that time. Finally, in September I sent a message through a business partner that we were going to CEB, and I received a phone message from him, stating that the master association was responsible. He left no return number. Well, I had already been down that road. I had been talking with the master association and the property manager all along in this case, and they didn't want to do the work, since it had been Mr. Nagar's responsibility for development, and because they didn't hold title, legal title to the lakes. On your page 25, we had-- county staff had done a search of public records and determined that. A site visit in November showed no littoral plants installed and no further contact from Mr. Nagar. I'm recommending this morning that Mr. Nagar be ordered to pay all operational costs and abate the violations on both lakes by planting the required littoral plantings and maintain them, as long as he owns the property, or impose a fine of $100 per day each day the violation continues. And because the property will be eventually turned over to the Page 37 November 18, 2002 master association, and fines may go with it if it goes on the property, I'd like to ask that the order attach fines to Mr. Nagar individually and personally. CHAIRMAN LEHMANN: Any questions for the witness? MR. PONTE: Yes. Alex, in reading the executive summary, I've been a little confused. So by way of clarification, has there been any explanation from anyone as to why Mr. Nagar first agreed to plant and then later shifted or attempted to shift the responsibility to the master association? MS. SULECKI: Well, no direct explanation, but at the time I originally approached Mr. Nagar, he was still in control of the master association. And there was a turnover between when I initially started the case and today. MR. PONTE: Okay. In your opinion, does the master association have the responsibility here? MS. SULECKI: Not at this time, because they don't actually own the lakes. They're eventually going to hopefully have them turned over to them and have to maintain whatever is in there, but it should be turned over in a state that's legitimate and in compliance. CHAIRMAN LEHMANN: Ms. Sulecki, do you have any idea what duration it is for the turnover, what time period? Are we a year out, two years out, three years out? MS. SULECKI: My understanding is that the turnover has occurred. Now, in doing a lot of these PUD cases, what I find is that it's very common for the lakes to be left out of the turnover and no deeds ever change hands. The associations often think they're in charge and are maintaining the properties, but in actuality, the developer still holds the title. I find that very common. CHAIRMAN LEHMANN: And that's existing in this case as well -- MS. SULECKI: Yes, sir. CHAIRMAN LEHMANN: -- the master association has the Page 38 November 18, 2002 vertical construction-- MS. SULECKI: Yes, sir. CHAIRMAN LEHMANN: -- and the developer still retains the horizontal? MS. SULECKI: That's correct. The master association, I believe,, now has the preserves as well, but I'm not 100 percent sure. MR. PONTE: And was there anything involving the Aquagenix firm? They agreed to go ahead and they told you that they were going to go to work. What stopped them? MS. SULECKI: Well, they were the firm that had done the exotics removal. The master association had hired them. And when we were talking -- I was talking with the property manager throughout this. They did explore doing the work themselves. And I believe, I'm not sure, but I believe they did get a quote from Mr. -- from George, from Aquagenix, but never actually hired him to do the work. Because they determined that it wasn't their lake. MR. PONTE: I see. Thank you. MR. FLEGAL: Alex, just to make sure I understand, the two lakes are currently owned by Maxwell Corporation, period. And the master association has no -- the only word I can think of is bearing on the lakes, so to speak. In other words, Maxwell Corporation is solely responsible for the two lakes, period? MS. SULECKI: When I approach somebody about a code violation, the only person that I can require to correct a code is the property owner, and that's what I've done in this case. MR. FLEGAL: And that's Maxwell Corporation. MS. SULECKI: That's correct. MR. FLEGAL: Thank you. CHAIRMAN LEHMANN: Question for Ms. Rawson. In the statement of violation, the notice of violation, are we satisfied that both entities, both Maxwell of Naples Corporation and Jacob Nagar individually are cited and tied together with this case? Page November 18, 2002 MS. RAWSON: Well, in the heading in the statement of violation, it's Maxwell of Naples and Jacob Nagar as its registered agent and president. You don't have him personally. CHAIRMAN LEHMANN: Staff has requested that he be tied into this. MS. RAWSON: You can do that, but that would require a vote to add him personally as a respondent. MR. FLEGAL: We can do that before we have a -- CHAIRMAN LEHMANN: Any other questions for the witness? Hearing none. And we do not have any -- MS. ARNOLD: We do have a registered speaker, a Mr. Floyd Chapin, on behalf of the Sapphire Lakes Association is here, and he would like to address the board. CHAIRMAN LEHMANN: Is he the only registered speaker or do we have a -- MS. ARNOLD: He's the only registered speaker that we have. MR. CHAPIN: Do you want 50? MR. FLEGAL: I want to ask Jean something before we -- CHAIRMAN LEHMANN: Yes, please. Just one second, sir. MR. FLEGAL: Jean? MS. RAWSON: Yes. MR. FLEGAL: Just a point of clarification so we can keep everything nice and straight. Since the respondent isn't here and therefore he has no witnesses, how does the board accept the testimony from somebody that's not a witness for the respondent? MS. RAWSON: Well, you can always hear from the public, especially someone who is -- could be the respondent. If in fact the lakes are potentially going to be turned over to the master association, this is a speaker for the master association, I presume, who could ultimately be responsible and liable for whatever Page ,~o November 18, 2002 fines you may or may not impose here today. So I don't think you have any problem hearing the speaker. He's not speaking, I would guess, on behalf of Mr. Nagar. MR. CHAPIN: Correct. Good assumption. MR. FLEGAL: That's what I'm trying to not say outright, but was trying to get there. CHAIRMAN LEHMANN: Sir, if you could state your name and tell us who you're representing. MR. CHAPIN: I'm representing -- my name is Floyd R. Chapin. I reside at 228 Belina Drive, in Sapphire Lakes, Naples, Florida, 34104. I've been asked to -- MS. ARNOLD: Can we have him sworn? CHAIRMAN LEHMANN: Who are you representing? MR. CHAPIN: The master association, the residents of Sapphire Lakes. CHAIRMAN LEHMANN: All right, thank you. In what capacity? President? MR. CHAPIN: I'm president of our association and also a member of the master board of directors. CHAIRMAN LEHMANN: Thank you. And now if we could swear the witness in, please. (Speaker was duly sworn.) MR. CHAPIN: Good morning, Mr. Chairman and members. Thank you for the opportunity to appear before you today and speak. Before I do make my presentation, I'd like to acknowledge the president of our association of the master board, Connie Fullerton, who is in our presence here today, and also all the members of the board of directors for Sapphire Lakes, if they would stand. The members of the Sapphire Lakes board. Just the board. Like I say, if you wanted 50 speakers, we could accommodate yOU. Page November 18, 2002 The purpose of me appearing as the lone speaker for Sapphire Lakes is to expedite the hearing and to make our feelings known to you as to how we feel about the code enforcement aspects of Collier County's government. We represent 550 plus homeowners, which has about over 1,100 residents. We have been a quiet, nice community over the past 11 years, and want it to remain that way. Except with the developer that has been with us since day one, about 11 years. Alex presented an excellent case to you this morning, and I could reiterate almost everything she said, because we worked closely with her, and John DiMartino, when he had her job, over the past several years. We support totally the code enforcement officials in this regard. They have done a fantastic job. They have followed through and they have kept us informed as to exactly what was happening with the Lakes 3 and 4, your public hearings No. 1 and 2. Just a little bit of background. Jacob, as I stated earlier, has been with us for better than 11 years. More specifically he has given us problems over the past two years. Alex mentioned the exotic removals. Well, just to give you a little background, just about nine months ago, we were in the process of taking over. The owners were taking over from the developer master board. And at that time, master board, Mr. Jacob, was cited for not complying with the exotics removal. In the transition, we took over from Mr. Nagar, and he walked away from taking care of the citations for the removal of the exotics. We, the homeowners of Sapphire Lakes, got stuck with a $40,000 bill. $40,000 out of our pockets because of his lack of due diligence. We are a peaceful, quiet community. We didn't want any problems with the county or anyone else, but we paid it. Probably shouldn't have, but we did. That's one example of how Mr. Nagar Page 42 November 18, 2002 has treated the people of Sapphire Lakes, which he's made millions of dollars off of, I'm sure. We met with Jacob Nagar over the past 11 years, and more specifically the last four years, and even more specific than that, the last year, two years since we have taken over as our own owners -- master board. We've met with him one-on-one, we've met with him on board meetings, we've had telephone conference calls with him, we've met him on-site, we've met him with the master association property managers, and each time he'd use dilatory tactics and tell us whatever we wanted to hear. "Yes, I'll take care of it," as someone related to earlier. "Don't worry, I'll take care of it. I'll get a company. I'm working with the landscaper. I'll take care of the exotics. I'll take care of the lakes." None of it's ever happened. You have to know the man to appreciate him. And we know him very well. That's why we have -- all the people from Sapphire Lakes, would they please stand who support our position. Thank you very much. We want the county to take whatever actions are necessary. The developer has failed to comply with the county ordinances, he's failed to comply with the owners' requests at Sapphire Lakes to do the job he's required to do. We feel very concerned about our community and we want to make it one of the best in Naples, and we have the best in Naples. He's failed to fulfill his obligations on so many different occasions, not specifically to this hearing today. But we want to make you aware of the background that Mr. Nagar has used to get by with some of the things that he's attempted to do. Therefore, we're looking for immediate remedial action, the County Board of Commissioners and/or the Code Enforcement Board today. We're asking that you order -- issue an order effecting the proper relief, consistent with powers granted you under Chapter 162 Page ,~3 November 18, 2002 of the state statutes. We also ask that you amend this to include Mr. Nagar personally, as he's only the registered agent at this time. We feel that he's responsible for this; he'll use his corporations to proceed with doing whatever he has to do and just kind of thumb his nose at us. And we don't necessarily appreciate it. We want to live there in peace, we want harmony, we want to do what's best for our community. And dealing with Mr. Nagar is a case all by itself. Last, I think, a suggestion, I don't know if it's possible, but if the county -- there's about 10 or 12 buildings that haven't been completed yet by the present developer. I don't know if it's within the county's power or not, but if they could not issue CO's on the remaining parts of the building that are not completed, with the understanding that he complete the work he's required to do. Kind of hurt him in the pocketbook, so to speak. But maybe it would be a way to get his attention. If you hurt someone in the pocketbook, they always seem to respond a little quicker than by legal notice. So with that, I would like to conclude my presentation. If you have any questions, I will attempt to answer them. If not, there's plenty of people here that can support us. Thank you very much. CHAIRMAN LEHMANN: Mr. Chapin, thank you. Any questions for the witness from the board? No questions? Hearing no questions, Mr. Chapin, if you'd have a seat, please. MR. CHAPIN: Thank you very much. CHAIRMAN LEHMANN: Mr. Davis (sic), you're not connected with this project at all? MR. RIINA: No, no, I'm not connected at all. Mr. Chairman, what happened to the bond -- CHAIRMAN LEHMANN: Mr. Davis, again, if you're not connected with the project, you can't give testimony on it. We'll just proceed. Page 44 November 18, 2002 MR. RIINA: But I'm a citizen of the community. I'm just asking him a question, what happened to the bonding on this project? Was there a bond on this project? CHAIRMAN LEHMANN: This again has no relevance to the particular issue that we're hearing. Any other comments from the board? First comment from myself is I certainly would approve of adding Mr. Nagar to the list of respondents as an individual. MR. FLEGAL: Is that a motion, sir? CHAIRMAN LEHMANN: That would be a motion. MR. FLEGAL: On both cases? CHAIRMAN LEHMANN: On both cases, yes, sir. MR. FLEGAL: I'll second. CHAIRMAN LEHMANN: We have a motion by myself and a second by Mr. Flegal to add Mr. Nagar as an individual respondent to this case. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries unanimously. Any further discussion? MR. FLEGAL: I think Alex's presentation was self-explanatory. And taking a page out of Mr. Chapin's book, since Mr. Nagar did not show up, obviously this is not important to him. I think it is -- I think the county has proved their point. MR. PONTE: I agree, I think it's very clear-cut. CHAIRMAN LEHMANN: I agree. Let me just clarify a little housekeeping. Jean, we as a board do not have within our power to effect county actions with regards to CO and-- MS. RAWSON: No. Page November 18, 2002 CHAIRMAN LEHMANN: MS. RAWSON: You-- CHAIRMAN LEHMANN: -- so on and so forth? I just wanted to clarify that for the record for the general public. MS. RAWSON: You have a lot of power, but that's not one of them. You basically are restricted to determining whether or not there's been a violation of the code in this particular instance, based on the testimony that you've heard and the evidence that was presented. And if you find that there has been a violation, then you have the power to order how it shall be abated, and if it's not abated, what would happen. CHAIRMAN LEHMANN: Correct. MS. RAWSON: But CO's are not within your province. MS. BARNETT: I have a question. Can we go above the $100 a day? MR. FLEGAL: Yes, ma'am. CHAIRMAN LEHMANN: You may go up to $250 a day. MS. BARNETT: Well, if we want to hit him in the pocketbook, because he seems to have the nonchalant feeling that it's not -- CHAIRMAN LEHMANN: Well, be careful about that. I mean, we have the option to apply any fine that we choose, up to a limit of $250 a day. But again, there are factors that we have to take into account, such as the gravity of the situation, actions that he's already taken before us, basically governed by the state statute. MS. BARNETT: Well, guide me here then, because he's already -- it looks like he's dumped $40,000 of cost to the existing people that live there, so he's abated that one. CHAIRMAN LEHMANN: Well, let me read to you in section 11, Ordinance 92-86, in 11-2: In determining the amount of the fine, if any, an enforcement board shall consider the following factors: A, the gravity of the violation, B, any actions taken by the violator to correct the violation, and C, any previous actions violations by the Page 4 6 November 18, 2002 violator. So those are the main points you can enter into consideration. Other factors, but those should be the main points that govern your decision. MS. BARNETT: So apparently he hasn't done anything to rectify the problem. CHAIRMAN LEHMANN: That's correct. MS. BARNETT: And there are previous complaints against the gentleman that were abated by somebody else. CHAIRMAN LEHMANN: No, we don't have any record of that. A previous complaint would be something that came before this board -- MS. BARNETT: Okay. CHAIRMAN LEHMANN: -- and we have actually had a finding of fact on. MR. PONTE: I'd like to make a motion that a violation does exist in this case, the case of-- that we're hearing now, the County Commissioners versus Maxwell of Naples and Jacob Nagar, and both cases, the CEB No. 202-027, and 32, and that the alleged violation is of ordinance 91-102, as amended, sections 3.5.7.2.5 of the Collier County Land Development Code, and the Excavation Permit No. 59.451, section on littoral planting plan. The description of the violation is that no littoral plants other than cattails are observed on either of the two lakes. CHAIRMAN LEHMANN: I would second that motion. Before we have a vote, is there any discussion on the motion? MR. FLEGAL: And this is both cases; is that right, Jean? CHAIRMAN LEHMANN: Yes, this is both cases, 027 and 032. MS. RAWSON: Well, we need to have two separate orders. So if I were you, I would vote separately on 27 and the other one I think is 32. Page November 18, 2002 CHAIRMAN LEHMANN: Mr. Ponte, would you amend your motion? MR. PONTE: I'll amend the motion to comply with the requirements. CHAIRMAN LEHMANN: You separate the two cases? MR. PONTE: Yes, absolutely. CHAIRMAN LEHMANN: Okay. The first motion will be on case No. 2002-027. We have a motion that a violation exists. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries. We'll next take a vote on case No. 2002-032. In that case, we have a motion that a violation does exist, and a second by myself. AnY -- all those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries again. Order of the board. We obviously need two separate orders. MS. ARNOLD: If I may, there is a concern that staff has with regards to the compliance and the fine accruing. If Mr. Nagar shows no signs of doing the compliance, this could go on for some time and we could accrue fines that are very substantial, and we don't want it to affect the association. I believe that the association has looked into the potential cost for getting the vegetation planted, if I'm -- that's correct. I don't know, and I'm just kind of throwing this out for the board, because I'm looking towards the compliance as well, that whether or not we could get in the order to get the vegetation planted by someone other than Mr. Nagar, and assess the cost for that abatement to Mr. Nagar personally. CHAIRMAN LEHMANN: Well, the board has a right to take Page November 18, 2002 immediate action, or to the county to make immediate action. My concern on that is -- how do I word this? Does that let the developer off the hook, in other words, if I go ahead and order the county to put 10,000, $20,000 worth of vegetation into it? Now Mr. Nagar and Maxwell Corporation basically can ignore that and we go into foreclosure on the lakes themselves. MS. ARNOLD: Well, that's what I'm trying to avoid. Because ultimately it's going to affect the association if they take over this property. You've already amended the order to include Mr. Nagar personally. Then my suggestion would be whatever cost is accrued as well as fines accrued be assessed to Mr. Nagar personally. MR. FLEGAL: Jean, I don't think we -- CHAIRMAN LEHMANN: As opposed to the corporation, is that what you're saying? MS. ARNOLD: That's my thought. MR. FLEGAL: Jean, I don't think we can just say gee, the corporation doesn't pay anything but you pay something. I mean -- MS. RAWSON: Well, right now the only respondents are Maxwell, Mr. Nagar as the registered agent and president, and Mr. Nagar individually. You know, they're not yet a respondent. I understand where Michelle's going, and I think it's a good idea. Unfortunately, if they fix the lakes and the vegetation, they probably are going to have to as an association sue Mr. Nagar to recover. CHAIRMAN LEHMANN: And the moment they take control of the lakes, they take control of the problem as well. MS. RAWSON: Right. MR. FLEGAL: Right, the problem passes with the lake, whoever gets it, as I understand the law. Regardless of what we order, if Mr. Nagar -- if Maxwell Corporation or Mr. Nagar personally refused to do it and the fines accrue, naturally we put the lien on. I would hope that the association is going to try and do something at that point. There's Page November 18, 2002 always the risk that I guess at some point Mr. Nagar doesn't relinquish the lake. I don't know how their documents are written, whether it's automatic, if it's a separate corporation that he turns it over when he wants to, which is the way most of them are written. I mean, he may never turn this over, that could be his choice, and it could just be laying out there accruing until we foreclose on it, unfortunately. I understand what Michelle would like to have happen, but I don't see that that's really an option for the board. If the order of the board -- it's still on assessment against the property, which I guess if he bankrupts the property -- he can't bankrupt the property because he has the lake, he'd have to sell it. I don't know how the documents are written, whether they would get the first right of refusal or not. I'm thinking if we ordered the county to do the planting and assess the money against Maxwell Corporation and Nagar personally, that's the only two respondents. That's about it, isn't it? MS. RAWSON: That is about it. CHAIRMAN LEHMANN: And just to kind of put that on the record, I don't want to put words in your mouth, Mr. Flegal, but I think we all agree with Mr. Flegal, the intent here is not to have the association pay for the problem, because the association is the victim. So we're trying to find a way that we can assess a penalty towards the responsible party, as opposed to assessing it towards Maxwell of Naples Corporation and Mr. Nagar, and then he just say the heck with it, I'll let the time expire, we'll turn over to the association and now it's your problem. MR. FLEGAL: And I don't think there's a way around that, unfortunately. CHAIRMAN LEHMANN: We obviously can take care of it from the county's side. If we take care of it from the county's side, we assess the cost back into the respondent, who at this time is Page 5o November 18, 2002 Maxwell of Naples Corporation and Mr. Nagar. They in mm can sit on it and do nothing, in a sense, until the association assumes control of the property, if they ever do. And then they buy whatever penalties have been accruing against Mr. Nagar and Maxwell Corporation. MR. FLEGAL: Jean, I know you don't like what-if questions, but it's the only way I can think of it right now. I'm trying to think worst case scenario based on the history that's being presented to us of Mr. Nagar and making promises and not keeping them and so on and so forth. If we issued an order and some penalty and it accrued and he chose not to do anything, then under -- the way the statute and the ordinance is written, at the end of three months of accruing, we can ask the county attorney to foreclose on the property and whatever. If they did that, then of course there's more time that more stuff accrues. But -- because I suspect Mr. Nagar, just based on what I've heard, isn't going to do anything. If at the, I guess, foreclosure procedure -- I'm trying to think ahead -- if it got that far, the master association, I would assume, would try to purchase the lakes rather than have somebody else purchase it. But they would be then ultimately responsible for all these costs, correct? MS. RAWSON: Yes. Because the lien will attach-- MR. FLEGAL: To the land. MS. RAWSON: -- as soon as we record the order. And the lien attaches to the real estate. MR. FLEGAL: Okay. CHAIRMAN LEHMANN: And there is no way at this point in time to separate the association from this transaction. MS. RAWSON: If they ultimately become the owners of the lake and the lien is attached to the land, you know, then ultimately they become responsible. Page November 18, 2002 CHAIRMAN LEHMANN: In a typical turnover procedure, from a developer to an association, obviously liens are checked for; is that correct? MS. RAWSON: They should be. CHAIRMAN LEHMANN: And in a sense, the attorneys that are involved in that particular procedure should be making sure that clear title is transferring from one to the other. MS. RAWSON: Yes. CHAIRMAN LEHMANN: In this case we would not have clear title, if a lien wasn't -- or if an order of the board was put down on this case. So in the fact that we don't have clear title, what is the general procedure for assuming that? Is compensation made, or how does that work? MS. RAWSON: Well, I don't know what their declaration and condominium says. And I don't know when it's going to be turned over and how it's going to be turned over. But obviously if it was a real estate sale, I mean, you'd have to pay off the lien before you could pass clear title. I'm just not really sure whether he can turn it over, whether it's a warranty deed or whether it's a quitclaim deed. MR. FLEGAL: But if it was in foreclosure, I mean, he doesn't have a choice of turning it over. Another thought just came up. If it got that far -- I'm trying to think of a way for the association to get some salvage out of this. If it went, worst condition, all the way to foreclosure and this -- puts this big stack of fines which had turned into a lien, and the association got the property in foreclosure by buying it, could they come to the board and ask for an abatement of the fine? MS. RAWSON: Well, that's an interesting question that is going to be the subject of our discussion probably next month. Under our present rules, yes. Under an advisory opinion that we just recently received, once it's recorded, no. Page 52 November 18, 2002 MR. FLEGAL: Okay. MR. PONTE: Jean, is there a way to separate them? I know we've named them individually, but can respondents be fined individually? In other words, could we say -- well, can they be fined individually? MS. RAWSON: Well, I think you've got him three ways: Maxwell, as the registered agent and president, and also individually. And you haven't named the master association at all. The only way they're going to get hurt is when ultimately they become the owners of the land. CHAIRMAN LEHMANN: Jean, let me ask you a really strange question. And again, I think the purpose of this, and please correct me if I'm wrong, members, but I think the purpose of this is to try to find an immediate resolution, some sort of immediate relief for the association, and tie that directly to the responsible party, as opposed to the association taking -- assuming that later on. At this point in time, do we have the right to drop Maxwell of Naples Corporation as a respondent? MS. RAWSON: No. No, they own the land so you can't just drop MR. FLEGAL: them out. MS. RAWSON: They are the owners of record. CHAIRMAN LEHMANN: That shot that idea down. MR. FLEGAL: Even though we added Mr. Nagar personally, since Maxwell owns the -- physically and by deed owns the land, the board isn't able to, I guess, split or percentage-wise say gee, you, Mr. "X," personally are liable for 80 percent. I mean, since he doesn't own the land, I mean, it's going to have to be a shared deal, is it not? MS. RAWSON: It is. CHAIRMAN LEHMANN: Mr. Chapin, does the association have any comments on this? This is a little bit irregular, but I'd like to call you back up. Page 53 November 18, 2002 Do they have that right, Jean? MS. RAWSON: You-- MR. CHAPIN: We don't want to spend anymore of our good money. CHAIRMAN LEHMANN: Just one second. Jean, in this part of the hearing -- or the case. MS. RAWSON: Well, you can always reopen the hearing. You have at this point in time approved findings of fact but have not yet approved your order. And so if you want to stop in your discussion about the order, reopen the public hearing and hear comments from the association, you -- I mean, certainly you can suspend your agenda any way you want. CHAIRMAN LEHMANN: Do we need a vote from the board to do that? MS. RAWSON: Yes. CHAIRMAN LEHMANN: I would entertain a motion to do so. In fact, I would motion that we do so. MS. BARNETT: I'll second it. CHAIRMAN LEHMANN: We have a motion and a second. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, we'll reopen the hearing again. I would like to have comments from the association with regard to the order of the board. MS. FULLERTON: Good morning. I'm Connie Fullerton, I'm the president of the master association. CHAIRMAN LEHMANN: Ms. Fullerton, we'll need to swear you in as a witness. (Speaker was duly sworn.) MS. FULLERTON: Going back just very quickly, we had one Page November 18, 2002 of the most prominent law firms in Collier County representing us through the beginning of this mess. In April, we discontinued using their services. And we are now with another very large firm, the largest in Florida, trying to get us through this mess. And I have in front of me a letter, and their names are Becker and Poliakoff, which I'm sure you all recognize. A letter dated October 17 to Ms. Jane Cheffy, who is the attorney on record for Jacob Nagar in the past, and Nicky Kestes (Phonetic), who came in and took over Sapphire Lakes. And the reason for the letter -- and it is addressed to GMA Developers, which is one of the names that Mr. Nagar has worked under. The purpose of the letter is quitclaim deeds, two common areas and so forth. Basically we do not have a clear-cut deed to any common areas, any lakes, anything. In March, when Ms. Sulecki was working on this environmental problem, she sent a citation to Mr. Nagar. That was in March. In April, he just all of a sudden decided he was turning the complex over to us. We are now in charge. Therefore, he assumed that we inherited all of the property, all of the problems. As Floyd said, in order to be in compliance with the county and not have any problems for our community, we're just a group of hard-working medium income people. You know, we're not Gray Oaks or Bonita Bay or anything else. We scraped up this $40,000. And it was really a struggle for us to do this. We did it, even though it was really not our responsibility. It is my understanding that when a property is conveyed to you, like in turnover, it should be compliant. Our common areas were not compliant with the environmental people. Nor are these lakes. Now for somebody to be saying that possibly if we issue a fine against Mr. Nagar that somehow it can come back to where we're actually paying our own fines that we're imposing against him, all of Page 55 November 18, 2002 a sudden we're in a mess. And I guess my question is, I told my kids and grandkids, you have to do what is right because there are punishments. Where is the punishment for disobeying? And basically he's thumbing his nose at everyone. You know, he did it in a planning commission meeting in December and he doesn't even bother to show up here. We took the time out of our day to show up. You know, where is the punishment for him? And I guess that's my question. Where do we have some kind of a satisfaction in all of this? I just don't know. MR. PONTE: That's my question, too. CHAIRMAN LEHMANN: Before we proceed, Ms. Rawson, just for the record, our firm has dealings with clients who Jane Cheffy also represents, and totally separate business dealings, but I just wanted to do that as disclosure. MS. RAWSON: That's fine. CHAIRMAN LEHMANN: Do I need to -- MS. RAWSON: No, that's not a conflict. CHAIRMAN LEHMANN: -- recuse myself?. Okay, thank you. Again, comments from the board? Questions? MR. FLEGAL: Well, I understand the association and Ms. FullertOn's plight. But in today's society, as we all read in the paper and watch the news and everything, I mean, corporations go bankrupt every day and people get hurt. Unfortunately there's no guarantee. I mean, when you deal with a corporation, you must understand on the front end, they can go south and you get stuck. You hope that you deal with reliable people, and probably the majority of them are, but there's always a few. So I don't think there's really a good answer to your question other than the possibility would exist that the association could end up getting stuck. There's no protection. We can't give you any protection, because there isn't one. MS. FULLERTON: Well, the word lien was mentioned, and he Page November 18, 2002 does have a coach home in Sapphire Lakes. We went to place a lien against it. We're number 17. I'm sure he has no equity in the thing. I mean, it's just awful. It's just awful that someone can get away with this and the little guy is going to get hurt. Because we have a beautiful community, hopefully you've all been there, but if not, stop by and see us. But, you know, it's terrible that we can be hurt even more because of this man. CHAIRMAN LEHMANN: Jean, for the record, since we've changed our lien rights to that of being superior to others, we've also given up the ability to foreclose against personal property? All right. So again for the record, we cannot even touch his personal property for you. MS. RAWSON: If you have him individually, however, and yes, of course it runs against this land, but it could be assessed by our county attorney's office, I believe against his other real property, if he has any, other than this one unit that you'd be number 18. CHAIRMAN LEHMANN: Yes, sir, did you have any other comments? MR. CHAPIN: It was just brought to our attention, is it possible for the Code Enforcement Board to waive the fines in situations like this in case it comes to the point where we have to literally pay from our pockets to take care of Mr. Nagar's problems? CHAIRMAN LEHMANN: Well, at this point -- MR. CHAPIN: I mean, it might be down a ways, but I just question. CHAIRMAN LEHMANN: At this point in time, and again, what our counsel is bringing to our attention is, at this point in time yes, we have that right to waive fines after they have been recorded. Unfortunately I think that's going to change here shortly, from what she is telling us. The other option that the board has is not to impose fines. The advantage to that from the association's viewpoint is if the land ever Page 57 November 18, 2002 transfers to you, well, you don't take on the burden of whatever fines or costs that might have been imposed in the resolution of this case. The disadvantage from the association's point of view is that also no relief has been provided to the association. There's no pressure on Mr. Nagar to do anything. So all you have is a finding of fact that a violation's occurred but no pressure to get anything rectified. And again, the purpose of this board is to achieve compliance, one way or the other. MS. RAWSON: Well, and of course if they comply within the time limit given them, even though it's not their responsibility, there aren't going to be any fines. CHAIRMAN LEHMANN: That's correct. So the other option the association has is to take it upon themselves to bear whatever costs it is to effect relief and then no fines are incurred. But again, the association pays for the crimes of someone else, in a sense. MR. CHAPIN: Is there a possibility -- maybe you've answered it, I don't know -- that we could be grandfathered into the situation, as opposed to a year from now getting stuck with a hundred dollar a day fines that we're going to have to assume? CHAIRMAN LEHMANN: I don't believe so. Is that correct? MS. RAWSON: We can't do that. We don't have the -- ! appreciate the fact that the board is thinking of every possible way to help these people, because it's not their fault what's happened, but our powers are limited by Statute 162 in what we can or can't do. CHAIRMAN LEHMANN: I think the end result -- and I'm probably speaking out of turn, but I think the end result of the association is if they ended up assuming any fines or penalties, it would have to be in a civil court proceeding or something of that nature; is that correct? MS. RAWSON: Correct. CHAIRMAN LEHMANN: It certainly wouldn't be within our purview after that, so -- Page 58 November 18, 2002 MR. CHAPIN: Mitigating circumstances notwithstanding. CHAIRMAN LEHMANN: Well, for the board, and again, please let me know if I'm speaking out of turn, because I don't mean to speak for everybody, but for the board, I personally am very complexed (sic) with this. We want to help the association -- MR. CHAPIN: We appreciate it. CHAIRMAN LEHMANN: -- but in the capacity that we have to help the association, it also could backfire and hurt the association, and that's not the intent. The intent is to achieve compliance from the developer who obviously was found in violation. So that's who we're looking to. MR. FLEGAL: Mr. Chairman, let's get back to the order of-- CHAIRMAN LEHMANN: If we could close the hearing. MS. FULLERTON: If I could ask one more question -- CHAIRMAN LEHMANN: Yes. MS. FULLERTON: -- just for my clarification. Today as we stand here, you can abate the fines that are imposed; is that correct? CHAIRMAN LEHMANN: There are no -- MR. FLEGAL: We haven't imposed any -- MS. FULLERTON: No, no, but if they were, and today, say today's circumstances continues forever. I understand you said you're going to have a meeting in the near future where things are going to change, to the way I understood. Okay, if the fines are imposed against Mr. Nagar and they continue to accumulate, can the wording be such that they go against him personally and in the future, should the association take over, the fines would then be waived? Can that be the wording of today? MR. FLEGAL: I don't see that happening. MS. RAWSON: I don't think so. You know, I'd be happy to talk it over with the county attorney and get her opinion, but I don't believe so. I think if we assess fines, it's for noncompliance. It's not Page November 18, 2002 against any person as much as it is the fact that it's not in compliance with the code. And as an enforcement board, I think that they can only say well, come into compliance, and if you don't, you know, then these are the fines and they'll run with the land. I mean, I think that really is basically that simple what their job is. MS. FULLERTON: So it goes with the real estate. So he is not personally liable. MS. RAWSON: Well, he is because they've made him personally liable. MS. FULLERTON: Well, that's what I'm saying, if he in fact is personally liable and the fines are assessed against him personally, it should not then come to the master association. Can we word it such? MR. FLEGAL: You missed what I said before when I asked Jean. The fines are against the corporation and him combined. You can't separate the corporation and separate him. So it's kind of like 50/50. I mean, that's the best analogy I can do. So, I mean, it's always there. You can't say oh, he wants to turn it over, so we'll take the corporation's 50 percent and give it to him personally and the association gets nothing. It doesn't work like that. It's always got to be both equally. MS. RAWSON: And how you would be responsible, basically two ways: If you do take it upon yourselves to comply with the code, it's going to cost you some money to come up to code. Then you would have to go after him personally to recoup. The other way you could be hurt personally is if in the future the lakes themselves became your property, then those have attached to the land, because liens and encumbrances run with the land. Right now, you don't have any responsibility. It's just the potential that this board's concerned about. MR. PONTE: Jean, what is the new rule? Must have some Page 60 November 18, 2002 abatement process or some way to get at it. What is it? What would be the recourse? MS. RAWSON: Well, in this particular instance, their only recourse I think is to sue him civilly. MR. CHAPIN: I have one other question of you, Mr. Chairman, and the board. CHAIRMAN LEHMANN: Yes, sir. MR. CHAPIN: You normally give 30 days to execute an order; is that correct? CHAIRMAN LEHMANN: Whatever time period the board decides. MR. CHAPIN: We would like to have 60 days before you enter the order so we could go back and kind of regroup and determine how we want it enforced, if at all possible. Does that make -- CHAIRMAN LEHMANN: If I understand you correctly, you're asking for a period of 60 days be entered into the order before the respondent is required to comply? So you're asking for-- on behalf of Mr. Nagar and Maxwell Corporation that they be allowed 60 days before they do anything before the fines kick in. MR. CHAPIN: Well, I'm only doing that to try to protect ourselves. I don't know if that's necessary or not. CHAIRMAN LEHMANN: I understand that. But my question to you is just for clarification so that I make sure that I understand what you're asking properly. When you say you're asking for 60 days in the order, that basically tells us that the respondent, the corporation and Mr. Nagar personally, will have 60 days before anything will happen to him at all. After that 60 days, then he will start to incur fines, of which case you may not be responsible for in the long term. MR. CHAPIN: Forget it. Fine him tomorrow. CHAIRMAN LEHMANN: Now, this is something a little out of the ordinary also. Does the association have a preference as to the Page November 18, 2002 fine amount? And I know the board sets it, but again, this is something that you may be -- Jean, is that even close? MR. FLEGAL: Jean, aren't we getting a little -- CHAIRMAN LEHMANN: Off the board? Don't answer that? MR. FLEGAL: -- really way off the board, because you're now asking the public to recommend a fine. CHAIRMAN LEHMANN: Correct. MR. FLEGAL: And that can happen in every case we do from now on. I think that's a very dangerous precedent. CHAIRMAN LEHMANN: I strike that. MR. FLEGAL: The board makes the decision, period. MS. RAWSON: I think it's the board's decision. CHAIRMAN LEHMANN: I strike that. I was just trying to find ways in which we could help this association. MR. FLEGAL: I think we -- I think we're so far afield now, we've -- we're way on thin ice. Because I see every case the public coming in and saying gee, I want to talk for Mr. "X". And this is dangerous. CHAIRMAN LEHMANN: Okay, let's go ahead and close the public hearing then, if you don't have any other comments, and we'll go -- open it for discussion for the board. MR. FLEGAL: I guess, Mr. Chairman, I'll make a comment and if somebody ends up making a motion, that's fine, since we're in our order of the board. I know our intent is to try and make it as palatable as possible for the association hypothetically down the road. That's good theory. Unfortunately, I think we're trapped into what our authority and our restrictions are. The case is against Maxwell Corporation and Mr. Nagar, since we've added him personally. I think we need to zero in on that to try and get some type of compliance as rapidly as possible. I understand my colleagues' interest in a heavy hammer. I'm always one that says let's do that. At the same time, I'm trying to Page 62 November 18, 2002 temper that in my mind with down the road for the association. But I always come back to the same comment that right now we have a corporation and a man personally that we're trying to deal with. I think we need to focus on that, make a rational decision as we would in any other case, and I guess hope for the best down the road. And if there's a way we can do something down the road, great. If not, it's just the nature of the beast, unfortunately. If no one else has a comment, or are willing to make a motion for an order of the board, I will do so. MR. PONTE: I totally endorse what you're saying, Cliff. We are caught in a conundrum here. And I think that Mr. Nagar, if when you come to the fining portion, is not severely fined, he won't do anything. At the same time, if he is, he's just going to dump it over to the association, just trans -- once he's through it enough, he will simply transfer the hurt to them. If there is a way to word your motion so that the worst scenario happens and the association has to go to civil and to sue, the actual wording of your motion would be -- could be used by them to prove the point -- to prove their side. It should in some way penalize Mr. Nagar, but at the same time provide them with ammunition to use in the civil suit. MR. FLEGAL: I understand what you're saying. But Jean, I think that there is probably no way to word an order to protect a potential party down the road. I mean, anything you deal with-- a piece of land can always be sold, so you're hypothetically trying to protect somebody who may buy something who knows when, and I don't think that's even feasible. MS. RAWSON: You can't really levy a fine against anybody other than the landowner. MR. FLEGAL: Right. MR. PONTE: No, I understand that. Just in the wording of it. It's very difficult to do that by composing it out of thin air. It's one of Page ~3 November 18, 2002 those things where you really ought to sit down and write it out. MS. RAWSON: What you're trying to do is protect all future landowners, which you can't do. MR. FLEGAL: You can't protect the future. MS. BARNETT: No, but wouldn't the fact that we have added him individually be something that they could utilize? MS. RAWSON: Yes, that's going to help them. MR. PONTE: Sure. MR. FLEGAL: Well, yeah, I mean, they can utilize the order period to help them-- MS. BARNETT: That's what I think he was -- MR. FLEGAL: -- against their corporation. MS. BARNETT: -- trying to say. MR. FLEGAL: But we can't protect them down the road. All they can do is take any order we issue to anybody and use it as part of their case. I mean, that's -- you can do that anytime. MR. PONTE: That's what I'm saying, so that when you craft the motion, maybe you have to somewhat differently than we normally do. MR. FLEGAL: I know what you're trying to do, and that's what -- I believe Jean and I are on the same page. You can't do that. You can't protect the future. All you can do is issue a standard order that we always issue, and they can use that standard order. But we can't put words in there to further help them. An order is an order is an order, period. We can't add any extra words. There's just no way to do that.' It goes against the land, and when the land transfers, you can't protect that person way down there. All they can do is say well, this order was issued and we're using that as an exhibit. But you can't put extra words in there to further help them. There aren't any. Is that correct, Jean? MS. RAWSON: That's correct. MR. PONTE: I guess they could introduce the minutes of this Page 64 November 18, 2002 session. MS. RAWSON: Well, they can use the order. It's going to be recorded. Public record. MR. FLEGAL: Based on that, I'd throw out a motion that we order the respondents, both Maxwell Corporation and Mr. Nagar personally, to pay -- item one, to pay all the operational costs incurred in prosecuting this case; two, that the respondents, Maxwell Corporation and Mr. Nagar personally, abate the violations that they've been cited for within a 30-day period; three, that if the abatement fails to take place in a 30-day period, that the respondents, Maxwell Corporation and Mr. Nagar personally, be fined at the rate of $150 a day for each day the violation continues. CHAIRMAN LEHMANN: Do I hear a second to that motion? MS. BARNETT: I'll second it. CHAIRMAN LEHMANN: All those in favor, signify by saying aye. both Any opposed? (No response.) CHAIRMAN LEHMANN: MR. FLEGAL: cases? MS. RAWSON: Yes. CHAIRMAN LEHMANN: 32 now. Motion carries. Proceed-- Now, Jean, do I need to do that to say it's on We need to proceed to an order to MR. FLEGAL: That was on case 027. CHAIRMAN LEHMANN: Correct. MR. FLEGAL: I would make the same motion on case 032. MS. BARNETT: And I will second it. CHAIRMAN LEHMANN: We have a motion and a second. All those in favor, signify by saying aye. Any opposed? (No response.) Page November 18, 2002 CHAIRMAN LEHMANN: Hearing none, motion carries. Sir, do you understand what we're doing? MR. CHAPIN: Thank you. MS. FULLERTON: Thank you very much. Appreciate it. CHAIRMAN LEHMANN: If we can take a 1 O-minute break, we'll return at 25 after. (Brief recess.) CHAIRMAN LEHMANN: Call the board back to order, where we'll reconvene. Ms. Arnold, are you ready to proceed with the next case? MS. ARNOLD: Yes, we are. CHAIRMAN LEHMANN: If you would do so. MS. HILTON: Our next case is Board of County Commissioners, Collier County, Florida, versus Joseph and Ida Cannistraci, which is spelled C-A-N-N-I-S-T-R-A-C-I; Rick Johnson, individually; R.A. Johnson, Inc., doing business as Rick Johnson Auto and Tire; Richard A. Johnson, Sr., as its registered agent; and Richard A. Johnson as its president. Case No. 2002-026. At this time, I would like to ask if the respondent is present in the courtroom. Yes, he is. We have provided the board and the respondent with a packet of information we would like entered as Exhibit A at this time. CHAIRMAN LEHMANN: I would entertain a motion to do so. MR. FLEGAL: So moved. CHAIRMAN LEHMANN: I'll second the motion. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Motion carries unanimously. MS. HILTON: The alleged violation is of section 2.4.3.6, and 2.4.3.6.7 of Ordinance 91-102, as amended, of the Collier County Land Development Code. Page November 18, 2002 The description of the violation: Out of four landscape buffer trees planted as a result of case No. 2000030224, only one is surviving, and it does not present a healthy plant in a condition representative of its species, staking tape remains on since initial planting and is constricting trunk, and trunk has been damaged by weed wacker. No irrigation observed on-site, and it's doubtful that any fertilization has occurred. Out of the four trees along Green Boulevard, two Carrotwood and two Loquat, that were previously damaged by excessive pruning and were cited as violations in the above mentioned case, all still exhibit varying degrees of rot underneath new growth and do not represent healthy trees representative of the species. Required landscape hedge not present along Green Boulevard and along 40th Terrace, adjacent to residential properties. Location of violation: 4020 Green Boulevard, Naples, Florida, more particularly described as Folio No. 35831840006, Golden Gate unit 2, part 1, block 73, lot 1. Name and address of owner or person in charge of location: Joseph and Ida Cannistraci, 2801 Santa Barbara Boulevard, Naples, Florida; and Rick Johnson, 4020 Green Boulevard, Naples, Florida. Date violation first observed: July 9th, 2002. Date owner or person in charge given notice of violation: July 15th, 2002. Date on which violation was to be corrected was August 15th, 2002. Date of reinspection: September 24, 2002. Result of the reinspection is the violation remains. At this time I'd like to turn the case over to the Code Enforcement Investigator Alex Sulecki to present the case to the board. CHAIRMAN LEHMANN: One second, please. Mr. Johnson, if you'd come up to the podium, I'd like to swear Page November 18, 2002 both the witnesses in at the same time. (SPeakers were duly sworn.) CHAIRMAN LEHMANN: Mr. Johnson, thank you. If you'd have a seat just for the moment. Thank you. Please. MS. SULECKI: Okay, this case started with another case, 2000303224, where I required the property owner to replace four excessively pruned and damaged landscaped trees along the front of the business. This is the business. It's Rick Johnson Auto and Tire. And these are the four trees that I required to be replaced initially in the earlier case. The tenant, Mr. Johnson, planted four trees but declined to remove the damaged trees, and I didn't pursue the matter. I would have to say, with hindsight, that was probably an oversight on my part. Two years later, after passing the property and having other staff members point it out, I noted that all but one of the replacement trees were dead and the living one was unhealthy. I reviewed the property again, this time requiring the removal of the initially damaged trees and the planting of the minimum landscape required at the time of development, which was 1984. I required three trees to be planted and shrubs along both Green Boulevard up here, and 40th Terrace, down that way, where a landscape area along here is routinely used for customer parking. And here is pictures of the trees. You can see there's no shrubs. The trees probably don't look so bad to you from here, and you think well, what's wrong with them? That's what's inside the trees from the original problem with the pruning. On your page 13, I cited section 2.4.3.6 and .7. This is the pruning and maintenance codes that requires replacement of Page November 18, 2002 excessively pruned trees by the owner and also replacement of dead landscape material within 30 days of its demise. I found an inspection card from 1983, showing the property was inspected for landscape and passed for both the shrubs and the trees. So they were there initially, they just died probably shortly afterwards and were never replaced. I delivered a notice of violation in this case to the owner, Mrs. Cannistraci, in person and explained that the required landscaping was missing and what there was there wasn't being maintained as it was supposed to be. And that was in July this year, on the 15th. At this time I also met on-site with a manager, whose name is Mike, and advised him to also have an arborist evaluation the rest of the trees on the parcel, because they had been damaged maybe not quite so badly, but I thought there was a hazard potentially for them, too. I talked to Mrs. Cannistraci again on August 1 st to check the progress, and she told me that Mr. Johnson was going to be installing that landscape. From earlier she had told me she might need more time, and I told her at that time to please be sure and request that, an extension, before the compliance date. So shortly after this, on August 7th, I met on-site with Mr. Johnson and my supervisor, and he advised me he was buying the property. At that time he requested a reduction in some hedge plants along this area up here. Because there's a dumpster located right there, and cars coming out of the alleyway couldn't see; the line of sight would be taken out by the shrubs. So I agreed, pending review of the location of that dumpster. And I did talk to Waste Management about it, and they said there was nowhere else on the property that it could be. So it had to be there, so okay, no shrubs in that location. And I sent him a list of recommended list of shrubs. On August 26th I made a site visit and I observed that he had Page November 18, 2002 planted some trees, three Dahoon hollies. They were -- they satisfied part of the requirement. But no trees had been removed and no shrubs were planted, so I sent a CEB warning letter. I contacted the owner, Mrs. Cannistraci in New York about this time to let her know there was no compliance. This was after the compliance date. And she requested at that point an extension, which was denied for several reasons: She didn't provide a time frame for compliance; there was no reason in advance for the delay; and the remaining repairs were fairly minimal and had been out of compliance for many years. I appeared before you last month in this case and you granted a 30-day extension. Since that time, Mr. Johnson, who's here, is the new owner, and he requested to remove the remainder of the trees and replant to bring the entire landscape to a better condition, which I agreed. As of yesterday all the damaged trees had been removed and the site appears to be a work in progress. We had some bad weather, so possibly that delayed things. That's the 40th Terrace side, and that's the Green Boulevard side. So we're asking -- I'm asking today that you find there was a violation of the ordinance cited and require the landscaping to be restored to a state of compliance or impose a fine of $50 per day. CHAIRMAN LEHMANN: Any questions from the board? MR. FLEGAL: Alex, have you talked to Mr. Johnson about what he's doing? MS. SULECKI: No, but I did get a note on my chair this morning that said that they were going to work over the weekend. Maybe the weather stopped that; I don't know. CHAIRMAN LEHMANN: Thank you. Mr. Johnson? MR. JOHNSON: Yes, sir. How are you doing? We did find a place to put the dumpster. We're reducing the Page 70 November 18, 2002 dumpster to half size, putting on wheels and as it tums out, we're going to put it inside the horseshoe-shaped building and roll it out every morning, so that eliminates that whole dumpster area. And it's kind of ugly anyway. I leased this property back in 1997. That was my first store. I own five stores now. The lease was coming up for renewal October 31st. I could renew for another five years or buy the property. That's what I elected to do was buy instead of continue to lease the property. I've talked to Alex several times and told her that we were buying the property, and as soon as I bought the property -- and I met with you all a month ago and said as soon as I bought it I would comply with everything that she wished to comply with. I would even go beyond that. It is a work in progress. We took all the trees out. The weather did delay them this weekend. They are there today. A full sprinkler system is being installed -- it's already installed. It's just -- you see the thing, it's already installed. But there was never a sprinkler system there. So when the first violation happened where I had to replace the first original four trees, I put four trees in, but there was a drought then for five months. Three of the trees passed on. They died. Then by August 15th, I replaced those three trees. Well, out of the four trees that were originally replaced, I replaced three of them. Two of those three have died because of just no water. I mean, that's the problem with the project. So we fully put a sprinkler system on both the 40th Terrace and on Green. We are absolutely going to put all the bushes -- even which she allowed me to keep the bushes back 25 feet from the little alleyway, I'm going to put the bushes all the way to the alleyway because now I don't have a dumpster problem. I'm also going to put more soil in so we can put Floratam in. Right now it's nothing, there's nothing there. Page November 18, 2002 On the 40th Terrace that she's talking about where everybody parks, that's true. Customers come up there -- I've been there for five years, they just park anywhere they can park. So what we're doing is we've hired a curb company to build an entire curb around this section so they can no longer park on there. There's also a couple of areas as they pull into the driveway that curbs need to be put, because they kind of catch the sod that I'm going to plant brand new and they'll kill the sod within a month. So we're going to put curbs all over the area to keep from that. We're also installing a French drain to be able to catch any oil laden waters that comes off our driveway that's washed out by the rain. And it's going to go through a filter system. That's being installed also. We also repainted the building. We're trying to bring it really up to -- bring it up to code. I've got an SDP submitted right now for a store being built on Pine Ridge Road. So, I mean, we are active in the community and we will do whatever is necessary, but I was unwilling to put in shrubs and sprinkler systems and all that when I don't own it. I was unwilling to put my money forth until I owned the property. I don't know when the shrubs died. I've only been there since '97. I remember landing there in '65 and there was an airstrip. You know, my daddy brought me over here and bought some land in Golden Gate, that was an air -- that's why Green Boulevard is so wide, because it used to be an airstrip. But I don't remember this property when I was 10 years old back then. So, I mean, the property, within, I'm guessing, a week, less than that on the plants, the shrubs, the Floratam, the dirt, that should be done in about the next three days. As far as the curbing, should be complied within 10 days and it will be in perfect shape. CHAIRMAN LEHMANN: Good. Any questions from the board? Page November 18, 2002 MS. BARNETT: I can just make a comment that I have to drive by there on my way here, and I did notice a full crew out there this morning. CHAIRMAN LEHMANN: Mr. Johnson, thank you very much. We'll close the public hearing and open it for the board's discussion. Comments, discussion? MR. FLEGAL: Question for Jean. Jean, since title has passed, are the original owners still involved? MS. RAWSON: Well, we haven't changed the heading and I haven't seen the deed. And actually, I don't know who the owner of record is. The deed that you have in your packet still shows that it's Joseph and Ida Cannistraci. So, you know, we'll probably just leave the heading the way it is. MR. FLEGAL: Okay. CHAIRMAN LEHMANN: Hearing no discussion, I would entertain a motion for a finding of fact. MR. FLEGAL: Mr. Chairman, I would make a motion that there -- indeed, as presented, a violation does exist. The violation is of section 2.4.3.6 and 2.4.3.6.7 of Ordinance 91-102, as amended, Collier Land Development Code. MS. BARNETT: I'll second it. CHAIRMAN LEHMANN: Just clarification. Is that the right ordinance? Because in my package I've got -- MR. FLEGAL: I'm reading off the statement of violation. Is that wrong? Alex, is that the right -- CHAIRMAN LEHMANN: Is that the correct one? Because in the package on page 17, we only show those two violations. We don't have a section seven under section six. MS. SULECKI: No, six and seven. CHAIRMAN LEHMANN: Six and seven. It's 2.4.3.6 and 2.4.3.7. MS. SULECKI: Yes. Page November 18, 2002 MR. FLEGAL: Okay, that's not the way it's written. CHAIRMAN LEHMANN: That's not the way it's written on the statement. MR. FLEGAL: I correct it to 2.4.3.6 and 2.4.3.7 of the Ordinance 91-102. MS. BARNETT: I'll amend that one. CHAIRMAN LEHMANN: We have a motion by Mr. Flegal, second by Ms. Barnett. All in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion passes unanimously. And order of the board? MR. PONTE: I make a motion that we follow the staff recommendation. CHAIRMAN LEHMANN: I ask a clarification. Recommendation of the staff would be that the CEB order the respondent to pay all operational costs incurred in the prosecution of this case and abate all violations to replacement plantings and removal of damaged vegetation within 30 days or a fine of $50 per day be imposed for each day the violation continues. We have a motion from Mr. Ponte. Do I have a second? MR. FLEGAL: I'd second that. The operational cost is a separate item, right -- CHAIRMAN LEHMANN: That is correct. MR. FLEGAL: Okay. CHAIRMAN LEHMANN: We have a second by Mr. Flegal. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries Page 74 November 18, 2002 unanimously. Mr. Johnson, do you understand? MR. JOHNSON: Not completely. MR. FLEGAL: You've got 30 days. CHAIRMAN LEHMANN: Thirty' days to complete what you have. If it's not completed in 30 days, we have a fine of $50 per day. From what you're saying it probably wouldn't give you a problem at all. MR. JOHNSON: Just in case I can't get the curbs in, they should be there within 15 days, but she's not asking for curbs. CHAIRMAN LEHMANN: MR. JOHNSON: Plants. CHAIRMAN LEHMANN: you very much. MS. ARNOLD: operational costs? MR. FLEGAL: No, we're just looking for the -- -- compliance of the section. Thank I have a question. So we did not include Yes, we did. CHAIRMAN LEHMANN: We did include operational costs. MS. ARNOLD: Oh, we did? Oh, okay. Next case? MS. HILTON: Our next case is Board of County Commissioners, Collier County, Florida, versus Gerald K. Davidson, case No. 2002-033. At this time, I would like to ask if the respondent is present in the courtroom. And he is not. We have provided the board and the respondent with a packet of information we would like entered as Exhibit A at this time. CHAIRMAN LEHMANN: I would entertain a motion to do so. MR. FLEGAL: So moved. CHAIRMAN LEHMANN: I'll second the motion. All those in favor, signify by saying aye. Any opposed? Page 75 November 18, 2002 (No response.) Motion carries. MS. HILTON: The alleged violation is of section 1.5.6. And as it is an agricultural, we're going to strike 2.6.7.1.1 and 2.6.7.2.1, as they do not apply. It is of Ordinance 91-102, as amended, of the Collier County Land Development Code. The description of the violation is it's the illegal outside storage of inoperable and/or vehicles, and an RV with an invalid license tag on property not approved for such use. There are but not limited to six or more known vehicles. And this is a repeat violator, previous CEB Case No. 2001-077. The location of violation: 2181 Platt Road, Naples, Florida, more particularly described as Folio No. 00104440003. Name and address of owner is Gerald K. Davidson, 4273 20th Avenue Southwest, Naples, Florida, 34116. Date violation first observed: August 27, 2002. Date owner given notice of violation: October 15, 2002. Date on which violation was to be corrected: October 25, 2002. Date of reinspection: October 15th, 2002. ReSults of reinspection: The violation remains. Property in courthouse was posted. Certified mail and regular mail was also provided. And at this time, I would like to mm the case over to the Code Enforcement Investigator Jeff Letoumeau to present the case to the board. CHAIRMAN LEHMANN: Swear in the wimess, please. (Speakers were duly sworn.) MR. LETOURNEAU: For the record, my name is Jeff Letoumeau, Collier County Code Enforcement Board investigator. Originally I brought this case and Mr. Davidson before the board on September 27th, 2001 for illegal and use of outside storage Page November 18, 2002 of inoperable vehicles and untagged vehicles. This board found that there was a violation, and fined Mr. Davidson. The violation remained until February of 2002, in which case I did a recheck and all the violations were removed. On August 27th of 2002, I received an anonymous complaint about more vehicles being brought onto this property. I went out there and found at least six vehicles. It's hard to tell because it's so overgrown I couldn't really walk through all the bushes and everything, but I did physically see six vehicles and took pictures. The violation was found to be the same violation as I brought for September 27th, 2001. No one was there, so I posted a notice of violation. On September 10th, I performed a recheck and found the violation remained. I left a warning note that I would start CEB proceedings, because the violation was a repeat violation. On September 19th the notice of violation was returned unclaimed. On October 15th I did a site visit and all the violations still remained. I proceeded to officially post the property again, post the courthouse and regular mail a notice of violation to Mr. Davidson. On October 29th, I performed a recheck and found the violation remained. I talked it over with my boss, Mr. Morad, and we decided to start CEB proceedings as a repeat offender. On November 4th, my supervisor, Mr. Morad, left a recorded message with Mr. Davidson that this case was being prepared to go before the board. On the 8th of November, Mr. Davidson called Mr. Morad and we explained that this was a repeat case and we were going to take it before the board in November. He said he understood. I went out to the property last Friday on the 15th and the violation still remained. Page November 18, 2002 CHAIRMAN LEHMANN: Any questions? MR. PONTE: Yes. Investigator, I notice from the photographs that they were taken at some distance. So how did you determine that the vehicles were untagged and/or inoperable? MR. LETOURNEAU: The vehicles that I took, well, on the first visit, or actually the first couple of visits, I walked out there and I said -- I didn't take photographs. As you can see on the photographs, they're dated on 10-8-2002. And I first visited in September and then again October. When I went out to take the pictures on (sic) October, there was three dogs running loose on the property, and I didn't really want to go any closer. I did notice that there are no tags on either vehicles I took pictures of, though. MR. PONTE: Makes sense to me. Thank you. CHAIRMAN LEHMANN: And all of these vehicles are in some state of disrepair, which -- they are inoperable at the current time? MR. LETOURNEAU: Correct. MR. FLEGAL: Jeff, if we order them to remove them, what kind of time limit would you think would be sufficient to clear up your violations? MR. LETOURNEAU: I think 30 days would be sufficient. MR. FLEGAL: Thank you. MR. PONTE: The trailer that I'm looking at is -- I assume there's no one living in it; is that correct? MR. LETOURNEAU: Not that I know of. I've never seen anybody out there. MR. PONTE: And is it accessible? In other words, could kids get into it or could vagrants get into it? MR. LETOURNEAU: Anybody could walk in this property and get into anything on this property. It's just wide open. MR. PONTE: So what we have with the trailer, particularly in Page 78 November 18, 2002 the cool weather, is a hazard, an attractive nuisance for kids to -- are there kids around, or is this way out in the country? MR. LETOURNEAU: This is way out. MR. PONTE: Oh, okay. MR. LETOURNEAU: I mean, there are people living around there. I imagine there could be kids. It is an improved property. There is a permitted mobile home on the property. But as far as I know, nobody's been living there for a long time. But there is definitely access to this property. CHAIRMAN LEHMANN: Any further questions? Okay, we'll close the hearing section of this case, open it for discussion. Any discussion or a finding of fact? MR. PONTE: Well, if there's no discussion, I'll make a motion. Apparently -- rather, that a violation does exist in the case of the County Commissioners versus Gerald Davidson, CEB No. 2002-033. The violation is of sections 1.5.6, 2.6.7.1.1, and 2. -- CHAIRMAN LEHMANN: The county has rescinded the other two. It's basically a section of 1.5.6 -- MR. PONTE: All right. So let me just amend the violation to read 1.5.6 and deleting the other two, of Ordinance 91-102 as amended by the Collier County Land Development Code. Description of violation is illegal outside storage of inoperable and/or vehicles and an RV with invalid license tags on the property not approved for such use. MR. FLEGAL: I second the motion. CHAIRMAN LEHMANN: We have a motion by Mr. Ponte, a second by Mr. Flegal. All in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries unanimously. If we could have an order of the board. Page November 18, 2002 MR. FLEGAL: George, do you want to do it? If not, I'll do it. MR. PONTE: Well, just a little discussion. Is it necessary to go directly to the $500 on a repeat? Is that -- in other words, are we taking those to the outer limit, or is there a way that you can say it's $300 or it's 250 or -- MR. FLEGAL: Is that correct, Jean? MS. RAWSON: MR. FLEGAL: You can make it anything you want up to $500. MR. PONTE: MR. FLEGAL: the county. MS. ARNOLD: the last time. MR. FLEGAL: That's right. This is a repeat violation. Yeah, you don't have to do it automatically. Well, what did we fine the respondent last time? I have no way of knowing. You'd have to ask If I have your order. We charged $50 per day Another question to go along with that is did he -- I know Jeff said that that one got abated. Was it abated in time, or did penalties amass? MS. ARNOLD: There were fines assessed, I believe. Let me -- MR. LETOURNEAU: Actually, the hearing was on September 27th. He didn't abate the violations until February. And I think you gave him 30 days to abate it, so he was in violation and getting fines for up to four months, I think. MR. FLEGAL: Do we know if he's paid his old fines? MR. LETOURNEAU: I don't think he's paid his old fines yet. MR. FLEGAL: Well, obviously a light touch didn't work. MR. PONTE: Just so that there is some logic to what we're doing, though, that we might consider doubling the fine. MR. FLEGAL: Sounds nice, except based on what Jeff and Michelle are saying, the $50 didn't impress him, I don't think $100 is going to impress him. He didn't do it on time the first time around. I would venture to say he's probably not going to do it this time around. I'm more prone -- maybe not 500, but 250 sounds like a good Page 80 November 18, 2002 number'to get his attention. He needs to understand the county's serious about keeping property clean. MS. ARNOLD: Just for the board's information, we did forward this to the county attorney's office, his prior case, and the fine amount was about $3,000. MR. FLEGAL: Okay, so it's been forwarded to the county attorney for collection and/or foreclosure, whichever they see fit. CHAIRMAN LEHMANN: Michelle, you also, in staffs recommendation, you recommend the imposition of a fine of $500 for repeat violation. Just a $500 flat fee for repeat violation. Where do you find that in the codes that we could do that? MS. ARNOLD: The board has the ability, if found that this is a recurring or repeat violation, because it had been previously adjudicated that a fine did exist, to fine $500. CHAIRMAN LEHMANN: Do you have a section that we could look at to -- MS. ARNOLD: I'll have Jennifer read you what it says. MS. BELPEDIO: Jennifer Belpedio, assistant county attorney. The provision that you're looking for, Mr. Chairman, is under 162.09. It's entitled administrative fines, cost of repair and liens. Section 2(A). A fine imposed pursuant to this section shall not exceed $250 per day for the first violation and shall not exceed $500 per day for repeat violation. I'll stop there. It continues. MR. PONTE: I think the question was about the per diem. One was -- CHAIRMAN LEHMANN: No, the question was not about the per diem. I understand that. MS. ARNOLD: Right. CHAIRMAN LEHMANN: But in the staffs recommendation, they specifically state impose a fine of $500 for repeat violation, and advise respondent that a fine of $500 per day will be assessed, so on, so forth. Page November 18, 2002 MS. BELPEDIO: We can clarify that. It's $500 per day while the violation is not in compliance. For each day. CHAIRMAN LEHMANN: And that was my concern. It seems like we have a fine -- the fact that you were a repeat violator, automatically pay $500, and then if you don't comply, then you pay $500 a day, according to staffs recommendation. MS. ARNOLD: Right, that was my reading of it, that you could -- the fact that you found previously that a violation did exist, and then your finding again that it did exist on the days that staff noted, you have the ability to fine $500 per day each day the violation is in existence. And our recommendation was to fine $500 for the repeat occurrence and then each day it exists thereafter. CHAIRMAN LEHMANN: I just don't find anything that would support that in the code's ordinances. MS. BELPEDIO: To clarify, you certainly -- I now realize what Michelle was representing to you. You certainly can begin the clock on the day the violation was first observed for repeat violations. So the day that Mr. Letourneau had given you is the day he first observed the violation, you can start the clock on that day and you can charge $500 that day and every day that the violation continues to accrue. I can give you the provision and the statute for that. Let me just find that for you. Okay, that's also in 162.09 under section one. Let me find you a good place to start here. Beginning on the fifth line, in the case of a repeat violation for each day the repeat violation continues, beginning with the date the repeat violation is found to have occurred by the code inspector. I can give you the four or five lines that precede that if you need to hear the provision in its entirety. MR. FLEGAL: I think our chairman's problem, and I'm on his side on this, is that he's looking for the specific language that says the board could impose a flat $500, that's item one. Item two is we want an additional $500 for every day the Page 82 November 18, 2002 occurrence has happened. I don't read that in the statutes or the ordinance. That's why we're wondering where the county came up with this. MS. BELPEDIO: I'm not aware of any such provision. However, it's -- I'll leave it to staffs discretion as to what they'll be asking for. But you certainly can relate back to that first day and accrue $500 per day. CHAIRMAN LEHMANN: Just for the board's knowledge, I don't see it anywhere. It's not in the Florida statutes, it's not in the governing ordinances. We can't assign just a lump sum fine just because you're a repeat violator and then assign a per diem fine as well. MR. FLEGAL: You're right, Mr. Chairman. CHAIRMAN LEHMANN: Any other questions, discussions? Okay, I'd like to proceed then with a motion for the order of the board. MR. FLEGAL: Go ahead, George, you start it. I gave you a recommendation, so if you like it, be my guest. MR. PONTE: All right, a recommendation that CEB finds that a repeat violation exists and orders the respondent to pay all operational costs incurred in the prosecution of this case, and that a fine of $250 per day will be assessed each day the violation is repeated, commencing with the day the violation was -- or the repeat violation was discovered by the investigator. And continues past the date set for compliance by the board. MR. FLEGAL: Which is? How many days are we going to give him? MR. PONTE: Five days. MR. FLEGAL: I don't know that that's enough. When I asked MR. PONTE: There were six vehicles, there are a few more. Get them out of there. Five days. Page 83 November 18, 2002 MR. FLEGAL: I know when I asked Jeff, he said 30 days. I'm not looking necessarily for 30 days, but maybe something a little longer than that. How about-- MR. PONTE: Why? MR. FLEGAL: -- could we go for 107 MR. PONTE: Why would we give this respondent longer than five days to get them off there? MR. FLEGAL: I mean, I don't know where he is. He didn't show up here. I don't know if he's in town. So, I mean, 10 sounds nice. How about 107 MR. PONTE: If you like 10, 10 is fine. MR. LETOURNEAU: I would say at least enough to get the mail to his address. I mean-- MR. FLEGAL: Yeah, we're going to have to mail this to him and then he's going to have to have time to do it. So, I mean, I guess we could send it overnight if we could find him. But at least 10 days, I would think. CHAIRMAN LEHMANN: Mr. Ponte, did I mishear you? Did you say that the fine would start from the day the violation existed, or-- MR. PONTE: No, from the day -- as I understand from the reading, from the day that Inspector Letourneau has found the violation to be repeated. So that this new fine would start the day he found the violation in repeat, not -- CHAIRMAN LEHMANN: So why are we giving him 10 days or five days or anything else? You've already incurred the fine from the moment he -- MR. FLEGAL: Yeah, but you have to give him some time to correct. MR. PONTE: Well, I thought that what we have been told was that the fine could kick in immediately on finding the repeat violation, the time the inspector saw that. Page 84 November 18, 2002 MR. FLEGAL: Jean, is that -- don't we have to give him some time, or do we just leave it open? MS. RAWSON: You can go back to the day of the discovery, which I think was October 29th, and you can charge him whatever you want to charge him every day from then. But then of course I agree, what's the point of giving him time to correct, if you're going to do that? MR. PONTE: So delete that. MR. FLEGAL: So if we just say you're fined from back then and there's no days to correct and you're just fined until you get rid of the violation? MS. ARNOLD: Well, my understanding of-- and we've done this before, is you could do that. And what you're doing, you're fining this person as a repeat violator. So you're fining him or her, and you can -- the fine can continue to accrue until it's corrected. You can give him additional time to correct it, if you want. But you have that option to immediately start the fine and it would continue until the violation is corrected. MR. FLEGAL: Okay, I'm not objecting, I just want it clear in my mind that if we go back to when we first found it and we say the fine starts back yonder, we don't give him a day, we just say the fine is in existence until you clean up the problem, period. MS. RAWSON: That's right. MR. FLEGAL: Okay, I'd go along with that. Cool. MR. PONTE: So amended. MS. BARNETT: And I'll second it. CHAIRMAN LEHMANN: So my understanding of the order of the board is going to -- the CEB finds that a repeat violation exists and orders the respondent to pay all operational costs -- MR. PONTE: Yes. CHAIRMAN LEHMANN: -- number one, in the prosecution of this case. No. 2, advise the respondent that a fine of $250 per day Page November 18, 2002 will be assessed from the date the violation was noted by the code enforcement officer until it is deemed it to be in compliance and corrected. MR. PONTE: Correct. CHAIRMAN LEHMANN: Okay. We have a motion by Mr. Ponte, a second by Ms. Barnett. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries unanimously. MS. ARNOLD: Okay, next item you have is a request -- it's under new business, a request from the respondent for reduction/abatement of fines. And that's Board of County Commissioners versus Shad-Davis, Incorporated. And that's CEB Case 2002-009. And in your packet, you do have the completed request form from Mr. Davis, and he is present here today. CHAIRMAN LEHMANN: Okay. MS. ARNOLD: This particular one, just so that you all know, is -- was heard as a repeat violation. There was a prior case that he's not requesting a reduction of fines for, it's only the 2002 case. CHAIRMAN LEHMANN: Okay. Ms. Rawson, due to the fact that the public hearings are closed, we do not need to take testimony? MS. RAWSON: That's right. CHAIRMAN LEHMANN: Thank you. MR. FLEGAL: Can we ask Michelle a question? CHAIRMAN LEHMANN: Certainly. MR. FLEGAL: As relates to this, Michelle, what is the fine amount? Since we don't have a copy of anything. Can we know what our order said and was there a fine imposed and how much? MS. ARNOLD: Yeah, there was a fine imposed. There was an operational cost of $941.75, plus a fine of $500, which is a total of Page November 18, 2002 $1,441.75. MR. FLEGAL: Thank you. MR. PONTE: $500 flat, or $500 per day? MS. ARNOLD: $500 flat. MR. PONTE: Flat. CHAIRMAN LEHMANN: Okay, Mr. Riina, would you like to say something? I ask that you keep your comments to about five minutes. MR. RIINA: I'll keep it very short, Mr. Chairman. CHAIRMAN LEHMANN: Thank you. MR. RIINA: I think the letter is self-explanatory. CHAIRMAN LEHMANN: Ms. Rawson, do we need to swear Mr. Riina in? MS. RAWSON: If he's going to testify we do. CHAIRMAN LEHMANN: Would you please swear the witness in. (Speaker was duly sworn.) CHAIRMAN LEHMANN: Please proceed. MR. RIINA: Mr. Chairman, I'll cut it short, because it's been a long day. I think the information, the letter is self-explanatory what really happened, and so it's up to the board, the decision they want to make. Thank you. CHAIRMAN LEHMANN: Okay. Open for discussion for the board. MR. FLEGAL: This was a repeat violation. I understand that -- what the respondent says. I think at the time it was a repeat violation. I can remember some of it. I think that's why we did a flat $500 fine, understanding it wasn't totally his fault. I think we were lenient back then. And I guess at this point I don't have any wish, decision, whatever, to abate any part of the fine. I think we made our decision back in the beginning and were lenient at that point, so I think the Page 87 November 18, 2002 fine and costs should stand. CHAIRMAN LEHMANN: Any other comments? MR. PONTE: Well, just -- and I guess Mr. Flegal would have caught this, is the request for the reduction of fine within the time limit that we have to consider such abatement? CHAIRMAN LEHMANN: I don't recall. I don't believe there is -- Ms. Rawson, do we have a time limit on the reduction of fines? MS. RAWSON: No. CHAIRMAN LEHMANN: That time only applies if foreclosure has already proceeded. MS. ARNOLD: I think it is timely. I think we just did the imposition of fines maybe a couple of months ago, if that. CHAIRMAN LEHMANN: I think so. MR. PONTE: Thanks. CHAIRMAN LEHMANN: Any other comments? Hearing no comments, I would entertain a motion to either grant or deny Mr. Riina's request for reduction of fines. MR. FLEGAL: I guess I'll stand by my comment. I'd make a motion that we deny the request. MR. LEFEBVRE: Second. CHAIRMAN LEHMANN: We have a motion by Mr. Flegal, a second by Mr. Lefebvre. All those in favor, signify by saying aye. MS. BARNETT: Aye. MR. LEFEBVRE: Aye. MR. FLEGAL: Aye. CHAIRMAN LEHMANN: MR. RAMSEY: Aye. CHAIRMAN LEHMANN: MR. PONTE: Opposed. CHAIRMAN LEHMANN: carries by a majority vote. Any opposed? We have one opposed. Motion Page November 18, 2002 Thank you, Mr. Riina. If we could move on to the next case. Or excuse me, this is a request 'for imposition of fines. MS. ARNOLD: This is Board of County Commissioners versus Puchhas -- Carl Puchhas, Code Enforcement Board Case 2002-018, and that was for a violation of section 2.7.6.1 and 2.7.6.5 of the Collier County Land Development Code. The case was heard on September 26th, 2002. And at that time the board found a violation did exist and ordered the respondent to correct the violation by either obtaining a building permit for the boat dock or -- and a variance for the encroachment, or remove the same within 30 days. The respondent was also advised that if compliance was not met by the above noted proceedings, then $50 per day would be assessed each day the violation continued. The respondent was also advised that operational costs would be assessed. Staff is at this time requesting that we imposes fines in the amount of $976.55 for operational costs. And there was no additional fine because there is compliance, and we have on our agenda an affidavit of compliance. CHAIRMAN LEHMANN: MR. FLEGAL: So moved. CHAIRMAN LEHMANN: MS. BARNETT: I second. CHAIRMAN LEHMANN: I would entertain a motion to do so. Motion by Mr. Flegal. Any second? Second by Ms. Barnett. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries unanimously. Request for foreclosure. Page November 18, 2002 MS. ARNOLD: Yes, we only have one case on this memo. This is requesting that Charles Goings, Code Enforcement Board Case 2001-076 be forwarded to the county attorney's office for action. CHAIRMAN LEHMANN: Any discussion? Hearing none, I would entertain a motion to do so. MR. PONTE: So moved. MR. FLEGAL: Second. CHAIRMAN LEHMANN: Motion by Mr. Ponte, second by Mr. Flegal. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries unanimously. Affidavits of compliance. MS. ARNOLD: Yes, we have two that's Board of County Commissioners versus Carl Puchhas, Code Enforcement Board Case 2002-018, and Board of County Commissioners versus Ronald Gleichman, that's 2002-020. And the final item under old business is an affidavit of noncompliance, that's the Board of County Commissioners versus Charles H. Goings, CEB Case 2001-076. CHAIRMAN LEHMANN: So noted. Reports? MS. ARNOLD: We have Ellen Chadwell here. MS. CHADWELL: Good afternoon, ladies and gentlemen of the board. Let me hand out to you, if I may, just a little kind of a breakdown in numbers. THE COURT REPORTER: Excuse me, I need you on the microphone. Page ~o November 18, 2002 MS. CHADWELL: Okay, again, for the record, I'm Ellen Chadwell. I'm assistant county attorney. What I just handed out is a memo that kind of breaks down in a numerical fashion the status of, or at least -- yeah, the status of the cases that have been authorized by this board for foreclosure or any other legal proceeding authorized by statute for the collection and enforcement of the liens that you all impose. Just briefly, you can see that some of the older ones -- we still have some of the older ones hanging around. The majority of those are in pending lawsuits for foreclosure. I hope to wrap up a couple of those in the next few months. Some of them have been -- one of those matters is actually the Keiser case, which I believe this board is going to be modifying an order on that sometime in the near future. They will initiate foreclosure proceeding at that point in time. The more recent cases that have come over, we had a total of 44 of those that were delivered to our office in July. Along with that came the March -- a couple of cases out of March. And you can see already that we -- some of our letters -- what I do is I'm mailing those letters saying, you know, this is attaching a copy of the lien and saying we intend to pursue legal proceedings to enforce this, including the foreclosure on any real or personal property you may have. We've got pretty good response from those letters. You can see on some of these that are already disposed of, what is that, five or four that have signed, a couple of others have called in, some of these letters -- a good number of these cases we've just sent some letters out, so they're still within a 30-day period. I'm hopeful that a fair portion of those will pay the lien and dispose of the matter that way as well. So currently, in light of the three that you authorized last month and then you've authorized one today, that puts us at about 50 cases. So we'll keep you abreast. Every quarter I try to come in and Page November 18, 2002 give you a tabulation of where we are. If you need any additional information, please feel free to request that and I'll try to incorporate that in my report. I do -- I don't have any problem addressing any specific matter, cases that are in our office that you might have some inquiries about. But I do try to limit the details, if it is impending litigation. So that being said, are there any questions? MR. FLEGAL: Ellen, I think you answered it. I only had one. In looking at your 49 pending cases my question was, the 27 cases we don't talk about, those are the ones where you have mailed the letter and maybe people have responded or -- because if we take all the, quote, total case items and add them up, you get one number, and the pending cases are 49. So when you subtract, there's 27 cases that aren't addressed. And I'm wondering what are those 27 cases? MS. CHADWELL: Oh, they're gone. For instance, if you look at the first group of the -- there's only a third of those left, nine of the 27. And the rest have either been paid up or we foreclosed and own the property, proud owners of the property now. There's been a couple of those. Or they've been resolved through some type of settlement where the Board of County Commissioners have approved. So those are all finally disposed of. MR. FLEGAL: Would you or would it be hard for you the next quarter when you do it, could you give us one or two sentences that say -- MS. CHADWELL: How they break -- MR. FLEGAL: Yeah, just the number that aren't shown, that they have been disposed of by some method that you handle. MS. CHADWELL: Sure. MR. FLEGAL: Okay? That way we know that they're all gone. Because when I read them I said, good, they're doing a great job, but I wondered what happened to the 27. Then I thought well, maybe they're already closed, so -- and they in fact are. So that's good. Page 92 November 18, 2002 Thank you. MR. PONTE: Is it possible to get one of these that show business end-of-year summaries like -- MS. ARNOLD: Yeah, you can get that from us. MR. PONTE: Okay. That's so I can understand. MS. CHADWELL: My computer skills are somewhat limited, so -- anything else? Okay. CHAIRMAN LEHMANN: That's it. MS. CHADWELL: Thank you very much. CHAIRMAN LEHMANN: Thank you, Ms. Chadwell. Any other comments from the board? All right, next meeting date will be December 16th, 2002. I would entertain a motion to adjourn. MR. PONTE: So moved. MR. FLEGAL: Second. CHAIRMAN LEHMANN: Motion and a second. All those in favor, signify by saying aye. Any opposed? (No response.) There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:20 p.m. COLLIER COUNTY CODE ENFORCEMENT BOARD PETER LEHMANN, CHAIRMAN Transcript prepared on behalf of Gregory Court Reporting Service, Inc., by Cherie' R. Nottingham. Page