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CEB Minutes 12/16/2002 RDecember 16, 2002 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida December 16, 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 Roberta Dusek Clifford Flegal Kathryn Godfrey Gerald Lefebvre George Ponte G. Christopher Ramsey Rhona Saunders ALSO PRESENT: Jean Rawson, Attorney for the Board Michelle Arnold, Code Enforcement Director Jennifer Belpedio, Assistant County Attorney Shanelle Hilton, Code Enforcement Coordinator Page 1 CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA AGENDA Date: December 16, 2002 at 9:00 o'clock a.m. Location: 3301 E. Tamiami Tr., Naples, Florida, Collier County Government Center, Administrative Bldg, 3rd Floor NOTE: ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NEITHER COLLIER COUNTY NOR THE CODE ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. 1. ROLL CALL 2. APPROVAL OF AGENDA 3. APPROVAL OF MINUTES - November 18, 2002 Minutes 4. PUBLIC HEARINGS A. MOTIONS B. HEARINGS 1. BCC vs. Manatee Resort Condominium Association, Inc. CEB NO. 2001-086 Case has been continued from November 29, 2001, December 17, 2001, January 24, 2002, May 23, 2002, September 26, 2002 and October 24, 2002 Location: Gulf shore Drive Alleged Violation: Converting hotel to condominiums without proper occupational licenses amended SDP's or PUD's 2. BCC vs. Benigno and Maria Lopez CEB NO. 2002-031 Location: Golden Gate Estates Alleged Violation: Construction of guesthouse type structure without proper Collier County Building Permits. 3. BCC vs. Estate of William J. Zuccaro and Eileen Sistak, as CEB NO. 2002-036 its Personal Representative Location: Lely - Palmetto Dunes Alleged Violation: Unsafe roof and housing, concrete tiles are missing in places from the roof and sliding and falling down onto the ground and damaged screen enclosure allowing public access to swimming pool. 4. BCC vs. Andrew and Letty Espinoza CEB NO. 2002-035 Location: Palm River Estates Alleged Violation: improper swimming pool filled with water without the proper pool enclosures and or safety fences. NEW BUSINESS A. Request for Imposition of Fines/Liens 1. BCC vs. Dcrya Corp and Usulu Okur, Registered Agent CEB NO. 2002-025 B. Request for Reduction/Abatement of Fines 1. BCC vs. David and Zenaida Falato CEB NO. 2002-012 OLD BUSINESS A. Affidavits of Non-Compliance 1. BCC vs. Derya Corp and Usulu Okur, Registered Agent CEB NO. 2002-025 7. REPORTS 8. COMMENTS 10. NEXT MEETING DATE January 23, 2003 ADJOURN December 16, 2002 CHAIRMAN LEHMANN: Any person who decides to appeal a decision of this board will need a record of the proceedings pertaining thereto, and therefore may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Neither Collier County nor the Code Enforcement Board shall be responsible for providing this record. Roll call, please. MS. HILTON: Good morning, ladies and gentlemen. For the record, Shanelle Hilton, CEB coordinator. Peter Lehmann? CHAIRMAN LEHMANN: Present. MS. HILTON: Roberta Dusek? MS. DUSEK: Here. MS. HILTON: Clifford Flegal? MR. FLEGAL: Present. MS. HILTON: George Ponte? MR. PONTE: Here. MS. HILTON: Rhona Saunders? MS. SAUNDERS: Here. MS. HILTON: Kathryn Godfrey? MS. GODFREY: Here. MS. HILTON: Sheri Barnett? MS. BARNETT: Here. MS. HILTON: Gerald Lefebvre? MR. LEFEBVRE: Present. MS. HILTON: G. Christopher Ramsey? MR. RAMSEY: Here. CHAIRMAN LEHMANN: Move on to approval of the agenda. Any corrections? MS. ARNOLD: No. No, we don't. CHAIRMAN LEHMANN: I would move that we approve the Page 2 December 16, 2002 agenda. MS. DUSEK: So moved. CHAIRMAN LEHMANN: I have a motion by Ms. Dusek. Do I hear a second? MS. GODFREY: Second. CHAIRMAN LEHMANN: Second from Ms. Godfrey. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Motion carries unanimously. Proceed to approval of the minutes. Ms. Arnold, any corrections or changes to the minutes? MS. ARNOLD: I have none. CHAIRMAN LEHMANN: Okay. I would move for a motion -- excuse me, I would move that we approve the minutes as written. MR. PONTE: Second. CHAIRMAN LEHMANN: We have a second by Mr. Ponte. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Motion carries unanimously. I can proceed to the public hearings. We have no motions, so we'll go straight to the hearings. First case, BCC versus Manatee Resort Condominium Association, Incorporated, CEB Case No. 2001-086. MS. ARNOLD: Okay, for the record, Michelle Arnold, code enforcement director. We do have a motion from -- for the Manatee case, but I'm going to turn the Mic over to assistant county attorney, Jennifer Belpedio, to speak to the motion and the status of the case. MS. BELPEDIO: Jennifer Belpedio, assistant county attorney, for the record. Page 3 December 16, 2002 I see Michelle is handing you out a copy of Mr. White's motion for a continuance. The motions are accurate. The county does not have an objection to the continuance. We're in agreement. Currently our office has drafted a finalized agreement for settlement of this matter. We're just waiting for the SDP to be approved. That's in review at the community development environmental services, and should be just a matter of time before that agreement is signed. I don't know if there's much other information that you require, but I certainly can answer some questions, if you have any. CHAIRMAN LEHMANN: My understanding of this motion is that the variance was denied by the commission? MS. BELPEDIO: That is true. CHAIRMAN LEHMANN: And that they are proceeding with the SDP and that looks like that's a doable thing? MS. BELPEDIO: Yes, that is true. CHAIRMAN LEHMANN: What type of time frame are we looking at? MS. BELPEDIO: I believe that the reason why the SDP approval is held up is that the figures for the impact fees that need to be paid, which is a prerequisite to SDP approval, have to be relayed to the attorneys for the Manatees. Currently there is no number that has been discussed. If that number is reasonable to them, they have agreed to pay that amount and get the SDP approved. CHAIRMAN LEHMANN: And the SDP documentation was already in hand with the county -- MS. BELPEDIO: Yes, it has been. CHAIRMAN LEHMANN: -- and has been reviewed? MS. BELPEDIO: For a few weeks, at least. CHAIRMAN LEHMANN: Okay. If the SDP was approved, this would basically negate any violations that the CEB may have against Manatee? Page 4 December 16, 2002 MS. BELPEDIO: It's my understanding from hearing the last BCC meeting that the utilization of the right-of-way for the computation of the density is likely to be appropriate and will be approved, so all the units will be lawful. Yes is the answer to your question. CHAIRMAN LEHMANN: And do you have any projection on time? You're asking for a continuance. What is the time that we're trying to continue to? MS. BELPEDIO: I think at this point it may be best to continue indefinitely until we hear from development services as to the status. If there's a need to bring the case back to the agenda, then we will do so. But it's likely that we will not. I'm just cautious about dismissing a case without an agreement signed. CHAIRMAN LEHMANN: Okay, thank you. Any other questions from the board? Thank you. MS. BELPEDIO: Thank you. CHAIRMAN LEHMANN: From the respondent's side, do you have any comments you wish to address the board with? MR. WHITE: Yes. For the record, my name is Austin White. I'm the attorney for the Manatee Resort Condominium Association and the unit owners. Basically we concur with everything that Jennifer said. We're pleased to announce to you that finally the Board of County Commissioners acted on this, gave direction to staff to approve our amendment to the site development plan to change the use of the property from hotel and transient use to multi-family residential use. We've are willing to sign the settlement agreement. We've seen a draft. We're just, as Jennifer said, waiting for the impact fees that have to be paid for the change in use to be given to us so that we can make the arrangements for the payment of those with the unit owners. Page 5 December 16, 2002 We had hoped that this would be dismissed. The staff asked us instead to file a motion for continuance, which we are doing. We hope you can continue it indefinitely until this settlement agreement can be finalized. CHAIRMAN LEHMANN: Thank you. MR. WHITE: Thank you. CHAIRMAN LEHMANN: Ms. Rawson, if the board decides to grant a continuance to an indefinite period, we retain all of our rights to prosecute-- MS. RAWSON: Yes, we do. CHAIRMAN LEHMANN: -- the case? Thank you. MS. RAWSON: And the staff can always bring it back before US. CHAIRMAN LEHMANN: Any other comments or discussion from the board? MS. DUSEK: I make a motion that we grant the continuance. CHAIRMAN LEHMANN: And that's for an indefinite period o f time? MS. DUSEK: MR. PONTE: For an indefinite period of time. I'll second. MS. SAUNDERS: Second. CHAIRMAN LEHMANN: We have a motion by Ms. Dusek, a second by Mr. Ponte; is that correct? Okay, all those in favor, signify by saying aye. MR. PONTE: Aye. CHAIRMAN LEHMANN: Aye. MS. DUSEK: Aye. MS. GODFREY: Aye. MS. SAUNDERS: Aye. MS. BARNETT: Aye. CHAIRMAN LEHMANN: Any opposed? MR. FLEGAL: No. Page 6 December 16, 2002 CHAIRMAN LEHMANN: We have one opposed? MR. FLEGAL: Yes. CHAIRMAN LEHMANN: Motion carries. MR. WHITE: Thank you very much, and happy holidays to all. CHAIRMAN LEHMANN: Thank you. We'll proceed to the next case, BCC versus Benigno and Maria Lopez, CEB Case No. 2002-031. MS. HILTON: At this time I would like to ask if the respondent is present in the courtroom. Let the record show the respondent is present in the courtroom. We have provided the board and the respondent with a packet of information which we'd like entered as Exhibit A at this time. CHAIRMAN LEHMANN: I would entertain a motion to do so. MS. DUSEK: I'll second. CHAIRMAN LEHMANN: Motion by Ms. Dusek, I'll second that motion. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Motion carries. Please proceed. MS. HILTON: The alleged violation is of section 2.7.6.1 and 2.7.6.5 of Ordinance 91-102 as amended of the Collier County Land Development Code. Description of violation: A structure utilized as a guest house with electrical and septic improvements erected without first obtaining the proper Collier County building permits. Location where violation exists: 145 Ninth Street Northwest, Naples, Florida. More particularly described as Folio No. 370-6680000, Golden Gate Estates. Name and address of owner in charge of location where violation exists: Benigno and Maria Lopez. That's B-E-N-I-G-N-O. Husband and wife. And Roderick Hilgeman. H-I-L-G-E-M-A-N. Page 7 December 16, 2002 Date And 13, 2002. Address: 145 Ninth Street Northwest, Naples, Florida. Date violation first observed: April 16, 2002. owner given notice of violation: April 16th, 2002. amended notice of violation was provided on September Date on which violation was to be corrected was April 30th, 2002. And for the amended notice of violation was October 25, 2002. Date of reinspection: October 26th, 2002. Result: The violation remains. And at this time I would like to turn the case over to the code enforcement investigator, Jeff Letourneau. CHAIRMAN LEHMANN: One second, Mr. Letourneau. If we could have -- Mr. Lopez, do you wish to give testimony in this case? MR. LOPEZ: Yes. CHAIRMAN LEHMANN: Okay. If you would rise, please. State your name and we'll swear the witnesses in. (Speakers were duly sworn.) CHAIRMAN LEHMANN: Thank you. Please proceed. MR. LETOURNEAU: For the record, my name is Jeff Letourneau, Collier County code enforcement investigator. Bear with me, I'm a little bit under the weather today. I received an anonymous complaint on April 16th, 2002 about a nonpermitted guest house at 145 Ninth Street Northwest in Golden Gate Estates. I went to that site and observed a single-family residence and a guest house type structure in the rear of the property. After reviewing the property card, I determined that the only permit ever issued for this property was for the single-family residence. I posted an NOV and had one sent certified mail. On May 10th, I called Mr. Lopez and was advised that he hired Coastal Engineering to pull his permits for his guest house. During Page 8 December 16, 2002 the next couple of months, Mr. Lopez had attempted to get ahold of various firms to get his structure permitted. And on June 13th, I called Nolens Permitting and was told that they had given Mr. Lopez a list of things that he needed to supply them to get the permit. However, they had not heard from him. I called Mr. Lopez and he stated he had now hired a friend to do the drawings and his friend was very busy. On June 26th, Mr. Lopez told me his engineering firm was running behind with the drawings and needed additional time. This stuff is pretty usual right now, because due to the new fees and everything, the engineering firms are very backed up. So I gave Mr. Lopez plenty of time to get this permit. On August 14th I called Mr. Lopez and I was told the permitted structure was a guest house and he was unable to get a certified drawing of the structure. On September 17th, I called Mr. Lopez and advised him because he wouldn't get the structure permitted we would be forced to bring him before the code board. On October 15th another notice of violation was posted on the property and at the courthouse and mailed regular mail because the property owner didn't pick up the certified mail. The notice was also sent to Mr. Hilgeman, who is another owner of record on the property. On November 5th, my supervisor, Mr. Morad, called Mr. Lopez, advising him he was being scheduled to go before the board, and Mr. Lopez told Mr. Morad that he would appear. The structure remains the same as when I first saw it on April 16th. Now, on Friday last week I was given a note here by the health department, and I'd like to give it as in evidence. I don't know how I go about doing that, though. CHAIRMAN LEHMANN: We can enter that as County's Exhibit A. Page 9 December 16, 2002 MR. LETOURNEAU: Okay. I only printed up eight copies, though, so-- CHAIRMAN LEHMANN: I would entertain a motion to enter in evidence as County's Composite Exhibit A. MS. DUSEK: So moved. MS. SAUNDERS: Second. CHAIRMAN LEHMANN: We have a motion by Ms. Dusek, a second by Ms. Saunders. All those in favor, signify by saying aye. Any opposed? (No response.) MS. RAWSON: It may be actually Exhibit B, because I think Exhibit A is probably the packet. CHAIRMAN LEHMANN: I apologize and thank you very much for the correction. Please note so. MR. LETOURNEAU: As you can see by this, the health department has always taken an interest in this property. And the engineering technician, Tom Booth, has been on the property and noted that the septic for the nonpermitted guest house has never been permitted either. So there's also a health hazard on this property as we speak. MR. PONTE: Investigator, I have a question for you. MR. LETOURNEAU: Sure. MR. PONTE: Is it in your opinion that the reason so many firms have been involved and then either dropped the case is because of this and was this a health hazard, the reason Mr. Lopez in August was unable to get anyone to move ahead and certify this stuff?. MR. LETOURNEAU: In my opinion I think that the -- I don't think the whole structure is -- can be permitted as a guest house without some major renovations. And I think the engineers asked for those renovations, and I don't think Mr. Lopez could do them at the time, but that's just, you know, my opinion. I don't really know. Page 10 December 16, 2002 MR. PONTE: Okay, thank you. CHAIRMAN LEHMANN: Any further questions from the board? Thank you, sir. Mr. Lopez, would you like to present your case? MR. LOPEZ: Good morning. Well, I bought the house like that. I bought the house about a year and a half ago. MS. ARNOLD: Excuse me, has Mr. Lopez been sworn? CHAIRMAN LEHMANN: Yes. Please proceed. MR. LOPEZ: I bought the house about a year and a half ago. I went to Century 21. I said I wanted a house with a guest house, and this is the house I bought. I didn't know anything about the guest house permits or anything like that until Jeff had called me, or left a notice. And I've tried to get people to -- not that anybody's come out and looked at the house and said that it's not -- it can't be able to have permits drawn on it. It's they can't get anybody out there to do it. Nobody seems to be -- I guess I don't know if it's not enough money for them to make or they're just too busy, but they say they're going to come out. When I tell them the guest house is already built, they don't want to come out. I guess they say something about the engineering stamps, that they don't want to be responsible. The guest house, from my opinion, I'm looking at it, it's a very well built house. It's strong. From what I understand, it was built about 10 years ago. So the guest house has been there for at least 10 years. And also, the county, from what I understand, there was a fellow out there -- I never spoke to him. My son called me. And I asked him a few questions over the phone. And he said that the -- according to satellite images, the guest house has been there at least 10 years. I don't know who that fellow is. He didn't leave me any card or anything. Page 11 December 16, 2002 I'm willing to -- if somebody would help me, I'm willing to do it, to get it permitted. The septic tank, I had it pumped out a couple weeks ago because of the letter that was sent to me. I said, well, let me just pump those -- pump the septic tanks out so that they're -- you know, I don't cause a hazard. And they were both pumped out. They're in -- the front one is fine, from what I understand. The back one is a septic tank. But from what the guy told me, it has a poor drain field. Other than that, he's -- I really don't know what to do. CHAIRMAN LEHMANN: Mr. Lopez, you've talked with a contractor; is that correct? MR. LOPEZ: Uh-huh. CHAIRMAN LEHMANN: And you've talked with an engineering company, I believe it may have been Coastal; is that correct? MR. LOPEZ: Yes. CHAIRMAN LEHMANN: And they're saying what in this case, as far as getting a permit? MR. LOPEZ: They don't want to do it. They don't wanted to be involved. CHAIRMAN LEHMANN: Any reason why they -- MR. LOPEZ: Because the guest house is already built. If it was to draw new plans on a new guest house, which is what they thought it was going to be. And when I told them you have to come out and look at it and get in the roof and look at the trusses, and I guess certify the slab or whatever, then they said no, they didn't want to handle it. MS. DUSEK: Jeff, I have a question for you while Mr. Lopez is uP* Did you -- I'm sure you must have researched back to see if there were any permits for this structure? MR. LETOURNEAU: I checked the property card at the Page 12 December 16, 2002 property appraisers, and the only permit ever issued was for the single-family structure for his house. Nothing else on that property for the guest house structure has ever been permitted. MS. DUSEK: I know that the county can't give him a name, but can you give him a list of people to call, since he seems to be running up against a brick wall here with other companies? Can you do that? MR. LETOURNEAU: I could probably come up with a list of three or four people that he might be able to contact, yes, sure. MS. DUSEK: Had that been offered or had that been requested before? MR. LETOURNEAU: No, I never offered it because he was always involved with somebody, and, you know -- and then he never requested it later on. I figured that after contacting Jenny Nolan's and Coastal, that the structure couldn't be permitted. But I'd be more than willing to give him a list of three or four people. MS. DUSEK: Is there a chance -- your comment that you didn't think from their results of their communication with him that it could be permitted. Is -- MR. LETOURNEAU: Well, I just took it that, you know, since nobody really wanted to do it, that that was probably the reason, because it was an older structure and it might not be able to meet today's, you know, more stringent codes. MR. FLEGAL: Jeff, may I ask you a question? When you checked the property cards, is the house 10 years old or is it older than the guest house? MR. LETOURNEAU: I don't know. I don't have the property card in front of me. I don't know how old the guest house really is, so I couldn't make that decision. I think the house is older than the guest house, but that's just my opinion. You know, I don't know. Without having -- you know, knowing when the guest house was actually built compared to when the house was built, I couldn't tell yOU. Page 13 December 16, 2002 MR. FLEGAL: The permits for the house, okay, did you actually look at the permits for the house? MR. LETOURNEAU: No, I didn't. I just checked the property card. MR. FLEGAL: Okay. The only reason I'm asking that question, to preclude maybe a mistake in filling out a property card, I was wondering if when the house was built the guest house was built at the same time. In other words, it might be on that permit to build a house and a guest house. MR. LETOURNEAU: I've never seen that happen before in the county. When they build structures, they usually have one permit for each individual structure. I don't think they've ever issued a permit for two different structures that aren't attached. MR. FLEGAL: Okay, thank you. CHAIRMAN LEHMANN: Mr. Letourneau, in the staffs recommendation, it calls for an abatement of these violations within 60 days of this hearing. In this case where the respondent may have to obtain engineering and other things for that structure, is that a legitimate time frame for him to accomplish that task? MR. LETOURNEAU: I would say it's a legitimate time to get the permit issued. I don't know about getting the total CO in 60 days. CHAIRMAN LEHMANN: Okay. In your statement you -- or in the staffs recommendation, you're looking for 30 days after that to obtain the -- I take that back. Certificate of occupancy within 30 days after the permit, okay. MR. LETOURNEAU: Yeah, that should be enough time. I think it was -- what does it say 60 days to get the permit and then 30 days after that to get the -- CHAIRMAN LEHMANN: The CO. MR. LETOURNEAU: Right. CHAIRMAN LEHMANN: Okay. MR. PONTE: Investigator, just a point of clarification: Would Page 14 December 16, 2002 that be sufficient time and all to correct these problems as well? MR. LETOURNEAU: Well, when he gets the permit, that's going to be part of the permit also, so that will be one inspection that the health department will have to do. And yeah, it should be unless it -- if he runs into complications of putting in a -- like he said, a new drain field, it might run longer. I don't -- I'm not really sure. CHAIRMAN LEHMANN: Okay, Mr. Lopez, any other comments you'd like to add for the board's attention? MR. LOPEZ: Well, the fellow here had asked if one was built before the other. The main house is about 20 years old. CHAIRMAN LEHMANN: Okay. MR. LOPEZ: Other than that, no, I don't. CHAIRMAN LEHMANN: All right, thank you very much. Any questions from the board for either witness? MS. SAUNDERS: Mr. Lopez, yes. Is the guest house occupied right now? MR. LOPEZ: My son's living in it, yes. CHAIRMAN LEHMANN: Okay, if you'd have a seat, please. Thank you. We'll close the public hearing of this section of this particular case and proceed with discussions and a finding of fact and order of the board. MR. PONTE: Let me just ask the board, because I don't know, is there any grandfathering here? I mean, the house is 20 years old. So there's no -- MS. DUSEK: Well, it's not the house that's being questioned -- MR. PONTE: No, I know. MS. DUSEK: -- it's the guest house. MR. PONTE: But the house is 20 and let's say the guest house is 15 or whatever. Is there any grandfathering in there? CHAIRMAN LEHMANN: Even 20 years ago, a permit would have been required for the guest house. Page 15 December 16, 2002 Is that correct, Michelle? MS. ARNOLD: That's correct. CHAIRMAN LEHMANN: Thank you. MS. DUSEK: I make a motion that there is a violation in the case of the Board of County Commissioners versus Benigno and Maria Lopez and Roderick H. Hilgeman in the case CEB No. 2002-031. The alleged violation of section 2.7.6.1 and 2.7.6.5 of Ordinance No. 91-102, as amended of the Collier County Land Development Code. The description of the violation: A structure utilized as a guest house with electrical and septic improvements erected without first obtaining the proper Collier County building permits. CHAIRMAN LEHMANN: We have a motion by Ms. Dusek. I will second that motion. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries unanimously. We can proceed with an order of the board. MR. PONTE: I'd go along with staff recommendation except for the time frame. Given the holiday periods that we are about to encounter and difficulties encountered by the respondent prior to coming before us, I think that we have to look at the time frame here. MS. DUSEK: I agree with you. MS. BARNETT: I do, too. MS. DUSEK: of 60, perhaps 90? MR. PONTE: MS. DUSEK: MR. PONTE: MS. DUSEK: And would your suggestion be another-- instead Uh-huh. I think so. And after that, the CO would be 45 days? I don't know. Add another 30. Another 30? Page 16 December 16, 2002 MR. PONTE: Yeah, so it would be 60. MS. DUSEK: Well, I'm in agreement for giving him his -- being lenient with the time, because it sounds like he's been trying to get this accomplished. So I would certainly accept that, George, if you want to put it to a motion. MR. PONTE: Let's see what we've said here. We said 90 days and 60 days. So my motion would be that we follow the staff recommendation as detailed, but that the -- that the time frame be changed so that all permits required for the structure and improvements be completed within 90 days of this hearing, rather than 60 days. And that further, the inspections be performed to obtain a certificate of occupancy within 60 days, rather than 30 days after obtaining the required permits. MS. ARNOLD: Do you all want to change the last time frame as well, to be consistent with the -- MR. PONTE: Yes. MS. ARNOLD: -- first? 90 days? MR. PONTE: Yes. MS. DUSEK: And the fine remains the same, George? MR. PONTE: Yes, I think so. MS. DUSEK: Okay. I'll second the motion. CHAIRMAN LEHMANN: Mr. Ponte has made a motion. And, Mr. Ponte, let me clarify that motion, if you would, and tell me if I'm saying the right thing. Your motion is that the CEB order the respondent to pay all operational costs incurred in the prosecution of this case and abate all violations through obtaining all permits required for the described structure improvements within 90 days of this hearing. MR. PONTE: Correct. CHAIRMAN LEHMANN: Must request or cause required Page 17 December 16, 2002 inspections to be performed and obtain a certificate of occupancy within 60 days. After obtaining the required permits or removal and demolish the structure, guest house, within 90 days of hearing after obtaining demolition permit or a fine of $100 per day will be imposed for each day the violation continues. MR. PONTE: Yes. CHAIRMAN LEHMANN: That is correct. So we have a motion by Mr. Ponte and a second by Ms. Dusek. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries unanimously. Mr. Lopez, do you understand the order of the board? MR. LOPEZ: Yes. CHAIRMAN LEHMANN: Okay, thank you very much. If we would proceed to the next case, Case No. 2002-036. MS. HILTON: Board of County Commissioners versus Estate of William J. Zeccaro, Z-U-C-C-A-R-O, and Eileen Sitak, S-I-T-A-K, as his personal representative. At this time I would like to ask if the respondent is present in the courtroom. MR. SKIRVAN: Yes, I'm here on behalf of the estate. MS. HILTON: So noted. CHAIRMAN LEHMANN: Sir, your name is? MR. SKIRVAN: Kent Skirvan. CHAIRMAN LEHMANN: Thank you. MS. HILTON: We have previously provided the respondent and the board with a packet of information which we'd like entered as Exhibit A at this time. MS. DUSEK: I make the motion that we accept the County's Exhibit A. Page 18 December 16, 2002 MS. BARNETT: I'll second it. CHAIRMAN LEHMANN: We have a motion by Ms. Dusek, a second by Ms. Barnett. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Motion carries unanimously. Please proceed. MS. HILTON: The alleged violation is of section 101.4.9.2 of Collier County Ordinance 2002-01 adopting the Florida building codes and amending chapter one. The description of the violation: Unsafe housing conditions. Concrete tiles are missing from the roof and sliding and falling off onto the ground. And there's also damage to the screen enclosure, allowing access to the swimming pool. Location where the violation exists: 101 Palmetto Dunes Circle, Naples, Florida. More particularly described as Folio No. 552500-4001 Lely. Name and address of owner and person in charge of location where violation exists would be William J. and Dorothy Zuccaro. And they live in Illinois. And the estate of William J. Zuccaro, in care of Eileen Sitak as its personal representative and their attorney is present, Kent A. Skirvan. Date violation first observed: April 22nd, 2002. Date owner given notice of violation: September 14th, 2002 was the amended notice of violation. And date on which violation was to be corrected was November 8th -- oh, no, excuse me, November 25th. Date of reinspection: Friday, October 13th-- MS. ARNOLD: No. MS. HILTON: November 13th, excuse me. MS. ARNOLD: December. Page 19 December 16, 2002 MS. HILTON: December 13th. And the violation still remains. And at this time, I would like to turn the case over to the code enforcement investigator, Cathy Van Poucke, to present the case to the board. CHAIRMAN LEHMANN: One second. If we could swear the witnesses in, please. And Mr. Skirvan, you're acting as an attorney as opposed to a witness? MR. SKIRVAN: Yes. (Speakers were duly sworn.) MS. VAN POUCKE: For the record, Cathy Vanpoucke, and that's V-A-N P-O-U-C-K-E, Collier County code enforcement investigator. The investigation was started due to a citizen complaint about damage to the roof tiles at 101 Palmetto Dune Circle. My first visit to the location was April 24th, in which I did observe several tiles that were damaged and remaining on the roof. No one was home during my visit, so I did -- I mailed a notice to the address of the violation and the northern address that we had for the homeowner. Both notices were returned unclaimed. So on June 4th, I posted a notice at the location and at the courthouse. On June 28th, I received a voice mail message from who I believe, if I remember right, was the owner's daughter, Ms. Sitak, and she left a message saying that she was made aware of the violation and that she would take care of it but had requested an additional 10 days. The violation remained. And from that date all through September, I made -- along with my supervisor, had made several attempts to contact Ms. Sitak in which she very seldom returned phone calls. When she did, she did say that she was trying to take Page 20 December 16, 2002 care of the problem. On October 14th -- also, she had indicated that her father had passed away, but that she was responsible for the property. On October 14th, I researched the probate file to find the responsible party, in which a new notice of violation was sent to that party. And on 11-14, another notice of violation was sent to the responsible party to include the damage that was done to the lanai screen. On November 26th, I had received a fax from the attorney representing the estate saying that they have hired someone to repair the screen, and he also included a copy of a proposal to repair the damage to the roof. However, on the 13th, last Friday, when I was there, the violations still remain. MR. PONTE: Investigator Van Poucke, I have some concern here, particularly about the screen enclosure that is open. Is -- and the pool, really. Is the breakage in the screen sufficiently large enough to allow children to get in there and play? MS. VAN POUCKE: No. The -- actually, the damage to the screen is up rather high. MR. PONTE: So there isn't any attractive nuisance that could be dangerous with a pool of water that was unprotected? MS. VAN POUCKE: They could walk through the door if they wanted to. MR. PONTE: Is the house not secure? MS. VAN POUCKE: The house would be locked up. But as far as the lanai, I'm sure anybody could get into it if they wanted to. CHAIRMAN LEHMANN: So the screen damage would not impose any additional safety threat from kids getting into it? MS. VAN POUCKE: Not in my opinion. MR. PONTE: So there's a door that's on the screen? Page 21 December 16, 2002 MS. VAN POUCKE: Well, the pool is serviced, so people have access to the pool. So I assume that they leave the door open. MR. PONTE: So the pool is filled with water? MS. VAN POUCKE: Yes. MR. PONTE: Thank you. CHAIRMAN LEHMANN: investigator? Thank you. Mr. Skirvan? MR. SKIRVAN: Thank you. Oh, yes. Any other questions for the I'm the attorney for the personal representative in the probate matters. If I could, just a brief history. Both Mr. and Mrs, Zuccaro who are the owners of the property, are deceased. This is an ancillary administration, the main administration taking place in Illinois. There had been at one point fairly severe fighting among the beneficiaries of each estate -- which the beneficiaries were not the same for Mr. Zuccaro's estate as for Mrs. Zuccaro's estate -- to the point where the deed deeding this property to the Zuccaros many years ago was somewhat ambiguous. There was fighting over which estate the property in. And finally a quiet title action was had and it was decided it would be in Mr. Zuccaro's estate. The reason for giving you the history is for a while I think no one really knew whose responsibility the property was. The estate has retained a screen company, which has said in their proposal they will be out there by December 19th to correct the screen violation. And in November they accepted a proposal from a roofing company to take care of the tile issues. The apparent problem was that they thought they could replace the roof with shingles. The deed restrictions in the community required a tile roof. It's my understanding the tiles are on order. And as soon as they are here, the roofers are ready to commence work to correct those violations. Page 22 December 16, 2002 Nobody is in Florida. I mean, the personal representative is located in Illinois. There is no one on-site here. But, again, I have the contracts for both the roofing and the screen, if I could admit these into evidence as Exhibit A. You'll have to excuse my unfamiliarity with the proceedings. I'm a probate attorney, so this is all a little bit new to me. CHAIRMAN LEHMANN: You'll find that it might be a little different. I would entertain a motion to enter Respondent's Composite Exhibit A. MR. FLEGAL: So moved. MS. SAUNDERS: Second. CHAIRMAN LEHMANN: A motion by Mr. Flegal, a second by Ms. Saunders. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries. Mr. Skirvan, while we're getting your exhibit here, we have evidence that concrete tiles are missing from the roof. Is there any evidence of a roof leak because of that? MR. SKIRVAN: None that we're aware of, sir. CHAIRMAN LEHMANN: So the roof tiles have just vanished and the membrane is still intact? MR. SKIRVAN: Yes, that's my understanding, that there's been no leakage or anything of that nature inside the premises. The property has recently been listed with Remax Realty for sale, and I've received no notification from the realtor that there's any damage inside the house, any mildew, any issues like that. CHAIRMAN LEHMANN: Okay. One question real quick for the investigator of the case, Ms. Letourneau -- I'm sorry, Ms. Van Poucke. Page 23 December 16, 2002 MS. VAN POUCKE: We look a lot alike. CHAIRMAN LEHMANN: No, I apologize. The description of the violation references an unsafe housing condition. What evidence do you have that supports that accusation? MS. VAN POUCKE: What some people would consider it unsafe due to the fact that the tiles remain on the roof and there's fear of the tiles sliding off. CHAIRMAN LEHMANN: And what code do you have that supports that interpretation? MS. VAN POUCKE: Supports -- CHAIRMAN LEHMANN: The interpretation that tiles sliding off the roof is an unsafe housing condition. MS. VAN POUCKE: It would be the minimum housing ordinance, but I don't have that in my packet. CHAIRMAN LEHMANN: The violation references section 101.4.9.2 of Collier County Ordinance 2002-01. MS. VAN POUCKE: It would be 89 -- the last -- it would be 89-06, section five, paragraphs 12(C) and 12(N), but I don't have a copy of that ordinance. CHAIRMAN LEHMANN: But that particular ordinance was not cited in the violation; is that correct? MS. VAN POUCKE: Yes, it was. On the notice that was sent November 14th. CHAIRMAN LEHMANN: I gotcha. All right. MR. PONTE: I have one other question. This estimate that Jerry's Rescreening has put forward here, it's talking about repairing those panels, the lanai panels. And as I recall, when I asked you whether or not the entrance to the pool was a problem you said no, because the broken panels were up high. This repair estimate is for rescreening four bottom panels. MS. VAN POUCKE: I don't know about the bottom panels. But if you'll look at my picture, you'll see that it is the upper panel Page 24 December 16, 2002 next to the door that is ripped out. CHAIRMAN LEHMANN: Getting back to the code section -- I don't mean to interrupt you, Mr. Ponte -- but I don't have in my package reference to code section 2000 -- or Ordinance No. 2002-05. Does anybody have that available so we can look at that? MS. ARNOLD: What section are you referring to? CHAIRMAN LEHMANN: Your notice of ordinance violation and order to correct dated 11-14-02 references Ordinance No. 89-06 as amended by 2002-05, section five, paragraph 12(C) and 12(N). MS. ARNOLD: Your amended notice. CHAIRMAN LEHMANN: I don't happen to have those in my package to look at. MS. RAWSON: The statement of violation only indicates 2002-01, section 101.4.9.2. CHAIRMAN LEHMANN: Well, that's really the crux of what I'm getting at. The violation-- the description of the violation defines this as an unsafe housing condition. And I'm having a hard time understanding why this would qualify for that initial rating. And unfortunately, I don't have in my package the -- MS. ARNOLD: The Ordinance No. 2002-05, sections five, paragraphs 12(C) and 12(N) are the minimum housing code. They were provided with the notice that was sent via mail, but we don't have a copy for this proceeding. CHAIRMAN LEHMANN: Okay. And, again, I don't have the ordinance section that precedes the reference section and 2002-01. So I don't -- I'm having a hard time understanding why this particular section, 101.4.9, actually defines an unsafe condition. Or is this a standard requirement for the building codes? MS. ARNOLD: 101.4.9.2 is on Page 21 of your packet. CHAIRMAN LEHMANN: That's correct. And that's a new section entitled maintenance, as opposed to unsafe building conditions. Page 25 December 16, 2002 MS. DUSEK: Well, when I look at it, it's a maintenance program, and it says shall be maintained in a safe and sanitary condition. MS. ARNOLD: Right. MS. DUSEK: Is your question is this considered unsafe? CHAIRMAN LEHMANN: That's exactly my question. You know, if we're going to find the respondent in violation of a code section, I just want to make sure that he is actually in violation of the particular code section. MS. ARNOLD: Well, the section that we cited was 101.4.9.2, which requires that all building structures, whether they're electrical, mechanical, whatever, be maintained. And one of the structure materials that we're referring to is a roofing condition, and it's not being maintained. And maintenance would include, you know, securing the tiles to the roof. It's not being specific to, you know, define that you have to have the tiles secured to the roof, but that's the general intent of that section, that all materials have to be constructed properly and maintained. CHAIRMAN LEHMANN: So are you saying -- and I don't mean to put words in your mouth, but are you saying that due to the loose tiles on the roof, we have created an unsafe condition, such as in high wind situations, the tiles may be lifted and thrown into somebody else's property? MS. ARNOLD: Correct. CHAIRMAN LEHMANN: Okay. MS. ARNOLD: I think -- I don't know and I don't want to put words into the investigator's mouth, but I think in the executive summary it did say that some of the tiles are sliding off the roof, so -- CHAIRMAN LEHMANN: You're worried about falling as well? MS. ARNOLD: Yes. Page 26 December 16, 2002 CHAIRMAN LEHMANN: Thank you. And I apologize. MS. DUSEK: That's all right. I also wanted to understand what sections we're citing them for. I know that we're citing them for 101.4.9.2. Now, is there another section that we're -- CHAIRMAN LEHMANN: No. MS. DUSEK: Just that one? MS. ARNOLD: Well, the notice of vio -- or the statement of violation does not include the minimum housing code ordinance, which is 2002-05. MS. DUSEK: So we're not including that today? MS. VAN POUCKE: It is on the notice. MS. ARNOLD: It's on the notice of violation. But in your packet that is being presented to you today, that information was not included. MS. DUSEK: Okay. So we're not citing him for this? MS. ARNOLD: Yes, that's correct. CHAIRMAN LEHMANN: Mr. Skirvan, I apologize for the interruption. If you'd please proceed. MR. SKIRVAN: Thank you. Again, effort is being made to remedy the situation, as it seems that the only danger posed at this point would be the loose tiles. I believe certainly we could get someone up there to remove those much more quickly while we're waiting for the materials to be delivered to retile the roof where the tiles are missing. Again, there's no other damage to the structure or to the roof, you know, where the building would be in danger of collapsing or anything of that nature. So, again, I believe any hazard could be corrected fairly quickly by removing any loose tiles that may be up there. And, again, contracts are in place to remedy the situation, so -- CHAIRMAN LEHMANN: Thank you. Any questions for the respondent's attorney at this time from the Page 27 December 16, 2002 board? MS. DUSEK: So basically just recapping, if the tiles were removed, there really wouldn't be a violation? CHAIRMAN LEHMANN: There wouldn't be a safety issue. The violation would-- MS. ARNOLD: But there would still be a maintenance -- MS. DUSEK: A maintenance. MS. ARNOLD: Yeah. MS. DUSEK: Okay. MS. SAUNDERS: If I may, I'm having trouble with an idea of citing this as a code violation, really. I do think there is a maintenance problem here, but every -- the maintenance problem, it seems to me they've already taken actions and we've got proof of those actions that they're going to be corrected. The damaged screen enclosure allowing access to the swimming pool, we've heard testimony that says that's not so. The fact that they need a new roof doesn't to me seem that this is something that should be before code enforcement at this point. CHAIRMAN LEHMANN: Well, the board has to act on any cases that are brought before us. We don't get to pick and choose. The case has been brought before us and we need to render a decision one way or the other. Your decision may be that a violation is not warranted. That could be a viable decision of this board. MS. SAUNDERS: That is where I'm leaning, especially if I've got the assurance of the representative that they're just going to take the loose tiles off, which happens before the roof gets fixed. I don't see a violation. I really don't. CHAIRMAN LEHMANN: Okay. Any other questions for the respondent? MS. DUSEK: The only problem-- and Rhona, and I understand where you're coming from, that, yes, we have a contract in front of us, but it has not been done yet. And we assume that it will be Page 28 December 16, 2002 corrected, and I'm sure it will be, but we can't go on an assumption when the violation exists today. CHAIRMAN LEHMANN: Let me at least close the hearing portion of this case. Mr. Skirvan, if you'd have a seat, please. Appreciate it. MR. SKIRVAN: Thank you. CHAIRMAN LEHMANN: We'll close the hearing portion of this case and open it for discussion before the board. MR. PONTE: I think that the unsafe condition that you've been looking for has to do with the open pool situation. It's in a -- the house is located in a residential area. There are school children. And the pictures contained on Page 24 suggest to me that the estimate for repair of bottom screens is accurate. And that little wall that's there at the bottom certainly wouldn't prohibit any kid from getting in there. The fact that the pool is filled with water makes it even more dangerous. I think that's the unsafe condition, not these few loose tiles pictured on the roof on Page 24. So that if we find a violation, I think we'd really have to increase the speed with which the lanai cage is progressed. That has -- it should be fixed today. CHAIRMAN LEHMANN: Well, I would respectfully disagree with my colleague. I don't think the screen enclosure has any bearing on safety of the pool, bearing in mind that the screen door is left open and unlocked. MR. PONTE: Well, that may -- CHAIRMAN LEHMANN: Anyone can go in and out. MR. PONTE: That may also be a violation. I'm not sure. CHAIRMAN LEHMANN: I mean, if you go to a normal person's home throughout the county, you'll probably find that those screen doors are left unlocked on numerous occasions. The fact that the screen is torn and the door is unlocked, quite frankly, people would probably go through the door faster than they would try to go Page 29 December 16, 2002 through a piece of screening or something of that nature. I think if we have a true safety problem, then that would be with the tiles in a high wind condition being lifted and thrown someplace or falling off the roof, one or the other. MR. FLEGAL: Mr. Chairman, I understand George's concern, but I don't believe there is a law that says you have to lock your doors. CHAIRMAN LEHMANN: That's correct. MR. FLEGAL: Anywhere. So you can leave everything unlocked. So therefore, every house in Collier County is unsafe. There is no ordinance protecting you from that. And a screen? Be realistic, a kid wants in a pool, you walk up, punch your hand through the screen, you're in. Can't protect from that either. CHAIRMAN LEHMANN: I agree with my colleague on that. MS. DUSEK: I concur there. I also think that even if these tiles were removed on the roof, the fact that they're loose all around it to begin with, whatever has caused this to happen would probably continue to happen, and tiles could be blown off and be unsafe. MS. BARNETT: I have to agree with you. I lived here in Hurricane Donna. We actually had a tile roof across the street that came in and smashed a boat that was in our garage. So, I mean, high wind conditions, which when this first was noticed I believe was still in hurricane season, I think was a point that was taken as the unsafe condition. I have to agree with screen enclosure, if somebody wants in, they're going to get in. But I do think that for the aesthetics of the community, it needs to be fixed. CHAIRMAN LEHMANN: Well, I would caution the board, and I'm going to speak on a professional basis in a sense outside of this board. I'm very familiar with doing inspections on roofs and Page 30 December 16, 2002 with roof tile. It is not uncommon to find loose tiles on a roof that is performing naturally and aging naturally. The sheer fact that we have tiles that have fallen off, okay, this is a little bit more extensive, but again, I think once these tiles are removed from the roof, you no longer have your problem. The high wind can hit and the tiles shouldn't be lifted and picked up. Anything other than that would naturally occur with a normal roof under these aging conditions, and so on and so forth. So again, I think you really need to put this in perspective. The pictures are fairly bad in a graphical sense. I mean, they're very good in showing you what the details are, but I think as long as the respondent arranges to have these loose tiles removed and then the roof repaired in the normal course of time, I think we really don't have a major problem. Granted, in the current condition things could slide off and somebody might actually get hit by a tile or we might have high wind tomorrow and it goes through somebody's house. MS. DUSEK: Well, I think what we have to consider is what is the condition today, the violation that's brought before us today. That's what we're making our decision on, not tomorrow when they remove the tiles or when this other work is done. The violation that's before us today, is there a violation today? CHAIRMAN LEHMANN: Correct. I would entertain a motion for a finding of fact. MS. DUSEK: I make a motion that in the case of the Board of County Commissioners versus William-- the Estate of William J. Zuccaro and Eileen Sitak as its personal representative in the case CEB No. 2002-036, that a violation does exist. The violation is of section 101.4.9.2 of Collier County Ordinance No. 2002-101, adopting the Florida building codes and amending chapter one. The description of the violation is: Unsafe housing conditions, concrete tiles are missing from the roof and are sliding and falling off Page 31 December 16, 2002 the roof onto the ground. CHAIRMAN LEHMANN: No mention of the damaged screen enclosure? MS. DUSEK: And damaged screen enclosure. MS. BARNETT: I'll second that. CHAIRMAN LEHMANN: We have a motion by Ms. Dusek, a second by Ms. Barnett. All those in favor, signify saying aye. MR. FLEGAL: Aye. CHAIRMAN LEHMANN: Aye. MR. PONTE: Aye. MS. BARNETT: Aye. MS. DUSEK: Aye. MS. GODFREY: Aye. CHAIRMAN LEHMANN: Any opposed? MS. SAUNDERS: Opposed. CHAIRMAN LEHMANN: One opposed. Motion carries. I would entertain an order of the board. Any discussions first? MR. PONTE: Yeah. I think that staff has recommended $150 a day as being the fine. But if there is absolutely no danger and the fact that the pool is insecure or unsecure, and if there's no real danger once the tiles are removed from the roof, not necessarily that the roof be repaired, but just the tiles, loose tiles removed, I think $150 is a bit on the steep side. CHAIRMAN LEHMANN: Well, again, I'm not saying there's no real danger. In a high wind condition, high winds can pick up tiles from many different types of roofs in many different types of conditions. All I'm saying on this roof is from the pictures, which is very, very limited information, it appears to be normal in the other areas. So I would agree, I think $150 a day is a little bit high. I would recommend maybe that the order of the board follow the line of Page 32 December 16, 2002 asking the respondent to remove all the loose tiles in an appropriate fashion within a short period of time, making sure that if he does remove a loose tile and find something where we would allow water intrusion or collateral damage to occur, that he would fix that as well. And then to obtain the repairs on the roof within another period of time and fix the screen enclosure within a period of time. But again, I think the major fine would be occurring if the loose things, the items that are causing the unsafe building condition, are not rectified in a short period of time. And the other problems can follow their normal course. Just comment for the board. MS. DUSEK: I think that the recommendation that the CEB has made, with the exception of the fine, seems certainly acceptable to me. And, of course, I think the fine should be a lot less, maybe $75. MS. BARNETT: The one question that I would have with that recommendation is as he is brought to a point, possibly having a shorter period of time for the loose tiles to be removed, rather than 30 days. CHAIRMAN LEHMANN: I would suggest within seven days, seven calendar days. It give sufficient time for somebody to go up there, just take them off and dispose of them, and then obtain the necessary permits for the roof repair within 30 days, which is more than enough, and have the repairs completed within 60 days. That's fine. MS. DUSEK: Mr. Skirvan, do you feel s could get someone there within a week to remove the tiles? MR. SKIRVAN: Yes, ma'am. MR. FLEGAL: Mr. Skirvan, do you have any idea when you're -- you said the tiles are being delayed. Do you know when they're coming? MR. SKIRVAN: I tried to place a call on Friday to get an update from the roofer and was unable to reach him. The attorney handling the domiciliary estate is in Illinois. He indicated he Page 33 December 16, 2002 expected they would be here within about 14 days, when I spoke with him last week. I wanted to verify that with the roofer, but was unable to do so. So we're thinking about two weeks roughly until the tiles should be delivered to the roofer. And then hopefully he can start fairly quickly after that. CHAIRMAN LEHMANN: Is there any problem with any third party entity obtaining access to the property, working on the property? MR. SKIRVAN: No access issues. The only one issue which was encountered originally was they issue of they wanted to put shingles on there and were told by the homeowner's association they couldn't. I understand this roofer has done extensive work in the Lely community and said there should be no problem in getting the quick homeowner's approval for these tiles. That was the only other issue. MR. FLEGAL: I'm just gun shy about giving him 30 days. If the material's not going to be available, that's not their fault. Okay, thank you, sir. MR. SKIRVAN: Thank you. CHAIRMAN LEHMANN: I would still entertain a motion or an order. MS. DUSEK: The seven days you recommended was for not roof repair? CHAIRMAN LEHMANN: Would you like me to proceed with the motion? MS. DUSEK: Sure. I think you do a wonderful job. CHAIRMAN LEHMANN: I would move that the CEB order the respondent to pay all operational costs incurred in the prosecution of this case and abate all violations by doing the following: Within seven days' period of time, remove all loose tiles that would affect the safety of the structure and nearby residence. If that is not accomplished within seven days, then a fine of $150 per day will be Page 34 December 16, 2002 imposed for each day the violation continues. Second, obtain all necessary permits for the roof repair within 30 days and have the roof repaired and certificate of completion or occupancy, however the county would do that, within 60 days of this hearing. Third, to obtain a screen enclosure permit within 14 days and have the screen enclosure repaired, inspected and CO'd or certificate of completion within 30 days of this hearing. Should items No. 2 and 3 not be completed within their time frames, a fine of $75 per day will be incurred or imposed for each day the violation continues. MS. DUSEK: Okay. I still have a problem with the $150 a day, even on the seven-day removal of the tiles. And Cliff, you had mentioned 30 days that you didn't feel was quite enough time. What were you considering? MR. FLEGAL: Well, since it's unknown, I guess in reality the 30 days is okay. If they don't get the tile delivered, they always have the right to come and ask us to reduce or abate the fine because it wasn't their fault. MS. ARNOLD: Or at least an extension. MR. FLEGAL: You know, I could live with that, I guess, because they do have an out. MS. ARNOLD: The 30 days is for obtaining the permit, right, not for the completion of the work? MS. DUSEK: That's right. CHAIRMAN LEHMANN: That's correct. MS. DUSEK: My only problem then is your $150. I'd like to see both at 75. CHAIRMAN LEHMANN: Okay, I don't have an objection either way. I would so amend the motion. MS. SAUNDERS: Question, in our original finding of violation, did we mention the screens? Page 35 December 16, 2002 MR. FLEGAL: Yes. MS. SAUNDERS: I thought we left that out. CHAIRMAN LEHMANN: No. MR. FLEGAL: He added that. MS. SAUNDERS: Oh, okay. MS. DUSEK: I second the motion then. CHAIRMAN LEHMANN: We have a motion by myself, a second by Ms. Dusek. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries unanimously. Mr. Skirvan, do you understand the order of the board then? MR. SKIRVAN: Yes, sir, I do. CHAIRMAN LEHMANN: Okay. Thank you. If we can proceed to the next case then. MS. HILTON: That is Board of County Commissioners versus Andrew D. Espinoza and Letty Espinoza, CEB No. 2002-035. The alleged viola -- oh, excuse me, at this time I'd like to ask if the respondent is present in the courtroom. The respondent is not present in the courtroom. We have previously 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 so move. Do I hear a second? MS. DUSEK: Second. CHAIRMAN LEHMANN: A motion by myself, second by Ms. Dusek. All those in favor, signify by saying aye. Any opposed? (No response.) Page 36 December 16, 2002 CHAIRMAN LEHMANN: Hearing none, motion carries. MS. HILTON: The alleged violation is of section 103.5.2 of Ordinance No. 2002-01, adopting the Florida Building Code and amending chapter one, and has been renumbered as 103.11.2. The description of violation: An improper swimming -- swimming pool improperly filled with water without the proper pool enclosures and/or safety fence. Location of violation: 300 Country Club Drive, Naples, Florida. More particularly described as Folio No. 65521400001, Palm River Estates. Name and address of owner in charge of location where violation exists: Was Andrew and Letty Espinoza, 300 Country Club Drive, Naples, Florida, 34110. Date violation first observed: April 29th, 2002. Date owner given notice of violation: May 15th, 2002. And amended notice of violation was provided on November 15th, 2002. Date on which violation was to be corrected: May 23, 2002. And for the amended notice of violation, November 18th, 2002. Date of reinspection was October 4th and December 13th as well. And the result of the reinspection is the violation remains. And at this time I would like to mm the case over to the code enforcement investigator, Larry Schwartz, to present the case to the board. CHAIRMAN LEHMANN: If you would swear the witnesses in, please. (Speakers were duly sworn.) MR. SCHWARTZ: Good morning, members of the board. I first observed the case on April 29th when I went to the location of 300 Country Club Drive. That's a comer lot. Has three streets. I observed that the fence -- part of the fence was missing. I spoke to the violators about it and I told them that they had two choices: They can get a permit and fix the fence, or they could drain Page 37 December 16, 2002 the water out of the pool. At that point he told me he was going to put up a temporary fence. He put up a temporary fence. Then I went back a few days later and I observed the temporary fence. But I told him he still needed to get a permit to put up a permanent fence. This has been going on now, it's seven months, and there's no fence there. The swimming pool is full. It's a safety hazard for all the children in the neighborhood. It's a residential neighborhood. And each time I've made contact, they were going to fix it. They did apply for a permit a few months ago, but that was rejected by the county for -- there was something wrong with the application. So then I went back there again. I told them that they were going to have to drain the pool. And they refused to comply with the orders of the board-- the orders of the county, you know. And I explained to them, and I was very lenient with them, and I gave them an awful lot of time to come into compliance, but they still haven't come into compliance. And I stressed that it was a safety issue for the children in the neighborhood. It's an open gate. There's no gate there, no fence there. It's three streets, so children can come in from any direction. And it had to be fixed, and they have not fixed it. MS. DUSEK: With your last conversation with them, did they give you any plan of what they were planning to do? MR. SCHWARTZ: My last conversation with them was that they had to get the permit or drain the pool. And then when I came back -- I came back subsequently to that and told them that -- she told me that, Mrs. Espinoza, that they couldn't get a permit, that it was rejected, they didn't know why. And I told them that it was for fire safety. That the summer was over, everything was over, that they had to drain the pool. And she says, well, I didn't know what you want me to do with the water. And I said, the pool has to be Page 38 December 16, 2002 drained or a permit has to be obtained and a fence put up, and we left it at that. CHAIRMAN LEHMANN: Would draining the pool not create other problems? MR. SCHWARTZ: You know, if they drained it properly, it would eliminate the water in the pool and any of the children drowning. CHAIRMAN LEHMANN: True. But then you'd have a falling hazard and the pool might suffer any other type of damage from draining the pool. MR. SCHWARTZ: That's correct. They've had seven and a half months to comply, to obtain a permit. CHAIRMAN LEHMANN: Gotcha. Any other questions for Mr. Schwartz? MR. PONTE: Yes, Jim, one. Mr. Schwartz, on the photo that's on Page 1, the angle confuses me a little bit. The fence that goes around the perimeter of the property does not come around behind here; is that correct? MR. SCHWARTZ: Is this the photo you're looking at? MR. PONTE: Yes. MR. SCHWARTZ: There was a fence here at one time, and it fenced in the whole area. This whole property, you -- it's -- you can get there from the streets. So that was a fence that was fine. But for some reason they either took it down or it broke and it left the pool exposed. MR. PONTE: So you've got a dog leg here that's wide open. MR. SCHWARTZ: Yes, yes. MR. PONTE: Thank you. MR. LEFEBVRE: I have a question. In these two different pictures, the first one on 7/15/2002 doesn't show any post. It shows what looks like a generator and a hose there. And then if you look at the picture on 8/21/2002, it shows two large poles that appear to be Page 39 December 16, 2002 going into the ground through the brick pavers. MR. SCHWARTZ: Yes. MR. LEFEBVRE: Is that in attempt to securing the pool at all or -- MR. SCHWARTZ: Yes, yes. But he needed a permit to do that and he never obtained a permit, and that is no fence there. MR. LEFEBVRE: So it remains as we see from this picture of 8/21/20027 MR. SCHWARTZ: Yes. CHAIRMAN LEHMANN: Any further questions for the investigator? Hearing none, Mr. Schwartz, thank you very much. MR. SCHWARTZ: This -- this -- CHAIRMAN LEHMANN: I'm sorry? MR. SCHWARTZ: The new ordinance states now when you're building a pool enclosure, you have to put the latches high enough so that children cannot get into it. And you also -- before you can fill the pool, you have to have a fence or a pool enclosure built. So that's what we're trying to do now. CHAIRMAN LEHMANN: Thank you. I'd close the hearing portion of this case and open it for discussion for the board. MR. PONTE: I have to use Yogi Berra's line and say it feels like deja vu all over again. MS. DUSEK: This one I really see a problem with. I make a motion that in the case of Board of Collier County Commissioners versus Andrew and Letty Espinoza that a violation does exist in the case of CEB No. 2002-035. The violation is of sections 103.5.2 of Ordinance No. 2002-01, adopting the Florida Building Code and amending chapter one. Description of the violation: Observed an improper swimming pool filled with water without the proper pool enclosures and/or Page 40 December 16, 2002 safety fence. CHAIRMAN LEHMANN: I would second that motion. Motion from Ms. Dusek, seconded by myself. All in those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries unanimously. Order of the board? MS. SAUNDERS: In this case, I would follow the staff recommendations. And I think that the fine of $150 per day is justified, since they haven't done anything. So I'll make a motion that code enforcement board order the respondent to pay all operational costs incurred in the prosecution of this case and abate all violations through permitting and installation of the required safety fencing pool enclosure within 30 days or a fine of $150 per day will be imposed for each day the violation continues. MR. PONTE: I'll second that. MS. DUSEK: I have just a question. In the event -- and Michelle, I guess I'm asking this question to you. In the event that the owner ignores this and just lets the fines run up, we still have a safety issue. So what happens? I mean, we just let this run? I mean, is there something else that we can do within this recommendation that might correct this safety hazard more quickly? CHAIRMAN LEHMANN: The board can order staff to take action. MS. ARNOLD: Yeah, but then we have the issue with access to the property. And if the property owner is not granting the contractor that we're going to hire access, we will have a problem. And I don't know whether or not the county attorney's office can think of any alternative. MR. FLEGAL: Ms. Rawson? Page 41 December 16, 2002 MS. RAWSON: Yes. MR. FLEGAL: Question: If the board orders the county to resolve the issue, is there an access problem? MS. RAWSON: It might be a -- because it's not exactly like when the county goes out and cuts down the grass, you know. They've got to have access into the house. And I'm not sure that your order is enough to give them access -- MS. ARNOLD: Well, if it's access for improving the property as opposed to -- Jennifer was just indicating perhaps we could drain the pool to -- you know, so that it's safe -- MS. RAWSON: We've done that before. MS. ARNOLD: -- and it doesn't pop out, but not constructing something on the property. CHAIRMAN LEHMANN: My concern in draining the pool, quite frankly, is you run the risk of the pool popping out of the ground if we have a high rain. MR. PONTE: Or you have a kid fall into the pool. The pool is six feet deep. MS. ARNOLD: Yes, you still do have a safety -- CHAIRMAN LEHMANN: Again, I would not want the county to be liable for damages caused by its actions to try to secure the property for safety. I'd rather see some other method where we didn't incur damages, such as putting up a fence. But again, either way we're doing this, either we drain the pool or put up a fence, we still have an access issue. I can't drain the pool without access to the property, legal access. MS. ARNOLD: Well, the access -- there is sufficient access, I mean, because the property is completely open. It's -- as the investigator indicated, it's a comer lot and it's got -- three sides of it is surrounded. It's just exposed by road. CHAIRMAN LEHMANN: I understand. But at this particular case, do you have legal access to the property to go mess with their Page 42 December 16, 2002 pool? MS. ARNOLD: No. I don't -- I would think that we would have to get some sort of other authority from -- CHAIRMAN LEHMANN: Right. MS. ARNOLD: -- the courts to do that. CHAIRMAN LEHMANN: Which will take time. MS. ARNOLD: Yeah. CHAIRMAN LEHMANN: One way or the other. MS. DUSEK: I'm still concerned that it won't be resolved. But I guess at this point, Ms. Rawson, we can only go with what staff has recommended. I mean, is that as far as we can go with it? MS. RAWSON: No. You don't always go with what staff recommends. And as you did in the last case, you can even add some things. If you're concerned about the safety issue and you're concerned that the respondent might not comply, you know, you can direct staff to do something that it's legally permitted to do; for example, put a fence up. MS. DUSEK: But as Michelle was saying, that may be a long process. It might go into the court system. MS. RAWSON: Well, I don't think you can go in and repair the pool. That's what you'd need access, so you wouldn't be trespassing. But if there is a safety issue just to go put a fence up around it so that it's not a safety hazard for children in the neighborhood, I think you can do that. MS. ARNOLD: fencing rather than -- MS. RAWSON: MS. ARNOLD: MS. RAWSON: Perhaps we can pursue more of a temporary Correct. Okay. I think we've done that in the past. Only if it's an emergency situation because of a health and safety hazard. And then, of course, if the county has to do that, you want to Page 43 December 16, 2002 have the costs moved on to the respondent. MS. DUSEK: I know that the motion has been seconded, but I wondered if we can -- can we amend it after it's been seconded? CHAIRMAN LEHMANN: Yes, if we would repeal the second and then repeal the motion, or amend the motion. MR. PONTE: I'll repeal the second. CHAIRMAN LEHMANN: Okay. Now, the question is how would you like to have the motion amended? MS. DUSEK: That if following staffs recommendation that he has not corrected it within the time frame given, that the county go in and at least put up a temporary fence, or whatever they can do legally to take away the safety issue. CHAIRMAN LEHMANN: Okay, but you're leaving the 30 days out? In other words, the county is not taking any action until 30 days? MS. DUSEK: Well, quite frankly, I don't know how soon someone could get in to put up a fence, you know, the homeowner. And so -- CHAIRMAN LEHMANN: Just for discussion, if I as a homeowner contacted a fencing company, they would be able to within a relatively short period of time, based on their workload, put up a temporary chain-link fence. You do it at construction sites, you can do it at other sites. My only concern with that is do we have legal access on the property to place that fence in a spot where we can legally do that? MR. PONTE: Does the fence have to be on their property? The fence could be right at the line, could it not? CHAIRMAN LEHMANN: Well, that's what I'm saying, maybe in the right-of-way and surround the property in a right-of-way in the sense that okay, now we can fence off this pool from other people besides the owners doing that. MS. DUSEK: But I think you have -- Page 44 December 16, 2002 CHAIRMAN LEHMANN: Again, is that a legal action? MS. DUSEK: I wouldn't think you'd be able to do that because of setbacks; is that correct? MS. ARNOLD: On fences you can put it on the property line. MS. DUSEK: Right on the property line? MS. ARNOLD: Uh-huh. CHAIRMAN LEHMANN: And my question stands again, do we have the legal access to do that without the owner's consent? MS. ARNOLD: Well, I think the motion is to pursue whatever is legally possible. So we would look into what we could possibly do to erect a temporary fence. MS. DUSEK: Now, the question was 30 days to the owner. Do you feel that's too long? I mean, it's a safety issue. It should be corrected today, but we have to be realistic. CHAIRMAN LEHMANN: I would certainly say it's too long. I would probably shorten that down to about 14 days, 15 days. The only problem with that is the holidays. Unless he's out there on Christmas Eve doing it himself, then obviously no one's going to work for him on Christmas Eve. MS. DUSEK: I think we should leave the motion at 30 days and then after 30 days if it hasn't been corrected then ask the county to do whatever they can do legally to correct the safety issue. CHAIRMAN LEHMANN: I would so amend the motion. MR. FLEGAL: Question: Refresh my memory, the fine, we're sticking with the recommendation of $150? CHAIRMAN LEHMANN: Yes. MS. DUSEK: Yes. MR. FLEGAL: Since we have a safety issue that we're concerned about, in this -- and we may have an issue getting onto the property, I think this calls for a higher fine. MS. BARNETT: I'm in agreement with you. MR. FLEGAL: Put some incentive. Let's go to the max at 250 Page 45 December 16, 2002 a day. That puts the onus on them that we are worried about the safety. Puts as much pressure as we can. How does that sound? CHAIRMAN LEHMANN: Point well taken. I would amend the motion to make that so. Jean, do you understand what the motion is now? Because I think we're getting a little convoluted here. MS. RAWSON: I do. And just so you know, I will say if the respondent doesn't comply with your order that the county may take steps to alleviate the problem for health and safety reasons, rather than you ordering the county to do that. We can order the respondent to do it. Then if he doesn't and they need to, they may do it. CHAIRMAN LEHMANN: That's a point well taken. So now that everybody's amended this order and I've agreed to it. MR. PONTE: I'm actually going to suggest something else. I think the 250 is too high. Yes, there is a safety issue, and that's a good buzz word. But 250 is the maximum fine that we can levy. It is not the maximum violation I've seen come before this board. I -- MS. DUSEK: I'm leaning that way also, George. MR. PONTE: 200, perhaps, but not right-out-flat-out to our absolute max. It's not-right-out-flat-out absolute max violation. CHAIRMAN LEHMANN: Well, again, the idea, and I agree with it, is we need to get the respondent's attention on this. MR. PONTE: $200 a day will get their attention. CHAIRMAN LEHMANN: Well, there's no doubt. MR. FLEGAL: No, but I think-- CHAIRMAN LEHMANN: We've been dealing with this since April 29th. MR. FLEGAL: Yeah. One of the items that we look at supposedly is the gravity of the violation. I think here the gravity is that he has an unsafe pool. And he's been fooling with this since April and hasn't done anything. He obviously isn't too excited about Page 46 December 16, 2002 doing anything. MR. PONTE: Well, as you have pointed out, pools don't have to be secured by locked gates, nor if any kid wants to get into a pool, they can punch their hand through the screen. So getting into a pool is not much of a problem. MR. FLEGAL: But here there's nothing to even punch through. It's just open. You can just walk up. MR. PONTE: What we're talking about is the fine. And so I think the fine of $200 -- 250 is excessive. CHAIRMAN LEHMANN: Well, if you look at Ordinance 92-80, which governs us, section 11, penalties, item No. 2, in determining the amount of any fine -- in determining the amount of the fine, if any, the enforcement board shall consider the following factors: The gravity of the violation. We have a safety issue. No. 2, any actions taken by a violator to correct the violation. At this point in time since April 29th, I don't see much action. No. 3, any previous violations committed by the violator, which I don't think pertains to this case. But I think we have a safety issue, and I think we have a respondent who in a sense is not really taking any action to it. MR. PONTE: I agree with you 100 percent. I'm just saying that as you view the actions of this board, the actions and judgments of it must be consistent and reflect the case. If we added something that was even more severe than this, we could only fine $250. I think there is a -- you have to temper the finding with a range. MS. DUSEK: I feel the same way, and I feel like we have had properties where there have been a number of safety issues and then we go to the max. I think $200 would be a max on this. CHAIRMAN LEHMANN: Personally, I think 150 is going to get their attention, 250, 200, it doesn't matter one way or the other. I think the point is we need to get the respondent's attention. If the board is happier with $200 per day, I don't have any objection to amending the motion in that matter. $50 a day doesn't matter one Page 47 December 16, 2002 way or the other. The point here is that we need some action on this relatively quickly and we also have the ability to go in and do what we want to do, if we choose to. So just to move on with the case, I do not mind amending the order again down to a $200 limit, and I would ask for a second for that motion so we can proceed. MS. DUSEK: Second. CHAIRMAN LEHMANN: We have a motion by myself, a second by Ms. Dusek. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries unanimously. I'd like to adjourn right now for a 1 O-minute break. We'll come back at 10:40. (Brief recess.) CHAIRMAN LEHMANN: I'd like to reconvene the hearing. We have a request for imposition of fines, liens, Case No. 2002-25. MS. ARNOLD: For the record, Michelle Arnold, code enforcement director. The first item is Board of County Commissioners versus Derya Corp. and Usulu Okur for the registered agent. That's CEB Case 2002-025. This case was heard by the board on October 24th, 2002, and the board at that particular hearing found the respondent in violation and ordered the respondent to correct all the cited violations through installing all the required components of the approved site improvement plan -- or site development plan and landscaping, parking lots, striping, et cetera, within 30 days or by November 23rd, 2002. Page 48 December 16, 2002 The board also ordered that if the respondent did not comply with that order to correct, that a fine of $100 per day would be imposed each day the violation passed beyond November 23rd. The respondent was also advised that they would pay operational costs for the prosecution of the case. Staff is at this time requesting the board impose fines in the amount of $1,400 for a period of November 25th through December 9th at a rate of $100 per day, and additionally impose the operational costs of $1,566.85. CHAIRMAN LEHMANN: Any discussion from the board? MS. DUSEK: No. CHAIRMAN LEHMANN: Hearing none -- MR. FLEGAL: I make a -- CHAIRMAN LEHMANN: -- I enter a motion -- MR. FLEGAL: I make a motion we impose the fines as requested. MS. DUSEK: Second. CHAIRMAN LEHMANN: We have a motion by Mr. Flegal, a second by Ms. Dusek. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries. Proceed to the next case, Case No. 2002-012. MS. ARNOLD: Okay, this next request is for a reduction/abatement of fines. This is Board of County Commissioners versus David and Zenaida Falato. And the respondents are present, and this is their request. CHAIRMAN LEHMANN: Ms. Arnold, do you have anything from the county you would like to enter into first? MS. ARNOLD: We have provided you all with a packet from the respondent. We have received a packet from the respondent. Page 49 December 16, 2002 In the information that you have been provided, we just summarized when the case was heard, what the description of the violation was, and the current stares of the case. We did impose fines, I believe, at the last hearing, and those were in the amount of $3,750, with the operational costs of $1,314.75. CHAIRMAN LEHMANN: Thank you. Ms. Falato, would you like to approach the podium? Ms. Rawson, this is a not a hearing, per se. Do we need to swear the Falatos in at all? MS. RAWSON: If they're going to say anything, we should have them sworn in. CHAIRMAN LEHMANN: If you would, please. (Speakers were duly sworn.) CHAIRMAN LEHMANN: Please proceed. MR. FALATO: You all have the packet, correct? CHAIRMAN LEHMANN: Yes, sir. MR. FALATO: Okay. MRS. FALATO: Also, we'd like to submit some pictures that's relevant to us. MR. FALATO: It's relevant to the case. CHAIRMAN LEHMANN: Procedurally, if we could just take a minute. Ms. Rawson, the package, do we need to vote that into evidence? MS. RAWSON: We do. CHAIRMAN LEHMANN: Okay. I would entertain a motion to do so. MS. SAUNDERS: So moved. MS. GODFREY: Second. CHAIRMAN LEHMANN: We have a motion from Ms. Saunders, a second by Ms. Godfrey. All those in favor, signify by saying aye. Any opposed? Page 50 December 16, 2002 (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries. And you say you have other evidence? MRS. FALATO: Yes. Some pictures of the house and of the area. Also some correspondences that we have copies of. CHAIRMAN LEHMANN: Okay, I would move that we enter that as Respondent's Exhibit B. MRS. FALATO: And also Florida Statute 112. CHAIRMAN LEHMANN: Exhibit B. Do I hear a second? MS. DUSEK: Second. CHAIRMAN LEHMANN: MS. DUSEK: I second. CHAIRMAN LEHMANN: second by Ms. Dusek. Okay. We'll make it Composite Or do we have a motion? I made a motion. We have a motion by myself, a All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Hearing none, motion carries. MRS. FALATO: We are requesting fines to be abated and the case be dismissed due to reasons we have submitted. And we'll go over them one by one. I have some questions to ask of code enforcement, if that would be all right. CHAIRMAN LEHMANN: Just one second. I'm sorry, please proceed. MRS. FALATO: I'm sorry, I have some questions of code enforcement. MR. FALATO: We've got some questions for code enforcement. Sorry Dennis isn't present this morning. CHAIRMAN LEHMANN: All right. MR. FLEGAL: Mr. Chairman? Page 51 December 16, 2002 CHAIRMAN LEHMANN: MR. FLEGAL' fine, not a rehearing. anything. MR. FALATO: MR. FLEGAL: MR. FALATO: MR. FLEGAL: MR. FALATO: Yes. Question. This is a request for abatement of They don't need to ask code enforcement Sure, we do. Excuse me, sir. Excuse me. No. This is our turn to talk. MR. FLEGAL: Mr. Chairman -- it's not your turn to talk. CHAIRMAN LEHMANN: Mr. Falato, my colleague is correct. This is an administrative task. What -- in a sense what we're looking for is why are you -- or I should say what evidence or conditions are you -- MR. FALATO: We're going to go through it. You have the packet in front of you. We're going to go through it from beginning to end. CHAIRMAN LEHMANN: All right. As soon as we get that, then we'll let you proceed and we'll go through that process. But again, if you would restrain your-- or constrain your discussions to why you're looking for the abatement specifically. MR. FALATO: Sir, we need to get started with the case, okay? It's all in front of you. We're going to go through it from beginning to end. Thank you. Ready, babe? MRS. FALATO: Well, Michelle is still handing out some things. CHAIRMAN LEHMANN: Does everyone have the respondents' package? All right, if you would, please proceed. MRS. FALATO: Dennis, who is the inspector who initiated this case, is not here today, so I have to gear some of my questions over Page 52 December 16, 2002 to-- MR. FALATO: To Michelle Arnold. MRS. FALATO: -- to Michelle Arnold. And, Michelle, one of my questions is: How long have you been with code enforcement? CHAIRMAN LEHMANN: Ms. Falato, again, we are not doing a rehearing of the case. I understand that. MRS. FALATO: All right. CHAIRMAN LEHMANN: What we want to hear is -- MRS. FALATO: That's fine. CHAIRMAN LEHMANN: If you'd let me finish. What we would like to hear is from you reasons why the fines should be abated or waived or reduced. MR. FALATO: We're trying to get started here. CHAIRMAN LEHMANN: This is not a rehearing of the case, so we're not looking for questioning back and forth. MRS. FALATO: All right. The -- one of the reasons that we are asking for the case to be dismissed is due to a medical emergency. And the key word is emergency. We were not able to attend the hearing held on June 27th, 2002 regarding this case. And, okay, according -- code enforcement according to Florida Statute 162.0 -- 162.04, the definition of a code inspector means any authorized agent or employee of the county whose duty is to assure code compliance. I would also think that this would apply to the code inspectors themselves. They should also abide by their ordinances and their codes. And the number one reason, that back in February when this case was opened that we were angry is because code enforcement had come onto our property prior to our knowledge and had taken photos and had opened up the case without informing us as homeowners. Page 53 December 16, 2002 And according to -- now, it states here according to Florida Statutes Chapter 112.311(6), it states: It is declared to be the policy of the state that public officers and employees, state and local, are agents of the people and hold their position for the benefit of the public. They are bound to uphold the Constitution of the United States and the State Constitution. And if that is so, the Fourth Amendment reads: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizure. Code enforcement I would think is a public officer. And by those, the Florida statutes, they are to uphold the constitution. And they came onto our property without our knowledge, and they are supposed to, prior to doing their inspections, let us know why they're there. And that's why we were angry. MS. BELPEDIO: Excuse me, Ms. Falato. I would like to just object to this testimony and remind the board that the only item or testimony be considered is located in Article 12 of this board's rules and regulations. I can read it to the board, if you don't have copies in front of you. CHAIRMAN LEHMANN: If you would, please. MS. BELPEDIO: And I would object to anything that's not referenced here. Section three of Article 12 entitled Reduction of Abatement of Fines states: Upon the filing of a request to reduce said fine, the board may consider the following factors: A, the gravity of the violation; B, the actions taken by the respondent to correct the violation; and C, whether there were previous violations committed by the violator; D, the cost upon the violator to correct the violation; E, the reasonable time necessary to correct the violation; F, the value of the real estate compared to the amount of the fine/lien; G, any hardship the fine/lien would cause on the respondent; H, the time and cost incurred by the code enforcement to have the violation Page 54 December 16, 2002 corrected; and I, any other equitable factors which would make the requested mitigation appropriate. I recognize that the Falatos have their concerns and I appreciate their willingness to follow through on what they believe is right. But I would respectfully submit that this is not the appropriate jurisdiction to take these claims forward. MR. FALATO: We disagree with you. That's not true, okay? CHAIRMAN LEHMANN: Mr. Falato? MR. FALATO: The ordinance -- CHAIRMAN LEHMANN: Mr. Falato, please, let me continue here. Ms. Rawson, any comments with regard to that? MS. RAWSON: She's exactly correct. Those are the only things that you need to consider. And that's also not only in the Florida statute, it's also in your particular rules and regulations of this board. Those are the only factors you need to consider in deciding whether to reduce or abate the fines. CHAIRMAN LEHMANN: Objection sustained. Mr. and Mrs. Falato, if you would refrain your comments to those specific areas in which we can properly address. MR. FALATO: We are. Can we get going here without any more interruptions, please? CHAIRMAN LEHMANN: Yes, sir. We're trying to move forward. MR. FALATO: Every time we come here, you interrupt us, you try to throw us off. We're going to show you the facts, okay? We're going to show you the facts of the case. We're going to show you the facts of the ordinance. They broke the ordinance to cite us with the violation. CHAIRMAN LEHMANN: Mr. Falato, let me explain a few things to you. No. 1, we have very specific rules and guidelines in which we have to operate. Page 55 December 16, 2002 MR. FALATO: Right. CHAIRMAN LEHMANN: What the county attorney has just informed -- MR. FALATO: They do, and they broke them, okay? CHAIRMAN LEHMANN: Please, please let me finish. What the county attorney has just informed us and our own counsel has advised us is that the areas of operation which we can hear this case today are those specific areas. So I request that in order for us to properly respond to your request and not waste everybody's time, if you can refrain your discussions only into those areas in which we can properly give you a hearing -- or I shouldn't say a hearing, but our attention. Now, the other side of the coin is if there are other areas that you are in disagreement -- MR. FALATO: Sir, we're familiar with that. We know-- CHAIRMAN LEHMANN: Then you need to take that up into other jurisdictions. We just don't have the ability to respond to your request in those areas. MR. FALATO: Well, you had the ability to have us up before here when they committed crimes to get us here, okay? They broke the law. They trespassed on a no-trespass property. They passed this house on the comer of First Street to get to our house. Okay, please, let me bring it up and show the attorney. CHAIRMAN LEHMANN: Mr. Chairman -- MS. DUSEK: Mr. Falato, I want to -- CHAIRMAN LEHMANN: Mr. Falato -- MR. FALATO: This is the damage on this house. MS. DUSEK: Excuse me, if' you want us to listen to you -- CHAIRMAN LEHMANN: Mr. Falato, please return to the podium. MR. FALATO: See this here? See this? This is the comer house. Page 56 December 16, 2002 CHAIRMAN LEHMANN: Mr. Falato -- MS. DUSEK: If you feel that something illegally has been done, you have to take it to court, not code enforcement. CHAIRMAN LEHMANN: There is a prescribed manner-- MR. FALATO: What we're here for, we're here for the matter that we're here for, for the ordinance, okay? And that's what we're getting to. CHAIRMAN LEHMANN: Mr. Falato, if you are concerned that code enforcement had acted improperly and -- MR. FALATO: You have all the proof before you. CHAIRMAN LEHMANN: -- in initiating the case -- MR. FALATO: Everybody here knows they committed crimes. Michelle, you know they trespassed. You perjured yourself that last time we were here. CHAIRMAN LEHMANN: Mr. Falato? MR. FALATO: We have everything here, okay? You said that they didn't come into our property, you know they came into our property, okay? Here is Dennis taking a picture of our house. MR. FLEGAL: Mr. Chairman-- CHAIRMAN LEHMANN: Mr. Falato. MR. FALATO: He could not take the pictures of the rear of the house. We had to take the pictures of the rear of the house to close the case. CHAIRMAN LEHMANN: Mr. Falato, if you don't control yourself, I'll ask that you leave. I'm being very serious about this. MR. FALATO: Well, we're very serious about this, too, sir. CHAIRMAN LEHMANN: I understand it. You have very grave concerns and obviously you're very emotionally tied into this. And I understand that, and I feel for you. But what I'm trying to express to you is that this may not be the avenue or the venue for which you can get your concerns heard properly. We are constrained Page 57 December 16, 2002 MR. FALATO: This is what got us here. CHAIRMAN LEHMANN: I understand what you're saying. Again, if you have -- MR. FALATO: Okay, if you had looked at the packet -- they didn't present you with the proper packet when the case -- when I had the emergency, they did not give you the proper information, okay? They falsified the information. They don't have dates on the -- which one was it on? CHAIRMAN LEHMANN: Mr. Falato, if those are your concerns, then this is not the right avenue to take those concerns before. We don't have the ability to render any decisions with regards to those accusations. MR. FALATO: Well, you rendered the decisions on -- based on the -- MRS. FALATO: Based on the evidence that they gave you. MR. FALATO: -- information that they gave, and it was given to you illegal. We're going to show you now that it was done illegally. CHAIRMAN LEHMANN: If you need to proceed on those avenues, you must take that into a civil court. MR. FALATO: This is why we're here. We're here for this section. CHAIRMAN LEHMANN: This is not a civil court. THE COURT REPORTER: I can't take down two people talking. CHAIRMAN LEHMANN: Sorry, I apologize. We are not a civil court. If you needed to appeal the rulings of this board, the orders of this board, or any other action that appeared, there are procedures which have probably expired at this point in time. MR. FALATO: Sir, we are here to present our case. This is our Page 58 December 16, 2002 defense packet. Are you denying us defense? MS. SA UNDERS: Yes. MR. FLEGAL: Mr. Chairman, this is not a rehearing. CHAIRMAN LEHMANN: I am telling you that this is not a rehearing. MR. FALATO: This is a hearing for abatement of fines. CHAIRMAN LEHMANN: This is not a rehearing. This is an administrative task. This is not a rehearing. Testimony does not need to be given. You do not need to be given the right to speak, in a sense. What we're asking of you is if you are requesting a reduction of fines or a waiver of those fines, you need to address us solely on the areas that the county attorney has told you, simply because that is the only areas that we can answer to in any shape and form. If you are asking to us do anything else, we would be acting out of our jurisdiction. If you have a problem with the way this case was initiated, how it was brought before the board, or any other issues, unfortunately those have to be appealed in a civil court, simply because that is the procedure that's been laid down to us. We don't get to -- MR. FALATO: Sir, I'm well familiar with that, okay? CHAIRMAN LEHMANN: -- set those rules. Then I would request that you -- MR. FALATO: I'm very familiar with that. CHAIRMAN LEHMANN: -- restrain your comments to the areas that we can address. MRS. FALATO: In order for a code inspector to bring a case to you, and you as the board, according to your Chapter 162, you are presented a case by a code inspector. And that code inspector, when he presents that case to you, he is supposed to follow some rules and regulation. As well as you know as a board in the prior case that you just had, you had mentioned do you have legal access to the property, Page 59 December 16, 2002 and Michelle herself said no. MR. FALATO: Said no. MRS. FALATO: So for this case to have been opened up to you and for you to make that final ruling, you were presented with evidence that should not have been submitted. MS. ARNOLD: And I would have to object to that comment, because Mrs. Falato is taking my response to the board totally out of context, which has been done on several occasions. MS. RAWSON: I'd just like to say, since this is not a hearing, this is not an appellate process, we do not have a record, we don't need to get into a discussion about what was said at a hearing previously since you're not an appellate court, and you don't have the record. You need to constrain and concern yourself only with the reduction/abatement of fines as has been explained to you by the county attorney. CHAIRMAN LEHMANN: At this point in time, Ms. Rawson, we don't have any evidence that would suggest that the accusations that Mr. and Mrs. Falato are making are correct. MR. FALATO: You have it all in front of you. It's in the packet. Yes, you have evidence, sir. You're wrong, you have evidence. CHAIRMAN LEHMANN: Would Ms. Rawson be able to answer this, please? MS. RAWSON: This is not an evidentiary hearing. This is an administrative procedure by which you need to concern yourself with the reasons for reduction or abatement of fines as prescribed by the law, as explained to you earlier by the county attorney. MR. FLEGAL: Mr. Chairman? CHAIRMAN LEHMANN: Yes. MR. FLEGAL: Based on our rules and regulations and what our attorney has advised us, and reviewing the package that has been submitted and hearing the presentation by the respondents so far, I Page 60 December 16, 2002 see no information being provided to us to properly request our approval to reduce or abate the fines. And I would, therefore, like to make a motion that we deny this request. MRS. FALATO: I haven't finished. MR. FALATO: Sir, we're not through talking over here, okay? I don't think it's time for a motion or time for you to make your comments on the fines. CHAIRMAN LEHMANN: Well, Mr. Falato, a board member has the ability to make comments or motions at any point. MR. FLEGAL: I can do what I want, thank you, sir. MS. DUSEK: Mr. and Mrs. Falato, are you appealing the case because you were disturbed by the outcome of it? Or are you asking MR. FALATO: The entire procedure of it. MS. DUSEK: So you're actually appealing the case. You want to appeal the whole case. You're not here just to ask for reduction of fines. You want to appeal and -- MR. FALATO: We are here for reduction of fines -- not for reduction of fines, for no fines and for the case to be thrown out. MS. DUSEK: So in a way you're appealing the case. And if you are appealing the case, you have 30 days in which to do that in a circuit court, as I understand it. MRS. FALATO: Okay. Then we ask for the reduction of fines because -- abatement of fines according to the gravity of the situation. No. 1, it was not an immediate or hazardous danger to the public. For if it was, it wouldn't have been drug out so long. And one of the reasons it was drug out so long is because, No. 1, when they had the hearing held on June 27th, prior to it being held we did notify code enforcement of the emergency that was happening in our family and we would not be to attend the hearing. No. 2, when I found out that the hearing was held without us and there was a decision, I was out in California and would not be Page 61 December 16, 2002 back until the latter part of July. When I turned in my rehearing request, it was drug out another month because we were waiting to see if we would be reheard. And at which point you guys denied us at that time. And so then we got our -- the house into compliance so we can come here in front of you, after-- even though the case has been opened up illegally. And they in turn had to wait for a building inspector to come and take a look at the place. And now we're here asking for a reduce and abatement of fines. CHAIRMAN LEHMANN: Mrs. Falato, I would ask you again respectfully -- I think there's two issues that you have concern with. No. 1 is you really want a rehearing of the case because -- MRS. FALATO: We wanted it, but you denied us. MR. FALATO: And the evidence wasn't -- CHAIRMAN LEHMANN: Just let me finish. MRS. FALATO: Okay. CHAIRMAN LEHMANN: I feel that you really want a rehearing of the case because you feel that there are circumstances that are improper with the case. If that is the case, then there is an appeal procedure for each one of these hearings, and the appeal procedure basically is through a civil court within 30 days of the date of the hearing, where you have to actually file for that. I don't have the files in front of me. I don't have any of your records in front of me. MRS. FALATO: I gave -- you have everything. CHAIRMAN LEHMANN: I certainly could not rehear the case at this point in time, even if I wanted to, simply because we do not have that ability. It's out of our jurisdiction to rehear cases under those circumstances. MRS. FALATO: I understand what you're saying. CHAIRMAN LEHMANN: Secondly, you're here today to ask for a waiver or an abatement of the fines. This is what we need to Page 62 December 16, 2002 address all of our discussions to, because that's the only thing we could help you with today. MRS. FALATO: That's fine. CHAIRMAN LEHMANN: Okay. So again, please don't get into issues where you think the case may have been prosecuted improperly or started improperly or whatever those issues are. But tell us very specifically and succinctly why you feel the fines should be reduced or abated. MRS. FALATO: Okay. I -- like I-- MR. FALATO: We're trying to. CHAIRMAN LEHMANN: Ms. Belpedio, if you could again reiterate what those areas are of concern or that we should address, and if you can keep your discussions limited solely to those areas because that's all we can help you with. MS. BELPEDIO: Would you like me to provide the Falatos with a copy of the materials I'm reading? CHAIRMAN LEHMANN: Yes, please. And quite frankly, if we can get a copy for everyone on the board, that would help us through this process as well. MS. BELPEDIO: Okay. Would you like me to take a moment and make a copy for-- CHAIRMAN LEHMANN: MR. PONTE: Yes, please. CHAIRMAN LEHMANN: that. Please. And we'll just stand by until we get (Brief recess.) CHAIRMAN LEHMANN: Mrs. Falato? MRS. FALATO: Yes. CHAIRMAN LEHMANN: If I can again -- MRS. FALATO: I have a copy of it. CHAIRMAN LEHMANN: I'm going to direct your attention to Article 12, reduction/abatement of fines, section three. Page 63 December 16, 2002 MRS. FALATO: Right. CHAIRMAN LEHMANN: Items A through I. And I'll just read them for the record again. Upon the proper filing of a request to reduce/abate fine, the board may consider the following factors: A, the gravity of the violation; B, actions taken by the respondent to correct the violation; C, whether there were previous violations committed by the violator; D, the cost upon the violator to correct the violation; E, the reasonable time necessary to correct the violation; F, the value of the real estate compared to the amount of the fine/lien; G, any hardship the fine/lien would cause on the respondent; H, the time and cost incurred by the code enforcement to have the violation corrected; and I, any other equitable factors which would make the requested mitigation appropriate. I would ask that you constrain your comments into addressing those issues, because it's only those issues that we can address. MRS. FALATO: Okay. CHAIRMAN LEHMANN: Thank you. MRS. FALATO: Also in the same article, section No. 4, the respondent shall have the burden of proof to show why a fine/lien should be reduced or abated. The hearing shall be conducted according to article -- I'm sorry, what is that, six -- I'm sorry, four of these roles where applicable. Then we go to -- I'm sorry, if you go to article No. 4, it's listed under hearings. Former-- MR. FLEGAL: Why are we going to article four? MS. DUSEK: Article nine she means. CHAIRMAN LEHMANN: It's nine, ma'am. MRS. FALATO: Is that nine? I'm sorry. MS. DUSEK: It's nine, yes. MRS. FALATO: My husband had said four. It's been a long time since I read a Roman numeral. Page 64 December 16, 2002 So once again, under the same article, I would think that it says that we can present our case to you, and why we should have our fines abated. And yes, you are telling us to stick with the items that you listed, but in order for us to prove our case to you, that's why we're going through this process. CHAIRMAN LEHMANN: Okay, ifI can interrupt you just one second. Ms. Rawson, could you read us the article we're talking about, article nine of the rules, or at least tell us what that is? MS. RAWSON: Yes, the Article Nine is the article that addresses hearings that says formal rules of evidence shall not apply, but fundamental due process shall be observed. And it basically says, you know, how we usually do things. They can make opening statements and, you know, say what they want to say. And if you need to rebut and you want to call witnesses, they can question the witnesses. You can have rebuttal evidence and you can make a closing argument. Just basically the procedures. That says, however, if you'll go back to what this original rule says, it says you're going to do it like Article Nine where applicable. CHAIRMAN LEHMANN: And this is not a hearing, this is an administrative task. MS. RAWSON: Correct. CHAIRMAN LEHMANN: Okay? And, again, I don't mean to try to give you a hard time one way or the other, I just want to make sure that procedurally we're following this process properly. MR. FLEGAL: Mr. Chairman, may I ask Ms. Rawson a question? MS. RAWSON: Yes. CHAIRMAN LEHMANN: Yes. MR. FLEGAL: In section four, the first sentence that she read, respondent shall have the burden of proof, am I correct in understanding that that sentence, burden of proof, applies to the items Page 65 December 16, 2002 listed in section three? MS. RAWSON: It does. MR. FLEGAL: Thank you. CHAIRMAN LEHMANN: Okay, if we could proceed. And, again, I don't want to have any evidence that is enter -- or anything that you have that is entered into with regard to how the case was originally prosecuted or anything other than these issues here, because that would be deemed unacceptable to the discussions. So please keep your comments restrained to that. MRS. FALATO: I just have a question. CHAIRMAN LEHMANN: Yes, ma'am. MRS. FALATO: When a case comes before the board and you look over the evidence, you made your final decision based on that evidence; am I correct? CHAIRMAN LEHMANN: Yes, ma'am. MR. FALATO: So you looked at the evidence package that we gave you and you're basing your decision on that evidence? CHAIRMAN LEHMANN: In your original case, that is correct. We can only base our decisions based on the evidence you or the county staff presents to us. We're not able to go out to your home, we're not able to do anything other than look at what is presented to us and assume under testimony that this evidence is correct. If for some reason it is not correct, we have no way of knowing that unless it is brought out in testimony to us. MR. FALATO: This is it right here. CHAIRMAN LEHMANN: This is not evidence in your case. MR. FALATO: This is evidence to -- CHAIRMAN LEHMANN: Nothing that you've given us today MR. FALATO: -- show you that it was not done correctly. CHAIRMAN LEHMANN: But, again, sir, that would have to be taken up in another avenue. I know you are very concerned about Page 66 December 16, 2002 that issue, but unfortunately this is not the venue to address those concerns. MRS. FALATO: Okay. One of the reasons we would like the case to be dismissed and -- I'm sorry, fines to be abated -- CHAIRMAN LEHMANN: Thank you. MRS. FALATO: -- is due to the definition of a dwelling, according to 89 -- I'm sorry, according to the definition of the dwelling in which we were cited on, on -- excuse me, I've lost my place here. CHAIRMAN LEHMANN: Ms. Falato? MRS. FALATO: Yes. CHAIRMAN LEHMANN: Which one of the items A through I are we addressing in this particular comment, with the definition of a dwelling? If you could help us keep track of this. MRS. FALATO: In order for the case to come before you, they must have cited us on a certain ordinance, correct? CHAIRMAN LEHMANN: Yes, ma'am. MRS. FALATO: Okay, what I'm going through is the definition of what they're citing us on. CHAIRMAN LEHMANN: Okay. But again, we can't rehear the case. MR. FALATO: Sir, we're not asking you to rehear the case. We're going to give you a definition of what they're citing us under. Okay? It's simply a definition. CHAIRMAN LEHMANN: Okay. MS. DUSEK: Excuse me, but you must stay with section three. Tell us which of those A, B, C, D, E, F, G, H, I that you're citing right now that you're bringing before us. A definition of a dwelling is not part of it. CHAIRMAN LEHMANN: I understand, I think, what your concerns are. But what you don't understand is that this is not the venue to air those concerns. Page 67 December 16, 2002 MRS. FALATO: How can code enforcement -- how can code enforcement cite us on something and I can't give you the explanation of the ordinance? CHAIRMAN LEHMANN: That is why we have an appeals process. If a respondent is not satisfied-- MR. FALATO: This is absolute nonsense. CHAIRMAN LEHMANN: But unfortunately -- MR. FALATO: This is nonsense. You don't want to hear the truth. You don't want us to present the facts and let everybody see what's going on here. CHAIRMAN LEHMANN: Please restrain yourself. Now this is the third time I've asked you. I won't ask a fourth time. MR. FALATO: Sir, I'm in order here. I'm doing nothing illegal here, okay? CHAIRMAN LEHMANN: Sir, I'm trying to explain to you that we have a normal appeals process. We don't set the rules. MR. FALATO: They just break them. CHAIRMAN LEHMANN: We don't set the rules. If the appeal process says that if a respondent is not happy with what we decide here, that needs to be taken up in a circuit court appeal within a certain period of time, which was 30 days. MR. FALATO: Sir, they're citing us under a section and we're going to prove to you that the section that they're citing us under is incorrect, okay? What is it that you don't understand? CHAIRMAN LEHMANN: What we need from you, sir, is we need some sort of other ruling from another jurisdiction saying that in our order we violated a term of the law, a condition of the law. MRS. FALATO: They have violated. CHAIRMAN LEHMANN: That is not for us to decide. We need some evidence from some other jurisdiction. MRS. FALATO: I'm trying to present the evidence to you. CHAIRMAN LEHMANN: You're missing the point. We can't Page 68 December 16, 2002 hear that evidence. MR. FALATO: Then how did you hear the evidence that they presented to you in the first place? CHAIRMAN LEHMANN: It was within the purview of our guidelines. We are very limited in what we can hear or what -- MR. FALATO: Show me the guidelines that it was presented to you within. CHAIRMAN LEHMANN: It's ordinance -- MS. BELPEDIO: May I interject? I have a provision that I'd like to read-- CHAIRMAN LEHMANN: Please. MS. BELPEDIO: -- into the record to the Falatos that may give them a little bit of insight as to the appeals process. It's located in 162-11. I'm just reading from the documents that you've provided to us today in your materials. It states: An aggrieved party, including the local governing body -- which in this case is the county -- may appeal final administrative order of an enforcement board to the circuit board. Such an appeal shall not be a hearing De novo -- which means a new hearing, with new evidence, new -- but shall be limited to appellate review of the record created before the enforcement board. An appeal shall be filed within 30 days of the execution of the order to be appealed. In your case, it's my understanding that you're unhappy with the order, findings of fact, conclusion of law. So it's not to say that you don't have issues to raise or they're not cognizable on appeal, it's just the inappropriate place for these arguments to be made. It's not that in my opinion the county's trying to cover anything up or not let you be heard, it's just that even if they were heard today, there's nothing that this board can do about it. MR. FALATO: That's not true. Okay, they can base their decision on the evidence that we're going to give them today, okay, on the section that they cited us under. Okay? They violated the Page 69 December 16, 2002 section to cite us under it, number one. Number two, they're citing us under housing codes -- MS. BELPEDIO: I'd like you to please refer me to a law provision, statute, ordinance that allows you to present your defenses today to the board. MR. FALATO: Excuse me? MS. BELPEDIO: Please provide me with a provision of law that entitles you to bring your case in its entirety new today before this board and they can make a decision and rehear your case. MRS. FALATO: Well, on your article -- the article that you -- Collier County code enforcement board rules and regulations, article -- what I just read a few minutes ago. CHAIRMAN LEHMANN: Ms. Falato, the rules and regulations for the CEB board are not governing law. Those are rules that the board has dictated, has decided upon itself this is the proper way we would like to do business. We are not bound by those rules by any law or ordinance. We are bound strictly by the laws and the ordinances. So what Ms. -- the county attorney has asked you -- MR. FALATO: You're contradicting yourself. CHAIRMAN LEHMANN: -- is provide some law or ordinance that would enable us to physically hear this case again. And I think what you'll find is it doesn't exist. And that's what I've been trying to explain to you. You have concerns. I understand those concerns. But this is not the place to hear it, even though you are unhappy with the actions that were initiated before this board. We can't rehear the case. All that we can do today is talk about why we should reduce the fines. If you tell me the case -- MR. FALATO: We are not asking to you rehear the case again, okay? We've already said that. We are not asking you to rehear the case, okay? We are trying to show you the proof of why and our reasons why the fines should be abated. Page 70 December 16, 2002 CHAIRMAN LEHMANN: Then you need to take that proof and limit it only to the areas in which we can address which we have provided you a list of. MRS. FALATO: All right, let's go. The gravity of the violation: The house was not an immediate -- or caused any immediate danger to the public. Like I said, if it was, the case wouldn't have been drug out so long. The house, when we purchased it back in '97, after that, we boarded it up. There was no access into the building. So it was not -- did not cause -- MR. FALATO: Where's the survey? MRS. FALATO: Also, when we purchased the property, we purchased the property with just the lot and not where the building -- MR. FALATO: This is a survey of the lot when we bought the property. The building is not on it, okay? It's not a dwelling. Our intentions were not to use it as a dwelling. Your definition for a dwelling is any building or structure intended to be used or partly in part to be used or wholly in part to be used as a dwelling. Our intentions were never to use this building as a dwelling. It's a shed, okay? CHAIRMAN LEHMANN: Sir, those definitions are not -- do not refer to the owner's definition of what a dwelling or the intent to dwell. It refers to the occupancy classification of that structure. MR. FALATO: That's not what it states in any of the definitions on that -- CHAIRMAN LEHMANN: Well, if you go back and look at everything, you will find out that it has nothing to do with whether you intend to use it as a dwelling or not. I could have a house that I intend to store things in-- MR. FALATO: Sir, it doesn't say any building with the -- built with the intentions, okay? I can read the definition for you word-for-word, okay? It does not fall under our shed. CHAIRMAN LEHMANN: I understand what you're saying. Page 71 December 16, 2002 MS. SAUNDERS: Mr. Chairman, can I say something? You've made your point at least a dozen times that you feel the results that we found were incorrect. We have absorbed that, even though that is not one of the criteria for reducing the abatement of fines. I'd ask you specifically, do you feel you had a reasonable time necessary to correct the violations? MR. FALATO: No. MS. SAUNDERS: Whether they were justified or not, did you have a reasonable time to correct them? Did your real estate values drop? Is there any problem or hardship that this has caused you? Tell us about those things. Never mind whether it was correct or incorrect that there was a violation or not. That is not what we're interested in. I want to know what was hard -- what problems you have with the fine that was incorrect. MR. FALATO: We did not have enough time to repair the building due to my emergency medical situation. I went through my third back surgery on October 1st, okay? I was supposed to have it done a few days after the first hearing. It was postponed so we that can get the building in shape or paint it, whatever it is they wanted us to do to it. Okay, they did not give us enough time to do this. We requested it and it was denied. MS. SAUNDERS: How much additional time do you feel you would have needed? MR. FALATO: Another 30 days. MS. SAUNDERS: Okay. Is there any other reason why additional -- aside from not having enough time, anything else that impacts upon the fine and why it should be abated or reduced? MR. FALATO: Yes. I don't know if you recall or not, but we were here before in '98 for the same building, okay, and there were no violations found. There have never been any violations against the building in the past, none at all, okay? We were asked aesthetically to paint the building in good faith, and we did that. We Page 72 December 16, 2002 have the pictures to show. When we came in '98 and 30 days or 45 days after, we painted the building and it was fine. And then this turns around and it comes back at us again. MRS. FALATO: And if you can remember, Ms. Saunders, it was you personally back in '98 that asked us, even though you did not -- the board did not find us in violation, you asked us, could you please aesthetically get the house in shape. According to your June 27th, 2002 hearing, you had asked -- and you have a copy of the transcript of that hearing held without us. You had asked Michelle, has there been -- has these people been in front of the board before? I believe Ms. Dusek had asked that question. And Michelle had said yes, according to the violation that we were quoted under, we were not found in violation. And they had asked did the Falatos do anything then? And she had stated no -- MR. FALATO: Michelle said no. MRS. FALATO: -- on the transcript. MR. FALATO: And we did. MRS. FALATO: And we did. And the pictures that were taken back in '98 that code enforcement took shows that the house had peeling paint. Then the new pictures that code enforcement took to present the case to you shows the house, that it -- MR. FALATO: This was the house when we bought. This is what it looked like when we came before the board before. This is what it looked like 45 days after. We did paint the house and have it looking fine, okay? MRS. FALATO: So even though we did come before the board before and we were not found in violation, we did listen to you. MR. FALATO: And Michelle stated the fact that we did not do anything to the building. MS. DUSEK: You can't present that type of evidence. MR. FALATO: It's right there in writing. Page 73 December 16, 2002 MS. DUSEK: This is not a hearing. You're presenting evidence that the -- no one is here to rebut it. This is not a hearing. CHAIRMAN LEHMANN: Mr. and Mrs. Falato, it is very important for me that you -- MRS. FALATO: But what I'm saying is that we've done -- CHAIRMAN LEHMANN: Please let me finish. It is very important for me that you understand procedurally how we have to proceed. It is not as if we're not trying to hear you. It's just that we have our hands tied and we are only allowed to hear certain things. So what we're asking you to do is tell us those things in those areas. So if one of the board members or myself happens to say that's irrelevant to the discussion, it's not that we're trying to shut you out, it's just that we're trying to remind you again that you've stepped a little bit outside the bounds of what we can hear. Earlier you were doing very well with answering the questions with my colleague. So if you could just proceed along those lines. Again, we're not trying to get you emotionally excited. I know it's an emotional issue, but we're jut trying to proceed according to the rules that we have to play by, in a sense. MS. DUSEK: One of the questions you answered from Ms. Saunders, reasonable time, you said you needed another 30 days. You could have come before us and asked for a continuance. MR. FALATO: We did. It was denied. MRS. FALATO: We did. You guys denied our rehearing case. MR. FALATO: It was denied. You have the records. My medical records are there. The dates that I've had to go through MRIs, the days I went through to see the doctor, they're all there. It's all legit. If I remember, I think -- it might have been you that made the comment that we shuffled the dates around so we couldn't come to the hearing. I think that's in there, too. CHAIRMAN LEHMANN: Do you have any other comments Page 74 December 16, 2002 with regard to reasonable time necessary to correct the violation? MS. BARNETT: I have one question. MRS. FALATO: Yes. MS. BARNETT: You have made the comment that you didn't have reasonable time but you did say that it is completed now. When did you actually finish? MRS. FALATO: Let's see, they came and did the inspection. MR. FALATO: I'm not sure because they prolonged coming out to do the inspection. They drug it on another four weeks. MS. BARNETT: When did you actually finish? MR. FALATO: I don't know the exact date. It was done in less than 60 days. CHAIRMAN LEHMANN: Michelle, do we have any idea of date of completion or compliance? MS. ARNOLD: We based the affidavit on the date that they called us, not the date we did the inspection. that. MS. BARNETT: MS. ARNOLD: MRS. FALATO: What was that date, Michelle? August 26th. Maybe it was August 26th, something like MS. SAUNDERS: 22nd, according to your summary. CHAIRMAN LEHMANN: We have -- MS. ARNOLD: August 26th is what the affidavit says. MS. BARNETT: So technically if we had given them another 30 days -- CHAIRMAN LEHMANN: All right. compliance that I have and that's -- MR. FALATO: Our intentions -- CHAIRMAN LEHMANN: Sir? MR. FALATO: -- were never not to do the -- CHAIRMAN LEHMANN: Sir, please. The affidavit I have is dated September 12th, 2002. So the affidavit of That tells Page 75 December 16, 2002 me that a reinspection was performed on September 5th, and at that date the corrective action was taken. But earlier than that, it says the respondent called on August 26th. So are you saying from staff's viewpoint that you consider the problem solved August 26th? MS. ARNOLD: Yes. CHAIRMAN LEHMANN: Okay. MS. ARNOLD: As you can see on the executive summary for the imposition of fines, we based it on the days July 28th through August 22nd. So we actually gave them four days. MRS. FALATO: But you have to understand, between the time that you guys had the hearing and according to when you guys wanted us to be in compliance, that whole month of July, I was away. And I was finding out that you had the hearing without us, and I was filing for a rehearing request. And according to Michelle, you know, we could file the rehearing request and it would be reheard -- or there's a possibility that we could be reheard. So in that time frame it was drugged out and we didn't -- and that's why it took so long. MS. ARNOLD: And Ms. Falato was explained that there was no definitive -- I could not tell her what the board's decision would be, and it was her choice not to proceed with corrective action in the time frame that was provided. MRS. FALATO: No, I object to that, because I think at the time that me and Michelle spoke, I had the feeling that you guys would hear us. CHAIRMAN LEHMANN: Let me just go back and look at the order of the board and the finding of fact. The order of board basically -- excuse me, the order of the board was that the violations would be abated by July 27th, 2002, and the actual compliance date was August 26th. However, staff and the board -- staff recommended and the board accepted, apparently, fines Page 76 December 16, 2002 imposed only to the 22nd. So we're only looking at fines from July 28th through August 22nd. So if you can give me reasons why those fines in that short period of time would be abated. MR. FALATO: Again, my health condition did not allow me to get out there and jump on this right away, okay? And again, there was never any intentions not to repair the building or paint the building. Our intentions were to come here so that you people can see what they are doing, okay? They are singling us out, they are harassing us. CHAIRMAN LEHMANN: Sir, if you can address your health concerns, if you can give me -- just walk me through it as if I don't know anything about it, but just walk me through the case as far as what would happen in your health concerns that would affect this time period that we're looking at as far as the fines, or prior to that. MRS. FALATO: You have a copy of the emergency room visit that he took on June 24th. Also, you have copies of his medical bill showing that he does have a history of back problems. MR. FALATO: When we were here in '98, I had just went through another back surgery back then. I went through another back surgery December of '97, December of'98 and October of this year. MRS. FALATO: It was a bad month. It was a bad month, because he did go to the emergency room and was having MRIs. And it will state on there that he had the MRI on the 26th. He had a follow-up doctor's appointment on the day of the hearing that you held without us. CHAIRMAN LEHMANN: Okay. Okay, are there any other areas that you would like to address in those A through I topics that we've talked about? MRS. FALATO: I've already stated the previous violations that were committed by -- or allegedly committed by us, in that in the past we have complied with the board, even though we were not Page 77 December 16, 2002 found in violation. And number two, as you can tell by our actions from the very beginning, we -- it's not that we were ignoring what was happening, it was we were waiting to be reheard, we were waiting to file papers to be reheard. And so our actions show that we are trying to present a case to you and not trying to ignore code enforcement. On the contrary, we are working very hard to try to present our case to you. MR. FALATO: And we feel -- this is strict harassment from Angelo Campanella that lives next to our shed on First Street, okay? This is constant harassment. She's had -- CHAIRMAN LEHMANN: Sir? MR. FALATO: -- officers out to our house 22 times in the last three months for a boat in my yard that I've owned for 10 years for the tags. CHAIRMAN LEHMANN: Sir, I understand your concern for that, but again, that's not relevant to what we're discussing now. MR. FALATO: But why do they keep sending these people out to our house? I mean, they're out at our house three times a week. CHAIRMAN LEHMANN: We cannot -- MR. FALATO: Three times a week. CHAIRMAN LEHMANN: Sir, we cannot answer those questions here. MR. FALATO: We're trying to get it resolved here, okay? This is going to go to court, okay? CHAIRMAN LEHMANN: But that's another venue. And we're just trying -- MR. FALATO: We're trying to resolve it here, okay? If it's not going to get resolved here, then we'll take that next step. CHAIRMAN LEHMANN: That's fine. But what I'm saying is it has to be taken in that area. We can't resolve that here. If you will proceed-- MR. FALATO: Well, they were -- code enforcement was Page 78 December 16, 2002 with ordered by the board back in '98 to not answer Mr. Campanella's frivolous complaints and calls to our address -- CHAIRMAN LEHMANN: Sir? MR. FALATO: -- that it was a clear case of harassment. CHAIRMAN LEHMANN: I don't want to hear anything to do MR. FALATO: It's apparent in the transcript. CHAIRMAN LEHMANN: -- any prior cases, okay? All we're here to do is talk about the reduction of fines. Now, your wife has address item No. A, the gravity of violation, item No. B, the actions taken. Item No. C? MRS. FALATO: Previous violations. CHAIRMAN LEHMANN: That's correct. The cost upon the violator to correct the violation. Do you have any discussions with regard to that issue? MRS. FALATO: No. CHAIRMAN LEHMANN: Okay. Item E we have already talked about, with the reasonable time necessary to correct the violation. Item F, the value of the real estate compared to the amount of the fine. I assume the real estate is worth more than $5,000 or whatever the fine is? MRS. FALATO: Correct. CHAIRMAN LEHMANN: Okay. G, any hardship the fine or lien would cause the respondent. Do you have anything to address on that issue? MR. FALATO: Well, it's causing us great hardship. The harassment, the singled out. Everything that's going on here is causing us hardship. It's causing us embarrassment. Our friends, our neighborhoods, people have to look at us come here. And everybody knows that we're being violated here, and yet it keeps going on and on and on. Page 79 December 16, 2002 CHAIRMAN LEHMANN: Okay. Do you have anything on item H, the time and cost -- MR. FALATO: We are law-abiding citizens. We're don't break the law. We stick with the codes. We've done nothing illegal in the past and we don't have any intentions to do anything illegal in the future. CHAIRMAN LEHMANN: Mr. Falato, you have made that point abundantly clear. We understand it. You are just reiterating what we already know and we've heard you say, okay? MRS. FALATO: The next question? CHAIRMAN LEHMANN: The time and cost incurred by code enforcement to have the violation corrected. Do you have any comments with regard to that issue? MRS. FALATO: Well, on the hearing back in '98 -- I don't understand. If the code inspector can open up a case and state the violations that are on the ordinance, why would it take code enforcement longer to close the case and have a building inspector come over and reinspect the place? I just don't understand that. A code inspector can open it but he can't close it by himself. CHAIRMAN LEHMANN: Well, but if you look at the actual fines that were imposed, they actually didn't fine you for four days that they should have fined you, in a sense. And they've actually taken it back not only from the date that they did the inspection -- MR. FALATO: Okay, I've got it. CHAIRMAN LEHMANN: -- they've given you that grace period already to the day you said you did it. MRS. FALATO: I understand. CHAIRMAN LEHMANN: And then they gave you another four days in advance of that. MRS. FALATO: Okay, okay. CHAIRMAN LEHMANN: So actually on that one, they'd be working for you. Page 80 December 16, 2002 MRS. FALATO: Okay. CHAIRMAN LEHMANN: And just I, any other equitable factors that would make the request mitigation appropriate. And please, do not talk about any prior cases, because that's not why we're here. MRS. FALATO: No. The only -- I don't have anything else. Also, there was an amended order that was sent to us after the fact, and I don't -- you should have a copy of the amended order. CHAIRMAN LEHMANN: Yes, ma'am. MRS. FALATO: And the amended order should supersede the original order. On the original order, it wasn't dated and signed. So I would think the amended order which was dated September 5th would -- MS. RAWSON: The amended order is nun pro tunc. Maybe they don't understand what that means. That means it goes back to the date of the original order. So it just supersedes, it goes back to the -- I think it was the June date. CHAIRMAN LEHMANN: June 27th, I believe. If these attorneys could speak English we'd understand them, wouldn't we? MRS. FALATO: Really. CHAIRMAN LEHMANN: Well, that kind of addresses each one of the items that we can address in looking at the abatement or the reduction of the fine. And if I can summarize, and please correct me if I'm wrong, we talked about the gravity of violation, you're saying a safety issue did not exist at that time; is that correct or -- MRS. FALATO: Correct. MR. FALATO: Correct. CHAIRMAN LEHMANN: In talking about the actions taken by the respondent to correct violations, you were saying you were very cooperative in trying to take care of those issues. MR. FALATO: Extremely cooperative. Page 81 December 16, 2002 CHAIRMAN LEHMANN: And, again, I'm not trying to put words in your mouth, I'm just trying to summarize it for my own understanding, make sure that I understand what your comments are for each one of these issues. Item C, whether there were previous violations committed, we've already gone over that. The cost upon the violator to correct, there were basically no comments. Item E, the reasonable time necessary to correct the violation. You were suggesting that another 30 days was required due to medical problems that you were incurring at that time; is that correct? MRS. FALATO: Correct. CHAIRMAN LEHMANN: Okay. Item F, the value of the real estate, we didn't really hit on; it had no real bearing. G, any hardships or fine, we talked about the hardships that the fines are causing you on an emotional level, as opposed to maybe financial or something of that nature. MRS. FALATO: Correct. CHAIRMAN LEHMANN: H, the time and cost incurred in the enforcement, we've talked about that. And then I, there really isn't much on I that we're hitting on. Is that a correct summary of what your case is -- MRS. FALATO: Yes. CHAIRMAN LEHMANN: -- or am I incorrect? Okay, is there anything else that you would like to add pertaining to those items specifically that we need to be aware of before we can make a decision on whether to reduce or abate the fines? MR. FALATO: Yeah, one other thing. When we were working on the building, every hour, every day that we were out there working on that building, our neighbor, Mr. Campanella had the Page 82 December 16, 2002 Sheriff's Department out there every single day. CHAIRMAN LEHMANN: But sir, that has no bearing on what we're doing. I get the feeling that you and Mr. Campanella have a problem. MR. FALATO: I have him videotaped lashing out at us -- CHAIRMAN LEHMANN: Sir? MRS. FALATO: -- saying the code enforcement's going to fine US -- Michelle Arnold's watching us. Schmitt's watching us. CHAIRMAN LEHMANN: CHAIRMAN LEHMANN: Mr. Falato? MRS. FALATO: -- we won't be able to afford the fines. Jim Mudd's watching us, Joe Please, I understand that you're concerned about that, that you have concerns -- MR. FALATO: Outstanding evidence of what's going on here. CHAIRMAN LEHMANN: I understand that you have concerns with Mr. Campanella, but again, that's not here. MR. FALATO: Let's go. MRS. FALATO: Uh-huh. CHAIRMAN LEHMANN: And I'm just asking you to remain in a civil manner. There's only so much we can address. MR. FLEGAL: Are we done? MS. SAUNDERS: Peter, can we -- I think we've heard all the evidence. CHAIRMAN LEHMANN: Yes, I'd like to close this portion of this particular case, and I would open it for the board's discussion. Thank you. If you would have a seat, I'd appreciate it. Any discussion from the board members? MR. FLEGAL: Mr. Chairman, after long dissertations, I still haven't heard anything that would make me want to reduce the fines. MS. BARNETT: The only thing that I heard that I feel needs to be possibly looked at is he had medical conditions and he felt that the Page 83 December 16, 2002 time frame that he was given wasn't enough in order to complete it. MR. FLEGAL: He could have hired somebody to have it done. Lots of people have medical conditions. He could have hired somebody. Sorry. CHAIRMAN LEHMANN: Well, the other side of the coin is if you're having medical problems you may not be considering other things going on, you may be focusing on that particular issue. MS. DUSEK: I remember when we discussed this part of the medical issue, and it was a matter of an MRI being scheduled the day of the hearing, and they could have rescheduled it and come to the hearing and presented their case. MR. FLEGAL: Yeah. CHAIRMAN LEHMANN: Any other comments, discussions? MR. PONTE: Yes, I think that there are several points that are covered here and that give us cause to review. One is the resulting fine that's existing in excess of $5,000. I don't know if that matches the gravity of the violation. That would be A. The violation has been corrected. That would be B. They have no previous violations. That's C. There was the question that we're all aware of as to whether or not there was reasonable time to correct the violation because of the medical situation involving the MRI. And there was the question of hardship, which is G. And certainly the amount of preparation, paperwork and research that has gone into the appeal to reduce the fine is a substantial amount of work, and that's a hardship. I think that there are several reasons to consider a reduction of the fine. And I would make a motion to reduce it by 50 percent. MS. DUSEK: I -- addressing one of the issues that you just brought up, all the amount of work and paperwork that they went through, in my opinion it doesn't address the issues for which they should have prepared for. Page 84 December 16, 2002 MR. FLEGAL: Correct. MS. DUSEK: It's a lot of paperwork. It could be very impressive, but it's not addressing the issue. MR. PONTE: Yes, I agree with you, that-- MS. DUSEK: And so I could come forward and give you a lot of paperwork and hope that you'll be impressed by it and it may not ever address the issues. MR. PONTE: I agree. But it was done, nevertheless. It was misdirected, but nevertheless it was done. MS. DUSEK: Well, if it-- MR. PONTE: And although it was -- it falls off the mark, it was a hardship. MR. FLEGAL: I disagree. It should -- because they went the wrong direction shouldn't be considered in any way as a hardship to get the fine reduced. That has -- it's immaterial and has actually no bearing. So there's no hardship. They just went the wrong way. MR. PONTE: Yeah. Okay, we could talk about that. MR. FLEGAL: So we shouldn't consider it. MR. PONTE: All right, let's not consider it. There are the other points to consider. MS. SAUNDERS: I agree with you, George. I do think that whether we made the judgment that they could indeed have rescheduled the MRI and the rest, but I've been through enough medical emergencies so that can be a major factor in what you're doing. I think there should be some leeway there. Not a lot. I strongly resent, as I think all of us do, the attacks and accusations. And I think that colors some of what we're -- our thinking is, naturally. But I really could support as well reducing by 50 percent the fine portion of the findings that we've got. MS. DUSEK: And Rhona, that's based on which one of the issues? MS. SAUNDERS: That would be based on the fact that there Page 85 December 16, 2002 was a medical emergency, and that they felt that they were not given additional time and they were not at the hearing. We felt initially, I recognize, that they could have been. However, I think that's a judgment call. And anybody that's had a family emergency can indeed say yeah, maybe we could have, maybe we would have rescheduled it, but we didn't. So I'd like to give the benefit of the doubt for that portion. That's really the only part that I see. CHAIRMAN LEHMANN: Well, let me throw this into it. I agree with my colleague Mr. Flegal on some issues, but not necessarily all of the issues, and with my other colleague, Mr. Ponte. The bottom line here is that I think that we have a respondent that is very emotionally tied into other issues that are not presented here before the board today. And I think quite frankly that those issues are in a sense clouding his presentation to us today because they are overshadowing. So instead of the respondent actually addressing to us what we need to hear one way or another as far as evidence, they are focusing on this other issue that we can't hear. And I think that may have overshadowed some of the information we really would like to have had. MS. SAUNDERS: I agree, and I'm sort of taking that into account. CHAIRMAN LEHMANN: Right. The second item here is we have a medical emergency. My concern is I do not want this board to set a precedence for anyone to come before us and say I've had a medical emergency. So if the board considers this as a viable reason to grant the waiver or the reduction, then I'd like the board to do that based on the evidence that a medical emergency existed and it has impaired time and so on and so forth. MS. DUSEK: We did address that issue when they asked for the continuance. Page 86 December 16, 2002 CHAIRMAN LEHMANN: Correct. But again, what we're looking at is reduction of fine. And they've asked us to consider that again in the reduction of fine. But like I say, George has some very good points. It appears as if the respondent had tried to work with us earlier. But again, that's why we're here, and we don't necessarily agree. That's why there's more than one of us. MS. GODFREY: Well, I'd like to say that at first I thought he was blowing smoke when he came in with the MRI, but he did have surgery. So that kind of verified the fact it was a medical emergency going to the ER. When you've got a blown disc, that hurts, okay? I've had three back operations and two neck surgeries, so I know where he's coming from. And I can understand now the reason why he -- the MRI, and it does take time, you know, for the surgeon. He does -- they do emergencies first, because I worked in the ER for 18 months. And I know if you have a back surgery, that can wait. The car accidents and the MVA's, they come first, and then you're kind of put down the line. If he had not had any back surgery, then I would say he was kind of playing games with us. But since he's had back surgery, I kind of go to the fact that he was -- it a small medical emergency, not where he was in a car accident or anything. And the financial -- they're very expensive. And that's all I have to say. And he couldn't fix it. You know, maybe he doesn't have the funds to -- CHAIRMAN LEHMANN: Sir, please, you're not in the hearing anymore. This is a discussion for the board, please. MS. GODFREY: And maybe due to the expense of the surgery, we could not afford to hire someone to come in. And with back surgery, you're limited on what you can do. I would like you all to take that into consideration as well. Page 87 December 16, 2002 CHAIRMAN LEHMANN: Any other comments? We have two board members we haven't heard a word from today yet. MS. GODFREY: Say something. MR. RAMSEY: Well, I would tend to agree with the comments that were just made on the back surgery issue. I mean, initially when that MRI thing came, it seemed to come at the 11 th hour. You know, I mean, very often those types of things come into hearings and such and you don't know whether to give them credence or not. But certainly when it was followed by a surgery, I think it at least validates the fact that there was certainly a problem with a health issue that probably warrants some consideration. CHAIRMAN LEHMANN: Mr. Lefebvre? MR. LEFEBVRE: I definitely think that a reduction of fine is in order. I think that would definitely be in order. MS. DUSEK: I think that you also must consider when the case was first initiated, which was prior to any medical emergency, back surgery, and the work could have been done. They were waiting to come in for a rehearing. Some of the work could have been completed then. MS. GODFREY: But again, he had the back pain, so that kind of kept him from doing the work. You know, we don't know what his finances are. That's -- that's my -- you know, he might be rolling in dough, I don't know. But, you know, with the surgery happening and him being in pain, he may not have been able to do the work. You know, I don't know. I kind of go towards kind of reducing the fines, like George said, but-- CHAIRMAN LEHMANN: George, was your comment earlier in the form of a motion or a comment? MR. PONTE: No, it was a motion. CHAIRMAN LEHMANN: Okay. So we have a motion on the floor that -- MR. PONTE: It was a motion to reduce the fine by 50 percent. Page 88 December 16, 2002 MS. SAUNDERS: The entire fine, George, or the-- CHAIRMAN LEHMANN: George's motion was to reduce the fine portion of the assessment, in a sense, and that would be -- the fine portion would be $3,750. So George's motion is to reduce that by 50 percent and the operational costs of $1,314.75 would still remain. MR. PONTE: Correct. CHAIRMAN LEHMANN: As far as looking at the fine portion of that and the operational costs, I agree that we probably should not touch the operational costs, simply because if this case were handled in a more expedient manner, we wouldn't have heard the case in the first place, we would not have had to incur those operational costs. So I would certainly not want to reduce the operational cost. With reducing the fine, that's obviously why the board is here. We do have a motion. I would entertain a second to that motion. MS. SAUNDERS: I will second that motion. CHAIRMAN LEHMANN: We have a motion by Mr. Ponte and a second by Ms. Saunders that the fines only be reduced by 50 percent. Do I hear -- or all those in favor, signify by saying aye. MR. PONTE: Aye. MS. BARNETT: Aye. CHAIRMAN LEHMANN: MS. GODFREY: Aye. MS. SAUNDERS: Aye. CHAIRMAN LEHMANN: MS. DUSEK: Nay. MR. FLEGAL: No. CHAIRMAN LEHMANN: and Mr. Flegal. The motion carries by majority. Any opposed? We have two opposed, Ms. Dusek Page 89 December 16, 2002 Mr. and Mrs. Falato, do you understand what the board has ordered then in response to your request? Would you come to the podium, please? The board has heard the testimony you've given us, and we have voted to reduce the fines only by 50 percent. The operational costs still remain, but the fines have been reduced by 50 percent. MRS. FALATO: Okay. And what would that total be? CHAIRMAN LEHMANN: Staff would have to get with you and -- MS. ARNOLD: The total would be 1,000 -- the original fine amount of $3,750 was reduced to 1,875, with additional operational costs of $1,314.75 for a total of $3,189.75. CHAIRMAN LEHMANN: Do you understand? MR. FALATO: We understand. We're not happy with the decision, okay? CHAIRMAN LEHMANN: I understand that, sir. And I would just recommend that you pursue other avenues if there's -- MR. FALATO: We'll see you in court, Michelle. Criminal charges, trespassing, committing perjury-- CHAIRMAN LEHMANN: If we could move on to old business, affidavits of non-compliance. MS. ARNOLD: This item was a companion to a prior item where we requested imposition of fines. It's the Board of County Commissioners versus Derya Corp. and Usulu Okur. Sorry. You have it on the agenda. The CEB case number is 2002-025, and that is a filing of non-compliance, as the board's order was not complied with. And so staff has done that. CHAIRMAN LEHMANN: So noted. Having nothing else on the agenda, our next meeting date will be January 23rd, 2003. MS. DUSEK: I make a motion that we adjourn. Page 90 December 16, 2002 CHAIRMAN LEHMANN: I'll second that motion. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN LEHMANN: Motion carries unanimously. Everybody have a very good holiday. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:00 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 91