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CEB Minutes 02/27/2003 RFebruary 27, 2003 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida February 27, 2003 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: CHAIRWOMAN: Roberta Dusek Sheri Barnett Albert Doria, Jr. Clifford Flegal Catherine Godfrey Gerald Lefebvre George Ponte Rhona Saunders ALSO PRESENT: Jean Rawson, Attorney for the Board Jennifer Belpedio, Assistant County Attorney Shanelle Hilton, Code Enforcement Coordinator Page 1 CODE ENFORCEMENT BOARD OF COLLIER COUNTY~ FLORIDA AGENDA Date: February 27, 2003 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- January 22, 2003 4. PUBLIC HEARINGS A. MOTIONS a. Motion to Continue 1. BCC vs. Close Up Creatures Inc., d/b/a NGALA and Donovan CEB NO. 2003-008 Smith as its Registered Agent and Director 2. BCC vs. Close Up Creatures Inc., d/b/a NGALA and Donovan CEB NO. 2003-009 Smith as its Registered Agent and Director 3. BCC vs. Close Up Creatures Inc., d/b/a NGALA and Donovan CEB NO. 2003-010 Smith as its Registered Agent and Director On 2/21/03 received Notice of Appearance from attorney Ka'imi Lani Jones of Quarles and Brady and their Notice of Withdrawal of Motion to Re-schedule or Hold in Abeyance Code Enforcement Hearing. Accordingly the Motion to Re-schedule or Hold in Abeyance Code Enforcement Hearing will not be heard. HEARINGS BCC vs. Baywood Manor Antiques and Jewelry Inc., and Joseph A. Giallana, as its Registered Agent and Director Location: Golden Gate Estates Alleged Violation: Observed but not limited to a non permitted mobile home, a boat and a vehicle with no valid tags. Also observed a structure, which was partially built under Permit # 88-1370 and has been declared abandoned under Ordinance No. 98-76, Section 104.6.1.1(B). BCC vs. Close Up Creatures Inc., d/b/a NGALA and Donovan Smith as its Registered Agent and Director Location: Inez Drive, Agricultural District, off White Blvd. Alleged Violation: Observed parcel of ten (10) acres or more improved with a storage barn, exotic animal barn and pen, permanent tent and toilet facilities without an Environmental Impact Statement (EIS) being submitted and approved or the area surveyed for possible presence of endangered species. Approximately 48, 800 square feet have been cleared for buildings, parking and access roadway without authorization of required Agricultural Clearing Permit. 3. BCC vs. Close Up Creatures Inc., d/b/a NGALA and Donovan Smith as its Registered Agent and Director CEB NO. 2003-003 CEB NO. 2003-008 CEB NO. 2003-009 Location: Inez Drive, Agricultural District, off White Blvd. Alleged Violation: Observed the existence of a 40' X 60" aluminum storage structure with related electric and plumbing improvements used to accommodate lavatory needs for public gatherings and on site storage on an unimproved property in an agricultural district and also the existence of a 40' by 80' (main tent) with electric, a 40' diameter (north tent) and a 40' diameter (south tent), all used in connection with the above noted public gatherings for "Close Up Creatures, Inc", d/b/a NGALA commercial guest participation at unimproved property. No Collier County planning review and approval, no building permits, inspections or certificate of occupancy for all same improvements. BCC vs. Close Up Creatures Inc., d/b/a NGALA and Donovan Smith as its Registered Agent and Director Location: Inez Drive, Agricultural District, off White Blvd. Alleged Violation: Observed the existence of exotic animals kept on unimproved parcel #58 of Township 49, Section 30, Range 27, more accurately described as 2755 Inez Road S.W., for future public display. No Collier County Occupational License for "permanent exhibit" of animal display for public enjoyment. CEB NO. 2003-010 NEW BUSINESS A. Request for Imposition of Fines/Liens 1. BCC vs. Maxwell of Naples Corp 2. BCC vs. Maxwell of Naples Corp CEB NO. 2002-027 CEB NO. 2002-032 B. Request for Reduction/Abatement of Fines 1. BCC vs. Usulu Okur C. Request for Foreclosure 1. BCC vs. Puccas 2. BCC vs. Barfs 3. BCC vs. Gleichman 6. OLD BUSINESS A. Affidavits of Compliance 1. BCC vs. Maxwell of Naples Corp 2. BCC vs. Maxwell of Naples Corp 3. BCC vs. Usulu Okur 7. REPORTS CEB NO. 2002-025 CEB NO. 2002-018 CEB NO. 2002-008 CEB NO. 2002-020 CEB NO. 2002-027 CEB NO. 2002-032 CEB NO. 2002-025 8. COMMENTS o 10. NEXT MEETING DATE March 27, 2003 ADJOURN February 27, 2003 CHAIRWOMAN DUSEK: I'd like to bring the Code Enforcement Board to order. Please note, any person who decides to appeal a decision of this board will need a record of the proceedings pertaining thereto and, therefore, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Neither Collier County nor the Code Enforcement Board shall be responsible for providing this record. Before we begin the roll call, I would like to welcome one of our new members, Albert Doria, Jr., who is at the end, and we welcome you today. And now we can begin the roll call. MS. HILTON: For the record, my name is Shanelle Hilton, CEB coordinator. Roberta Dusek? CHAIRWOMAN DUSEK: Here. MS. HILTON: Clifford Flegal? MR. MS. MR. MS. MS. MS. MS. MS. MR. MS. MS. MS. MR. MS. FLEGAL: HILTON: PONTE: HILTON: Here. George Ponte? Here. Rhona Saunders? SAUNDERS: Here. HILTON: Catherine Godfrey? GODFREY: (No response.) HILTON: Gerald Lefebvre? LEFEBVRE: Here. HILTON: Sheri Barnett? BARNETT: Here. HILTON: Albert Doria? DORIA: Here. HILTON: G. Christopher Ramsey? Page 2 February 27, 2003 (No response.) MS. HILTON: I'll give you an update on their status. CHAIRWOMAN DUSEK: At the moment -- well, let me just see who's coming through the door. Maybe it is Catherine. It is Catherine. MS. GODFREY: minutes. The trucks. I MS. SAUNDERS MS. GODFREY: CHAIRWOMAN is here. I apologize. It took me an hour and 20 hate trucks. : I hope there's no cases involving trucks. I live out in the Estates, so I'll tell you. DUSEK: Please note that Catherine Godfrey And Albert, you will be a contributing member for comments but not a voting member today. MR. FLEGAL: He's a regular member. CHAIRWOMAN DUSEK: Albert is? MS. HILTON: I'm sorry? CHAIRWOMAN DUSEK: Is Albert a regular or an alternate? MS. HILTON: He's an alternate. MR. FLEGAL: An alternate, okay. Who's the other -- who's the regular member? CHAIRWOMAN DUSEK: Christopher Ramsey. Approval of the agenda. Is there any change? MS. HILTON: I gave you a revised agenda this morning, adding a motion to continue BCC versus Baywood Manor Antiques and Jewelry, Inc. And that's Case 2003-003. CHAIRWOMAN DUSEK: All right. And that's it? MS. HILTON: That's it. CHAIRWOMAN DUSEK: Do I hear a motion that we approve the agenda as amended? MR. FLEGAL: I make the motion. MS. BARNETT: I'll second it. CHAIRWOMAN DUSEK: It has been -- a motion has been Page 3 February 27, 2003 made and seconded. All in favor? Any opposed? (No response.) CHAIRWOMAN DUSEK: The approval of the agenda passes. Since we don't have any minutes, we won't be addressing the minutes. And before we begin the public hearings, Ms. Saunders would like to go on record to note that even though it states that she -- her member stares expired on 2-14, that is not correct. And what is the correct date, Rhona? MS. SAUNDERS: I don't have the correct date. CHAIRWOMAN DUSEK: Okay, but we just -- MS. HILTON: I'll find out. MS. SAUNDERS: I would really appreciate it if it were corrected on the record. Thank you. CHAIRWOMAN DUSEK: Okay, we will open the public hearings. MS. HILTON: Do you want to do the motion to continue first? CHAIRWOMAN DUSEK: Yes. We have a motion to continue. And I believe that's what we received this morning, if I am correct. MR. GIALLANZA: Thank you, ladies and gentlemen. MS. HILTON: Be sworn in first. CHAIRWOMAN DUSEK: Anyone who is going to give testimony to this motion, we would like to swear you in. Is there anyone else other than yourself?. MR. GIALLANZA: No. (Speaker was duly sworn.) MS. HILTON: For the record, the director, Michelle Arnold, did not have an objection to this motion to continue. CHAIRWOMAN DUSEK: Okay, you may proceed. MR. GIALLANZA: I'm asking the board to continue this Page 4 February 27, 2003 hearing -- THE COURT REPORTER: Your name, please? MR. GIALLANZA: I'm Joseph Giallanza, agent for Baywood Manor Antiques and Jewelry, Inc. MS. HILTON: That's Board of County Commissioners versus Baywood Manor Antiques and Jewelry, Inc., and Joseph Giallanza G-I-A-L-L-A-N-Z-A, as its registered agent and director, Case No. 2003-003. CHAIRWOMAN DUSEK: And your reason, sir? MR. GIALLANZA: There appears to be some conflict here, being that there's litigation between myself and the Collier County Board of Commissioners. And this is in part regards to the property in question, where I'm not stating that there are not code violations, but there are reasons for the violations to be in existence, which is very complicated and complex litigation and issues which remain in both state and federal court at this time. I have a case pending in the federal district court, and there's a court order -- I don't know if I submitted it to you; there's a court order staying discovery for 90 days until I think it expires on about March 5th. And at this time I don't think it would be proper to divulge any information that may be regarded as confidential or protected by that discovery rule. MS. HILTON: Also, we have not been able to confirm service. The post office has not been able to find the green card. CHAIRWOMAN DUSEK: Okay, so there has not been proper notice given for this hearing today. MS. HILTON: Correct. Not verifiable. CHAIRWOMAN DUSEK: Not verifiable, all right. Do you have any other comments, sir? MR. GIALLANZA: Yes. Because of the ongoing litigation, I'm asking the board to continue this indefinitely until something is Page 5 February 27, 2003 resolved regarding the property and either the liquidation or my ability to correct the violations that exist. CHAIRWOMAN DUSEK: Does the board -- do any of the board members have any questions? MR. PONTE: I can't see continuing something indefinitely. We ought to have some checkpoints along the way, and I would make a motion that we continue it for 90 days. CHAIRWOMAN DUSEK: Are there any other comments from the board? MS. SAUNDERS: Yes, I do have a question. I think part of it involved an abandoned piece of property on there which can pose a safety hazard, and I want to be assured by the staff that that is not a problem. Now I understand it might be legal problems and all the rest, but if there's a violation that needs to be taken care of, regardless, then I'd like to make sure we address that. MR. GIALLANZA: If I may -- CHAIRWOMAN DUSEK: Does the county have a position on this as far as a safety hazard to this abandoned building? (Speaker was duly sworn.) MR. LETOURNEAU: For the record, my name's Jeff Letourneau, Collier County Code Enforcement Investigator who's been doing this case. I don't think there's any imminent danger of any kind of safety issues. This gentleman's been living out there since the late Eighties, and I don't feel there's any kind of safety issues going on. CHAIRWOMAN DUSEK: Thank you. All right, are there any other comments from the board members? There's a motion on the floor to continue for 90 days. MR. FLEGAL: I would second that motion. CHAIRWOMAN DUSEK: Is there any further discussion? All those in favor, signify by saying aye. Any opposed? Page 6 February 27, 2003 (No response.) CHAIRWOMAN DUSEK: The motion passes. It will be continued for 90 days. MR. GIALLANZA: Thank you very much, ladies and gentlemen. CHAIRWOMAN DUSEK: We have another motion, I believe, to be presented this morning to continue? MS. HILTON: No, they have been withdrawn. CHAIRWOMAN DUSEK: We're going to hear the case? MS. HILTON: Yes. CHAIRWOMAN DUSEK: Okay. Now, I do have one question before we start. I notice that on the agenda, it's -- Case 2003-009 has been shown twice. Is there a reason for that? I have two cases in my packet, and that's 008 and 009. Is there a third section, like a 0010 (sic)? MS. BELPEDIO: Jennifer Belpedio, assistant county attorney with Collier County. That Case 010 will be withdrawn at this time. We will not be proceeding on that case. CHAIRWOMAN DUSEK: All right, so we're hearing two cases this morning then, okay. MS. BELPEDIO: Yes, ma'am. CHAIRWOMAN DUSEK: We will proceed with the first case, 2000 -- CEB Case No. 2003-008. MS. JONES: If I may, board members? This is Ka'imi Jones, representing Close-Up Creatures. Could the county please give a reason why 010 was withdrawn this morning? MS. BELPEDIO: It's within the county's discretion, as you may all know, to withdraw a case at any time, and we have chosen to do so in that particular case. MS. JONES: So just for clarification, the case is still being prosecuted; however, it's withdrawn for the purposes of the hearing Page 7 February 27, 2003 this morning? MS. BELPEDIO: later pros It is not going to be continued or heard at a point in time. It is withdrawn. It is similar to a dismissal or no in a criminal action. MS. JONES: Thank you very much. CHAIRWOMAN DUSEK: Thank you. MS. BELPEDIO: Excuse me, Ms. Dusek? CHAIRWOMAN DUSEK: Yes. MS. BELPEDIO: I'd like to also discuss some preliminary matters before we proceed with our hearing. I have spoken with Ms. Jones in the past few days and we're I believe both in agreement that certain matters ought be stipulated to, agreed to for the sake of efficiency and time. It's my understanding that Ms. Jones is willing to stipulate to the facts as alleged in the packages. These facts include that there are structures and buildings and lavatories currently on the property; that clearing has occurred; it's my understanding that Ms. Jones may present evidence that the clearing may not have been as great or severe an area as the county is alleging, and she can put on her defense in regard to that. She's not stipulating to the full 48,000 and whatever amount of feet. She's also stipulating that the property is located where the county alleges, it's an agricultural zoned district. For that reason, the county's prepared to present an abridged case and provide this board with some historical background and information that will just give you an indication as to what really is going on on the property. At that time -- CHAIRWOMAN DUSEK: Jennifer, before you begin, if I can just summarize that very quickly for the board. We're to stay within the parameters of the structures, the buildings, the clearing and whether it's an agricultural zone? MS. BELPEDIO: For the purposes of finding violations, this Page 8 February 27, 2003 board ought stay within the parameters of the elements of the violations as alleged. Stated another way, Ms. Jones is agreeing that the facts that I have just spoken about are the fact that she's not disputing those facts. CHAIRWOMAN DUSEK: Okay. MS. BELPEDIO: It's her belief that it's more of a legal argument than a factual argument or dispute. MS. JONES: With the sole exception of the alleged area that was cleared. Without, you know -- okay. CHAIRWOMAN DUSEK: We can -- the county can begin then. MR. FLEGAL: Madam Chairman, can I ask a question? CHAIRWOMAN DUSEK: Yes. MR. FLEGAL: Since we have two cases, are we going to hear them together or is there a way you can separate them? MS. HILTON: They're going to be separate. MR. FLEGAL: Okay. MS. JONES: With all due respect, I could-- if you'd like to present both cases, I am prepared to go forward and argue both together and present my defense as a whole. They're very interrelated and intertwined, and in essence, our legal argument is the same. MR. FLEGAL: They seem-- MS. BELPEDIO: And certainly Ms. Jones can make her arguments for each case and there may be a duplication of arguments in hers. The county's prepared to present these cases separately so it's a little more orderly and in-- CHAIRWOMAN DUSEK: So we're going to hear the cases separately. MS. BELPEDIO: Yes, ma'am. CHAIRWOMAN DUSEK: You may begin with the first case. MS. BELPEDIO: I'd like to call -- MS. HILTON: I would like to ask at this time if the respondent Page 9 February 27, 2003 is present in the courtroom. MS. JONES: Yes, he is. Mr. Smith is sitting right next to me, as is his wife, Mrs. Tammy Smith. MS. HILTON: Please stand and be sworn in. (Speakers were duly sworn.) MS. HILTON: We have previously provided the board and the respondent with a packet of information we would like entered as Exhibit A at this time. MR. FLEGAL: So moved. CHAIRWOMAN DUSEK: Do I hear-- MS. SAUNDERS: Second. CHAIRWOMAN DUSEK: All in favor? Any opposed? (No response.) MS. JONES: I just want to know what you're moving into evidence. CHAIRWOMAN DUSEK: The packet that they presented to you, the county presented to you. MS. JONES: On which case number? MS. HILTON: This is going to be 2003-008. I have not got to that point yet. MS. JONES: I guess I'm just questioning what you're -- it's the 2003-008 packet that you're introducing? MS. HILTON: Yes. MS. JONES: Okay, no objection. MS. HILTON: The respondent was served with notice of hearing by certified mail, and I did receive my green card back. Our first case will be Board of County Commissioners versus Close-Up Creatures, Inc., doing business as Ngala, which is spelled N-G-A-L-A, and Donovan Smith as its registered agent and director, CEB No. 2003-008. The alleged violation is of section 3.8.3, paragraph three, 3.11.3.1, 3.11.3.2, 3.9.3, and 3.9.6.5 of Ordinance No. 91-102, as Page 10 February 27, 2003 amended, of the Collier County Land Development Code. The description of the violation: Observed parcel of 10 acres or more cleared without agricultural permit and improved with a storage barn, exotic animal barn and pen, permanent tent and toilet facilities without an environmental impact statement, or an EIS, being submitted and approved or the area surveyed for possible presence of endangered species. Approximately 48,800 square feet have been cleared for buildings, parking and access roadways without authorization of required agricultural clearing permit. Location where violation exists: 2755 Inez Road Southwest, Naples, Florida, more particularly described as Folio No. 0335000005. The name and address of owner in charge of location where violation exists is Close-Up Creatures, Inc., doing business as Ngala, care of Donovan Smith as its registered agent and director, 2755 Inez Road, Naples, Florida, 34117. Date violation first observed: Was July 29, 2002. Date owner given notice of violation: September 26th, 2002. Date on which violation was to be corrected: October 26, 2002. Date of reinspection: February 10, 2003. Result of reinspection: The violation remains. And at this time I would like to turn the case over to the code investigator, Alex Sulecki, to present the CEB case to the board. MS. SULECKI: Good morning, Madam Chairwoman, members of the board. Alexandra Sulecki, environmental specialist in the Code Enforcement department. I'm here on Case 2003-008. This is regarding environmental violations at Ngala, a business operated at Inez Road, section 30, township 49, range 27. And I'd like to show you some pictures to give you an idea of where this is. This is kind of way out so you can get a picture of where in the county. And it's right at the end of my pen there. MR. WHITE: Ms. Sulecki, Assistant County Attorney Patrick Page 11 February 27, 2003 White. That's in the evidence package. Could you refer to the page number of it or otherwise explain how you obtained that and what the information is? MS. SULECKI: Yes, this aerial is not in the evidence package, it's just something to -- a tool to show you where the property is. And I got it from the property appraiser's website. MS. JONES: Do you have a copy? MS. SULECKI: I do not have a copy at this moment. CHAIRWOMAN DUSEK: Could we get one for the respondent? MS. SULECKI: At this time, yeah. then too they're probably going to want. property appraiser's. then I have some other copies These are all from the CHAIRWOMAN DUSEK: Why don't we view them all and we'll make copies so that you can have them for your packet. MS. SULECKI: Shall I continue? CHAIRWOMAN DUSEK: Yes, go ahead. MS. SULECKI: There are three separate violations in this case: The first is clearing without permits, the second is clearing and building without assessing or obtaining approval for environmental impacts, and the third is requirement to provide a management plan if protected species exist on the property. August 28th, 2002, I was asked to look at the property, and I made an appointment to do so with the owner, Mr. Smith. On August 30th, I made a site visit with senior environmental specialist Barbara Burgeson, and at that time I observed a large tent, storage barn, an animal pen and barn, toilet facilities, a well and septic field, and a giraffe. And these pictures are in your packet, Pages 24 through 31. I also observed an additional cleared area nearer to the road, to Inez Road, that was, it looked to me like, a parking area. I later calculated the cleared areas, or the structures, the Page 12 February 27, 2003 roadway and the cleared apparent parking area, and I found that to be approximately 4,800 --48,800 square feet. I calculated this from the property appraiser's maps, where I simply made geometric shapes and calculated the square footage. At the time of my visit, Mr. Smith provided me with some permits; a septic permit, a well permit and some wildlife exhibitor licenses, but he did not provide me with a permit for the removal of vegetation. And at that time we also discussed exotic plant removal. Although it's not particularly a part of the case, it is something that is required once a property is developed, and we did discuss it at that time. Came back to the office and did some research. And when I went through county records, I did not find either a vegetation removal permit or an agricultural clearing permit for this property. My research also uncovered that there were possible endangered species issues on this property. U.S. Fish & Wildlife had informed me that there are active and historic red-cockaded woodpecker nests in the area. The red-cockaded woodpecker, Picoides borealis, is listed as threatened by the state, the Florida Fish & Wildlife Conservation Commission, and endangered by the U.S. Fish & Wildlife Service, a federal agency. I also determined the parcel was 10 acres in size and it was landward of the coastal management boundary, again per the property appraiser's records. Thank you, okay. CHAIRWOMAN DUSEK: Alex? MS. SULECKI: Yes. CHAIRWOMAN DUSEK: Is this to be entered as evidence? MS. SULECKI: I didn't consider it evidence, it was simply a tool to show you where the property is. CHAIRWOMAN DUSEK: Jean, do we need to have that entered as evidence? Page 13 February 27, 2003 MS. RAWSON: If there's no objection from counsel, you may as well put it in the packet. MS. JONES: No objection. CHAIRWOMAN DUSEK: All right, we'll just add it to your package that was entered earlier. MS. SULECKI: Okay, thank you. Sorry for the oversight. All right, the property is located right about the end of my pen there, Collier County. It's in an agricultural zoning district. So we move in a little bit closer, the property is right in there. And closer yet, from the air, the approximate 1 O-acre parcel, or 10 acres, according to property appraiser's. Here's a little bit closer, you can see the tent structure and one of the major buildings there, it's a 40 by 60 aluminum structure. This is a photograph of inside the aluminum structure. This is in your packet. And this is a photograph of the inside of the tent. Quite lovely. And as I said, the parcel is 10 acres, and landward of the coastal management boundary, and there was some significance to that that I'll share in a moment. On September 26th, 2002, I issued a notice of violation for 91-102, as amended, the land development code. And I'm going to paraphrase, you have these sections in your packet and I'll reference the page. And they're a little bit out of order from what you've got, but I'll give you the page number. The first one is section 3.9.3. This is on Page 18. And it essentially says that you cannot remove vegetation without a permit. There are some exceptions, but they do not apply in this case. And I did not find a permit for the vegetation removal. The next one is 3.9.6.5, and that's on Page 20. And essentially this says that you must have a permit to clear agricultural land for bona fide agricultural use. Again, there are some exceptions, but they do not apply in this case. Page 14 February 27, 2003 Continuing, we have section 3.8.3, and this says that an environmental impact statement approval is required for zoning changes, permits or site alterations for parcels greater than 10 acres, landward of the coastal management boundary. And that's the significant of that research. Why is that? So we can have good planning, and so that negative impacts can be controlled. The next section is 3 -- well, there's two of them: 3.11.3.1 and 3.11.3.2. And this is on Page 16 of your packet. These require and define a plan of management for habitat and wildlife where endangered species are present. Now, I didn't know for sure if endangered species were present on this parcel, but then they -- I knew they were nearby. And we would never know, because the clearing had already been done. So this was a cautionary action. The compliance dates in my notice of violation were structured to encourage prompt compliance efforts. And this is on Page 12 of your packet. On November 5th, 2002, the county granted a 30-day extension for the submission of some documents that are required in that order to correct. It's the first part of a complicated compliance process. On December 5th, a month later, the county denied a second extension request. At that time the department's belief was that Mr. Smith was not making good faith efforts to comply in an expeditious manner, so we set the case for a CEB hearing, confident that the board would acknowledge any compliance efforts with reasonable time frames for compliance. The county's recommendations are in your packet. They're in the executive summary. If you'd like to take a minute to review them, please feel free to ask me any questions. I did give you a copy of the section of code that is referenced in that compliance portion. It was also referenced on the notice of violation. But at that point it was not delivered with the packet, so that's for your information. Page 15 February 27, 2003 CHAIRWOMAN DUSEK: Alex, I have some questions. I believe when Michelle was presenting -- not Michelle -- Shanelle was presenting the case for the county, there was a date of July mentioned. But in this summary, it says your first visit was in August. Which is correct? MS. SULECKI: I came -- there are two parts to this case. Mine is the environmental part. My cases started after the first cases started. So there were cases that started in July, but not this one. CHAIRWOMAN DUSEK: Okay. It's zoned agricultural for agricultural use. Now, in reading through all the material that was given to us, is there some different type of definition when the agricultural land is used for the exhibit of animals, or does it have to be a working type of agricultural use? Do you understand my question? MS. SULECKI: Yes, I do. But that's a legal question that I think is really the bigger issue here, and I don't feel that I can answer that for you. CHAIRWOMAN DUSEK: Okay. MR. PONTE: Alex, I do have a question. You mentioned the woodpecker. My question is this: Is the possible presence of an endangered species part of the violations that you're outlining here, or not? MS. SULECKI: The violation was that the proper procedures were not taken in order to determine if there was an endangered species present. There may have been other species besides the red-cockaded woodpecker, but I was informed by federal staff that there are locations very nearby that have red-cockaded woodpeckers, and they do take steps to protect habitat, even if the birds are not found on the property. So that's the reason. MR. PONTE: Thank you. CHAIRWOMAN DUSEK: Is the only endangered species that we're referencing the woodpecker? Do you have any other? Page 16 February 27, 2003 MS. SULECKI: Specifically, I do not know of any others specifically, so I did not reference them specifically. But there are a number of them and they're included in the 3.11.1.2. CHAIRWOMAN DUSEK: Are there any -- go ahead. MR. FLEGAL: Yeah, I have some questions. Alex, on your paragraph 3.9.6.5, Page 20, talks about agricultural land clearing. And it says bona fide agricultural use is defined by this code. Do you have the section that defines what agricultural -- bona fide agricultural use is? MS. SULECKI: I don't believe that's defined at the county level. It's my understanding that's a state statute level definition. MR. FLEGAL: Okay. My next question is, our chair lady mentioned it is zoned agricultural. I haven't seen anything in what you've submitted to us from the property appraiser's office that proves that it is zoned agricultural. Do you have any document that proves this is agricultural? MS. SULECKI: Let's see. MS. BELPEDIO: Jennifer Belpedio. As you may recall, Mr. Flegal, that item, that fact was stipulated to by opposing counsel. That need not be proved at this hearing. CHAIRWOMAN DUSEK: Would you repeat that again? MR. PONTE: What does that mean? CHAIRWOMAN DUSEK: Just repeat that again. MR. FLEGAL: I'm having a little problem. I understand what you're saying, but my problem is that we're -- everything is geared that it's agricultural, and-- MS. SULECKI: MR. FLEGAL: MS. SULECKI: the zoning. MR. FLEGAL: specific. Not necessarily. Well -- 3.9.3 is simply vegetation removal, whatever 3.9.6.5 is agricultural land clearing. Very Page 17 February 27, 2003 MS. SULECKI: Due to my research. Let me see if I have -- MR. FLEGAL: What document do you have that says it's agricultural, that you two say that it isn't the law? The law is the property appraiser's office, and I'm just curious, is that what he says? Since we seem to be using his maps and his pictures and everything else, what do his documents say? I think that would be very important. MS. SULECKI: Well, I do have in the packet, Page 34, the future land use map. And if you'll -- I can put -- put this back up on here and point out again where it is located, which I believe would be in the white portion on that map, right in here. And if you'll check the key right up in this area, it does say agricultural district. MR. FLEGAL: Okay. There's a lot of things that are agricultural districts, but not every parcel of land is zoned agricultural. That's my problem. MR. WHITE: If I may be of assistance, Madam Chairman? CHAIRWOMAN DUSEK: Yes. MR. WHITE: I believe that the official zoning map is the precise record that determines and establishes what the zoning is. There's been no dispute from the respondents that it is agriculturally zoned, and I believe that if you require us to produce and put into evidence the official zoning map, we will have that for you later in the presentation. But at this point you have sworn testimony, without objection from the respondents, that demonstrates, I believe, sufficient for you to proceed that the land is zoned agricultural. Thank you. CHAIRWOMAN DUSEK: Thank you. I can accept that. MR. FLEGAL: I can't. That's okay. MS. SULECKI: Any further questions? MS. JONES: I have some questions, if I may proceed, unless one of the board members has any. CHAIRWOMAN DUSEK: Are there any other questions from Page 18 February 27, 2003 MS. MS. MS. MS. record. the board members? All right. MS. BELPEDIO: I'd like to ask some questions prior to defense's questions, then we can give her an opportunity. CHAIRWOMAN DUSEK: All right. Just hold on. MS. BELPEDIO: Alex, I'd like to refer you to Page 32 of the county's evidence package. MS. SULECKI: Yes. BELPEDIO: Have you seen these records before? SULECKI: Yes, I pulled this up. BELPEDIO: What is it? SULECKI: This is the property appraiser's property MS. BELPEDIO: Have you read these in the course of your job duties with the county? MS. SULECKI: Yes, I have. MS. BELPEDIO: I'd like to refer you to the bottom left portion of the document under 2002 final taxable value. Do you see that there? MS. SULECKI: Yes, I do. MS. BELPEDIO: Is there any indication in that area that there is any sort of homestead exemption taken? MS. SULECKI: No, there is not. MS. BELPEDIO: How about any other source of exemption? CHAIRWOMAN DUSEK: Jennifer, if you could speak closer to the microphone, it's hard to hear you. MS. BELPEDIO: I apologize. How about any other source of exemption, such as agricultural exemption? MS. SULECKI: No, I do not see anything. MS. BELPEDIO: Thank you. CHAIRWOMAN DUSEK: I have one question now as I look at this. On this ownership it says, and someone might be able to clarify Page 19 February 27, 2003 this for me, improved commercial. MS. SULECKI: I do see that now. I don't know how that's there, because I have the official zoning map here at this point. For sections 29 and 30, township 49 and range 27, and the Ngala parcel is here, and the zoning is classified as agricultural. MS. JONES: There appears to be a mistake in the property appraiser's record on line. CHAIRWOMAN DUSEK: Ms. Jones, are you saying that that improved commercial you consider to be a mistake? MS. JONES: Yes. Mr. Smith is here to testify today -- CHAIRWOMAN DUSEK: Okay. MS. JONES: -- that his property's been agricultural -- CHAIRWOMAN DUSEK: Okay. MS. JONES: -- since he bought it in the early Nineties. MR. WHITE: County's not disputing the fact that it's serving some perhaps commercial purpose. The question I think that Mr. Flegal had was whether it's zoned agricultural or not. CHAIRWOMAN DUSEK: That's right. MR. PONTE: That's right. MR. WHITE: And I believe that the document on the visualizer is what I referred to earlier, the official zoning map that I believe evidences the fact that the subject property is zoned agricultural. And at this time, I would ask that we be allowed to move that into evidence so that it becomes part of the facts upon which you can make any ultimate decision you may choose to. MR. FLEGAL: Comment. My question wasn't whether it was zoned agricultural, I said do you have any evidence that it is agricultural. And if I remember the statutes correctly, the property appraiser is the one who determines agricultural. MR. WHITE: I think you're referring-- MR. FLEGAL: And that's why I wanted to know do we have anything. And you've just showed me this document, which answers Page 20 February 27, 2003 my question. MR. WHITE: And I think that between the two documents, it may be fair to assume that there is no agricultural exemption, and I think that may be what you're referring to, Mr. Flegal, by the notion that it is agricultural use, or used for agriculture. At present, we're unaware of any facts that establish that there's an exemption for agricultural. MR. FLEGAL: I didn't ask that question. CHAIRWOMAN DUSEK: The one question that we addressed, I think we were all trying to straighten out, is whether it's zoned agricultural. And I think everyone is in agreement that, from the evidence and no objection from the defense, that it is zoned agricultural. If you would like to enter this into evidence, Jean, can we put this with their evidence package? MS. RAWSON: Yes, you may, as long as there's no objection from counsel. CHAIRWOMAN DUSEK: Is there any objection? MS. JONES: No objection. CHAIRWOMAN DUSEK: Do I hear a motion that we enter this part into the county's package? MR. PONTE: So moved. CHAIRWOMAN DUSEK: Is there a second? MR. FLEGAL: Second. MR. WHITE: I just ask that it be identified as -- CHAIRWOMAN DUSEK: The zoning map. MR. WHITE: -- County's Exhibit A -- I'm sorry, I think the previous package was A, this would be B. CHAIRWOMAN DUSEK: in the A package. MR. WHITE: Thank you. CHAIRWOMAN DUSEK: Yes, and we're going to enter it as -- All in favor? Any opposed? Page 21 February 27, 2003 (No response.) CHAIRWOMAN DUSEK: Motions passes. You may proceed. MS. JONES: Miss Belpedio, are you-- MS. BELPEDIO: We have no further questions. CHAIRWOMAN DUSEK: Ms. Jones, you may -- MS. JONES: Thank you. Ms. Sulecki, is that -- how do you pronounce your last name? MS. SULECKI: Sulecki, yes, that's right. MS. JONES: Do you know whether Mr. Smith has applied for an agricultural exemption with the property appraiser's office? MS. SULECKI: I do not know. MS. JONES: Let's go back to the 48,000 square feet issue that you say that he cleared. You, I believe, testified that you took the maps from the property appraiser's office and you did some geographical shaping, and that's how you came up with that square footage? MS. SULECKI: That approximate square footage, yes. MS. JONES: Can you kind of take the board through your process? MS. SULECKI: I don't have my calculations here with me. You want me to go through all the calculations? MS. JONES: Yeah, I mean, if you don't mind, if you take the MS. SULECKI: Do you have a calculator? MS. JONES: You know, just kind of show them what geographical images you made and, you know, what math you used and how you calculated that. MS. SULECKI: I took one of these maps that has a scale at the bottom, right here, and I made shapes out of each of the buildings. And the roadways, which I estimated from being on-site, to be 12 to 15 feet wide, I measured the length of the roadways. And the area -- Page 22 February 27, 2003 let's see, maybe that's a little better. Also this cleared area. So I made geometric shapes for the buildings and used this scale to measure, simply multiplied side by side for geometric shapes and then added the shapes together. MS. JONES: Now, would you agree that the area in question, that square-shaped area -- what is the total square footage of that area; do you know? MS. SULECKI: I don't have those notes with me. MS. JONES: Is it -- could it be an acre and a half?. And I'm talking the entire parcel, not what appears to be, you know, constructed and-- MS. SULECKI: The entire parcel is 10 acres. MS. JONES: So as far as the -- you know, if you take the outline of the roadway, the circular shape that it makes, do you know how much square footage is within that particular area? MS. SULECKI: Not offhand. If I had a calculator and ruler, I could remeasure it. I simply took the -- took my ruler across each leg that was pretty straight, and then multiplied that by -- I forget, 12 or 15 feet, and then added each section up. MS. JONES: So you don't know the exact square footage of the entire -- MS. SULECKI: No, ma'am, I don't. I did not measure when I was on-site. MS. JONES: And you don't have any of your calculations with you today? MS. SULECKI: They are likely in the file, but I don't have them with me at this moment. MS. JONES: Now, did you do anything else besides what you just testified to, to measure the square footage of the land that you say was cleared? MS. SULECKI: No, I did not, except using the dimensions of the buildings that were given to me. Page 23 February 27, 2003 MS. JONES: Let's talk about that for a second, the dimensions of the buildings. I guess we can't really talk about it, because you don't have that with you; is that right? MS. SULECKI: I know that the large aluminum structure is 40 by 60 feet. MS. JONES: So what is -- is that approximately 3,200 square feet? MS. SULECKI: If you calculated it that. I don't have a brain that can calculate like that. MS. JONES: We have done some calculations, that's why, which Mr. Smith will testify to. But I guess what I'm trying to get at is -- and I just want to make sure that the only thing you did other than getting the actual dimensions of the tent structure and the aluminum barn structure and calculating the distance between, you know, of the road space, and then just kind of you doing your own calculations, based on this map. MS. SULECKI: Yes, and I may have added the giraffe pen area in there, because clearing is not only for trees, it's for woody brush and understory as well. So that would figure into the area. MS. JONES: Did you ever ask Mr. Smith what was cleared? MS. SULECKI: I didn't see a need to, because I could see it for myself, both being on-site and through the aerials. MS. JONES: Did you compare the previous aerial prior to the construction and implementation of these buildings to what's there now? MS. SULECKI: I did look at earlier property appraisers' records -- the aerial maps, excuse me -- when the site was fully wooded. MS. JONES: So the earlier maps show that the site was fully wooded? MS. SULECKI: Maps after 1991 do show that, and that's when our regulations came into effect. Page 24 February 27, 2003 MS. JONES: So you looked at maps after '91, and it showed that this enti -- what did it look like? I mean, what did the area that's in dispute right now, what did that look like in the prior maps? MS. SULECKI: I can't remember specifically. MS. JONES: So there could have been areas that were cleared already just naturally. MS. SULECKI: My recollection is that that the area was wooded. MS. JONES: Is there space between trees, generally? MS. SULECKI: There can be some. MS. JONES: When you calculate the square footage, do you count that area, or do you just count what was actually cleared? MS. SULECKI: I counted what I saw cleared on-site, and via the aerials. MS. JONES: I guess my question is, you know, say you've got a five by five square, and you've got one tree in it that maybe takes up, you know, a quarter of that square, do you count that entire five by five area or do you just count the tree that was cleared? MS. SULECKI: If there's one tree cleared, it's a different calculation, you're just going by one tree. This was an area, and I was calculating by area. I'm not sure, are you suggesting that I should go through and count tree by tree or brush by brush? Because I would have no way of knowing what was where. MS. JONES: I guess all I'm suggesting is that less than 48,000 acres was actually cleared, and the only way you would know that is by, you know, maybe asking Mr. Smith what kind of vegetation he cleared, whether there were trees there, whether there weren't. Just, you know, doing a little bit more than just looking at the aerial maps. MS. SULECKI: I'm not sure how to answer that. I was on-site, I saw, I looked at maps, and I made an approximate calculation. MS. JONES: If there was testimony today by Mr. Smith that it Page 25 February 27, 2003 was less than 43,000 acres, would you dispute that? MS. SULECKI: I would just want to know what the calculations were. MS. JONES: Okay. So in addition to trees, do you know what else was cleared, what other kind of vegetation? MS. SULECKI: I don't know exactly, because it's gone. But I know in that area there would likely be Myrcine, which is a native woody understory; there would likely be Beautyberry, Callicarpa, Myrcine, those sorts of things in the understory that are protected. MS. JONES: Do you think that there were some exotics that Mr. Smith was required to remove by law? MS. SULECKI: Mr. Smith told me that he removed all the exotics from the parcel except for a few melaleuca. I didn't see any when I was there. He said there was some big melaleuca over by the side. So I know that he most likely did remove exotics, and I would not -- although removing even exotics without a permit is a code violation, it's not something that's considered as grievous as removing native vegetation. MS. JONES: I wanted to clarify one thing with you. You said when you initially visited the property, you saw a giraffe? MS. SULECKI: Yes. MS. JONES: You sure it wasn't a zebra? MS. SULECKI: I could have sworn I saw a giraffe. MS. JONES: Mr. Smith didn't have one at the time, that's all. MS. SULECKI: Maybe it was a zebra, I'm sorry. MS. JONES: He was planning on getting a baby giraffe, and I turned to him, I said did you get that yet? So it's just -- MS. SULECKI: Maybe I remembered him talking about the giraffe. My apologies. MS. JONES: Do you know whether there are red-cockaded woodpeckers on Mr. Smith's property? MS. SULECKI: I do not know that. Page 26 February 27, 2003 MS. JONES: And I believe, and this could be just a matter of semantics, but in Florida, is the red-cockaded woodpecker endangered or threatened? It may not make -- MS. SULECKI: In Florida it's threatened. Federally it's endangered. And it does not make a difference in level of protection. MS. JONES: No further questions. MS. BARNETT: I have one. You make a reference -- I'm Sheri Barnett, I'm sorry. I have one, because you made a reference, and in our packet, in your defense packet there on -- MR. FLEGAL: It hasn't been entered. MS. BARNETT: Oh, it hasn't been entered. I'm sorry, I can't do it. CHAIRWOMAN DUSEK: Save it for later. MR. WHITE: On rebuttal? CHAIRWOMAN DUSEK: Yes, go ahead. MR. WHITE: Alex, does it matter whether or not with respect to the red-cockaded woodpecker, whether they're actual individual birds on-site that you've observed, or is it sufficient to merely have there be habitat present in order to have a violation filed, in your opinion? MS. SULECKI: The issue is the birds themselves and habitat. The protection standard applies for both. I don't normally see endangered species on a site. I can, but I don't have to. That's something that is taken care of in the -- the development order requires a survey, so they have an environmental team that comes out and actually does a survey. MR. WHITE: No further questions. CHAIRWOMAN DUSEK: All right. Thank you, Alex. MS. SULECKI: Thank you. CHAIRWOMAN DUSEK: Now, Ms. Jones, you may present your side. MS. JONES: I guess I'm kind of confused with the procedure. Page 27 February 27, 2003 Would you like testimony first or, you know, a little opening statement or -- I guess -- this is my first time before the board, so -- CHAIRWOMAN DUSEK: If you want to do an opening statement and then have testimony. But we will ask for the testimony so that we can ask questions. MS. JONES: Of course. For my opening statement, I'd like to show the board a videotape about Ngala and Close-Up Creatures and what it actually does. MS. BELPEDIO: At this time I'd like to object to this board hearing the videotape. I haven't observed this videotape. It's my understanding that it's just a view of the property. I don't know how that goes to whether or not land was cleared. I haven't heard anything about that yet. And on those grounds, I would object. MS. JONES: The videotape goes directly to our defense argument, which is a legal argument, and we need to present facts to the board about the argument, and some of those facts -- I mean, the majority of those facts are what Close-Up Creatures and Ngala does, what their business is, how long they've been doing it. And this video specifically addresses those issues and goes to the heart of our defense. CHAIRWOMAN DUSEK: I think-- MS. RAWSON: Can I ask you how long the videotape is? MS. JONES: It's seven minutes. MS. RAWSON: Can I suggest that we take about a 1 O-minute recess so that the county attorney can have like either a conference with Ms. Jones or a private viewing, and then we can come back on the record and then she can see if she still has an objection. Because if you view this and this goes to their defense, then in fact it is evidence. So I would suggest that you take a short recess so that the county attorney and Ms. Jones can have this little conference. CHAIRWOMAN DUSEK: All right, we will take -- if that's Page 28 February 27, 2003 agreeable to everybody on the board? MS. SAUNDERS: Sure. CHAIRWOMAN DUSEK: We will take a short recess, have you view the tape. Ten minutes. (Recess.) CHAIRWOMAN DUSEK: Okay, we'll bring the Code Enforcement Board meeting back to order. Now that the county has seen the video, is there any objection? MR. WHITE: Madam Chair, yes, I believe we object on the grounds of relevance. I looked through it for the purposes of being able to determine whether there was anything factually that would evidence that there were none of the violations that are cited as part of this case. And I can't tell you I saw anything factually except that it may demonstrate that indeed there may have been some clearing that took place in different portions of the site. That is something I think that although stipulated to, it wasn't as to the precise area that was cleared. So I'm not sure that there's any additional factual information. And we're prepared to stipulate, if you will, that Mr. Smith is a fine upstanding citizen, that, you know, his business is a good business in the sense of economics, and I understand that he desires to present a positive image to this board. But I don't see where that's relevant. Certainly I think it's probably a moot point that we're objecting, because the only way you're going to know whether what it is that we're objecting to is to have seen it. So arguably, our objection is going to not carry much weight. But what I'm going to ask you to do as you look through this is to determine for yourselves whether there are any relevant facts that will assist you in your ultimate determination of the violations that have been cited or not. And certainly my -- the county's position is that I don't think you're going to learn anything more from this tape, other than, you know, the Page 29 February 27, 2003 positive aspects of Mr. Smith and his corporation, which we acknowledge. But we're here about Code Enforcement Board violations. Thank you. CHAIRWOMAN DUSEK: Before I respond to the objection, and without a lot of debate, I want to know how the board feels about the objection. Do you want to see the video? And I just want a general census. MR. PONTE: If it's a general promotional video, I think that we could skip it in the interest of saving some time. CHAIRWOMAN DUSEK: We don't know that, because we haven't seen it. MR. WHITE: I can tell you where it has been made apparent as part of the county's processes, and that is that this was a videotape that was presented -- prepared for and presented at a neighborhood informational meeting that is a requirement for an application for a conditional use. The county has received the conditional use application for three specific conditional uses in the agricultural zoning district, and this videotape was prepared essentially for the neighboring property owners or other interested persons who wanted to understand who the applicants are and what their operation is about. And so it does have some relevance, but that is with respect to the conditional use application, which certainly isn't something within the jurisdiction of this board. We're here today to determine whether there have been violations of the code, and I don't know that there are any facts in here that support a legal argument one way or the other on the part of respondents. CHAIRWOMAN DUSEK: Cliff, do you have something you -- MR. FLEGAL: Yes, may I ask Ms. Rawson a question? MS. RAWSON: Surely. MR. FLEGAL: Ms. Rawson, the presentation of evidence to the board, if I remember our rules and regulations correctly, even if there Page 30 February 27, 2003 is an objection from the other side, it is the board's decision whether to accept the evidence, is it not? MS. RAWSON: It is. MR. FLEGAL: Okay. MS. RAWSON: And on the objection of relevancy, basically you are the trier of fact, and if you let it in, then you need to determine what weight you're going to give that evidence and what its relevancy may or may not be. MR. FLEGAL: Okay. MS. SAUNDERS: Madam Chairman, I would very much like to see the video. I don't understand agri-tourism especially, and I think that relates to whether there's a violation or not. And I would like to understand the business better so that I can understand if it's an appropriate business, in my understanding of-- for the zoning, or whether there's a code violation-- CHAIRWOMAN DUSEK: Well, let me ask -- MS. SAUNDERS: -- or not. Without knowing it, I can't understand it. CHAIRWOMAN DUSEK: -- of the board members, are there any objections? MR. FLEGAL: We need a motion to enter it into evidence. CHAIRWOMAN DUSEK: I just want to know about the objection right now, if there is any motion -- I mean, not a motion, but just any feelings. I'm not hearing any. Then I think we will go ahead with the-- MR. FLEGAL: We need a motion to enter it. CHAIRWOMAN DUSEK: Do we need a motion to enter this into evidence? They haven't presented it as a package yet. MS. RAWSON: Well, no, here's the problem with the video from an evidentiary standpoint. You're not going to really admit it into evidence, because I don't think they're going to leave the videotape with the court reporter. Page 31 February 27, 2003 MS. JONES: Yes, we do have a copy for the court reporter. MS. RAWSON: Okay, then it would be admitted into evidence. It's going to be impossible for her to take down everything that's on the video, so we had a discussion and I said if it gets in, all you need to say is that a video was shown. But if Ms. Jones intends to leave a copy of it with her, then it would be evidence. So yes, you'd have to admit it into evidence. MS. SAUNDERS: I move that we admit the video into evidence. MR. PONTE: MR. WHITE: Second. Madam Chairman, I don't know how you can move something into evidence that you haven't even seen or considered. If you'd like to view it for that purpose, that's what I was alluding to earlier, but if you're just going to admit it without viewing it, that's fine with me too. CHAIRWOMAN DUSEK: Jean? MS. RAWSON: Yes. CHAIRWOMAN DUSEK: When the county presents its package for evidence, or the respondent does, it's usually verbal and then we see -- well, actually they give us the package ahead of time. So how do we treat this? We haven't seen it, they haven't given it to us ahead of time. MS. RAWSON: Well, I think that probably it's a respondent exhibit, and I would presume that when the respondent takes her case in chief, which I think is now, that she will move for its introduction into evidence, along with her defense packet. CHAIRWOMAN DUSEK: Do we wait for her to do this before we-- MS. RAWSON: Yes. CHAIRWOMAN DUSEK: All right, we will proceed with Ms. Jones and you will have to present this with your package of evidence and then we will decide. Page 32 February 27, 2003 MS. JONES: Another procedural question to the board. I guess I should go ahead and move my defense package into evidence, along with the videotape at this point in time. CHAIRWOMAN DUSEK: Do I hear a motion that we -- MR. FLEGAL: So moved. MR. WHITE: Madam Chairman, we of course have no objection to the evidence package, except for the videotape. you. Thank CHAIRWOMAN DUSEK: So noted. There is a motion that we accept the defense package, which does include the video. Do I hear a second? MS. BARNETT: Second. MR. FLEGAL: Second. CHAIRWOMAN DUSEK: All those in favor? Any opposed? (No response.) CHAIRWOMAN DUSEK: Motion carries. MS. JONES: May I proceed? CHAIRWOMAN DUSEK: Yes. (At which time, a videotape was shown.) MS. HILTON: We would like to have the videotape entered as evidence, Respondent's No. 1. MS. JONES: I believe it was already -- MR. FLEGAL: It's already in. MS. JONES: At this point in time, I would like to have Mr. Smith testify. MR. WHITE: Just based upon your viewing, Madam Chair and the board members, we renew our objection on relevance. CHAIRWOMAN DUSEK: So noted. MS. JONES: Before starting the questioning, I have to advise the board that I was prepared to argue and present evidence with respect to all the violations today, so if there's -- if it's a little disjointed, please forgive me. Page 33 February 27, 2003 MS. BARNETT: I have a question, only because I viewed the video and now that it's been entered into evidence. You had a concern over whether or not there was a giraffe or a zebra present, and in the video itself they show a giraffe. It's also in your evidence, there's pictures of giraffes, and in one of their ads, there is a giraffe. CHAIRWOMAN DUSEK: I think that point was that that giraffe came after Alex Sulecki was there. MS. BARNETT: I was just trying to clarify, was that the situation? MS. JONES: I believe Mr. Smith is probably the best person to answer your question. MR. SMITH: The giraffe in the picture there is the only leash-trained giraffe in the United States. So that is the Toys R Us giraffe. And being that he is so popular, he's generally on tour at various facilities across the country. And he resides at another facility, and we bring him down as needed. Another facility in another part of Florida. We are awaiting the arrival of a baby giraffe that's due any day and given to us by a zoo in Virginia. So we have a facility for it, it just hasn't arrived yet. MS. BARNETT: Okay, that clears it up, because I was just confused. BY MS. JONES: MS. JONES: Mr. Smith, can you go ahead and state your name for the record, please. MR. SMITH: Yes, ma'am, my name is Donovan Smith. MS. JONES: And do you hold a position with the respondent, Close-Up Creatures? MR. SMITH: wear many hats. MS. JONES: MR. SMITH: Yes, ma'am, I'm the president and director and What is Close-Up Creatures? Close-Up Creatures is a -- it's hard to explain, but Page 34 February 27, 2003 basically it's a -- oh, boy, where do ! start? It's a private game -- I mean, it started out as a company that acquired animals from unfortunate situations, as you saw in the video, and then utilizes those animals for various educational seminars, events, so on, so forth. MS. JONES: When was Close-Up Creatures started? MR. SMITH: We started in December of 1989, although I've been handling animals since I was nine and professionally since I was 14. MS. JONES: Does Close-up Creature -- what does Close-Up Creatures do with the animals? MR. SMITH: Well, as you saw in the video, we display them for all types. Like, for instance, everybody draws a conclusion of the conventions and that sort of thing, and that's what pays the bills, but we do the same exact presentations in the school system. And we do some movie work as well. But like I said, our main -- we're a for-profit company, but we're civic minded. So our animals come from unfortunate situations. And rather than being another facility that sits out in front of public and begs money, we decided to go a little bit more agressive about it and try to make a living and feed our animals and hopefully ourselves, too. MS. JONES: So when Close-Up Creatures was founded -- I'll refer to the video again -- it was initially to house and care for these animals? MR. SMITH: That's correct. MS. JONES: But, you know, you've since grown and expanded your operation to provide financial -- MR. SMITH: Yeah, we've always been a wildlife sanctuary, now we're just a fancy wildlife sanctuary. MS. JONES: What types of animals are presently on your property owned by Close-Up Creatures? Page 35 February 27, 2003 MR. SMITH: All types. We have anything from a tarantula to a leopard. Paper had me saying that I have an elephant, but I don't have one of those yet. But the -- all kinds of animals. We have zebras, chimpanzees, a whole gamut of things in addition to a goat, that's my son's. And so we have furry, fuzzy, scaly, you name it. MS. JONES: MR. SMITH: MS. JONES: MR. SMITH: MS. JONES: MR. SMITH: leopard. MS. JONES: MR. SMITH: Do you have parrots? Yes, ma'am, we do. Do you have a Florida panther? Yes, we have two of them, as a matter of fact. Do you have any jaguars? No. We have a black leopard and a spotted Any other exotic birds? We have our peacocks, of course, and then our, like I said, our tropical parrots. MS. JONES: Do you have any alligators? MR. SMITH: Yes, we do. We have five alligators and a crocodile. MS. JONES: So you already testified that in addition to housing and caring for these animals, Close-Up Creatures provides educational outreach programs to the community. Can you give the board an example of one of those educational outreach programs? MR. SMITH: Well, for -- the most recent example is we had the students from the Phoenix Foundation at our place, at Ngala. And the Phoenix Foundation, the way I understand it, is kids are slated to be expelled and they are put in a program where they get a little bit more one-on-one coaching and that sort of thing. And they brought out -- it was about 60 students that have kept their grades up and stayed out of trouble. And that was a really fun moment for me, because I was in their position about 15, 17 years ago myself, and, you know, I grew up -- MS. BELPEDIO: I object and ask that that statement be Page 36 February 27, 2003 stricken. The way Mr. Smith feels about the experience isn't relevant as to whether or not there's a violation. MS. JONES: I think it goes directly to the heart of what he does. CHAIRWOMAN DUSEK: I think what we have to keep in mind is that there are certain violations. I think the county has stated that they think he has a wonderful business, they have no objection to that, but there are certain violations, and that's what we have to stay centered on. MS. JONES: I agree, but from a procedural standpoint and from an evidentiary standpoint, I have to get certain facts in the record if for some reason, you know, this board decides to hold my client in violation, I have -- we will appeal. So from that perspective, there are facts that I need to get in. And I don't plan on -- unless the board wishes, but I don't plan on duplicating Mr. Smith's testimony. Initially, you know, the county wanted to proceed on two separate violations. I mean, our legal argument is the same, our facts are the same, everything's the same with respect to both case numbers, so it's -- you know, I think that it would save the board a lot of time if we just, you know, heard Mr. Smith out, you know, heard our arguments. I mean, I understand the county, you know, will object to that, but it's a little difficult for me at this point, I attempted to contact Mr. White and Ms. Belpedio yesterday to talk about how to best proceed here today and unfortunately I understand Mr. White's office moved so he's got, you know, a gazillion phone messages and that sort of thing, so we never spoke. So I guess we're kind of at a quandary at this point right now. MR. PONTE: Perhaps we could keep it a little bit more focused rather than so much warm and fuzzy stuff. MS. JONES: Well, I think the warm and fuzzy stuff is directly relevant to our defense. MR. PONTE: Let's stay focused on the violations, the alleged Page 37 February 27, 2003 violations. MS. BELPEDIO: I'd like to suggest that Ms. Jones have Mr. Smith proffer his testimony and this board can then rule upon whether or not it's something that ought be considered that goes to relevancy, and I think that will accomplish her goal of seeking to preserve a record for an appeal at a later point in time. MS. JONES: That's fine. In essence that means you'll hear his testimony, and then later on I guess after the arguments are done, determine whether they're relevant or not. MS. SAUNDERS: Okay. MS. JONES: Is that acceptable to the board? CHAIRWOMAN DUSEK: Is that acceptable, Jean? MS. RAWSON: Sure. I'm not sure whether the county meant that by proffering his testimony you want her to say what he would say, or you were agreeing that he could continue answering questions as asked. What did you mean by a proffer? MS. BELPEDIO: That she could proffer what his testimony would be. That's -- CHAIRWOMAN DUSEK: You want her to so state what it would be, rather than questioning him through each detail; is that correct? MS. BELPEDIO: Yeah. MS. RAWSON: That's generally what proffer is, that Ms. Jones would tell you what he's going to say. MS. JONES: In essence what he's going to say for the most part is every fact stated in our memorandum of law, which has already been introduced into evidence. I mean, that's in essence what it is, it's the underlying facts that support our legal argument. And if the board would like to look at -- CHAIRWOMAN DUSEK: You can continue to question your client as long as you stay focused on the violation part. That's what we're interested in, that's why we're here. Page 38 February 27, 2003 MS. BELPEDIO: And certainly, I would stipulate that Mr. Smith has been dealing in handling animals since he was a very young age, and that he's very passionate and enthusiastic about his occupation. MS. JONES: That's not the purpose that we're putting the testimony on here today. I mean, maybe the board -- I'll kind of give you a brief overview of our legal argument, and then this might help you make your decision. What we're arguing today is that Mr. Smith's operation is a bona fide agricultural operation, and is therefore exempt from the county's ordinances, whether this Case No. 2003-008 or 9 or 2003-009. So it's the same legal argument, and that's what I'm trying to get across, and the same facts that underlie those legal arguments. There are a few nuances and a few more statutes in one than another, but in essence it's the same. MR. FLEGAL: I think we'd be better served for us -- I understand what you just said, I don't have a problem with that. Maybe your questions to him to help us are of the nature since you say it's a, quote, bona fide agricultural operation and exempt, ask direct questions so that we understand why it is exempt. That he raised animals all his life doesn't prove a thing, I'm sorry, other than he can raise animals. MS. JONES: There is an issue with respect to continuing operation, and that's where-- MR. FLEGAL: Well, he's -- MS. JONES: -- the relevance comes in. MR. FLEGAL: -- been in business for a long time, I think that's a given, even from the county. Now prove to us that he's exempt by what, okay? That's what we really want to know. I think that really gets to where we need to be focused. You say you're exempt, prove it. MS. JONES: Mr. Smith, why do you feel Close-Up Creatures Page 39 February 27, 2003 and Ngala is a bona fide agricultural operation? MR. SMITH: That's real simple. Because I make a living with The state definition of-- that's in the package, I plants and animals. guess -- MR. WHITE: conclusions. MR. SMITH: Objection. He's being asked to offer legal No, she asked me why I feel that way. It's because my interpretation what I read, in addition to what I'm doing. MR. WHITE: What emotion is it that you're expressing when you talk about these feelings? CHAIRWOMAN DUSEK: We'll let them continue and then you can have your cross-examination after they finished. MR. WHITE: That was an objection. CHAIRWOMAN DUSEK: So noted. MS. JONES: Go ahead. MR. SMITH: I started to say, the definition of a farm product from the state is any benefit received from a plant or an animal. Looking at my animals, people enjoy that. The fact that we're compensated to look at our animals is a secondary benefit, so -- and I have a license from the United States Department of Agriculture which also deems it as a bona fide agricultural activity. You can own these animals, but to have them -- to display them, you have to be licensed and regulated by the U.S.D.A. So if it's non-agricultural, why do I have to go through this regulatory process of having a U.S.D.A. permit? Which is hard to get. It took 14 years. MS. JONES: Do you also have another permit from the Florida Fish & Wildlife Conservation Commission? MR. SMITH: Yes, I do. MS. JONES: And what is that permit? MR. SMITH: That is a license to exhibit and/or show wildlife. It's actually lumped together as one. And that's another -- we're actually regulated by five governmental agencies, and those are the Page 40 February 27, 2003 two main ones right there. MS. JONES: I think we can refer to the tape. I have some questions on how you developed Ngala, but I think the tape pretty much explains that. So in the interest of brevity, I'll skip that. We've heard the term agri-tourism. Why do you feel your operation, or Ngala specifically, is an agri-tourism operation? MR. SMITH: The agri-tourism, as it's defined, once again, and this is my interpretation of what I've read, but agri-tourism allows the combination of agricultural and tourism. And there's a lot of things that fall in that category. Ngala is agri-tourism quite simply, once again, because we allow people an opportunity to view indigenous and nonindigenous wildlife. Yeah, it is entertaining, but-- MR. WHITE: I apologize, I'm again going to object. He's offering legal conclusions, not testifying as to facts. CHAIRWOMAN DUSEK: So noted. MS. JONES: Go ahead. MR. SMITH: Like I was saying, the agri-tourism is a newfound venture, speaking generally, for farms and agricultural entities to basically recoup the monies that they're losing to places like Mexico and so forth, because you can buy tomatoes in Mexico for pennies on the dollar of what you can here in the United States. And this is a movement that's going nationwide. It's like the City Slickers movie is a good example of agri-tourism. The most unique form of agri-tourism is the viticulture, or the wine plants -- or farms that you go and tour now, and that's starting to catch on in Florida. In California, in Napa Valley, you can go tour these farms, you can purchase wine on the farm, there's a chef at the farm that will actually make you a meal for a price. You can -- nine times out of 10 the farm owner is in the back somewhere producing some kind of metal sculpture or stained glass sculpture you can purchase. And that product, the reason why that is a good model for Page 41 February 27, 2003 it and Florida's trying to catch onto that, and I'm trying to catch onto that as a business owner, is because that stimulates agriculture, it stimulates business, it improves the community character and it just makes good sense, because they can make a little bit more money. There's a lot of controversy, people say well agriculture, you're not agriculture, you're commercial. Well, agriculture is the second largest industry in the State of Florida. It's a $7 billion a year industry, tourism is a $50 billion industry, so it makes sense to combine them and have -- basically create a whole new industry within the two. MS. BARNETT: Can I ask a question? CHAIRWOMAN DUSEK: Let's wait until they present all of the evidence and then we'll ask questions. MS. JONES: Let's go to the code violations at issue here in the present case number. Can you tell the board what process you went through when you, you know, cleared your property to make room for these buildings, the tent, you know, the storage structure and the road? MR. SMITH: Okay, going back quite a ways, I've been through this process on several occasions, building fences over the years, building pole barns and that sort of thing where code compliance would come out and say hey, you need a permit to do this and here's this stuff, and they're like okay. And then a couple years would go by and we'd go through this again. So in this process, once again, I wanted to make sure nothing changed, and I took the statutes in hand to the permitting office, to the counter and said hey, this is what I've got, I want to build an agricultural storage building, what do I need? And they said well, are you going to add plumbing and electrical? And I said well, yeah, probably. You know, I'm definitely planning on doing that, I just don't know if I'm going to do it from day one, but for sure. And they said well, you've got to pull a permit once you have plumbing and Page 42 February 27, 2003 electrical. MR. WHITE: Objection. This -- I don't see how this is relevant to clearing. It's about permitting and that's the next case that we're hopefully going to get to prosecute sometime today, and at that time it may be appropriate to hear this testimony, but now I object on the grounds of relevance. MS. JONES: I believe it goes to the agricultural clearing permit that he was supposed to pull, as well as the vegetation permits that are both at issue right now. MR. SMITH: This is when I asked what permits I would need CHAIRWOMAN DUSEK: Let me interrupt you just a moment. Ms. Rawson, Ms. Jones has indicated that she's going to be overlapping both cases with her testimony. MS. RAWSON: Correct. CHAIRWOMAN DUSEK: So is it all right to introduce from the case 009 into 008? I mean, she did indicate she's going to be overlapping. MS. RAWSON: In the interest of saving time for this board, surely she's going to present her evidence only once, then I assume she's going to present evidence on 08 and 09 at the same time. You certainly can ask questions. MR. WHITE: Madam Chairman, I think it's fundamental that since we're only prosecuting case 008 at this point in time, that any information with respect to 009 is irrelevant, and I object on the grounds of relevancy. MS. JONES: I might have a solution. If the county would like to put on the other case now, we can save this until the end. MR. WHITE: Absolutely not. I'm sorry, I don't mean to be difficult, I understand that there may be some commonality of a defense, but in our opinion there's not a commonality of prosecution. And I believe that in the interest of keeping this as clear as possible Page 43 February 27, 2003 for this board and for any subsequent appeal by a judge, that we ought have discreet evidence in each case. If there's the same defense that wants to be made in that case, I have no objection to it being heard. I've allocated all day to this, and I don't know about your schedules, but I'm trying to get there as quick as possible. CHAIRWOMAN DUSEK: Ms. Jones, do you-- MS. JONES: I have a federal court order that I've got to comply with this afternoon, so I hope it doesn't take all day. MS. RAWSON: May I suggest this? Let her ask her questions and then save your questions that have to do with 09 until we get to 09, and then at the beginning of 09, she can call him back and say if I ask you the same questions I asked you in case 08 would your answers be the same, that takes care of that part, and then you can ask your questions and any further evidence that deals only with 09 could be introduced at that time. And that would still save us some time. CHAIRWOMAN DUSEK: All right. MS. JONES: That's acceptable to the respondent. CHAIRWOMAN DUSEK: Okay. And the objection is so noted. MR. WHITE: Thank you. MS. JONES: Mr. Smith, when you went to the county that day, did they tell you anything with respect to any types of clearing permits that were necessary? MR. SMITH: They just told me that I needed a building permit and the building permit would allow you to clear up to I think it was an acre. MS. JONES: So did you apply for the building permit? MR. SMITH: Yes, I did, even though I didn't think that I should have to, because the statute said no -- it's exempt. It didn't say anything about plumbing and electrical, but I just went ahead and got it. Page 44 February 27, 2003 MS. JONES: MR. SMITH: MS. JONES: MR. SMITH: four, five Did you obtain the building permit? Yes, I did. And how long did you have that building permit? Months. I don't know exactly, but I would say months maybe, somewhere around in that range. ring MS. JONES: a bell? MR. SMITH: MS. JONES: Would maybe August of 2000 to March of 2001 Sounds familiar. So you actually had the building permit during the time that you cleared your property? MR. SMITH: Yes, ma'am, I did. MS. JONES: We heard testimony earlier from Ms. Sulecki regarding the amount of land that was cleared. Did you prepare a calculation or an estimate of the amount of land that you cleared? MR. SMITH: The tinted portion was a melaleuca patch that I cleared, and that was approximately altogether about 14,280 square feet or somewhere around that range, under 15,000 square feet, total. MS. JONES: What about if you add the portion of your land that you cleared for the road and the parking lot? MR. SMITH: The parking lot area is approximately 10,000 square feet, and the road area, and off the top of my head is -- MS. JONES: Would it help if you saw your written dimensions? MR. SMITH: MR. SMITH: Yeah. Sorry about that. I drew little boxes myself, knowing what -- the dimensions and looking back at a survey. The parking lot area -- the roads -- now once again, the roads could have went anywhere, so the clearing on the roads was minimal, if not any at all. We used natural clearings in any way, shape that we could. But altogether, it's 24,000 square feet with the tented facility and the parking lot, and approximately about 9,000 more square feet more for roads. But like I said, to me, if there's a road, I didn't clear it. I Page 45 February 27, 2003 may have added lime rock, but I'd have to argue about what is clearing, what isn't clearing. MS. JONES: So what is 24,000 plus 9,000? My math isn't that -- 33,000 square feet, approximately? MR. SMITH: Roughly. MS. JONES: So do you know how many square feet are in an acre? MR. SMITH: I think. I did some calculation, or I got some information off the Internet. According to the University of North Carolina engineering department, it's 43,560 feet -- square feet, sorry. It's -- they go through how an acre is determined by chains in the early 18th Century and all kinds of stuff here, but it's 43,560 square MR. WHITE: The county will stipulate that an acre is 43,560 square feet. Thank you. So by your calculations, you cleared less than an MS. JONES: acre? MR. SMITH: MS. JONES: That's correct. One of the violations at issue in this particular case number has to do with clearing without an environmental impact statement. Have you since obtained an environmental impact statement? MR. SMITH: Yes, we have. Once again, even though that I felt that I didn't have to, we were trying to find an amicable solution to this. I feel under the Florida Right to Farm Act it says in there that no local agency can adopt a regulation, rule or policy or whatever to limit, prohibit a bona fide agricultural operation. But just because I do want to maintain the fact that we really try to do things right, and I believe in the environment and what we're doing, if you look, I'm sustaining 35 acres of an acre and a half, so I love trees. But we do have an EIS and it has been submitted to the county for review with the conditional use application, and I'm in the Page 46 February 27, 2003 middle of that process as well. MS. JONES: Is this the environmental impact statement? MR. SMITH: Yes, ma'am. MS. JONES: I'd like to move that the environmental impact statement dated January, 2003 be admitted into evidence. And unfortunately I don't have an additional copy. MR. WHITE: That's quite all right, we'll stipulate to its submission. We have the conditional use application, and it is indeed a component of it. The notion isn't whether he's now submitted one, the issue was whether he had one at the point in time that he cleared. CHAIRWOMAN DUSEK: This -- Jean, we accepted their defense package, so can this be included in that, or does this have to be a separate motion? MS. RAWSON: Well, it's a separate motion, but it can be included as part of the entire defense package. CHAIRWOMAN DUSEK: All right, do I hear a motion that we accept this part of their defense package? MS. SAUNDERS: So moved. MS. GODFREY: Second. CHAIRWOMAN DUSEK: All in favor? Any opposed? (No response.) MR. SMITH: Excuse me, one moment. Ki'ami, there's a couple pictures on the desk there that belong in that thing. I pulled them off the back. Sorry. That picture I think that you have on your book is it. MR. WHITE: While we're kind of at a lull here, I wanted to make an objection. I didn't want to interrupt his testimony earlier, but he had testified with respect to what he had been told by certain employees of the county, and I wanted to object on the grounds of hearsay. CHAIRWOMAN DUSEK: So noted. Page 47 February 27, 2003 MS. JONES: In response to that objection, it's a statement against interests, recognizable as an exception to the hearsay rule. MR. WHITE: And I would merely counter that for the record by saying that it's not an admission against interest, it's an admission, if you will, toward his interest. MS. RAWSON: And our rules in the state statute basically say that the Rules of Evidence are somewhat relaxed in a Code Enforcement Board hearing, and you have the power to let evidence in and then weigh its relevance and-- I mean, you're the trier of fact. Relevant evidence, I think under Chapter 162, is admissible as long as it's credible, relevant evidence. Whether it's irrelevant or not, as long as it's credible. CHAIRWOMAN DUSEK: Okay. If the board would give me just one moment. Mr. Smith, what type of vegetation did you MS. JONES: MS. JONES: remove? MR. SMITH: The majority of it, like I said, was melaleuca. When I say majority, it was a significant portion of where -- that's how we determined where we were going to put what we did. Because I had 3 5 acres and it could have went anywhere. But I wanted to be as least damaging to the property, and knowing by law that melaleuca was going to have to be removed anyway, it made sense. MS. JONES: impact statement? MR. SMITH: Do you know the purpose of an environmental From my understanding, it's to just help to protect the flora and fauna of the environment. That's my understanding. MS. JONES: Do you know if you need environmental impact statements to get things like a building permit or other sort of things from the county? MR. SMITH: No, I don't know if you need -- I'm quite Page 48 February 27, 2003 surprised that you do, because it is private property, and I thought those were my trees, even if they -- I mean, they were melaleucas, but I thought they were my trees, irregardless. So I own those trees, so I don't understand why I would need anybody's permission to clear my own trees. MS. JONES: And melaleucas you have to clear, correct, by law? MR. SMITH: That's my understanding, correct. The way I understand it, they will clear your land and send you a bill if you don't clear them on lots in Golden Gate City and so forth. MS. JONES: No further questions for Mr. Smith at this time. MR. WHITE: Cross-examination? CHAIRWOMAN DUSEK: You may. MR. WHITE: Mr. Smith, a number of times you've indicated that you'd had certain feelings, impressions or thoughts about the status of the law and its applicability to your property. I'd like to talk about those in a little more detail, if that's okay with you. MR. SMITH: Sure. MR. WHITE: I'm kind of starting maybe in reverse order of your testimony. What laws do you specifically have in mind that requires the removal of exotics? MR. SMITH: The land development code. MR. WHITE: Do you have a particular section in mind? MR. SMITH: I don't have the particular section, but she -- I'm sorry to point, but Ms. Sulecki testified earlier that -- in her opening remarks that-- MR. WHITE: So you don't have a -- MR. SMITH: -- exotics have to be removed off the property. And she's a code official, so I think that's better than having the code book here and having my interpretation of it. MR. WHITE: But you don't recall her specifically citing to Page 49 February 27, 2003 MR. SMITH: MR. WHITE: MR. SMITH: MR. WHITE: to, do you? MR. SMITH: MS. JONES: some section of the code, do you? Not off-- You don't know -- -- the top of my head, no. So you don't know what section she is referring No. Mr. White, if you'd please let Mr. Smith answer your questions, I'd appreciate it. I'm sure -- MR. WHITE: I'm sorry. MS. JONES: -- the board would as well. MR. WHITE: I'm just a little anxious, I guess. You'd also made reference to a particular statute that you contend exempted you from these regulations. Would you care to give us the cite to that particular statute? MR. SMITH: Yeah. The main one is 823.14, the Florida Right to Farm Act. MR. WHITE: And in particular, would subsection six be one of the ones that you're relying on? MR. SMITH: Subsection six I believe says that no local agency may adopt a regulation, rule or policy that limits or restricts a bona fide agricultural operation on land classified as agriculture pursuant to 193.63 or something like that. MR. WHITE: I believe the cite is 193.46, but your memory is very impressive. Do you recall whether or not you've been granted an agricultural exemption under 193.46 of the Florida Statutes? MR. SMITH: I've applied for it. It's under review, and I have verbal commitment that I will be granted by Danny, the agricultural assessor. MR. WHITE: At this time, I'd like to enter into evidence a letter we've received from the property appraiser's office that Page 50 February 27, 2003 indicates nothing more than the fact that they've not made any determination as to the classification of any application that they are still accepting. CHAIRWOMAN DUSEK: You're entering this into evidence? And is there a copy? MR. WHITE: Yes, we're going to be providing those to everybody on the board. I have the original here for Ms. Hilton. MR. SMITH: And can I see a copy of that as well? MR. WHITE: Certainly. So just to make clear, it's your testimony that at present you do not have an agricultural exemption under 193.461 of the Florida Statutes, yes or no? MR. SMITH: That's correct, I did bring the reviewed statement, the application along that he signed off on that is under review. MR. WHITE: I've asked the witness, Madam Chair, to answer yes or no. MS. JONES: I don't think the witness has to. If his answer, you know, exceeds a yes or no answer, I don't think that you can dictate whether or not he should say yes or no. It's clearly improper. MR. WHITE: Well, either he has it or he doesn't, that's my point. CHAIRWOMAN DUSEK: Let me just take a break here for the moment. MR. WHITE: Thank you. CHAIRWOMAN DUSEK: Do I hear a motion that we accept this into evidence from the county, this letter? MR. PONTE: So moved. CHAIRWOMAN DUSEK: There's been a motion by Mr. Ponte; do I hear a second? MR. LEFEBVRE: Second. CHAIRWOMAN DUSEK: By Gerald, there's a second. All those in favor, signify by saying aye. Any opposed? Page 51 February 27, 2003 (No response.) MS. RAWSON: This needs to be introduced into evidence back to the-- CHAIRWOMAN DUSEK: County's packet. MS. RAWSON: -- county's packet. CHAIRWOMAN DUSEK: Exhibit A. MR. WHITE: We have no feeling one way or the other about where it appears as part of the evidence, as long as it's part of the record. CHAIRWOMAN DUSEK: You may answer his question. Would you like to repeat the question, since it's been a little while since we heard it? MR. WHITE: The question is simply whether or not he has now or has ever had an agricultural exemption under 193.461 of the Florida Statutes for the subject property. THE WITNESS: Don't have it. It's under review. MR. WHITE: Thankyou. You'd mentioned earlier that you'd had a building permit issued. What was the ultimate stares of that building permit? MR. SMITH: I wrote to Building Director Ed Perico and asked him to kindly show me in the law where it states in the Florida statutes that once you add plumbing and electrical you need a building permit, or kindly rescind my permit. And he wrote me a letter back and rescinded my permit. And I later received a letter from Johnnie Gebhardt stating that I'm exempt under state statute, I have -- will not need a CO, I'm exempt from one, and would not receive one. It was given to my lender before they released my final draw in the structure without a CO. MR. WHITE: I would have probably objected to part of that, but be that as it may, is it fair to say that you requested that that permit be canceled and that in fact it was canceled? MR. SMITH: No, sir, that's incorrect. I requested Mr. Perico to Page 52 February 27, 2003 kindly show me in the statute where it stated that I needed it for plumbing and electrical or rescind it, because I wanted clarification. I'm not a building director or a lawyer, so I took the time to try to hopefully do it right. MR. WHITE: At this point I believe in the defense package, under tab 13, members of the board, you'll find a letter from Edward S. Perico, the director. I believe it may be that this letter is in response to Mr. Smith's testimony. And I won't take the time to read it in its entirety, but will direct you to the first paragraph. It says, in response to your letter of 3-15-01 relative to the above-referenced building permit, please be advised we have canceled this permit per your request. Mr. Smith, you'd indicated that as part of building the structure that is your base of operations, you felt that you were entitled to do that clearing based upon the law. Could you give us what law it is that you had in mind at that point in time? MS. JONES: Objection. Asked and answered. CHAIRWOMAN DUSEK: So noted. MR. WHITE: Mr. Smith, are you aware that there's only one exception in the land development code under a building permit that authorizes clearing as part of the building permit? MR. SMITH: Could you rephrase that again? I'm sorry. MR. WHITE: I asked you if you were aware of a provision in the land development code that authorized clearing under a building permit such that you were not required to have either an agricultural clearing permit or a vegetation clearing permit. MR. SMITH: I'm aware of it, yes. I can't cite it off the top of my head, but I'm aware of it. I read it. MR. WHITE: Is it possible that the particular section in question is 3.9.5.2.7? And I'll try to refresh your recollection by reading that. It says, "On a parcel of land zoned RSF, VR or estates or other non-agricultural, non-commercial zoning district in which Page 53 February 27, 2003 single-family lots have been subdivided for single-family use only, vegetation removal permit may be issued for any permitted accessory use in that zoning." I don't see anything in there that talks about being exempt from single family. MR. SMITH: That evidently isn't the one that I was referring to. MR. WHITE: Well-- MR. SMITH: Sir, are you aware that state and federal statutes supersede county ordinances? MR. WHITE: I'm not here to answer your questions, Mr. Smith, thank you very much. MS. JONES: I think I could help you, Mr. White, if you'd -- MR. WHITE: Certainly. MS. JONES: -- like me to refer you to the particular section. It's section 3.9.6.4.2. And I have a copy of it for the board members, if you'd like to take a look. It's the last one on the page. There are a lot of points numbered. MR. WHITE: I apologize, board members, and I appreciate the assistance of opposing counsel. This is the section I was meaning to refer to. MR. WHITE: And to go back to the same question about it, if you'd like a copy, here it is. MR. SMITH: Please. MR. WHITE: Certainly. There is a listing under 3.9.6.4.1 that indeed does under sub. two include melaleuca. However, the section below, 3.9.6.4.2, if you would look at the listing of zoning districts that are made, could you tell me whether anywhere in there you see agricultural zoning? MS. JONES: With all due respect, I believe this is a legal argument. I could-- MR. WHITE: I'm asking the question. MS. JONES: -- address this question to the board. Page 54 February 27, 2003 MR. WHITE: He's rendered an opinion about what he thinks the law is, and although I know he's not an expert on the law, I'm just trying to determine the degree to which he has analyzed these provisions so that I can determine how credible his testimony is, so that you all will know whether you ought listen and give great weight to what he's testifying to or not. He opened the door here, not me. CHAIRWOMAN DUSEK: I think it's hard for him to answer a legal response to some of the questions, and perhaps his counsel could help him. MR. WHITE: Madam Chair, I respectfully suggest that all I asked him to do (sic) is whether he saw agricultural in there in the list of zoning districts to which this exception applies. MS. JONES: I think that Mr. White is reading the land use code section improperly. The proper reading actually exempts out the residential single-family, residential or estates or non-agricultural. So in essence it includes agricultural, in the exception to the vegetation removal permit. I mean, and I quote, a vegetation removal permit for clearing one acre or less of land is not required for the removal of protected vegetation, other than a specimen tree on a parcel of land zoned residential, single-family, village residential or estates, or other non-agricultural, non-commercial zoning districts in which single-family lots have been subdivided. I'd submit to the board that the exception applies across the board, and that the commas separate out an exception within the exception. MR. WHITE: MS. JONES: MR. WHITE: Indeed, I agree. It may not have been drafted very well, but -- It's exactly that point. And certainly I'm going to leave it to your well-considered determination, perhaps with the advice of the board attorney on how ought you apply this provision. Our contention is that if you're -- only if you're in one of those Page 55 February 27, 2003 does this exception apply. And he, to the best of our presentation of evidence and I'm attempting to get his testimony, does not apply. CHAIRWOMAN DUSEK: Okay, we have it in front of us and we've heard from both the county and the defense, and you may continue. MR. WHITE: Thank you, Madam Chair. I learned in law school to not ask questions you don't know the answer to, but I'm going to go out on a limb here. Mr. Smith, is it possible to buy any animal products on your property? MR. SMITH: like a horse show. MR. WHITE: MR. SMITH: MR. WHITE: property -- MR. SMITH: MR. WHITE: MR. SMITH: MR. WHITE: MR. SMITH: MR. WHITE: My product is the exhibition of wildlife. It's just Is that yes or no? Yes. What products specifically can one buy on your Pleasure -- -- for animals? -- entertainment. Okay. Education. Go on and on. You had mentioned that you talked about the Right to Farm Act under 823.14 of the statutes. Are you aware that there's a definition for farm product? MR. SMITH: Yes, sir, I am. MR. WHITE: And does your understanding of that definition include pleasure or some other emotional sense resulting from experiencing animals? MR. SMITH: Could you read that definition for me? MR. WHITE: Farm product means any -- and I'll skip over the part about plants. It means any animal useful to humans and includes but is not limited to any product derived therefrom. Page 56 February 27, 2003 MR. SMITH: As I stated earlier, looking at my animals, people enjoy that, and the fact that I'm compensated to look at my animals falls under that definition as a benefit. Sorry. MR. WHITE: I won't dispute that there may be some use to humans for those animals. But my question is whether there's a product that can be purchased. MR. SMITH: The U.S.D.A. says so. That's a legal conclusion on your part, Mr. MR. WHITE: Smith, but-- MS. JONES: 10 minutes. MR. WHITE: He's been asking him legal questions for the past I'm asking him about the law, not about the application of facts to the law. What I'd asked him is whether he could buy products, and all he's told me is that you can have an experience. CHAIRWOMAN DUSEK: With all due respect, I don't believe that's part of the citing. It's agricultural permit and an EIS, so we'll stick to that. MR. WHITE: Thank you. I'm just attempting to address any potential questions that you may have while he's still available for cross. It wasn't my desire to have to do this in this case, I thought we would handle it in the next case, but-- MR. WHITE: I don't believe we have any further questions. Thank you. MS. JONES: I just have a brief rebuttal and it has to do with the agricultural classification. I believe Mr. White referred the board to agricultural exemption, and I think there's a clear distinction. It's an agricultural classification and -- under Chapter 193. And to further that -- MR. WHITE: Is she going to ask him a question? MR. FLEGAL: I don't know, why don't you let her finish her statement, we'll find out. Page 57 February 27, 2003 MR. WHITE: She wanted to ask questions on rebuttal. If she wants to make legal argument, let's get the witness down and proceed to that aspect of the case. MS. JONES: Mr. Smith, when was the first time that you became aware that your land was not classified as agricultural? The -- you're referring to the commercial MR. SMITH: whatever? MS. JONES: commercial -- MR. SMITH: Where it says it on the website, you know, About two days ago, which was a surprise to me, because I applied for the agriculture exemption on September 22nd. And I called the agricultural office, and it works like a homestead exemption, if it's not in before March 1st then, you know, it sits and waits for review, and so it's been waiting for review. Do you know if you have to apply for that every MS. JONES: year? MR. SMITH: MS. JONES: I'm not sure, to be honest with you. Were you under the impression, until that time, that you were classified as agricultural? MR. SMITH: Yes, I did send it in a year earlier, but it was the first time that I had ever sent it in, so I just thought that it takes care of it. I didn't know that you get an actual letter back from them saying that it's under review. MS. JONES: Do you know to a definite degree of certainty whether prior to that time you were classified as agricultural with the property appraiser's office? MR. SMITH: Well, I never saw a purpose to go any further, being I was doing agriculture operation on property zoned as agriculture. And I submitted the agriculture exemption, you know, I assumed that all my ducks were in a row. MS. JONES: Mr. White made reference to the letter that you received from Mr. Perico of March 19th, 2001, stating that, "In Page 58 February 27, 2003 response to your letter of 3-15, relative to the above-referenced building permit, please be advised that we have canceled this permit per your request." Did you actually request that they cancel the permit? MR. SMITH: No. Once again, I requested that he review the situation, review the statute, and cited him several statutes, the 823.14, and it was 1450 or something, building permits, it's in that package as well, to kindly show me where it states that once you add plumbing and electrical, you need it, or -- because all along they were saying if you don't have plumbing and electrical, you don't need it, if you have plumbing and electrical, you need it. And so I asked him to please clarify or rescind my permit. Does this look like the letter that you introduced? Yes. And do you remember if that was sent on March MS. JONES: MR. SMITH: MS. JONES: 15th of 2001? MR. SMITH: MS. JONES: please the board. Yes. I'd like to move this letter into evidence, if it CHAIRWOMAN DUSEK: May we have a copy? MR. WHITE: Is it part of the exhibits or not? MS. JONES: It was inadvertently left out. I move to introduce it into evidence. Sorry. I think you need to accept it before we -- CHAIRWOMAN DUSEK: I'd like to see it before we vote. Do I need to hear a motion that we accept this? MR. WHITE: If we could have a moment to review this. MS. RAWSON: Be sure that the court reporter gets all of the exhibits that have been introduced today, because they all have to be part of the record. CHAIRWOMAN DUSEK: MS. RAWSON: Yes. CHAIRWOMAN DUSEK: Jean, question. May we vote on this before we read Page 59 February 27, 2003 it, or must we read it first and then vote on it? MS. RAWSON: I think it makes more sense if you look at it. CHAIRWOMAN DUSEK: Thank you. MR. FLEGAL: If we read it and then it's in our mind and we don't put it into evidence and use any part of it in our determination MS. RAWSON: That's correct. MR. FLEGAL: -- that's really bad. MS. RAWSON: You know what I think we should probably do. This is what I think we should probably do, for both sides. If they have any more documents that they want to introduce into evidence, why don't we just put them all in now and then we'll have one whole packet for the county and one whole packet for the respondent -- and be sure the court reporter has all of that in the packet -- so that we don't need to go through this each time. And then once it's all in, because again, the Rules of Evidence are relaxed slightly, because this is a board, once they're all in, then you can look at them, hear testimony about them and determine whether or not they're relevant and weigh that evidence. CHAIRWOMAN DUSEK: Do you have any more documents that you want to -- MS. JONES: Yes, I do. And I apologize for not making them part of the original defense package. Unfortunately we didn't get the notice of violation until like a week or five days before the defense package was due, so we were, you know, struggling. MR. WHITE: I'm assuming that when she says we, she doesn't mean her MS. MR. time ago. MS client, she only means her firm. JONES: No, actually I mean the client as well. WHITE: The notices of violation were issued quite some · JONES: Mr. Smith operates out of a P.O. box. He picks it Page 60 February 27, 2003 CHAIRWOMAN DUSEK: Well, that's all right. All we want now is all of the evidence that you have, so that we can look at it -- or receive it at one time, rather than interrupting each of the testimonies. MS. RAWSON: And that way the court reporter only has to mark all of it as the respondent's exhibit and the petitioner's exhibit, one group exhibit, so she doesn't have to go through and mark each separate piece of paper as it comes in. CHAIRWOMAN DUSEK: Does the county have any more evidence that they want to introduce? MR. WHITE: Not in this case. CHAIRWOMAN DUSEK: Okay. MR. WHITE: You may have some need for information from the code investigator, but -- MR. FLEGAL: We haven't got to our questioning yet, so we're probably going to ask a lot of things. MS. JONES: There's only one additional document in this case. CHAIRWOMAN DUSEK: All right, if we could have that. Do I hear a motion from the board that we accept this evidence for the defense package? MS. BARNETT: Jean, I'll make that motion. CHAIRWOMAN DUSEK: Bobbie. MS. BARNETT: Sorry. CHAIRWOMAN DUSEK: Sheri has made a motion. And do I hear a second? MR. PONTE: I will, just a comment. I have a little problem with getting this many pages, single-spaced, to review at this time without taking a break to do so. CHAIRWOMAN DUSEK: We'll use it as reference. Hopefully they will bring it forward verbally to us and we'll use it as our reference. MR. FLEGAL: Second. Page 61 February 27, 2003 CHAIRWOMAN DUSEK: I have a motion and a second. All in favor, signify by saying aye. Any opposed? (No response.) CHAIRWOMAN DUSEK: Motion passes. MS. RAWSON: Again, be sure the court reporter has everything. Because, you know, there's two court reporters here, they really both should have every single piece of evidence. MS. JONES: Shanelle has been given all the evidence. I was under the impression that she was the evidence custodian. If I'm wrong, we can make copies of every -- dual copies and submit them to each of you. That's fine. That's no problem. CHAIRWOMAN DUSEK: Shanelle, have you received these last two pieces of evidence? MS. HILTON: No, I have not. CHAIRWOMAN DUSEK: Ms. Jones, we need to have these pieces of evidence given to Shanelle. MS. JONES: Yes. Unfortunately I ran out of copies. I didn't realize that there was one additional member that was going to be sitting here today. If I could wait until after the questioning and then give them to Ms. Hilton? CHAIRWOMAN DUSEK: Is that acceptable, Jean? MS. RAWSON: As long as the court reporters have them. CHAIRWOMAN DUSEK: By the end of the session? MS. RAWSON: Right, okay. MS. JONES: Excuse my reaching here, I've just got to take a look at my only copy of the letter which Mr. Smith has. MR. FLEGAL: Jean-- MS. JONES: Mr. Smith, can you read from the portion of the letter where you requested the relief that you just stated from the county with respect to -- MR. SMITH: This is the letter to Mr. Ed Perico. It says, "I Page 62 February 27, 2003 need you to either kindly produce the specific part of the statute that states that the permit process is required for nonresidential farm building once electrical and/or plumbing is added, or a letter from your office stating that a permit/CO is not required." MS. JONES: Mr. Smith, I'm handing you what's -- the top of the page states that it's a fact sheet, date September 26th, 2002. Have you ever seen this document before? MR. SMITH: Yes, I have. MS. JONES: In what context? MR. SMITH: It was given to me by Vince Cautero with Coastal Engineering when we were -- pursuant to the conditional use permit. MS. JONES: Do you know who prepared this document? MR. SMITH: It's my understanding it was prepared by county staff to I guess be some kind of record as to what has transpired, leading up to that date. MS. JONES: On Page 3, the fourth full paragraph down, can you read the county's representation with respect to what Mr. Perico felt with respect to the permitting? MR. SMITH: It says, "Mr. Smith subsequently argued and Mr. Perico, Director, building and plan review department, agreed that the subject shed was an agricultural storage building and as such did not require a permit." MS. JONES: I'm showing you now under tab 13 of the defense package, the second page, a memorandum of March 21st, 2001 from Johnnie Gebhardt, customer service manager at the building review and permitting department to Margaret Thomas. Can you go ahead and read the second sentence in the second paragraph for the board. MR. SMITH: Under state statute, a permit -- MR. WHITE: Excuse me, what page are we on? MS. JONES: Second page of tab 13 in the defense package, which is the March 21st memorandum from Johnnie Gebhardt, with the building review and building department to Margaret Thomas. Page 63 February 27, 2003 MR. SMITH: Which states under state statute, a permit is not needed for this type of building. MS. JONES: Can you also read the last sentence of that same memorandum, please? MR. SMITH: He will not need, nor will he receive a certificate of occupancy for his building. MS. JONES: Thank you, Mr. Smith. Were those in essence the representations made to you by the county with respect to all your permitting issues? MR. SMITH: Yes. MS. JONES: Mr. White asked you why you thought you produced a farm product, and you stated, I believe, that, you know, entertainment and educational purposes. Do you also house these animals? MR. SMITH: Yes. MS. JONES: Do you also train the animals? MR. SMITH: Yes. MS. JONES: Do you also kennel the animals? MR. SMITH: My own, yes. MS. JONES: Do you sometimes breed the animals? MR. SMITH: We don't breed animals. I mean, generally -- peacocks and things like that breed, but our animals are nongenetically diversified, meaning that they're not pure subspecies, and that's why we have them and that's why they're not in a zoo or in the wild. So in-- MS. JONES: Would you consider, with the exception of breeding then, training, kenneling, boarding the animals also a farm product? MR. SMITH: Yes. MS. JONES: Thank you. No further questions. MR. WHITE: Is there a rebuttal? CHAIRWOMAN DUSEK: Go ahead. Page 64 February 27, 2003 MR. WHITE: There was a lot of new information brought in, as well as new evidence, Madam Chair. CHAIRWOMAN DUSEK: Go ahead. MR. WHITE: Certainly I'm hoping you'll take the time before you reach your eventual deliberations to look through the entirety of the documents that just portions of were read from Mr. Smith. I'm going to try to get him to read other portions that I think might lead to a different conclusion on your part with respect to his permitting aspect, but certainly I think that's the next case, not this one. MR. WHITE: Again, in reverse order, Mr. Smith, tab 13 of the defense package, second page, the March 21st, 2001 memorandum from Johnnie Gebhardt to Margaret Thomas, second paragraph, in this instance the third sentence. Could you read that for us, please? MR. SMITH: I don't have a copy, I'm sorry. MR. WHITE: Starting with "however". MR. SMITH: It says, "However, we had been advised some years before that in order for FPL to hook up power to one of these types of buildings, they required an inspection by our departments which necessitated a building permit. Same thing for a septic permit from environmental health." MS. JONES: Is there a question, Mr. White? MR. WHITE: I don't recall the question you'd asked him when you asked him to read that into the record either. CHAIRWOMAN DUSEK: Do you have any further questions, Mr. White? MR. WHITE: Yes, I'm asking him if he could read something, that's all. CHAIRWOMAN DUSEK: I think we can -- MR. WHITE: Well, I'd go ahead and read it myself for the record, but there might be an objection that I'm testifying. MR. FLEGAL: Ms. Chairman, that page is in evidence. You know, I don't think we need to read each page in all this stuff. That's Page 65 February 27, 2003 MS. JONES: closing argument. questions. immaterial. CHAIRWOMAN DUSEK: If you have some questions -- MR. WHITE: I don't want to risk the ire of the board. I'm merely trying to point out that there are other statements in those documents that are susceptible to an entirely different conclusion. CHAIRWOMAN DUSEK: I -- MR. WHITE: No further questions. Thank you. CHAIRWOMAN DUSEK: All right, the county and the defense, may we as the board now start to ask questions? Have you finished? If you're prepared, yes. With the exception of a I don't know if that comes after or before the MR. FLEGAL: We get to question everybody. MS. JONES: Okay. CHAIRWOMAN DUSEK: All right, now we open it up -- all right, how are you all feeling, Cherie'? Do you need a break, court reporters? Let's take a five-minute break. (Recess.) CHAIRWOMAN DUSEK: I'd like to bring the Code Enforcement Board to order. MS. JONES: Would you want Mr. Smith to sit down? MR. FLEGAL: Well, we're going to ask him questions. CHAIRWOMAN DUSEK: He can go to either podium. If this one is more important, can you go right there. CHAIRWOMAN DUSEK: Are the microphones on? All right. Now, Mr. Smith, we will begin as a board to ask you questions, according to the testimony. One that I have to start with, I understand that you cleared melaleuca. And did you have an exotic permit, clearing permit to do that? MR. SMITH: No, ma'am. No, ma'am. CHAIRWOMAN DUSEK: And I understand that your EIS that Page 66 February 27, 2003 you had been asked to get, you just recently applied for that? MR. SMITH: Yes, ma'am. CHAIRWOMAN DUSEK: You have a license to exhibit wildlife? MR. SMITH: Yes. CHAIRWOMAN DUSEK: Okay. Now, does the board have any questions? MR. FLEGAL: Oh, yes. MR. PONTE: I've got one. CHAIRWOMAN DUSEK: I think there are probably going to be a few. MR. PONTE: from the county? MR. SMITH: I have -- once again, under protest, I applied and obtained-- I forget-- the official terminology is a pet shop permit, but basically they told me that any business that has animals, houses animals, displays animals, whatever, has to get this permit given by the Collier County Animal Control. And I was quite taken by that, because I -- not in addition to this, but it seems to me that they share in the liability in case something happened with these animals. But it's just me. But I do have it, in answer to your question. MR. PONTE: The only county permit you have is a pet shop permit? MR. SMITH: MR. PONTE: MR. SMITH: I have one, Mr. Smith. Do you have any permits For the parcel of land in question or in general? The county -- the parcel of land in question. Yes, sir, that's correct. I have a county health department permit for a drain field, but I believe technically that's a state permit. And I have a county once again health department permit for drinking water program and a South Florida Water Management permit for well, well water. I do have a county well permit for the property, and so the -- in answer to your question. I Page 67 February 27, 2003 forgot about that one. MR. PONTE: Thank you. CHAIRWOMAN DUSEK: MR. FLEGAL: Yes. CHAIRWOMAN DUSEK: Saunders. Any other board members? All right, we'll start with Ms. MS. SAUNDERS: Mine is a very quick one, I think. On the agricultural exemption, is this similar to the homestead exemption, as far as you know? Is it an option that you have whether you apply for an agricultural exemption, or not? MR. SMITH: I believe so. But what was explained to me is you have to be engaged in an agriculture activity before you can even apply for it. And just the sake of having animals isn't enough to get it, you have to have some type of business or revenue derived from that, so it's a chicken and egg story. MS. SAUNDERS: But you're not required to apply. If you choose not to get the tax benefit, that's your option. MR. SMITH: I believe so. I believe so, but I'm not sure. CHAIRWOMAN DUSEK: All right. Next, coming down the line, Sheri, do you have any? MS. BARNETT: I have a question as to whether there are any stipulations in the agricultural exemptions to size of property. MR. SMITH: Once again, from what I read, on the county level there was something that said in there about a 25-acre minimum, which we certainly have more than 25 acres, contiguous acres. But once again, in my opinion that ordinance is unconstitutional or illegal, based on the Florida Right to Farm Act, because it's limiting, restricting, all that, of a bona fide agricultural operation. MS. BARNETT: And I'm having a little bit of a problem with what you're deeming a product. MR. SMITH: The exhibition of wildlife. MS. BARNETT: I understand the exhibition of wildlife. Your Page 68 February 27, 2003 attorney brought out some other things such as boarding and that. MR. SMITH: That's correct. MS. BARNETT: Normally when I consider boarding and thinking about it, because I have some knowledge of that, you usually have outsiders that are bringing animals in to board and you receive a fee for that. So that's what I term boarding. Keeping my own animals in a shelter is not boarding, as I understand it. MR. SMITH: Right. Well, I guess -- MS. BARNETT: I think it's just an interpretation. Please tell me if I'm wrong. MR. SMITH: Boarding to me -- and, you know, once again, this is interpretation. Boarding to me is another word for housing, just for like coach and bus. MS. BARNETT: But do you board your child or do you house your child? MR. SMITH: I mean, in theory I guess you could. I mean, like I said, and I'm not arguing with you or anything, but I'm just saying there are times that we do house other people's animals at our property. Chimpanzees, for example. Chimpanzees will wear you out, absolutely. They're like a 70-year-old two-year-old. MS. BARNETT: Do you charge a fee for that? MR. SMITH: We can. I mean, we have, but not on a regular basis. No. I mean, more or less the fee would be to just help compensate the additional staff and that kind of thing. So a fee could be charged, but I wouldn't say -- MS. BARNETT: It's not your regular practice. MR. SMITH: Right, it's not the primary activity. The primary activity is the raising, training, stabling, kenneling -- I'm sorry, raising, training, exhibition, that kind of things. Boarding would just be a secondary use. MS. BARNETT: So your actual product is the entertainment by-product of-- Page 69 February 27, 2003 MR. SMITH: Yeah, you can -- I guess you can call it a by-product. But in my -- I just don't see the difference between what we're doing and what race tracks are doing, for instance. Obviously horse tracks, dog tracks and all that have been making money off the exhibition of animals for years, although I don't agree with that. MS. BARNETT: Do they get the agricultural -- MR. SMITH: I don't know. Just because like Mrs. Saunders here said, just because they don't have it doesn't mean that they're not entitled to it. It -- you know, he just may not have ever applied for it. I don't know. CHAIRWOMAN DUSEK: Okay. Cliff?. MR. FLEGAL: Okay. What I read in the submission of your documentation is everything seems to be geared toward this exemption under the Florida Right to Farm Act. Is that a correct statement? MR. SMITH: Under the exemption of the Florida Right to Farm Act? MR. FLEGAL: Yeah. You fall under that, so you're exempt from everything; is that what you're telling us? MR. SMITH: Pretty much. But there -- I'm not exempt from everything. Once again, I said I do have a state health department drain field, water permit, FPO, which you mentioned earlier. So they reviewed all this stuff and agreed with me as well. So it's not just, you know, I mean, there's a number of factors, but it's -- the exemption itself doesn't grant me that, it's the activity that I'm doing in association with the exemption that grants me, in my opinion. MR. FLEGAL: And you say you have all these licenses. Do you have any -- let's call it a license, a certificate or a mandate or anything like that from the Department of Environmental Protection? MR. SMITH: I'm not-- from what I understand, I'm not required to have it. MR. FLEGAL: Do you have anything from the Florida Page 70 February 27, 2003 MR. MR. submitted Department of Agriculture and Consumer Affairs? MR. SMITH: Florida Department of Agriculture and Consumer Affairs, I don't have -- I don't have an actual certificate or license from them because it's handled -- the constitution vests the power of authority of indigenous and nonindigenous wildlife to the Florida Freshwater Fish Conservation Commission -- or whatever, they changed their name recently; I keep messing it up after 14 years of calling them something else. MR. FLEGAL: Okay. And you stated and you sent us a copy of a lot of permits, and I think one of them was from this Florida -- Florida Fish & Wildlife Conservation Commission. Is that who you're talking about? MR. SMITH: Yes, sir. And I believe the one you're referring to is the license to exhibit and possess and sell, or something to that regard. MR. FLEGAL: You have a license to sell and exhibit? MR. SMITH: Yes, sir. MR. FLEGAL: Nice permit, except it expired back in October of 2002. MR. SMITH: Oh, I've got another one. Yeah, it's -- MR. FLEGAL: Your exhibit is expired. So I can only go by what I'm going by right here. MR. SMITH: It expired in 2002, you said? FLEGAL: Yeah, 10-6-2002. Yeah, that -- that was the initial package that we SMITH: to them. JONES: MS. We can submit the updated one, you know, later on today, if the board so requires, if Mr. Smith's testimony that he has isn't good enough. MR. FLEGAL: If he says he has it, I'll take his word. Now, this Right to Farm Act talks about agricultural production. And you state because you have animals useful to humans. I'm Page 71 February 27, 2003 having a real problem with that in what you do on your property. Because a farm talks about production. And if I continue in the Florida statutes to find out what production is, a producer, Florida Statute 573.103 says the producer means any person engaged within this state in a proprietary capacity in the business of producing or causing to be produced, agricultural commodities for market. Having wild animals on your property, I'm having a real hard time with relating that to an agricultural commodity. MR. SMITH: Sir, if you read the first paragraph, that 823.14, it states in there that the legislature finds that the agriculture is a viable sector -- or something, I'm paraphrasing -- but to the community. And it specifically states promotes tourism. And they weren't talking about tomato farms, I don't think, when they were talking about promoting tourism. I fall asleep on 1-75 every time I drive up it, looking at cows. MR. FLEGAL: Okay, everybody's allowed an opinion. MR. SMITH: I'm not trying to be smart. I'm just -- it specifically references tourism. MR. FLEGAL: Now, as I further look in the Florida Right to Farm Act, I asked you a couple of questions in the beginning when we started about environmental protection. Department of Environmental Protection and Department of Agriculture and Consumer Affairs. You stated you didn't have anything from them. The exemption only applies if you're regulated through those people. MR. SMITH: I didn't say that I'm not regulated, I said I don't have a license from them. MR. FLEGAL: Well, you must-- are you-- MR. SMITH: They do show up on the door from time to time, and recently there was an outbreak of a certain deer virus that is damaging, potentially damaging to native deer. And they do show up on the door, just like the CDC. I'm regulated by the CDC, the Center Page 72 February 27, 2003 for Disease Control, but I do not have a permit from them. MR. FLEGAL: But both of these departments or one of them, these exact departments. MR. SMITH: Both of them, yes, sir. The same thing with the Department of Environmental Protection. I can't, per se -- I have two Florida panthers. I can't just release those in the wild because I want to free Willie or release them. You know, that'd be nice, but I can't do it because they have -- they would strongly frown upon that, because obviously if those animals were loose or even intentially or unintentially, that could be potentially damaging to the native habitat and person. So once again, I'm regulated, but I don't have a permit from them and I'm not required to have a permit from them. MR. FLEGAL: You are regulated. MR. SMITH: Yes, sir. MR. FLEGAL: Now, your other exhibit under tab four, where you've talked to us about this tourism, which is, according to the University of Florida, it's not tourism, it's not agricultural, it's agri-tourism. And as I -- my problem is, as I read the statutes, that word is not used anywhere, agri-tourism. MR. SMITH: Right. That is correct. The -- I believe that the definition of a farm product being any benefit received from a plant or an animal is written generally as a catchall. Now, if there is a document in there that's got to be close to the one you're referring to from the U.S.D.A. that gives a longer definition of agri-tourism, alternative farming, as to what it is and what it entails, and then it cites specific examples of what agri-tourism and agriculture is, and contained within those examples is repelling, rock climbing, country wedding, catered function, company picnic, all the things that we're doing. MS. JONES: It's located at tab three, for the board. MR. FLEGAL: I understand that. My problem there is the Page 73 February 27, 2003 Department of Agriculture isn't the legislature in Tallahassee and they didn't write these statutes, so what they think doesn't help me unless Tallahassee agrees with it. Now, I also see in your exhibits lots of opinions from the Attorney General, but I don't see any opinions on this. I see -- MR. SMITH: Well, not yet, anyway. MR. FLEGAL: -- opinions on other things. MR. SMITH: I mean, hopefully it won't have to come to that, but it might. MR. FLEGAL: Well, I guess that's my problem, you're talking about you're in agricultural, and evidence you gave me is on everything but how you and your operation relate to agricultural. That's where I'm having my problem, okay? That's why I'm trying to ask specific questions. MR. SMITH: Okay. I guess in my defense, I haven't seen anything that stated that I'm not doing agriculture. So I have plenty of information that can argue that I am. I just, I haven't -- once again, I mean, as a business owner and -- you know, I've got better things to do than being here so, you know, I tried to do the best I could in researching this stuff, and I haven't seen anything that says that I'm not. And there's also other examples contained within the state that -- like Babcock Wilderness Ranch, for instance, does tours. And those were examples that, you know, I could say yeah, well, I can see where we can draw the same conclusions that we're doing. Same thing with Caribbean Gardens local. Their park is agriculturally zoned and where you walk around and look at animals. From my understanding, the parking lot, gift store and admissions gate are zoned commercial, the rest is zoned agriculture. No money changes hands at my facility, I don't have admissions gate, so I don't understand the difference. And they've been there since 1956 or whatever, so I assume that they've been doing it right all these years. And, you know, just trying to educate myself and do it right is all I Page 74 February 27, 2003 can say, you know. MR. FLEGAL: I understand that. What I'm trying to understand, as I read all this stuff, is I'm not going to make the assumption that Florida statutes, when it uses the words agriculture means agriculturally zoned. They don't use the word zoned. And I think they know what that means, but they don't use it. At least I haven't found it in any of the items you sent me or that I looked up correspondingly in the statutes to try to get a better handle to what agriculture is. And a definition given to agriculture in the statutes under 570.02 -- again, I'm having a hard time getting the exhibit of animals to fit into production, okay? That's my big problem. MR. SMITH: Well, I can sympathize with your problem. There's a lot of things that are agriculture that we don't understand because we're not -- THE COURT REPORTER: Please slow down. MR. SMITH: Sorry, slow down. -- we're not subjected to it. For instance, petroleum production. Who would think that the harvest of oil out of the ground is agriculture, but in Texas it's the largest agricultural industry there is. And our President and Governor both engage in that activity. But down here they think you're nuts if you said oil was agriculture. MR. FLEGAL: Okay, but I guess there I can at least relate to you take oil out of the ground, you've got a product. Your product is, what you're telling me, is you set an animal on your property and people pay you to come look at it. MR. SMITH: Yes, you could argue that a nature conservancy like the one in town or the -- a botanical gardens like Fairchild Gardens, para-jungle, for instance, there's a number of examples where people go and look at animals and, you know, that is considered agricultural. I mean, Conservancy -- MR. FLEGAL: Okay, I guess you're making some statements, but I don't see anything that you've given me in writing. You say Page 75 February 27, 2003 these things are agriculture. I see no exhibits that says company A that does this, which is the same thing you do is agriculture, and here's proof that it is. MR. SMITH: I guess-- MR. FLEGAL: Company B -- MR. SMITH: -- that's why we're here, because that's the joy of pioneering something. Unfortunately, like I said, all I can tell you is that the U.S.D.A. sees that the governing agency, the agency of agriculture for the United States states that what I'm doing is agriculture. And we have numbers example -- examples of that. Agri-tourism and alternative farming is a pioneering emerging field. There are people in other parts of the states that are having problems with it, as far as wineries and stuff like that, because local governments don't understand it. But the -- it's going to take people like me who are willing to stand up for the people who can't stand up for themselves to get something changed about it. And there's nothing wrong with it. It's a good industry. I guess I could answer your question with a question and that is if agricultural zoning isn't the proper zoning for me, what zoning do my animals belong on? They don't belong on a golf course, they don't belong in an industrial park and they certainly don't belong in a residential neighborhood. So the only zoning that makes sense is agricultural. MR. FLEGAL: That's a question I can't help you with. You're asking the wrong person. What I'm trying to get a handle on, give you the fairest shake I can is -- MR. SMITH: I appreciate that. MR. FLEGAL: -- you know, everything is geared toward this word agriculture. And whether I personally feel that what you do is the right thing, it's not why I'm on this board, to give my personal feeling. It's you submit something, I read it, I get the law and read it, you give me testimony, everybody asks questions, and we ferret it Page 76 February 27, 2003 out. Whether I like my end result or not is immaterial too. MR. SMITH: I understand. MR. FLEGAL: Sometimes I don't. But that's the way it is. I try to make the best judgment. And agriculture to me, I just -- again, Florida Statutes 570.02, agriculture means the science and art of production of plants and animals useful to humans. And it goes on about including the variable extent and preparation of these products for human use and their disposal by marketing or otherwise, and includes aqua-culture, horticulture, floriculture, verticulture, forestry, dairy, livestock, poultry, bees, and any and all forms of foreign products and foreign production. MR. SMITH: Well that's right there, the farm products, the only definition I could find of farm products were farm production in relation to that statute. The only one I could find is contained within that 823.14 -- THE COURT REPORTER: Please slow down. MR. SMITH: -- and that is any benefit received from a plant or an animal. CHAIRWOMAN DUSEK: Let me interrupt just a moment. I have a question for the county which may help clear up our direction. You've cited them for not having an agricultural permit or an EIS. Do you need to have an agricultural permit and an EIS for agriculturally zoned property or agriculturally (sic) use property? Because we're getting those two crossed. If it's for agriculturally zoned, that's a different issue. If it's for agricultural use, then that's a different issue. MR. WHITE: Unfortunately I think the answer is both. But the way that it breaks down is this: That if you have agriculturally zoned land and you intend to use it for a bona fide agricultural use, then you are required to obtain an agricultural clearing permit. If, on the other hand, you're agriculturally zoned and you intend Page 77 February 27, 2003 to clear for a non bona fide agricultural purpose, then you're required to have a vegetation removal permit. And that's why both of those are cited. And in each instance, you're required to have an EIS in order to assure that there isn't an inappropriate level of clearing. That's why you have those particular provisions in there. CHAIRWOMAN DUSEK: So there's a difference in the agricultural permit and a vegetation permit? MR. WHITE: Yes, ma'am. CHAIRWOMAN DUSEK: And it all depends on use. MR. WHITE: Yes. And the county is willing to concede, based entirely on the application that's been made to the property appraiser's office, that there is an intention on the part of Mr. Smith and Close-Up Creatures, Incorporated to at some point in time to become a bona fide agricultural use, as determined-- as classified by the property appraiser's office. The whole notion of the relevance of 193 -- more commonly called exemption for agricultural, but it's actually a classification for agricultural use -- is the idea that it's been asked for, determined, and there's an entitlement to exemption. The statute for the Right to Farm Act hinges upon that. And so we're not acknowledging that that's an adequate defense. We believe either/or both of those types of permits are necessary, and it may not be until such time as the property appraiser makes a determination one way or the other that we'll be able to tell you the specific acreages that each of the two permits are required for, but that's something that gets handled when the permits are applied for, not at this point in time. There's a violation, in our opinion, of both. MR. SMITH: Well, I don't know if I can say something or not. CHAIRWOMAN DUSEK: Just let me make a comment -- MR. SMITH: Sorry. CHAIRWOMAN DUSEK: -- because this is a complicated case, and this is a lot of material for all of us to digest. I think we've all agreed and facts have been shown that it is Page 78 February 27, 2003 agriculturally zoned. Now, I think the question for all of us is -- and if I understand you correctly, Mr. White, the intent for the future may be agricultural use, but right now we can't definitely say that it's agricultural use. MR. WHITE: I think to the extent that the Right to Farm Act applies, as Mr. Smith couches it as an exemption, he's exempt from the county's regulations because of the Right to Farm Act. And the provision in there that we think applies is the one that requires him to have the agricultural classification or exemption, which he's testified he does not have nor has he ever had. So as a result, we don't believe that is a viable defense. And as a result, he needs to ask that those places where he intends and has applied for as ag. exemption, that area there, he needs to apply for the agricultural clearing permit. The balance of his site that is not going to be for a bona fide agricultural purpose that he's attempting to perform, then the vegetation removal permit applies to that. CHAIRWOMAN DUSEK: All right. Now, just -- I want to say what you said in a very few words and very simple -- MR. WHITE: You better -- CHAIRWOMAN DUSEK: -- for myself and everyone else. The Right to Farm Act requires that you use it agriculturally; is that correct? MR. WHITE: As determined by the property appraiser, amongst one of many conditions. CHAIRWOMAN DUSEK: By the local property appraiser. So the Right to Farm Act, the local property appraiser has the right to say whether that property is being used agriculturally? MR. WHITE: Yes, ma'am. MS. JONES: That's not true. Section 823.14 doesn't reference 193, which is the property appraiser's office. That is the building code, the Florida Building Code, which Mr. White is referring to -- MR. WHITE: I beg to differ. Page 79 February 27, 2003 MS. JONES: -- which is 604.5. MR. WHITE: And I'll direct you to tab six of the defense package which is the setting for -- MS. JONES: Oh, I apologize, I see that. I'm sorry. MR. WHITE: It's in subsection six, where it cross-references the 193.461, which is the statute for agricultural classification. MS. JONES: I apologize. You're right. MR. SMITH: I'd like to remind the board, though, you can't get an agricultural exemption without being engaged in an agricultural activity. Because people that have just horses in their backyard try to get it all the time and they're denied. CHAIRWOMAN DUSEK: Okay. So can we say that you have this agricultural use because you have been granted this Right to Farm Act? You have come under that; is that what you're saying? MR. SMITH: I'm saying in my opinion I come under that, because I'm licensed by the U.S.D.A., I display wildlife and so on and so forth. And statutorily I meet the definition of a farm product. But the problem that I have with this clearing ordinance is that for a minute let's just look at the information that you have in front of you, and let's say that I raise cows, and you can blatantly say okay, I understand that is agricultural. Then this ordinance clearly is in violation of this 823.14. So to argue that I'm violating an illegal ordinances (sic) I think is wrong. And above and beyond that, the vegetation removal permit, the way it's written, would require you to get one of those whenever you want to pull weeds at the definition, it says something about removing vegetation by its root. I mean, can you imagine if everybody started going -- if they started giving people violations for not having a vegetation removal permit when you want to pull weeds out of your yard? It's absurd. And we don't need more government here, we need to stick with what we have. And clearly I've mapped out what we have and I've Page 80 February 27, 2003 tried to stick by it, and I've drawn the straight and narrow and stuck with that path since I began, even though we tried to find an amicable solution. So, you know, I've never veered from my feeling or protest or any of that regard, I'm just trying to make it all work. CHAIRWOMAN DUSEK: Okay, let me go back to Mr. White. Now, the property appraiser has said, or written somewhere, that the intent of this property is for agricultural use, is that -- MR. WHITE: No, ma'am. CHAIRWOMAN DUSEK: No. MR. WHITE: I provided you with a letter dated today to Ms. Belpedio of our office from the property appraiser's office that indicates that they have not yet made a determination. And in fact, they -- CHAIRWOMAN DUSEK: So if they haven't made a determination, where is this property, just the use of it? MR. WHITE: I believe, although there was no testimony about this, I believe if you were to ask Mr. Smith, he might tell you that he had been requested to provide them additional information and has not yet done so. Hopefully he'll do so by March 1 st so that he'll be entitled to that exemption for this year-- CHAIRWOMAN DUSEK: I guess where I'm having a problem is-- MR. WHITE: -- but it hasn't been granted. CHAIRWOMAN DUSEK: -- that the use comes into play with a decision on which kind of permit he should have, whether it be vegetation or agricultural. MR. WHITE: It does to some extent in defining the precise area when the actual permits are applied for as to how to approve those permits. And we will rely on, assuming there's some determination made in the near future by the property appraiser, of a portion of this site that may be susceptible to agricultural classification. And when that happens, that's the portion to which we will say you must obtain Page 81 February 27, 2003 an agricultural permit. CHAIRWOMAN DUSEK: Well, I'm working with today -- MR. WHITE: I understand that. CHAIRWOMAN DUSEK: -- not what -- MR. WHITE: But the notion -- CHAIRWOMAN DUSEK: -- they're thinking in the future. MR. WHITE: The notion isn't so much one of to which lands does it apply. That's part of the abatement of the violation. The idea here today is is there a violation or not. MR. SMITH: Well, my problem is I'm trying to comply with both this county, federal and state. As I indicated earlier, I want to move on. And Mr. White, one minute he's saying I'm commercial and I've got to do it this way, and earlier he was telling me that I didn't fall under such and such ordinance because I'm agricultural. And I'm just like hey, you know, let's come to a conclusion of what we are so we can get on with our lives. And this is affecting my business and my family, and it's a lot of stress that's unnecessary. I mean, all we're trying to do is provide an opportunity that's good for the community and spend time together as a family and live the American dream, and for some reason I feel like I'm being punished for that. MR. WHITE: If I may, since July of last year, we've been trying to resolve this thing without having to compel the property owner to take what we believe are the necessary steps to lawfully meet our requirement. That's why we're here today. Certainly we would have preferred not to spend the time and energy. But be that as it may, we're here today. MR. SMITH: And we did submit our conditional use application. We asked for continuances. I was given initially six weeks to get an EIS done. And quite frankly, WCI Communities would have a hard time doing that, because it takes four weeks. And I never -- didn't even know what an environmental impact study was Page 82 February 27, 2003 whenever I had to request and try to find a firm that would handle it. And, you know, I'm one guy. They look at me and go oh, we've got developers that, you know, they're going to give us 300 jobs, opposed to your one. And luckily I was sent to Forest Company, Earth Balance -- whatever they call themselves now, they changed their name, too -- was able to step up to the plate and get it done for me in the most expedited manner possible. But the study itself, the woodpecker part, takes four weeks alone. CHAIRWOMAN DUSEK: All right. Cliff, do you still have more questions? MR. FLEGAL: Yeah. If I can get back to it. Okay, agriculture. You still haven't convinced me, and the statutes aren't tugging real hard. Because 193.461 is very specific. MR. SMITH: If you're looking for an exact thing that you could understand, I do have free-ranging peacocks on my land. They do breed and I do show the babies, and people enjoy looking at them too. So if you want to split hairs, I can give you a bona fide agriculture activity that I'm sure you'll -- I also breed goats. But theoretically, as a respected animal owner, exotic animal owner, I strongly believe that giraffes and zebras and those types of animals belong in the wild. And unfortunately mine can't be returned to the wild, so I do spay and neuter them so I don't perpetuate more of them in captivity. Because, you know -- and that's my problem with zoos. Zoos breed these animals with the intentions of releasing them some day, but it's never happened. They actually have them implanted with Norplant and stuff like that, because in the world people sue, especially in the United States, over hot coffee and that kind of thing, and nobody wants to authorize a release of those animals. So unfortunately it's a good project, but it never went anywhere. The work that I do has gotten me inducted into the National Page 83 February 27, 2003 Explorer's Club, and the only reason why that has relevance is I share that distinction with people like Jane Goodall and Neil Armstrong and so on, and it's for people that provide significant contribution to wildlife and wildlife studies. And, you know, once again, you know, I know that probably doesn't help you or hurt you and it's all great and everything, but I'm just trying to tell you that, you know, I'm just more than a guy with a bunch of animals out here. There's a lot of things going on. Unfortunately people see the commercial looking aspect and they draw a lot of conclusions. But that's only what feeds us. We're doing a lot of things that are a lot more relevant to agriculture and the community and that kind of thing. MS. JONES: Board Member Flegal? If I may, I might have a response to your question, or your problem. It seems to me that you have a problem with interpreting the statute or interpreting the term farm product to what Mr. Smith is doing. One of your comments, I believe, had to do with, you know, how is entertainment a product. Well, I think if you went down to the Naples Philharmonic, they would tell you that entertainment is clearly a product. You know, any sort of-- any play, any performance, movies are products. I mean, that's -- entertainment is a product. And maybe that, you know, that might help you. And it's derived from an animal. And that's what the statute says, and that's what I believe that -- our position is definitely that today. MR. SMITH: Furthermore, in that package, there's a case where an agriculture -- a property wasn't deemed agriculture, assessed agricultural because it was a race track with swimming pools and some other things. And that can -- I'm sure Ka'imi can reference you to all the legal part of it, but it went to I think the Second District Court of Appeals, it was deemed to be agriculture. So once again, there's another use that, you know, on face value, you say a swimming pool, how is that agricultural? Page 84 February 27, 2003 MR. FLEGAL: I understand that. MR. WHITE: Under the agricultural classification, Mr. Smith can feel free to sue him, too. I mean, that's great for that. MR. SMITH: You know, and my response to that is all I can do is apply. I mean, I can't twist the property appraiser's arms to get it done faster. And obviously I want it done quick, too, but-- MR. FLEGAL: I understand everything you're saying. My only -- I'll classify it as my legitimate problem is, I'm only concerned with Collier County ordinances, the statutes in the State of Florida. And I really only have control over Collier County ordinances, because that's what we're here to do, okay? But it all bases -- your defense is all based on, it seems to be, agricultural. So that brings in the statutes, which you've introduced. And when I read them, they are in plain English, there's nothing fancy about them. I'm having, I guess -- and I understand your attorney's opinion, production of a play and all that kind of stuff. Is production of animals useful to humans? And as it relates to you not getting these items that are required, I understand you may be in the process of doing that, and that's great. But the problem is, even if you had them today, the violation existed and we could make that determination. That you solved the problem today -- MR. SMITH: Well, the point is -- MR. FLEGAL: -- doesn't matter. MR. SMITH: -- it was impossible to get the agriculture exemption or classification without being engaged in agriculture. So I don't know, how am I supposed to get something that, you know, I've got to be engaged in to get it? I don't understand how I can be expected to get something that they won't even give you without being engaged in it. MR. FLEGAL: I can't help you there. I'm just telling you where I'm coming from so that you understand -- MR. SMITH: I understand. Page 85 February 27, 2003 MR. FLEGAL: -- it. These questions are trying to narrow you down to my way of thinking of are you or are you not exempt, okay? That's -- MR. SMITH: I can tell you this: There's 21 permit holders in Collier County with exotic wildlife. And I don't want to throw anybody under the bus, but I'm one of only two entities that are on agricultural property out of those 21. So the decisions that you make now may have a lot of workload and a lot of credence on the future, because like I said, I don't want to throw anybody under the bus, but I tried to make an educated decision based on what I read. And my personal belief is animals belong on the most possible land that you can have for them, and obviously agricultures rule in nature, and it just makes the most sense. Most of those permit holders are in residential lots or in Golden Gate Estates' lots. MR. FLEGAL: Okay, we're -- I'm not disputing that. What I'm trying to do is get myself to understand the exemption, which you don't have yet but you've asked for, which is fine. I don't have a problem with that part of it. It's prior to you getting it, are you or are you not guilty of violating an ordinance. It's a real simple question. And to answer it, based on your defense, is this word agriculture. And if I try to read and understand what seem to be real easy words, I'm having difficulty in this production. And I accept your explanation. Whether it be good enough, I don't know yet, but -- because we're not done. Just so you understand, I don't have a problem with your facility, don't have a problem with what you do. Never been there, it's probably a great thing, but I have to rely on this. What I -- warm and fuzzy feelings I'm not here to give out. I'm here to make a decision based on written words and the law. That's what I'm trying to do. MR. SMITH: I'm listening to you, and I appreciate your sincerity. I'm just -- once again, I'm confused that if I absolutely was a cattle farm or a tomato farm or whatever and I cleared the property, Page 86 February 27, 2003 that ordinance is in clear violation of that 823.14. And I just don't see how I can be held accountable for a county statute that obviously is written inconsistent with a state statute. CHAIRWOMAN DUSEK: Okay, I think that we've heard -- MR. SMITH: Okay, did I say that earlier? I'm sorry. CHAIRWOMAN DUSEK: Well, not only you, but I think Cliff has made his point -- MR. SMITH: Right. CHAIRWOMAN DUSEK: -- a few times and so have you, so I think we have -- MR. SMITH: Thank you. CHAIRWOMAN DUSEK: -- listened to both. MS. BARNETT: I've got one statement. CHAIRWOMAN DUSEK: Let me just move on down this way for a second and see if-- George, did you have any? Then I'll come back, Sheri. MR. PONTE: Yeah, I have just one question. Obtaining -- and this is a personal question, might help me get a handle on a point that I'm missing here. I don't want to miss the main point. Obtaining the necessary permits to come into compliance is a very simple thing to do. Why are you fighting so hard, spending so much time, effort and money to fight getting the permit? I'm not -- MR. SMITH: It's quite simple, sir. I believe that as an American, we've got enough regulation already. Not that I don't believe in law and order. But I don't understand why we have to have so many governmental agencies that just replicate what's already out there. And where I feel strongly about this is the fact that as a business owner, it is my job to find every advantage that I possibly can find, barring crossing the line and doing something unethical. So that's my duty, just like it's code enforcement duty to, you know, enact what they feel is right. Page 87 February 27, 2003 And as that duty to my family, I feel that -- not that I was trying to skirt anything, but that I clearly had a legal path in my mind, at least strong enough to say okay, well, you guys can't even make a decision on it -- and, you know, we've talked about and plenty of educated counsel -- that I was clearly within my legal right to do it. It doesn't matter whether -- you know, you say well, why didn't you just do this? My philosophy is most -- that's the problem with America right now, most people feel if there's beer in the refrigerator and there's problems aren't affecting them, they just go along with what's handed down. And that's been the problem in time. That's what happened in the Boston Tea Party. And many times in government over the years, that yeah, we want to hope that -- I want to hope that whenever I go to Collier County permitting, I walk in there and they say, hey, Mr. Smith, guess what, you don't need a building permit, you fall under this exemption. But it doesn't work that way. Everybody will tell you, you go down there and you get different answers every time you go down there, because there's so much stuff. And I know that's hard and confusing, but the point of it is is, that, you know, just because most people would take the easy route -- maybe I'm hardheaded, I don't know, but the point being here is that I feel that I didn't have to do all that and -- CHAIRWOMAN DUSEK: Mr. Smith, you must understand that this board is guided by the zoning ordinance, and whether there is or is not a bureaucracy that follows through the process, we have no control over that. MR. SMITH: I understand. I'm not blaming you at all. CHAIRWOMAN DUSEK: So we're here to just be guided by the zoning ordinance. And if we feel there's a violation with the zoning ordinance, that's all we can work with. Just so you understand. Page 88 February 27, 2003 Gerald, do you have any questions? MR. LEFEBVRE: Do you want to ask your question? MS. BARNETT: It wasn't really a question, it was more of a comment. You had brought up that there were several other entities that have wildlife licenses in Collier County. You also mentioned the Conservancy and the Nature Center as a business. Well, I for a fact happen to live in a residential area that has one directly across the street from me. They are not applying for any exemptions, they're under a 501C status, they are not looking to earn or to gain from that. They are an educational situation; therefore, they are different than you are -- MR. SMITH: You know, I've heard that. MS. BARNETT: -- in one respect. MR. SMITH: I've heard that argument before, and I'm quite taken by that. Because basically what you're telling me is that if I wasn't doing -- for whatever reason, money, if you're not being compensated to do -- to display animals, that's okay. But in a sense, by displaying animals, that's the difference. By being compensated to display animals is the argument that I'm making. That is the difference between producing an agricultural product and not producing an agricultural product. MS. BARNETT: But they're not asking for the agricultural exemption. You are. I think that's the difference. So I don't think you can put yourself in their same category is what I was trying to say. MS. JONES: I don't think he's asking for the agricultural exemption, he's asking for the agricultural classification of his property. There's-- MS. BARNETT: In order to be able -- MS. JONES: -- a distinction. MS. BARNETT: -- to be able to utilize the exemption to be Page 89 February 27, 2003 able to avoid all of his permits. MR. SMITH: Maybe they're not as good of a business person as I am. Obviously if I can make a living -- MS. JONES: You mean the exemption under the Florida Right to Farm Act. MS. BARNETT: Correct. MS. JONES: Right, sorry. MR. SMITH: Well, the only thing I can say to that is maybe they're not business minded. If they're a nonprofit foundation, which I have -- you know, I think nonprofit -- the only reason I'm not a nonprofit foundation is because I would have to open my facility up to the public and I don't want -- it's not fair to my animals to be on display all the time. And to be quite frank, I enjoy people, but I don't want to enjoy them from 8:00 to 5:00 every day. But in answer to your question, you -- the difference in my opinion is the fact that these people -- like you said, just because they didn't apply for it, maybe they didn't think about it. Maybe the tax appraiser didn't knock on their door and say guess what, you fill this bill. Caring for animals is very labor-intensive, it's very expensive, and I know that in the land development code it states that you have to have a minimum of 25 acres to have exotic animals on it. So whether they're doing it for profit or not, they're in violation, according to your statutes. Now, I could sit here and argue that that ordinance is illegal, but in the same context I'm the guy doing it right and trying to do all the stuff, and I'm the guy being penalized for it. And they're on a Golden Gate Estates lot, and they're, you know, violating another ordinances (sic) and it sounds like selective enforcement to me. CHAIRWOMAN DUSEK: Well, that -- the point has been made, and you're the one before us today. Gerald? MR. LEFEBVRE: Just a couple -- I guess clarification on what Page 90 February 27, 2003 vegetation was removed and what -- like the tent, you said it was 14,000 square feet? MR. SMITH: I'm saying -- right, not the tent is 14,000, but -- MR. LEFEBVRE: Right, the vegeta-- MR. SMITH: Right, the area that comprised the road. MR. LEFEBVRE: You figure about 9,000, the parking lot's about 10. Now, what other buildings are on that lot that you had to clear to put these buildings on? MR. SMITH: That's it. LEFEBVRE: How about that 40 by 60 building? SMITH: That 40 by 60 is included within that 14 -- LEFEBVRE: Within that 14,000, okay. SMITH: Now, once again, though, those spaces are MR. MR. MR. MR. general -- MR. LEFEBVRE: Right. MR. SMITH: -- just like Ms. Sulecki did, where I just took the dimensions of the structures. MR. LEFEBVRE: Right. MR. SMITH: But it doesn't mean that that acreage was crammed pack full of vegetation. And I hand cleared that melaleuca, by the way, which was a very labor-intensive job to make sure that we didn't destroy the native habitat. Around me is all farm, farm-farm, with topiary pigs, that sort of thing. And they applaud -- and that video we showed, the very last clip, was the farm adjacent to me. And they're rightfully doing what they want to do -- I mean, what they should be entitled to. But, you know, once again, I'm the guy saving the trees and I'm the guy in here, I could walk into county the next day and say hey, I'm going to grow an oak tree farm and do the same thing they're doing. CHAIRWOMAN DUSEK: Do you have any questions? Catherine, do you have any? MS. GODFREY: Yes. The county ordinance says before you Page 91 February 27, 2003 start building any type of building, move earth -- CHAIRWOMAN DUSEK: Speak closer to the mic. MS. GODFREY: -- take down any of the trees, you have to pull a building permit. MR. SMITH: Yes, ma'am, I had a building permit when I -- MS. GODFREY: And you requested that it be -- if I'm not mistaken, didn't you request that all that cancel? MR. SMITH: No, ma'am, I requested Building Director Ed Perico to kindly review the statute and show me where it said that once you add plumbing and electrical, you need that or kindly rescind my permit, and he rescinded my permit. And once again -- MS. GODFREY: He rescinded it, but I see pictures that you submitted yourself of a ladies bathroom. MR. SMITH: That's correct. MS. GODFREY: And you do have electric hooked up to buildings. And do you not have a septic system? MR. SMITH: Yes, ma'am, I have a permitted septic system. And once again, my building permit was rescinded because I'm under the impression, and from his letter coming back to me, that he agreed with -- because I gave him a choice of doing one or the other, he agreed with my interpretation or the interpretation of the statute stating that I was exempt. Now, Bank of America wanted further clarification, and that's where that letter from Johnnie Gebhardt which clearly states that I don't need a CO, I'm exempt from it, and I'm not required to have one and I'm not going to get one. And then I turn around less than a year later and get a violation for not having one. THE COURT REPORTER: slower. CHAIRWOMAN DUSEK: MR. SMITH: Sorry. MS. GODFREY: I really need for him to speak You have to speak slower. But in your statement here, it says in the Page 92 February 27, 2003 second paragraph, you say, however, given that information that you, you know, you spoke to FP&L and you didn't need a permit unless you had a sewer hookup, et cetera. And then however, given the information, Mr. Perico has agreed to honor his request and we have canceled his permit. By canceling the building permit, we have also canceled the septic permit. The fees for the septic permit have not been paid and, as I indicated earlier, it has not received the final approval. He will not need nor will he receive a certificate of occupancy for this building. Excuse me, I can't speak very well because of my neck. CHAIRWOMAN DUSEK: That's okay. MR. SMITH: You are correct in that statement, but just so that MS. GODFREY: So do you or do you not have a CO? MR. SMITH: I do not a CO. I have a septic permit from the State of Florida. And once again, what he's referencing in that letter is a Collier County septic building permit. In that defense package is a State of Florida Health Department permit. MS. GODFREY: Do you or do you not live in Collier County? MR. SMITH: I do. But I'm exempt. According to 823.14, I'm except from county ordinances. But I'm not exempt from state law. State law says -- and once again, state government doesn't agree with -- I had to be right, or at least have a strong enough case for them to agree with me. Before them -- try convincing the state government that you don't need a county permit one time and see what happens. But they agreed with me. And in that defense package -- Ka'imi, I don't know if you want to tell them the page -- the permit, you will see where they crossed out the county building permit number, which theoretically is used as your state permit -- MS. JONES: Tab 15. MR. SMITH: -- and rewrote in a state health department Page 93 February 27, 2003 number. It's actually like a five-digit number instead of a 10 or a 12-digit number. So I do have a legal -- same thing with a well. And the reason why that is, the way it's been explained to me on a state level is, wells and drain fields are dealing with other people's land. Because you're talking about aquifers and you're talking about the discharge of septic waste and that sort of thing. And that's why they're governed by them. FPL, once again, I submitted the same information that's before you, and their counsel reviewed it and they came out and dropped a 9,000-amp transformer and hooked a K-7, which is a giant easy-to-read electric meter, when I first started. They dropped a K-7 meter, demand meter, on the side of the building without a CO. And the only thing that was required from me was to prove to FPL, which once again has everything to lose by agreeing with me other than selling me a little bit of power, that I was agriculture. And I proved my case to them at least strong enough for them to obviously drop a meter in. So like I said, I've been through this argument many times in the past, and it's starting to get old, but hopefully I'm here and we're all here to finally once and for all get over this, you know. This can be the beginning or the end, and I'd like to see it be the end, you know what I mean? I'm sure you would, too. CHAIRWOMAN DUSEK: Are there any other questions from the board? MS. GODFREY: Can I ask the county attorney to verify that, that the state statutes override county -- MR. SMITH: Ma'am, if that wasn't true, we wouldn't need the house and the senate and all that, we would just create whatever laws we want on the county level. But I'm sorry. CHAIRWOMAN DUSEK: Are you asking the question? MS. GODFREY: Yes. MR. WHITE: As a general proposition, where there's an Page 94 February 27, 2003 expressed preemption by state statutes of local regulation, that can be the case. However, here there is no expressed preemption with respect to the entirety of all local government regulation. There are some conditions that have to be met. And in particular, we're talking about 823, the Right to Farm Act, I believe is what the substance of your question is, as to whether that is some type of a defense that precludes us from an enforcement. And what we've told you that our opinion is, that to the extent there's any quote, preemption, end quote, the conditions that would make that possible have not been met as a matter of fact and as a matter of evidence in this case. So as a general proposition, yes, it is possible for the state to legislate in a way that it precludes local government regulations of one or another fashion. And I would have other arguments in opposition to this defense, based upon different provisions that are in here that are also not met. But I think the simplest way to get us to the place where it's possible to ignore this as a defense and get to the meat of why we're here today is simply the notion that the required 193.461 classification of property as agricultural has not been met. So I hope that helps. CHAIRWOMAN DUSEK: Are there any other questions? All right, we'll consider this public hearing closed. MS. JONES: Do we not have an opportunity to present a summation? I mean, this is a novel legal argument and I'd really not like my client to be the only interpreter of the statutes, particularly when I feel that that's my job. I mean, there's significant points that CHAIRWOMAN DUSEK: Go ahead. MS. JONES: -- you know, the board needs to be aware of. CHAIRWOMAN DUSEK: That's fine. You're not going to cross-examine the witness anymore -- Page 95 February 27, 2003 then MS. JONES: No, no. CHAIRWOMAN DUSEK: go ahead. MS. JONES: Initially-- CHAIRWOMAN DUSEK: you can. MS. JONES: MR. WHITE: -- if you want to do a summary, Just make it direct and as quick as Sure. Initially I'd like to state first-- As a matter of procedure, Madam Chairman-- I apologize for interrupting. CHAIRWOMAN DUSEK: That's all right. MR. WHITE: I defer to the board attorney as to whether it's the county or the respondent that typically goes first. MS. RAWSON: As a matter of procedure, the county should go first, then the respondent, and then a very brief rebuttal, based on what the respondent has said by the county. CHAIRWOMAN DUSEK: All right. Thank you for giving me the interpretation, helping me out here. Then we'll hear from the county first. MR. WHITE: I'm going to try to be as brief as possible and try to reserve any comment that Assistant County Attorney Belpedio may have as well. You've pretty much heard two or three times our argument with respect to the potential defense, and I'm going to let go of that, because I believe that it's abundantly clear, that the defense isn't applicable under the Right to Farm Act. We concede Mr. Smith has the right to farm. And as soon as the property appraiser agrees with him that he is one, well, maybe we can consider those other things I mentioned before about that statute, 823. But moving to the substantive violations that have been cited, I think it's pretty clear that as to section 393, it's unlawful to remove or destroy vegetation without a permit. There's some notion that an exception has been argued under Page 96 February 27, 2003 396.42. The county's position is first off, even if that's correct as to the vegetation removal permit, we've certainly said they also need, if they are agriculture, they need an agriculture clearing permit. Turning to the vegetative removal permit alone, 393, the notion is that the one acre that was discussed, argued back and forth in terms of evidence, talks about the actual property size, not the amount of clearing that occurs. So whether it's 43,560 square feet, more or less, the county concedes that our number is an approximate number. It doesn't matter whether it's one acre or not. The evidence in the record is that this is a piece of land that's certainly more than 10 acres, and as a result, required to have this particular type of permit. And the only suggestion that there's any exception is when you obtain a building permit for the construction of a single-family residential dwelling in one of the residential districts that are listed. And obviously we know from the record this is agricultural, and as a result, the exception there does not apply. So I think that's the sum of our position with respect to that. Certainly have sufficient evidence that there has been clearing. As a matter of fact, those facts were stipulated to, I'll remind you, by the respondent. And it was only the acreage that was at issue. Second, as to the EIS, I think it's pretty straightforward that none was provided until part of the conditional use application the county's only just recently received. And as a result, it ought be self-evident that one was never provided for before. And indeed, those facts were apparently stipulated to by the respondent. And lastly, I think that as to the agricultural clearing permit, as I'd indicated, it may be relevant as to what areas and how much area were actually cleared for the purpose of bona fide agricultural use. That is something that at this point in time is an intention on the part of Mr. Smith and Close-Up Creatures that will be made evident as part of the application for the agricultural classification to the Page 97 February 27, 2003 property appraiser's office. And we can work that out as part of the permitting process when Mr. Smith hopefully will come in to apply for those permits. Assuming, of course, we've proven our case and you find the violations. I'm assuming we'd have to have a judge agree with us. Other than that, I think it's fair to say that if you accept our argument that the Right to Farm Act factually does not apply, and therefore legally cannot apply, and you've heard but for the square footages that were being challenged by the respondents, what they've said at the beginning of this process is that they've stipulated to the facts that were in the record in the county's package. I submit to you that those facts are sufficient on their face to find all of the violations the county has cited them for. And with that, I'll ask if there's no further comment, Ms. Belpedio. And again, just hopefully we'll have no rebuttal, but thank you. CHAIRWOMAN DUSEK: All right, Ms. Jones? MS. JONES: Thank you, members of the board, Counsel. Mr. Smith is a pioneer. I think Board Member Flegal recognized that. You know, as a pioneer, you have many obstacles that you have to overcome to, you know, to do whatever it is is your intent. I think we're here today before this board because this board is charged with -- is charged with not only interpreting the Collier County code, but you're also charged with interpreting the Florida statute. And just because the Florida statute doesn't say that Mr. Smith's wildlife operation isn't a bona fide agricultural operation doesn't mean you can't interpret that statute to say that it is. That is your job. That is why we're here today. You were charged with that duty pursuant to Florida statute. Now, I think we've gone over what our position is with respect to why Close-Up Creatures is or should be deemed a bona fide Page 98 February 27, 2003 agricultural operation, and therefore, exempt. I won't belabor that topic. So it's in your hands at this point. Only to say that if entertainment isn't a product, then I don't know, you know, what the Naples Philharmonic is selling, I don't know what Barbara B. Mann is selling. I don't know what, you know, Broadway is selling. But they're selling something, and in our mind, it's a product, and it's a product that should be encouraged in this county. It's a product that each and every one of you should want here. Agri-tourism, or agriculture and tourism, if you combine the two, brings in $57 billion to the State of Florida. That is a huge number. And I understand, we are a prosperous county. We are probably the most prosperous county in the state. I don't know that for sure, but we're up there. Why would we want to prevent that? Why would we want to push somebody like Mr. Smith into a county up in Cocoa Beach where they recognize the fact that, you know, agri-tourism is a beneficial commercial and agricultural enterprise? Something that I think that you need to be aware of is the legislative intent behind section 823.14. Both the federal and the state governments recognize the importance of utilizing agriculturally zoned land for agricultural purposes. The Florida legislature has also realized the economic and bureaucratic obstacles that farmers have in doing anything. I mean, you've heard it from Mr. Smith today. You know, he goes to the county two years ago to find what he needs to do to get done what he wants done. They tell him one thing, two years later they cite him for doing it. I mean, that's exactly the intent of 823.14. So you have certain governing bodies doing the same things uniformly, not differently, not selective enforcement, not reaching here, not reaching there. That is why the legislature passed 823.14 and amended section six of that statute in the year 2000, to make sure that if there were any local -- excuse me again, I'm kind of going off the cuff here. If Page 99 February 27, 2003 there were -- here we go, a local government may not adopt any ordinance, regulation, rule or policy to prohibit, restrict, regulate or otherwise limit an activity of a bona fide farm operation on land classified as agricultural. We concede to the fact today, and Mr. Smith has testified, that the land in question, he has applied for the, you know, agricultural exemption classification, whatever you want to call it, with the property appraiser. And there's absolutely no reason presented to you today by either our side or Mr. White that that's not going to happen. In fact, Mr. Smith's property before a couple of years ago was classified as agricultural. And he just realized -- MS. BELPEDIO: I'd object that that wasn't placed into evidence. MR. WHITE: As a matter of fact, exactly the opposite point was put in evidence. MS. JONES: Actually, I think-- well, regardless, Mrs. Smith can confirm that, even though her husband may not have been straight on the facts. But I guess the point is and really the crux of our argument is whether you decide here today that Close-Up Creatures and Ngala is a bona fide agricultural operation. If they are, then they're exempt, period. They're exempt from the next Case No. 2003-009 as well. So, I mean, it's in essence the same argument. If you don't, if you find that what he produces or what he doesn't produce, you know, isn't a bona fide agricultural operation, then the facts, the undisputed facts that even Ms. Sulecki agreed to is that Mr. Smith cleared less than an acre. Under section 3.9.6.4.2, there is no vegetation removal permit for clearing one acre or less of land if you're in an agricultural property if you have a building permit. He had a building permit at the time. In addition, it's kind of funky, because I don't really understand, like I guess the county is saying that if we have -- if we don't need Page 100 February 27, 2003 the agricultural clearing permit, then we need the vegetation clearing permit. But we've been cited for both, so I'm a little confused with their position. I mean, we're either agricultural or we're not. If-- I guess if we're not, then he -- I don't know, it's really perplexing, and I'm a little confused by the whole situation. But my interpretation of the code is that regardless of whether Mr. Smith did these things, he is a bona fide agricultural operation, and therefore, he's exempt pursuant to 823.14. Thank you very much, members of the board. CHAIRWOMAN DUSEK: Thank you. MR. WHITE: Very briefly. Excuse me, very briefly. The distinction between the two types of permits is simply based upon Mr. Smith and Close-Up Creatures' intention to have a bona fide agricultural use. It's self-evident that if you're agriculturally zoned and you intend to clear for an agricultural purpose, that at the time you're going to clear, you do not have a then present agricultural use. You cannot grow tomatoes in the middle of a forest, I guess would be the simple way to analogize it. So the regulation contemplates that there will be some point in time at which it will be determined whether that intended bona fide agricultural use actually exists or not. And although Mr. Smith appears to have the desire to comply with the law, he seemingly wants to do it subject to his reading of it. We differ on how we read those rules. We differ on the statute and the ordinance. We agree he has the right to farm, and as soon as the property appraiser agrees with him that he is one, well then maybe that's a different case. But that isn't what you have before you today. Thank you. CHAIRWOMAN DUSEK: Since I haven't closed the public hearing, I'm going to ask another question of you. On one of the sheets that we have from the property appraiser's office, it shows that the use is improved commercial. How can we make a determination -- first of all let me ask you this: Let's assume Page 101 February 27, 2003 that it's improved commercial. Does he still have to get a vegetation or an agricultural clearing permit? MR. WHITE: I'd defer to staff, but my opinion is yes. Any development activity is what it is that triggers the requirement. In other words, the idea that you're going to develop your property is why it is, even if you have exotics, that you're required to get a vegetation removal permit, unless it's for the construction of a single-family dwelling in those residential districts. Otherwise, in agricultural, even for and even with a building permit for residence, you still must. And he has a storage building that was at that point in time the subject of a discussion about a building permit, not a residence. CHAIRWOMAN DUSEK: Okay. Any rebuttal from the defense? Or is it -- MR. WHITE: Not that they're entitled to one. MS. JONES: If you would give me one minute, please. CHAIRWOMAN DUSEK: Wait. Jean? MS. RAWSON: Well, procedurally -- we could go all day. Procedurally, I think it's probably over. CHAIRWOMAN DUSEK: Over, all right, that's wonderful. I am closing the public hearing. And now it's for the board to discuss among ourselves. And I will start with saying that I don't believe it's our place to determine whether they are zoned agriculturally or not -- excuse me, not zoned, but the use. We already know that they're zoned agricultural. But the property appraiser is the one who's going to decide whether it's an agricultural use. So that's not what we're here to do today. I think that has some impact on the type of permit for clearing. But I'm still not quite sure on that, because the county has cited for agricultural permit and I understand that the -- from testimony today that the only way you can ask for that is if you are agriculturally Page 102 February 27, 2003 zoned use. Now, if you have other feelings toward that, then please let me hear from the board. And we must also remember that even though Mr. Smith is in the process of doing everything that's right, at the time this violation was cited those processes were not in the works. Any comments, any of the board members? MR. FLEGAL: Sure. MS. SAUNDERS: Sure. Where do you want to start? Go down the row, or-- MR. FLEGAL: Which way do we want to go? CHAIRWOMAN DUSEK: All right, we'll start again with -- well, how about Mr. Albert down there, do you have anything to say? MS. SAUNDERS: Your first day. MR. DORIA: I'm listening, taking it all in. CHAIRWOMAN DUSEK: You're a listener, right? MR. FLEGAL: You're the only smart one in the whole group. CHAIRWOMAN DUSEK: Rhona, then we'll start with you. MS. SAUNDERS: Okay. I have to say first when I came into this hearing I didn't have a feeling either way, I really didn't. So I've listened very carefully to both sides. And where I'm coming down at this point is I'm not sure why we've gone through all of this. If I read the Florida 823.14, the Right to Farm Act, in the legislative findings and purposes it clearly says that the continuation of agricultural activities, preserves, landscape, so on, and contributes to the increase of tourism. I know from many other areas I'm involved in that agri-tourism is a recognized use and a growing area of agriculture. Under the farm product thing, I fully agree with the defense, that education and entertainment, whether they are a not-for-profit, nonprofit or profitable organization, is considered a legitimate aspect of agri-tourism, which I believe is covered under the Florida Right to Farm Act. The next statement, which is section D, which says establish Page 103 February 27, 2003 dates of operation, says that from the time the business was first started, if the same amount of land was cleared or expanded but no new land was added, that it is covered under the Right to Farm Act. For all of these reasons, I believe this property is indeed covered under the Right to Farm Act. Does he need the exemption from the Florida -- from the Abe Skinner's office, the county appraiser's? I believe he doesn't. I believe he frankly has a de facto exemption by these regulations because of the Florida Right to Farm Act. And I further factor my comments by the fact that I believe this individual and this business has really gotten the right licensing. There's no safety problem, there's no neighbor problem, there's nothing that would -- there's not even I don't believe a vegetation threat or an extinct species threat. Nothing is harming anything here. I don't really understand why we're trying to make this come under county when it already seems to be totally regulated by state and federal. And so I come down very strongly on the case, on the side that this is covered under the Florida Right to act -- Farm Act and there is no violation. CHAIRWOMAN DUSEK: Sheri, do you have any comments? MS. BARNETT: I think I've kind of covered the comments I've had previously, and I'm going to pass. CHAIRWOMAN DUSEK: Okay, Cliff, I'm sure you have something to say to us. MR. FLEGAL: Oh, yeah. You know I'm not going to be quiet. I'm on the opposite side of the fence. I think if we interpret, which is what we're here to do, the ordinance, unless this classification exists, we've already had the defendant and his attorney admit they don't have this classification from Mr. Skinner. Pretty cut-and-dry right there. If they don't have it, they don't get it. The statute is pretty clear, 193 and what's the other one, 8 something? Now, as far as agriculture goes, understanding what you said, Page 104 February 27, 2003 Bobbie, about agricultural, out of the one, two, three, four, what is it, five sections they've been cited for, only one refers to agriculture, and that's 3965. So if we even consider that they met some type of agricultural, which I personally don't believe they've met. The argument about production is wonderful. If you're the Philharmonic Orchestra, your production, what you give is music; if you're Broadway, what you give is a play; if you're a shoe repair shop, what you give is repairing shoes. If you're in agriculture, I can't correlate to letting people come and ooh and goo over exotic animals. Sorry, the production doesn't work for me. Maybe I'm old school or no school, I don't know. So I think there is a violation of at least four sections. I'd probably yield to the fifth and I don't know that I'm willing to do that, but somebody may convince me. So my side, I think there is a violation, because they admitted they don't have this classification. So I'm sorry. CHAIRWOMAN DUSEK: Anyone else? George? MR. PONTE: Yes. Unusual as this may seem, I concur with my colleague, Mr. Flegal. I don't believe this is covered by the Florida Right to Farm Act at all. And it seems to me this is really a very simple situation. The respondent did not have a permit when the vegetation was removed, he did not have an EIS permit, he doesn't have the permits for conducting any of the activities that were conducted prior -- at the time the violation was committed. Therefore, I believe sincerely the violations do exist. CHAIRWOMAN DUSEK: Anyone else? Gerald, do you have any comments? MR. LEFEBVRE: Well, I kind of concur on some points that Mr. Flegal made and Mr. Ponte also. CHAIRWOMAN DUSEK: And Catherine, do you have any comments? Page 105 February 27, 2003 MS. GODFREY: I want to say God bless you for taking those animals in and helping them out. But I do have to concur, I believe the violation did-- THE COURT REPORTER: Could you speak up, please? MS. GODFREY: I said God bless him for taking the animals in. I mean, we need more people like him. But unfortunately I feel that they are in violation and should have got the permits that were required. CHAIRWOMAN DUSEK: We need to do a finding of fact and conclusion of law. Is there anyone who would like to make a motion that a violation does exist, and to describe the violation? If you look on Page 4. MR. PONTE: Okay, yeah, I have it. I'll make a motion that a violation does exist in this case, the Board of County Commissioners, Collier County, versus Close-Up Creatures, Incorporated, doing business as Ngala and Donovan Smith as its registered agent and director. That is county Code Enforcement Board Case 2003-008. The violation being sections 3.8.33, 3.11.3.1, 3.11.3.2, 3.9.3, and 3.9.6.5 of Ordinance No. 91-102, the amended Collier County Land Development Code. The description of violation is that without -- that there are -- description of violation is that one acre or thereabouts of land was cleared without an agricultural permit and improved with other facilities, a storage barn, animal barn, permanent tent, toilet facilities, without an environmental impact statement being submitted and approved. CHAIRWOMAN DUSEK: All right, the -- before we -- I ask for a second, on the 3.9.6.5, this is the agricultural land clearing, and it does state agriculturally zoned land for bona fide agricultural use, as defined by this code. And Jean, is that applicable, if we haven't determined that it's Page 106 February 27, 2003 agricultural use? MS. RAWSON: You need to determine -- I can't answer your -- I can't tell you how to vote, but he made a motion that included all of the Collier County Land Development Code sections -- CHAIRWOMAN DUSEK: Yes. MS. RAWSON: -- that were cited. CHAIRWOMAN DUSEK: Yes. MS. RAWSON: If you find that one or more of them are not applicable, you know, then you need to so state in your motion, or you need to amend the motion. CHAIRWOMAN DUSEK: That's -- okay. That's the only one that I question, because we haven't determined yet whether it's agricultural use. It is agriculturally zoned, but not agricultural use that we know of yet. That's my only question. MR. PONTE: Well, the only other slot there is that -- we could argue this all afternoon, get into the semantics of it, but it wouldn't really clarify the situation. MR. FLEGAL: Yeah, and I think to probably be honest to Mr. Smith, even though it is zoned agriculture and bona fide agricultural use, if you go back to the statutes, and it -- which is where the property appraiser kicks in and he determines it under certain guidelines. I would probably be prone to say that particular one we should drop out. Let's say there we give the benefit of the doubt, for lack of a better way to put it. MR. PONTE: And there you and I come into disagreement. MR. FLEGAL: That's fine. It's your motion. That's where I'm saying I would probably lean toward the side of okay, I'll give on that one since it's -- CHAIRWOMAN DUSEK: Are you amending the motion, or just making comment? MR. FLEGAL: Well, I put it out and Mr. Ponte has voiced his opinion we're on opposite sides, so I'm not going to ask him to amend Page 107 February 27, 2003 it. I've put it out and it's his motion. MR. PONTE: Well, I do not believe that a bona fide agricultural activity is taking place here. MR. FLEGAL: I mean, the thing to do I guess at this point would be if he doesn't want to amend it, if we get a second, we vote on it, it passes, fine, if it doesn't, then we try again, and maybe the try again is without that. CHAIRWOMAN DUSEK: Are you willing to amend to drop that at this point? MR. PONTE: No, I'm not. CHAIRWOMAN DUSEK: (No response.) CHAIRWOMAN DUSEK: Do I hear another motion? aye. Do I hear a second to the motion? All right, that motion doesn't carry. MR. FLEGAL: I'd make the motion, leaving out 3.9.6.5. CHAIRWOMAN DUSEK: Do I hear a second? MS. BARNETT: I'll second. MS. GODFREY: I'll second. CHAIRWOMAN DUSEK: All those in favor, signify by saying some comment about what we should do? county's recommendation. MR. FLEGAL: Aye. MS. GODFREY: Aye. MS. BARNETT: Aye. MR. LEFEBVRE: Aye. CHAIRWOMAN DUSEK: Aye. Any opposed? MS. SAUNDERS: Opposed. MR. PONTE: Opposed. CHAIRWOMAN DUSEK: Motion carries. And now we go to the order of the board. Do I hear a motion or And you can review Page 108 February 27, 2003 MS. BARNETT: I was looking at county's recommendation, and they said that they had to get their permits and respondents (sic) and everything within 30 days. I was wondering if maybe that was long enough. Because he's waiting on a couple of different things in order to fall into place, and I was wondering if that should be amended. CHAIRWOMAN DUSEK: I don't know who we're going to address this to. Michelle isn't here, and Shanelle or Mr. White, I don't know, or Alex, any one of you, if 30 days is a reasonable time? MR. WHITE: I'd defer to staff with respect to the particular individual violations. I think as to that pertaining to the EIS, there's evidence that certainly 30 days would deem to be long enough for that. Apparently it's been submitted. CHAIRWOMAN DUSEK: I think it's in the process. MR. WHITE: Right. CHAIRWOMAN DUSEK: Alex -- MR. WHITE: And now the question there is whether it will be deemed sufficient or not. So maybe 30 days isn't enough. But as to the rest of them, Alex processes these permits, and I'll defer to her. MS. SULECKI: Alexander Sulecki, code enforcement department. It does say if conditional use is granted, so it does depend on the conditional use. So that 30 days starts at that point, not 30 days from today. CHAIRWOMAN DUSEK: Good point. MR. FLEGAL: Okay, something I think we need to understand, too, and maybe Alex can answer it for us. Alex, we did not find him in violation of 3965. Okay, with that taken out, how does the county's recommendation stack up? Because now we've taken out that particular violation. MS. SULECKI: Okay. The only after-the-fact permit without a conditional use that could have been granted was the agricultural Page 109 February 27, 2003 one. Because you have to have -- the activity has to have been able to been approved upfront in order to issue an after-the-fact permit. If it were just talking about a vegetation removal permit, then we would not grant an after-the-fact vegetation removal permit unless he had the permits or the conditional use to construct his buildings and all that, so forth. So it does depend on that conditional use. MR. FLEGAL: Because you've now kind of confused me. All I'm saying is since we've dropped out that agricultural -- I can't remember what that -- it was on page something, and I don't remember what it said exactly. Permit for clearing of agriculturally zoned land, we've thrown that out, so that doesn't exist anymore. But the ones that are left -- MS. SULECKI: But he would still need a permit to clear, an after-the-fact permit to clear, and we do not issue after-the-fact permits, unless the conditions are such that it would have been issued upfront, if they would have asked. And they would have needed a permit. MR. FLEGAL: But I must take into consideration that based on the testimony, he cleared the land to build a building, and he went in and got a permit, so I can make an assumption that before the fact he would have gotten his approval to clear the land before. MS. SULECKI: You're right. And I'm sorry, this is very confusing, because if he was building buildings out there, non-agricultural buildings, we would have needed a clearing permit in order to clear for them, to clear for the areas that he has cleared. So if his buildings are deemed legitimate as far as not needing permits, then we could issue an after-the-fact clearing permit. Does that make sense? MR. FLEGAL: I understand. And time limit-wise, is that -- it's 30 days or 60 days or-- MS. SULECKI: Thirty days is plenty of time to issue an Page 110 February 27, 2003 after-the-fact permit, once we determine what -- the status of those buildings. MS. JONES: So 30 days from the determination of whether his conditional use application is either approved or denied; is that right? MS. SULECKI: Well, there were two alternatives. If the use was granted, he had 30 days from that date to apply for and obtain the after-the-fact permits. If it was not approved, there was another condition. MS. JONES: What are you reading from? This is a recommendation from the county to MR. FLEGAL: the board. MS. SULECKI: have in your packet. This is on the executive summary that you No? Oh, I'm sorry. MR. WHITE: I believe it's Page 12. MR. FLEGAL: Anybody else have any questions for Alex? Thank you, Alex. MS. SULECKI: Thank you. CHAIRWOMAN DUSEK: All right, Cliff, would you like to make -- MR. FLEGAL: Sure. CHAIRWOMAN DUSEK: -- a motion? MR. FLEGAL: I'll give it a go for an order of the board. CHAIRWOMAN DUSEK: All right. MR. FLEGAL: First order of the board is that the respondent pay all the operational costs incurred with the investigation of prosecution of this case. Secondly, that-- MS. JONES: I'm sorry, could you repeat that? I didn't hear yOU. MR. FLEGAL: First that he's going to pay all the operational costs incurred during the investigation and prosecution of this case before the board. Those amounts are determined by the county. We Page 111 February 27, 2003 don't put a number on there, it's -- they can give you a number. You would need to talk, I'm sure, to probably Ms. Arnold. Second, that the respondent obtain -- is conditional use permit, the correct terminology? I need to ask the county. I don't want to put the wrong word. MR. WHITE: That's what is in the recommended portion of-- the conditional use permit is an accurate term. MR. FLEGAL: Okay, that's fine. I don't want to tell him to try and get something that he can't get, so that's why I wanted to make sure. That the respondent obtain the -- a conditional use permit. And even though the county has recommended 30 days, just because of the way the case went and I think there's enough confusion on, I'll say, both sides as to terminology of who did what, I would like to recommend we give him 60 days. He's been working hard to try and do something, I'm not for holding his feet to the fire real quick. He's not endangering anybody, he obviously has a nice operation, so I can personally be a little lenient there, I think. To get this permit within 60 days. Third, if he fails to get this permit within 60 days, a fine of $100 a day be assessed for each and every day past that point. MS. JONES: Point of clarification? 60 days from the-- MR. FLEGAL: Today. MS. JONES: -- determination of this conditional use? Because he can't -- MR. FLEGAL: From today. MS. JONES: Well, he can't get his permits until he gets a conditional use. CHAIRWOMAN DUSEK: That's right. So I think that -- MS. JONES: I mean, they won't issue after-the-fact permits until there's a conditional use, which has been approved. MS. DUSEK: I think that's what you meant, Cliff, 60 days after Page 112 February 27, 2003 he gets -- MS. JONES: Which is also under review, just so you know. I mean, he submitted his conditional use application about a month ago. So it's kind of-- in essence what I'm saying, it's in the county's hands. Like we can't do anything until -- MR. FLEGAL: Okay. I'll-- MS. JONES: -- they've made their determination. MR. FLEGAL: Jean, do you understand? You're the one that has to write it. MS. RAWSON: I do. If the conditional use is granted, then 60 days thereafter-- MR. FLEGAL: After. MR. PONTE: Yes. CHAIRWOMAN DUSEK: That's right. MS. RAWSON: -- then he shall obtain the after-the-fact permits. CHAIRWOMAN DUSEK: That's right. MR. WHITE: And all we would ask, if you would consider adding to your order, is the notion that the respondent be requested to diligently pursue that conditional use. CHAIRWOMAN DUSEK: That's fine. He's going to do it anyhow. MR. FLEGAL: Well, other board members may possibly amend it, but I just find it -- we've ordered him to do something. Whether he wants to do it diligently or not is immaterial. Because if he doesn't, he's going to get fined, then that will -- you know, he'll get punished. I think he will be diligent so I don't think I need to cross all his T's for him and lead him by the hand, personally. So that's my order, recommended. CHAIRWOMAN DUSEK: All right, does everyone on the board understand the order, that he's getting the conditional use and then he has 60 days in which to apply for and obtain the after-the-fact Page 113 February 27, 2003 permits, and if he doesn't, then he has 30 days from that date? MR. FLEGAL: No, I didn't say that. CHAIRWOMAN DUSEK: I'm sorry, 60. MR. FLEGAL: He gets the 60 days after he gets the conditional use, and if he doesn't do it in 60 days, it's 100 bucks. MR. LEFEBVRE: Can I ask to have this amended? Are we at that point yet? CHAIRWOMAN DUSEK: You can ask if he'll amend it. MR. LEFEBVRE: The only thing I see a problem with is the dollar amount. Since this really isn't in his control, I think the $100 amount is something that is excessive. I would be more willing to entertain, let's say, $50. MR. FLEGAL: Well, I guess I'd have to say it is in his control, because we've given him -- once the county says okay, he has 60 days to get the things, and if he doesn't do it, he's going to be punished. And what I'm looking for there is it will take his due diligence, because he knows he's going to get punished by fining. And if it takes longer because the county doesn't do something during those 60 days, he always has the right to come back to us and say could you waive this fine, because it wasn't my fault, and we could do that. So I'm prone to leave the $100 as the -- you know, that's my word of diligently. You've got $100. Now, are you-- CHAIRWOMAN DUSEK: So Cliff, you're not willing to amend the motion? MR. FLEGAL: No. CHAIRWOMAN DUSEK: Okay. Let me just ask you something else. MR. FLEGAL: Sure. CHAIRWOMAN DUSEK: You only included after he gets the conditional use that there be 60 days to get the after-the-fact permit. MR. FLEGAL: Right. Page 114 February 27, 2003 CHAIRWOMAN DUSEK: You did not include anything if he does not get the conditional use, that he could do a mitigation plan that would be acceptable to the county? That is not part of your -- MR. FLEGAL: No, because he cleared the land to put a building on it, so there's no vacant space. And I'm not interested in that. And if the county does not want to issue a conditional use permit, then I would guess that the order of the board is do something after you get it. If he never gets it from the county, he doesn't have to do anything. MR. WHITE: Well, I would suggest then that he'd be very interested in having his conditional use permit denied. CHAIRWOMAN DUSEK: Yes, exactly. MR. WHITE: But be that as it may, it's certainly the board of zoning appeals that will make that determination. And it just seems logically to me that there should be some type of a fine or direction from this board for each circumstance, whether the conditional use permit is granted or it's not. Because if there's nothing as to not being granted, then arguably there's no penalty being imposed at all. CHAIRWOMAN DUSEK: I would like to see added -- I'm asking you, this is my opinion -- that if a conditional use is not approved, that he has a chance to do a mitigation plan that would be acceptable to the county. MR. FLEGAL: Okay. CHAIRWOMAN DUSEK: That's a suggestion. MR. FLEGAL: Okay. I don't have a problem with it, if that's what you want. I'll amend it to include a mitigation plan, if the conditional use is not granted. CHAIRWOMAN DUSEK: That would be acceptable to the county. MR. FLEGAL: Right. CHAIRWOMAN DUSEK: All right, is there a -- now, does everyone understand the motion? Rhona, you have a comment? Page 115 February 27, 2003 MS. SAUNDERS: I have an amendment. I suspect it is not going to be accepted, but I need to put this on the record. This -- I for the first time ever would like to propose that operational costs not be incurred in this prosecution of this case, and let me explain just a little bit why. I believe we're dealing with a very specific legal argument. I believe that the defendant or property owner has diligently attempted to comply all the way through. I believe that the county gave him conflicting signals that he was told he didn't need permits, and I don't think it's fair to charge him the costs -- I recognize that we have a finding of fact that says he is wrong, or that the defense is wrong, but I don't believe it's fair to penalize him for that. So that's my requested amendment. MR. FLEGAL: I understand what you're saying, but unfortunately I disagree with that, and I would not waive the operational costs in the beginning. CHAIRWOMAN DUSEK: We have to keep in mind also that this began in July. MR. WHITE: If I could-- MR. FLEGAL: I mean, you have to -- this is not a debate between us. CHAIRWOMAN DUSEK: I don't think we can involve you at this point unless we have a question. MR. WHITE: I only wanted-- MR. FLEGAL: I don't have a legal question. MR. WHITE: -- to make one suggestion, and I can certainly wait until you're done with your motion. CHAIRWOMAN DUSEK: All right. Go ahead. MR. FLEGAL: Rhona, we -- he had an option, okay? Nice gentleman, nice operation, don't have anything against him. But when the problem started, he chose, because he thought he was in the right, to go this direction. And it's taken all this time to get before us. He could have just went, like the rest of the world, I guess, and Page 116 February 27, 2003 gotten the required permits and said good, get these guys out of my hair, I'm done. He didn't do that. So now you're asking me because he made his choice to do something different that he shouldn't pay for the county having to go through all the bells and whistles to get to us, and I'm just not willing to do that. MS. SAUNDERS: Just as a rebuttal -- gosh, we're sounding just like trials, aren't we? I believe his letter that went to the planning division, or whoever, the permits, did say please cite which areas you think I'm in violation of-- I mean, which area this falls under, and if you can't cite which area it falls under, then let's rescind my application. So I believe he did come to the county and ask for-- was going that route, and the county said oh, whoops, we can't find anything, so we'll rescind it. MR. FLEGAL: He got the NOV from code enforcement. And from the day that Alex issued it, he had a choice right then to either do what -- you know, not from some other department, we're only interested in the code enforcement department who issued this NOV. And so -- CHAIRWOMAN DUSEK: Okay. MR. FLEGAL: -- I'm sticking with that. CHAIRWOMAN DUSEK: So he's not willing to amend the motion. We will go with the motion as it's been presented. If it doesn't pass, then we'll entertain another one. MR. FLEGAL: And he always has the right later, you know, to come back and ask us to waive all this. CHAIRWOMAN DUSEK: Do I have a second to Cliff's motion, if everyone remembers it? Does everyone understand it? It's in three parts. Do I have a second? MR. PONTE: I'll second it. CHAIRWOMAN DUSEK: All those in favor, signify by saying MS. BARNETT: Aye. Page 117 February 27, 2003 MR. FLEGAL: Aye. CHAIRWOMAN DUSEK: Aye. MR. PONTE: Aye. MS. GODFREY: Aye. CHAIRWOMAN DUSEK: Any opposed? MS. SAUNDERS: Opposed. MR. LEFEBVRE: Opposed. CHAIRWOMAN DUSEK: Motion passes. All right. Now, court reporters, you're dying. you need, ! 0 minutes? THE COURT REPORTER: CHAIRWOMAN DUSEK: going by the clock on the wall. (Recess.) CHAIRWOMAN DUSEK: Are we ready? How much do Yes. Okay, 1 O-minute break. And we're MS. JONES: Members of the board, could you give us a couple of minutes? We're trying to maybe expedite this next case and come to some sort of agreement. CHAIRWOMAN DUSEK: You go right ahead. We're going to move on with something else at the moment, anyhow. MS. HILTON: Actually, that works out really well. We have on the agenda a request to reduce. Board of County Commissioners versus Usulu Okur, 2002-025. Is it okay if we proceed with that? CHAIRWOMAN DUSEK: The county has asked that we move this to this position. I have no problem with that. This man has been here since 9:00 this morning. So unless I hear an objection from anyone, then we'll just go right ahead. MS. HILTON: Cherie', does he need sworn in? CHAIRWOMAN DUSEK: Well, I don't know, Jean, is this an evidence that we need to swear him in, if he's asking for a reduction? MS. RAWSON: If he's going to say anything, we should probably swear him in, but it's not an evidentiary hearing. Page 118 February 27, 2003 CHAIRWOMAN DUSEK: Well then, we will swear you in, just to be on the safe side. (Speaker was sworn.) CHAIRWOMAN DUSEK: You may proceed to tell us why you're here to ask for a reduction of the fines. MR. OKUR: I had a contractor told me in the beginning about the job could be done in 10 days. He couldn't finish the job until about 60 days. It took him -- he had an excuse, he couldn't find the trees. CHAIRWOMAN DUSEK: Excuse me, I'm just going to ask you to speak a little closer to the mic so we can hear you. MR. OKUR: The contractor couldn't finish the job on time. And I didn't have -- in the beginning I didn't have the good contractor to find to do the job. Look for a while, it took me a little while, three weeks, until I get him. And then after I get him, he took another two months to finish the job. CHAIRWOMAN DUSEK: So your reason for asking us for a reduction is contractor time frame -- MR. OKUR: Yes. CHAIRWOMAN DUSEK: -- getting the contractor? MR. OKUR: Yes. CHAIRWOMAN DUSEK: Is there anything else you want to tell us? MR. OKUR: No. CHAIRWOMAN DUSEK: And what are you asking? MR. OKUR: For the reduction for the fines. CHAIRWOMAN DUSEK: Are you asking for a reduction -- MR. OKUR: Yes. CHAIRWOMAN DUSEK: -- or a waiver? MR. OKUR: Waiver or reduction, whatever. CHAIRWOMAN DUSEK: You tell me what you're asking for. MR. OKUR: Waiver. Page 119 February 27, 2003 MS. HILTON: For the record, I handed out earlier, just a few minutes ago, the receipts, and the director said as long as he had his receipts showing the amounts that he did pay out, that we would have no objection to waiving the fine. MR. FLEGAL: What is the amount of the fine? $5,900. Now, is that just the fine or is that costs and MS. HILTON: MR. FLEGAL: everything else? MS. HILTON: $1,566.85. CHAIRWOMAN DUSEK: 5,000 -- MS. HILTON: $5,900. CHAIRWOMAN DUSEK: members? No, that's just the fine. The operational costs are And repeat the fine amount again, Any comments from the board MS. BARNETT: I only have one. We actually said that the fining would start effective November 25th? MS. HILTON: Yeah, it started November 25th, 2002, and he was able to achieve a compliance on January 23, 2003, which is 59 days. MS. BARNETT: But according to his information that he gave us, he didn't hire the contractor until the 24th; is that correct? MR. OKUR: Yes. CHAIRWOMAN DUSEK: You-- MR. OKUR: I did hire the contractor after three weeks. CHAIRWOMAN DUSEK: When did you first hire the contractor? According to what we have, it was November 24th? MR. OKUR: Yes. MS. BARNETT: That was the day after we were starting to impose fines? CHAIRWOMAN DUSEK: Actually, the day before. MS. BARNETT: The day before? Because I thought it said-- Page 120 February 27, 2003 MR. OKUR: Yeah, I got a problem -- MS. BARNETT: I thought it started on the 23rd. So it was the day after. MR. PONTE: Excuse me, sir, let me ask a question. Perhaps I didn't understand it, why did you wait so long to hire a contractor? MR. OKUR: I was looking, few people, to find is a better contractor. It took me a little while to hire -- I got a couple estimates from some of them there. Was very high. And they didn't -- I got one and he said he couldn't do the job to about a month later to get started. So finally I found this Mr. Graham (phonetic). He told me the job would be finish in 10 days, you know. So it took, you know, to find -- three weeks to get the trees. That's why it took long time to finish the job. MR. FLEGAL: Sir, I noticed in your documentation a form that you filled out. It does state that you took some time to find these and get bids and all that. Also, that your architect didn't like the plants or wanted some kind of different plants or -- MR. OKUR: Well, we couldn't find the plants, the one we was supposed to have put in. You know, oak trees? MR. FLEGAL: Right. MR. OKUR: You know, we couldn't find them. Then we go back to the architect, to the engineering (sic), he did find them, a contractor. MR. FLEGAL: I mean, I guess I'm having a hard time saying, well, there's not oak trees, but there's a lot of other stuff you could probably put in. But yet it took, you know, again, a long time, three weeks, to find a substitute for oak trees? Unfortunately I find that a little hard to take. MR. OKUR: Well, that's what he said. I mean, you know, it's up to contractor, you know. I was calling him every week and every day when he's going to finish the job, but -- MR. FLEGAL: I have a feeling he wasn't working for you. Page 121 February 27, 2003 MS. GODFREY: Mr. Flegal, may I -- and to the board, I live out in the Estates, and this is in Immokalee -- am I correct, sir, you live out in Immokalee? MR. OKUR: Yes. MS. GODFREY: It is very hard to get anybody to come out there and do any kind of work. And with all the new construction east of 951, or Collier Boulevard, they are just taking all the shrubbery and a lot of the oak trees are the main plantings along with your Royal Palms, and it's very hard, because I've been trying to find some decent oaks, and you just can't get them. And I would go along with the reduction of the fines, or just abate the fine, as the county said they would not have any problem with it, knowing the problems I'm having with trying to get some landscaping and small work being done. They don't even want to talk to you or call you back unless you've got a big huge job. Because right now in the Immokalee area and east of 951 you've got -- well, I should say west of 951, you've got all these new constructions going up, and along with low income housing, and they require these oaks be put in. So I can understand that he could not get -- I mean, an oak tree in a pot this size is $200. MS. BARNETT: I can appreciate him not being able to find the right plants and that being the reason why it's taken him a long time to get the process finished; however, I have a problem with the fact that it took him beyond our deadline to actually hire a contractor. MS. GODFREY: Hiring one and finding one. He couldn't find one is what he said. MS. BARNETT: No, he said he got bids from several, some were too high, some were too -- you know, that was a problem. I have a problem with the non-hiring prior to our deadline. MS. GODFREY: Yeah, I understand where you're coming from. But the county said they wouldn't have a problem with it, Page 122 February 27, 2003 neither do I. MR. LEFEBVRE: I have a couple of questions. CHAIRWOMAN DUSEK: Go ahead. MR. LEFEBVRE: If I can jump in. First of all, when was the work actually completed, once again? MR. OKUR: January 23rd. MR. LEFEBVRE: 23rd, okay. The other question I have I guess is towards the county. The executive summary I'm looking at here, the recommendation is different than what Shanelle just mentioned, if I'm not correct. MS. HILTON: That was from -- that's when we imposed the fines. MR. LEFEBVRE: Okay, so you imposed the fines November 25th through December 9th as a -- MS. HILTON: No, he was noncompliance at that time when we initially imposed, so he was not in compliance at that time. So that's why I only had those dates to work from, because this occurred-- his compliance came after we had imposed fines. MR. LEFEBVRE: Okay, all right. CHAIRWOMAN DUSEK: Anyone else from the board? I -- my personal feeling is that I think it is difficult to get contractors. And he did work within a timely manner; it wasn't the time frame we gave him. And I don't have a problem with waiving the fines, except for the operational costs. Is there a motion from the board? MS. BARNETT: I'm going to sit on the opposite side of the fence from you. CHAIRWOMAN DUSEK: That's all right. I think we need a motion. MS. BARNETT: Only because I can see maybe reducing the fines. I don't see totally eliminating them, because I will agree and I will concede that it is difficult to get a contractor, it is difficult to get Page 123 February 27, 2003 the plantings. However, to start after our deadline date bothers me. MR. PONTE: I concur with that. I would make a motion that the fine be reduced by half and that the payment of costs continue. MS. BARNETT: I'll second that. CHAIRWOMAN DUSEK: Is there any discussion? The motion is that the fines be reduced by half and that he pay all operational costs. And it's been seconded. All those in favor, signify by saying aye. MR. FLEGAL: Aye. CHAIRWOMAN DUSEK: Aye. MR. PONTE: Aye. MS. SAUNDERS: Aye. MR. LEFEBVRE: Aye. MS. BARNETT: Aye. CHAIRWOMAN DUSEK: Any opposed? (No response.) MS. GODFREY: Me, me. I oppose. One. CHAIRWOMAN DUSEK: Do you understand that we have reduced your fines by half the amount? MR. OKUR: Yes, I understand. CHAIRWOMAN DUSEK: But have asked that you pay the operational costs as well as half the fines. Do you understand? MR. OKUR: Yes, I understand. I mean, it's a little high, especially right now, I mean, to pay. It's very difficult for me. I mean, I try to get a contractor, you know, ahead of time. I talk to them. One was -- he said he will do it in 10 days, and then after that he said I cannot do it. I have to finish the other job in two weeks. So I call the other one to get an estimate. That's why it took me -- CHAIRWOMAN DUSEK: We empathize with you, but it has been the order of the board that that's what we will do. So it would be half of what was originally asked of you. And if you have any question about it, speak to Shanelle, you know, to find out the exact Page 124 February 27, 2003 amount. MS. RAWSON: 2,950. CHAIRWOMAN DUSEK: How much is it? MS. RAWSON: 2,950. MS. HILTON: And the operational costs are -- MS. RAWSON: $1,566.85. MS. HILTON: Yes. MR. OKUR: Can I make these payments? CHAIRWOMAN DUSEK: You can work out a payment -- MS. HILTON: You need to contact Janet Powers at code enforcement. CHAIRWOMAN DUSEK: Would you give that name to him in writing so that he'll know? She'll give you the name and you can work out payments. MR. OKUR: Thank you. CHAIRWOMAN DUSEK: Thank you. Okay, since we have no attorneys, maybe that means they've resolved it and we can get out of here. MR. FLEGAL: You want to do administrative stuff?. CHAIRWOMAN DUSEK: Why don't we do that while they're still out. We can go through that fairly quickly. Shanelle? MS. HILTON: Yes. CHAIRWOMAN DUSEK: Why don't we go ahead with the imposition of fines. MS. HILTON: Okay. CHAIRWOMAN DUSEK: That's new business, A. MS. HILTON: Okay, the first imposition of fine to be imposed is Board of County Commissioners versus Maxwell of Naples Corp., CEB No. 2002-027. And this, if you remember, was Jacob Nagar. The description was that they did not have their littoral plants planted on the lake, other than cattails, which did not suffice. And we Page 125 February 27, 2003 ordered him to come into compliance within 30 days from the date of the hearing, which was November 18th. He did not come into compliance until -- well, let me look and see. MR. LEFEBVRE: 23rd. MS. HILTON: Yes. And he had a fine of 150 a day. So our recommendation is that the staff requests that the board issue an imposition of fine lien in the amount of $5,250 at $150 per day from December 19, 2002, through January 23, 2003. And $1,335.65 for the operational costs incurred in the prosecution of this case. CHAIRWOMAN DUSEK: Do I hear a motion that -- MR. FLEGAL: I make a motion we accept staffs recommendation. MR. PONTE: Second the motion. CHAIRWOMAN DUSEK: All in favor, signify by saying aye. Any opposed? (No response.) CHAIRWOMAN DUSEK: Okay, next one? MS. HILTON: This is Board of County Commissioners versus Maxwell of Naples Corp., Case No. 2002-032. The violation is same as before. The hearing was held November 18th, and we gave him 30 days to come into compliance. And our recommendation is the staff requests that the board issue an imposition of fine lien in the amount of $5,250, at $150 per day from December 19, 2002, to January 23, 2003, and $1,335.65 for the operational costs incurred in the prosecution of this case. CHAIRWOMAN DUSEK: Do I hear a motion that we accept this imposition of fines? MR. FLEGAL: I'll make the motion we accept staffs recommendation to impose the fines. MR. LEFEBVRE: Second. MS. BARNETT: I'll second. Page 126 February 27, 2003 aye. CHAIRWOMAN DUSEK: All those in favor, signify by saying Any opposed? (No response.) CHAIRWOMAN DUSEK: All right, we're going to move right on. Request for foreclosure. Now this we don't have to vote on. We will listen to the presentation, but we don't need to vote on it. MS. HILTON: These are cases to be forwarded to the county attorney's office. MR. FLEGAL: Don't we vote on recommending to pass these to the county attorney? MS. RAWSON: You don't have to vote. You can do it by consensus. I'm sure there's a consensus that you recommend. They bring these before you, I understand, so that you always know what the stares of your cases are and when those are ready for foreclosure. Then you just simply recommend that they submit them to foreclosure. CHAIRWOMAN DUSEK: Do we need to vote on it? MS. RAWSON: You can do it by consensus. CHAIRWOMAN DUSEK: By consensus. And does the county attorney have to be here? MS. RAWSON: Well, she's usually here. Or one of them is. CHAIRWOMAN DUSEK: Well, should we wait until they come back in? MS. RAWSON: I think you -- you know, you can go ahead and act on it. When they come back in, we can tell them. CHAIRWOMAN DUSEK: What you did. MR. FLEGAL: We're just forwarding them. Whether they -- MS. RAWSON: Right. MR. FLEGAL: -- want to take action is their decision. CHAIRWOMAN DUSEK: All right. And is it all right with all of you on the board if we just do all three of these together? Page 127 February 27, 2003 MS. SAUNDERS: Yes. MR. FLEGAL: Yes. CHAIRWOMAN DUSEK: And do I have anyone who doesn't want these forwarded, would you speak now or forever hold your peace? Okay, then those will be forwarded to the county attorney's office and they will go forward with that. Affidavit of non-compliance. MS. HILTON: Yeah, that's Board of County Commissioners versus Jack and Elma Barrs, CEB No. 2002-008. Which also happens to be one that we are forwarding. CHAIRWOMAN DUSEK: And that's just a matter of information. MS. RAWSON: Correct. CHAIRWOMAN DUSEK: Okay, any reports? We're moving right along here. MS. HILTON: We skipped over the affidavits of compliance. CHAIRWOMAN DUSEK: I thought we just did that. MS. SAUNDERS: No, that was non-compliance. MR. FLEGAL: That was non. CHAIRWOMAN DUSEK: I'm sorry. MS. HILTON: That's okay. CHAIRWOMAN DUSEK: Affidavit of non-compliance, I already moved that over. MS. HILTON: We have three affidavits of compliance on the agenda: Board of County Commissioners versus Maxwell of Naples Corp., CEB No. 2002-027; Board of County Commissioners versus Maxwell of Naples Corp., 2002-032; and Board of County Commissioners versus Usulu Okur, CEB No. 2002-025. Now, Jean, do I need to put on the record the foreclosure information, the case title and the -- no? MS. RAWSON: You don't need to put it on the record. I think usually they just pass it out for information. Page 128 February 27, 2003 CHAIRWOMAN DUSEK: Okay. And now, did I jump ahead and we did the non-compliance first? Now, any reports? MS. HILTON: No. CHAIRWOMAN DUSEK: No reports. All right, comments. And I think Mr. Ponte has a comment he would like to make, if he remembers what it is. If not, I will tell you. MR. PONTE: Why don't you tell me? CHAIRWOMAN DUSEK: And that is, we have these huge packages that are given to us before we arrive. It's a lot to read. And if it can be at all possible, rather than giving us more information once we arrive, we'd like to see all of it done ahead of time. MS. HILTON: I usually like to work that way. CHAIRWOMAN DUSEK: So wherever possible. Because with a case like we had today and then giving us more information to try to read before we even hear it, it really doesn't give us a chance to digest it. MS. RAWSON: And we want to encourage all of the parties and their attorneys to bring enough copies in advance so that the court reporter, or reporters, as the case may be, has a packet, too. CHAIRWOMAN DUSEK: Right. And I have a comment. The next meeting, is that not when we vote on the bylaws? MS. HILTON: Yes. MS. RAWSON: Oh, the March meeting is when we vote on the officer. It's our annual meeting for the election of officers. And -- CHAIRWOMAN DUSEK: And review the bylaws? MS. RAWSON: Right. CHAIRWOMAN DUSEK: So we will get those ahead of time, the bylaws? MS. RAWSON: Shanelle, would you put the bylaws in their packet? Page 129 February 27, 2003 MS. HILTON: Yes. MS. RAWSON: And everybody, when you get your packet, try to look them over, and if you have any changes or suggestions or-- bring it up at the next meeting. MR. PONTE: Didn't we just do that? MR. FLEGAL: It was about what, two years ago? CHAIRWOMAN DUSEK: No, we did it last -- MS. RAWSON: We did it last year. MR. FLEGAL: Last year? Okay. MS. RAWSON: Yes. CHAIRWOMAN DUSEK: If there are any changes. There may not be any at all. That's just if you do have any. MR. FLEGAL: Does everyone have a copy? Let's ask that question. MS. RAWSON: Probably -- I don't know whether the new members do. CHAIRWOMAN DUSEK: Well, that's why I'm asking that it be put in the package. MR. FLEGAL: What I'm wondering is you just -- you asked Shanelle to do it when we get our packet, which is three or four days before the meeting. Maybe we should get those sooner, because -- MS. HILTON: I will forward those to you next week. MR. FLEGAL: Thank you. That gives us a little more time, because I think they're a little more involved, whether any of us would like to try and change something or-- CHAIRWOMAN DUSEK: All right. And any other comments from anyone? MR. PONTE: Yes, just one. CHAIRWOMAN DUSEK: Okay. MR. PONTE: My colleague here has just pointed out a rather interesting thing on this defense package. Down at the very -- on the Close-Up Creatures cases, there's a little footnote at the bottom that I Page 130 February 27, 2003 didn't read. And he's absolutely right, I hadn't read it. Could we do something that would just say hey, defense folks, this closes not when you come in here and hand us all of this to read and twice as much more. CHAIRWOMAN DUSEK: I see. MR. PONTE: I don't know how we do that, but -- CHAIRWOMAN DUSEK: That's giving them the right to bring us more material. MR. FLEGAL: Yeah, and they even under-- I mean, in court you do that, you present evidence as you go along. And I don't think we would be -- I know we operate a little leniently, but I think we need to give them every opportunity. What we don't want is piles of paper, but one or two sheets is fine. MR. PONTE: That's okay. But when we start getting piled up, we have to, or should, consider doing a recess so we can read it. MR. FLEGAL: I don't disagree with that. CHAIRWOMAN DUSEK: Well, in the future we will do that. MR. PONTE: You can't read it in progress. CHAIRWOMAN DUSEK: Right. Okay. MR. FLEGAL: We got one side back. CHAIRWOMAN DUSEK: Are the attorneys ready? Because we've conducted all of our business and now we're just waiting for Case No. 009. MS. JONES: We actually need a break. We need food, sustenance, and I'm sure you guys do as well. And there's a few issues that we're kind of on the fence with right now that I need to talk to my client with, and I can't do it in the hallway, you know? And so we need, you know, maybe 45 minutes. CHAIRWOMAN DUSEK: Jennifer, I'm going to ask you a question. How long do you think this next case will take? The defense has asked for a break for food. MS. BELPEDIO: I think that will depend on the decision that Page 131 February 27, 2003 the Smiths make upon counsel with their attorney. So I can't really tell you right now. CHAIRWOMAN DUSEK: The defense has asked for a break so that they can discuss some things with -- MS. BELPEDIO: And we don't object to that. We're in agreement. CHAIRWOMAN DUSEK: All right, this would be a break for -- well, let's see, how do we do this, Jean? Do we vote on whether we're going to give a break or do we just -- I mean -- MS. RAWSON: Well, yes. And then for how long? I don't know what everybody's schedules are like. I'm supposed to be in court at 3:00, but -- CHAIRWOMAN DUSEK: But you have to be here. And I personally would like to keep going until we finish, because people do have schedules and appointments to make. But I want to be fair to everyone, so I guess I'm going to ask the board what they want to do. MR. PONTE: I think a little hunger will move things along a little quickly, so I concur with you. MR. FLEGAL: I concur with the Chair, and my only comment is since these cases were intertwined, I think both sides said that in the beginning, the determination has been made by us that certain things don't apply. So I don't see where this is going to be long drawn-out. MR. WHITE: And Mr. Flegal, we're certainly of the opinion that if the respondents have an opportunity to consider this in a rational way, that they're likely to reach the same conclusion. And that's why I think in the long run we'd be done sooner rather than later. Because my sense of this is that we're close to a mutual understanding of how to proceed with the next case. It's going to be very abbreviated in its presentation. MS. SAUNDERS: I really do feel that we need -- if defense counsel needs a little bit more time -- Page 132 February 27, 2003 MS. JONES: I'm used to eating like once every three hours, and I've got the worst headache from not having -- I've had like an English muffin at 6:00 this morning. MR. FLEGAL: Let me ask the Chair if I can give a suggestion. You have some who want time and some who don't, and there's other schedules to be met and it's almost 10 to 2:00. And if people have 3:00 commitments, I understand that, and we have to honor everything we can, at least. Why don't we take a 15-minute break, everybody's back, and we move ahead. And if somebody's not ready MS. JONES: That's acceptable. CHAIRWOMAN DUSEK: Well, let me ask the board their feeling. We're the ones who are going to make the decision. MR. FLEGAL: Yeah. CHAIRWOMAN DUSEK: So -- well, let's just say if we take -- first of all, let's propose a 15-minute break. And I'm making a motion just to see -- move this along. So I make a motion that we have a 15-minute break. Is there a second? MR. LEFEBVRE: Second. CHAIRWOMAN DUSEK: All those in favor, say aye. Any opposed? (No response.) CHAIRWOMAN DUSEK: A 15-minute break. MR. PONTE: 2:05. CHAIRWOMAN DUSEK: We will start at 2:05. (Recess.) CHAIRWOMAN DUSEK: Ms. Jones, is Mr. Smith coming back? MS. JONES: Yeah, they're actually at the property appraiser's office right now, trying to figure out what was going on with their classification. They should be back momentarily. MR. PONTE: How long are we expected to wait for them to get Page 133 February 27, 2003 back -- MS. JONES: MR. PONTE: appraiser's office? MS. JONES: forward. MR. PONTE: Let's do it. CHAIRWOMAN DUSEK: back to order. And Shanelle? MS. is present MS. MS. MR. MS. I think that the -- pardon me? How long is it (sic) expected to be at the property I think that for purposes of right now, we can go All right, we'll bring the meeting HILTON: I would like to ask at this time if the respondent in the courtroom. JONES: No, he's not. HILTON: But he will be back, so -- WHITE: However, he is represented by counsel. HILTON: Yes. We have previously provided the board and the respondent with a packet of information we would like entered as Exhibit A at this time. CHAIRWOMAN DUSEK: Do I hear a motion that we accept the county's Exhibit A? MS. SAUNDERS: So moved. MR. WHITE: We'd like to add one piece of information as part of the packet. CHAIRWOMAN DUSEK: Oh, please add it now. Anything that you have, add to it. And can you please just tell us what that is? MR. WHITE: Yes, Madam Chair. This is part of the conditional use application for CEB 2003-AR3725, submitted by respondents, as I've indicated, as part of their conditional use. And it's being submitted for the purpose of showing that in detail number one, the 40 by 60 storage building is labeled as restrooms. And once we've gone beyond the evidence admissibility issue, I have some further housekeeping matters. Page 134 February 27, 2003 MS. JONES: Unless Mr. White would like to stipulate to this, I've been out there, I can provide testimony to the board right now. I've seen that building, the 40 by 60 building. It does have restrooms in it, but the -- but it's -- I would say 1/16th of that area is devoted to the restrooms. CHAIRWOMAN DUSEK: That will all be brought up by both sides, I'm sure. MS. JONES: MR. WHITE: Madam Chair. Well, actually, it probably won't be. That's the next matter that I'd like to address, CHAIRWOMAN DUSEK: Pardon me? MR. WHITE: The next matter I'd like to address, if I may. CHAIRWOMAN DUSEK: And Shanelle? MR. WHITE: I'd like to have the rest of the reading of the information by Ms. Hilton. MS. HILTON: Okay, did we -- I didn't hear an approval. CHAIRWOMAN DUSEK: Oh, that's right, we have -- do I hear a motion that we accept the evidence, Exhibit A, from the county? MR. FLEGAL: So moved. MR. PONTE: So moved. CHAIRWOMAN DUSEK: Second? MS. GODFREY: Second. CHAIRWOMAN DUSEK: All right, there's been a motion and a second. All in favor, signify by saying aye. Any opposed? (No response.) CHAIRWOMAN DUSEK: All right, Shanelle, you may continue. MS. HILTON: Our second case is Board of County Commissioners versus Close-Up Creatures, Inc., doing business as Ngala, and Donovan Smith as its registered agent and director, CEB No. 2003-009. Page 135 February 27, 2003 The alleged violation is of section 1.5.6, 2.1.11, 2.1.15, paragraph one, 2.2.2.1, and 2.7.6, paragraph one, five and six of Ordinance 91-102, as amended, of the Collier County Land Development Code. The description of the violation: The existence of a 40 by 60 aluminum storage structure, with related electric and plumbing improvements, on-site storage on an unimproved property in an agricultural district, and also the existence of a 40 by 80 tent with electric, a 40 diameter tent and a 40 diameter tent. No Collier County planning review and approval, no building permits, inspections or certificate of occupancy for all same improvements. Location where violation exists: 2755 Inez Road Southwest, Naples, Florida, more particularly described as Folio No. 0335000005. Name and address of owner in charge of location where violation exists: Close-Up Creatures, Inc., doing business as Ngala, care of Donovan Smith as its registered agent and director, 2755 Inez Road, Naples, Florida, 34117. Date violation first observed: July 15, 2002. Date owner given notice of violation: July 18, 2002. Date on which violation was to be corrected: September 22nd, 2002. Date of reinspection: Was February 10th, 2003. Result of reinspection: The violation remains. At this time, I would like to turn the case over to the code investigator, Dennis Mazzone, to present the CEB case to the board. CHAIRWOMAN DUSEK: Why don't we -- do we have to swear in Mr. Smith again, Jean -- MS. RAWSON: Yes. CHAIRWOMAN DUSEK: -- since it's a new case? MS. RAWSON: I think we do. MR. WHITE: Madam Chair, I'd like to -- before Mr. Mazzone Page 136 February 27, 2003 begins, we promised you we'd try to have this abbreviated to the maximum extent possible. And my discussion with opposing counsel, I think there's two matters that we need to get into the record right away. The first of them is with respect to the list of violations that we'd like to proceed on today, the entirety of them we're asking to have continued, with the exception of that which pertains to the actual permits, which is section no. 2.7.6, and the sub-paragraphs therein. As to all of the other sections, we're asking to have that continued to next month, based upon what at this time is the second housekeeping matter. Hopefully it will become obvious why we're looking to continue all of the use portions of this case. CHAIRWOMAN DUSEK: All right. So the only violation is 2.7.6, paragraph one? MR. WHITE: Whatever the relevant sub-paragraphs are, yes. CHAIRWOMAN DUSEK: And five and six, okay. MR. WHITE: Right. We're-- CHAIRWOMAN DUSEK: And what is that violation? MR. WHITE: Those are the building permit related violation or violations, depending upon how you count the regulation. As to the use portions, which are the rest of the sections in the LDC, what we're asking for at this time are subpoena -- or a subpoena to Close-Up Creatures with respect to a certain number of matters. We've had discussion with opposing counsel about some of these and have agreement on them, with the exception I think of perhaps one or two. We'd originally wanted to have subpoenas for the purpose of being able to establish the uses that are actually ongoing, based upon the types of contracts and income that were being reported to the federal government in other types of financial matters. And for that reason, and I don't think we're in complete agreement about this, but what we had asked for -- or are asking you Page 13 7 February 27, 2003 for are corporate financial statements for Close-up Creatures or Ngala for calendar years 1999, 2000, 2001, 2002. Essentially just a simple balance sheet. The second thing is we had originally contemplated asking for complete federal returns for income tax purposes for the tax years '99, 2000, 2001 and 2002, if those -- that most recent return was going to be filed before March 17th of this year. We're willing to reduce that to merely a request for an affidavit from Mr. Smith as the chief executive officer of Close-Up Creatures, with respect to whether or not that business entity had included any farm income as part of its income tax return. There's a specific form that is to be filled out, if that is indeed the case. And if we were to have an affidavit from him, indicating that the business entity had or had not, in the form of an affidavit, we would accept that as being sufficient. The third thing, and I don't think there's any disagreement about this, is any and all business contracts, canceled checks or the like of Close-Up Creatures or N gala which evidence the services or goods that are being provided by or obtained by Close-up Creatures or Ngala from January 1st, 2000 through March 17th, 2003. We had previously considered asking for a list of customers' names and addresses so we could determine who had been receiving goods or providing them to Close-Up, but we're willing to withdraw that as part of our request for subpoenas from the board. The specific authority for your granting of these, if you need me to go into this-- CHAIRWOMAN DUSEK: No. MR. WHITE: --under 162.08. So at this time, I think we have essentially three things that we're asking for a subpoena for, and that would be in furtherance of those violations that we've asked today to have be continued. MS. JONES: May I respond? CHAIRWOMAN DUSEK: Jean? Page 138 February 27, 2003 MS. RAWSON: Yes. CHAIRWOMAN DUSEK: Question. We haven't heard from the county except for this part that they wanted postponed some of the violations for another time and also ask for subpoenas. MS. RAWSON: Right. They are basically asking for a continuance of, as I understand it, of everything except 2.7.6, paragraphs one, five and six. CHAIRWOMAN DUSEK: Yes. MS. RAWSON: And they are also asking that you grant the request for subpoenas, which you have the authority to do. CHAIRWOMAN DUSEK: All right. And we do this before we hear from anyone? MS. RAWSON: I would. I would start with the motion to continue. CHAIRWOMAN DUSEK: Okay. Do we need to hear from the -- excuse me, Cliff, but do we need to hear from the defense in reference to this? MS. RAWSON: Yes, to find out if we have an objection. CHAIRWOMAN DUSEK: Okay. MS. JONES: We don't object to the motion to continue, but we do object to the subpoena. If you'd like me to state my objection now, let me know. I don't know if you wanted to vote on the motion to continue first and then-- CHAIRWOMAN DUSEK: Why don't we do that first and keep things simple. And this would be a motion to continue with all of the violations of the sections that you see at the beginning of your statement of violation, except for 2.7.6. MR. FLEGAL: May I ask the Chair a question? CHAIRWOMAN DUSEK: Yes. MR. FLEGAL: First of all, I don't understand what their contracts, business records, income tax returns or anything has to do with this. And that's why they're asking for the continuance, because Page 139 February 27, 2003 these items they want continued is permitted uses, no building or structure shall be erected, what does that have to do with their finances? That doesn't wash for me. Zoning, no building or structure shall be used on -- erected on something that's not zoned correctly, what's that got to do with their finances? Permitted uses, again, what's that got to do with their finances? I'm having a hard time asking for all these records and continuing a case that I can find no reason that how much money they make, who they have contracts with has any bearing on whether they have a permit to build a building. Sorry, doesn't -- it's apples and oranges, and we're not here for oranges, we're here for apples. MS. SAUNDERS: I actually agree with Cliff. CHAIRWOMAN DUSEK: Okay. You need to put it into a motion and-- MR. FLEGAL: Well, I see actually no reason for a continuance, based on what the county has said, so I would make a motion we deny the continuance. MR. PONTE: I'll second that motion. CHAIRWOMAN DUSEK: Is there any discussion? All in favor of denying the continuance motion -- MR. WHITE: May I speak, please? CHAIRWOMAN DUSEK: -- signify by saying aye. Any opposed? (No response.) MR. FLEGAL: Continue. CHAIRWOMAN DUSEK: I'm sorry, the motion has been denied. MR. WHITE: At this point in time, I object for the record, because we are unprepared, because we do not have sufficient evidence to move forward, because we need the information that is part of the subpoena. And if you're going to hamstring our case, I would certainly like to know why. Page 140 February 27, 2003 CHAIRWOMAN DUSEK: I don't understand why you're not prepared for this next case. MR. WHITE: Because we have not received the information that was asked for as part of the conditional use application that sets forth their activities on-site. We have not been able to do an on-site investigation. It was contemplated that that could have occurred as part of conditional use, application review; however, absent that information and absent some of the facts that would flow from the requested subpoena, I can't see how it is that you expect us to not be able to prosecute a case in the way that we believe is in the best interest of the citizens of this county. MR. PONTE: Would you explain to us, please, answer some of Mr. Flegal's questions: What does all of the financial information that you're requesting have to do with permitting? MR. WHITE: I think it's fundamental from the way in which we asked you to continue certain alleged violations and hear others today, that we're prepared to move forward on the permitting. We'd asked you to have this information with respect to the uses. And apparently I wasn't clear enough. I apologize for that. So as to the permitting, I don't know how else to answer it. We're prepared to go forward and present you a very abbreviated case, based upon stipulations to facts where we really don't need to have any more evidence put into the record. We're ready to get to it and let you make a determination as to the outcome. But as to uses, if you had given us an opportunity to comment with respect to why, without jumping to the motion to continue before a discussion of the subpoena, perhaps it might have been clearer to you what our thinking was. That's all I'm trying to suggest is necessary. CHAIRWOMAN DUSEK: I guess I'm not quite understanding. The first case was on conditional use. MR. WHITE: No, it was not, it was on clearing. It was on Page 141 February 27, 2003 clearing and EIS. CHAIRWOMAN DUSEK: We asked for them to get a conditional use permit. MR. WHITE: Yes, that was a precondition to them being able to abate and obtain the permits for the clearance. Because the use has to be appropriate before the permits can be requested. CHAIRWOMAN DUSEK: That's right. And that's what we asked them to do as a -- that was our order of the board. So I'm not -- I guess I'm a little confused about why the financials would have anything to do, just as Cliff has said. MR. WHITE: Well, let's assume for the sake of argument, Madam Chair, that this Case No. 008 is appealed and the county does not prevail. Then we are left without anything that is any assurance that we're actually going to have these folks go forward with respect to either the conditional use or the actual permits that are needed for the structures that have been erected. That's the simple unpredictable future. And the reason for the subpoenas simply with respect to the uses was because this isn't so much directed towards financial information as it is to the proposition that there is farm income. And that is why we modified it from the broad request about federal income taxes across the board to just an affidavit about whether farm income was declared in any of those tax years. Because if it was not, I think it's a fundamental simple conclusion that there isn't a farm operation, no matter what. And that pertains to uses. And that's the portion of the case we asked to have continued. Similarly, with respect to the business contracts, checks and such, we're looking to see what services, i.e., activities or goods are actually being provided by this corporation to their client base, so that we can make a reasonably well-informed determination about exactly what it is that's occurring on-site. Because we do not have the ability to go on-site and conduct open inspections at any time. We Page 142 February 27, 2003 have no other real means of obtaining that evidence. And certainly, I believe that it hamstrings our case to be able to establish these uses when we can't get information from the respondents about what it is that they're actually intending and have been doing. CHAIRWOMAN DUSEK: When the appraiser makes his decision on use, I don't know if any of these records will be applicable. MR. WHITE: They certainly will. We of course have no assurance that that application is going to be considered this year. It may be determined that it's not sufficient and there may not be a willingness on the part of Close-Up Creatures to provide the requested information. We're attempting to get that information for the purposes of this case with respect to the uses and hopefully with respect to the conditional use case. It was something that had been discussed in pre-applications with the applicant, we thought was forthcoming, but was certainly not provided as part of the information we've received and reviewed so far for the conditional use. We're left in a position where we're compelled to ask you for the things that we need so that we can protect the citizens of this county and make sure that the law is upheld. CHAIRWOMAN DUSEK: Cliff, I think you wanted to say something? MR. FLEGAL: Lots of words. Yes, ma'am. Unfortunately only two avenues open. The county cited this person -- this operation for various things. This morning they specifically said to keep these things separated. MR. WHITE: Yes, sir. MR. FLEGAL: Now -- I don't remember asking anybody a question. Now the county's telling us they can't continue until they get a Page 143 February 27, 2003 bunch of financial information, based on conditional use, which I don't see any citations here for conditional use, so that's -- has absolutely no bearing. They have processed before us many cases for the exact same sections and never asked for all this financial information. So I'm real hard-pressed why this particular case all of a sudden the county is saying gee, I know we cited them, but we can't move forward because we don't have all this financial information, contracts, and blah, blah. That's, I'm sorry, bunk. You either cited these people correctly if you did, let's proceed, if you didn't, withdraw them, and this case is done. MR. WHITE: Unfortunately-- MS. SAUNDERS: IfI may add one other thing on that? We've always said when we've sat up here that we only base our decisions on the information that is presented in front of us at the time we hear the case, and we've said to a number of defendants, we're sorry you didn't bring the information, but if you didn't, that's too bad. We do have the defendant here and his attorney. I have no problem with them being asked questions, but I don't believe we should hold or delay this case so that they can get subpoenas for something that I also don't see the relevance of. MS. GODFREY: May I ask a question? MR. WHITE: Well, I would ask respectfully that you allow us to at least prosecute the case in the way that we think gives us the best opportunity to prevail. We're telling you as the board that -- we're asking for the opportunity to have some additional information. And I have no opportunity to ask for those subpoenas other than at this hearing. So it's fundamental that I'm going to ask for the subpoenas with the belief and understanding that they're needed in order to best prosecute the case. I guess I have to agree with Mr. Flegal that what we're left with is we ought just withdraw it and act as if there were no violations. Page 144 February 27, 2003 Because there's no other opportunity that we're ever going to have to ask you for those subpoenas to get the information -- MS. SAUNDERS: You don't feel -- MR. WHITE: -- we think is necessary. MS. SAUNDERS: -- that the client will -- that Mr. Smith will testify truthfully and factually? He is sworn in to testify, he is here. We always take people's word, if they're sworn in-- MR. WHITE: Ma'am, respectfully -- MS. SAUNDERS: -- unless we have conflicting opinions. MR. WHITE: -- we've asked for that information as part of the conditional use application, and it has not been provided. MR. FLEGAL: I'm sorry, no one cited him for failure to have a conditional use permit. MR. WHITE: Mr. Flegal, that's exactly the nature of the violations that have been cited, are for failure to have the appropriate use on the property. MR. FLEGAL: Fine. What we do here on this board and have done for the five years I've been here, when you bring these before us, since he doesn't have a permit, if you can prove to me he doesn't have a permit for this, we'll -- MR. WHITE: I'm not talking -- MR. FLEGAL: -- order him to get one. MR. WHITE: -- about permits, I'm talking about uses. We're more than willing to get to the part of the case about uses and handle it very expeditiously. MS. GODFREY: May I ask a question, sir? MR. WHITE: Yes, ma'am, please. MS. GODFREY: Do you need this information to verify that he's using it as an agricultural, is that the reason for the financial record, to -- MR. WHITE: That's the request for the affidavit portion. MS. GODFREY: -- to show that he is using it, like he said, is Page 145 February 27, 2003 using it for agricultural, farm or whatever -- MR. WHITE: Or not, yes. MS. GODFREY: -- that you need these records to verify what he's saying he's using this -- MR. WHITE: Yes, ma'am, that's absolutely the case. And it's a little broader with respect to some of the other information we're looking for. But, you know, at a minimum we absolutely need to have that kind of information. CHAIRWOMAN DUSEK: The way I read the description of the violation, unless I'm just overlooking something, I don't see anything about uses. I see that there's been a violation in getting building permits, inspections and planning review for a certificate of occupancy, but I don't see anything for permitted uses. MR. WHITE: If you look under 1.5.6. CHAIRWOMAN DUSEK: I'm looking in the description of the violations. MR. WHITE: And one of the things that's cited on the NOV are the various sections of the LDC. MR. FLEGAL: I'm reading 1.5.6. Show me the word use in there. MR. WHITE: MR. PONTE: No building or structure shall be used in -- Shall be erected. CHAIRWOMAN DUSEK: Shall be erected. MR. WHITE: -- in whole or part -- THE COURT REPORTER: Excuse me, one at a time, please. MR. WHITE: I'm only reading the specific portions that are pertinent. No building or structure shall be used -- feel free to have me read the rest of the words, if you like, but-- CHAIRWOMAN DUSEK: Mr. White? MR. WHITE: Yes, ma'am. CHAIRWOMAN DUSEK: Allow me to read that, please. Page 146 February 27, 2003 MR. WHITE: Sure, sure. CHAIRWOMAN DUSEK: No building or structure or part thereof shall be erected, altered or used or land or water used, in whole or in part, other than specifically permitted by the provisions of each zoning district in this code, unless otherwise provided. MR. WHITE: And the zoning district here, as we know from the last case, is agricultural. MR. FLEGAL: Okay, Mr. White, here's my problem. MR. WHITE: Yes, sir. MR. FLEGAL: Show me where I'm wrong. He's got a structure and he's using it. He can stand up here and tell us he's using it. Why do you need to know how much money he's collecting, who he issued contracts to and all this other? If he says he's using it, he's using it, and he's in violation because he doesn't have a permit. Let's move on with it. MR. WHITE: No, it isn't a permit, sir, except to the extent that we're talking about a conditional use permit. So it's not a traditional building permit, if you will, it's more of a zoning use approval. MR. FLEGAL: So if he says he's using it and he doesn't have the approval, we tell him to get it. What's all this money got to do with it? That's where you're losing me. I'm sorry. You -- MR. WHITE: One of the fundamental-- MR. FLEGAL: -- want his tax records and everything else. MR. WHITE: One of the fundamental aspects of the defense that I'm thinking we're likely to hear, and I know how you ruled on it in the last case, but you've got to remember that we're not looking just to have your findings of violation or not, we're looking down the road towards any potential appeals and giving our case the best possible record. Because that's where this is going. Because this is a test case, and we want to make sure that we're giving the courts, as well as this body, all of the necessary information to make the best possible determination. Not the quickest but the best. Page 147 February 27, 2003 And I'm telling you that I believe that this is information that is vital to the county. Now, we can talk about whether certain things here are something that we ought not have as part of a subpoena or not, and certainly I expected that discussion, based upon our off-record conversations with opposing counsel. But certainly I would like to have at least been given the opportunity to make the presentation. CHAIRWOMAN DUSEK: I want to ask Ms. Rawson a question. MS. RAWSON: Yes. CHAIRWOMAN DUSEK: The county presented this case, and they cited certain zoning sections. If they needed the subpoenas for today, could they have asked for those subpoenas prior to this hearing? MS. RAWSON: At the last meeting, yes. CHAIRWOMAN DUSEK: Okay. MR. WHITE: That presupposes that at that point in time we had decided to actually try these cases, which we had not. And what I'm suggesting to you is that this is the first available opportunity. You meet on a monthly basis for the most part, and we've had no prior opportunity to come to you, once a determination was made, on how to prosecute the case. CHAIRWOMAN DUSEK: I have another question. Would they have needed our approval at the last meeting in order to get the subpoenas? MS. RAWSON: I think you have to give them the approval for the subpoenas. I don't -- if I might make a suggestion, you have had a vote not to piecemeal this case. You probably have the right to have a vote as to whether or not to continue the entire thing, because that's a different vote from what -- the vote you just had. And if you decided to do that, then you could entertain the idea of a subpoena. Page 148 February 27, 2003 Basically it's not up to you what he subpoenas. You only give him the authority to issue the subpoena. And if he issues the subpoena and the respondent thinks that that's a violation, that they don't have to give him all that stuff, then they need to file a protective order, saying why they won't produce those documents. I don't think you need to make that decision as to what documents should or should not be produced, because you haven't heard the case yet. All you do is give them the authority to issue a subpoena. MS. SAUNDERS: So our options are either to continue the case -- MS. RAWSON: To continue the entire case, because you've already voted not to piecemeal it, or to hear the whole thing. MS. SAUNDERS: Okay, I move that we hear it. I mean, my opinion is that we should hear it. I'm sorry. MS. BARNETT: I've got a question, only because I think what the county is trying to do is protect the county in the fact that they're feeling that there's going to be further litigation in regards to this case. And I don't know if I'm overstepping, so please correct me. MR. FLEGAL: That's okay. Speak up. We all speak up. MS. BARNETT: And I think what they're asking for is us to aid them in helping present this case in a way that it would be defendable in a future case. MR. FLEGAL: That's not our purpose. MS. BARNETT: I realize that's probably not our purpose. It's setting a precedent, and I think they're trying to protect the precedent because it is a -- I want to say -- CHAIRWOMAN DUSEK: Well, it's an original case. MS. BARNETT: An original case and it's a groundbreaking decision, and they don't want to not be able to enter something into -- able to protect the county. I'm trying to say -- CHAIRWOMAN DUSEK: What we need to do is we can't Page 149 February 27, 2003 make a judgment for the future. MS. BARNETT: Right. CHAIRWOMAN DUSEK: So we go with what has been presented to us today. MS. BARNETT: Well, in this short-- CHAIRWOMAN DUSEK: And that's how we make our determinations. MS. BARNETT: In regards to that, then in the short time I've been on this board, we've never had to have financials in order to satisfy these particular type of ordinances. CHAIRWOMAN DUSEK: Let me ask the board, is there anyone on this board who objects to continuing this case? MS. SAUNDERS: I do. CHAIRWOMAN DUSEK: All right, then I think we'll take a vote. Unless Rhona is the only one. Is there -- should I do a formal vote, Jean? I think so. MS. RAWSON: Yeah, first there needs to be another motion made. CHAIRWOMAN DUSEK: Okay. MR. PONTE: I think Jean outlined a very sensible road to follow here in that it covers many bases and enables the county to present the case that it wants to present. And I think that the suggestion that she made to us should be given very serious consideration. If that were a part of Rhona's motion, I would second that. CHAIRWOMAN DUSEK: I didn't hear a motion. MR. PONTE: Sorry. MS. SAUNDERS: Go ahead and say it. CHAIRWOMAN DUSEK: So if you want to make a motion one way or the other-- MS. BARNETT: All right, I'll step out. I make a motion that we continue this whole case to next month and we give the county Page 150 February 27, 2003 the right to subpoena what they need to subpoena in order to present the case. MR. PONTE: I'll second that-- MS. JONES: May I be heard? With all due respect, the problem that I think maybe we're having and the county's having, we have 30 days to appeal any adverse decision by law to the circuit court. The same issues that we argued to you before are the same issues that hopefully we won't have to argue today, but we have agreed to stipulate to. If you postpone this hearing for 30 more days, we're going to have to file two appeals. MS. BARNETT: Uh-huh, two separate cases. MS. JONES: Well, I mean, we could move to consolidate the appeals, but I mean, we'd like -- I mean, the evidence is the same, everything's the same. If you want to move it, that's fine, I mean, we can deal with it, you know, whichever way we deem fit. But it just -- I mean, I -- with respect to the use issues, we have no objection to continuing that. We do to the subpoena, and obviously that's a prerequisite to the continuation, so I guess it's kind of funky, but -- CHAIRWOMAN DUSEK: Well, we've already voted against continuing those particular items, so now we have a motion before US. MR. FLEGAL: Can I ask Jean a question first? MS. RAWSON: Yes. CHAIRWOMAN DUSEK: Yes. MR. FLEGAL: Jean, we've been told by the county why they want a subpoena, okay, for all this financial information. In the ordinance that gives us our power, and it talks about subpoenas, it says a subpoena for production of documentary evidence may be also issued to command a person to direct, produce books, papers, documents or tangible items. Page 151 February 27, 2003 My problem is never before for these same cited paragraphs has this ever been done, and the county has just moved right along and we've made decisions. Now all of a sudden we're being told that the county can't move along because they want, you know, four years of financial records and IRS records. I mean, this is -- I'm sorry, this is way out of line that I can legitimately understand saying you either have a permit for something or you don't have a permit for something, you're using your building for something or you're not using your building for something. I'm sorry, it just -- I know I'm not an attorney, but I have a real hard problem putting those together based on all the prosecutions that I have seen since I've been here. MS. RAWSON: In the past when people have asked you for subpoenas, I'm not sure that you always knew what the subpoena was going to be for. MR. FLEGAL: Since I've been here, Jean, there's only been one time and that was for people, because they did tell us why they wanted them. And like I said, I've been here five years, so -- MS. RAWSON: We have subpoenaed people. In the last-- I can't remember how long I've been involved with this board -- let's say in the last 10 years, we have issued or given other parties the right to subpoena documents, but I don't believe we ever knew what documents they were going to subpoena, because that wasn't -- I mean, we were just giving them the right to issue a subpoena. And then when the subpoenas go out, if the people don't want to produce them, because in the practice of law, lots of times people subpoena documents that for whatever reason you're going to object to. And so in a court of law what you do is you file a motion for protective order saying why that evidence should not be had, which is another problem. But it's not up to you to do anything other than say okay, you can have a subpoena. CHAIRWOMAN DUSEK: I'm feeling the same feelings that Page 152 February 27, 2003 Cliff has, and it's because of the type of violation. I don't -- I, as Cliff has explained, do not understand the correlation. We've had violations brought before us for not getting a building permit, and I've never heard of any records having to be brought forward. So I'm feeling the same -- MR. FLEGAL: Jean, I guess my problem is, in issuing the subpoena for documentary evidence, I can't see this board sitting here in reviewing -- since it's documentary evidence, that's what the ordinance says -- four years of his financial statements and his IRS statements and all his contracts is going to make me make a better decision did he get a permit or didn't he. Real easy question. I look at him, say did you get a permit? If he says no, you've answered that question, you're guilty. Real easy. Financials don't -- aren't going to make me understand that any better, I'm sorry. CHAIRWOMAN DUSEK: I have another-- MS. RAWSON: You have the right not to accept any evidence that's not relevant. You may end up having to be the decision-maker as to whether or not the subpoenaed documents have to be produced. CHAIRWOMAN DUSEK: If the subpoena -- if we deny this and it's appealed, can new evidence be brought into the appeal? MS. RAWSON: No. Appeals are always of record. MS. JONES: With all due respect, given the board's inclination today, we'd just like to go ahead and go forward with the violations. CHAIRWOMAN DUSEK: There is a motion on the floor that we continue this case till our next meeting. Do I hear a second? MR. FLEGAL: And issue subpoenas. CHAIRWOMAN DUSEK: And issue subpoenas. And do I hear a second? MS. BARNETT: Are you withdrawing your second? MR. PONTE: I will withdraw. CHAIRWOMAN DUSEK: The motion fails. MS. SAUNDERS: I move that we hear this case today. Page 153 February 27, 2003 aye. CHAIRWOMAN DUSEK: Do I hear a second? MR. PONTE: I will second it. CHAIRWOMAN DUSEK: All those in favor, signify by saying Any opposed? (No response.) CHAIRWOMAN DUSEK: The motion will -- the case will go forward. Now we would like to hear from the county inspector. And any persons who are going to testify, if you will stand and be sworn in. And Mr. Smith, that includes you, even though you were before. (Speakers were duly sworn.) MR. MAZZONE: Good afternoon. MS. SAUNDERS: Good evening. MR. WHITE: I apologize, ladies and gentlemen. I would just like a specific finding made by this board with respect to our request for subpoenas. I know you had a motion and it failed, but I would like someone to specifically move to deny our request for subpoenas so that I have something that if the county attorney decides is in the best interest of our county to move forward with an appeal on, then that's what I need, please. CHAIRWOMAN DUSEK: In the motion we denied the continuance and the subpoenas. MR. WHITE: No, ma'am, I believe there was lack of second for that motion. CHAIRWOMAN DUSEK: Excuse me, that's right. That's right. I stand corrected. MR. WHITE: That's quite all right. It's been a long day. CHAIRWOMAN DUSEK: Now the issue of subpoenas. Jean, I have to defer to you. Can we vote on that separately, since we have denied the -- I mean, he wants it on record that we denied the subpoenas. Can we accept the subpoenas? I mean, you can't, because we're going to hear the case today. Page 154 February 27, 2003 MS. RAWSON: There was a motion that included subpoenas, which failed for lack of a second. So I think that's a denial. MR. WHITE: I'm asking to have a specific vote on that particular issue, if I may, please. MR. FLEGAL: Do we need to do that, Jean? MS. RAWSON: That's up to you. CHAIRWOMAN DUSEK: I don't have a problem with that, if someone would like to make a motion that we deny the subpoenas. MS. BARNETT: I'll make a motion that we deny the subpoenas. MR. WHITE: Could you possibly include some grounds for that denial? CHAIRWOMAN DUSEK: I don't think -- MR. FLEGAL: We don't need to do that -- CHAIRWOMAN DUSEK: -- that's necessary. MR. FLEGAL: -- do we, Jean? MS. RAWSON: Well, I think that if you're going forward with the case today, that's probably your ground. What good would a subpoena do if you're going forward today? MR. WHITE: But it does not give me anything at all that I can point to a judge that will explain why it is that the subpoenas were denied. CHAIRWOMAN DUSEK: Jean, guide us, because -- before you do anything, Sheri, number one, we don't need to do this vote, if I understand correctly. Number two, if we do do the vote, do we have to be very specific on why we denied it? MS. RAWSON: Not that specific. Basically your first vote was to continue with the case today, and I think that one passed. If you're going to continue with the case today, subpoenas would be meaningless. CHAIRWOMAN DUSEK: So there's no reason to even vote on the subpoenas; is that correct? I mean, what purpose does it serve? Page 155 February 27, 2003 MS. RAWSON: I think that's your reasoning. What good would subpoenas do for evidence that you're about to hear today? MR. FLEGAL: Right. MR. WHITE: I have not yet decided whether we're actually going to withdraw the case from prosecution, and I did not want to telegraph to this board that intention, at least until I had some determination of what you were going to do with respect to the subpoenas. CHAIRWOMAN DUSEK: I think that the fact that we're continuing the case has answered the question about the subpoenas. MR. WHITE: Madam Chair, what I'm suggesting is that we're left with the Hobson's choice that Mr. Flegal has given us previously in his discussion, which is to withdraw the case and not have it be heard. That's the county's only option. And I need to have something in the form of a denial that I can bring to a judge that will explain why it is we weren't given the opportunity to obtain documentary evidence to prove our case. I think this is a question of fundamental due process. And I believe that the county needs to have the tools that it's asking you for in order to be able to prosecute the case to the best of its determination and ability. MR. PONTE: Well, Mr. White, we're-- MR. WHITE: And I know you voted on it. MR. PONTE: -- going to hear the case now. MR. WHITE: Not if the county's going to withdraw it, sir. MS. SAUNDERS: Madam Chairman, I'm getting very uncomfortable with all of the -- we have heard what Mr. White has to say, we've discussed it, we've talked back and forth, we've given the defense attorney virtually no opportunity to respond. I feel like we're being directed. And we're past that. CHAIRWOMAN DUSEK: We're going -- MR. FLEGAL: Jean, let me ask another question -- MS. RAWSON: Yes. Page 156 February 27, 2003 MR. FLEGAL: -- since I don't know. I always lean to you. Is there a process where the county at this point can -- withdraw is the only thing I can think of off the top of my head -- withdraw at this time and bring this case back before us? MS. RAWSON: Yes. MR. FLEGAL: So in other words, they just don't lose everything, they could say look, we want to withdraw the case from the -- MS. RAWSON: Take it off the docket for a day. MR. FLEGAL: -- we want to take it off the agenda -- MS. RAWSON: We do it every month. MR. FLEGAL: -- we'll be back here who knows when. There's a legal term for that and I don't know what that is. But, you know, they can-- MS. RAWSON: Well, it's a voluntary dismissal without prejudice is what the legal term is. So they do have an option to come back later MR. FLEGAL: once they-- MS. RAWSON: MR. FLEGAL: method? with they they MS. RAWSON: something to say. MR. FLEGAL: MS. RAWSON: MR. FLEGAL: If it's without prejudice, yes. -- get whatever they think they need by some CHAIRWOMAN DUSEK: If I say that we're going forward the case now and the county is the first to come before us and say they're going to withdraw the case without prejudice, then can just do that? Well, I think that the respondent might have Right. So you'd have to, you know, hear both sides. Okay. MR. WHITE: And just so you understand where I'm trying to get to here, is I feel that we need -- the evidence we're asking for may Page 157 February 27, 2003 CHAIRWOMAN DUSEK: decision on specific subpoenas. I-- not be all the precise pieces that we -- CHAIRWOMAN DUSEK: I understand, Mr. White. You've made that very clear. And I think we need to just go ahead now, because I understand and I know you're very passionate about it, but we have made a decision-- MR. WHITE: If I have no way to show a judge why it was you denied the subpoenas, I have no way to get judicial relief in order to have subpoenas be issued. That's my point, Madam Chair, and I can't make a determination -- It's very hard for us to make a I don't think that's really our venue. MR. WHITE: I guess my mistake was being too broad -- MS. JONES: Mr. White, does the county have appellate review of a denial of a subpoena? MR. WHITE: I think we have appellate review of an interlocutory order in a sense that there is a matter that was taken before this board and was decided and we have the opportunity to have it reviewed, yes. And if Ms. Rawson has a different opinion -- MS. RAWSON: No, you have interlocutory appeal to the circuit civil court here. MR. WHITE: But without anything that I can point to a judge, short ofjust a notion that it's -- CHAIRWOMAN DUSEK: Okay, Mr. White. Ms. Rawson, I need to ask you again: Mr. White has obviously very emphatically asked us to give a reason why we denied the subpoenas. Will it make a difference to his side of the case if we make a motion specifically denying the subpoenas, and if we do, do we have to give a reason? MS. RAWSON: I can't answer the first question about his case, because I'm hearing it for the first time, the same as you are. As to the second reason, you don't -- I mean, the second question, you don't have to give a specific reason. I think that the reason is evident, if Page 158 February 27, 2003 you're going forward with the case today, subpoenas are meaningless. Now, if they withdraw the case today and he asks again for subpoenas for when the case comes back, then that's a different motion. CHAIRWOMAN DUSEK: I'm trying to be fair to both sides, and give each side the best opportunity. If it's meaningless for us to vote on subpoenas, then I'm ready to move forward. And I have to ask counsel, our counsel, if it's meaningless for us to vote on -- MS. RAWSON: If you're going to hear the case today, you don't need to vote on the subpoenas. CHAIRWOMAN DUSEK: All right, then the case is going on and we'll hear from the county. MR. WHITE: At this time, the county would move to withdraw the violations in Case 2003-009. CHAIRWOMAN DUSEK: Okay. MR. WHITE: And I make a motion for subpoenas, as I'd indicated earlier, except this time I will do so without any detail. I will just make a motion for subpoenas to Close-Up Creatures. CHAIRWOMAN DUSEK: Okay, you've made the motion to remove the Case 2003-009, and in this motion you also are asking for subpoenas. MR. WHITE: No, ma'am, I'm just -- CHAIRWOMAN DUSEK: Or you just want the -- MR. WHITE: -- saying that we're withdrawing the case, and in addition I'm making a motion for subpoenas. I'm not moving to have it withdrawn. CHAIRWOMAN DUSEK: Okay. MS. SAUNDERS: May we hear from defense? CHAIRWOMAN DUSEK: Now, Jean, where do we go from here? MS. RAWSON: If he's withdrawn the case from today's docket, Page 159 February 27, 2003 we probably need to hear from the respondent. And Michelle is not here, I don't know what next month's docket looks like, if he intends to ask that it be placed back on next month's docket or the month after that. But if his intention is to withdraw it today and place it on a future docket, you know, then he can ask for the subpoenas. CHAIRWOMAN DUSEK: Do we take it in part? MS. RAWSON: I would take it in part. CHAIRWOMAN DUSEK: Okay. And do we hear from the respondent? MS. RAWSON: Yes. CHAIRWOMAN DUSEK: Okay. I just have to know when we do each of these things. MS. JONES: My job is to think about what's in the best interest of my client. And I think that you moved to have the case heard today, so I think that we need to have some kind of determination from the board today whether or not there's a violation. I understand that Mr. White withdrew that. Now, I don't know if there's a prejudicial effect. Does that mean that he can just come back and refile and I've got to come back in here and spend another day in front of you guys and spend thousands of, you know, my client's money to do that? If that's the case, I would say that's fundamentally unfair and prejudicial. But of course, you know, I can only do what I can do. I would urge the board to deem the violations as a withdrawal and a dismissal with prejudice, and that's all I think I can ask for. I mean, it's a very -- unfortunately I didn't bone up on my, you know, rules of parliamentary procedure, you know, when I came in here, so it's all just kind of new to me. We're prepared to go forward; we can go forward today. CHAIRWOMAN DUSEK: Jean, you're getting a lot of questions today. If the county doesn't have a case to present, we can't go forward. Page 160 February 27, 2003 MS. RAWSON: That's correct. And, you know, while you're not a court of law and while the basic fundamental due process rights always apply, you know, we bend the rules of evidence a little bit. And none of you have been to law school and you're not supposed to know them all but, you know, what happens is when people want to dismiss a case with prejudice, they could probably do that at any time. But if they want to withdraw a case without prejudice so they have the right to refile it, they usually have to do it with the leave of court, and if they -- that would be your leave so that they could, you know, come back to you again. And they have the right to make that motion any time before the first witness has been subpoenaed and starts to testify. So I think Mr. White is saying he's withdrawing the case today. I hear Ms. Jones, does that mean that she's got to come back when he puts it back on the docket and defend her respondent again? And I guess the sad story is yes, that's probably what it means. CHAIRWOMAN DUSEK: So the only choice is to withdraw it to a future time on the schedule. MS. RAWSON: We haven't -- I don't think we swore him in, I know we haven't had any testimony yet in this case. CHAIRWOMAN DUSEK: No. MS. RAWSON: And this is pretty much a -- almost a motion to withdraw, take it off the docket for today. CHAIRWOMAN DUSEK: And so we have to accept that, I mean, because obviously there can't be a case if they withdraw. MS. RAWSON: They're the presenters, they're the petitioners. CHAIRWOMAN DUSEK: Then I guess my statement is that the case will be withdrawn to a future date. And I can't give you the date now because we don't know what the schedule is for next month. MR. FLEGAL: Now, do we need to vote on his motion to withdraw or does he just withdraw it and -- Page 161 February 27, 2003 MS. RAWSON: He has the right to withdraw it, because they're the ones that brought it. MR. FLEGAL: Okay. MR. WHITE: But I did make a motion, Madam Chair, with respect to subpoenas. CHAIRWOMAN DUSEK: For the subpoenas. Okay, we're doing it separately. MR. WHITE: I can't tell you when I'm going to bring this case back until I know what you're going to do about the subpoenas. Ms. Rawson was right, she understood where I had to go and was compelled to go. CHAIRWOMAN DUSEK: Okay, now, we need to make a motion that the county be allowed to ask for subpoenas. And I don't see -- MR. WHITE: Issue subpoenas. CHAIRWOMAN DUSEK: Issue subpoenas, excuse my language. So I need to hear a motion on -- MS. JONES: May I be heard on the subpoenas? We were just served with -- or just shown a copy of this not a half an hour ago, so I'm not prepared to sit here and argue with you about authority or the law or, you know, why they need this, but I don't think the financial statements, the tax returns or the customer names and addresses are in any way relevant to the violations. Business contracts are even questionable. I understand that he needs verification, I guess independent verification other than the testimony that was presented by Mr. Smith of the use. But I don't think that this is going to get there. CHAIRWOMAN DUSEK: If I've understood our counsel, we have a right to deny the subpoenas? MS. RAWSON: Well, basically what happens is Chapter 162 only gives you the right to authorize his issuance of subpoenas, Page 162 February 27, 2003 which is pretty broad and pretty general, and generally has had -- you know, that's easy, it's kind of like his right to call a witness. Once he issues a very specific subpoena to the respondent, if the respondent thinks it's over-burdened, irrelevant, there's a number of reasons why in the civil procedure rules that they can object and ask for a protective order. I don't know that you really have the authority to make that decision if it comes back before you. I would hope that they would take that to a judge. But she certainly has the right to object to what he's asking for, which then usually brings another hearing. CHAIRWOMAN DUSEK: That's not today. MS. RAWSON: No. CHAIRWOMAN DUSEK: We just -- all we have to vote on is whether we're going to -- MS. RAWSON: Whether you can authorize him to issue a subpoena, period. CHAIRWOMAN DUSEK: Right. And quite frankly, I think that's the only fair thing to do. Do I hear a motion that we allow the county to issue subpoenas? MR. PONTE: I will make a motion that we allow the county to issue subpoenas. MS. GODFREY: I'll second that. CHAIRWOMAN DUSEK: There's been a first and second. Is there any discussion? MR. WHITE: I may have made a procedural faux pas here, Madam Chair. I probably only should have withdrawn the portion of the case that was with respect to the uses, because I certainly have no objection to getting through the permitting today -- CHAIRWOMAN DUSEK: We're past that. MR. WHITE: But I think we're done with it, you're right. CHAIRWOMAN DUSEK: We're past that. Now we have a motion and a second on the floor to give you the right to issue Page 163 February 27, 2003 subpoenas. Did you want to say anything? MR. LEFEBVRE: Yeah, I have a question. What is the exact purpose of you getting these subpoenas? Is it to show -- CHAIRWOMAN DUSEK: I'm not sure that we need to know that, do we, Jean? MS. RAWSON: It is not necessary to your decision. MS. SAUNDERS: But we have a right to know. MS. RAWSON: But you certainly have the right to ask that question. MR. LEFEBVRE: Is it to show that they are either running a business, agricultural business, or not? Is that your purpose? MR. WHITE: In large part, yes. But not in its entirety. There are other things that I believe that the evidence we're asking for will demonstrate are uses that are other than agricultural, or bona fide agricultural uses. CHAIRWOMAN DUSEK: I think that answers it, doesn't it? Forgive me, I'm just trying to keep things moving. Okay, we have a motion and a second. All those in favor signify by saying aye. MR. PONTE: Aye. CHAIRWOMAN DUSEK: Aye. MR. LEFEBVRE: Aye. MS. BARNETT: Aye. MS. SAUNDERS: Aye. CHAIRWOMAN DUSEK: Opposed? MR. FLEGAL: Yes. MS. SAUNDERS: Opposed. CHAIRWOMAN DUSEK: Two. Do I see two? Yes. Five for and two opposed. The motion passes. You will get your -- are able to issue your subpoenas. MR. WHITE: Thank you, Madam Chair and board members. Page 164 February 27, 2003 CHAIRWOMAN DUSEK: I don't think there's any further business. The next meeting will be March 27th. Do I hear a motion to adjourn? MS. BARNETT: I'll make that motion. MR. PONTE: Second. CHAIRWOMAN DUSEK: All in favor? (Unanimous votes of ayes.) There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 3:10 p.m. COLLIER COUNTY CODE ENFORCEMENT BOARD ROBERTA DUSEK, ACTING CHAIRWOMAN Transcript prepared on behalf of Gregory Court Reporting Service, Inc., by Cherie' R. Nottingham. 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