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CEB Minutes 03/27/2003 RMarch 27, 2003 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida March 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: VICE-CHAIRPERSON: Roberta Dusek Kathryn Godfrey Sheri Barnett Clifford Flegal, Jr. Rhona Saunders George Ponte Gerald Lefebvre Albert Doria (alternate) G. Christopher Ramsey (alternate) ALSO PRESENT: Jean Rawson, Attorney for the Board Michelle Arnold, Code Enforcement Director Jennifer Belpedio, Asst. County Attorney Ellen Chadwell, Asst. County Attorney Shanelle Hilton, Code Enforcement Coor. Shawn Luedtke, Code Enforcement Supervisor Page 1 CODE ENFORCEMENT BOARD OF COLLIER COUNTY~ FLORIDA AGENDA Date: March 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- February 27, 2003 and January 24, 2003 4. PUBLIC HEARINGS A. MOTIONS B. HEARINGS BCC vs. Daniel Goldman Location: Vanderbilt Beach Rd., Connors Avenue Alleged Violation: Dock constructed without first obtaining Collier County Building Permits and failure to obtain a Certificate of Completion on "after the fact" permit 2002110418 within 60 days of issuance. CEB NO. 2003-013 NEW BUSINESS A. Request for Imposition of Fines/Liens 1. BCC vs. Espinoza 2. BCC vs. Zuccaro 3. BCC vs. Lopez B. Request for Reduction/Abatement of Fines 1. BCC vs. Goldie and Madison Meadows CEB NO. 2002-035 CEB NO. 2002-036 CEB NO. 2002-032 CEB NO. 2002-014 OLD BUSINESS A. Affidavits of Compliance 1. BCC vs. Espinoza 2. BCC vs. Zuccaro CEB NO. 2002-035 CEB NO. 2002-036 o B. Affidavits of Non Compliance 1. BCCvs. Lopez C. Modification of CEB Order 1. BCC vs. James K. Keiser and Southern Exposure of Naples, Inc. CEB NO. 2002-032 CEB NO. 98-005 REPORTS 1. Ellen T. Chadwell, Assistant County Attorney will be providing a Quarterly Foreclosure Report COMMENTS A. June meeting to be held at Health Building, Training Room due to Budget Hearings or another site. B. Imposition of Fine Hearings need to allow testimony to be provided if Respondent shows up and requests to address the Board to avoid due process being denied. NEXT MEETING DATE April 21, 2003 10. ADJOURN March 27, 2003 VICE-CHAIRPERSON DUSEK: I would like to call the Code Enforcement Board meeting 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 insure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Neither Collier County nor the Code Enforcement Board shall be responsible for providing this record. Roll call, please. MS. HILTON: Roberta Dusek. VICE-CHAIRPERSON DUSEK: Here. MS. HILTON: Clifford Flegal. MR. FLEGAL: Here. MS. HILTON: George Ponte. MR. PONTE: Here. MS. HILTON: Rhona Saunders. MS. SAUNDERS: Here. MS. HILTON: Kathryn Godfred. MS. GODFRED: Here. MS. HILTON: Gerald Lefebvre. MR. LEFEBVRE: Here. MS. HILTON: Sheri Barnett. MS. BARNETT: Here. MS. HILTON: Albert Doria. MR. DORIA: Here. MS. HILTON: G. Christopher Ramsey. MR. RAMSEY: Here. VICE-CHAIRPERSON DUSEK: Since we have everyone here, which is wonderful, the two alternates, Albert and Chris, will have a voice in the meeting today, but will not be voting. All right. We will go to the approval of the agenda. Are there Page 2 March 27, 2003 any changes? MS. ARNOLD: For the record, Michelle Arnold, Code Enforcement Director. I do have an addition. I would like to add an item nine, business meeting for the board and add two items under that heading, which A) would be the election of officers and the other would be rules and regulations review. And then so our current item number nine would become item number ten and so forth. MR. PONTE: Michelle, excuse me, while you were on item nine, the date for the next meeting is April 21, that's a Monday. MS. ARNOLD: Yes. We had to change that meeting because our attorney is not available on -- MR. PONTE: All right. Thank you. MS. RAWSON: And I appreciate it. VICE-CHAIRPERSON DUSEK: Do I hear a motion that we accept the agenda as changed? MR. FLEGAL: So moved. MS. GODFRED: Second. VICE-CHAIRPERSON DUSEK: All in favor, signify by saying aye. (Unanimous vote of ayes.) VICE-CHAIRPERSON DUSEK: Any opposed? (No response.) VICE-CHAIRPERSON DUSEK: The approval of the minutes. We will start with January 24th. Are there any changes to these minutes? Anyone have any comments? Do I hear a motion that we accept the minutes from January 24th? MR. PONTE: So moved. MR. FLEGAL: Second. VICE-CHAIRPERSON DUSEK: All in favor, signify by Page 3 March 27, 2003 saying aye. (Unanimous vote of ayes.) VICE-CHAIRPERSON DUSEK: (No response.) VICE-CHAIRPERSON DUSEK: comments, any changes? Do I hear a motion that we accept the minutes 27th? MR. PONTE: So moved. MS. BARNETT: Second. VICE-CHAIRPERSON DUSEK: motion, Sheri the second. All in favor, signify by saying aye. (Unanimous vote of ayes.) VICE-CHAIRPERSON DUSEK: (No response.) VICE-CHAIRPERSON DUSEK: Any opposed? February 27th minutes. Any from February That was George making the Any opposed? We will begin the public hearings. MS. HILTON: Good morning, ladies and gentlemen. For the record, my name is Shanelle Hilton, CEB Coordinator. I would like to ask if the respondent is present in the courtroom. The respondent is not present. 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. MS. SAUNDERS: Second. VICE-CHAIRPERSON DUSEK: There's been a motion and a second that we accept Exhibit A from the county. All in favor, signify by saying aye. (Unanimous vote of ayes.) VICE-CHAIRPERSON DUSEK: Any opposed? (No response.) Page 4 March 27, 2003 VICE-CHAIRPERSON DUSEK: So moved. Carried. MS. HILTON: The respondent was served with a notice of hearing by certified mail and posting of the courthouse and the property. Our first -- our only case today is Board of County Commissioners versus Daniel S. Goldman, CEB No. 2003-013. The alleged violation is of Section 2.7.6.5A of Ordinance No. 91-102 as amended of the Collier County Land Development Code. The description of the violation, observed a dock constructed without first obtaining the Collier County building permit and then the failure to obtain a certificate of occupancy on and after the fact permit being Permit No. 2002-1 ! 0418 within sixty days of issuance. Location where violation exists, 267 Connors Avenue, Naples, Florida, more particularly described as Folio No. 27631600001. Name and address of owner in charge of location where violation exists is Daniel S. Goldman, 267 Connors Avenue, Naples, Florida, 34108. Date violation first observed, October 3, 2002. Date owner given notice of violation, he was actually given two of them, one on October 29, 2002 and a second one on January 29, 2003. Date on which violation was to be corrected was February 17, 2003. Date of reinspection March 11, 2003. Result of reinspection, the violation remains. The respondent has, however, finally scheduled the final building permit and it is scheduled for today. Depending on the results of the inspection, the only other inspection that would be required is the spot survey. And at this time I would like to turn the case over to the Code Investigator, Shawn Luedtke to present the CEB case to the board. MR. LUEDTKE: Good morning. For the record, Shawn Luedtke, Collier County Code Enforcement Supervisor. VICE-CHAIRPERSON DUSEK: Before we start, we need to swear you. Page 5 March 27, 2003 MR. LUEDTKE: Yes, ma'am. (Speakers were duly sworn.) MR. LUEDTKE: This case originally came in on October 3rd in reference to a boat dock that was on site without permits obtained. I responded to an anonymous complaint to the address of 267 Connors Avenue and I wasn't able to verify whether a dock was on site or not because there was a fence. I wasn't able to gain access into the rear yard. I posted my business card on site for the property owner to give me a call so we could set up an appointment to discuss the alleged violation. October 9th, I still had no contact so I went back out on site. I walked the neighbor's property line. Their address is 281, directly to the east of this property. I walked their property line and was able to observe a boat dock in the rear yard of 267 Connors Avenue. I researched the property and found that there was a permit, in fact, issued. It was a 2001 permit, but it had expired on 6/4/02, which was four months prior, so it was not an active permit. So what I did at that time is I prepared a notice of violation. That's the first notice of violation you will note requesting that they obtain a new notice of violation (sic) for the dock that was obviously on site. I gave a correction date or a date to comply by of 11/3. On 11/7 1 checked and a new permit had been, in fact, obtained. So I gave sixty days for them to go ahead and get the C.O. The work's already been done. It's just a matter of inspections. January 8th I observed no -- observed that -- excuse me, sorry, observed that the permit was still active. The dock remained, but the C.O. had not been obtained. I posted a red tag on that site advising them that they needed to get that C.O. or we would issue a second notice of violation for a totally different -- totally different offense. On January 21st I observed that the violation still remained, so I posted my business card on site. Nobody has been home the whole time. Every time I have been at that location I have left cards, I have Page 6 March 27, 2003 left business cards, red cards, red tags, trying to make contact with the owner to no avail. On January 30th I went back out there. No one was home. Violation remained. No C.O. was still obtained at this point, so I had an N.O.V. prepared and sent out for the violation of failure to obtain a certificate of occupancy on a permit on an after-the-fact permit within sixty days of issuance. On the 18th I rechecked the site. Violation remained. I did another check on the 1 lth. Violation remind. I forward the case for CEB hearing. I just wanted to note that as of this date, the C.O. still has not been obtained. There is a scheduled inspection for today, but I have not been able to gain access to the property at all because nobody has been home, so I don't know if what's on site, the dock on site is consistent with the permit that's been approved. There might be some problems as to why the C.O. cannot be obtained because the dock-- the alleged complaint we have is that the dock may be larger than what the permit is stating. So that might be one of reasons why we're having a problem. Just to expand on that a little bit, the original permit, the 2001 permit that was issued, shows that it was a twenty-foot dock by forty-seven-foot dock with no electric. Second permit shows that, you know, the work's already been done after the first permit. The second permit shows it's a twenty-foot dock by forty-two-foot dock. So here, you know, just by looking at the permits, the size of the dock has already changed in that aspect. And we have not been able on verify if, like I said, it's consistent with the permit that is active for that site at this time. Thank you. VICE-CHAIRPERSON DUSEK: Shawn. MR. LUEDTKE: Ma'am. VICE-CHAIRPERSON DUSEK: Are you saying that right now the permit has been accepted, but there is no C.O.? Page 7 March 27, 2003 MR. LUEDTKE: There is an active permit for that site that has been approved and issued to that location, but it has not been C.O.'d, that's correct. VICE-CHAIRPERSON DUSEK: And they're planning to go out today? MR. LUEDTKE: It is scheduled to be C.O.'d at this point, yes. They are still required to do a ten-day spot survey, which would help with the measurements and verification of the size of the dock along with the C.O. inspection we're going to be doing today also. VICE-CHAIRPERSON DUSEK: Did you ever try to contact him by phone? MR. LUEDTKE: This case has been going on since October, and to be perfectly honest with you, I don't believe I have. I have left -- I have left business cards, I have left red tags on site. We have done mailings. We have done numerous attempts, but as far as a telephone attempt, I can't say that I have. VICE-CHAIRPERSON DUSEK: Okay. Are there any other questions from the board? No questions. Okay. Thank you. MR. LUEDTKE: Thank you, ma'am. VICE-CHAIRPERSON DUSEK: Any comments from the board? MR. PONTE: Yeah. Just one. Sort of a common sense thought here, probably not following any legal precedence. It seems that everything is so close to being completed today that if we were to go ahead and to find a violation today, we would start a whole lot of paperwork for a lot of people that would be ended today. Now, the violation exists today, but do we really want to go ahead and move on that knowing that today it could all be resolved? MR. FLEGAL: May I make a comment? VICE-CHAIRPERSON DUSEK: Go ahead. MR. FLEGAL: Under the -- and Jean can correct me if I'm in Page 8 March 27, 2003 error, but under the statute and our ordinance, we are allowed to hear and find that a violation existed even if it has been corrected. A violation is a violation and whether it is corrected or not is immaterial. We are allowed to make a decision because it was a violation and it was found. And if he corrects it, let's say as of midnight last night, the county could still bring it forth and ask us to make some determination. We are permitted to do that. If you don't want to do that, you know, you always have the option of saying that you didn't find a violation, but I think that would be hard to do because there, in fact, is a violation. MR. PONTE: The time line is just-- MR. FLEGAL: Yeah, the time line unfortunately is immaterial. MS. ARNOLD: I just wanted to make a point of clarification as well, that what's being done today is an inspection of the dock. As the investigator noted, a spot survey, which would show us the exact measurements, the location of the dock in relation to where it sits abutting the property line as well as how far it projects out into the waterway would be identified once that spot survey is turned in. We haven't received that yet. Not until we receive the spot survey and verify that all of the dimensions are correct is the certificate of completion issued. So there is additional work to be done beyond today. MR. PONTE: Uh-huh. VICE-CHAIRPERSON DUSEK: Any other comments from the board? Do I hear a motion from the board? MR. FLEGAL: I guess I would make the motion that, in fact, the violation does exist, the violation being of Section 2.7.6.5A of Ordinance No. 91-02 of the amended Collier County Land Development Code, the violation being failure to obtain the C.O. on an after-the-fact Permit No. 2002110418. And let me hesitate a minute because I guess I need to ask a Page 9 March 27, 2003 question just to make sure. Shawn. MR. LUEDTKE: Yes, sir. MR. FLEGAL: Could you tell me the date of the permit, the date it was issued? MR. LUEDTKE: Yes, sir, just one second here. It was applied for on 11/5, approved on 1 1/5 and issued on 1 1/5. MR. FLEGAL: Okay. Thank you. Just want to make sure we have the dates right. Going back to where I ended, with the permit number, within sixty days of issuance. MS. SAUNDERS: I'll second. MR. FLEGAL: It's a motion that there is, in fact, a violation. VICE-CHAIRPERSON DUSEK: Rhona seconded. Are there any comments? All in favor, signify by saying aye. (Unanimous vote of ayes.) VICE-CHAIRPERSON DUSEK: Any opposed? (No response.) VICE-CHAIRPERSON DUSEK: Motion carries. Now, the order of the board. MS. SAUNDERS: I will move that we follow the recommendations of the staff, which is that respondent pay all operational costs incurred in the prosecution of this case, abate all violations through obtaining any and all required inspections and obtain a certificate of completion within five business days of this hearing or remove, demolish the unpermitted structure after obtaining the demolition permit or a fine of one hundred dollars per day will be imposed to each day the violation continues. VICE-CHAIRPERSON DUSEK: Now, the five business days, Michelle, you had mentioned that it may take ten days for this spot survey. Page 10 March 27, 2003 MS. ARNOLD: Yes, they have a requirement to submit a spot survey within ten days of that filing. VICE-CHAIRPERSON DUSEK: So this five business days really would not be fair. I would think maybe more like fifteen days just to allow the -- some time lapse with the county. MR. FLEGAL: Why don't we just do fifteen days period and forget business days? MS. SAUNDERS: Uh-huh, that's good, sure. motion to fifteen days. MS. BARNETT: I'll second it. VICE-CHAIRPERSON DUSEK: board? it? I'll amend the Any comments from the All in favor, signify by saying aye. (Unanimous vote of ayes.) VICE-CHAIRPERSON DUSEK: (No response.) VICE-CHAIRPERSON DUSEK: Moving right along. MR. PONTE: Can I just ask a question? VICE-CHAIRPERSON DUSEK: Yes. Any opposed? Motion carries. MR. PONTE: Didn't we put a fine against that or did I just miss MR. FLEGAL: A hundred dollars. MR. PONTE: I know that was the recommendation. MR. FLEGAL: Yeah, and it was seconded and we approved it. MR. FLEGAL: We're moving too fast for George. VICE-CHAIRPERSON DUSEK: That's right. We'll slow it down a little bit, George. Moving on to new business, request for imposition of fines. MS. ARNOLD: Yes. First item on your agenda is Board of County Commissioners versus Espinoza, Andrew and Letty Espinoza, Case No. 2002-035. Page 11 March 27, 2003 This item was heard by the Code Enforcement Board on December 16th, 2002, for -- and a violation was found for the improper swimming pool filling with water without the proper enclosure around or safety fence around the swimming pool. The violation was found and the respondent was ordered to abate all violations by installing a required safety fencing or pool enclosure within thirty days. The order also indicated that if the respondent failed to comply with that request by said date that a fine of two hundred dollars per day would be imposed each day the violation continued. The board also ordered that if the respondent failed to erect the fence within the time frame that the county had the authority to go in and erect some sort of safety fencing. I'm here to tell you today that the respondent did erect the fencing around the subject pool and, however, it was not done within the time frame specified. Oh, actually, it was done. Sorry. And we are now here only imposing fines for the operational costs, which is a total of one thousand eighty-one dollars and ten cents. MR. FLEGAL: MS. RAWSON: MR. FLEGAL: Jean, I guess I need to ask you the question. Yes, sir. If I'm reading the order of the board correctly, and there's a copy here, it states that, item three, that the respondents are ordered to pay all operational costs incurred in the prosecution of this case until it comes into compliance? MS. RAWSON: Correct. MR. FLEGAL: Does that mean whether it comes into compliance or not he still has to pay? MS. RAWSON: Yes. MR. FLEGAL: Okay. MS. RAWSON: And it looks like he came into compliance, at least the affidavit of compliance is dated March 12th. Page 12 March 27, 2003 MR. FLEGAL: Okay. Good. I just wanted to make sure we were clear. I would make a motion we impose the fines as requested. MS. BARNETT: I'll second that. VICE-CHAIRPERSON DUSEK: All in favor, signify by saying aye. (Unanimous vote of ayes.) VICE-CHAIRPERSON DUSEK: Any opposed? (No response.) VICE-CHAIRPERSON DUSEK: Okay. MS. ARNOLD: Next item is Board of County Commissioners versus the estate of William Zuccaro, and that's Code Enforcement Board Case No. 2002-035 (sic). This case was heard on December 16th, 2002 for unsafe housing conditions and other items. A violation was found and the board ordered the respondent to remove all loose tile within seven days. The respondent was further ordered that if they did not comply with that portion of the order by December 23rd, a fine of one hundred and fifty dollars a day would be imposed. The respondent was further ordered to obtain all necessary permits for the roof repairs within thirty days and have a certificate of completion within sixty days. Failing to do that, fines of seventy-five dollars per day would be impositioned. There was also a finding that a screen enclosure permit would have to be obtained as well. The respondent was further ordered that operational costs would be imposed for the hearing. Staff requests at this time that the board impose fines of one thousand two hundred and fifty-four dollars and seventy cents for operational costs in light of the fact that the respondent abated the violation as ordered. VICE-CHAIRPERSON DUSEK: Michelle, just one question, is it case 2002-036 or three five? Page 13 March 27, 2003 MS. ARNOLD: Three six. VICE-CHAIRPERSON DUSEK: Okay. MS. ARNOLD: The prior one was three five. VICE-CHAIRPERSON DUSEK: Okay. Do I hear a motion from the board? MR. PONTE: I will make a motion that we follow staff's recommendation and impose the fine of one thousand two hundred and fifty-four dollars and seventy cents. MR. FLEGAL: Second. VICE-CHAIRPERSON DUSEK: There's been a first and second. All in favor. (Unanimous vote of ayes.) VICE-CHAIRPERSON DUSEK: Anyone opposed? (No response.) VICE-CHAIRPERSON DUSEK: Motion carries. MS. ARNOLD: Okay. The next item is Board of County Commissioners versus Benigno and Maria Lopez. And I want to note that Mr. Lopez is here and he's present in the hearing. This is Case No. 2002-031. On December 16th the board heard information and found that there was a violation of a structure or utilizing a guest house with electrical and septic tank without first obtaining proper permits. The respondent was ordered to obtain all proper permits within sixty days or fines of a hundred dollars per day would be imposed. Respondent has applied for permits. At the writing of this executive summary, the permits had not been issued. So the order is not completely complied with. We are here today to ask that the board impose operational costs in the amount of one thousand one hundred and sixty-nine dollars and sixty-five cents and fines in the amount of two thousand two hundred dollars for a period of February 18th, 2003 through March 12th, 2003. Page 14 March 27, 2003 Just noting for the record that the amount will continue to accrue until compliance is met. MS. SAUNDERS: Michelle, do we have a date that the permit was applied for? Do you know that? MS. ARNOLD: Mr. Lopez probably could answer that question. Mr. Lopez. MR. LOPEZ: No, I don't have the exact date. MS. ARNOLD: I can look that up in the system. It indicates that the applied-for date was February 27th, 2003. MS. SAUNDERS: Thank you. VICE-CHAIRPERSON DUSEK: When imposing fines and if the respondent is here, is he allowed to speak? MS. RAWSON: If he so chooses. VICE-CHAIRPERSON DUSEK: Okay. MS. RAWSON: Although it's not a hearing. VICE-CHAIRPERSON DUSEK: I understand. MR. FLEGAL: That was going to be my question. It's my understanding this is not a hearing, it's just an administrative action? MS. RAWSON: It's an administrative action, it's not a hearing, but we do give notice to the respondents and if he choose to say something, it's certainly permissible for the board to allow him to do SO. VICE-CHAIRPERSON DUSEK: Okay. Did you want to say anything, Mr. Lopez? MR. LOPEZ: Yes. VICE-CHAIRPERSON DUSEK: Would you like to come to the microphone? Since this is not a hearing, Jean, does he need to be sworn in? MS. RAWSON: Yes. VICE-CHAIRPERSON DUSEK: Okay. (Speakers were duly sworn.) MR. LOPEZ: It's not a hearing, but when I came here on the Page 15 March 27, 2003 16th, the initial time that you were going to give me was the sixty days. And from what I understood, was that I had sixty days to apply for my permits and I think it was another sixty days, yeah, a total of a hundred and twenty days to get the C.O., but I don't have any papers saying that. VICE-CHAIRPERSON DUSEK: Michelle, I'm sure you sent out notice with specific times and dates? MS. ARNOLD: The order, once it was signed and executed, was sent to the respondent and that was dated December 18th. MR. FLEGAL: And the order says sixty days. MS. ARNOLD: Yeah. MS. BARNETT: If I recall correctly, wasn't the structure built prior to him purchasing the property and he got ladened with the burden of getting the permit? MS. ARNOLD: That's correct. MS. BARNETT: And he had trouble getting a contractor to do an after-the-fact-- MR. LOPEZ: The dates on my plans, I wasn't able to get those until the 8th of February, which it was pretty difficult just to do that, to get somebody to come out and measure the building. VICE-CHAIRPERSON DUSEK: Mr. Lopez, if I might make a suggestion. The order of the board does say sixty days. If we do impose fines, you may come back and ask for some relief from those fines at a later date. MR. LOPEZ: Oh, I can? Okay. VICE-CHAIRPERSON DUSEK: We haven't imposed the fines yet, so you can't ask for it. MR. LOPEZ: Right. Okay. VICE-CHAIRPERSON DUSEK: But you may come back at a later time and whether we do or we don't, you may still come in and request. MR. LOPEZ: Okay. So how would I do that? I would ask for Page 16 March 27, 2003 a hearing? VICE-CHAIRPERSON DUSEK: No, you will be notified. MS. ARNOLD: Yes. You can -- you can ask for a hearing. Once you come into compliance, I -- you can contact our office and request for a reduction or abatement of fines. MR. LOPEZ: Okay. MS. ARNOLD: And we have got a form. We can provide that to you today so you will have it before, you know, you actually submit that information. MR. LOPEZ: So, basically, I'm out of time and keep going with what what I'm doing? VICE-CHAIRPERSON DUSEK: Yes, yes. MR. LOPEZ: Thank you. VICE-CHAIRPERSON DUSEK: Okay. MR. FLEGAL: I would make a motion we impose the fines as requested by the county. VICE-CHAIRPERSON DUSEK: Is there a second? MS. SAUNDERS: Second. VICE-CHAIRPERSON DUSEK: All in favor, signify by saying aye. (Unanimous vote of ayes.) VICE-CHAIRPERSON DUSEK: Any opposed? (No response.) VICE-CHAIRPERSON DUSEK: Motion carries. Now, the next part is the request for reduction, abatement of fines. MS. ARNOLD: Yes, this is Board of County Commissioners versus James N. Goldie, Trustee, Case No. 2001-014. Mr. Goldie is present and he is requesting that the board consider abatement of fines for the operational costs. So I will turn it over to Mr. Goldie. MR. GOLDIE: Thank you, Michelle. Page 17 March 27, 2003 Ladies and gentlemen. VICE-CHAIRPERSON DUSEK: Excuse me. Jean, is there a reason to have him sworn in? MS. RAWSON: Yes. (Speakers were duly sworn.) MR. GOLDIE: I am requesting an elimination or reduction in the administrative fine for the operational costs in our case. You may recall last July I appeared before you and went through my whole program of how I got involved and so forth. I'm not going to do that again. But the prime issue in the situation was that no homeowner's association had been created or filed with this plat and it left with us two issues, one, the clean-up of the violation that we had been cited with and secondly, the legal ownership of this parcel that became a water management conservation area. Attorney, now judge, Vince Murphy had prepared the homeowner's association documents. Burman Diaz (phonetic) from Wilson Miller had approved them. And upon investigation, we found these documents in the county planning file and not filed with the plat. According to a letter from Judge Murphy, I quote: It had always been my experience and understanding that the county staff would never sign off on a plat until the developer had satisfied each and every requirement of the development code. While I had deeded my interests in this plat to another party in 1994, through another administrative error, the parcel of the water management conservation area was not included in the transfer. Interesting point. Why would I want to keep a water management conservation area parcel in my name? As officer Alex Sulecki knows and I'm sure Michelle Arnold is aware, I have attempted to resolve this violation and legal ownership to the best of my ability. According to county attorney Jennifer Belpedio I was to set up a homeowner's association and as she stated parcel 56320000103, not on this deed, by a technicality, Mr. Goldie Page 18 March 27, 2003 may still be owner of record. I did set up and file a homeowner's association and had an organization meeting at Veteran's Park on August 26th. Fairly good attendance. No interest in a homeowner's association. We did clean up the violation partially in September of 2000, completely in December of 2002. And incidentally, when I was here, you had given us five months to do so without a fine. We did complete it in that time and we are in compliance and the what, satisfaction, Michelle, has been filed with the county that we are in compliance with your request. I'm currently working with a neighbor to assume ownership of this parcel. We have met with Commissioner Halus, John -- MS. ARNOLD: Dunnick. MR. GOLDIE: -- Dunnick, thank you, several times and are waiting his direction. Needless to say, all of this takes time and commitments to get these issues resolved. It's meeting after meeting after meeting. And I work and that means that when I go to these meetings, I have to call someone in. I run a driving range and I have to call someone in to take my place and that goes on and on and on until we can get this resolved. I have spent twenty-two thousand two hundred and sixty-eight dollars and forty cents to get these issues resolved. Interesting. About seventeen or seventeen five happened within the last six weeks or so. I have to tell you with business conditions the way they are, with the stock market the way it is, trying to raise seventeen thousand dollars to clean a parcel in which you really don't think you are obligated is sort of hard to swallow. My wife says what are you doing and I said, honey, bear with me. We have been married a long time. And she has. But in the fact that I have spent that and in the fact that we're trying to resolve a situation in which there were many errors by Page 19 March 27, 2003 many people, maybe Murphy, maybe Wilson Miller, maybe the county and maybe ourselves and I'm spending the time and effort trying to rectify these. And, therefore, I just ask you if you could give me a reduction or some help just on the operational costs of the fine. I appreciate your time, I appreciate your consideration and I would appreciate your help. Thank you very much. Do you have any questions at all? VICE-CHAIRPERSON DUSEK: In looking at the order to correct, I -- it was to remove the exotic plants from this property? MR. GOLDIE: Yes, ma'am. VICE-CHAIRPERSON DUSEK: And apparently they had been removed but grew back; is that correct? MR. GOLDIE: We did a partial clearing in 2000. VICE-CHAIRPERSON DUSEK: And how -- before you came before this board, how -- at what point or what time did the county investigator come out and tell you that you were in violation? MR. GOLDIE: It started back in I suppose 2000. And then an interesting thing happened. I got -- Alex Sulecki was the officer, and one day she called me and said, Jim, forget everything, you're off the hook. I said, oh, God, Alex, great. I said how? We found a deed where you conveyed all of your interest to another party back in 1994. You're not involved at all. I said boy, can I throw my file away? She said throw it away. Okay. Then probably another five or six or seven months went by and the county attorney said wait a minute, I don't think he is off the hook. We found this certain parcel that I read to you earlier. VICE-CHAIRPERSON DUSEK: Yes. MR. GOLDIE: That wasn't included in the transfer. VICE-CHAIRPERSON DUSEK: Okay. At that time -- MR. GOLDIE: Yes, ma'am. Page 20 March 27, 2003 VICE-CHAIRPERSON DUSEK: -- the time frame from that point until you came before this board was a pretty substantial time frame in which you could have taken care of this violation. MR. GOLDIE: Well, I suppose -- it's hard for me to recall exactly the time frame because we started, we stopped and then we restarted. VICE-CHAIRPERSON DUSEK: The point is we usually give people time to correct before it comes before the board. Once it comes before the board, there are costs involved. And that's why we give the fine of operational costs to the respondent because it has -- we have incurred costs through the county. So I just want you to understand that. MR. GOLDIE: Okay. MS. SAUNDERS: May I ask what the amount of the fine is? MS. ARNOLD: It's one thousand five hundred and forty-four and sixty-five cents. VICE-CHAIRPERSON DUSEK: And, Michelle, I would like to ask you your position on this. MS. ARNOLD: I knew you were going to ask me that. Well, Mr. Goldie, all of the information that he's provide you is factual. He had tried and he worked diligently to comply with the board's order and was successful in doing so. He's, you know, taken a lot of other efforts to try to resolve his legal issues with the ownership of the property, but that's outside of our -- our case. I think that usually what we do is take the position it's operational costs. When -- we usually make recommendations when it comes to the fine amount, but not necessarily on the operational costs because we did incur those costs. MR. FLEGAL: back in 2000? MS. ARNOLD: MR. FLEGAL: Michelle, just so I can remember, this started Yes. Okay. And we came before the board-- Page 21 March 27, 2003 MS. ARNOLD: MR. FLEGAL: MR. GOLDIE: MR. FLEGAL: MS. ARNOLD: MR. FLEGAL: MS. ARNOLD: 2001. -- 2002? It was last July, I believe, sir. July of 2001 or 2002? 2002, yes. Okay. So about two years went by? Yes. And part of that was as he described, he was working towards compliance. We thought that he wasn't responsible, then got the legal interpretation that he was, so there was some lapse in time there for-- MR. FLEGAL: Okay. A great amount of time has gone by? MS. ARNOLD: Yes. VICE-CHAIRPERSON DUSEK: And in this lapse of time, are you adding operational costs during that? MS. ARNOLD: No. VICE-CHAIRPERSON DUSEK: It's only the time after that was corrected? MS. ARNOLD: Actually, it's most for the second portion of that case. It didn't include the first portion. VICE-CHAIRPERSON DUSEK: All right. MR. FLEGAL: Right. Before you brought it to us, he had two years to try and do something. MS. ARNOLD: We didn't include that. MR. FLEGAL: I understand that, but he had two years to work on it before you brought it to us -- MS. ARNOLD: Right. MR. FLEGAL: -- to order him to work on it? Okay. So he had plenty of time to try to resolve it. VICE-CHAIRPERSON DUSEK: Any other comments from the board? MS. SAUNDERS: I have a comment. I'm usually an exception to this, as you know. I agree, we did incur the operational costs, but I Page 22 March 27, 2003 also agree that there are a number of county areas that may have misled this person. I have rarely heard of anybody trying to give away land and then finding out it's come back to him and being charged. He did try to form a homeowner's association. I think he tried diligently to solve a complicated legal problem. From our standpoint on code enforcement, our job is to get the situation resolved. That's been accomplished. There are some staff costs always involved, and I don't think it is fair to penalize the respondent since there were so many different areas that came into being in this that were not of his making and not of his ability. If-- after all if I had owned -- thought I had given away some property, found out it was my responsibility, then found out it wasn't, then found out it was, I think I would try to solve the problem of the ownership before I would try to clear the exotics. VICE-CHAIRPERSON DUSEK: Rhona, keep in mind that the staff is not charging him for the period of confusion. And he did have enough time after that period to correct and it was not corrected. MS. SAUNDERS: But under the advice of the county attorney, actually, he was told that there was a legal way to remedy this as well and that's what he tried to do. He tried to form a homeowner's association, he tried to get the deed cleared, which is not our area, I understand. I think when somebody has made an honest good-faith effort, they're entitled to some relief in this case. MR. PONTE: I agree with you a hundred percent. And in this case the respondent also had operational costs that he has incurred and expended in terms of time and effort. I would make a motion that because of the confusion on parts of several parties, including the respondent, that the operational costs in this case be absorbed by the county. MS. SAUNDERS: I second that. VICE-CHAIRPERSON DUSEK: All right. There's been a motion and a second. Page 23 March 27, 2003 And now I will just make a comment that, again, remember that the county allowed him that time before they incurred their own operational costs. MR. PONTE: Yes. Madam Chairman, I understand that, however, although the county was incurring costs, given what we have been told, those costs came about because of error. Meanwhile the respondent is in compliance, the respondent has put in a lot of time and effort and expended or incurred rather operational costs of his own, so I think it's only fair that we split the difference. And in that case I repeat my motion. MS. BARNETT: George, I would ask you a question, if I can. I can go along with you part way, but I can't go all of the way. Splitting the difference, I would like to see us reduce the fines, or not the fines, the operational costs. And if you would amend your motion, I will go with you. VICE-CHAIRPERSON DUSEK: We have -- we have a motion and a second and if you would repeat again your motion, George, just so we all understand it. MR. PONTE: Okay. My motion is simply that the county absorb the operational costs that it has incurred in pursuing this case. VICE-CHAIRPERSON DUSEK: And then Rhona made a second and now we're commenting on it. Did you have a comment? MR. FLEGAL: No, that's okay. Thank you. VICE-CHAIRPERSON DUSEK: Okay. Let's take a vote. MR. FLEGAL: They can either withdraw it or we vote. VICE-CHAIRPERSON DUSEK: We will vote on the motion. All those in favor of relinquishing these operational costs and having the county absorb these costs signify by saying aye. (Vote of ayes.) VICE-CHAIRPERSON DUSEK: All those opposed? (Vote of ayes.) Page 24 March 27, 2003 VICE-CHAIRPERSON DUSEK: Let's take a vote. MS. SAUNDERS: We did. VICE-CHAIRPERSON DUSEK: I mean let's take a hand vote. I meant a hand vote. All those in favor, raise your hand, please. (Mr. Ponte, Ms. Godfred, Ms. Saunders.) VICE-CHAIRPERSON DUSEK: So we have one, two, three. All those opposed, raise your hand, please. (Ms. Dusek, Mr. Flegal, Ms. Barnett, Mr. Lefebvre.) VICE-CHAIRPERSON DUSEK: Three, four. Motion is denied. MR. FLEGAL: Okay. Do you want to make a motion? MS. BARNETT: I would like to make a motion that we split the difference and divide the operational costs in half, because of the confusion on the county's part. And I wasn't privileged to the prior hearing, so I can only go based on what I have heard today. I realize that there was quite a bit of time that has evolved throughout this case, but I do think there was quite a bit of fault on more than one party's side and the legal issue as to who owns it, who doesn't own it can be quite confusing. So I would like to see operational costs cut in half. And that would be my motion. MR. LEFEBVRE: I second that motion. VICE-CHAIRPERSON DUSEK: There's been a motion and a second. Is there any discussion? MS. RAWSON: Before you vote, what are the operational costs? MS. ARNOLD: One thousand five hundred and forty-four and sixty-five cents. I do have a recommendation. We could -- the costs for just the preparation for the Code Enforcement Board case is seven hundred and four dollars and sixty-five cents. I'm just -- I'm just throwing Page 25 March 27, 2003 that out. I'm not-- no investigation costs. VICE-CHAIRPERSON DUSEK: There's a motion and a second. All of those in favor, signify by saying aye. (Unanimous vote of ayes.) VICE-CHAIRPERSON DUSEK: Any opposed? (No response.) VICE-CHAIRPERSON DUSEK: Motion carries. Do you understand, Mr. Goldie? MR. GOLDIE: I will. VICE-CHAIRPERSON DUSEK: That from your fine of one thousand five hundred forty-four dollars and sixty-five cents, we have cut it in half. MR. GOLDIE: That's fine. And I appreciate your consideration. Thank you very much. VICE-CHAIRPERSON DUSEK: Okay. Moving on to old business. MS. ARNOLD: Okay. This is a filing of affidavit of compliance of-- one of which is for the Board of County Commissioners versus Andrew and Letty Espinoza. That's Case No. 2002-035. That was filed and staff has recorded an affidavit of compliance for Board of County Commissioners versus Zuccaro, Case No. 2002-036. And we have also filed an affidavit of noncompliance for Board of County Commissioners versus and Benigno and Maria Lopez, 2002-031. VICE-CHAIRPERSON DUSEK: Okay. Now, reports, or excuse me, modification of Keiser. MS. ARNOLD: Jennifer has left the room. MS. RAWSON: Jennifer I think has presented you were a memo and wanted to actually probably explain to you why we are modifying or requesting that you modify the order. And I'm not sure Page 26 March 27, 2003 where she went. MS. ARNOLD: She went upstairs. She said she went up to get something. I don't know if you want to -- MS. RAWSON: I think she -- I think she wants to present that to you, so let's give her a few minutes. VICE-CHAIRPERSON DUSEK: All right. Then let's just -- let's put a hold on that and Miss Chadwell is not here. MS. ARNOLD: And she was going to get Miss Chadwell. VICE-CHAIRPERSON DUSEK: Well, then why don't we just move on to comments and any -- MS. ARNOLD: Those are just notes for your information, one of which is our June hearing will be held in the health building training room, because this site is being used for budget hearings for the Board of County Commissioners. So just make note of that when you get your June agenda. VICE-CHAIRPERSON DUSEK: Can you give an address on that? MS. ARNOLD: That is on this complex and it's Building H, which is towards the museum and you're going to kind of head north. MS. RAWSON: Behind the jail. MS. ARNOLD: It's behind the jail. VICE-CHAIRPERSON DUSEK: Okay. All right. MS. ARNOLD: Building H. VICE-CHAIRPERSON DUSEK: Now we all know where it is. MS. ARNOLD: And I believe it's in room two sixteen, but that will be on your agenda so you will know what room to go to. VICE-CHAIRPERSON DUSEK: Okay. MS. ARNOLD: Also, do you want to -- MS. HILTON: The county attorney had brought to our attention that the imposition of fine hearings, we need to allow testimony if they show up so that they are not denied due process. And we put that comment on there to that effect. Page 27 March 27, 2003 There has been some cases in other counties that went to the Supreme Court, well, to the Circuit Court of Appeals and the case was reversed because the judge said that they were not given their due process. MR. FLEGAL: MS. RAWSON: MR. FLEGAL: Um -- We always do. I guess, Jean, my question would be, first of all, I notice what we send out says notice of a hearing. And this is not a hearing, correct, it's an administrative function? MS. RAWSON: It's an administrative function, but if they are present and wish to testify, it would be a violation of their due process not to allow them to speak. MR. FLEGAL: Okay. I guess my -- what I'm looking for is a technical clarification maybe. MS. ARNOLD: Go ahead. I'm sorry. MR. FLEGAL: If it's not a hearing, I mean, I don't think we should be mailing something to people telling them that there is a hearing when it's not a hearing. Under the statute or the ordinance, it's an administrative function. VICE-CHAIRPERSON DUSEK: MS. ARNOLD: We did-- VICE-CHAIRPERSON DUSEK: I thought we had a decision -- -- to change that. MS. ARNOLD: -- and that's what I wanted to speak on. And maybe we want to talk about this a little bit more in the rules and reg portion of our agenda. But we did make that modification. We were sending out those notices. It did say administration. We got an opinion from Jennifer, the county attorney's office, indicating that that should be changed. And that -- that was done. So we -- we probably want to hear from her why she has that opinion that it should be -- should indicate on there hearing rather than administrative hearing. Page 28 March 27, 2003 MR. FLEGAL: Okay. Jean, then I guess my question would be why is the county telling the Code Enforcement Board what kind of notices to send out? You're our attorney, not the county attorney. MS. RAWSON: You have to understand what the definition of the word hearing is. It's not a hearing in terms of we are not going to rehash the evidence that we heard when you made your original order. Now, because you are going to hear evidence from the staff as to whether or not they are in compliance or not in compliance, you are hearing from one side only as to whether or not you should issue a fine because they are not in compliance. If they are here and they want to say but, wait, I am in compliance and whatever, you have to give them the due process rights to do that. Generally speaking no one's here and it's a very perfunctory administrative hearing. But if they are here and they want to say their side of the story only as it relates to whether or not they are in compliance and whether or not they should now be fined, due process dictates that you let them say that. MR. FLEGAL: Okay. But whether they're in compliance or not under the statute doesn't matter, you can -- you can fine them after the fact. MS. RAWSON: Well, of course, yes, you can. And, in addition, you can always -- and you usually do make them pay operational costs. MR. FLEGAL: Right. I'm just trying to understand it. Whether they're here and they're in compliance or not really has no bearing on whether you impose the fine, because we're allowed to do that whether they're in compliance or not. So I'm still trying to adjust. MS. RAWSON: What if they came into compliance before the time you gave them, I mean, and they have some defense. You need to let them be able to say that. Page 29 March 27, 2003 MR. FLEGAL: Well, if they come into compliance before the time limit's up they wouldn't be fined other than the administrative costs. MS. RAWSON: Well, you're going to hear evidence though from the county as to whether or not they are or are not in compliance in a timely fashion. MR. FLEGAL: Not when we impose the fine, is it? MS. RAWSON: Sure. They present you the case. You know, when you get on your agenda something that says request for imposition of fines, that's not just perfunctory in that you must hear from the county staff why they are requesting the imposition of fines and generally the evidence presented is they're not in compliance or they are in compliance, but they weren't incompliance in a timely fashion, therefore, we request fines. MR. FLEGAL: Okay. MS. RAWSON: If they're here and they have some evidence to the contrary of what staff tells you, then to that extent it's a hearing, that requires due process. MR. FLEGAL: Okay. VICE-CHAIRPERSON DUSEK: All right. That's fine. Maybe we should take a break before -- because it's -- we go into elections and by-laws and that's going to take a little while. So why don't we just take a quick break, say five minutes, ten minutes. What would you like, Debra? Ten minutes, that's fine. Ten minutes. (Brief recess.) VICE-CHAIRPERSON DUSEK: We will begin where we left off and we will start with this -- with Jennifer from the county attorney's office in the Keiser, Mr. Keiser. And I understand that Mr. Keiser is here; is that correct? And, again, Jean, I ask, do we swear in for this? MS. RAWSON: Well, if he wants to testify, we would swear Page 30 March 27, 2003 him in-- him in before he testifies. VICE-CHAIRPERSON DUSEK: And with Jennifer? MS. RAWSON: He may not have any comment. He may be here just to find out what we're doing. VICE-CHAIRPERSON DUSEK: But the county attorney does not need to be sworn in? MS. RAWSON: Well, I think you usually swear attorneys in, which is interesting since as officers of the court we're always under oath, but we usually swear attorneys in, so you may swear her in. VICE-CHAIRPERSON DUSEK: All right. And, Mr. Keiser, are you going to give testimony today? (Unidentified voice from audience.) VICE-CHAIRPERSON DUSEK: Would you just stand and be sworn in. We will swear you both in together. (Unidentified voice from audience.) VICE-CHAIRPERSON DUSEK: And he will speak also. All right. So we will swear all three of you in. Do you need their names, Debra? THE COURT REPORTER: When they speak. VICE-CHAIRPERSON DUSEK: Okay. (Speakers were duly sworn.) VICE-CHAIRPERSON DUSEK: Thank you. You can be seated. MS. BELPEDIO: Jennifer Belpedio, assistant county attorney with the Collier County Attorney's office. Good morning. What you should know in advance is that I was not with the county at the time that this Keiser matter went before the Circuit Court or the Appellate Court. I'm going to base my knowledge on what I have read in orders and what I have also communicated with other attorneys in my office. I would like to just give you a brief background of the Keiser matter. The Keiser case came before this board a little over a year -- Page 31 March 27, 2003 two years ago and ultimately Mr. Keiser and Southern Exposure of Naples was found in violation for a series of land development code provisions. As with most cases, a couple months later fines were imposed for being in noncompliance. The order imposing the fines, I believe that's in your materials, stated that the fines were to be imposed at a rate of three hundred and fifty dollars per day. The order that was originally rendered by this Code Enforcement Board at the time, the findings of fact, conclusion of law and order of the board specifically stated that the respondent is to pay a fine for two hundred and fifty dollars per day for each day any violation described herein continues past that date and also pay a fine of a hundred dollars per day for each day any violation continues past the date. I believe that was for the permits and the certificate of occupancy, so it was two separate violations and two separate monetary amounts per day if Mr. Keiser and Southern Exposure did not comply. The attorney for Mr. Keiser and Southern Exposure sought a petition for certiorari in Circuit Court. The exclusive issue in that petition was whether or not the amount of fines imposed by this board and the imposition order was appropriate and whether or not that was contrary to the Chapter 162 provisions regarding fines that do mention two hundred and fifty dollars per day. The court find -- held that this board could only order two hundred fifty dollars per day for numerous violations. There wasn't too much detail in this order. The county attorney's office sought an appeal in the District Court and the District Court affirmed the Circuit Court's opinion without any specific direction. Only direction was that there should be further proceedings in a court with the order, the order that Judge Brousseau had signed such that any fine imposed shall not exceed two hundred and fifty dollars per day. So today we are before you to amend the order imposing the Page 32 March 27, 2003 fines and also amend the first order where you rendered your findings of fact and allowed for fines to be in excess of two hundred and fifty dollars per day. We can certainly go through that and change the numbers and discuss that. And if you would like, I can certainly give you some suggestions as to how these things can be made better in the future. Our office isn't quite certain that the law is that you cannot impose over two hundred fifty dollars per day. And we may address that in other cases in the future. But there are things that possibly can be changed to avoid a similar result in other cases. At this point in time I believe Michelle may have some information or your attorney may have some additional information, factually, that may be included in the order we're going to discuss today. MS. RAWSON: Basically, when an order of the Circuit Court that's been affirmed by the Second District Court of Appeals tells us that we need to change the order consistent with the order of the Second DCA and the Circuit Court, what that means is instead of three hundred and fifty dollars a day, we need to change the orders to reflect two hundred and fifty dollars a day. It's really I think that simple, because the Circuit Court nor the Second DCA wrote long opinions giving us lots of law. Told us that we couldn't charge but two fifty a day. VICE-CHAIRPERSON DUSEK: Jean, since I have not been involved with changing an order before, we -- all we need to do, if we change the amount, then we have automatically changed the order, is that correct, or do we have to change the order? MS. RAWSON: We're going to have to change the order consistent with the rulings of the Court. And so it would be an amended order that changes the fine from three fifty to two fifty. And we need to amend both the original order, which was February 26th, 1998, as well as the order imposing the fine, which was March Page 33 March 27, 2003 31 st, 2000. MR. FLEGAL: I think it's pretty straight forward. I'm ready to make a motion. Let's go. VICE-CHAIRPERSON DUSEK: Michelle, well, first of all does anyone have any questions for either Jennifer or for Jean at this point? Okay. Michelle. MS. ARNOLD: No, I don't have anything else to add. Mr. Keiser and his neighbor. VICE-CHAIRPERSON DUSEK: Yes. Mr. Keiser, would you like to come forward? MR. KEISER: Seeing that this is not a hearing, I guess that I won't be able to bring up a lot of things that we have done, would not be relevant to what we're doing today. The thing that we do feel that the fine, even the two hundred and fifty dollars is excessive and the time element is excessive. We feel it's more of a penal action for whatever reason than it is just the fine. In the beginning when this started, we were cited by one of the staff from the code and we went in and tried to rectify that by getting the necessary permits. And we went in and had the permit applications in hand, ready to pay the people and code came out and told the building department that they couldn't issue the permit because we were in violation, we didn't have a conditional use permit. So we couldn't get a conditional use permit because the building permits weren't -- weren't valid, so we were in a catch-22. We finally did go in and got our conditional use and it was approved by the planning board, five and oh, and by the Board of County Commissioners, five and oh. And we went back in and-- to bring everything up to code and the planners changed the -- changed the resolution. I mean, we were supposed to maintain the roads at a dust-free Page 34 March 27, 2003 level. Planning board came up and said that we had to pave the roads, we had to pave the parking lot. And engineering and everything said that, you know, that wasn't necessary. I can get into the, you know, logistics of that. So we really feel it's an excessive fine and also the time element needs to be adjusted. So I don't know what -- I don't know where we're going to go on that. So we have tried to work with them and we have come to a standstill. Every time that we have gone in, the county has changed it, the planning board has changed it. Like I said, we have got a copy of the resolution. The original resolution from the Board of County Commissioners is available and the ones that I have from the planning board are different. So we don't know which way to go. That's all I have. VICE-CHAIRPERSON DUSEK: Are there any questions for Mr. Keiser? I know some of you on the board were not here for this case, but there are a few of us who were. Did you neighbor wish to speak, Mr. Keiser? MR. KEISER: Yes, he does. MR. DREISCH: My name is Norm Dreisch, D as in David, r-e-i-s-c-h. My wife, Joan, and I are Mr. Keiser's immediate neighbors to the south. And I have a vested interest in what happens to him. I want him there because it's a lot better than having high rises and condominiums and other things right next door to us and we're about to make a major contribution to Collier's economy, it looks like. I was caught a little bit by surprise at the recent developments, because I knew about this guillotine that had been hanging over his head for some time. But the delays and length of time I thought that was in the past and suddenly it came back up again and I wasn't mentally prepared to deal with that. Page 35 March 27, 2003 I -- Mr. Keiser has covered some of the things that I mentioned -- that I wanted to mention. The biggest thing that we have, and our vested interests aren't pure, we want to have them there. It's that simple. I'm not a lawyer. I am a former major public government official myself, an administrator, and I am not a lawyer, but I did spend a night at Holiday Inn Express. I'm really looking for something and if there were violations, and I expect there were because I think code enforcement probably has that appropriately handled, the fine to me seems inordinately excessive. At two hundred and fifty dollars a day, I wonder what we do with people who commit murder and mayhem. That sounds out of sight to me. I am interested in equabilitas or equality for my neighbor so that he doesn't have to be forced to move or sell or something else in order just to pay the fine. So I want him there. I speak highly of him because he's been a good neighbor. I have helped him to do some of the things that we -- that he was supposed to do to come into compliance and I thought we were making good progress, but apparently it is not. This has been a long drawn-out process that started I think in 1998. The order of the judge to readdress the fine issue is over a year old. The guillotine has been hanging there for a long time. I would like to see it dropped to five dollars a day, get it over with and get it off the docket. I thank you very much for your time, really. Going back to the Holiday Inn Express. VICE-CHAIRPERSON DUSEK: Thank you. All right, Cliff. MR. FLEGAL: This is not a request for an abatement or reduction of fine. This is a court-ordered reduction of an amount from three fifty to two fifty. It's straight forward, real easy. Do exactly what the Court told us to do, reduce the amount from three fifty to two fifty and get it over with. Real straight forward. No other changes should be discussed or considered. Should do exactly Page 36 March 27, 2003 what the Court has ordered. MS. SAUNDERS: I have a question for Jennifer. Sorry. I think the gentleman raised an interesting point, if the court order was March 22nd, '02, why is it taking us a year to get to that? And in waiting that period of time, have we prevented them from perhaps coming in and asking for an abatement of fines or reduction of fines because of the time limit? MS. BELPEDIO: The -- the issue that was explored by my office was whether or not it was appropriate to have more of an administrative change to the order without the need of a hearing. That required some additional time. In addition, there has been some new case law in the Second District Court of Appeals, which I will be speaking about as part of another item in today's proceeding, and that case has led me to believe that we can -- we can change some things about the process in which the fines are imposed. Because of that, the decision was ultimately made to set it before this board. These things sometimes take a little bit of time with coordinating the various departments that are involved and we brought it to you as quick as -- as we could. MS. SAUNDERS: Has the -- MS. ARNOLD: The ability for him to request a reduction has not-- there is no time frame. MS. SAUNDERS: There is no time frame so he can still -- regardless of what we do today, he can still come in and request a reduction? MS. ARNOLD: What staff, my staff, would have to do is to verify compliance. I did speak to Mr. Keiser yesterday and he indicated to me that rather than obtaining building permits for some of the improvements that was made, he has since removed those things. So we have to go and verify that information and I'm-- we're attempting to schedule a visit with him at the present. Page 37 March 27, 2003 MR. PONTE: I really don't think we should be traveling this road at all. MR. FLEGAL: Right. MR. PONTE: The question before us is not even a question, it's an order from a judge. MS. ARNOLD: Right. MR. PONTE: And that should be followed, period, end. MS. BELPEDIO: I would just like to clarify something that Michelle had said. There is not an indefinite amount of time that Mr. Keiser will have to ask for a reduction in his fine. There has been also recent case law that takes the jurisdiction from the Code Enforcement Board away once these orders are recorded. So if the orders are recorded, then the opportunity for this board to reduce or consider reducing is -- is no longer. VICE-CHAIRPERSON DUSEK: Now, are you saying that whatever this fine is -- we haven't imposed the fine? We have, all right. That -- are you saying now that that time for coming back to us has lapsed for him to come back to ask for a reduction or an abatement? MS. BELPEDIO: This case is an extraordinary case. It's very different than the usual cases because it has gone up to court and come back and I think the ultimate effect of the Judge's order is that your order, the order imposing the fines is not a valid order. So any liens perfected, any recordings are, I think, void or non effect. MR. PONTE: I don't think he invalidated the order. All he did was to say, yes, you can fine two hundred and fifty dollars and perhaps he misread it, perhaps one of the things you're going to suggest this afternoon is that when we find multiple violations, that they be handled a little differently so that there can be an accumulative amount of more than two hundred and fifty dollars a day. Page 38 March 27, 2003 But following Judge Brousseau's ruling is simply to reduce the fine, get rid of that extra hundred dollar fine or hundred and fifty dollar fine that we put out and reduce it to two fifty. And that's what we should be doing. VICE-CHAIRPERSON DUSEK: And that's what we will do, but we have to follow -- we have to understand exactly -- we have two different fines here. And I guess we have -- we can't just -- Jean, let me ask you, we can't just arbitrarily say, all right, take a hundred dollars off. Don't we have to go to each one, like the conditional use permit, and decide and then go to the C.O.? Because how-- where is the hundred dollars going to be taken off?. MR. FLEGAL: May I say something? VICE-CHAIRPERSON DUSEK: Is it going to be taken off the two fifty? MR. FLEGAL: The hundred dollars is -- VICE-CHAIRPERSON DUSEK: Let Jean answer first. MR. FLEGAL: Well, it's in the order. If you just read the order, the hundred dollars is a specific line item. Just delete that line item and you're at two fifty and get on with it. It's real simple. VICE-CHAIRPERSON DUSEK: But there's one that says two fifty and there's one that says three hundred -- I mean one hundred, excuse me. MR. FLEGAL: I said and we're a hundred dollars over, just delete the hundred dollars and move on. MS. RAWSON: There are two orders. One was the original order that was entered in 1998 that delineated it to be two fifty and another hundred. That can't be more than two fifty, so we need to amend that. Then there's the other order imposing fines, which gives a blanket number for the number of fines based at three fifty a day. That has to be changed. MR. FLEGAL: Right. Page 39 March 27, 2003 MS. RAWSON: Those are the two things that we need to modify pursuant to court order. MR. FLEGAL: Right. And if we delete the hundred dollar line item in our original order and that's done, then you go to the imposition of fines. And since the order has changed now from three fifty to two fifty, we would just modify the order imposing fines from whatever that dollar amount is, which was calculated three fifty times so many days to two fifty times so many days. Pretty straight forward to me. VICE-CHAIRPERSON DUSEK: So it's just eliminating a hundred dollars, it doesn't matter whether it comes from the conditional use or from the C.O.? MS. RAWSON: It's the total. VICE-CHAIRPERSON DUSEK: It's the total, okay. MS. BARNETT: I've got a question because I think Jennifer was trying explain something to us that Michelle had said that once we rule on this, he has an indefinite period of time left to come back and ask for abatement. I think you're saying no, once we rule on this because it's gone to court that's null and void? MS. BELPEDIO: What I can do is coordinate with Jean, with Michelle, with the other attorneys in my office that handle foreclosures, Miss Chadwell, and give this board a better, more thorough opinion on that matter. At this point you would have to amend the order and you're required to -- we're required to record any orders once they're rendered. VICE-CHAIRPERSON DUSEK: Okay. So what we're going to do right now is amend the order. And that amendment has to be a hundred dollars off the total. So do I hear a motion? MR. FLEGAL: I would like to make a motion. On the original order dated the 9th of March, 1998, under the order of the board in Page 40 March 27, 2003 item two, where the fine amount's called out, in the second sentence, which delineates a fine of one hundred dollars, that the requirement for the fine of one hundred dollars be deleted. Not -- we don't want to delete that he has to accomplish something, we just -- I just want to delete the fine of a hundred dollars that he would be penalized if he doesn't accomplish it. MS. ARNOLD: Okay. Just point of clarification, if we do do that, understand that the only fine amount that would stand would apply to obtaining a conditional use permit and then we will then have to modify our order imposing fine to only reflect the obtaining of the conditional use permit, not the other violations. And we can -- we can probably come back with an affidavit of compliance for that reflecting the date of the conditional use. MR. FLEGAL: I withdraw it. And let me ask you, in having to modify this order, from the county's standpoint, since we're going to delete the hundred dollars, is it better for the county to have all of the items -- the problem is I don't think he can complete everything by August 28th, you know, where we had the two fifty, so we would have to back everything down to the March 20th date. Is that what you're recommending we do? We have two different dates. MS. ARNOLD: Right. MR. FLEGAL: So if you want some type of fine to apply to the second date, then we would have to not only delete the hundred dollars, but we can -- we can delete that and change the two fifty from maybe one fifty and put the other hundred dollars down in the MR. PONTE: Let me -- VICE-CHAIRPERSON DUSEK: what I was -- MR. FLEGAL: Would that be -- VICE-CHAIRPERSON DUSEK: That's what I was -- that's That's what I meant earlier. Page 41 March 27, 2003 THE COURT REPORTER: One at a time, please. MS. ARNOLD: It's the desire of the board whatever you want to say. I just wanted to clarify if we did do as the proposed motion states, that we would not have a per day fine amount for the other violations. MR. FLEGAL: Okay. MS. ARNOLD: And if you -- if it's the pleasure of the board to have -- to maintain a fine amount for both violations, then you would somehow have to split the difference and come up to a total -- MR. FLEGAL: Okay. MR. PONTE: Why can't we simply reduce the two fifty by a hundred dollars? MR. FLEGAL: Right. VICE-CHAIRPERSON DUSEK: That's right. MR. FLEGAL: Yeah. I will change my motion to do that. MS. CHADWELL: May I interject something? I'm Ellen Chadwell, assistant county attorney. Are we just changing the dollar amount, because I heard someone talking about dates for compliance? MR. FLEGAL: No dates. VICE-CHAIRPERSON DUSEK: Well, right now we're just -- MR. FLEGAL: No dates, no dates. VICE-CHAIRPERSON DUSEK: Let's do an amount. MR. FLEGAL: We're only doing money. The Court said money, nothing about dates. So no dates. VICE-CHAIRPERSON DUSEK: All right. MR. FLEGAL: Okay. I will take my motion back and change it that -- I would make a motion that we reduce the two hundred and fifty dollar amount in our order to one hundred and fifty dollars. MR. PONTE: I will second that motion. VICE-CHAIRPERSON DUSEK: Any more discussion? All in favor, signify by saying aye. Page 42 March 27, 2003 (Unanimous vote of ayes.) VICE-CHAIRPERSON DUSEK: Any opposed? (No response.) VICE-CHAIRPERSON DUSEK: Motion carries. The fine of two hundred and fifty dollars has been reduced to one hundred and fifty dollars. MS. ARNOLD: And do we need another motion for changing the order imposing fines? MR. FLEGAL: Yeah. I don't know if I have done this right, but I calculated, and, Michelle, maybe you can tell us, that this order was based on four hundred and ninety-five days? Was that the number? MS. ARNOLD: Yes. You are good. MR. FLEGAL: Okay. On our order imposing fine dated the 31st of March, 2000, I would make a motion we amend that order to read at a rate of two hundred and fifty dollars a day. Unless I did the wrong math, I came up with a hundred and twenty-three thousand seven hundred and fifty dollars. MS. RAWSON: How much? MR. FLEGAL: One hundred and twenty-three thousand seven hundred and fifty. Is that what -- I don't have a calculator. I did it -- VICE-CHAIRPERSON DUSEK: I have a calculator and that's correct. MR. FLEGAL: -- the old way. MS. ARNOLD: That's right. We can't figure that out with a calculator. No, it is right. VICE-CHAIRPERSON DUSEK: Okay. Are you making a motion? MR. FLEGAL: Yes, I made a motion that we amend our order imposing fine and change the amount from three fifty a day to two fifty and the new figure, since it's also in that order, is the hundred and twenty-three thousand seven hundred and fifty. Page 43 March 27, 2003 MR. PONTE: I'll second the motion. VICE-CHAIRPERSON DUSEK: Any more discussion? All those in favor, signify by saying aye. (Unanimous voted of ayes.) VICE-CHAIRPERSON DUSEK: Any opposed? (No response.) VICE-CHAIRPERSON DUSEK: Motion carries. Mr. Keiser, do you understand what we've done today? MR. KEISER: I think so. VICE-CHAIRPERSON DUSEK: Okay. Jennifer, did you have any more that you wanted to say in reference to this whole procedure since this has been new for all of us? You said you had some comments about future. MS. BELPEDIO: Okay. Wonderful. I'm Jennifer Belpedio. I have some suggestions that may lead to better results than the last case. And what I suggest is that when this board sees it fit and appropriate under the Chapter 162 to impose fines that are in excess of two hundred and fifty dollars, that this board specifically, as you did in the Keiser case, pars out your violations and dates by amounts of per day per fine. And also if at any point in time there is the imposition of fines, that that -- those proceedings be separated out and separate orders imposing fines be signed for each series of violations. I think that may lead to a better result. MR. PONTE: Which of those steps, just the last one, is that what we did not do? MS. BELPEDIO: Yes, yes. And it's difficult to determine what exactly the Circuit Court determined. It's even more difficult to determine what the District Court determined because they merely just affirmed the opinion. We don't know what will happen, but we can only give you suggestions. And if your cases, the next future case where this occurs is different, then we will have different -- a different position and different arguments to make. Page 44 March 27, 2003 MR. PONTE: Does it mean that we perhaps should in a case where there are -- there's dual situations, that it should be dated differently, that is one would be at one session and then the other fining procedure would be at the next meeting -- MS. BELPEDIO: I don't think -- MR. PONTE: -- to separate it? MS. BELPEDIO: I don't think that that's necessary, but I think that may be a better approach. It may be. It's not impermissible that this board were to hold separate days. It's just sometimes difficult to keep track of all of the different orders, especially ones that are running on the same property. MS. RAWSON: If you look at the two orders, the first order was delineated two fifty and one fifty or two fifty and one hundred. The second order imposing fines just said three fifty. And so as lay persons looking at that order, you would think, okay, well, that was the second order, but that's really not what the Circuit Court Judge said. So I don't really know the implications totally of the order except that I know that we were told it can't be more than two fifty. MR. FLEGAL: Let me just ask I think an obvious question. The order imposing the fine, what if we imposed the fine and didn't put the daily rate in? MR. PONTE: How do you do that? VICE-CHAIRPERSON DUSEK: How could you do that? MR. FLEGAL: What do you mean how could you do that? It's really easy. You're imposing a fine of-- from this period to this period and it's a hundred and seventy thousand dollars. You don't have to say how many days or how much a day. MS. BELPEDIO: I think in an effort to provide due process to respondents they need to know exactly what their -- the consequences are and how staff came to their conclusions, how this board came to'their conclusions. Page 45 March 27, 2003 MR. FLEGAL: I think it's easy to correct. Yeah, we can do it separately. Just a little more paperwork, but that's okay. Good suggestion. MS. BELPEDIO: Okay. VICE-CHAIRPERSON DUSEK: Thank you very much. MS. BELPEDIO: Thank you. VICE-CHAIRPERSON DUSEK: from Miss Chadwell. MS. CHADWELL: Good morning to the board. I'm sorry for thrusting myself into the last matter, but you know we lawyers, we get excited about things. MR. FLEGAL: We need all of the help we can get. MS. CHADWELL: I think you have in your packet status report summary dated March 27th, is that -- okay. I've tried to break down -- this is pretty much my standard format I think from here on out of the groupings of cases as they come in and what we start with is what's identified at the total cases. And what we have still in our office is what is identified as pending cases. You guys -- excuse me, you-all have sent a number of cases here in the last few months. I think a total of five have come back -- have been authorized for enforcement action. And so that has resulted in a total number of forty -- forty-nine, well, let me see -- forty-nine and you added five. So we had fifty-four cases. We currently have forty-seven cases. So we have disposed of seven cases since my last report to you. I have a number of old-- of the older cases pending in foreclose. They're still pending. We have two that I do hope to have some final disposition of-- on in the next month or two. So hopefully that will bring that number from the group one down to -- to eight. One of those I will mention in group one is the Keiser matter. And as Jennifer indicated, and I would like to have some input into And now we go to on reports Page 46 March 27, 2003 the decision or the opinion given to this board, as to whether we do -- they do have an opportunity to move to reduce fines and thereafter whether you have to reauthorize my office to enforce the matter. So because it affects me ultimately as to whether I can go forward on my lien foreclose, and this is an unusual matter in that the District Court of Appeals has basically said that your order improperly imposed a fine, we'd like to look at that a little more closely and see how that affects the status of the recorded order, whether we need to come back to the board for authorization, that sort of thing. So I appreciate your patience and we will be back to speak with you on that next month. But that is one of the ten cases that has been pending and has been pending for a number of years while this has been proceeding through the courts. We hope to have -- there are a good number of our current cases that we hope to start preparing for foreclosure suit. I will be asking Michelle very shortly to authorize some title commitments that will provide us with the necessary information to prepare our suit packages and file the foreclosures and then effect service on everyone. Some of the others are in settlement negotiations and we're still evaluating a good number of the others to determine what's most cost effective. So if you have any questions, I will be happy to answer them. VICE-CHAIRPERSON DUSEK: I appreciate it very much, you bringing this to our attention. MS. CHADWELL: Okay. Thank you for your time. MS. ARNOLD: Thank you, Ellen. VICE-CHAIRPERSON DUSEK: All right. I think we can close the general meeting and then open for our business of the board, which starts with the election of officers. So we need to vote for a chairman and a vice-chairman and we Page 47 March 27, 2003 will start with the chairman. Are there any nominations? There have to be some nominations. MS. GODFRED: I would like to -- I would like to nominate Cliff Flegal as chairman. VICE-CHAIRPERSON DUSEK: Are there any other nominations? MR. PONTE: Yeah, I would like to nominate you as chairman. VICE-CHAIRPERSON DUSEK: Okay. We have two. Are there any other nominations? All right. We will start with the first. All those in favor of Cliff Flegal, please raise your hand. (Ms. Godfred, Mr. Lefebvre, Ms. Barnett, Mr. Flegal.) VICE-CHAIRPERSON DUSEK: Okay. All those in favor of myself, raise your hand. (Mr. Ponte, Ms. Saunders, Ms. Dusek.) MS. ARNOLD: Everybody gets to vote on this one, right? MS. RAWSON: I think that's right. MR. FLEGAL: I thought it was the normal board, but that's okay. MS. RAWSON: I have to look under that section of the by-laws. They don't get to vote on the orders, but we might have made a difference for the officers. I have to look. MS. ARNOLD: It just says the candidate receiving majority vote shall be declared elected and shall serve a term of one year. MR. FLEGAL: Well, the board is seven members, two alternates and an alternate to fill any vacancy. MS. RAWSON: That's true. MR. FLEGAL: We don't have any vacancies. MS. RAWSON: That's under section five one, that's true. MR. FLEGAL: We're violating our own rules. Page 48 March 27, 2003 VICE-CHAIRPERSON DUSEK: Well, let's start again. All of those in favor of Cliff. MR. PONTE: So are we -- is everyone voting or no? VICE-CHAIRPERSON DUSEK: Just those who are in favor of Cliff. MR. FLEGAL: Just the regular. VICE-CHAIRPERSON DUSEK: The regular board members. Okay. Then that's it because there are only seven of us. And so Cliff will be the chairman. All those in -- excuse me, now we're going to vote for a vice chairman. COURT REPORTER: Madam Chairman, could I just get the vote again on that so I have the names for sure. VICE-CHAIRPERSON DUSEK: Yes. (Mr. Flegal, Ms. Godfred, Ms. Barnett, Mr. Lefebvre.) THE COURT REPORTER: Thank you. VICE-CHAIRPERSON DUSEK: Okay. Now, a nomination for vice-chairman. MS. GODFRED: I would like to nominate Bobbi Dusek as vice-chairman. MR. PONTE: Second. MS. GODFRED: Am I allowed to do that? VICE-CHAIRPERSON DUSEK: Are there any other nominations? (No response.) VICE-CHAIRPERSON DUSEK: Well, I guess that takes care of that one. Okay. Cliff Flegal will be the new chairman and I will act as vice-chairman. MR. FLEGAL: We need to vote on that. VICE-CHAIRPERSON DUSEK: Well, all of those in favor of Page 49 March 27, 2003 me, Bobbi Dusek. (Unanimous vote by hands.) VICE-CHAIRPERSON DUSEK: Unanimous. And now we're going to go to the by-laws and Cliff, we will let you take over. MR. FLEGAL: No, why don't you just keep going. VICE-CHAIRPERSON DUSEK: You're the new chairman, so go ahead. MR. FLEGAL: Rules and regulations. We were all asked to review them. Let's -- the county when they sent them had made some suggested changes. And probably the easiest way, if everybody has read through these, is to maybe go down the board and let people make their individual comments so we can talk about them rather than just put our hands up. We will just kind of go in order, if that's acceptable. We will start down with Rhona, do you have any suggestions? MS. SAUNDERS: No, I don't. MR. FLEGAL: Albert. MR. DORIA: No, sir, I don't. MR. FLEGAL: Kathryn. MS. GODFRED: No. VICE-CHAIRPERSON DUSEK: Cliff, are you starting just with article one or are you -- any part? MR. FLEGAL: No, anything in general, if you have any changes, we will just go one at a time and I think it will be -- we can just see what they're doing. I will switch to the other end and Chris. MR. RAMSEY: No remarks. MR. LEFEBVRE: No remarks. MR. PONTE: No changes. MR. FLEGAL: Bobbi. VICE-CHAIRPERSON DUSEK: Yes. May I have some Page 50 March 27, 2003 comments? Now, let me just get everything organized here. Article six. MR. FLEGAL: Article six. Order of business? VICE-CHAIRPERSON DUSEK: Yes. MR. FLEGAL: Okay. VICE-CHAIRPERSON DUSEK: Now, let me -- I have taken some notes awhile ago and I will have to understand what I have written here. I guess what I was wondering, we have put motions before the public hearings and the agenda? MR. FLEGAL: Yes. VICE-CHAIRPERSON DUSEK: Now, does number four include those motions or do we need to have another section that says motions? MS. ARNOLD: We can modify that -- we should modify it to reflect the recent changes, but it's all under public hearing. VICE-CHAIRPERSON DUSEK: Okay. MR. FLEGAL: Maybe could we do like public hearing, slash, motions so that it -- or something like that? MS. ARNOLD: So people recognize it? MR. FLEGAL: How does that fit with everybody? MR. PONTE: Fine. MR. FLEGAL: Good suggestion, Bobbi. VICE-CHAIRPERSON DUSEK: And I have another one. Article eight, number two. Let's see, oh, where it says exceptional circumstances. Who determines exceptional circumstances? MR. PONTE: Under article eight, Bobbi, where are you? VICE-CHAIRPERSON DUSEK: Oh, section two, I'm sorry. Article eight, section two. MR. PONTE: Thank you. VICE-CHAIRPERSON DUSEK: The board may waive the requirements set forth in this paragraph under exceptional circumstances. Page 51 March 27, 2003 Is there a reason to specify who determines exceptional circumstances? MR. FLEGAL: Well, I think it would be -- if somebody wants to make a motion, Jean, if they didn't follow this and they just showed up that day and said, gee, I want to make a motion, then we would have to vote immediately as to why we thought we would let them get out of this paragraph, right? MS. RAWSON: I think that the -- as I recall the discussion when this was placed in your by-laws or your rules and regulations, it had to do with whether or not it would be cost prohibitive for some of our respondents to provide you within fifteen copies -- with fifteen copies five days prior. You know, we -- I think, although I'm not sure that this is the right paragraph, and I think it had to do with the cost or maybe it had to do with the fact that sometimes we don't have five days and fifteen copies. MS. ARNOLD: But do you know what, you-all -- and I think this was an issue at the last hearing, which unfortunately I was not here, where we requested that information be provided five days prior so you have adequate time, so the staff has adequate time to review things because we are required to provide to respondent things ten days prior to the hearing. This would address those things that are distributed to you at the hearing and then that wouldn't give you, other than your review at hearing, adequate time to review it. So you do make those exceptions at the hearing. I mean, those would -- you accepting the documentation would be, I guess, a determination of waiving the requirements. MR. FLEGAL: Right. VICE-CHAIRPERSON DUSEK: Okay. All right. Number 9-B. And I wrote something down, but I'm not sure what I meant by it. Well, I will come back to that one. In section twelve. I will come back to that if I figure out what I Page 52 March 27, 2003 meant. In section one, this is just a typo, change "and" to "a", that's a typo. MR. PONTE: Do you know what? VICE-CHAIRPERSON DUSEK: What? MR. PONTE: I thought of that. And I thought whoever typed this has gone to the new school. Chalk on the blackboard. MS. RAWSON: No, it's probably me. So I stand corrected. Thank you. VICE-CHAIRPERSON DUSEK: Okay. And also another-- let me see, where is it now? Section six, when properly recorded. That's right. Properly, when properly recorded. MR. FLEGAL: Property, oh, yeah. VICE-CHAIRPERSON DUSEK: And that's it. MR. FLEGAL: The only ones I had were on page eight, article ten, section one, the county took out the word should and put shall. I think we went through this a couple of times in the very beginning. This board doesn't have the power to order the county to do anything, so that's why we said should. And unfortunately the county attorney doesn't work for this board, so from this board's perspective, we can only operate under our power structure, which doesn't include ordering the county to do anything. So our own private rules is we would suggest the county file these things, but we can't order them to file these things, which it says -- when you say shall that's basically an order and we can't do that. MS. ARNOLD: Jennifer may want to request that because that was a modification made at her -- MR. FLEGAL: Well, I understand she may want it, but we don't, under the power given us by one sixty-two and the ordinance, we don't have the power to order the county to do anything, so we're not going to write a rule and regulation that orders that because we Page 53 March 27, 2003 don't have that power. MS. BELPEDIO: I would like to just at least explain why that change has been made and, of course, it's up for this board to make the decision as to what ultimately to put into that section. And as you know, these are your board's rulings and regulations. These are things that you are requiring, that you expect, that the county must comply with or the other persons involved in this proceeding. If you are going to put suggestions in there, these things aren't necessarily to be even included in the first place. If you want us to do these things, we will do them whether or not they are in here. That's something that can be done and is best to be done. Shall I believe is a better approach when you're dealing with legislation, regulations, rules, but, of course, that's for your -- your decision. I just wanted you to know where -- what the reason for the revision was. MS. ARNOLD: I guess another way to do it, to look at it would be if-- I agree with your assessment that you can't order staff or the county to do anything, but if we fail to do these administrative proceedings, then with the word shall in there, it would be a reason for you finding no violation or finding that procedurally we did not bring something to you in accordance with the rules and regulations. MR. FLEGAL: I understand everything you're saying. Jean, I know we're allowed to make our own rules and regulations, but I go back again that the only power given us is to do certain things. And that power includes making our rules and regulations, which I would assume in good common sense we are not allowed to stretch that by ordering other folks to do anything. The rules and regulations are supposed to be how this board operates, not how the departments of the county operate. MS. RAWSON: That's true. And you don't have the power to fine them if they don't do what you say. Page 54 March 27, 2003 I don't want to take this out though because I think it's important that we all know what the procedure is. I understand and I remember the discussion about shall and may. And we went with should because that's a little stronger than may. And I understand exactly what you're saying, but I wouldn't want to eliminate this whole section because it flows. MR. FLEGAL: No, I'm just saying that one word. So in essence let's say we put the word in, shall. And let's say the county doesn't do it. MS. RAWSON: Well, you have -- you have no enforcement powers. MR. FLEGAL: Right. So why put it in? MR. PONTE: Well, then you're -- well, then you're saying, really, same logic, section one should be deleted. MR. FLEGAL: No. If it's in there, then the county understands that under our rules of operation we're suggesting rather strongly that they should, you know, make a reinspection, but we can't order them to reinspect. We have no authority to do that, but the only way they're going to find compliance is we think they should make a reinspection. MS. ARNOLD: But if you have it in there that we shall do that and we bring to you, for example, an affidavit of compliance or noncompliance, you can, if we fail to do that inspection, not agree to accept or approve that affidavit because we failed to follow something under your rules. MR. FLEGAL: I understand all of that. MS. ARNOLD: Because procedurally it's not correct. MR. FLEGAL: It will be done by a vote. I just think that you exceed authority when you put something in there that you literally have no statutory authority to do. VICE-CHAIRPERSON DUSEK: Jean, is there a problem with keeping the word "shall" in? Page 55 March 27, 2003 MS. RAWSON: This is really interesting because the people that you're ordering to do things seem to want to be ordered. VICE-CHAIRPERSON DUSEK: So is there a problem? MS. RAWSON: I don't think there's a problem. The problem would be is if-- and I think Michelle has really told you what the remedy is. The remedy is that the person isn't going to get fined if the county didn't do what they were supposed to do, you know. But if you order them to do something that they don't do, you can't enforce it against them. VICE-CHAIRPERSON DUSEK: I don't see a problem with leaving that in. I like authority. MS. ARNOLD: It doesn't matter to staff. The reason why it was being proposed is that the county attorney's office suggests that we change that. I was here for all of the discussion about the should and the shall. I'm just kind of throwing these things out to you as well. If you-all decide to change it to shall, that's how it can be interpreted. It wouldn't be viewed as you directing us to do anything. We're going to do it irregardless of whether or not you tell us to. MR. FLEGAL: But when you have a sentence like this, any sentence that says shall, you're giving the impression that this board, and as we all know over the years it will change, has the power to order the county to do something. And we do not have that authority. Now, I understand the county may like it and the county attorney's office could probably order you to do something, but we can't. So that's my only thing, you know. I just don't think that you should give the impression that the board has power that it really doesn't have. That's very misleading to people. And these get mailed out, you give them to people outside and they have used them against us before, they have brought 'em up. So if you put it in here and they Page 56 March 27, 2003 come in to argue their case and all of a sudden they say, well, the county didn't do this, what are you going to do to them? Well, we don't have any power. Well, then why did you write it? So I just don't like it, but if the members want it in there, hey, this is -- works on a majority vote and they can have in there what they want. MR. PONTE: But you're right. I mean the shall portion is unenforceable in one or two. MR. FLEGAL: Right. Yeah, I'm against anything that says shall because we don't have power to enforce it. So we would like them to do it, we would suggest they do it because that makes getting our information easier, but we can't order them to do it. So, you know, I just didn't like things, but that's okay. You can vote on it either way you like, that's fine. My other comment was section two, where we say a copy of the affidavit shall be mailed. We can do that because those are supposedly, I assume, mailed by our attorney. So that's not a problem. Or the secretary to the board, and we can order the secretary to the board to do pretty much anything. MS. RAWSON: I think-- MR. FLEGAL: It just happens she works for the code enforcement department, but she works for us, too, and we understand that. So we can make sure something is mailed. That's not a problem. So that one I don't have a problem with, just the first sentence. Section three, administrative hearing. Jean answered my questions on that. It's really not a, quote, unquote, hearing per se, so I don't have a problem there. VICE-CHAIRPERSON DUSEK: But, Cliff, before you go on, shall we vote on shall? MS. RAWSON: I think we should. MR. FLEGAL: I was just going to finish the page and then go Page 57 March 27, 2003 back. VICE-CHAIRPERSON DUSEK: Well, why don't we just go ahead with shall. MR. FLEGAL: Okay. Section one, the change from should to shall. VICE-CHAIRPERSON DUSEK: I make a motion that we leave it at shall. MS. BARNETT: I will second it. MR. FLEGAL: Okay. We have a motion and a second. I don't think there's a need for any more discussion. Now, in voting on our rules and regulations, it's just the board of seven members, so we don't mess up. MS. RAWSON: I think it is. MR. FLEGAL: Okay. All those in favor of changing from should to shall as the motion suggests signify by saying aye. (Vote of ayes.) MR. FLEGAL: All those opposed? (Vote of ayes.) MR. FLEGAL: Okay. It stays in. My objection in section two is the first sentence, again, putting the word shall in there. The sentence that they added a copy of, I don't have a problem with that sentence. It's just the very first sentence, changing from should to shall. So I would entertain a motion to change it or not change it. VICE-CHAIRPERSON DUSEK: I make a motion that we leave shall. MR. PONTE: I will second. MR. FLEGAL: We have a motion and a second. All of those in favor, signify by saying aye. (Vote of ayes.) MR. FLEGAL: Opposed? (Vote of ayes.) Page 58 March 27, 2003 THE COURT REPORTER: Could I have the names? MR. FLEGAL: Four to three. Section three, I don't have a problem with. So as it's proposed to us, any comments on the proposed change? Okay. I guess we need a motion to change it as suggested. MR. PONTE: So moved. MS. BARNETT: Second. MR. FLEGAL: We have a motion and a second to change section three as presented to us. All those in favor, signify by saying aye. (Unanimous vote of ayes.) MR. FLEGAL: Those opposed? (No response.) MR. FLEGAL: Unanimous. Section four, I guess my question is we -- we're talking about a -- did we cover this, is that why you read down in item two where you have added the -- MS. ARNOLD: What we did in the section three is delete the separate notes about affidavit and compliance. We just combined it all together in one. MR. FLEGAL: Okay. That's what I thought. I just wanted to make sure. So section four is recommended to be taken out? MS. ARNOLD: Yes. MR. FLEGAL: Any motion to do so or not do so? MS. SAUNDERS: So moved. MS. BARNETT: Second. MR. FLEGAL: We have a motion and a second. MS. SAUNDERS: To delete section four and change the number of five to four. MR. FLEGAL: Okay. We haven't gotten to that one yet, but just to delete section four as recommended. Rhona has made a Page 59 March 27, 2003 motion to do that and I think Sheri seconded it. All those in favor, signify by saying aye. (Unanimous vote of ayes.) MR. FLEGAL: Those opposed? (No response.) MR. FLEGAL: Current section five to be renumbered four. I would make a motion that we do that. VICE-CHAIRPERSON DUSEK: Second. MR. FLEGAL: All those in favor, signify by saying aye. (Unanimous vote of ayes.) MR. FLEGAL: Any opposed? (No response.) MR. FLEGAL: I don't think there were any other changes. Any other thoughts, changes, suggestions? MR. PONTE: Did we -- we didn't vote as we have here with those minor corrections that were suggested, that is the "and" and the "properly", do we have to do those? MR. FLEGAL: Well, I think those are -- MS. RAWSON: Those are typos. I'll fix them. MR. FLEGAL: Typical scrivener's errors or something. Now, Jean, that we have voted in those changes, we don't need to revote in the whole section, do we, those changes will be sufficient? MS. RAWSON: Those changes will be sufficient. Now, assuming you all vote for them, I will have a clean copy for your signature at the next meeting. MR. FLEGAL: Okay. MS. ARNOLD: I have suggestion. MR. FLEGAL: Yes, ma'am. MS. ARNOLD: Does the board want to consider clarifying the actions at the annual meeting? I think the election of officers and some of these rules and regulations, it's nice -- it would be a good Page 60 March 27, 2003 thing to hear from our alternates and get their opinions on those things. If perhaps the board would consider including them as voting and discussion members at the annual meeting or this -- this process. MR. FLEGAL: Well, I think on the -- on the rules and regulations, we did ask them if they had any comments. We just didn't let them vote. MS. ARNOLD: Right. Just a thought. MS. SAUNDERS: I think Michelle's comment is a good one. I don't see any reason they can't participate fully other than in the public hearing portions. VICE-CHAIRPERSON DUSEK: I think we should do that. MR. FLEGAL: Okay. I'm thinking of a good-- VICE-CHAIRPERSON DUSEK: They are board members, even though they're alternates. MR. FLEGAL: Jean, in article four, could we add a section four that would say something to the effect that the election of officers, since it's under that section four, would say that the full Code Enforcement Board, consisting of seven regular members and two alternates shall vote on the election of officers. MS. RAWSON: You could or you could put it in section two, account of receiving a majority vote of the regular members and alternates. I mean, if that's the pleasure of the board that you want that changed, I can do it either way. VICE-CHAIRPERSON DUSEK: I make a motion that we do include the alternates in our discussion and vote of the rules and regulations. And where it goes, it doesn't -- it doesn't really matter to me. MS. SAUNDERS: I think we want to include them in all administrative matters other than public hearings, if possible. VICE-CHAIRPERSON DUSEK: That sounds good, Rhona. I will amend it. MS. SAUNDERS: Okay. Thank you. Page 61 March 27, 2003 MS. ARNOLD: But article four only speaks to the election. MR. FLEGAL: Right. And then rules and regulations aren't back until we get to article thirteen, so let's keep them separate and not confuse them. VICE-CHAIRPERSON DUSEK: If I take Rhona's suggestion and do administrative procedures, would that include everything? MR. FLEGAL: Well, when you say -- MR. PONTE: The way it's worded, it would. MR. FLEGAL: Yeah, unfortunately when you say administrative, administrative procedures is -- VICE-CHAIRPERSON DUSEK: Outside of the public meeting. MR. FLEGAL: Administrative is when we accept various forms from the county and it's a seven-member board and only that board can do that. So the only thing they're not included in in reality is the election and revising these articles, because that's the only things we really do, quote, unquote, outside of the public domain so to speak. So I think we should put them in the two articles and then they would have a say in what goes on. MS. ARNOLD: I think what we ought to do if we want to consider both is maybe modify section one where we're talking about nominations and the actual elections so nomination of the chair and the vice-chair shall be made from the floor at the annual organization meeting in March of each year. And possibly put some language in there, nominations come from the full board, including alternates, and elections would take place immediately after-- of the full board. MR. FLEGAL: Okay. But when I said add a section four that says that the board and the two alternates can participate, that would let them be part of the nominations. MS. ARNOLD: All right. Sorry I missed that. MR. FLEGAL: They aren't available to be the chair or Page 62 March 27, 2003 vice-chair. MS. ARNOLD: MR. FLEGAL: MS. ARNOLD: MR. FLEGAL: Right. But they could nominate people and vote. Right. If we added a section four to that article. Would that be correct, Jean? MS. RAWSON: That's true. MR. FLEGAL: Okay. Let's do it under a section four, where we state that the -- the full Code Enforcement Board consisting of seven regular members and two alternates will participate in the election of officers. That way they can nominate and vote. They can't nominate themselves, but they can nominate and vote. MS. BARNETT: I thought we had a motion on the floor with a second. VICE-CHAIRPERSON DUSEK: We do, but that's all right. MR. FLEGAL: I'm sorry, I got lost. VICE-CHAIRPERSON DUSEK: That's okay, because it's essentially saying the same thing but in different words. And I think it's being more specific with the way Cliff has worded it. So I will just amend the motion to go along with putting it in section four, which would include the regular members and alternates. MR. FLEGAL: How is that, Rhona, you were on the second? MS. SAUNDERS: That's fine. MR. FLEGAL: Okay. All those in favor of adding that section four to article four signify by saying aye. (Unanimous vote of ayes.) MR. FLEGAL: Those opposed? (No response.) MR. FLEGAL: Okay. And then back in article thirteen, where it states rules and regulations may be revised and adopted consistent -- during the regular meeting by the affirmative vote of at least four Page 63 March 27, 2003 members of the board. Jean, how would you recommend we change that so that we can include -- MS. RAWSON: It would have to be a majority of the total board, which would include regular members and alternates so it's going to be more than four. MR. FLEGAL: Right. If we have now nine, it would have to be at least five. So during affirmative vote of the -- by an affirmative vote of the full board. VICE-CHAIRPERSON DUSEK: Including alternates. MR. FLEGAL: Consisting of seven regular members and two alternates, however you can word that to be -- the number would be five now, okay? MR. PONTE: Is there anywhere we have to kind of be careful here? Suppose someone was absent, the way that's just worded, sounds like we couldn't vote. MR. FLEGAL: True. Why don't we say -- instead of putting a number, why don't we say quorum? MS. RAWSON: Majority. MS. ARNOLD: Majority. MS. RAWSON: Well, the word in there now is not quorum, it's affirmative vote -- MR. FLEGAL: Of a number. But I'm saying we take the number out if we include the -- MS. ARNOLD: Majority. VICE-CHAIRPERSON DUSEK: Majority. MR. FLEGAL: Yeah, we either make it a quorum or a majority. MS. ARNOLD: Majority present. MR. FLEGAL: Majority present would be cool. How's that, Jean? MS. RAWSON: That's good because we have another section in there that talks about a quorum. Page 64 March 27, 2003 MR. FLEGAL: Okay. Let's make it the majority then. suggestion. Do I hear a motion to change that section one? VICE-CHAIRPERSON DUSEK: So move. MS. GODFRED: Second. MR. FLEGAL: All those in favor, signify by saying aye. (Unanimous vote of ayes.) Those opposed? MR. FLEGAL: (No response.) MR. FLEGAL: MS. ARNOLD: MR. FLEGAL: Good MR. FLEGAL: those in favor-- MS. ARNOLD: Any other suggestions? No. Our next meeting is April 21st. Please, everybody remember that is a Monday and we will get the time. We know the location. We will get the time and room from Michelle's office. Any other comments? VICE-CHAIRPERSON DUSEK: I make a motion that we adjourn. MS. SAUNDERS: Second. We have a motion and a second to adjourn. All Excuse me, excuse me, before you adjourn. The county attorney -- MS. BELPEDIO: There's an item that's reflected on your schedule regarding a recent change in the District Court of Appeal, the Second District Court of Appeal regarding imposition of fines. Is this something that you would rather have addressed at the next hearing for the sake of time? MS. ARNOLD: We talked about that. MR. FLEGAL: We did that while you were out of the room. MS. BELPEDIO: There is case law. Did you review a copy of that case? Are you aware of that change? Page 65 March 27, 2003 MS. RAWSON: I didn't give them a copy of the case, but we had a discussion about what constitutes a hearing and about the imposition of fines and due process. MS. BELPEDIO: Okay. MS. RAWSON: So, you know, there were no other further questions, so I think they got a clear understanding. MS. BELPEDIO: Okay. MR. FLEGAL: Yeah, we're going to let them speak, so that's not a problem. MS. BELPEDIO: Okay, great. Well, if you would like a copy of the case or any additional information, that can be provided to you at any point in time. VICE-CHAIRPERSON DUSEK: Thank you. MR. FLEGAL: We have a motion and a second to adjourn. All those in favor, signify by saying aye. (Unanimous vote of ayes.) MR. FLEGAL: Those opposed? (No response.) MR. FLEGAL: Thank you very much. Remember the 21 st. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 1 1:16 a.m. COLLIER COUNTY CODE ENFORCEMENT BOARD ROBERTA DUSEK, VICE-CHAIRPERSON TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY DEBRA J. DeLAP, N.P. Page 66