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CEB Minutes 08/21/2003 WAugust 21, 2003 TRANSCRIPT OF THE WORKSHOP OF THE CODE ENFORCEMENT BOARD Naples, Florida August 21, 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 10:00 a.m. in SPECIAL SESSION at the Naples Library Facility, Airport Road and Orange Blossom, Naples, Florida, with the following members present: CHAIRMAN: Clifford Flegal Sheri Barnett Roberta Dusek George Ponte Rhona Saunders ALSO PRESENT: Jean Rawson, Attorney for the Board Michelle Arnold, Code Enforcement Director Jennifer Belpedio, Assistant County Attorney Shanelle Hilton, Code Enforcement Coordinator Ellen Chadwell, Assistant County Attorney Page 1 CODE ENFORCEMENT BOARD WORKSHOP AGENDA August 21, 2003 10:00 o'clock A.M. Library Facility at Airport Road and Orange Blossom Naples, Florida, in the Conference Room NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM MUST REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER WITH THE COUNTY STAFF PRIOR TO THE PRESENTATION OF THE AGENDA ITEM TO BE ADDRESSED. ALL REGISTERED PUBLIC SPEAKERS WILL BE LIMITED TO FIVE (5) MINUTES UNLESS PERMISSION FOR ADDITIONAL TIME IS GRANTED BY THE CHAIRMAN. IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PROCEEDING, YOU ARE ENTITLED, A T NO COST TO YOU, TO THE PROVISION OF CERTAIN ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY FACILITIES MANAGEMENT DEPARTMENT LOCA TED A T 3301 EAST TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (239) 774-8380. 1. ROLL CALL 2. PRESENTATION A. Local Government Code Enforcement Boards Act · Chapter 162 of the Florida Statutes B. Sunshine La~v · General · Ex-Parte Communications C. Code Enforcement Board Rules and Regulations M. Jean Rawson M. Jean Rawson D. Public Hearine Process · Enforcement Procedure · Conduct of Hearing · Finding of Fact Order E. Imposition of Fines/Lien · General Procedures · Recording Massey v. Charlotte Coun_ty M. Jean Rawson Fo Jennifer A. Belpedio Jennifer A. Belpedio and Ellen T. Chadwell · Section 162.09 (d) of the Florida Statutes allowing a County to increase fines amounts by vote. Requests for Reduction/Abatement Jennifer A. Belpedio · General Procedures and Ellen T. Chadwell · Attorney General Opinion 2002-62 regarding the authority of Code Enforcement Board to reduce fine where order imposing fine recorded. COMMENTS NEXT MEETING DATE August 28, 2003 at the Library on Orange Blossom, Sugden Theater ADJOURN August21,2003 CHAIRMAN FLEGAL: Itts 10:00, we'll call the Code Enforcement Board workshop to order. Please take notice, all persons wishing to speak on any agenda item must register prior to speaking. The speakers must register with the county staff prior to the presentation of the agenda item to be addressed. All registered public speakers will be limited to five minutes, unless permission for additional time is granted by the Chairman. If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact Collier County Facilities Management Department, located at 3301 East Tamiami Trail, Naples, Florida, 34112, phone number 239-774-8380. That being said, we'll have a roll call, please. MS. HILTON: Good morning, ladies and gentlemen. For the record, Shanelle Hilton, CEB Coordinator. Cliff Flegal? MR. FLEGAL: Present. MS. HILTON: Bobbi Dusek? MS. DUSEK: Here. MS. HILTON: George Ponte? MR. PONTE: Here. MS. HILTON: Rhona Saunders? MS. SAUNDERS: Here. MS. HILTON: Sheri Barnett? MS. BARNETT: Here. MS. HILTON: Now, I got a phone call from Albert. He had a work emergency. Michelle, have you received any phone calls? MS. ARNOLD: No, no phone calls from anybody else. MS. HILTON: Okay. So I will follow up on Christopher Page 2 August 21, 2003 Ramsey, Kate Godfrey and Gerald Lefebvre. CHAIRMAN FLEGAL: We have five regular members, so we do have a quorum and can proceed. Since this is a workshop, do we need to approve an agenda? MS. RAWSON: I don't think so. CHAIRMAN FLEGAL: Okay. First item on the agenda, local government Code Enforcement Board's Act. Ms. Rawson. MS. RAWSON: I'm a little disappointed that I'm speaking to the choir, because a lot of the things that I'm going to say this morning, those of you that are present here today know very well, and you could give this presentation as well as I. I was really hoping to catch the new people up to snuff. So you're going to have to do your part, while doing it in the Sunshine, to help me be sure that they understand. CHAIRMAN FLEGAL: What else is new? MS. RAWSON: Well, even though it's not exactly the way the agenda is, let's start with the Sunshine, since that's the way that my staff stapled this together. Let's start with the Sunshine Law. Most of you know what the Sunshine Law means. It's -- Florida, by the way, has one of the broadest Sunshine laws in the nation. And it is so broad, I was speaking to Judge Manalich the other night and I said to him, well, I've learned all I know about the Sunshine Law from you, sir. And he said, here's what you really must emphasize to the board, that, you know, they take the position now in Tallahassee that even if there's a hint of impropriety, even if you aren't convicted-- and of course as you know it's a criminal offense, even if you aren't convicted, first of all, the Naples Daily News will get you, but after that they really take the position that even if there's a hint, you know, you need to leave your office. So you must be very, very careful to never discuss anything that is going to be brought before this board to another member of this board. And if the two or three of you are ever together or you bump into Page 3 August 21, 2003 each other, you happen to be sitting at the same table, just be careful that you don't talk about the Code Enforcement Board. What I did is I gave you a hand-out, the first pages of which are from the Florida Attorney General's web page, with some most frequently asked questions about Florida's open government laws. What is the Sunshine Law? It provides a right of access to governmental proceedings at both the state and local levels. It applies to a gathering of two or more members of the same board to discuss some matter which will foreseeably come before that board for action. It's important that you know that you don't need to have a quorum, it doesn't even need to be a meeting. You just can't talk about anything that's going to come before this board with another member of the board. The Sunshine Law requires that meetings of boards or commissions be open to the public. That's why even our workshops are open to the public. Reasonable notice of such meetings must be given. Reasonable notice of all our meetings are given, as you may know, including this one. And minutes of the meeting must be taken. As you know, we always have our crack court reporter with us, and she then transcribes the minutes of the meeting for us. And those minutes of the meeting are available to anybody in the public who wants to read them. And some of them will come back to haunt us at the appellate level, which Jennifer will talk about in a little bit. The Government in the Sunshine Law applies to any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or political subdivision. Obviously, that includes you, the Code Enforcement Board of Collier County. Skipping on to the bottom of the page, what qualifies as a meeting: The Sunshine Law applies to discussions or deliberations, Page 4 August 21, 2003 as well as the formal action taken by a board of commission. The law, in essence, is applicable to any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matters on which foreseeable action will be taken. Foreseeable means it could happen in the future. It hasn't come before you yet. You don't know that it will come before you, it hasn't been on your agenda, but it foreseeably could be a possible code violation that you might have before you, so don't talk about it. There's no requirement that a quorum be present for a meeting to be covered under the law. So if two of you are standing out in the hall talking about one of the cases, that's a meeting, and that's a violation of the Sunshine Law. Now, skip down to the question about can the citizen have a right to speak at the meeting. Public agencies are allowed to adopt reasonable rules and regulations, which we have, to ensure the orderly conduct of a public meeting and which require orderly behavior on the part of public attending. This includes limiting the amount of time an individual can speak and, when large numbers of people attend and wish to speak, rather than having them all speak, you can request that one spokesman speak for them. And those of you who have been around for a while know that we do that. If we have, you know, like 65 members of one condominium association, we usually ask them who is your spokesperson. But generally speaking, we will let the public speak. If there are a lot of people there, nothing wrong with having them sign in and limiting the time that they speak. Obviously we want our meetings to all be orderly and we want to all feel safe, which we don't always feel. That's why there's usually a security guard with us in our meetings. Can you vote by secret ballot? The Sunshine Law requires that meetings of public boards or commissions be open to the public at all times, thus no, no secret ballots. That would violate the law. What's really interesting, the way you vote is you ask them Page 5 August 21, 2003 what's your vote and you all vote at the same time. You could poll the members and have them vote one at a time. Either would be permissible. If you poll everybody at one time, you know, that might influence somebody on the other end of the table. But either way is fine, it just has to be in public so that your vote is recorded. Public records are official business and public records are available to the public. And I think Judge Manalich told you one time when he was speaking to you about public records that if you make jottings or notes or on any of your agendas, that you need to give that back to Michelle, or -- Peter used to send them all to my office -- but that's a public record. Skipping over to Page 3, on the bottom, the last question, what's the difference between the Sunshine Amendment and the Sunshine Law? The Sunshine Amendment is a Florida Constitutional amendment, and it provides for full and public disclosure of the financial interest of public officers, that's what the amendment is, so not to be confused with the Sunshine Law, which is open meetings. The next attachment that I have here is actually the statute for you, 286.100 (sic), public meetings and records, which pretty much is the statutory authority for the questions that I just asked. And the first, No. 1, is the definition of what is a public meeting. But if you skip down to 3, it will let you know how seriously the legislature considers this. Any public officer, you, who violates any provision of this section is guilty of a noncriminal infraction, punishable by a fine not to exceed $500. Any person who is a member of a board or commission, you, who knowingly violates the provisions of this section by attending a meeting not held in accordance with the provision is guilty of a misdemeanor in the second degree. And I really don't want to have to worry about bailing any of you out of jail. If you read on through the statute, I love this part, they always Page 6 August 21, 2003 tell you that the court can assess attorney's fees for violations. And paragraph six, just to point out to you, any -- all persons subject to section one are prohibited from holding meetings. All persons, that would be us, are prohibited from holding meetings at any facility or location which discriminates on the basis of sex, age, race, creed, color, origin or economic status, or which operates in such a manner as to unreasonably restrict public access to such a facility. So we're very careful that we have our meetings in the Code Enforcement Board, the County Commission chambers or, as we are today, we're having our meeting here in a public library that's been advertised and that's open to the public. Now, although this is not part of your hand-out, let me just run through a couple of other things with you. If you were to look at Florida Statute 112.313, it tells you what the standard of conduct for public officers are. You are all public officers. So let me just kind of run through some of those with you. A public officer is any person appointed to hold office in an agency, including any person serving on an advisory board. So clearly you come under the purview of Florida Statute 112.313. So what can you not do? No solicitation or acceptance of gifts. You have the very same rule that anyone else does. When I was speaking with Judge Manalich the other night -- actually, it was at a cocktail party -- I said, "Well, I guess I can't buy you a drink now." And he said to me, "You could never buy me a drink, I work for the county." And I said, "Oh, well, I'm glad to know that." I don't think I ever did. And I certainly know that I can't -- you know, if ! happen to be sitting at a luncheon and I have lunch and there's a judge seated at my table, I certainly can't pick up the tab. I mean, you know the County Commissioners can't take anything. Well, guess what? You're still a public officer, too, so you are included in here. So if any one of our many litigants that appear before you want to take you out to lunch after the meeting, don't let Page 7 August 21, 2003 them pay. And don't discuss the case. No doing business with the county, because that would be a conflict of interest. No unauthorized compensation, no misuse of your public position, no conflicts of interest, no disclosure of information not available to members of the general public. That's -- again goes back to the Sunshine Law. Voting conflicts. And that comes up sometimes. When do I have a conflict and when do I not have a conflict? And as Sheri found out a couple of meetings ago, you have to fill out a form to say that you had a conflict, which becomes part of the record, and what the conflict was. Well, Florida Statute 112.314(3) discusses voting conflicts: Do not participate in the discussion or attempt to influence a decision. Don't vote if it would enure private gain to you or your employer, business associate or relative. I really thinks it's even broader than that. Yesterday I was at the City Council meeting, and one of the City Council members abstained from a vote because it had to do with property that they were going to decide whether or not they were going to allow to be built that was right across the street from him. And so it was like a two-hour discussion about this particular property. But he abstained from the vote. And at the end of the discussion, the brand new City Manager said to Mr. Pritt, the attorney, "I have a question. Can you tell me why Mr. Herms had to not vote on this? Because it was my understanding under the statute that if it didn't inure any private gain to him or his employer or his business associate or his relative, then he could vote. And why then did he abstain? Is that technically a conflict of interest?" And Mr. Pritt's answer was it could be, because it could affect the financial wherewithal of his property. There could be a pecuniary interest, whether negative or positive, about commercial property that's being built across the street from you. And even if it's that close, then you need to recuse yourself and declare that you have Page 8 August 21, 2003 a conflict. So it's broader than just those specific words. So you have to sort of not think about the spirit of the whole law when deciding whether or not you want to recuse yourself. If you have no -- if you have an uncomfortable feeling and you don't have a comfort level hearing this, recuse yourself. The Code Enforcement Board must be an impartial fact finder. I just want to run through a couple of cases with you. One case says the board must preserve the impression of impartiality. It's not just an impression, you are impartial. Do not participate, do not seek out presentation of additional evidence. As you well know, you're supposed to always make your decision based on only the evidence that's heard and is of record that day. I noticed another thing at the City Council yesterday. When they were talking about a particular item that was coming up for vote, they made them go right through and say what participation or how -- have you visited the site or, you know, they had to go right through and one by one they had to say I've had no contact, I viewed the property, I've had no contact, I viewed the property, I've talked to the owner. They had to say right on the record what they had done. And if it wasn't a conflict, you know, then they could vote. But they had to reveal what contact they'd had. So you don't want to go, when you read your packet and say well, I might go out and look at this property before the meeting and make up my mind whether I think this is a violation or not. You don't want to do that. You want to stay away. We don't ask you to say all the time whether you've seen the property or if you've had any contact, but you're impartial. And you can't be impartial if you already have a preconceived notice of whether or not a violation has occurred. Don't have any ex parte communication about the case with any of the neighbors. What will happen is, if you -- if the record shows that you have anything less than an impartial vote, the appropriate remedy is to overturn the order of violation. So now you've just gone Page 9 August 21, 2003 against everything that you really are supposed to be doing. Another case says do not interrupt the questioning of witnesses. Do not object as to the relevancy of the testimony. And sometimes it's hard not to do that. Do not ask leading questions, do not suggest answers, do not deprive the alleged violator of procedural due process by acting as an advocate for the county rather than an impartial fact finder. Don't ask for or seek actively for additional evidence. Another case says -- here is a case where the alleged violator was denied procedural due process because they repeatedly interrupted the violator, alleged violator, during his testimony. And the court said that denied the alleged violator meaningful opportunity to be heard. Back to your packet. I know that all of you have copies of all this -- yes? MR. PONTE: Can I just interrupt for a second? MS. RAWSON: Please. MR. PONTE: On this additional evidence. MS. RAWSON: Yes. MR. PONTE: I can't believe what I think it says, but it seems to imply that if you press an investigator or press a respondent for additional information, isn't that additional evidence? MS. RAWSON: Yes. But if you ask questions of the code enforcement official who is testifying to you and your decision is to make -- is whether or not a violation has occurred, you have the right to question the investigator. And by your questioning the investigator, you may elicit information from him that he hasn't already said in his remarks. That certainly is permissible. I think what that case was saying, don't run around and try and get additional evidence before the case is heard. But certainly you want to question the investigator, because you need to know all the facts. Page 10 August 21, 2003 MR. MS. MS. MS. PONTE: As well as the respondent. RAWSON: Yes, absolutely. DUSEK: I have a number of questions, Jean. RAWSON: Yes. MS. DUSEK: And one is, if the respondent is coming before us for a reduction of fines, and in many cases the respondent is so flustered that they can't formulate what they're trying to say, and if we think -- or let's say, I'll use myself, if I think that they're trying to ask us to abate the fines or ask for a reduction of "X" amount of money, can I say to them, Ms. Rawson, are you asking us to reduce your fines by $500; is that what you're asking us? Can I say something like that? MS. RAWSON: You can. That's not really a leading question. And I'll tell you one thing about the reduction of fines, we have a nice form, and if they fill that form out correctly, you can just make them read from it, because they have to tell you what they're asking for and why they're asking for it. There are questions on there that they need to answer. Even though they're flustered and they don't know how to say it, if that's what they've filled out, you know, you can help them get it in the record. MS. DUSEK: Okay. That's one of my questions. Another one, if I'm socializing, let's say Cliff has invited me over for dinner, am I allowed to go to his house for dinner? MS. RAWSON: Yes. MS. DUSEK: I heard he's a great cook. MS. RAWSON: Yes, only if I'm included. MS. DUSEK: So you're allowed to do that, that's not -- MS. RAWSON: Certainly. MS. DUSEK: Okay. MS. RAWSON: You're just not allowed, while you're having dinner at his house, to talk about any -- any board business that might come before the Code Enforcement Board. You can talk about when Page 11 August 21, 2003 the meeting is or where the meeting is or general information, you just can't talk about, you know that case that's coming up before us next week, what do you think? MR. PONTE: Can you talk about past cases? MS. DUSEK: That was my next question. MS. RAWSON: Well, I wouldn't talk about past cases unless the time for appeal has passed. And, you know, lately with some of the appeals that Jennifer's had, even when the time of the appeal has passed, they still come back. I would be careful about doing that, you know, for years. MS. DUSEK: Also, if a neighbor has watched it on television and the case is over and the neighbor wants to ask me questions about it, can I discuss the case with them? MS. RAWSON: You can, because the neighbor is not -- it's you and the neighbor. You're not talking to another member of this board. And any one of you, as all of you know, because all of you have called me, can call and talk to me. Anyone of you can talk to Michelle or Jennifer or Ellen, because that's not two of you talking to each other. MS. DUSEK: Okay. Now, I as a realtor, am I able to do business with anybody in the county? MS. RAWSON: Sure. MS. DUSEK: That's not a conflict, is it? MS. RAWSON: You have to be very careful about what you're doing. You're talking about selling a house to somebody who works for the county? MS. DUSEK: Uh-huh. MS. RAWSON: Oh, no, you can do that. MS. DUSEK: And procedures, if we -- this is the last question. MS. RAWSON: That's okay. MS. DUSEK: If we as a board wanted to discuss a change in procedure or some general information about our particular board, Page 12 August 21, 2003 can we do that outside of the Sunshine? Can we do it privately? I mean, if-- MS. RAWSON: I wouldn't. We're going to talk about that in great detail, and one of the things that I'm not going to spend a lot of time on today are the rules and regulations, because I'll probably have a discussion with Michelle and Jennifer and Shanelle and Ellen about some of the things that we might bring before you to discuss before our March meeting. So I can do that with the other attorneys and the staff members. But if you have those ideas, why don't you talk to me or Michelle or Jennifer about them, rather than talk to each other about them. Let's put that in the Sunshine. MS. DUSEK: I might just mention, twice since I've been on this board I've had two calls from two other boards, board members calling me about the cases before they came up. And I just said I'm sorry, I can't discuss this. And I said, have you talked to Michelle Arnold? MS. RAWSON: That's the right answer. I'm distressed to hear that. Obviously they didn't come to our workshop, or that wouldn't have happened. MS. DUSEK: Well, it wasn't code enforcement. MS. RAWSON: Oh, okay. MR. PONTE: She said another board. MS. RAWSON: Oh, another board. MS. DUSEK: Yeah, big board. MS. RAWSON: Okay. Well -- and occasionally there might be a call from a reporter with the Naples Daily News, because, you know, they love to write stories about the Code Enforcement Board, have you noticed, and about code enforcement in general. I got a call from one of the reporters from the Naples Daily News recently and she said to me, "Be sure you tell me when something hot's coming up." And I said, "I don't know that. Honestly, I don't know that until I walk in the door whether it's going Page 13 August 21, 2003 to be hot." And she said, "Oh, yeah, but some of those cases are really good, we want to cover them." So they may call you, too. And basically you don't know anything before the board meeting. After the board meeting, they'll always want comments, especially if it's a hot issue. Just be careful what you say because, know it will not get printed exactly the way you said it. Just be careful. Let me just run through -- again, I'm preaching to the choir, and I want to give Jennifer and Ellen plenty of time to talk to you, too. But I've attached for you copies of the Florida statutes, which again all of you already have. 162.05 talks about our organization. And because we are in a county of greater than 5,000, we have a seven-member board. It goes on to say we can have two alternates, which we do. And the second paragraph there on 162.05 says who you are. An architect, if this is possible, a business person, an engineer, a general contractor, a subcontractor and a realtor. And so that we have some continuity on the board, two of you are appointed for one year, three for two years and two for three years so that we have continuity. Some of you are filling unexpired terms for other persons, so you've got to look to see whose term you are and what their term was. And you can be reappointed, as most of you know. Look on the top of Page 2 under (E). I always like to point this out. If any member fails to attend two or three successive meetings without cause and without prior approval of the Chair, the Enforcement Board shall declare the member's office vacant and the local governing body shall promptly fill such vacancy. It's an automatic. It doesn't say that you need to have a discussion about it, it basically is an automatic. So again, you guys are here, so I'm not talking to you. CHAIRMAN FLEGAL: Jean, can I ask a question? MS. RAWSON: Yes. CHAIRMAN FLEGAL: I'm assuming the statutes take Page 14 August 21, 2003 precedent over our own ordinances and such. We had this in the county ordinance that created the code enforcement board and then it was taken out. It didn't make any sense when it was removed and I didn't understand that. MS. RAWSON: Well, that's a Jennifer or Ellen question. MS. BELPEDIO: Would you like me to answer it now? MS. RAWSON: Yes, go ahead. CHAIRMAN FLEGAL: Well, I was just curious as to why it was taken out. MS. BELPEDIO: Well, in our Code Enforcement Board hearing process, we've essentially mirrored 162. If you didn't have the rules and regulations, 162 would be the default. Currently a local jurisdiction could opt out of the whole scheme of 162 and have their own structure, as long as the traditional notices of due process and opportunity to be heard were complied with. But to answer your question more directly, just the fact that it's not in there, if it's in 162, it's still applicable. Sometimes we try to streamline rules and regulations, and it's really not necessary that we just mirror language that's in 162 already. And that -- ultimately we'll be discussing things of that nature, because the meeting that Jean has referred to between she and Code Enforcement and our office is going to be a more systemic meeting and it's going to be regarding how to streamline the process, how to cut down on the paper. Sometimes when you put the information into the rules and regs, if you don't put it exactly, it sometimes can be ambiguous or in conflict and, you know, we may have meant to do exactly what 162 says and it may not have happened. So we're just trying to cut down on the paper and make it efficient and cost effective. Does that answer your question? CHAIRMAN FLEGAL: Yes. MS. RAWSON: Always paper reduction. 162.06 is the enforcement procedure; basically it's what we do. Page 15 August 21, 2003 It starts with a -- the code enforcement inspector, giving them time to comply. And if they don't comply, they end up in front of us. It talks about repeat violations in there, and it talks about the notice of the initial pleadings. 162.07 is the conduct of our meeting, of our hearings, that are open to the public, of course. And most of this language we have already in our rules and regulations. You know that in here it tells you what is a quorum, it also tells you how many people have to vote in order to -- for action to take place. And it tells you in there that not only can you fine them, but you can also include costs. That's where it says you've got to certify a copy of it and you record it. 162.08, powers of enforcement board. You can adopt rules, which we have, and we're always, you know, updating them. You can subpoena alleged violators and witnesses to the hearings. And that's interesting, because sometimes the violators come and ask you to subpoena some of their witnesses, which you can do. Subpoena evidence, take testimony under oath and issue orders having the force of law. That's what makes this board very unique. You are a board with teeth. You can issue orders. You're not an advisory, you can issue orders having the force of law. And your job again is to end at five. And we say this every -- almost every month. Your job is to do whatever is necessary to bring a violation into compliance. Compliance is the key, not punishment. 162.09 is just a very interesting one about fines. I won't talk about that a lot, because I think Jennifer's going to. But basically I often will point out to you in a public meeting, (b), (2)(b): In determining the amount of the fine, the enforcement board shall, that's not will -- that's not may, that's shall -- consider the following factors: The gravity of the violation, any actions taken by the violator to correct the violation, and any previous violations committed by the violator. So most of you know that, you just don't forget that. The next page talks about liens on property. Page 16 August21,2003 Appeals, 162.11. We put in all of our orders that they can appeal that order, and some people take advantage of that and do that. 162.12 has to do about notices. Most of you know that our notices are sent out in several different ways, including posting, which is usually posted on the property site. And if you hang out at the courthouse as often as I do, you will notice as you walk in the front door over to your right before you go through security, Code Enforcement Board notices. They're always there.. Couple of things I wanted to mention about 162.09. Code violations run with the land and, therefore, when they transfer their property, the violation follows it. So the new owner is going to end up before you. There's an interesting Charlotte County case called Massie, which I won't talk about a lot. Jennifer will talk about it a little bit. Basically what that case said -- that's a Charlotte County case, and it's a 2003 case. Basically says in order to comply with due process requirements, Code Enforcement Boards must provide property owners with notice and an opportunity to be heard concerning any factual determination necessary to impose a fine or create a lien. And we do. They all know when we're going to talk about their liens. Then I've also included an advisory legal opinion from the A.G.'s office for you about whether or not you can reduce a fine for non-compliance after that order has been recorded. And this comes up sometimes, because we usually record the orders right away. In sum, the A.G. says a Code Enforcement Board is not authorized to reduce a fine for non-compliance with an order of the board after that order has been recorded pursuant to Section 162.09(3) Florida Statutes. Rather, upon being recorded, such an order becomes a lien that may only be compromised, satisfied or released by the local governing body. And that is the County Page 17 August 21, 2003 Attorney's Office. Anybody have any questions about any of this? Yes? MR. PONTE: Yes, 162.09. MS. RAWSON: Yes. MR. PONTE: You delivered a terrific line which sparked a lot of thought in my mind. Compliance is the key, not punishment. MS. RAWSON: Correct. MR. PONTE: And one of the things that we wrestle with frequently is the amount of the fine. And sometimes there's no question about it, we get emotional and we think boy, that guy really deserves to get slammed. The fact of the matter is, that's an emotional judgment and it's difficult to stop that from creeping into your thinking. So if there was something we could read, or some guidelines, or some psychological discussion of how do you keep yourself totally removed from the emotion you might feel because it's a repeat violation or because the person is arrogant or because of all of those other human things, and say no, really, it ought to be a $50 fine. Further, if compliance is the key and not punishment, if someone claims to not have any money and appears not to have any money but is definitely in violation, we tend to be lenient. But at $50 a day, if you don't have any money -- even if you have money, $50 a day is a whopping fine. MS. RAWSON: I can give you three suggestions: One, read 162.09 very carefully, because the outlines there are there for you. And so if you follow this, follow the law. A fine imposed pursuant to this section shall not exceed 250 per day for first violation and shall not exceed 500 per day for a repeat violation, and in addition may include all costs. Again, look at B. What do you look at in determining the amount of the fine? I don't see anything in there about whether or Page 18 August 21, 2003 not they have any money or about whether or not they were arrogant or whether or not they didn't act nice before the board. It says the gravity of the violation, any actions taken by the violator to correct, and any previous violations. So that's my first suggestion is that you read 162.09 and keep that in mind at all times. My second suggestion to you is that you be consistent. Consistency is the key. As an attorney, I can tell you that I like to go before the judge and think that I'm going to get the same ruling on the same set of facts today that I got yesterday. No matter who my client is or no matter how my judge feels that day, I like to think that we follow the law and that we are consistent in our rulings. And when that doesn't happen, you know, word gets around about that judge. Because what we're all looking for is consistency in our rulings. So my second suggestion to you is be consistent. My third suggestion to you is that you can step back from the emotions of it and be, you know, not that personally involved. You know, I've been practicing law for 26 years, and so I -- and I do family law, so I have to do that, or I would have already been, you know, in a straight jacket. I try to distance myself from the emotions of the moment. And I try to look at it -- every case objectively. Despite the fact that there are some people you're going to like better than others, some people you're going to feel sorrier for more than you do others, some people that are going to annoy you more than others, you're looking at the facts, only the facts of the case. And you are being consistent in your rulings and you're following 162.09, and you're keeping your cool. I mean, I don't know how to tell you other than that's what I do on a day-to-day basis, and it works for me. And my ulcer's gone away. So if you just remember 162.09, be consistent and step back and be objective and don't let your emotions take over. MS. ARNOLD: And I think that that's what holds up your final decision for your order a lot, because you're looking at the emotions Page 19 August 21, 2003 of the case rather than the facts that have been presented to you on both sides, on the respondent's side, as well as on the staff's side. So if you try to step back and not look at the person and look at the facts, it will probably speed up your decision and maybe establish -- you know, kind of look back at the actions you've previously taken on similar cases so you're kind of setting some parameters for yourselves. MR. PONTE: Can you do that? See, that's -- when we get to discussing the fine or discussing the order, and if the fine is not consistent with what we have done within recent memory, last session, last hour, can we -- you know, you're going to want to say but in the case before this one -- you know you're setting a precedent on what you've done on a case that is past. Can you do that? MS. ARNOLD: You have to look at the factual things. You have to look at the evidence. Like a litter case, you may have a litter case that will take days for someone to clean up, and it took years for them to create, as opposed to a litter case that is easily fixed. And, you know, although they're the same violation, may not be the same gravity of the violation. MR. PONTE: But my question is, can we talk amongst ourselves and say during the course of the meeting -- because that does happen, where we say yeah, but we didn't do that in the last case, or we did do "X" in the last case. MS. RAWSON: Well, if you talk like that, because now this is on the record, and you decide that this is different from the last case because we don't like this guy as well, and I'm the attorney for that second violator, I'm going to use that record in my appeal to make you look bad. So be careful what you say on the record. Remember that our court reporter is taking down every single word, and when it goes up on appeal, the appellate judges get to read every single word and the skillful attorney who represents the violator gets to pick things out of the record and quote things from the record that you Page 20 August21,2003 wish you hadn't said that might be damaging when the appellate court reads it. So rather than saying well, hey, we didn't do that in the last case, rather say we need to be consistent. Let's look at the facts of this case and see how it applies to 162.09 and let's be consistent. I just want to remind my fellow brethren about consistency. That's probably better than, hey, well, I don't like this guy as well as I liked the last one. MR. PONTE: I wouldn't say that. MS. RAWSON: I know you wouldn't. I understand what you're saying. MS. DUSEK: I think, Jean, in cases that are similar, I think this number 2 of 162.09 Section (b)(2), says any actions taken by the violator to correct the violation. If the action has been defiant and all the other facts are the same in a prior case -- MS. RAWSON: You can certainly apply that. MS. DUSEK: -- then that could be applied. MS. RAWSON: Because what you're looking at is the facts of this particular case as presented to you on that particular day. And if it's a day where you are imposing a fine and the code enforcement officials tell you this is what he hasn't done, and this is what he continually refuses to do, well, certainly you take that into consideration in assessing the fine. CHAIRMAN FLEGAL: I tend to believe every case stands by itself. MS. RAWSON: Correct. CHAIRMAN FLEGAL: I have been here a lot of years and I've never seen two cases the same. MS. RAWSON: That's true. CHAIRMAN FLEGAL: Identical. And that's the only way you can use another case. Because some cases take three or four months for litter or whatever, and I've seen cases that have -- these people Page 21 August21,2003 have worked on for two years. Obviously the violator is not trying to help, since it's taken two years and it still looks like a junk yard. Each case is individual, just like each person is an individual. And I don't think there's really any way to look at another case and fall into the trap of-- which always bothers me if some smart lawyer -- I know a lot of people say, well, this is just Code Enforcement Board, nothing's ever going to happen. Collier County is very sophisticated and a day's going to come when it's going to happen, somebody's going to figure out a way to make a buck, and they're going to start going against all these, charging all these little people money to -- hey, we can get you out of this fine. Of course you're going to pay me $1,000, but I'll get you out of a $350 fine. That's coming, believe me. It's just the way human nature is. Compliance versus punishment.' I don't know that we punish anybody. MS. RAWSON: You fine them pursuant to 162.09. CHAIRMAN FLEGAL: Well, but that's not punishment. I would venture to say that issuing an order without a fine in it is a useless piece of paper. We give you 30 days to clean up your lot, thank you very much, bye. Boy, I'm impressed, at the end of 30 days I haven't cleaned up my lot and nothing's going to happen to me. It's not punishment, it's -- you know, you went through a red light, you pay 75 bucks. Is that punishment? You did something wrong. Here it's not punishment because -- comply, we've given you 30 days based on a recommendation or 60 days or 90 days or six months -- MS. RAWSON: If you follow 162.09, you're not going to give them no fine or you're not going to fine them a dollar a day. CHAIRMAN FLEGAL: Right. I mean, it's just not punishment to me. We've given you time to do it. If you choose not to do it, then you're going to pay the fine. That's your responsibility. You comply or, if you want to use the word, you get punished. That's your decision, not ours. We've said do it in this amount of time or Page 22 August 21, 2003 else. I don't like the word punishment because I don't think this board punishes anybody. MS. RAWSON: Well, I don't think you do either. And that's not what I said. I said just remember, it's compliance, not punishment. I'm going to tell you that the day has come in Collier County on more than one occasion when some of those smart lawyers have taken these cases up on appeal. So with that, I'm turning this over to Jennifer. CHAIRMAN FLEGAL: Maybe Jennifer can answer the question. It's about the reduction of fine. MS. BELPEDIO: We're going to get to that in the later part of the proceedings. Would you mind if we waited till we got there? CHAIRMAN FLEGAL: Okay, that's fine. MS. BELPEDIO: I'm Jennifer Belpedio, I'm Assistant County Attorney with the Collier County Attorney's Office. Good morning, or I don't know if it's afternoon yet. I'm here to talk about the public hearing process and also the procedures involved in the imposition of fines. I'll start out with the public hearing process. Ms. Rawson already spoke to you about the details of 162.07 and what is a quorum. That's where people -- she talked about that there ought to be minutes and that there ought to be a recording. I don't think that a court reporter is absolutely necessary. I think that when we're in our third floor BCC room that the videotape recording is all that we need. But in an abundance of caution, we have court reporters, and I think it's a great tool for us to always be able to look back to what has occurred in any given meeting. With that said, it's important for the Code Enforcement Board, any local Code Enforcement Board, to understand that you're required to comply with principles of due process which not only guarantee notice and the opportunity to be heard, but also require that Page 23 August 21, 2003 any such hearing be conducted fairly and free from prejudice. And part of that is just that there's reasonable notice to the violator. I'm going to sometimes say violator, alleged violator, property owner, respondent. Sometimes in the appellate court they're petitioners if they're challenging an order. So I use them loosely. It's really the person that's accused, not the county. Reasonable notice is set forth in 162.12. I'm not going to talk about the intricate details of what is noticed to any respondent. There is separate notice procedures for commercial property, there is separate notice for residential properties. Our office reviews the -- any notice that comes before the Code Enforcement Board prior to hearing. And these notices include notice of violations, maybe multiple over a period of time. Also, the notices for a hearing, because not only need the person be advised on what the initial violation is alleged but they ought to be advised as to when the hearing will be on that violation. What's important to note is that -- a while back I researched the legislative history behind the notice requirements and found that certainly those provisions were drafted to perhaps ensure that actual notice be given to the person. But it's not always failsafe. And actual notice is not what's required, it's that the county do their due diligence and make sure that we've done everything we can do according to statute to get the person here. As you all know, sometimes the violator won't be here, but that doesn't mean that that person has not been sought after to be noticed. They may not have received due service, but we've done what we're supposed to do. It's also in our office's opinion that this Code Enforcement Board is really not to really review whether or not notice is complied with. You can see the papers and the records and I think that's more of an issue for the appellate court to decide. But we will put every notice that we've sent and every green card that we've received back Page 24 August 21, 2003 and every receipt that we've had so that you know that we've done what we're supposed to do. The second aspect of these hearings on violations is that there be a fair opportunity to be heard. And touching upon what Jean Rawson has said already, because it's very important, is that the defendant/respondent/property owner has -- is required to defend against their violation, and that includes the right to cross-examine the inspectors or any other witnesses from time to time. We may have planners that come or building officials. All these persons who testify should be cross-examined, if the respondent desires to do so. Now, there was -- I'll give you some cases that talk about evidence and right to present legal defenses. There was a case in Miami where a respondent was not given the opportunity to present their defense. Just the county -- or the city presented its case and the respondent was never asked whether he or she, whomever, had a defense to provide. The CEB just went ahead and deliberated on the violation. And at the appellate level in circuit court, the court reviewed the record and the city argued, well, the respondent never asked for that opportunity, never stood up and said I want to cross-examine him. Well, I'm sure you can anticipate what the court held, and the court said that the law places the burden on the forum to provide the opportunity to be heard. It's not for the parties to request this opportunity. Now, I know that this board and the experience that I've seen here over two years, even before, and I know you won't in the future deny somebody this opportunity, but just to give you a feel for what the cases are saying and what's going on in the court. There's been some other interesting cases. There was somebody in the -- I believe that it was the City of Fort Pierce who desired to put on a defense that their alleged junk was tools that were used in farming operations. They were attempting to present a Right to Farm Act defense. Well, the Code Enforcement Page 25 August 21, 2003 Board wouldn't let them talk about their bush hog, their backhoe and their bulldozer and how that was used in the farming operations, so that was discussed. Another case, a respondent alleged on appeal that they weren't given enough time to present their defense. But after reviewing the record, the circuit court determined that the hearing was seven hours and the person was given three hours to present their defense, and at no point did that defense counsel ask for additional time. So the court in that case held well, three hours is enough and you didn't ask for more and you ought to have objected, asked for more time and proffered, you know, placed into the record, who you would have liked to call as your own witness, additional witness, or what other information you wanted to provide. And as much as a Code Enforcement Board may not allow that information to get into the record, that respondent had the right to speak to the court reporter and proffer that evidence, make their record for the appellate court. There was also a case, Town of Surfside, where a defendant was charged a fee to participate in the hearing and provide a defense. What do you think happened in that case? Anybody? Well, the court said you can't charge a fee, you can't prevent somebody from coming to the hearing if they don't have the money to present their case. I think that makes sense. Something ! wanted to bring to your attention is my role in the appeal process and what I do after this board executes its order and it's sent on to the respondent. As you know, Florida Statute 162.11, which is regarding appeals, states that an aggrieved party may appeal a final order. An aggrieved party may be the county, if we don't prevail on any one of our violations, or it may be the respondent who is found in violation of any one or more of violations alleged. And the appeal is typically of a final order. And I think that reasonable attorneys would agree that a final order is typically the findings of fact that you render after Page 26 August21,2003 your substantive hearings on the violations, or the order imposing the fine and lien. And the circuit court, which is the appellate court, is responsible for reviewing the record before this board. And so what ultimately will happen is that either the county or the respondent below, or the violator below will petition the circuit court and ask the court to review the record. And it's been our office's position and it has been held in at least four circuit court cases in our jurisdiction, that the proper method to appeal, seek appellate review, is by petition for certiorari. Now, whatever you call it, it's really irrelevant for this board's purposes, but there is a standard of review for the Code Enforcement Board record, and that review is, not surprising, whether or not due process was given to the defendant, whether or not there was competent substantial evidence to support any findings that you make in your orders, and whether the essential requirements of law were observed. And there's all sorts of court cases on what is competent substantial evidence, and typically what I found is what would a reasonable mind accept. And I know that there's so many different minds and there's so many different things that people would find reasonable. And each board member may have their own, each board collectively may have their own, each judge, appellate judge may have their own. But they look at this in the aggregate and say generally, what's reasonable, what could support these findings that are made. Additionally, the courts really defer to your expertise. They understand that and are required to, that you were put in this position, you're qualified, you were appointed by the Board of County Commissioners because of your resumes, you have experience in this area, you have interest in this area, and it's not for the circuit court to reweigh what you've already decided. They're not permitted to come in and say well, you know, we think the chairman was a little off and we really didn't like what he said. I mean, it's not to see whether or Page 27 August 21, 2003 not the board was wise or the board was right or the decision was best. It's just whether or not there is competent substantial evidence to support their decision. The third part of the test, as I mentioned, is whether the essential requirements of the law were observed. And that's essentially whether or not the law was applied accurately. Sometimes we have some technical cases where land use, zoning codes are discussed and alleged to be in violation of and oftentimes we use definitions. And sometimes we ask this board to determine what is a commercial vehicle, what is junk, what is a landfill, what is a permitted use. And the circuit court will look at the record to see if there was enough evidence in the record to support the findings. They will look at the provisions of law cited by the county to see if all the elements of those provisions were met. If the county alleges that a building permit was not obtained and a violation was found, there ought to be evidence in the record that the investigator went out, observed something, a structure, a shed, a building, that was required to be permitted. We will have a code provision and that code provision will say that structure, that shed, that building, needs to be permitted. Then you'll have an investigator who will say I looked in the records, I didn't find anything; I spoke to the building official, I went into the archives, I went to the records department. And that should be enough. So those are the kind of things that I think this board ought be particularly sensitive to, that there's discussion and mention of what evidence is there to support the violations. It's not to say that you have to talk about every last intricate detail of every provision of law. It's just to make sure that there's enough. It should be a summary review of the case. Typically if the circuit court decides that perhaps there wasn't evidence, they'll quash the order of the board. If the circuit court Page 28 August 21, 2003 decides that something could have been done better regarding the findings of fact order, then the circuit court may quash the order and remand it, send it back to the Code Enforcement Board. So a lot of times not all is lost if the circuit court says things could have been done better. And that really just gets me to the record, which I can't express enough to you how important that record is. And from time to time you'll see our office stand up and interject information. It's not that we want to talk about how much law we know or what additional information, you know, is out there just to hear ourselves talk, for sure. Some attorneys are like that. But it's really to make the record and get the information in. And in court we make our records, and we say for the record, Your Honor, we'd like to state on the record that, and set forth the facts, and you'll see the judge from time to time roll his eyes, you know, they're doing it again or something, but you've got to do it. You've got to do it to protect the record. And thafs not really limited just to the county's interest. We want to ensure that whatever order you render is lawful, whether we win or lose. As you know, the formal Rules of Evidence do not apply. We need not lay a foundation and move evidence into the record. You know, we ask that you move it in, you make your motion, and that evidence typically comes in. MS. SAUNDERS: Jennifer, may I ask one? MS. BELPEDIO: Sure. MS. SAUNDERS: Have any of our cases been-- gone to the appellate court and been appealed, and is it possible for us to know the results of that so that either it was upheld or denied? And that would show us a lot, I think, about how to deal with some of the cases coming before us. MS. BELPEDIO: Sure. There was one that was appealed and that case is currently closed because there was not an appeal taken. I Page 29 August 21, 2003 can certainly provide you with either the county's response or the order or a summary of what happened. I was going to talk about this kind of at the end, because as you may know, it is a separate -- it's not an appealed case, but the Manatee Resort has been settled and the settlement agreement was brought to the Board of County Commissioners. So if you have interest, then maybe at a next meeting we can decide what we'd like to discuss, what's appropriate to discuss, and we'll collate it and we can give you copies of what is necessary. Now, there's only that one case that I'm aware of that would be appropriate to speak about. However, there are currently three -- ! think three cases that have been appealed that are still pending. The Massie case, which is what I'm going to speak about a little bit later, it seems that from the date of the hearing before the Code Enforcement Board, not the date that the violation was found but the date of hearing -- not the date the violation was first observed but the date of the hearing. From that date of the Code Enforcement Board hearing until it went on appeal up to circuit court appeal then went to second district court of appeal was two years and seven months. And there's two cases that I have open that are a year and a half old at this point. There's another case that went up, came down, is now going back up to the appellate court. So those ones we can't really speak about. But I can provide you with any -- MS. SAUNDERS: I'd just like to -- a real brief summary, not the whole findings, at least for me, that just said this one was resolved or we lost this or we won this -- very quick paragraph on why. So that we can get some information, did we miss something or -- yeah. MS. BELPEDIO: I think with a memo. I can provide Michelle with a memo or Michelle -- MS. SAUNDERS: Keep it simple. MS. ARNOLD: Or what we could do is we could have a Page 30 August21,2003 section of the agenda, like a county attorney report type section. And if there is information that they can kind of bring it to the board, then we'll put it on the appropriate agenda. We need to probably move things along, because there's a lot of information. We have this room until 12:00. MS. BELPEDIO: Okay. I'll do one last thing about the hearings and then I'll move on-- MS. ARNOLD: There was a question. MS. SAUNDERS: That's all right. It's not important. I can talk about it later. MS. BELPEDIO: There was one case that I thought was interesting regarding a violation issued for a stagnant pool. I don't know exactly what the nature of the violation is, but it's not relevant to explain the issues to you. In a nutshell, the code enforcement investigator went out to the property, saw that a pool was potentially in violation, issued an NOV, gave a certain amount of time to correct and then came back for a recheck. At the time of the recheck there was a fence erected around the pool, the gate was locked, no trespassing signs, beware of dog signs. The investigator attempted to put his camera up over the fence, couldn't get over, got on his truck, couldn't get over, but argued at the hearing that there had to be a violation because the person would have allowed them into the pool area to inspect the pool. And the Code Enforcement Board in that jurisdiction found a violation saying well, circumstantially there probably was a violation. Well, as you may or may not know, the standard as to whether or not a violation exists is preponderance of evidence, and that really means more likely than not. In law school they tell us it's 51 percent probably. Very low threshold, as it's not a criminal case. We need not prove our cases beyond a reasonable doubt. But in that case the court talked about circumstantial evidence, and they talked about what they call a reasonable hypothesis of Page 31 August21,2003 innocence, and they talk about well, just because you can't get into the property doesn't mean a violation exists. And although eye witness testimony is not vital, there needs to be something in the record to establish that there was a violation. So with that said, I'll move on to the findings of fact order, which should be pretty brief. As Jean stated in 162.07, subsection four, a local Code Enforcement Board at the end of the hearing on the violation is required to issue a findings of fact order which is based on evidence of record, and you're also to provide in the order a conclusion of law. There is one case that I think is important to discuss, and that case essentially holds that fundamental due process is required, and a person needs to be apprised of the violations of law in which he or she is charged. And this one case was kind of interesting because the notice of violation issued to the violator contained a detailed description of what was necessary to bring the property into compliance. In fact, there's evidence on the record, through testimony from the violator, that the code enforcement department administrator took the time, sat down with the violator, gave that person an itemized listing of what was necessary to bring the property into compliance, but the order said do all things necessary for compliance. And on appeal, the circuit court quashed the Code Enforcement Board order, remanded it back to the Code Enforcement Board and instructed that the Code Enforcement Board include sufficient detail in its order to correct portion of its finding of fact order. And this is not to say that you must give every painstaking detail of what's necessary to bring a property into compliance. But I think just based on reading some of these cases, that there is a happy medium. Saying, for instance, come into compliance, probably not enough. You know, comply with all codes of laws and ordinances; most likely not enough to support your order on appeal. But you Page 32 August 21, 2003 need not say, for instance, in a permitting case, call up the building official, set an appointment and see if he can tell you how to get a permit, and then if he gives you -- decides to give you a permit, then set up an inspection and do some work and then get a CO and all those details. I think you can say, obtain all necessary development orders. And there's some language in the Land Development Code that's good language to include, and I think staff has been very good about tracking that language so that it's easy for you to make your motions and make your rulings. And sometimes -- I'm supposed to talk about specific versus general. I think I covered that. But sometimes there are persons who, although they submitted an application for something, for instance, you may require that somebody submit an application for a variance or a conditional use or a permit, and tell them within a certain period of time they have to, in the case of a CU, get permits, or in a case of a building permit, get a CO or something. And we don't give them a time period in which to come to finality with their applications, because there's times where persons submit an application, it's deemed sufficient in the first couple of days, as required by the Land Development Code, but ultimately it's not complete, and they don't work cooperatively with our planning staff, and the application remains open. And what ultimately happens is, yes, they may have complied with this board's direction in the direction they have applied for a building permit, but the building permit may sit, not picked up. The conditional use may be withdrawn. The application may be deemed insufficient. Sometimes we're left in a position where we can't follow through and enforce the order, so we're going to be working on providing you with better draft or proposed orders to correct so that we can alleviate some of these problems. But from time to time, again, you may see our office stand up and say well, demolition's good and it's where we want to be, but you Page 33 August21,2003 may want to consider putting this language in here. Because we're looking ahead, we're looking to win this case ultimately, you know, wherever -- if it ends up going towards foreclosure, it's going to be reviewed and we have that order and that's it. Another thing that we're considering -- I think that code enforcement would like this and I think it's a good thing, and probably necessary -- that the violator, if a violation is found, be required to advise the code enforcement staff, whether it's Shanelle or Michelle or the actual investigator, when the violation has been corrected. Oftentimes there are persons who do correct and don't inform the county. And although code enforcement does recheck the property the day after the compliance is due, if it's not complied with on that day but complied with three days later, it may not be brought to code enforcement's attention immediately, and the person's complaining because a certain amount time has gone by and they believe that it's been in compliance and we're not sure, we don't know. So we think it's best that the violator be required to contact the county and we can discuss whether that be in writing or to whom or MS. ARNOLD: Yeah, we're actually doing some research right now and looking at what other jurisdictions are doing with those types of procedures, so we will be bringing some information back to you all after we have meetings with all the attorneys and those types of people to make sure that everything that we're wanting to do to expedite the process, make it easier for both you, the respondent, everybody involved, is legally sufficient. And then we're going to bring that back as another workshop to you. So some of those things are things we're considering. We haven't really formalized those yet, and they will be brought back to you for discussion. MS. BELPEDIO: And speaking of things we're also considering -- MS. ARNOLD: Jennifer, if we could just go to the next item, Page 34 August 21, 2003 we're really running out of time. MS. BELPEDIO: That's fine. I'll give you an abridged version of the findings of fact. As Jean mentioned, there was a case at the second district court of appeal which is binding on Collier County in our district. The second district court of appeal reviews the circuit court's review of any local code enforcement board's order. That's the next tier of review, if a person is not satisfied with the results at the circuit court level. And essentially in this case, although a violator at hearing was given notice at the finding of fact hearing and participated in the proceedings, when it came time for the county to impose the fines, the county did not provide notice to the respondent. So the respondent never showed up, never knew that an affidavit of non-compliance was filed and that fines were going to be imposed. Ultimately the court held that it's imperative that notice and opportunity be given to the person who is looking at having fines imposed and ultimately a lien created on their property. The court doesn't commit to whether or not a hearing is absolutely necessary. The court gives many alternatives, and these are the things that we're going to explore. Currently our process is sufficient under this case. We do give notice and we do give an opportunity to be heard. But the court seems to contemplate that there can be an order rendered by the local enforcement board imposing the fine without any proceeding or hearing, and that order be sent to the violator. And if the person doesn't request a hearing in a certain period of time, that that order will be recorded. There's numerous different ways this can be done, but ultimately notice and opportunity to be heard is vital and required. The other important part to keep in mind and I think they have done that in this case, is that if you do have such a hearing to impose fines and create a lien, only the facts that are necessary to impose a Page 35 August 21, 2003 fine and lien ought to be presented. So really, the discussion should be limited to the criteria set forth in the findings of fact order. For instance, violation was observed on this day. It was required to be abated by that day. It wasn't. It's been six days since. The fines are $100 a day as required to accrue, as stated in the finding of fact; therefore, $600 should be imposed plus operational costs. It's not a forum for a violator to discuss what happened at the substantive hearing, challenge the violation, present a defense, it's only whether or not the violation, you know, continued or didn't as alleged by the code enforcement department. So that's the Massie case in a nutshell. And certainly, as Jean mentioned, if the board were to have a hearing on the imposition of fines, the facts that are listed in 162.09(2)(b), gravity of violation, actions taken by the violator and the previous violations ought be considered. Again, not every painstaking detail needs to be addressed, but there ought to be at least some cursory review of that criteria in making a decision as to whether or not to impose a fine and create the lien. I think that's all that I'm expected to speak about. I think Ellen was going to do the reduction. I know Mr. Flegal had a question about the reduction, but maybe I can answer it for you while she's stepped out. MS. SAUNDERS: Do we need a quorum for this? I have a noon meeting on Fifth Avenue. I don't want to break this up, but I have to -- CHAIRMAN FLEGAL: If you have to leave, we still have a quorum. MS. BELPEDIO: I don't think it's necessary that you have a quorum in a workshop. MS. SAUNDERS: Okay. MS. ARNOLD: Cliff, do you want to ask your question, or do you want a break or something? Page 36 August 21, 2003 (A brief recess was taken.) CHAIRMAN FLEGAL: Okay, if we're ready. Ms. Chadwell's here. MS. CHADWELL: Yes, good morning. Is Ms. Saunders coming back? CHAIRMAN FLEGAL: She had to leave. MS. CHADWELL: Oh, she's gone. Good morning. Ellen Chadwell. I'm the assistant County Attorney. ! think everybody here has seen me before, familiar with the face. Jean and Jennifer have done an excellent job in going over just about everything. So there are just a few things I wanted to mention, and I think in your packet from Jean, she provided you with a copy of the statute, and the part that I'm most concerned with is 162.09, subsection three, which talks about what is necessary to create a lien. You'll see there that it requires that a certified copy of the order imposing fine or fine plus repair costs be recorded in the public records. Once a certified copy is recorded, it then becomes a lien that attaches to the subject property and any other real or personal property owned by the violator. I would draw you all's attention to the fact that I think it might have been two years ago, this statute was amended to provide an additional remedy. Typically we have just had the ability to foreclose on the liens, although if we petition the circuit court, we can also enforce those orders as we would a civil judgment in terms of levying on personal property or any post-judgment kind of execution. The statute was amended to allow us to also sue to recover a money judgment for the amount of the lien plus accrued interest. Now, I'm not sure if anyone has actually done that yet and how that is done, but it is a mechanism available to us. And to me I think it's -- it would probably give you the additional remedy of maybe Page 37 August 21, 2003 garnishing somebody's wages. You know, you could convert that lien into a judgment in that amount and then you would have all the post-judgment execution remedies that you would otherwise have, one of which is garnishment. So I think that opens the door a little bit more. Typically, your best avenue for enforcing your liens is the foreclosure. And I can't say that I've had any defenses raised or determined by the judge in a foreclosure action relating to the deficiency of an order. We do have case law that says when I foreclose on these liens, what happened to the underlying hearing at the initial hearing where there was a finding, that's not an issue. You can't reinvigorate the case and bring all those facts to the court in a foreclosure suit. It's not relevant. You had your appeal period within which to appeal that order and the time has run. So we know that those types of things, the underlying violation, whether the board correctly found the violation or not, that's not at issue when it gets into a foreclosure action. But the order itself could be defective for some reason, and that could be potentially raised in the foreclosure suit, in my opinion. But I haven't had that happen so I can't -- I don't have any actual experience upon which to give us more guidance in how that works. So at this point the foreclosures have been successful and we've covered a couple of properties at sale. There is an important restriction on your ability to foreclose the lien, as you may or may not be aware, and that's the homestead exemption. We can't foreclose a lien if the property is the homestead of that individual. It hasn't been a big problem from my perspective. We get a few of them where the person's been violated and it is their home. And then generally it's a difficult recovery process there. But most people who I think find themselves in a code enforcement matter and it deals with their home, they're a little more diligent Page 38 August21,2003 perhaps in correcting the problem. They also have a bank which has an interest in making sure that that property or their security is also not compromised by the existence of a lien. So sometimes even though you have the lien there, you might find that there's a willingness to correct the matter and resolve the lien. Also, people like to refinance their homes on occasion, and sometimes I'll get a call in my office about where they want to do that and they realize that oh, I guess I'll have to address this lien now. So we can take care of it in that manner as well. I had copied a couple orders that I was going to discuss today, and there -- it's still kind of a pending matter, so I've thought twice about that and I decided even though I've redacted some of the information, I would rather just discuss it in general terms, as opposed to circulating copies of that to anyone. I think the most critical part is certainly the original hearing, and you being careful to deliberate over the material facts and make your finding, and make sure that the order is clear and reflects those findings. But it's equally important that you have an effective order imposing the fines so that -- or you have no means. I mean, all that work goes to naught. So there are a couple of things that I think are important to be in the orders. And I can't say that it's not happening, so it's kind of like preaching to the choir a little bit. But nonetheless, I'll throw those out there as reminders and issues that I think we need to always keep in mind, too. One of those is to make sure that the respondent is named. I did have an order imposing the fine/lien where there were two -- actually two respondents in the underlying proceeding, and the board chose to impose the lien only as to one of those respondents. The only way to determine that was to either -- the only place that the respondent was actually identified by name was in the caption of the order here on the top. And everywhere else it was referred to as the respondent. Page 39 August21,2003 Now, I went back to the order record and could determine that yes, that was the intent of the board and clearly this order was only as to this individual. But I think that in the very beginning of the order, the body of the order itself, it should identify by name the respondents in the proceeding against whom the order is being imposed. The order also needs to include the accrual language, in my opinion, and they all do at this point in time, so that's not a problem. But some of the -- we have had on occasion an order that says -- calculates the fine amount and then it says at a rate of $150 a day. And the order doesn't say specifically that the fine continues to accrue. Well, what we have done throughout the years, and it's a very good mechanism, is we've incorporated the underlying orders into the final order imposing fine and made it a part of that. Well, those underlying orders, the findings of fact, generally had -- always had the accrual language in them. So -- and it was evident from the record that the respondent was on notice that this fine would continue to accrue. But in looking at the face of the document, those kinds of things give -- raise the argument on behalf of the respondent in trying to claim that their due process is violated, because they're not on notice from the order who it's against and for instance, if your respondent didn't appear and it wasn't clear from the body or the order itself who the respondent was or who -- particularly where you had multiple parties, which one of those are you intending to fine here, you would have a due process issue with that. The same with the accrual, if there was no way that the respondent was on notice that that fine was to continue to accrue. We've also heard the argument that, you know, the fine was liquidated, the board has calculated what it was and that's the amount and that's the only amount. Well, I think we're pretty comfortable Page 40 August21,2003 that the statutes make it clear that that fine will continue to accrue, but it's best to have that language in the order. Certainly the affidavit of either compliance or non-compliance needs to be a matter of record when you render these orders. They are recorded before the matter gets sent to you and put on the agenda. I think the board should -- and I believe they are presented as part of the record for your review. But I do believe that the board should make certain that there is an affidavit clearly identifying whether that respondent has either come into compliance or not come into compliance, because that's a critical event for you to impose the fine. The statute says that it's not necessary that you have a hearing, but there has to be -- the affidavit is what triggers your ability to impose the fine. So I would ask that you all take the time to make sure that those affidavits are there and that they're clear to you that there's either compliance or non-compliance on the face of the affidavit. The appeal rights should be asserted in the orders. These orders need to be served after they are rendered or executed by the chairman. That's also a part of-- consistently a part of our orders. There's a certificate of service that shows that it's been mailed out. I think Jennifer or Jean mentioned -- I think Jennifer mentioned adding a language about -- in the orders themselves that say the respondent has the obligation to notify code enforcement when they have come into compliance. I often hear that as an excuse. I'm not sure how a court would come down on that particularly, but I think it's a good idea to put that in both the orders, the order imposing the fine and the findings of fact and order of the board. And I think just as a practical -- just as a comment, Jennifer covered this pretty well on the findings -- because you're not having full-blown hearings on these orders imposing a fine and although you -- when someone appears you will allow them to be heard, you're incorporating the underlying orders of the board, and the statute does Page 41 August 21, 2003 say when imposing fines, you shall consider those three things that Jean talked about earlier. I think it's important that those orders -- the underlying orders that when you entered that finding of fact and you state what the violator has to do or the respondent has to do to come into compliance, that you be certain -- that it be clear that the violator can -- has the ability to cure the violation. And I've attended some of the meetings, and some of these are very difficult, I think, to express or articulate in writing the steps that that respondent has to undertake to come into compliance. And I think sometimes we've relied on these general statements that have served us well. But certainly in your deliberations, be confident by the evidence that you hear, and it should be evidence, that that is something available to the respondent. And if you're going to put a time period on it, please have some confidence level that that's a reasonable time period within which that violator can cure the violation. Because I would think that would be a fundamental problem that I would have to deal with, even in a foreclosure action, if it couldn't be done. MS. DUSEK: I have a question. Does the law allow our attorney to adjust our findings of fact? For example, you said in one case only one respondent was named, and there should have been two. And if we have neglected to do that publicly, can our attorney adjust that? MS. CHADWELL: Well, let me clarify something that -- MS. DUSEK: If it were not intentional, but we left something out that we should have had in there, is our attorney allowed to adjust it? MS. CHADWELL: After it's been signed? MS. DUSEK: No, this is before, when she's recording -- MS. CHADWELL: Well, first of all, let me clarify. It wasn't inadvertent -- you didn't inadvertently fail to name the other party, it was your decision not to include them. So that wasn't an error, it was my recommendation that you identify that person in the body of the Page 42 August 21, 2003 order. And to answer your underlying question is, your attorney -- well, I guess your attorney should probably answer that. She's doing her best to prepare, memorialize your ruling. And to the extent that the order she presents doesn't accurately reflect that or -- and you notify her of that, I assume that she could, you know, correct it as long as the record sustained that. The chairman ultimately has to be satisfied with the contents of the order in signing it. Jean and I have just spoken-- CHAIRMAN FLEGAL: Jean and I have had a couple of conversations that I always get leery about things that get changed, first of all, because we have a written record, second because we have a video record. So somebody can take a video and take an order that we've said we've done and I've signed and say gee, I'm reading this and I'm watching the video and that's not what you people said. So we're dead. So she can't change it -- if we didn't say it she can't change it. At least that would be my opinion, and I'm not an attorney. MS. RAWSON: Well, I'm going to protect the record as well, and your written order that your chairman signs should comply with the record that was taken and the discussion held. Because you put that right on the record. So the -- I guess my only suggestion to you is to be as clear as you can. And you are. I mean, mostly you very much are, and lots of you will say to me did you get that, Jean. And if I have any questions or I think that you should add something, I might ask a question so that you make it even clearer. But you're pretty good about giving me that on the record. But your record and my orders have to be the same. I can't write them the way I wish they had come down. MR. PONTE: Crafting the finding of fact is very difficult to do just verbally. As a lawyer you sit down and you craft it, write it out, change a word, transpose the words, you have time to do it. Here Page 43 August 21, 2003 we're trying to craft the finding of fact, and it's like five people designing a horse, it may not come out right. And we're trying to do it between each other and did you get that and does it mean this, it's amazing anything comes out. Is there a way that we could craft it and then put it on paper so we could see what we've written? Particularly that gets confusing when we merge two cases and you have two of them back-to-back. MS. RAWSON: I can only answer you this way: When you're crafting it verbally and saying what it is, if you're not sure what it is you just said, the court reporter will read it back to you. MR. PONTE: It's not what I have just said, it's where you're trying to put it all together and often someone will craft one sentence, someone will tweak it a little bit, go back and forth. MS. ARNOLD: Well, nothing prevents you from before -- if you wanted to make a motion, whether it's a finding of fact or a recommendation for corrective action -- for you to write it down on your paper in your book before you actually verbalize it. MR. PONTE: We do try to do that. Yeah. CHAIRMAN FLEGAL: I think I know what you're trying to say, but I think a pre-written form probably wouldn't work, because again, everything is so individual in each case that there's -- I don't think there's a set stack of words we can use. MR. PONTE: No, I don't mean a form. I don't mean a form at all. CHAIRMAN FLEGAL: I think it would be hard for these three lawyers to sit down and come up with something saying here's what you should do. ! don't really think that would work. MS. CHADWELL: Yeah, we all have our own ideas. CHAIRMAN FLEGAL: Right. MR. PONTE: It's just the time to craft it that I think puts pressure on it. We're trying to move along and we need time to write it out. Page 44 August21,2003 CHAIRMAN FLEGAL: I think that's where the record triumphs. The court reporter and the video and as we all speak and then we look at Jean and say did you get that, Jean, because we're done throwing in a sentence here, a word there, and we're relying on her. And I think she does an excellent job, because normally when ! get down to signing them, I can pretty much remember what it all was, and then when I see it in final written form, it rings a bell that okay, yeah, this is what George said, yeah, that's what Bobbi said, she added that in. And a couple of times I've asked Jean, I've said, was this the final sentence? And Jean remembers better than I do. So I think right now it does pretty good, because I think also Jean talks with Michelle to make sure -- MS. ARNOLD: Several eyes. Jennifer's reviewing them, so, you know, we try to have the orders represented. MS. RAWSON: Shanelle takes notes, too. MS. BELPEDIO: It's not to say that there's ever been an inaccurate representation of what this board has said, it's just that sometimes things haven't been thought all the way down the road and come back around to consider all the possibilities. And of course hindsight is always 20/20, and we never know completely what twists and turns are going to happen when people are working towards compliance. So it's just making sure we cover all bases. Because as much as I can review it or Jean can review it or Michelle can review it, we can't depart from what you've said. We can't just say well, they, you know, they didn't consider this, and we're going to just add this because it really needs to be put in there. CHAIRMAN FLEGAL: It's hard for us as lay people trying to make a quick decision -- which is what we've really got to do -- to think of all those things -- MS. BELPEDIO: It's hard for attorneys, too. CHAIRMAN FLEGAL: Some of us do, and then sometimes we sit there and we hear a sentence and we say yeah, I like that, we're Page 45 August21,2003 done. And, you know, so we're on to the next thing, but we maybe should have thought a little more. But we have a time constraint. So I think in the current process we do pretty well for a bunch of lay people. MS. BARNETT: Just coming from an individual that's fairly new, I think I'm the newest one here, what I have seen our board do in reaction to that is we kind of take a lot of times the general order that the county has suggested and we modify it in some way. And so that is in a written form. And we make our changes and I know I have done it. I have to say, I've been negligent of turning those in. ! will from now on. But I'll make a notation on that order as to what we've changed, or I'll cross something out or put something in. And that's in a written form of sorts for you to look at. MR. PONTE: It's a starting point. MS. BARNETT: And also, we have a check and balance amongst ourselves, because that's why that line gets thrown in there. Because there will be times Bobbi will catch something that he possibly missed, or you will have a difference and you'll throw it in. And I think it all kind of gels that way. CHAIRMAN FLEGAL: And there's a lot of compromise. You know, somebody wants $50, somebody wants 100, and by the time we're all done, maybe 75, because we think of what is it we're doing and is it that drastic, or 30 days, or 60 days, or 45. Those all get bounced around. MS. BARNETT: And I've also heard it asked, is that going to give that individual enough time? How long is that process for them to get that permitting? I think we're trying to take those things into consideration. CHAIRMAN FLEGAL: I think we're pretty good about asking the county is that sufficient time. It would be real easy to sit here and say well, if a guy really wanted to do that, he could do that in a week, but we'll give him 30 days, because the County didn't actually Page 46 August21,2003 look at it a certain way. I might be able to do it in a week by going out and hiring a contractor to do this, but that guy over there isn't going to do that, so I think that's the big difference. I have two questions, Ellen: One on our foreclosures. Since the homestead gets us, is there another venue that the county can take if when we say we'd like you to proceed with foreclosure against "X" and the homestead may be sitting there that prevents any of that, is there another venue to collect the funds? MS. CHADWELL: Yes. Whether that's -- CHAIRMAN FLEGAL: Do we need to tell you that, or will you do that automatically? MS. CHADWELL: No, and I think we've just communicated this thought amongst ourselves, and that is to -- even though that segment of your agenda says request to foreclose, we probably need to make it clear, either through staff's request or through your action, that it's not just to foreclose, it's to take any action authorized under this section, 162.09, subsection three. MS. ARNOLD: That's something Ellen just asked us to fix. MS. CHADWELL: Because you can do other things. You can levy on their car, you know, you could -- any personal property. I mean, it's collection work is what it is. And now with the new change, like I said, I think you could convert -- I had someone call me the other day, well, have you ever done one of those? No, but I'm guessing this is how you might do it. Just from my experience with civil litigation, I would petition the court to convert that order into a civil judgment and then I could file an action for garnishment. I could go after the guy's wages. CHAIRMAN FLEGAL: My interest is, again, not to punish somebody, but if we want compliance, I could envision -- and it may have already happened-- somebody not caring about code enforcement and bringing an order -- bringing something to us because we issue an order and they say, they can't take my house Page 47 August 21, 2003 because I have it homesteaded and I'm never going to pay the bill, and to heck with them, and I'm never going to comply. MS. DUSEK: Some day they have to sell it, though. CHAIRMAN FLEGAL: But that's really way down the road and the way things go in Collier County. A lot of those people don't settle up, people just keep passing it along, along, along. So I'm looking for another process for the county to get the money, because they've put a lot of effort in and they're due the money and should be paid. MS. CHADWELL: Like I said, from my perspective, it hasn't been a real problem. I have one sitting in my office that's an elderly gentlemen and it is his homestead, and he doesn't have any other property. And quite frankly, I don't think I want to take his car. I'm not even sure he has one. But we haven't decided how we're going to approach that one. But I think, you know, he's ill, he's very, very elderly. So it may be that that lien will just sit there for a few years and see what happens with that. I know you don't like to hear that after your hard work, but there are those circumstances. But generally there's only been, and I wouldn't even say a whole handful, I'd say maybe a couple where we've been stymied because it's been homestead. And it didn't -- in light of the size of the lien, it didn't -- it didn't make a lot of sense to go after any personal property, so it maY have been sent to collections. But generally speaking, once they get the letter from my office threatening to take some action, if it does relate to their homestead, even though I put in the letter, because I think it's appropriate to do so, that I can foreclose on any of your real or personal property except homestead, I still have them come and they're concerned because it is their homestead and they want to maintain -- they may have a mortgage on it or they may just be fearful that there's a lien imposed against their property. One would think that if they felt that Page 48 August 21, 2003 way, they would have cured the matter up front, but, you know, who knows. CHAIRMAN FLEGAL: I may have asked you this before, but when you do your letters of possible foreclosure, if there's any kind of a mortgage on the property, do you notify the mortgage holder? MS. CHADWELL: No, but we've talked about doing that. And I think that -- CHAIRMAN FLEGAL' Normally that would trigger a real response. MS. CHADWELL' I think it would be very helpful. I think it would get a response in those situations. CHAIRMAN FLEGAL: Somebody's holding a paper on a place and they say it's going to be foreclosed, I mean, they don't want the property back. Banks notoriously do not like to get real estate, and neither do mortgage companies because that's just a waste of their time, because now they're stuck with something they're going to have to drive -- come down to the courthouse and bid on them. And I've watched them down there, I've been to those many times. But that may aid, I don't know. MS. CHADWELL: And I think we should do that, because -- and I think we talked about doing it on the front end. Because there is a case out there where they had -- a court dealt with the issue of notifying the mortgagee and certainly left me with the confidence that there was nothing to prohibit us from doing that. I mean, you wouldn't -- you wouldn't tell them they were in -- you wouldn't violate them as a mortgagee, but you might communicate that. CHAIRMAN FLEGAL: I notice when-- MS. ARNOLD' We can give courtesy notices to the mortgage company. CHAIRMAN FLEGAL' -- they put a lien and are going to foreclose on it or something, on condominiums, they notify everybody. The condominium association, you know, attorneys, the Page 49 August21,2003 mortgage companies, renters. Boy, they've got a list of people this long they notify. They don't leave anybody out. Everybody gets noticed today this foreclosure is coming up. I mean, it's surprising. MS. BARNETT: In light of that, I can remember a situation with the civic association when we had a problem, a piece of property that, you know, we as a civic association was trying to get cleaned. Up, we found out it was like in a -- some type of legal situation, a divorce or something, things were pending, we notified the mortgage holder, the bank or that, just a little note saying we're having a problem with this property. Sometimes it was not getting the lawn mowed. All of a sudden it was taken care of. It was just another way of circumventing the situation. So it may be helpful to put it on the front end, it might help abate some of those situations. MS. CHADWELL: Well, I'll certainly make it a practice to include it on the notices that go out. So that will be our new policy, I guess. CHAIRMAN FLEGAL: My other question is when we do our orders, and I don't know, maybe we just started doing it that way, we always tend to say that -- and we put in them that the operational costs are included. And the -- I want to make sure that we use the right word, because the statute says that we can recover all the costs incurred in prosecuting the case. Is that the same thing as operational? Prosecutorial costs versus operational. MS. CHADWELL: It's my understanding that staff prepares an itemization of those costs in coming to their calculation. I don't know if that's part of your agenda item, but it probably should be. And in looking-- and the ones that I've looked over, those costs in my opinion are the same as prosecutorial costs. Whether you call them operational or prosecutorial, I mean, it's up to you. CHAIRMAN FLEGAL: I just want the semantics to be to be right so that somebody doesn't one day appeal us and say I'm not paying the operational costs; I'll pay for prosecuting, but not for Page 50 August 21, 2003 operational. MS. CHADWELL: I mean, if you're more comfortable changing that language and I'm sure you're, you know, in consult with your attorney -- MR. PONTE: Operational was easier to say than prosecutorial. MS. RAWSON: I can say costs in prosecuting this action. CHAIRMAN FLEGAL: The only question in my mind was trying to think ahead that somebody some day could say you used the wrong words. MS. CHADWELL: Right. You're absolutely right, and lawyers are big -- that's what we do is we rely on words. I mean, words are everything. And if you use the wrong one, it can be meaningful. MS. ARNOLD: You had a question about collection. CHAIRMAN FLEGAL: Oh, the other question I was curious about, the legal opinion on the authority to reduce a fine. MS. CHADWELL: You want my personal opinion or the opinion of our office? CHAIRMAN FLEGAL: Well, what I want is the opinion that says can we or can't we. MS. CHADWELL: Can you reduce the fine after a lien has been recorded; is that your question? CHAIRMAN FLEGAL: Well, I don't know that it's after -- yeah, after we've filed the lien, we've said, you know, we've issued the order and the county has come in and said we're looking to impose the fine, so we authorize the imposition of fines. Now the fine's imposed and it's then -- you know, now the people have come to us and said gee, we'd like to have you reduce the fine or abate the fine for these reasons. Do we have the right to do that? MS. CHADWELL' Okay, and I correct myself earlier. Jennifer and I are in agreement. We agree with the Attorney General's opinion. I think that once you have perfected your lien, that it runs in favor of the county and that your jurisdiction, for lack of a better Page 51 August21,2003 word, is gone. We have, however, allowed-- have pursued these reductions, even after the recording of the lien, and it's my understanding that it's really a matter of more practicality than anything. Remember, it's just an interpretation of the statute. The Attorney General's opinion is not binding. And from a practical standpoint, I guess the feeling is it gives you the opportunity to address a matter that you've heard and the respondent is not going to complain about it. I mean, they're not going to be challenging your authority to reduce the fine, if you so choose to do so. So I think-- MS. ARNOLD: Right, and I don't agree with the opinion of the Attorney General. It says -- the statute says that the local -- once the lien is imposed, the local governing body is the one that executes satisfaction of the liens, but I didn't see anything about prohibiting the reduction. And it further goes on to say after three months the enforcement board is the one that authorizes the attorney's office. So if the enforcement office -- or the enforcement board has no authority over the lien once it's filed, then why do they have the authorizing power to turn it over to the County Attorney's Office to pursue foreclosure or other actions to resolve the lien? It just kind of didn't make sense. MS. CHADWELL: Again, it's just an Attorney General's interpretation of the statutes. CHAIRMAN FLEGAL: I understand the statute's one line that says we have the right to reduce the fine, and it's kind of vague. MS. RAWSON: Well, I gave you the Attorney General's opinion just so you can puzzle over it, too. CHAIRMAN FLEGAL: I'm not a big fan of reducing fines. And I've voted for some and against some. But in essence, I go back to my old thing, we gave you so much time to do it and you didn't do it. So if punishing is the big word, then I'm punishing. It's kind of like your kid, either clean up your room or you don't go to the movies tomorrow night. I have no problem with saying you don't go to the Page 52 August21,2003 movies. If you want to call me a bad dad, that's too bad, just clean your room. End of subject. Pretty straight forward. MS. DUSEK: Maybe I'm not understanding, after all these years. When the fine is imposed, there's not a lien at that point. MS. ARNOLD: Yes, there's a lien. MS. DUSEK: There is a lien? CHAIRMAN FLEGAL: We impose a fine, they go file it in the courthouse and that's a lien. MS. DUSEK: And the Attorney General is saying we can't reduce it. And we've been doing it. MS. ARNOLD: We've been doing it all long along. MS. CHADWELL: Yeah, I mean, it's one of those grey areas, and -- MS. RAWSON: Charlie Crist will be here in September at the Women's Republican Club luncheon. You ask him that question. MS. DUSEK: I will. MS. RAWSON: He's the Attorney General. MS. CHADWELL: Did you get-- and you got a copy of the opinion because Jean provided it to you. I think typically and a lot of times our office doesn't follow Attorney General opinions, because the space of interpreting statutes is not always an easy job. And they tend to be on the very cautious side, you know, in making those kinds of interpretations; at least that's been my experience in reading the opinions. Clearly you have the authority to reduce the fine, and it seems appropriate that you -- the people who know -- other than the code enforcement investigator, you know most about -- you know more about the facts of the case than anyone else, and there are sometimes real legitimate reasons to consider reducing a fine, I think, at least. CHAIRMAN FLEGAL: I guess a good question for an attorney is since this sentence says an enforcement board may reduce a fine imposed, is the word reduced the same as abate? Page 53 August 21, 2003 MS. CHADWELL: No. CHAIRMAN FLEGAL' I can reduce a fine, does that mean I can reduce it to zero, or i.e., abating the whole fine? MS. CHADWELL' I think you could reduce the fine to zero, yes. I think you could wipe it out entirely. And that's why you get back to the opinion that if it runs in favor of the county, the Board of County Commissioners, is it really the intent to give you that ability to do that after the lien is created? And I think that's where Charlie Crist comes down on. And that could certainly be remedied by getting -- you know, amending our ordinance regarding the Code Enforcement Board and getting the Board of County Commissioners to specifically give you that authority to do that, you know, to -- and that's something also that's been discussed. I was going to -- I have an extra copy of those opinions, but I think everybody got one, because Jean passed it out. I would just, as far as reduction of fines go, I would just add one more comment and that is that I think it's good to make sure that you're considering all the factors that are laid out in the rule. I think Jean mentioned the form that we have on the motion and the individuals sometimes do a good job of articulating those reasons and oftentimes don't. So walking yourself through the rules as you're hearing from the respondents is sometimes helpful. Kind of creating your own books and guidance, kind of a mental checklist as you're reviewing the rules and portions of the statutes will kind of help you keep on track and objective. And it makes it a little bit easier, because it is a very tough job on the spot to hear all the evidence and weigh all the evidence and then try to craft an order that suits that individual circumstance. So that being said, anyone has any questions? Otherwise, I don't know if I have anything else to add. MR. PONTE: I think we also ought to make a little clarification here. It says the Code Enforcement Board is not authorized to reduce Page 54 August21,2003 a fine. But we do and it takes time and that's the -- it takes a lot of time when that situation comes up. Is it going to be the position of this board that we are going to continue to entertain the reduction of fines, or is it not? CHAIRMAN FLEGAL: Let me say this as the Chairman. The ordinance that created us, which is 92-80, as amended, has a sentence in section nine, which is our powers, that says enforcement board shall have such additional powers as may be authorized or granted by the local Government Code Enforcement Board Act, Section 162 of the Florida Statutes. 162 states in that one line that we have the power to reduce the fines. Now, since the county put that in there, I assume they're saying we have the power to reduce the fine. So if we want to reduce it we can reduce it, and the Attorney General, if he doesn't like it, can do something about it. MS. ARNOLD: Well, what Ellen is saying is that we could probably modify the ordinance to specifically say that the board has granted the Code Enforcement Board the authority to do that. CHAIRMAN FLEGAL: But right now, I don't have any problem with that long sentence that says we have all the powers that are in 162 given to us also. So if we want to keep doing it, we can do it. I don't feel bad about that, unless the county tells me no, stop. And they haven't done that yet. MS. CHADWELL: And remember that you do hear a lot of these -- well, maybe you don't. I don't know how quickly we're recording the orders. If it caused anyone any concern, we could delay recording the orders so you would have a time period within which to hear any motions to reduce fines. There are a lot of ways to address it, if the board is -- CHAIRMAN FLEGAL: It's our-- at least it's my opinion from a board standpoint that once we authorize the imposition of fines, I'm for recording it quick, because that starts the clock running on the Page 55 August21,2003 three-month time period, which in my opinion is to get away from when I first joined the board, we had stuff laying in there that were years and years old and fines up to 560,000 and some dollars, which is ludicrous, because nobody ever pursued it, which is why we now pursue it so vigorously, I think, by your office, which was the intent. So the sooner we can get it recorded, the sooner the clock starts, the sooner the three months is up and we can sit here and say we'd like you to do something. I think that was the board's intent when we did that, and that's what we do now, and I'd hate to see that change. MS. ARNOLD: The only other item on the agenda that we really didn't touch upon was 162.09(D). And that was just provided for informational purposes that the statute was amended to provide for local jurisdictions of a certain size to increase the fine amounts above what we have -- the maximum is 250 per day right now. CHAIRMAN FLEGAL: Having had, I guess, a conversation with Jean because I was interested in that, I think the thing it does, not only permitting the increase in fines, should they be required, I'm not saying that we should jump on that and do it. But it also gives us the right to collect additional monies -- again, I use the word operational costs -- for the county, because it goes beyond, quote, prosecuting the case. Unless I misread the sentence. Let's see if I can find it. May impose additional fines to cover all costs incurred by the local government in enforcing its codes and costs and repairs. I think that's a big difference when we're saying all costs for imposing, rather than prosecuting the case. Because that cuts it off at a point and you still -- the county still does a lot of things after you come see this board, which a lot of money is spent. And so I like that sentence. And the only way to get that sentence in there is to consider among ourselves possibly recommending to the County Commissioners that they invoke that Section (D) in ! 62.09 and increase the daily fine amount, because that lets us get the other part of the paragraph in there, which is additional costs for the Page 56 August 21, 2003 county, which I think is good. I'm certainly for it. I don't know if these other people have had a chance to read it. I think this is their first purvey into that sentence, and I'd like them to at least consider it and talk about it again, if we need to, or call and talk to Jean about it, I'm sure she can give them some guidance. I like it on a two-fold basis: First, should we ever get something drastic, and the more people we get in the county and the more sophisticated the county gets, I can envision big things where some fines may need to be drastic. MR. PONTE: What would be the mechanism for doing that, for getting it to the commissioners? CHAIRMAN FLEGAL: We would have to recommend to the County Commissioners that they change the current 250 and $500 a day limit to the new provision, or whatever they call it in the statute, and increase it to -- MR. PONTE: Jean would do that? CHAIRMAN FLEGAL: Well, we would recommend to the staff, and staff would carry it forward to the County Commissioners and I'm sure the commissioners would talk to the County Attorney's Office and say what do you think, and if they agree then they would say, yeah, we think you should do it, and they amend the ordinance and take it back to the commissioners, who would then vote on it as part of normal procedure. MS. BELPEDIO: That would be the gist of it. A vote on direction to amend, and then that final amended ordinance -- proposed ordinance would be drafted by staff in conjunction with our office. And it would then have to come back again through an advertised public hearing process. CHAIRMAN FLEGAL: Right. They do have to have public hearings on it and they take a vote on it and then if it passes, that would be part of our new -- part of our new direction. MS. ARNOLD: I just want to say one thing before you all Page 57 August21,2003 leave. I hope this was informative to you all. It was informative to me. And I wanted to thank the attorneys involved, because they helped prepare today's program and they've helped with improving our enforcement proceedings all along, you know, from Jean preparing the orders that you all presented, and making sense of what you are saying on the board. Jennifer has been instrumental in making sure that what comes before you is correct and legally sufficient. And Ellen has been instrumental with getting things done after your code proceedings. She's followed up. So we've got it all before, during and after. And Jeff is here. I wanted to introduce him. He's an attorney with the County Attorney's Office as well; is that correct? MS. CHADWELL: Yes. MS. ARNOLD: And Jeff Clotskoe (phonetic), he will be helping us, too, I understand. MS. CHADWELL: Well, I don't know that that's been a final decision, so that's still tentative. MS. ARNOLD: He's here, just in case he's given the position, to assist our office with various duties pertaining to the Code Enforcement Board, so -- MS. RAWSON: I'd like to say that I always take notes when Ellen talks because, you know, she's the one that's foreclosing on your liens. And if the orders aren't right, you know, and she gets it at that end so, that helps me on this end to be sure that we draft them right. I took a lot of notes about what she said today. I'm going to go back and tinker with my orders some more. I always read what Jennifer writes in her appeals, because that helps me, too, knowing what the orders ought to say so that we have a sustainable record when she goes up and maybe your orders are then going to be sustained by the court and not overturned. So, you know, it starts with you and our order, but, you know, they're the ones that have to follow through. And the sufficiency of Page 58 August 21, 2003 the orders that we write affect both the appeals and the foreclosure procedures, so it's a very nice working relationship here. CHAIRMAN FLEGAL: I think the county side, both the staff and the county attorneys, are supposed to be independent. I know a lot of times when we're actually doing what we do, it may seem that we're against or arguing or whatever, but I've noticed from the county side, as well as -- especially the attorneys and the staff, we get a lot of information. It's not that we're disagreeing with you, it's that as independents we may not understand as well as you do, and that's why we sometimes seem that way. But we do appreciate your information greatly, because the bottom line is our only interest has always been what's best for the county. Not what's best for this board, it's really what's best for the county. MS. DUSEK: I'd also like to say that since the first time I came on the board until today, there's so much more participation from the county attorneys, and ! certainly have been grateful for that. There's a big difference. MR. PONTE: Just to keep you all busy, before we adjourn, because I sense an adjournment moving very close, can we perhaps suggest that this item be on the agenda for the next meeting? That is, the item of the increase. So it doesn't go away, we walk out of the room and it's gone. CHAIRMAN FLEGAL: I think that would be a good idea, because we have a lot of members that don't know what we're talking about yet. And I think we need to make it formal to them to bring it to their attention. Then we can have probably, I think, a recommendation; maybe not a recommendation, a discussion of what that paragraph section of the statute actually means, would best come from maybe the county side to tell us what it really means to the county. So from Jennifer's -- if she would be so kind as to present that to us. MS. BELPEDIO' No problem at all. I will. Page 59 August 21, 2003 CHAIRMAN FLEGAL: That way everybody will understand what we're talking about, since we have, I'm sure, so many members that don't have the slightest idea that we're even considering it yet. Now we could make it formal and you could tell us what it means to the county would help us. Because just sitting here saying I think we ought to recommend raising the hourly - or the daily rate to punish -- yeah, the hourly rates, I'm for 250 bucks an hour, just like attorneys fees. But I don't think I could make a case by sitting here saying I recommend we increase this. I think it needs to be explained that this would be a good thing and why it would be a good thing. I'm certainly for it and maybe presenting it in that manner, letting the other people consider it, think about it, and then after they've digested it we can bring it up in a meeting or two later and say okay, we've had some time to think about it, do you think we should consider making a recommendation to staff to carry it forward? MS. ARNOLD: Sure. MS. BELPEDIO: Wonderful. I will. CHAIRMAN FLEGAL: Will you do that for us? MS. BELPEDIO: I will. CHAIRMAN FLEGAL: Anything else? (No response.) CHAIRMAN FLEGAL: If not, I appreciate it. Ladies, thank you very kindly. MS. ARNOLD: Next meeting is here again. (The meeting was adjourned at 12:15 p.m.) There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12' 15 p.m Page 60 August21,2003 COLLIER COUNTY CODE ENFORCEMENT BOARD CLIFFORD FLEGAL, CHAIRMAN Transcript prepared on behalf of Gregory Court Reporting Service, Inc., by Cherie' R. Nottingham. Page 61