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CEB Minutes 12/11/2003 RDecember 11, 2003 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida December 11, 2003 LET IT BE REMEMBERED, that the Code Enforcement Board in and for the County of Collier, having conducted business herein, met on this date at 9:00 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Clifford Flegal Sheri Barnett Raymond Bowie Roberta Dusek Gerald Lefebvre George Ponte G. Christopher Ramsey ALSO PRESENT: Jean Rawson, Attorney for the Board Michelle Arnold, Code Enforcement Director Jennifer Belpedio, Assistant County Attorney Shanelle Hilton, Code Enforcement Coordinator Page 1 CODE ENFORCEMENT BOARD OF COLLIER COUNTY~ FLORIDA AGENDA Date: December 11, 2003 at 9:00 o'clock a.m. Location: 3301 E. Tamiami Tr., Naples, Florida, Collier County Government Center, Administrative Bldg, 3rd Floor NOTE: ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NEITHER COLLIER COUNTY NOR THE CODE ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. 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 THE COLLIER COUNTY FACILITIES MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (239) 774-8380; ASSISTED LISTENING DEVICES FOR THE HEARING IMPAIRED ARE AVAILABLE IN THE COUNTY COMMISSIONERS. OFFICE. 1. ROLL CALL 2. APPROVAL OF AGENDA 3. APPROVAL OF MINUTES - October 23, 2003 and November 13, 2003 4. PUBLIC HEARINGS A. MOTIONS: Motion to Continue No request submitted at the time of this agenda B. HEARINGS: CASE NO: CASE ADDR: OWNER: INSPECTOR: 2003-053 120 12TM ST NE, NAPLES, FLORIDA MOISE, WESNER AND MARIE GABRIELLE RENE JEFF LETOURNEAU VIOLATIONS: ORD NO 99-51, AS AMENDED, SEC 6, 7, AND 8, THE WEED AND LITTER ORDINANCE LITTER CONSISTING OF BUT NOT LIMITED TO METAL, WOOD, PLASTIC, A HOT TUB AND PAPER. ORD 91-102, AS AMENDED, SEC 2.6.7.1.1 STORAGE OF UNLICENSED AND/OR INOPERABLE VEHICLES AND TRAILERS CASE NO: CASE ADDR: OWNER: INSPECTOR: 2003-055 DIAMOND SHORES, NAPLES, FLORIDA AL JO INC CAROL SYKORA VIOLATIONS: ORD NO 99-58, PARAGRAPH 1, THE COLLIER COUNTY HOUSING ORDINANCE: FAILURE TO COMPLETE, SUBMIT AND OBTAIN A RENTAL REGISTRATION CERTIFICATE FOR RENTAL UNITS, AS REQUIRED CASE NO: CASE ADDR: OWNER: INSPECTOR: 2003-046 9503 TAMIAMI TRL N, NAPLES, FLORIDA KAUTSKY TR, NORMAN E AND PATRICIA J ANDREW WUHRER VIOLATIONS: ORD NO 91-102, AS AMENDED, SEC 2.5.7.30 OF THE SIGN CODE ILLUMINATED SIGN, NEON OR OTHEWlSE INSTALLED INSIDE A BUSINESS AND INTENDED TO BE SEEN FROM THE OUTSIDE. 12/5/2003 o 10. NEW BUSINESS: A. Request for Imposition of Fines/Liens 1. BCC vs. Dixie Higginbotham 2. BCC vs. Barbara Galloway 3. BCC vs. Van Elway 4. BCC vs. Ponce Realty Company B. Request for Reduction/Abatement of Fines No request submitted at the time of this agenda C. Request to Forward to County Attorney's Office No request submitted at the time of this agenda D. Motion/Request for Extension of Time 1. BCCvs. GopalMotwani CEB NO. 2003-022 CEB NO. 2003-035 CEB NO. 2003-039 CEB NO. 2003-042 CEB NO. 2003-034 OLD BUSINESS: A. Affidavits of Compliance No request submitted at the time of this agenda B. Affidavits of Non-Compliance 1 BCC vs. Barbara Galloway 2. BCC vs. Van Elway 3. BCC vs. Ponce Realty Company CEB NO. 2003-035 CEB NO. 2003-039 CEB NO. 2003-042 REPORTS COMMENTS/DISSCUSSION Sunshine Workshop Meeting required for all advisory boards scheduled for December 12, 2003 at 2:00-3:30 NEXT MEETING DATE January 22, 2004 in the Board Room ADJOURN 12/5/2003 December 11, 2003 CHAIRMAN FLEGAL: We're a little tardy. Please make note, any person who decides to appeal a decision of this Board will need a record of the proceedings pertaining thereto and, therefore, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Neither Collier County nor the Code Enforcement Board shall be responsible for providing this record. If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you're 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, phone number 774-8380. Assisted listening devices for the hearing impaired are available in the County Commissioners' office. May we have the roll call, please. MS. HILTON: Good morning, ladies and gentlemen. For the record, Shanelle Hilton, CEB coordinator. Clifford Flegal? CHAIRMAN FLEGAL: Present. MS. HILTON: Bobbi Dusek? MS. DUSEK: Here. MS. HILTON: George Ponte? MR. PONTE: Here. MS. HILTON: Gerald Lefebvre? MR. LEFEBVRE: Here. MS. HILTON: Sheri Barnett? MS. BARNETT: Here. MS. HILTON: Chris Ramsey? MR. RAMSEY: Here. MS. HILTON: Albert called me, he has a doctor's appointment; he has an excused absence. Page 3 December 11, 2003 And Raymond Bowie? MR. BOWIE: Here. CHAIRMAN FLEGAL: Okay, approval of our agenda. Are there any changes to the agenda? MS. ARNOLD: For the record, Michelle Arnold. Staff has no changes to the agenda. CHAIRMAN FLEGAL: Anyone on the Board? (No response.) CHAIRMAN FLEGAL: If none, I would entertain a motion to accept the agenda as submitted. MR. PONTE: So moved. MS. DUSEK: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the agenda as submitted. All those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Approval of the minutes, first from October 23, 2003. Are there any changes to those minutes? Corrections? (No response. ) CHAIRMAN FLEGAL: If none, I would entertain a motion to accept the minutes as submitted. MS. DUSEK: So moved. MS. BARNETT: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the October 23, 2003 minutes as submitted. All those in favor, signifyby saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Any opposed? (No response.) Page 4 December 11, 2003 CHAIRMAN FLEGAL: Approval of our minutes from November 13th, 2003. Are there any corrections or changes to those? If none, I would entertain a motion to accept the minutes as submitted. MS. BARNETT: So moved. MR. LEFEBVRE: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the minutes as submitted. All those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Opposed? (No response.) CHAIRMAN FLEGAL: We'll now open our public hearing portion of the Board. For the record, there are seven of us here. One is our alternate, Mr. Bowie, he will participate fully and vote. Public hearings. There are no motions. First case, Case No. 2003-053. MS. HILTON: Yes. Board of County Commissioners versus Moise, M-O-I-S-E, Wesner, W-E-S-N-E-R, and Marie Gabrielle Rene. CEB Case No. 2003-053. We have previously provided the respondent and the Board with a packet of information we would like entered as Exhibit A at this time. MS. DUSEK: Exhibit A. MR. PONTE: I'll make a motion that we accept the County's Second the motion. CHAIRMAN FLEGAL: We have a motion and a second to accept the county's exhibit. All those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Any opposed? Page 5 December 11, 2003 (No response.) MS. HILTON: I would like to ask at this time if the respondent, if the respondents are present in the courtroom? (No response.) MS. HILTON: The respondents are not present. The alleged violation is of Sections 6, 7, and 8 of Ordinance No. 99-51, as amended, the weed and litter ordinance, and violations of Section 2.6.7.1.1 of Ordinance No. 91-102, as amended, the Collier County Land Development Code. The description of the violation: The subject property contains litter consisting of but not limited to metal, wood, plastic, a hot mb and paper. In addition, the property owner has the storage of unlicensed and/or inoperable vehicles and trailers. Location where violation exists: 120 12th Street Northeast, Naples, Florida, more particularly described as Folio No. 39265720002. Name and address of owner in charge of location where violation exists: Moise Wesner and Marie Gabrielle Rene, 120 12th Street Northeast, Naples, Florida, 34120. Date violation first observed: April 29, 2003. Date owner given notice of violation: May 20th, 2003 by personal service, and July 1 st 2003 by certified mail, remm receipt requested, remm unclaimed. Date on which violations were to be corrected: Were June 3rd, 2003 and July 1 lth, 2003. Date of reinspection: Was yesterday, December 10th. Result of reinspection: The violation remains. And the CEB packet was sent certified regular mail and the property was posted as well. And at this time, I would like to mm the case over to the investigator, Jeff Letoumeau, to present the case to the Board. (Speaker was duly sworn.) Page 6 December 11, 2003 MR. LETOURNEAU: Good morning, ladies and gentlemen. For the record my name is Jeff Letourneau, Collier County Code Enforcement investigator. I first received an anonymous complaint about vehicles on the described property on March 29th, 2003. I went out there on a site visit. I observed six cars and a trailer with either expired tags, inoperable or both. That's two of the vehicles and the trailer. Nobody was home so I posted an NOV and mailed it. I rechecked on -- a couple weeks later and observed that two of the cars were removed, but four cars and a trailer remained. I found a note by one of the property owners, Ms. Rene, on the door. I called her and I told her I would issue a citation if the vehicles weren't taken care of by my next visit. On my next visit I observed three cars and the trailer remained, so she had removed one. So I decided to give her, you know, some more time, since she was starting to remove the vehicles. The following two weeks later I did another recheck and all the vehicles besides the trailer were gone or tagged. The trailer remained untagged. At that point, Ms. Rene was trying to either get a permit for the trailer or get a tag for the trailer. She had contacted a permitting professional to get the tag -- I mean, get the permit, but when I contacted the permitting person, she said that it probably wouldn't be feasible to get a permit for it, it would be better just to get a tag. So it kept going on until July 1st, I received an anonymous phone call, I guess from the original complainant, stating that there -- there was actually more vehicles and a big pile of litter farther in the back of the rear yard. So on that day I went there and I found a big pile of litter and a couple more vehicles in the backyard. It looked like they had been trying to hide the vehicles. Nobody was home, so I posted an NOV for litter at that time, Page 7 December 11, 2003 and mailed one. All right, the following week I received a call from a man who stated that he was a friend of the owner, and his name was Willie and he said that the owner, Ms. Renee, was in Haiti due to a death in the family. All the violations still remained at that time. Following week I met with him again, he said that she was still in Haiti. He was there to help her remove the cars and that three of the cars would be gone within a week. The following week I went by, observed one car removed. All the litter remained at that time. I kept going there. Basically he kept removing a vehicle a week until -- let me see now. Basically they took care of all the cars except the trailer. And they started removing the litter a little bit at a time, as much as Waste Management would, you know, allow them to put out on the curb every -- every two times a week. So Willie was helping this lady get rid of the litter, but the trailer remained untagged. Let me see. This kept going on. They -- you know, he's steadily been removing the litter, but I haven't had any contact from Ms. Renee. I guess she's still in Haiti. Willie just keeps putting litter out there, but the trailer remains untagged and, you know, sitting in the backyard. And I've received a couple more complaints from the original complainant. And that's where we sit now. As of Monday, the trailer remains and the pile of litter has probably been reduced about 50 percent since the original site visit. I mean the original site visit for the litter. MS. DUSEK: When was your last conversation with her friend? MR. LETOURNEAU: Last conversation with Willie? Let me see, looks like September 30th. I've tried to make some phone calls. It's hard to get in touch with him because his phone number -- he doesn't have a phone number, I just call at work where he works at. Page 8 December 11, 2003 And to get in touch with him is very difficult. I tried yesterday and I couldn't get through to him. MS. DUSEK: Does it appear to you that there's a steady progress? MR. LETOURNEAU: I would say there's steady progress on the litter, but the trailer has been -- you know, that's the main point of my, you know, case right now is the trailer has been sitting there for the whole investigation and nothing's been done about it. The litter, I would say that they're making an attempt to, you know, at least get rid of it. You know, the thing is, they look -- you know, it's so far in the back, it looks like it was, you know, kind of purposely hidden with a couple of vehicles at one time. MR. PONTE: Have those other vehicles been removed? MR. LETOURNEAU: Everything's been gone except the trailer is the only violation vehicle-wise. CHAIRMAN FLEGAL: Jeff, this fellow Willie, has he had any contact at all with the owner; do you know? MR. LETOURNEAU: I'm not sure. I don't -- I don't think -- I don't think he has regular contact with her. I really don't. I mean, he knows she's over there, but I don't think he really knows what she's doing over there. CHAIRMAN FLEGAL: He's just kind of being a nice guy by -- MR. LETOURNEAU: Well, I mean, they set up a deal in the beginning and I think that he's just a good friend and he's helping her out, you know, he's trying to help her out with the litter. But he can't -- he can't do anything about the trailer. He doesn't have any money, and, you know, he's just doing the best he can. MR. BOWIE: I have one question. You referred thus far to one of the owners being absent extensively from the property, Marie Rene. The other owner, Wesner Moise? MR. LETOURNEAU: I've never seen him or met him at any Page 9 December 11, 2003 time. He's never been on the property when I went there. MR. PONTE: And Willie is just a neighbor? MR. LETOURNEAU: Willie, I don't even think he's a neighbor, I think he's just a friend that lives in town that's help -- trying to help her out. You know, I don't think -- I don't think she really had the money to remove the litter or get the trailer removed so she's -- she just asked him to come in and try to help her out, you know. I probably would have extended her more time on the trailer, but I have, you know, a complainant that's, you know, pretty adamant about getting rid of it. CHAIRMAN FLEGAL: I notice the deed, that this Wesner Moise and Marie Gabrielle Rene are husband and wife. And you're saying you haven't been able to get ahold of either one of them. MR. LETOURNEAU: They've never -- I mean, since -- let me think, the last time I talked to Ms. Rene was -- it looks like way back when. Gosh, at least four months ago, it looks like. And I've never met the gentleman. I mean, I know she's had some problems in Haiti, I mean, obviously. And that's why I've let the case -- you know, that's one of the reasons I've let the case go so long, but, you know, when you have a complainant, you've got to do what you've got to do. CHAIRMAN FLEGAL: Any other Board member have any questions for Jeff?. MR. BOWIE: I could see where the trailer is obviously a matter of concern. If you look at our Page 24 aerial photo exhibit, it even looks as if the trailer may be encroaching across the lot line on the neighbor's lot. So I can see perhaps why the neighbors would be a little concerned about this. MR. LETOURNEAU: Well, in all reality, the -- a lot of times those aerials are -- can be off a little bit. I don't think it -- it probably could be encroaching but I don't think it's over the lot line. You know, I think it's a 75 footer, so -- but yeah, I mean, it is an eyesore, Page 10 December 11, 2003 there's no doubt about it. CHAIRMAN FLEGAL: Any other questions for Jeff?. (No response.) CHAIRMAN FLEGAL: Thank you, sir. MR. LETOURNEAU: Thank you. CHAIRMAN FLEGAL: Finding of fact by the Board. MS. DUSEK: I make a motion that in the case, CEB Case No. 2003-053, Board of County Commissioners versus Wesner Moise and Maria (sic) Gabrielle Rene, that there is a violation, that the violation is of Section 6, 7, and 8 of Ordinance No. 99-51, as amended, the weed and litter ordinance, and violations of Sections 2.6.7.1.1 of Ordinance No. 91-102, as amended, the Collier County Land Development Code. Description of the violation: The subject property contains litter consisting of but not limited to metal, wood, plastic, a hot tub and paper. I'm not so sure the hot tub is still there. In addition, the property owner has caused the storage of unlicensed and/or inoperable vehicles. At the present there is only one trailer. MS. BARNETT: Originally, though, the complaint, when it was made -- MS. DUSEK: Yes, that's why I said vehicles. CHAIRMAN FLEGAL: Okay, we have a motion in fact a violation does exist. Do I hear a second? MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and a second that in fact a violation does exist. Any further questions? (No response.) CHAIRMAN FLEGAL: If none, all those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Any opposed? Page 11 December 11, 2003 MR. PONTE: MS. DUSEK: MR. PONTE: MS. DUSEK: MR. BOWIE: MS. DUSEK: violation continues. (No response.) CHAIRMAN FLEGAL: Order of the Board. MS. DUSEK: Well, looking at the recommendation by the county, I make a motion that the CEB order the respondent to pay all operational costs incurred in the prosecution of this case and abate all violations by removing all litter within 30 days of this hearing, or a fine of 50 days will be imposed for each -- $50. What did I say? Fifty days. Oh, 50-- $50. A jail sentence. $50 per day will be imposed for each day the Second part to that: County may, after 45 days, hire a contractor to remove the litter and debris listed above, and impose the costs against the respondent. Number three to this: Respondent must properly register and license all unlicensed or inoperable vehicles within 30 days of this hearing or a fine of $50 per day will be imposed for each day the violation continues. Number four: Respondent may store same within a completely enclosed structure or remove from property within 30 days from the date of this hearing. The last part of the recommendation: Respondent must notify code enforcement that the violation has been abated and to request the investigator to come out and perform the site inspection. MR. PONTE: Just a point of clarification. We're talking about -- are we talking about two $50 fines, $100 a day, or are we talking about one $50 fine that is for the litter and trailer? CHAIRMAN FLEGAL: Two $50s. MS. DUSEK: It's two, two $50 fines. Page 12 December 11, 2003 MR. PONTE: $100 a day? MS. DUSEK: Yes. CHAIRMAN FLEGAL: Might I ask you to make one amendment to your item three where you say register unlicensed or inoperable vehicles? Would you add, "or remove them", giving that right, they can either license them or remove them? Would that be sufficient? MS. DUSEK: Yes. And I thought that I -- CHAIRMAN FLEGAL: I didn't hear that -- MS. DUSEK: Okay. All right. CHAIRMAN FLEGAL: -- but I'd like to give them that option MS. DUSEK: Yes, exactly. CHAIRMAN FLEGAL: -- that they can get rid of it. MS. DUSEK: I thought I had in there, but yes. MR. RAMSEY: Just another point. When we say vehicles, we need to say vehicles and trailers, or does trailer -- can be encompassed in vehicles? CHAIRMAN FLEGAL: I think trailers will be included in the word vehicle. It is a vehicle, as far as this Board is concerned. Is that sufficient for you, Chris? I mean, we can change it, I'm sure. MR. RAMSEY: That's fine by me. In the top part it had listed both. I just wanted to mention both as well. MS. BARNETT: I just have one question, and I'm not sure if anybody here can answer me. But I know if someone doesn't have the proper registration for a trailer, then they have to go to the state in order to get the proper form. And I know that that can take some time frame, and I do not know what that length of time is, and whether 30 days is going to be enough, especially when someone's been out of the are -- the country. And that's my only concern. MR. PONTE: What you're talking about is proof of ownership. Page 13 December 11, 2003 MS. BARNETT: Right. If they do not necessarily have the title MR. PONTE: Yes. MS. BARNETT: -- then they have to go and get the title, and that does take some time from the state. MR. BOWIE: I think the bigger concern is not so much that the trailer be licensed, but that it be removed from the property where it shouldn't be to begin with. MS. BARNETT: Legally, if they license it, they can store it in the Estates, I believe. MR. BOWIE: A trailer that size? MS. ARNOLD: Yes. MR. BOWIE: If being licensed can be stored there? MR. LETOURNEAU: Yes, it's allowed in the Estates district. CHAIRMAN FLEGAL: In the Estates, yeah. I guess the only thing I would say, Sheri, is since she -- MS. BARNETT: She's had time, but she's not been here. CHAIRMAN FLEGAL: -- she's had all the other vehicles removed, I would venture it's probably pretty safe to assume that she's going to get rid of this, too. MS. BARNETT: Except she hasn't through this whole time. CHAIRMAN FLEGAL: Yeah, and we don't know why. MS. BARNETT: Yeah. Well, that's why I'm saying, I just throw it out there as a thought, that that may be the holdup, that she doesn't have legal title and doesn't know how to go about it. MR. LETOURNEAU: I think that the rest of the vehicles -- or actually, she was keeping it as a staging area, because she ships them over to Haiti. The actual trailer I think she's using for storage, you know. I don't think she plans on moving there. CHAIRMAN FLEGAL: You haven't seen inside of it, have you, Jeff?. MR. LETOURNEAU: No. But she's stated as a fact that she Page 14 December 11, 2003 has most of-- all of her stuff stored in there. That's why she wants to MS. BARNETT: That puts a little bit of insight into it, then. MR. LETOURNEAU: That's why she wants to keep it right there. CHAIRMAN FLEGAL: I guess on that respect I'm happy with the 30 days. If that's a problem for her, she can always ask for-- MS. BARNETT: An extension. CHAIRMAN FLEGAL: -- an extension of time. I think she needs the pressure at this point, because the county has been working on this for-- MS. BARNETT: Since July. CHAIRMAN FLEGAL: -- seven months, and there's been some activity, but not near enough in seven months. MS. BARNETT: Okay. I just threw it, like I said, out as a question. CHAIRMAN FLEGAL: Anybody else? MS. DUSEK: I don't think that there's really any change to my recommendations, except-- CHAIRMAN FLEGAL: Other than the right to remove the vehicles -- MS. DUSEK: Yes. CHAIRMAN FLEGAL: -- in your item three. That's the only change so far. MS. DUSEK: In item three. I have that -- you mean as far as the trailer goes? CHAIRMAN FLEGAL: Well, you said the respondent must properly register and license all unlicensed or inoperable vehicles within 30 days. I've just asked you to add "or remove them." MS. DUSEK: Right. I thought I had done that, but if I haven't, I want to make sure it's in there. I said either enclose in a structure or remove from property within 30 days. Page 15 December 11, 2003 CHAIRMAN FLEGAL: Okay. MS. DUSEK: Okay. Are we all set, Jean, do you under-- MS. RAWSON: I got it. CHAIRMAN FLEGAL: She's the important one. If she understands, we're okay. We have a motion on what -- on what the order should read. Do ! hear a second? MR. RAMSEY: Second. CHAIRMAN FLEGAL: Chris second. Any further question? All in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Next case, 2003-055. MS. HILTON: Yes, this is Board of County Commissioners versus Aljo, Inc., CEB Case No. 2003-055. At this time, I'd like to ask if the respondent is present in the courtroom? (No response.) MS. HILTON: The respondent is not present in the courtroom. We have previously provided the Board and the respondent with a packet of information we would like entered as Exhibit A at this time. MS. DUSEK: Exhibit A. MR. PONTE: I make a motion that we accept the County's Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the County's Exhibit A. All those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Any opposed? (No response.) Page 16 December 11, 2003 MS. DUSEK: Shanelle, before you begin, I did not see a deed with this packet, so I went back to last month's and I picked up a -- MS. HILTON: It's actually attached as Exhibit A. There's 42 properties. MR. BOWIE: Yeah, they're all attached to one deed. They're all conveyed by one deed. MS. HILTON: They're all attached to one deed. MS. DUSEK: I didn't find a deed in mine, but it's a quitclaim deed, is it not? MS. HILTON: Yes. And it references an attached Exhibit A, which has 42 properties listed. MS. DUSEK: Right, right. MS. ARNOLD: It should be on your Page 108. MS. DUSEK: Well, I pulled up one from last month. Okay, I have one. MS. HILTON: The alleged violation is of Section 6, Paragraph 1 of Ordinance No. 99-58, the Collier County housing ordinance. The description of the violation: Failure to complete, submit and obtain a rental registration certificate for rental units, as required. Location where violations exists: Since there's so many properties, there's an attached Exhibit A. Name and address of owner where violation exists: Is A1Jo, Inc., 39 Chuck Boulevard, North Babylon, New York, 11703, which is the address of record with the tax collector. And Renee Weiss, as registered agent, 100 Woodlake Circle, Naples, Florida, 34114, which is the address listed with the Florida corporations. Date violation first observed: Is August 14th, 2003. Date owner given notice of violation: Was September 18th, 2003. Date on which violation was to be corrected: Was November 13th, 2003. And a separate NOV was mailed to the owner and the registered Page 17 December 11, 2003 agent for each property. So there was 42 NOV's mailed. The date of the reinspection: Carol went out yesterday, which was December 10th, 2003. Result of reinspections: The violation remains. I confirmed with the lady who handles the rental registrations this morning, she's not received any paperwork. And this CEB notice of hearing was sent certified and regular mail, and the property and the courthouse was posted as well. And at this time I would like to turn the case over to the investigator, Carol Sykora, to present the case to the Board. (Speaker was duly sworn.) MS. SYKORA: Good morning. For the record, my name is Carol Sykora, Collier County code enforcement investigator. On August 14th, 2003, I received a complaint from our customer service specialist, Indira Raji (phonetic), in reference to Aljo, Inc., Incorporated. Rental registrations were all delinquent. They're due every June 30th, yearly. Upon receiving all these complaints, I verbally called the registered agent and told her that they were all delinquent. I also left several messages to the president's phone number that was listed on last year's rental registrations. No response. I faxed a copy of instructions and the application form to the number that was listed on last year's rental registration. I still received no response, so I proceeded to write notices of violations for all 42 properties. That was on September 24th. I actually had an NOV signed by all -- all NOV's signed by their employee at the time, Dennis Thomas. Then on the 25th, the next day, I went out to give him copies to fax to A1 Bottino, one of the owners, and he advised me that he was told by Mr. Bottino to tell me that he was not an employee paid by him. So they were kind of giving me the runaround for a while. Even consequently through that time he was talking to Mr. Bottino on the phone and gave the phone to me, and I explained to Page 18 December 11, 2003 him that all these were due. At that point I had told him more than likely either a citation would be issued for each of the properties or it would be taken to the Code Enforcement Board. Still no response. I've left several messages. We've sent regular and certified mail. I posted each of the 42 properties and posted the courthouse, and no response to this date. Thank you. MR. PONTE: Carol, during your conversation with Mr. Bottino, he had completed all the forms last year, did he? MS. SYKORA: Last year was his first time registering the properties. MR. PONTE: And did he then give you an explanation of why he wasn't going to do it the second year? MS. SYKORA: No. He said he would tell Angela Bottino, the president. And that's the only response that I've received from him. But he had full knowledge that these were due. On the paperwork it does say annually June 30th, too. CHAIRMAN FLEGAL: Carol, is there a fee for i'egistering these? MS. SYKORA: Yes, the fees are -- for him would have been $20, but then because it was delinquent, an additional $10 for each property. CHAIRMAN FLEGAL: So it's $20 per property? MS. SYKORA: Yes, for-- to renew it. Thirty dollars initially. And then after, when you renew it, it's $20. But he was delinquent, so he would have had to pay an extra $10 on each property. CHAIRMAN FLEGAL: Okay, so right now it's $30 for him. MS. SYKORA: Yes, for each one. MR. PONTE: Is it the responsibility of the agent to do that, I mean, just automatically? MS. SYKORA: They should be aware that it's due. The agent last year, I notified her that she had -- they had to get the rental registrations, and she went ahead and probably spoke to the owners Page 19 December 11, 2003 of the company and therefore registered all of them. But this year it's -- for some reason, they just didn't want to renew. CHAIRMAN FLEGAL: Question on the point that George raises: Is the agent responsible or the owner responsible, under the ordinance? MS. ARNOLD: It's the owner that's responsible for it. CHAIRMAN FLEGAL: Okay. Any other questions for Carol from any member of the Board? (No response.) CHAIRMAN FLEGAL: Thank you, ma'am. MS. SYKORA: Thank you. CHAIRMAN FLEGAL: Finding of fact by the Board. I think even though -- it's worth noting that even though we have one case number brought before us, that there are 42 individual properties. So basically you're dealing with 42 problems, not one. So keep that in mind. MS. DUSEK: I make a motion that in the case of the Board of County Commissioners versus Aljo, Inc., CEB Case No. 2003-055, that there is a violation. The violation is of Section 6, Paragraph 1 of Ordinance No. 99-58, the Collier County housing ordinance. Description of the violation: Failure to complete, submit and obtain a rental registration certificate for rental units, as required. MR. PONTE: I'll second the motion. CHAIRMAN FLEGAL: We have a motion and a second in fact a violation exists on these 42. Any further question? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Order of the Board. Page 20 December 11, 2003 MS. BARNETT: I have a question before we get into -- CHAIRMAN FLEGAL: Yes, ma'am. MS. BARNETT: -- recommendations. And this is for Jean, I think. Because Jean, we've lumped all these 42 properties together. MS. RAWSON: Correct. MS. BARNETT: And if we fine per property a certain sum -- MS. RAWSON: Correct. MS. BARNETT: -- do we then exceed our minimum, or maximum? MS. RAWSON: No, because it's per each property. MS. BARNETT: Per day? I mean, because if-- I took just for instance the $30 a day that they suggest in the county recommendation and multiply that by the 42 properties, you're coming up with 1,260 a day. And doesn't that exceed our-- MS. RAWSON: Well, yes, it does, except that you -- MS. BARNETT: Because we're listing them all as a lump. I'm concerned about that, if it were to go to a hearing and be challenged. MS. RAWSON: That's a very good concern. We have to write the order in such a way that each individual property that isn't registered is a separate fine per day. MR. PONTE: But even though it's against-- Jean, even though it's against the one owner -- MS. RAWSON: Right. MR. PONTE: -- and even though it's one case number? MS. RAWSON: I don't think the fact that it's one case number and one owner is crucial. It's just that -- I mean, I could write an order with 52 lines and I guess that would make it legally correct. In other words, this particular property has to be registered within five business days, this one, this one, this one. I mean, I could write a 100-page order, I guess. MR. BOWIE: I think we just need to make sure that with the findings of fact that the findings of fact are deemed adopted as to Page 21 December 11, 2003 each one of the 42 properties. MS. RAWSON: Well, each one has to be a separate violation. CHAIRMAN FLEGAL: Jean, I think it would not -- to alleviate any question, I would say each of these properties, since they each have a different address, have a different I.D. number in the property appraiser's office, could we not make an attachment to our order listing 42 properties, their addresses and their I.D. numbers from the property appraiser's? MS. RAWSON: Yes, I can do that. It's all in our packet. CHAIRMAN FLEGAL: Therefore, we have 42 individual properties that we're going to possibly assess a fine of "X" dollars per day per property -- MS. RAWSON: Correct. CHAIRMAN FLEGAL: -- even though it's one owner. MS. RAWSON: Yes. We can do that. CHAIRMAN FLEGAL: Would that be sufficient? MS. RAWSON: Yes. But I'm glad you brought that up, Sheri, that is a very valid point. CHAIRMAN FLEGAL: Okay. MS. BARNETT: Somebody else can tackle it. CHAIRMAN FLEGAL: I see, you raise the question and then Order of the Board, please? MR. PONTE: Just one other question. Refresh my memory, what is the cost of the registration? Is it $30? MS. ARNOLD: $30. CHAIRMAN FLEGAL: Right now it's $20 plus a $10 late fee, which is 30. I guess my -- I don't know how to say this, but my thinking is that the people registered last year, this year they've chosen not to. It's filling out a piece of paper which is -- you know, if it takes two or three minutes, I think that's probably a lot on a form, and attaching a check. For some reason they've chosen not to do Page 22 December 11, 2003 that. It's something that other people obviously are doing without a problem. I would like to see the $30 maybe made 50. I mean, it's going to cost him 30 anyway. MS. BARNETT: I don't think we're punishing him otherwise. CHAIRMAN FLEGAL: Let's give him a little incentive that he needs to do this right now, it is required, period. You should have done it before, and it only would have cost you 20. You're late, it would have cost you 30. MR. PONTE: What we're really talking -- CHAIRMAN FLEGAL: We're going to charge you 50 if you don't get it done. MR. PONTE: What we're really talking, though, is $1,260 a day. CHAIRMAN FLEGAL: Yeah. MR. PONTE: So when you say $50 or $20, that certainly minimalizes in sound what we're doing, but the fact of the matter is that the company is being charged $1,200 a day in fines. That seems high. CHAIRMAN FLEGAL: He's collecting his rent and laughing all the way to the bank, I'm sure. So he should have paid it when it was 20. MS. DUSEK: Of course we don't know the circumstances. But I think we have to keep in mind that it is 42 units and it does bring the fines up substantially. I'd like to make a motion that the CEB order the respondent to pay all operational costs incurred in the prosecution of this case and that the respondent complete and submit each property its own rental registration certificate within five business days from the date of this hearing or a fine of $30 per day for each property be incurred until the violation is abated. MR. PONTE: I just have one -- one question. It's not a comment on your recommendation. Page 23 December 11, 2003 MS. DUSEK: That's all right. MR. PONTE: Are the 42 properties occupied by renters, or are some of them vacant? MS. SYKORA: There is a possibility that some are vacant, but they are constantly being rented. This is the area of Diamond Shores. It's the end of Port Au Prince Road. There's several other units in there owned by another owner, and his rentals are all paid. For some reason -- I have a lot of trouble with this Aljo, Incorporated complying on several things. MS. BARNETT: Carol, I'm going to ask, isn't this the same group that we had last month. MS. SYKORA: Yes. MS. BARNETT: -- that we had the problems with the rentals? MS. SYKORA: Yes, it is. And it's constant problems. And that's my reason for bringing it today, because I -- MR. BOWIE: And you say -- said last year all of the 42 units did have rental registrations -- MS. SYKORA: Right-- MR. BOWIE: -- or all were registered? MS. SYKORA: -- but that was after I spoke to the registered agent and advised her that they needed to get this. MR. BOWIE: So they do have-- SYKORA: But it wasn't on their own accord that they got MS. it. MR. units and MS. MR. BOWIE: So there is a history that they were in fact rental have been in the -- SYKORA: Yes. BOWIE: -- past and have been registered as such? MS. SYKORA: Last year. It just had expired and they did not renew it this year. MS. ARNOLD: I just want it noted that the ordinance indicates it's -- regardless of occupancy, it's the use of the property, whether or Page 24 December 11, 2003 not it needs to be registered. MR. PONTE: Thanks for the clarification. MS. BARNETT: I only -- I pretty much agree with your recommendation, except I think that within -- he's going to get this and within five days he's going to pay it and he's not going to have been hit with anything other than what he normally would have had to pay. I don't know if 50 is the right number, but somewhere maybe between 30 and 50, like 40, just to incur the additional cost that it would cost him, because he is dragging his feet and causing the county problems, to make him know that we're serious about this. I realize that the 1,260 a day, if he doesn't pay it, will add up. But he still has the five days to get it done. That would be his choice. And that's kind of where I'm-- I'm leaning. MS. DUSEK: I don't think it really matters whether it's 30, 40 or $50. We're talking about $840 difference if it's $50 a day. I don't know that it's going to make a whole lot of difference. I think it's an annoying problem. ! don't know if it's a large problem with the county. So that's why I went to the 30. But if the Board and its majority feels it should be more, I'm willing to do that. I just don't think it's going to make a lot of difference. And as you said, Sheri, he'll probabl.y pay it and not have to pay the fine anyhow. MS. BARNETT: That's why I was suggesting that we raise it the $10, to let him know that we're serious. That's just my personal feeling on it. Now that I've got the clarification that we can do it this way. CHAIRMAN FLEGAL: Right now we have a motion on the floor at 30 in five days. MR. LEFEBVRE: I'll second that motion. CHAIRMAN FLEGAL: We now have a second to the motion. Any further question? (No response.) Page 25 December 11, 2003 CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. RAMSEY: Aye. MR. BOWIE: Aye. CHAIRMAN FLEGAL: All those opposed, no. MS. BARNETT: No. CHAIRMAN FLEGAL: 5-2. I guess that was mostly everybody. No. Next case, 2003-046. MS. HILTON: This is Board of County Commissioners versus Norman E. Kautsky. That's K-A-U-T-S-K-Y. And Patricia. CEB Case No. 2003-046. And the respondent I believe is present in the courtroom, and his attorney is here as well. MS. ARNOLD: His attorney requested a half an hour. It's been a half hour since he had left and he's not back yet, so -- MS. HILTON: We have previously provided the Board and the respondent with a packet of information we would like entered as Exhibit A at this time. MS. DUSEK: I'll make a motion that we accept the County's Exhibit A. MR. PONTE: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the County's Exhibit A. All those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Any opposed? (No response.) Page 26 December 11, 2003 MS. HILTON: The alleged violation is of Section 2.5.7.30 of Ordinance No. 91-102, as amended, of the Collier County Land Development Code. The description of the violation: Illuminated sign, neon or otherwise, installed inside a business and intended to be seen from the outside. Location where violation exists: 9503 Tamiami Trail North, Naples, Florida. More particularly described as Folio No. 62768920004. Name and address of owner: Norman and Patricia Kautsky, 79 Burning Tree Drive, Naples, Florida. Date violation first observed: February 18th, 2003. Date owner given notice of violation: February 28th, 2003, by certified mail, return receipt requested, upon owner and registered agent of which were claimed and green cards returned. And May 2nd, 2003 by personal service upon Kevin Cost, assistant manager, copies of which are attached. Date on which violation to be corrected: March 24th, 2003 and May 12th, 2003. Date of reinspection: December 10th, 2003. Result of reinspection: The violation remains. And the CEB notice of hearing was sent certified and regular mail, and we got green cards back. And at this time, I would like to turn the case over to the investigator, Andy Wuhrer, and that's W-U-H-R-E-R, to present the case to the Board. (Speaker was-duly sworn.) MR. WUHRER: Good morning, ladies and gentlemen. My name is Andy Wuhrer, for the record. I'm an investigator with Collier County Code Enforcement. In February of 2002, the county distributed to practically all the businesses in the county the intent to enforce the ordinance Page 27 December 11, 2003 pertaining to signage and neon placed in the windows. Leoni's Pizza was given that information and given that year to comply. When they received the information, they did turn the signs off in the window, so at that point they complied. However, I was getting information back from other investigators, as well as my own sightings, that the signs had been turned on at night in the windows. At that point, I went to the premise and issued a notice of violation. And at that time again they turned them off. Again, they started to be turned on again at night. Citations were then issued at that time, in February. The first citation was then issued, and then of course the lights continued to burn at that time. And then 30 days later, we issued a second violation. Lights were then turned off once again, and then they started being turned on again at night, and that progressed to being left on during the day. It's not just a few lights, it's an entire front of neon. Once again, a citation was then issued, after an additional notice of violation, with an attempt to get them to once again to comply and this time to keep the lights off. Issued to both the plaza owner, Mr. Kautsky, the business owner and the registered agent. Again, there was non-compliance, so a citation was then issued. Thirty days after that, with additional non-compliance, a second citation was issued. Both of these citations, after discussion with the county attorneys, were then rescinded, were pulled back, because a decision had been made that without any attempt to compliance, the only way to get this compliance was to come before the county board. I sent them their initial letter, and after a subsequent time passed, we sent them a letter of a meeting with the Board. And presently the lights are still on as we speak. MS. DUSEK: Is the intent here to have them remove the signs, Page 28 December 11, 2003 or just mm them off?. MR. WUHRER: They have that option. The power can be disconnected or the lights turned off or turned around so that they're not visible from the street. But because it is a complete frontage of neon, it would probably be to their benefit to remove them, as it does block the windows as well. MR. PONTE: Investigator, how did this particular case come to your attention? MR. WUHRER: Excuse me? MR. PONTE: Investigator, how did this particular case come to your attention? MR. WUHRER: Because we're getting compliance throughout the county to remove these signs, and as you can see from the picture up there, the entire frontage of the business is glaring with neon. Several other businesses were complaining that they were complying with the ordinance and yet this business was not. MR. PONTE: Is the sign that is the pizzeria sign itself, that is the one over the door, is that neon as well? MR. WUHRER: That sign is neon, but it is in compliance because it does have a translucent covering over the bare tubes. Now the signs in the window are bare neon tubes and they also violate the maximum allowable coverage and square footage -- square inches of the building. They're allowed to cover that window by 25 percent. As you can see, it's 100 percent coverage. MR. BOWIE: There's no citation here, though, of excessive window coverage, though. MR. WUHRER: No, there's not. This is the neon that we're mainly concerned about right now. And if they remove that neon, then that will also take care of the other problem. MR. PONTE: Would they be in compliance if they removed 75 percent of that neon? MR. WUHRER: No, sir. They're allowed to presently have an Page 29 December 11, 2003 open neon sign, 2.25 square foot, and neon -- and open only. CHAIRMAN FLEGAL: Okay. So we don't get two sections of the ordinance confused, the only one we're concerned with is they have an illuminated neon sign inside their building which violates 2.5.7.30, correct? MR. WUHRER: That is the one we're addressing today, correct. CHAIRMAN FLEGAL: And that's all. We don't care how much square footage they've covered, you didn't cite them for that, correct? MR. WUHRER: We did not cite them for that-- CHAIRMAN FLEGAL: Okay. MR. WUHRER: -- at this time. CHAIRMAN FLEGAL: I think we should avoid that part of it. Let's just stick with they have a neon sign inside that's illuminated -- MR. WUHRER: Yes, sir. CHAIRMAN FLEGAL: -- period. That's the violation. MR. WUHRER: Correct. MR. BOWIE: I notice that in the style of the case, Norman and Patricia Kautsky are cited as respondents. I do see, though, that the original complaints, the notice of violation, the business owner, which presumably is a tenant in the property, Doughboy's Pizza Two, Inc., doing business as Leoni's Pizza, was -- they're not included though in the style of the case we have? MR. WUHRER: The owners of the business would be initially cited to comply with the ordinance. If they failed to do so and the registered agent cannot make them comply to do this, then ultimately the owners of the plaza would be responsible. MS. ARNOLD: We did provide the tenants courtesy copies of the packet. MR. BOWIE: I saw that. CHAIRMAN FLEGAL: Any further questions for Andrew? Page 30 December 11, 2003 (No response.) CHAIRMAN FLEGAL: MR. WUHRER: Yes. CHAIRMAN FLEGAL: correct, sir? MR. KAUTSKY: Yes. Thank you, sir. Mr. -- are you-- Mr. Kautsky, is that CHAIRMAN FLEGAL: Your mm, sir. MR. KAUTSKY: The lawyer is supposed to do the talking for me. I don't know where he is. MR. BOWIE: Did you check the men's room? MR. KAUTSKY: Let me check. I don't see him nowhere. MS. BELPEDIO: My name is Jennifer Belpedio, I'm with the County Attorney's office. We've been attempting to find Mr. Lenick. Our office checked downstairs, checked at our office, which is on the eighth floor, looked around this floor and we haven't seen him. I had spoken to him before at the beginning of these proceedings at 9:00, and he had asked me if he had half an hour so that he could do whatever he needed to do. I didn't ask him. But I think it's certainly been half an hour since. So those are the efforts that we've taken to get him here, and unfortunately he's not. MR. KAUTSKY: I've got his cell phone number. I'll give him a buzz. CHAIRMAN FLEGAL: Cherie', do you need a couple minutes? MS. RAWSON: Why don't we take that break right now so he doesn't have to proceed without his attorney. CHAIRMAN FLEGAL: Let's take 10 minutes, okay? It's 10:00. Let's be back at 10 after, please. (A brief recess was taken.) CHAIRMAN FLEGAL: Okay, everybody seems back in the Page 31 December 11, 2003 room. Let's call the Board back to order, please. MR. LENICK: Sir, my client is still at the Clerk's office. CHAIRMAN FLEGAL: I thought your client was sitting right there. MR. LENICK: My name is Terry Lenick. I'm an attorney. I represent Mr. Kauts -- well, I represent the landlord and the tenant in this particular situation regarding neon signs. My client's in the Clerk's office getting a certified copy and bringing it down here, and he'll be down here shortly. It's a matter of certification. If you want, we can start with opening statements, if you want. CHAIRMAN FLEGAL: Yeah, I want to get started. MR. BOWIE: It's been open since 8:00 this morning, too. CHAIRMAN FLEGAL: Let's go. You're up. MR. LENICK: Well, the opening statements should be by the prosecution first. MS. BELPEDIO: I'll waive. I don't think it's necessary. The case speaks for itself. CHAIRMAN FLEGAL: We've had the investigator give the county's side. Your turn, sir, if you have something to say. MR. LENICK: Okay. My name is Terry Lenick, again. I represent the two -- the tenant and the landlord in the case. This is a case that dates back to -- this case began originally in November of 2000. My client was cited for having allegedly violated the ordinance that was supposedly adopted in January of 2001. I think if you look at your executive summary, it references January of 2001 as the ordinance that was to be -- was supposedly violated. That was the big sign ordinance. What happened at that time is that the county filed a complaint against him, they went into county court, and we have the documents and we will show you that at that time, the matter and method in which they adopted that ordinance, which is the sign ordinance, was unlawful and unconstitutional. Page 32 , December 11, 2003 Instead of the county going forward with the case and having the judge make the ruling, they backed off. Everything's fine, we thought, we'll just leave it go. Prior to him going there, he went over and tried to get a permit to put in the neon sign, wouldn't allow it. After the county dropped the case, which is sometime in June of 2001, he again went back twice, as the evidence will show. Again, they would not allow a permit for the neon sign. Okay. Went there under my advice. Now, allegedly that approximately three or four months later the county went back and adopted-- and the backup material will show you, because of a quote, procedural error, end quote -- a portion of that sign ordinance. A small portion, not the entire sign ordinance. The ordinance itself that was adopted, those portions -- in my opinion, you cannot adopt a portion of something that you never adopted originally to begin in the first place properly, you have to readvertise and redo the entire ordinance. They did not. So, lo and behold, they have a supposed amortization period that ends in February of 2003. Unbeknownst to us. The title to the ordinance that was advertised would put nobody on notice that it involved neon signs or anything. It just says signs. There's no provisions, nothing that would give anybody true notice in the newspaper as to what was being adopted. At that point in time they filed charges and again went into county court. We're happy, we're in front of a judge. Oh, oh, after I talked to him, showed them the documentation, they backed off and they refiled it with you. Why? They filed it to avoid the Constitutional arguments that are being made today. Because you don't have the jurisdiction, supposedly, to make Constitutional arguments. The signs that were in question, there's been -- the defense that we have today is, number one, the ordinances that you're proceeding Page 33 December 11, 2003 -- the original sign ordinance is unconstitutional, and the question should be asked of the County Attorney's Office whether or not they made that decision and why did they readvertise only a portion of it and not the entire thing. And two, even if, assuming for the sake of argument, that the second sign ordinance that was adopted was lawfully adopted procedurally -- which ! don't believe it was, but again, you don't have the jurisdiction -- that he has a nonconforming sign, based upon the amount of money that he had put into the signs and the period of amortization hadn't gone. I had suggested to the County Attorney's Office before this case that the matter just be continued and otherwise it will force me to file suit to attack the entire sign ordinance once again. I mean, attack it from a plaintiff's side, which then won't be dismissed, because I would be able to control the pleadings. The question is why twice did this county file against these clients and why twice did they drop them. And why did they finally bring it before a board that does not have the jurisdiction to hear Constitutional arguments. That should be initially asked. The defense factually is nonconforming. That is a proof that we will show you that it is nonconforming. The amount of monies involved do not -- even assuming arguendo that the ordinance was lawfully adopted, does not pass the particular time frame. There are two things which I would like to make on the record: One is -- and I'd like to move to dismiss the case against the landlord. The landlord is not the possessor of the property. A very close reading of 162, and I hope you have it in front of you, will show you that the person who gets charged is the violator. And the violator's property can be liened. It does not have to be the property upon which the violation occurred. The landlord is not the possessor, it's the tenant that is the alleged violator. There is no allegation that the landlord had any Page 34 December 11, 2003 ability to control or do anything with regard to the neon signs. And in fact, the evidence will show through the landlord that the first time he was cited, he was approached by the particular officer and told well, you're the landlord, just evict him if he won't -- if he won't comply. Which gets us into an interference with the business relationship. The second motion I would like to make -- or argument, is that -- is an attack upon the Code Enforcement Board's jurisdiction to begin with. This is one that would have to be heard by a judge, but I want to make it on the record so it's understood. The Code Enforcement Board statute, when it first came out many years ago -- well, came out when I didn't have gray coming out of my hair, is -- was a statute which said if you lost at the Code Enforcement Board, you had what's called a de novo review. That meant that you would have a trial before a judge. Many places throughout the United States have similar systems like that, Maris courts they call it, some of them, I think it's justice of the peace. Basically you get rid of the code enforce -- the small code enforcement issues and if you have Constitutional arguments, items like that, you can take them before -- you can take them before a judge and have the whole thing tried over. Over the years, like in anything with governmental power -- I'm a former County Attorney up in Lee County -- the government tries to get more and more power, depending upon what power they want. And they began to change the statute to essentially say that you have a notice of appeal to the court. In other words, you don't have a new trial before a judge. The result of that being is now you have a system where you have the one government that creates the law, one government that enforces the law, one government that interprets the law. You are part of the Collier County system. The code enforcement people are part of the Collier County system. The Page 35 December 11, 2003 Commissioners who create the law are part of the Collier County system. The Second District Court of Appeals, which we're in, was very close to it in a recent case attacking this particular issue, and just about came about this far, two inches, from throwing the whole thing out. I'm making this of the record that I don't believe that this Board has the right to hear this case, based upon the way the statute is today. But once again, you don't have a decision in this because you're not a court, you're not a judge. So bifurcating cases like this is possible, I suppose, with a system where you have a de novo. But I think even in a de novo system you don't have to appear before the Code Enforcement Board, you could just let it go to court. The problem with this case is this is a prime example of pick and choose. Collier County does not want this case to be in front of a judge because twice they went, twice they dropped it. Now they're in front of you. Why? Because it limited your jurisdiction. You have limited jurisdiction in this matter. And this is a prime example of why this Board should not have a review that is an appeal and a limited review before a judge. Because a judge will not hear the Constitutional arguments as applied or on its face in a review matter, it forces the attorney to file a separate suit, and so you've got now a suit on the Constitutional issues and an appeal to a judge. And quite frankly, many of the attorneys are not even sure what type of an appeal, is it a writ of certiorari or is it just a notice of appeal? Do you get one judge, do you get three judges? It's very complicated. I wanted to make sure that that was on the record. But what you do have a right to make is a decision with regard to the landlord. And I think 162 should be reviewed very closely. And if I could make that argument and make that motion that the Page 36 December 11, 2003 landlord be dismissed from this case, then we can resolve one issue. Just a moment. MS. BELPEDIO: May I respond to the arguments made by Mr. Lenick? MR. LENICK: Well, I was going to quote the statute. CHAIRMAN FLEGAL: Let's let him finish first, please. MR. LENICK: Okay. If you look under 162.06, it's real clear. 162.06(2) states as follows: Except as provided in Subsections 3 and 4, if a violation of the codes is found, the code inspector shall notify the violator and give him or her a reasonable time to correct the violation. It's the violator who gets cited, not simply the property owner. Let's take a shopping center, where it's owned by one property owner, and you have a series of stores and one of the stores keeps violating the code. You don't cite the shopping center mall owner -- the owner of the property, you cite the violator. And they're not the possessor of the property, they don't have the ability to make the change. Also, as far as filing liens -- MS. BARNETT: Mr. Lenick, you did state, though, except for Sections 3 and 4. MR. LENICK: Yes. Section-- MS. BARNETT: Because I don't have that-- MR. LENICK: Sure. MS. BARNETT: -- in front of me, could we look at that.'? MR. LENICK: Section 3 reads, if a repeat violation is found, the code inspector shall notify the violator but is not requested to give the violator a reasonable time. In other words, it just governs time. Four, if the code inspector has reason to believe a violation of the condition causing the violation presents a serious threat to the public safety and welfare, or if the violation is irreparable or Page 37 December 11, 2003 irreversible in nature, the code inspector shall make a reasonable effort to notify, again, the violator. In other words, this 3 and 4 cover-- ! covers the normal notice, 3 and 4 cover the repeat situation, and 4 covers -- MS. BARNETT: I just didn't have it there. MR. LENICK: So it keeps going back to the term violator. And when it talks about liening the property, it talks about liening the violator's property. Certified copy of any order-- here we go. It says a lien can be placed upon the land upon which the violation exists. That's true. But it also can be placed in the same manner on any other real or personal property owned by the violator. It says the violator. The violation on which the violation exists and upon any other real or personal property owned by the violator. In other words, it gets back to the violator. I can't be responsible for people's code violations on my land if I leased it out to them. They -- I am not in a possessory interest to them. Nor do I believe that this -- the intent was is to impose the lien upon that land when the violator doesn't own the land. Because in the same sentence it talks about any other real or personal property owned by the violator. The sentence presupposes that the land owned by the violator was owned by him. Could you put a lien on the leasehold interest? Probably could, because that's personalty -- no, that's realty, you could do that. You could put a lien on his stock. You could put a lien on anything of the violator. The simple point is, is who is the violator? It's not the owner of the land in the leasehold situation. Now, why do they do this? They do this for exactly the same reason which you'll hear in the testimony, that they go to the landlord and say well, you know, we've got to get this violation corrected or if you don't, you should evict him or we're going to cite you. It's a matter of intimidation. That should not occur in this country. The Page 38 December 11, 2003 landlord is not a violator in this situation. He doesn't own -- he owns the land but he has no possessory interest in the land, and if you're going to do that every time you get a small store in a shopping mall you should cite the mall, or a large store -- somebody -- let's say somebody does something over at the Edison -- or the Coastland Mall. Then you need to cite the mall owner. Nowhere in this thing, and I -- and I challenge the County Attorney to show, that the violator is the landlord. Nothing. CHAIRMAN FLEGAL: Sir, are we getting to the end of your opening statement here? MR. LENICK: Yes. The motion is that the -- as far as the landlord goes, I would like to have the case dismissed and move -- I would ask -- move the Board to do so. CHAIRMAN FLEGAL: Jean? MS. RAWSON: Yes. CHAIRMAN FLEGAL: Recommendation? MS. RAWSON: ! think that the County Attorney wanted to say something for the side of the county, so let's hear her argument. MS. BELPEDIO: Jennifer Belpedio, Assistant County Attorney. I'm going to attempt to respond to Mr. Lenick's arguments in reverse chronological order, because that's probably the best I can remember them. And if I forget to address any, certainly feel free to remind me as to what was raised and what you'd like to hear me respond to. First and foremost, which I believe is most important, because Mr. Lenick alleges that the case ought be dismissed because his client -- one of his clients, the property owner, is not the violator. That is contrary to Statute 162.12 which governs notices. This is the Code Enforcement Board statute. And in this provision, the alleged violator is required to be noticed and the procedure is set forth there, certified mail, at the address set forth in the tax collector's database, you know, as set forth for tax rolls. Page 39 December 11, 2003 Now, we do know that the persons that are required to pay taxes by the tax collector are the property owners. It's not the tenant that pays the taxes. And, you know, it's interesting to mention that there's no definition of alleged violator. But I think from this provision you can infer that the alleged violator is to get their notice at the address listed at the tax collector's office. That's the person that pays taxes. That's the owner. Mr. Lenick mentions an interference by the county of the business relationship between the landlord and tenant. As I explained to him yesterday, it's certainly not the county's position that we would like him to evict his tenant. The choice is certainly the landlord's choice to evict the tenant. But certainly the landlord must recognize that if a violation is found and the violation continues to exist and it is not corrected within the time period given, presuming a violation is found, that fines will begin to accrue. So if it's necessary to evict the tenant to get the violation abated, his client may do so. If there are other alternatives, then -- then he need not. It's purely the landlord's decision, not for the county to impose any requirements that a person be evicted from their property. Mr. Lenick also raises the argument that his sign is nonconforming. I want you to keep in mind that what attorneys tell you, including myself, all attorneys that come before you, what we argue is that's not evidence. He's telling you it's nonconforming, you haven't yet seen any evidence to allow for that defense. And, you know, I'd even submit to you that the sign may be nonconforming, it's not in compliance. But the issue is whether or not it's legally nonconforming, whether or not this sign was ever lawfully permitted by the code. And I don't believe you're going to find any evidence that Mr. Lenick can provide to you. I think one of the first things Mr. Lenick had mentioned is the county's decision to come before this Code Enforcement Board and Page 40 December 11, 2003 not prosecute the case in county court. And this also ties into his allegation that the, you know, tenant is the violator, not the landowner. And certainly cases can be prosecuted before the Code Enforcement Board, certainly cases can be prosecuted in county court. The notice requirements are different. Under 162.12, that's the one we just -- I just spoke about, the alleged violator is -- the property owner is the person that pays the taxes. In county court, that's not the case. In county court, the language -- and that's located in 162.21, is that code enforcement officer shall provide notice to the person that the person has committed a violation. So in county court we can issue a citation to a tenant and proceed on that. In this case, our decision was to prosecute before this Board, and there's nothing in the statutes that says that that decision is improper. We are properly here. I think the last thing that ought be discussed -- actually, there's two more things left. He challenges the authority of the Code Enforcement Board to hear his case in the first instance, but there's a provision in 162 that allows a governing authority to -- such as the Board of County Commissioners, to appoint yourselves. And that's done, as you know, by resolution, and that's at a hearing. Certainly there can be an alternative system set forth by a county, and I think that's what Mr. Lenick is referring to when he talks about what is done throughout the U.S. and what is done in other counties. In Collier County, the Board of County Commissioners have appointed yourselves as the Code Enforcement Board, and that is allowed under Chapter 162. I think the last thing that he had mentioned is that there has been some perceived deficiencies in the ordinances that brought the Vision 2.5 into effect. He has not yet presented those ordinances, and it's my understanding his client is bringing them. He certainly may enter Page 41 December 11, 2003 them into the record. I was first made aware of his perceptions of the -- of Ordinance 2001-60 this morning. I have not reviewed that ordinance, but those are his arguments to make. This Board does not, in my opinion, have the authority to determine that this ordinance is void. However, if Mr. Lenick's client is found in violation, he certainly can exercise his right to file an appeal in the circuit court and the circuit court judge can hear those arguments. And, you know, that further supports the county's position that a court will hear those conscious arguments. It's not that the county is trying to evade the judiciary and prevent him from making his arguments. He can certainly make them. He can preserve his record today and make them and the circuit court can make their decision. That's all I have, but if you have any questions, I certainly would answer them. MR. LENICK: Mr. Chairman, the issue was -- the motion was with regard to the violator. And that's what was -- the other items were opening statements which I'd have to prove to you, I would agree. But the motion was as to the violator. If you look at the statute, it talks about the person, the violator. And in the same statute, in the definition section, it talks about repeat violation. Means a violation of provision of a code or ordinance by a person who has been previously found through a Code Enforcement Board or any other quasi-judicial process to have violated or has admitted violating the same provision within five years. So it has to be a person and it has to be the violator. I mean, obviously it has to be somebody's violating the law. The landowner is not violating the law here. And if you look under-- in the same chapter, you go under the supplemental county or municipal code or ordinance enforcement procedures, it talks under ! 62.23, if you went to court on this thing, prior to issuing a notice to appear, that's in court, a code enforcement Page 42 December 11, 2003 officer shall provide written notice to the person that the person has committed a violation of the code or ordinance and shall establish a reasonable time period within which the person must correct the violation. In other words, who is the person that you give notice to? The person who committed, allegedly, the violation. The landlord did not commit a violation. As far as noticing the landlord, that's just noticing the property owner that there was a violation on the statute before the hearing, and that his tenant's going to go there. It is not for the purpose of noticing them that they are going to correct it. And that is merely an ability to notice the property owner. What it does say here is that -- even in the very first phrase I stated talks about the code enforcement inspector shall notify the violator and give him or her reasonable time to correct it. There's no ability to do that unless you actually go to who the violator is. And you obviously know that Leoni's Pizza is a tenant and they obviously know that they are the alleged violators, which we'll get into the fact that they're not. But it's the landlord, they should be dismissed at the very beginning of this hearing. They are not a violator. MS. BARNETT: Jean? MS. RAWSON: Yes. MS. BARNETT: Can I ask you to give me your insight? MS. RAWSON: Florida Statute 162.09 allows you to fine the violator or violators, and to place a lien on the property. Three says, a certified copy of an order imposing a fine or a fine plus repair costs may be recorded in the public records, and thereafter shall constitute a lien against the land on which the violation exists. So that tells me it's the landowner. And upon any other real or personal property owned by the violator. Which tells me that you can get other land owned by the Page 43 December 11, 2003 property owner if he's the violator, or other property owned by the violator, if he's the tenant. So I think you can do both. And historically that's what we've done. MS. BARNETT: That was kind of-- CHAIRMAN FLEGAL: Okay. MS. DUSEK: I wanted to ask a question, probably to you, Jean, in reference to the attorney. In looking at Statute 162.06.5, this'is -- my interpretation is it's in transfer of the property. If the owner of property which is subject to an enforcement proceeding before an enforcement board -- and then it goes on to say what the owner has to do to disclose to the new transferee, if he's transferring property. So it's stating, in my opinion, if the owner of property which is subject to an enforcement proceeding before an enforcement board, meaning the owner of the property. MS. RAWSON: I would agree. MR. BOWIE: If I could also add something maybe a little bit on a deeper level. I think we, as a Code Enforcement Board, need to take the county ordinances presumptively as valid, apply them to the facts before us and make determinations based on the ordinances as written. It's not within our prerogative, our authority to apply Chapter 162 to the county ordinances, it's not within our prerogative to apply Constitutional considerations to these ordinances. We have to take them as written and apply them. That's our only function. And I would just like to proceed with the hearing on the facts of the case. CHAIRMAN FLEGAL: I think Mr. Bowie is correct. The ordinances are what we're here to do, and in the ordinance it references 162, so anything that's in 162, we have the right to act on. MS. ARNOLD: Can I just mention one thing? For the record, Code Enforcement Director Michelle Arnold. We are bringing this case to you and we have notified both the Page 44 December 11, 2003 tenant and the respondent. We believe that both are violators; the tenant is creating the violation, the owner is causing the violation to continue because he's allowing it to continue on his property. So we brought both before you, both tenant and owner. CHAIRMAN FLEGAL: At this point we've had a request for a motion to dismiss the owner. What the Board needs to do is accept or deny the motion. So what we need is the Board to act on that. MS. DUSEK: I make the motion that we deny the motion to dismiss. MR. RAMSEY: Second. CHAIRMAN FLEGAL: We have a motion and a second to deny the motion to dismiss the owner from these proceedings. Any further discussion? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Mr. Lenick, you may start your case, please, sir. MR. BOWIE: Wouldn't -- wouldn't the county present the case? CHAIRMAN FLEGAL: The county investigator gave his side. Then we took a break waiting on the attorney. You're up, sir. MR. LENICK: This case was started without me, without cross-examination? CHAIRMAN FLEGAL: You can examine him. Your mm, sir. MR. LENICK: I never heard him, sir. I was with my client at the Clerk's office. CHAIRMAN FLEGAL: You asked for 30 minutes, you were given much more than that. You're up, sir. MR. LENICK: Are you telling me that this case went forward without the attorney being here, knowing that the attorney was at the Clerk's office? Page 45 December 11, 2003 CHAIRMAN FLEGAL: I didn't know where you were, sir. MR. BOWIE: Nobody knew where you were. You weren't here at the appointed time. MR. LENICK: The County Attorney's Office knew, because we were talking about the ordinance amendment at the time, and I said it would be more than the -- it would be at least a half hour, she said yes. And I left about a quarter after 9:00. And at that point in time I was up there getting some things certified to present to you. Now, if this case in chief was submitted to me without me being present, I believe that's a denial of due process, and I want to make sure that that is clearly on the record. I was here at 9:15 when you were doing the other docket. I was here at 9:00, quite frankly, and I left here about 9:15 to simply get a certified record. MS. BELPEDIO: Mr. Lenick-- Jennifer Belpedio. Mr. Lenick and I were speaking about the enactment of the ordinance. He did not tell me he was going to the Clerk's office. He did ask if he would have 30 minutes to leave, and I said yes, we had two cases that preceded this case. And I think at this point it is best that perhaps the county re-present it's case. We would -- we'll re-present it the same way that it was presented when he was not here. There will be no deviation, and so he can have the due process that he is afforded. MR. BOWIE: That's fine. CHAIRMAN FLEGAL: We'll hear it again. Jean? MS. RAWSON: That would be my recommendation as well. MS. BELPEDIO: And I would ask that you not consider anything that you had heard previously and start anew with what you're going to hear right now from the investigator. CHAIRMAN FLEGAL: Not a problem. (Speaker was duly sworn.) MR. WUHRER: For the record once again, Andy Wuhrer, investigator for Collier County Code Enforcement. The county supplied to the businesses within the county a record Page 46 December 11, 2003 of the ordinance changes that would become effective in February of 2003. Those letters and those ordinances were distributed in February of 2002, allowing businesses to have ample time to make whatever corrections were necessary prior to enforcement. In 2003, we came around and found that Leoni's Pizza had not complied with the request, and requested that they take and either turn off, disconnect the power or remove the sign, the neon signs from the windows. At that particular time they did comply, they turned the lights off, and I left. Over a period of days, weeks, it was brought to my attention, both from my own sighting and by other investigators, that the lights were being turned on at night, in violation of the ordinance. I returned to that location, spoke to the manager and issued a notice of violation on-site to the manager. At that time the lights were again turned off, and within a short period of time started to be turned on again. I returned and issued a citation to the business, signed by the manager. The lights continued to remain on, basically at nights and eventually during the day as well, and 30 days later I went over and issued a second citation for non-compliance. The manager then turned the light off again, and shortly thereafter the lights started being turned on again at night and then during the day and left on the entire time. Additional -- trying to give them additional time to comply on a permanent basis, we issued another notice of violation to the owner of the business, the principal agent, the registered agent of that business, and also to the property owner, to try to get compliance from all sides. Non-compliance continued. In discussions with the County Attorney, they then rescinded those last two citations, to opt for notice to be sent to come to the Board. The initial notice was sent; subsequent to that the notice to Page 47 December 11, 2003 appear at the Board on a specific date. A letter was also sent. And as I stated before, as of last night those lights were still on. MS. DUSEK: My question to you is, are you asking him to remove the signs or turn them off?. MR. WUHRER: At his choice he can either turn them off, disconnect the power, or return -- or remove the signs. MR. BOWIE: And just further to clarify, the large sign, Leoni's Pizzeria, that is in conformance with the code; is that correct? MR. WUHRER: The large Leoni's Pizzeria is in conformance. You asked me whether he could turn them off or remove them. Technically the sign in itself is in violation of the size requirement, but we're looking to correct the neon requirement at this time. CHAIRMAN FLEGAL: The only item he has been cited for is neon signs inside his establishment which are illuminated, correct? MR. WUHRER:, And visible from the outside, correct, yes. MS. BARNETT: If I'm understanding it correctly, though, he technically is in -- I know we're not looking at it today, but if he turned them off, he would still be in violation for the size coverage? CHAIRMAN FLEGAL: MS. BARNETT: Right. CHAIRMAN FLEGAL: MS. BARNETT: Okay. That's not considered at this time. Let's not confuse it. I just -- MR. WUHRER: Technically -- technically you're correct, it would be. But the neon is what we've cited him for at this point. And I'm reminded that is in part and parcel why we're asking for the removal. MS. BARNETT: That was kind of what I was trying to get at. MR. WUHRER: Yes. MS. DUSEK: Would he be allowed to have a neon sign in any of his windows? MR. WUHRER: He would be allowed to have a 2.25 square foot open neon or illuminated sign in the window, one. Page 48 December 11, 2003 CHAIRMAN FLEGAL: Any further questions from the Board? (No response.) CHAIRMAN FLEGAL: Sir, your mm. Cross-examination. MR. LENICK: Do you have the citations, Officer? MR. WUHRER: I believe I have a copy in here. CHAIRMAN FLEGAL: Sir, could you stand at the podium so we can get your -- MR. LENICK: I'm getting your citations. MS. DUSEK: May I ask, was that submitted to him in Exhibit A? MS. ARNOLD: Yes, it was. Yes, it was. MR. LENICK: I did not hear the submissions of the exhibits. Maybe I missed that on his examination. THE COURT REPORTER: Excuse me, I need to have you on the microphone. CHAIRMAN FLEGAL: Yeah, let's go back there, please. They can't hear if you're not at the microphone. MS. DUSEK: Jean, do we need to resubmit Exhibit A at this time? MS. RAWSON: You might. It's the packet that Shanelle introduced into evidence early on. MR. WUHRER: And if not, I'll move to put that into the record now, if I may. MS. HILTON: Jean, do I need to reread in the statement of violation? MS. RAWSON: Why don't you. MS. HILTON: Okay. This is in Board of County Commissioners versus Kautsky, K-A-U-T-S-K-Y, Norman and Patricia. CEB Case No. 2003-046. At this time, I would like to ask if the respondent is present in the courtroom? (Indicating.) Page 49 December 11, 2003 MS. HILTON: The respondent is present in the courtroom, along with his attorney. We have previously provided the Board and the respondent with a packet of information we would like entered as Exhibit A at this time. MS. DUSEK: I make a motion that we accept the County's Exhibit A. MR. PONTE: Second the motion. MR. LENICK: I-- CHAIRMAN FLEGAL: We have a motion and a second to accept the County's Exhibit A. All those in favor, signify by saying aye. (Unanimous votes of ayes.) MR. LENICK: May I-- CHAIRMAN FLEGAL: Any opposed? MR. LENICK: Okay, I'm trying to object. CHAIRMAN FLEGAL: Under our rules, sir -- MR. LENICK: Okay. Just for the record, I would object to that. The Board is supposed to be neutral and unbiased. The presentation of evidence is done by the County Attorney or whoever is representing the Code Enforcement Board. I would just like to have that of the record. CHAIRMAN FLEGAL: Your objection is noted. Proceed. MR. LENICK: The-- MS. HILTON: Wait. MR. LENICK: May I have the ability to see Exhibit A, then? MS. HILTON: It was previously provided to you. It was the CEB evidentiary packet that was sent to you. MR. LENICK: MS. HILTON: MR. LENICK: MS. HILTON: I understand, ma'am, I -- I need to finish reading this in, please. I apologize. The alleged violation is of Section 2.5.7.3.0 of Page 50 December 11, 2003 Ordinance No. 91-102, as amended, of the Collier County Land Development Code. The description of the violation: Illuminated sign, neon or otherwise, installed inside a business and intended to be seen from the outside. Location where violation exists: 9503 Tamiami Trail North, Naples, Florida, more particularly described as Folio No. 62768920004. Name and address of owner in charge of location where violation exists: Is Norman and Patricia Kautsky, 79 Burning Tree Drive, Naples, Florida, 34105, as listed with the property appraiser and the Collier County tax collector. Date violation first observed: February 18th, 2003. Date owner given notice of violation: February 28th, 2003 by certified mail, return receipt requested, upon owner and registered agent, of which were claimed and green cards returned. And May 2nd, 2003 by personal service upon Kevin Cost, assistant manager of Leoni's Pizza, the tenant, copies of which were attached. Date the violation was to be corrected: Was March 24th, 2003, and May 12th, 2003. Date of reinspection: Was December 10th, 2003. Result of reinspection: The violation remains. The CEB evidentiary packet was sent certified mail, of which all the green cards were returned, and copies were sent to Norman and Patricia Kautsky, Doughboy Pizza, Inc., doing business as Leoni's Pizza, care of Joann Patris-Venetis, registered agent. And for the record, P-A-T-R-I-S - V-E-N-E-T-I-S. And Terrence Lenick as the attorney. And at this time, I would like to turn the case over to the investigator, Andy Wuhrer, W-U-H-R-E-R, to present the case to the Board. CHAIRMAN FLEGAL: And Mr. -- and Andrew has done that. Page 51 December 11, 2003 We backtracked, now we're caught up to -- MR. LENICK: May I see Exhibit A, please, that you're submitting? MS. HILTON: It was the packet that was sent to you. MR. LENICK: There has to be a submission to the Board. I'm looking for what was submitted to go off of that. Because I don't know what I got and what was submitted, it may be different. MS. BARNETT: Jean, I've got a technical question for you. MS. RAWSON: Yes. MS. BARNETT: When we have stated the violation and the Board of County Commission versus, we only list the Kautskys, but do not list the Doughboy Pizza, Inc. as well. Is that a flaw on our part, because we brought them both here? MS. RAWSON: They've both been noticed. I guess there's a technical problem with the heading, but they've both been noticed and as I understand, they're both present. MS. BARNETT: Is there any way of adjusting that -- MS. RAWSON: Sure. MS. BARNETT: -- at this point? MS. RAWSON: Absolutely. MR. BOWIE: I'd like to make a motion then, in our executive summary, the styling of the case be revised to reflect the notice of violation, as well as the notices given to the parties in that the respondent be reflected as Norman and Patricia Kautsky and Doughboy Pizza Two, Inc., d/b/a Leoni's Pizza. MR. LEFEBVRE: Second that motion. MR. LENICK: Does the Board allow you to make any arguments on that motion? CHAIRMAN FLEGAL: No. MR. BOWIE: No. MR. LENICK: I would like to make an argument then just for the record. Page 52 December 11, 2003 CHAIRMAN FLEGAL: You don't have that right. We have a motion and a second. All those in favor for adding, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Okay, sir. Proceed, sir. MR. LENICK: I hand you what apparently is Exhibit A and ask if that is the complete Exhibit A that you were referring to earlier. And while you're doing that, were there any other documents in your file other than those documents, sir? MR. WUHRER: That is a complete set. No additional documents in my file. MR. LENICK: Okay. Officer, would you state your name again? MR. WUHRER: Yes. Name is Andrew Wuhrer. That's W-U-H-R-E-R. MR. LENICK: Mr. Wuhrer, when did you -- the affidavit of violation that you have on Page 4 seems to indicate that -- I guess it's not quite in order. Indicates that the respondents were served with the notice of violation and the order to correct the violation on February 28th, 2003 by certified mail. When they were provided this notice, what was the -- was this the first time that the county filed a violation against them for this particular issue? MR. WUHRER: I'm sorry, what was the date? MR. LENICK: Well, you said you sent them a notice of violation and order to correct the violation on February 28th, 2003. MR. WUHRER: I'm just trying to locate the first notice of violation. On Page 16, that's correct. MR. LENICK: So the first time this -- the county gave them Page 53 December 11, 2003 notice of this violation, the violation of having those neon -- the neon signs behind the windows was on February 28th, 2003? MR. WUHRER: Correct. MR. LENICK: What was the next item -- what was the first response as far as where the county went with this, sir? Where did they go? MR. WUHRER: They were sent to the -- this one was sent to Norman E. Kautsky, and a copy was sent to him and a copy was handed to the manager, actually, of Leoni's. MR. LENICK: I understand. But did not the county file suit in county court against the -- MS. BELPEDIO: I object, because we're not proceeding with this prosecution on any citations that were issued in county court. We're proceeding on notices of violation that were issued. CHAIRMAN FLEGAL: Correct. This gentleman didn't give any testimony about court or proceedings, so -- MR. LENICK: I understand. But this is cross-examination, and I asked him if this was everything in his file regarding this matter and I'm trying to get into -- CHAIRMAN FLEGAL: That may be. MR. LENICK: -- what else is in his file. CHAIRMAN FLEGAL: this was everything in his file. he answered that question. He answered your question and said When he went through those pages, MR. LENICK: Then may I ask the question of is there any other documents with regard to the process of this violation in county court that you may have? CHAIRMAN FLEGAL: None have been submitted to us, and that's what we're interested in, what's submitted here. MR. LENICK: It goes to credibility. He said that this is the entire document file. The entire document file is not -- this is obviously -- Page 54 December 11, 2003 MR. BOWIE: Sir, you asked him about those are the documents in his possession. MR. LENICK: I asked him-- MR. BOWIE: Not all of the documents that might relate to this particular matter, including those in prior proceedings apparently in county court. CHAIRMAN FLEGAL: You said his file, very specifically. MR. LENICK: Would you ask the clerk to repeat the -- I'd like to ask the clerk -- or the stenographer to go back to the question I asked. (The reporter read back the previous question.) MR. LENICK: I mean the original, the -- what-- the question about is the file. CHAIRMAN FLEGAL: Back to -- MR. LENICK: I would also object to anybody talking to the witness while he's being cross-examined, which is just taking place with Michelle Arnold talking to the witness. CHAIRMAN FLEGAL: Back to where he asked him about if this was -- MS. DUSEK: His complete case file. CHAIRMAN FLEGAL: The Exhibit A was what was his -- then while the gentleman was looking at Exhibit A, he asked the question, is this all the documents in your file, I think was his words. (The question was read back.) MR. LENICK: That's what he said, no additional documents in his file. CHAIRMAN FLEGAL: Correct. So-- MR. BOWIE: So let's limit this to Exhibit A. CHAIRMAN FLEGAL: That's his file, he doesn't have control of the county court files or anything else. His file. MR. LENICK: I would strongly object to being limited to cross-examination as to what he has. Page 55 December 11, 2003 CHAIRMAN FLEGAL: That's what he gave. MR. LENICK: All right. CHAIRMAN FLEGAL: else. We're interested in his testimony. Nobody else has given us anything MR. LENICK: Sir, do you have any other documents with regard to this matter in -- anywhere in the county that you may have that you know about with regard to this case that you had investigated? MR. WUHRER: The only documents I have are those that are before the Board at this time and that I have here in front of me. MR. LENICK: Do you have any documents relating to the -- after you originally cited them, this case went to county court, did it not? It was filed in county court, correct? MR. WUHRER: Not that I'm aware of. MR. LENICK: You have no knowledge of this case going before the county -- being filed in county court? MR. WUHRER: If it were filed in county court, I probably would have had made an appearance, and I was never there for that. MR. LENICK: Okay. Did you cite them previously, prior to February of 2003? MR. WUHRER: On other violations. MR. LENICK: As far as this violation goes. MR. WUHRER: No. MR. LENICK: Do you know whether or not he was cited previously? MR. WUHRER: No, I do not. MR. LENICK: Did you ever look up the history of this particular matter? MR. WUHRER: No, I did not. MR. LENICK: You have no knowledge of the citations, even back three years ago? Page 56 December 11, 2003 MR. WUHRER: I have no knowledge of the citations. I know that you and I spoke at one point. That had to do with a notice to appear, that was before my time with the county, and I was not able to give you an accurate answer. MR. LENICK: So you weren't part of the investigation that caused -- if this thing had been filed in county court after you had reviewed it, you would have known about that, would you not? CHAIRMAN FLEGAL: Sir, let's get away from county court. This Board has nothing to do with county court. We're interested in his testimony that he gave this Board. You cross-examine him on his testimony to this Board. MR. LENICK: I understand, sir. CHAIRMAN FLEGAL: What the county did does not interest us. We're interested in his testimony to us in Exhibit A, period. MR. LENICK: All right, sir, did you have any occasion to discuss any of this matter with regard to the signs personally with Mr. Venetis or anybody who was the president of Leoni's Pizza? MR. WUHRER: I have not discussed anything with the -- with the registered agent. I spoke one time on the phone with a three-way between you and the owner of Leoni's Pizza very briefly, and you informed me that you would handle it from there, and that's the last time. MR. LENICK: And was it -- was February 1st a significant date to you as far as filing any notice regarding this matter? MR. WUHRER: February 1st what year, sir? MR. LENICK: 2003. MR. WUHRER: That date was significant because that was the date that the ordinances were going to be enforced. MR. LENICK: And that was based upon what ordinance, sir; do you know? MR. WUHRER: The sign ordinance, 2.6.5, basically. But this ordinance is 2.5.7.30. Page 57 December 11, 2003 MR. LENICK: The notice that you gave them with regard to the hearing, is that the normal notice that you would give to any property owner; that is, the first notice being by certified mail? MR. WUHRER: The only time we would give it by certified mail is if we were unable to deliver it in person, and then certified mail is accepted. MR. LENICK: All right. And was this notice done by -- I notice in the packet, that's what's confusing to me, you have the affidavit of violation and the notice of hearing. You have a notice of hearing that is dated for February 1 lth, but the affidavit talks about an initial notice to him. If you look at paragraph two, is notice of violation and order to correct violation is on February 28th 2003 by certified mail, return receipt requested upon the owner, and May 2nd by personal service upon Kevin Cost, assistant manager, copies of the attached. And you state that the undersigned inspected the premises on September 22nd, 2003 and found the following violations to continue to exist. That is the violation of 2.5.3, which is the sign. Sir, isn't February 1st a significant date, because that is the date by which nonconforming signs ostensibly were supposed to be corrected? Or I should say taken down. MR. WUHRER: These were -- that's correct. These, February MR. LENICK: So the violation-- the inspection and the violation upon this which is based, which is September 22nd, 2003, preceded that amortization period; did it not? MR. WUHRER: No, this had to do with the effective date the ordinance would be -- would be mandated to be conformed to. MR. LENICK: And when was the effective date of that, sir? MR. WUHRER: That was February 1st, 2003. MR. LENICK: Okay. So it was after -- what you're saying is that you inspected the premises, I apologize, in 2003 and found it -- Page 58 December 11, 2003 but you didn't inspect the premises prior to February 1st, 2003 at all? MR. WUHRER: I have seen those signs in existence prior to February 1st, 2003. The official notification, to be sure that the businesses had those things corrected, we gave them the period of time to be able to correct it, and that was February 1st, 2003. MR. LENICK: All right, so show me where the period of time is that you gave my client to correct this; that you gave him notice and a period of time to correct it. MR. WUHRER: The period-- the period of time we gave to correct was February, 2002, when the entire county business people were hand delivered notices that this must be corrected by February 3rd. I do have a list, unfortunately I don't have it with me, of all the businesses that we handed it to signed for them. So I do have that. MR. LENICK: Okay. What I'm looking for is the notice of vi -- the notice -- the notice of a supposed violation that goes in conformance of 162. MR. WUHRER: Well, the only ordinance number that we cited was the 2.5.7.30, which is part of 91-120, the amended 91-120. MR. LENICK: Okay. MS. BELPEDIO: I object to this line of questioning. Jennifer Belpedio, Assistant County Attorney. There's two notices of violation in your package, 16 and 17. There's no reference of a February 1st date or anything. I don't know where Mr. Lenick is going, but I submit that it's irrelevant and does not go to whether or not a violation exists. CHAIRMAN FLEGAL: Noted. MR. LENICK: The -- for reference, and I assume that this is your Board's attorney here? MS. RAWSON: Correct. MR. LENICK: Good, good, very good. If you'll go to Section 2.5.9, nonconforming signs, there is -- there's a February 1st date with regard to supposedly nonconforming Page 59 December 11, 2003 on-site premise signs and sign structures having an original cost of $100 or more and originally built prior to January 1st. And it says neon or otherwise signs, intended to be seen from the outside and may be maintained until February 1st, 2003. Now, if I'm -- what I'm being told is that they could file it prior to February 1st, 2003, and that's what I'm trying to find out is when did they actually determine this and file the violation, then the violation would -- and the notices would have been prior to that key date, which is February 1st, 2003, assuming, of course, that the ordinance is lawfully adopted. MS. BARNETT: Jean? MS. RAWSON: Well, he can answer the question, if he knows. When was the notice of the violation? MR. WUHRER: The notice of violation was dated the 28th of February. Their notification to have this problem corrected was February 1st, so it was 28 -- 27 days later. MR. LENICK: All right. Well, show me the notice where they were given to correct the alleged violation. That is the one that you're talking about on February 1st. MR. WUHRER: That was just a notice that we handed to them. Their notice of violation to correct it was dated February 28th. MR. LENICK: All right, so there's nothing in writing on February 1st is what you're saying; is that correct? MR. WUHRER: Only the -- only the forms and the letter that we personally handed them, yes. MR. LENICK: Well, do you have the forms and letters that you personally handed them? MR. WUHRER: I have a stack of them, unfortunately they're in my vehicle. MR. LENICK: All right. So this record is not complete right now is what you're telling me. You don't have the notice to them to correct violation? Page 60 December 11, 2003 MR. WUHRER: I do not have that in my packet. MS. BELPEDIO: If I may interject. Jennifer Belpedio. I think what seems to be the confusion is that Mr. Lenick is referring to the notice, and I'd like to just mention that there's notices of violations, then there's just, you know, notices where an investigator walks out to a property and just gives the property owner a courtesy notice. And I think that's where there's miscommunication. I'm not sure, but that's what it seems to be. MR. BOWIE: So this notice that was handed out to a large number of businesses sometime around February 1st was sort of a pro forma courtesy notice? MR. WUHRER: Yes. And this was handed out over the preceding year. It wasn't handed out that month. So they had a year's period of time to actually do something to correct it. MR. BOWIE: What we have on Exhibit A is the actual notice of violation -- MR. WUHRER: It's the actual notice of violation, correct. MR. BOWIE: -- which was dated February 28th. MR. WUHRER: Right. MR. LENICK: Preceding this notice of violation, you were under an obligation to provide them a notice with a certain period of time to correct before you could file this notice of violation; isn't that true, sir, under 162? MR. WUHRER: That is what we gave them in February, 2002. MR. LENICK: And you gave it in writing, because you said you have it out in your car. MR. WUHRER: We gave it as a pre-printed file form. MR. LENICK: So you have that form? MR. WUHRER: Yes, I do. MR. LENICK: So 162.06(2), it goes back to if a -- except as provided in Subsection 3 and 4, if a violation of the code is found, the code inspector shall notify the violator and give him or her Page 61 December 11, 2003 reasonable time to correct the violation. Should the violation continue beyond the time specified, code inspector shall notify the enforcement board and request a hearing. Now, the normal course of business is to give -- and I've never seen a verbal one. The normal course of business, when somebody is doing something, before you go and ask for a -- file with the Code Enforcement Board, you give them a written notice and a set period of time in which to correct; isn't that true? MR. WUHRER: That's called a notice of violation, that's correct. MR. LENICK: Right. In this particular instance, there is nothing in the file showing that you gave them a notice of violation. MR. WUHRER: No, I have in front of me on Page 6 a notice of violation, issued the 28th of February, allowing them until the 24th of March to correct. MR. LENICK: Okay. MR. WUHRER: On page -- Pages 16 and 17, I believe. MR. LENICK: Okay. So you're five -- this 9 -- I mean, this is the notice of violation, the February 28th one is -- MR. WUHRER: That's correct. MR. LENICK: -- not the February 1st. MR. WUHRER: No. MR. LENICK: All right. Was it -- you said it was sent by certified mail and of course you have the certified mail copy to it, right? MR. WUHRER: Yes. MR. LENICK: Sir, did you ever ask the -- Leoni's Pizza what type of sign that was? Do you consider that to be -- well, let me ask you this: What type of sign do you consider that to be, within the definition of the ordinance? MR. WUHRER: It is a neon sign. MR. LENICK: And-- well, is there any other description? It is Page 62 December 11, 2003 a sign that -- is it an on-premise, off-premise, temporary? I mean, there's a variety of different classifications that could be neon signs. MR. WUHRER: It's an on-premise, inside the business neon sign, with intent to be seen from the outside. MR. LENICK: And what provision of the code talks about that, sir? MR. WUHRER: 2.5.7.30. It's in the corrections section of the notice of violation, if you'd like to read it. MR. LENICK: Okay. Before you filed this -- before you filed them a February 1 st notice, did you investigate to determine whether or not this particular sign, this neon sign, fell within provisions 2.5.9.1.4, that is the nonconforming provisions of the sign ordinance? MR. WUHRER: No, I did not. MR. LENICK: Then why is it -- you had known previously in the fall that these signs were up; did you not? MR. WUHRER: I did. MR. LENICK: Why didn't you approach them at that time? MR. WUHRER: Because we were allowing them the -- an appropriate amount of time to remove them before a violation would be so noted. MR. LENICK: So February -- was February 1st told you as the time frame? MR. WUHRER: That was told to the business owners within the county that that's by the time that they must have these things corrected by. MR. LENICK: Now, that doesn't mean all neon signs, does it? MR. MR. MR. MR. MR. MR. WUHRER: I'm sorry? LENICK: That doesn't mean all neon signs, correct? WUHRER: Does it mean all neon signs? No, it does not. LENICK: Certain neon signs are allowed, correct? WUHRER: Certain neon signs are allowed, correct. LENICK: What neon signs are allowed, sir? Page 63 December 11, 2003 MR. WUHRER: Neon signs that had been permitted subsequent to 1991, and open signs. MR. LENICK: What do you mean "open signs"? MR. WUHRER: A sign that says "Open", 2.24, 2.25 square feet, one by two, roughly. MR. LENICK: Okay, so if it was permitted after 1991, these signs are permitted? MR. WUHRER: No, the only signs that would be permitted subsequent to '91 would be signs that were permittable. Those signs, those type of signs are not permittable. Leoni's Pizza, for example, if it did not have the cover on it, it had exposed neon tubing, had that subsequent to '91, was -- if the permit was requested and approved by the county and signed off, that would have been allowed. MR. LENICK: So if I understand you correctly, if they had gone in and asked for a permit and got it approved, that would have been allowed? MR. WUHRER: No, that's not what I said. The wall sign, where it says Leoni's Pizza. You asked me the type of sign that would be allowed. If that sign were open neon tubing and they requested a permit after '91 and it met all the appropriate size requirements and was approved, permitted, approved, and signed off by the county, they would be allowed to keep that until they changed the name or wanted to add something else. MR. LENICK: And Leoni's pizzeria sign is called a what type of sign? MR. WUHRER: Wall sign. MR. LENICK: So the idea that all illuminated and/or animated signs, neon or otherwise, installed inside commercial establishments, that didn't apply to a sign outside and on the top, correct? MR. WUHRER: That's correct. MR. LENICK: So if he took that sign and put it on the outside of the window, that would not fall within this provision, would it? Page 64 December 11, 2003 MR. WUHRER: It would not fall -- it would fall within the illegal signs, it would not fall within the permitted sign that Leoni's Pizza would have been able to obtain, possibly. MR. LENICK: Okay. But the people who have gone in and gotten permits for the inside signs, that is, the signs like that that says 591170? MR. WUHRER: That is not a permittable sign. They do not get permits for that sign. MR. LENICK: If they had obtained one prior to February 1st of 2003, would you have not cited them? MR. WUHRER: They would not be able to obtain a permit for those signs. MR. LENICK: I didn't ask you that. If they had obtained it, would you have permitted it? MR. WUHRER: If the county had issued a permit for that sign and it had been signed off and approved, I would not have issued them. MR. LENICK: You would not have issued a violation? MR. WUHRER: Until they made a change on it, that's correct. MR. LENICK: Are there any people who obtained permits for this particular type of sign? MR. WUHRER: No. MR. LENICK: Do you know whether or not Mr. Venetis went down and asked for an application to obtain that type of sign? MR. WUHRER: No. MR. LENICK: But if he had obtained it, then there'd be no violation? MR. WUHRER: If that were a permittable sign and he obtained the permit, you're absolutely correct. MR. LENICK: No further questions. CHAIRMAN FLEGAL: Jennifer, do you have any questions? MS. BELPEDIO: No, sir, I do not. Page 65 December 11, 2003 CHAIRMAN FLEGAL: Any questions from members of the Board? (No response.) MR. LENICK: Thank you, sir. MR. WUHRER: Thank you. MR. LENICK: I assume that the county has rested? CHAIRMAN FLEGAL: Your witnesses now, sir. MR. LENICK: Okay, very good. Mr. Venetis, please. (Speaker was duly sworn.) MR. LENICK: For the record, would you state your name for the record, sir? MR. VENETIS: Tom Venetis. MR. LENICK: And are you familiar with Leoni's Pizza? MR. VENETIS: Yes, sir. MR. LENICK: How are you familiar with it, sir? MR. VENETIS: My wife and I own it. MR. LENICK: Okay. And when you first opened up Leoni's, what year was that, about? MR. VENETIS: It was our second location. I believe it was sometime in '99. MR. LENICK: Okay. And at the time that you opened it up, did you obtain a -- did you put in those signs that are there then -- now? MR. VENETIS: Yes, sir. MR. LENICK: Did you hire a sign company? MR. VENETIS: Yes, we did. MR. LENICK: And did that sign company tell you whether or not you needed any permits for that sign? MR. VENETIS: Yes, they did. And they obtained all the necessary permits for the Leoni's Pizzeria sign. MR. LENICK: To the best of your knowledge. Page 66 December 11, 2003 MR. VENETIS: Yes. MR. LENICK: In November of 2001, you were initially cited for this -- for this particular violation, correct? MR. VENETIS: Yes, sir. MR. LENICK: And upon being cited, what if anything did you do? MR. VENETIS: Well, I called your office and submitted the citation to your office to see the legality of it and what we can do and why this was occurring. MS. BELPEDIO: I object. We're talking about notices of violation in this proceeding, not citations. We're not prosecuting the citation. That case has been dismissed in county court. MR. LENICK: The argument is real simple. And sometimes I don't want to let the cat out of the bag, but I will. Mr. Venetis is going to testify that he went down three times to obtain the permit. The particular ordinance that they are talking about to apply was adopted over in October of 2001. That -- before October, 2001, on my advice he had three times gone down to obtain the permit. At that particular time the county knew the problems with the ordinance. I will present evidence and show you that the reason for the October, 2001 ordinance, which put back in the same provisions in the sign was because they knew it was procedurally deficient and dropped the case. Now, you heard from Mr. -- you heard from the officer. Had he obtained permits, he would have not been cited. And that's the key issue in this case. You can't obtain permits if he can't even get an application. MS. BARNETT: Can I ask you a question, just to clarify something for my own self?. When he stated that he had hired a sign company and got signs that were permitted, he specifically stated Leoni's Pizzeria sign. Does that include or exclude the interior signs which are at question? Page 67 December 11, 2003 MR. VENETIS: It excluded the interior signs, because permits were not necessary for indoor signs. We had gone down -- CHAIRMAN FLEGAL: Okay. MR. VENETIS: Can I finish, sir? CHAIRMAN FLEGAL: Sure. MR. VENETIS: We had gone down to obtain permits and we were told that it's inside your building, you do not need a window sign. So we cannot obtain-- we were not even given an application to obtain a permit. Then the code enforcement cited us. So we went down three times trying to obtain a permit to be legal. No, the lady checked with the supervisor, she went in the office, they laughed about something, came back, there's no application for you to fill out for a sign. It's inside your building, you cannot have a permit for that, it's legal. So we left. After the third time we cannot get a permit. And then this case keeps continuing. CHAIRMAN FLEGAL: Sir-- MR. LENICK: The significance of the time is very relevant. And let me, if I can give you, the time and when the ordinances were adopted. Yes, sir? CHAIRMAN FLEGAL: Your question, in cross-examination to the gentleman, as I remember, was if signs were permittable. Because he kept telling you they weren't and you kept saying if they were, could you get a permit. Then he finally said, yeah, if they were. So I'm a little amiss that you're saying he said they were permittable prior to a certain date. That was if they were is how you asked the question. So let's not mislead us, please. MR. LENICK: No, I'm not misleading you, sir. There is a time sequence of this. 1999 is, and-- is when they opened up. And approximately in 1999, sometime in 1999, those interior signs went up. At that point in time it hadn't passed the January -- I think it was January of 2000, to be exact, the sign ordinance had not come into Page 68 December 11, 2003 effect. There was no -- as he testified, there was no permit for interior signs prior to the sign ordinance, okay? After the sign ordinance was supposedly adopted in January, and I think it was 2001 -- let me get that out to be correct. I believe it was January of 2000. January of 2000 -- he was cited. Signs went up before a permit was required. 2000-08, the law comes into effect. Says no neon signs. He gets cited in November of 2000. He goes down. I tell him to go down, get a permit for it. The law was unlawfully adopted. He tries to get an application. He can't get an application. He goes down then after the county drops the case in mid-2000, again tries to get it. They won't do it. I tell him to again to go down and they won't do it. MS. BELPEDIO: I object. The witness has testified. There's no reason for the attorney to make arguments during the presentation. MR. LENICK: I would agree, but I'm trying to show you what I'm doing in the sequence of events. MS. BARNETT: I think I understand your sequence of events. My question is, prior to 2000, why did not he try to get a permit in '99? MR. LENICK: It was my understanding that prior to 2000 -- 2000-08 was the one -- MS. BARNETT: That made it a requirement. MR. LENICK: Exactly. MS. BARNETT: Therefore, he was not in compliance at that time with the law. MR. LENICK: No, because prior to 2000, for the interior signs, it was his discussions with people down at the county that he did not need a permit. MS. BARNETT: Was there any grandfathering clause within the ordinance? MR. LENICK: Which ordinance? MS. BARNETT: The one that was adopted in 2000. Page 69 December 11, 2003 MR. LENICK: Yes, there was. But the problem with the 2000 ordinance, and the problem they're going to find out when they get into court, is they just did a piecemeal correction to it and the whole thing is bad. MS. BARNETT: The problem is, I think right today we need to decide on this particular case whether or not we need to move forward. Whether you want to take it to court, as well as your client, is for your decision after we make our decision. But we don't need to hear about the particulars leading up to this. Although I think you have a case, in my personal opinion, if there was a grandfathering clause in 2000. But that's not what we're here to see about today. We're here resting on the particular case effective starting in February of 2003 when they were cited on February the 28th. MR. BOWIE: February 28th. MR. LENICK: I understand, but-- MS. BARNETT: So I think we need to leave this information behind for your court case and proceed forward. MR. LENICK: I would understand where you're coming from, but the truth of the matter is the gentleman stated to you that if he had a permit, he would not be in violation. He has tried -- MS. BARNETT: He said if he had a permit if it was a legal sign. But the question is whether or not it is considered legal upon the time in reference. MR. BOWIE: This all is very hypothetical, if this, and if that. I think we need to look at the ordinance -- CHAIRMAN FLEGAL: Let's get back to this. MR. BOWIE: -- the ordinance as written and the notice of violation that was issued February 28th. CHAIRMAN FLEGAL: This case is what I'm interested, right here, this paragraph that's cited for. What happened prior to the first NOV, notice of violation, dated February 28th, 2003, what happened Page 70 December 11, 2003 prior to that does not interest this Board. MR. LENICK: Okay. I have a duty -- CHAIRMAN FLEGAL: Use that somewhere else. MR. LENICK: Yeah, I have a duty -- CHAIRMAN FLEGAL: Let's start from there to here. MR. LENICK: I have a duty to prove to you on the non-conformity issue. In order for me to prove it, I'm trying to prove it that but for the county's failure to do the application, he would have obtained the permit. CHAIRMAN FLEGAL: There is no non-conformity. It says -- what he's cited for is having a neon sign inside a building. That's what it says. Doesn't say nonconforming, it's a neon sign inside a building. Does he have it, doesn't he have it, yes, no. Real simple answer. MR. LENICK: The issue of nonconformity is that if he has conformed with the law at one time, then he's allowed to continue to conform with it, and even when the law changes. MR. BOWIE: No, that's not what -- MR. LENICK: And that's what I'm trying to show is that he did conform with the law, tried to conform with the law, and the county, who is the one who's against him, was the one who is trying to say he doesn't have a permit when in fact he's tried three different times, he couldn't even get an application. And I believe under the doctrine of equitable estoppel, they're estopped from asserting otherwise. CHAIRMAN FLEGAL: Okay, sir. Unfortunately this Board has no power over when ordinances are written, what they say, when they're changed. What we're here to do is if somebody is cited for violating an existing ordinance, whether it's right or wrong, which is not our purview to decide, they're brought here. We decide are you in violation or aren't you. So our question before us, it has been brought, he has an illuminated neon sign inside a building. What we want to know, Page 71 December 11, 2003 does he or doesn't he. That's what we're here to decide. That's the limit of our authority. So that's what we would like to know, period. Your arguments need to be somewhere else. We can't help you. MS. BARNETT: I think what he's -- Cliff, in all honesty, I'm looking over 2.5.9, nonconforming signs, which is within that statute, is what he's trying to state that his signs fall underneath that. MR. BOWIE: But they don't. MS. BARNETT: But they don't as far as -- CHAIRMAN FLEGAL: We were given a citation on one item. Let's stick to the one item. I don't care what the rest of the ordinance says. MR. LENICK: Would you permit me to put into evidence the sequence of events that occurred so I have it of the record at least? Because I believe I have, under the defense of non-conformity, to be able to prove that he attempted to obtain the permit, that needs to be of record. I'll leave that to your discretion, but I believe it should be allowed. CHAIRMAN FLEGAL: Jean, a little guidance. I'm -- I don't personally see that that's going to give us any way to make a decision. If he's trying to build a case for something else -- MS. RAWSON: Well, he has, obviously, the right to ask whatever questions he wants to to defend against the alleged violation of the sign ordinance. Basically your job is to determine, from whatever evidence is presented to you, whether or not there was in fact under the prohibited signs ordinance an illuminated sign, neon or otherwise, installed inside businesses and intended to be seen from the outside. That's it. That's all you have the authority to do. CHAIRMAN FLEGAL: Correct. So whether it was written in some year or changed is really irmnaterial to us. We're interested in do you or do you not conform to that one paragraph you're cited for. Simple question, should be a simple answer. All your other Page 72 December 11, 2003 arguments need to be somewhere else, because we can't help you. MS. DUSEK: I think Cliff has made it quite clear and I think, Mr. Lenick, you're having a problem with the sign ordinance the way it's written. And we cannot help you there. So we have to go with the way the sign ordinance is written today. Who knows what it will be in the future. But this is the way it's written today. I know you've got a problem with it, that goes someplace else. And Cliff has made it very clear, from February 28th to today, that's what were dealing. MR. LENICK: I understand. I have -- maybe there's some miscommunication. One of the defenses, a factual defense to a case like this is nonconforming. It's a burden upon me to prove it. One of the methods of proving it is by the sequence of events that occurred prior to this date. I assume that's what you're telling me, that I can't go prior to this date. If that's what you're telling me, just state it and I won't go back -- I'll obey it. All I'm asking is for a decision. CHAIRMAN FLEGAL: Okay. I guess where we're coming from is, you're talking about a nonconforming sign in our purview. Your clients are cited for 2.5.7.30, which says illuminated signs, neon or otherwise, installed inside businesses and intended to be seen from the outside. That's all we're concerned with. It doesn't say it's nonconforming, it doesn't say anything else. It just says it's an illuminated sign, neon or otherwise, installed inside a business and intended to be seen from the outside. That's why we're here, that's what we'd like you to tell us. It's either yes he did it or no he didn't, and prove it to us. That simple sentence, that's all we're interested in. If you have a case for something else, by all means go after it. We can't help you. This is the only thing we're concerned about right now, unfortunately. MR. LENICK: I'm looking for a ruling. If you don't want me to go back there, I believe it's a defense. CHAIRMAN FLEGAL: I order you, do not go back there, sir. MR. LENICK: You can't do that to me, a preference, because I Page 73 December 11, 2003 have a legal obligation to bring up every defense. If you're telling me as the Board Chair or the Board that you don't want to hear anything of this prior -- of the prior attempts to obtain permits and the events that led up to February 28th, I will obey it. I'm just asking for you to tell me a decision. Because if you say it's up to you, I'm not here to be nice, I'm here to be -- represent a client and legally represent them. And you're -- she can tell you what you're here for, but I can't do a preference. So I'm asking for you to tell me what it is, your decision. I believe I have the right and obligation to present prior things with regard to my clients on the permits and nonconforming. If you don't want me to do it, then you tell me. MR. BOWIE: I think the Board supports the ruling of the Chair. MS. DUSEK: Jean, I have a question for you. MS. RAWSON: Yes. MS. DUSEK: Cliff has made it clear that we want to just stick with what has been cited. If we say don't go back any further, are we jeopardizing his client in any way to connect with the violation that's been cited here today? MS. RAWSON: I'm not sure what the evidence is going to bring out. He certainly has a right to present any and all defenses to the alleged violation that you're hearing today. Nor do we have the right to tell him, well, you know, we don't like that defense. I guess you have to listen to his defenses and then make your decision whether his defenses are to the alleged violation that you have to decide today or not. You know, whether or not evidence is really relevant is -- we relax the Rules of Evidence quite a bit in an administrative hearing such as this. You have to determine whether or not in making your decision you think that the evidence presented to you is relevant to the alleged violation that you have to decide or not. Page 74 December 11, 2003 MR. BOWIE: I think we had a ruling from the Chair that it was not. Does the Board sustain the Chair? I move that we do. MS. BARNETT: I'm afraid that if we don't allow him-- I know it's going on and on and on, but I'm afraid if we don't allow him, that we're not giving him the right of his due defense. I question that. I don't think that it is technically pertinent, but I'm afraid that we might be overstepping his defense. MR. BOWIE: On the other hand, this could be going on three days. CHAIRMAN FLEGAL: That's not the point. MS. BARNETT: We could ask him to make it a synopsis. MR. RAMSEY: I think we're splitting hairs between, basically, building a record and giving counsel an opportunity to present what would be affirmative defenses on behalf of his client, you know. And it's difficult to cut that line somewhere, and I don't think we can cut it off in such a way that later counsel has the opportunity to say that we prevented him from arguing on behalf of his client. I think he has a right to do that. We may not agree with all the things that he has presented, and we may not find that they are in fact viable defenses, but I think he has a right to present them. MS. BARNETT: I agree. MR. BOWIE: But I think there's got to be reasonable constraints on any presentation, okay. The reiteration on certain things over and over again, dragging things out, dilatory measures, a line of questions that seems to have no end that may have us sitting here for the next three days without making a point, which seems to be quite frankly what the counsel here is doing. I think we have every reasonable right to put constraints on where counsel wants to go. MR. RAMSEY: I would agree, but I think there's -- MR. BOWIE: I think those reasonable constraints, frankly, have been reached. Page 75 December 11, 2003 I move that we support the ruling of the Chair as to materiality on this. MS. DUSEK: MR. PONTE: MS. DUSEK: Well, that's very vague, though. I mean -- It certainly is. You can't-- as much-- I agree with the substance of what you've said, but I think Chris has a point, we have to allow him the due process. And if he feels that this is going to lead toward an affirmative action for his client, I think we have to allow it. I think most of what I've heard is irrelevant, but I think it's a due process that we have to follow. MS. BARNETT: I agree with you. I would only like to stipulate that he try to make a summation, if at all possible -- MR. BOWIE: A bit more succinct, perhaps. MS. BARNETT: -- a little more succinct. MR. BOWIE: Like to the point. MS. BARNETT: So that we can move on with our finding. CHAIRMAN FLEGAL: Proceed, sir, as you were. MR. LENICK: What is the ruling of the Board on it? CHAIRMAN FLEGAL: Proceed. MR. PONTE: Continue. MR. LENICK: Continue without limitation? MR. BOWIE: No, there will be limitations. Please be succinct, to the point. MR. LENICK: All right. I will cover the areas that -- MR. BOWIE: Say what it is you have to say. MR. LENICK: Yes, sir. I would have probably been through this in about 10 minutes. MR. BOWIE: I doubt that very much. CHAIRMAN FLEGAL: Just remember, sir, we have no Constitutional authority here, so -- MR. LENICK: I understand. CHAIRMAN FLEGAL: -- we can't help you in those Page 76 December 11, 2003 arguments with you. MR. LENICK: Mr. Venetis, I want you to simply go step by step through this matter as far as the sequence of events and the attempts to obtain permits. And isn't it true that you built this property, or I should say you leased this property in 1999? MR. VENETIS: Yes, sir. MR. LENICK: And insofar as the permits for the signs with that -- that are on the windows, those were put up by a sign company, correct? MR. VENETIS: Yes, sir. MR. LENICK: And at the time that you put them up, there was an attempt to obtain permits for them at that time? MR. VENETIS: Yes. I was -- there was no form to be filled out for inside -- you did not need a permit because it was inside the window -- inside the building, so I could not obtain an application. There wasn't an application that they can give me to apply. As long as it wasn't on the outside of the building, I was free to put any sign I want in my window inside the premises of my building. MR. LENICK: And that was 1999? MR. VENETIS: Yes. If they were outside, then yes, it would fall under the sign ordinances that's on a building. So at that time they said there was no harm in putting the signs up, there was no application, I cannot obtain a permit because there's no such permit that you need. MR. LENICK: Okay, so at the time that you put the signs up, you were in conformity with the law? MR. VENETIS: Yes, sir. MR. LENICK: And the law did not require you to have a permit? MR. VENETIS: Not on the windows signs, no. MR. LENICK: Okay. All right, 2000 comes about. Now, you're probably familiar with the ordinance, the sign ordinance that Page 77 December 11, 2003 was allegedly adopted in January of 2000, the 2000-08, correct? MR. VENETIS: Yes. MR. LENICK: And in that ordinance, there apparently is some type of limitations on interior neon signs, correct? MR. VENETIS: Yes. MR. LENICK: And so in November of 2000, you were cited by the county at that time? MR. VENETIS: Yes, sir. MR. LENICK: And you were cited and taken into court at that time, correct? MR. VENETIS: Yes, sir. MR. LENICK: At that time, on advice of counsel, did you go down and try to get a permit? MR. VENETIS: Yes, I did. MR. LENICK: And what happened at that time? MR. VENETIS: Well, I obtained a permit for a banner sign, but I wasn't allowed to obtain a permit for the neon signs. They said there's no such permit. You don't need a permit for inside your premises. MR. LENICK: Okay. And the case came up in the mid 2000 -- June of 2001, correct, in front of county court? MR. VENETIS: I believe so. MR. LENICK: Came up for a hearing? MR. VENETIS: I don't remember the date, sir, but roughly around that time. MR. LENICK: And there was discussion at that time because the county had continued their hearing, the Board of County Commissioners had continued their hearing not to a date certain and didn't readvertise it that the date of the adoption of the ordinance was unlawful because they had not had the proper notice, correct? MR. VENETIS: Something in that form, yes. MR. LENICK: And at that point in time, the county dropped Page 78 December 11, 2003 their case, correct? MR. VENETIS: Yes, they did, sir. MR. LENICK: And did you-- after they dropped their case, did I tell you to again go down and try to get a permit? MR. VENETIS: Yes, you did. MR. LENICK: And what happened? MR. VENETIS: I went down again and I was told the same thing that I was told the first time, that there is no application for a sign inside the building, that you cannot obtain a sign, it's legal, it's inside your premise, so you can have it. You don't need a permit, as long as it's inside. If it's outside, then they can give me an application to fill out. I told them that it was on the inside of the building, it's a neon sign, illuminated, that I would rather get a permit to conform. They cannot obtain any application or any document for me to fill out. MR. LENICK: So they had no document, they had no permit for the inside signs? MR. VENETIS: Exactly. I went to their supervisor, told them please check with the supervisor. They went inside, came back and the same thing had happened. MR. LENICK: And when I was told -- when you came to your attorney and told you (sic) that, what did I tell you to do, go back down again? MR. VENETIS: The third time, yes. MR. LENICK: Third time. MR. VENETIS: Yes. MR. LENICK: And you went back down again and could not get even the application for a permit, because -- MR. VENETIS: Yes, same thing three times. I only went down three times. MR. LENICK: And at that time, because of the 2000 ordinance, they thought it was illegal to have an inside sign, correct? Page 79 December 11, 2003 MS. MS. MS. MS. admitted. MR. VENETIS: Yeah, this harassment has been going on constantly from the time we opened about -- even if we put a banner up or something. We always go and get a permit for a banner or anything, but it seems like it's a constant battle about these signs. And when I try to correct it to make them legal, I'm told one thing and then I'm dragged back into court. And I'm just trying to run a business and sell some pizza, and it just keeps coming back and coming back, and here we are again today before this Board. And God knows where this is going to go, but -- MR. LENICK: I'm going to hand you what we're going to mark as Defense Exhibit No. 1, or B or whatever letter you want to have it. MR. BOWIE: Could I just ask a ruling from somebody, a ruling as to the permissibility of the introduction of some kind of defense exhibit at this point in time? Do not our rules require that any defense exhibits be delivered to us in advance? Just as our-- the exhibits for the county need to be delivered to the respondent or his attorney in advance, are not defense exhibits supposed to be delivered to us in advance for our prior review? MS. RAWSON: That's what the rules say, yes. DUSEK: Jean, can his defense package be entered? RAWSON: If you -- DUSEK: We don't have copies. RAWSON: It's up to you whether or not you want it CHAIRMAN FLEGAL: We have to make a motion to either accept it or reject it. MS. RAWSON: Correct. MS. ARNOLD: And we would just like to object to the fact that it wasn't delivered in advance, nor was copies provided to staff for our review. CHAIRMAN FLEGAL: Okay, we need a motion from the Board to either accept or deny the exhibit from the defense. Page 80 December 11, 2003 MR. PONTE: Is there a way to -- rather than an either/or, can we, if we haven't had a chance or opportunity to look at this, because it seems rather lengthy, to continue it over so that we have a chance to review what the defense has to say? MS. RAWSON: Well, you have all kinds of discretion. If you want to have it admitted but you want to have a chance to review it before you're going to hear testimony about it about it, certainly. You can -- and you need to have copies of it. You can continue the case, you can deny it, you can admit it. MR. PONTE: Can we carry it over to the next session? MS. RAWSON: It's your decision. CHAIRMAN FLEGAL: Remember that when you -- if you decide to do that, at this point you don't know if he has more exhibits, which when you reconvene, that if he submits something else, you're back in the same spot. MR. PONTE: We'll ask to make sure that all of the defense exhibits are included in the next meeting. MS. DUSEK: I have a question for Mr. Lenick. The defense package that you've presented, are you discussing this verbally today with us? Have you or are you? So that we don't need to have a copy. MR. LENICK: What I'm presenting to you is what normally would be presented in a cross -- in an examination. You having a rule that requires all of the evidence to be brought to you beforehand I am not aware of under 162. If that is a rule that you adopted as a Board, then I would have trouble with it. I was -- didn't know about it. MR. BOWIE: Excuse me, you received a copy of a notice of hearing here by certified mail, along with the County Exhibit A. You may provide the Board a defense packet. If you decide to do so, you must make 15 copies, have them delivered to Shanelle Hilton, code enforcement, on or before December 5th. Page 81 December 11, 2003 MR. LENICK: Yes, I read that. The operative word is may. In other words, if I wanted to, I could. And if I didn't want to, I couldn't. And that's how I read that. In other words, if it said shall, I would have obeyed it. Now, if you have a rule to that effect, you shall do that, defense has to do that, then I think you'd probably have a due process. MR. BOWIE: I think the rule that has to prevail here is common sense. MR. PONTE: Why would you not want me to read it? CHAIRMAN FLEGAL: Okay, let's fall back to first of all -- MR. LENICK: It's not -- the evidence is just a -- well, it's up to yOU. MS. DUSEK: I would think if you wanted us to read and know the evidence, you would have presented it to us beforehand. MR. LENICK: The reasons why I may or may not do things may be strategic and tactical. MR. BOWIE: Then I think strategically and tactically I don't think we can look at this, and I'd make a motion that we cannot, out of fairness, look at this. MR. PONTE: I for one don't like to deny defense every option that they have before them. Exercise that. If one of the options is we want to look at it rather than deny it, I think we should take it over to the next meeting. MS. BARNETT: I had a question. I thought Jennifer looked like she had something she wanted to state. Do you have an opinion MS. BELPEDIO: Yes, ma'am. MS. BARNETT: -- Jennifer, from the county's point of view? MS. BELPEDIO: It seems the documents that I was presented with relate to the enactment of LDC amendments during the LDC amendment cycle. I couldn't tell you if it's every page or if it's, you know, authenticated, but it seems to be the agenda item from October Page 82 December 11, 2003 24th, 2001, which I believe was for the enactment of Ordinance 2001-60. As I mentioned earlier, this is not an issue that's for this Board to consider. It may be the kind of thing that Mr. Lenick can proffer, put in, make his arguments at a later point in time, if a violation is found. I'm really of that position because it's the most efficient and it's not to the detriment of the county. CHAIRMAN FLEGAL: Okay, can I say something? Thank yOU. Sir, you spout 162. And we have told you we have rules. Two things govern us: First is the ordinance issue by Collier County, and 162. In the ordinance that governs us, Section 9, Item 1 states we can adopt rules and regulations for the conduct of its hearing. That's the Board. Florida Statute 162.08, Item 1: The power of the Enforcement Board is to adopt rules for the conduct of its hearing. We have done that. One of our rules is you submit in advance. MR. LENICK: Is that a rule in writing that I could have to take a look at, or-- MS. BARNETT: Cliff, if we have a motion that was made, I'd like to second it. MR. PONTE: What was the motion? MR. BOWIE: My motion that the preferred defense exhibits not be received by this Board. You're seconding that? MS. BARNETT: Yes. CHAIRMAN FLEGAL: Okay, we have a motion and a second not to accept exhibit -- I think he said B, did he not, Cherie'? MS. DUSEK: Well, he said whatever number we wanted to give it. MR. BOWIE: Whatever it is. MS. BARNETT: A or B. CHAIRMAN FLEGAL: Okay, I think that's the probably the Page 83 December 11, 2003 first thing submitted, so it probably should be A from the defense. Any question? (No response.) CHAIRMAN FLEGAL: If none, all those in favor of rejecting, signify by saying aye. MS. DUSEK: Aye. MR. LEFEBVRE: Aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. RAMSEY: Aye. CHAIRMAN FLEGAL: Those opposed? MR. PONTE: Opposed. CHAIRMAN FLEGAL: One. MR. PONTE: I'm opposed to denying the defense the right to present. CHAIRMAN FLEGAL: 6-1. MR. LENICK: Just for the record, I'd like to proffer this to the clerk as the evidence that was being attempted to be presented, so it becomes part of the record. MS. RAWSON: He can do that. CHAIRMAN FLEGAL: Okay. MR. LENICK: Based upon that ruling, I will not present any more documentary or picture evidences. Mr. Venetis, we're now into mid-2000 where the court dropped the case and they re -- you attempted to obtain permits. Did you, at any time thereafter, get cited prior to February of 2000 -- February 28th of 2003? MR. VENETIS: Yes, we did. MR. LENICK: Okay. And who was the -- do you know who was the code enforcement officer that cited you at that time? MR. VENETIS: I can't remember, sir. Page 84 December 11, 2003 MR. LENICK: Was it this gentleman or another gentleman? MR. VENETIS: I can't remember. MR. LENICK: Okay. At that point in time, was the case scheduled to go to court then too? Was it taken to court? MR. VENETIS: Yes, it was. MR. LENICK: And after discussions with the County Attorney's office, they dropped that case, too, didn't they? MR. VENETIS: Yes, they did, sir. MR. LENICK: Shortly therefore, they then refiled and filed on this case; did they not? MR. VENETIS: Yes, they did. MR. LENICK: And that's why you're here today? MR. VENETIS: Yes, sir. MR. LENICK: So at every step in the stage, you have attempted to obtain permits, from 1999 to date? MR. VENETIS: Yes, we have. MR. LENICK: And it has not been so much that you were able to do an application and having it denied to appeal it, they wouldn't even give you an application, would they? MR. VENETIS: Yes, they would not. MR. LENICK: And so in 1999 when you first put these in, you went down and talked to them, they said no permit was needed? MR. VENETIS: No. MR. LENICK: So you didn't even get the application? MR. VENETIS: No, I did not. MR. LENICK: But you got the application for the sign, the neon sign on the top? MR. VENETIS: Yes, we did. MR. LENICK: Okay. No further questions. CHAIRMAN FLEGAL: Jennifer? MS. BELPEDIO: Sir, you said you went down to the building review department to obtain permits for the sign that's the subject of Page 85 December 11, 2003 the violation; is that true? MR. VENETIS: Yes. MS. BELPEDIO: You said you went down on three different times and spoke to different permitting techs and supervisors; is that true? MR. VENETIS: I spoke to the lady where they referred me to go for permitting, and whoever the lady was there spoke to a supervisor in the back. I did not speak. At one time a supervisor had come out and they discussed it in front of me. Because I wanted to be reassured that it was okay. MS. BELPEDIO: Did you get any names of any of these persons that you spoke with or that were made privy to the conversation? MR. VENETIS: No, I did not. MS. BELPEDIO: Okay. But did you get anything in writing from them saying no, you don't need an application? MR. VENETIS: No, I did not. MS. BELPEDIO: But said you wanted to be sure that a permit Yes. MS. BELPEDIO: But you didn't get it in writing? MR. VENETIS: They didn't give me anything in writing. MS. BELPEDIO: Did you ask? MR. VENETIS: Yes. They said there's nothing in writing. There's no law that applies to that, so they cannot give me anything in writing. MS. BELPEDIO: But you didn't ask for a letter or anything saying it's the county's position that you don't -- you don't need a permit, in fact there's no application. MR. VENETIS: I asked the lady and if she could ask the supervisor if I can get something in writing. That's when they had laughed. I do not remember which one of the three times it was, was not required? MR. VENETIS: Page 86 December 11, 2003 because I was asked to get a letter or something, and I was denied a letter also. MS. BELPEDIO: Did you send a letter to the county something along the lines of, I'm concerned, I believe that I may need a permit but I'm not sure, and I was told numerous times, can you please provide me something in writing. Did you do that? MR. VENETIS: No, I did not. MS. BELPEDIO: Okay. Now, you said you went there and you told the building inspector -- a building review person that the sign was to be inside your premises; is that true? MR. VENETIS: Yes. MS. BELPEDIO: And the year that you said that was, was that 1999 or 2000? MR. VENETIS: It was -- the first time was 1999, I believe. The second time was after the first citation, I believe it was sometime in 2000. And then I don't remember the third time, when it was, but it was roughly right around that period. MS. BELPEDIO: Was that when your business first opened? MR. VENETIS: The business opened in '99, yes. MS. BELPEDIO: What month? MR. VENETIS: Around Thanksgiving time. I believe it was either October or November. I can't quite remember. We have five locations, so I don't remember the opening dates and I didn't go back to look and see. MS. BELPEDIO: Did you apply for an occupational license at that time? MR. VENETIS: Yes, all licenses, everything was obtained. All proper licenses, occupational -- all our licenses for plumbing, electrical, everything was done by the book. MS. BELPEDIO: For occupational license? MR. VENETIS: Yes. MS. BELPEDIO: When did you apply for your occupational Page 87 December 11, 2003 license? MR. VENETIS: I don't remember. MS. BELPEDIO: Okay. But it was around the same time you opened your business? MR. VENETIS: Yes, it was prior to opening the businesses. And when we received the occupational, we opened the next day. MS. BELPEDIO: I'd like permission from this Board to approach the witness. I have a document in my possession that was just faxed here from the code enforcement department. It was not made part of the package because, you know, we are rebutting the defense's evidence. I'd like to show you this document. I'll also show your attorney so he can see what we're showing you. We'd like to mark this as Exhibit -- are we on B now for the county? MS. RAWSON: They need to decide whether or not you can admit it. However, you show it to the other attorney, there's nothing wrong with your questioning this witness about it, whether or not you introduce it into evidence in the packet or not. And this is rebuttal rather than, you know, their prima facie case. MS. BELPEDIO: So I'll show it to Mr. Lenick first. MS. RAWSON: Correct. MS. BELPEDIO: Mr. Lenick, would you be stipulating that we can move this into evidence? MR. LENICK: Ordinarily I would. But it's -- what's good for the goose is good for the gander. If the Board wants to eliminate it, then you -- that's up to you. I won't stipulate it to (sic). CHAIRMAN FLEGAL: We understand, sir. Jennifer, before you -- are you trying to enter that now or -- MS. BELPEDIO: Yes, sir. CHAIRMAN FLEGAL: Okay, we need to vote on that before you do anything. MS. DUSEK: Jean? Page 88 December 11, 2003 MS. RAWSON: She can ask questions about a document and elicit oral testimony without introducing the document into evidence. If she feels that the evidence needs to be introduced into -- the document needs to be introduced into evidence first before she asks the questions, then you need to make a ruling on it. MS. DUSEK: Since it's, as was mentioned earlier, rebuttal to what has already been mentioned by Mr. Lenick or his client, does that make a difference? MS. RAWSON: It probably doesn't make a difference in terms of written evidence. It certainly makes a difference in terms of, you know, testimony and what she can ask in rebuttal of the witnesses. But you probably still have the same rules about written evidence. CHAIRMAN FLEGAL: Okay, tell us what you're trying to get us to do, Jennifer. Are you trying to get us to admit it or not? MS. BELPEDIO: It's not necessary that this document be formally entered into evidence for this Board to review. Certainly I can have him read the information. It's up to this Board to decide whether or not they believe it's credible information. MR. LENICK: I would disagree with the counsels for the Board as far as referring to a document that has not been introduced into evidence and getting indirectly into evidence which you could not get in directly. If you can't authenticate the document~ you can't authenticate it. And if they want to ask him questions that she's relying on the document but not show the document to him, I have no problem with that. But if you're having him read the document, that's a different story. MS. RAWSON: I would agree with Counsel, he can't read it. CHAIRMAN FLEGAL: If you just want to ask him questions, Jennifer, without showing him the document, can you do that? MS. BELPEDIO: Sure, sure. CHAIRMAN FLEGAL: Okay. Page 89 December 11, 2003 MS. BELPEDIO: Sir, when did you first receive -- apply for your occupational license, your first occupational license? MR. VENETIS: I can't remember the exact date. I don't -- I don't remember when we opened exactly. I think it was around Thanksgiving. And I'm going by memory so I can't exactly -- I didn't review any of my documents. MS. BELPEDIO: Is it your testimony that at every instance during the time in which you were open that you lawfully had an occupational license? MR. LENICK: Objection, calls for a legal conclusion of lawfully having -- if she wants to ask a question if he had a occupational license and when, no problem. MR. VENETIS: I can't remember when we got it. MS. BELPEDIO: Was there a day that you were open that at that point you had not applied for an occupational license? MR. VENETIS: I couldn't remember. We had five locations, we've had five openings, and I couldn't remember when we opened. But we normally open our restaurants with an occupational license. So I can't remember what contractors had signed off three years ago on exact dates without going back and looking at my records. MS. BELPEDIO: So you're saying that you normally have an occupational license from the first day that you open up your business to the public; is that true? MR. VENETIS: By law, that's what we -- MS. BELPEDIO: Right. But it's possible that you didn't? MR. VENETIS: I don't know. MS. BELPEDIO: Okay. And just for the record, what year did you open and what month? MR. VENETIS: I can't remember. It was sometime near Thanksgiving. I could be confusing it with our first location or second or third, but I did not review our records. It was sometime in '99. Page 90 December 11, 2003 MS. BELPEDIO: Thank you. CHAIRMAN FLEGAL: Are you done, Jennifer? MS. BELPEDIO: Yes, I am. CHAIRMAN FLEGAL: Okay. Sir, I have some questions. MR. VENETIS: Yes, sir. CHAIRMAN FLEGAL: As may other Board members. First question, I want a yes or no answer: Is the picture we're seeing a picture of your establishment? MR. VENETIS: Yes, sir. CHAIRMAN FLEGAL: The four windows that are shown have signs in them. Are those signs inside or outside your building? MR. VENETIS: Inside, sir. CHAIRMAN FLEGAL: Next question, yes or no: Are those signs depicted, are they neon signs? MR. VENETIS: Yes, sir. CHAIRMAN FLEGAL: Next question: Are the neon signs illuminated? MR. VENETIS: Yes, they are, sir. CHAIRMAN FLEGAL: So my next question would be, again, yes or no: You have illuminated neon signs inside your building? MR. VENETIS: Yes, sir. CHAIRMAN FLEGAL: Okay. Are these signs visible from the street? MR. VENETIS: Yes, sir. CHAIRMAN FLEGAL: Thank you. Any other questions from the Board? MS. DUSEK: I have one or two. When you applied for a permit for these signs and they said there was no application, how did you describe your signs to the county? MR. VENETIS: I said window neon signs. And I even explained what I had on them so they can better understand what Page 91 December 11, 2003 kind of sign it is. We have these in all our locations. MS. DUSEK: When they said there was no application for that kind of sign, what was their reason? MR. VENETIS: Because it was inside the establishment, and anything inside the establishment is our property. MS. DUSEK: And that's all they said? MR. VENETIS: Yes. After I -- I don't remember if it was the first time or second or third, but sometime along the three times I had gone in, that's one of the things they had told me. MS. DUSEK: They made no reference to the fact that it's not permittable because it was a neon sign that was visible? MR. VENETIS: No, they did not. MS. DUSEK: Did you tell them it was visible from the street? MR. VENETIS: I don't think if they asked me or-- I don't recall if that question was brought up. MS. DUSEK: Okay. MS. BELPEDIO: May I ask one more question? CHAIRMAN FLEGAL: Yes, ma'am. MS. BELPEDIO: This is in furtherance of your line of questions, Mr. Chairman. Sir, is it your intention that the sign be seen from the outside? MR. VENETIS: Yes, it is. MS. BELPEDIO: Thank you. CHAIRMAN FLEGAL: Any other questions from the Board members? (No response.) CHAIRMAN FLEGAL: Thank you, sir. MR. VENETIS: Thank you. MR. LENICK: I just want to get it established on the record, Mr. Kautsky being the landlord, could you (sic) just ask a couple of questions. I want to establish that he is the landlord and that he is not in the possessory interest to the property. Page 92 December 11, 2003 (Speaker was duly sworn.) MR. LENICK: Sir, are you the owner-- would you state your name for the record. MR. KAUTSKY: I'm Norman E. Kautsky. MR. LENICK: Are you the owner of the property? MR. KAUTSKY: Owner of the -- well, my living trust is. MR. LENICK: Okay. And with regard to this property in the Leoni's Pizzeria, is that a leased property to Leoni's Pizza? MR. KAUTSKY: That's right. MR. LENICK: And so the possessor of the property is Leoni's Pizza? MR. KAUTSKY: That's true. MR. LENICK: So you, by your relationship, have no right to go into that property and take these signs down, even if you wanted to? MR. KAUTSKY: Well, being the landlord, I can't go inside the building. I mean, when it's locked. I can go in when it's open only. MR. LENICK: You, in your relationship, leaseholder relationship, do you have any right to go inside the building and take down those signs? MR. KAUTSKY: No, not as long as he pay his rent, and he always pays it five days in advance. MR. LENICK: No further questions. MR. KAUTSKY: And 20-year lease. CHAIRMAN FLEGAL: Jennifer, do you have any questions? MS. BELPEDIO: Sir, you have no provision in your lease that states that the tenant is responsible -- MR. KAUTSKY: No. MR. LENICK: -- for any violation? MR. KAUTSKY: No. MS. BELPEDIO: Okay. That's it. MR. LENICK: I rest. Page 93 December 11, 2003 CHAIRMAN FLEGAL: Not done, sir. We may have some questions. MR. BOWIE: One question. Do you have any provision in your lease with this tenant that makes the tenant responsible for compliance with all applicable laws and ordinances? MR. KAUTSKY: No, I don't. MR. BOWIE: You have no such provision? MR. KAUTSKY: The only thing I got is if he don't pay his rent, I can kick him out. Which, when this all first started, the first inspector, not this inspector, says, just throw him out, says just get rid of him. And they kept harassing me almost every day, they kept calling my house. MR. BOWIE: Your lease with the tenant simply states that as long as he pays his rent he gets to stay and it has no other provisions in it than that? MR. KAUTSKY: Uh-huh. CHAIRMAN FLEGAL: Any other questions from Board members? (No response.) CHAIRMAN FLEGAL: Thank you, sir. MR. LENICK: I just wanted to cover that one at -- how many times did this -- did the code enforcement officer ask you to kick him out because he wouldn't take down the sign? MR. KAUTSKY: Two or three times. The first man, not this man. MR. LENICK: Not this man, but the other one. MR. KAUTSKY: No, not this man. First time I come in contact with him was a year ago, I just got out from having open heart surgery and I talked to him on the phone. And today is the first time I talked to him. MR. LENICK: Thank you. No further questions. MS. DUSEK: I have a question. Page 94 December 11, 2003 MR. KAUTSKY: Uh-huh. MS. DUSEK: Did -- when you knew that there was a violation by your tenant to your property that you own, did you confront him about correcting that violation? MR. KAUTSKY: I just told him that I got it and then I started dealing with his lawyer. MS. DUSEK: You never did ask him to correct it? MR. KAUTSKY: No. I can't, you know, that I know of. CHAIRMAN FLEGAL: Any further questions? (No response.) CHAIRMAN FLEGAL: Thank you, sir. MR. KAUTSKY: Uh-huh. MR. LENICK: That's it. arguments, if I could. CHAIRMAN FLEGAL: And I'd just like to have closing Cherie', you okay? Let's take five minutes, please. It's 20 after, come back at 25 after. (A brief recess was taken.) CHAIRMAN FLEGAL: All right, we'll call us back to order, please. Any closing statements, Jennifer, from the county? MS. BELPEDIO: Jennifer Belpedio, Assistant County Attorney. The county stands by its position that a violation does exist. The evidence did show you that there is a violation of LDC Section 2.5.7.30. You heard testimony from Mr. Venetis who stated yes, this is an illuminated sign. Yes, it's installed inside the business. Yes, we intend it to be seen from the outside. That's direct testimony from the person who put up the sign. That is the evidence that's necessary for you to find a violation. Mr. Venetis also stated when he went to the county to get an application for his permit that he told the county that the sign that he would be permitting was inside the building. I think the evidence is Page 95 December 11, 2003 clear that he did say that. He may have said that. He may have been to the county three times. However, he said inside the building. Certainly signs that are inside the building that are not seen from the outside are not required to be permitted. That is not the case in this sign. This is an inside sign intended to be seen. It's a neon sign, prohibited by 2.5.7.30. In regard to Mr. Lenick's nonconforming argument, I submit to you that this is not a nonconforming sign, not a legally nonconforming sign. There is no evidence presented that this sign was ever lawful, that there was ever an opportunity for Mr. Venetis to come to the county and obtain a permit. In regard to Mr. Lenick's arguments that the ordinances are not lawfully enacted, Mr. Lenick has not presented any argument or documentation to support that they were not lawfully enacted. I think for the foregoing reasons, this Board should find a violation and follow the recommendation of code enforcement staff. Thank you. MR. LENICK: With regard to the constitution of due process, I think the county would agree, and maybe we can get them on the record, that those are things that are within the jurisdiction of the court, not within this Board. They were just being brought up for the issues to be raised, and in fact is not -- when I attack-- to attack an ordinance on its face, I'm not required to present anything through this Board because this Board doesn't make a determination. But the key issue in this case is the defense of non-conformity. Yes, the signs are there. Yes, you can see it from the outside. Yes, you can see all of that. But when did they go up? They went up in either '99, around '99, about the year prior to the adoption of 2000-08. Now, the provision that says illuminated signs, neon or otherwise, installed inside businesses and intended to be seen from the outside, that that is expressly prohibited, occurred in January 28th Page 96 December 11, 2003 of 2000. 2000. That provision, which went to the sec -- which was signed by the Clerk on the 28th day of January, explains why when he went down to ask for a permit prior to that date he was not given one, because there was not this prohibition until that date. He put them up prior to that date. There's no requirement for a permit prior to that date. There is none that is required for him to get. He is lawful at the time that this ordinance came into effect. Anything that conforms prior to an ordinance that an ordinance makes nonconforming, it becomes supposedly nonconforming. You heard from the officer, had he been lawful, he says, permitted, because he thought it needed to be permitted, but there's no evidence whatsoever in the evidence you have that it doesn't require it. May I approach the Board and show them the law that was adopted, and the particular sentence? It is law, so what I would like to do is can I at least put this in and give it to the clerk? So the argument is, by the Code Enforcement Board's officer's own words, if it's permitted, lawful, he wouldn't cite him, prior to that time. You know that that provision was put in, because it's underlined. And he is a nonconforming use and was lawful at the time that that ordinance came into effect, and therefore continued to be lawful as nonconforming. That is 2000 -- may I introduce that ordinance into evidence? It's somewhat befuddled because it fell into some water, my whole file. MS. BARNETT: Could we at least see it on the overhead so that we know what we're talking about? CHAIRMAN FLEGAL: Jean? MS. RAWSON: Because it's a statute and not really evidence, I mean, you can argue statutes without putting them into evidence. I don't think you can read that if he puts it up there. How long is it? Page 97 December 11, 2003 MS. ARNOLD: MR. LENICK: the signs went up. MS. RAWSON: It's just the same section that's cited. It's what was cited. And that was adopted after Well, one of the statutes is already in your packet. CHAIRMAN FLEGAL: That one is. That's the item that he's cited for. MS. RAWSON: If that the one he's attempting to put in evidence, that's fine. You've already got it. CHAIRMAN FLEGAL: It's already in. I mean, the county put it in. MR. LENICK: That's why the nonconforming defense was so important. CHAIRMAN FLEGAL: MR. LENICK: That's it. CHAIRMAN FLEGAL: That's it, sir? You're done? Very good. And I'll close the public hearings and the Board will make a determination. The Board is reminded, the only thing you consider is the evidence, which is limited to Exhibit A in the testimony of the three gentlemen. Beyond that, we can consider nothing from either attorney or from anyone else. The three gentleman that gave the evidence is what you must consider. MS. DUSEK: Jean, I have a question for you. For the respondents' names, we're putting Doughboy Pizza Number Two. Do we have to specify Mr. Venetis? MS. RAWSON: No, you don't, because apparently it's a-- it's a corporation. MS. DUSEK: Okay. In the case of the Board of County Commissioners versus Norman E. and Patricia J. Kautsky Trust, and Doughboy Pizza, Two, Incorporated, d/b/a Leoni's Pizza, in the case CEB No. 2003-046, I make a motion that there is a violation. The violation is of Section 2.7 -- 2.5.7.30 of Ordinance No. 91-102, as Page 98 December 11, 2003 amended, of the Collier County Land Development Code. The description of the violation: Illuminated sign, neon or otherwise, installed inside a business and intended to be seen from the outside. CHAIRMAN FLEGAL: We have a motion that in fact a violation exists. Do I hear a second? MR. BOWIE: Second. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? (No response.) CHAIRMAN FLEGAL: Hearing none, all those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Those opposed? (No response.) CHAIRMAN FLEGAL: Unanimous. Order of the Board. MS. BARNETT: I was looking at the CEB order, and kind of going along with the way the day has gone, we fine somebody $30 a day for something, and here we're fining someone $75 per day. I think it's a little excessive for the situation that this is not causing anybody any harm or hazard, that -- there may be a question that I can't foresee. But I don't mind the general recommendation, but I think the fine's a little high. CHAIRMAN FLEGAL: Okay. MS. BARNETT: I mean, it hasn't been made yet as a motion, but I just thought I'd throw that out before we made a motion. CHAIRMAN FLEGAL: The only thing I would caution any of us to do is not to compare one violation to another violation, regardless of what it is. You should compare -- always compare apples and apples. MS. BARNETT: Well, I haven't had a previous sign ordinance Page 99 December 11, 2003 in front of me. CHAIRMAN FLEGAL: I understand, that's why I caution. What we did before was somebody filling out a piece of paper, which is real easy, very limited. Here -- MS. BARNETT: It's unplugging a sign. CHAIRMAN FLEGAL: Right, and taking it down or whatever. So I just caution us that we should not try to compare one case with another unless they're identical. MR. PONTE: Okay. Even taking that into consideration, I think that the fine of $75 a day is high. And I think that we should consider something considerably less. CHAIRMAN FLEGAL: I'm not going to argue that point. I just want us cautioned that we shouldn't compare cases, unless they're identical. MS. DUSEK: I'll make a motion that the CEB order the respondent to pay all operational costs incurred in the prosecution of this case and abate all violations by relocating the illuminated signs so that they are not visible from the outside, or remove the signs within seven days from the date of this hearing, or a fine of $50 per day will be imposed for each day the violation continues. The respondent must notify code enforcement that the violation has been abated and to request the investigator to come out and perform the site inspection. CHAIRMAN FLEGAL: One question for Jean. Since we use singular respondent, do we need to say respondents? MS. RAWSON: Correct, we do. CHAIRMAN FLEGAL: Plural, okay. MS. DUSEK: I amend. CHAIRMAN FLEGAL: Okay, thank you. We have a motion on the floor. MR. PONTE: I'll second the motion. CHAIRMAN FLEGAL: We have a motion and a second. Any Page 1 O0 December 11, 2003 further discussion? MS. BARNETT: I would like to see the fine dropped to $35 a day, rather than 50. Just on my personal preference. MS. DUSEK: I choose to keep it at the $50 mark. CHAIRMAN FLEGAL: Okay. The original motion is maintained at 50 and the second remains. Any further questions? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. RAMSEY: Aye. CHAIRMAN FLEGAL: MR. BOWIE: Aye. CHAIRMAN FLEGAL: MS. BARNETT: Nay. CHAIRMAN FLEGAL: That's it, gentlemen. Aye. Any opposed? Okay, 6-1. MR. LENICK: Mr. Chairman, may I ask-- make a motion with regard to this particular matter? There is a requirement by law if we take it further, we'll make that decision shortly, that we come to you to move for a stay in the execution of the order. Obviously we have 30 days in which to make an appeal. If we decide to make an appeal on this, we'll be going at this full board and obviously it's going to cost more than the $35 a day, as stated by the Board. Nobody's getting hurt by this. What I would ask is if we file an appeal -- decided to file an appeal, that the stay be granted from the day of the seven days. It's Christmastime, I'm on vacation after seven days and obviously nothing will get filed. But something will get filed if at any before Page 101 December 11, 2003 the 30 days. If we don't file within the 30 days, then obviously we'll have to pay the fine. But I guess what I'm saying is, if we file an appeal, that the matter would be stayed. If we don't file an appeal, then the matter would not be stayed. CHAIRMAN FLEGAL: Jean, what are our rules on that? MS. RAWSON: He's got seven days. He can't get back here within the seven days to ask you to continue the fines. And so I guess since it's a seven-day thing -- I don't know, you can't make a ruling on something that hasn't happened yet. He would just have to come back and ask you to abate the fines. MR. LENICK: Well, I can tell you this, if we believe -- if we go to court, that they're going to stay up. And so -- and I have to ask you for a motion to stay, and it seems silly to come back here -- CHAIRMAN FLEGAL: We have to take the advice of our attorney, sir, and she said something that hasn't been submitted we can rule on, so -- MR. LENICK: Well, we've moved -- I'm moving right now to ask you for a stay. If you want to deny it, please deny it, or if you want to grant it, please grant it. But I need -- I would like to have a decision. MS. DUSEK: Do you understand that you -- your client can come back afterwards and ask for a reduction or an abatement? MR. LENICK: Yes, but you don't under -- to be honest with you, this ain't about little Leoni's Pizza sign, this is about the entire system and the order. CHAIRMAN FLEGAL: Which we don't want to do. MR. LENICK: What I'm trying to say is before I can go into court to ask for a stay from the court, I have to ask the original jurisdiction for the stay, and I'm asking you now to avoid having to come back in a process where the seven days has already passed. This is not about the little sign, to be honest with you. So I'm Page 102 December 11, 2003 asking you to make a motion to do that, and it can be granted or denied. MS. DUSEK: Jean? MS. RAWSON: I still don't know how you can act on it, because an appeal has not yet been filed. Actually, an order has not yet been written. CHAIRMAN FLEGAL: Right. Jean, under our Article 9 hearings, Item O, where it talks about an aggrieved party may file -- may appeal a final order, which we've just now given and it hasn't been sent. But filing an appeal shall not stay the Board's order. So filing the appeal isn't going to stay our order. As far as I'm concerned, we're not going to stay our own order. Who wants to make a motion? If nobody, I will make it myself. I make a motion we deny the request for a stay. MR. LEFEBVRE: Second. CHAIRMAN FLEGAL: Any further discussion? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. new (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: All right, cases are over. We're now to business. Request for impositions of fine. MS. ARNOLD: Okay. For the record, Michelle Arnold, Code Enforcement Director. The first item on your agenda is Case No. 2003-022, the Board of County Commissioners versus Higginbotham-- Dixie Higginbotham. We do have a representative from the bank here today, Laura Carbo? Page 103 December 11, 2003 MS. CARBO: Yes, that's correct. MS. ARNOLD: She's representing Bank One, right? MS. CARBO: That's correct. MS. ARNOLD: Who is, I believe, foreclosing on the property in question. MS. CARBO: Has received a final judgment for -- MS. ARNOLD: Okay. I wasn't sure. If you want to give her an opportunity to speak before I go through my whole rigmarole? CHAIRMAN FLEGAL: Sure, why not. (Speaker was duly sworn.) MS. CARBO: Good afternoon, ladies and gentlemen. My name is Laura Carbo. I'm with the law firm of Marshal Watson in Fort Lauderdale and we represent Bank One, who is the mortgage holder of the premises, 1910 Della Drive, technically still owned by Ms. Higginbotham at this time. There was a final judgment of foreclosure that was entered on the property on September 2nd of 2003. A foreclosure sale was held on September 30th, 2003. But certificate of title has not issued, due to the fact that Ms. Higginbotham has raised an issue concerning service. We have a hearing scheduled on that issue in the court before the Honorable Brousseau on December 22nd. It is my opinion that the service will be upheld, the foreclosure will be upheld, and that the certificate of title will issue. Of course that determination has to be made by the judge. I'm here on behalf of my client to request additional time, due to the fact that my client has not been able to even take any action to make compliance, due to the fact that they have not been put into possession of the property. Ms. Higginbotham still -- I believe still resides on the property. Since the title has not issued, we have not been able to take any action to evict her. And that is the purpose of my appearance here today, to explain Page 104 December 11, 2003 the situation and to request additional time for my client to be able to move to comply with this Board's direction. CHAIRMAN FLEGAL: Okay, thank you. Anybody have any questions? I mean, I don't. MR. PONTE: How much time are we asking for? MS. CARBO: If the hearing -- if we are awarded an order directing the certificate of title to issue on the 22nd of December, it would be 10 days until we get title, and then we'll need additional time after that to take whatever action necessary towards compliance. So I'm looking possibly for two months, or whatever is in the discretion of the Board. I could always return at a later date and give you an update, if that's what you would prefer. MS. ARNOLD: Well, the matter before the Board is imposition of fines. And I think what you're really asking for is a modification to the order or the compliance portion of the order. What we're doing now is imposing fines for failure to abate, as ordered by the Board's order. What you could do is come back when you have possession and have compliance and ask for an abatement of the fines, since you were not the ones that caused the violation. But that's -- CHAIRMAN FLEGAL: I have no questions. Anybody else have any questions? I need to ask Jean a question, so -- anybody have any questions for the lady? (No response.) CHAIRMAN FLEGAL: Thank you, ma'am. MS. CARBO: Thank you. CHAIRMAN FLEGAL: Jean, we went to impose these fines previously back in October, I guess, and we got a request not to impose the fines because they were trying to do certain things. Now we understand that foreclosure has already taken place and title is about to pass to somebody else, and we didn't impose the fines then. I think to protect the county, it behooves us to impose these Page 105 December 11, 2003 fines. It may already be too late, because we -- we're trying to, I guess, be nice. Am I understanding the process correctly? MS. RAWSON: Well, there was an order entered in May that said if you don't come into compliance by a certain date, fines will start. You have not yet ever imposed those fines. CHAIRMAN FLEGAL: Right. That's my problem, because we were trying to be, in October, polite and not impose the fines, giving them more time. Which now, since they are not imposed, there is no method or process to obtain this money until we actually impose something. Am I correct? MS. RAWSON: That's correct. CHAIRMAN FLEGAL: Okay. MS. DUSEK: But now that they -- they've sold the property. CHAIRMAN FLEGAL: Well, title hasn't changed yet. MR. BOWIE: You haven't got the certificate of title yet. MS. DUSEK: I know title hasn't changed. So if we impose the fines today -- CHAIRMAN FLEGAL: And we get it. MS. DUSEK: -- and they still -- they're clearing up the title, the fines will go with the title that's being cleared up. CHAIRMAN FLEGAL: Correct. MS. RAWSON: Yes, they run with the land. MS. DUSEK: Okay. CHAIRMAN FLEGAL: That's why I hate people not imposing fines. You get trapped in this. Okay. We have a request from the county to impose the fines. Do I hear a motion to impose the fines? MS. BARNETT: So moved. MS. DUSEK: Second. CHAIRMAN FLEGAL: We have a second -- a motion and a second, I'm sorry, to impose the fines as requested by the county. Any further comment? Page 106 December 11, 2003 (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Michelle? MS. ARNOLD: Okay. The next item is Code Enforcement Board Case 2003-035, the Board of County Commissioners versus Barbara Galloway. This case was heard by the Board on August 28th, and at that time the Board found the respondent in violation for the placement of a mobile home without obtaining authorized building permits. The Board ordered compliance by September 23rd, and we are at this time requesting that the Board impose fines in the amount of $7,300 for a period of September 28th, 2003 through December 1 lth, 2003 for noncompliance, with a continued accrual of that violation until it's corrected. And the total amount of $1,202.25 for operational costs. So that's a total of $8,502.25. CHAIRMAN FLEGAL: Do I hear a motion to impose? MR. PONTE: I'll make a motion to impose. MS. BARNETT: Second. CHAIRMAN FLEGAL: We have a motion and a second to impose fines as requested. Any further discussion? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying Commissioners versus Van Elway Enterprise, Incorporated. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Any opposed? (No response.) MS. ARNOLD: The next case is 2003-039, Board of County This Page 107 December 11, 2003 case was heard by the Board on October 23rd, at which time a violation was found for excessive weeds and vegetation overgrowth. The respondent is not in compliance, so we're at this time requesting that the Board impose fines of $850 for a period between November 24th, 2003 to December 1 lth, 2003, with the fines continuing until the violation's abated. And an additional $1,000.25 -- $1,025.60 for operational costs, for a total of-- no, that's -- is that right? No, that's the total. Is that right? For a total of $1,875.60. Is that correct? CHAIRMAN FLEGAL: Uh-huh. That's what I'm reading. Okay, we have a request for the county to impose fines on Van Elway Enterprises. MR. RAMSEY: I make a motion that we impose fines as recommended. MR. PONTE: Second. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Those opposed? (No response.) MS. ARNOLD: Okay, the next item, 2003-042, is Board of County Commissioners versus Ponce Realty Company. And this case was heard by the Board on October 23rd of this year for violations to their required landscaping, not maintaining them. And a violation was found at that time, and the respondent was ordered to abate by November 12th. The respondent has not abated the violation as ordered, so we are at this time requesting the Board impose a fine of $4,200 for a period between November 13th to December 1 lth, and operational Page 108 December 11, 2003 costs of $1,156.50, for a total of $5,356.50. CHAIRMAN FLEGAL: We have a request from the county to impose the fines against Ponce Realty Company. MS. BARNETT: So moved. MR. LEFEBVRE: Second. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: imposition of fines. MS. ARNOLD: Correct. CHAIRMAN FLEGAL: to be forwarded to the county. Okay, that finishes requests for There are no abatements, no -- nothing We have a request for an extension of time. MS. ARNOLD: Yes. This is Case No. 2003-034. Mrs. Motwani is in the courtroom, and her husband is requesting an extension. We have provided you the letter requesting that extension. We also have provided you information from the county's review staff for the building permit in question to come into compliance, indicating that the application is insufficient. And we did check today and that still is the case. It's still not complete and submittals have not been obtained. CHAIRMAN FLEGAL: What is this, another item, Michelle? I find our order, a letter from the -- MS. ARNOLD: Yeah, there should be a document that has Collier County Government, dated November 5th. CHAIRMAN FLEGAL: Right. Page 109 December 11, 2003 MS. ARNOLD: That's the -- CHAIRMAN FLEGAL: Okay, I have that one. MS. ARNOLD: -- response from the county for the permit. CHAIRMAN FLEGAL: Oh, okay. MS. ARNOLD: I think Ms. Motwani wanted to speak on that. CHAIRMAN FLEGAL: Oh, okay. Very good. Ma'am, come forward, please. (Speaker was duly sworn.) CHAIRMAN FLEGAL: Yes, ma'am. You better pull her mic. down a little bit, please. Thank you. MS. MOTWANI: My husband called me and he talked to Caribbean Fire (phonetic), and they said they have submitted the drawings Wednesday. But I don't know whether it was yesterday or last Wednesday. I forgot to ask him what date. But -- and he said the flow test has been done. That's what I know, because he's handling all the cases. I don't know. According to them, it's done, so CHAIRMAN FLEGAL: Okay. MS. MOTWANI: And he like to have it, the extension, for at least 60 days. CHAIRMAN FLEGAL: Anyone have any questions for Ms. Motwani? (No response.) CHAIRMAN FLEGAL: Thank you for the information, ma'am. MS. MOTWANI: Thank you. MS. DUSEK: Michelle, did we give an extension prior to this for Mr. Motwani? MS. ARNOLD: Shannelle's told me no, you haven't. MS. BARNETT: Originally I think what had happened is when we first heard the case, it was extended before we heard it and moved MS. ARNOLD: Right. Page 110 December 11, 2003 MS. BARNETT: -- moved forward and then we heard the case. So that was where the one extension was, we moved it that way. MS. ARNOLD: You're right. CHAIRMAN FLEGAL: Yeah, we set it back roughly 30 days, then we heard it and we gave him 90 days in the order. And now we're at -- that was September, September to October or November, to roughly December. We gave him till December 24th, and now he's asking us for an additional 60 to 90 days. It says the flow test -- or at least she told us the flow test has taken place. MS. BARNETT: There's still several items missing, though, that need to be done. CHAIRMAN FLEGAL: I guess it appears that some progress is being made, things are being accomplished, so I guess I really don't have a problem in maybe a 60-day extension. Beyond that, I'm probably not too excited right now. MR. PONTE: Cliff, let me just mention this letter -- MR. BOWIE: Are we being told that the -- MR. PONTE: Excuse me, excuse me. The letter from the county says this submittal is woefully incomplete, which means it might take longer to correct the whole situation. MR. RAMSEY: Well, just to your point. This letter is dated November 5th, and Mrs. Motwani just told us that plans have been submitted on Wednesday, either this -- yesterday or the Wednesday before, so something obviously has happened since the 5th. And a flow test has been done, so that may take care of some of the requirements in this letter. So I think I'm in agreement with Cliff that I don't mind -- MR. PONTE: You think 60 days? MR. RAMSEY: A 60-day period. Not any longer than that. MS. ARNOLD: We checked this morning, and according to the -- Mrs. Janet Hasso, they have not received anything. Page 111 December 11, 2003 MS. BARNETT: I personally have a little bit of a problem. I realize that they're having an issue with getting things done, but in this particular case we have given them an awful lot of time and leeway. And I don't want to say that I -- I want to see them bring this in compliance is what I want to say, and I keep thinking that they're playing us. In one respect is they keep asking for extensions in one form or another. Because first we had to put off the hearing initially because he was not able to get back into town. And we did that. That gave him 30 days to get some things corrected. And until we actually ruled, they didn't make a whole lot of moves forward. And now we're seeing them make some every time but I'm not sure -- MR. PONTE: It's fast enough. MS. BARNETT: -- it's a whole lot of effort. It's just a point. CHAIRMAN FLEGAL: Okay. What about -- I'll throw out a different scenario. I understand where you're coming from, and I can accept that. He has till the -- our order states no fine kicks in until the 24th of this month. He always has the right to come back at, say, our next meeting which is in January, and say based on the following, and if he could prove to us that he's submitted certain things to the county on certain dates and it's their problem, not his, maybe we could help him. Maybe the best thing to do is if everyone's more comfortable, to deny the request and let him come back and actually give firm proof that he has submitted something to the county so that we can see yes, he did make this concerted effort and it's out of his hands. Would that be more comfortable? MR. PONTE: Uh-huh. CHAIRMAN FLEGAL: So you've got-- MS. BARNETT: I make a motion that -- CHAIRMAN FLEGAL: -- two items, pick one. MS. BARNETT: I make a motion that we deny this request. MR. LEFEBVRE: I second it. Page 112 December 11, 2003 CHAIRMAN FLEGAL: Okay, I'm sorry, I coughed and I think MR. LEFEBVRE: Second. CHAIRMAN FLEGAL: We got a second. Okay, we have a motion and a second to deny the request. Any further discussion? MR. BOWIE: Have the respondents been made aware that their engineering contractor is not properly licensed? MS. ARNOLD: Yes, I spoke to him this morning. Mr. Motwani called him to verify some of the information, and he indicated that that has been corrected, that the problem was the county checked the Intemet and sometimes that documentation is not updated. So he indicated to me this morning that he thought that all was corrected. MR. BOWIE: We don't want them spending a whole lot of time providing documents from unlicensed parties. MS. ARNOLD: Right, right. CHAIRMAN FLEGAL: Okay. Any further questions? (No response.) CHAIRMAN FLEGAL: All right, all those in favor, signify by saying aye. (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Those opposed? (No response.) CHAIRMAN FLEGAL: Okay, ma'am. No extension of time. What we would like you to do is proceed diligently -- and I understand with the holidays coming that's probably hard to do. But get as much information to the county as you can and keep a record of what you're doing so that next month when we meet, and off the top of my head, I don't remember the date, but the county can give it to you. It's probably -- MS. ARNOLD: January 22nd. CHAIRMAN FLEGAL: -- the 22nd, am I right? Page 113 December 11, 2003 MS. ARNOLD: Yes. CHAIRMAN FLEGAL: That's when we would meet again. You could come back at that time and show us proof that you submitted this and this and this to the county, okay? And then we might be willing to do something, okay? But you need to show us some hard facts that you've actually done something, okay? Thank you, ma'am. That's all the new business. Old business, there are no affidavits of compliance. Affidavits of non-compliance? MS. ARNOLD: Okay, we have an affidavit of non-compliance for Case No. 2003-035, which is Barbara Galloway, for which we also did imposition of fines today. We've also filed an affidavit of non-compliance for 2003-039, which is the Van Elway Enterprises, Incorporated. And we filed an affidavit of non-compliance for 2003-042, which is Ponce Realty Company. CHAIRMAN FLEGAL: Okay. That concludes old business. There are no reports. MR. PONTE: I have just one item, one question under old business. CHAIRMAN FLEGAL: Okay. MR. PONTE: And that is in the meeting of October 23, it was decided, there was a vote and seconded, to reconsider the fining mechanisms or the range of fines that had been adopted in the prior meeting, and it was decided that that would come up again at another meeting. It wasn't on the agenda last time and it's not on the agenda, obviously, today. So my question is, what's happened to that motion? MS. ARNOLD: We can add it to the agenda. But I don't know if you want to add it -- CHAIRMAN FLEGAL: Well, I asked Jean the question, in our rules and regulations we state we'll follow Roberts Rules of Order. Page 114 December 11, 2003 Unfortunately, in Roberts Rules of Order, to reconsider an item, the request to reconsider has two caveats, I guess, or two requirements. The request to reconsider must be made by the -- I can't remember the exact word; I have to look it up. The party that -- MR. BOWIE: Someone who voted against. CHAIRMAN FLEGAL: No, by the party that -- MS. RAWSON: Approved it. CHAIRMAN FLEGAL: -- approved it. Whether it was the ayes or the nays, whichever side won, they are the ones that have to make the motion to reconsider. The second leg of that is that request to reconsider must be made at the same meeting. It cannot be made later. In other words, you can't, I guess the way they calculated Roberts Rules of Order, you can't lose a fight today so then next month when you get all new members of the board you vote to reconsider and then vote it in. That's -- Roberts Rules of Order say you can't do that. So -- MS. DUSEK: To the second part of that, if you did not have information in front of you prior to the voting of that, I wonder if that has anything to do with it. CHAIRMAN FLEGAL: That I didn't-- MS. DUSEK: Because I did not have that information that day that we voted on it. I obviously made the motion to reconsider, I voted against it. So the first part of Roberts Rules I can understand, but the second part, I'm a little concerned about. CHAIRMAN FLEGAL: In reading it, it doesn't say if you didn't have any information you get the right to go against the above. It just says if you're going to reconsider, here's the two things you have to do. The winning side has to be the one to ask for the request, and item two, you have to ask for the request the same day. MR. BOWIE: I believe that's true. CHAIRMAN FLEGAL: I spent a lot of time reading it to try and ferret it out. And I called Jean and asked her. It's Article 9, Page 115 December 11, 2003 Section 36, and in my little book of Roberts Rules of Order it's Page 109. I read it many times to make sure I knew what I was talking about. MR. RAMSEY: I believe, Cliff, that if there's some reason why you believe you can't vote, then you have to ask for a remedy at that point, either an extension of time or some method to extend the vote. And then if that's denied, then the remedy is that that was denied improperly, not a reconsideration, is my understanding. CHAIRMAN FLEGAL: So we -- I mean, we had a quorum of the Board, the vote was taken, it was 4-2. The fact that we -- I say we collectively as a board. Whether we did or didn't like what happened, I'm just telling you what Roberts Rules say. And that's what we agreed to run our business by. MR. PONTE: On another matter, and the last one -- and I guess this comes up because of my absence on October 23rd -- there was talk of the Attorney General's opinion that we could not revise fines or reduce them, that it was not -- MS. RAWSON: Once they've been recorded. MR. PONTE: Okay. So that -- all right. So that today, for example, we had several instances where we said, all right, come back here and we'll reduce the fines. That's because the fine had not been recorded; is that correct, that's the difference? MS. RAWSON: No, that's probably -- in some instances that may be the case. As soon as we get these orders signed, they get recorded immediately. So in almost all instances when people come back to you and ask you to reduce their fines, in fact their order has been recorded. MR. PONTE: So what we were doing today, we really were on thin ice telling a couple of people that you can come back. MS. RAWSON: Well, I don't know whether you're on thin ice or not. It's an Attorney General's opinion, which you may or may not choose to follow. Obviously we have not followed it in the past. Page 116 December 11, 2003 MR. PONTE: So is it the Board's position that that's -- MS. RAWSON:- I don't think we had a vote. CHAIRMAN FLEGAL: We didn't vote to or not to follow the Attorney General's position. We just discussed it. And more or less I think we asked Jennifer or Jean to maybe try to get another opinion from the attorneys. MR. BOWIE: We don't like that one, we'll try to get a different one. CHAIRMAN FLEGAL: It's a new Attorney General, so maybe we can get a different opinion. And I think that's where we went at that time. MS. ARNOLD: A clarification of the opinion. CHAIRMAN FLEGAL: Right. MS. BELPEDIO: My recollection of the opinion was that if the order imposing the fines was recorded, then this Board did not have the authority to reduce the amount. But the order finding the violations is not the order that I recall the Attorney General speaking about. So there may be some instances where there are persons that come in for reductions where the order hasn't been recorded. From what I recall. But I can certainly get the -- bring the opinion back in and can elaborate. CHAIRMAN FLEGAL: But we can still -- yeah, and it only deals with the word fine. And I spoke with Jean, we must separate -- in our order we impose prosecutorial or operational costs and a fine. We don't have the right, even under the statute, to reduce the prosecutorial or operational part of it. It only applies to the fine if we're going to reduce anything. So everything is not, quote, a fine. They are very specific in the statutes, one is different than the other. But we can change the time, we can extend the time. We can't -- I guess we could reduce it if we wanted to. I didn't see any provision where we couldn't reduce time. But normally by the time we meet, it's -- people are asking for Page 117 December 11, 2003 extensions, not reductions. MS. BELPEDIO: And what I believe was also discussed is at what point the county would record the order. Because there's nothing that requires it to be immediately recorded, and that's something that can be played with. CHAIRMAN FLEGAL: Right. The only thing that doesn't happen is when you -- if you don't record it and like the foreclosure that just took place on this case, if there's nothing in the court, the county's in trouble because they have no way to start attaching that piece of property. So you're caught, which I think everything should be recorded immediately, personally. MS. BELPEDIO: I agree that that is sometimes possible in cases, yes. CHAIRMAN FLEGAL: Because we're in a position that we had changed a few years ago right under the -- I guess the IRS and the tax collector. We've moved up to a primary position, so we're ahead of any mortgage holder. But until we file that, we don't have that position. And it's important for us to get the county that position. MS. BARNETT: So is the direction -- just for my own clarification -- of this Board going to be that we're going to allow people to come in and possibly abate fines or not? Because if we follow the Attorney General's suggestion, legally he doesn't want us to abate them if it's been recorded. And because we generally record ASAP, that leaves us with our hands tied. So whenever we are telling people that they can come back and we will look to abate possibly, we're misleading them. MS. DUSEK: I have a copy which I -- MR. BOWIE: Do you have a copy of that letter? MS. DUSEK: I have a copy from the Attorney General's Office of the opinion, which was given to me in October. It is not the present Attorney General, but it is the most recent. And it's open for Page 118 December 11, 2003 interpretation. Because in one part, it will say -- actually, this last part says the amendments made in 1994 address a problem pointed out to Attorney General, Florida, 1993. That opinion concluded, based on the language of Section 162.09, Florida Statute 1993, that a city council had no authority to reduce a fine imposed by a municipal code enforcement board. Rather, it was the code enforcement that possessed the authority to reduce such a fine and execute a satisfaction or release of fines. MS. BARNETT: Well, to me that's saying that -- MR. BOWIE: That we do. MS. BARNETT: -- we have the right to do it, but somebody else within our county doesn't have the right to do it. MS. DUSEK: But as you read through this opinion, it goes back and forth. So -- MR. BOWIE: They all do. MS. DUSEK: But this was the most recent that was -- when I called Tallahassee in October after our meeting, this was the opinion that they sent to me. MR. BOWIE: I wonder if it's a proper practice then to record an amended order and be within this opinion? MS. DUSEK: I don't know. But also, I guess all of the Board members know that when this is submitted to the Board of County Commissioners, you have the right to go before the County Commissioners to express your opinion. And of course you all know how strongly I feel about not raising the fines. And I hope that there will be others. CHAIRMAN FLEGAL: You lost me on that. Wait a minute. MS. DUSEK: Well, this, I-- CHAIRMAN FLEGAL: You changed gears on me there. MR. BOWIE: Just like an Attorney General's opinion. MS. DUSEK: No, I went from one subject to another. CHAIRMAN FLEGAL: We were all following real good, then Page 119 December 11, 2003 all of a sudden she just -- before the Commissioners -- I'm saying, wait a minute. MS. DUSEK: Well, I had to switch strings, because I -- Roberts Rules of Order didn't allow me to do what I did, so I had to express it once again. CHAIRMAN FLEGAL: Okay, there's an item under comments about a Sunshine Workshop. MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Michelle, did we not have one of these? MS. ARNOLD: Yes. And that's for the new Board members. You all had-- we had a workshop specifically with the County Attorney's Office on this issue, but for those board members that weren't in office at the time, we're recommending that -- CHAIRMAN FLEGAL: This is for new members only. MS. ARNOLD: Yeah, we recommend that they try to attend that meeting. MR. LEFEBVRE: Where is that going to be held? MS. ARNOLD: It's going to be held in this room. MS. BARNETT: So it's not mandatory, is it? MS. ARNOLD: No, it's from-- CHAIRMAN FLEGAL: It's just for the -- MS. ARNOLD: -- 2:00 to 3:30. MS. RAWSON: Actually, they weren't all at the library that MS. ARNOLD: No. MS. RAWSON: And so those of them who weren't at the library that day and haven't been to one of our workshops probably should go. CHAIRMAN FLEGAL: What you might do, Michelle, is when you get back, look up who was at the workshop. And those that weren't, see if Shannelle could get to those other people today. Page 120 December 11, 2003 MS. RAWSON: Cherie' can tell you right now. CHAIRMAN FLEGAL: Okay. Good. MS. ARNOLD: Also, if I can -- just -- I did receive a couple letters from the County Commissioners' office for board members whose terms are expiring this February. Just want to remind you all to get your responses back in. Hopefully it's to continue your position with the board. And let's see, that's it. Okay, any other items? CHAIRMAN FLEGAL: (No response.) CHAIRMAN FLEGAL: MR. PONTE: So-- I'd entertain a motion to adjourn. MS. DUSEK: I make a motion that we adjourn. MR. PONTE: So moved. CHAIRMAN FLEGAL: All those in favor? (Unanimous votes of ayes.) CHAIRMAN FLEGAL: Anybody opposed? (No response.) (The hearing adjourned at 1:15 p.m.) There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 1:15 p.m. COLLIER COUNTY CODE ENFORCEMENT BOARD CLIFFORD FLEGAL, Chairman Page 121 December 11, 2003 These minutes approved by the Board on presented or as corrected , as TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY CHERIE NOTTINGHAM Page 122