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CEB Minutes 06/23/2005 R June 23, 2005 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida June 23, 2005 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 9:30 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 Justin De Witte Richard Kraenbring Gerald Lefebvre Jerry Morgan George Ponte ALSO PRESENT: Jean Rawson, Attorney for the Board Michelle Arnold, Code Enforcement Director Jennifer Belpedio, Assistant County Attorney Leonardo Bonanno, Code Enforcement Coordinator Page 1 --..--...,-.. .-- ......,,,..,_....,,,. .__._..__....._-,-_._"_.~--~. .-....-----.. CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA AGENDA Date: JUNE 23, 2005 at 9:30 a.m. Location: 3301 E. Tamiami Tr., Naples, Florida, Collier County Government Center Administrative Bldg "F", 3rd Floor NOTE: ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NEITHER COLLIER COUNTY NOR THE CODE ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. 1. ROLL CALL 2. APPROVAL OF AGENDA 3. APPROVAL OF MINUTES MAY 26, 2005 4. PUBLIC HEARINGS A. MOTIONS 1. Stipulations 1. BCC vs Rolando Salazar CEB 2005-25 2. Motion for Re-Hearing 1. BCC vs James & Sherry Marshall CEB 2004-72 3. Motion for Extension of Time 2. BCC vs Douglas S. White CEB 2004-81 B. HEARINGS 1. CASE NO: 2005-16 CASE ADDR: 6100 COLLIER BOULEVARD, NAPLES OWNER: MOnV A ENTERPRISES, LLC INSPECTOR: TRAVIS SNODERL Y VIOLATIONS: Ordinance 04-41 as amended, the Collier County Land Development Code, sees. 5.05.05(L), 10.02.06(B)(2)(A) and 1O.02.06(B)(2)(D)(IX) Unapproved canopy color and SHELL canopy signs without permits 2. CASE NO: 2005-17 CASE ADDR: 6615 DUDLEY DRIVE, NAPLES OWNER: MOnV A ENTERPRISES, LLC INSPECTOR: ROBERT CRUZ VIOLATIONS: Ordinance 91-102 as amended, the Collier County Land Development Code, sees. 2.8.4.5.2.3(1) and 2.6.28( 17) Unapproved canopy color _..-..n........".-.___.________.. '--'"''-'"-'-''' 3. CASE NO: 2005-18 CASE ADDR: 3825 TOLLGATE BOULEVARD, NAPLES OWNER: MOTIV A ENTERPRISES, LLC INSPECTOR: SHERRY PATTERSON VIOLATIONS: Ordinance 04-41 as amended, the Collier County Land Development Code, sees. 5.05.05(L), 10.02.06(B)(2)(A) and 10.02.06(B)(2)(D)(IX) Unapproved canopy color and SHELL canopy signs without permits 4. CASE NO: 2005-19 CASE ADDR: 2493 TRADE CENTER WAY, NAPLES OWNER: MOTIV A ENTERPRISES, LLC INSPECTOR: ANDREW WUHRER VIOLATIONS: Ordinance 91-102 as amended, the Collier County Land Development Code, sees. 2.8.4.5.2.3(1) and 2.6.28(17) Unapproved canopy color Dilapidated residential structure 5. CASE NO: 2005-27 CASE ADDR: 1033 AIRPORT RD, NAPLES, FL OWNER: MOTIV A ENTERPRISES, LLC INSPECTOR: SHERRY L. PATTERSON VIOLATIONS: Ordinance 04-041 as amended, the Collier County Land Development Code, sec. 5.05.05(L) Unapproved canopy color 6. CASE NO: 2005-20 CASE ADDR: 117 CHANNEL DR, NAPLES, FL OWNER: EBERHARD THIERMANN INSPECTOR: DENNIS MAZZONE VIOLATIONS: Ordinance 91-102 as amended, the Collier County Land Development Code, sees 1.5.6, 1.8.7,1.8.9,1.8.10,1.8.12 and 1.9.2 Ordinance 04-41 as amended, the Collier County Land Development Code sees 1.04.00,2.03.00,4.02.03, 9.03.00 Pool screen enclosure encroaching into 15' setback 7. CASE NO: 2005-24 CASE ADDR: 126 3RD ST, NAPLES, FL OWNER: DORIS BLACKMON INSPECTOR: DENNIS MAZZONE VIOLATIONS: Ordinance 91-102 as amended the Collier County Land Development Code, sees 1. 5.6, 1.8.7,2.1.11 and 2.2.4. Ordinance 2002-01 sees 104.1.3.5, 104.5.1.1 thru to 104.5.1.4 and 106.1.2 Interior renovations without building permit .-- 8. CASE NO: 2005-26 CASE ADDR: 13580 TAMIAMI TRL N, NAPLES, FL OWNER: RONALD & PATRICIA FREEMAN INSPECTOR: DENNIS MAZZONE VIOLATIONS: Ordinance 89-06 as amended by ordinance 2002-05 sees 5 and 22-263. Ordinance 2002-01 sees 101.4.9.2 and 103.11.1. Violation of Housing Code and Building Administrative Code 9. CASE NO: 2005-28 CASE ADDR: 2800 COUNTY BARN ROAD, NAPLES, FL OWNER: PATRICE E. SA VIGNANO INSPECTOR: CHRISTAL SEGURA VIOLATIONS: Ordinance 04-41 as amended the Collier County Land Development Code, sees 3.05.1 (B). Property cleared of native vegetation over allowable acreage with building permit. 5. NEW BUSINESS A. Request for Imposition of Fines/Liens 1. BCC vs Reynolds Cavins & Edie Hunter CEB 2004-44 2. BCC vs Gerald & Louise Miller CEB 2004-61 3. BCC vs Jerry & Janice Miller CEB 2004-60 B. Request for Foreclosure 1. BCC vs Monroe & Daisy Bell Graham CEB 2004-45 2. BCC vs Debbi Maschino CEB 2004-50 3. BCC vs Robert Pekar CEB 2004-67 6. OLD BUSINESS 7. REPORTS A. CEB Case 2004-01 BCC vs. Robert France: Status Report a. The Respondent was ordered to fumish a status report prior to this hearing as a condition of the extension of time granted at the hearing of January 27,2005. E. Year-to-Date Affidavits 8. COMMENTS 9. NEXT MEETING DATE July 28, 2005 10. ADJOURN ,------" _"____~_. ._w.... June 23, 2005 CHAIRMAN FLEGAL: Good morning. We'll call the Code Enforcement Board to order, please. Everybody take their seats. Please make note, any person who decides to appeal a decision of this Board will need a record of the proceedings training 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. Also, to ensure that we get as a verbatim record as possible, the County, the respondent, any members of the audience called to testify, and any of our Board members will not speak until recognized by the Chair. That will ensure that the stenographer is taking a verbatim record. First item, roll call, please. MR. BONANNO: Chairman Flegal? CHAIRMAN FLEGAL: Present. MR. BONANNO: Mr. Bowie? MR. BOWIE: Here. MR. BONANNO: Mr. Ponte? MR. PONTE: Here. MR. BONANNO: Mr. Morgan? MR. MORGAN: Here. MR. BONANNO: Ms. Barnett? MS. BARNETT: Here. MR. BONANNO: Mr. Lefebvre? MR. LEFEBVRE: Here. MR. BONANNO: Mr. DeWitte? MR. DeWITTE: Here. MR. BONANNO: Mr. Kraenbring? MR. KRAENBRING: Here. Page 2 ."-----"--"--'---- June 23, 2005 CHAIRMAN FLEGAL: We have our seven Board members. Our alternate, you may participate by asking questions, but you are not permitted to vote, sir. Approval of our agenda. Are there any changes to the agenda, as submitted to us? MS. ARNOLD: Yes. For the record, Michelle Arnold, Code Enforcement Director. Adding an item, there has been a stipulation that was presented for -- I notice on the agenda that we have a separate item for stipulations. That's new. So I'm adding Freeman. We've also entered into a stipulation agreement for that. And we can present that either in the beginning or as it's noted on the agenda, whichever the Board's preference. CHAIRMAN FLEGAL: Since we have one under motions, let's put Mr. Freeman up there. That's case eight, right? Is that the case we're talking about? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Let's move the stipulated agreement for Freeman as item two under stipulations. MS. ARNOLD: We also have a motion -- or request for a continuance, and that's Board of County Commissioners versus George Blackmon. And there was a letter that was sent in. So adding that to the agenda. And we are withdrawing item number six, which is Board of County Commissioners versus Mr. Thiermann, 2005-020, from the agenda. CHAIRMAN FLEGAL: Okay. And the one before that? I'm sorry . MS. ARNOLD: That was the continuance for Blackmon. MS. BARNETT: Number seven. CHAIRMAN FLEGAL: Okay. And they want a -- you say that was a continuance, is that -- Page 3 --- June 23, 2005 MS. ARNOLD: Correct, there's a request for continuance. CHAIRMAN FLEGAL: And he submitted something in writing or he's here to ask for it, or -- MS. ARNOLD: The respondent's here. The attorney is not. And that's why the continuance. There was a letter submitted. I do have a copy. I can put it up on the -- or I can provide it to you, either one. CHAIRMAN FLEGAL: Okay. Let's -- since that's case seven, let's move that up to under motions and put it under number three where we have a motion for extension of time. Let's put his continuance under there so we can handle all this stuff before we get into cases. MS. ARNOLD: Okay. So we're going to hear it after White? CHAIRMAN FLEGAL: Yes. MS. ARNOLD: Okay. CHAIRMAN FLEGAL: Okay, anything else? MS. ARNOLD: That's it. CHAIRMAN FLEGAL: Any other changes, additions? If none, I would entertain a motion to accept the agenda as changed. MR. PONTE: Can I just -- CHAIRMAN FLEGAL: Yes, sir. MR. PONTE: -- suggest something, Mr. Chairman? Is it possible to combine in some way all the Motiva cases? They're all very similar. CHAIRMAN FLEGAL: Let's see when the first one is brought forth if our attorney and the County and the respondents are willing to do that, okay, before we do it ourselves. MR. PONTE: Yes, sir. CHAIRMAN FLEGAL: Again, if there's no other changes or questions, I would entertain a motion to accept the agenda as submitted. MS. BARNETT: So moved. Page 4 -..-.... --.,~.._. -......-- June 23, 2005 MR. LEFEBVRE: Second. CHAIRMAN FLEGAL: Okay, we have a motion and a second. Any other questions? (N 0 response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Approval of our minutes from May 26th. Are there any changes, corrections, additions to those minutes? MR. BOWIE: Move adoption of the minutes of the May 26th meeting. MR. LEFEBVRE: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the minutes as submitted to us. Any further discussion? (No response.) CHAIRMAN FLEGAL: Hearing none, all those in favor, signify by saying aye. MS. BARNETT: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Aye. MR. MORGAN: Aye. Page 5 ---....---.- -- June 23, 2005 CHAIRMAN FLEGAL: Any opposed? (N 0 response.) CHAIRMAN FLEGAL: First item in our public hearing section is motions. First one is stipulations, BCC versus Rolando Salazar. (Speaker was duly sworn.) MR. MAZZONE: For the record, my name is Dennis Mazzone. I'm an investigator with Collier County Code Enforcement. Mr. and Mrs. Salazar stipulated with us to pay all operational costs that have been incurred in the prosecution of this case. And that also the respondent agrees that they must cease and desist all dwelling use and all storage use of non-permitted structures that are on the property. They must also cease and desist all outside storage of commercial vehicles and building materials within 60 days of the Code Enforcement Board hearing or $100 a day will be imposed each day the violations continue. And they further stipulate that they will obtain a demolition permit and remove the non-permitted structures within 120 days of this Code Enforcement Board hearing, or a fine of $100 a day will be imposed each day the violations continue. Mr. Salazar, I believe, would like to speak to this. (Speaker was duly sworn.) CHAIRMAN FLEGAL: Mr. Salazar, you have something you want to say to us? MR. SALAZAR: Yeah. What I'm fixing to correct -- all of this here, you know was been in the family, and my father gave it to me, so we had it for a while, and it just -- you know, it changed owners, so it changed everything. So I went to -- I got my field trucks, stuff like that we work with. We're farm workers. And some buildings were there. We added on and then we got some mobile homes. We're in the process of getting them out. And it's just going to take me some time to remove them. And I'm willing to do it. Page 6 ._.u,.....,.___.,.,._..___ .' .-- _.._-"...,,"--~--- ,.......-."".-,-""-..- ..-- -0- June 23, 2005 CHAIRMAN FLEGAL: All right, sir. As far as this agreement goes, the first thing I want to ask you is, do you agree that you are in violation of the Collier County Code and Ordinances? MR. SALAZAR: Yes, sir. CHAIRMAN FLEGAL: Do you agree that you're going to pay the operational cost, as written down in this agreement? MR. SALAZAR: Yes, sir. CHAIRMAN FLEGAL: And you agree that you're going to cease all use of these items within 60 days or we're going to fine you $100 a day? MR. SALAZAR: Yes, sir. CHAIRMAN FLEGAL: And you agree that you're going to get a demolition permit within 120 days, and if you don't do that, we're going to fine you $100 a day? MR. SALAZAR: Yes, I understand that. CHAIRMAN FLEGAL: And you will notify the County when you have done these things so that they can check you? MR. SALAZAR: Right, yeah. I'll keep in touch with Dennis there. CHAIRMAN FLEGAL: Any Board members have any questions of Mr. Salazar? (No response.) CHAIRMAN FLEGAL: Thank you, sir. MR. SALAZAR: Thank you. CHAIRMAN FLEGAL: Thank you, Dennis. MR. MAZZONE: You're welcome. CHAIRMAN FLEGAL: If there are no questions, I would entertain a motion to accept the agreement as submitted to us. MR. PONTE: So moved. MR. BOWIE: Seconded. CHAIRMAN FLEGAL: We have a motion and a second to accept the agreement. Any discussion? Page 7 ......",--- June 23, 2005 (No response.) CHAIRMAN FLEGAL: Hearing none, all those in favor, signify by saying aye. MS. BARNETT: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Next we have a stipulated agreement between BCC and Ronald Freeman. Is Mr. Freeman here or a representative, an attorney? Would you come forward, sir. (Speakers were duly sworn.) MR. MAZZONE: Mr. Reardon is here to speak to the stipulation today. We contacted Mr. Freeman and he had signed our agreement, which you have a copy of. Mr. Freeman agreed to pay all operational costs that are incurred in the prosecution of this case. The respondent further agrees that he must engage the services of a licensed professional to properly secure all unsafe premises. The same unlicensed professional shall submit a letter of affirmation to Collier County Chief Electrical Inspector Clyde Ammons within 48 hours of this hearing or a fine of $250 a day will be imposed each day the violations continue. The respondent further stipulates that they will engage the services of a licensed professional so as to accurately determine and document all existing deficient electrical systems by priority and provide Collier County Chief Electrical Inspector Clyde Ammons Page 8 --'"'- June 23, 2005 with a complete and sufficient systematic plan for a timely abatement within 10 days of this hearing or a fine of $100 a day will be imposed each day the violations continue. They further stipulate that the respondents representative must obtain all required Collier County permits and related inspections through to issuance of certificate of completion for the repair, replacement or removal of all deficient electrical services, restoring all services to a state of compliance with all provisions of our Collier County Housing Code and building maintenance regulations requirements within 180 days of this hearing, or a fine of $250 per day will be imposed each day the violations continue. And the respondent further states that he will provide myself with written notification that the violations have been abated so that I can perform a final inspection on the site. CHAIRMAN FLEGAL: Okay, sir? Are you Mr. Freeman? MR. REARDON: No, no, my name is George Reardon. I'm the park manager. CHAIRMAN FLEGAL: Okay, and you -- do you have Mr. Freeman's permission to accept anything, or why are you here, sir? MR. REARDON: Because I was asked to be here. MR. BOWIE: He's already signed it, though. MS. ARNOLD: Mr. Freeman spoke with me yesterday and he indicated that he would not be able to be here because he had another commitment, and I recommended just having the park manager, because he's knowledgeable about the case, be here to see what action the Board took, and he could bring that information back to Mr. Freeman. CHAIRMAN FLEGAL: Okay. Ms. Rawson, since we have an agreement that is already signed by Mr. Freeman, is there anything Mr. Reardon can do for us? I mean -- MS. RAWSON: Not really. You have a signed agreement. You can accept it or not accept it. Maybe he's here just to see what the Page 9 ..,_.. .~"~-~.. ~.~-- June 23, 2005 Board's going to do. MS. ARNOLD: Right. CHAIRMAN FLEGAL: Okay, that was my -- I have a question for you, Ms. Rawson. Reading this, I see where the respondent has agreed to this Item 2-A at $250 a day, it says to secure the unsafe premises, then engage a licensed professional at $100 a day, and then permits, 250 a day. That hypothetically could be $600 a day. And I'm -- I'm trying, since I don't have them in front of me, to -- I guess since we can do 250 a day per violation, I'm trying to assign a specific violation to each of these amounts. And I guess I'm having a hard time doing that. Do we have a potential problem here? MS. RAWSON: Well, if we assigned the 2-A at 250 a day, that's one item. And if you did 2-B at $100 a day, that's the second item. And then if you do 2-C at 250 a day, that's the third item. You know, if I write the order in such a way that we've only assessed the fines for specific noncompliance, we'll probably be okay. CHAIRMAN FLEGAL: Okay, that's why I'm reading Item 2 violations are section, I think that's a five, paragraphs 11 and 16-B. I don't know what they say. And then also another Ordinance in a couple of sections. I mean, it reads like there's one, two, three, four -- I'll call them all sections -- of various Ordinances. If we make sure we can assign them somehow so that we don't end up with a problem? MS. RAWSON: And some of them are overlapping. CHAIRMAN FLEGAL: Yes. My only concern is that we separate them so we don't have a problem. MS. RA WSON: And I'm not sure that we have to have one Ordinance per violation. We just -- if you order them to do something, then you can only fine them for noncompliance of one item. And then if it's the next item, that you fine them for noncompliance. I just have to be careful that we're not over fining. CHAIRMAN FLEGAL: Well, that's my concern when we Page 10 -_.~,-,-...... "'- June 23, 2005 approve this. Ifwe are. MS. RAWSON: Well, hopefully they'll all be in compliance and we'll never have to be back here on an imposition of fines. CHAIRMAN FLEGAL: That's what we'd like to see, that he meets all the dates and we don't fine him anything and everybody just lives happily ever after. MS. RAWSON: I appreciate your concern, and I'll try to draft the order in such a way that we won't have that problem. CHAIRMAN FLEGAL: Okay. Any questions by Board members? MR. BOWIE: Let me just ask the inspector, please, is there any dwelling use now being made by any sites impacted by these deficient electrical conditions? Are there any tenants present at the site? MR. MAZZONE: Yes, sir, there are. MR. BOWIE: So how is going -- if there are tenants there, how is it going to be secured within 48 hours? MR. MAZZONE: The owner has already taken steps to do that. So far, in reading the field report from our field inspector, the owner has hired a licensed contractor and to date seven services have been permitted. And they've been doing this on a priority basis, which were the most serious violations. Three of those services have been completed, and they consist of two panel Boards, which serve between 16 and 20 units. So those have been completed. One of those is a lift station. But for the most part, they're trying to take care of the most serious situations. This case started in August of2004. We've been in contact with Mr. Reardon and the property owner and they have been working with us. CHAIRMAN FLEGAL: Any other questions from Board members? MR. LEFEBVRE: Yes. CHAIRMAN FLEGAL: Yes, sir. Page 11 >---' ... ...-.....-".- .-".- <- June 23, 2005 MR. LEFEBVRE: Regarding the operational costs, there's going to be more costs incurred, but are we just capping it at the 396.26? MR. MAZZONE: Those are the operational costs to date. MR. LEFEBVRE: Today. But are there going to be -- there are going to be more operational costs, correct? Or are we saying that -- CHAIRMAN FLEGAL: Ifwe accept this agreement, this is it. MR. LEFEBVRE: This is it. CHAIRMAN FLEGAL: So if there are more costs, then the County's just out the money, because they've already agreed to this number. So they must feel comfortable with it. Any other questions? MR. BOWIE: If the matter is already fairly far along, and there's been already some compliance, why was it anticipated it would take 180 days for all of the matters to be addressed? MR. MAZZONE: I think Mr. Reardon could better answer that question. There's a number of residents in this particular subdivision, and I believe there's 73 or 75 stations that needed -- need attention. MR. REARDON: All of the stations will be replaced in the park. Approximately 80. All of them will be replaced. CHAIRMAN FLEGAL: Any other questions? (No response.) CHAIRMAN FLEGAL: If none, then I would entertain a motion to either accept or change the agreement before us. MS. BARNETT: I make a motion to accept the agreement. MR. BOWIE: I'll second that. CHAIRMAN FLEGAL: We have a motion and a second to accept the stipulated agreement as presented. Any further discussion? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. Page 12 <"~-,- "'~-'_.~. -_..-,,- ...~- June 23, 2005 MR. BOWIE: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) MR. REARDON: Thank you. MR. MAZZONE: Thank you. CHAIRMAN FLEGAL: Thank you, Dennis. Thank you, Mr. Reardon. Next item is a motion for rehearing, BCC versus James and Sherry Marshall. Ms. Arnold, don't we have a -- doesn't the Board have a form that people are supposed to fill out when they ask for a rehearing? Isn't there a format that we ask for? Or am I thinking of something else? MS. ARNOLD: There are certain criteria that they need to meet with respect to the motion for rehearing. And there is a form, there is a draft form. CHAIRMAN FLEGAL: And has Mr. Marshall met the criteria for requesting a rehearing? MS. ARNOLD: He didn't complete the form, is my understanding. He just submitted the letter that you all were provided a copy of. In terms of the time period, he did meet that requirement. He filed within the time period required for a motion. CHAIRMAN FLEGAL: Okay. I assume Mr. Marshall isn't here. We tried last week, because he's in Kentucky or Tennessee or someplace. MS. ARNOLD: Tennessee. CHAIRMAN FLEGAL: Tennessee. Page 13 ___u'".u_",.'''....,__.'_'.__.____..__ ---~- __._u"'_ ---- June 23, 2005 Is there a way to get a hold of him? All right, let's take about five minutes and Leo; get him on the phone, please. We'll adjourn for five minutes, please. (Brief recess.) CHAIRMAN FLEGAL: All right, ladies and gentlemen. MR. BONANNO: He's on his way to work. We're calling his cell phone. CHAIRMAN FLEGAL: Ifhe's on his cell phone, he's not going to be able to participate. MS. BARNETT: Maybe he can pull over. MR. BONANNO: Mr. Marshall? MR. MARSHALL: Yes. CHAIRMAN FLEGAL: Mr. Marshall? MR. MARSHALL: Yes. CHAIRMAN FLEGAL: This is Chairman Flegal at Code Enforcement Board. Are you somewhere where you can talk to us, sir? MR. MARSHALL: I don't have you very well. Go ahead. CHAIRMAN FLEGAL: Well, you're the one asking for this rehearing. We need you to tell us why you want this rehearing. MR. MARSHALL: Well, I believe I'm entitled to a rehearing. I think the question is whether or not the Board wants to grant it. Under the rule, I believe you granted the rehearing. But another hearing you had was testimony in this case. I think what I would have done if I -- on the May 23rd hearing. Excuse me, if I would have received earlier notice that the hearing was for June, I might have supplemented my motion that's in front of you. But since I wasn't given sufficient time to do that, all you have is what's in front of you, so -- CHAIRMAN FLEGAL: Okay, under our rules there's only two reasons we would grant a rehearing. You're aware of that. MR. MARSHALL: Yes. Page 14 --"'- .-,.---...... -~,-,_.~ "....~-'--- June 23, 2005 CHAIRMAN FLEGAL: Okay. One of them being that it was contrary to the evidence that was presented. The other being that we made an error on a ruling of law. MR. MARSHALL: Okay. CHAIRMAN FLEGAL: Okay? MR. MARSHALL: All right, if you want me to interject something here, I could, which might indicate that I think you have made an error on the ruling of law interpreting your code. If you could give me a second here, please. MR. PONTE: I'm sorry, is he there? CHAIRMAN FLEGAL: Yes, he's looking for something. MS. RAWSON: While he's looking, we need to know that he is who he says he is. So I guess Leo probably needs to say on the record that he recognizes his voice and that he called -- CHAIRMAN FLEGAL: I recognize his voice, because we've talked to him before. MS. RAWSON: Okay. I know he doesn't have anybody to swear him in. And I guess ifhe's driving his car, we don't want him to raise his right hand. MR. MARSHALL: I'm not driving right now. I'm a little bit smarter than that, Ms. Arnold. I'm not driving. Okay, I think part of the problem that I raised in my original argument, because there really was never a defense packet, was Section 1.9 of the code, which establishes that a right established under a prior code is not disturbed by the Land Development Code. So I don't know if you folks have a copy of the Land Development Code. But Section 90301 states the following: Within the zoning district established by the LDC or amendments that may later be adopted, there may -- CHAIRMAN FLEGAL: You're breaking up, sir. We're not getting most of what you're saying. Mr. Marshall? Page 15 --.. "-"--~""._--_.,,,-_.,._.~--.._,._..,_..,,,-,.,_..--.._..,._-- June 23, 2005 (N 0 response.) CHAIRMAN FLEGAL: He's gone. Try him one more time, Leo. If it doesn't work -- MS. RAWSON: And I think he does need to be sworn in. MR. LEFEBVRE: Mr. Chairman, if I could make a point? Would it be possible to find out how long before he's at his office and call him at his office at that point? CHAIRMAN FLEGAL: Sure, if we want to -- MR. LEFEBVRE: Ifwe want to do that. CHAIRMAN FLEGAL: It's a Board decision if we want to set this aside and give him time to get wherever he's going. Not going through, Leo? MR. BONANNO: Getting his voice mail. He's probably still on the phone. CHAIRMAN FLEGAL: He thinks he's talking to us. Okay, Jean, would it be -- I guess the most convenient thing to do in this five minutes is to give him time to get wherever it is he's going, assuming that he'll eventually figure out he's not talking to us and move on with something else, and then we can try him a little later. MS. RAWSON: I think so. I think we can just continue it and call him back when we're through with the next matter. CHAIRMAN FLEGAL: Any problem with that, Board members? We'll just move him on to something else and try him in another half hour or whatever, hour. Let him get where he's going, then we'll try him again. Okay? MR. LEFEBVRE: Do we need a motion to do that? CHAIRMAN FLEGAL: Do we need a motion for that, Jean? MS. RAWSON: Probably. Just to keep the record straight. When we get him back, we need to swear him in. CHAIRMAN FLEGAL: Yeah. On the James and Sherry Marshall motion for rehearing, I would entertain a motion to do this at a later time. That being let's go through all our regular hearings first Page 16 --'<"~'-""'-"'---"~--'- - --. ___'__4'~"'____""'_'.'_"""_"'_" .~..-. >.,_,~ ~-'- -" ~,.,.- --.-- June 23, 2005 and then we'll come back and try Mr. Marshall, so that these other people aren't sitting here. MR. LEFEBVRE: I make a motion that we set it aside to a later time. MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and a second to set this aside to a later time on our agenda. Any further discussion? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. MR. BOWIE: Aye. CHAIRMAN FLEGAL: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Okay, let's do a motion for an extension of time. We have Douglas White. MR. BRYANT: Good morning, Mr. Chairman, members of the Board, I'm David Bryant, I represent Mr. White. We're here on a matter where we're asking for additional time to correct a problem that this Board was kind enough in January to give us 120 days to correct. And it's not like we haven't been doing everything possible to correct it. And I think the investigator is here and will follow up in my comments. And I appreciate him being here today. What happened is Mr. White had a building that needed to be permitted for some improvements that were done, that he didn't realize he had to have a permit for, because the building was originally built back in the Eighties before this code we have today was in he. So we stipulated with the Board and with the code enforcement Page 1 7 --- - .,.--------" _.-~,~~ '" ~~......_. '- June 23, 2005 department, Ms. Arnold's staff, that we would get a permit, correct the problems. We had all the drawings done, we had them all sealed by the appropriate professionals, the electrical engineer, the plumbing and HV AC engineering and also by an architect. It took like, I don't know, three sets of plans to get all the permit information that we needed. Mr. White took that, he submitted it to the County. It went to planning, as you know it always does. They then came back and said no, you have a setback problem that he never knew he had. So now we have to go to the Board of County Commissioners for a variance for that setback. The fines started on May the 27th. Mr. White had already submitted everything and then found out about the variance issue before the fines ever started. In fact, he then went right to planning and got all the paperwork, filled it out to go to get the application process started for the variance. In fact, we have a meeting on July the 13th with Planning, which is kind of like a pre-meeting that we will go through, and then we will take this to the Board of County Commissioners for a variance on the setback. If the Board grants that, then the permits will go through. Well, during this time, as you all are aware, the fines have started to accrue. So -- and on top of that, Mr. White was trying to get his property refinanced so that he would have the money to follow through with this process. Just the application alone to the Board of County Commissioners for a variance is $4,000. It's not a cheap thing to do. And it's pretty time-consuming, as I know Mr. Bowie knows, being a real estate professional in the community. So we're here today hat in hand asking dispensation from this Board. And not being an applicant that has been recalcitrant and has not tried to correct this, we're asking that the Board give us an additional time to go through the variance process, get the building Page 18 ,-'~ ..,--.--..---...-^--.',- ----". ---- -"- June 23, 2005 permit, do the work that this Board was kind enough to give us initially time to do, and also to abate the fines and to set aside those fines that have accrued since the 27th of May. And again, I would submit to the Board respectfully that it's not like we haven't done, we thought, everything that we would need to have this problem corrected, Ms. Arnold's people come out and look at it and say yeah, it's fine, you've done what the Board asked. And we never knew about the variance issue until the Planning Department called Mr. White up and said you've got a problem. And if Jeff would like to speak to it, I'd appreciate it. MR. LETOURNEAU: I agree with everything he said. They were trying to -- CHAIRMAN FLEGAL: Jeff? MR. LETOURNEAU: Oh, I'm sorry. (Speaker was duly sworn.) MR. LETOURNEAU: For the record, Jeff Letourneau, Collier County Code Enforcement investigator. I'll agree with everything Mr. Bryant has stated. They did try to get the permit in time. They had the application in well before their deadline, and nobody knew about the setback violation. It's just something that came up. And I know that's a very time-consuming Issue. As far as I'm concerned, they've done everything they could to try to get the permit. CHAIRMAN FLEGAL: Ms. Arnold, we haven't -- you haven't requested the imposition of any fines yet, to my knowledge, correct? MS. ARNOLD: No, we haven't. CHAIRMAN FLEGAL: Okay. Let me ask you this question, SIr. MR. BRYANT: Yes, sir. CHAIRMAN FLEGAL: An additional option to what you're asking the Board to do, which is extend the time, your client has the Page 19 ._----------""~",-----,-- ...-----.'.- --"--~' June 23, 2005 right, once the fine is imposed, which it hasn't been yet, even though it is running, to come back and ask this Board to abate any fine that's imposed for whatever reason. And based on what you've told us, I think you have a great reason. What I'm thinking is, since we don't know what time period we're looking at, would you accept the option of keep doing what you're doing, you're doing a great job and we appreciate that. And when you're all done, whatever this fine is, come back before us and say okay, I tried to do it then, here's all my problems, would you abate this fine for us for these reasons. And the Board would probably look at that favorably, knowing the County has said you're doing everything possible and it's out of your hands. Would that option be open to you? MR. BRY ANT: Chairman Flegal, I think that's an excellent suggestion, and I appreciate your presenting that. The only problem I see with that is that as the fines accrue, the underwriters for the refinancing will not do the refinancing, because they don't know what their exposure could be. It's not like we could say the Board has abated the fines, and even if the Board did not forgive the ones from the 27th of May, we would at least have a set figure that we could ask the underwriters and the refinancing institution to say escrow $2,000. But the problem is, the underwriters tell me that they don't know what their exposure could be, so we can't even set aside a sum of money to hold that in abeyance. But I appreciate that thought. And that's the only problem that we've been presented by the underwriters for the lending institution. CHAIRMAN FLEGAL: Okay, what time period -- the time was up, what, the 27th of May, Jeff, was that the date? MR. BRYANT: Yes, sir. CHAIRMAN FLEGAL: Okay, what are you looking at? Thirty, 60,90, some number? MR. BRYANT: Well, Ms. Arnold is a Planner by experience Page 20 ---' -- --~.----_.- --......_. . June 23, 2005 and been one here for a long time. She knows the Planning Department, since she works over there, notwithstanding she directs code enforcement. N ow maybe she could share with us what she believes the pipeline time is to get to the BCC for the variance. MS. ARNOLD: It's taking quite a bit of time now, and I would say six months. MR. BRY ANT: That's what I had heard also, but I wanted her input. CHAIRMAN FLEGAL: Okay. So basically you're asking us to change our date from May 27th, add an additional six months to it, and hopefully that will be sufficient. MR. BRYANT: Yes, sir. CHAIRMAN FLEGAL: Okay. Any questions from the Board? MR. PONTE: Just one. Does the six-month estimate, Michelle -- did you -- is that to complete your end of it or does that estimate include getting it before the commissioners? MS. ARNOLD: That estimate is bringing it to the Board. Because a part of the variance process is the review from the zoning department, and I don't know whether or not you all have already had your pre-application meeting. MR. BRYANT: We have it on July the 13th. MS. ARNOLD: At least they've already scheduled a hearing -- I mean meeting with the zoning department. It's just getting them in for scheduling for the planning commission is what's going on take the time. MR. PONTE: I guess my only concern was the summer recess in August. MS. ARNOLD: This is before the planning commission and then before the County commission. So six months will take into consideration those -- MR. PONTE: Okay. MS. ARNOLD: -- recesses. Page 21 ...~._.u.,_~.",,_ .--- June 23, 2005 MR. BOWIE: Then I would assume upon the variance being granted, they would immediately receive certificate of completion. MR. LETOURNEAU: Well, they'd have to get their inspections and everything, just like a normal permit, yes. CHAIRMAN FLEGAL: Six months would move it out roughly to our November meeting, okay, which is November 25th. And that's, I know, a day after Thanksgiving, and we normally adjust somewhere in November and December. MS. ARNOLD: Yes. Your meeting is July? MR. BRYANT: Yes, ma'am. MS. ARNOLD: My recommendation would be -- CHAIRMAN FLEGAL: Past that. MS. ARNOLD: -- six months from that meeting. CHAIRMAN FLEGAL: Okay. That's going to put it in January, which would be -- January 26th would be our meeting. Okay, basically I guess what you're asking for, sir, is us to change the -- our order from the current May 27th out to January 26th of '06 to give you sufficient time. MR. BRYANT: And I appreciate that, Chairman Flegal. And also to add to that, that the fines, even though -- CHAIRMAN FLEGAL: Well, if we change this dated, the fines don't exist. MR. BRY ANT: All right. That's fine, sir. CHAIRMAN FLEGAL: In other words, if we take the current order, what we're doing is that date that's in there, which is May 25th or 27th -- MR. BRYANT: Twenty-seventh. CHAIRMAN FLEGAL: -- we're now going to change that to January, so there would be no fines. MR. BRYANT: We greatly appreciate that, Mr. Chairman. CHAIRMAN FLEGAL: That's if the Board agrees to that. I'm one member, so-- Page 22 _.__....,._--....""._--,.,."...--'-- ''''_."~._-"-' "- June 23, 2005 MR. BOWIE: Well, I certainly make a motion to that effect. MR. PONTE: I'll second that motion. CHAIRMAN FLEGAL: We have a motion and a second to amend our order with a new date of, what did I say, January 26th, 2006. Any further discussion? (N 0 response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Any opposed? (N 0 response.) MR. BRY ANT: Mr. Chairman, members of the Board, thank you for your time, and I appreciate your appreciating our situation, too. CHAIRMAN FLEGAL: Yes, sir. Keep up the good work. We like people who forge ahead. Next case is BCC versus Blackmon. Blackmon. I hope I said that right. M -0- N. Again, they're asking for a -- MS. ARNOLD: Would you like to see the -- it's probably easier for you to read it up close instead of me putting it on there. But either way. I can put it on -- CHAIRMAN FLEGAL: Why don't you put it on and let us just take a look at it, rather than pass it among us for just a second, and see if there's a way we can make head nor tails out of what they want. CHAIRMAN FLEGAL: Michelle, is this from an attorney or -- MS. ARNOLD: Yes. Page 23 -,.~-" . .,.--.'... -."...--....,,- '-"'--""''''''-'- ._- June 23, 2005 CHAIRMAN FLEGAL: Have you talked to this Mr. D'Onfrio? MS. ARNOLD: I have not. I believe Leo may have. CHAIRMAN FLEGAL: Leo, have you talked to this gentleman? MR. BONANNO: Yes, we have spoken. CHAIRMAN FLEGAL: What kind of time is he looking for? Just till our next meeting, is that sufficient? MR. BONANNO: That was the impression I got. Apparently her attorney -- I was under the impression that a partner would come with you today, but I guess that didn't happen. MS. BLACKMON: He didn't feel he was qualified. MR. BONANNO: No. But the attorney that I spoke to asked for a continuance on the basis that he had another engagement today and obviously didn't want his client here alone. So, yeah, the feeling I got was just a month. CHAIRMAN FLEGAL: Are you Ms. Blackmon? MS. BLACKMON: Yes. CHAIRMAN FLEGAL: Do you wish to say anything to us, ma'am? (Speaker was duly sworn.) MS. BLACKMON: No. CHAIRMAN FLEGAL: You'll be happy with the 30 days, if we give it to you? MS. BLACKMON: Yeah. CHAIRMAN FLEGAL: Based on the letter and understanding that she may have some other problems that she's pursuing, she does need legal representation, her lawyer is asking us to set this back to our next meeting next month in July. Any motion to do so, or questions? MS. BARNETT: I make a motion to continue this to next month. MR. LEFEBVRE: Second. CHAIRMAN FLEGAL: We have a motion and a second to continue this to our next meeting in July. Any further discussion? Page 24 --- e.._.'..__~_'_ .__._~ ~"...._- --- June 23, 2005 (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Yes, ma'am. MS. ARNOLD: Mr. Chairman, I would just ask Ms. Blackmon, do you waive your notice, or do you want us to give you another notice for that hearing? Do you want us to send you another notice in the mail? CHAIRMAN FLEGAL: What we're saying is you're here and we've made a decision to do this next month. Rather than send you notice, would you waive that notice and understand that we've now told you have to be here next month? MS. BLACKMON: Yes. CHAIRMAN FLEGAL: Is that okay with you? MS. BLACKMON: Yes. MR. KRAENBRING: Please make sure she notifies her attorney also. CHAIRMAN FLEGAL: Okay, that's all of our motions. You want to do that before we get into the hearings? MS. BARNETT: Just get it done. MR. PONTE: It's been an hour. CHAIRMAN FLEGAL: Leo, why don't you try and call Mr. Marshall. We'll try him now. Ifhe's not there, we're going to Page 25 -~-~-~~.,-~",-~.",,"~,-- ,,","__"'c.<._'~ June 23, 2005 proceed. These people have been sitting here and we need to get on with it. Get a number. Isn't going to work, I don't think. MR. BONANNO: Mr. Chairman, he's coming in pretty clearly now with me. Do you want to give it another try on his cell phone? And if we lose him, you just warn him that we're going to proceed without him? MR. PONTE: I think we've been more than accommodating on the situation. I'm frustrated. MR. BOWIE: In the notice that was sent to him and the discussions had with him, we agreed to a telephonic hearing. Wasn't part of that understanding that he would be available at a specific land line phone, like say his home number? MR. BONANNO: That was always the understanding before. MR. BOWIE: So that was the understanding and he has not abided by that understanding. MR. BONANNO: The only phone number I've ever been provided was the home number. CHAIRMAN FLEGAL: Okay. Since you've got him, let's give it a try. And ifhe disappears, we're going to move on. It's not fair to these other people. Mr. Marshall? MR. MARSHALL: Yes, sir. CHAIRMAN FLEGAL: Are you there, sir? MR. MARSHALL: Yes, I am. CHAIRMAN FLEGAL: All right. We're going to -- Leo and I both recognize your voice, but we're going to swear you in. So if you'll listen carefully, the stenographer's going to ask you to be sworn. (Speaker was duly sworn.) CHAIRMAN FLEGAL: Thank you, sir. Now, back to why you feel you have a right for a rehearing. MR. MARSHALL: Okay. Well, I mentioned earlier that the-- Page 26 --,., .,"--- June 23, 2005 your rules and regulations for the procedure in granting a rehearing is that if the Board grants a rehearing, it will schedule a hearing where the parties will be given the opportunity to present the evidence or argument, limited by the Board for specific reasons for which your rehearing was granted, or modify its order. So I don't know that what I'm stating now necessarily rises to the level of testimony. However, my first rehearing primarily focused on the provision of Section 1.9 in your code, which recognizes established rights that accrue before the effective date of the LDC. Now, in my preparation of my petition for appeal, I came across Section 9.03.01.A of the LDC. And it's titled intent. And it states, within the zoning districts established by the LDC, or amendments that may later be adopted, there may exist lots, structures, uses of land, water and structures, and characteristics of uses which were lawful before the LDC was adopted or amended but can be prohibited, regulated or restricted under the terms of the LDC or future amendments. It is the intent of this section to permit these nonconformities to continue until they are voluntarily renovated or removed, as required by the LDC, but not to encourage their survival. So I think that the quagmire that I find myself in is a result of Mr. Letourneau's, Ms. Arnold's and perhaps Ms. Belpedio's not being familiar with the relationship between the 1986 code, which our permit was issued under, which permit was in effect when the 1991 LDC came into effect. It didn't disturb our rights for the building to be there or to exist after the cancellation of our permit. We weren't violated when the permit was canceled in '91, because there was no violation. So that's my argument. If that's not sufficient, then, you know, I have to appeal. And if I lose on appeal, then my remedy is to file a lawsuit to protect my rights. And that's what we intend to do. If I had been given notice that the hearing in May did not occur, I Page 27 ._-_..,~ ..-'-" ">'~"-''''>-~--'' k_'~_ June 23, 2005 got the notice with enough time to respond, I would have supplemented my motion for a rehearing, with some of these other excerpts from the code to maybe help you make up your mind. But, I mean, I think it was pretty evident from Mr. Letourneau's testimony that he didn't do any investigation into our situation before he violated us. He violated us for having no permits. And if he would have just simply put my name into any department computer down there, it would have shown we had permits pulled. So, you know, we believe we have a right for the building to exist, established under the 1986b code, recognized by the LDC as not disturbed. So that's basically our stance. CHAIRMAN FLEGAL: Okay. You started out by saying this was based on the rehearing last month. You understand that there was no rehearing. This is your first so-called application. MR. MARSHALL: Well, whatever, I know -- I received an order saying my motion for rehearing was denied. And under the rule, I think what you're to determine is if the rehearing is proper, then I would be given a subsequent opportunity to either give telephone testimony, evidence and perhaps subpoena an witnesses. So I think what I'm establishing now is whether or not a rehearing will be had, not necessarily the merits of my rehearing under the rule. But that's for you to interpret. CHAIRMAN FLEGAL: Okay. MS. ARNOLD: Mr. Chairman, can Jennifer speak to what-- CHAIRMAN FLEGAL: Yes, ma'am. MS. BELPEDIO: Jennifer Belpedio, Assistant County Attorney. CHAIRMAN FLEGAL: Mr. Marshall, can you hear Jennifer? MR. MARSHALL: Yes, sir. CHAIRMAN FLEGAL: Okay. MS. BELPEDIO: In an effort to not reargue the case, I'm just going to try to distill my recollection of the case. As I recall, the case was a case for the failure for not having a Page 28 __._c --.--.,--.. .,O.....'A__- "-- June 23, 2005 building permit. Mr. Marshall had a building permit and that building permit was abandoned and expired by operation of law because he did not receive timely inspections. The case was not a use case. We're not talking about a building that was allowed at one point and the code changed and is no longer allowed. We're talking about whether or not a permit was ever required at the time in which he constructed the building and the improvements. I do not see how Section 1.9 applies in this instance. It's more about Mr. Marshall being able to evidence that a permit was not required at the time in which he constructed the improvements. He obtained a permit. I haven't heard an argument that he wasn't required to get a permit at that time. CHAIRMAN FLEGAL: Okay. Any questions from my members of the Board? (N 0 response.) CHAIRMAN FLEGAL: All right. MS. BARNETT: I have one question. CHAIRMAN FLEGAL: Okay. MS. BARNETT: It's basically for Jean. Jean, in his packet, he seems to feel that we have not given him due process. Can you address that for me? MS. RAWSON: We had a hearing. We had a hearing -- I can't remember the date -- and evidence was presented. He wasn't here. Last month we gave him an opportunity to be heard on his motion for rehearing. He was unable to be reached by telephone. You denied his motion for rehearing. Because we were not able to reach him, Ms. Arnold has given him the opportunity to request his rehearing again today. I think that the importance of that is, depending on what your ruling is today, is that it tolls the time for him to file an appeal. If you ask for a motion for rehearing, although that's not really in our rules or Page 29 -~_.,_..._---_. . ~^--,--"" - ,...co_, .._.H '''~<- --._--- June 23, 2005 in the administrative code, that's in the rules of civil procedure, we denied it last month. Now we're giving him another opportunity to ask for it. So if you were to grant it today, then you'd set a rehearing date. If you were to deny it today, he still would have the opportunity to file an appeal, based on his legal arguments. MR. BOWIE: Well, I think the respondent needs to be aware that we are very circumscribed as to grounds on which we can grant a rehearing. Either contrary to evidence previously or in vio -- ruling contrary to law. I don't see where the respondent here today or previously has proffered any kind of new evidence, new facts, or made any argument as to law which he didn't make originally. There's nothing new being presented to us on which we can grant a rehearing. And hence, I would be opposed to it. CHAIRMAN FLEGAL: Okay. At this point -- Mr. Marshall, are you still there? MR. MARSHALL: Yes, sir. CHAIRMAN FLEGAL: Okay, thank you. I just want to make sure you're there. MR. MARSHALL: I would like to interject something here. I think that might have been Ms. Rawson speaking, something about being given a notice of the May 23rd hearing but not being able to be reached by telephone. There was no notice mailed for the May 23rd hearing. I just want to make that clear. CHAIRMAN FLEGAL: No noted, sir. Okay, at this point we have a request before us for a rehearing. We've had some discussion from Mr. Marshall, from the County attorney, and comments from our Board members. At this point I would entertain a motion to either grant a rehearing or deny the respondent's motion for a rehearing. Page 30 ~" -'"-'''~' - - .-- .-"'- June 23, 2005 MR. PONTE: I concur with Mr. Bowie's thinking on this, and so I would make a motion to deny. MR. LEFEBVRE: I second that motion. CHAIRMAN FLEGAL: We have a motion and a second to deny the request for a rehearing. Any further discussion? (N 0 response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Any opposed? (N 0 response.) CHAIRMAN FLEGAL: Mr. Marshall, your request is denied. MR. MARSHALL: Okay, thank you. CHAIRMAN FLEGAL: Thank you, sir. You got him off, Leo? Okay, regular hearings. And I apologize, folks, if you've been sitting out here. First case, 2005-16, Motiva Enterprises. MR. PONTE: Mr. Chairman, just a reminder, when we started the session today, I asked whether or not these Motiva cases could be combined because of their similarity. CHAIRMAN FLEGAL: Ms. Rawson, I understand that since we have -- I think there's five cases, that there'll be five separate orders. They all seem to be the same violation. Would there be a problem if we -- if the County and the respondent agrees, if we could hear all this at the same time rather Page 31 ._"~"-" ~-------~._,,--- -~._'" ..--.------...".. -.'- June 23, 2005 than -- it's probably going to be the same thing five different times. MS. RAWSON: There would be no problem. I actually think that maybe they've already agreed to do that. MS. ARNOLD: No. But it's preferable -- CHAIRMAN FLEGAL: Would the County have a problem with that? And who represents the respondent? Is there one or five of you, or -- MR. MANN: One. My name is Charles Mann. I represent Motiva Enterprises. CHAIRMAN FLEGAL: Would you have a problem with doing it that way, sir? MR. MANN: I don't have a problem with that. What I discussed with Ms. Arnold was that each officer would bring their case and testify. I would then cross-examine each officer but not present, you know, our testimony and introductory statement so that you would have to hear those five times. What I would do is present our primary defense at the end for all five cases. CHAIRMAN FLEGAL: Okay. All right, everybody-- MS. ARNOLD: That's agreeable to us. CHAIRMAN FLEGAL: Cool, we'll do it that way. I think it will move a lot quicker, rather than hearing the same words five times, which we all tend to not want to do. MS. ARNOLD: But we will be doing separate orders for-- CHAIRMAN FLEGAL: Yes, there will be separate orders, so everybody understands. Since we have five cases, there will be five orders issued by the Board. Not one. There will be five separate orders. I mean, they may all say the same thing. I don't know yet, since we haven't heard it. But there will be five orders. And-- MR. BONANNO: Mr. Chairman, am I supposed to read all five statements of violation at once, too? Or-- MS. ARNOLD: Why don't we just have him read it before each investigator. Page 32 -".- ~"_._--~-~_.-.. ..~-- June 23, 2005 CHAIRMAN FLEGAL: Yeah, why don't -- we have one, two-- MR. BONANNO: There should be five. CHAIRMAN FLEGAL: We have four different investigators for five cases, so why don't we let -- you know, do it that way. Do it kind of a case for an investigator -- MR. BONANNO: Okay. CHAIRMAN FLEGAL: -- tell what the problem is, we'll let him do his thing. Respondent can cross-examine him and the Board can, then they can sit down, then we'll get the next one. MR. BONANNO: Okay. CHAIRMAN FLEGAL: And that way we'll get them all done. Then they can tell us why they are or aren't in violation. MR. BONANNO: The code enforcement department submitted exhibit A's for all of these cases. Would you just like to accept them all now? CHAIRMAN FLEGAL: Yeah, let's do that and get that out of the way. There are five exhibits, one for Case 2005-16,2005-17, 2005-18,2005-19,2005-27. So you have exhibits for each of those -- MR. BONANNO: Yes. CHAIRMAN FLEGAL: -- that you're submitting? MR. BONANNO: Right. CHAIRMAN FLEGAL: Okay. MS. BARNETT: I make a motion that we accept Exhibits A for Case 2005-16,2005-17,2005-18,2005-19 and 2005-27. CHAIRMAN FLEGAL: Okay, we have a motion to accept the exhibits for the five cases. Do I hear a second? MR. PONTE: Second. CHAIRMAN FLEGAL: We have a motion and a second. All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. Page 33 ,. <--- -----,--- .-- June 23, 2005 MR. BOWIE: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Any opposed? (N 0 response.) MR. BONANNO: This first case is CEB Case No. 2005-16, versus (sic) Motiva Enterprises, LLC. The violation is that of Sections 5.05.05(L), 10.02.06(B)(2)(A), and 10.02.06(B)(2)(D)(9), of Collier County Ordinance 04-41, as amended, the Collier County Land Development Code. The violation is described as a fuel station canopy of a color that does not reflect the predominant color of the principal structure and which is not of a soft earth tone or pastel, as required by Collier County Ordinance. And Shell canopy signs without permits, as required by Collier County Ordinance. The violation exists at 6100 Collier Boulevard, Naples, Florida. The individuals in charge of that location is CT Corporation Systems, as the registered agents for Motiva Enterprises, LLC, 1200 South Pine Island -- I believe that's Road -- Plantation, Florida, 33324. The violation was first observed -- excuse me, the canopy violation was first observed on April 15th, 2004, and the sign violation was first observed on December 31st, 2004. A notice of violation was served regarding the canopy violation on December 31st, 2004, and the sign violation on January 20th, 2005. The canopy violation was to be corrected by January 28th, 2005, and the sign violation was to be corrected by February 20th, 2005. A re-inspection occurred on April 1st, 2005, and as of that date, all violations remained. And Investigator Travis Snoderly is here to present this first case. MS. ARNOLD: I just want to make a correction for the record. I Page 34 ,-.-..-.... --.----_..-.. --"'~~~- -...- _,..,_""",'__.uh.. --.-.--- June 23, 2005 think when Leo was stating the sections of the code in violation, he may have indicated 10.02.6.(D)(2)(9), but it should have been (D)(2)(IX). Just clarification for the record. (Speaker was duly sworn.) MR. SNODERL Y: Good morning. For the record, Travis Snoderly, code enforcement investigator with Collier County. As you know, this morning we're here with regard to two cases, two code cases, one individual CEB case, at the address of 6100 Collier Boulevard. The violation is a fuel station canopy, which is of a color that does not reflect the predominant color of the principal structure and also is not of a soft earth tone/pastel. As well, there are Shell canopy signs on that canopy without permit. I will add to that that a permit has been applied for, however, cannot be issued at this current time, because the contractor's license has some issues with contractor's licensing. Therefore, the violation remains with that regard as well. That is a photograph I'd like to be entered into evidence, which is the canopy representing the color that we described, as well as the un- permitted sign. I'd like to ask that to be entered into evidence, please. MS. BARNETT: So moved. MR. LEFEBVRE: Second. CHAIRMAN FLEGAL: Exhibit B, I guess. We have an A, so we'll call this B for this particular case, which is 16. MS. BARNETT: I make a motion that we accept Exhibit B. MR. LEFEBVRE: Second it. CHAIRMAN FLEGAL: We have a motion and a second to accept Exhibit B. All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. Page 35 ".--".-" ...%.,...... June 23, 2005 MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Any opposed? (N 0 response.) MR. SNODERL Y: I would also like to add, an additional re- inspection was done on the 21 st. The violation still does remain for both the canopy color and the canopy sign without a permit. A recommendation of the County with regard to this particular case is that the CEB order the respondent to pay all operational costs incurred in the prosecution of the case and abate the violations by re- facing or repainting the canopy to comply with the Ordinance within 30 days of today's hearing, or a fine of $150 per day be imposed for each day the violation continues. That they would, number two, obtain all required Collier County building permits for the canopy signs, following through with inspection, a certificate of occupancy within 60 days of today's hearing, or a fine with $150 per day for each day the violation continues. If the respondent does not want to permit any of the non- permitted signs, they must then remove all said signs within 30 days of the hearing, or once again a fine of $150 per day for each day the violation continues. And lastly, that the respondent notify myself or the code enforcement department when the violation's been abated to ensure the final inspection to confirm the abatement of the violation. CHAIRMAN FLEGAL: Any questions from the Board members? MR. PONTE: Yes, I do. Investigator, we're talking about the orange and red, are we, of the Shell Company, that logo color? MR. SNODERL Y: That is correct. As you can -- Page 36 _.._..,__...,___.__...___.___..<_'_,_H -" "-"---"~'-'~"'''-- -- ,.....,.- June 23, 2005 MR. PONTE: Does the violation include the signs over the pumps? MR. SNODERL Y: No, sir. This particular case is pertained specifically to the color of the canopy that you see, which is the primary canopy over all of the pumps, and then the sign that is on that canopy specifically. MR. PONTE: The orange and red Shell colors are the worldwide trademark of the Royal Dutch Oil Company. MR. SNODERL Y: That is -- you are correct. And I'm sure that Mr. Mann would state that as well. Just for the purposes of letting you look at it real quickly, the Land Development Code specifically states in Section 505L, that color accent banding on gasoline canopy structures in all their structures is prohibited. The pertinent portion of this is that canopies shall be of one color, consistent with the predominant color of the principal structure -- in this case is white -- if applicable. And that the color of all structures on-site shall be of a soft earth tone or pastel. And I do acknowledge that that is a national color for them. We've also had cases on the Sunoco stations, which are of a blue color, which were prohibited as well. And they have complied with the code and painted their canopies. MR. PONTE: Thank you. CHAIRMAN FLEGAL: I guess for informational purposes so that maybe we can all get on the same page -- and I understand we haven't heard the respondent yet -- is what we're trying to say by this code, so that everybody understands it, we understand the Shell colors, and if they wanted a sign that said Shell, which I think is a Shell pattern, or at least it used to be. But the canopy over the -- is to be the color of the building, which can be, I guess, a pastel color. We're not taking away their right to have their normal logo someplace on the property; is that -- Page 37 _.A...._....."..._".._.,.._.." _.""m"",_~ _.. ......". ,",. -- June 23, 2005 MR. SNODERL Y: That's correct. CHAIRMAN FLEGAL: Okay. Any other questions? (N 0 response.) CHAIRMAN FLEGAL: Sir, do you want to cross-examine him? MR. MANN: Yes, thank you. For the record, my name is Charles Mann with Pavese Law Firm, here representing Motiva Enterprises. I want to start real quick, and I'll do my best to -- any issues that I cover here, to not regurgitate those in the later cases. And hopefully we can keep each case distinguished. I wanted to briefly ask Mr. Snoderly a question with respect to the permit. You indicated that we have recently requested a permit but it has not been picked up. We have some issues with the investigator, but are you -- do you have knowledge of any previous permit applications for the sign? MR. SNODERL Y: No, I wouldn't be able to speak to that. If you'd like to ask that question, perhaps Diana Compagnone, who is representing the sign inspection department, could perhaps answer that question for you. MR. MANN: Okay. Well, we could do that as well. I mean, I have some case notes you've -- that your office has provided with notes with your name next to them that talk about previous signs. I mean, my understanding, and this is not in the way of testimony, but was that in late 2003 or 2001, Motiva Enterprises submitted for sign permits for the canopy sign. The work was done. Then we have -- as Mr. Snoderly said, in April we have initiation of code enforcement efforts. And then as he indicated, later in the year we did not obtain our sign permits. What I believe the note's saying and was my understanding is that we did not get the final sign-off or certificate of completion on the sign permits in December and, therefore, the permit expired because it Page 38 .__'..,',.m_,....__.__.m m' "",_,__~,_,___" June 23, 2005 has a six-month -- CHAIRMAN FLEGAL: Okay, let's try and do this so we don't get mixed up, and maybe this will work for you. If that's your defense, then tell us that at the end. If you have questions about what he told us, kind of stick to that. But what I hear you doing is you're trying to say that you did have permits. That's your defense. Let's wait till the very end and do that. If you'd question what he's just told us. He said you didn't have permits. Now, if you're saying you do, then at the very end we're you're going to -- your defense, present all that to us and we'll ferret that out. But mixing them together, I think you're going to confuse a lot of people. Would that work for you? I mean, I don't want you to do anything that's not -- MR. MANN: Yeah. No, no, that's -- I understand. I wanted to kind of lay the groundwork, because I did have some questions and I didn't want to have to have him come back up in our defense, although I could, during our defense presentation, I could do that. CHAIRMAN FLEGAL: That's fine, you can do that. You're more than welcome to do that. MR. SNODERL Y: Mr. Chairman? CHAIRMAN FLEGAL: If that's the process that will work for you, you're permitted to do that. MR. MANN: Okay. MR. SNODERL Y: Mr. Chairman, may I speak? To correctly understand what Mr. Mann was asking, I had inferred from his question that he was asking prior to the permit application that's currently in place. Not necessarily going back as far as the origination of the case. That being what his question was, and I have what we could submit into evidence, if we would do that at this point, if necessary, the actual permit application originally from after this particular Page 39 '-'.^' ~-- ---_...,'_...--~. ..~- June 23, 2005 canopy was refaced from what was at the time a neutral color to this color that's prohibited is the original application, and I think that's where Mr. Mann was heading with this. If you'd like that to be submitted into -- MR. MANN: I just wanted to establish that we did make a permit application before the code enforcement effort was initiated. And if the inspector will agree to that. CHAIRMAN FLEGAL: Well, the fact that you made application means nothing. If you painted your sign and didn't have approval to do it, you're in violation. I mean, you know that. You can't say I ran the red light but I got approval from the governor coming but I haven't got it yet. It doesn't work that way. MR. MANN: Well, we received the permit. We didn't get the final inspection. We received the permit, we did the work. We believe, based on the plans we submitted, we didn't get the final inspection. One of the questions I have for him is the reason we did not get the final inspection. The final inspection not being obtain is the reason that our permit expired. And we are where we are in this issue. It is somewhat confusing. And I'm not sure if it's better for me to lay that all after or right now, but I did have some questions on this issue for the inspector, and that's where I was going. CHAIRMAN FLEGAL: Okay. Well, the inspector doesn't do inspections on permits, so he -- MR. MANN: I have notes he made that -- CHAIRMAN FLEGAL: -- is going to be his understanding of something. I think you need in your defense to talk to the person that does the inspections and ask them why they didn't do it. That way they're telling you and us, this is why we didn't do what we were supposed to do, if that's their -- Page 40 "____.m_.'_..k._...__. ....-- -....-.-..,.-.- . ' ~-,---~ -- --'- June 23, 2005 MR. MANN: Okay. Then that will be fine. CHAIRMAN FLEGAL: Because I don't want you asking him something that he has no power over. Because that means nothing. It just confuses the issue, and we're not interested in that. If you'll stick to what he has power over. He says you're in violation. Ask him the questions of what he just told us and we'll hear his answer. And then part of your defense can be call the inspectors, call the permit people, we don't care who you call, anybody you like, and we'll hear why they did or didn't do what they're supposed to do. And that's why you're in the position you're in. We'll gladly do that. Okay? Will that help or hurt? MR. MANN: That will help. And to be honest with you, I don't wanted to belabor the point on this issue because we've already gone and reapplied. We've been working with code enforcement on this issue. I don't want to concede that we're in violation, but we think this is an easy resolution to come into compliance. So I certainly don't want to dwell on this too much. I do want to go to something else. And again, this is part of our defense. I would like to ask the inspector questions on this. I -- you know, to the extent that I say anything that covers every case, I'll try not to rehash that. But I have some questions certainly with respect to the Ordinance that was put up a few minutes ago that governs this. And this is contained in Section 5.05.05 of the code governing automobile service stations. And the first paragraph sort of lays out the intent. And I do have a quick question for Mr. Snoderly. Do you know if there's any residential uses or homes next to this gas station? I mean, is this in a commercial area or more of a residential area? Just simply, how would you characterize it? If you've been -- Page 41 ~"--';~ . .... , ...".-..... -'- June 23, 2005 MR. SNODERL Y: The property that the station sits on is not zoned residential. If that gets where you're going. MR. MANN: I simply -- since you've inspected it a number of times, according to your testimony, I just want to know if this is -- will you characterize this as a commercial area or residential? MR. SNODERL Y: This particular property, for the Board's information, sits at the corner of Collier Boulevard and Manatee, which is very next to the outlet malls down on 951, Collier Boulevard. Immediately surrounding the property would be commercial use. CHAIRMAN FLEGAL: Mr. Mann, can I ask you a question, sir? MR. MANN: Yes, sir. CHAIRMAN FLEGAL: Because we don't want to get confused or off track, Section L talks about gasoline canopy structures, okay? And color banding and all other structures. You've incited your client has a gasoline canopy. Why are we worried about residential? MR. MANN: Well, if you go back to the beginning, we talk about the intent. I believe, and I think it's already been identified, there's some ambiguities in this section. So in determining the intent and whether this applies to us, I'm trying to lay some factual foundation from the inspector who has knowledge of the site as to the surrounding uses. Because the whole intent, according to the code, to this section, is to protect residential land uses surrounding the station. And actually, I'm going to go right to Section L after that. That was just one -- CHAIRMAN FLEGAL: Okay. MR. MANN: And once again, this actually, to some extent, goes to our defense, not in particular to anything that was said, but these are factual questions with respect to this particular site. Since you've already admitted Exhibit B, could we put that back up so we don't have to submit duplicate pictures? I have one simple question. What color is that canopy? Page 42 -,.~-~~_.. ' , ...<~,,-,.".~,,~. ~-_.,,-,..~~ ,>,,,., ----- June 23, 2005 MR. SNODERL Y: I can tell you what color it isn't. And it isn't of the predominant principal structure's color, and it is not the soft earth tone or pastel color. MR. MANN: But you can't tell me what color? MR. SNODERL Y: Well, I don't -- I'm not quite sure if that's the point of our case. MR. MANN: Well, I think pastel or earth tone is the requirement of the code. I personally am not clear as to what that means. I heard one of the Board members indicate that was orange. Now, everywhere in the enforcement -- MS. BELPEDIO: I'd like to object right now. The attorney is making argument. I ask that he specifically be -- CHAIRMAN FLEGAL: Again, you're doing -- MS. BELPEDIO: --limited to asking questions. CHAIRMAN FLEGAL: -- your defense. And if that's going to be it, then you can bring this back up. I understand what you're trying to do, but it's going to apply I think to probably some of your other cases, so let's make that your -- one of your defense items. We understand where you're going, and I think at that point in time would probably be the best. Arguing what he thinks the color is, I mean, he's made a determination, the County has made a determination it doesn't meet the Ordinance. Now, you have to convince us that they don't know what they're talking about, so that's your defense. MR. MANN: And I have similar ques -- I mean, if it's easier to let -- I'm not going to dispute the limited testimony he gave. If it's easier to let each one present their case and then me to have the various inspectors come back up so I can ask questions in presenting my -- our total defense in sum, I mean, I can certainly do that. MR. BOWIE: Because that was the -- CHAIRMAN FLEGAL: It's probably going to make more sense, because it -- Page 43 "-----_....- --- " "_..,..~_.______"'.o --- June 23, 2005 MR. MANN: Okay. CHAIRMAN FLEGAL: -- when the next person gets up and does it, you'll probably stand up and say well, what we said before. And I think you're going to be further ahead of the game if you let them say something, you can ask them some questions and then call them back up when you get ready to give us your defense and say what do you think this color is or what -- and they may not be able to answer you, I don't know. But I think that may work better. Right now it seems that we go this way and then you're going defense, now we're going to get another guy, and I think it's going to be very difficult for the Board to come back and forth. MR. MANN: That would be fine. I'll just bring each person up and -- CHAIRMAN FLEGAL: To give you the best shot. I'd rather you get your best shot. And if at the end if they've each got to come back, that's fine. MR. MANN: Okay. CHAIRMAN FLEGAL: If they're here, they'll do it. MR. MANN: Okay. Well, I don't have any specific questions on the statements he made in terms of cross-examination, so I'll just bring him back up. CHAIRMAN FLEGAL: Any questions again from the Board member for the investigator or somebody else? (No response.) CHAIRMAN FLEGAL: Any questions from the County? MS. ARNOLD: I do have just one question. Mr. Snoderly, you were asked where this station was located, and you indicated that it was around a shopping center. And you also indicated it was on Manatee and County Road 951. MR. SNODERLY: Yes. MS. ARNOLD: The road, Manatee Road, what is that an access Page 44 -_.. ...,.....^>.. -~'._~""'-- ..'.,-----~-,."~.,.',-,""...,.,." ._-~.- --~--- June 23, 2005 to? MR. SNODERL Y: There is actually a number of residential structures on the north side of Manatee, as you head east. On the south side, once you pass that initial commercial zoning, there's residential. And as you get back towards the end would be a school. MS. ARNOLD: Thank you. MR. SNODERL Y: You're welcome. CHAIRMAN FLEGAL: Anything else for Mr. Snoderly? (No response.) CHAIRMAN FLEGAL: Okay, let's go to 17. Thank you, Mr. Snoderly. MS. ARNOLD: Mr. Chairman, we'd like to actually call one of our witnesses, that I think he can testify once -- CHAIRMAN FLEGAL: Okay, fine. MS. ARNOLD: -- for all of the cases. CHAIRMAN FLEGAL: On this particular -- on 16? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Okay. Let me ask one question while you're bringing him forward. How are you doing? Let's hear this witness and before we go forward, we'll give you a break, okay? MS. ARNOLD: Should I go ahead? CHAIRMAN FLEGAL: Yes. MS. ARNOLD: Keith Scamehorn is our next witness. And if you can, Mr. Scamehorn, just let the Board know what your position is with the County and so north. CHAIRMAN FLEGAL: We'll let Cherie' swear him in. (Speaker was duly sworn.) MR. SCAMEHORN: My name is Keith Scamehorn, urban design planner for zoning and land development. And my job is to review colors as they're submitted for different projects such as this. Page 45 "-~....,,,_..._...- ,_._.....b__.."__~~_ ".. ..-- June 23, 2005 And I just wanted to state for the record that if this had been presented, I would not be allowed to accept this, based on what Travis related to you. It's not earth tone and it's in violation to the LDC. And if there's any questions. MS. ARNOLD: Yeah, we just wanted to have him as a witness so the Board could know that he's the individual or one of the individuals that would be doing a review of color. CHAIRMAN FLEGAL: Color, okay. I'm sure that will interest Mr. Mann. All right, any questions for this gentleman? MR. PONTE: Just for point of clarification, sir? CHAIRMAN FLEGAL: Sir? MR. PONTE: Right here. Just point of clarification. What is an earth tone? Just what colors are we talking about? MR. SCAMEHORN: Basically your browns. Colors found in nature. Anything that is subdued and more -- basically your browns. CHAIRMAN FLEGAL: And like dirt and sand? MR. SCAMEHORN: Earth color. Natural colors. MR. KRAENBRING: Mr. Chairman? CHAIRMAN FLEGAL: Yes. MR. KRAENBRING: I don't know if this is the appropriate witness to be asking this of, but when -- if there was a permit that was initially applied for, this color was not submitted? CHAIRMAN FLEGAL: As I understood what Mr. Snodgrass (sic) said, this used to be a different color, and they've changed it to this. MR. KRAENBRING: Okay. So without getting that permit -- CHAIRMAN FLEGAL: Right, they submitted a permit, but they haven't got approval yet, as I understand it. MR. KRAENBRING: Very good, thank you. CHAIRMAN FLEGAL: But Mr. Mann may change all that Page 46 ---.. -.- ".-- -w-",,-. ...v__ --_..-- --- June 23, 2005 when he gets up to defend his client. MR. SCAMEHORN: The new LDC, as -- CHAIRMAN FLEGAL: So that's going to be his end of it. He's going to tell us why he thinks this is a good decision to have this color and the County's wrong. MR. SCAMEHORN: Right. The new LDC, as laid out November 10th, specifically requires all renovations, all paint, to be submitted for review. So that gap is closed up now so that this question won't be bouncing around. CHAIRMAN FLEGAL: All right, sir. Any other questions for this witness? (No response.) CHAIRMAN FLEGAL: Mr. Mann, do you want to bring him back later? MR. MANN: Yeah, for the most part. Could I just ask a couple of quick questions then? CHAIRMAN FLEGAL: Sure. Ask anything you want, sir. MR. MANN: You just stated a minute ago that all painting has to come in to get a permit. Can you tell me in the new code what provision that is? MR. SCAMEHORN: Yes. It's in 5.05.08, Section B, item two, I believe. MR. MANN: Okay. And the other quick question is, did you go out on the site to determine that this color did not meet the code or that it isn't a pastel or earth tone? MR. SCAMEHORN: I've driven by some of these Shell stations and I did notice this picture's documenting it correctly. MR. MANN: This picture -- MR. SCAMEHORN: And it's not-- MR. MANN: -- reflects this particular station -- MR. SCAMEHORN: Right. MR. MANN: -- on Collier? Page 47 - -.-.- ..-..-- ,_...,- "~-".~ ~.. . -,. .-- June 23, 2005 MR. SCAMEHORN: Right. And it's not an earth tone. MR. MANN: From this picture or from your physical inspection? MR. SCAMEHORN: Both. MR. MANN: And was that -- you said you've driven by or you've seen them. MR. SCAMEHORN: Yes. MR. MANN: Do you make that determination by just eyeballing it or -- MR. SCAMEHORN: Yes. MR. MANN: -- did you use as color wheel or anything like that? MR. SCAMEHORN: It's observation based on -- just visual observations. MR. MANN: That's it. And could I get you to pronounce your last name again so I can call you later? MR. SCAMEHORN: Yes. Scamehorn. MR. MANN: Thank you. Nothing further, Mr. Chairman. CHAIRMAN FLEGAL: Anything from the Board? (N 0 response.) CHAIRMAN FLEGAL: Thank you, sir. Before we go to case 17, let's take 10 minutes, give our court reporter a chance to adjust. (Recess. ) CHAIRMAN FLEGAL: Okay, we'll call the Board back to order. Leo, we're going to do 17. MR. BONANNO: The next case is CEB Case No. 2005-17, also versus Motiva Enterprises, LLC. The violation is that of Sections 2.8.4.5.2.3(1), and 2.6.28(17) of Collier County Ordinance 91-102, as amended, the Collier County Land Development Code. Page 48 --,.-, ...,."..,,- -- June 23, 2005 The violation is described as a fuel station canopy of a color that does not reflect the predominant color of the principal structure, and which is of not of a soft earth tone or pastel, as required by Collier County Land Development Code. The violation exists at 6615 Dudley Drive, Naples, Florida. The persons in charge of that location are CT Corporation System, as the registered agent for Motiva Enterprises, LLC, 1200 South Pine Island, Plantation, Florida, 33324. The violation was first observed on April 15th, 2004. A notice of violation was served on May 17th, 2004. The violation was to be corrected by May 31st, 2005. A re-inspection occurred on May 3rd, 2005, and as of that date the violation remained. The investigator that you have at the bottom of your statement of violation, Robert Cruz, is no longer with the department, so I believe Investigator Andy Wuhrer will be presenting this one to you. (Speaker was duly sworn.) MR. WUHRER: Andy Wuhrer, Collier County Code Enforcement Investigator. CHAIRMAN FLEGAL: Yes, sir. MR. WUHRER: This particular case has been in the works -- initially it was established by myself and then given over to Robert Cruz, because that was his area for investigating. And then since he's left, I've taken it back. We started this case on the canopy Shell color. And pretty much what Investigator Snoderly said is going to be redundant by my testimony. Basically the same facts apply. I do have some photos that I would like to enter into evidence, if I may. Let me make sure I get the right ones. These are -- these are actually photographs from the two cases that I will be presenting. And just to make it simpler -- CHAIRMAN FLEGAL: Okay, and this is on this particular Page 49 "~,,--,,,-_._,~-, -""--' ----- June 23, 2005 case? MR. WUHRER: This particular one happens to be the Trade Center Way photo. The photos are identical, I just did not tear them all out of the case. CHAIRMAN FLEGAL: Okay. And you want this to be your exhibit -- or attachment B to this case -- MR. WUHRER: Yes. CHAIRMAN FLEGAL: -- since you already have attachment A? MR. WUHRER: Yes. CHAIRMAN FLEGAL: Okay. Do we have a motion to accept this? MR. BOWIE: So moved. MS. BARNETT: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept this as exhibit -- attachment B to Case 17. All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Any opposed? (N 0 response.) CHAIRMAN FLEGAL: Do you have another one for the same station? MR. WUHRER: I have another one for the one that we're talking about right now -- CHAIRMAN FLEGAL: Okay. MR. WUHRER: -- but it does not come out as bright in the Page 50 ,'-- .,~-"._-~".,. ,..,.,- ..._-_....~,_.,.- "e"__ June 23, 2005 photograph. And I just wanted to be sure the correct color was shown. CHAIRMAN FLEGAL: Okay, we'll make your attachment B two photographs, to make it easier. MR. WUHRER: As was stated prior by the prior investigator, this station in question was reviewed over the last couple of days and there have been no changes to the canopy color at this time. MR. BOWIE: What is the principal color of the structure itself at this location? MR. WUHRER: The color of this is a mixed color. It's primarily a white, if I'm not mistaken. There is some yellow mixed in there as well. MS. BARNETT: Cliff? The code that you cited here is different than the code in the previous case. Is that because this is more of a residential property? MR. WUHRER: This property is a commercial property in the Industrial Center. MS. BARNETT: Okay. I guess these are overlapping codes then, either/or? MS. ARNOLD: Andy, could you answer for the Board when this was issued? I think it's more a matter of when this notice of violation was served and what code was in effect at the time. MR. WUHRER: Sure. Let me get the -- I'll get out of this. This notice of violation which was issued -- CT Corporation was issued on 5/17/04, with the corrections to be made by 5/31/04. CHAIRMAN FLEGAL: Okay. And this was the code in effect then, correct? MR. WUHRER: It was the older code, the 2. -- the 2.8.4.5.2.3(1). And the second was 2.6.28(17). That's under the old code. Prior to the reinstitution -- or the institution of the new LDC. MS. BELPEDIO: Mr. Chairman, I'd like to provide a little bit of insight as to the regulations that were cited. The provision that was cited was in the former LDC Ordinance Page 51 --'.-..~"~ '--'-'~--""-'. ~~---- June 23, 2005 91-102. In September of 2000 and -- no, actually, in July of2005, a new Land Development Code came into effect. You'll see that some cases cite the former and some cite the older, whichever was -- more recent, whichever was applicable at the time. It's my opinion that the present LDC did not in any way alter the prior existing provisions. It was a matter of renumbering, and no provisions were appealed. So it was a seamless transgression of the . . prOVISIons. It's not that the provisions no longer exist, they are still in existence, just with different numbers. We'll just make sure our order reflects the provision in effect today. CHAIRMAN FLEGAL: Right. I already made that assumption. MS. BELPEDIO: Thank you. MR. WUHRER: Yes, I'd like to make one correction if I may also. CHAIRMAN FLEGAL: Yes, sir. MR. WUHRER: The address of the Dudley Road is not within the Industrial Park, but it is a mixed primarily industrial area. CHAIRMAN FLEGAL: Okay. Any questions from the Board? (No response.) CHAIRMAN FLEGAL: Mr. Mann? MR. MANN: Yeah. F or the record, Charles Mann, on behalf of Motiva. I'm thoroughly confused at this point. You indicated that the new codes in effect July, 2005 -- I think we're in June. But I don't -- MS. BELPEDIO: I'm sorry. MR. MANN: July,2004? Okay. MS. BELPEDIO: You're correct, 2004. MR. MANN: I realize that we've got -- we did our best to figure out what we were being cited for, even though a lot of these code provisions don't cite the current code. I was able to find 2.6.28(17). I believe this is the 5.05(L) that we Page 52 -~"."--- ..~---,~--"'''-"'' "".......-..~.... .. ""'M.__.,__ - ---~-~'-'~'-_.' "---+- June 23, 2005 were cited for. I'm not sure where the other one comes from. If somebody could point me to where that is. I'm also not really sure how that one's relevant. There's a page out of -- attached to the Exhibit A that was submitted that has that code section. There's no facts that I saw in the notice to put us on notice that, you know, that there's any violation related to this code section. But also, I'm not sure where this fits in the new code. We don't have to necessarily resolve this right now. Because I'm not sure we're actually being -- based on the statement of facts, that it's really alleged that we're in violation of this. I believe that we're really going to the other section, but I want to confirm that. CHAIRMAN FLEGAL: Well, in the package that was submitted, which I assume you got, because you just referenced -- which would be Exhibit A, the notice of violation is in there and it cites this paragraph. It's on Page 3 of their Exhibit A to this particular case is the notice of violation, okay? And it cites this paragraph you're talking about, 2.8.4.5.2.3(1). It's not an L, it's a 1. It's on Page 10 of this attachment. MR. MANN: And if someone could just tell me where that is in the current code. CHAIRMAN FLEGAL: There I can't help you. But what you're being cited for is a code that's been changed, so -- MS. ARNOLD: Okay, I can probably help clarify this. CHAIRMAN FLEGAL: -- is that being left out or something? MS. ARNOLD: That's -- that section, we'll just dismiss that section, because it's not applicable. CHAIRMAN FLEGAL: Okay. All right, so the County is willing to waive that particular one. MS. ARNOLD: And that's 2.8.4.5.3.1. CHAIRMAN FLEGAL: Right. So the County's withdrawing their violation under that page, correct, Michelle; is that what you're Page 53 ~_.~ --" ----, ,._,-.,.....- ...._..,-_.'"-~~_. ,-,.,...~.-._.,. ._-~.. ....- June 23, 2005 saying? MS. ARNOLD: Right. CHAIRMAN FLEGAL: Okay. MR. MANN: That's it. CHAIRMAN FLEGAL: How does that help? MR. MANN: Perfect. Thank you very much. CHAIRMAN FLEGAL: All right, any questions for the investigator? (N 0 response.) CHAIRMAN FLEGAL: Mr. Mann is satisfied? All right, sir, thank you. Let's get the case 18. MR. BONANNO: CEB Case No. 2005-18 is also versus Motiva Enterprises, LLC. The violations are that of Sections 10.02.06(B)(2)(A) and 10.02.06(B)(2)(D)(9), and 5.05.05(L) of Collier County Ordinance 94-41, as amended, the Collier County Land Development Code. The violation is described as the Shell canopy signs without permit, and fuel station canopy of a color that does not reflect the predominant color of the principal structure and which is not of a soft earth tone or pastel, as required by Collier County Ordinance. The violation is located at 3825 Tollgate Boulevard, Naples, Florida. The persons in charge of that location are CT Corporation System as registered agent for Motiva Enterprises, LLC. 1200 Pine Island, Plantation, Florida, 33324. The sign violation was first observed on May 14th, 2003, and the canopy violation was first observed on April 15th, 2004. A notice of violation for the sign violation was issued on January 28th, 2005, and for the canopy violation on January 7th, 2005. The sign violation was to be corrected by January 28th, 2005, and the canopy violation was to be corrected by January 7th, 2005. Page 54 H'_'..,.._ "_.~._.~ "" ',-'" ~.~",,,.,, ---- June 23, 2005 A re-inspection occurred on May 6th, 2005, and as of that date the violations remained. And Code Enforcement Investigator Sherry Patterson is here to present this case to you. CHAIRMAN FLEGAL: Leo, you referenced 10.02.06.(B)(2). Does it also include -- after the 2(A), does it also include (D) and (IX) ? MR. BONANNO: Yes, I did say that. MS. BARNETT: He said (D)(9), but he's interpreting the IX as Roman numeral nine. CHAIRMAN FLEGAL: Okay, I must have missed that one. I didn't hear it, and I was trying to listen for all the little numbers to see if we had something else pulled out. Okay, cool. (Speaker was duly sworn.) MS. PATTERSON: For the record, my name is Sherry Patterson, Code Enforcement Investigator with Collier County Code Enforcement. As indicated, this particular instance involves two individual cases at the Shell Gas Station at 3825 Tollgate Boulevard. The first case is concerning the Shell canopy signs that are without -- that were without permit. Let me just reiterate for the record, there has been a new permit for the canopy signs. It is not in issued status. It remains in ready status, but has yet to be picked up, as is the instance with some of the other cases we've heard today. Again, that, I am told, is due to the fact that we have unresolved contractor licensing issues with that. The second issue is with the Shell canopy that is painted a prohibited color. And I have a photo that I would like to enter into evidence. CHAIRMAN FLEGAL: Okay. And this will be attachment B to Case 18. Page 55 -~~ ^.,-.........-. June 23, 2005 Do you have more than one drawing? MS. PATTERSON: No. And I have one for the record, if I may. CHAIRMAN FLEGAL: That's all right. We'll use that one. MS. BARNETT: I'll make a motion that we accept Exhibit B. MR. BOWIE: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the County's Exhibit B to this case. All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) MS. PATTERSON: As you can see, the canopy is painted the prohibited color. There's the Shell sign on the side of the canopy. The date the violation was first observed was May 14th, 2003 for the canopy signs. And for the canopy itself, it was April 15th, 2004. A certified copy of the notice of violation was sent certified mail on January 28th, 2005 for the canopy signs, and on January 7th, 2005 for the canopy itself. The date on which the violation was to be corrected was January 28th, 2005 for the sign, and January 7th, 2005 for the canopy. The date ofre-inspection, I visited the site again on May 6th, 2005 and that day the violation remained. And as of yesterday, the violation remains as well. CHAIRMAN FLEGAL: Question, Ms. Patterson. The structure behind the canopy, is that the -- MR. BOWIE: Principal structure. Page 56 ___._m.'.__""'_~____' __n'__,___."__. -- June 23, 2005 CHAIRMAN FLEGAL: -- principal structure, I guess-- MS. PATTERSON: Yes, it is. CHAIRMAN FLEGAL: So it's white? MS. PATTERSON: Yes. CHAIRMAN FLEGAL: Okay. MR. PONTE: Ms. Patterson, when you refer to the sign, you're referring to the Shell name? Is that what you're -- that's the sign part? MS. PATTERSON: Yes, sir. MR. PONTE: And the sign part that has been approved, has that color been approved? MS. PATTERSON: The red-- MR. PONTE: The Shell. MS. PATTERSON: -- color of the Shell? I don't have any knowledge of that. I can't answer that. MR. PONTE: But if the sign's approved -- MS. PATTERSON: I would say that yes that would be acceptable. Yes. MR. PONTE: Thank you. CHAIRMAN FLEGAL: Anyone have any questions for Ms. Patterson? (No response.) CHAIRMAN FLEGAL: Mr. Mann? MR. MANN: I have no questions. I'd just like to reserve my right to bring the witness back. CHAIRMAN FLEGAL: No problem. All right. Any questions from the County? MS. ARNOLD: No. CHAIRMAN FLEGAL: Thank you, Ms. Patterson. MS. PATTERSON: Thank you. CHAIRMAN FLEGAL: Let's do Case 19. MR. BONANNO: This is CEB Case No. 2005-19, again, versus Motiva Enterprises, LLC. Page 57 ..._.,...-....-.._- -~,-'" "",,"._~-"-' _.......m.~"____",. -.---- June 23, 2005 The violation is that of Sections 2.8.4.5.3 -- excuse me, .5.2.3(1) and 2.6.28(17) of Collier County Ordinance 90 -- the statement of violation says 92-102, as amended, Collier County Land Development Code. Correct me if I'm wrong, but that should probably be 91. The violation is described as a fuel station canopy of a color that does not reflect the predominant color of the principal structure and which is not of a soft earth tone or pastel, as required by Collier County Ordinance. The violation exists at 2493 Trade Center Way, Naples, Florida. The person in charge of that location is CT Corporation System, as registered agent for Motiva Enterprises, LLC, 1200 South Pine Island, Plantation, Florida, 33324. The violation was first observed on April 15th, 2004. A notice of violation was served on May 17th, 2004. The violation was to be corrected by May 31 st, 2004. A re-inspection occurred on April 27th, 2005, and as of that date the violation still remains. And once again, Andrew Wuhrer is here to present this case. CHAIRMAN FLEGAL: Before we see him, are you going to -- MS. ARNOLD: I was just going to note that we're withdrawing that same section, 2.8.4.5.2.3.1. CHAIRMAN FLEGAL: Thank you. (Speaker was duly sworn.) MR. WUHRER: As stipulated in the other case, this Shell Station is practically identical to the others. For the purpose of color, I'd like to introduce this particular sign as well. CHAIRMAN FLEGAL: Just for clarification, so we don't get off base, when you say sign, are you talking about canopy color? Because there's a sign on the canopy, so -- MR. WUHRER: Misspoke. CHAIRMAN FLEGAL: -- to me that's two different things. Page 58 - ,-~"~ .-,...,,-............ . ..,,,,- ,.,-~-"--- ""~..,~~ --- June 23, 2005 MR. WUHRER: Misspoke. Strictly the canopy color. CHAIRMAN FLEGAL: So we don't get everybody confused. MR. WUHRER: Yes. This color exists at the Shell Station on Trade Center Way, which is part of the Industrial Park. CHAIRMAN FLEGAL: Okay. And this would be your attachment B to Case 19? MR. WUHRER: Yes, correct. CHAIRMAN FLEGAL: You just have one picture? MR. WUHRER: No, actually I have some other pictures I'd like to show, as opposed to the color that currently exists. How it existed prior to that color change. CHAIRMAN FLEGAL: Okay. Let's make them all your attachment B, how's that? MS. BARNETT: I'll make a motion that we accept all these pictures as attachment B. MR. KRAENBRING: Second. CHAIRMAN FLEGAL: We have a motion and a second. All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. LEFEBVRE: Aye. MR. MORGAN: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: All right, sir. MR. WUHRER: Okay. These are just so that you can see that some of the other colors existed prior to this change to the color that was prohibited. We have other colors within the County. We have a Page 59 -""'"'.'~'"'-~-' ~. ,"-- --~ -... ..- _....______~."_.m. -- June 23, 2005 couple of other Shell stations which are an earth tone or a white, an off-white, so that they are aware that the color must be an earth tone or a pastel. CHAIRMAN FLEGAL: And are these pictures of this particular station? MR. WUHRER: No. CHAIRMAN FLEGAL: Then you need to tell us what they are. MR. WUHRER: Sure. This is this particular station. This is the Trade Center Way station prior to the color change, which shows the gray canopy, shows the gray building, shows the gray poles. CHAIRMAN FLEGAL: And that's the station we're talking about now? MR. WUHRER: Yes, sir, that's the station we're talking about now. These are just other stations around the country that are different than what Shell is known as today with that particular color. It's hard to really see on that, but it is a gray canopy with a yellow stripe. MS. BARNETT: Cliff, I have a question. Would that be permitted? CHAIRMAN FLEGAL: Well, we don't know. MS. BARNETT: I just have a question, though. Because that's not in our area, would that actually be permitted in Collier County under the code, with the yellow stripe? CHAIRMAN FLEGAL: Yeah, I'm having a little trouble understanding the relevance of something in Virginia as to Collier County . MR. WUHRER: Sure. Only that rather than have this be a national color for Shell, I'm just showing that it is not totally a national color for Shell and could conform to the Ordinance without violating that -- CHAIRMAN FLEGAL: Okay. But I'm really more interested in Collier County and what you may have approved at other stations in Page 60 ,.~._."""'-"""--" ....-,--.-.. -..,~."-- ""_.- ~"._.' .-.- June 23, 2005 Collier County. Because we don't know what Virginia's requirements are. MR. WUHRER: Sure. I understand. MS. ARNOLD: And all those other pictures I'm putting as Exhibit B. CHAIRMAN FLEGAL: That's fine. MR. WUHRER: That would be all I have. CHAIRMAN FLEGAL: Okay. Mr. Mann, do you have any questions for him? (No response.) CHAIRMAN FLEGAL: All right, any questions from Board members? MS. BARNETT: Well, just because he used it as an exhibit, in the colors I still have the question. Would a yellow stripe at the base of that be permitted in Collier County? MR. WUHRER: No, ma'am, there's no striping allowed on the canopIes. MS. BARNETT: That's what I thought. Okay. CHAIRMAN FLEGAL: Let's go on to the last case, which is 27. Last case under this particular set. Reclarify so not everybody gets excited. MR. BONANNO: This is CEB Case No. 2005-27, again versus Motiva Enterprises, LLC. The violations are that of Section 5.05.05(L) of Collier County Ordinance 04-41, as amended, the Collier County Land Development Code. The violation is described as the Shell canopy of a -- Shell canopies of a color that does not reflect the predominant color of the principal structure and which is not of a soft earth tone or pastel, as required by Collier County Ordinance. The violation exists at 1033 and 1077 Airport Road, Naples, Florida. Page 61 ...... ...._-".__.~. -~_..._-_..,... . -.-,--..,.-. --- June 23, 2005 The persons in charge of that location are CT Corporation System, as registered agent for Motiva Enterprises, LLC, 1200 Pine Island, Plantation, Florida, 33324, and Mr. Charles Mann, Esquire of Pavese, Haverfield, Dalton, Harrison and Jensen, LLP, 1833 Hendry Street, Forth Myers, Florida, 33901. The violation was first observed on April 22nd, 2005. A notice of violation was issued on May 5th, 2005. The violation was to be corrected by June 5th, 2005. As of June 10th, 2005, those violations remain. And once again is Sherry Patterson. (Speaker was duly sworn.) MS. PATTERSON: Again for the record, my name is Sherry Patterson, Collier County Code Enforcement Investigator. As stated, the violation in this case is only the color of the Shell canopy. I do have a photo that I would like to enter into evidence. Once again, you can see the color of the canopy is of a prohibitive color. I first observed the violation on April 22nd, 2005. A notice of violation was sent on May 5th, 2005, certified return receipt. That green card for the notice of violation was returned on May 12th, 2005. Was received, pardon me, on May 12th, 2005. The date on which the violation was to be corrected was June 5th, 2005, and as of yesterday, the violation remains. CHAIRMAN FLEGAL: Okay, let's make this Exhibit B to Case 27. MR. BOWIE: So moved. MS. BARNETT: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept this as Exhibit B to Case 27. All those in favor, signify by saYIng aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. Page 62 _.'. _'_,_~'.m_^_'~.'_~._~"'__'_'_"_ ----" --.- June 23, 2005 MR. BOWIE: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Any opposed? (N 0 response.) CHAIRMAN FLEGAL: Anyone have any questions? MR. BOWIE: Now, in this case, this Shell sign is permitted; is that -- MS. PATTERSON: Yes, it is. MR. BOWIE: So the canopy color is the only violation? MS. PATTERSON: Yes, sir. CHAIRMAN FLEGAL: Any other questions for Ms. Patterson? (No response.) CHAIRMAN FLEGAL: Mr. Mann? MR. MANN: Yes, I do have some questions on this case. In looking at this picture, and maybe at this time I'd like to -- well, I would like to introduce something into evidence that better reflects this picture. I think not necessarily a better angle but shows the entire building. I don't know if there's any objection to -- CHAIRMAN FLEGAL: You can do that now or if you want to do it when you -- MR. MANN: Just might be easier. Then you can submitted it as one of your exhibits, if you have no objection. CHAIRMAN FLEGAL: No, you can submit it as your -- we'll call it your Exhibit No.1 to this case. MR. MANN: Okay. CHAIRMAN FLEGAL: And you may have more later, I don't know. So-- MR. MANN: Hopefully not. MS. BARNETT: I make a motion to accept Exhibit 1 -- Page 63 - '"~,-_.. --.-- June 23, 2005 CHAIRMAN FLEGAL: Defense Exhibit 1. MS. BARNETT: -- for the defense. MR. LEFEBVRE: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept Defense Exhibit 1 to this case. All in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Any opposed? (N 0 response.) CHAIRMAN FLEGAL: All right, sir. MR. MANN: I'm not going to dwell on this too long, but I would ask Ms. Patterson, does that -- to your knowledge, is that an accurate depiction of the Airport Road site? MS. PATTERSON: It appears to be. I can't actually see Airport Road to get kind of a whereabouts. MR. MANN: I can -- well, that's fine. That's the only thing. I just wanted to keep those together, because hopefully I'll be using all those same exhibits later. CHAIRMAN FLEGAL: I guess since you put this up there for the defense, I'm going to ask you the question, since you're there. I assume that's the primary structure in the back? MR. MANN: Yes, it is. CHAIRMAN FLEGAL: Primary structure color is white? MR. MANN: I'll have several witnesses testify to that. But-- and I'm not under oath, but to my knowledge-- CHAIRMAN FLEGAL: It's your picture and I'm looking at it. Page 64 - - ~ '.." ,...,-~ -.-....- >>-,.".-, -~-- June 23, 2005 MR. MANN: And I drove by it this morning. I believe that the walls of that building are white, the roof is silver of that building, and that is the structure on Airport Road. CHAIRMAN FLEGAL: Very good. That's my only question. Do you have any other questions for Ms. Patterson? MR. MANN: Yeah, I do. This station was just recently cited; is that correct? MS. PATTERSON: Yes. MR. MANN: Do you know -- I mean, I guess I would ask why this was cited a year after all of the other ones. And I would like to note that you did have at least one other case. MS. PATTERSON: Yes. MR. MANN: And could you just tell us why we all of a sudden just cited this one. MS. PATTERSON: Well, with all due respect, the reason why it was cited as it was recently is because I was under the understanding there had already been an existing case open on the canopy. I was made aware by my supervisor that that was not the case, and so then I opened one to do an investigation of my own. MR. MANN: Were you aware of any other -- I guess if it was an open case -- any code enforcement activities with respect to this site in the past? MS. PATTERSON: Not to my knowledge. MR. MANN: Well, what gave you -- could I ask, what gave you the impression that there was an open case on this? MS. PATTERSON: Well, my supervisor indicated to me that there wasn't an open case, and I had saw the Shell canopy and I decided that I would go ahead and open a case on it. MR. MANN: But you didn't have any previous knowledge of any contact between your office and Motiva Enterprises or their agents on this site? MS. PATTERSON: Well, I had heard some things loosely, I will Page 65 "~-""-"""'-'.<'"-'~'-~-"-'---'"'" ,-,"'-- . -"'--'-~------ --'-~-_.-.,--,- -.-- June 23, 2005 say, I don't know the particulars of that, surrounding whether there was or whether there wasn't an investigation. MR. MANN: Well, I have here some -- I don't want to introduce these as exhibits, but some code enforcement notes with Ms. Patterson's name next to it. I can certainly provide these to her to refresh her memory. And I can certainly read them. The note states that -- again, this was information I obtained from public information request from code enforcement -- CHAIRMAN FLEGAL: Is this stuff you want to submit as your Exhibit B under this case? MR. MANN: We certainly can do that. CHAIRMAN FLEGAL: Okay. MR. MANN: Let me go ahead and read it into the record. The statement states that, Shell already benefited from the County's mistake two years ago when the station on Airport Road South was allowed to remain yellow. And I had told them that they have been aware of that since Collier County prohibits that yellow canopy. That leads me to believe that there was some history to this site that you had some knowledge or were told something about the history. And in all honesty, we're trying to find out what that was from code enforcement standpoint. MS. PATTERSON: Well, in all honesty, that was not my statement. It may be next to my name, but that was actually my supervisor who -- whose narrative that is. That's her narrative. MR. MANN: Could you state her name? MS. PATTERSON: Her name is Michelle Crowley. She's present with us here today. CHAIRMAN FLEGAL: Okay. And how many pages are in this whatever you're reading? MR. MANN: Five. Although only one page is relevant. CHAIRMAN FLEGAL: Okay. Well, you're going to submit the Page 66 >-'-~""'---'- "'....0."'.. ..... '^"d".__'_'~ . ~-~ June 23, 2005 five pages or just the one page? MR. MANN: Just the one page. I think we've already established -- MS. BARNETT: I'll make a motion that we accept Exhibit 2 for the defense. MR. BOWIE: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept this one page as Exhibit 2 in the defense for this case. The picture would be one, we'll make this two. We have a motion and a second. All those in favor, signify by saYIng aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Okay. MR. MANN: I think the way we're going, I'll call Ms. Crowley later would be the most appropriate thing. CHAIRMAN FLEGAL: That's fine. MR. MANN: I have nothing further. CHAIRMAN FLEGAL: Ms. Patterson, if I understood, you told Mr. Mann that you didn't make these statements, correct? MS. PATTERSON: No, I did not. CHAIRMAN FLEGAL: Okay. Anything else, Mr. Mann? MR. MANN: And I would just like to let the record reflect, although I think it already came out, that her name is next to that. And those are code enforcement records that I obtained. Page 67 ,~.~~--~~,.,..".,,^ __n> June 23, 2005 MS. PATTERSON: And if I may, I think -- I believe, ifmemory serves me correct, there may be an MTC next to that. That would indicate Michelle Crowley. MS. ARNOLD: What is MTC, No. 87? What is that? MS. PATTERSON: That is Michelle Crowley, and that is her investigator number, No. 87. MS. ARNOLD: May I ask her some questions? Maybe that -- CHAIRMAN FLEGAL: Yes, ma'am. MS. ARNOLD: -- will help clarify what's -- Sherry, is this your name right here? Whoops, let me move it over. On that comment dated June 16th, 2004. MS. PATTERSON: Yes, it is. MS. ARNOLD: Is -- are you the assigned investigator to this case? MS. PATTERSON: Yes, I am. MS. ARNOLD: Are you familiar at all with the operations or -- in terms of the entry into the computer system? MS. PATTERSON: Yes. MS. ARNOLD: And do you put that information into the computer system, or is that entered in by somebody else? MS. PATTERSON: It is entered by somebody else. MS. ARNOLD: Is there -- is this name a default in the computer system, if you're the assigned investigator? Are you aware of that? MS. PATTERSON: No. MS. ARNOLD: Okay. This initial here, MTC, No. 87, is that indicating you wrote the statement? Or what is that indicating? MS. PATTERSON: That's indicating from that point on, that was Michelle Crowley's statement, narrative, if you will. MS. ARNOLD: Okay. There is also -- oops, let me move over, sorry -- TS No. 82. And what is that indicating? MS. PATTERSON: That is Investigator Travis Snoderly. MS. ARNOLD: Okay, thank you. Page 68 -"'--~-----'~----"'''.~'--' --" .,_.- ....'"~--,.,,,..- -"......_-- -_.~--- June 23, 2005 CHAIRMAN FLEGAL: Mr. Mann? MR. MANN: I was actually -- didn't know how long this was going to go. I was going to concede -- I wasn't trying to trap anyone, we're just trying to find out. So I will concede that we will need to ask Michelle Crowley and Travis about that comment. CHAIRMAN FLEGAL: Okay, fine. Any other questions for-- Cherie', make note Rich has to leave. (At which time, Mr. Kraenbring exits the Boardroom.) CHAIRMAN FLEGAL: Any other questions for the investigator? (No response.) CHAIRMAN FLEGAL: None? Thank you, ma'am. MS. PATTERSON: Thank you. CHAIRMAN FLEGAL: Okay, that's our five cases. Mr. Mann -- MS. ARNOLD: We do have a couple more witnesses. CHAIRMAN FLEGAL: Oh, that's fine. I'm sorry, go ahead. MS. ARNOLD: Our next witness is going to be Diane Compagnone. She's with the permitting department and she's a sign permitting tech. She will be speaking towards the permit activity that she has knowledge on for -- you had five cases? Okay, for all the cases with the exception of the Airport Road case, which was CEB 2005-27. CHAIRMAN FLEGAL: Okay, that's the only one that has no permitting infraction, correct? MS. ARNOLD: Correct. (Speaker was duly sworn.) THE COURT REPORTER: Could you spell you name, please? MS. COMPAGNONE: C-O-M-P-A-G-N-O-N-E. CHAIRMAN FLEGAL: Would you pull the mic. down a little bit so we can hear you better? There you go. See if that helps. MS. COMPAGNONE: I'm Diana Compagnone, sign review Page 69 '-'--'-_._-- ,.,.,-----,..-., --"p"', June 23, 2005 specialist for the building department of Collier County. And on the Trade Center Way and Toll Gate Boulevard and Dudley Drive and Collier Boulevard, permits were issued in December of 2003 for the Shell canopy signs. And that included just the canopy signs, not the color of the canopy. I had a conversation, when I approved these signs, between one of two people. I dealt with two people at Progressive, between Nicit (phonetic) and Jennifer. And at the time when these were permitted, I did give them a heads up and I said, the canopy color does not appear to be earth tone or pastel, but your sign that I'm permitting does meet code and I did issue those permits for them. When we went out -- that was from the drawings that I received. When we went out for inspection between Mike Vignari, who used to also be a sign review specialist, and myself, when we did the inspections on April 20th of 2004, we observed -- we failed the inspection because there was no permit number on the signs, which is part of the inspection, and also that the canopy colors we did observe did not meet the earth tone or pastel. And we did note that in the computer, which is on line for the inspection histories. CHAIRMAN FLEGAL: Okay. MS. ARNOLD: Ms. Compagnone, did you approve or fail any of the sign permits because of the color? MS. COMPAGNONE: We did not fail the inspection, although we did note the canopy color on there. We failed the inspection because there was no permit numbers on the signs. CHAIRMAN FLEGAL: Okay. CHAIRMAN FLEGAL: Questions from Board members? (No response.) CHAIRMAN FLEGAL: Mr. Mann? MR. MANN: Yeah, one question on the last point. Did you make any statements or indicate to any of the code enforcement Page 70 -_......._._~.._,--_.. ,,-,-.__...- ...._~...,~~ --".., .-- '- June 23, 2005 officers who have testified today that you failed these signs inspections because of the color issue? MS. COMPAGNONE: It was always the permit number that was not on the signs that was the primary reason that we failed the sIgns. And of course the canopy color did come up because it was a question mark, and it was determined that that was a separate issue from the sign permit. And that's why we allowed you to reapply for the Shell canopy signs when they expired, so that you could permit the signs themselves as a separate issue. MR. MANN: Okay. You said the primary reason. I guess again I'm not clear. Did you ever tell any code enforcement officers that the sign could not be finally inspected and therefore were not in compliance because of the color, or was it solely the permit number, or both? MS. COMPAGNONE: At one point it was both issues, but the permit numbers were never on the sign, so that was the primary reason why that we failed it. We checked several times. MR. MANN: Okay. And another question, you indicated that you made several statements to different people, with presumably Progressive Development, but purporting to represent Motiva, at the very least, that that color might be an issue. Could you just elaborate on these conversations and what took place? MS. COMPAGNONE: Well, it was one of two people, because I dealt with both people. And all the packages came in at one time, so it was a statement that was made to one of those two people one time. And when I did the permits, we had just gone through the Sunoco Station where that canopy color came into effect. So we knew that the canopy color needed to be pastel or earth tone. And so I did inform Progressive at that point in time that the color needed to be earth tone or pastel, that was what the code was. Although we do not permit -- at the time we didn't permit repainting. Page 71 . . -.....--.--- ...--- ~,.,-_.- . .- ..- .__"_ ""~'''''_~_'m"''_ '--^-.-- June 23, 2005 MR. MANN: You said when you did the permits, and that -- I guess what I'm getting at is these conversations, did they take place during the permitting process? MS. COMPAGNONE: Yes. If I have any questions, and I always call the contractor to let them know when their permits are ready. Or if I have any problems with them, if they can clear it up over the phone. MR. MANN: And then the statements that you made were now, as I heard your last statement, that color needed to be an earth tone or a pastel? MS. COMPAGNONE: That was a heads up that I gave them, right. It did not interfere with my sign permit, because I'm only doing the sign. MR. MANN: Well, I guess what I'm getting at is to your recollection. I know this was some time ago. But is that to your recollection your exact statement? MS. COMPAGNONE: I believe my exact statement is this is a heads up that the color does not appear to be earth tone or pastel. And I believe I read them the section of the code. MR. MANN: I have nothing further at this time. CHAIRMAN FLEGAL: Thank you. County, anything for your investigator? MS. ARNOLD: (Shakes head negatively.) CHAIRMAN FLEGAL: Anything else from the Board? MS. BARNETT: Well, I have heard a couple of different times that there has been a permit that hasn't been able to be picked up now in several of these locations and it's because of something to do with the contractor licensing; is that correct? MS. COMPAGNONE: Correct. The company has come in-- Shell has come in and they have reapplied for these permits that have expired and paid the re-inspection fees on those. And I have approved the permits. Page 72 ~--,- ,..."..... --- ,-"-, .- June 23, 2005 But in the process of approval, their contractor -- the license is not in the active status, it's actually in a canceled status. So they need to renew their license with the County. It's just a matter of them making sure they've paid their renewal fees and insurance. CHAIRMAN FLEGAL: Something we need to understand, that even if someone was in violation and has corrected the violation, prior to it coming before the Board we can still find them in violation. That's permitted. So they still do not have permits, so -- right now. It's being presented that there is a violation, period. Mr. Mann, obviously you have a question. MR. MANN: Just real quick, I wanted to clarify that there's only two cases that I believe that we're being alleged to be in violation for not having a permit. So I want to clarify in all of this mix that this current testimony about the permits really is only applicable to two cases and that we're only being alleged to be in violation of not having a permit on two cases. And I don't know, I believe Ms. Arnold might -- MS. ARNOLD: Yes, you're right. The cases that we have permit violations on are Case No. 18 and 16. MR. MANN: I would agree with that. CHAIRMAN FLEGAL: Okay. Any other questions for the investigator -- I'm sorry, for the permitting? (N 0 response.) CHAIRMAN FLEGAL: Thank you, ma'am. Do you have any more witnesses, Michelle? MS. ARNOLD: We have one other witness. Gary Dantini. (Speaker was duly sworn.) MR. DANTINI: For the record, my name is Gary Dantini. I am a former Collier County code enforcement investigator. MS. ARNOLD: Gary, can you tell me whether or not you've had knowledge of any of the cases that was brought before this Board today? Page 73 -'-'_.""~-- ""-"--,,, June 23, 2005 MR. DANTINI: The knowledge I have is on the Airport Shell Station. MS. ARNOLD: Okay. And what information do you know about that, please? MR. DANTINI: I observed them repainting their canopy and with a stripe. And part of their building, I believe it was, in a particular color that wasn't acceptable to Collier County. MS. ARNOLD: And did you stop at that time to advise them of anything? MR. DANTINI: Yes, I talked to the contractors at that time. MS. ARNOLD: What did you advise them at that time? MR. DANTINI: I advised them that they should first of all remove the stripe on the canopy and that they needed to revise the color also. MS. ARNOLD: Did you follow through with a case at that time? MR. DANTINI: Yes, I did. I also took it over to architectural review to -- for them to make a decision as far as whether that color was permittable or not. MS. ARNOLD: And did they make a determination at that time? MR. DANTINI: At that time, I -- they did not at that moment. And since that point I had left the County. MS. ARNOLD: So were you able to follow through with that -- MR. DANTINI: I was not able to follow through with the whole case. MS. ARNOLD: Thank you. CHAIRMAN FLEGAL: Any questions from the Board? (No response.) CHAIRMAN FLEGAL: Mr. Mann? MR. MANN: You may have already said this, but the case that you're discussing, was that the Shell Station on Airport Road? MR. DANTINI: That's correct, sir. MR. MANN: Did you hear the testimony a few minutes ago that Page 74 .---,.--""..--,.,.- --.~,_.... .'. '. "~____. _"n June 23, 2005 there had not been any open case on that site? MR. DANTINI: I believe that Michelle Crowley had said that there was, there possibly was one. MR. MANN: There possibly was one. MR. DANTINI: Apparently the paperwork has been misplaced, SIr. MR. MANN: Okay. And I don't know that this is particularly relevant here, but I'd like to at least let the record reflect that I did a public information request for any code enforcement cases on this, past or present on this site, and I was told that the only case was this current case, which was just very recently initiated. Okay, so we have now established that there was an open case, you were working on this with the Airport Road site. Can you -- you indicated there was a stripe and it had to be removed. Can you elaborate on what the color scheme was on the canopy that you found to be in violation or that you deemed to be in violation? MR. DANTINI: Well, they had a red stripe around the canopy. MR. MANN: A red stripe? What color was the canopy? MR. DANTINI: It was a color that was nonconforming to Collier County. MR. MANN: Can you elaborate? I mean, can you give me an idea of what that other color was other than -- I mean, if you can identify the red stripe it seems reasonable that you can tell me what the color scheme was. MR. DANTINI: It was as very, very bright yellow. MR. MANN: It was a bright yellow with a red stripe? MR. DANTINI: That's correct. MR. MANN: Okay. And I think I recall hearing some testimony that you had gone to people in community development to try and figure out what needed to be done. Did you ever advise either Motiva Enterprises or its agents as to Page 75 ,'.---.- ---,._- +..---....".... .~>-.~,- June 23, 2005 what they needed to do for compliance? MR. DANTINI: I notified the contractor that I would look into the situation as far as the color. MR. MANN: Did you issue a notice of violation? MR. DANTINI: No, I did not. MR. MANN: Okay. So you indicated to the contractor that there is a color issue, but with no advice on how they could comply. MR. DANTINI: Yes, I did. I did tell them it would have to probably be a pastel or earth tone color. MR. MANN: Can I ask you a question? Do you consider that to be a pastel or earth tone color? MR. DANTINI: No. MR. MANN: I have nothing further at this time. CHAIRMAN FLEGAL: Anyone else have any questions for Mr. Dantini? MS. BELPEDIO: I'd like to ask Gary a couple of questions. Gary, I'm wondering what you mean by a case was opened. Do you mean that it was being investigated or did you mean that it was open in the system? Did you mean both? MR. DANTINI: Both, as far as I know. MS. BELPEDIO: Did you open up a case in the system? MR. DANTINI: I didn't personally. I mean, I wrote out a -- help me out here now, when you first open up a case. MS. BELPEDIO: Is it possible you're trying to -- an action order? MR. DANTINI: Yes, I opened up an action order. Excuse me. MS. BELPEDIO: Did you follow up on that action order to see if a case was opened? MR. DANTINI: When I turned it in, after I talked to the Planning Department, no, I did not. I believe I had left after that. MS. BELPEDIO: So is it fair to say that you cannot say with certainty that a case was ever opened in the system? Page 76 ,~____.._,_."..__.u._,,' ^ ._'" ~ """'U ._"--...---~ .---- June 23, 2005 MR. DANTINI: I physically did not see it after the action order, no. MS. BELPEDIO: Okay, thank you. CHAIRMAN FLEGAL: Mr. Mann? MR. MANN: Could I ask one quick question? When you left, are you aware, did you turn the case opened or unopened over to anybody else, or are you aware of anybody else who was working on this at the same time or that would follow up? MR. DANTINI: Well, we all were pretty well inundated with lots of cases, and the files were probably spread out through the other three sign investigators at that time. So I don't know who got what, where, when and how. I have no idea. MR. MANN: Okay. While you were here, was anyone else in code enforcement working on this case? MR. DANTINI: No. MR. MANN: You were the only one? MR. DANTINI: Yes. MR. MANN: I have nothing further. CHAIRMAN FLEGAL: Anyone else have anything for Gary? (No response.) CHAIRMAN FLEGAL: Thank you, sir. MR. DANTINI: Yes, thank you. CHAIRMAN FLEGAL: Michelle, do you have anymore -- MS. ARNOLD: That's it. CHAIRMAN FLEGAL: You're done. MS. ARNOLD: Yes, we're done. CHAIRMAN FLEGAL: Mr. Mann, you're up, sir. MR. MANN: Okay. At this point I'm not exactly sure how I should organize this, because some of the testimony we just heard kind of lays the groundwork. I guess what I'll do is just initially start by going back to the code. We have a couple different violations on several of the sites, but Page 77 ___. .^...M_'.^.."......__...,...._,._......_.._,...._.".___~_.. ._.~-.....,., _b._ June 23, 2005 really, the main violation on the one that we keep hearing over and over again is 5.05.05(L) in the current code which states the color accent banding on gasoline canopy structures and all other structures is prohibited. Canopies shall be of one color, consistent with the predominant color of the principal structure, if applicable. The color of all structures on-site shall be of soft earth tones or pastels. I'll be honest with you, when I first -- when this case was first brought to me, I didn't really know what that meant. I then -- when I drove into town this morning, I paid particular attention to the gas stations I saw on my way. Now I'm firmly convinced that I have no idea what most of these standards mean, or that every gas station I saw for the most part is not in compliance. Some of which appear to be painted very, very recently. We see a picture here that's a perfect example. It basically says canopies shall be of one color. No one's asserted that the -- none of the inspectors have asserted that this canopy is not of one color, yet I see, you know, red, yellow, white on the inner part of the canopy. I don't know what's being referred to. I also will note, I guess in terms of argument more than testimony, but on my way here I did not see one gas station canopy that I thought was all of one color. There's always multiple colors. Everyone had white columns, the white decking underneath. I mean, I couldn't understand how this can be applied. I also -- the principal structure is silver, it's white. Is that an earth tone, is that a pastel? I don't know. It's a question for you to determine. Is this yellow a pastel? We've seen some pictures where the color looked orange. You know, that may vary on the lighting, it may vary on when you go out to the site versus a picture. We do know that Shell has these trademark colors that are very important. Sometimes they have different color schemes, but nonetheless, there's a general motif there that I think is associated with the Shell trademark. Page 78 M ~_'<.'____"_M _'-._'~._"._._^.",.,"' ~-,.- '_'_"'w -'-- June 23,2005 I also don't know what the principal structure part of this means and what the predominant color is. Is predominant color the one that takes up the most surface area? Is predominant color the one that jumps out at you? I was passing two BP's on -- BP Service Stations on Airport Road on the way in. As I'm driving down the road, I see a white canopy. I see the portion of the service station building, which I believe would be the principal structure, come into play, and it's green. I then get one view behind the trees and I see it's actually a white building with a complete green roof. Now, to me the predominant color is green, because that's the one that jumps out at me, that's the one I notice. The service station canopy fascia did not match up to that at all. It looked very out of place, it did not look consistent in any way whatsoever. I also don't know what color banding is. We've heard apparently that the previous -- testimony that the previous canopies have color banding. I do know that no one's asserted that we have color banding now, even though I don't know what that means. I would say at the very least we've gotten rid of one alleged violation there, we've gotten rid of the color banding. I also would note that most of these service stations, I saw many that had one color fascia, a different color decking underneath and where there's a pitched roof, a different color roof. I don't know if that's color banding. I mean, I thoroughly arrived here confused as to what this meant in any way whatsoever. That being said, and, you know, basically asserting that we're not in violation because one, we can't figure out what's being asked. I think yellow by its nature is a pastel color, or is certainly a color that is often a pastel. I mean, there's some of the notices of violations we didn't get into where the officers alleged that the violation was actually that we were -- had a primary or secondary color. I'm not Page 79 ,--,-_. ". .-"-_.~---.._.~"._._.,,~ _0..". June 23, 2005 sure I understood that. But what it did tell me is that even the various people within the County aren't sure what this means. We had one officer come up and testify that he, you know, eyeballed it. He drove by. He feels that an earth tone -- and I don't know ifhe was opining as what a pastel was. But we heard browns, colors of the earth. I don't know that yellow fits into that, but I would think that for example, the color shirt here certainly -- this color shirt in front of me appears to be a pastel. So to the extent that you can make any determination as to color under this Ordinance, I would say that yellow is a pastel. And certainly they cannot say, based on that, that that yellow is -- or that our service station colors are not a pastel. And keeping in mind that the burden of proof is on them. What I would like to do is bring forth several representatives of the contractor responsible for the work that was done on these. And I'd start with calling Tim Bauer. (Speaker was duly sworn.) CHAIRMAN FLEGAL: Mr. Bauer, would you lift the microphone up, sir, so we -- you're a tall gentleman, and maybe we can hear you better. MR. BAUER: Yeah, I was in charge of this Airport Road project here. And I did speak with Mr. Dantini on the phone while our contractors were on-site on the project. MR. MANN: Let's actually -- if we could step back a second. I would like to hear, and I think the Board would like to hear you indicate what the prior color scheme was on the Airport Road -- which I believe is the one we're looking at -- on that canopy was. MR. BAUER: Right. The canopy fascia was gray, and it had a yellow band around the bottom of it. MR. MANN: Okay, and then you -- MR. BAUER: The building was a gray building, and it had a Page 80 --~,.._..,.,....~ ."h__,_,_.._. --.....,-..-....~--".,_..-. _.~.~---""' -. "- June 23, 2005 yellow what they call wainscot. It was about 18 inches to two-foot band around the perimeter of the bottom of the building also. MR. MANN: Okay. And then that -- as we heard earlier, that was repainted. Could you elaborate on that color scheme to the extent it's inconsistent with what we heard before? MR. BAUER: Right. Well, the repainting was the building. The building walls were to be painted white. The yellow at the bottom of the building was painted a gray color. The color on the fascia portion of the building was painted yellow and red. The canopy was to be painted yellow with six and a half inches at the bottom of it to be white. And then a red band around the perimeter about three inches above that. So it was actually going to be three different colors. MR. MANN: Okay. And following that work, were and you approached by anyone from the count? And you can go ahead and just -- MR. BAUER: Right. While our crews were on-site, I had the foreman call me on the phone and I spoke with Mr. Dantini at that time. And he did indicate there's no way you can put the color banding up. And I mean, you're going to have to take care of that. And he did have an issue with the color also. At that time I was directed to the Planning Department, which I believe I spoke to Ross Gochanour, I believe was his name. I went through for about a month back and forth with the Planning Department. I started out with Ross. And I took these out of some notes I had in my day timer . But then I talked to Irene Szmorlinski, and I think she was in architectural review. I spoke to -- I finally wound up speaking to Ray Bellows, Mike Vickman (phonetic). And I spoke to these people for a good month regarding this issue to determine how I could get a permit. There was no provision to do a permit. Whether the site was more nonconforming now than it was previously. Could I keep it gray? No, Page 81 ~----,~- . ..- "-"- June 23, 2005 gray isn't an acceptable color either. So -- you know, so I keep it yellow? I mean, they went round and round. They indicated to me that they spoke to the County attorney regarding this. Then the final resolution was yes, hey, we're going to -- you can paint the whole face of the canopy, you need to get rid of the banding. That was a resolution, too. And I never heard anything regarding this particular site after that until the beginning of this month when they brought this back up. And this is from April of 2002, so this is over three years ago. MR. MANN: And just to clarify, when you said the resolution was to just get rid of the stripe and paint the fascia, what color? MR. BAUER: Well, we painted it yellow. MR. MANN: And that was the color they told you? MR. BAUER: Right, right. MR. MANN: I have nothing further. CHAIRMAN FLEGAL: Who told you to paint it yellow? MR. BAUER: I think it was Mr. Dantini. He did not want the -- they were very -- they definitely were not going to let the banding go. And then as far as the color issue, that's when I got into, you know, dealing with the other people here. All these other people that -- at the time. They told me that no, there is no provisions to paint, so what is becoming more conforming or less conforming. I would think that this is less, is less nonconforming than the previous. You know, we went round and round about that for a while, at least a good month back and forth on the phone regarding these issues. CHAIRMAN FLEGAL: And the only one that told you you could paint it yellow was Mr. Dantini? MR. BAUER: No, I spoke with the rest of these people about what we have and -- you know, what we were doing, that we got rid of the banding. I mean, you all have a color chart, can we do a lesser Page 82 '_.e, --..,.. " ..'~-, "....-"',.--..' ._~~,_. ."-- June 23, 2005 color of a yellow, can we -- and at that point it was well, we don't have any -- I mean, we're not doing any major renovations to this building. I mean, do I come and get a permit? How do I determine this? Well, we don't have any provisions in the code to do. You need to follow the code. What colors can I use? Well, I don't know. Is gray? Can I paint it gray? Well, no, gray's not a color. Can I paint it yellow? Yellow's not a color. So, I mean, that doesn't mean -- yeah, an earth tone, a brown, let's paint it a brown. CHAIRMAN FLEGAL: I guess what I'm trying to get to is it's yellow, you painted it yellow. Who told you you could paint it yellow? I'm trying to figure that out. MR. BAUER: Well, no, we had originally painted it yellow with the banding. There was no permit required to paint a structure. So we painted the structure. Mr. Dantini -- CHAIRMAN FLEGAL: We're not arguing about a permit, we're talk arguing about a color now, sir. MR. BAUER: Right. CHAIRMAN FLEGAL: I don't care about a permit. Let's get back to the color. MR. BAUER: Okay. CHAIRMAN FLEGAL: Because this is talking about the color has to be like the principal structure. So I'm trying to figure out, in all these people you talked to, how did we get to yellow? Forget the permit. MR. BAUER: The yellow was the original color other than the red and the white that we were originally painting it. So we had a red stripe and a white stripe. CHAIRMAN FLEGAL: Okay. MR. BAUER: So I was told to get rid of the banding. CHAIRMAN FLEGAL: Okay. MR. BAUER: So if 80 percent of the canopy was yellow, then it Page 83 ~_'_~"~""'_'_""'^' "...".m_ ~-'._-_. _.,,~~._- -..-- June 23, 2005 was paint the rest of it yellow. We're going to get rid of the small red band and the small white band. CHAIRMAN FLEGAL: Okay. So you got rid of the banding-- MR. BAUER: Correct. CHAIRMAN FLEGAL: -- and you were never cited for painting it yellow. MR. BAUER: No. CHAIRMAN FLEGAL: Is that what -- MR. BAUER: Correct. CHAIRMAN FLEGAL: And now you're cited for it being yellow, but you're saying back then you just got rid of the banding. So I'm trying to get all this -- MR. BAUER: Right. CHAIRMAN FLEGAL: It was yellow and now they're telling you it can't be yellow. MR. BAUER: Right. After three years, correct. CHAIRMAN FLEGAL: Well, that's fine. I mean, unfortunately things -- and I don't know how all this occurred, but we've -- MR. BAUER: Right. CHAIRMAN FLEGAL: -- heard hundreds of cases where something was the way it was 20 years ago, and now they don't have a -- whether it be a permit or whatever, and we're making them get rid of it. So I don't care what color it was. You were cited now. And I'm trying to figure out if somebody in the County -- MR. BAUER: Right. CHAIRMAN FLEGAL: -- gave you authority to paint it yellow so that we can resolve this issue now. And you're telling me no, you just -- that was the color and you talk took the banding off and you just assumed yellow was okay because you were never cited for it, correct? MR. BAUER: They certainly didn't tell me that I had to change Page 84 _._.._"'w. _............ .,"_...~~,_,__,.."._""m.".",.," . "...~.~~- __..h_.. June 23, 2005 the color -- CHAIRMAN FLEGAL: Okay, that's fine. MR. BAUER: -- at that point. CHAIRMAN FLEGAL: I'm not against that. What I'm trying to get to is now they've said it's the wrong color, so -- MR. BAUER: Right. At this point they were okay with it. CHAIRMAN FLEGAL: Okay. Back then you weren't cited but now you're cited. MR. BAUER: Correct. CHAIRMAN FLEGAL: Okay. So I don't have a problem with that. MR. BAUER: Right, right. CHAIRMAN FLEGAL: My problem is it's wrong now. And I'm looking for your defense and right now it ain't washing. MS. BELPEDIO: Mr. Chairman, I'd like to point out that although the Rules of Evidence do not formally apply in this proceeding, I would argue that the testimony you're hearing is hearsay, and that certainly this Board could give it less credibility than other -- CHAIRMAN FLEGAL: We understand that. MS. BELPEDIO: -- testimony. Okay. CHAIRMAN FLEGAL: That's not a problem. I'm just trying to figure out -- MS. BELPEDIO: Thank you, sir. CHAIRMAN FLEGAL: -- how it relates to being cited today. And it's -- it ain't working. MR. MANN: May I follow up? CHAIRMAN FLEGAL: Yes, sir. MR. MANN: Did anybody at code enforcement or at the County tell you that this color scheme was the resolution to the issue that they identified? MR. BAUER: No. MR. MANN: Okay. So your basis for the fact that this is not in Page 85 --------" -'--'-- June 23, 2005 violation was the fact that it went a number of years and you just didn't hear anything? MR. BAUER: Well, we painted the bands the color yellow also. And, I mean, after reviewing this stuff with all these different people, I mean, no one could actually tell me that I didn't have to have that color, or that it was just -- you know, like you said, it was very confusing. MR. MANN: Okay, nothing further. CHAIRMAN FLEGAL: All right, sir. Do you have anybody else, Mr. Mann? MS. ARNOLD: Can I just ask one question? CHAIRMAN FLEGAL: Oh, yes, ma'am. MS. ARNOLD: Did you -- and this is just being asked another way. Did you get anything in writing from any of those officials in the County that this color that the Shell Station on Airport Road is painted is in compliance? MR. BAUER: No. MS. ARNOLD: Thank you. CHAIRMAN FLEGAL: Any Board member have any questions? (No response.) CHAIRMAN FLEGAL: Thank you, sir. Mr. Mann? MR. MANN: Yeah, I'd like to call Richard Hernandez with Progressive Development, same company. (Speaker was duly sworn.) MR. HERNANDEZ: My name is Richard Hernandez. I'm a project manager with Progressive Development Group and I oversaw the four service stations other than Airport Road. MR. MANN: Just to clarify, you oversaw the permitting -- MR. HERNANDEZ: Correct. MR. MANN: -- of those? Page 86 'M,_'___~__'__~,_ . ~"""'-'''''' .. ~""--'~'- June 23, 2005 And those permits were the -- what we heard sign permits that were issued? MR. HERNANDEZ: That's correct. MR. MANN: Are you familiar with the plans that were submitted along with those permit applications? MR. HERNANDEZ: Yes, I am. MR. MANN: I would like at this time to introduce Exhibits 3, 4, 5 and 6, reflecting the plans that were submitted to Collier County for 3825 Toll Gate, 2493 Trade Center Way, 6100 Collier Boulevard, and 6615 Dudley Drive. And these are plan sets. And I'll have him look at it. CHAIRMAN FLEGAL: Okay. MS. BARNETT: I make a motion for 3, 4, 5 and 6 of defense packet be submitted as evidence. MS. ARNOLD: You want them as evidence? CHAIRMAN FLEGAL: May I have a second to that, please. MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and a second to accept the defense packets 3, 4, 5 and 6. All in favor, please signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. LEFEBVRE: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Okay, sir. Are you going to ask him questions about it? MR. MANN: Yeah, I didn't know if they were going to make an obj ection or -- Page 87 ,----.-,.-_. x ___'.'w.~~~__." June 23, 2005 CHAIRMAN FLEGAL: No. The way we operate is you submit them and -- MR. MANN: They're down there, but are you familiar with those plans? MR. HERNANDEZ: Yes, I am. MR. MANN: Are they all consistent with respect to the applications in what was being requested? MR. HERNANDEZ: Yes. MR. MANN: Okay, I'll just let them stay there then and question you. Do the plans show the work that was going to be done, do they show the color scheme, do they show all the painting was that was going to be done? MR. HERNANDEZ: The plans reflect the colors that are proposed on the canopy, the primary structure, the curbing, the dispensers, the canopy poles, the light poles. Absolutely everything on the property is in general covered with one section or another. Up to the doors. MR. MANN: And are there codes or other identifiers for those colors on those plans? MR. HERNANDEZ: Yes, there are. There's numbers that are reflected in a table of what is being colored what specific color. MR. MANN: Okay. And based on your knowledge of the site and the pictures we've seen, were the -- was the work that was done, particularly with respect to the canopies, in accordance with the plans that were submitted? MR. HERNANDEZ: Yes, it was. MR. MANN: Okay. To your knowledge, was -- I mean, you've heard some testimony from the permitting department. To your knowledge, was color raised by Collier County? MR. HERNANDEZ: Yes, it was. MR. MANN: And what was the issue? What were the Page 88 ~~-"'> --~-"'>'--""- ., "',,~',"d.> '--,"._~" _.,--- June 23, 2005 statements that were made to you? MR. HERNANDEZ: Well, what I was told was that the color might be an issue with -- the color being used for the canopy, that it might be an issue. MR. MANN: And when you said you were told, was that by either Nicit or Jennifer? MR. HERNANDEZ: Jennifer Deem (phonetic) did reflect that to me upon completion of her conversation with Diane. MR. MANN: Okay. And then when did that take place in reference or in relation to the submittal of the permit and the issuance of the permit? MR. HERNANDEZ: Based on my memory, it took place relatively soon after the initial submittal. They said that there may be an issue, and we basically were -- we, you know, were waiting for some sort of like a direct comment as to the color. MR. MANN: And when the permits were approved for you to do the work, was there any statement at that time that you're aware of, or did those permits raise any issue with respect to color? MR. HERNANDEZ: No. No, nothing on the permits that were issued reflected any color issue on them. MR. MANN: Okay. Are you aware of or has anyone from the County indicated to you there's a process for this, a permit that's required, something you need to do to paint these existing structures? MR. HERNANDEZ: No. MR. MANN: Any color review process? MR. HERNANDEZ: No, not at all. MR. MANN: And were you aware of Mr. Bauer's experience with the Airport Road site and everything that transpired there? MR. HERNANDEZ: Yes, I was. MR. MANN: And at any time in the permitting process -- you've heard testimony that these weren't finalized, the inspections weren't done, and then the permits expired. Page 89 --< - -. _.~ -",- "__'~"*"'_'N_"'.__.",",,"., . . ".M,...~,.~.."h"'_'"_'''___~''_' ,--._--. ."".,----_.,-~..,--,.._-- June 23, 2005 At any time were you told that the final inspections wouldn't be done or the permits wouldn't be released until the color issue was resolved? MR. HERNANDEZ: My contractor did contact me and inform me that they would not be able to finalize the permits due to the color. And they did mention the plates, I believe, that had to be placed on the sign. MR. MANN: And I have no further specific questions. Anything you would like to add on this, you know, feel free. MR. HERNANDEZ: No, not at this time. CHAIRMAN FLEGAL: These drawings and packages that you just submitted, they were submitted when? MR. HERNANDEZ: They were submitted -- I believe it was November of '03 that they were submitted. CHAIRMAN FLEGAL: Okay. And the color on there for these canopies was what -- MR. HERNANDEZ: Yellow. CHAIRMAN FLEGAL: -- on those drawings? MR. HERNANDEZ: Yellow. CHAIRMAN FLEGAL: Yellow, okay. MR. MORGAN: Is that on your painting schedule, yellow? MR. HERNANDEZ: Every -- the way these plans are set up is they have one primary page that has the entire site plan laid out on it. It reflected yellow on that page as part to the canopy, canopy color. MR. MORGAN: Specifically-- MR. HERNANDEZ: Fascia, yellow. MR. MORGAN: Specifically defined? MR. HERNANDEZ: Specifically defined for the fascia to be yellow. Specifically defined for the canopy columns to be white. Specifically defined for the 12 inch gray band at the bottom of the building. Specifically defined for the white walls on the perimeter of the building. Page 90 -~.-- . --~--,_.-- OH._....___......... .,...._-,--'" June 23, 2005 And that was not only on the primary site plan, but there was an individual sheet that reflected elevations of each individual structure, including the primary building, including the canopy, that reflected yellow fascia, white columns, gray band at the bottom. MR. MORGAN: Okay, on that sheet that shows the elevation of the canopy, the color, did they mark it up and say that this color may not be approved? MR. HERNANDEZ: No, sir. MR. MORGAN: On your official -- MR. HERNANDEZ: On the permitted drawings, there were no markups on it. MR. MORGAN: Thank you. CHAIRMAN FLEGAL: Okay, and you -- for what you submitted, you did get a permit? MR. HERNANDEZ: Correct. CHAIRMAN FLEGAL: Okay. MS. ARNOLD: Can I ask him a question? CHAIRMAN FLEGAL: Yes, ma'am. MS. ARNOLD: Did the drawings say yellow and specify what kind of yellow? MR. HERNANDEZ: No. They specified yellow. MS. ARNOLD: Just yellow, the word yellow. MR. HERNANDEZ: They specified the word yellow and they specified a number, which is a Sherwin Williams color number. MS. ARNOLD: Can you show me that? MR. HERNANDEZ: Sure. CHAIRMAN FLEGAL: We need you up on the mic. so we can -- MR. HERNANDEZ: It states on Page 2 under canopy, install new ACML pollex skin with pre-finished No. 49 yellow. MS. ARNOLD: Okay. Did you get any notations or anything authorizing that yellow? Page 91 -"-_.---.._..,..-._----_...-~- ...".__._.""...-~".~,~._- ,....-,-.- June 23, 2005 MR. HERNANDEZ: No, ma'am. MS. ARNOLD: Okay. CHAIRMAN FLEGAL: You got some type of a -- other than your -- I don't know the process, so I'll ask the question. When you submitted this set of drawings, you got something back approving them, right? Whether it was a permit or letter or something? MR. HERNANDEZ: Correct. CHAIRMAN FLEGAL: Any questions, Mr. Mann? MS. ARNOLD: And with the approval, did you get a comment back from the permitting tech that there may be an issue with the color? MR. HERNANDEZ: The comment that I referred to earlier was done at the beginning -- in the middle of the review process. I'm honestly not sure exactly where exactly in the review process, but I don't remember it being at the very end of it. MS. ARNOLD: Okay. Was there a notation on any of the permits that you received, again at the inspection process, noting that there may be an issue with the color? MR. HERNANDEZ: During the inspection process? MS. ARNOLD: Correct. MR. HERNANDEZ: No, I didn't receive anything personally in terms of an inspection process, markup or anything like that, no. CHAIRMAN FLEGAL: Mr. Mann, do you have any -- MR. MANN: I just briefly wanted to ask you -- well, let me first say, were all four sites that we're now talking about, which is the four sites with the exception of Airport Road, did they all have the same color scheme for this work that was done that we're currently talking about? MR. HERNANDEZ: Yes, they did. They were -- MR. MANN: And if you could just go ahead, briefly describe the canopy and the building. Page 92 "-_.~._---,...,--_._,._~~..,....,- _._~----~~... "--._.- June 23, 2005 MR. HERNANDEZ: The Shell image that they had was an image that they had started I guess in the mid to late Eighties. It was called the Silverado image. Basically it was a gray -- flat gray background with a six-inch yellow stripe along the bottom of it. In terms of the canopy itself, it had gray columns coming to the ground and a darker gray base at the very bottom. The yellow stripe was lighted. In terms of the primary structure, it also had very similar characteristics, gray body, yellow stripe that's lighted, and the gray roof. CHAIRMAN FLEGAL: Okay. And this yellow canopy was part of that. It wasn't gray with a yellow stripe, it was this one yellow color totally; is that what you're telling me? MR. HERNANDEZ: No, it was gray -- CHAIRMAN FLEGAL: Gray with yellow stripes. MR. HERNANDEZ: -- and a yellow stripe along the entire bottom of the canopy. CHAIRMAN FLEGAL: Okay, but you-- MR. HERNANDEZ: Of the fascia. CHAIRMAN FLEGAL: But you submitted drawings -- they changed that to make it all yellow; is that what you're saying? MR. HERNANDEZ: To make it all yellow. MS. ARNOLD: Can I ask another question? Was your submittal of this for a sign permit? MR. HERNANDEZ: Yes, it was. MS. ARNOLD: Okay, thank you. CHAIRMAN FLEGAL: Okay, I guess now I have to ask the question. This whole package of drawings, when you submitted this it was submitted for what purpose? MR. HERNANDEZ: It was submitted for approval of the work to be done. Because I know that -- CHAIRMAN FLEGAL: In other words, painting the whole complex or just putting a sign up? What was it for? Page 93 ~--~---'_._-~----'~- "'~~'-'~ -- June 23, 2005 MR. HERNANDEZ: The only process that it had to be submitted for was for strictly the sign. That's the truth. It was submitted strictly for the sign, because that's what they asked for. CHAIRMAN FLEGAL: So somewhere on this drawing, there's a sIgn or -- MR. HERNANDEZ: There's a sign reflected everywhere throughout. But this is a submittal package that -- you know, it reflects an entire scope of work. CHAIRMAN FLEGAL: But it's for -- you had to submit it for a sign, not for -- MR. HERNANDEZ: That's the only requirement that we had. CHAIRMAN FLEGAL: -- approval of the painting. THE COURT REPORTER: Excuse me, you're both talking at the same time. MR. HERNANDEZ: That's the only requirement that we had. CHAIRMAN FLEGAL: A sign. MR. HERNANDEZ: Correct. CHAIRMAN FLEGAL: You did not a submit it for approval of repainting the complex? MR. HERNANDEZ: No. There is no paint permit required in Collier County. At that time, I guess. CHAIRMAN FLEGAL: Any other questions? (N 0 response.) CHAIRMAN FLEGAL: Thank you, sir. MR. HERNANDEZ: Thank you. CHAIRMAN FLEGAL: Mr. Mann? MR. MANN: I guess let's go ahead, start with Mr. Scamehorn. THE COURT REPORTER: Spell your name, please? MR. SCAMEHORN: S-C-A-M-E-H-O-R-N. CHAIRMAN FLEGAL: Pull the microphone a little closer, sir. Thank you. MR. MANN: You stated earlier in your testimony that Page 94 ----.---,.....-. --- . .-. . ",. ..~,,;~, . ........... -,"~"-'''' .-,,-,.._.,-,"~-_.""- --- June 23, 2005 repainting currently requires a permit and that requirement is contained in Section 5.05.08(B)(2) of the Land Development Code. MR. SCAMEHORN: Yes. MR. MANN: If there's a code over there, can I have you look at that? Or -- or I can bring you mine to read, or I can read it. MR. SCAMEHORN: What I'm referring to is what was passed November 10th. And that's not in the printed book at this point yet. But you had a question about that? MR. MANN: Well, yeah, I have what I believe to be the current published version. Certainly the version that was applicable at the time all this work was being done, and I -- MR. SCAMEHORN: In the past there was not a case. It's just recently. November 10th is a new issue in the permit LDC. MR. MANN: November 10th of2004? MR. SCAMEHORN: Yes. MR. MANN: Okay. Were you involved in -- if you're in charge of painting and architectural review, were you involved in coming up with that Ordinance or that change or revision to the code to require a painting permit? MR. SCAMEHORN: No, other people were involved with that. MR. MANN: Okay. But that's a new provision? MR. SCAMEHORN: Yes. MR. MANN: So prior to that, no painting permit was required? MR. SCAMEHORN: Yes, you're correct. MR. MANN: I have some other general questions from (sic) you with respect to the section of the code that is primarily at issue here, which is 5.05.05(L). I again do not understand what this means. But it's my understanding that you're in charge of looking or reviewing architectural review or aesthetic considerations. MR. SCAMEHORN: Yes. MR. MANN: Could you tell me, in your opinion, what color the Page 95 _.~~__.,'_"__ ._.w.~_,_._.._ ~""-~~'" .....- ...- --,-,~,."~ ,_"_n_"_' ._~-~.,---~_._--~- .._- June 23, 2005 canopy is in that picture? MR. SCAMEHORN: In that picture, it appears to be a yellow classification. MR. MANN: Is that the only color, or can you tell me what you believe the canopy to be comprised of there? MR. SCAMEHORN: Basically it's the yellow that is currently prohibited. Primary colors and secondary colors are prohibited. MR. MANN: Well, the code as I read it says the colors shall be of soft earth tones or pastels. MR. SCAMEHORN: That's another section of the code, yes, that's correct. MR. MANN: Okay. So it does or doesn't prohibit primary or secondary colors? MR. SCAMEHORN: There's other parts of the code that will prohibit primary and secondary colors. MR. MANN: For new work? MR. SCAMEHORN: Yes. MR. MANN: I mean, is that -- MR. SCAMEHORN: -- yes. MR. MANN: -- part of the architectural review-- MR. SCAMEHORN: Yes. MR. MANN: -- that was applied to new work? MR. SCAMEHORN: Yes. MR. MANN: Is yellow by its nature an earth tone or pastel? MR. SCAMEHORN: It's a primary color. MR. MANN: Is there white on that canopy? MR. SCAMEHORN: White? MR. MANN: In other words, we said that -- you mentioned before that it's yellow. To me we've been referring to that as the fascia. That's what I -- MR. SCAMEHORN: Yes. MR. MANN: -- understand to be the fascia. Page 96 ^"'----"....-.- ~'--'- .~..,"~.'" --"'.-- ~.__..,"_...,---- June 23, 2005 MR. SCAMEHORN: Yes. MR. MANN: Since you're charged in part at least with interpreting this, I'd like just to know what you think in that picture comprises the canopy. I mean -- MR. SCAMEHORN: The fascia we're referring to. MR. MANN: Okay. So when it says canopy structures in the code, it's really just referring to the fascia. MR. SCAMEHORN: The way the code's written now, it's all three: The soffit, the fascia and the poles themselves, supports. MR. MANN: Okay, what colors are the soffit and the poles in that picture? MR. SCAMEHORN: White. MR. MANN: Okay. Is there more white than yellow? MR. SCAMEHORN: That's subjective, right. MR. MANN: I mean, I'm not going to beat this to death, but part of our defense -- I mean, it really is very confusing. I think if everybody left the room and we came and polled everybody, that people would have a very different idea of what this code says. And not with just respect to the canopy. I would ask the witness, what's the predominant color of the principal structure? Again, he doesn't have to answer that. I mean, I think you see where -- MR. SCAMEHORN: The question is not predominant in the yellow aspect in the code. MR. MANN: Well, we've been charged with being inconsistent with the predominant color -- MR. SCAMEHORN: Right. MR. MANN: -- of the structure. I see white and silver. I see a lot of white on our canopy. I mean, I don't know. CHAIRMAN FLEGAL: Okay, that's one question I was going to ask you, because you're trying to -- I guess part of your defense and what you're trying to tell us is the yellow isn't the predominant color; Page 97 ,~_._..,". . "._~-".~~,,,.. -- June 23, 2005 you're talking about the white underneath and the poles. And if I look at the paragraph that you don't understand, it says canopies shall be of one color, consistent with the predominant color of the principal structure, okay, if applicable. And if I look at the principal structure and it's white and silver, your canopy is white and yellow, I've got a problem. White and silver, hey, I might buy it. But if your structure is white and silver, why should we agree that white and yellow is the same as the predominant structure? MR. MANN: And I'm not -- I'm actually -- CHAIRMAN FLEGAL: So, I mean, I guess what I'm trying to say is yes, we're talking about because it's yellow and you keep saying well, what's the -- how are you picking out because it's white underneath. And what I'm trying to visualize is I go to the structure, it's white and silver. So automatically if I look at your canopy, it's white and yellow, you're guilty. Ifit was white and silver, I'd say you've got a great argument. It's white and yellow, not white and silver. MR. MANN: Okay, well -- CHAIRMAN FLEGAL: Convince me. MR. MANN: -- we first heard that it was just yellow. Now we've come around -- I mean, what I'm getting at -- CHAIRMAN FLEGAL: You keep bringing that up and you keep trying to convince them that -- to say what is a structure. And I think everybody sitting up here is pretty intelligent and we already know that. And our problem is you're not meeting the principal structure. You've got white and yellow instead of white and silver. So convince me why yellow's acceptable. You haven't done that yet. MR. MANN: And I'm not sure yellow is or isn't acceptable. I mean, it's up to you to determine whether that's a pastel and all the other things with yellow. But where I'm going is we've heard some testimony as to what Page 98 --,"_....-~..,--- ~~-- ""---""'---""'--- '~K"__ June 23, 2005 the previous principal structure was -- or that principal structure and what the previous canopies were. They had banding, they had gray. They also were not the same as the principal structure. Now, these stations, prior to the painting, were nonconforming uses. As I understand the code, and I'll point you to Section 9.03.03(B)(2) which speaks towards -- I'm sorry, (B)(l), which speaks toward nonconforming structures. It says that no nonconforming structure may be enlarged or altered in a way which increases its nonconformity, but any structure or portion thereof may be altered to decrease its nonconformity. Now, if you decide that this is -- does not in fact meet the code, I would at least assert to you that it did not meet the code for the same reasons before. And in addition, it had color banding, it had grays. And that if anything, we've made this structure and canopy more conforming than it was before. And I don't think that there's any intent here to go ahead and tell us we have to repaint anything, particularly when there's no repainting permit. We had -- rightly or wrongly, we came away with -- you heard testimony that we came away with the impression from the Airport Road case that it wasn't clear or no clear color determination was made by the County and articulated. We did the painting that we believed we were being told to do. No code enforcement actions were undertaken until recently. We then come in and we permit the other four, using the same color scheme that we believe was what was allowed under the code. Nonetheless, we go ahead and we put those colors in great detail with Sherwin Williams color codes on them on the plans. Now, I understand that all that was required was a sign permit, so that's all that was issued. But nonetheless, we submit those plans, we show the color, which we still believe if in fact it's nonconforming it does not increase or enlarge the nonconformity here. There was some discussions that color might be an issue. The Page 99 ----_.,._....,--~,,---_..._.,-_.. -~." _.~"._- June 23, 2005 testimony varies a little bit on exactly what those discussions were. But nonetheless, the people who had the applications were looking at color. Yet the final approval didn't have any notation saying color was -- that the color was wrong or that that color couldn't be used. Now, I understand that's not part of the sign permitting process. But at the very least we can see from all the testimony and reading the code that this is a very confusing issue. I think it's fair to expect the County to tell us you need to -- after submitting these plans and having attention brought to the color and noticing the color, that they tell to us come in and talk to someone, you know, so-and-so in community development that reviews architectural review, that they provide us with a color wheel, do something to put us on notice. Instead we issue -- they issue us the approval, we do the painting, and then shortly thereafter -- and I actually might need to have some more testimony from the officers, but I will say from the notes that I have obtained, shortly after we did the work code enforcement came out, they gave us a notice of violation. I have notes here that seem to indicate that along with code enforcement, people from community development came out on site from the architectural review. I think it's Virginia? Carolina. MS. ARNOLD: Is testifying? Mr. Chairman, is he testifying or is he -- CHAIRMAN FLEGAL: No. MS. ARNOLD: I'm not clear what he's doing. CHAIRMAN FLEGAL: He's just giving information. I mean, as with all these, whether it's the lawyer or whether it's you yourself, that's not testimony. So, I mean, he's making an explanation, but it's not testimony. MR. MANN: I'm simply making my argument. I can -- I will elicit -- MS. ARNOLD: Is that your closing argument? I'm trying to Page 100 --~-"~._'-~.. ""-'~. .'.,.. -,-""- '^"---- -~._-- June 23, 2005 figure out where you are. MR. MANN: No, we got -- we're trying to keep it as organized as possible. I got off on a tangent. I can certainly -- I'll tell you real briefly what I'm going to do, then I'll bring the officers up. From my understanding, after the work was done, code enforcement came out to the site. They brought people, Carolina, who's (sic) at least was in charge of architectural review. She brought up color wheels. They did all sorts of -- looks like several times on the same site to me. They made all these determinations. What I don't understand is why didn't they do that before they issued the permit. Then we would have been on notice. I mean, clearly Shell, it's a big company, and although we -- you know, the color scheme is very important, we have no intent to try to pull a fast one and come in and do something that's going -- that, you know, we're going to be told to repaint. That wouldn't make much sense. And -- let me think. I don't know if I have anything more. And I probably ought to stop there and get some testimony. CHAIRMAN FLEGAL: Yeah. And this -- in what you're just now telling us, if you have somebody that can testify to all this, that's what you need to do for us. MR. MANN: We'll start with Travis Snoderly. CHAIRMAN FLEGAL: Is he still under oath, or does he need to do it again? MS. ARNOLD: He's still under oath. MS. RAWSON: Yeah, two-hour hearing. CHAIRMAN FLEGAL: You're fine? Okay. Jean, is he still under oath, or do we need to do this again? MS. RAWSON: No, he's still under oath. CHAIRMAN FLEGAL: Okay. MR. MANN: You're familiar with -- well, are you familiar with all these cases, to some extent? MR. SNODERL Y: To some extent would be an accurate Page 101 ,~-~,_...-" ..._---,,-,---- ---.,- "._,-- "tali -,~.,- -- June 23, 2005 statement, yes. MR. MANN: Okay. Can you say that -- do you know who Caroline -- MR. SNODERL Y: Carolina Valera. She's the principal planner with Collier County. MR. MANN: Okay. Is she or was she one of the persons charged with reviewing color or other architectural considerations? MR. SNODERLY: Yes. MR. MANN: To your knowledge, did she come out to the site that you were involved with with a color wheel and compare the color of the canopy to that color wheel? MR. SNODERL Y: Well, if you'll indulge me, let me look briefly and just confirm. Because we've had quite a bit of contact with them in regard to the canopies. In most cases, if she did go on-site, it was not with me, I can testify to that fact. MR. MANN: Okay. To your knowledge, did she ever go out on-site with a color wheel? MR. SNODERL Y: We had requested -- in fact, I've just found it here. And this would pertain to Case No. 2004-040-785. On 10/5 of '04 I made a request via voice mail with Carolina to visit the site with a color wheel. CHAIRMAN FLEGAL: What -- you're talking about a specific case number? MR. SNODERLY: Yes. CHAIRMAN FLEGAL: And what was that case number? MR. SNODERL Y: I'm sorry. This is 2004-040-785. This is under CEB Case No. 16. CHAIRMAN FLEGAL: Sixteen, okay. MR. SNODERL Y: Again, 10/5/04 I requested Carolina to make a site visit with the color wheel. That was via voice mail. On 10/22, I left another message for her, again requesting her Page 102 ----_.-----"~._~ _.".........,._...._"._."...._.....-.,..__.~~~......B<._ ,_.'" ','.~ -",,- -- June 23, 2005 contact. On 11/5 I left a message for Mr. Bauer, with Progressive here, as I was informed that Kirk was no longer with the company, requesting their plan to address the violation. To get to your question, Carolina did indicate to me in discussions, whether it was via color wheel or visual observation without color wheel, that this particular color was a violation of the code. MR. MANN: Okay. Do you by any chance have your -- the code case detail report there with you -- MR. SNODERL Y: I do. MR. MANN: -- for this one? Can you read just briefly the first entry or -- well, the first entry on my sheet is 4/15/2004. MR. SNODERL Y: Sure. This was my opening case notes. This was from my patrol case on April 15th of 2004. My patrol notes were, canopy is in fact the yellow/orange Shell logo color. Took photos. Will confer with Carolina, architectural review, to see if allowable. MR. MANN: Okay. And then can we go to I think two pages forward. Let's just, for example, take 9/9/2004 on the third page. MR. SNODERL Y: Of this particular note, talked to A W No. 93, which is Investigator Wuhrer, who confirms he spoke with Carolina, who suggested we all meet on-site with color wheel in near future to determine if a violation exists. She will contact him to arrange time. MR. MANN: Okay. So to your knowledge, is there a color wheel in existence that Collier County uses? MR. SNODERL Y: No. MR. MANN: No? MR. SNODERL Y: No. I have found that in fact there is not a color wheel per se that they had available to them at this particular time. They have their own standards of color which they -- and I can't testify to that. Mr. Scamehorn would have to. Page 103 ._.,._m"_''''_"__~,.~_"__" .__ ,'_'''_ ~._".._-_.-._..,..,_.~- June 23, 2005 MR. MANN: Okay, I actually have nothing further. Thanks. MS. ARNOLD: Can I ask a clarification? Are you -- when you said there is no color wheel, are you referring to today or at the time of your -- MR. SNODERL Y: At the time of the notes that I made on the case, there was not a color wheel available to them. That is my understanding. That may differ from the case today. MR. SCAMEHORN: There is no color wheel today either. MR. MANN: Can we -- no, thank you, nothing from this witness. CHAIRMAN FLEGAL: Anybody have any questions? (No response.) CHAIRMAN FLEGAL: Okay, next? MR. MANN: Could I go ahead and recall Mr. Scamehom? CHAIRMAN FLEGAL: Sure. MR. SCAMEHORN: Yes. CHAIRMAN FLEGAL: Still under oath, sir. MR. SCAMEHORN: Yes. MR. MANN: I just overheard you. Can you briefly state for the record whether there is or is not a color wheel in existence used by Collier County. MR. SCAMEHORN: No, there is not at this time. MR. MANN: And at this time, you require repainting now -- MR. SCAMEHORN: Yes. MR. MANN: -- correct, although that was not required at the time this work was done? MR. SCAMEHORN: Yes. MR. MANN: How do you determine whether something is an earth tone or a pastel? MR. SCAMEHORN: Okay, as far as earth tone, it's a descriptive -- by definition of earth tone in the painting industry, it's an earth color type. Page 104 -~"--"""'---'." ---.- ._..~--~- June 23, 2005 Pastel, by definition, is a subdued color. We're trying to get that flash out of the primary colors. So you push it towards the pastel or subdue it so that it doesn't stand out striking like yellows or primary colors do currently. We're working on a more clearer definition using panettone at the moment, but it's not out at this time. Does that answer your question? MR. MANN: I have nothing further. CHAIRMAN FLEGAL: Any more witnesses, sir? MR. MANN: No, I think that will be it. I'll go ahead and briefly summarize. And then are you going to make a closing? I'd like to just summarize and then reserve some time to make my closing statement after the defense presents one. CHAIRMAN FLEGAL: Go ahead. MR. MANN: We've seen various pictures of these sites. To me the colors of the canopies look different, depending on the lighting, the shading. They probably look the same when you go out there. I don't know what a pastel is. Maybe you can say that you know it when you see it and that yellow is not it. What I can say, that it is very confusing. I think it was confusing to me when I walked in, particularly after driving past the service stations in effect now. It's just as confusing after hearing County staff testify as to their brief of what's in violation, what these terms mean. I think it would be very unfair and inequitable to require Motiva to repaint these signs, which are their traditional corporate colors -- not that that means that that can allow us to violate the code -- but given the history here where, you know, we were involved on an Airport Road site, there were conversations with the County, it's not clear whether the County ever -- well, actually, it appears that the County did not make affirmative statements or anything in writing to paint this yellow, but nonetheless there was repeated discussions. The engineer at Progressive who works with the County did not come away with any clear impression as to what could or could not be Page 105 --'-"- ".__'.._.m__..,._'_'_ 0-"_- June 23, 2005 done. The paint scheme that was done on that site stayed in existence, and it's right down the road. It's not hidden. I mean, everybody probably drives past it every day, yet it was not cited till several months ago. You couple that with the fact that we submitted permit applications, albeit for sign permits, but those are the only things that were required at that time, showing everything we were going to do, showing the exact color, showing color codes. Permits were approved. We did the painting, in conformance with those permits and the plans that we submitted. Several months later code enforcement then came out, they started citing us, they started conversing with the different people. All this activity appeared to go on. We can't understand why we should be punished when we put them on notice of what we were doing. We did -- I mean, our contractor is from out of town. We did everything we could. We asked the questions, we laid it out on the plans. We had previous experiences that we were drawing from in doing what we did. We believed what we were doing was allowed. Now, you might say geez, you know, that isn't pastel, you could have been conservative, you could have put something else on those canopIes. But keep in mind, this is very important to Shell. It's their image. And while, we -- you know, they have no intention of violating the code, when it's clear to us, or at least it's not clear that we can't do this, I don't think given all the circumstances, that we should be expected to now have to repaint after we've made substantial expenditures and reliance on conversations, on permits that were issued, on all of this the stuff and have now painted this, that we should have to remove this color. With respect to the code, I think we've already gone over in great Page 106 ----~-_.._...- -., ~~ - -.-,.--.- -...----..-- ..---- June 23, 2005 detail, at least my opinion, that it's very confusing. I still don't know what it means. I don't know what predominant color is, I don't know what consistent is. I mean, I look at this one, which is only representative of Airport Road. And if I step back -- even though in terms of surface area the main color of the building is silver and white, if I step back, I think that canopy is consistent with that building. It's got a similar pattern, similar color, similar logo, a little bit of fascia here, a little bit of fascia on the main building. I think it's consistent. So I don't believe that, at least in these five cases, that we should be required to repaint this at a substantial expense, not get the value out of the painting we did, when we relied on everything we heard from the County, everything we knew in good faith as to what was allowed and what wasn't allowed. And at the very least, if you deem this to not be in compliance, we think we should at least have a good period before we have to do anything else. Several years. I mean, even though Shell's a big corporation, it's been repeatedly stated to me that there are finite budgets involved here, and it's not just as simple as hey, we can shell out another 20, 30,000 here on this station, another 20,000, 30,000 there. So at least we should have a lengthy period of, say, a couple of years or something, if you do determine that we have to remove these, for us to come into compliance. I'm -- you know, again, maybe back to the permit issue. We did apply for permits. Keeping in mind, we've only been cited in two cases there. As you can see, there was a lot of back and forth. There was various issues. Although we did not have the tag number, we have been working with code enforcement. We went ahead and we've reapplied for those permits. Those is pending. If we want to set a time for compliance on that, 30, 60 days. I don't know what it should Page 107 -- ."__0._' ,....-. --......--. ".-.-- June 23, 2005 take. Apparently it's on our end with our contractor. Apparently we don't need a heck of a lot of time to come into compliance on that issue. And even though we kind of debate the reason as to why those final inspections weren't issued, we have every intention of following through with those four permits that are in there and getting those tag numbers on there right, getting inspections done. And I would say to you that we'll come into -- you know, to the extent we weren't in compliance, we'll come into compliance there. And then I'd just like to reserve a few minutes to respond to have a final closing statement. CHAIRMAN FLEGAL: Not a problem. MR. MANN: Thank you, I appreciate it. CHAIRMAN FLEGAL: Michelle? MS. ARNOLD: I just want to start by saying the permit issues are clear. They either have the permit or they don't. And they don't have the permit at this point. With regards to the color, I just want to point out what that language says. It says color accent banding on gasoline canopies, structures and all other structures is prohibited. It's clear that you can't put banding. Both of the contractors that spoke for Mr. Mann understand what banding is. If he doesn't understand what banding is, maybe he should talk to his contractors. It further goes on to indicate that canopies shall be of one color. I want to repeat that again. Canopies shall be of one color, consistent with the predominant color of the principal structure, if applicable. And the if applicable language refers to if you have a canopy on the building and there's no other primary structure, then of course you're not going to be consistent with a building that's not there. It does say canopies shall be of one color. If you want to interpret the structure, the entire structure, as Mr. Mann has been pointing out, as the entire canopy, then it's still not in compliance with Page 108 '---'" '._.~-,,---". ..' ..._~ ~-'--'- June 23, 2005 that language because it's of multiple colors. It's got yellow on it, it's got white on it, it's got red. If you want to interpret it as the canopy fascia, which his contractors have pointed out that's what they call that yellow banding, or yellow portion of the structure, then it does not comply with this section because it does not conform to the predominant color of the structure, the primary structure on the building, the principal structure on the building. Again, it's not in conformance. The predominant structure on the building from what I see is white. And if you want to include the roof, then it's silver and white. Mr. Mann pointed out that there's language in the nonconforming section of the code that says that you are allowed to reduce the nonconformity, and that's exactly correct. The language goes on to further say -- and that is related to when we have nonconforming structures that have been nonconforming because of changes in the regulation. There's some situations where the structure itself is almost impossible to conform with the regulations because, for example, we changed the setback provisions, and so without them removing a portion of the structure, they cannot conform. But the County understands that, and so to the best you can conform to the code, you should try. In this particular case, we're talking about a color. It's not impossible to conform with the color. So they could, to the best of their ability, conform to the code today. And it's not a matter of reducing the nonconformity. Both of the respondent's witnesses testified that they have not received any written authorization from the County to paint the canopy in the colors that they have painted it. The plans that were submitted were submitted for sign review. We had testimony from our sign permitting person that said she reviewed it for sign only. She Page 109 -.,-,.---.--.. "-~ = "-'^ June 23, 2005 did not review it for the canopy color. She gave them a heads up, as her note said. I think it's pretty clear that the issue at hand is not conforming with the code, and we believe that the Board should find it in violation. I do believe that Jennifer does have a statement as well. MS. BELPEDIO: Michelle has asserted the facts on the County's behalf. I'd just like to assert the County's legal position. I just wanted to remind this Board that if it finds that permits -- that it is more likely than not that permits were not pulled, that it can find in the County's favor. If this Board finds that the color of the canopy is not consistent with the predominant color, if it's more likely than not that it's not consistent, it can find in the County's favor. If this Board finds that the color of the canopy is more likely than not an earth tone, more likely than not a pastel, then it can find in the County's favor. I would submit to you that if a person were to contract with a painter to paint their building and be flexible and say I would like an earth tone building, I would like a more pastel building, if that person received this color here in these pictures, that person would have the right to complain and not be satisfied that he or she received an earth tone color or pastel color. I think reasonable people would find that this color is not earth tone, not a pastel. Additionally, although Mr. Mann has not directly asserted the -- or specifically stated the defensive of equitable estoppel, I think that's the route that he's going. As Michelle has said, Diane Campagnone has testified that she solely reviewed the plans for the sign and not the painting of the canopy. But I would submit to you that even for the sake of argument, if she had known of the color, had seen a chip and had reviewed for that color, that it is within the County's legal right to pursue the case, Page 110 ^"~"'._;~_~_"_'_"__'''''__'''_'_''~M_._,.U__ . -.'-...--.--....--.,.- '~-,"._---- June 23, 2005 and even revoke any permits or other approvals that had been made by the County. There's a tremendous amount of case law that speaks to these sorts of issues. I do have a case with me called Surfside. And that can be -- where is it? Actually, it's Pine Crest Lakes, Incorporated. It's out of the Fourth District Court of Appeals. This is one of the more egregious cases, and in this case the court ruled that 136 units in a building that had received development approval, zoning building permits that was constructed and CO'd had to be removed because that building's construction did not comply with the County's comprehensive plan. The court concluded that it was not appropriate to sanction, you know, an unlawful use on the property, and they compelled the building to be demolished. This is certainly not as egregious. The color can be changed. But it's the same set of circumstances. CHAIRMAN FLEGAL: Okay, are you done? MS. BELPEDIO: Yes. CHAIRMAN FLEGAL: Mr. Mann? MR. LEFEBVRE: Chairman Flegal? CHAIRMAN FLEGAL: Yes. MR. LEFEBVRE: I just want to go on record stating that I'm going to be leaving. I have a prior engagement. CHAIRMAN FLEGAL: Okay. We've still got six so we're okay. MS. BARNETT: Our alternate can vote now, right? (At which time, Mr. Lefebvre exits the Boardroom.) CHAIRMAN FLEGAL: Yeah, our alternate has now become a permanent member, so you get to vote on this, sir, and you have heard everything, so -- MR. MANN: I guess I would firstly talk about the Pine -- I mean, I'm not going to debate the case. Pine Crest is completely inapplicable here. I mean, I don't even know where we're going with Page 111 ._,-... -.-,,-._--~..- ~-_.._..."... ".,.._._._".,~- June 23, 2005 that. And I would assert that it would not support that you can tear down our building. Whether you were inclined to do so or not. We also heard a statement that if we hired a painter to build a pastel or earth tone, he'd want his money back. I don't know what kind of legal argument that was, but I don't know that that's necessarily true. What I'm also trying to get at is not that we couldn't have been more conservative. I think we stated that. We could have probably, you know, picked a color like this shirt in front of me and said it's a pastel, but nonetheless, we're trying to do what will maintain our image, what's very important to us, but yet stay within the code. We believe we were doing that and we still believe we are doing that. No written authorization was brought up. That is true. That was referenced in conjunction with what is our equitable estoppel argument. I would submit to this Board that the applicable case law does not require that the County give any kind of written statements for equitable estoppel to apply. It's the overall course of conduct by the County, verbal statements, all of the different factors are used by decision-makers to come up with whether there's an equitable estoppel argument which essentially would say given all the circumstances, it would be unfair in these particular cases to require us to repaint these structures. What else? We also heard that the -- in the closing statement that the color was never part of the review process, but was simply given as an FYI. During -- in the period of time between the submittal to the approval where we were authorized to start our work, we did hear testimony about that. But we also heard testimony that one of the reasons, not the only reason, but one of the reasons that the final inspection was not done and it wasn't signed off on was because of color. The tag was part of it. But Ms. Campagnone -- I hope I'm pronouncing that right -- testified that that was one of the issues. Page 112 .~-""_.- -""'_.~"'_.""-'--'-"--~~ _. ....... -~. "-'-~'--'--"'--'-"""'-'-~----'-'-' June 23, 2005 So it was somewhat in the process, or at the very least you can see how we're not sure to what to do. I mean, there's -- you know, we weren't given any written authorization at permit, but we've heard that there is no permitting process to repaint. We also heard from Ms. Arnold about the nonconforming use issue. Yes, it is -- you know, you might find -- depending on how you define canopy, you might find that that's two colors. But it was two colors before. And by the way, color banding may have been the one thing that I do understand in there. And as I heard, color banding, the previous canopies were color banded, and they're now not color banded, or at least on the fascia, and therefore I believe that has actually reduced our nonconformity to the extent that it is one. But in any event, we haven't increased it or enlarged it. Keep in mind, I don't believe there's authority out there in the case law or in the code that would say that we can't do maintenance, ordinary repairs, painting, and thereby either lose our nonconforming use status or -- and thereby allowing the County to come in and then cite us. You know, we heard -- on that same issue, we heard that -- Ms. Arnold state that color -- repainting, it's not that big of a deal. We want to -- we understand there's some people who have hardships like setbacks and things. When the structure becomes nonconforming, it's very difficult. I -- that's the first I have ever heard that the applicable law and Ordinances under nonconforming uses ever required anyone to go out and affirmatively do something to come into compliance with the code. My understanding always was that that issue was to keep people from having to do that, but to prohibit them from going and making certain changes to increase that nonconformity, make it worse, make it larger. If you take Ms. Arnold's argument or statement that we should all Page 113 ..-.^.-- _._- -"..~",.,"""._"'._-~,,- '--'-'-~""'- "-..--.-.--.........-..........---- June 23, 2005 try to come into compliance, and based on my experience driving here, there's -- 99 percent of the gas stations need to do some painting. So we believe that what the real issue with respect to nonconforming use is, is that to the extent you feel you can interpret this and deem our structure to be nonconforming, that it was nonconforming before. It actually probably missed more of the criteria in that Ordinance than it does now, and thereby it is at the very least not increase the nonconformity (sic). We did some painting, we changed the color. If you go out there in the community, you'll see that a lot of these stations are inconsistent. If we didn't encourage people to provide upkeep and maintenance to their structure, do repainting, all of these structures would be in such a state of disrepair, it would look horrible. I don't think that this Board would want to discourage someone to repaint and maintain their structure and thereby lose their nonconforming use status. Otherwise, no one would do it and the structures would just go into a state of disrepair. And I think that addressed each of the points in the closing statement. So again, I would thank you for the time and we respectfully would assert that we are either in compliance or a nonconforming use. And to the extent you find against us, we believe at the very least the circumstances would merit a lengthy time before we'd have to come into compliance. And one thing I might add, if we're going to come into compliance -- and we've heard testimony that there's no color wheel, that we've put repainting codes -- or repainting Ordinances into the code, which leads me to believe that's an acknowledgement that it was unclear before, and that we're going to add clear language with respect to earth tones and pastels, when you look at all that, you can at least hopefully acknowledge that it was unclear to us, and that given that, that would support a longer target date to come into compliance. And to let us know, because we're still unclear, as to with great certainty as Page 114 -,~-,~,.__.__.,_.._._.-. .._~,....- -"""-'-"'-'-'---""-"--~~'''~~-~''- --'-_.,~._---_." - '-- ------."- June 23, 2005 to what that compliance ought to be. I mean, the notices here say repaint it to an earth tone or pastel. We still don't know what that is. Maybe with the repainting we can come back in, get a permit, and even though we don't have color wheels in the language, maybe staff can tell us what to do. But I still think it's very difficult to tell us to simply come into compliance, because I personally, and I don't think my witnesses either, know what that exactly means. And again, I thank you for your time. CHAIRMAN FLEGAL: Okay. Everybody done? Okay. CHAIRMAN FLEGAL: Are you okay? You need some time? The public hearing portion is closed. Before the Board debates on its violation, let's take 10 minutes for our court reporter. (Recess.) CHAIRMAN FLEGAL: I'll ask everybody to get back to their seats, please. All right, we're back in session. The public hearing portion of these cases is closed. It's now up to the Board to deliberate whether there is or is not a violation, and then what we propose to be done about it. We said from the beginning there will be an order on each case. So we will deliberate case by case. Everything applies to most cases. There are a couple of -- two cases with permits, so hopefully it will go fairly fast. First item of business, on Case 16 is a finding of fact on that particular case. We have -- that's one of our permit cases, as I remember, and, for lack of a better word, and I don't mean to derogatorily, a color problem. So that's our two main issues for the Board, permits and color for this particular case. The first item being finding of fact. Is there in fact any violations? MR. BOWIE: I believe in this case it was acknowledged that a Page 115 __'..~._.."_."_~____..__ m -~_.. --,~^"-,.. June 23, 2005 sign permit was not obtained for the Shell sign; is that correct? This and I think Case 18. CHAIRMAN FLEGAL: Yes. MR. BOWIE: So I think that's acknowledged that there's a violation there. And so far as the canopy, I think in County Exhibit A there is a diagram, an illustration 1. I think it's part of everybody's packet. I think it clearly indicates in that illustration 1 that the canopy is designed -- defined as some kind of a facade of that particular structure and not the need for poles or anything like that. I think the issue here is not what color yellow this is or whether it's tan or anything like that. The question here is not what color the canopy is, the question is does it match the predominant color of the structure. And I think in each of these the structures, the predominant color is white and silver. That's the only question. It has nothing to do with whether the canopy is yellow or whether it's earth tone or pastel or anything of that nature. It's does it match the predominant color of the primary structure, which is the building. And I think in each of these situations, it clearly does not. CHAIRMAN FLEGAL: Okay. Anybody else have any comments? MR. PONTE: Well, I'm a little confused about the dates here. There -- I think we heard that there was no painting permit required until November 14 of 2004. Is that right? And these cases started before then. CHAIRMAN FLEGAL: Okay. It's not a permit for the painting, I don't believe. Isn't the permit for the sign? Have we misunderstood that, Michelle? MS. ARNOLD: Excuse me. CHAIRMAN FLEGAL: The permit problem is -- MS. ARNOLD: Is for the sign. Page 116 _... ,.,~._~-~---"--,,._. --------....".--. ---_.... -~-- June 23, 2005 CHAIRMAN FLEGAL: Not for the painting. MS. ARNOLD: There is no permit for painting. CHAIRMAN FLEGAL: Right. So the permit problem is for the actual sign they have, and then the second problem is that they don't conform to the Ordinance for a color. Forget what color that is, it just doesn't match what's written in the code. So those are the two things. MR. PONTE: Okay, thank you. CHAIRMAN FLEGAL: Any other comments from Board members? MR. MORGAN: First of all, everybody has to take out a sign permit. You know, that's -- that's part of the building process. So, you know, if something's wrong with the permit, then they should tell them what's wrong with it. MS. BARNETT: If you want, in the case-- CHAIRMAN FLEGAL: If you're ready, anybody else have any comments? If none, like I say, we need a finding of fact, and Sheri's evidently ready to do that. MS. BARNETT: Okay. In the Case CEB Case No. 2005-16 Collier County Board of County Commissioners versus Motiva Enterprises, I find that there is a violation of the codes that are listed in our notice of hearing -- MR. BONANNO: Statement of violation. MS. BARNETT: Statement of violation. I was losing my words. MR. BOWIE: I think you also need to add, as amended by the County for the record. Because you remember several of them, they struck out -- MS. BARNETT: This was not one of those. MR. BOWIE: So noted. Okay. MS. BARNETT: This was not one of those. CHAIRMAN FLEGAL: Okay, we have a motion on the floor that in fact a violation does exist. Is there a second? MR. BOWIE: I'll second that. Page 11 7 ".~"'_"'__~""'_"_N_M_"__'~_, ~_'"'_"""_"_'"_'___" .__""". '-'-- June 23, 2005 CHAIRMAN FLEGAL: Okay, we have a motion and a second that in fact a violation does exist. Any further discussion? (N 0 response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Those opposed? (No response.) CHAIRMAN FLEGAL: Unanimous. Okay, now, order of the Board. MR. BOWIE: I'd like to move that in this case, 2005-16, that the respondents be ordered as follows: Number one, pay the costs of the prosecution of this case. Number two, since the Shell sign was not permitted, that a permit for the sign be obtained within 30 days of this date or a fine of $100 per day will -- per violation will accrue. And number three, that the canopy color be repainted or changed to match the color, the predominant color, which is white or silver, apparently, of the principal structure to which it relates, or a fine of $100 per day would be paid for each day the -- this violation continues. CHAIRMAN FLEGAL: How much time, Ray? You didn't give a time. MR. BOWIE: I would say something like this, 90 or 120 days. Let's go with 90 days. CHAIRMAN FLEGAL: Okay. MR. PONTE: I can go along with everything you've suggested, Page 118 -_._.- - -' -"-,."~,_.._",,"----,,-.........~--,--.."-~, ". --~"~--.--~--_......... --. .__.."~---- June 23, 2005 Mr. Bowie, in one and two. But number three, I really have problems with this repainting business. I think that the defense made a -- made several very good points, and I think that the County's position is very vague in terms of what color can be used. I also agree with the defense's position that they have just painted the canopies, and when the charts were put forward for permits, they were approved. It's a very confusing situation. And that the time that we give them for repainting ought to take into consideration that they have moved to try and conform in every way possible, but though the Shell company is a big company, it also has a budget and you just can't go repainting all over the place, and I think we could give them one year to accomplish the job. MS. BARNETT: George, I'm kind of sort of sitting on the fence here between both of you. Because I agree with you in the fact that I think the County is a little big ambiguous as to definitions of color. Granted, as far as I can remember, red, yellow, blue and green are primary colors. However, whenever I have gone shopping and I've picked up a blouse and they've said oh, that's pretty earth tones in that blouse, there have been brown, forest green, yellow, red. So I think in that regards, the County needs to maybe tighten up a little bit on their Ordinance. So I agree with you, but I also feel that it is not predominant color of the current structure, or the main structure. So I'm kind of sitting here going, hmm, which way do I turn? MR. PONTE: Yes, okay. MS. BARNETT: So I believe they're in violation of the code. MR. PONTE: I believe they're in violation of the code. However, it's so loosely written in the County's position, and color is so vague that it's -- other than saying yes, they're in violation of the code, you can't say very much, as the code doesn't say very much. CHAIRMAN FLEGAL: Okay. Well, Mr. Bowie's motion is on Page 119 _m_,,',""_ .._~-"---"."..-- ....'.__'__--m ._,._~- June 23, 2005 -- it seems that everybody is in agreement except item three, and the only thing I'm getting out of this is he's asked for a repaint in 90 days and that seems to be -- MR. PONTE: Or 120. CHAIRMAN FLEGAL: -- a questionable time period. So if that's the only item, does somebody have another offer to give to Mr. Bowie to see if he would amend it? Something other than his 90 days. MR. PONTE: Well, he also mentioned 120 days. CHAIRMAN FLEGAL: Or the 120. MR. PONTE: I'm going to suggest one year. MS. BARNETT: I was going to throw in maybe if they look at the code itself and redefine their definition -- CHAIRMAN FLEGAL: We can't order the County to do anything, so forget that. MS. BARNETT: Okay, can't do that, okay. CHAIRMAN FLEGAL: We can only tell these people what to do. MR. DeWITTE: Question about compliance, though. CHAIRMAN FLEGAL: Yes, sir. MR. DeWITTE: I do see that the case that they presented was that it is hard to be compliant with this code with canopies shall be of one color and what that means. So I hope that we don't ask them to comply to the code but we make a specific recommendation on what has to change, be it just the color has to be repainted on the yellow band of the canopy, and then are we going to define that color for them or give them -- is there now going to be a permit process in place where they would submit -- MR. BOWIE: I think the predominant color of the principal structure already defines what color the canopy has to be. If the predominant structure was light green, then it could be light green. But I think all of these buildings are white, off-white, with a metal roof. Page 120 --'~-'-"~'~",'~-",_.~.",._"-~.._---"," " '-~"'--",-<-,,',"_.'- -.-- ..._n__ ----.-- June 23, 2005 MR. DeWITTE: Understood. And is there now a permit process that is in place that has to be done for repainting? MS. ARNOLD: My understanding is that you heard testimony that said no. We have many gas stations in this community that are in compliance with the code. I would suggest that if they're having a difficult time, we will walk with them over to the zoning department and try to get them a meeting so that they can get a color that is compliant. It's not impossible to comply -- MR. DeWITTE: My question was, do they need a permit to repaint? MS. ARNOLD: No, they don't. MR. De WITTE: Is that not part of any code? CHAIRMAN FLEGAL: No. MS. ARNOLD: No. MR. DeWITTE: It's not, okay. CHAIRMAN FLEGAL: And I want the Board to be very careful, I don't think we should be in a position to pick a specific color. MR. DeWITTE: No, no, no, understood. CHAIRMAN FLEGAL: That's not our venue. We need them to comply with the code, and if there's any question in the code, then they and the County need to work it out. What we can do is tell them to come into compliance, period. And if there's still a question, then it behooves them to go to the County and say okay, we were ordered to do this, now what's our choices? And if the County refuses to give them some choices then, you know, when the fine kicks in they have a legitimate right to say gee, we can't get any help here. But all we can do is tell them to come into compliance. MR. PONTE: That's right. And if we leave it that way, come into compliance within 365 days, the respondent will then attempt to work it out with the County, the County will then have to sharpen its focus in terms of what kind of color and what kind of direction to give Page 121 ._'""_.._._..v._____..<-'..,._ ~". ~._~._." --- June 23, 2005 them. So I think that if we make it as -- to paint this with a very broad brush and leave it open and vague and say 365 days you have to come into compliance, I think that's the way to go. CHAIRMAN FLEGAL: Yes. And I think we need to be, for lack of a better word, consistent with the Ordinance. The Ordinance says consistent with the predominant color of the principal structure. And at best, that's what we can tell them to do, come into compliance with the Ordinance. MR. PONTE: That's right. CHAIRMAN FLEGAL: And whatever that color is is between them and the County. MR. PONTE: That's right. CHAIRMAN FLEGAL: And now let's get back to the time period. Something that we're all comfortable with. It started out at 90, then Ray said maybe 120. George has said one year. I haven't heard Ray jump on that yet. MR. BOWIE: I'm not -- I'm flexible as to the time frame. MR. PONTE: There's another reason for one year. It will take the County time to focus on what the colors are. I mean, what's an acceptable color? What's the color wheel? CHAIRMAN FLEGAL: Okay, so you're putting out one year for Ray to consider. MR. PONTE: I am. CHAIRMAN FLEGAL: Okay, Ray, would you consider that? MR. BOWIE: At the outermost. Do you second the motion? CHAIRMAN FLEGAL: Sheri, or -- I don't think we have a second yet. MS. BARNETT: We didn't second it yet. We were still discussing it. CHAIRMAN FLEGAL: We're still trying to find somebody that -- everybody that can -- Page 122 --~ ."...._~... -"-,~"--,,--,-> .~.~-,,_. "~"~__~'_M_'_ _" ----- June 23, 2005 MR. BOWIE: I'd be flexible enough to go with a year. CHAIRMAN FLEGAL: Okay. So Ray's willing to amend his motion to everything stays the same, but he's changed the time from 90 days to a year. MS. BARNETT: On the repainting. CHAIRMAN FLEGAL: On coming in compliance with the Ordinance. MS. BARNETT: Right, okay. CHAIRMAN FLEGAL: And if that involves repainting, that's what they'll have to do. They need to come into compliance. Okay. So Ray has three items in his motion, the last one was the only one in question. He's now changed that to one year on coming into compliance on the -- MR. BOWIE: The other would be of course the standard requirement that when compliance has been achieved, that the County code inspector be notified and certified to the compliance. CHAIRMAN FLEGAL: Okay. So we have four items. Everybody kind of on Board what they are now? Okay, is there a second to that motion? MS. BARNETT: 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. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Any opposed? Page 123 .---- June 23, 2005 (No response.) CHAIRMAN FLEGAL: Okay, now let's go to Case 17. And in this case, it's one item which is. MS. BARNETT: The canopy. CHAIRMAN FLEGAL: -- again, the non-complying canopy color. I'm paraphrasing here, so -- that is the only item. The other item was removed. So do we have a finding of fact? MS. BARNETT: I will make a motion that in the case CEB No. 2005-17, Collier County Board of County Commissioners versus Motiva Enterprises, that there is a violation, and the violation is as the statement of violation states. CHAIRMAN FLEGAL: Okay. As amended. MR. BOWIE: As amended. CHAIRMAN FLEGAL: Yeah, because the County backed out -- MS. BARNETT: As amended, because the County did back out the first section. MR. DeWITTE: I second. CHAIRMAN FLEGAL: Okay, we have a motion and a second that in fact a violation does exist. Any further discussion? (N 0 response.) CHAIRMAN FLEGAL: Now, let's get to order of the Board. MR. BOWIE: I'd like to move that in this case, 2005-17, the respondent be ordered to pay the cost of prosecution of the case, number one. Number two, reflecting the finding in the previous case, 2005-16, that the canopy color be repainted or changed in order to comply with the County Ordinance that is consistent with the predominant of the primary structure at this location or -- within one year, or a fine of $100 per day for this violation shall accrue for each day this violation continues. And further, that upon compliance, the respondent notify the Page 124 --_._~._-..__._..,.-- --'.---.----- ",".~,~"~ -, .--- . -~.,,~-- June 23, 2005 code inspector who will then visit the site to certify the compliance. CHAIRMAN FLEGAL: Okay, we have a motion. Basically one year or $100 a day. MR. PONTE: I'll second the motion. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Case 18, which is as the first case, we have a permit issue and a color issue. Finding of fact. Is there in fact violations. MS. BARNETT: In CEB Case No. 2005-18, Collier County Board of County Commissioners versus Motiva Enterprises, that -- I make a motion that there is violations, as listed in the statement of violations. CHAIRMAN FLEGAL: Okay. We have a motion that in fact violations do exist. Do I hear a second? MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? (N 0 response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. Page 125 ..,"-<~~","-~",.^"-,.",_...._..,,'- -- -------'" --- -' -- -"~"'--~--'."'--"'-'..'-'-- ". "-""---'~'-- June 23, 2005 MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Those opposed? (No response.) CHAIRMAN FLEGAL: Okay, order of the Board. MR. BOWIE: I think the order of the Board here in Case No. 2005-18 should mirror that previously in 2005-16, the same violations. Again, the respondent be ordered to pay the cost of prosecution of this case. That two, the respondents shall secure a permit for the Shell sign within 30 days of this date or a fine of $100 per day will accrue for each day that violation continues. That number three, the respondent be ordered to repainted or change the color of the canopy to match that color consistent with the predominant color of the primary structure at this location within a period of one year of this date, or a fine of $100 per day will accrue for each day this violation continues. And finally, upon compliance with the code in these two situations, the respondent will notify the code inspector in this case to visit the site and certify to the compliance. MR. PONTE: Did you change that just a little bit? MR. BOWIE: No. The wording might be a little different. CHAIRMAN FLEGAL: The only thing I noticed that he left out, when he talked about repainting, he did not add to come in compliance with the code. MR. PONTE: That's it. MR. BOWIE: Well, to come into compliance with the code-- CHAIRMAN FLEGAL: That's what you were -- Page 126 ._.H.._..... ____"W' ".____"0.__ ......... ~__, . "- ~.,."--_............""'_......."..,,. -~-......, 0'_"- June 23, 2005 MR. BOWIE: -- consistent with the predominant color of the primary structure. CHAIRMAN FLEGAL: I think Jean would have caught that. MS. BARNETT: I'll second it. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Okay, Case 19, which should be -- as was Case 17, one item has been removed. We're down to just the color situation. First order of the Board is finding of fact, is there a violation. MS. BARNETT: In Case No. CEB 2005-19, Collier County Board of County Commissioners versus Motiva Enterprises, we say that there is a violation with -- as amended, according to the statement of violations. CHAIRMAN FLEGAL: Okay, we have a motion that in fact a violation does exist. Do I hear a second? MR. MORGAN: Second. MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a second. Any further discussion? (N 0 response.) Page 127 ~-"">. ....._--~_.~..~ -.--' --",..-..- -.-_.-~,-- June 23, 2005 CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Order of the Board. MR. BOWIE: Can we say ditto as to l8? CHAIRMAN FLEGAL: As to 17. MR. BOWIE: Seventeen, sorry. CHAIRMAN FLEGAL: Yeah, 17. Yeah, there were three items: The operational costs, the coming into compliance within one year or $100 a day. MR. BOWIE: Canopy color. CHAIRMAN FLEGAL: Right. And the other item is notifying code enforcement investigator. Okay, Mr. Bowie has a motion on the floor. MR. PONTE: I'll second the motion. CHAIRMAN FLEGAL: We have a second on the motion. Any further discussion? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Any opposed? Page 128 .~_..-~, . _4_'~'.'_"_"____"'__"_ --_.".._,-_..._~.".-..- -'~"._-'-"-- ..._- June 23, 2005 (No response.) CHAIRMAN FLEGAL: Okay, last case, 27, which should be again just a color issue. MS. BARNETT: In CEB Case No. 2005-27, Collier County Board of County Commissioners versus Motiva Enterprises, I state that there is a violation and the violation is as in the statement of violations. CHAIRMAN FLEGAL: Okay, we have a motion on the floor that a violation does exist. Is there a second? MR. BOWIE: Second. CHAIRMAN FLEGAL: We have a second. Any further discussion? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Order of the Board. MR. BOWIE: Order of the Board would be ditto as to Case No. 2005-19. CHAIRMAN FLEGAL: Right. Three items, as was in Case 19: Operational costs; one year or $100 a day to come into compliance for the canopy; and item three, notify the investigator when they've come into compliance. Do I hear a second? MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and a second. Any Page 129 ._".,-. ""~""'--'-'-'-"" ..,,_.......,-_.__.~"_..- " -"--'"~'-''-''----;''''-'-''''' ,-...-..-.- ."~~- June 23, 2005 further discussion? (N 0 response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Mr. Mann, do you understand, sir? There will be five separate orders issued. You'll get copies of all of them. Okay, we have one case left, I believe. 2005-28. Is that the correct one, Michelle? Is that the one? Or Leo? MS. ARNOLD: Yes. That's it. Because we skipped those two. CHAIRMAN FLEGAL: 20 and 26 we're done, so we're down to 28. MR. BONANNO: This is CEB Case No. 2005-28, Board of County Commissioners versus Patrice Savignano. The violation is that of Section 3.05.01 of Ordinance 04-41, as amended. The violation is described as the clearing of -- excuse me, owners have cleared the property of native vegetation over the allowable acreage allowed with a building permit. The violation exists at 2800 County Barn Road, Naples, Florida, 34112. The persons in charge of that location are Patrice and Steve Savignano. The violation was first observed on July 13th, 2004. Page 130 ,-,,,,,~-"'''''~'~''--~'--'-'-'-''-'-'-'''--~'-'' _,___,'"'m'"___~_~,.'.,,"""''''""' ., . .._""._~,,- .-,-._-- June 23, 2005 The first notice of violation was served via certified mail on January 19th, 2005, signed for January 26th, 2005. A second revised notice of violation was sent certified mail on August 18th, 2004, signed for on August 28th, 2004. The violation was to be corrected by February 18th, 2005. A re-inspection occurred on May 24th, 2005, and as of that date the violation remained. Crystal Segura is -- environmental specialist in code enforcement is here. Are the Savignanos here today? Yes, they are. So I'll turn it over to Crystal. MS. SEGURA: I believe -- CHAIRMAN FLEGAL: Just a moment. Cherie', she's here, too, so do them both at the same time, please. (Speakers were duly sworn.) CHAIRMAN FLEGAL: Ma'am, you can sit down while the County presents their part and you won't have to stand so long. MS. SEGURA: I believe -- MS. ARNOLD: Did we enter in that exhibit? MR. BONANNO: Oh, no, we haven't. The County's provided a package of information labeled Exhibit A that we'd request be entered into evidence at this time. MS. BARNETT: So moved. CHAIRMAN FLEGAL: Do we have a second? MR. BOWIE: 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. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. Page 131 __......................_.___,........'..'..,...m._...__.._ .,._.."'~.~.,_,..............b.J.... ""._-"",_,,___..,__,.<..._.__-~~. '-. -'_0''''-,-._-' ~_..~~,... ._"--._- June 23, 2005 MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) MS. SEGURA: Good afternoon. My name is Crystal Segura, environmental specialist with Collier County Code Enforcement. I believe Ms. Savignano has a request for you before I start to present my case. Is that acceptable? CHAIRMAN FLEGAL: Sure. Ma'am? MS. SA VIGNANO: When we were served -- CHAIRMAN FLEGAL: Get to the microphone, ma'am, we can't hear you. MS. SA VIGNANO: When we were served the papers approximately 10 days ago, I did contact my attorney, Peter Flood, immediately. He did call and say he would be out of the country. We did not know until the beginning of this week that he never sent a letter. So I'm here unrepresented. So-- CHAIRMAN FLEGAL: Are you asking us to -- MS. SA VIGNANO: I would prefer to continue, but if-- CHAIRMAN FLEGAL: When will he be back; do you know? MS. SA VIGNANO: He-- MR. BOWIE: I would suggest whatever he told you, you better get it in writing. Okay? MS. SA VIGNANO: I have a letter from his office here that says he's out of the country from the 15th until Monday, June 27th. CHAIRMAN FLEGAL: Okay. So you'd like us to continue this to our next meeting, which would be next month? MS. SA VIGNANO: Please. CHAIRMAN FLEGAL: Pleasure of the Board. You've heard what the lady has told us. Her lawyer is not available, and he just told her and she's here asking us if we could continue this till next month. MS. BARNETT: I don't have a problem with that. We did it for Page 132 --.." --,..,--~-~_., ...._-_...~....~-'_. ___.<.v,,""__ ,~,,~. ~""." - June 23, 2005 another case earlier today. MR. PONTE: I agree. MR. MORGAN: Agree. CHAIRMAN FLEGAL: Do I hear a motion to do the same? MS. BARNETT: I make a motion that we go ahead and continue this case until next month. MR. BOWIE: Second. MR. PONTE: Second the motion. CHAIRMAN FLEGAL: We have a motion and a second to continue this case to our next meeting in July. All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. BOWIE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Any opposed? (N 0 response.) CHAIRMAN FLEGAL: Okay, ma'am. Would you accept that today we're telling you you're going to be on the docket next month? This is your notice to have you and your attorney here and be ready to do this case, okay? MS. SA VIGNANO: Yes. You'll provide me with the date? MS. RA WSON: I can tell you the date. It's going to be July 28th. But I will do an order on the motion for a continuance, and I will include Mr. Flood, as well as the respondent. CHAIRMAN FLEGAL: Okay. MS. SA VIGNANO: Thank you. MS. SEGURA: Thank you. CHAIRMAN FLEGAL: That closes our public hearings. Under new business, we have the imposition of fines. First one is Page 133 .---,. -..... ----, ..._._"'--,-~.". " -- --.-.,--"-,..-..... -_..._,_._.~._- . -- June 23, 2005 Cavins and Hunter. MR. BONANNO: Mr. Cavins and Ms. -- we'll just say Mr. Cavins is here, as is the investigator, John Santafemia. This case came before the Board on September 23rd, 2004, and a copy of your order has been provided to you. The code enforcement department is looking for an imposition -- to impose a lien in the amount of $5,50.58 for CEB Case 2004-44. You have a breakdown of the costs for you also. And again, Officer Santafemia is available, if you have any questions. CHAIRMAN FLEGAL: Mr. Cavins? MR. CAVINS: Yes, sir. (Speakers were duly sworn.) CHAIRMAN FLEGAL: Mr. Cavins, I assume you're here to ask us to do something. MR. CA VINS: Yes, sir. CHAIRMAN FLEGAL: What is it, sir? MR. CAVINS: Well, I'd like to request that the fines be waived. CHAIRMAN FLEGAL: Why? MR. CA VINS: Well, it's quite a bit for me to afford for one. But once I was summoned to move the automobiles, I started moving them. It took, I don't know, I think it was a couple of weeks before I started moving the first one. Fifty dollars a day per vehicle is what it states, and there was five vehicles I had in my yard. I found them when I mowed the yard. Fifty dollars a day is kind of high. I can't afford that. And once I started moving the vehicles, that was $50 per day per vehicle. So once I moved the first vehicle, that left four vehicles in the yard. That would have left $50 per day per vehicle. That would have been $200. And then I gradually got it down to no vehicles in the yard. But $50 per day per vehicle, that's $250 a day you were fining me. And that would have had to been different as I started removing Page 134 ._~_. "-. ........_.. ~- ^-'..'--"---~. ---- ..---- June 23, 2005 them out of the yard. You understand what I'm saying? CHAIRMAN FLEGAL: Yeah. MR. CAVINS: So-- CHAIRMAN FLEGAL: But you were to start in October, and this fine is from October 24th to January. I assume January is when you finished; is that correct? Or maybe I should ask the investigator. Is he done? MR. SANT AFEMIA: Yes, he's done. CHAIRMAN FLEGAL: Did he finish on January 23rd? Was that the -- MR. BONANNO: The affidavit of compliance is the 24th, so yeah. CHAIRMAN FLEGAL: That's fine. So you took from October to November to December to January, you took 90 days to move five vehicles? MR. CA VINS: Yes, sir. They weren't mine. CHAIRMAN FLEGAL: That doesn't work with me. I'm sorry. MR. CA VINS: They weren't all mine. People had put them in my yard, some of them, without even letting me know it. And then one guy brought me the title to a truck that was in the yard. So once I got summoned and all five vehicles were back there, I started to having to get titles to get them out of the yard and stuff. So it did take 90 days. The last one that was moved was the van. It was the Aero Star Ford van. That was the last one to get moved out of the yard. MR. SANTAFEMIA: Actually, Mr. Chairman, if I may, when I started this case there were five vehicles. However, when I brought it before you in -- MR. BONANNO: September. MR. SANT AFEMIA: -- September, there -- he had removed one vehicle, so he only had four vehicles left to remove by your deadline. CHAIRMAN FLEGAL: Okay. Did you get any license plates Page 135 ,,-^- --_.,-. .~-~.._._--.....~-""" _."._-~.,,_.,.... -- June 23, 2005 for these vehicles? MR. CAVINS: No, I disposed of all of them. CHAIRMAN FLEGAL: But it took you 90 days to dispose of them? MR. CA VINS: Yeah. Whatever you have on record. I have no receipts, no files or nothing. Whatever you have is what you can go by, because I don't have nothing. CHAIRMAN FLEGAL: Well, I mean, that's the amount of the fine. They're saying it took you 90 days to get rid of four vehicles. You got rid of them. Did it take you 90 days to get rid of four vehicles? Yes or no? MR. CA VINS: No, not all five of them, no. CHAIRMAN FLEGAL: Okay. But over the process, it took you that. Now, how does this work out, Michelle? Is it 90 times the 50? Is that how we got to the 45, 50? I guess so. Nine times five is 45. So let me ask the investigator: Do you know when vehicles were removed? MR. SANTAFEMIA: Not specifically. All I could testify is that on November 3rd I did a re-inspection after the hearing, and at that point in time none of the vehicles had been removed. I did not go back out there until Mr. Cavins had contacted us in January, and then at that point in time there were no vehicles. (At which time, Mr. Bowie exits Boardroom.) CHAIRMAN FLEGAL: Okay. So now we're down to you, sir. You were supposed to have them all gone by October 23rd. You didn't have them all gone until January 23rd or 24th. And you're saying they removed -- you removed them at various times. Tell me what those times were, or can't you do that? MR. CAVINS: Not exactly, no, I can't. Unless I went back to the people that I gave them to. Once I got the title for the Chevrolet pickup truck, I called Page 136 ---'.'.0...... ".",-- .--- ~-'- June 23, 2005 Immokalee junkyard and they come out there and got the truck. Because I had a title for it. Then they had to clean up in there where I lived at, and I got rid of a Nissan. I took it up there where they were getting -- taking a pile of metal. So I put the Nissan over there. And then that left three vehicles. I had to get the title for an Oldsmobile that was back there. And I had a friend come from Missouri that takes automobiles and takes them to junkyards for metal for 35 bucks. So he took that to JD Auto Ranch. Then I was just left with the van. And then another truck I just gave to a friend of mine. Then I was -- then I had the van. Then the van was the last one to get moved. CHAIRMAN FLEGAL: Well, for us to try and help you, what we're looking for is, you know, the County is saying it took you this 90-day period, and they're charging you the full amount because you're not providing any method to say well, gee, this one was gone here, so you shouldn't charge me for that one. And this one was gone here. I mean, if you're asking to us cut these numbers down, we need to know when you did what; otherwise, you know, the County's saying they didn't all get gone until January 23rd, and that's kind of where we were. Now, help us out here. I mean, we want to help you, but you've got to help us. MR. CAVINS: It was probably two weeks before I ever come to the code enforcement office to inform them that all the cars were moved. I had mean been to Leo's office I don't know how many times. At least four times to his office. I only got to speak to him once. And I was informing him then that the cars were gone. But it wasn't until weeks later that I was at the office and they called Mr. Santafemia on the telephone. And I was in the office at the time, and they were talking to him while I was there. And that's when Page 137 .-^..,._,...~< >..--.....-..---.,,--....--- _,...u ^-.-"- June 23, 2005 I believe he went and did the final inspection. CHAIRMAN FLEGAL: Okay. I guess what I'm trying to get at, sir, is at $50 a day and there's roughly 90 days, October to November to December to January is roughly 90 days here. So if we do the math, okay, 90 days, $50 a day, okay, is $4,500. It's only $50 for one car. You're saying it's $50 for each car. They didn't charge you that. Otherwise, this would be four times $4,500. So they're acknowledging you've removed some cars at some point, but there was one car there for 90 days. And that's pretty much what they're charging you with, okay? So I'm looking for you to tell us that it was less than 90 days for this one car, and if it was, what was it? MR. CAVINS: I have no records of when I moved the cars. CHAIRMAN FLEGAL: Okay. MR. CA VINS: After he talked to me the first time, I had a little red truck that was out by the road, and I got that moved. And I just moved it. I just moved it inside my yard. This was out by the road, and I just moved it inside my yard in a fenced in area where the other four were. (At which time, Mr. Bowie exits the Boardroom.) MR. CA VINS: And then I don't know when it come up that I had to move all the other five vehicles, but I started moving them right after I got the message. CHAIRMAN FLEGAL: Okay. MR. CAVINS: I don't have no receipts or documents. CHAIRMAN FLEGAL: Okay. I think we understand. CHAIRMAN FLEGAL: Cherie', make note that Ray had to leave. And we still have a five-member Board, so we're okay. Yes, ma'am. MS. BARNETT: I have a question for Ed. Did you say before you came or before it was brought in front of you you had gotten rid Page 138 '-~<"-'. --"'--~_._"-"-" ".-.~""..--"'... --. .-,.~. ~-_._-,- -.""~-- June 23, 2005 of one car? MR. SANTAFEMIA: Correct. When I initially-- MS. BARNETT: So it should have only been four? CHAIRMAN FLEGAL: Well, but this -- the bill here-- MS. BARNETT: From that time for fining? MR. SANT AFEMIA: Right. When I initially started the case, there were five vehicles. Prior to it coming to the Board, he did get rid of one vehicle. The vehicle he's referring to, the red vehicle outside of the fence was actually out on the right-of-way. That was not part of my case, that was actually a sheriffs office was going to take care of that. I wasn't even aware that he had moved it back onto the property. CHAIRMAN FLEGAL: Okay. Regardless of the number of vehicles he had when the case started, the amount the County is asking for is one vehicle for 90 days. They're not charging him with three vehicles, two vehicles, four vehicles, eight vehicles, it's one vehicle at for 90 days at $50 a day. That's $4,500. And I'm just ball-parking 90 days, it may have been 91. I'm not going by the calendar but I'm trying to do the math easily. MR. CAVINS: Excuse me, sir, one vehicle, I had moved. I had moved one vehicle within two weeks of the time he visited. CHAIRMAN FLEGAL: I understand that. But you had four or five to move. So you moved one, you still had four left. MR. CA VINS: Exactly. CHAIRMAN FLEGAL: But it took you 90 days to get -- you moved this one, you moved this one, you moved this one. So it took you 90 days to get the last one. That's all they're charging you for, the one vehicle that sat there for three months and you didn't do anything with until you finally got rid of it. Fifty bucks a day times three months, $4,500. They're not asking for three times this. They're only charging you with one vehicle for the 90 days. So I don't buy that. You just said it took you that long to get rid Page 139 -...- ~_._~---"-,--,. _.....~._~""._" -- June 23, 2005 of the last vehicle. I don't have a problem with that. MR. CA VINS: There was -- CHAIRMAN FLEGAL: I understand you got rid of the other ones. They didn't charge you for the other ones. MR. CA VINS: I don't know. CHAIRMAN FLEGAL: I mean, that's how the math works. It's -- I don't know. I don't how else to do it. MR. CA VINS: This paper says per vehicle per day. MS. BARNETT: They didn't do it that way. What they're saying is they already gave you a break. CHAIRMAN FLEGAL: They didn't do you $50 per vehicle per day; otherwise -- MR. CAVINS: Order of the Board number three, that if the respondent do not comply with paragraph one of the order of the Board within 30 days or October -- CHAIRMAN FLEGAL: Right. You chose not to get -- we gave you two choices: You could get license plates within 30 days or remove them. And if you chose to remove them, you had to remove them within 30 days. What you chose to do was not get any license plates. So item three, since you didn't do item one, doesn't count, because you didn't get any license plates. So we don't consider that. Item four, which applies to item two, said you have to remove them. You chose to remove them. So that's $50 a day per vehicle, if you don't get them out by October 23rd. And you had four. I'll stick with that number. It took you until whatever this date was, January 23rd, to get rid of the four. All right? If it's $50 per day per vehicle, that's $200 a day for 90 days. That's about $18,000. They aren't charging you with that. They're charging you one vehicle for the 90-day period, which comes up to the 4,500 -- well, it's 91 days, 4,500, 50 bucks. And you just admitted, you kept taking them one shot at a time until -- Page 140 ---.........." -.. --.,.-...."" '-....-----...., .'--....-.. June 23, 2005 MR. CA VINS: Right. CHAIRMAN FLEGAL: -- you got rid of the last one. MR. CA VINS: Right, because -- CHAIRMAN FLEGAL: So you still had one there for the 91 days. MR. CA VINS: Possibly. CHAIRMAN FLEGAL: I'm sorry. Math works. Thank you for your comments, sir, we'll make a decision. Okay, the County is asking us to impose fines. I assume the 91 days works out, Michelle. I didn't -- I'm not looking at the calendar, I'm just ball-parking. So we have, with operational costs, $5,050.58 is what the County is asking us to impose. Any comments from Board members? MR. PONTE: Your math is right. CHAIRMAN FLEGAL: I'm sorry, figures don't lie. Math is math. So do I hear a motion to impose or reduce or whatever? MR. CA VINS: I make a motion to reduce. CHAIRMAN FLEGAL: You don't get a choice. It doesn't work that way. MS. BARNETT: I'll make a motion to impose the fine. CHAIRMAN FLEGAL: Okay, we have a motion to impose the fine as requested by the County. Do I hear a second? MR. MORGAN: Second. CHAIRMAN FLEGAL: We have a motion and a second. Further discussion? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. Page 141 ~-_.._. -'-"""W"_"'_"m>""^ _ ._.o_~_.,,~ -- June 23, 2005 MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: $5,050.58, sir. You can work it out with the County. Next case, Gerald and Louise Miller, 2004-61, imposition of fines. Are the Millers here? I see somebody coming forward, so -- MR. BONANNO: This case was brought before the Board on November 29th, 2004, and an order was issued, which you all have a copy of. The code enforcement department is requesting the imposition of a lien in the amount of $731 for operational costs and fines. A note that this property still isn't in compliance, so that figure will increase by $100 every day until the property is in compliance. But as of today, it's $731.26 -- I'm sorry, it's as of March 1st of2005 when the last visit I could get was. CHAIRMAN FLEGAL: The numbers are much higher. MR. BONANNO: Yeah. CHAIRMAN FLEGAL: And I assume we have Mr. Miller? MR. MILLER: I'm Jerry Miller. There's another case behind it. CHAIRMAN FLEGAL: One moment sir, we need to swear you In. (Speakers were duly sworn.) CHAIRMAN FLEGAL: All right, sir, Mr. Miller, tell us, since the County wants to impose these fines, what you want us to do. MR. MILLER: That is my dad's lot. We have adjoining lots. The next case behind you will be Jerry and Janice Miller. Those lots are connected. My dad dug the lake probably about seven years ago. We dug the first lake on his property that you're talking about right now. And Page 142 ~_." .-"-'- June 23, 2005 back then it really didn't cause any problems not to have a permit or whatnot. It's been a long time ago. Like I said, then I did buy the lot behind him. And we tried to connect the lakes, you know, and tried to put fill on the property and get us up out of the water so when it rains like it does now, that our yard doesn't flood. They -- code enforcement got sent out. I tried to comply. I got a -- it was -- just basically it was over my head more than I thought I could do it, but more than -- more paperwork and more than I could do to jump through all the hoops to get the County -- that's why I have Mr. Landy here that's going to help me push everything through. And I did drop a blueprint off to Stan before the -- before the code -- before the violation was going to start kicking in $100 a day. I did go in and after several attempts, I finally got Stan and found him in the office, gave him a blueprint, trying, you know, to explain to him where I was, and, you know, asked for some guidance about what else I needed. He said, oh, Jerry, you need a $1,500 check, we'll put you in front of the County and we should be getting you straightened out here. So two days later I took a $1,500 check out there. The print or the check is not at the County. Stan told me the first day I met him that -- or that last day I talked to him that he would take care of code enforcement, you know. When I dropped off the print he said he needed a $1,500 check, and we're going to start with another meeting I guess and see what else I need to do. Two days later I dropped the check off. Stan said, you know, he'd take care of it, he'd take care of code enforcement, and this is where we are now, I guess. The check is gone. Nobody has the check, nobody has the print. CHAIRMAN FLEGAL: Okay. Just so you understand the process, we ordered you to resolve the problem, okay? MR. MILLER: Stan was my contact to help me resolve this problem. Page 143 --~",-,,-'-'""'-"'--"~"--'"''-"''' "-'-."-,~~.~,- <>",,_.... ...~. -'-"--- ",--- June 23, 2005 CHAIRMAN FLEGAL: I understand that. I understand what you're saying. But we ordered you to either get some permits or fill it . k? In, 0 ay. Now, I understand you went to the County and somebody said fill out all this paperwork, bring money and we'll start the process. That doesn't relieve you of the responsibility. You need to make sure it gets finished. MR. MILLER: Yes, sir. CHAIRMAN FLEGAL: Because our order said to you, get a permit or fill it in. You haven't done either of those yet. So the fine's runnIng. What I'm going to -- I guess it's not really a recommendation, it's just information. What I would say to you is, you still haven't done what we ordered you to do. You need to get with the County, find out where this thing is in the process, who's doing what, how fast it's going to go. The fines are going to keep running. And when you're all done with whatever process you go through, fill it in or get a permit to keep it, come back to us and say look, I went and did what you told me to do, but it took instead of -- we gave you 90 days, instead of 90 days, it took a year. And this is why it took a year; would you reduce the fine to X. Now, you have the right to do that. And if you come back and explain it to us, document what you're doing, who's doing what, why it's taken so long so you can come and tell us that, more than likely we'll try and help you. Right now I doubt that anybody here is willing to try and help you, because pretty much what you did is you went somewhere and somebody said I'll take care of it and you just wandered off. No, we order you to do it. You haven't done it. You understand what I'm trying to tell you? MR. MILLER: Yes, sir. CHAIRMAN FLEGAL: Okay. You need to follow through Page 144 .-----..-..........'....' ........_N ""'_.U"_,_~",,_ --- June 23, 2005 with these things. Just don't drop stuff off. You need to stay on their backs. If that means calling them 20 times a day, going down there and beating them with a wet noodle, you need to do that. Get somebody to help you, okay? MR. MILLER: I've hired somebody to help me now. CHAIRMAN FLEGAL: Would that work for you? MR. MILLER: It's going to take-- CHAIRMAN FLEGAL: And when you're all done, you come back to us, tell us everything you've done and ask us to help you and we'll -- I say probably, more than likely try to help you. MR. MILLER: We're looking at July to get a meeting with the County . CHAIRMAN FLEGAL: However long it takes, you just keep everything written down so you can tell us hey, I tried to do this but I couldn't get a meeting till then, I went to this meeting, they told me we'd have to have another meeting. Keep it all documented so you can come back to that spot and say, look, instead of paying you $10,000, I'd like to pay you "X" because of this, and we'll try and help you. Okay? MR. MILLER: On the other property too, they're both the same. CHAIRMAN FLEGAL: Well, we haven't got there but-- MR. MILLER: It's pretty much the same deal. CHAIRMAN FLEGAL: -- I don't know if somebody's here to give us the same story, but that would be my comment to them, too. You folks need to work on this, okay? Not just drop a check off somewhere and hope some day somebody does something. Because you're responsible. The bill's to you, not to the County. Now, you know, the County has a lot of things to do. You may have fell through the crack. And since you're not bothering that guy, he's forgot you. You need to go bother him, okay? MR. MILLER: Okay. CHAIRMAN FLEGAL: That's the best thing I can tell you. Page 145 ."_........~.,,~._.._---""'".- "-.~-.. -"~~.........,..- '-"""""--"" ..._".- June 23, 2005 Because that seems to be what has happened. You just thought somebody else would handle your problem. Our problem is with you, not with them. Our problem is with you, okay? MR. MILLER: So how much are my fines right now? CHAIRMAN FLEGAL: Well, they're just going to -- right now the County is asking us to impose $731. But that's as of March. So there's a bunch more that is added to that. And they're going to keep running at 100 bucks a day. So, I mean, from March until today, that's a lot of money. This is almost the end of June. So you've got March, April, and May and June. I mean, there's 120 days right there at 100 bucks a day. Do the math. That's over ten grand. MR. MORGAN: Twelve thousand. CHAIRMAN FLEGAL: So it's jumping up there. MR. MILLER: Yes, sir. CHAIRMAN FLEGAL: And you need to get on somebody to get it resolved. Now, when it's all over, whatever the fine is, whether it's 15, 20, $30,000, come back to us and tell us why we should reduce it. And use all this information about how long it took to do what and why, why you couldn't do it in 90 days, okay? MR. MILLER: Yes, sir. CHAIRMAN FLEGAL: That's what you really need to do. Quit worrying about the fine right now, because we're not going to change the date. I don't believe this Board will change the date to help you. Because you need to do something. And right now you haven't done much other than talk to somebody and hope that they'd solve your problem, and they dropped the ball on you. So you're still on the hook, okay? So best advice I can tell you is go get it done. And when you're all done, come back to us and I'll bet you we help you, I really do. But you've got to show that you are trying to solve the problem, okay? Page 146 ..~~._'" ,,,......,,"-""..- _w~~.."........,...,,_ "--'- "- June 23, 2005 MR. MILLER: Yes, sir. CHAIRMAN FLEGAL: So let's talk about Mr. Miller's case. MR. MILLER: That's me again. CHAIRMAN FLEGAL: No, we're still on the first one. We have to do them one at a time. This is the Gerald and Louise Miller case where the County is asking us to impose $731.26 for operational and fines through March 1st. MS. BARNETT: I make a motion that we go ahead and impose the fines that the County has asked for. CHAIRMAN FLEGAL: We have a motion to impose the fines as requested. MR. PONTE: Second the motion. CHAIRMAN FLEGAL: We have a second on the motion. Any further discussion? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Okay, sir, so on your part, do what I told you, please, and then we'll try and help you, okay? MR. MILLER: Okay. CHAIRMAN FLEGAL: Now let's talk about Jerry and Janice Miller. MR. MILLER: That would be me. CHAIRMAN FLEGAL: Okay, so you're going to be back. Page 147 ,,--- <...._~-~_.," - June 23, 2005 Okay. (Speakers were duly sworn.) CHAIRMAN FLEGAL: Mr. Miller, what I would tell you on this case, it's the same amount of money, because the other case, we gave them the same amount of time. Again, please do what I just recommended on your case, go get something done yourself. Be very adamant as to who you need to see. You know, just keep calling them, go down there in person. Whatever it takes to get it done. Please. And then come back to us and ask us to help you, and we more than likely will do that if you can tell us why it took all this extra time. Okay. MR. MILLER: And I'd just like to say that I didn't think it was going to be that much of a headache and that much trouble. I thought a little blueprint and some money would get me through. And that's why Mr. Landy is here today, because he's going to push it through the County for me. He's the engineer. CHAIRMAN FLEGAL: Okay. But see, when you left it on somebody else's shoulder, it kind of -- MR. MILLER: Yes, sir. And I have to work-- CHAIRMAN FLEGAL: -- slipped through the cracks. MR. MILLER: I have to work and I can't get to the County every day. The best thing I could have done in the first place was pay somebody to do it for me. CHAIRMAN FLEGAL: I understand. But please do this and then come back and ask us to help you, okay? MR. MILLER: All right. Thank you. CHAIRMAN FLEGAL: All right. On case 2004-60, again, the County is asking us to impose a fine in the amount of $731.26 for operational costs and fines through March. MS. BARNETT: I make a motion that -- CHAIRMAN FLEGAL: Or March 1st, sorry. Page 148 "-,~". -,--~.,...- ~-~,-_.." .---....".-. w._.~__ June 23, 2005 MS. BARNETT: I make a motion that we impose the requested amount by the County in regards to this case. CHAIRMAN FLEGAL: Okay. MR. PONTE: I'll second the motion. CHAIRMAN FLEGAL: We have a motion and a second to impose the fines as requested. Any further discussion? (N 0 response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Any opposed? (N 0 response.) CHAIRMAN FLEGAL: Thank you, sir. And stay on it, please. MR. MILLER: I will, don't worry. CHAIRMAN FLEGAL: Now we have request for foreclosures. We don't have a piece of paper, so Michelle, I assume you want us to ask the County to foreclose on the Bells, Ms. Maschino and Mr. Pekar? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Okay. The County's asking us to recommend foreclosure to the County attorney on three cases. Case 2004-45, 2004-50 and 2004-67. What's the Board's pleasure? Shall we forward them? MR. PONTE: Yes. MS. BARNETT: I make a motion that we forward these to the -- CHAIRMAN FLEGAL: I'm sorry, I did find a letter. MS. BARNETT: I make a motion that we forward these three cases to the County for foreclosure. Page 149 --' ,..~ ..>-,--_.,-~ _....................__.H '- June 23, 2005 CHAIRMAN FLEGAL: We have a motion on the floor. Is there a second? MR. PONTE: I will second it. CHAIRMAN FLEGAL: We have a motion and a second to forward these three cases to the County attorney's office. All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: There's no old business. Reports. Is the County satisfied with the reports we're getting from Mr. France? MS. ARNOLD: Yes. MS. BELPEDIO: Jennifer Belpedio, Assistant County Attorney. My understanding is there is an item scheduled for the June 28th meeting. I believe it's the 28th, it may be earlier, for the BCC to consider the property exchange. It got there as fast as it could. And I think because it's the first one, that that's why. I'm sure they'll go a lot quicker in the future. But we're satisfied. CHAIRMAN FLEGAL: All right, very good. MR. BONANNO: Mr. Chairman? CHAIRMAN FLEGAL: Yes, sir. MR. BONANNO: Can I ask a question? CHAIRMAN FLEGAL: Sure. MR. BONANNO: I wasn't here at the last hearing, but I never got the status report due from Mr. France, and your order is contingent upon that. Was it given to you guys? Because I don't have it. I never Page 150 _._...,....._".~,.,_~,.""..'w ._ --._-~...""-"_.,..- --",-.,.,.,. --.., -~., " June 23, 2005 got it. MS. ARNOLD: I thought he was here. Was he here? MR. PONTE: I think it was a letter, Michelle. CHAIRMAN FLEGAL: I thought there was something. MR. PONTE: He was here the first time, but I think most recently we received a letter. CHAIRMAN FLEGAL: We've been receiving letters from his attorney, as I remember. MR. BONANNO: Yeah, every month prior to this one I've gotten one, but I didn't get one this time, and it's not in any of your packets, because I didn't get it. So I don't know if maybe he -- MS. ARNOLD: I believe on your last month's agenda, he requested a continuance, because the due date was due. And I think Mr. Zampogna may have been here, but I can't recall. And at that point you all just said proceed as you're doing. CHAIRMAN FLEGAL: I'm looking at the minutes and it says we had a report from Mr. France. It's me speaking. And Mr. Bowie said, yeah, I think we already dealt with that. And I said, yes, his request was -- his report was attached, so stating that we're moving along. We have a report to the County on the affidavit. So I think we had a report last time. MR. BONANNO: Right. But my question is your order from last month I'm looking at up here on the screen, it still requires he submit that. MS. BARNETT: And he hasn't. MR. BONANNO: And you don't have one this month. At least I don't, and I didn't give it to you. CHAIRMAN FLEGAL: I've never received one direct, so-- MR. BONANNO: Yeah, I usually include it with all your packages when I get it. But I'm looking at the order from last month, and it says that they'll continue to provide status reports, but I never got one. Page 151 -- _..,.""-"-~ _.,..._,.._~..,.. _____"0_ "'..--- June 23, 2005 CHAIRMAN FLEGAL: What we might do is call his attorney and ask him where it is. Because I think he's been the one submitting it, if I remember correctly. So we might call his attorney and say gee, it was brought up at our meeting you didn't submit a report and the Board wants to know where it is. MR. BONANNO: Yeah, because it was a condition of the extension, so -- CHAIRMAN FLEGAL: Correct. And if you -- ifhe gives you a problem about it, then you need to call and tell me it's a problem and I have no problem calling an emergency Board meeting and asking the Board to yank something and impose something on him. I mean, he's got to follow the rules. He just can't sluff off, since he's this close. We have an affidavit report, which we've been getting, to show what's doing what on all the active cases; is that correct, Michelle? Is that what this is? MS. ARNOLD: I'm sorry, I didn't -- CHAIRMAN FLEGAL: On your affidavit report, this is the cases that have -- I know this isn't all the cases since 2002. MR. BONANNO: No, that's a list of all the affidavits that have been recorded this calendar year. Whenever the case was heard is not reflected there. It's just affidavits. CHAIRMAN FLEGAL: What we recorded this year. MR. BONANNO: Right. CHAIRMAN FLEGAL: Okay. Any comments from anybody? (N 0 response.) MS. ARNOLD: I just was glad to hear that you all that attended the workshop enjoyed that workshop. And I'll do what I can to see about getting -- CHAIRMAN FLEGAL: I thought it was a great workshop. MS. ARNOLD: -- the judge down this way again. Page 152 "..-...., ... ~""' .-~" ~~.- ---- June 23, 2005 CHAIRMAN FLEGAL: Yeah, Jean and I talked about it, and we think it would be a great thing to get him to come to Collier County. I don't know, other than a big ball bat, where I'd like to make it mandatory for the Board members to attend. I will do my best to do that. Maybe your investigators, if they have time, maybe even some people from the County attorney's office. He's very informative. MS. ARNOLD: Very. CHAIRMAN FLEGAL: And you can ask him almost any question you can think of. He won't give you legal advice and he's very straightforward about that, but he's a gentleman that has kind of written all the rules for the code enforcement investigators -- MS. ARNOLD: In Orange County. CHAIRMAN FLEGAL: -- for the Florida Association, and he teaches the, what, level three class? MS. ARNOLD: Yeah. CHAIRMAN FLEGAL: Which is the law class. MS. ARNOLD: Right. Which is what I just took. CHAIRMAN FLEGAL: Yeah, he's neat. And I would love to see him come to Collier County. Really informative. Anybody else have anything? George, you were about to say something? MR. PONTE: I was going to suggest that the Chairman be given a carafe of something in anticipation of, you know, long extended meetings. There ought to be a carafe of water there. You carry the ball and do most of the talking, and your voice is showing it. CHAIRMAN FLEGAL: I'm looking forward to a martini. I shouldn't say that in the public, but hey, when the meeting's over, I don't have to go anywhere. Our next meeting is July 28th. Some -- I can't remember who called me about our on -- maybe it was Jerry and he's gone, and I can't remember. Something about Page 153 -'- .w_.._ -- June 23, 2005 getting our minutes over the Internet. I'll ask him to see if it was him. Somebody called and asked me a question and I said bring it up. So he's gone and it was probably him. But anyway, we'll do it next time. Nothing else from anybody? (N 0 response.) CHAIRMAN FLEGAL: Thank you, everybody. I'll take a motion to adjourn. MS. BARNETT: So moved. MR. PONTE: So moved. CHAIRMAN FLEGAL: We have a motion and obviously a second. All those in favor, signify by saying aye. MS. BARNETT: Aye. CHAIRMAN FLEGAL: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Thanks, everybody. ****** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 2:28 p.m. COLLIER COUNTY CODE ENFORCEMENT BOARD CLIFFORD FLEGAL, CHAIRMAN Transcript prepared on behalf of Gregory Court Reporting Service, Inc., by Cherie' R. Nottingham. Page 154 ^--.,...----^,,-.- -~ ,...... ~-