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CEB Minutes 07/28/2005 R July 28, 2005 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida, July 28, 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 Larry Dean ( alternate) Justin De Witte Richard Kraenbring Jerry Morgan George Ponte Richard Lefebvre (absent) Raymond Bowie (absent) ALSO PRESENT: Jean Rawson, Attorney for the Board Michelle Arnold, Code Enforcement Director Jennifer Belpedio, Assistant County Attorney Patti Petrolli, Code Enforcement Supervisor Page 1 CODE ENFORCEMENT BOARD OF COLLIER COUNTY. FLORIDA AGENDA Date: JULY 28, 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 4. PUBLIC HEARINGS A. MOTIONS 1. Motion for Continuance June 30, 2005 1. BCC vs HIGHLAND PROPERTIES OF LEE AND COLLIER COUNTY, LTD CEB 2005-29 B. HEARINGS 1. CASE NO: CASE ADDR: OWNER: INSPECTOR: VIOLATIONS: 2. CASE NO: CASE ADDR: OWNER: INSPECTOR: VIOLATIONS: 3. CASE NO: CASE ADDR: OWNER: INSPECTOR: VIOLA TlONS: 2005-24 126 3RD STREET, NAPLES DORIS E. BLACKMON DENNIS MAZZONE Ordinance 91-102 as amended, sec. 1.5.6,1.8.7,2.1.1 1,2.2.4 and 2.7.6 Ordinance 2002-01, sec. 104.1.3.5, 104.5.1 through 104.5.1.4 and 106.1.2 Shed erected without obtaining inspections and a Certificate of Occupancy Interior renovations completed without Collier County Building Permit(s) 2005-28 2800 COUNTY BARN ROAD, NAPLES PATRICE E. SA VIGNANO CHRISTAL SEGURA Ordinance 04-41 as amended, sec. 3.05.01(B) Clearing of property over the allowed acreage 2005-29 2223 TRADE CENTER WAY, NAPLES HIGHLAND PROPERTIES OF LEE AND COLLIER COUNTY, LTD CHRISTAL SEGURA Ordinance 04-41 as amended, sec. 3.05.01(B) Property( ies) cleared; failure to adhere to Exotic Vegetation Removal Permit specifications 5. NEW BUSINESS A. Request for Imposition of Fines/Liens 1. BCC vs Jean-Baptiste Lamour 2. BCC vs Raul & Carmen Dimas CEB 2005-05 CEB 2005-06 B. Request for Foreclosure 1. BCC vs A vin Noel & Marie Chavanes 2. BCC vs William Petruzzi CEB 2004-38 CEB 2004-46 6. OLD BUSINESS 7. REPORTS A. CEB Case 2004-01 BCC vs. Robert France: Status Report a. The Respondent was ordered to furnish a status report prior to this hearing as a condition of the extension of time granted at the hearing of January 27,2005. B. BCC vs. Philip & Anna Maria Marrone CEB 2001-13: Case 02-3007-CA C. BCC vs. Philip & Anna Maria Marrone CEB 2001-13: Case 02-3862-CA D. BCC vs. James Keiser & Southern Exposure of Naples, Inc. CEB 1998-05: Case 03-1733 E. Year-to-Date Affidavits 8. COMMENTS 9. NEXT MEETING DATE August 25, 2005 10. ADJOURN July 28, 2005 CHAIRMAN FLEGAL: Are we ready? We'll call the Code Enforcement Board to order, please. Please make note, any person who decides to appeal a decision of this board will need a record of the proceedings pertaining thereto and, therefore, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Neither Collier County nor the Code Enforcement Board shall be responsible for providing this record. As in the past, the rule for the conducting the board will be, whether it's the County, the respondent, the respondent's attorney, any board members, if you want to speak, you need to be recognized by the Chair. This is in an effort to ensure that we do get a verbatim record, rather than have many people talking at once. Let's have our roll call, please. MS. PETRULLI: Good morning. For the record, Supervisor Patti Petrulli. Chairman Flegal? CHAIRMAN FLEGAL: Present. MS. PETRULLI: Mr. Ponte? MR. PONTE: Here. MS. PETRULLI: Sheri Barnett? MS. BARNETT: Here. MS. PETRULLI: Justin DeWitte? MR. DeWITTE: Here. MS. PETRULLI: Jerry Morgan? MR. MORGAN: Here. MS. PETRULLI: Richard Kraenbring? MR. KRAENBRING: Present. MS. PETRULLI: Larry Dean? MR. DEAN: Here. MS. PETRULLI: There's an excused absence of Richard Page 2 July 28, 2005 Lefebvre, and we are waiting to hear from Raymond Bowie. He may be late today. CHAIRMAN FLEGAL: Okay. We'll make note, we do have a new alternate, Mr. Dean. And we welcome you, sir. MR. DEAN: Thank you. CHAIRMAN FLEGAL: Approval of our agenda. Are there any changes to the agenda presented to the board? MS. ARNOLD: For the record, Michelle Arnold. No, I have no changes at this time. CHAIRMAN FLEGAL: Hearing none, I would entertain a motion to approve the agenda as submitted. MR. PONTE: So moved. MS. BARNETT: Second. CHAIRMAN FLEGAL: We have a motion and a second to approve the agenda as submitted. All in favor, say aye. MS. BARNETT: Aye. MR. DeWITTE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. MR. DEAN: Aye. CHAIRMAN FLEGAL: Approval of our minutes from June 30th. Those were electronically submitted. Are there any changes, corrections? (No response.) CHAIRMAN FLEGAL: Hearing none, I would entertain a motion to approve the minutes as submitted. MS. BARNETT: So moved. MR. PONTE: So moved. MS. BARNETT: I'll second again. Page 3 July 28, 2005 CHAIRMAN FLEGAL: We have a motion and a second to approve the minutes as submitted. All those in favor, signify by saying aye. MS. BARNETT: Aye. MR. DeWITTE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. MR. DEAN: Aye. CHAIRMAN FLEGAL: Any opposed? (N 0 response.) CHAIRMAN FLEGAL: We'll now open our public hearings. First item on our agenda is a motion for continuance, BCC versus Highland Properties. MS. BARNETT: Excuse me, Mr. Chairman, I need to excuse myself from this case. CHAIRMAN FLEGAL: Okay, not a problem. MS. SEGURA: Good morning. (Speakers were duly sworn.) CHAIRMAN FLEGAL: Okay, since it's -- is it your motion, sir? Would you like to tell us why you would like a continuance. MR. MINOR: Yes, sir. My name is Mark Minor and I'm a civil engineer with Q. Grady Minor and Associates, and I'm representing the property owner. We did receive the notice of violation on March 3rd. And it seems like it's been quite a bit of time, but I do have a chronology of the events that have transpired since then. I don't know that I need to go through them, but the bottom line is that we're getting close. I think that if we could get a 30-day continuance to bring our case back forward, that we'll have all the facts in hand and we can present a case better than we can today. Page 4 July 28, 2005 CHAIRMAN FLEGAL: Okay. Does the County have a position? MS. ARNOLD: We're leaving it to the board. MS. SEGURA: I would just like to say that there -- the notice of violation was actually initiated on March 3rd of 2005. They were given 90 days to submit a mitigation plan, until May 6th (sic). At that time we were asked for an extension. We did grant that for 30 days. And we're here today still without a mitigation plan, so I'd just like you to take that into consideration. CHAIRMAN FLEGAL: Yeah, but this is the first time this case has been before the board, correct? MS. SEGURA: Yes. MR. MINOR: Mr. Chairman, I do have a chronology, if it will help you all make a decision. It's not very lengthy. CHAIRMAN FLEGAL: Sure, why don't you tell us that so the board members understand. MR. MINOR: Like we said, the notice of violation, we received that on March 3rd. At that time we solicited proposals from environmental firms. We retained Passarella on April 12th. They then subsequent to that began doing their aerial mapping and their field work, which included ribboning off the different vegetation communities in the clearing lines. We had another surveyor, Bruns and Bruns, go out and survey in the lines and the clearing areas, and he completed that on May 11 tho We forwarded that survey drawing to Passarella's office, and it just happened to be at the beginning of the consultant's two-week vacation. When he got back and reviewed the survey, he found it not to be complete. We sent the surveyors back out to complete the location of the wetland lines and the clearing lines, and we received the completed survey last Friday. CHAIRMAN FLEGAL: Okay. Any questions from any of the Page 5 July 28, 2005 board members on this request for a 30-day continuance? MR. PONTE: Yes, I have just one. You mentioned 30 days. Are you fairly certain you can do it in 30 days? MR. MINOR: Yes, sir-- MR. PONTE: Can you be ready next time? MR. MINOR: -- we're 100 percent certain. MR. KRAENBRING: Is there any detriment to the situation by extending it for 30 days? I mean, it's not going to cause any physical harm to the property -- MR. MINOR: No, sir. MR. KRAENBRING: -- or to the surrounding properties or -- MR. MINOR: No. MR. KRAENBRING: It's just a matter of not being able to get all your ducks in a row and -- MR. MINOR: That's correct. We do not have all the facts. MR. KRAENBRING: Is that the position of the County also? MS. SEGURA: I did speak to Passarella and Associates just this week to check on the status of the mitigation plan, and they haven't even started the mitigation plan. Obviously I guess because of some survey problems, but also because of some payment issues. So I just want to make sure that that's going to be resolved as well. MR. MINOR: I do know that Mr. Cadenhead has Passarella's payment in his possession and is going to forward that to him today. CHAIRMAN FLEGAL: Any other questions from any of the board members? (No response.) CHAIRMAN FLEGAL: Okay, we have a request for a 30-day continuance. What's the pleasure of the board? MR. PONTE: I'd grant a continuance with a date certain for the next scheduled meeting, and certainly that no extension will be filed at that time. CHAIRMAN FLEGAL: Okay. Mr. Ponte's willing to, as I Page 6 July 28, 2005 understand it, make a motion that we grant a request for a continuance to our next meeting, with the understanding that at the next meeting a further continuance would not be acceptable. Do you understand what he's proposing upon us? MR. MINOR: Yes, sir, I do. And that's acceptable to us. Thank you. CHAIRMAN FLEGAL: Okay. So we have a motion on the floor. Would there be a second? MR. KRAENBRING: I'll second it. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion on the item? (No response.) CHAIRMAN FLEGAL: Hearing none, all those in favor, signify by saying aye. MS. BARNETT: Aye. MR. DeWITTE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. MR. DEAN: Aye. CHAIRMAN FLEGAL: Any opposed? (N 0 response.) CHAIRMAN FLEGAL: Thank you, sir. You get your 30-day continuance. MS. ARNOLD: Could I just ask whether or not he's willing to waive the notice requirements for that? CHAIRMAN FLEGAL: Would you -- since we've made this motion and granted it for a continuance, would you waive notice; i.e., we're now telling you this is going to be at our next board meeting? Will you waive your notice of -- MR. MINOR: Yes, we would. So long as I know when it is. Page 7 July 28, 2005 MS. RAWSON: August 25th. MR. MINOR: August 25th, good. CHAIRMAN FLEGAL: August 25th. Fourth Thursday of August. Unless something drastic happens, which you would know in plenty of time. MR. MINOR: Thank you, sir. MS. SEGURA: Thank you. CHAIRMAN FLEGAL: That being the only motion for continuance, that also eliminates case three from our agenda. We're down to hearings. Case number one, 2005-24, BCC versus Doris Blackmon. MS. ARNOLD: And Mr. Chairman, we have a stipulation on this, so the investigator will go through that stipulation for you. CHAIRMAN FLEGAL: Very good, thank you. (All speakers were duly sworn.) CHAIRMAN FLEGAL: Dennis? MR. MAZZONE: Good morning. For the record, my name is Dennis Mazzone. I'm an investigator with Collier County Code Enforcement. This is a case concerning property owned by Ms. Doris Blackmon, located at 126 Third Street in Naples, Florida. And the case concerns construction and improvements to a residential property without Collier County Development Service's review and approval, and without a Collier County building permit. Ms. Blackmon has stipulated to the following: That the respondent, Ms. Blackmon, must obtain all required Collier County building permits and related inspections through to issuance of a certificate of completion for all allowed construction improvements within 360 days of this meeting or a fine of$50 per day will be imposed each day the violations continue. If the respondent elects to remove the non-approved, non- permitted construction improvements, the respondent must then obtain Page 8 July 28, 2005 a Collier County demolition permit and all required inspections through to issuance of the certificate of completion for the removal of all non-approved, non-permitted construction improvements and resulting debris, restoring all premises to a state of compliance with Collier County's RSF-4 zoning district regulations and requirements within 360 days of this Code Enforcement Board hearing, or a fine of $50 per day will be imposed each day the violations continue. And Ms. Blackmon has signed the stipulation agreement. CHAIRMAN FLEGAL: Okay, before we go forward, would the County like to submit their Exhibit A to us so that we have in the record all the items? MR. MAZZONE: I have a copy that I will submit as Exhibit A. MS. ARNOLD: No, he's talking about the packet -- CHAIRMAN FLEGAL: The package. MS. ARNOLD: -- itself. MR. MAZZONE: Oh, the packet. CHAIRMAN FLEGAL: So that we actually have all the case information before us. MS. ARNOLD: Yes, we'd like to request that our Exhibit A be entered into the record. CHAIRMAN FLEGAL: The County has requested Exhibit A be submitted. Do I hear a motion to accept the County's -- MS. BARNETT: I make a motion -- CHAIRMAN FLEGAL: -- Exhibit A? MS. BARNETT: -- that we accept Exhibit A. CHAIRMAN FLEGAL: We have a motion. 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. MR. DeWITTE: Aye. MR. PONTE: Aye. Page 9 .-....--.- July 28, 2005 MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. MR. DEAN: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) MS. ARNOLD: And just for the attorney's information, all that is is what was sent to you and Mrs. Blackmon. CHAIRMAN FLEGAL: The packet you received in the mail, sIr. MR. D'ONOFRIO: Yes. CHAIRMAN FLEGAL: Dennis, could you put that up on the board for us, please. MR. MAZZONE: Yes. CHAIRMAN FLEGAL: A question I have about this agreement. Unless I'm not seeing it, I don't see any item where the respondent is to pay any kind of cost. Does the County waive those? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Okay. Just want to make sure before we get into it. Ms. Blackmon. Are you her attorney, sir? MR. D'ONOFRIO: Yes. May it please the board, and for the record, my name is Michael D'Onofrio. I'm with the law firm of Quarles and Brady. And my firm and myself have the privilege of representing Ms. Doris Blackmon in this matter. I would like to thank the Code Enforcement Department for being gracious and providing us with this agreement and the length that they have taken to help my client, Ms. Blackmon, during this matter. I don't think the board is aware the cause that gave rise to these infractions. My client is the victim of fraud and misrepresentation by Page 10 July 28, 2005 the homeowners who had sold the property to Ms. Blackmon. The original owners, the Rogers, who have since moved on, had effectuated improvements to the property without proper permits. We have evidence to support that the Rogers were contacted by Code Enforcement prior to the sale of the home to my client, Ms. Blackmon, accelerated a closing date to avoid infractions on the property, and it wasn't until after my client was in the home for several months did she become aware that there were code infractions related to improvements that had violated the floodplain levels. My client is currently involved in litigation in Collier County Circuit Court for claims against the original owners for fraud and misrepresentation. We have gone to great lengths and discussions with Mr. Mazzone and Ms. Arnold regarding this matter and, as I said before, they had been gracious in allowing my client to find a remedy through the court system and have the Rogers pay for remedies to bring the home into compliance. And I think the time that the Code Enforcement department and now the board is allowing us to complete our litigation, hopefully we will have the right party who caused these infractions take care of those matters and reimburse my client for any fines and expenses. And again, I just want to thank the board and the Code Enforcement department for being gracious in understanding the predicament that my client is in. CHAIRMAN FLEGAL: Ms. Blackmon, I see your signature on this so, therefore, it's our understanding that you have agreed to these terms, correct? MS. BLACKMON: Yes, sir. CHAIRMAN FLEGAL: And they are acceptable? MS. BLACKMON: Yes, sir. CHAIRMAN FLEGAL: And you can meet compliance with what you have signed? Page 11 July 28, 2005 MS. BLACKMON: Yes, sir. CHAIRMAN FLEGAL: Any questions from the board? MR. PONTE: I have a question, but I'm directing it to the County. I'd just like to have a -- explore the rationale for a 360-day compliance period, and the fact that having been given that much time, the fine, if not completed, is only $50. What is it that takes 360 days to do? I don't know. MS. ARNOLD: As Mr. D'Onofrio indicated, they are going to court to try to get the prior owners to pay for the cost, so it will take them some time to go through the court proceedings. And we're accounting for that time, the 360 days. CHAIRMAN FLEGAL: So basically what you're doing is you're allowing time, rather than impose a fine. While they're going through the court system and coming back later and asking us to waive it -- MS. ARNOLD: Right. CHAIRMAN FLEGAL: -- you're trying to give them enough time on the front end to get it accomplished? MS. ARNOLD: Right. MR. PONTE: The $50 fine signals to me that these are very minor infractions, was the word that was used. It would take a year? Something's missing here. Because I've never seen such an extended period of time granted for compliance. MS. ARNOLD: Well, we treat each case-- MR. PONTE: Different, I understand. MS. ARNOLD: -- individually, and we looked at the circumstances in this particular case, and the -- actually, the improvements that have been made are extensive. Also, if Ms. Blackmon is made to remove those improvements, it would be cutting her living space in almost half. And it's going to take some time for her to correct that as well. So keeping in the consideration the extent of what needs to be done to correct the violation, we had -- you know, we thought 360 Page 12 July 28, 2005 days was going to be a reasonable amount of time. And also, the cost that she will have to be imposed to make those corrections, we also made that a part of our consideration to come up with a fine amount. MR. D'ONOFRIO: And if I may, sir, just to add to that, my client would have effectuated the repairs to bring the home into compliance if she had the financial wherewithal to do so. And the reason she hasn't done it is because she doesn't have it. And we are looking to the sellers of that home to pay these costs. And right now we estimate those costs to bring it to compliance somewhere around $50,000. And my client simply just doesn't have that money to bring the house into compliance. MR. PONTE: Thank you. CHAIRMAN FLEGAL: Yes, ma'am. MS. BARNETT: Going along with George's thought processes, and I understand the legality issue, is that the same reason why you gave the demolition 360 days, Michelle? Because generally we give a shorter time frame on the demolition, because the permit is much easier to obtain. MS. ARNOLD: Correct. MS. BARNETT: But it's for the same reason? MS. ARNOLD: Right. Understanding that the bulk of that time is going to be the litigation that's going through. So not knowing how much time that's going to take, we just wanted to be consistent and give the same amount of time to either remove the structures or get it permitted and obtain C.O. CHAIRMAN FLEGAL: Any other questions by board members? (No response.) CHAIRMAN FLEGAL: Hearing none, we have a stipulation agreement before us. I would entertain a motion to accept or reject the stipulation agreement. Page 13 July 28, 2005 MS. BARNETT: I'll make the motion to accept the stipulation agreement that the County has put into place with Doris E. Blackmon. CHAIRMAN FLEGAL: Do I hear a second? MR. DeWITTE: I'll second it. CHAIRMAN FLEGAL: We have a motion and a second to accept the stipulation agreement as submitted to the board. Any further discussion? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. MR. DeWITTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. MR. DEAN: Aye. CHAIRMAN FLEGAL: Any opposed? MR. PONTE: Opposed. CHAIRMAN FLEGAL: Okay, 6-1. Okay, sir, the agreement is accepted. MR. D'ONOFRIO: Thank you. CHAIRMAN FLEGAL: Just for the record, in case I did not advise Mr. Dean, as our new alternate, we have two regular members absent. Both our alternates can participate fully. They can ask all the questions they like, and they can vote today, because the two regular members are absent. My error if that was misunderstood. Next case is 2005-28, Board of County Commissioners versus Patrice Savignano. Is that -- I hope I didn't murder that too badly. I apologize if I did. MS. PETRULLI: Mr. Chairman, I believe the investigator has reached stipulation agreement with the Savignanos. CHAIRMAN FLEGAL: You want to submit your package Page 14 July 28, 2005 before you start? You want to swear everybody in? (Speakers were duly sworn.) MS. SEGURA: Good morning again. The recommendation that I have prepared was for the respondents to pay the operational costs incurred in the prosecution of the case and abate all violations by, one, hiring a consultant. In this case an environmental consultant was written on the recommendation; however, they have tried to get some environmental consultants to do the work without success. So we have agreed that they would hire a landscape architect to possibly draw up a mitigation plan. They would complete and submit this mitigation plan and -- an approved mitigation plan within 30 days, according to Section 10.02.06. (E)(3) of Ordinance 04-41, which is the mitigation code. To re-vegetate three acres with native vegetation of all three strata, or a fine of $75 a day. Planting of one acre must be completed within 15 days after approval of the mitigation plan. The remainder of the planting shall be completed within 60 days after approval of the mitigation plan, or a fine of $75 per day until completed. The respondent must notify Code Enforcement when the violation has been abated in order to conduct a final inspection and confirm abatement. And I don't have an official stipulation agreement, but the -- Mr. Peter Flood and Mr. Savignano have signed this recommendation, if we could present this. CHAIRMAN FLEGAL: Okay. One moment, sir, before we do that. MS. ARNOLD: Yes, the County would like to enter exhibit-- our Exhibit A into evidence. CHAIRMAN FLEGAL: Okay. County has requested to submit Exhibit A. Do I hear a motion to accept? Page 15 ----- July 28, 2005 MR. PONTE: So moved. MS. BARNETT: 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. MR. DeWITTE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. MR. DEAN: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Okay, sir? Mr. -- I hope -- tell me if I'm pronouncing this right. Is it Savignano? MS. SAVIGNANO: Yes. CHAIRMAN FLEGAL: I see your signature on this. Have you agreed to this and do you understand? MS. SAVIGNANO: Yes. MR. FLOOD: Yes. CHAIRMAN FLEGAL: And you're agreeing that you can meet all these dates without a problem? MS. SA VIGNANO: Yes. CHAIRMAN FLEGAL: Questions from the board? MS. BARNETT: I have a question on the stipulation. It says hire an environmental consultant. And I believe you stated that you would allow a landscape architect? MS. SEGURA: Yes. MS. BARNETT: I think that that needs to be written in. MS. SEGURA: Sure. CHAIRMAN FLEGAL: Yeah, I think if you just -- you know, Page 16 ~_....n_^",.._.m__ July 28, 2005 you can either add and/or, or cross out the environmental consultant and everybody can initial it. That would be acceptable. MR. FLOOD: Yeah, the only other issue that we need to raise and we didn't discuss, it's three acres. It mayor may not be less than three acres. I would like to put approximately three acres total. Because we don't know exactly. And I'm sure -- we don't know exactly what's there and what's not there right now. I don't want to say well, you've got to do all three acres if there's only 2.8 or 2.6 or something. CHAIRMAN FLEGAL: I mean, you have a deed. Does it say approximately or something? MR. FLOOD: Yeah, but there's some vegetation still left on the site. I don't know if it's acceptable or -- we're going to work together on that to see whether or not that can remain or not. But I'm saying, it says you've got to replace three acres; it could be 2.7 -- it could be three acres, but it could be 2.5, it could 2.8, it could be 2.9. CHAIRMAN FLEGAL: Does the County have a problem if it's approximately three acres? That way it could be more or less. MS. SEGURA: Approximately is acceptable. We have done the measurements on the property, and we have compensated for the vegetation that still exists before we issued the order to correct, so I'm okay with approximately. They are also facing an issue with the County widening County Barn Road. So there's a meeting today, then they're going to find out how much of their property is going to be taken. MR. FLOOD: I just didn't want it to be strict on the three acres. CHAIRMAN FLEGAL: I understand, sir. Not a problem. The County's willing to accept approximately. So we can make that change and if everybody will initial it. Any other questions from board members? MR. PONTE: I have a question for Ms. Segura. How long do you estimate it will take to get approval on the Page 1 7 July 28, 2005 mitigation plan? MS. SEGURA: It could take a day, it could take three days at the most. MR. PONTE: Okay. All right. MS. SEGURA: It depends on when it's submitted. MR. PONTE: Thank you. CHAIRMAN FLEGAL: Any other questions by board members? (N 0 response.) CHAIRMAN FLEGAL: If none, both parties are happy with this, and at the changes made? And everybody understands them? MR. FLOOD: Yeah, we'll just initial them. CHAIRMAN FLEGAL: Yeah, you'll initial them before you leave, if the board accepts it. Yes, ma'am? MS. BARNETT: One other question. We usually leave the operational cost. It's 965 total as of today, but they continue to accrue on occasion. There are other things, filing fees and things like that that are added on. How do we handle that? CHAIRMAN FLEGAL: If the County has already picked a number, it's a dead number on this agreement. MS. ARNOLD: It's a pretty good number, but as Sheri indicated, I think you all normally put in your orders that they continue to accrue. If we have to file any other documents such as a lien or something like that, those filing fees should be assessed. CHAIRMAN FLEGAL: Okay. What -- if the board accepts this agreement, we're allowed to make any changes we deem necessary on behalf of the County. Understanding Sheri's concern and what Michelle has said, what the board might do -- and I say might, because we haven't discussed it yet -- is on the operational cost where there is a total right now, we may just say, rather than accept the total as submitted, pay all the Page 18 July 28, 2005 operational costs incurred in the prosecution of this case and abate the violations. Which means the 965, when it's all done, may be some other number. We won't -- we'll take it out of this agreement. That mayor may not happen. I don't know what the members may do. Do you understand that? MR. FLOOD: Yeah, I wouldn't have a problem with that, as long as we don't comply. CHAIRMAN FLEGAL: I'm sure the County can keep you apprised of what's happening. Okay, we have an agreement before us. Any other questions from the board? (No response.) CHAIRMAN FLEGAL: Hearing none, is there a motion by the board to accept and/or change the agreement as submitted? MS. BARNETT: I will make a motion to accept this recommendation as is, with the change that all operational costs incurred in the prosecution of this case and abate all violations, period. No number. MR. PONTE: I'll second the motion. CHAIRMAN FLEGAL: We have a motion and a second to accept the agreement, with the change that there will be no operational cost number shown in the agreement. And the other changes that are agreed to, the landscape architect and the approximate three acres. Any other discussion by the board? (No response.) CHAIRMAN FLEGAL: Hearing none, all those in favor, signify by saying aye. MS. BARNETT: Aye. MR. DeWITTE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. Page 19 July 28, 2005 CHAIRMAN FLEGAL: Aye. MR. DEAN: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. The agreement's accepted. Make sure you initial all the changes, gentlemen. We'll now close the public hearing section. We'll go to requests for imposition of fines. First one, Case 2005-05. MS. ARNOLD: Yes, you all should have information on that particular case. The case was heard, and on March 30th the board entered into a finding of fact, conclusion of law and found that there was a violation to this particular case. The order is provided for you all for your review. Weare here to request that we impose the amount of $377.01 for operational costs, and no fines, as the violation has been abated. CHAIRMAN FLEGAL: Okay. To remind the board members, operational costs are something that the board does not have the power to reduce or waive; therefore, we must impose them. Our authority is limited to actual fines. So I would entertain a motion to impose the operational costs as requested. MS. BARNETT: So moved. MR. PONTE: Second. CHAIRMAN FLEGAL: We have a motion and a second to impose the operational costs as requested. All those in favor, signify by saying aye. MS. BARNETT: Aye. MR. DeWITTE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Page 20 July 28, 2005 MR. DEAN: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. Next, case 2005-06. MS. ARNOLD: Yes, this case was also heard by the board on March 30th, and a finding of fact was made and the violation was found. Again, the order is provided, and the stipulation that was entered into is also provided for your review. We are asking that the board impose the amount of $442.29 for operational costs. And again, the violation was abated in accordance with the board's order, so no fines accrued. CHAIRMAN FLEGAL: Again we have a request to impose operational costs. And there is no fine. Do I hear a motion to impose the operational costs? MS. BARNETT: So moved. MR. DeWITTE: Second. CHAIRMAN FLEGAL: We have a motion and a second to impose the operational costs. All those in favor, signify by saying aye. MS. BARNETT: Aye. MR. DeWITTE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. CHAIRMAN FLEGAL: Aye. MR. KRAENBRING: Aye. MR. DEAN: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: Okay, that finishes imposition of fines. Request for foreclosures. MS. ARNOLD: Yes, there is a memo in your packet, indicating Page 21 ---- July 28, 2005 that we would like to request the following cases: CEB 2004-46, Board of County Commissioners versus William Petruzzi, and CEB Case 2004-38, Board of County Commissioners versus Avin Noel and Marie Chavanes. Both those cases are being requested to forward to the County Attorney's office for foreclosure or collection. CHAIRMAN FLEGAL: The note we have about the fines accruing, is that $50 on each one? MS. ARNOLD: I'm assuming that it continues to accrue on the second case, but I'm not sure. CHAIRMAN FLEGAL: Okay. But the fines, I assume, were still accruing on the first case, that's why we're asking for foreclosure? MS. ARNOLD: Petruzzi? No, I believe Petruzzi is in compliance. The violation was abated by the County. CHAIRMAN FLEGAL: They just didn't pay us. MS. ARNOLD: Right. CHAIRMAN FLEGAL: Okay. We have a request to forward these two cases to the County Attorney's office for foreclosure. Any questions by board members? (N 0 response.) CHAIRMAN FLEGAL: If none, I would entertain a motion to forward these to the County Attorney. MS. BARNETT: I'll make the motion. MR. DEAN: Second. CHAIRMAN FLEGAL: We have a motion and a second to forward these two cases to the County Attorney's office for foreclosure. Any other questions? (No response.) CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. BARNETT: Aye. MR. DeWITTE: Aye. MR. PONTE: Aye. Page 22 July 28, 2005 MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. MR. DEAN: Aye. CHAIRMAN FLEGAL: Any opposed? (No response.) CHAIRMAN FLEGAL: That completes new business. We have no old business. Under reports, we have a report from Mr. France, which he's required to do on a monthly basis. Michelle, is this in lieu of the one we didn't get last month? Did we not -- MS. ARNOLD: Yeah, we missed one last month. And probably it's making up for both months. If you do have any questions, I know Jennifer Belpedio is pretty familiar with the negotiations with the County. CHAIRMAN FLEGAL: Jennifer, are you happy with what they're telling us? MS. BELPEDIO: Yes, I am. CHAIRMAN FLEGAL: Thank you. We have other items on our reports. First one being Case 2001-13, Philip and Anna Maria Marrone. MS. BELPEDIO: Jennifer Belpedio, Assistant County Attorney. I just wanted to start out telling you that I had good intentions -- you know what they say about good intentions -- to send you all by e-mail copies of the litigation documents on the three cases that I'm going to be speaking to you about. These documents were unfortunately too large to send to you. Some of them I think made it through. But what I can do is find out whether or not you do want hard copy documents after the presentation, and then bring them at the next meeting. And I'll always be open for any questions after you've read Page 23 July 28, 2005 the documents. CHAIRMAN FLEGAL: I don't know about the other board members, but rather than go to the expense of printing all these things out, I think if you could just tell us what's going on, since I'm sure you're representing or working on representing the County and that's what this is all about. If you would, please. MS. BELPEDIO: Yes, sir. I do have them available, if they're wanted. I would start off with Philip A. Marrone versus the Board of County Commissioners. As you -- as some of you may recall, we had a case in 2001 where the County alleged that the Little Italy Restaurant, owned by the Marrones, was in violation because they had changed some sign copy on a legally nonconforming rooftop sign. The Marrones had not only refreshed the paint, but they had changed the logo and the font, the writing on that sign. Because of that change, the Land Development Code required that that nonconforming sign be taken down. So the County prosecuted that case before you in 2001, and this board found a violation and was very generous in giving one year for the Marrones to come into compliance. Three days before that compliance date, the Marrones hired an attorney, and the attorney had come in asking for an extension of the compliance date. This board denied that extension. Four of the members denied the extension, three were in favor. But nonetheless, the majority was that there was a denial. Then the next month the attorney came in at the next hearing and asked for a rehearing of the substantive case, the case that was heard the year prior. Again, the Code Enforcement Board denied the rehearing and believed that that motion was untimely. It was made a year after. And at the time and still the rules and regulations require that that Page 24 July 28, 2005 motion be made no later than 20 days from the mailing of the order finding the violation. So in this case the challenge was to the motion for the extension and the motion for the rehearing. And the court decided that the County should prevail. We won on procedural grounds. The motion was untimely. There's no such thing as reconsideration. The extension was properly denied. And that was that case. There's really not a lot to tell you except that the attorney spent a lot of time trying to argue the merits of the order finding the violations and trying to reopen the case and argue why there was no violation. So we were successful in getting that not to be discussed or considered. Then a month after those two motions were heard by this board, I believe that was August of 2001, this board considered an imposition of fine and that amount, I believe, was approximately $1,600 that was being asked to impose. At the time, the notice of hearing that was sent by the County said that the hearing was administrative and was not evidentiary, and that no testimony would be taken. So the Marrones, through their attorney, filed a motion before this board to strike the notice of hearing and said that they would not be attending because they were not being given the appropriate due process. This board imposed the fines and that order was challenged. In this case, the circuit court ruled against the County. Now, I think that we lost the battle, but we won the war in this instance. The court said, relying on a case called Massey out of Charlotte County, that a local Code Enforcement Board is required to give notice and an opportunity to be heard at a finding of fact -- at an imposition of fine hearing. There has to be findings of fact made that violations continued to exist and that the property owner was allowed to challenge those findings. They were allowed to be heard and Page 25 July 28, 2005 challenge the evidence and cross-examine the witnesses. The same procedure that we would have for our substantive hearings where we find violations. What's interesting about the case that was relied upon is that it did not say that a hearing to impose the fine is required. It just said that an opportunity to be heard and notice is to be given. And the way I read that is that if we wanted to, and, you know, I think we may have discussed this at a workshop, and we may likely again, but if the County wanted to and the Code Enforcement Board thought it appropriate, an order, proposed order, could be sent to the property owner, telling the property owner that this is what the County will file in the public records if we do not hear from them within a certain period of time, giving them the opportunity to challenge it, and if we don't hear from them, assuming they've received proper notice, then we can file it, and it would be a lien, if certified, and recorded, and we would be complying with the case that the court is requiring us to comply with. So that is what happened in this case. But I say that we won the war and not the battle. Because ultimately rather than coming back to re-impose the fines, which is what we could do, the Marrones paid them. So we did receive the money that we believe that we were owed. The last case that I would like to speak with you about is Keiser versus Board of County Commissioners, Case 03-1733. This case goes back before my time, and probably most of you. It started in 1998. Maybe Mr. Ponte and maybe Mr. Flegal remember this case. This board found violations and required that a conditional use and building permits be obtained for all structures. And the -- afterwards fines were imposed at $350 a day. The board's order had said that for not having the conditional use a $250 fine would accrue, and for not having the building permits, a $100 fine would continue to accrue. Page 26 July 28, 2005 So the fines did accrue. And rather than challenging either of those orders -- or the finding of fact order, the property owner challenged the County's case in federal court. So we spent some time in federal court and ultimately Federal Court dismissed the case. And that was a victory for the County. So in 2000, the County ultimately after -- while the federal case was pending, $170,000 in fines had accrued, so the County ultimately imposed those fines. Then the property owner took a challenge to that order and the circuit court quashed the decision, saying that $350 per day was in violation of Chapter 162, because the court read Chapter 162 to mean that the fines cannot exceed $250 per day in the aggregate. Now, I can tell you that I respectfully disagree with the court's opinion, and I read the section that was in question as no more than $250 per day per violation. But nonetheless, we have at least one Circuit Court judge here at the 20th Judicial Circuit who believes it should not be higher than $250 per day in the aggregate. So that case was remanded to the Code Enforcement Board so that the Code Enforcement Board could correct that unlawful fine that the judge had found. And that's what happened. What was imposed was $150 per day. That only amounted to $123,750. I'm being a little facetious, but it was a lot less than what it was before. The property owner challenged that order again. And that was in 2003. I worked with the County on that one. And the County prevailed. The court thought that the new fines, the $150 per day, were reasonable. And again, the County won on more procedural grounds. The property owner, as with the -- similar to the Marrone property owner, tried to argue the substantive merits of the case and tried to argue about why there was not a violation in his opinion. The court just said $150 a day is reasonable, it's appropriate, we're not reopening up the case, and ruled in our favor. Page 27 ._--~- July 28, 2005 That's all have I to tell you. But if there's any questions or insights or -- CHAIRMAN FLEGAL: Go ahead, George. MR. PONTE: My question, I just need a little education. On the Marrone case, the ruling by the judge now says that if a respondent comes forward and asks for a reduction of fine, he also has a right to -- correct me, because I'm on thin ice here. MS. BELPEDIO: It was not a reduction of fine hearing, it was an imposition of fine hearing, similar to what we just had. And the court said if the County or the Code Enforcement Board chooses to have a proceeding where it is going to impose fines or consider the imposition of fines, that the property owner has the right to challenge the facts that are presented. If the -- if County staff were to say that a certain amount of money was owed because of five days of noncompliance, it would be within the right of the property owner to argue and present pictures and whatever, evidence the property owner has to say no, I was not in violation for five days, it was only three, or it was none. And it's an evidentiary hearing, but due process is entitled to be given and there has to be finding of facts and evidence to support those facts. CHAIRMAN FLEGAL: Well, my question was -- Jen, I guess-- I'm a little confused, Jennifer, so it is a good item for a workshop -- MS. BELPEDIO: Okay. CHAIRMAN FLEGAL: -- in that the sentence in 162 leads me not to understand what this judge has said. Because it says if a finding of a violation or a repeat has been made as provided, a hearing shall not be necessary for the issuance of the order imposing the fine. MS. BELPEDIO: Right. CHAIRMAN FLEGAL: Now, we have to have a preceding, otherwise, I mean, how do you impose the fine? Because you need the Board's approval. But it's not a hearing. So how is he -- is he telling us that 162 doesn't apply? Maybe you can research that and Page 28 -~-- July 28, 2005 explain it to us. MS. BELPEDIO: I have, and I could see how you could read it that way. And along with you, I had read it that way for years. But there had been a recent case in the Second District Court that said otherwise. And it seems that a hearing is not necessary. The County does not have to have a hearing. But we're required to give a person the opportunity, if they want a hearing, to come to the hearing and challenge the County's assertions or allegations. So I'm not saying it's absolutely required, but I'm saying that if we choose to come here and discuss the matter with you and impose the fines, that we have to give the person the opportunity to speak and challenge, if they want. MR. PONTE: Doesn't that give them two bites of the same cherry? I mean, they get to try their case again? MS. ARNOLD: Can I try to clarify? I think what the courts are saying is that if we are going to impose fines, we have -- we can choose to do it how we've done it in the hearing process, or we can choose to do it, as Jennifer had mentioned, through the mail, giving the chairman the opportunity to sign those imposition of fine documents. We will mail the respondent that document, indicating these are the fines we intend to impose, and giving them a certain amount of time to call us and say we want to challenge this information. And then we would set a hearing and hear what the respondent has to say. Failure to respond to that notice within that time, then we would file those documents in the public records. And I think we can talk about whether or not this is the route we want to go in a workshop. Also, the court is not saying that do we want -- they're not opening up the evidentiary hearing again during that imposition of fine hearing. All that they, the respondent or the County, should speak to is the facts that are being presented, meaning whether or not there is Page 29 July 28, 2005 still a violation and whether or not the violation came into compliance within the date that the County is indicating they came into. MR. KRAENBRING: This precedent was on that Massey case. MS. ARNOLD: Right. MR. KRAENBRING: I think if you remember, at the workshop in Sanibel, they had mentioned this case was something to be brought into our procedures. MS. ARNOLD: Right. MS. BELPEDIO: Now, it's not a very lengthy case. That is something that could be sent bye-mail to the members of the board. It is Second District Court of Appeals, which is binding in Collier County and may be something worth looking at, if you desire, and I certainly could send off to you. MS. RAWSON: I think maybe we did. I know we discussed it at a couple of workshops, and I think maybe you've got at copy of it. We don't call it a hearing, but, you know, if they show up you've got to give them their due process and let them challenge. CHAIRMAN FLEGAL: But I think we do that when they show up. MS. RAWSON: We do. But what Michelle is saying, there's an alternative to that. MS. BARNETT: Couldn't we just send them a notification that on this particular day we're planning on imposing these fines? That's giving them the notification. If they show up and want to challenge it at that point -- MS. RAWSON: That's what we do now. MS. ARNOLD: That's what we do now. MS. RAWSON: That's exactly what we do. MS. BARNETT: Doesn't that -- MS. RAWSON: But what we can't do is if they show up and say MS. BARNETT: We can't ignore them. Page 30 July 28, 2005 MS. RAWSON: -- I want to say something, we can't say you don't get to talk. That's what the Massey case is. MS. BELPEDIO: It doesn't -- that decision's not contrary to 162. What the court looks at is just the traditional notions of fair play. And because a lien on one's property is so serious, they want the person to have the opportunity to challenge why they should not have the lien in the first instance. CHAIRMAN FLEGAL: Okay. MS. BELPEDIO: Thank you. CHAIRMAN FLEGAL: Thank you, Jennifer. MR. KRAENBRING: Thank you, Jennifer. MS. ARNOLD: Just for the board's information, the case against Southern Exposure is still in noncompliance, so the fines continue to accrue. CHAIRMAN FLEGAL: I guess a question for Jean. I know at one time Southern Exposure, in addition to their suit against the County, they had a suit against all the board members. Is that still out there, or did that finally disappear, or -- MS. RAWSON: I haven't heard anything about it in years. I'll have to check. MR. PONTE: Maybe not. CHAIRMAN FLEGAL: I know we each had gotten served. And we -- MS. RAWSON: Is it still going in -- I think it's all over, isn't it, Jennifer? MS. BELPEDIO: Pardon me? MS. RAWSON: Southern Exposure, isn't that out of the court system? MS. BELPEDIO: All three cases are out of the court system. MS. RAWSON: So you don't need to worry. MS. BELPEDIO: I would have brought them to you if they were. Page 3 1 July 28, 2005 MS. RAWSON: It's all over. The only thing that's left remaining is the fines. CHAIRMAN FLEGAL: Okay, that's the easy part. MS. BELPEDIO: It's my understanding that we had referred Keiser over to Jeff Klatzkow for foreclosure and that he was waiting to do what he does on foreclosure cases until the outcome of the Keiser case. I had forwarded him a copy of the order, judge's order, so he should be doing what he typically does. MR. PONTE: Does that not give him the opportunity, though, to come back here at that time and then to make an argument? MS. BELPEDIO: We've imposed the fines, the 123,000, and the court said that that was appropriate. The order as recorded stands. And we would just pick up right where we left off. MS. ARNOLD: And once the cases are forwarded to the County Attorney's office for foreclosure or collections, it doesn't go back to this board, it goes to the Board of County Commissioners. CHAIRMAN FLEGAL: Okay. Last item on reports is our year-to-date affidavit report, which shows cases that are not in compliance and in compliance since some period. MS. ARNOLD: Yes. CHAIRMAN FLEGAL: The one, like Ms. Hall from '03, is that a case we forwarded to Jeff for foreclosure? MS. ARNOLD: Actually, no. That's Ms. Hall that you actually gave another extension to. That's the one where she had the house that was under construction. It had some problems with the contractor. CHAIRMAN FLEGAL: Oh, okay. MS. ARNOLD: She was in last month or a couple of months ago. CHAIRMAN FLEGAL: Understand. That's all the reports. There's no comments. Our next meeting is August 25th. Same place, same time. Page 32 July 28, 2005 Everybody's expected to be here, unless you call and advise either Michelle or myself that you can't for some reason. MS. ARNOLD: I do want to mention for the board that we may have to change our November hearing, the November 18th hearing. We had modified that, and so I'll try to get with you all. Either change the date or change the location, because the Board of County Commissioners needs this room on that date. So -- CHAIRMAN FLEGAL: If we've already agreed to a date, I'd rather just change the location, rather than trying to get everybody to re-juggle their schedule. MS. ARNOLD: Okay. CHAIRMAN FLEGAL: Since they've all agreed to it. Just find us somewhere else to go. MS. ARNOLD: All right. CHAIRMAN FLEGAL: Anybody from the board want to say anything? (No response.) CHAIRMAN FLEGAL: Ifnot, I'd entertain a motion to adjourn. MS. BARNETT: So moved. MR. PONTE: Second. CHAIRMAN FLEGAL: We have a motion and a second to adjourn. All those in favor, signify by saying aye. MS. BARNETT: Aye. MR. DeWITTE: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. MR. DEAN: Aye. CHAIRMAN FLEGAL: Thank you. Page 33 July 28, 2005 ****** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 10:28 a.m. COLLIER COUNTY CODE ENFORCEMENT BOARD CLIFFORD FLEGAL, CHAIRMAN Page 34