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CEB Minutes 09/22/2005 R September 22, 2005 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida September 22, 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" ofthe Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Clifford Flegal Raymond Bowie Larry Dean Justin DeWitte George Ponte Sheri Barnett (excused absence) Gerald Lefebvre (excused absence) Richard Kraenbring (excused absence) Jerry Morgan (excused absence) ALSO PRESENT: Jean Rawson, Attorney for the Board Michelle Arnold, Code Enforcement Director Steven Griffin, Assistant County Attorney Patti Petrulli, Code Enforcement Supervisor Page 1 CODE ENFORCEMENT BOARD OF COLLIER COUNTY. FLORIDA AGENDA Date: September 22, 2005 at 9:30 a.m. Location: 3301 E. Tamiami Tr., Naples, Florida, Collier County Government Center, Administrative Bldg, 3rd Floor NOTE: ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBA TIM 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 - August 25, 2004 4. PUBLIC HEARINGS A. MOTIONS a. Motion to Continue - (no requests submitted at the time of preparation) B. STIPULATIONS 1. CASE NO: CASE ADDR: OWNER: INSPECTOR: 2005-042 307 SOUTH 8TH STREET, IMMOKALEE, FL GUADALUPE CAMPBELL DENNIS MAZZONE VIOLATIONS: ORD NO 04-41, AS AMENDED, OF THE COLLIER COUNTY LAND DEVELOPMENT CODE, SECTIONS 1.04.00, SUB SEC 1.04.01 PARAGRAPH'S A, B, AND C, 2.02.00, SUB. SEC'S 2.02.03 AND 2.03.01-H, 9.03.00, SUB SEC 9.03.01 A, B AND C. DESCRIPTION: MOBILE HOMES BEING PLACED ON VR ZONED PROPERTY INCRESING THE DENSITY WITHOUT PRIOR ZONING OR BUILDING PERMIT APPROVAL. C. HEARINGS 1. CASE NO: CASE ADDR: OWNER: INSPECTOR: 2005-033 10091 GULFSHORE DRIVE, NAPLES, FL DEBRA AND ROBERT FORBIS KEVIN HALESWORTH VIOLATIONS: ORD NO 04-41, AS AMENDED, OF THE COLLIER COUNTY LAND DEVELOPMENT CODE, SECTIONS 9.04.06 AND 3.05.07. DESCRIPTION: WOODEN PILINGS IN THE DUNE AREA AND REMOVAL OF A LISTED SPECIES, SEA OATES. 2. CASE NO: CASE ADDR: OWNER: INSPECTOR: '----.- ^---..---.-.- 2004-034 4842 DA VIS BOULEVARD, NAPLES, FL KITE KING'S LAKE LLC JOHN OLNEY VIOLATIONS: ORD NO 04-41, AS AMENDED, OF THE COLLIER COUNTY LAND DEVELOPMENT CODE, SECTION 5.03.02.3 DESCRIPTION: FENCING SURRUNDING SHOPPING CENTER IN ILLREPAIR. 3. CASE NO: CASE ADDR: OWNER: INSPECTOR: 2004-038 6300 DAVIS BOULEV ARD, NAPLES, FL AMERADA HESS CORPORATION TRA VIS SNODERL Y VIOLATIONS: ORD NO 04-41, AS AMENDED, SECTION(S) 10.02.06(B)(2)(A), 10.02.06(B)(2)(D)(IX) DESCRIPTION: HESS PANELS ADDED TO POLE SIGN WITHOUT VALID PERMIT. 6. NEW BUSINESS A. Request for Imposition of Fines/Liens 1. BCC vs. Holly M. Heath CEB 2005-02 7. OLD BUSINESS 8. REPORTS 9. COMMENTS 10. NEXT MEETING DATE October 27, 2004 11. ADJOURN September 22, 2005 CHAIRMAN FLEGAL: 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. Additionally, as we've done in the past, everybody is reminded, we don't want everybody to speak at once. If you want to speak, you must be recognized by the Chair. That goes for board members, the county, the respondents, people in the audience. Please be silent, okay? Roll call, please. MS. PETRULLI: For the record, Supervisor Patti Petrulli with Collier County Code Enforcement. Cliff Flegal? CHAIRMAN FLEGAL: Present. MS. PETRULLI: George Ponte? MR. PONTE: Here. MS. PETRULLI: Raymond Bowie? MR. BOWIE: Here. MS. PETRULLI: Larry Dean? MR. DEAN: Here. MS. PETRULLI: Justin Dewitte? MR. DeWITTE: Here. MS. PETRULLI: And excused ITom today's hearing is Sheri Barnett, Gerald Lefebvre, Richard Kraenbring, and Jerry Morgan. CHAIRMAN FLEGAL: Since we have members absent, our two alternate members will participate fully, questions, voting, so that we have a full board. Page 2 September 22, 2005 Approval of our agenda. Are there any changes, corrections, additions? MS. ARNOLD: For the record, Michelle Arnold, Code Enforcement Director. I have one addition to the agenda and that would be to add a quarterly report on the liens and foreclosures under reports, Item eight. CHAIRMAN FLEGAL: Okay. Anything else? MS. ARNOLD: That's it. CHAIRMAN FLEGAL: Hearing none, I would entertain a motion to accept the agenda as changed. MR. BOWIE: So moved. MR. DEAN: Second. CHAIRMAN FLEGAL: We have a motion and a second to approve the agenda as changed. All those in favor, signify by saying aye. MR. PONTE: Aye. MR. BOWIE: Aye. MR. DEAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Approval of our minutes ITom August 25th. Any changes, corrections? (No response.) CHAIRMAN FLEGAL: If none, I would entertain a motion to approve the minutes as submitted. MR. DEAN: Motion to approve the minutes as submitted. MR. PONTE: Second. CHAIRMAN FLEGAL: We have a motion and a second to approve the minutes as submitted. All those in favor, signify by saying aye. Page 3 ~_._- September 22, 2005 MR. PONTE: Aye. MR. BOWIE: Aye. MR. DEAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: We'll now open our public hearings. There are no motions to continue. We do have a stipulation, Case No. 2005-042. MS. PETRULLI: At this time, I'd like to introduce the inspector on the case, Dennis Mazzone, who has reached a stipulation with Guadalupe Campbell. (Speaker was duly sworn.) MR. MAZZONE: Good morning. For the record, my name is Dennis Mazzone. I'm with Collier County Code Enforcement. I have a stipulated agreement which the Campbell's have signed. And the Campbell family is present today. And I'm going to submit that as Exhibit A to this body. On August 26th -- if you wish, I'll read you the __ CHAIRMAN FLEGAL: Yes, read it to us and then put it up so we can see what it is. MR. MAZZONE: Certainly. On August 26th, I arranged to meet with the Campbell family at their home in Immokalee. And at that time we discussed a need for your direction as far as acquiring a site improvement plan review and approval for the increased development of their parcel that we're speaking about today. And that would be parcel 81.001. This particular parcel currently has four mobile homes placed on it. And I obtained a signed stipulated agreement which I have __ I will be entering into -- as Exhibit A today into your record. The -- Ms. Campbell agreed to pay operational costs in the Page 4 September 22, 2005 amount of $331.22. Mrs. Campbell further agreed to abate all violations by contacting the CoIlier County department of zoning and land development review to schedule a pre-application meeting for a site improvement plan within 10 days ofthis Code Enforcement Board hearing, or a fine of$250 a day per day will be imposed as long as the violation continues. Also, Mrs. Campbell agreed to submit a complete and sufficient site improvement plan application to CoIlier County planning personnel within 90 days after the pre-application meeting, or a fine of $250 per day will be imposed each day the violation continues. Mrs. Campbell also agreed to act with due diligence in pursuit of an approved site improvement plan and obtain CoIlier County building pennits for all approved additions, improvements and use of parcel 81.001 within 60 days after site improvement plan approval, or a fine of $250 per day will be imposed for each day the violation continues. Also, Mrs. Campbell shall obtain all required inspections and a certificate of completion within 120 days after issuance of her building pennits, or a fine of $250 per day will be imposed each day the violations continue. Or, if Mrs. Campbell chooses not to pursue a site improvement plan or any other remedy, she must obtain a Collier County demolition permit 10 days after the CEB hearing, or after abandonment __ abandoned pursuit of her site improvement plan, or any other remedy that she chooses, or a fine of $250 per day will be imposed for each day the violation continues. Mrs. Campbell further agrees that ifshe is to choose the option of removing the violation by demolition, she will obtain a Collier County demolition pennit and remove all non-approved, non-pennitted additions, improvements and use within 90 days after this Code Enforcement Board hearing, or within 90 days after site improvement plan abandonment, or a fine of $250 a day will be imposed each day the violation continues. Page 5 September 22, 2005 And finally, Mrs. Campbell agreed to provide Collier County code enforcement with written notification when the violations are abated. Mrs. Campbell has already started the abatement process. She has a site improvement plan pre-application meeting scheduled for October 12th, 2005, in our office. Any other questions? CHAIRMAN FLEGAL: One question. The statement you just made, she has a pre-application meeting scheduled? MR. MAZZONE: Yes, sir. She's-- CHAIRMAN FLEGAL: You said October 12th? MR. MAZZONE: October 12th. CHAIRMAN FLEGAL: Under Item 2 you're stating that she has to have a pre-application meeting within 10 days of this hearing. MR. MAZZONE: That's correct. CHAIRMAN FLEGAL: That's not going to be October 12th, and you want to -- MR. MAZZONE: She had to schedule a pre-application meeting. CHAIRMAN FLEGAL: Okay. What I'm saying is, you're agreeing -- the two of you are agreeing to something that she's not going to meet. You're giving her 10 days. MR. BOWIE: To schedule, though. MS. ARNOLD: Just to schedule, not to have it occur. MR. MAZZONE: She's already done that. She's taking care of what she needs to do. She's very eager and willing to comply. CHAIRMAN FLEGAL: Ijust don't want to see her back into something. MR. MAZZONE: No, and nor do we. So we've tried to work this out so that -- we have arranged it so that Mrs. Campbell and her family can meet with our planners in our office where we can sit down and discuss this. And that date was -- we tried to accommodate her Page 6 -.-. September 22, 2005 and her needs by having her arrange for the meeting before this deadline. She's well within her time frames. CHAIRMAN FLEGAL: Okay. Any board members have any questions right now before we ask the respondent? (No response.) CHAIRMAN FLEGAL: Jean, I have a question for you. MS. RAWSON: Yes. CHAIRMAN FLEGAL: In reading through what they're agreeing to, everything they are doing is $250 a day. Do we have a problem with -- MS. RAWSON: The answer to the question is it depends on how I write the order. But it's no, because if I break it down into many subparts -- CHAIRMAN FLEGAL: Okay. MS. RAWSON: -- at 250 a day, even the alternatives, I think we'll be okay. CHAIRMAN FLEGAL: Okay. Any other questions for the county? (No response.) CHAIRMAN FLEGAL: Mr. and Mrs. Campbell? Ms. Campbell, would you come forward, please? MS. CAMPBELL: Yes, sir. (Speaker was duly sworn.) CHAIRMAN FLEGAL: Ms. Campbell, on this agreement that we were just shown and told about, you're agreeing with everything that's there? MS. CAMPBELL: Yes, sir. CHAIRMAN FLEGAL: And you don't have any problem with it? yes. ~">" MS. CAMPBELL: Well, I try to do my best to fix everything, CHAIRMAN FLEGAL: That's fine. Page 7 September 22, 2005 Anybody have any questions for Ms. Campbell? (No response.) CHAIRMAN FLEGAL: Thank you, ma'am. As to the agreement, everybody on the board acceptable? If so, I would entertain a motion to accept the stipulated agreement as presented. MR. BOWIE: I move that in the case of Collier County Board of Commissioners versus Guadalupe Campbell, Case No. 2005-42, that this board accept the stipulation agreement that has been proposed to us. MR. PONTE: I'll second the motion. CHAIRMAN FLEGAL: We have a motion and a second. Any further questions? (No response.) CHAIRMAN FLEGAL: Hearing none, all those in favor, signify by saying aye. MR. PONTE: Aye. MR. BOWIE: Aye. MR. DEAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Okay. First public hearing, case __ MR. MAZZONE: Thank you. CHAIRMAN FLEGAL: Thank you, Dennis. Case 2005-033. MS. PETRULLI: 2005-33 is the Board of County Commissioners versus Debra and Robert Forbis. Are the respondents present? MR. MULLER: Yes. MS. PETRULLI: Thank you. This is a violation of Sections Page 8 ~--- '-'-'~-- September 22, 2005 04-41,9.04.06 and 3.05.07 of the Land Development Code, Ordinance 04-41, as amended. MS. ARNOLD: I'm going to interrupt. We actually came to a stipulation agreement on this particular one, so the investigator, Kevin Halesworth, is here to provide that information for us. CHAIRMAN FLEGAL: Terrific. (Speakers were duly sworn.) MR. HALESWORTH: Good morning. Kevin Halesworth, environmental specialist for code enforcement. We've entered into a stipulation agreement this morning regarding some pilings on the dune at 10091 Gulfshore Drive. And I'm going to read that to you right now. The parties hereto agree as follows: While the respondents allege that the pilings were legally installed in approximately 1974, for the sole purpose of resolving the notice of violation without having to incur additional costs and attorneys fees to defend themselves, the representatives will agree to remove the pilings and the irrigation system between November the 1st and November 15th, 2005. While the respondents do not agree that they trimmed or maintained the dune vegetation in violation of any law or ordinance, the respondents will agree that they will not trim or maintain the dune vegetation in the future. Therefore, it is agreed between the parties that the respondents shall: Pay operational costs in the amount of $292.99 incurred in the prosecution of this case. And number two, abate all alleged violations by removing the pilings, irrigation system and all non-permitted structures within the coastal construction setback line between November the 1 st and November 15th, 2005, and agreeing not to trim or maintain the dune vegetation in the future. Failure to do so will result in a fine of $150 per day for each day the violation remains. Thirdly, respondents must notify code enforcement that the Page 9 -.--- September 22, 2005 alleged violations have been abated and request the investigator to come out and perfonn a site inspection. CHAIRMAN FLEGAL: Does anyone have any questions for the investigator on this agreement? (No response.) CHAIRMAN FLEGAL: And you are, sir? Are you Mr. __ MR. MULLER: I'm Mark Muller. I'm an attorney for Quarles and Brady, and I represent Robert and Debra Forbis. Stipulation does represent our agreement. If you have any questions or need any background infonnation, I can certainly give that to you. CHAIRMAN FLEGAL: No, as long as they are agreeing to this. That was going to be my question to you, is everyone in agreement that this is what you are going to see happen? MR. MULLER: Yes. CHAIRMAN FLEGAL: Very good. Any questions from board members? (No response.) CHAIRMAN FLEGAL: Hearing none, I would entertain a motion to accept the stipulated agreement as submitted. MR. BOWIE: I'll move that in the case of Board of County Commissioners versus Debra and Robert Forbis, Case No. 2005-33, that the stipulation agreement proposed to us be accepted by this board. MR. DEAN: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the agreement as submitted. Any further questions? (No response.) CHAIRMAN FLEGAL: Hearing none, all those in favor, signify by saying aye. MR. PONTE: Aye. MR. BOWIE: Aye. Page 10 September 22, 2005 MR. DEAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you, gentlemen. MR. MULLER: Thank you. CHAIRMAN FLEGAL: Next case, 2004-034, Kite King's Lake LLC. MS. PETRULLI: I do believe the respondent is present. MR. LEE: Good morning. CHAIRMAN FLEGAL: Morning. MS. PETRULLI: This is Case No. 2005-34, Board of County Commissioners versus respondents Kite King's lake, LLC and Corporation Service Company, as agent. The violation is of Sections 5.03.02.3 of Ordinance 04-41, as amended. The description of the violation is a fence in disrepair. The owner did apply for a permit, but it was rejected by Collier County in that the LDC calls for a masonry wall or prefabricated concrete wall and/or fence, and the owner wants to repair or replace with a wooden fence. The location of the violation is at 4842 Davis Boulevard, King's Lake plaza. The name and address of the owner, person in charge of the violation is David Lee, Kite King's lake LLC, 30 South M-E-R-I-D-I-A-N, Meridian Street, Indianapolis, Indiana, 46204, and agent Corporation Service Company of Hays Street, Tallahassee, Florida. The violation was first observed December 1 st of 2004. The owner was given a notice of violation December 16th of 2004. Page 11 --- '--->,._-"~~-~_.,. September 22, 2005 The violation was to have been corrected by January the 5th of 2005. A re-inspection was done on January 25th of 2005. And the result of that inspection was that the violation still remains. At this time, I would like to present Investigator John Olney to present the case for Collier County. (Speakers were duly sworn.) MR. OLNEY: Good morning. For the record, John Olney, Collier County Code Enforcement. CHAIRMAN FLEGAL: Just a minute. Sir, if you'd like to sit down until it's your turn, rather than just stand there all that time, it would be easier on you, I think. MR. OLNEY: As stated by Supervisor Petrolli, we received a complaint on November 29th of '04 that stated, quote, fence down. MS. ARNOLD: I'm going to make one interruption. We need to enter into evidence the County's exhibit, please. And I need a motion on that. CHAIRMAN FLEGAL: Yes. I'd entertain a motion to accept the County's Exhibit A. MR. PONTE: Second the motion. MR. BOWIE: Actually, you're firsting it. I'll second it. CHAIRMAN FLEGAL: Thank you. We have a motion and a second. All those in favor, signify by saying aye. MR. PONTE: Aye. MR. BOWIE: Aye. MR. DEAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) Page 12 ---",'~ September 22, 2005 MR. OLNEY: Thank you, sir. On December 1 st, I visited the site and verified the complaint. Sent a notice of violation to the owner, and it was signed for on or about December 16th. I might show you some photographs of -- this is a section of the fence on the east side of King's Lake plaza. You'll notice several of the boards missing there. That's a more complete picture of the length of the fence. In this photograph there's an entire section missing. That little plat is on the neighboring property. There should be a section of fence covering that. In February and March, the southern --let me back up. Excuse me. There are two fences in question. There's one on the east side of the property and one running along the south or the rear of the shopping center. In February and March the southern section was replaced with this board fence; however, the permit for this never was applied for (sic), but was never granted in that Collier County requires a masonry type or prefabricated concrete fence when you go between commercial property and residentially zoned property. So this basically is an un-permitted fence across the rear of the property. Starting in June of this year, I had several discussions with Mr. Lee concerning the replacement of the east side, which I showed you briefly, the earlier pictures, which had not yet been replaced. It was his position he would much prefer to repair the existing wooden fence, as opposed to placing the -- a concrete fence in this area, partly due to its cost and the fact that it had not been budgeted yet. This was something new thrown at them. We discussed that and have not reached a resolution on that matter. There is a citizen on the east side that is quite upset about the condition of the wood fence at this time and calls quite regularly, and Page 13 September 22, 2005 was last infonned that this matter was coming before this board. And should -- well, my recommendation at this point would be that the respondent pay operational costs incurred in this matter. Two, that the respondent apply for a fence pennit by December 31st of'05, or a fine of $100 a day would be assessed. Further, this would include the removal of the non-pennitted fence on the south side of the center and its replacement with a masonry or prefabricated concrete type structure. That's all I have. CHAIRMAN FLEGAL: In looking at the exhibit, I assume we have a typographical error, that it's 5.03.03.E, not 5.02.03.3. Is that __ am I correct in that? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Okay. I'm just trying to match it up. It's the only thing that works, and I just figured it was a typographical. So I want to make sure I get the question answered up front. MR. PONTE: I have a couple of questions for the inspector. This is the King's Lake Plaza. Is it on Davis Boulevard? MR. OLNEY: Yes, sir. MR. PONTE: The wooden fence that's in existence has been there for how long? MR. OLNEY: I don't know, sir. I was thinking this morning I would guess in excess possibly of 20 years. MR. PONTE: Then just explain to me why the respondent isn't allowed to repair the fence with wood. Why does it have to be repaired with prefabricated concrete or whatever? MR. OLNEY: I inspected the fence, and my supervisor, Mrs. Petrulli, and we feel that it was more than 50 percent in disrepair, thereby requiring replacement as opposed to repair. MR. PONTE: And what's the total length of this fence, would you estimate? I mean, is it 100 feet? MR. OLNEY: Couple hundred feet, possibly, on the east side. Page 14 "-,- - ~.._--,----- September 22, 2005 And maybe a couple of hundred feet more than that, on the south side. MR. PONTE: It just doesn't seem to me that the photos that you presented indicate the fence is out of repair for 100 feet or more. There's that little patch in front of the house on the adjacent property, and the other piece. MR. OLNEY: Yes, sir, other than there are occasionally boards missing -- maybe not a whole section down, but boards missing. Plus in my estimation the fence is ugly. It's-- MR. PONTE: Well-- MR. OLNEY: It's in a state of disrepair. MR. PONTE: I have to quote one of my favorite people who said ugly is not illegal. All right, thank you very much. MR. OLNEY: Yes, sir. CHAIRMAN FLEGAL: Along that line -- I'm trying to visualize the property -- there's a fence on both sides of this property, isn't there? MR. OLNEY: Yes, sir. South side and the East side. I can't remember what the west side is. CHAIRMAN FLEGAL: West side and east side. MR. OLNEY: There's a fire department on the west side. CHAIRMAN FLEGAL: Right. Isn't there a fence along that stretch? MR. OLNEY: Must be. I can't recall, sir. CHAIRMAN FLEGAL: We're talking about the fence along the -- let's say the east side, correct? MR. OLNEY: Right. The east side abuts King's Lake. The south side is some condominiums. I forget the name of them, but it's CHAIRMAN FLEGAL: Yeah, in the back. I guess where I'm -- along with what George said, if we're looking at this fence, I'm sure when -- I don't know, if you were going Page 15 '-'~----""'~ September 22, 2005 -- if you're going to make him rebuild the fence, I assume it's a permit to rebuild the fence which is on three sides of the property, let's just say that for a start, okay. So if I'm thinking that way, if I measure all that distance, you know, I'm going to come up with a lot more than a couple hundred feet of fence. MR. OLNEY: Correct, sir. CHAIRMAN FLEGAL: So if you're saying more than 50 percent of the fence is in disrepair so it should be replaced, and I'm just going to throw numbers, since nobody seemed to have measured this. If we're looking at 1,000 foot of fence, you're saying that over 500 feet of it is bad. You haven't shown me that on these photos. So I guess, as George said, my question would be, if we have "X" feet of fence bad, you know 100 feet or whatever it is, then why can't he repair it? I understand that if he has to replace it, he's going to meet the new code. I don't have a problem with that. But I want to make sure we're going to -- if we make him do anything, that we make him do the right thing, okay? MR. OLNEY: Right. Well, this picture I guess here best represents what I saw on portions of it. I did not make a calculation as specifically is it exactly more than 50 percent. It was a visual impression on my part that it was more than 50 percent. But as __ CHAIRMAN FLEGAL: And I assume you're making that visual on -- is it just this one section that runs down, let's just say, the east side? MR. OLNEY: On the east side. And sadly, most of it is right in the area of the shopping center where it is most visible and close to Davis Boulevard. Now, as you can see, I'm standing -- this photograph was taken __ my back is to the bank that's there at the corner, looking towards the entrance that goes back onto King's Lake Boulevard. In that section, Page 16 ---- September 22, 2005 no, there are not that many boards missing there. It's just an aged fence that is not, I think, up to the standards that Collier County wants to present. But you're right, there are not that many missing boards there. And in that respect, it may not meet the 50 percent in disrepair. CHAIRMAN FLEGAL: Okay. Again, as George says, having not read each paragraph of the section that you're spouting, I'm not sure whether it says anything about, you know, they have to be painted and pretty and all that, it's just it can't be falling down. And we do have sections that are falling down. And we want to make sure that -- do we make him replace it or do we make him repair it until it has to be replaced. I probably am with you, granted, it doesn't look very pretty, but again, pretty is not in the ordinance, so there's not a lot of power there. So that's why we're trying to hone in on how much is really bad, so that we can understand what we're going to make him do, if we make him do something. MR. OLNEY: Yes, sir. MR. BOWIE: Another concern I would have is if we require that only the missing or collapsed portion of fencing be replaced by stone or concrete, you're going to wind up with something that's very patchwork in appearance and aesthetically unpleasant, as well as maybe very structurally difficult to build and attach the existing wood fencing to the new portions which have to be stone or concrete. Are we really left with that kind of dilemma, that only the collapsed or truly deficient sections have to be replaced with stone or concrete, or can we require that the entire thing now be replaced because major portions are deteriorated, missing, collapsed? MS. ARNOLD: Mr. Chairman, may I ask the investigator a question? CHAIRMAN FLEGAL: Yes, ma'am. MS. ARNOLD: John, is a permit required for replacement and/or repair for this particular fence? Page 1 7 n.._____.___ September 22, 2005 MR. OLNEY: I believe a pennit is required for replacement. Repair, I do not believe so. MS. ARNOLD: Okay. Had the respondent applied for a pennit? MR. OLNEY: The respondent applied for a pennit for that new portion I showed you in the rear. That pennit was rejected on the basis that it was not concrete or masonry. He also applied for a pennit for the east side. That pennit was also rejected, but nothing was ever done of it. And as of today, it's been withdrawn. MS. ARNOLD: Okay. Was the pennit or the fence, the new fence that you showed us on the screen, was that the pennit that was __ or the fence that was applied for under that first pennit you mentioned? MR. OLNEY: Yes, ma'am. MS. ARNOLD: Okay. So does the code allow for erection of that fence without the issuance of a pennit? MR. OLNEY: No. That new section offence was erected without pennits. It would need to be either torn down or pennitted. CHAIRMAN FLEGAL: Show us the disrepair section again. Since you were out there in -- let's see if I can break this into two sections. In repairing this, I assume this fence is in sections between someone kind of posts holding it up. MR. OLNEY: Yes, sir. CHAIRMAN FLEGAL: So it looks like here that there are at least some sections that need replaced -- MR. OLNEY: Yes, sir. CHAIRMAN FLEGAL: -- not just repaired. Are the cross pieces, are they rotted and that's what caused the boards to fall off, or did the boards for whatever reason rot off and fall off; do you know? MR. OLNEY: I believe much of this started with Charley last year. Page 18 September 22, 2005 CHAIRMAN FLEGAL: Okay. And it just kind of continued. MR. OLNEY: Yes, sir. If I might, my supervisor pointed out, Section 5.03.02 in the same areas, paragraph three states that all fences and walls shall be maintained in a manner that will not detract from a neighborhood or community. And I believe that is what was in my mind when I stated I thought it was, quote, ugly, that it was not up to community standards, but could be repaired. CHAIRMAN FLEGAL: Well, the old story, you know, ugly is in the eye of the beholder. I guess if every other board were missing and it looked like, you know, the old picket fence and some boards were just hanging with half a nail or something, it might -- but the color isn't pretty, it isn't, you know -- he's not part of any association that says you have to live up to this and that, so -- and the county doesn't -- other than your statement about, you know, the community. Ifhe had a wood fence, he has a wood fence. What we want to make the determination is do we tell him to fix his wood fence or replace it with what the code requires, and that's what we're trying to get a handle on. Any other questions for the county? MR. DEAN: Mr. Chairman? CHAIRMAN FLEGAL: Yes, sir. MR. DEAN: My question would be as we have businesses, like you said, a shopping center next to this and a condominium, this would probably to me be very unsightly for new businesses coming into the shopping center. And I think that's what we try to project, the beauty of Collier County and things. And to me this is a mess. And I think he did a good job. And whether he has to put up a wooden fence or concrete or masonry or whatever. This is 20 years old, my understanding? MR. OLNEY: That was a guess on my part. I don't know that for a fact, sir. Page 19 -....-".-- September 22, 2005 MR. DEAN: And if you said this was part of Charley, who knows, maybe he collected insurance on this. I don't know that either. But I'm just saying this that's an eyesore and it should be fixed. Thank you. MR. OLNEY: I might add, the rear portion, which is non- permitted, will have to be the concrete or masonry structure, because what is there now does not have a permit. Meaning it has to be removed or permitted. It cannot be permitted as it is, because the county will require that section to be concrete or masonry, prefabricated concrete or masonry type. So the rear portion at some point will have to be up to current code. MR. PONTE: Inspector, you mentioned it would have to be removed. Is there any requirement that a fence be there at all? MR. OLNEY: I believe there is required buffering between commercial property and residential property. And it is specified that if you go to the fence route, that it must be prefabricated concrete or a masonry type structure. MR. PONTE: It could be shrubbery. Would that do it? MR. OLNEY: I do not know, sir. CHAIRMAN FLEGAL: Okay, let's talk about your non- permitted fence. Was he cited for that? MR. OLNEY: No, sir. CHAIRMAN FLEGAL: So that's not a subject of this discussion. MR. OLNEY: That is correct. CHAIRMAN FLEGAL: Any other questions for the county? (No response.) CHAIRMAN FLEGAL: Hearing none. Sir? MR. LEE: Yes, sir. Thank you. Couple points of clarification. CHAIRMAN FLEGAL: Your name, sir? MR. LEE: Oh, I'm sorry. David Lee, vice president of operation Page 20 September 22, 2005 for Kite Realty Group, 30 South Meridian, Suite 1100, Indianapolis, Indiana. Just a couple points of clarification. The running dimension of both east fence and the south fence is in excess of 500 lineal feet. By some estimations and some estimates we've received, each one of those fences would cost in excess of $50,000 to install the masonry fence as required by the code. Just to give some sense as to the economics of the discussion. Secondly, both fences were damaged by Hurricane Charley. And that did prompt us to effect repairs. We thought the south fence was damaged to the -- such a degree that we wanted to replace it. We retained a local contractor. And to our knowledge, he notified us that he had a permit to install the fence, so we did not do that against any knowledge that we had that the fence had not been permitted. So I just wanted to make that clarification as well. So we apologize for that. And secondly, we did not submit this claim for any type of insurance claim, and we have not received any insurance proceeds for the damage to the fence. So with that, I'd be willing to answer any questions that you may have. CHAIRMAN FLEGAL: Okay. With what the county is stating and the pictures we've seen and understanding what you've just said, is there -- tell us what your intent is, or why, other than it's not in your budget you don't want to do what the county is asking you to do. Let's start there and we'll work our way in or out, whichever you have to do. MR. LEE: Okay, that's fair enough. First, I must say that this shopping center is probably plus 25 years old, and the fence I would assume is a similar age. And we are good corporate citizens in Collier County. We're investing a lot of our money in Collier County. You've probably seen a lot of our company execs in front of various commissions for approvals on different Page 21 September 22, 2005 developments in Collier County. So from that standpoint we want to be good corporate citizens. We just invested nearly $300,000 in the shopping center in the last year with the renovation of the facades, the new landscaping, parking lot lighting, new asph -- or new seal coating and striping of the parking lot. So I think we've reinvested quite significantly in the shopping center in the past year. That being said, certainly we have an issue with the appearance of the fences, both on the south and the east side. It's not what we would want to have at our house either. And towards that end, we wanted to repair the easternmost fence, and we're prepared to do that, had allocated the money to do so. We then ran up against the obvious refusal of our permit. And as I described to John, we initially were prepared to spend $12,000. Now the number is closer to $50,000. I need to think through that. I need to get some capital approval for that. We need some time to do so. I don't necessarily say I want to fight this to the end, that I don't believe that this may be the proper alternative. I just need some time to allocate additional resources to spend that $50,000 versus the $12,000. MR. DEAN: On your 50,000 and 12,000, are you saying wood fence? MR. LEE: The wood fence was $12,000. We had a -- contract employees with Carter Fence to replace that eastern fence with the same type of wood fence. Their request for a permit has ultimately brought us to this day, where their permit was refused. So we were prepared to -- we had a contract executed with them. MR. DEAN: You also own that shopping center next to this? MR. LEE: No. MR. DEAN: You mentioned shopping center. I must have missed something. You said you put $300,000 into the shopping Page 22 September 22, 2005 center. MR. LEE: Into King's Lake. Into King's Lake shopping center this year. MR. DEAN: Okay, thank you. CHAIRMAN FLEGAL: This -- this is the east side; is that correct? MR. LEE: Yes. CHAIRMAN FLEGAL: Your repairs are -- were only with Carter -- you were only talking redoing the east side? MR. LEE: No, we were going to replace it. We were unaware of the -- CHAIRMAN FLEGAL: Of the code requirement? MR. LEE: -- the code requirement for a masonry fence. CHAIRMAN FLEGAL: You were totally going to replace the east side? MR. LEE: We were replacing it from Davis Boulevard all the way, some 500 feet to the south of Davis Boulevard. CHAIRMAN FLEGAL: With a, quote, like fence. MR. LEE: A wooden fence. CHAIRMAN FLEGAL: Okay. Any other questions for Mr. Lee? MR. PONTE: Well, just one. In your view, how would the fence look if it was repaired, as opposed to being replaced? Would these gaps be repaired? MR. LEE: Yes, they can be repaired. There are actually two actual voids in the fence. One that John has a picture of that shows the barricade fence that's clearly gone. And the second section is directly behind the bank, where the fence is gone as well. It could be repaired. Initially it would be evident, because it hasn't aged and weathered as the other wood structure has. We would prefer to repair it, as I mentioned to John initially. If required, we're prepared to replace it as well. But we would prefer to Page 23 n~_._.~ ______..._.__.._ September 22,2005 repair it. MR. PONTE: Thank you. CHAIRMAN FLEGAL: Any other questions from board members? (No response.) CHAIRMAN FLEGAL: Thank you, gentlemen. MS. ARNOLD: Can I ask a question? CHAIRMAN FLEGAL: Yes, ma'am. MS. ARNOLD: Mr. Kite, are you familiar with the planned unit development documents at all for that development for the shopping center? MR. LEE: You mean the original PUD? MS. ARNOLD: Yeah. MR. LEE: No, I'm not. MS. ARNOLD: All right. CHAIRMAN FLEGAL: Any other questions? MS. ARNOLD: No, but I know that this isn't brought up. There is a concern that. The PUD document that I asked Mr. Kite about indicates that there is a masonry fence requirement for that boundary. So unfortunately we don't have that information here, so I just wanted to caution the board that whatever your order would be, maybe you make reference to whatever is required. Because there -- CHAIRMAN FLEGAL: Are you saying that -- MS. ARNOLD: I didn't want the board to order replacement of a wood fence when it's something that they can't actually do because of the requirement in their PUD document. MR. PONTE: You wouldn't -- Michelle; you wouldn't need a permit to repair? CHAIRMAN FLEGAL: Well-- MR. PONTE: Is that correct? MS. ARNOLD: If that's what they're doing. But I've heard Mr. Kite say that his intent was to replace -- Page 24 September 22, 2005 MR. BOWIE: I just heard him say he'd repair the sections with the missing slats. MR. PONTE: You wouldn't need -- you don't need a permit to repair; is that correct? MS. ARNOLD: That's correct. CHAIRMAN FLEGAL: Michelle, my understanding, you're saying PUD says -- think it says there's supposed to be a masonry fence? MR. BOWIE: That was 20 years ago? CHAIRMAN FLEGAL: And so for 20 some years -- MS. ARNOLD: There is that possibility. CHAIRMAN FLEGAL: -- it's been wrong. MS. ARNOLD: There is that possibility is what I'm being told. So I just wanted to bring that up to caution the board that we don't give direction that may be contrary to another document. MR. LEE: Sir? Just one point of historical clarification. We bought the property from the original developer and owner approximately two and a half years ago. So we would need to do some research to find that original PUD with Stateside. MR. BOWIE: I would be just very concerned after the lapse of 20-25 years that regardless of what the original PUD required, that this has been tolerated for so long that whatever that original requirement was, it's probably waived and estopped at this point. MS. ARNOLD: That wouldn't be a true statement. It's possible that the fence existed, as with a lot of other things that exist in the county, that without us actually doing the research we're making the assumption that those are lawful structures. And I guess what I'm telling you is that we haven't verified that. It's just been brought to my attention just now that there is that possibility. So I just wanted to raise that to the board. CHAIRMAN FLEGAL: I mean, I guess -- I'm not an attorney, but if I bought a piece of property that's had a violation for the last 25 Page 25 September 22, 2005 years and now I'm getting stuck with fixing it, I'd go after the guy that sold me the property or something. MR. LEE: Something. MR. BOWIE: Or the guy that sold it to him and on down the chain of title. CHAIRMAN FLEGAL: Or whatever. But right now we're worried about -- our concern is, do we repair or replace? And if we replace, obviously it's going to have to be with concrete, because that's what the code says. We can't change the code. It's a toss-up, I guess, whether we can make you repair it. But anyway, any other questions for either of the gentlemen? (No response.) CHAIRMAN FLEGAL: Thank you, gentlemen. MR. LEE: You bet. CHAIRMAN FLEGAL: We'll close the public hearings on that case. The board must now decide if in fact a violation of the ordinance does exist. The citation is that they have a fence that is not to code. Which is 5.03.02.E. And it doesn't comply because the current fence is in disrepair and evidently in some sections has fallen down. So for a finding of fact we must decide, is in fact there a violation. MR. BOWIE: My initial impression, based upon the documentation and the photographs that have been presented to us, is that yes, there are sections of this wood fence that are in obvious disrepair. There are sections where there are individual slats missing. There are one or two sections that were blown down and obviously need to be replaced with something. But inasmuch as we're talking about individual slats, maybe sections of fencing, this seems to me to be more in the nature of a repair to an existing improvement, rather than an application to install a fence anew. Page 26 September 22, 2005 And I kind of wonder if the application of this ordinance only to the sections needing immediate repair or the sections that have to be replaced really fulfills the intent of this ordinance. Do you really want this particular PUD surrounded by sections of wood fence which remain intact and sections which now have to be concrete or masonry to replace sections that were blown down? You're going to have a patchwork mess resulting from this. And hence, I don't think that fulfills the intent of this particular ordinance. I think what we have here is in the nature of maintenance or repair to an existing improvement. And I think they should be allowed to install either replacement wood slats or wood fencing sections to replace those sections that have blown out. MR. DEAN: Mr. Chair? CHAIRMAN FLEGAL: Yes, sir. Let me ask one question first of Jean. I understand the section that's been cited. I don't have a problem with that. My question is if our determination is that this fence, based on what we've seen from the pictures of it -- I'm kind of with Ray right now, that I think it can be repaired. I know some boards are sticking out, which means you put some nails in. There are maybe two sections there where there are many boards missing. I think you can replace those boards. I don't think you have to dig up the posts and put in the -- can we as a board order the repair -- I'll use that word, rather than replacement -- the repair of this fence with similar materials that it is already constructed of? I'll use that phrase. I don't know if that's the correct phrase or not. But in other words -- MS. RAWSON: If you make the description of the violation just being a fence in disrepair and not failure to get a permit, yes. CHAIRMAN FLEGAL: Well, the -- he was -- they were cited because it says -- MR. BOWIE: That it's in disrepair. Page 27 September 22, 2005 CHAIRMAN FLEGAL: -- a state of disrepair and falling down. And the section they were cited was that the fence has to be concrete because it's commercial. I mean, it's in disrepair, but you're citing them that he doesn't have a concrete fence that meets the code. I think there's a little disparity there. You've told him one thing, but you've cited him for something else. I don't know if there's a section about citing for repairing a fence. So I think it's kind of a two-sided coin here. And based on what we've seen, I'm getting the feeling, based on what my colleagues have said, that we're kind of all leaning towards let's repair this and then let the county and him work out what he has to replace. They made a statement about there's a fence, part of the fence is un-permitted and hasn't been submitted to us, so obviously they have to go through that. And maybe that's when they work out replacing the whole thing with what's supposed to be there, I don't know. But I guess my question leans towards can we make this corporation repair this unsightly fence for the time being. Because I think we're all feeling that that's really all it needs. That it's not pretty is unimportant at this point. It's a fence. MS. RAWSON : Well, it's interesting, because it's not a violation of this ordinance. And so you have to find a violation first. CHAIRMAN FLEGAL: Since he hasn't been cited for that, basically we're back to whether we think he's -- there is a violation against the item he's been cited for. MS. ARNOLD: Can I ask a question as well? What we cited him for, as the chairman pointed out, is the fact that whenever there is a nonresidential development link contiguous to a residential development, that fences need to be masonry or prefabricated walls, concrete walls. And that's what we cited him for. So the board would need to look at that section and determine whether or not what has been presented today is in compliance with Page 28 September 22, 2005 that section or not in compliance with that section. MS. RAWSON: Under that statute, I don't think you can order him to repair it. I think you have to decide if it's a violation of that statute, that ordinance. And obviously the reason this is here is because they couldn't get a permit because it had to be a masonry fence. MR. BOWIE: Well, the notice of violation, as presented to us, is state of disrepair, and the order was to cause repairs to be made to say fences to bring it into compliance with Collier County code. I'm reading from the notice of violation. It talks about disrepair, talks about repair. I think Section 5.03.02, which he's cited with violating does address this. I think the wrong section has been cited. If you look at 5.03.02.A, the very first that's on the first page given us, there are provisions that fences and walls shall be of sound construction, not detract from public health, safety, and welfare. Maybe we have a disrepair situation in that context. Then the sections of the fence are not of sound construction right now. They do provide, unfortunately, access from the commercial area into the adjacent residential. I think it does come within the rubric of this portion of the ordinance. This portion of the ordinance, you'll see, does allow fences and walls shall be constructed of -- reading from six now, A -- conventional building materials, including, it says, wood. Now, if this fence goes back 20, 25 years and apparently, I'm just saying apparently, complied with the ordinances at such time it was built, I don't think we can apply retrospectively that portion which now requires that where a nonresidential development lies contiguous to a residential that the wall be masonry or concrete. So perhaps we can order, since he's been cited with a violation of 5.03.02 generally, you can find a violation of Section A, that it's in disrepair, and simply require that under Section A of 5.03.02 that Page 29 September 22, 2005 repairs be made. Mr. Chairman, as you pointed out, in the statement of violation, the section typo was E. And as you can see on Page 7 of the packet, the investigator circled E. And that was the intended section that we're bringing before you. MR. PONTE: I agree with Mr. Bowie, certainly Section 5.03.02.A is the one that applies to what I'm seeing today. CHAIRMAN FLEGAL: Well, A applies to all districts, whether it's commercial or residential, it applies to everything -- MR. PONTE: I'm talking about repairing -- I'm talking about repairing and the use of wood, in 5.03.02.6. How do you extend the cited section to include A? I think we've got a problem. CHAIRMAN FLEGAL: Well, under 5.03.02, Item A, as it starts out, applies to whatever district. So everything in there, whether you cite them for that or not -- MR. PONTE: Even though Michelle has suggested, or told us that the investigator circled E and two on Page 7. CHAIRMAN FLEGAL: Right. But it's kind of like -- see if I can think of an analogy. I can't think of one off the top of my head. You just can't, I guess, pick out one sentence out of a paragraph. It's kind of like, I guess, news sound bites. They pick out two or three words and they forget the rest of the sentence, and that seems to be what gets everybody in trouble. You have to take the sentence in its context. And in this section, this section starts out saying A, the following applies to all districts. So you have to -- then you get into B, C, D, E and -- which gets more specific. But A works for everybody. Then B talks about fence height for all districts. So B works for everybody . Now all of a sudden C is just for residential, D is for agricultural, E is for commercial. And then F, I suspect, is -- for what you have to do it applies for everybody. So C, D and E are specific. But A, Band F apply to everything. Page 30 September 22,2005 That's kind of the way I would read the ordinance. Is that the way it would work, Ms. Rawson? MS. RAWSON: I think so. CHAIRMAN FLEGAL: So with that in mind, I can't sit here and say we've never been wrong, but hey, there's a first time for everything. It's what we determine with what has been presented to us as evidence and testimony we feel needs to be done. The first thing is the gentleman was cited -- the corporation was cited for Item E, that he has a nonresidential development contiguous to a residential zoned district, and he doesn't have a masonry or prefabricated concrete wall or fence. That's the citation. So I guess if you get specific, what we're here to determine is, is he in violation of that particular citation. Is that correct, Ms. Rawson? MS. RAWSON: YoumeanE? CHAIRMAN FLEGAL: E.2, basically. MS. RAWSON: That's the one that's cited in the statement of violation, yes. CHAIRMAN FLEGAL: So we must determine, is he in violation of that. And if he is, then we must tell him what to do. And if he is in violation of that specific, and I'll say sentence, in that section, our choices are very limited at that point because the ordinance says it has to be masonry or prefabricated concrete. So we don't have an option there. So I kind of agree that the easiest way out of this would be to repair the existing fence. But as you read the citation, I don't think we have that option. MR. PONTE: What you're saying is that the repair possibility is not a consideration, and that the respondent would have to be ordered to replace the entire fence at his estimated cost of $50,000. CHAIRMAN FLEGAL: He just has to replace it. What it costs is unfortunately his problem. Because if we do in fact find that he is in violation of that sentence in this ordinance, there is only one choice. Page 3 1 September 22, 2005 He must put up a new fence to meet this sentence, which has to be masonry or prefabricated concrete. Period. No other options. So first order of business, is there in fact a violation existing. Now, we've seen pictures of a wooden fence. He's been cited for something. And we know that the shopping center is next to a residential district. And this sentence says that if you're there, you must have a masonry wall or prefabricated concrete. MR. BOWIE: I think the county has stipulated to us that he's only being charged with violation of 5.03.02.E, sub two. Correct? That was clarified earlier on, as to the ordinance reference. And I frankly don't see it. MR. PONTE: You don't see what? MR. BOWIE: That this situation, as depicted to us, constitutes a violation of subsection E. Subsection A, yes, but not E. MR. PONTE: Yeah. But we saw just a wooden wall. MR. BOWIE: Yeah. And that to me is a repair situation coming within subsection A of this ordinance, which requires repair -- CHAIRMAN FLEGAL: I guess what -- MR. BOWIE: -- rather than E. CHAIRMAN FLEGAL: -- what I'm understanding, and -- is that they're being cited for E, and they have circled 2 as their primary sentence, which states whenever a nonresidential development -- and this is a shopping center, so it's nonresidential -- lies contiguous to or opposite a residentially zoned district -- and as we saw in the pictures, there are houses on the other side of the fence, and we know that King's Lake is a residential district and development -- then it goes on to say, said nonresidential development, i.e., the shopping center, shall provide a masonry wall or prefabricated concrete wall and/or fence. And we've just seen the pictures that they have a wood fence, not masonry, not prefab concrete. So as to that sentence, are they or are they not in violation of the ordinance? MR. DeWITTE: When we began the conversation, there was a Page 32 September 22, 2005 question about if it was a pre-existing condition before an ordinance was put in place, and then if you were in 50 percent state of disrepair, you might have to be brought up to the new ordinance; whereas, if you weren't, you could continue on. I think that's -- if that applies, that may be the question. Certainly we don't have a concrete fence separating the two -- a concrete boundary separating the two. CHAIRMAN FLEGAL: Yes. What we have to be careful of, and Jean, maybe you can correct me if I'm wrong, is that was the discussion. But the citation that is brought before us is that they are in violation of this, for lack of a better word, sentence. MR. DeWITTE: Regardless of what -- CHAIRMAN FLEGAL: Regardless of how long it's been there and is it preexisting and were there hurricanes and all that. They've been cited for quote, unquote, and this particular sentence in the ordinance. I guess that's the only way I can say that. So now we have to decide, did they or didn't they. It's kind of like we see a picture of somebody who didn't cut their grass, is it 12 inches or 22 inches. If its 22 inches, that he cut it last week is immaterial, today its 22 inches and it's a violation. So that's kind of where we are here unfortunately, I think. Jean, am I on the right trail? MS. RAWSON: You are. MR. DeWITTE: So just as a point of question, if the county were to decide all rooftops have to be red, they could then go cite everybody that doesn't have his rooftop -- CHAIRMAN FLEGAL: Well, it's not that easy. Not that simple. Because when you change the ordinances and put in new things, it's when you have to replace your roof you would then have to make it red. But if you don't have to replace it for the next 10 years, it can stay green. You don't have to replace it tomorrow, unless it's written, I think, like the sign ordinance. MS. RAWSON: I was going to say, it's very analogous to the Page 33 September 22, 2005 sign ordinance. CHAIRMAN FLEGAL: They give you a time period. Replace your signs within five years, or something was the time limit or something like that. So you have some period. This doesn't. This just says if it's here, it's here. And now unfortunately he's been cited for something, and maybe it went all these years uncited, but now it's here and we're left with the decision, is it or isn't it a violation. MR. PONTE: I have a question I'd like to ask the respondent, if I may. CHAIRMAN FLEGAL: Sure. Sir, could you come back up a minute. MR. LEE: Absolutely. CHAIRMAN FLEGAL: We'll reopen the public hearing. You're still under oath, sir. MR. LEE: Yes, sir. MR. PONTE: Just for my information purposes, when will you be budgeting? When's your next budget period? MR. LEE: We are in that process right now. MR. PONTE: So you're looking at the budget for 2006? MR. LEE: That's true. MR. PONTE: Thank you. MR. LEE: Thank you. CHAIRMAN FLEGAL: Close the public hearing. N ow we're back to our finding of fact. I think, based on the way Jean has instructed us, we're really down to is there or is there not a violation against this, in quotes, I'll use the word sentence in the ordinance. Because that's what they were cited for. MR. BOWIE: I'd like to make a motion that in the case of Board of County Commissioners versus Kite King's Lake LLC, Case No. 2005-34, that no violation be found of the cited ordinance section, Page 34 September 22, 2005 which is 5.03.02.E, paragraph two. CHAIRMAN FLEGAL: Okay, Ray, give me a little definition why you think there is not a violation. MR. BOWIE: That there's no violation of that particular provision which is, after all, the only one they've been cited with. If the county wants to come back and cite them with a violation of some other section, 5.03.02.A, perhaps, that would be a different case and a different ordinance. But I can't see a violation of this ordinance, because I don't think it's been shown that there's been over 50 percent damage or more than 50 percent attempted replacement of the existing improvement. N or has it been shown that this existing improvement, i.e., the wood fence, was installed in violation of the ordinance in effect whatever it was 20, 25 years ago, or in violation of the PUD. MR. PONTE: Though I agree with you 100 percent, I'm really stuck here. Because what you're saying is right. But what Cliff is saying is also correct in that if you just look at that E.2 section, it would seem that there's a clear violation. But if you look at all the A section, you can find that it's not the case. I think we have to find that a violation does exist, based on the citation. And then to engineer, that being the case, enough wiggle room into our order so that the respondent is given sufficient time to work the correction into a future budget. CHAIRMAN FLEGAL: Yeah, I guess where I was looking at, Ray, in trying to get a handle on your motion is that I've seen the pictures of the wood fence and the citation is that he's supposed to have a masonry wall or a concrete wall, which obviously he doesn't have. So trying to get my hands around your motion is a little difficult. That's why I'm trying -- MR. BOWIE: Well, my concern is that when that wood fence was initially installed, this most likely was not the ordinance requirement at that time. Nor has it been shown to us that it was a Page 35 September 22, 2005 requirement of the PUD at that time. So I don't think you can take this ordinance section is apply it retroactively to damaged section of an established improvement. Otherwise, you're going to wind up instead of certain of the slats of the wood fence being replaced with wood slats, what's he going to replace them with, concrete block? MR. PONTE: Oh, no, he can't do that -- MR. BOWIE: You know, in between? I mean, that's absurd-- CHAIRMAN FLEGAL: I understand that part of it. MR. BOWIE: And what you're going to wind up is both aesthetically and structurally a mess. MR. PONTE: You're right. CHAIRMAN FLEGAL: I go along with that part. MR. DeWITTE: I think we've been told -- I think when I asked the question, I was told that the 50 percent state of repair does not apply or matter. The only thing that comes into play is, is there a concrete fence separating the two or not. And I have to agree that there isn't. And how do we, now finding him in violation, decide to give them enough wiggle room to make this reasonable to all parties. CHAIRMAN FLEGAL: Yeah, there's nothing in here that says when your wall is "X" percent bad you have to do something. So the percentage -- I guess the information is nice to have, but it doesn't really help us, other than it tells us how bad the fence is. But when we're I think boiled down to quote, unquote, this particular sentence, which I'm comfortable in that Jean says that's kind of where we have to focus our attention, I don't find a lot of wiggle room on the violation. I think setting up the wiggle room for him to -- MR. DeWITTE: Exactly. CHAIRMAN FLEGAL: -- comply is -- we've got plenty of room there. We can pretty much do what we want time wise. So we can give him some assistance there. But I don't know that I have any way personally to give him any assistance on the front end. Page 36 September 22,2005 But anyway, there is a motion on the floor. Is there a second to it? (N 0 response.) CHAIRMAN FLEGAL: If not, that motion dies. MR. PONTE: I'll make a motion that a violation does exist as described in the charging documents of CEB Case No. 2005-34, Board of County Commissioners of Collier County versus Kite King's Lake LLC. MR. DEAN: I'll second the motion. CHAIRMAN FLEGAL: Okay, we have a motion and a second that in fact a violation does exist. Any further discussion? (No response.) CHAIRMAN FLEGAL: Hearing none, all those in favor, signify by saying aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Aye. Those opposed? MR. BOWIE: Opposed. CHAIRMAN FLEGAL: Four to one. Okay. Now, order of the board. This is where we have some room. We can pretty much kick around ideas as to how, what, why, and when, where we can order this firm to do something. MR. DeWITTE: Would it be possible to ask the owner what he would think would be a reasonable time frame to replace the wall? CHAIRMAN FLEGAL: Sure. It's general information. I'm not against that. Sir, could you come back up. Give us some guidance; we'll try to do the best we can. So we'll make you a part of this just to get some information. We don't want to put too many restrictions on you, but as you can Page 37 September 22, 2005 already gather, we know you're in violation, that's our determination. N ow we're going to try to get you to fix it. And we want to be reasonable, so that's why we're going to ask you some questions. MR. DeWITTE: What would be a reasonable time frame to budget for and have the masonry wall erected? MR. LEE: Certainly budgeting for it can occur and be approved by our executives prior to the end of the year as part of our total capital expenditure budget for the company. At the same time, we can concurrently work with both the county and with the neighbors to coordinate the installation of the new fence, which would be some coordination effort, with probably 15 or 20 neighbors on that boundary. Given those complexities, I would say we would have a plan back in front of the appropriate county agency by the end of the year for permitting, with then work complete within the first 60 days, 60 to 90 days of '06. MR. BOWIE: And this is with the understanding that all of the wood fencing, which is what, 500 feet length in one area, 500 approximately in the other, all of that is going to be removed and replaced with concrete or masonry product. MR. LEE: It's my understanding that we're currently talking about the eastern fence, that it's -- I believe I have a follow-up obligation with Mr. Olney to discuss the south fence and the violation that's occurred there. MR. BOWIE: Maybe we ought to be sure about that. MR. PONTE: I thought we were talking about all the fence. CHAIRMAN FLEGAL: I think in the beginning when I was -- when I asked the question, or maybe I made the statement, there's a fence on three sides of your property. MR. LEE: That's correct. CHAIRMAN FLEGAL: And it's wood. MR. LEE: On two. Page 38 September 22, 2005 CHAIRMAN FLEGAL: On two sides? MR. LEE: Urn-hum. CHAIRMAN FLEGAL: So the citation doesn't cull out east, west, north, south. It just says, you know, that you're in violation of this section. And this section says that when you have a nonresidential development contiguous to a residential development, the fence has to be masonry or prefab. So to us, any fence that's wood that's contiguous to a nonresidential -- or a residential development is going to have to be masonry or concrete, okay? So if you have two fences and they're contiguous to residential developments or, as it said, residentially zoned property, then it needs to be masonry or concrete. So that's where our thinking goes. Wherever the fence is, if it's wood and it abuts this residentially zoned district, then it's going to have to be masonry, period. We can't change that. Because sections of the fence weren't cited. You were just cited for not being in compliance, period. MR. BOWIE: So if you were budgeting $50,000, you'd better think about $100,000 at this point, maybe. MR. LEE: Well, I guess I need one point of clarification and a statement. Is the -- we've talked about the south and the east, which have wood fences. The western fence, I believe -- CHAIRMAN FLEGAL: That's the back of your property. MR. LEE: No, no, no. That's, I think, near the fire station. The western fence I think is agricultural fence. CHAIRMAN FLEGAL: Well, that's why I gave you the words where you lie contiguous or opposite a residentially zoned district. Those are the three words. So now we're going to give -- whatever we tell you to do is replace the fence that does not comply. So if you have a fence that's next to a piece of agricultural property, that's not residentially zoned district. Page 39 --~. "'--~""-""---"'~'--' September 22, 2005 MR. LEE: And I'm not aware of what that -- I don't know the zoning of that neighbor. CHAIRMAN FLEGAL: We don't either, and we really can't make that determination. All we can do is tell you to meet this sentence. Now, in meeting that sentence, if you find out hypothetically, gee, I have three fences, two of them are residential and one's against another commercial, you don't have to change that one, because that's not residential, that's commercial. Okay? MR. LEE: But if I find out all three are residential, then I need to replace all three. CHAIRMAN FLEGAL: Then you have to replace all three to be in compliance with this sentence. Okay? We can't change that. And whatever we tell you to do is going to tell you to comply with this, period. How you do that -- if it's half, all, a third, whatever, that's what you have to do and the county is going to check on you. Because when you're done, you're going to go tell them I'm done. They're going to come out and check it, and they're going to say gee, you did two sides, but you didn't do this. And if they can prove that it's zoned residential and you didn't do it, you're going to have to go back and redo it. MR. LEE: Well, given that my $12,000 initial commitment has now grown to almost $150,000, potentially, I'd like to factor in our time line the ability to research alternative boundaries as well. If there is shrubbery or something that can be installed as an alternative to a boundary fence between the commercial and residential, I think I -- CHAIRMAN FLEGAL: Reading this paragraph, I don't see that option. But you're more than welcome to work with the county. All we're going to tell you to do is comply. Now, right now what we've been shown is one sentence. It doesn't give you any options. But if there's a way out of that and you Page 40 September 22, 2005 can work that out through your permitting process or before that and find out that oh, gee, on a piece of this there wasn't a fence, and trees and bushes were sufficient, fine. MR. LEE: Okay. CHAIRMAN FLEGAL: All we're going to order you to do is come into compliance. How you do that is between you and the county. Because the county's going to tell us you either did or you didn't. And that's all we're going to know. MR. LEE: Very good. Very good. CHAIRMAN FLEGAL: How you do it, we're not interested in. We just want you to do it. MR. LEE: Understood. CHAIRMAN FLEGAL: Any other questions? (N 0 response.) CHAIRMAN FLEGAL: Thank you, sir. MR. LEE: You bet. CHAIRMAN FLEGAL: Okay, everybody got the information they need? We're now down to what the board thinks would be a good order to bring this finalization. One thing we might think of is in working out getting to the point where he needs to get permits and he can do that while he's talking to his people, to make a budget plan, getting his estimates on what it's all going to cost, because I think that's going to take him easy till the end of the year. Actually getting a permit, signing a contract, having the existing fence taken down and the new fence put up, if that's what he has to do. Short of a herd of people, I don't think that's going to happen in 60 days. Permit's probably going to take him at least 30 days, minimum. MR. PONTE: At least. CHAIRMAN FLEGAL: At least. And I'm really being nice. So I guess I'm thinking that this whole process to me is going to be at least, I'm guessing, a six to nine-month process, by the time he's Page 41 September 22, 2005 finished with the fence. MR. PONTE: I think it's a year. CHAIRMAN FLEGAL: I just throw that out. And anybody has their numbers, they can throw them on the table, and we'll either kick them around or accept them. So I think there's that as a minimum, somewhere around a nine-month process. If it's a year, that may be more realistic. But we need to be thinking, I believe, in those terms. This isn't a 30-day fence. And I think the neighbors, if they know a fix has been ordered, that maybe it won't be quick enough for them, but I think they'll be happy that it's at least been ordered to take place. And maybe they'll accept that and wait while it happens and be really happy. So, ideas from anybody? MR. PONTE: Well, it's going to take a little crafting, careful crafting, if we get very detailed in the order. If we have to start pointing out that the wooden fence has to be removed and the debris has to be taken away -- CHAIRMAN FLEGAL: No, I don't think you need to do that. I think all you need to do, in crafting whatever you want to say, I think the less, quote, unquote, detailed we craft our order, the safer. What we want him to do is come into compliance with the ordinance. How he does that is up to him. But when it's finished is up to us. I think we can say he needs to abate this violation by "X" or a penalty of "Y" . Ms. Rawson, is that really the safest? MS. RAWSON: I think so. CHAIRMAN FLEGAL: Okay. That way we're not -- because if we tell him how, what, where and when to use, then we put a limit on him, and then he doesn't have any flexibility to try and work with the county to do anything different, if there's something different to be done. So I think the broader we make any statement, the better it is for both parties. Page 42 September 22, 2005 So if we just order him to abate the violation by "X" or he's going to have to pay "Y", that's terrific. And that he pay any operational costs, as usual. And the third item being something, as we always say, when he's done, he has to call the county and ask them to come out and inspect it. That's pretty much the three items. So don't get detailed, because I think we we're just hurting ourselves. MR. PONTE: Let me just take a fire at this. MR. BOWIE: Best anybody can say. MR. PONTE: You want to take a fire at it? CHAIRMAN FLEGAL: Sure, go. MR. PONTE: Let's try it. Okay, the respondent is ordered to pay all of the operational costs in this case. The respondent is also ordered to replace the existing fences, but before so doing, to obtain the appropriate permits before commencing the replacement construction. The abatement of the violation should be completed within 365 days of this hearing or a fine of $100 a day will be imposed for each day the violation continues. Further, it's important that the respondent have the responsibility to notify code enforcement officials that the violations have been corrected and that their property is ready for inspection. MR. BOWIE: Again, George, the way you had that worded, you said replace all wood fencing. MR. PONTE: No, I didn't say wood, I said existing fences. MR. BOWIE: Existing fencing. But we heard some testimony that not all of the existing fencing may lie adjacent to residential development. So we probably want to limit this to those sections of the existing fence that are adjacent to residentially zoned development. MR. DeWITTE: Can we just simply ask that it be brought into Page 43 September 22, 2005 compliance with E.2? Or E in general? CHAIRMAN FLEGAL: I think you're safer in saying something similar to that all non-complying fencing or some words like that, be brought into compliance within 365 days or a fine of$100 a day, something like that. So that whatever fencing isn't in compliance, he's got to make right. Because if there is no fencing and he's supposed to have it, then he'll have to do it. Or if he has -- there's fencing against agricultural or other commercial or something that he doesn't have to fool with, then we haven't told him he has to do anything with that because we're telling him again. So I think a short sentence like that is easier. MR. PONTE: So as I have written a note here, if we just amend the motion to read the respondent is ordered to replace all non-complying existing fences, but before doing so, obtain -- so on. Is that -- CHAIRMAN FLEGAL: Okay, read me just that sentence again, please. MR. PONTE: Respondent is ordered to replace all non-complying existing fences. But before so doing, to obtain appropriate pennits. CHAIRMAN FLEGAL: Right. Would it work for you if we left out the word existing? MR. PONTE: I mean, it works for me. CHAIRMAN FLEGAL: Okay? MR. PONTE: Yeah, sure. CHAIRMAN FLEGAL: So -- because maybe he has to have a fence where he doesn't have one. So actually, it doesn't exist, but he's supposed to have one anyway. So if we leave out that word, then he would have to come into compliance. MR. PONTE: Delete existing. CHAIRMAN FLEGAL: Okay, does that work? Page 44 ._~·,,",.,,_,w~,",.··,,.__._,_·__.,_..__··__~_.·~~ September 22, 2005 MR. PONTE: Sure. CHAIRMAN FLEGAL: Okay. George's motion is on the table, if everybody can remember it. Do we have a second to it? MR. BOWIE: When we say -- when we use the term bring non-complying fencing into compliance, we need to define compliance with this particular ordinance, specifically 5.03,02.E, paragraph two. CHAIRMAN FLEGAL: Well, that's what he's been found guilty of, so the order -- we don't normally say that, do we, Jean? MS. RAWSON: Not usually. CHAIRMAN FLEGAL: Okay. Since we've found him, I say, guilty, we found him in violation of that ordinance in our finding of fact -- MR. BOWIE: As long as we're specific about that. CHAIRMAN FLEGAL: -- so then the second part of our order is this is what we're ordering him to do is to correct that finding of fact. So we don't normally cull it out again. If that's acceptable to you? MR. BOWIE: As long as it's specified, yeah. CHAIRMAN FLEGAL: So again, we have a motion. And do we have a second? MR. DeWITTE: I would second the motion on the floor. CHAIRMAN FLEGAL: We have a second. Any other questions? (No response.) CHAIRMAN FLEGAL: Hearing none, all those in favor, signify by saying aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? Page 45 September 22, 2005 MR. BOWIE: Opposed. CHAIRMAN FLEGAL: Four to one. That's it, sir. You'll be getting an order in the mail. And you understand what we're asking to you do. Thank you, sir. MR. LEE: Thanks for your time. CHAIRMAN FLEGAL: Next case, 2005 -- MS. ARNOLD: Mr. Chairman, can we take a break? CHAIRMAN FLEGAL: Sure. It's 11:04. Let's do to 11:15. (A recess was taken.) CHAIRMAN FLEGAL: We'll call the Code Enforcement Board back to order, please. Back to our public hearings. First case, which is really our last case, 2005-038, Amarada Hess Corporation, if I said that right. MS. PETRULLI: The violation on this case is a violation of Section 10.02.06.B.2.A, Section 10.02.06.B.2.D.IX of Collier County Ordinance 04-41, as amended. The violation of -- description is Hess panels added to a pole sign without a valid permit. The location of the violation is 6300 Davis Boulevard. The name and address of the owner or person in charge is CT Corporation System as the registered agent for Amarada Hess Corporation, 1200 South Pine Island Road, Plantation, Florida, 33324. The violation was first observed on July 26th of 2004. The owner or person in charge was given a notice of violation on February the 23rd of2005. The violation was to have been corrected by March 23rd of 2005. The last reinspection was done on August 16th of 2005, and the results of the reinspection show that the violation remains. 1'd like to ask at this time if the respondents are here in the room. (No response.) MS. PETRULLI: It shows that the respondents are not here. At this time, I would like to turn the case over to Investigator Page 46 September 22, 2005 Travis Snoderly to enter his information into the court document. (Speaker was duly sworn.) MR. SNODERL Y: Good morning -- afternoon. For the record, Investigator Travis Snoderly, Collier County Code Enforcement. The case we have before you today has been described as a -- panels added to an existing pole sign without valid permit. I would like to submit into evidence as County Exhibit A my packet of information. CHAIRMAN FLEGAL: I would entertain a motion to accept County's Exhibit A. MR. BOWIE: So moved. MR. DEAN: Second. CHAIRMAN FLEGAL: We have a motion and a second. All those in favor, signify by saying aye. MR. PONTE: Aye. MR. BOWIE: Aye. MR. DEAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (N 0 response.) MR. SNODERL Y: Thank you. The first photo I would like to show you, I would like to emphasize, that is a picture of the sign, not the fence. As you can see in this photograph, we have a pole sign at a fuel station that's been described already as 6300 Davis Boulevard. This sign exceeds 12 feet in height. The panel that you see at the top of the sign is a Hess panel. The station has been rebranded. Previously it actually displayed PK, or Pick Kwik, which was Amarada Hess prior to the name change. I will also show you another photograph. This displays the permit numbers that are displayed, as is required by county ordinance, on the Page 47 September 22, 2005 sIgn. I would like to show you that the first permit that is identified there is a '99 permit. And I would like to put that up on the screen for you as well. This permit was pulled for a new pole sign with panels to be added as it currently stands today. Unfortunately, this permit expired on June 4th of 2000. It failed the final sign inspection due to no permit numbers being displayed at the time the inspection was completed. This is the most recent permit that has been attempted to be pulled on this sign. I was at the location yesterday. The violation does remain. I have been in contact with a representative of Hess this week. They were in town to try and remedy the situation. Unfortunately, according to the person I was speaking with, they were submitted by F edEx a packet of information from their contractor, which is actually for the canopy, which originally on the case was both on the canopy and the sIgn. The canopy has been repermitted, as it was damaged after Hurricane Charley, and put back up without a permit. That has since been rectified and is currently awaiting inspection. Unfortunately the representative from Hess is not here today. I presume further conversation we had that maybe he didn't have the appropriate information you wanted. I would also like to show you the section of the code that currently applies to signage, automobile service station. As you can see and may already know, in Collier County we have ordinances requiring that ground signs for fuel service stations be planted in an area of 200 feet of landscaping, and they be no higher than eight feet above grade. As I already described, the sign exceeds that height and is in excess of 12 feet height. So it is a nonconforming sign. It does not Page 48 <--~~-,,~. ......._~-,-~-_._-. .. September 22, 2005 currently have a permit. And that is where I leave that today. My recommendation would be that the respondent pay all the operational costs incurred in the prosecution of this case; they be required to obtain Collier County building permits and all required inspections, including occupancy of the sign within 60 days from today's date, or a fine of $75 per day would be imposed each day the violation continues. Additionally, if the respondent does not wish to permit the non- permitted sign, that they then must remove the sign, including the entire supporting structure, within 60 days of to day's hearing, or a fine of $75 per day be imposed for each day the violation continues. And as always, that the respondent must notify code enforcement that the violation has been abated so that an inspection can be completed to confirm. MR. BOWIE: Just asking a preliminary question. I see that the notice of violation cites the respondent as the Amarada Hess Corporation, yet in the evidentiary packet that was just presented to us, the documentation of ownership of this property, that is the deed, showing I guess the most recent conveyance of title, shows as the guarantee of that deed the Pick K wik Corporation. Has there in fact been documentation, let's say from the Secretary of State's office, that this corporation has changed its name now to Amarada Hess Corporation? MR. SNODERL Y: Yes. I will put that on the overhead for you. That does show that there's in fact been a name change from Pick Kwik to Amarada Hess. CHAIRMAN FLEGAL: So as relates to this particular sign, you've had really no discussions at all with Hess -- or Amarada? MR. SNODERL Y: I have in fact been in touch with them quite frequently. Most specifically Mr. Mike McCaffey (phonetic), which is at their corporate office in New Jersey. We have spoken at great lengths. I have left numerous messages for him that have never been Page 49 September 22, 2005 returned in a timely fashion. Unfortunately it was their decision to attempt to make this go away, including the canopy violation. They are aware that they do not meet setback requirements for both the canopy structure and the sign. They identified to me over the telephone that in fact in other counties they make calls to commissioners and these types of violations just go away when it's a result of a natural disaster. MR. BOWIE: They probably give more than calls to those commissioners to make them go away. MR. SNODERL Y: I did explain that that's not the way that we do business in Collier County. And that's why this case is before you today. CHAIRMAN FLEGAL: That's definitely not the way this board does business, so they're about to get a rude awakening. Okay, any other questions for the investigator? (N 0 response.) CHAIRMAN FLEGAL: The notifications that you sent, have given, published and everything, all that meets our ordinance? MR. SNODERL Y: Yes, sir. In fact, we do have -- I did post the notice of hearing on September 9th to ensure that proper service was provided for the hearing today. I did speak personally with the manager of the station at the time. CHAIRMAN FLEGAL: Okay, thank you. Any other questions? (N 0 response.) CHAIRMAN FLEGAL: Thank you, sir. Close the public hearings. First order of business, finding of fact. Does in fact a violation exist. MR. DeWITTE: I would move that based on the evidence presented that a violation does exist. MR. DEAN: Second. Page 50 September 22, 2005 CHAIRMAN FLEGAL: Okay. MR. BOWIE: As set forth in the charging document. MR. DeWITTE: Yes. CHAIRMAN FLEGAL: Is that okay for you, Jean? You can follow that? MS. RAWSON: Yes. CHAIRMAN FLEGAL: All right. We have a motion and a second that in fact a violation does exist. All those in favor, signify by saying aye. MR. PONTE: Aye. MR. BOWIE: Aye. MR. DEAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (N 0 response.) CHAIRMAN FLEGAL: Order of the board. Let me ask one question of our investigator before he gets away. If they wanted to remove the sign, I assume they have to get some type of a permit to take the sign down. MR. SNODERL Y: It is my preference that that be left to the decision of the building department. CHAIRMAN FLEGAL: I understand. What I'm trying to find out is, I'm thinking time period. So if -- that permit would be rather short, I guess -- MR. SNODERL Y: Correct. CHAIRMAN FLEGAL: -- okay, to obtain? Now, to get the proper permit, understanding the sign is the wrong size so they're going to have to design a sign that fits into the height requirement -- but to get the permit to do that, is that a long period, short period? MR. SNODERL Y: No. That's the simple answer. I will tell Page 51 ._·.~e ~~_,..._. September 22,2005 you, however, that they may run into issues with setback because they are required to have a 15- foot side yard setback, which may put them into their fuel tanks. They did have a variance allowing for a reduction of setback with the original permit that was pulled for the sign when it was constructed. We did have pre-app meetings with Amarada Hess and their representatives, and they withdrew that application. CHAIRMAN FLEGAL: Okay. MR. SNODERL Y: We may well see that a sign cannot be placed in the location it currently stands, if they choose to place a sign. CHAIRMAN FLEGAL: Okay. MR. PONTE: Investigator, is there another place for a sign on this property that is going to be logically placed to attract vehicular traffic? MR. SNODERL Y: To my best estimation, not being involved in the permitting process, I would say no, unless they can obtain a variance. The county, again, was actually at the variance pre-app meeting. It may well be that that existing variance carries with the property, that they can continue to use that variance with a reduction in height. Unfortunately with their withdrawal from the variance process, we were never able to actually go through that with them. And that's -- it's unfortunate, because we were hoping that we could get to that point with them. CHAIRMAN FLEGAL: I really was trying to get my handle on, you know, if we give them a short amount of time or a medium amount of time to accomplish all this, and that's why I asked about the permits. MR. SNODERL Y: Sign permits can be obtained within the week that they are applied for, if it is a conforming structure. CHAIRMAN FLEGAL: Okay. And the variance process, if they need that, I assume that's a long process, because they would Page 52 September 22, 2005 have to go to the commissioners; correct? MR. SNODERL Y: That's correct. CHAIRMAN FLEGAL: Okay. I have my mind. Any other questions? (N 0 response.) CHAIRMAN FLEGAL: Thank you for your help. MR. SNODERL Y: Of course. CHAIRMAN FLEGAL: Okay, order of the board. What do we think is convenient to have this problem rectified? MR. PONTE: It's unlikely that the Amarada Hess is going to operate a gas station without a sign, that's for sure. CHAIRMAN FLEGAL: Well, they have -- I think their name is on their canopy, if I remember correctly. I drive down Davis a lot, and I guess I see it so much, it disappears. But I think their name is on the canopy. As for a sign for their price of gas, I think I understand that based on what I just read about what they need to put a sign up, the way that property's built, there's probably not a lot of room without a variance for them to put a sign up, unless they put it back on the building, which nobody's going to see. MR. PONTE: That's right. CHAIRMAN FLEGAL: So I think their only choice is a variance so they can get it up close to the road where people can actually see the price of gas. MR. BOWIE: There's obviously no way we can require them to seek a variance. MR. PONTE: No. MR. BOWIE: I mean, that's going to be their option, if they want to do this. CHAIRMAN FLEGAL: We just need them to comply. MR. BOWIE: I'd like to make a motion then in the Board of County Commissioners versus Amarada Hess Corporation, Case Page 53 September 22, 2005 2005-38, that the respondent be ordered to obtain required sign permit and any other related required permits for the sign, as well as inspection by the county of the location of the sign. And further -- or to remove the sign. And number two, to remove the striping on the canopy and obtain a permit for the canopy or to remove the canopy within 90 days, or a fine of $150 per day will accrue. MR. PONTE: Did I miss something? Did we actually have a finding that there was a violation? CHAIRMAN FLEGAL: On the striping. MR. BOWIE: On the striping? That was part of what was charged here, is it not? MR. PONTE: No, I mean, do we have a finding? Did we vote that there was a violation? MR. BOWIE: I assume so. That was part of the charging document, correct? CHAIRMAN FLEGAL: Yeah, he made a motion that there was in fact a violation and we voted on that. We all agreed to that. MR. SNODERL Y: Mr. Chairman? CHAIRMAN FLEGAL: Yes, sir. MR. SNODERL Y: Just to add some clarification. While the original notice of violation did include the canopy and the striping, they have abated that portion of -- CHAIRMAN FLEGAL: I thought that's what you said in the beginning, and I'm trying to shift through my memory. I said, well, the striping was out -- MR. SNODERL Y: I appreciate that being mentioned, but the canopy has been painted, so it is no longer striped. And it is permitted MR. BOWIE: It is permitted now? MR. SNODERL Y: Yes. But we may be back before you if they don't complete the inspection. Page 54 September 22, 2005 MR. BOWIE: Okay. So the only violation now being charged is regard to the sign. MR. SNODERLY: Yes. MR. BOWIE: Okay. I'll delete number two of my motion and limit it to the sign permit and any related permits relating to the sign, inspection of the sign or removal of the sign within a period of 90 days, or again, a fine of $150 a day to accrue. CHAIRMAN FLEGAL: Did you add an item where, one, that they have to pay operational costs and two -- MR. BOWIE: Well, yeah, that would be obvious -- CHAIRMAN FLEGAL: -- the standard item. And item three, that when they're completed, they must -- MR. BOWIE: Contact the county for reinspection. CHAIRMAN FLEGAL: Good. Thank you, sir. We have a motion from Mr. Bowie giving them 90 days or $150. MR. DEAN: 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. MR. PONTE: Aye. MR. BOWIE: Aye. MR. DEAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: We'll close our public hearings. That was our last case. We now go to new business, where we have a request for imposition of fine. BCC versus Heath, Case 2005-02. This rings a Page 55 September 22, 2005 bell. Was this not continued from last month? MR. DEAN: Yes. MS. ARNOLD: Yes. For the record, Michelle Arnold, Code Enforcement Director. This particular case, 2005-02 was on your previous agenda as an imposition of fine, and we placed it back on the agenda this month for the same item. But, however, a representative for the respondent is present, Ms. Mimi W olok. And also, I think she's requesting that her client be phoned in so that she could be a part of this hearing process. So I'll try to do that right now, if we can take one minute. MS. HEATH: Hello. CHAIRMAN FLEGAL: Yes, ma'am, just a moment. We're contemplating something. MS. HEATH: Fine. CHAIRMAN FLEGAL: Ms. Rawson, if she's going to participate, since it's by phone, we need to swear her in, but at the same time, we need some method to know that she is who she says she is. And I assume her attorney has probably spoken to her before, so she can tell us, I hope. MS. ARNOLD: Yeah. And in fact, she has someone there present to swear her in. So that's how we're going to do it. CHAIRMAN FLEGAL: Okay. Ms. Heath? MS. HEATH: Yes, sir. CHAIRMAN FLEGAL: Before we begin, I understand you have someone there who can swear you in. MS. HEATH: Yes, sir, a notary. CHAIRMAN FLEGAL: Okay. Would you go ahead and do that now and then we'll get started. MS. RAWSON: Before you do that, would you have the notary identify herself and what state she's a notary and when her Page 56 September 22, 2005 . commiSSion expIres. MS. ANKLAM: My name is Pamela Anklam. And I'm in the state of Wisconsin. And my thing expires on 1/27/08. CHAIRMAN FLEGAL: Would you spell your name for US, please, ma'am. MS. ANKLAM: P-A-M-E-L-A. Middle initial L. Anklam is A-N-K-L-A-M. CHAIRMAN FLEGAL: Thank you. Okay, Ms. Heath, the county has asked us to impose fines -- MS. ARNOLD: Should we go ahead and have her be sworn now? CHAIRMAN FLEGAL: Yes, I'm sorry. (Ms. Heath was sworn in by the notary.) CHAIRMAN FLEGAL: Thank you. Okay. Let's -- first we're going to have the county tell us what it is they want to do. MS. ARNOLD: Okay, this item was heard before the board on February 24th, 2005. And at that time, the board did find there was a violation of a mobile home without a permit, carport and lanai without a permit. We have, subsequent to that hearing, found that there was in fact a permit for the mobile home. So the fines that are being reflected here do not reflect fines for the mobile home portion of that violation that was brought to you. There is a fine in the amount of$5,175, and that reflects the time period between April 26th, 2005 through July 4th, 2005 at a rate of $75 per day, and that's strictly for the carport and lanai portions, which the respondent abated by removing. Also, the -- there is operational costs of $623.04, which has already been paid. CHAIRMAN FLEGAL: Okay. So we're talking basically just the fine on the carport and lanai; correct? Page 57 September 22, 2005 MS. ARNOLD: Right. CHAIRMAN FLEGAL: Did you understand that, Ms. Heath? MS. HEATH: Yes, sir. CHAIRMAN FLEGAL: Now, on your side, is there something you want to tell us as to before we make a decision to impose this or not impose it? MS. WOLOK: Mr. Chairman, Mimi Wolok, I'm the attorney for Ms. Heath. If I may have a brief synopsis, and then I would like to ask Ms. Heath some questions, as a witness. CHAIRMAN FLEGAL: Okay. MS. WOLOK: All right. First of all, I have tried to ask for additional time than the 20 minutes I'm allotted. But I played phone tag with Ms. Rawson and apparently Mr. Bonanno hasn't been in the office. So I would like additional time, especially if I run over and if there are questions or interruptions. CHAIRMAN FLEGAL: Okay, what we would like you to do is we don't want to rehear this case, we're not here to do that. We want you to stick strictly as to why you feel, or Ms. Heath feels that the fine imposition that's been requested should be less, and why. But we're not going to reopen this case, okay? MS. WOLOK: I understand that. Specifically the board is under an obligation to look at eight factors for reducing the fine. And let me go over those very quickly. It's not simply why there are specific factors. The gravity of the violation is one. Actions taken by respondent to correct the violation. And we're going to spend a lot of time on that. Whether there were previous violations committed by the violator, and I think we agree that there wasn't, but I need to ask her. The cost upon the violator to correct the violation. Reasonable time necessary to correct the violation. The value of real estate compared to the amount of the fine, and Page 58 September 22, 2005 I'm not going to spend any time on that. The time and cost incurred by code enforcement to have the violation corrected. And any other equitable factors which would make the requested mitigation appropriate. CHAIRMAN FLEGAL: Let me ask a question, if I may, understanding that I'm interrupting your time, but that's okay. You made a statement that I'm a little confused about. That there are -- these factors exist for us reducing a fine. My recollection of the statute, there is no such thing. So can you tell me where this all comes from? MS. WOLOK: Sure. Article 11, Reduction of Fines Prior to Imposition of Fine, Section 3 has all these factors. CHAIRMAN FLEGAL: You're reading what, our rules and regulations? MS. WOLOK: Your rules and regulations. CHAIRMAN FLEGAL: That's just something we just impose on ourselves. MS. RAWSON: Actually, I think it's in Chapter 162. CHAIRMAN FLEGAL: There's nothing that I remember that states anything about any factors about reducing a fine. About imposing a fine, yes, but there's nothing that states anything about reducing a fine. So that's what I want to get a handle on is where we're coming from and that we have to do something to reduce a fine. MS. WOLOK: Right. And it's in the board's discretion what they want to do, of course. Ms. Arnold has already indicated that the -- well, let's just go through the order of the board very quickly. February 25th of'05, and then I could make my point. The violations were for the existence of a doublewide mobile home plus a carport and lanai without the permit all together. Page 59 September 22, 2005 Seventy-five dollars a day for having no pennit for the doublewide mobile home and carport and lanai. The corrective actions were to apply for Collier County building pennits or, in the alternative, to obtain demolition pennit and remove the structures. And of course the consequences were $75 a day for all of it collectively. We now know that the building pennit was not necessary, and in my motion to reduce the fine, I attached the code enforcement -- the code detail report that I received from the code enforcement division, which summarizes what exactly happened from the code enforcement division standpoint. And I'd like to go through a few of those entries, just to let you know what my client has been doing since the citation was issued, before the order was issued and after the order was issued, especially from my client's perspective. And I'm going to summarize it very quickly so that we don't have to go through each and every one of those. Now, on October 3rd of 2005, Carol Sykora, an investigator with code enforcement, stated, researching property, found no pennits for mobile home. Then there were several entries, and I'm just going to summarize, where the investigator contacted Ms. Heath and said, you need your building pennit, let's get going with the building pennit. And Ms. Heath said we don't know any contractors, can you recommend one. Meanwhile, Investigator Sykora said that no one can rent the house or live in the house until this is cleared up. And so Ms. Heath had the tenants vacated. On January 6th of 2005, Carol Sykora wrote that she spoke to the owner and she has not been able to locate a contractor. I gave her Jackie Williams' phone number at her request. Jackie called me and will check mobile home to find out what will be required. So Carol Page 60 September 22,2005 Sykora recommended Jackie Williams as the contractor. On January 29th of 2004, Carol Sykora wrote, check records for permits, none found for present existing mobile home. Advised Holly Heath to pursue hçr permits. On March 19th of 2004, Carol Sykora wrote, mobile home not occupied, Jackie Williams working on permits, is checking to determine if it was permitted. I advised him I did extensive research, found no permits. And so here she's discouraging Mr. Williams from doing independent research. Then there were notations regarding how the building permit had been submitted in April of 2004. And then nothing happened between April and October of2004. And we find out from the record, from these code case detail report exactly what happened. And Ms. Heath will also summarize what happened. The permit in review, but nothing done since May. Checked with permit department and found a requirement before review is complete is the septic to be checked and proof of integrity given to county. Called owner Holly Heath and advised her also. Called contractor Jackie Williams, who will contact owner to make sure it is done. So in other words, for the first time we heard that a septic inspection is needed, in October of 2004. At no time did code enforcement inform Holly Heath that a permit for the carport and lanai had not also been applied for and was still an outstanding issue. In all the entries in the detail report, there's nothing at all about a carport and lanai. So that is what we can get from the detail report. And I'd like to ask Ms. Heath some questions, if I may. Ms. Heath? MS. HEATH: Yes. Page 61 September 22, 2005 MS. WOLOK: Please state your name. MS. HEATH: My name is Holly Heath. MS. WOLOK: What's your occupation? MS. HEATH: I'm a self-employed retail store owner. MS. WOLOK: Do you have a business down here, too? MS. HEATH: I do. I sell Christmas trees in Naples. MS. WOLOK: Are you the owner at 610 Sunset Drive, in Goodland? MS. HEATH: Yes. MS. WOLOK: Prior to the citation being issued to you in this case, have you ever committed any code enforcement violation? MS. HEATH: No, ma'am, I have not. MS. WOLOK: And do you remember when you hired Mr. Williams? MS. HEATH: It was in January of'04. January 27th of'04 I faxed him some requests for information. MS. WOLOK: And what did you hire Mr. Williams to do? MS. HEATH: I asked him to get my property into compliance, including the building permits, the carport and lanai and the septic. MS. WOLOK: And did he apply for all the necessary permits? MS. HEATH: Well, it took him about three months to finally apply for the building permits, and he did that finally in April of 2004. And I had thought that he applied for the building permits, the carport and lanai and septic, and not only until later did I find out that nothing was done with the septic nor the carport and lanai. MS. WOLOK: And how much did you pay Mr. Williams to get you into compliance? MS. HEATH: He has not yet sent me an invoice for any work he has done. MS. WOLOK: How much did you pay for the building permit? MS. HEATH: That cost $973. MS. WOLOK: And then what happened? Page 62 September 22, 2005 MS. HEATH: Well, it was quite a long time for Mr. Williams to even get a hold of me. I called and left messages and never had any phone calls back. And then I received a phone call from Larry Schwartz in October of 2004, and he told me that Jackie Williams had yet to submit the necessary infonnation for the existing septic tank, to have that part of the pennit moved forward. So at that time I took it upon myself to contact Monty Sanitation and Johnny Sanchez, and it took me three months of a lot of phone calls and a lot of work to finally get the required report stating that the existing septic tank did meet state code. And at that time I personally took the report to Mr. Gilman down at Horseshoe Drive, as I was told to do so by Larry Schwartz. And at that time, Ed Gilman was pretty much unaware of anything that was going on with that report, as it had sat in Mr. Sanchez's box for some time, and hadn't been brought to his attention. So basically that report said that the septic tank was up to code, and I was led to believe that that was the last thing I had to do in getting the pennits done with this septic tank inspection. And then a few days later, of course they told me I had to put a new septic tank in. MS. WOLOK: When was this that they told you you had to put a new septic system in? MS. HEATH: Well, the day I took the report up to Horseshoe Drive was January 23rd. And that day they had a letter back in the mail to me that said that wasn't what they wanted, they wanted a new tank. CHAIRMAN FLEGAL: Ms. W olok, can we stop a minute, please. Ms. Heath, hold on a moment, please. MS. HEATH: And I guess there was no mention of the carport and lanai either at any of those times that that had to be done either. CHAIRMAN FLEGAL: What I'm hearing is facts about this Page 63 September 22, 2005 case and so on, and so forth. Now, Ms. Heath signed a stipulated agreement in February of '05. We're talking about -- that says there were violations, she agreed to them, she agreed to pay the money and so -- I told you in the beginning, we're not going to rehear the case. What I want to know, what the board wants to know, is the $75 per day fine that's about to be imposed is why it should be less than what the county wants. The case is over, it's done. Your client, Ms. Heath, agreed to it. She signed this. So what happened prior to this, she agreed to it. What I want to know is why you feel it shouldn't be $75 a day or how many ever days it is. That's all we want to know. We're not going to reopen the case. I told you that in the beginning. MS. WOLOK: Chainnan Flegal, I am attempting to stick to the criteria. That is what I was prepared to do, because this is what I felt you would want to consider is the gravity of the violation, considering that we're talking this whole time we've been talking about the building pennit and the building pennit -- CHAIRMAN FLEGAL: We've already done that part. What we want to know in deciding to reduce the fine is what has she done since February 24th to resolve -- MS. WOLOK: Okay, we can tell you that. What's happened since February 24th is we all found that there was a building pennit, first of all, that's a new piece of infonnation. CHAIRMAN FLEGAL: Now, what else have we got? MS. WOLOK: What else we have is the story we were unraveling for you is at no point did my client know that a carport and lanai pennit had not been applied for this entire time. And she did not find that out until I was hired and I sat down with Michelle Arnold, and we discovered that oh, well, the carport and lanai still hasn't been applied for. And this was in April of this year. And as soon as we found that out -- CHAIRMAN FLEGAL: She agreed to that. Page 64 -'----.,,'"_.~ September 22, 2005 MR. BOWIE: She signed the stipulation. MS. WOLOK: I don't think you understand what I'm saying. What I'm saying is she knew she was in violation of it, but she didn't know that Jackie Williams did not apply for the permit at the same time he applied for the -- that's -- CHAIRMAN FLEGAL: I understand that. MS. WOLOK: She had no knowledge. And as soon as she had knowledge, she had a private engineer go out and inspect the carport and lanai and -- because she had wanted to get the permit for that. And he came back and said well, it's probably better to just demolish it. So right away she applied for a demolition permit, got that demolished. And you know, within two months. CHAIRMAN FLEGAL: Okay, I guess what my train of thought is, she thought something was being done and it didn't get done. MS. WOLOK: That's right. CHAIRMAN FLEGAL: Why should this board reduce the fine because the person she hired to do something didn't do it? That's not the board's problem. MS. WOLOK: Because is was -- because as we were having Ms. Health testify, she has already spent about $15,000 to comply with the order generally regarding the building permit, and was under the understanding that all this money she was spending was generally to comply with the order, including the carport and lanai. It would be inequitable to impose an additional, $5,1 75 fine for __ under your order $75 a day was for the building permit, as well as the carport and lanai, which turns out not to be true. And a carport and lanai permit, frankly, is inconsequential compared to not having a building permit for the whole mobile home. I think we can all agree to that, that not having a carport and lanai permit is minor compared to the other purported infraction. And we feel that it would be inequitable for Ms. Heath to have to pay additional amounts in addition to all this money she's paid to Page 65 ~,--~- September 22, 2005 comply with the building permit which turns out she didn't even have to pay, because the investigator did not find the permit. CHAIRMAN FLEGAL: Okay, but she didn't find a permit either. MS. WOLOK: She did. She's the one that found the permit. CHAIRMAN FLEGAL: I'm asking the question, because I don't know. MS. WOLOK: Code enforcement never did find it. We brought it to their attention. CHAIRMAN FLEGAL: Okay. But I guess I'm still trying to get to the fact that $75 you feel isn't equitable because one out of three things is in compliance. MS. WOLOK: Well, it's not just one out of three things, it was the most important piece of it. CHAIRMAN FLEGAL: Okay, whatever. It's still one out of three. MS. HEATH: May I speak for a moment as well? The septic tank too was another issue, and that was inspected and met state codes. But then they made me put the new one in, which the original did have a permit as well. And it was inspected and it met the state codes, but they told me I had to put a new one in, which I did. MS. WOLOK: Ms. Heath has done everything that's been asked of her, and we're asking, because the gravity of the violation isn't worth $75 a day. Given that we had this mistake by code enforcement, which they readily admit to, we feel that it would be most equitable to reduce the fine substantially. And also, we are asking for reimbursement of at least part of the operational costs of 623.04. CHAIRMAN FLEGAL: The board has no power to do that. That's something you have to take up with the Board of County Commissioners. We have no authority over operational costs at all. We can't waive them, we can't raise them, lower them. We don't have Page 66 September 22, 2005 any power there. We can deal with fines, period. That's all. MS. WOLOK: Okay. And we feel that under the circumstances, that it was a reasonable time in which to correct this violation, in particular. CHAIRMAN FLEGAL: The 60 days was reasonable or wasn't reasonable? I'm lost. MS. WOLOK: The amount of time it took Ms. Heath to comply with the carport and lanai portion of the order. We feel that was reasonable, given the circumstances of this case. CHAIRMAN FLEGAL: Okay, when did she actually come into compliance totally? MS. WOLOK: July 5th of2005 is if when the reinspection occurred. CHAIRMAN FLEGAL: So February to March, April, May, June, July. MS. HEATH: But in the meantime they -- we had found the original building permits that they said we never had. And after that was discovered, they still said they had an issue with the carport and lanai. And at that time, I took care of that. CHAIRMAN FLEGAL: So when you originally agreed to the stipulation, which we approved, that you would accomplish all this within 60 days -- MS. HEATH: Right, and then I did sign the building permit within 60 days. But then they said they still had issues with the carport and lanai. And at that time, I immediately took care of it. So I guess, you know, I mean there was a lot of -- and I don't live there, so it's not the easiest thing in the world to get people to get things done when you're not there. And I did do my best to accomplish that with the distance involved. MR. BOWIE: I think the gist of the argument is that the stipulation was based on a mutual mistake of fact. Both the respondent and the county were under the impression that there was Page 67 ---.-.. September 22,2005 no permit issued for the placement of the doublewide when in fact it turns out in fact there was. MS. HEATH: Right. MR. BOWIE: And I think the argument then is that the amount levied in the way of fines should be adjusted because of this newly discovered evidence which is being presented that in fact no violation in fact did exist. MS. HEATH: Yes, sir, that's exactly right. MR. BOWIE: And I think there might be some equity to that. MS. HEATH: Thank you. CHAIRMAN FLEGAL: Everybody done? Okay, fifth time. This stipulated agreement says that there's a violation for a mobile home, a carport and a lanai, which subsequently we did come up with because Ms. Heath found a permit for the mobile home. MS. HEATH: Correct. CHAIRMAN FLEGAL: But the agreement said that there's a violation on three items and that you were to resolve three items within 60 days. MS. HEATH: But actually, you know, if you think about it, of course, there should have been no violations, because there was a permit. And there was a permit for the septic. And it was inspected and it met state code. MR. BOWIE: I think everyone acknowledges, ma'am, is it not true, that there were no permits for the carport and the lanai. MS. HEATH: But that wasn't discovered until after we discovered the original permit that that was not -- MR. BOWIE: You stipulated to that back in February. MS. HEATH: Yes. MR. BOWIE: And that part of your stipulation, I think everybody acknowledges, is correct, there were no permits for the carport and lanai. Page 68 September 22, 2005 MS. HEATH: Right. And I -- you know, and I did take care of that after discovering the permit did not apply to the lanai, then I did take care of it. CHAIRMAN FLEGAL: Ma'am, do you have anything else? MS. WOLOK: No, sir, unless you have any further questions. CHAIRMAN FLEGAL: Any questions from the board? (No response.) CHAIRMAN FLEGAL: Okay, what we have is a request to reduce the fine to something lower than is requested by the county. And I think, Ms. W olok, you have to tell me if I'm on the right track, you not only want a reduction in the fine, but did I hear you say before that it has been corrected and that you thought there shouldn't be a fine at all? Was that one of your statements? MS. WOLOK: Well, I feel-- CHAIRMAN FLEGAL: Because she did it within -- as soon as she found out about it, she corrected it -- it took five months to do something she agreed she could do in two months. MS. WOLOK: Yes, because of the equity in the situation and the amount of money that she's already spent in attempting to comply with the overall problem has been over $15,000. And that the order itself says $75 for the violations collectively. And we feel also in the carport and lanai violation was minor compared to the other purported violation. MS. HEATH: And then of course the expense that I had to incur to do everything that didn't necessarily have to be done with the septic or the building permit that I had to buy. And the time and expense it took me to take care of all this as well. MS. ARNOLD: May I say something for the record? Michelle Arnold. The county doesn't have any objections to modifications of the fines, you know, based on the time and expense that the respondent had to put in for the building permit. Page 69 September 22, 2005 My understanding, however, with respect to the building pennit, that that is being reimbursed by the county; correct? MS. WOLOK: I haven't heard one word. And I've been leaving messages and writing letters. MS. ARNOLD: The County has agreed to reimburse Ms. Heath for the pennit expense. Now, with respect to -- my understanding the only outstanding item was the septic tank, because it was a separate entity. The health department is involved with that, and they made the detennination that a new septic needed to be put in place. But the county building department has made the commitment to reimburse. But just understanding the time and I guess expense that Ms. Heath went into and the fact that there was an error on both our parts, the county doesn't have an objection to those fines -- a reduction of those fines. CHAIRMAN FLEGAL: I mean, I -- I guess it boils down to, you know, she agreed that there was a violation. Rightly, wrongly, on both sides. The board gave her "X" -- didn't agree to "X" which she agreed to start with in the agreement. And she agreed to the fine amount. And now you want the board to reduce the fine amount because part of that is found to be not true. So it's something less than 75. We have an attorney who's saying the two items that remain are insignificant. I think if you go back in this board's history, pennits for carports and lanais aren't insignificant. So we're down to some other number other than 75, which I think is what's being requested and what the board would feel that should be. The county doesn't object to any type of a reduction, should we do that. Is that a good summation, Michelle? Does that sound like what you're agreeing to, that you don't really care what we reduce it to, if Page 70 --,.,.._~-_.,.._- --- September 22, 2005 we reduce it? MS. ARNOLD: Right, no objection. CHAIRMAN FLEGAL: And Ms. W olok, you're looking for -- is it a reduction or an abatement totally? MS. WOLOK: We're looking for a reduction to zero. MR. BOWIE: Sounds like an abatement to me. MR. DEAN: That's what your letter says. CHAIRMAN FLEGAL: Ms. Heath, did you hear everything I was saying? MS. HEATH: I certainly did, sir. And I just have to say on my own behalf, it's been nothing but a large headache. And I in no way, form, shape ever wanted to make anybody do anything wrong. And I tried to do the best that I could and to correct any situation, and I hope you are sympathetic with my situation. CHAIRMAN FLEGAL: I'm sure you have tried, ma'am. MS. HEATH: And I have. CHAIRMAN FLEGAL: Okay. Everybody done making their pitch to the board so we can make some kind of determination? (No response.) CHAIRMAN FLEGAL: Okay, just bear with us, Ms. Heath. MS. HEATH: I'm right here, sir. CHAIRMAN FLEGAL: Okay. What would the board like to consider? MR. DEAN: Sir, I know I'm the newest board member-- CHAIRMAN FLEGAL: That's all right. MR. DEAN: -- three months. I've read the history of this. And I do look at the fine that you talked about, the gravity of the violation, any actions taken by the violator to correct the violation, and any previous violation committed by the violator. And so a lot of times I look at things like is it -- what kind of a hardship that it is. And because she's gone to the trouble of hiring an attorney, and she has spent a considerable amount of money, and there was a Page 71 ~-,_...~> September 22, 2005 problem with our building department or whatever -- and I'm sure that happens once in a while -- we have a chance to rectify that. And so I would like to go along with the attorney's last line, wherefore, respondent respectfully requests the Code Enforcement Board order that the respondent pay nothing in fines under the order. I'd like to put that to a motion, if I could. CHAIRMAN FLEGAL: Okay, sir. We have a motion on the floor that no fine be imposed against this agreement. Is there either a second or an alternative? MR. BOWIE: Well, I can't go along with abatement, because part of the stipulation and order dealt with the matters of the carport and lanai. And there were time frames set there that she agreed to, to either receive a pennit for these things or demolish them, and those time frames went by without any action on her part. So I can see a case in equity here for reduction, but not abatement. And what I would like to do is move that in this matter, the fine portion be reduced -- CHAIRMAN FLEGAL: Since we don't have a second to -- MR. DEAN: I understand. CHAIRMAN FLEGAL: -- the motion, the motion dies and we're open to a new one. MR. DEAN: I understand. MR. BOWIE: That the fine portion of this, not of course the operational costs -- CHAIRMAN FLEGAL: No, that's already been paid, so that's -- MR. BOWIE: -- already been paid and we have no authority at this point to adjust. But the fine portion, in recognition of the fact that pennits in fact did exist for the doublewide, that the fine portion of this be reduced to reflect that the only violations continuing beyond the agreed upon dates were in fact the carport and lanai, that the fine portion be reduced to $15 a day for this period of time. Page 72 ...,..-....... _."-,~- September 22, 2005 MR. PONTE: That's one five, 15, not five zero? CHAIRMAN FLEGAL: Right, one five. Michelle, do you know how many days are involved? MR. PONTE: Sixty-nine. CHAIRMAN FLEGAL: Sixty-nine, is that it? Okay. Somebody punch their calculator and tell us what we're talking about. MS. HEATH: 1,035. CHAIRMAN FLEGAL: At least Ms. Heath is -- MR. BOWIE: My rationale for that is again, yes, I think of these three violations an un-permitted home or occupancy mobile home is by far the more substantial of any of the three. CHAIRMAN FLEGAL: We have a motion on the floor from Ray that this fine amount be reduced down to $15 a day for the time period, which is 69 days, for a total of$I,035. Is there any further discussion or a second on that, or something else? MR. PONTE: I will second it. CHAIRMAN FLEGAL: Okay. We have a motion and a second. Any further discussion? (No response.) CHAIRMAN FLEGAL: Hearing none, all those in favor, say aye. MR. PONTE: Aye. MR. BOWIE: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? MR. DEAN: I oppose. CHAIRMAN FLEGAL: Okay, four to one. All right, Ms. Heath, your fine's been reduced down to $1,035. MS. HEATH: I can live with that. CHAIRMAN FLEGAL: All right, ma'am. Thank you. Page 73 "'~'-·____~""_·._'_'_··"·_"N""^^"_"""_"'__"""~>O^__'....~, September 22, 2005 MS. HEATH: Thank you. CHAIRMAN FLEGAL: Thank you, Ms. Wolok. Okay, no other new business. No old business. Reports. We have a quarterly report which was submitted by Mr. Klatzkow. How are you, sir? MR. KLATZKOW: I'm fine. And you, sir? CHAIRMAN FLEGAL: Fine, sir. MR. KLATZKOW: Well, not a bad quarter, actually. But I must say I had considerable help from Ms. Arnold's office this time around. Otherwise, our collections would be far less. And her office is to be commended. We've collected year to date now about $144,330.60. One of the more interesting cases we've had for a while looks like it may be headed for resolution as well. And that's the Ironwood Golf Course case. And that's been a very long and arduous road for a number of people in the county. But it looks like the golf course is going to remain a golf course. And I've been speaking for the attorney for the purchaser, and they are very much interested in getting everything cleaned up and in working order. And I know Ms. Arnold's staff has been busily working with them. So that's in my mind the best news I can give you. If you have any questions, I'd be happy to answer. CHAIRMAN FLEGAL: No, sir, good report. Thank you. MR. KLATZKOW: Thank you. CHAIRMAN FLEGAL: Nothing on our agenda under comments. Any comments from board members? MR. BOWIE: Just the one item I mentioned to you, Mr. Chairman, previously. The proposed revisions to the code enforcement ordinance, which the county attorney's office is going to be bringing back before the commissioners, I think, what, later this month, latter part of this month? MS. ARNOLD: Yeah, it's actually-- Page 74 --.- .~ ., -.--- ------ September 22,2005 MR. BOWIE: I think there's something omitted, unintentionally perhaps, from the draft that was circulated to us. And that was I believe there was an attempt being made here to accommodate our motion and request for the enhanced fining powers comparable to those that by ordinance have been granted to the special master. I don't see that reflected here in this proposed revision. MS. ARNOLD: That has been brought to my attention. I think you can read the language that's in the proposed ordinance in two ways. The language states the code enforcement board, upon notification by the code enforcement official that a previous order of the board for a first violation has not been complied with by the specified time, may order the violator to pay a fine which shall not exceed $1,000 per day per violation for each day the first violation continues past the date set for compliance. I think you can read it as noted, that section that says previous order of the board for a first violation as the board actually ordered the compliance, and the code enforcement department is then notifying you all that compliance was not achieved by that particular time of your order. So therefore, your fines can be in the amount of $1 ,000 per day, or it could -- MR. BOWIE: For the first violation. MS. ARNOLD: Right. The proceeding that we had today for the Hess station, for example, that particular item came to the board, a violation was found, and then that is what this is making reference to. And then at that particular time, you have the ability to fine or so order, if noncompliance, then a fine of up to $1,000 per day could be imposed. I could see how one could read it the other way, where it could be interpreted as repeat violations only -- MR. BOWIE: It's a little ambiguous. MS. ARNOLD: -- but that's not the intent. CHAIRMAN FLEGAL: What we want to make sure of -- and of Page 75 ""---'~~---'-'--""'-- -- ""-_._---~"'.._-~-_._........, September 22, 2005 course the comfort ability level I think must be with the county attorney's office because they'll be the ones that will be ultimately trying to enforce this, should anybody appeal anything the board does -- is that we understand that this is what it means should we do that at any time and then someone's attorney appeal that, and then a judge somewhere says gee, you guys only have this power on repeats. Then we've got a bad ordinance because that's not what our intent was. MS. ARNOLD: Absolutely. CHAIRMAN FLEGAL: Everybody needs to make sure that the field is level, that it's starting at day one. If whatever we decided today, if we wanted to do 1,000, we have that power, not oh, it has to be repeat. That's where what we want to make sure we're doing. And if the county attorney says yes, that's the way it's written, then we accept their judgment, because they're the ones that -- MS. ARNOLD: Yeah, and I've e-mailed upon your notification to me that very thing to Steven -- he hasn't read it yet -- and Jennifer Belpedio, who's the one that helped author this ordinance. And so, you know, if they feel that there needs to be some clarification, maybe we can state that on the record at the meeting. Because it's next week that the boards have to have them, so -- CHAIRMAN FLEGAL: Just before it gets -- you know, we don't want to have it done and then all of a sudden you've got to go back and amend. If we're going to do it and we catch it and it does have to be changed, gee, it's just a one paragraph, that should be an easy change. But we appreciate you looking into that. And as always, I know the county attorney's office will keep us out of trouble. Any other comments? (N 0 response.) CHAIRMAN FLEGAL: Our next meeting is October 27th, same place, same time, same crew. Hopefully more of us. Page 76 September 22, 2005 MS. ARNOLD: Yes. CHAIRMAN FLEGAL: How are we doing on cases? I mean, the last couple of months it's been really shy. Are we -- is the county really in good shape, we hope? MS. ARNOLD: No, we're not. MR. BOWIE: Just all the code violators are on vacation, too. That's all. CHAIRMAN FLEGAL: It is the seasonal slow down, I guess. MR. BOWIE: They're not here committing violations. They're doing their violations back in Wisconsin now. MS. ARNOLD: It will pick up. Some of the less severe cases obviously are going to the special master, so that's -- you know, you guys were juggling both before, so I think she's going to lighten your load a little bit. But there are plenty of cases to come back before you. CHAIRMAN FLEGAL: I mean, it's just -- what was it last month we were here -- MR. PONTE: Twenty minutes. CHAIRMAN FLEGAL: Twenty some -- MS. ARNOLD: Twenty seconds, I think it was. CHAIRMAN FLEGAL: That had to go down in history, 30 minutes. Okay, if there's nothing else -- MS. RAWSON: Let me just remind everybody that November and December meetings are not on the regular days, I think. MS. ARNOLD: Right, November 18th. And we're trying to actually place -- get that meeting scheduled for the school board location, because they've got, you know, all the high tech -- CHAIRMAN FLEGAL: Okay. Well, next month you'll remind us heavily of that. MS. ARNOLD: Right. And I'll e-mail you a couple times. And e-mail myself so I don't forget. CHAIRMAN FLEGAL: All right. Nothing else? I would Page 77 September 22, 2005 entertain a motion to adjourn. MR. DEAN: Motion to adjourn. MR. DeWITTE: Second. CHAIRMAN FLEGAL: We have a motion and a second. All those in favor? MR. PONTE: Aye. MR. BOWIE: Aye. MR. DEAN: Aye. MR. DeWITTE: Aye. CHAIRMAN FLEGAL: Aye. Any opposed. (No response.) CHAIRMAN FLEGAL: Gee, silence. Thank you everybody. ****** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 11 :48 a.m. COLLIER COUNTY CODE ENFORCEMENT BOARD CLIFFORD FLEGAL, CHAIRMAN Page 78