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CEB Minutes 04/27/2006 RApril 27, 2006 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD NAPLES, FLORIDA, April 27, 2006 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 at the Collier County Government Center, Third Floor, 3301 East Tamiami Trail, Naples, Florida, with the following members present: CHAIRMAN: Sheri Barnett Justine DeWitte Jerry Morgan Richard Kraenbring Gerald J. LeFebvre George P. Ponte Larry Dean Kenneth Kelly ABSENT: David Cook ALSO PRESENT: Jean Rawson, Attorney, Code Enforcement Board Michelle Arnold, Director of Code Enforcement Shirley Garcia, Secretary to CEB Page 1 CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA AGENDA Date: April 27, 2006, at 9:30 a.m. Location: Collier County Government Center, Third Floor, 3301 East Tamiami Trail, Naples, Florida NOTE: ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NEITHER COLLIER COUNTY NOR THE CODE ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. 1. ROLL CALL 2. APPROVAL OF AGENDA 3. APPROVAL OF MINUTES —March 23, 2006 4. PUBLIC HEARINGS A. MOTIONS 1. Motion for Re- Hearing — Steven Loveless CEB 2006 -10 B. STIPULATIONS - (no requests submitted at the time of preparation) C. HEARINGS 1. CASE NO: 2006 -04 (RE- HEARING) CASE ADDR: 211844 TI ST. S.W. NAPLES, FL (FOLIO: 35751800003) OWNER: RUSSELL & KAYDEE TUFF INSPECTOR: SHAWN LUEDTKE VIOLATIONS: ORD 04- 4110.02.06(B)(1)(A), 10.02.06(B)(1)(D), 10.02.06(B)(1)(D)(I) DESCRIPTION: PROHIBITED CONVERSION OF A GARAGE INTO LIVING SPACE WITHOUT THE REQUIRED COLLIER COUNTY BUILDING PERMITS. 2. CASE NO: 2006- 09(CONT. FROM MARCH 23, HEARING) CASE ADDR: 1920 BETHANY PLACE, NAPLES, FL. (FOLIO # 74510520006) OWNER: KRISTOPHER & CHRISTINE GOMERY INSPECTOR: HEATHER GRIMSHAW VIOLATIONS: ORD NO 04 -41 AS AMENDED, SECTIONS 10.02.06(B)(1)(A), 10.02.06(1)(D)(I), 10.02.06(B)(1)(D), 104.1.1 AND FLORIDA BUILDING CODE, 2001 EDITION, AS AMENDED BY ORDINANCE 02 -01, SECTION 104.1.3.5 DESCRIPTION: AN ILLEGAL ADDITION TO HOUSE WITHOUT HAVING FIRST OBTAINED ALL REQUIRED PERMIT(S). 3. CASE NO: 2006 -13 CASE ADDR: 109 INAGUA LN., BONITA SPRINGS, FL. (FOLIO # 54754120004) OWNER: PHILIP & SUSAN LOYD INSPECTOR: KEVIN HAYLESWORTH VIOLATIONS: ORD NO. 04 -41, 3.04.01, 3.04.02(B), 9.04.06(A -H) 10.02.03(A) (B), 10.02.06(B)(H)(1) DESCRIPTION: VARIOUS STRUCTURES, FIXTURES & UNNATURALLY OCCURRING VEGETATION WEST OF THE CCSL & WITHOUT REQUIRED PERMITS. 4. CASE NO: 2006 -16 CASE ADDR: 1101 ALACHUA ST., IMMOKALEE, FL. (FOLIO # 63864720000) OWNER: JERRY & KIMBERLEA BLOCKER INSPECTOR: DENNIS MAZZONE VIOLATIONS: VIOLATION OF ORDINANCE(S) 04 -41, AS AMENDED, SEC. 1.04.00, SUB SEC'S. 1.04.01, PAR'S. A, B AND C, AND 1.04.05, SEC. 1.05.00, SUB SEC. 1.05.01, PAR. -F, SEC. 2.02.00, SUB SEC'S. 2.02.01,PAR. -D AND 2.02.03, SEC. 2.03.00, SUB SEC. 2.03.03, PAR. -A, SEC. 2.04.00, SUB SEC. 2.04.03, PG. "LDC2:113 ", SEC. 2.05.00, SUB SEC. 2.05.01, PAR. -A, SEC. 8.08.00, PAR'S. B AND D, SEC. 9.03.00, SUB SEC. 9.03.01, PAR. -D ALSO: OCT. 1970 ZONING REGULATIONS /IMMOKALEE AREA, ARTICLE IV, SEC'S. 4.1, 4.2, 4.3, AND 4.4, ARTICLE VII, SEC'S. 7.1, AND 7.9, AND ARTICLE X, SEC. 10. 11, "I -C -3 ", PAR. -2. DESCRIPTION: UNLAWFUL AND INAPPROPRIATE DEVELOPMENT AND RESIDENTIAL USE OF INDUSTRIAL ZONED PROPERTY (PREVIOUSLY ZONED I -C -3) WITHOUT PRIOR COLLIER COUNTY ZONING AND PLANNING REVIEW, WITHOUT AN APPROVED SITE DEVELOPMENT PLAN (SDP) , WITHOUT VALID COLLIER CO. BUILDING PERMITS. PERPETUATING A USE INCONSISTENT WITH THE COLLIER COUNTY GROWTH MANAGEMENT PLAN - IMMOKALEE MASTER PLAN. (GMP). 5. CASE NO: 2006 -17 CASE ADDR: 1101 ALACHUA ST., IMMOKALEE, FL. (FOLIO # 63864680001) OWNER: JERRY & KIMBERLEA BLOCKER INSPECTOR: DENNIS MAZZONE VIOLATIONS: VIOLATION OF ORDINANCE(S) 04 -41, AS AMENDED, SEC. 1.04.00, SUB SEC'S. 1.04.01, PAR'S. A, B AND C, AND 1.04.05, SEC. 1.05.00, SUB SEC. 1.05.01, PAR. -F, SEC. 2.02.00, SUB SEC'S. 2.02.01,PAR. -D AND 2.02.03, SEC. 2.03.00, SUB SEC. 2.03.03, PAR. -A, SEC. 2.04.00, SUB SEC. 2.04.03, PG. "LDC2:113 ", SEC. 2.05.00, SUB SEC. 2.05.01, PAR. -A, SEC. 8.08.00, PAR'S. B AND D, SEC. 9.03.00, SUB SEC. 9.03.01, PAR. -D ALSO: OCT. 1970 ZONING REGULATIONS /IMMOKALEE AREA, ARTICLE IV, SEC'S. 4.1, 4.2, 4.3, AND 4.4, ARTICLE VII, SEC'S. 7. 1, AND 7.9, AND ARTICLE X, SEC. 10. 11, "I -C -3 ", PAR. -2. DESCRIPTION: UNLAWFUL AND INAPPROPRIATE DEVELOPMENT AND RESIDENTIAL USE OF INDUSTRIAL ZONED PROPERTY (PREVIOUSLY ZONED I -C -3) WITHOUT PRIOR COLLIER COUNTY ZONING AND PLANNING REVIEW, WITHOUT AN APPROVED SITE DEVELOPMENT PLAN (SDP) , WITHOUT VALID COLLIER CO. BUILDING PERMITS. PERPETUATING A USE INCONSISTENT WITH THE COLLIER COUNTY GROWTH MANAGEMENT PLAN - IMMOKALEE MASTER PLAN. (GMP). 6. CASE NO: 2006 -18 CASE ADDR: 1101 ALACHUA ST., IMMOKALEE, FL. (FOLIO # 63864760002) OWNER: JERRY & KIMBERLEA BLOCKER INSPECTOR: DENNIS MAZZONE VIOLATIONS: VIOLATION OF ORDINANCE(S) 04 -41, AS AMENDED, SEC. 1.04.00, SUB SEC'S. 1.04.01, PAR'S. A, B AND C, AND 1.04.05, SEC. 1.05.00, SUB SEC. 1.05.01, PAR. -F, SEC. 2.02.00, SUB SEC'S. 2.02.01,PAR. -D AND 2.02.03, SEC. 2.03.00, SUB SEC. 2.03.03, PAR. -A, SEC. 2.04.00, SUB SEC, 2.04.03, PG. "LDC2:113 ", SEC. 2.05.00, SUB SEC. 2.05.01, PAR. -A, SEC. 8.08.00, PAR'S. B AND D, SEC. 9.03.00, SUB SEC. 9.03.01, PAR. -D ALSO: OCT. 1970 ZONING REGULATIONS /IMMOKALEE AREA, ARTICLE IV, SEC'S. 4.1, 4.2, 4.3, AND 4.4, ARTICLE VII, SEC'S. 7.1, AND 7.9, AND ARTICLE X, SEC. 10. 11, "I -C -3 ", PAR. -2. DESCRIPTION: UNLAWFUL AND INAPPROPRIATE DEVELOPMENT AND RESIDENTIAL USE OF INDUSTRIAL ZONED PROPERTY (PREVIOUSLY ZONED I -C -3) WITHOUT PRIOR COLLIER COUNTY ZONING AND PLANNING REVIEW, WITHOUT AN APPROVED SITE DEVELOPMENT PLAN (SDP) , WITHOUT VALID COLLIER CO. BUILDING PERMITS. 6. 7. 8. 9. 10. PERPETUATING A USE INCONSISTENT WITH THE COLLIER COUNTY GROWTH MANAGEMENT PLAN - 1MMOKALEE MASTER PLAN. (GMP). 7. CASE NO: 2006 -20 CASE ADDR: NAPLES SOUTH PLAZA 4905 RATTLESNAKE HAMMOCK RD., NAPLES, FL. (FOLIO # 55151440001) OWNER: NAPLES SOUTH PLAZA -ZACH BERG, REG. AGENT INSPECTOR: JOHN OLNEY VIOLATIONS: ORD NO 04 -41 AS AMENDED, SECTIONS 2.02.03 AND ORD. 99 -51, SEC. 7, AS AMENDED TO 05 -44, SEC. 7. DESCRIPTION: ILLEGAL LAND USE, THE STORAGE OF UNLICENSED AND /OR INOPERABLE VEHICLES ON PROPERTY ZONED C -4, (GENERAL COMMERCIAL), WHICH IS NOT A PERMITTED USE OF C -4 ZONING. THE PROHIBITED ACCUMULATION OF LITTER ON THE PROPERTY KNOWN AS NAPLES SOUTH PLAZA (RECURRING PROBLEM) 8. CASE NO: 2006 -23 CASE ADDR: 5331 GEORGIA AVE., NAPLES, FL. (FOLIO # 62251200008) OWNER: AUGUSTIN & BERTHA CISNEROS INSPECTOR: JOSEPH MUCHA VIOLATIONS: ORD NO 04 -41 AS AMENDED, SECTIONS 2.02.03, 1.04.01 DESCRIPTION: ILLEGAL LAND USE OF AREA ZONED RESIDENTIAL SINGLE FAMILY. THE OWNER OF THIS RESIDENTIALLY ZONED PROPERTY IS RUNNING AN AUTOMOBILE PAINTING BUSINESS OUT OF THE GARAGE OF HIS HOUSE. THIS TYPE OF LND USE IS PROHIBITED IN A RESIDENTIALLY ZONED AREA. NEW BUSINESS A. Request for Imposition of Fines /Liens 1. BCC vs. Paul & Kelly Byrd CEB No. 2004 -10 2. BCC vs. Gary D. Wilson CEB No. 2004 -28 3. BCC vs. James C. & Sherry Marshall CEB No. 2004 -72 OLD BUSINESS - REPORTS — NO REPORTS COMMENTS NEXT MEETING DATE MAY 25, 2006 ADJOURN April 27, 2006 CHAIRMAN BARNETT: At this time I'd like to call the Collier County agenda April 27th, 2006, to order. Note, any person who decides to appeal a decision of this board, will need a record of the proceedings thereto and, therefore, may need to ensure that a verbatim record of the proceedings is made which records include 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. And in order to be able to provide an accurate record, please note that any individual needs to be called upon by the chair. May I have roll call, please. MS. GARCIA: Oh, yes. Sorry. For the record, Shirley Garcia, Code Enforcement Board secretary. I'd like to call Sheri Barnett. CHAIRMAN BARNETT: Present. MS. GARCIA: Richard Kraenbring. MR. KRAENBRING: Present. MS. GARCIA: George Ponte. MR. PONTE: Here. MS. GARCIA: Gerald LeFebvre. MR. LEFEBVRE: Here. MS. GARCIA: Larry Dean. MR. DEAN: Here. MS. GARCIA: Jerry Morgan. MR. MORGAN: Here. MS. GARCIA: Justin DeWitte. MR. DEWITTE: Here. MS. GARCIA: Kenneth Kelly. MR. KELLY: Present. MS. GARCIA: And David Cook is -- has an excused absence. CHAIRMAN BARNETT: Note that we have a full quorum. So, therefore, the alternates can participate in questions, but they cannot Page 2 April 27, 2006 vote. Approval of the agenda. MS. ARNOLD: For the record, Michelle Arnold, Code Enforcement Director. I do have a couple changes to the agenda. There has been a motion that has been submitted to you for Item No. 3. That's Code Enforcement Board Case 2006 -13, Board of County Commissioners versus Philip and Susan Loyd. So that -- that -- that's needing to be added to 4 -A1 so that'll be two. And also we have a request to move Item 7 which is Board of County Commissioners versus South Plaza 2006 -20 up as a first item. Because we have our ex- investigator who's with another -- another department is only going to be able to be with us for a limited amount of time. So if we can hear that case first, that would be great. MR. PONTE: Madam Chair -- CHAIRMAN BARNETT: Yes. MR. PONTE: -- and Michelle, to streamline the hearings a little bit, is it possible to combine the Cases 16, 17 and 18 saying the respondent's the same? MS. ARNOLD: Yes. We were planning on doing that. MR. PONTE: Okay. Thank you. CHAIRMAN BARNETT: Okay. Are those all the changes? MS. ARNOLD: Yes. CHAIRMAN BARNETT: Do I hear a motion to accept the amended -- MR. PONTE: So moved. MR. LEFEBVRE: Second. CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. Page 3 April 27, 2006 MR. PONTE: Aye. MR. DEAN: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) CHAIRMAN BARNETT: Okay. Approval of the minutes, please. MR. DEAN: I'll make a motion we approve the March 23rd, 2006, minutes. MR. PONTE: Second. CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) CHAIRMAN BARNETT: Okay. Move to public hearings. The first motion rehearing Steven Loveless CEB 2006 -110. Swear him in, please. (The oath was administered.) CHAIRMAN BARNETT: At this time I want to mention that we have one board member that had recused himself at the last hearing. So, again, I'm going to assume that that's what he wants to do for this one. MR. LEFEBVRE: That's correct. CHAIRMAN BARNETT: Yes, sir. MR. HAJEK: This is the motion of Steve Loveless for a rehearing. I'm Joshua Hajek, attorney for Mr. Loveless. On the last meeting I believe which was the March 23rd, 2006, April 27, 2006 hearing the board entered an order against Mr. Loveless. Mr. Loveless was not able to appear at that hearing. He actually had written a letter to the board asking for a continuance of the hearing. The basis for that continuance was the fact that he did not actually receive the certified mail of the notice of the hearing nor did he receive or see the posting on his residence. And, unfortunately, for Mr. Loveless his father is quite ill, is in the advanced stages of Alzheimer's. He's in Washington, D.C. Mr. Loveless had prior to getting notice and he did receive notice from one of the board meetings of the hearing about three days before the hearing, but he had already made travel arrangements to be in Washington. And, obviously, due to the nature of his father's illness, that was a trip that could not be cancelled. So Mr. Loveless was not able to appear at the last hearing and would certainly like the opportunity to explain to the board his situation the reasons for not being able to obtain the certificate of occupancy for his residence. Now, in the interest of giving the board full information, we have filed an appeal to the circuit court on behalf of Mr. Loveless because of the 30 days after the March 23rd hearing ran as of yesterday. So we did file the appeal yesterday. I just wanted to make the board aware of that. CHAIRMAN BARNETT: I remember the continuance. I think he based it on the fact that he was having to take care of his father. And I think we denied it because we didn't know about some of the other things. MS. RAWSON: Madam Chair, they have filed an appeal. So as long as the appeal has been filed and it was filed yesterday, because that's I talked to the appellate clerk yesterday afternoon about the record, you are divested of jurisdiction. CHAIRMAN BARNETT: So we can't do anything? MS. RAWSON: You can't do anything. So, you know, until we Page 5 April 27, 2006 see what happens with the appellate process -- and I suggested to Ms. Arnold that she discuss it with the attorneys if they can work something out, but as long as there is an appeal, you don't have any jurisdiction to do anything. CHAIRMAN BARNETT: All right. MR. HAJEK: I appreciate the board hearing the motion. Thank you very much. CHAIRMAN BARNETT: Okay. Then the second motion is No. 7. No. Four, Michelle? MS. ARNOLD: The second motion is for -- for Susan and Philip Loyd. CHAIRMAN BARNETT: Right. MS. ARNOLD: And it's from the firm of -- CHAIRMAN BARNETT: Could you swear them in, please. (The oath was administered.) MR. ZAMPOGNA: Good morning, members of the board, Madam Chair. My name is Carlo Zampogna, Woodward, Pires & Lombardo. I represent Phil and Susan Loyd. We're here on a motion for continuance this morning. The respondents received notice on Thursday, April 6th, that they were to be here. They had already had previously scheduled travel plans to go to Mexico. They also -- Mr. Pires, who is their primary counsel, is also unavailable today. This case actually is very document intensive due to some prior variances, also dealings with the state and DEP. And we have been in contact with county staff and are dealing with them right now going through documents, exchanging documents as well. County staff will also tell you that we have been cooperative with them to try to obtain a resolution to any alleged violations that are on the property right now. MS. ARNOLD: I just wanted to speak to that. We have been advised by the attorney that's representing the property owners that Page 6 April 27, 2006 there's some additional documentation that we need to probably look at. So it's probably best that we do grant the continuance and look at all the information completely before we hear that case. CHAIRMAN BARNETT: Okay. Do you have a recommended time frame, a month? two months? MS. ARNOLD: Yeah. Two months -- we were -- we would ordinarily do 30 days, but the investigator is not going to be available at the next hearing. So if we can do it for a two -month period, it would be great. CHAIRMAN BARNETT: I would entertain a motion. MR. PONTE: I'll make the motion that we grant the continuance for two months. MR. DEWITTE: I second. CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN BARNETT: Aye. MR. PONTE: Aye. MR. DEAN: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) MR. ZAMPOGNA: Thank you. CHAIRMAN BARNETT: That concludes the motions. Do we have any stipulation? MS. ARNOLD: Yes, we do actually. We have a stipulation for Augustin and Berth Cisneros. And that is your last case, No. 8. CHAIRMAN BARNETT: Would you swear the individuals in, please. (The oath was administered.) CHAIRMAN BARNETT: Okay. officer like to read us the stipulation? Page 7 Would the code enforcement April 27, 2006 MR. MUCHA: Yes, ma'am. I reached a stipulation agreement with Augustin Cisneros. THE COURT REPORTER: Could you state your name for the record. MR. MUCHA: I'm sorry. For the record, Joe Mucha, Collier County Code Enforcement Investigator. This is CB No. 2006 -23, Department Case No. 2006 - 020700. I recently reached an agreement with Mr. Cisneros this morning. He agrees that he's in violation of Collier County Ordinance 04 -41 Sections 1.04.01 and Section 2.02.03 described as illegal land use and prohibited uses. Mr. Cisneros has agreed to pay operational costs in the amount of 267.11 incurred in the prosecution of this case. And he's agreed to abate all violations by ceasing the painting of automobiles in an area zoned residential immediately or a fine of $100 a day will accrue until violation is abated. If the respondent resumes the prohibited activity within the calendar year, the same $100 a day fine shall apply until the violation is abated. And he must notice -- notify me immediately so I can come out and do a site inspection. MR. PONTE: I have a question. MR. MUCHA: Yes, sir. MR. PONTE: The "immediately" that you stipulated to, does that mean by close of business today or does that mean like now? MR. MUCHA: Close of business today is fine. MR. CISNEROS: Yes. My name is Augustin Cisneros. And I signed the agreement and it's okay for me. CHAIRMAN BARNETT: You're willing to abide by it, then; correct? MR. CISNEROS: Yes. MR. PONTE: And when will you stop painting the cars, sir? MR. CISNEROS: I suspended a few days ago. MR. PONTE: You stopped two days ago? 1 ff!4 mg April 27, 2006 MR. CISNEROS: I stopped. MR. PONTE: Thank you. CHAIRMAN BARNETT: Okay. Thank you. MR. MUCHA: Thank you. CHAIRMAN BARNETT: Do we have any discussion of the board? (No response.) CHAIRMAN BARNETT: I'll entertain a motion. MR. PONTE: I make a motion that we accept the stipulated agreement. MR. LEFEBVRE: Second. CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) CHAIRMAN BARNETT: Okay. Thank you. MR. MUCHA: Thank you. CHAIRMAN BARNETT: We'll move up Case No. 7, the Naples South Plaza. MS. ARNOLD: I'm sorry. There is another stipulated agreement. CHAIRMAN BARNETT: Oh. Sorry, Michelle. MS. ARNOLD: No. That's my fault. I didn't say it. This one is Kristopher A. Gomery and Christine M. Gomery. And the investigator and Mr. Gomery is here. CHAIRMAN BARNETT: That would be Case No. 2, then? Page 9 April 27, 2006 MS. ARNOLD: That would be No. 2, 6000 -- 2006 -09. CHAIRMAN BARNETT: Okay. Could we please swear in the speakers. (The oath was administered.) CHAIRMAN BARNETT: Could I hear the stipulated agreement, please, from the code enforcement officer. MS. GRIMSHAW: Good morning. Heather Grimshaw, Code Enforcement Investigator for the record. I believe Michelle said the Case No. 2006 -09. The description is an illegal addition to the house without having first obtained all the required permits. We have reached a stipulation agreement. The respondent has agreed to pay all operational costs in the amount of $458.90 incurred in the prosecution of this case and abate all violations by obtaining the required inspections up to and including a certificate of occupancy for the structure within six months of the issuance of the permit which was issued on March 15th, 2006. Therefore, we are requesting a certificate of occupancy be obtained by the permit's expiration date by September 1 lth, 2006, or receive a fine of $100 per day thereafter until the violation is abated. The respondent also has the option there of paying all the operational costs in the amount of 458.90 and obtaining a demo permit through to a C.O. and remove such structure and all materials from property six months from today's hearing date which would be October 27th, 2006 or receive a fine of $100 per day thereafter until the violation is abated. CHAIRMAN BARNETT: Okay. Do they need to contact you? MS. GRIMSHAW: Yes. The respondent must notify code enforcement that the violation has been abated and request an investigator to come out and perform an inspection at the site. CHAIRMAN BARNETT: Okay. Do you agree to the stipulation? Page 10 April 27, 2006 MR. GOMERY: Yes. For the record I'm Kris Gomery and I agree to the stipulation as presented. CHAIRMAN BARNETT: Thank you. Do I have any discussion from the board? (No response.) CHAIRMAN BARNETT: If not, I'll entertain a motion. MR. DEWITTE: Motion to accept the stipulation as presented. MR. LEFEBVRE: Second. CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) CHAIRMAN BARNETT: Okay. Thank you. MR. GOMERY: Just one question. When do we -- when do we pay or who do we pay? MS. ARNOLD: You could pay now or -- or speak to either Shirley Garcia -- MR. GOMERY: All right. Thank you very much. CHAIRMAN BARNETT: Thank you. Is that all the stipulations, then, Michelle? MS. ARNOLD: Yes. CHAIRMAN BARNETT: Okay. We'll move to the hearings. The first case would be the case of Collier County versus Naples South Plaza, Case No. 2006 -20. (The oath was administered.) MS. GARCIA: For the record, Shirley Garcia. I'd like to enter Page 11 April 27, 2006 County's Exhibit A into evidence, Case No. 2006 -20, Collier County Board of County Commissioners versus Naples South Plaza. Zach Berg is the registered agent and is present at this time. The violation of Ordinance 04 -41 as amended Section 2.02.03 and Ordinance 99 -51, Section 7 amended to 05 -44, Section 7. The description of the violation is illegal land use, the storage of unlicensed and inoperable vehicles on properties zoned C -4, general commercial, which is not a permitted use of C -4 zoning -- C -4 zoning. The prohibited accumulation of litter on the property known as Naples South Plaza, reoccurring problem. The location address where the violation exists, Naples South Plaza, 4905 Rattlesnake Hammock Road, Naples, Florida. Name and address of the person in charge of the violation location is Naples South Realty. Zach Berg is the registered agent. The date of the violation first observed January 23rd, 2006. The date and the owner -- date the owner or person in charge given notice of violation was illegal land use issued January 25th of '06 certified mail. The letter notice issued on April 19th of '05, certified mail. The date which violation to be corrected was 2/10 of '06 for the illegal land use and for the litter was 4/27 of '05. The date of the reinspection performed was March 22nd of '06. The results of the reinspection is that the violation still remained. CHAIRMAN BARNETT: I'll entertain a motion to accept Evidence Packet A be introduced. MR. PONTE: So moved. MR. LEFEBVRE: Second. CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. Page 12 April 27, 2006 MR. PONTE: Aye. MR. DEAN: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) CHAIRMAN BARNETT: Okay. Yes, sir. MR. OLNEY: Good morning. For the record, John Olney, former Collier County Code Enforcement Investigator. I won't -- I'll be brief in expanding on what Ms. Garcia has already told you about this violation. This concerns Naples South Plaza. It's a shopping center at the corner of Rattlesnake Hammock and East Trail. It involved unlicensed vehicle stored on this property zoned C -4 which stayed there longer than we wanted it to and which generated these proceedings. It also involved litter around the periphery of the property and to include a large pile of Hurricane Wilma debris which was not cleaned up in a timely manner also which resulted in us bringing the matter before you. Those two issues were combined in the one submission before the board. As of April 14th this year all violations were abated. At this point we are asking for the payment of operational costs in the amount of $367.53. And we'll state for the board that we will be monitoring the shopping center in the future for continued compliance with these issues. And should a recurrence occur, we will again initiate proceedings. CHAIRMAN BARNETT: Okay. MR. OLNEY: That's all I have. CHAIRMAN BARNETT: Yes, sir. MR. BERG: That's acceptable to me. I'm Zach Berg. For the record, Zach Berg, for the property. That's an acceptable resolution for me. CHAIRMAN BARNETT: Okay. Does the board have any questions for either party? Page 13 April 27, 2006 (No response.) CHAIRMAN BARNETT: Okay. I'll close the public hearing. Discussion. MR. PONTE: I think we should -- CHAIRMAN BARNETT: Finding of facts. MR. PONTE: I will make a motion that a violation exists as described in the charging documents of CEB Case 2006 -12, Collier County Board of County Commissioners versus Naples South Plaza. CHAIRMAN BARNETT: Do I hear a second? MR. LEFEBVRE: Second. CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) CHAIRMAN BARNETT: Okay. MR. PONTE: I would just make a motion that we accept the Investigator Olney's observations and the county's recommendation. MS. RAWSON: But I would prefer it if you would repeat that for the record just so that we have it clear. MR. PONTE: The violation has been abated and there is a fine of $100 if -- as I understand it, if the violation occurs again. Additionally the respondent has agreed to keep the place clean, picked up and not have any cars there. CHAIRMAN BARNETT: Operational costs. MR. PONTE: The operational costs, I think Mr. Olney has already talked about and except forward is 300 and some dollars as I Page 14 April 27, 2006 recall. CHAIRMAN BARNETT: 367.53, if I'm not mistaken. MR. OLNEY: 367.53. MR. BERG: I was confused between what Officer Olney said and what Mr. Ponte said. CHAIRMAN BARNETT: Okay. Let me clarify it for you. MR. BERG: Okay. CHAIRMAN BARNETT: Basically they're going to continue to monitor you to make sure that you keep it clean. If you don't, they will impose a fine of $100 a day. Otherwise, you just have to pay the operational cost of 367.53. MR. BERG: Okay. CHAIRMAN BARNETT: Is that pretty much -- MR. BERG: That wasn't exactly how I understood it. CHAIRMAN BARNETT: Okay. MR. OLNEY: My statement was that we would continue to monitor it. Should violations be noted in the future, we will initiate further proceedings, i.e., would probably commence another Code Enforcement Board. CHAIRMAN BARNETT: Okay. MR. OLNEY: And at that point fines would be determined. MR. BERG: That was the way I understood it. CHAIRMAN BARNETT: Okay. So we won't have a $100 fine then. MR. PONTE: I do have a question. Given that the vehicles were parked there illegally, but not parked there by Mr. Berg, what actually can he do to remove the vehicles? I mean, they're not his property. MR. OLNEY: He needs to have them towed. Call a towing company and have them towed to a towing lot. And at which time, then, he would deal with the cost thereof. Sadly enough, it falls on the owner to make sure that his property is in compliance. And granted some unknown third party placed it there, the owner must pay the Page 15 April 27, 2006 money to get it removed. MR. PONTE: And, Mr. Berg, are you clear on that? MR. BERG: Yeah. We had them -- we had the vehicles removed from the property and we never heard from the owners. Which leads me to believe they were abandoned, but one car actually was for sale. So I guess he didn't sell it. CHAIRMAN BARNETT: So, then, Mr. Ponte, just to make sure that we have the motion correct, would you like to go back? MR. PONTE: Would we like to go back and do this again? CHAIRMAN BARNETT: Reconsider it. MR. PONTE: Let's just -- can we not just for the sake of streamlining this and taxing my memory, just go back and accept it as we have it on the record? CHAIRMAN BARNETT: Jean, have you got it now or -- MS. RAWSON: No. I've got it. I just wanted to be sure that it was clear so that the respondent understood exactly what the order is going to say. CHAIRMAN BARNETT: Basically, if I'm understanding this correctly, he has to pay operational costs? MS. RAWSON: Right. MR. PONTE: That's it. MR. BERG: Correct. MR. PONTE: And is aware of the fact that he would have a fine of $100 per day if the violation were to occur. MS. RAWSON: Well, I don't think we -- CHAIRMAN BARNETT: No. No. MS. RAWSON: -- we can say that. CHAIRMAN BARNETT: Not code enforcement. MS. RAWSON: That's my concern. You can't -- that's my concern. You can't say in advance what the fines would be if he did another violation. I think the proper thing to say is he's going to monitor it. If there's another violation, he'll bring it back before you. Page 16 Apri127, 2006 MR. PONTE: Right. MS. RAWSON: Period. MR. PONTE: Yes. Good. MR. LEFEBVRE: I amend my -- CHAIRMAN BARNETT: Okay. Yes. So that we're all on the same page basically, all you're responsible to do is pay the operational cost and realize that you will be monitored, period. MR. BERG: And maintain my property as part of my responsibilities. CHAIRMAN BARNETT: Okay. MR. PONTE: Yes. CHAIRMAN BARNETT: All right. That's the motion and it was second. All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) CHAIRMAN BARNETT: Okay. MR. BERG: Okay. Great. MR. OLNEY: Thank you. CHAIRMAN BARNETT: Thank you. MR. PONTE: Thank you. CHAIRMAN BARNETT: Case 1 and that is the Case No. 2006 -04, Russell and Kaydee Tuff, Collier County. (The oath was administered.) MS. GARCIA: Shirley Garcia, Code Enforcement Collier County, secretary to the board. First case CEB Case No. 2006 -04, Page 17 April 27, 2006 Collier County Board of County Commissioners versus Russell and Kaydee Tuff. I'd like to enter the county's Exhibit A into evidence. The violation of Sections 2 -- 10.02.06(B)(1)(A), 10.02.06(B)(1)(D), 10.02.06(B)(1)(D)(I) of County Ordinance 04 -41. The description of the violation is the prohibited conversion of a garage into a living space without the required Collier County building permit. The location and address where the violation exists: 2118 44 -- 44th Street Southwest. The name of the owner of the person in charge of the violation is Russell W. and Kaydee L. Tuff. The date of the violation first observed September 19th of 2005. The date and the owner of the person in charge given notice of violation was October 17th of 2005. Date on which violation is to be corrected or was to be corrected was November 20th of 2005. The date of the reinspection was November 29th of 2005. And the results of the reinspection was the violation still remained. CHAIRMAN BARNETT: I'd like to entertain a motion that we accept the packet from the county. MR. DEAN: I'll make the motion. MR. PONTE: Second. CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. CHAIRMAN BARNETT: (No response.) CHAIRMAN BARNETT: Any opposed? Okay. Yes, sir. MR. LUEDTKE: Good morning. For the record, Shawn April 27, 2006 Luedtke, Collier County Code Enforcement. On September 19th, 2005, I responded to the location of 2118 44th Street Southwest in Golden Gate City in reference to a complaint about a garage that had been converted into living space. Upon my arrival I observed what appeared to be a garage that had been enclosed by the replacement of garage doors with glass sliders. I researched the property on September 27th and found the current owners to be a Russell and Kaydee Tuff. During the research of the property I found the following building violations. Number 1, a 40 percent addition to a screened porch noted in 1979. The second one, an additional conversion of the screen -- of that screened porch in '85. Number 3, was a small conversion to the front of the house in 1979. And finally a conversion of the garage into storage area in 1979. All of these conversions were noted by the Collier County Property Appraiser's Office during routine site visits. I researched the permit history for the property and found the original building permit and C.O. Permit 66 -303 was approved on April 4th, 1966. And the C.O. was obtained on the 27th of July 1966. The house was C.O.'d as a single - family residence with a carport garage of 278 square feet. I researched the Collier County CD Plus System, property appraiser records, microfiche and the old county web system and was unable to find any permits for the four building additions and conversion situations I just previously read. Additionally, I was unable to locate any permits for the garage conversion from a -- from storage as it was noted in '79 to living space as it is now. I met with Supervisor Dennis Mitchell and discussed all five of the building violations. Due to the age of the -- (Voice on speaker system.) (Brief recess was taken to correct technical difficulties.) MR. LUEDTKE: Okay. I met with Supervisor Dennis Mitchell and we discussed all five of the building violations. Due to the age of April 27, 2006 most of the violations, we agreed only to address the possible health safety issue of the garage being converted into a living space without permits. On October 17th I made contact with Ms. Tuff at her place of employment and issued a notice of violation giving 30 days to come into compliance. I rechecked the site on November 29th and the violation remained. I called and left a message for Ms. Tuff to call me back with an update. On the 8th of December I granted an extension to Mr. and Ms. Tuff because they wanted more time to look for a resolution. On the 10th of January I met with Kaydee or happened to run into her at a Golden Gate community meeting where we both agreed to just process the case for a code enforcement hearing. On the 23th of February, the Code Enforcement Board heard -- Board heard this case and found the location to be in violation, but Mr. and Ms. Tuff were not present. In light of them not being present, they requested a rehearing. At that time the county didn't object for rescheduling. Since the last hearing, Supervisor Mitchell made contact via telephone and e -mail with the prior owners of the house, Mr. -- or, I'm sorry, Sharon Geese and her sister Kay Bell. Both Sharon and Kay advised us that the garage was a storage area when they bought it in 1988 with the garage still in place. They sold it in 1989 to Mr. and Ms. Tuff in that same condition. If the board would like additional information on the condition of the storage area garage when they sold it to Mr. and Ms. Tuff in 1989, I would need to request at this time that the board issue subpoenas to the prior owners per Ms. Bell's written request. But as of this date, the violation remains and no permits have been applied for. CHAIRMAN BARNETT: Okay. Okay. MS. TUFF: My name is Kaydee Tuff, a resident of Collier County. CHAIRMAN BARNETT: Kaydee, can you move the mic a little Page 20 April 27, 2006 bit. MS. TUFF: First of all, I would like to thank the board for giving me the opportunity to come before you again with a rehearing. I would also like to thank the board for their time. I too serve on boards and I know that this board must be one of the most challenging. And, certainly, when people come before you, it's not always a happy experience and I thank you for your time that you volunteer. Upon receiving the notice from Shawn on November 20th I began working through the maze of resolution regarding our case which was a garage conversion made to my home at 2118 44th Street Southwest 28 years ago and 10 years prior to my ownership. The home was built in 1966 and is located in Golden Gate City. After receiving the notice of violation, my first step was to call the permitting department. I was told that records were not available from ten years back. When I explained my problem, the woman said she was new and that I would need to speak with Gary Harrison. She was very helpful, but the more we talked, the more I realized how ridiculous it was going to be for me to resolve this problem. I faced a number of expensive requirements including having to pay for an engineer to inspect and draft the changes made to the home which was built in 1966. And hire a surveyor to conduct an elevation survey to show that my home is 18 inches above the crest of the road. The home is 40 years. It is definitely not 18 inches above the road and I'm not a surveyor and neither is the rest of my neighborhood. Because of that, I thought there must be some way to deal with this -- the problem. And so I started to research if, indeed, there had been a permit at some point for the work that was done. I talked with a lot of county employees, but they seemed unfamiliar with how I should proceed. So it became apparent I would need more time and I was granted an extension. I took a day from work to go down to the county complex and eventually was directed to the Property Appraiser's Office where I Page 21 April 27, 2006 finally secured documents that showed the conversion was made in 1978. The document showed a sketch of the layout of the home where the square footage was adjusted accordingly and the property taxes had been paid for that additional square footage since 1979. At this point I was very happy and relieved because I thought the county's biggest concern regarding the conversion pertained to not paying property taxes on the additional square footage. I was excited that the document proved the changes had been made with the county's knowledge and was confident to bring my case before this board. After talking with Shawn at the meeting that he mentioned and Michelle Arnold, I learned that the problem was not what was recorded but what was not recorded. Therefore, I am now being required to prove what cannot be proven, that being the lack of a permit for a 28- year -old garage conversion built ten years prior to my ownership or residency in Collier County. I would like to ask the board to consider some facts before penalizing me with substantial costs for something I had no control over. Number 1, County Ordinance 162.21(B) reads (as read): Prior to issuing a citation, a code enforcement officer shall provide notice to the person that the person has committed a violation of code ordinance. In 1978 when this took place, I was a college sophomore -- I'm giving away my age -- at Bemidji State University, Minnesota. I had no knowledge nor did I commit this alleged violation. The county through its Property Appraiser's Office, No. 2, recorded the conversion in 1978 and added it to the tax rolls in '79. The taxes have been paid on that additional space for 27 years. Number 3, during Tropical Storm Jerry, a 300 -year storm in 1995, no water entered the space in question. During Hurricane Wilma, a direct hit on Collier County in 2005, the home sustained no water damage or storm damage. Number 4, I was told by the building department that Page 22 April 27, 2006 no records or permits from '79 are available. Yet code enforcement is using the lack of a permit as proof that a permit was never secured. Number 5, the home is 40 years old. How will legal conforming state of the area in question be determined? Number 6, at the time of the garage conversion the community was overseen by a deed of restrictions that required residents to present all structural plans to the developer which was Avatar Properties, Incorporated. This is important because in an e -mail from Shawn he states (as read): During the time frame that permits were recorded -- during that time frame permits were recorded by who pulled the permit, not necessarily by the property owner. Shawn also states (as read): It is my opinion that there is the possibility a permit could have been obtained due to the poor recordkeeping back in 1979. I feel, in my opinion, that we do not proceed with this case. It's not fair to hold me guilty for the 28 -year perceived sins of a previous owner yet charged 21 years worth of taxes for the purportedly illegal space. I'm only asking for fair treatment. Even the Internal Revenue Service only goes back seven years if they have a discrepancy on someone's taxes. If the role of this board is to mediate, I hope I have presented my case and ask to be treated fairly. On Tuesday the Board of Collier County Commissioners recognized problems similar to my own associated with code enforcement cases where alleged violations go back more than two decades. I applaud their staff directive to establish a statute of limitations to address the problem. If the role of this board is to judge and punish, then I would ask for proof of wrongdoing. The county's evidence that the permit did not exist because no record was found is circumstantial and would not hold up in a court of law where a person is innocent until proven guilty, rather than guilty until proving themselves innocent. The full burden of proof is falling to me to prove a document existed. We do not know that it did. We do not know that it did not. We do know that Page 23 April 27, 2006 the work was meticulously recorded by the county and taxes were paid by the ensuing property owner. I feel that my record as a citizen and activist in my community shows good intent to abide by the laws and regulations of the county. I'm not asking for a partial treatment. I'm asking for fair treatment. I know I've stood at this podium many times asking for fairness and for -- for the right thing to be done for my community. Today I stand here just asking for myself, but I truly feel that in the decisions that you make today, others will be served when they come before you with cases that are so very old that really documentation would be difficult to establish. And I'm asking for each of you to do the right thing. Thank you very much. CHAIRMAN BARNETT: Thank you. Do any board members have any questions for Ms. Tuff? MS. ARNOLD: I do have a question for Shawn. Could you tell me what the tax rolls identified the area? MR. LUEDTKE: Yes. Identified it as a conversion to storage and that's what it was taxed at, not living space. I'd also like to elaborate on a permit issue that she brought up. We're not talking just one permit lost in the last 30 years. There's five permit situations on that property that should have had permits. And none of those permits we've been able to find. I was able to find the 1966 permit for the original house and the '66 C.O. for the house. So we are able to find permits. CHAIRMAN BARNETT: Shawn -- MR. LUEDTKE: Ma'am. CHAIRMAN BARNETT: -- only because I've lived in the county a long time and I know that our codes have changed over time MR. LUEDTKE: Yes, ma'am. CHAIRMAN BARNETT: -- because I can go back to -- there Page 24 April 27, 2006 were things that I remember didn't require permits as a child because I had horses, barns, example, they didn't have -- MR. LUEDTKE: Sure. CHAIRMAN BARNETT: -- a concrete floor or a solid floor and they were just on dirt did not require permits until recently. Now they require engineered drawings and permits. Do we have an old code to go back to say that the porches required permits back then -- MR. LUEDTKE: Yes, ma'am. CHAIRMAN BARNETT: -- or enclosures? MR. LUEDTKE: All the situations that we've read off were after -- were '79 and after. I have the '74 code which does cover all of those issues that would require permits. You can distribute that if you'd like to read it or put it on the overhead. CHAIRMAN BARNETT: I think that might be pertinent. MS. ARNOLD: This is a copy of the county code at the time which is the same as the land building code. MS. TUFF: I guess I would like to mention too that we are here today because of a garage conversion. I'm not familiar with nor prepared to address other issues than what I've been charged with. MR. LUEDTKE: And we haven't -- we're not charging her with anything but the garage conversion. I was just showing that as an example that there was five other permits. MS. ARNOLD: Correct. MR. TUFF: Ten years later. MS. TUFF: I also have a photo of the home when we purchased it and it's very clear that the door was there as to the comments that Shawn had from the previous owners, if you would like to see that. CHAIRMAN BARNETT: Does anybody else from the board have any questions? MR. PONTE: Well, just one clarification. Are we -- is the respondent being charged for whatever under the terms governing and stated in that 1974 code or is she being charged with violations based Page 25 April 27, 2006 on current code? MR. LUEDTKE: We issued a notice of violation under the current code in effect because we can't establish an exact time frame of when the conversion took place. MR. PONTE: The conversions were made in 1979 and 1985, I think. MR. LUEDTKE: Well, that -- MR. PONTE: Are all the codes that are in effect today, were they in effect in 1985? MR. LUEDTKE: That's correct. It went from the '79 code to the 81.102, I believe; right? Is that the number on that, the next one? MS. ARNOLD: Eighty -two something. I can't remember. MR. LUEDTKE: 80.22. MS. ARNOLD: It's 80.22. MS. TUFF: The only violation that we're here to discuss today is regarding the conversion of the garage which took place in '78. MR. LUEDTKE: And to just clarify on that, the extent of that conversion in '79 was just a conversion to storage, not living space. We don't know when it went from storage into living space. It was sometime, obviously, after '79 to this date. MS. TUFF: I guess -- and I'm unclear on that too. After talking to Gary Harrison there was some discrepancy that "living space" means somebody lives in it, sleeps in it. MR. LUEDTKE: Well, it's under open air. It's -- am I -- am I correct in establishing that if the garage is open, it's considered living space? It's not open to the full house. MS. ARNOLD: I'm not really sure. I'm not really sure what the question is, but could we see what the property appraiser's card shows. CHAIRMAN BARNETT: Michelle, I think the question is what determines whether it is considered living space versus storage space? MS. ARNOLD: Well, it's how it's used. If it's being used as an exterior, like a garage, you know, there's walls separating the garage Page 26 April 27, 2006 from the house, then it would be considered storage or a garage. If the walls have since been taken down and now is being used as a part of the open area within the living area, then it would be deemed living area. And my understanding from what Kaydee has told me is that the walls have now been taken down separating. That's no longer creating a separation between what was storage or a garage and now it's a part of the living area. CHAIRMAN BARNETT: Kaydee, did you and Mr. Tuff take down those walls? MS. TUFF: The home when we purchased it had the conversions that were discussed that were brought to us today. There was -- we have opened an area to it. Which, in my opinion, makes it even more storage because there is not the ability such as many other residents in Golden Gate do to hire that out as a living space. It has become a storage space in that by description to me from Mr. Harrison -- from Gary, that it was where if you put your table in there and maybe you eat in there, then that's not necessarily living space. If somebody has a bed in there and sleeps in there and it is used as -- as an overnight type thing, that that would constitute living space. MR. LUEDTKE: If I may, I have somebody -- a supervisor from the permitting department that can maybe elaborate if that would be okay. CHAIRMAN BARNETT: Should we swear her in, please. (The oath was administered.) MS. FINNEGAN: For the record, my name is Alamar Finnegan. In fact, that is not correct. What is considered nonliving is only storage in a garage. Anything that is as a playroom, if you're putting a couch, a table, that's considered living area. So I don't know where Mr. Harrison got that, but that's incorrect. MS. TUFF: I guess my question here today is, I'm prepared to discuss and to defend myself on what I was being charged with which was a conversion of the garage. I mean, if -- if -- let me clarify. If Page 27 April 27, 2006 removal of a wall, then I would like to, you know, ask that maybe I would be able to come and appear before you to discuss removal of a wall if I am charged with some sort of violation of removal of a wall which it is not removal of a wall. And I don't recall telling you that, Michelle, but if that's the case, it's an opening. CHAIRMAN BARNETT: An opening like a doorway or -- I'm trying to understand. MS. ARNOLD: Well, what -- what is -- what is being -- the Tuffs are being charged with is the use -- conversion of that space from garage storage to living space. CHAIRMAN BARNETT: Correct. MS. ARNOLD: And the supervisor just indicated or what made a distinction between what's storage, slash, garage and living space. The property appraiser's record indicated it's being taxed as a storage area. It's being used as a living area. And there is no permit that was obtained to convert that space from what was storage to living. And that's what they're being charged with today. MR. KRAENBRING: That's not what it says. MS. TUFF: And, once again, that permit was 1979. MR. KRAENBRING: It says prohibited conversion of a garage into an enclosed living area, not from a storage. It's the garage conversion that they're being charged with. MS. ARNOLD: Well, garage, slash -- I -- I said garage, slash, storage. MR. DEWITTE: And to be clear, it's not charging her with having done it. It's saying that it has been done to the property. MS. ARNOLD: Absolutely. Right. CHAIRMAN BARNETT: Do we have any other questions? MS. TUFF: I guess what I would like before a decision is made, what we would like to see is that the case either be dismissed or deferred. On Tuesday, as I said in my statement, the county commission recognizing this similar problem with other groups that 0 _ _ April 27, 2006 have code enforcement issues, made direction to county staff to pursue a statute of limitations. If our case could be deferred, we would be able to fall under that and not take up your time with this. MS. ARNOLD: Not knowing what the board's going to decide, we've had issues like this come up before. I don't -- I don't think it's correct to hold off on a decision pending some decision that may or may not affect this particular property. CHAIRMAN BARNETT: I had one question for Kaydee. You stated something 162. What was the subsection 02 I think it was. Could you read that back to me again, please, because I have copies of Statute 162 also. MS. TUFF: Statute 162.21, enforcement of county or municipal codes or ordinances, colon, penalties. Under Section B (as read): Prior to issuing a citation, a code enforcement officer shall provide notice to the person that the person has committed a violation of code ordinance. What I'm saying is I did not commit a violation of code ordinance. CHAIRMAN BARNETT: That goes back -- MS. TUFF: It was done in 1979 if, indeed, it was done at all. If, indeed, the person who did the work did pull a permit. It could have been pulled not by the homeowner, but by the person who did the work. Shawn said that in his e -mail. CHAIRMAN BARNETT: Shawn; is that correct? MR. LUEDTKE: I did an e -mail. I was -- my point was I can't say for 100 percent certainty that no permit was ever pulled. I can't say that for a 2006 issue. But we were able to find the 1966 permit. And we're talking, you know, five additional permits after that at a span, you know, 20 years earlier than that permit and we weren't able to find any. So I think with the preponderance of all the evidence and the research we've done, we've not able to prove that not one permit's been pulled, let alone the five. And, like I said, we're only dealing Page 29 April 27, 2006 with the one issue here. MS. TUFF: Right. And I'm -- I don't understand why you continue to bring that up. Because really those other -- those other issues are not what we're here to talk about. MR. LUEDTKE: Well, it has bearing because we're talking -- you're talking that the county can't keep records and that there's an issue with permits. And I was able to find a 1966 permit and -- and now you're saying -- you know, I'm saying there's five, six other -- five other permits in the late '70s, early '80s and maybe even into the '90s and we aren't able to find those permits. CHAIRMAN BARNETT: Did we look under Avatar? MR. LUEDTKE: Avatar? CHAIRMAN BARNETT: Yeah. Because you had stated that it possibly was underneath a different entity in your e -mail, if I'm understanding it correctly. I'm trying to -- MS. ARNOLD: Once the property's owned by an individual, that's who's authorized to -- I mean, it would be under the name of the property owner. CHAIRMAN BARNETT: At that time? MS. ARNOLD: Right. It wouldn't -- I mean, if the contractor, Avatar, did it for the subsequent property owner then -- or the previous property owner, then their name would be listed as well as a contractor, but I'm not sure that Avatar was doing remodels for some of these properties after they've already developed it and sold it. MS. TUFF: Golden Gate Contracting was the original. I would also like to say that this is kind of as an example of frustration of the people who find themselves in my situation. I sent an e -mail on December 15th to Michelle and to Joe Schmitt and to Shawn. I did not receive one reply to that e -mail. It read (as read): I called the permitting and records only to go -- and their records only go back ten years. So I went to the Property Appraiser's Office and got some records on my home. The more I looked at the Page 30 April 27, 2006 information the more I'm convinced that the previous homeowners did bring the garage conversion to the county in 1979 as well as the screen porch on the front of the home. Drawings showed the changes and the figures have been recalculated for space. If the powers that -- if the powers that be decide this isn't good enough, I'm willing to take my case to the code board. The facts are the county received all the information from the homeowner regarding the conversion in 1979 and amended their appraisal records to reflect it. If permitting doesn't have records that far back that those permits were issued, that really isn't my fault. It means one of three things. One, the county didn't require permits for such conversions at the time. Two, the county approved the changes and issued a permit, but now has no record of the permit. Three, the county approved the changes and told the homeowner they didn't need a permit. We have already learned this was the case from another homeowner who is now in a nursing home. So I wasn't able to bring him in. I've spent considerable time on this and would like to be done with it. Most county people I talked to said they wish the county would grandfather cases like this where the work goes back so far there are no records on it. I believe there was a permit or at least county approval for the conversion. Thanks for your assistance, Kaydee Tuff. Now, although I did not receive a reply back from that, I found out that the e -mail did go a lot of different directions. Joe Schmitt's reply to Michelle was (as read): I have to agree with Kaydee on this one. The burden of proof is on the government. And if we do not have the confidence in our records past the mid 1980s and we don't, I do not think we can stand on the position there was never a permit for this work. Michelle wrote back (as read): The burden is on us, but we do have this -- if we do have this -- but we do have this information. No. Page 31 April 27, 2006 I'm sorry. This is the attorney, Steve Griffin. (As read): The burden is on us, but we do have this information -- do we have this information, excuse me. If it's that convincing, we should have it. Also, isn't there at least one more possibility the county didn't approve the changes and didn't issue a permit or does the amendment of the appraisal records automatically mean a permit was approved? Michelle wrote back (as read): County has lots of records beyond ten years and it's more a matter of folks not wanting to look for it. I will have to check with my staff to see that information -- what information they do have. And if this is a weak case, we will let it go. But if we have a strong evidence, we will probably proceed with enforcement. And she wrote to Shawn (as read): Please get with me so we can review the plans and other information you have. We will need to evaluate the merits of this case. Actually, that was Dennis Mitchell. Then Shawn's response to Dennis, I guess I've already read for you. And he's pretty much said the same thing of how he did the research with CD Plus, the property card and the old permit book. But his comments at that time was that he concluded the conversion was done in '79 per the property appraiser's notes. (As read): During that time frame, the permits were recorded by who pulled the permit, not necessarily by the property owner. It's my opinion that there is a possibility a permit could have been obtained due to poor recordkeeping back in 1979. It's still my opinion we do not proceed with this case. Then Dennis wrote to Shawn. (As read): I think that you should speak -- I'm sorry, Michelle. I think you should speak with Dennis about this and the final determination whether or not we have sufficient evidence to proceed will be made by him. At some point several county pretty high up the staff had questions on the merits of this case, but nobody replied to my e -mail to let me know any of that. Page 32 April 27, 2006 MS. ARNOLD: Can I speak to that and do I need to be sworn? CHAIRMAN BARNETT: I guess because you are actually testifying in a case we will need to swear you in. (The oath was administered.) MS. ARNOLD: For the record, Michelle Arnold. I didn't reply to Ms. Tuff or Mr. Tuff, but I did sit down and spend time reviewing the matter with them and explaining our side of the case with them. So, you know, I think that's a pretty unfair representation that nobody got back with the Tuffs. And it was at that meeting that Kaydee indicated to me that there was no longer a separation between the, whatever you want to call it, storage garage and the living space. And that's the only way I would know because I've never been in the structure. And she had indicated today that that is -- whether or not it's an entire wall that's been removed or an opening, a small opening is irrelevant. The matter here today is whether or not a permit was done, was obtained for converting that from storage, slash, garage into living space. And I think Kaydee has indicated today that she removed that wall or a section thereof. That also requires a permit. And if she obtained the house after '85, then she should have obtained a permit for that conversion in '85. You know, I don't want the Tuffs to go through any more financial burden than anybody else that comes before this board. I -- I sat with the Tuffs. I explained to them. I gave them names of individuals that they could contact that have helped others in the past with similar cases such as this where they were able to get them a permit for the conversion that was made. You know, I don't think that this is new territory that we're on. This is something that we've already handled matters on. What the board needs to look at is whether or not there was a conversion from one use to another, whether or not the county has proved that there is no permits. And just because folks have said there Page 33 April 27, 2006 was poor recordkeeping, that doesn't mean that there was a permit and it's no -- no longer gone. We have to show -- look at the evidence that is before you and -- and see whether or not there was -- CHAIRMAN BARNETT: I have one -- MS. ARNOLD: -- adequate evidence presented for proof in either case. CHAIRMAN BARNETT: -- one question because it goes back to the tax assessor's office having noted this change from -- MR. LUEDTKE: The property appraiser? CHAIRMAN BARNETT: -- the property appraiser? MS. ARNOLD: They've noted it to storage. CHAIRMAN BARNETT: To storage. How did they obtain that information? Because they also noted the other items that you listed that haven't been charged. MR. LUEDTKE: They -- at that -- that period of time they usually did every two to three to four years depending on the location. They did regular drive -bys on locations to update the property for assessment purposes and taxing purposes. So it was -- all this stuff was noted during one of their site visits to that location. CHAIRMAN BARNETT: So either done by that or was it done through permitting? MR. LUEDTKE: It was not done by permitting because they record the permits. Especially in the '70s they recorded the permit numbers right on the property card where they did the '66 permit I found. MR. TUFF: He just made that up, Kaydee. MS. ARNOLD: The Property Appraiser's Office either obtained information from the building department through permit information and then they note it on the property card when there was a permit number or they did regular drive -bys and they update their records. CHAIRMAN BARNETT: Do we have any other questions from the board? Because I'm gonna -- if we don't, I'm going to close the Page 34 April 27, 2006 public hearing and I don't want to go back to the individuals if there are questions. MS. TUFF: And I would just like to state for the record that we've been told by numerous people that have been with the county for a long time that the records for that particular time when this conversion was done are very poor. Some of them have been moved several times. We are told that animals -- there were some animals on some occasions. Some of the records had to be thrown away because they were chewed beyond readability, this sort of thing. And so it would be difficult to say with any true certainty if, indeed, a permit existed. CHAIRMAN BARNETT: Okay. Thank you. At this time I'm going to close the public hearing. Open for discussion amongst the board. MR. DEAN: I'd like to ask one question. Is like you -- a lot of people have a three- bedroom ranch and a one -car attached garage. And once you change it to a sliding patio door and the garage door is gone, you've made that part of the home. And once you open up that wall, you certainly have made it part of the home, whatever you use it for. So. I mean, you increased that square footage. And I know an appraiser, they don't just do drive -bys. When the home was built, they had a plan that showed the size of the home and that's how they base their appraisal. Of course every year they update it. So I can see why the appraiser drives by. He's not going to go inside and see what it is. He cares about the square footage. So to me and one of the things that bothered me is, like, the health issue. You convert a garage and make it part of your home, you are talking about where cars have been and the oil and gas. I mean, there's a lot of things that have to be checked out. So I think that's part of the health issue here and that would be one of my main concerns. MR. DEWITTE: I agree. And not to mention whether adequate Page 35 April 27, 2006 ventilation was put in, you know, through the HVAC system, are there returns, is there, you know, proper airflow. All the things that happen in the normal permitting process. That's what the code is for. It's not to fine people unnecessarily or to slap people around. It's for making sure that changes to the property are done in a way that complies with the health code, the safety code, with all the issues that the codes are there to address. MS. TUFF: I believe those things were addressed. MR. DEWITTE: The public hearing is closed. CHAIRMAN BARNETT: Kaydee, sorry. The public meeting's closed so... MS. TUFF: So if there are any questions for me, it's all done? CHAIRMAN BARNETT: Yeah. We have to discuss it amongst ourselves. The only problem I'm having is because I think we all are aware that there are records that have been misplaced, lost, destroyed as well as those that have been found and keep being found, you know, with more and more research. I'm -- I'm just not sure because this is so old. But, then again, Kaydee admitted that they opened up a section of the wall. I don't know if maybe if we're thinking about our -- our charge that we just ask them to put that wall back in. I don't know. MR. DEWITTE: That's -- first of all, we have to find out whether there's a violation or not. CHAIRMAN BARNETT: Right. MR. DEWITTE: We can get to what we want to do about it in a second, but -- CHAIRMAN BARNETT: I'm just trying to throw some thoughts out there because in finding whether a violation exists, looking at the age, has the county proved one way or the other? MR. PONTE: I don't think so. I think we've got a lot of missing evidence. And that if the old saw is true that you're innocent until proven guilty, I don't think that the county has proven a guilt situation Page 36 April 27, 2006 here. There's too much missing paper. MR. DEWITTE: And -- well, but you can't approve -- you can't ever prove that something doesn't exist. That's an impossible thing. MR. PONTE: That's right. But then can you use it as evidence and say I assume it does? MR. DEWITTE: That would be the basis of most of our cases so... MR. PONTE: You know, it just doesn't -- it doesn't wash. I think that the county has not proven its case here. MR. DEAN: Madam Chairman? CHAIRMAN BARNETT: Yes. MR. DEAN: Let me mention one more thing. I think that the reason we have a code enforcement is to protect the community. And we have a lot of people that, say, somebody sells their home, like the Tuffs, if they sell their home to somebody else and somebody else is still in violation. Maybe there's a problem here you don't know about it. I'm not saying their home is. I'm saying just the county as a whole. That's why you have code enforcement. There are some violations. Yeah. We can't prove everything, but we certainly can protect the safety of our citizens and we're not doing that if we worry about a piece of paper still. I think, get the permit. Get it right. And move on. I mean, to me that's a simple thing to do. Maybe it's not that simple. I don't know, but to me if you need a permit, get the permit. And while you're applying for that permit, it's going to show that there is something here that's of a serious nature or not. That's what we're here for, to protect the public. I'm sure that's what code enforcement does every day. MR. DEWITTE: And I think we do have enough evidence to support and I will motion -- I motion that there is a violation that exists. CHAIRMAN BARNETT: Do I have a second? MR. DEAN: Second. Page 37 April 27, 2006 CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. LEFEBVRE: Aye. MR. DEAN: Aye. CHAIRMAN BARNETT: Opposed? MR. KRAENBRING: Aye. MR. PONTE: Aye. MR. MORGAN: Aye. CHAIRMAN BARNETT: Aye. Hand vote, please, in favor. (Indicating.) MR. DEWITTE: In favor. CHAIRMAN BARNETT: Opposed? (Indicating.) CHAIRMAN BARNETT: It doesn't pass your motion. MR. DEWITTE: So if no violation exists, what do we do? MS. ARNOLD: You have to do another motion. CHAIRMAN BARNETT: Have to do another motion? MR. DEWITTE: So I'm to understand that the rest of the board members do not believe that there has been unpermitted work done to the home, is that correct, if you're voting that a violation doesn't exist? CHAIRMAN BARNETT: I'm not -- MR. DEWITTE: It's not an opinion of what should happen. It's not an opinion of sympathy. It's just an opinion of does something -- has something changed to the house without being permitted. You don't believe there's sufficient evidence to believe that that's happened? MR. KRAENBRING: I don't think there's sufficient evidence to prove that a permit was not obtained at some point. I think the defendant has openly defended their case. And I don't believe that the county has presented a strong enough case to indicate that a permit was not obtained. Page 38 April 27, 2006 MR. DEWITTE: I think you've moved on to a matter of sympathy as opposed -- excuse me for saying that -- but as opposed to a matter of fact. And I think we've heard testimony that other work has been done to the house that would have required permitting that wasn't done. MR. KRAENBRING: That's not what -- we're here to address this one issue. MR. DEWITTE: But it's relevant. MR. KRAENBRING: It's not a -- it's not a matter of sympathy. It's a matter of whether they've proven their case or not. MR. DEWITTE: But -- but the change that we've heard I think was -- is relevant to the conversion. It's not to a different part of the house. It's relevant to whether that's being used as a living space or not. MR. KRAENBRING: That's your opinion. MR. DEWITTE: We've heard testimony. CHAIRMAN BARNETT: Okay. Still need a motion. MR. DEWITTE: I think we should if we want to be lenient and help the matter we should address that in resolution. But I hope everybody's in good conscious saying whether they agree or disagree with this violation. MR. PONTE: I think we just voted. MR. DEWITTE: Okay. MR. PONTE: It was not a violation. MR. DEWITTE: Then what is the next motion to be made? MR. PONTE: Yeah. What's the next motion? CHAIRMAN BARNETT: I guess we have to decide -- we -- we voted that we didn't accept that there was a violation, correct, Jean? MS. RAWSON: If you voted that there's no violation, you're done. CHAIRMAN BARNETT: We're done, then? Okay. MS. RAWSON: You can't -- Page 39 April 27, 2006 MR. KRAENBRING: He made a motion that there is a violation. I make a motion that in Case 2006 -04 that a violation does not exist. MR. DEWITTE: The proper way to proceed, aren't we just saying the same thing we just said? MS. RAWSON: You've already said it. You know, unless somebody's going to change their vote -- MR. KRAENBRING: Would it be in order to dismiss the case? CHAIRMAN BARNETT: Dismiss the case, then? I'm asking for Jean's -- MS. RAWSON: If you voted that there's no violation, you can't move on to the next stage which is what to do about the violation. CHAIRMAN BARNETT: Actually -- MS. RAWSON: So if you vote that there's no violation, you know, the case is over. MR. KRAENBRING: Just wanted to make sure that you're acting on that motion. MS. ARNOLD: Wasn't there just one motion that the violation exists and it failed? Did they do another motion? CHAIRMAN BARNETT: No, we did not. MS. ARNOLD: They didn't do another motion. MS. RAWSON: Okay. Well, you're asking for a motion in the negative. Okay. MS. ARNOLD: Correct. That's what I was asking. MR. KRAENBRING: That's what I was -- MS. RAWSON: Richard, why don't you go ahead and do that and let's see if the vote's different. MR. KRAENBRING: In the -- in the CEB Case 2006 -04, I make a motion that a violation does not exist. CHAIRMAN BARNETT: Do I have a second? MR. PONTE: I will second. CHAIRMAN BARNETT: All those in favor? Page 40 Apri127, 2006 MR. KRAENBRING: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. CHAIRMAN BARNETT: Aye. Any opposed? MR. DEWITTE: Aye. MR. LEFEBVRE: Aye. MR. DEAN: Aye. CHAIRMAN BARNETT: 4 -3, I think. Show of hands. Those in favor? (Indicating.) CHAIRMAN BARNETT: Those opposed? (Indicating.) CHAIRMAN BARNETT: There was no violation. Case dismissed. MR. KELLY: Madam Chair, before we move on, I have one question. CHAIRMAN BARNETT: Sure. MR. KELLY: What happens if the Tuffs decide to sell that home in the -- THE COURT REPORTER: Would you speak up, please. MR. KELLY: I'm sorry. What happens if the Tuffs sell the house and a code enforcement investigator's called out. Is there a chance that a case will be brought against the new owner in front of this board? MS. ARNOLD: No. There's been a decision made that there's no violation. MR. KELLY: Okay. CHAIRMAN BARNETT: Okay. Do you need a break? THE COURT REPORTER: (Indicating negatively.) CHAIRMAN BARNETT: The next case would be Case No. 2006 -13, the Loyds. Or did we -- we continued that one; correct? So we're up to 2006 -16, Jerry and Kimberlea Blocker versus Page 41 April 27, 2006 Collier County. MR. DEAN: And we're going to combine the cases? CHAIRMAN BARNETT: And we're going to combine the cases, 2006 -16, 2006 -17 and 2006 -18; is that correct, Michelle? MS. ARNOLD: Correct. MS. GARCIA: At this time Shirley Garcia, Collier County Code Enforcement, secretary to the board. I'd like to enter into the County's Exhibit A, CEB Case Nos. 2006 -169 2006 -17 and 2006 -18, Collier County Board of County Commissioners versus Jerry B. and Kimberlea Blocker. The violation of Ordinances 04 -41 as amended, Section 1.04.00, Subsections 1.04.01 PAR's A, B and C. And 1.04.05, Sections 1.05.00 Subsections 1.05.01 PAR -F, Section 2.02.00, Subsections 2.02.01 PAR -D. And 2.02.03, Section 2.03.00, Subsection 2.03.03 PAR -A. Section 2.04.00, Subsection 2.04.03, page LDC 2:113, Section 2.05.00, Subsection 2.05.01 PAR -A, Section 8.08.00, PARs B and D, Section 9.03.00, Subsection 9.03.01, PAR -D. Also October 1970 zoning regulations, Immokalee area Article IV, Sections 4.1, 4.2, 4.3 and 4.4, Article VII, Sections 7.1 and 7.9. And Article X, Section 10.11, I through C -3 PAR -2. I believe for all three 2006 -16, 17 and 18, the violation of ordinances are concurrent. The differences are the locations. Description of violation is unlawful and inappropriate development and residential use of industrial -zoned property -- property previously zoned I -C -3 without prior Collier County Zoning and Planning review, without an approval Site Development Plan, SDP, without valid Collier County building permits, perpetuating a use inconsistent with a Collier County Growth Management Plan, Immokalee Master Plan GMP. The location of the addresses where the violation exists are Lot 8, Block 48, New Market Subdivision, ID No. Folio No. 63864720000, and -- and Folio No. 63 864680001. The second location on 2006 -17 Page 42 April 27, 2006 is Lots 6 and 7, Block 48, New Market Subdivision, Collier County record. The address is 1101 Alachua Street in Immokalee, Shells Trailer Park. CHAIRMAN BARNETT: Do I have a motion to accept Collier County -- you're not finished? MS. GARCIA: I have one more Folio for 2006 -17. CHAIRMAN BARNETT: Sorry. MS. GARCIA: Or 2006 -18. CHAIRMAN BARNETT: Okay. MS. GARCIA: It's about 100 pages long. And on Folio -- the location of violation is 2006 -18 is Folio No. 63864760002, Lots 9 and 10, Block 48, New Market Subdivision. The name and address of the person of violation is Jerry Blocker and Kimberlea Blocker. The date -- the violation first observed was December 16th of 2005. The date and person in charge when the notice of violation was given is January 23rd, 2006. And the date on which the violation was to be corrected was April 24th of 2006. The date of the reinspection was March 13th, 2006. And the results of the reinspection was that the violation still remained and the owner expressed an unwillingness to comply via our personal phone conversation. CHAIRMAN BARNETT: Okay. Now, do I have a motion to accept the county's packets in Cases 2006 -16, 2006 -17 and 2006 -18? MR. PONTE: I move that the county's package be accepted. MR. DEWITTE: I'll second. CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. Page 43 April 27, 2006 MR. DEAN: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) CHAIRMAN BARNETT: May I have the two individuals sworn in, please. (The oath was administered.) MR. MAZZONE: Good morning. For the record, my name is Dennis Mazzone. I'm an investigator with the Collier County Code Enforcement. To begin the broad scope of this -- the time that took place to investigate this case along with the other cases that were part of the initiative warrants mention of a lot of history behind these cases. Today's case is one of 70 -plus case studies that resulted from a 1999 survey taken of existing mobile home parks that were identified in the Immokalee housing initiative project. This project sought to upgrade existing mobile home parks by providing incentives to the respective owners. Collier County Code Enforcement personnel joined with our planning staff in an effort to identify and review all mobile home parks in the Immokalee area. This project sought to upgrade the existing parks and -- I said that previously. I'm sorry. The park owners were given an August 2003 deadline to submit a site improvement plan proposal to Collier County Planning personnel. Collier County staff provided public and one -on -one type meeting sessions between all of the Immokalee mobile home park owners. On January 7th, 2002, or nine months prior to the time that the Blockers acquired the properties in question, Mr. Kenneth Blocker and Mr. Jerry Blocker attended one of these meetings at which a site improvement plan review standards for future use of mobile home parks in their possession was explained in detail. These same standards that were explained to the Blockers would also apply to all the other mobile home parks that were located as part of this initiative project and would be explained to other park owners in the same W-. i EA t April 27, 2006 manner. Having full knowledge of the standards by having been at this meeting with our -- our personnel that explained it to the Blockers, the Blockers chose to acquire the properties in question in October of 2002. The previous owners are Mr. and Ms. Collins. And they received legal notice for these very same violations in October 2001. The notice that they received was from a prior investigator -- investigator. Her name -- I'm going to spell her name to you. Evelyn Claudio, C- 1- a- u- d -i -o. I'm going to put the notice that she served to the Blockers or to the Collins -- I'm sorry -- on the overhead. Let me just say before I do that, the picture that's on the viewer now shows the location of this property. It's the highlighted area around the property. I'm going to point to it. It's surrounded by industrial uses, one being an airport. This -- the property that the pen is pointing to is a -- a storage area for chemicals that's currently active and fertilizers used for farming purposes. And all the surrounding properties around it are either packing houses or something of that nature of an industrial use. This next property is a junkyard use. A use that we would allow in an industrial area. I'm going to show you a larger version of that. In this -- in this area these are the -- that is the mobile home area, the three parcels in question. And then immediately west of these mobile homes is currently an active junkyard facility. The -- the junkyard use creates the situation that at best is very poor and perhaps not that safe of a use right next to occupied dwellings. Some of the dwellings are, in fact, located in such a manner that they extend over and onto the junkyard easement area. Much of the debris could be if you opened your bedroom window from some of these units, because they don't meet their setback, could be touched by a child or a person if you were just to open up your window. It's -- it's piled in such a manner where we have a case -- we opened a case on the -- on this particular property, but it's been -- it's been let go for a Page 45 April 27, 2006 while in that it's not been brought to our attention. We have a difficult time monitoring all the industrial uses in the county. And we -- we have a staff that only allows us to -- to look at cases as they're reported or if we are pre -- active on these cases. It takes quite a bit of time to get them into compliance. This particular yard is currently under our investigation. We're trying to correct some of the situation. There are thousands of cars piled. At this point they're now piled one on top of another immediately behind these mobile homes. And thousands of tires piled in a -- in a -- in a way where you can actually touch them if you stood at your backyard and in some cases by opening the window. I'm going to point to one of the mobile homes that is located in a manner where it's encroaching. That particular mobile home is -- is looking at -- is looking at this as their -- their backyard. This is -- these are just but a few of the hundreds of cars that align the back property line to this property. And the fact that we have an industrial use to the rear of this -- this is also industrial -zoned property. Of course, that's why we're here. But the fact that these are not uses what you would expect to be in harmony with dwelling use of any land presents some sort of a problem, of course, to the occupants. The people that occupy these mobile homes, many of them are migrant workers. They have children. They have families. They don't have a place where they can enjoy the freedom of playing and enjoying their -- a yard area where they can relax after work. They're faced with neighbors that are all of an industrial type nature. They have to walk to their shop -- shopping or drive to shopping which isn't very far, but it's along New Market Road. And the area surrounding this particular subdivision was never developed for -- never developed in a manner that we, the county, would -- would allow for pleasant residential use. I'm going to put on the screen Ms. Claudio -- Claudio's notice. This notice was served on the 10th day of November 2001. And Code Page 46 April 27, 2006 Enforcement Investigator -- Investigator Claudio informed the -- the Collins of the fact that they -- that their property was in violation. And the Collins came to Ms. Claudio and presented her with information that -- to lead Ms. Claudio to believe that they were going to pursue a site improvement plan to rectify this problem to become part of the plan of making these residences legal by our standards or attempting to. Part of that procedure would have required the Collins to rezone this property so that they could then be considered for occupying it with dwellings if -- if the rezone went through. And if they were considered for that, our planning department would have to then make some judgments as to how many mobile homes we would allow per parcel. These parcels are not large. Together, two of them that are joined together measure 200 by 200. The one parcel that is -- stands alone is 100 by 200. And then there's a third parcel that also measures 200 by 200. Our land density, the use of these properties for residential dwelling, is something other than what's represented on the property today. And our planning people would have to work with, now currently with the Blockers, but would have had to work with the Collins back then to make this property ready for dwelling occupancy if we accepted a rezone on this property. Without ever having reached the review process for their -- their site development plan, the Collins were proposing they were going to present to Collier County, they sold this property to the Blockers. According to Investigator -- Investigator Claudio according to her notes, that is, the Blockers met with her in January 2003 to discuss the land -use violations in question. At this meeting -- I'm sorry. This is a meeting between the Blockers. After they sold the property to the Blockers, according to the investigator's notes, the Blockers met with Ms. Claudio in 2003 to discuss the land -use violations in question today. At that meeting Mr. Jerry Blocker stated he intended to contact our planning department in Page 47 April 27, 2006 March of 2003 so as to arrange for a preapplication meeting so that they, the Blockers, could then discuss the feasibility of further developing this land and utilizing it for the residential use that's on it today rather than it being reverted back to industrial use as it -- as we -- what we think is lawful. In researching the Collier County Zoning District history, we confirmed that Collier County in development standards -- land development standards and land -use requirements never allowed for a single family or mobile home dwelling use of this industrial -zoned property in question. I have a -- a zoning map which I want to enter as an exhibit and it's dated February 3rd, 1970. It's a certified map that I acquired from our archives on the fourth floor of this building. And the map shows an industrial zoning designation on these parcels. If I may show you. At this time I'd like to introduce this as an exhibit. I believe it would be Exhibit B. CHAIRMAN BARNETT: I need to hear -- we'll accept this exhibit. MR. LEFEBVRE: I make a motion we accept Exhibit B from Collier County. MR. PONTE: Second. CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) MS. ARNOLD: Ms. Chairman, can I ask that all of the items April 27, 2006 that are going to be here forth put on the visualizer be entered in as one exhibit of the county's after instead of each separately? CHAIRMAN BARNETT: You want to put them all under as Exhibit B? MS. ARNOLD: Yeah. After he's all done. CHAIRMAN BARNETT: Okay. MR. MAZZONE: Along with this -- this zoning map, I have a -- I've made copies of the 1965 requirements for land development in Collier County. This information is pretty pertinent to this case. I have -- I've made ample copies so that everybody could have one, if I may. CHAIRMAN BARNETT: Thank you. MR. MAZZONE: Please, if we -- if we look at this document, we can see that this is -- these are the Collier County regulations for zoning. If we turn to page 1 under Section 1, Definitions, and turn then just to see that that is definitions. Turn then to page 3 which would be the next page, you could say that this was a brochure. And when copying it two pages appear on one sheet. So page 3 the definition for "dwelling" is and I'll read it. (As read): A house, hotel, apartment building or other building used primarily as a place of abode except that the word "dwelling" shall not include trailer camps. If we turn to page 8, the definition of a trailer park (as read): Any lot or plot of ground on which accommodations are provided for two or more trailers or house cars used by transients as living or sleeping quarters. And on that same page if we look at Section 2 or, actually, it's page 9, Section 2, District Boundaries. If we look at the district boundaries and we look under the classifications for -- for residential dwelling and we go through these pages and read anything from R1 right on through to R3 residential multi - family residential district, never is a mobile home type dwelling mentioned as an allowed use. In fact, if we just turn one page to 10 for single- family district Page 49 April 27, 2006 regulations No. 5, it states (as read): No tents for living purposes, house cars or mobile homes of any type shall be permitted. This statement rings true and is -- is duplicated throughout all of these residential uses according to this 1965 ordinance. Until we get to the R4 -A and R4 which are mobile home districts. And where that is mentioned that would be page 27. And on page 27, paragraph 8R4, zone shall not be permitted adjacent to any zone higher than R3. Minimum size of R4 area shall be ten acres. Under Section 6, Use Regulations, No. 3, this area is not to be used as a -- as a commercial trailer park. If we look over at page 26 which is right next to this 27, No. 5, under Area of Regulations reads (as read): Only one mobile and/or trailer home shall be permitted on a lot. These lots consist of more than one mobile home. For instance, Lots 6 and 7 is comprised of 12 dwellings total. Lot 8 is comprised of ten dwellings. And lot -- Lots 9 and 10 are comprised of six dwellings. If this were permitted as a -- as a labor camp in Immokalee, which it is, the permit requirements by the department that -- that issues those permits are such that they don't address Collier County land -use regulations as to setbacks and placement or density. They don't even look at the zoning designation. They simply are permitting the migrant activity and that use for migrants to occupy whatever dwelling might be there. They're not looking into the history or the prescribed use of that land be it industrial or commercial or residential. They're looking at the type of structure that they're permitting and the -- the health - related aspects to that structure, that it be sound, it be safe to their standards, not necessarily to the county's standards. Also the use of the inappropriate residential dwelling use of the properties in question have been continuously assessed as -- as a lesser use because it is not being -- the space is not being occupied for industrial use. It's being assessed for a lesser use and has been throughout the years. Industrial -- as a result, these properties have Page 50 Apri127, 2006 received a tax advantage of a 50 percent minus factor or an $0.88 per square foot rate in comparison to a standard $1.75 per square foot rate assessed on industrial property. This results in about a $550 savings per year per parcel that's being taxed. On page 29 of these regulations, Item No. 8 reads (as read): R4A zone shall not be permitted adjacent to any zone higher than R3. Minimum size of R4A area shall be ten acres; however, where combined with R4, the total area of both must not exceed ten acres. And it goes into speaking of lot size. It's -- it's pretty specific that even back in the '60s, Collier County had a plan as to where they wanted these types of subdivisions or communities for mobile home occupancy to be located. And it was not in an industrial district. That doesn't mean that Collier County back in the '60s or in the '70s didn't issue permits for activities on these properties that might have been relative to some sort of dwelling use. We -- in Collier County even today, of course, we -- we allow for caretaker dwelling use in -- in our industrial areas. Historically in Immokalee we've -- we've grown, of course, but years past we probably had two people, perhaps -- I know the Blockers -- Blockers can speak to this better than I can, but I do recall being one of two people under -- in our employment with code enforcement having been stationed up in Immokalee back in the '80s. We have progressed since then. We were able to address these -- these problems as they come up. The reason for the permit process certainly is so that -- but part of it is so that we are able to keep track of what kind of structures we have on these properties and how they've been located as far as setbacks and for safety issues and fire- related issues. And, therefore, if they are legally placed there, we can then issue future permits. We could issue one today without going through a zone change in order to make that legal issuance of a permit. If somebody had to upgrade these mobile homes, which if they Page 51 April 27, 2006 were placed there back in the '60s or the '70s, they certainly have a life expectancy. We don't expect a -- a metal structure -- if you parked your Buick out there, we wouldn't expect it to be out there through all these hurricanes and exposed to the elements and have no wear on it. Same thing goes for a mobile home or any residence. If properly permitted they can then come into upgrade these facilities with Collier County's blessing and we have a way of making the property safe for our residents. In these cases without going through the proper channels and without making this so that this -- a use that isn't allowed on this property, we cannot legally issue a permit. If a permit is issued, it would be issued in error. We do have clauses in our LDC that address permits being issued in error but, nevertheless, we don't like to do that. It only adds to the problem. And in this case these properties have been occupied for years. The -- our Growth Management Plan is not one that should be taken lightly. It's one that addresses a good healthy growth. And -- and we would hope that our citizens would participate in it. Those that are housing other people as tenants would acknowledge the fact that we want to make this housing better for them, not status quo as it was back in the '50s, '60s and '70s, but we want to be more advanced than that. But we have something more to offer the people visiting Naples as laborers or people that want to live here. We have a responsibility to them. And that's why we're here with this case. If we go to page 44, Section 14, Enforcement Remedies, it states that (as read): These violations shall be administered by the zoning director who shall issue permits and collect permit fees. Request for permits shall be accompanied by a statement of location on lot and general plan showing general appearances, proposed structures. There's a reason for that. We -- we -- we probably ask for a lot more than we got throughout the years, but there was a reason for asking for this information. And that was for the very same reasons I just Page 52 April 27, 2006 explained. We had a -- we had a plan in mind back then. We have a plan in mind now. We're not here to penalize anyone, but we certainly want it so that we take the initiative project and we recognize it for what its worth is. And we're trying to correct whatever situations haven't been addressed in the past by now bringing these code cases before you, because we must. The time that was allowed to the various park owners to bring these cases before planning has lapsed. There was a time when public hearings and sessions were held for all the property owners and they were expected to attend these meetings with an open mind and hopefully participate as a community. We've gone past that time. The only way we can now address these matters is by bringing these cases to the board and you deliberating on them and then we can proceed by going forth with the information and going for a zone change or going for a site improvement plan if -- if that is something that's in the cards for this property. Also, you have in your packet the 1970 ordinances for Collier County. The areas that are of particular importance to you folks would appear starting on page 16 which describes uses that are allowed in specific zoning districts. Article No. 7 on page 20 makes reference to nonconforming lots and nonconforming uses. Well, a nonconforming lot, a legal nonconforming lot would be a use that was legal when it was placed on that property. If there -- if there is no legality to the use because it's foreign to the zoning district, then there is no legal nonconformity -- no legal nonconforming status to that particular parcel. If we turn to page 24 of the 1970 ordinance under Section 7.9, Termination Requirements For Certain Nonconformities, it states (as read): Nonconformities not involving the use of a principal structure, i.e., open storage building, supplies, vehicles, mobile homes, trailers, implement and machinery storage signs, bill boards, junkyards, Page 53 April 27, 2006 commercial animal yards and the like, shall be discontinued within one year of the effective date of this ordinance or amended or amendment. And that was stated on page 24. Under Article XI, Schedule of District Regulations, page 41, Section 10.8 under the Designation of Mobile Home, Travel Trailer and Travel Park District, this is -- this is the designation where we see a mobile home use allowed. At the very bottom of No. 2 -A it reads (as read): Mobile home parks with on -site management which may contain mobile homes, travel trailers, pick -up coaches and motor homes one per lot. Again, they're being consistent with the 1965 regulations. The regulations really haven't changed through the years. There are minimum yard requirements that you'll see on page 42 and setback requirements. And by these photos and by going to the site, one can see that these requirements never were met. That's all part of the permitting process. If a permit's issued, there's a follow -up inspection. And hopefully we -- we correct situations like this before we have to come to a board by looking at these matters. Page 48 of this document, Section 10. 12, mentions industrial districts which is different than the mobile home district that we were previously speaking of. And under Principal Use, I'll read, that's paragraph 2 -A, Principal Use (as read): Manufacturing, wholesaling storage, processing, canning, packing, mining, extracting or similar uses that are not of obnoxious or offensive by reason of the emission of odors, fumes, dust, smoke, noise, vibration, radio -- radio -- radioactive waves or substances and that do not possess abnormal explosion -- explosion hazards. Wholesale storage of gasoline, liquid petroleum, gas, oil or other inflammable liquids or gas but not located within 500 feet of the nearest residential district, single family, multi - family and mobile home district. I think they're pretty specific in this ordinance. This ordinance is when we refer to in our notice when we -- when we approached the Blockers with our notice of violation along with our most current land Page 54 April 27, 2006 development code of 04 -41 and the sections that have been recited to you. And the notice that -- that is before you was prepared in December 2005. I acquired a case from Investigator Claudio because she had left our employment. I prepared an updated notice and requested our legal services personnel to review it and they did and it met legal sufficiency. On January 23rd, 2006, Collier County Code Enforcement Supervisor John Marsh and myself met with owner Jerry Blocker, his brother, Ken Blocker, Jr., and his father Ken Blocker, Sr., at their 1031 West Main Street, Immokalee, Florida place of business. I'm going to display the notice that we served -- we attempted to serve the Blockers at that time. On the -- on the bottom of this notice you're going to see that there's a notation, "refused to sign." And that's -- that was the result of our visit. During this meeting I provided Jerry Blocker a copy of the notice of violations and all the appropriate ordinances and related sections and discussed all of that with them in detail. When requested Mr. Blocker refused to sign an acknowledgement that he was in receipt of this information. And I had Code Supervisor Marsh initial the violations. That's the initial you'll see on there. So that was a method of serving notice without wasting a whole lot of valuable time. We wanted this information to be in the Blockers' possession. The notices -- the notice was witnessed as being unsigned and Mr. Blocker, Sr., expressed an unwillingness to want to cooperate in this matter mentioning that his -- his acquiring this property was important to him. And he -- and I -- and I -- he made reference to it and I quote as being his "cash cow." Something that perhaps would be a bit offensive in this matter. I returned to Naples, our Naples office, and I mailed the same notices to the Blockers certified mail. They had to receive this with good service and we wanted to make sure they did. And that certified mail was sent through successfully. We sent it to Jerry and Kim Page 55 Apri127, 2006 Blocker at their 1830 16th Street Northeast, Naples residence. I also phoned Jerry Blocker and provided him with a phone number for our planning department encouraging him to contact our planning department to inquire into the necessary zone change and any other information he may need to prepare himself to come before this board or to prepare the property so that he can come into compliance. On February 6th, 2006, I prepared and sent a letter to Jerry and Ken Blocker. And the letter expressed a need for our open dialogue. We've not heard from the Blockers and we want to keep this running dialogue between us. We find a need for that. We have to work together however this case is aired. This property is not going to fix itself. We need to work together on this certainly. We also mentioned our willingness to assist in any way we could. And I included mention of ten local agencies that could assist in finding alternative housing facilities for the Blockers' tenants if it came to that. We're trying to give the Blockers a heads up. If it means removal of any of these mobile homes or vacating them, we want to work together with them. We want to give them ample time to do what has to be done. And since the year 2000, we've been trying to encourage first the Collins family and now the Blocker family who've purchased this to -- to get these properties and the property -- the tenants on these properties alerted to the fact that there's a problem. On April 14th, 2006, I received -- received a phone call from Jerry Blocker. And I explained the county's position on inappropriate use of industrial -zoned property. And I, again, repeated the fact that we would have to discuss this with our planning department as to what all is involved as far as a zone change. And I also suggested to Mr. Blocker that he or he and his representative come into our office and discuss the signing of our stipulation agreement which we have. They didn't want to do that. And, again, we asked that same question of the Blockers today. And they -- they, again, did not want to participate Page 56 April 27, 2006 with signing that form. I have one more photo -- photo I would like to put up on the screen, please. This is the overview of the three parcels that are outlined in yellow along with a very active junkyard immediately to the west of this property. I'm going to put up two more photos. I have several. I'm going to submit all the photos as -- as evidence. We're going to put up a couple more to show you that this is what is immediately to the west of this property. And this is not the worst -- the worst of the debris. I think it's realistic to note that we are in an industrial district. Industrial uses are going to expand. They might change. They might become more progressive and developed so that they're cleaner, but, nevertheless, we allow certain activities in this district, but the misuse of the property by placing residents in there is one that certainly we want to -- we want to discourage that. We want to fix it and that's why we're here today. Thank you, again. I want to enter these photos as a part of our exhibit, if I may. CHAIRMAN BARNETT: I think we already kind of did that in your B. MS. GARCIA: I'm sorry. Chairman, I'd like to enter for Mr. Blocker his Exhibit A through H. I believe I put packages on -- CHAIRMAN BARNETT: Okay. Before we do that, our court reporter is asking me for a little bit of a break. MS. GARCIA: Okay. CHAIRMAN BARNETT: So I'd like to give a five- minute break before we start on your side of the case. We will be back at 11:39. (Short recess was taken.) CHAIRMAN BARNETT: We need to go ahead and call the meeting back to order. Did you want to -- MS. GARCIA: I'd like to enter an exhibit on behalf of the respondents, Mr. Blocker, in Cases 2006 -16, 2006 -17 and 2006-18. Page 57 April 27, 2006 It's Exhibits A through H with packets on each board members -- CHAIRMAN BARNETT: Okay. Do I have a motion to accept the Respondents Exhibits A through H? MR. DEAN: Motion to accept. MR. LEFEBVRE: Second. CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. MR. KRAENBRING: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) CHAIRMAN BARNETT: Okay. Yes, sir. MR. BLOCKER: My name is Jerry Blocker. Start off with just answer a few of his questions before I start my presentation. He mentioned that the zoning being industrial which back in the '60s, who knows what this property was zoned. Industrial has grown around this park. This park has been here since the '60s. And I'll show you proof of that in my packet. But also the encroachments he was mentioning about the lot lines, the lot lines on the aerials are incorrect. They're not -- they're not accurate. I've got actual surveys and things like that that show the actual lot lines. There are some right on the lot line, but there's no encroachment which I didn't bring with me today, but I have proof of that. Let's see. All the ordinances that Dennis was mentioning was of today's ordinances. Back in the '60s, what were the ordinances have been, I mean, as far as what they consisted of. Also the reason for refusing to sign his notice of violation at the Page 58 April 27, 2006 time we had our meeting, which I never had any prior meetings with Ms. Claudio, whatever he's saying here. I spoke to a gal on the phone and I don't remember her name at that time, but I never had a sit -down meeting with anybody about this. The reason for -- for refusing to sign his NOV is you see as he mentioned there was two violations, NOVs given. One was given to me in 2006 on the date here, January 23rd of 2006, where we sat down on our meeting. That was the -- that is my first notice of violation I've ever received on this piece of property. Back in 2001 -- October 22nd, 2001, Mr. and Ms. Larry Collins was given a notice of violation. They were given three options. Number one, the option, I've got it here. I don't know if you guys -- I've got it in the packet here. I could pass it out to you if you'd like to see it, but I'll read it off to you. They were given three options at the time. They were -- they were given an option to obtain a site improvement plan. They were given an option to rezone the property. Or they were -- they were given a option to use the zoning as what is -- what is addressed, what the zoning is on the piece of property. I was given one option. I was given an option to remove -- to obtain a demo permit and that's all the option I was given. That was the reason I refused to sign what he'd given me. To back up, everything that -- that I'm going to be talking about, I've got in -- I've got a packet of information which you've been passed out to. I'm here today to address the notice of violation that was issued by Code Enforcement Officer Dennis Mazzone on January 23rd of 2006, on 1101 Alachua Street to demolish something that has been in existence and operating since the early '60s. It's not like it was put in yesterday. It wasn't put in two years ago, five years ago. This park has been here. Everything has grown around this particular piece of property which I have witnesses that -- that are -- have lived in Immokalee. My daddy's been -- he's been in Immokalee since the '60s. This park was there when he was there. I've got other people Page 59 A mil 27, 2006 that would come and be witnesses for that. And I've got also proof in writing in black- and - white. I just want to show you guys that. For -- for example, on a smaller scale if I was to build a home on a piece of property that's zoned residential at the current time, 30 years from now the zoning has changed on me. I'm still living there. The zoning now is whatever it may be, commercial. Code Enforcement, do they have the right to come to me and say, you're -- your property is now zoned commercial. You must demolish your home, obtain a demolition permit and demolish your home or you must go in for rezoning. The zoning has changed around me. Why should I have to change -- go in and change anything? I should be given a variance as to what has been operated. The park has always been there. It has never been shutdown. It's been operated from 1960, over 45 years, plain and simple. We all know that zoning on this property has changed a couple times or maybe numerous times. Nobody has a record of a zoning map in the '60s, whether -- whether there was even a zoning on this piece of property at that time. Who knows. Their -- their zoning maps only go to the '70s. I went and personally and met with some of the -- some of the head guys in zoning and in the graphics department. And they laughed at me. They said, Good luck. You're not going to find any kind of zoning that was -- that we have a record of back in the '60s. The earliest -- the latest we go back is, like, in the '70s, he told me. Which the zoning at that time, Dennis Mazzone pointed out, was industrial in the '70s. What was the zoning in '50s and '60s? In '61 the county recognizes this as being Shells Trailer Park as Ms. Shirley Garcia read off to you guys earlier. Shells Trailer Park, the county recognized it as that in the '60s. Frank and June Shell owned this trailer park. In 1980 Larry and Wanda Collins had purchased this trailer park from the Shells which they had -- they had changed the name over to Collins Trailer Park which the county never acknowledged it being Collins Trailer Park. Page 60 April 27, 2006 It's always been Shells Trailer Park which a lot of the old -- old names back then are still referred not -- not on this particular property, but things that -- that have named this at one time. It's always named that to the older people. So, anyhow, let's see. We all know that zoning has been changed numerous times. Therefore, I'd like to express the fact that according to Collier County records, not only has this property been recognized as a residential mobile home park, but it has been allowed to operate as such for 45 -plus years. In addition to the mobile home -- mobile homes existing on the property, Dennis just forgot to mention, there are five wood frame structures, homes on this piece of property. There were two CBS structures on this piece of property. These ain't something you can build on the weekend or do without the county knowing about it. There's permits issued and I'll go over that and show them to you here in the packet. As proof of Collier County's allow us to operate as mentioned, please view some of the permit numbers that I have located in Collier County property cards entered into evidence as Exhibit A. Now, you'll find there's -- there's three different stapled property cards. One of them is listing Lots 6 and 7. That's the first stapled packet. The second stapled packet is a listing on Lot 8. And the third packet is Lot 9 and 10. Real quick. If you guys can read at the bottom, the property card on page 6 and 7 was dated in '60 or sometime in the '60s. At the very bottom you'll see the date on the bottom left -hand corner. If you'll go to the second stapled packet which is the Lot 8 you'll see right -- right there they have listed Shells Trailer Park -- Shells Trailer Park. Is everybody following me there where it says that? If you'll look over to the right -hand -- the right -hand side column of the first Lot 6 and 7, you'll find permit numbers issued dated 1963, 19651 19669 1968, 1985. Dennis Mazzone mentioned these permits were given out in error. One permit I can see given out in error, but Page 61 April 27, 2006 you'll see through the packet that I have a lot more than just one permit that was given on this particular piece of property by different officers or different code enforcement or -- or permitting department to permit these -- these structures to be placed on this property. I mean, you know, an error is not -- you know, I can see one person billing one error, but not that many. Anyway, the permits you're dating back and you can see there they're dating from 1963 all the way up to 1991. We're talking '91 isn't that long -- isn't that far back. After reviewing Collier County's microfilm, the records department, I found evidence of a few of these permits that have been mentioned. Collier County's records are very, very hard to go through, first of all. Then, again, the girl that was helping me laughed at me when I asked her I wanted to find permits from the '60s. Good luck, she says. I'll help you try to find what we can. We'll go through and see what we can find. Okay. We went through and we found a few of these permits. If you'll -- at this time if you'll please refer to page 1 of Exhibit B. Page 1 of Exhibit B you'll see which has a permit number of 4086 at the top left -hand corner. This is an application for a building permit. Right under that you'll see where it says, Build a CBS to be used as residence. Twenty -one by twenty -six giving the dimension of it. Owner, Frank Shell, giving you a plot plan description of it. Given by Building Official Townsend. And this was issued to be built on Lot 8 which I have proof of that. Sometime prior to 1963 there was also a picture of that CBS structure right behind that which is on page 2, Exhibit A or Exhibit B. That is the structure that they have permitted. Not only -- real quick, jumping off something here. Not only this park isn't for migrants anymore. These -- these people that live in this park, I try to rent to year -round people. I have migrants in the -- in the -- in the trailer park which people -- migrant housing is needing -- needed in Immokalee as everybody knows. When they come to me wanting to April 27, 2006 rent a place, when they got little kids that come up begging to rent a place because I -- they're so -- the migrant people -- the migrant workers, I shouldn't say, the migrant workers are not up to date of our standards of living as far as clean -- clean and so forth. So I -- I really -- I mean, I shouldn't I'd rather not rent to them but, yes, I have rented to them and I do because of the situation. I mean, come up begging they have kids with them. Need a place, they just come into town. They need a place to stay. I rent to them. Okay. CHAIRMAN BARNETT: Mr. Blocker, I'm going to interrupt you just a second. I need to excuse Richard from the meeting. He has an emergency he has to go attend to. MR. BLOCKER: Thank you. CHAIRMAN BARNETT: Go ahead. (Mr. Kraenbring leaves meeting.) MS. BLOCKER: So anyway -- MS. ARNOLD: So Madam -- Madam Chairman, does that mean that Mr. Kelly is going to be -- CHAIRMAN BARNETT: Yes. MS. ARNOLD: -- serving? MR. BLOCKER: So getting back on track what we're here for today. Let's see. Sometime prior to 1960 -- 1963, there was a permit that could not be located in the microfilms to build another CBS structure on Lot 6. As evidence of this structure existing, please -- please see Exhibit C which you'll see a permit number of 4087. And what we're talking about is I'm back in this -- this -- this particular CBS structure I couldn't find the permit for to build this particular structure. I'm backing it up with an alter permit that they were given in 1963,1 believe, to alter -- alter this other CBS structure. As you can see the structure size is 18 by 30 addition on Lot 6. I've not mentioned Lot 6 yet in the packet. So this is obviously a different structure we're talking about than the previous structure I mentioned on Lot 8. But this is an alter permit. This is in addition. This is not a Page 63 April 27, 2006 permit to build. So there was somewhere there was issued a permit to -- to build this other particular CBS structure. Let's see. Please refer to Exhibit D, if you would. Here you'll find a Permit No. 67 -759 dated July 19th, 1967, to Frank Shell to alter a residential structure located on Lot 6. In addition, you'll find on page 2 the inspection card. Next I'd like everyone to view page 3 of the same exhibit. Turn one page, please. Everybody -- everybody with me? You're looking at a building permit which permit number is I85 -362 issued in 1985. 1985 there was a permit issued to Larry Collins to replace an existing mobile home on Lot 8. These are permits that the county's issued. Nobody's issued these but the county. I mean, it's as simple as that. If you would, please view page 7 of Exhibit D which is -- I should have labeled these or numbered these for you, but you'll see another permit. And I did label it at the top. It says page 7, top right -hand corner in black magic marker, the same -- the same packet, page 7. MR. PONTE: It's this one. CHAIRMAN BARNETT: Okay. MR. BLOCKER: This is also another permit that was issued I85 -363 to replace a mobile home, an existing mobile home. And right behind it you'll see, you know, it goes on with inconsistent (sic) with the permit, they're giving the certificate of occupancy and so forth. I wasn't able to find every single permit that was listed. I was in the meeting here earlier, sitting in the meeting when the gal -- and I know exactly what she was talking about when she said how difficult the records are here in Collier County. They were able to find pieces and bits of different permits, but never -- you know, I wasn't able to find any of the permit or I was able to find this or that of that particular permit. So if you would just, you know, please accept what I have brought as far as the permits on these -- on these particular Page 64 April 27, 2006 properties. Next, I'd like everyone to view Exhibit E. Now, this was never designed to be a residential area according to Dennis Mazzone, what he had mentioned earlier, which in my opinion is just a statement. Because he wasn't around Immokalee in 1960. He doesn't know what it was designated for. Yet he was there, you know, roughly ten years ago working the Immokalee area. And at that time, he knows this trailer park -- trailer park was there. He knows it was the same as it's always been. It's never been changed. It's never been shutdown. Didn't address it then, you know. So going back to Exhibit E. There's a permit that was pulled in 1990, Permit No. 900009126, for a screen enclosure, a 24 by 16 screen enclosure. These are all permits that was not supposed to be issued because they were in error. And if you'll look down on the second page of that -- of that permit which the zoning shows in handwriting from the officer that if I could read her name, Alamar Adorno or I'm sure -- I don't know if she's still working with the county or not. UNIDENTIFIED SPEAKER: Right here. MR. BLOCKER: Okay. I know her name's Alamar, but I didn't know her last name, in zoning. She wrote in "MHRP," mobile home residential park is what -- prior to 1991 that's what MHRP stood for is mobile home residential park. After 1991 it was changed to MH which is mobile home as we all know. If you -- if next, if everyone would please view Exhibit F. Pages 1, 2 and 3 are all aerials of this piece of property. Now, you're going to see on the first aerial in -- in magic marker written there because this was done at the Property Appraiser's Office. I had to go to their office to get this aerial. And this is the clearest aerial that we could pull up. In 1981 to give -- to give a fair picture to you guys to see what was actually on this park in'81. It still -- what you see there is what you see on the next page in 2004. And you see it in 2005. Same Page 65 April 27, 2006 exact park. Nothing's been changed. Nothing's been moved. No alterations have been made. Providing photograph in evidence of this property as a mobile -- as a residential mobile home park, I would have liked to have presented an earlier map than 1981 to give you guys a better idea or let you guys know, give you proof that this park was there in the '60s. Which I think by these -- showing you these permits of these particular structures you could see that this is a residential area -- area back then, whatever the zoning that had been -- may have been on a map. The county approved it. It was known to be a residential area through the Property Appraiser's Office, through the Collier County Government, you know, services. Everybody knew it was a -- it was -- what it was used for. It may not have been zoned correctly at that time. I don't know. Nobody can say what it was zoned, whether they even cared what it was zoned back then. I mean, there's pieces -- there's parts up in Georgia and North Carolina and Tennessee as of today that you don't need any permits to build such structures or whatnot. They -- you go in there, the government office, they laugh at you if you ask for a permit. I mean, it may have been that way back then. I don't know. I mean, I'm not that old. I can't really say how far that went back. If everybody would please review Exhibit G. And, of course, the aerial -- the -- the -- the photos that Dennis was showing was pretty ugly looking photos. That was all after the -- after Wilma had come through, blew a lot of stuff around. I mean, these places needed -- needed, you know, some cleaning up to do. I mean, everybody everywhere needed cleaning up which has -- which has been done. I mean, you know, you couldn't have picked a better time to take photos right after, you know, after Wilma come through. But, anyway, if you would please go to Exhibit G which we have. These are a few photos that you just got through reviewing off the aerial maps that I have -- I have produced. Including but not April 27, 2006 limited to five residential structures and two CBS structures previously mentioned as well as a few mobile home photos indicating how well the park and homes have been maintained. The first page shows you two mobile homes there. I mean, that's a neat -- neat trailer. It's not a new trailer. This trailer -- these trailers were put in in the '60s. They've been maintained. They've been painted. They've been, you know, cleaned. Everything still in tact. They went through Wilma. I mean, these trailers obviously have to be in pretty good shape to go through what -- there was a lot of trailer blew apart there in Immokalee. MR. LEFEBVRE: What's the date of these photos? MR. BLOCKER: Just recently last week. I can get that to prove to you if needed. Second page shows you kind of an overview of one part of the park there on the backside of the park of what the trailer park looks like. To me it's not a bad looking park. I mean, I know there's parks in parts of Fort Myers and Naples that -- that have no trailers that look no better than these. And -- and then, again, we're not talking about conditioning here as far as that goes. We're here because of a zoning issue that they have brought. Page 3 you'll see a wood frame structure which has been -- which has stucco on it -- it looks it's been wire lathed and stuccoed. It looks like a CBS structure, but it's a wood frame structure. Right below that there's another wood frame structure. On the next page there's the -- there's two other wood frame structures I'm going -- I'm going to show you. One is a three- bedroom home. These people lived here if I'm -- if I could correctly recall how long they've lived there, it was like 15, 16 years these people have lived here. Recently he -- the guy that has lived there, he's recently deceased. I mean, he just -- his wife still lives there. And that one below that is -- if I could see the aerial I would show you. But, anyway, there's another wooden frame structure. The Page 67 April 27, 2006 next page is also another -- another wooden frame structure. And the last picture that I've brought is a -- is another one of the CBS structures which I showed you the previous CBS structure in another exhibit before that. If everyone would please review Exhibit H. Page 1 of Exhibit H, here you'll find that the Florida Department of Health has provided me with the earliest available inspection report according to records. According to their records they went -- they can go back as far as 1986 indicating that they have been inspecting the said property as far back as 1986. In addition to that they -- they've included a current inspection sheet which is dated February 22nd of '06, right -- right behind this original 1986 inspection sheet. And there -- and, then again, HRS is very strict because they -- you know, we want everybody to live as comfortable as they can. These -- these -- the migrants are very destructive. They break windows. They rip screens. I mean, they drink a lot. You know, we put up with that too in that particular department. But all said and done, I mean, HRS is very strict. And you'll see that there's nothing very, very seriously notated on any of these inspections. You know, you got a broke window or, you know, a refrigerator, the temperature's off which has been replaced. A lot of them you'll see no violations noted. I mean, it's a pretty -- they go through and pretty much tell you this is what you got to do. Let's see. And right behind that you'll find the operating permit that is issued or current one that is issued to myself in 2006, an operating permit through the HRS. And the last page of that exhibit you'll find a -- a personal letter that was written or typed by the HRS Department. And if you would -- and I'd like to read that. It says (as read): To Whom It May Concern: Our records indicate that the facility located on 1101 Alachua Street, Florida has been operating as a residential migrant housing since 19 -- July of 1986 with Permit No. 115200191 owned by Mr. Larry Collins. Our records indicate a April 27, 2006 change of owner in January of 2003 to Mr. Jerry Blocker. And his new permit number, which is 115200402, the living conditions of this facility are acceptable. MS. ARNOLD: I just wanted to state an objection in that the State of Florida or the Health Department's records has nothing to do with the zoning regulations or anything like that. MR. BLOCKER: Well, that was -- that was a lot of issues that he was bringing up that wasn't in zoning also. But the pictures that you have there has nothing to do with zoning, things like that. MS. ARNOLD: My comment is, the picture up there has a lot to do with what are regulations for the county. What you're talking about has nothing to do with the county regulations. And whether or not the state issued you a permit, has nothing to do with Collier County's regulations and their zoning regulations. MR. BLOCKER: That's very -- I understand that. But I'm just letting the board know that this has been aware of a residential area -- use area. And everything has growed around this particular piece of property. I don't know what to say. CHAIRMAN BARNETT: Your objection's noted, Michelle. MR. BLOCKER: Also, if I could notate or show -- point this out. This -- where she's -- where they're showing these -- these tires and stuff on the fence, that's a county easement. That the junkyard has violations with the county that the county has throwed up their hands at. I've been on this -- this particular code enforcement department to make them clean up this actual easement. If you'll -- if you'll take -- if you'll take a ride out to Immokalee, you'll see there's probably a million tires in the easement, Collier County easement, that Collier County will not accept that Barron Collier, I believe is who it was, donated this as an easement to Collier County. Because there's a road -- and I can't remember the name of the road -- that comes straight off of New Market Road that runs straight through that. That was designated for that easement that they 0 = April 27, 2006 -- Collier County will not accept now because of the environmental problems that they've had there. Collier County's not -- I mean, they're not doing anything about it. MR. MAZZONE: Could -- could I possibly object to that? Because that is not the reason we didn't accept it. It never was accepted. It never became our property. Collier's offered it and we didn't accept it. That's been for years in that situation. As I said earlier, we have a case on that property not initiated by the Blockers, but initiated by our office by our observating -- or observing this problem. MR. BLOCKER: And what have you guys done about it? MR. MAZZONE: We're currently working on it as we are your -- your property. MR. BLOCKER: I thought so. CHAIRMAN BARNETT: Okay. MR. BLOCKER: I would like to continue, please. Okay. There -- and a brief review I've -- I've brought to the table -- I've showed permits that said was never given. They were given in error. I brought aerials showing that the trailer park existed. The clearest picture I could bring you guys was dated 1981. I've given -- proven dates from 1963 all the way up to 2006 of evidence that will proven dates. Those are not dates I just picked up somewhere and threw out to you guys. I've shown photos of the park. In conclusion, after presenting all the evidence brought forth here today, Collier County cannot -- I mean, all the evidence that was brought here today, Collier County cannot deny that they have allowed this property to operate as a residential mobile home park for 45 years -- plus years. And, therefore -- therefore, they should -- they should continue to allow it to operate as such. I mean, bottom line. I mean, everything is grown around it. And I thank you you guys for listening. CHAIRMAN BARNETT: Thank you. Page 70 April 27, 2006 MR. MAZZONE: If -- may -- may I address some of the points? CHAIRMAN BARNETT: Sure. MR. MAZZONE: I believe that we have shown evidence that zoning designation for this property has never been that for residential use. We do have a notation on another map. I didn't get this notarized. That's why I didn't introduce it as evidence. But on this particular map it has an I -C -3 designation on this map. I'm going to just show it to you. That Immokalee C -3 designation stands for commercial light industrial district. This was -- this was perhaps another zoning designation for this property, but by no stretch of the imagination do we jump from a residential to commercial to industrial. It -- it can go from commercial on into industrial as a change because all the surrounding properties there are, in fact, industrial and they're used as such. We would not zone it to a -- a lesser use as was pointed out in the presentation by reading those ordinance sections. That would be -- we would not downgrade it to a residential use from commercial or residential from industrial. That is not what Collier County is known to do. CHAIRMAN BARNETT: Dennis, what's the date of this map or do you know? MR. MAZZONE: Yes, 1970 also. It is not notarized because I didn't get it out of the archives. I took it out of another historical area that we store old maps in. And I -- I thought it not necessary seeing that we did present the 1970 map that has been in our records. There is never found -- there were never found any notes of designation less than commercial on this property. And with such zoning we would have never allowed for residential development -- proper residential development. Perhaps something might have been put there, but as I say in error. One of the permits that Mr. Blocker shows you in -- in Exhibit E he points out his 1990 -- 91 -26 permit which is an express permit. Page 71 April 27, 2006 And the zoning designation as he also points out is mobile home residential. As we showed you, there was never such a designation on that property. That's a scrivener's error or an error, however. It could -- I'm sure it's an innocent mistake. Perhaps the explanation that this was -- this was for the -- a screen enclosure to an existing mobile home. There is a presumption perhaps that then it must be a mobile home park. I can't think for anybody else or say what transpired back then. Certainly anything could have happened, but it was done in error. MR. BLOCKER: Was the -- was the -- MR. MAZZONE: I'm sorry. I'm not finished. And we spoke of the Health Department inspecting these premises, indeed. They only address those areas that they're capable of addressing and able to. They do not address land development use or regulated land use, subject matter setbacks and our guidelines. They only address their guidelines. And we're not saying they don't do a good job, but they certainly don't do our job. And certainly Wilma didn't create the salvage yard next door. That salvage yard we have aerials that go back to as long as we can see the mobile home park. Indeed, it was a industrial -- a booming industrial area. And there was a salvage yard there and there were many other activities there. We -- we started the Immokalee Housing Initiative for a reason. And this initiative was started prior to the Blockers owning this property, but yet in their community. And they were aware of the fact that this property was going to be under close scrutiny when they purchased it and we did just that. CHAIRMAN BARNETT: Can you give me an overview of what the housing initiative was or is? MR. MAZZONE: I believe Ms. Arnold could speak to that better than I could. I know that we partook -- myself personally I partook in helping catalog all the mobile home parks in Immokalee. Page 72 April 27, 2006 We physically got into our vehicles and visited all these sites and went about appraising them, seeing the safety aspects as to the living standards for the peoples that were using these sites, the size of the sites. To qualify as a mobile home park it had to be three mobile homes on that property or more. So that eliminated a lot of sites. A lot of people joined their -- their properties together to make it so that it was something that could be addressed by the initiative program. The initiative program's designed to encourage -- it was designed to give incentives to these property owners, to encourage them to upgrade these properties and re- designate, re- assign the areas if they had to be or eliminate housing be it the entire house or a blighted house. But it was an opportunity to help the citizens of Immokalee and a lot of the residents that don't have the ability to find adequate housing. Mr. Blocker makes a point of saying that this is -- these are good housing conditions. Well, we -- I have one I'm going to put on the screen. It happens to be on Parcel 10. Sure. It was a mobile home, but miraculously it grew into -- with -- with additions that are not permitted. We would never permit these makeshift sleeping quarters that are made out of inexpensive materials and don't meet our standards for code. And we turn a single- family mobile home into a triplex use. And I'll show you the photograph. MR. BLOCKER: I thought we were talking about zoning again? MR. MAZZONE: We are talking about zoning. We're talking about use and what we allow and what we expect as safe and -- and durable housing stock for our residents. This is a mobile home and on either end of it we have wood frame additions put on it to expand the use, not to stay within the parameters of what they -- what was purchased or what might have been mistakenly permitted in the past, but to even expand this use to perhaps make more profit on a piece of property that would be -- should be better utilized as industrial land. And below the door was Page 73 April 27, 2006 open to this. There was a resident cooking on an illegal facility which we don't allow in a single - family structure, but one -- no more than one kitchen facility. This is another kitchen facility along with two bedrooms, by the way, makeshift. CHAIRMAN BARNETT: Mr. Blocker -- MR. BLOCKER: Yes, ma'am. CHAIRMAN BARNETT: -- when you purchased this property, there was already a legal notice that had been given to the previous owners? MR. BLOCKER: In 2001 which I was aware of when -- when Dennis had sent me this packet, that they were given a notice. CHAIRMAN BARNETT: Were you made aware of it at the time of purchase of your property? MR. BLOCKER: No. I knew that Collier County was -- was addressing mobile home parks at the time, but there was never an issue where it was brought up that this park had a -- had a violation on it, no. CHAIRMAN BARNETT: So you never received anything in writing from the previous owners? MR. BLOCKER: No. No. There was, no. They'll never find a record of showing any of that or -- CHAIRMAN BARNETT: I'm asking if you ever received -- MR. BLOCKER: No, ma'am. CHAIRMAN BARNETT: -- prior to purchasing? MR. BLOCKER: No. MR. KELLY: Madam Chair -- CHAIRMAN BARNETT: Yes. MR. KELLY: -- are we opened up to questions? CHAIRMAN BARNETT: Yes. MR. KELLY: If I could just have a minute or two to ask a couple questions of Dennis. CHAIRMAN BARNETT: Sure. Page 74 April 27, 2006 MR. KELLY: Dennis, the stipulation agreement that you had offered Mr. Blocker, basically what did it state? MR. MAZZONE: Specifically it stated that we expected them to demolish the facilities there in lieu of the fact that they're not allowed. We have a stipulated agreement that we designed specifically to this property. And it reflects the course of action that we would expect the Blockers to take. And one of those steps would be to at least come in and try to apply for a zone change. We were willing to work with the Blockers. We told them this months ago. Without a zone change, we have no recourse but to direct the defendants to remove the structures because we don't allow -- we don't allow residential dwellings on industrial -zoned property. We have an alternative to issue any order except that of removal. We can't -- I cannot ask them to obtain permits, because we don't allow the permitting of this type of structure. We can't -- we can't ask them to do anything except remove them or come on in and get a zone change so that we can allow it. And this board is the only vehicle by which we can accomplish that. We have no other choice. MR. KELLY: Okay. And my second question was, the aerial map showed boundary lines. It clearly shows the easement where it refers to the -- the use next door, junkyard, whatever you would call it. Is there any structures -- inhabited structures that are over that easement line or the property line? MR. MAZZONE: Without a formal survey, I can't say for certain yes. I can say that the yellowed highlighted marks on our maps aren't true. That they are very close and certainly they make it appear that there are encroachments. When we say "encroachment," the trailer doesn't have to physically hangover. It has a rear yard setback. And it -- it cannot encroach into the easement either. It's not that it's going onto another piece of property. But as you can see, the -- the junkyard is encroaching into the easement. And certainly the -- the trailers are encroaching or at least appear to be encroaching into Page 75 April 27, 2006 the activity that's taking place in that easement and the property that the easement occupies. Without a survey, I can't say with -- with -- with all honesty that there is an encroachment. But it certainly does appear that way. And these trailers far exceed the number in which we would allow as far as residential units on a particular lot. So regardless of our accuracy with this -- this encroachment, although I do believe in my heart of hearts that they are encroaching, there is still the misuse of the intended developmental requirements that we have for residential dwelling use. MS. ARNOLD: Can I -- can I ask a follow -up question? Dennis, are there setback requirements for industrial zoning districts? MR. MAZZONE: There are definitely setbacks. They are in your packet. MS. ARNOLD: Okay. And are there setback requirements for mobile homes had this been -- MR. MAZZONE: Absolutely. MS. ARNOLD: And is there the potential that any of these structures are encroaching in those setbacks, whether it's a mobile home zoning district or an industrial zoning district? MR. MAZZONE: Yes, ma'am. MR. BLOCKER: I'd like to add something to that. I mean, these setbacks you're talking about are -- are today's setbacks. What they're -- what they're referring is today's codes, today's setbacks. These places were put in there in the '60s. I may -- it could have been before that. Without proof I can't say that. With permit, I mean, that I pulled up. These -- MS. ARNOLD: Mr. Blocker, did you look at the -- the zoning code that I -- I gave you for '65 that I handed you that Mr. -- MR. BLOCKER: I didn't pay any attention, but I wasn't finished, anyway. MS. ARNOLD: Well, I'll ask you after you're finished. MR. BLOCKER: Okay. Please. I mean, it's -- you know, like I Page 76 April 27, 2006 said, these are as today's zoning, I mean, the setbacks may be true. Now, if I went in and wanted to put in a new mobile home, I could see them asking me to be required to setback -- the proper setbacks which would be no problem. If I went in and got a permit today to change out one of the mobile homes in there, absolutely I would expect them to say, Okay, you must be a certain amount of feet off the rear property line. You must be a certain amount of feet off the side property line and so forth. I mean, today -- when you do something in today's business as today, you follow the rules as of today -- as of today, not -- not going back -- you don't -- I mean, you don't try to go off the '60s rules. I mean, you follow today's rules and that's as simple as that. I mean -- MS. ARNOLD: Madam Chairman, could I -- could I ask Mr. Blocker if he's finished and if I can ask him a question? MR. BLOCKER: Go ahead, please. MS. ARNOLD: Okay. Did you hear any of the testimony that Mr. Mazzone noted what the rules were in 1965? MR. BLOCKER: I -- I didn't pay any attention. I don't know what you're asking. MS. ARNOLD: Well -- MR. BLOCKER: I -- I was listening in and out but I don't recall what you're saying. MS. ARNOLD: You -- you -- did you testify that this park existed around the '60s? MR. BLOCKER: Yes. MS. ARNOLD: Okay. Mr. Mazzone did provide testimony about the regulations that applied in the '60s. Maybe if you pull up that book. MR. BLOCKER: Well, they -- the county allowed this to go on. They were issued permits. MS. ARNOLD: Can you pull up the book that I -- the handout that I gave you? Can you look at it? Page 77 April 27, 2006 MR. BLOCKER: I mean -- regardless, I mean, these -- these -- the county knew it was happening. It ain't like they went in there and just done something illegally. Whether they wanted to follow the rules back then, the county officials, I mean, that's not our choice. MS. ARNOLD: Do you have it? MR. BLOCKER: What page, please? MS. ARNOLD: Could you turn to page 10. MR. BLOCKER: And where do you see -- where's the date 1960? Okay. I see revised January 1965 county zoning regulations. Why did the county -- why did the county approve them to put them where they're at today? They're approved. They had to be. MS. ARNOLD: Well, I think Mr. Mazzone spoke to that. CHAIRMAN BARNETT: I've got a question for Jean. Maybe she can help me. MS. RAWSON: Yes. CHAIRMAN BARNETT: Unmuddle my head a little. In this case apparently the county did go and issue some permits that we've been able to see -- MS. RAWSON: Right. CHAIRMAN BARNETT: -- actually. But we also have seen actually that that was in violation of their own zoning, apparently, requirements. How do we handle that, I mean, legally? MS. RAWSON: Well, you have to listen to the evidence presented. I -- I believe that Mr. Mazzone told you that the permits were issued, but I also believe that there was testimony that there was a citation violation prior to his purchasing the property. And that he purchased it when there was already a violation having been red - tagged, if you would. And what I think Mr. Mazzone is suggesting is that they can't get permits now, so that they would have to go and rezone. MS. ARNOLD: Madam Chairman, I believe, you know, you've had situations like this before where permits or other development April 27, 2006 orders were issued in error. And the attorneys have stated such sections out of the Land Development Code that says because something is issued in error, does not grant it, you know, something that is should just stand. It's not -- it's not something that because someone issued a permit in violation of one of the Land Development Codes or whatever the regulation is, doesn't mean that it's something that should stay in its infinity. CHAIRMAN BARNETT: Can the county attorney help me here? I find a sticky wicket here in one respect because -- MR. GRIFFIN: I appreciate what you're saying. Steve Griffin with the County Attorney's Office. There is a -- actually provision in your -- in your own Section 8 of the Land Development Code that discusses permits that are -- that are issued in error. In fact, that those permits are then effectively withdrawn and reissued to be in compliance with the codes. There's also case law -- state case law that says that it, in effect, there's no -- and these are going to be legal terms of art, but there's no collateral estoppel against government employees for taking actions that may be unauthorized. And, in effect, meaning that, you know, those unauthorized deeds are ones that are based maybe sometimes on faulty information and application. Those can't be withdrawn and made right again. But, I mean, I think this case boils down to zoning. The zoning is the zoning. And either it's right or it's wrong for these gentlemen. And I think in this particular situation it sounds like it's not residential. I'm not sure that anybody's offered any evidence that it ever was residential. And they have a process they can go through to maybe try to make this right, but it's not this board. It's the Board of Zoning Appeals or somebody else, but it's certainly not this board. CHAIRMAN BARNETT: Thank you. MR. BLOCKER: If I would -- CHAIRMAN BARNETT: Do we have any more questions? Go ahead. April 27, 2006 MR. LEFEBVRE: I have a couple questions. MR. BLOCKER: Yes, sir. MR. LEFEBVRE: First of all, did you attend that meeting that was in 2001 or 2002 regarding the initiative? MR. BLOCKER: Never have I -- have I been invited nor been sent a letter to come to a meeting. MR. LEFEBVRE: The meeting I'm talking about is regarding initiative for the mobile homes. MR. BLOCKER: No, sir. MR. LEFEBVRE: Okay. According to Investigator -- Investigator Mazzone, he stated that you were in attendance at that meeting. And that there was certain facts presented on how to either rezone or improve these mobile home parks and that's prior to your purchasing of the -- of the property. MR. BLOCKER: The only meeting I've ever been attended in -- in discussing this situation is the meeting we had on -- when I was issued the notice of violation through Dennis Mazzone. That is the only meeting I've ever been in. MR. LEFEBVRE: So are you saying that you weren't aware of this initiative? I mean, your family's been in Immokalee for -- for many years from what I understand. And it would seem that you would be aware since you were looking at a mobile home park that this initiative would be something that would be of interest. MR. BLOCKER: In -- in -- in knowing that the trailer parks -- I never knew the meeting was taking -- was taking place. I knew that Collier County was -- was coming out there and giving people notice of violations which they have given the Collins in 2001. Never was the park shutdown. Never was it red - tagged. They were given a notice of violation the same as I was given one in '06 because the county -- their opinion decided they were in fault. They -- they were not complying with today's code. This park wasn't put in yesterday. You know, they -- they're not -- how do they know they were noticing April 27, 2006 of violation? Nobody approved what the zoning was in '60s. MR. LEFEBVRE: Let's assume the zoning was residential. MR. BLOCKER: Sir? MR. LEFEBVRE: Let's -- let's assume -- let's just say like you're trying to argue that possibly the zoning was residential. If you look on page -- on the county zoning regulations for January 1965 -- I'll let you get to that. MR. BLOCKER: Which page? MR. LEFEBVRE: Page 26 and 27. Let me know when you get there. MR. BLOCKER: Okay. MR. LEFEBVRE: Under C where it says, Area of Regulations, minimum lot side 5,000 square feet. And then it goes into the width. And then also says (as read): Rear yard must be sufficient to take care of septic and drain field. I'm not sure if they are on septic and -- and drain field. Maybe you can -- already on it? MR. BLOCKER: They're on state -- city sewer and they got -- they all have electrical. MR. LEFEBVRE: Okay. Go down to No. 5, only one mobile and/or trailer home shall be permitted on a lot. MR. BLOCKER: Can I answer to that? What that is, is that's in a residential area, VR zoning or whatever you may. Who says this wasn't zoned to MH -- MHRP which in 1990 Ms. Alamar designated this area as being MHRP which at that time we could prove that it was not. It was zoned industrial at that time in 1990. So, no, there again, we're not proving -- there's no one brought to the table what the actual zoning was in '60. If it was zoned mobile home residential park at that time, if you could find. I'm not sure where it would be in the -- MR. LEFEBVRE: Well, if you look at No. 8 on that same page it says (as read): R -4 zone shall not be permitted adjacent to any zone higher than B -3 -- R -3. Sorry. Page 81 April 27, 2006 MR. BLOCKER: What is that saying there? MR. LEFEBVRE: What that's saying that there's industrial zoning next door. MR. BLOCKER: Right as of -- as of now -- as of now. MR. LEFEBVRE: No. No. No. If I'm -- if I'm not mistaken in 1970 as back -- as far back as 1970 we have maps to show that it was an industrial zoning at that point. MR. BLOCKER: Right, sir. MR. LEFEBVRE: Okay. And you're saying that when this mobile home park was there next door, correct, there was a -- you're saying that more than likely there was a trailer park. I mean, not -- a recycling center or junkyard. MR. BLOCKER: I'm not sure what date that was put in, but if the mobile home park was, say it was zoned MHRP or whatever, the areas around it could have been zoned VR. The zoning in Immokalee have been changed several times since probably the first time of zoning. I don't -- I don't have any maps showing that, but I know for a fact the zone's been changed several times. So it could have been zoned VR around this mobile home or village residential or -- UNIDENTIFIED SPEAKER: Even a junkyard. MR. BLOCKER: Even a junkyard. It probably could have been zoned VR at the time this mobile park was put in. No one -- no one has brought that forth. I mean, there's no way that I could prove it. No way that the county could prove it. MR. LEFEBVRE: Yeah. I just find it hard to believe that all that area out there would be -- MR. BLOCKER: This is not on a main drag. It's kind of like in a separate area. Right behind it there's, you know, it's all woods and whatnot back in the back. I mean, back then -- I mean, like I said before, I mean, up in -- I mean, whatever the zoning maybe at that time Collier County allowed it. I don't know what else to say as far as they allowed it to go in. April 27, 2006 Now, if they knew there was a junkyard there, they shouldn't even have allowed it to start with, whatever the zoning may have been. If there had been a junkyard there when the zoning was VR, which is zoning of a junkyard wouldn't be allowed to put in a VR zoning, but just say it was there already. Collier County, their inspectors had to go out and inspect these places. They know a residential area is not supposed to be in the -- in a right side of a junkyard. I mean, the county officials know -- known this had been going on for this amount of years. CHAIRMAN BARNETT: That's where I've got a little bit of a problem with a residential area abutting industrial. Especially -- I'm sorry. I'll move the mic closer because I'm soft- spoken. I'm having a little bit of trouble with a residential area in the middle of an industrial park only because of the safety and welfare of possibly children. And I don't know if there's any children there, but I can see children playing in the auto lot and getting hurt. And that's where I come up with a safety issue. MR. BLOCKER: Right. I mean, it's been allowed for this many years. Excuse me. I didn't mean to interrupt you. CHAIRMAN BARNETT: No, I -- I understand. MR. BLOCKER: Why is the burden on me now? You know, why -- why not let's work together to put a fence up or make -- make the junkyard comply to getting their -- their junk -- their cars off of the easement. And we've got a 18- or 20 -foot easement there at that time. I -- you know, you could run a fence down there. The county could work -- they could put -- make the junkyard put a fence up. Make me put a fence up to try to protect it if the safety is a factor here. And we're talking about 31 places on these proof -- these piece of property, 31 units including mobile homes and housing, CBS structures and wood frame structures that the county's asking me to take and bulldoze. Go and rent me a bulldozer and go to work. MR. MAZZONE: May I -- may I make note of something, Page 83 April 27, 2006 please? We are giving the Blockers the option to rezone. This is certainly another fix to this situation, but also Mr. Blocker might have misspoke. According to a project status report dated 7/18/03 that this report is a result of the Immokalee Housing Initiative Status Report, one of their meetings, on January 7th, 2002, they -- they have -- they chronicle all the people that have spoken or met with them. And on January 7th, 2002, a meeting took place with Kenny and Jerry Blocker. Kenny and Jerry Blocker requested to meet and discuss properties. The housing initiative project was explained. Questions were raised about program benefits and requirements for landscaping, et cetera. Questions were also raised about developing properties to maximum density under the Immokalee Housing Initiative Project LDC 2.2.29. It was determined that the initiative project does not allow additional development of property stressing maintaining current density. Therefore, the property owners were informed of site improvement plan review under current zoning standards, LDC 3.3. The property owners were given a comparison of both types of site improvement plans. And on the bottom of this there is a blocked informational note showing Sections 2.2.29 and LDC 3.3. I'm going to put this on the screen. It's the highlighted portion. And up above that are the -- not my notes, but the notes of the people that arranged these meetings and held these meetings and it's a status report. All the citizens that attended these meetings are listed, not just the Blockers, of course, but all other residents. That might even include the Collins, because certainly their property is noted as -- on the -- on the list of properties. And I believe there's 75. I'll put this on the screen. The legend of how many properties were being considered and the Collins' property is listed on there. It's circled as -- it's -- oh, it's noted as Parcel 27, Kenneth Blocker, mobile home park, oh, no. That's April 27, 2006 Colorado. Okay. We'll go down to -- okay. Item 43, Blocker Mobile Home Park, slash, Collins, Item 43. So the -- the entire community of Immokalee was aware of what was going on. We tried to make them aware. We certainly held the public hearings to do so. CHAIRMAN BARNETT: Do we have any more questions? MR. KELLY: I -- CHAIRMAN BARNETT: Okay. MR. KELLY: Dennis, something that's zoned industrial, you said that a supervisor could live on the property? MR. MAZZONE: A caretaker. MR. KELLY: A caretaker? MR. MAZZONE: Yes, a caretaker's residence. MR. KELLY: And just one? MR. MAZZONE: Yes, sir. MR. KELLY: There are three lots. Could there possibly be a -- MR. MAZZONE: Yes, sir. MR. KELLY: Okay. MR. MAZZONE: If they were to remain three lots. MR. KELLY: Okay. MR. MAZZONE: And with -- with -- with industrial use on them, we would allow for a caretaker's residence. We don't -- there is restrictions. It would be for that industrial use. MR. KELLY: Okay. CHAIRMAN BARNETT: Go ahead. MR. LEFEBVRE: I have another question or clarification. At some point you said that there was one year from an approval of LDC, Land Development Code. They have one year to bring something to compliance. I wasn't -- can you just -- MR. MAZZONE: I believe that was quoting from the regulations of 1965. MR. LEFEBVRE: 1965. Okay. MR. MAZZONE: Bear with me. Page 85 April 27, 2006 MR. LEFEBVRE: Sure. MR. MAZZONE: I misspoke. They were the regulations -- MR. LEFEBVRE: Of 2002? MR. MAZZONE: No. I've got a lot of regulations here. The 1970 packet, the regulations that we cited -- it's -- comes from the October 1970 zoning regulations for Immokalee area. And it would be page 24. I believe that's what you're speaking of Termination requirements for certain nonconformities -- MR. LEFEBVRE: Uh -huh. Correct. MR. MAZZONE: -- and down at the bottom of -- the second paragraph under the numeral numbers (as read): Nonconformities not involving the use of a principal structure and it goes on. Is that what you're referring to, sir? MR. LEFEBVRE: Yes, sir. MR. PONTE: I have a question for the county. If it was one of the respondent's options is to apply for a rezone, how long would that? What kind of timetable are we looking at to be either successful or not successful? MS. ARNOLD: Well, in this particular case because I believe the area is not only zoned industrial, it's also designated industrial on the master plan, the Immokalee master plan. It would have to go through a comp plan amendment. And that's a very lengthy process. It's over a year. MR. PONTE: Okay. Over a year? MR. BLOCKER: If it ever gets done. MR. PONTE: One other question, then. Is it a realistic option or not? MS. ARNOLD: I -- I think in the county's consideration of whether or not they would maintain this as residential as opposed to industrial, they would probably look at some of the things that you -all talked about, the adjacent land uses and whether or not it's conducive or, you know, conforming or something that is compatible with Apri127, 2006 residential. Seeing that there's an airport to the northeast of the property, there's heavy industrial completely around it, I'm not sure a -- a planner would consider that those adjacent uses were compatible. MR. PONTE: Thank you. MR. LEFEBVRE: Would the density be conforming to -- to a residential use? MR. MAZZONE: No, sir. Not as it exists. CHAIRMAN BARNETT: Are there any other questions? If not, I'm going to close the public hearing. MR. MAZZONE: Ma'am, before you do that, do I enter my -- my photos as exhibits before you do that? MS. ARNOLD: It's already done. CHAIRMAN BARNETT: We already did it. MR. MAZZONE: Oh, okay. And I also want to enter my stipulated -- our stipulation that we have a recommendation. CHAIRMAN BARNETT: Okay. I haven't seen the recommendation so... MR. MAZZONE: No. I was going to state that to you. CHAIRMAN BARNETT: Okay. If you go ahead, please. MR. MAZZONE: This stipulation is for Code Enforcement Case No. -- Nos. -- we combined the three cases, 2006 -16, 2006 -17 and 2006 -18. The violations noted in the referenced notice of violations are accurate and a -- and a -- and that we stipulate to their existence. Should I read all the sections and -- it's part of the stipulation. It's quite lengthy. It was read by the clerk. CHAIRMAN BARNETT: Why don't we just say the stipulations that have already been read. MR. MAZZONE: This -- the -- this -- this stipulates all of the ordinances and sections that were already previously read by the clerk, our -- our code enforcement coordinator. Stipulation No. 1 is that the respondent pay operational costs in the amount of $1,062.54 incurred in the prosecution of the I. _ _ . April 27, 2006 above -noted three cases. Stipulation 2 is that respondent abate all violations by ceasing, desisting all residential dwelling use beyond that of traditionally accepted caretaker occupancy, use of all structures located on industrial -zoned property in Collier County known as Lots 6, 7, 8, 9 and 10, Block 48, New Market Subdivision, ID Nos. 63864720000, next No. 63864680001 and the next No. 63864760002 within 60 days -- 60 days after Code Enforcement Board hearing dated 4/27/06 or by 6/28/06 or a fine of $1,000 per day per parcel will be imposed each day the violations continue. If respondents elect to rezone properties in question, respondents shall contact the Collier County Zoning and Land Development Department and schedule a preapplication inquiry and review within ten days of the CEB hearing dated 4/27/06 or by 5/10/06 or a fine of $1,000 per day will be imposed until the preapplication meeting is scheduled. Under this very same paragraph A -- as (A), respondents shall act with due diligence in pursuit of said rezone and obtain with -- obtain same within 180 days of the date of the preapplication inquiry review or a fine of $1,000 per day will be imposed each day the violation continues. (B) concurrent with the rezone process, the respondents engage the services of a design professional to prepare and submit a site development plan for Collier County Zoning and Land Development personnel's review and approval within 60 days of rezone approval or a fine of $1,000 per day will be imposed each day until a site development plan or site improvement plan is submitted. (C) upon approval of the site development plan or site improvement plan, respondents shall act with due diligence to submit a complete and sufficient application for Collier County building permits for all improvements for residential use of properties in question within 60 days of said approval or a fine of $1,000 per day Olm April 27, 2006 per parcel would be imposed each day until permits are submitted. (D) respondents shall receive all required inspections and certificate of completion within 120 days after issuance of aforementioned building permits or a fine of $1,000 per day per parcel will be imposed each day the violation continues. And No. 4, or respondents shall obtain a complete and sufficient Collier County demolition permit within 90 days after this Code Enforcement Board hearing dated 4/27/06 or by 7/28/06 or within ten days after abandoned pursuit of a site development plan or a site improvement plan, whichever is appropriate -- applicable or a fine of $1,000 a day per parcel will be imposed each day the violation continues. Upon having obtained a demolition permit, respondents shall then execute same by removing all nonapproved, nonpermitted additions, improvements, use and resulting debris within 180 days after Code Enforcement Board hearing dated 4/27/06 or by 10/28/06 or 90 days after a site development plan or site improvement plan abandonment or a fine of $1,000 per day per parcel will be imposed each day the violation continues. Respondents shall provide Collier County Code Enforcement with written notification that the violations have been abated and request an on -site inspection to confirm same. I'd like to submit this stipulation as our recommendation. MR. DEWITTE: Would you please put it on the overhead as well? CHAIRMAN BARNETT: Yeah. Put it on the overhead, please. MR. MAZZONE: Yes. CHAIRMAN BARNETT: public hearing. With that I'm going to close the MR. BLOCKER: Can I say one more thing, please? CHAIRMAN BARNETT: Sure. MR. BLOCKER: In regards -- I mean, they know that this Apri127, 2006 property cannot and will not be rezoned by Collier County in -- in situations that's there. So basically they know what -- what can happen, what's going to happen if -- this park has been there since the '60s. So they're basically putting me out of business by saying you're no -- you're no longer here no more. When something was put in in the '60s, that should be grandfathered in as a mobile home park or a mobile home overlay should be issued on this piece of property as long as there is mobile home residential activity on the property. Now, if it shuts down for some reason which I understand -- you know, if something shuts down over six months at a time, it loses that grandfather law in a business. Then automatically it goes to whatever the zoning is. So if somebody come in and want to reopen it six months later, they could not do it. This park has never been shutdown. It's always been ran as what it is today. And I would ask that -- that -- and I don't think the county can legally shut me down like that. I mean, I don't see it justifiable that they can do that and say, Hey, you're lost. I mean, this is what we have for you. I don't see that -- I mean, it's just unjustifiable. And in the Supreme Court never hold up. That will never hold up. CHAIRMAN BARNETT: Thank you. At this time I'm closing the public hearing and opening it up to only board members for discussion. MR. KELLY: Well, I have some points to make, if I may. CHAIRMAN BARNETT: Sure. MR. KELLY: I also sit on the Affordable Housing Commission and I understand what Mr. Blocker -- I'm sorry. Test. Is it working? MR. DEAN: Yeah. I think you just got to talk into -- or you can use mine. MR. KELLY: Thank you. As a member of the Affordable Housing Commission we -- we took a ride just two weeks ago out to Immokalee and I attended the public meeting with the commissioners Page 90 April 27, 2006 -- a few of the commissioners and the county managers and some of the staff that are here today. There are a number of topics that were discussed and I'm slightly familiar with the mobile home development plan and the fact that it had -- I believe it's expired now. But there was a firm commitment made at that time at that meeting to reopen it both by Commissioner Coletta and by the county manager to provide additional funding wherever possible. For instance, from government grants through the USDA waive to dump fees for any trailers or homes or structures that weren't quite up to code. And assistance with expediting any type of zoning changes that they might wish to apply for. One of the thing -- one other thing that we learned on that trip was that a migrant camp, a true migrant camp that's zoned and permitted as a migrant camp is not allowed to lease or rent space to anyone that does not work in the migrant fields. And specifically states they have to actually work with their hands with vegetation in the field. Which means they can't even work in a packing house. So as if Mr. Blocker is renting to anyone other than an actual migrant worker, he's probably in violation of something there and eventually will be shutdown anyways. And I believe under his own testimony, he doesn't like to rent to migrant workers. So there may be additional problems there. I -- I -- one other question, is there a quorum without me on this vote or do you need me? MR. DEWITTE: We have a quorum without you. CHAIRMAN BARNETT: We do have quorum without you. MR. KELLY: Okay. So I'll abstain from voting. Thank you. CHAIRMAN BARNETT: Any other comments? Questions? MS. ARNOLD: I think you might have to state why. I mean, I don't know if you can automatically abstain. CHAIRMAN BARNETT: We have a quorum. MS. RAWSON: Well, who's the first alternate? Page 91 April 27, 2006 CHAIRMAN BARNETT: He's the alternate. MS. RAWSON: Oh, that's right. He is the alternate. CHAIRMAN BARNETT: But we have a quorum without him. MR. DEWITTE: Why -- why do you wish not to vote? MS. RAWSON: You wish to abstain from voting? MR. KELLY: No. I mean, obviously, I would like to vote, but if there's already a quorum, as an alternate I'm not needed. MS. ARNOLD: I think the way our rules read is that in the absence of one of the regular members, the alternate will participate and vote. MS. RAWSON: Right. Even -- even if there's a quorum. MS. ARNOLD: Yes, even if there is one. MR. KELLY: Okay. Thank you. CHAIRMAN BARNETT: Any other discussion? Anybody? MR. PONTE: If you really want to discuss it, we have a bit of a conundrum because one of the recommendations was possibly rezoning, but that doesn't seem very likely. The big question, of course, is the one we've heard before today in another case and that's grandfathering, what existed, what was there, what attention do we pay to it, if any. The attorney for the county has said it really isn't this board's consideration right now. It's a zoning matter and that's how it really is focused. So I suppose that you could find a violation. CHAIRMAN BARNETT: Okay. Go ahead. MR. PONTE: Just to close that part of it then get to a recommendation which to either -- either rezone or -- or demolish, I guess, is where you're left. CHAIRMAN BARNETT: Okay. Well -- MR. PONTE: I don't know. Let's discuss it. I don't -- I don't want to jump to that. It's just what's going around in my head. CHAIRMAN BARNETT: I realize that it -- I wrangle a problem when I see permits that have been approved, multiple permits, on something, how they can all be just taken away by the county. I have Page 92 April 27, 2006 an issue with that because what if somebody wanted to come up and change the zoning on my home? MR. PONTE: I do too. I agree with you. CHAIRMAN BARNETT: And I don't know how to handle that. And I'm -- I'm looking to the state attorney -- or the county's attorney for that because, you know, what protection does anybody have if they have a permit? MR. GRIFFIN: Well, and I understand the difficult position that sometimes puts boards in. CHAIRMAN BARNETT: I mean, because there's not one permit in here. He's shown us five. MR. GRIFFIN: Right. Right. What might have been helpful and now that the public hearing is closed, probably wouldn't be able to be offered into evidence, would be a little more in terms of the applications that were actually submitted to obtain these permits. And so that would have been useful to see exactly what information the county was relying on when it granted these permits. We can certainly assume that the permit application reviews were complete and careful, but without having more information on exactly what discussions were held or what application information was submitted, it's very difficult to go back and second guess and try and figure out who made the mistake and when it was made or if there was a mistake made. But without that, I can only reiterate what I said before, that if the county makes a mistake and issues a permit in error, there is a process under our code that it can go back and fix that. MR. DEAN: Madam President -- CHAIRMAN BARNETT: Yes. MR. DEAN: I'd just like to say one thing. The -- you know, when you go back 40 years, I mean, who's going backwards in the past? You know, that was a brand new property then and maybe there were only 50 cars around there or something. Now there's probably, I don't know, over 200 there. And the whole area is probably so Page 93 April 27, 2006 blighted, that you're trying to undo the puzzle. And certainly it has to change. Just because it was that way 40, 50 years ago, I mean, you can't leave it that way. And we're talking about quality of life again. People come to this country. They want to see something a little better. Just because we house them in an area where it's blighted, that's not helping them. That's not doing anything for them. Really. What does it take to clean up that property? What does it take to work with the code enforcement that you've been asked to do and you wouldn't sign the application that stated, are you aware of these facts. So obviously you're not communicating and I don't understand why not. Because you're not going nowhere. You got to resolve the issue. MR. BLOCKER: The reason I didn't sign was they asked me to obtain a demolition permit. MR. DEAN: I'm sorry? CHAIRMAN BARNETT: That's just a comment. He's just kind of talking in general. MR. BLOCKER: Oh, okay. MR. DEAN: So that's just how I feel. I mean, are we going backwards? We saw the pictures. That's deplorable and -- and we should do something about it. Thank you. MR. LEFEBVRE: I think regarding the permits, one thing we have to look at it is if you have a house -- hypothetically you have a house and it's zoned single family, whatever the case is, and you get a permit. The -- not only the assumption is, but you actually have the zoning for residential use. And then hypothetically if it's turned to commercial for some reason, it can be grandfathered in because that's what your use is. But the permits -- some of the permits that have been obtained were after 1970. And at that point we know that the zoning there was industrial. And with that argument being made, they were -- they were granted on the assumption that they were mobile Page 94 April 27, 2006 home use or whatever the zoning was, but it wasn't. It was industrial. So there's no grandfathering I don't think or you shouldn't really look at the permits as being a huge issue because they were issued on the assumption that it was mobile home when it wasn't versus if you have a residential property and it's zoned residential and you get a permit and then it's changed for some reason. So I don't think that's a good argument, a valid argument. CHAIRMAN BARNETT: Okay. Well -- MR. DEWITTE: My only thought is the position of this board -- I mean, we don't issue zoning variances. We don't do that. We just decide, does a violation exist or not. Again, I think we decide that based on current code, by the way, not based on past code. And then if it does, then we decide, you know, as sympathetically or as, you know, assertively as we need to how to -- how to institute a remedy in that time frame. CHAIRMAN BARNETT: Well, I will entertain a finding of fact if anybody wants to -- MR. PONTE: Well, okay. Sometimes we just move it to the next point. And I'll make a motion that a violation exists as described in the charging documents of CEB Cases 2006 -16, 17 and 18, Collier County Board of County Commissioners versus Jerry B. and Kimberlea Blocker. CHAIRMAN BARNETT: Do I have a second? MR. LEFEBVRE: I second that motion. CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. April 27, 2006 MR. KELLY: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) CHAIRMAN BARNETT: Now that we have a finding of fact that the violation does exist, remedy? Would anybody like to craft a motion? (No response.) CHAIRMAN BARNETT: We have a stipulation from the county as a suggestion. I'm a little uncomfortable with some of it. MR. PONTE: I am too because I haven't had a chance to read it. And I can't read it and study it on the screen. Is there a way that we can recess and make copies? CHAIRMAN BARNETT: Take a five - minute recess? MR. PONTE: Well, make -- make -- well, make copies of this for everybody so that we have them and can look at them and pencil changes and suggestions because there's nothing I can work with. CHAIRMAN BARNETT: Does anybody have an objection to that? MS. RAWSON: That's fine. CHAIRMAN BARNETT: Okay. We'll take a five- minute recess. Comeback at 1:21. (Short recess was taken.) CHAIRMAN BARNETT: Okay. At this time I'd like to resume the hearing. And we're up to trying to formulate a motion. MR. LEFEBVRE: First question I have is, what's the maximum we can fine in regard to this case? CHAIRMAN BARNETT: Per the Statute 162 -- I'll pull it out here, because we are a county that exceeds 50,000 people and it was approved by our county commissioners, I believe, we are allowed to have fines that shall not exceed $1,000 per day per violation for a first violation, and $5,000 per day per violation for a repeat violation, and up to $15,000 per violation if the Code Enforcement Board or special Page 96 April 27, 2006 magistrate finds the violation to be irreparable or irreversible in nature. MR. LEFABVRE: So for each stipulation -- so should we have -- we will have three separate stipulations; correct? CHAIRMAN BARNETT: Correct. MR. LEFEBVRE: Okay. CHAIRMAN BARNETT: And you understand that, Jean? MS. RAWSON: We'll have three separate orders. CHAIRMAN BARNETT: Okay. MR. LEFEBVRE: Correct. MS. RAWSON: If you decide that you're going to do the same on -- on -- on all three but, you know, you want to vote on it three times because I'm going to write three orders. CHAIRMAN BARNETT: Okay. So we basically need to do a finding of fact on all three as well? MS. RAWSON: Yes. CHAIRMAN BARNETT: So we're currently working on 2006 -16. MR. LEFEBVRE: So then hypothetically we will have $1,000 for each if -- if we decide -- CHAIRMAN BARNETT: If that's what -- MR. LEFEBVRE: -- we decide. Okay. CHAIRMAN BARNETT: Yes. I do have one question to Michelle. In this stipulation it says the operational cost of 1,062.54 incurred in the prosecution of the above -noted three cases. So does that need to be divided in three per order? MR. LEFEBVRE: It does? MS. ARNOLD: That's correct. I should answer on the record. MR. DEWITTE: I think that'd be 354.18. MS. ARNOLD: Yeah. Each would be 354.18. Thank you. CHAIRMAN BARNETT: Okay. Is anybody ready to make a Page 97 April 27, 2006 stab at this? MR. DEWITTE: Can we just talk general outline before we -- CHAIRMAN BARNETT: Sure. MR. DEWITTE: -- get into specifics? I think the stipulation that the county set before us says a couple things. First, the operational costs, we can't get around that, so that's that. Nothing to talk about there. The other is the violations, abate the violations. What abate violations basically says is that they got to get the people out of there in a certain amount of time frame. So let's first just talk about, are we going to make them get all the people out of there and how much time are we going to give them to get them out? MR. PONTE: I think we have to give very, very serious consideration and not just jump to a number there because you're right on target. Housing is housing. And we know that the commissioners are eager to improve it. At the same time the housing that we have seen in the photographs shouldn't be confused with some of the housing that we've seen in the newspapers in other areas because it certainly looks better than that. Before we rush to create a -- to displace people and -- who are working, I think we have to carefully craft that aspect of this. CHAIRMAN BARNETT: And -- and I know if you're evicting somebody, you have certain legal areas too. Isn't it -- I believe it's, like, 30 or 60 days, something like that. I'm kind of looking to the state attorney. MR. PONTE: I think Dennis did say in his testimony he had submitted to the Blockers a list of some ten agencies that would assist in housing. Do I -- do I remember that correctly or not? MR. KELLY: That is correct. CHAIRMAN BARNETT: That is correct. MR. KELLY: Yes. But also keep in mind that everybody is completely taxed because of the damage that was sustained after April 27, 2006 Hurricane Wilma. And there are a number of places that used to operate no longer do and here we are going into another hurricane season. Who knows what's going to happen, obviously, but if something did happen, that would be yet more people would be without housing and demand would then increase. CHAIRMAN BARNETT: Do you have a -- MR. GRIFFIN: Steve Griffin, again, with the County Attorney's Office. I'm not probably the expert on evictions, but I know that there is a certain amount of notice that the landlord would have to give a tenant. I think it's probably 30 days. I'll look over to Jean. Jean's nodding so I would think that's probably fairly accurate. The tenant could decide to fight that, could decide to holdover, could decide not to leave and then you'd have an -- individual civil suits on your hands probably between the tenants and the -- and the landlord. It's pretty difficult to say exactly how that all falls out and if that actually occurs. But, yes, there is a notice period in the short answer. CHAIRMAN BARNETT: Thank you. I'm looking at the fine. And generally we look at fines and we -- we discuss the gravity of the situation. And that is kind of how we denote our height fine. And I don't recall us doing too many $1,000 fines. I know it's fairly new, but especially if it's an eviction situation. MR. PONTE: Well, it's a new fine level as well. CHAIRMAN BARNETT: Yeah. MR. PONTE: So it has never been done before. CHAIRMAN BARNETT: Right. Kind of what I was thinking so... MR. DEWITTE: Can I just out of curiosity since you had some insight into the migrant -- migrant workforce here. We're coming to the end of the crop season; am I correct? MR. KELLY: For -- for certain crops, but there are some -- MR. DEWITTE: Is it -- is there a fluctuate -- is there any date April 27, 2006 we should be in mind of, like, some of these people are going to be leaving anyway in three months and kick them out in two wouldn't make sense or is it -- does it not really come into play? MR. KELLY: Typically, it may. But right now the housing situation is so poor that even, you know, some of the smaller crops that don't demand as many migrants, there are still enough people that are filling up everything. One of the other state -run facilities that was there this year is typically empty throughout the -- you know, the off - season. And this year it was nearly 50 percent full. So they're expecting, you know, that to continue as things go on. MR. DEWITTE: How do we feel about not causing them to abate this violation, but address the other issues where they either got to go for a rezone or go to a demo permit if they choose not to, but not addressing this until the other is resolved? MR. DEAN: One question on this State of Florida Department of Health operating permit expires on September 30th, '06. And that's migrant labor facility program residents and migrant housing, that expires. CHAIRMAN BARNETT: In September? MR. DEAN: Right. So now the Health Department expires it and we do it on the same day makes sense, I mean -- MR. DEWITTE: I would agree. I would assume, though, they're going to go for a renewal on that as well. MR. DEAN: Well, go for renewal but we have a date. MR. PONTE: Well, I think -- but Dennis has testified that the Health Department just doesn't cross lines. They're inspecting for health and hazards and safeties and what have you. And the fact that a residential trailer park exists on a commercial property just isn't their concern. MR. DEWITTE: Agreed. And they need both, of course, to operate property, both the zoning and the Health Department's Page 100 April 27, 2006 approval. But just thinking of timing or -- you know, if we're going to allow them to rezone -- try to rezone if that's -- we're going to put that as an option, it could be a year. Are we going to force everybody out in the meantime or are we going to let them stay there while they go through that process? And I think that's a question we need to answer. MR. KELLY: Can I offer up one other point? If we did make them, let's say, for instance, evict all of the residents that were there and then had additional time to resolve some of these zoning issues, there is a possibility that the vacant housing could -- and for lack of a better term -- could become drug homes, could be crime - ridden areas where there's no policing, there's no residents living there, you know, properly or under rent restrictions. It could be a horrible situation that something -- something we may be brought up against in the future. To -- to elaborate my suggestion would be make the time to evict everybody the same time that you're going to ask either a demolition permit to be issued or -- or -- or come into compliance for rezoning. MR. DEWITTE: Right. Understanding that if we give them -- or with the option to rezone, we're looking at a minimum of a year out, probably more like a year and a half to get that answer. MR. PONTE: Yeah. And the realistic likelihood that it won't be granted anyway. That it's just we're going to put a whole lot of people through a whole lot of steps that's not going to change anything. MR. DEWITTE: Yes. MR. PONTE: I mean, that's -- MR. DEWITTE: Right. That's a possibility. Whether -- whether the affordable housing commission or something else will step in and see a way, but we don't know. But all we know is that we currently don't have zoning that works so we've got to turn it over to them to decide. MR. PONTE: Well, maybe the only thing we can do is because that's the scenario I've just suggested is trying to guess at the future. And maybe just what we should do is to give the respondent the Page 101 April 27, 2006 option to either apply for the zoning change and/or make the decision to demolish. And -- and just let's see what happens. Because what we're doing is trying to predict what's going to happen in the future. Suppose the zoning change was granted. So if we just keep it simple and it's going to ride for a year if we go for zoning change. MR. MORGAN: Well, I would give them a chance to get it rezoned. You know, if it takes six or eight months, and then in the time they can decide maybe that's not what they want to do, they'll do something else. MR. PONTE: Yeah. The other -- you know, the other option, of course, is that they can however they want to arrange the evictions or let the leases expire on a nonrenewal basis, the property then can be used for industrial purposes. That's what it's zoned for. So it's not an end -all situation. MR. MORGAN: Well, if the -- if the zoning fails and it's got to be turned back to industrial anyway. MR. PONTE: Right. So, I mean -- MR. MORGAN: There's no out. MR. PONTE: -- what I'm saying, Jerry, he's the owner of the property. So as the leases expire on this rental property, the -- you know, just don't renew them. And then the option is to either apply for a rezone. There's plenty of people standing in line waiting to get housing or to convert it to industrial. MR. MORGAN: I agree. CHAIRMAN BARNETT: It sounds like everybody's in agreement with that thinking, but does somebody want to craft a motion? MR. PONTE: A motion. MR. LEFEBVRE: How about if there's a point in time they decide that they can't get a rezone and they are going to go for, let's say, a SDP for industrial -- some kind of industrial use? MR. PONTE: Yeah. Page 102 April 27, 2006 MR. LEFEBVRE: Do we need to have some -- I don't know if there's a provision -- MR. PONTE: No. What I'm saying -- MR. LEFEBVRE: -- I guess, demolition. MR. PONTE: -- what you'd have to, I guess, write in is that -- having never written this before, but leases are not to be renewed. Not that the place has to be vacated within 60 days or 90 days or by September something or other. I'm sure that they're all relatively short -term leases. that. MR. LEFEBVRE: They could be month to month following MR. PONTE: Yeah. Well, at that point that resident, that tenant lease would not be renewed. MR. LEFEBVRE: I think that's going to be hard to enforce. MR. DEWITTE: I think our power is limited to coming into compliance with code. CHAIRMAN BARNETT: I don't think we have anything to do with the leasing of the properties. MR. LEFEBVRE: I think that would be kind of hard to enforce. The -- when a lease expires, they could say that they're month to month. MR. PONTE: Yeah. MR. LEFEBVRE: So either we -- I think we have to give a definitive time frame of 180 days and a certain time that they have to be out by or wait until rezoning with a caveat there that if it does not get rezoned and they do decide to go with industrial use, we'll have to come up with -- craft something in that regard. MR. PONTE: But I think if you do that, you could -- looking at what happened at -- I think it was called Diamond Shores and what the county attorney suggested, if the tenants decided not to leave, then they countersued and you just clog up the whole court system. I think there are 28 dwellings there. Possibility of 28 cases. I mean, that's Page 103 April 27, 2006 what eventually happened over on Port au Prince Road over there. MR. DEWITTE: I think it's important that the zoning board take a look at it since the zoning was in question and what's happened. So at least give them the option to do that. So let's -- what do we think about, you know, looking at 18 months. They either have it rezoned or demolition -- or to demolish it. Because you can't ask -- unless they choose to demolish it. If they don't start the rezoning process, they got to go through with the demolition, but -- MR. PONTE: I don't know that we can do that, but we can certainly give them a date certain to start the application and leave it open ended as to what happens when the -- when the zoning authorities then say yea or nay, then you go to Step 2, but without putting a deadline on it. Because what we're trying to do is say to the zoning people, you've got to have this task resolved within 365 days. But what we really want to do is to make sure that the process is started as soon as possible. So we could say start it within, I think Dennis's suggestion was 10 days or 14 days. MR. DEWITTE: He -- he did, but then -- in Part 3, Sub -Item A, top of the second page you see that the respondent's lack of due diligence in pursuit of this rezoning and obtain it within 180 days. Now, I don't think that's -- MR. MORGAN: That's not possible. MR. DEWITTE: That's not possible, but I think it does make sense maybe for us to put a date in there. If we don't have dates, we don't know when to start imposing fines. MR. PONTE: Well, we -- MR. DEWITTE: We can always come back and if he can prove to us that he operated in good faith and couldn't get it done in time, we can always, you know, then give him the extension. But I think we should put a time frame on it to keep the wheels of progress moving. But like you said as well, also put a time frame on when they have to go apply. And I think that's what he's tried to do here is put steps in Page 104 April 27, 2006 place to make sure it happens expediently and with good diligence. So are we going to kick the people out or not? MR. MORGAN: What I would do is, like, give them, say, two weeks to start the process and put an end date of six months on there. Of course, you can renew it after the six months, you know, and if -- if they're turned down and they have a choice. Turn it back into industrial. CHAIRMAN BARNETT: Michelle, I believe it's stated that to get through a rezone process, it's going to take close to a year; correct? MS. RAWSON: More than a year. CHAIRMAN BARNETT: More than a year? MR. DEWITTE: We're -- I think 18 months is a fair -- CHAIRMAN BARNETT: Eighteen months? MR. DEWITTE: -- is a fair due diligence. If they operate in good faith, that's the earliest they might probably get it done so... MR. LEFEBVRE: If we're looking at a rezone, it's a two -step process if I'm not mistaken. You'll have to rezone the property which takes about a year from what I understand. And then a SDP would be additional time which probably would be in my experience probably eight months to twelve months beyond that. But I think we should probably put in specific time frames for each of the actions that they're going to have to do. Not just say 18 months and you must have everything completed. I think if we set up a fine for each particular, if you don't do this, you will be fined X amount, I think that might be a better way so we make -- make sure that we can follow through and they don't come back in 18 months and say, Well, you know, let's put the responsibility on them to go out and, as Dennis put in there, ten days to set up a prehearing. Within a certain period hire the professionals necessary to get the rezoning to engineers, surveyors, so forth and so on. And then after a certain period, they must submit a complete package to get the rezone done. And just list it out in A, B, C, D fashion so they know that they have Page 105 April 27, 2006 certain times to perform each of the items they have to perform. MR. MORGAN: And what you're saying, if the zoning is turned down, another 30 days to start the demolition. MR. LEFEBVRE: It probably would have to be more than 30 days because we're going to -- from what I'm understanding is we're probably going to allow the people to stay in there up until they find out that their zone -- rezoning is -- is either acceptable or not. If it's been accepted or denied. So that means they'll probably need more than 30 days to evict everybody. So this is going to be a long and drawn -out process. But I think along the way we need to know that they're performing certain items as it would go along. And another thing we might want to do, we've done this in previous cases, is an update every maybe two months, three months of what they're doing. We did that with a case -- MR. DEWITTE: That's correct. MR. LEFEBVRE: -- the fencing company, Carter. CHAIRMAN BARNETT: Yeah, Carter Fencing. MR. PONTE: And just ask a question about this fine. The $1,000 per day and the stipulation that Dennis has here says $1,000 per day per parcel. Are we looking at $3,000? Is that what he's saying? CHAIRMAN BARNETT: Technically we're having to do three different orders. And so he was saying per parcel, yes. MR. PONTE: So that would result in a fine of $3,000? CHAIRMAN BARNETT: Per day. MR. PONTE: Per day. CHAIRMAN BARNETT: To the respondent. MR. PONTE: I have a little problem with that. MR. DEWITTE: Yeah. I think we need to just discuss -- pick a good number for the fine in general. Maybe they'll be a little bit different, but certainly there's some steps we're asking them to take in the rezone process. I don't know if $1,000 per day is right if they don't Page 106 April 27, 2006 miss those steps. So I think we can encourage them to get their time frames addressed. Any thoughts? CHAIRMAN BARNETT: Still waiting for somebody to craft a motion. MR. LEFEBVRE: We're still in the talking phase. MR. PONTE: Why don't we -- because this is complicated. Why don't -- rather than one person craft a motion, why don't we just take it as far as we can go and stop and then see where we -- where we are and go on again? Because it's going to be -- it's a very difficult item to do. I mean, we can start by -- I can say this and then you can stop me. I'll make a motion based on the finding of fact, conclusion of law that violations exist in CEB Case 2006 -16, 17, and 18. CHAIRMAN BARNETT: We have to do them one at a time. MR. PONTE: Oh, we're going to do those one at a -- we have to do it three times. All right. Sixteen, Collier County Board of County Commissioners versus Jerry B. and Kimberlea Blocker, and respondents be ordered to pay all operational costs on this case. Then if you -- this is just stop an aside. Follow with me to Dennis's stipulation and go down to Section 2. The respondent is also ordered to abate all violations by ceasing all residential -- by ceasing the rental of all residential dwellings beyond that of a traditionally accepted caretaker occupancy within 60 days after the Code Enforcement Board hearing of April 27, '06 or a fine of -- we're looking at a fine of $1,000. Do you want to say $333? I'll just go on and say, $333 per day -- seeing we're only doing one parcel here. Three hundred and thirty dollars per day will be imposed each day the violation continues. CHAIRMAN BARNETT: George, the problem with that is I thought we were discussing that we would let the individuals stay there until we found -- Page 107 April 27, 2006 MR. PONTE: We are. That's what we're discussing. You asked for a -- CHAIRMAN BARNETT: Okay. MR. PONTE: -- a motion and I'm just trying to get it started. CHAIRMAN BARNETT: Right. This is set amount in 60 days. MR. PONTE: Okay. So we get this far -- MR. DEWITTE: Can we take a little vote just amongst us on whether we want to -- do you want to kick the people out in 60 days or do we want to let them stay until the rezone process is done? Who wants to kick them out right away? MR. PONTE: I don't think anybody wants to get them out. MR. DEWITTE: Who wants to let them stay till the rezone process gets done? MR. PONTE: Rezone. MR. DEWITTE: So I think we can strike almost all of No. 2 -- MR. PONTE: Okay. MR. DEWITTE: -- from the suggestion. MR. PONTE: What should we put in its place? MR. DEWITTE: I think we just -- I think it just goes away. We're just going -- I think we'll say abate all violations by -- and then it will be the choice of No. 3 or No. 4, whichever they decide to pursue. MR. PONTE: Okay. Yeah. That works. MR. DEWITTE: By either rezoning the parcel or by doing demolition. MR. PONTE: I think you're right. MR. DEWITTE: Whichever they choose. MR. LEFEBVRE: Okay. But we do have to address that somehow that if it doesn't get rezoned -- MR. DEWITTE: Certainly. If any point in the rezone process it fails, they have to move to their other option within so time which is going to be eviction and demolition of the people. April 27, 2006 MR. LEFEBVRE: Just so long as that's addressed somewhere. Now, the rezone and the SDP are two different things. MR. DEWITTE: Yeah. And I think he outlines that. In (A) he talks about pursuing the rezone and then once they get it, then he talks about (B). Now that you got the rezone, you got 60 days to have worked with somebody on an SDP and get that submitted. MR. PONTE: Yeah. I think my feeling on that was really the rezoning process and the hiring of professionals to do this work, really shouldn't be done until the zoning has been approved. Otherwise, it could be, you know, a hardship and a waste of money on the part of this respondent to handle. So I don't think that should be happening while the rezoning is still a question. MR. DEWITTE: I don't think the stipulation calls for that. I could be misinterpreting it, though. I think it says to do one and then the other. MR. MORGAN: Do you have to -- MR. PONTE: Well, what it says is concurrent with the rezone process. That means at the same time No. 3 -13 rather. MR. MORGAN: Do you have to submit a site plan, professional engineer along with your zoning application showing your existing improvements and your future improvements? MR. PONTE: I don't know that. You'd have to ask the county. MS. ARNOLD: You can do it after or you can do it concurrent with. You have a choice. MR. DEWITTE: And the county's proposed stipulation even though it does say concurrently with the rezone process, it gives them until 60 days of rezone approval -- 60 days after rezone approval to get it submitted. So they don't actually have to turn in the SDP until 60 days after the rezone approval is submitted. So that would give them the option of waiting until they see the outcome before they invest too much effort into the new site plan. MR. PONTE: So what are you saying about (B), to drop it? Page 109 April 27, 2006 MR. DEWITTE: I think it's okay as written personally except for the fine amount. MR. PONTE: But it says, concurrent with the rezone process. It means at the same time. MR. DEWITTE: If you look at line 3 of part (B) midway through the sentence -- MR. PONTE: Yeah. MR. DEWITTE: It says that it will be due 60 days -- within 60 days of rezone approval. So it is not -- even though they have to, you know, even though it says work on it currently, they don't actually have to submit anything to anybody until 60 days after the rezone's approved. MR. PONTE: No. But I -- what I'm saying is if you hire professionals to do that work at that point and you're not perfectly confident you're going to be successful anyway, just wasting money. MR. DEWITTE: Sure. We don't -- we don't have any monetary of that other though to say within 60 days of the rezone being approved, but you got to get it submitted. And so -- CHAIRMAN BARNETT: Michelle, if they were to get the zoning and then they wanted to do the site development plan rather than doing it concurrently, how long does it take to get a site development plan put together and submitted, roughly? MS. ARNOLD: Put together? I wouldn't -- I don't know. I mean, it just depends on whoever they hire and that person'S workload. So it would be hard for me to say, you know, who's going to take somebody a month or three months or whatever. I know that if the county submits or receives a sufficient submittal, one that has -- meets all the codes and it doesn't have to be resubmitted over and over again, the time period is not that great but the problem is is what is submitted is not necessarily to code. And it requires several revisions. So it takes -- that's what takes the process so long. Page 110 April 27, 2006 CHAIRMAN BARNETT: Okay. MR. DEWITTE: George, if we change the word "concurrently" until "after" so that there is no burden on them to do it -- MR. PONTE: Yes. MR. DEWITTE: -- until the rezone process is done -- MR. PONTE: Yes. Yes. MR. DEWITTE: -- and then we leave it at 60 days? MR. PONTE: Yes. MR. DEWITTE: Of course, if they can't do it in 60 days and they come in because there were problems, we'll be lenient on the imposition of fine if that time frame wasn't long enough. MR. PONTE: Yes. MR. DEWITTE: So. But we won't say, Well, you had all the time while you were rezoning to do it. MR. PONTE: No. MR. DEWITTE: Because we sent in that app. MR. LEFEBVRE: Madam Chair, one question? CHAIRMAN BARNETT: Sure. MR. LEFEBVRE: We have specific deeds or at least I should say this stipulation has specific dates and monetary amounts. So if they don't meet one and then the next one they don't meet, the fines are going to be more than $1,000; correct? CHAIRMAN BARNETT: Well, it depends on what we set. MR. LEFEBVRE: Right. But I'm just saying, as the stipulation reads right now, we can't fine him $1,000 for not providing one step or moving to one step and then another $1,000 for the next step. MR. DEWITTE: Somewhere maybe we need a cap that total fines will not exceed so much per day. CHAIRMAN BARNETT: Jean, if we're listing it out because he's doing it A, B, C, D rather than this is Violation 1. This is Violation 2, Violation 3, he is correct, is he not? MS. RAWSON: Yes, he is. And also there are two -- three Page I I I April 27, 2006 alternatives. I think rezone or he can -- well, two, I guess, or he can demolish, either -or. CHAIRMAN BARNETT: So those are the only things that we can actually put in up to $1,000; correct? MS. RAWSON: Well, the way the stipulation is, their recommendation of the county is that as -- as you go along the steps on the rezoning process, if you don't meet one of them, you get fined. CHAIRMAN BARNETT: But isn't that exceeding our limit of fines? That's what I'm asking. MS. RAWSON: I would have to put them all in separate numbers. MR. DEWITTE: Couldn't we easily just cap it to our max daily and just say that, you know, they can add up as much as they want. Once you hit $1,000 a day, you're not going to be fined anymore? MS. RAWSON: Well, you need to tie in a fine for each step. So if you look at A, B, C and D there, there's $1,000 a day suggested for each step. And I don't think the intent is that if you did the first step and then you didn't get to the second step -- well, if you didn't do the first step and you didn't get to the second, third and fourth step, that you should have $4,000 a day. I don't think that was the intent at all. I think the intent was that if you did the first step and then you didn't complete the second step in a timely fashion, you might get fined. I mean, I believe that was the intent. CHAIRMAN BARNETT: But that doesn't -- to me it doesn't read that way. It looks like -- MR. DEWITTE: I think it's okay because the second fine doesn't come in. Like the first fine is you got to go apply for the rezone and you get this if you don't. The second fine doesn't start with -- MS. RAWSON: Until after. MR. DEWITTE: If you didn't get the rezone, it starts with after you're approved for the rezone, then this fine will accrue if you don't do the next thing. Well, you're never going to hit that because you Page 112 April 27, 2006 never got approved for the rezone. The third thing says, upon approval of the SDP, well, you're never going to get that fine if you didn't submit the SDP. You're still going to be working off the old one. So I don't think that they cascade like we think they do. I think it's, you know, labeled you do this or you get that fine assuming you did that upon the approval, you got to do this. If you don't, you get that fine. I think it reads well. CHAIRMAN BARNETT: Okay. MR. PONTE: As we look at that, suppose we were to simplify it a little bit -- a lot by just eliminating -- just forgetting Section B, C and D and going to No. 4 and taking it from there. Because the options are really only two things. The options are to either rezone or demolish. I mean, that's -- those are the only things that we really can do or that really can be done other than demolishing and then operating it as a -- as a commercial venture of some kind -- as industrial venture. So all of this is interesting, but I think it's confusing us a lot. It's confusing me a lot. And if we just use the Section A and then go to four, which is the demolition section, and the usual demolition, you know, removal of the debris stuff. CHAIRMAN BARNETT: How about Section A with the section that they do -- if they are granted everything, that they do have to get a certificate of completion? MR. LEFEBVRE: I -- I have a little bit of problem with that because I would hate to have any -- this respondent or any respondent come back saying, Well, I didn't know when I was supposed to submit. And, geez, you know, it's been 18 months. I need some more time. I just submitted two months ago. I didn't know I had to submit -- I didn't know it was going to take that long. If -- if we have something that lists it out, this is telling them, Hey, you know, put it on your calendar. This is when you have to have this done by. If it's not done, you know, you're not going to make that time frame. You know, we're putting their feet to the fire as Cliff Page 113 April 27, 2006 would say, the previous chairperson. We're putting their feet to the fire to specific dates. Do not want to see him come here in 18 months and say, Geez, well, I haven't started it. And then they had 18 months of a free ride. And they can say, Well, we're just going to demo -- demo the property. We're either going to get resolution to this very quickly by them providing their actions in a short time frame or -- or -- or we're not. They're either going to start the rezoning process right now and not be fined or if we leave it out and just give them 18 months, come back here in 18 months and say, Well, we're going to get a demolition permit. That's what I want to avoid. I want to make sure that they start -- start some process now and not wait 18 months. And if we just said you need a demolition permit after 18 months, they pull a permit, now they have another 90 days and they demolish the property and now we're 21 months out. MR. PONTE: What if you say in A, just look at A and insert your time frame. And say, Respondent shall act with due diligence and initiate the rezone application within ten days of this hearing, obtain the same within 365 days of the date of the application inquiry review or a fine of whatever it is you want to say per day will be imposed each day the violation continues. Now, if that doesn't happen, then the respondent can come back before the board and say, Hey, the rezoning people are dragging their feet. I've been there before them two or three times and we've -- it's now 364th day of this process. I'm not going to meet that deadline. I need an extension. We do that all the time. MR. LEFEBVRE: But we -- we can very clearly 18 months down the road we will know if they didn't make contact and set up an appointment within -- MR. PONTE: Well, I'm saying doing it within ten days. MR. LEFEBVRE: Right. But all these -- if you just leave -- it just seems like you just want to leave it very open ended. If -- but if Page 114 April 27, 2006 we put specific dates in here of when the SDP has to be -- or the rezone has to be applied for and so forth, those are specific dates that we can actually see when they went and submitted the rezone -- all the paperwork for rezone, all the paperwork for the site development plan. Those are specific dates that we can -- we can actually document when they submitted those. But if we just go and say, Well, 18 months down the road, if you're not done, there's no -- the fine won't start until 18 months down. I want us to have that fine start as soon as possible if they -- if they do not do what they're supposed to do. MR. PONTE: Well, it would. It would start within ten days. CHAIRMAN BARNETT: Excuse me, gentlemen. MR. DEWITTE: Oh, I was just saying that I need to leave in about ten minutes. I just wanted to make the board aware. Also I think I've got a motion kind of drafted. MR. PONTE: Let's hear. MR. DEWITTE: I think I've kind of exposed it. Before I give it, is everybody okay with $150 a day fine per parcel? I mean, to me that's 450 bucks a day. That's a lot. I don't know if I want to fine somebody $1,000 day. I mean, 100 days, 100,000 bucks is just like -- so, anyway, pay the operational costs in the amount of $1,062.54. CHAIRMAN BARNETT: $354.18. MR. DEWITTE: Oh, okay. MR. PONTE: Just -- just to be clear because I had started by making a motion. I'm withdrawing my motion. It's your motion. MR. DEWITTE: So give me that number again. It's 300 -- CHAIRMAN BARNETT: 354.18. MR. DEWITTE: $354.18 incurred in the prosecution of this case. And it's understood that the stipulation will probably apply across the board to the other two cases as well -- or this motion. The -- we will say that they need to pursue one of two paths. Either, one, rezone the parcel. And so if they elect to rezone the property in question, they shall contact the Collier County Zoning and Page 115 April 27, 2006 Land Development Department and schedule a preapplication inquiry and review within 14 days of the CEB hearing dated 4/27/06 or a fine of $150 per day will be imposed until the preapplication meeting is scheduled. The respondent shall then with due diligence and pursuit of said rezone obtain the same within 365 days of the date of the preapplication inquiry review or a fine of $150 per day will be imposed each day the violation continues. After the rezone process, the respondent must engage the services of a design professional to prepare and submit a site plan development for Collier County Zoning and Land Development personnel's review and approval within 60 days of the rezone approval or a fine of $150 day will be imposed each day until the SDP /SIP is submitted. Upon approval of the SDP /SIP, respondent shall act with due diligence to submit a complete and sufficient application for the Collier County building permits for all improvements for residential use of the property in question within 60 days of said approval or a fine of $150 per day per parcel will be imposed each day until the permits are submitted. Respondent shall receive all required inspections and certificates of completion within 120 days of issuance of the aforementioned building permit or a fine of $150 per day per parcel will be imposed each day the violation continues. If at any point in time they stop the rezone process or if initially they would like to go for a demolition permit and if they stop the rezone process, they must be for a demolition permit, the respondent shall obtain and complete -- obtain a complete and sufficient Collier County Demolition Permit and desist in all residential use of the property within 90 days after the CEB hearing date or within ten days after abandoned pursuit of the rezone process or of the SDP /SIP or any desisting in pursuing the rezone whichever is -- whichever is applicable or a fine of $150 per day per parcel will be imposed each Page 116 April 27, 2006 day the violation continues. Upon having obtained a demolition permit, the respondent shall then execute the same by removing all nonapproved, nonpermitted additions, improvements, use and resulting debris within 180 days after the CEB hearing dated 4/27/06 or 90 days after the SDP /SIP abandonment or a fine of $150 per day per parcel will be imposed each day the violation continues. And then as another measure, the respondent shall provide Collier County Code Enforcement with written notification that the violations have been abated and request an on -site inspection to confirm the same and provide this board with a quarterly update on the progress. MR. LEFEBVRE: One -- one thing is under, I guess, four and then A, we can't tie the demolition permit and it says, Remove all nonpermitted additions, improvements and use resulting debris within 180 days of CEB hearing. MR. DEWITTE: Oh, I'm sorry. Correct. MR. LEFEBVRE: Because that -- we got to tie it into them not getting the rezone. MR. DEWITTE: Well, it says it's either 100 days from CEB hearing or 90 days after the rezone is abandoned, the SDP /SIP or rezone process is abandoned so it's either -or. MR. LEFEBVRE: Okay. Thank you. MR. DEWITTE: I think one possible amendment to what I said should be when I said that they shall desist in all residential use except for that permitted as a caretaker unit, one per on the industrial setting. CHAIRMAN BARNETT: We have a motion on the floor. Do I have a second? MR. KELLY: Second. CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. Page 117 April 27, 2006 CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) CHAIRMAN BARNETT: That was for Case 2006 -16. I need to have a finding of fact for Case No. 2006 -17. MR. PONTE: Can we just say ditto? MS. RAWSON: I think you can say at this point in time because that was a very detailed motion that you find the same findings of fact and order of the board in the other two cases. CHAIRMAN BARNETT: Okay. I will entertain that as a motion. MR. PONTE: Well, why don't we -- CHAIRMAN BARNETT: Can I just say that, Jean, then? MS. RAWSON: Well, I'd like a vote. MR. DEWITTE: So motioned. MR. LEFEBVRE: Second. CHAIRMAN BARNETT: All those in favor? MR. DEWITTE: Aye. MR. MORGAN: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: (No response.) CHAIRMAN BARNETT: That concludes that case. Any opposed? Okay. Do you guys understand? Page 118 April 27, 2006 Michelle -- MS. ARNOLD: Okay. Shall I go -- CHAIRMAN BARNETT: I can't find my last page of my agenda. MR. PONTE: Where are we? We're lost. MR. DEAN: Take mine. CHAIRMAN BARNETT: We are -- basically we're up to new business. MS. ARNOLD: Yes. We are at imposition of fines. And the next item is CEB Case 2004 -010 which is Board of County Commissioners versus Paul and Kelly Byrd. This particular case was heard by the CEB on April 26th -- April 22nd, 2004, at which time a violation was found. And the order for that was entered at that time was attached for your review. This involved an excavation case where they failed to get the permits and -- or they got a permit and it expired but the work was never completed. (Mr. Dewitte leaves meeting.) MS. ARNOLD: At this point staff is recommending that we impose a large amount of fines in the amount of $164,808.79 which includes operational costs of 1,308.79 and fines that are accruing at the rate of $250 per day between June 23rd of 2004 through April 7th of 2006. And the fines, unfortunately, are still accruing because we don't have compliance to date. CHAIRMAN BARNETT: Do I have a motion? MR. PONTE: I just have one comment or reservation. And I was laughed at when I brought this up a while back on another case. The fine is $164,800. Is there anything that this board can do or anybody else can do to see that this fine is I notice a lien, but it's not having any effect. MS. ARNOLD: Well, if I could speak to that. In this case we probably should have -- I know not probably, we should have done the imposition of fine earlier rather than waiting till the fines accrued to Page 119 April 27, 2006 this amount. The process is we impose the fine. And -- and from time to time the board will see reports back to you saying that we're forwarding matters to the County Attorney's Office for them to negotiate either foreclosure or some sort of a settlement agreement or something for collection depending on the size of the fine. Because we didn't impose fines sooner is why we're in the situation where we're at I'm finding out. What will happen after -- three months after the fines are posed if the compliance is still not met, we will fine -- we will forward this case to the County Attorney's Office and they will begin negotiations and hopefully try to get this issue resolved. And that has happened in several other cases. It's just that this unfortunately wasn't timely imposed. MR. PONTE: Thank you. CHAIRMAN BARNETT: Do I have a motion? MR. PONTE: I'll make a motion to accept the county recommendation for the imposition of fines. MR. DEAN: Second. CHAIRMAN BARNETT: All those in favor? MR. MORGAN: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: All those in favor? Let me -- MR. MORGAN: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. Page 120 April 27, 2006 MR. KELLY: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) CHAIRMAN BARNETT: Next one, imposition of Gary D. Wilson. MS. ARNOLD: Yes. This is Code Enforcement Case 2004 -028, Board of County Commissioners versus Gary D. Wilson. Is that Mr. Wilson? MR. WILSON: Yes. MS. ARNOLD: Mr. Wilson is present. This particular case was heard by the board on June 24th, 2004, and a violation was found. The attached order -- the order is attached for your review. This was a case pertaining to litter and the violation has been abated. And so all we're asking for at this time is to impose operational costs in the amount of $1,090.75. CHAIRMAN BARNETT: And because this board can't change anything in regards to operation costs, you have something to say, we'll listen, but we can't reduce -- MR. WILSON: Yeah. Okay. Well, when I came to the hearing, I was accompanied with my aunt at the time two years ago or almost, the 24th. And Jeff, who was the officer that came to the house with the paperwork and stuff, we'd got together and worked it all out. And I had to come to the hearing. Okay. When I came to the hearing first thing in the morning, he approached me with another officer and gave me a piece of paper stating, you know, that -- you know, because both of us was agreed everything got taken care of that my fines would probably -- if I didn't want to sit here all day because, I guess, you go in alphabetical order. Being I'm a "W" I would have been at the end. MR. PONTE: It seems that way. MR. WILSON: Anyway, he told me, you know, since I wasn't contesting the fact, you know, that we had to take care of all this stuff, he told me at the time that my fine would be 200 to $250. And if I Page 121 April 27, 2006 didn't want to sit here all day, I could just sign the paper and it would be done with. So -- and then I would get the bill in the mail. So probably a month, maybe six weeks later I received a bill of $1,090. Okay. Well, I talked to a county person and explained to them that I was only supposed to be charged 200 to 250 at the most from what Jeff and one other officer had told me and my aunt -- MS. ARNOLD: Okay. You know what, rather than me go on, I'm -- I'm not sure. So we should check into this and rather than impose it, we'll withdraw it at this point and we'll talk. MR. WILSON: Well, that's what -- so the only thing I'm saying, you know, because I couldn't bring her with me today because right now she's bedridden. We're dealing with cancer. MS. ARNOLD: Well, and -- and I think he was dealing with another board secretary at that time. So -- and we're trying to -- CHAIRMAN BARNETT: Why don't we just go ahead, then, and table it? MS. ARNOLD: Yeah. MR. WILSON: Yeah, if we can. I mean, I appreciate it, you know. CHAIRMAN BARNETT: We'll let them research -- research it and we'll get back with you. MR. WILSON: All right. Thank you very much. MS. ARNOLD: Well, you know what, Shirley is -- is correcting me that the order does state the amount in there. CHAIRMAN BARNETT: Oh, does it? MS. ARNOLD: Yeah. Because I didn't see it on the stipulated agreement, but the order has the amount of 1,090. But we could -- we could table it and it says it on page -- the second page. CHAIRMAN BARNETT: Yeah, I see it. MS. ARNOLD: But we could table it and I'll talk to the investigator to make sure. CHAIRMAN BARNETT: I -- I think that would be fair at this Page 122 April 27, 2006 point. Let's go ahead -- MR. WILSON: I appreciate that. But just to say one thing. I mean, when me and Jeff talked, they hadn't had a price on it so -- and when he first come to the house, I wasn't at the residence at the time. So we first didn't get to meet when he first came to the house. But once we met and explained to him the situation of, like, he was talking about the brush work in my yard. He didn't realize that there had been a previous fire out there in Golden Gate Estates. And the forestry is the ones that came in and just plowed everything up together. And that's where the trees and stuff come, in part. He didn't realize that had happened. So maybe it might have got in the paperwork. And I appreciate it. MR. DEAN: Thank you. MR. PONTE: Thanks very much. CHAIRMAN BARNETT: Thank you. Okay. And James C. and Sherry Marshall. I believe there's a motion to stay with that as well. MS. ARNOLD: Right. Before I go through our recommendation, if Stephen Griffin could speak to that because this issue's been going on for a while. CHAIRMAN BARNETT: Years? MR. GRIFFIN: For the record, Steve Griffin, Assistant County Attorney. As I understand it, Madam Chair, we do have a motion for stay pending resolution of the case that the Marshalls filed in the -- in the circuit court. And as the case that I'm the attorney of record for so I have some understanding of it. Do you have the motion to stay in front of you? MR. PONTE: Yes. CHAIRMAN BARNETT: Yes, we do. MR. GRIFFIN: Okay. Then you -- you apparently have two pages of essentially his argument for the stay and the third page which Page 123 April 27, 2006 is the order to show cause. It certainly has been quite a bit of activity after that. And that is the preparation of a fairly lengthy brief and an appendix by the County Attorney's Office, namely me, which has been filed with the Court. There hasn't been a reply that's been filed in addition to that by the Marshalls which they failed to mention. So the matter I think is fully briefed for the Court to make some determination at this point. It has not done that, but Courts being as they are, we can't necessarily force them to do that in any particular time frame. But so there has been quite a bit of activity in the case that's not reflected in this. My understanding is he's asking for a motion to stay pending review and I would look under the rules of appellate procedure on that Rule 9.310 that the -- MS. ARNOLD: Madam Chair, can I interrupt for a second? I did talk to Mr. Marshall and I did tell him at that point that I was going to try to call him so he could hear the discussion. MR. GRIFFIN: All right. Okay. MS. ARNOLD: So let me -- I have to go over there and try and call him on the phone. (Brief discussion was held off the record.) (Short recess was taken.) (James C. Marshall brought to hearing via speakerphone.) MR. MARSHALL: Hello? CHAIRMAN BARNETT: Hi. MR. MARSHALL: Yes? CHAIRMAN BARNETT: Mr. Marshall? MR. MARSHALL: Yes. CHAIRMAN BARNETT: My name's Sheri Barnett. I'm the chair of the Code Enforcement Board and we're going to resume from our recess. MR. MARSHALL: Okay. CHAIRMAN BARNETT: Would you like to have -- in front of Page 124 April 27, 2006 you are county -- county attorney. MR. MARSHALL: Say that again, please. CHAIRMAN BARNETT: Standing in front of us is the county attorney. I'll let him introduce himself. MR. MARSHALL: Okay. MR. GRIFFIN: Mr. Marshall, can you hear me? MR. MARSHALL: Yes. MR. GRIFFIN: This is Steve Griffin, assistant county attorney with the Collier County Attorney's Office. And just as a procedural matter, if you want to go ahead and argue your motion, I think you can -- you can do that before the body. It's your motion and it's your burden to bring your case forward on that. MR. MARSHALL: We're talking about the motion to stay the imposition of lien? MR. GRIFFIN: Right. MR. MARSHALL: Okay. CHAIRMAN BARNETT: Should we -- we can't swear him in because he's not present? MS. RAWSON: I'm sure he doesn't have a notary there. CHAIRMAN BARNETT: Okay. Do we just proceed and let him go then, Jean, or -- MS. RAWSON: Well, he's arguing his own motion so we'll just treat him as if he's a pro se litigant. He's not testifying. He's just making an argument. CHAIRMAN BARNETT: Okay. Go ahead, Mr. Marshall. MR. MARSHALL: Well, I believe the argument in my motion is clear on its face that the validity and enforceability of the order of the board is not conclusive. And I included in my motion the case law that supports that. So -- and a copy of the order from Judge Brousseau ordering the Code Enforcement Board to show cause why the relief that we grant or were requesting, rather, which is the quashing of the board's order shouldn't be granted. Page 125 April 27, 2006 So it's -- I think it's clear that there is a question as to the validity and enforceability of the order. Now, we know under your rules the order was not stayed by my filing an appeal. But I think it's clear that the question of the legality or the legality of -- of the order is in question. So I think the appropriate thing to do would be to stay the imposition of the fine. It's very plain and to the point. CHAIRMAN BARNETT: County attorney. MR. GRIFFIN: Mr. Marshall, again, for the record and for the -- for those individuals here in the proceeding, Steve Griffin for the County Attorney's Office. It would be the position of the county, Madam Chair, that -- that the motion be denied essentially because of the length of time that's passed. What Mr. Marshall is pointing to is actually, again, an order to show cause which is a procedural mechanism whereby the judge is telling the respondent to go ahead and -- and file a response to the petition that's been filed. So it's, if you will, a recognition by the Court that on its face there's a valid petition. It's not that the order is in question. The judge certainly doesn't pretend to make those determinations simply by the filing of the petition. It's just that means that a case has been initiated, but there needs to be a response. And after a response is filed, a reply can be filed by the respondent -- by the petitioner if he or she so chooses. And all of that has happened, in fact. So I think the issue again is pretty squarely before the judge, but there is certainly some discretion under the rules of appellate procedure for this quote- unquote the lower tribunal to make some determination of whether or not to stay the final administrative order. And it is certainly a final administrative order which is valid until and if the Court determines that it is not valid. And that determination certainly has not been made. CHAIRMAN BARNETT: Jean -- she is Code Enforcement Board's attorney. Page 126 April 27, 2006 MS. RAWSON: Well, what he's telling you is correct. You have the discretion to stay until the appellate court makes a ruling. There are certain instances in which the lower tribunal, you, can still go ahead and make orders, however. So if -- it's up to you whether or not you want to go forward with the imposition of fines or you want to stay them until Judge Brousseau -- well, it will be probably Judge Hart, makes the final determination. CHAIRMAN BARNETT: If we go forward with the imposition of fines and the judge decides that we did something incorrectly, it will be thrown out anyway; correct? MS. RAWSON: Well, you'd have to go back and correct your -- your order. CHAIRMAN BARNETT: Okay. MS. RAWSON: You know, he would remand it back to you. CHAIRMAN BARNETT: Okay. MR. MARSHALL: I'd like to say something here if I might? CHAIRMAN BARNETT: Go ahead. MR. MARSHALL: I think that's Ms. Rawson speaking. Whether or not the judge quashes the order or remands it back to the board for some other action is -- is hypothetical at this point. I don't know if the members of the board were able to read my motion or not. I'm sure it got there in time. But in the case that I cited which would be on the second page of my motion, it talks about commissioners for the enforcement of such rule, heavy fines cannot be lawfully imposed for such violations pending such attached. So I think what the -- the county attorney and what the board's attorney has failed to notify the board of that these fines could be viewed at -- or would certainly would be viewed at -- viewed by us as being unlawfully imposed. And that's -- that's the question. So I think that's something for the board to consider is whether the action they take today is lawful or not. Because I don't -- I don't believe under case law that it would be lawful. Page 127 April 27, 2006 MR. GRIFFIN: Well, I may -- Steve Griffin, again, for the record. I may be missing a page or something, but I don't, in fact, see a particular case being cited, but there are -- MR. MARSHALL: Oh, the case -- the case that I'm citing is the Supreme Court of Florida. MR. GRIFFIN: Certainly some indented material. MR. MARSHALL: Excuse me? MR. LEFEBVRE: The bottom of the second paragraph. MR. GRIFFIN: Yeah. But -- yeah. Again, I don't see a case citation here. I'm looking over to Jean. But, I mean, I think what he's quoting from is essentially the state constitution. MR. MARSHALL: No. I'm -- I'm -- I'm quoting a case, as Florida East Coast Railway versus The Board of -- The Board of Railroad Commissioners. And I -- it's cited right above the closing statement on -- the page where I have my certificate of service. It's the Supreme Court of Florida case. The citation is there, the Supreme Court of Florida, 79 FL -- MS. RAWSON: The second -- second page, last paragraph. MR. GRIFFIN: Well -- MS. RAWSON: It's a 1920 case. MR. GRIFFIN: Okay. It says, Section 4, Declaration of Rights, Supreme Court of Florida. MR. MARSHALL: Everything -- MR. GRIFFIN: And then no citation. MR. MARSHALL: Everything in single space is from that case. And the case is not dead. It's valid law. It's Constitutional law. MR. GRIFFIN: Well -- MR. MARSHALL: The imposition of fines pending a test -- its imposition of fines by a legislative body which is nonjudicial pending a test by the Court, the imposition of those fines by us will be -- will be viewed as unlawful. Now, if the county takes an unlawful act and imposes fines upon Page 128 April 27, 2006 us, for instance -- for instance, and the lien is foreclosed and the property is sold and then the Court rules that the order was illegal, how do you get us our property back? MR. GRIFFIN: Well, the case cited to, first of all, is directly to the rules and orders of the Railroad Commission and back to about 19205 if I'm not missing something here. But, again, there's no citation to any case. There's not a case citation here. There is simply a mention in a very, very particular way about rates, rules, orders and regulations by the Railroad Commissioners almost 100 years ago. So I would suggest that it's completely inapplicable to what we're discussing today. And would not bleed over into a Code Enforcement Board action based on something that occurred, again, about 90 years ago, I guess, before the Railroad Commission, under old sets of codes, old sets of requirements and in a very particular way. CHAIRMAN BARNETT: Okay. At this time I'll close the public information input. And I'll ask the board their pleasure. MR. LEFEBVRE: I make a motion -- MR. PONTE: Go ahead. MR. LEFEBVRE: Make a motion in CB -- CEB Case No. 2004 -72, Board of County Commissioners versus James C. and Sherry Marshall, that there is -- that we impose -- let's see -- MS. ARNOLD: Well, you need to make a finding on his motion. That's what you need to do. CHAIRMAN BARNETT: Okay. Finding on the motion. MS. RAWSON: Motion to stay first. In other words, make a ruling on the motion -- MR. LEFEBVRE: Make a motion to deny the stay. CHAIRMAN BARNETT: Do I have a second? MR. PONTE: I'll second it. CHAIRMAN BARNETT: All those in favor? MR. MORGAN: Aye. CHAIRMAN BARNETT: Aye. Page 129 stay. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: (No response.) CHAIRMAN BARNETT: April 27, 2006 Any opposed? Mr. Marshall, we have denied your MR. MARSHALL: Okay. MS. ARNOLD: This is Michelle Arnold speaking now. MR. MARSHALL: I'd like -- I'd like Ms. Arnold to be sworn in, please. MS. ARNOLD: I'm not testifying, Mr. Marshall. This is a -- MR. MARSHALL: For the record -- for the record I'm just requesting that you're there and the reporter is there. I would like you to be sworn in. MR. LEFEBVRE: And you're not -- MS. ARNOLD: And you weren't sworn so I'm objecting to your request. MR. MARSHALL: Well, you could have sworn me in. I've been sworn in before over the phone. MS. ARNOLD: You are a remote location. There is no -- nobody there that I'm aware of that is a -- MR. MARSHALL: Go ahead. Go ahead. Proceed. MS. ARNOLD: Okay. Okay. This is Code Enforcement Board Case No. 2004 -72. This matter was heard before the board on April 28th, 2005. At which time a violation was found. The matter is related to construction without permits on an expired permit. And at this point we are still -- the violation is still not been abated. It is staff s recommendation that we impose or the board impose fines in the amount of $43,380.04 for -- which includes operational costs of $930.04 cents and fines accruing at the rate of $50 per day for Page 130 April 27, 2006 the period of June 29th, 2005, through April 7, 2006, for a total of 14,150. And another fine accruing at a rate of $100 per day from the period of ever June 29th through April 7th for 28,300. And so that's a total of $43,380.04. MR. MARSHALL: Okay. Who determined the operational cost? MS. ARNOLD: The board's secretary determines the operational cost based on the order imposed by the board. MR. MARSHALL: Okay. CHAIRMAN BARNETT: Do I hear a motion? MR. MARSHALL: I have -- I have -- I have a question. I'd like to -- I'd like to refer to the affidavit of noncompliance. CHAIRMAN BARNETT: Okay. MR. MARSHALL: Okay. The affidavit states that the order recorded in the records of Collier County Book 3771, page 3447; is that correct? Is that what the affidavit says? CHAIRMAN BARNETT: Yes. MR. MARSHALL: All right. That's not correct. So the affidavit in my view is void and you can't impose the fines upon this affidavit of noncompliance. The sworn statement in that is not a true fact. CHAIRMAN BARNETT: Jean? MS. ARNOLD: Yeah, the page number is incorrect. MS. RAWSON: That's an error of form and not substance. It's a clerical error. You can certainly correct it. MR. MARSHALL: I'm not going to correct it. I have nothing to correct. You know, you want -- you want to base -- you want to find that the affidavit is sound and there's no false statements in there, that's up to you. I'm just -- I'm just stating for the record that the affidavit is not accurate. CHAIRMAN BARNETT: Michelle. MS. ARNOLD: Madam Chair, we will ask the investigator to correct that clerical error and we can record it. It's not recorded, but Page 131 April 27, 2006 we can certainly record it in the public record with that correction. MR. MARSHALL: And -- and since you mentioned recording, as I understand it in the rules, Article X under Enforcement that the affidavit also needs to be recorded. And -- and you just stated for the record it hasn't been recorded. So I don't think you've got all your ducks in a row today. MS. ARNOLD: You're absolutely right. And that's -- I stand corrected. We will record the corrected affidavit. Thank you for pointing that out. MR. MARSHALL: And we'll have another hearing I would imagine because you don't have -- you don't have an affidavit to rely upon for the imposition of fines. That's how I see it. So if you want to go ahead and impose the fines without an affidavit and correct it after the fact, then I certainly don't believe that's lawful. You can hem and haw about it being not of substance and da- da- da -da, but, you know, we're not going to do with that. MS. ARNOLD: Well, we're relying on the investigator's comments that the violation has not been abated, not based on -- it's nothing based on when -- where the order was recorded. The order stands on its face and the affidavit says that the violation's not been abated. And that's how the fines have been estimated. CHAIRMAN BARNETT: County attorney -- MR. GRIFFIN: Well, I just -- county attorney -- Assistant County Attorney Stephen Griffin, again, for the record. Madam Chair, I just point out that really the requirement is whether or not you can identify what the order is. It's not that the page number has to be down to the -- exactly the right page. You can -- you can consider that some sort of a clerical or scrivener's error. And as long as the order is -- is identified sufficiently, I think that's all that the law really requires. CHAIRMAN BARNETT: Thank you. Okay. Again, I'm asking for the privilege of the board. Page 132 April 27, 2006 MR. LEFEBVRE: I make a motion in CEB Case No. 2004 -72, Board of County Commissioners versus James C. and Sherry Marshall that we impose a lien in amount of $43,380.04 for fines. And it will be listed out below as Order Item No. 8, operation costs of $930.04, Order Item No. 4, fines at a rate of $50 per day for a period of between June 29th, 2005, through April 7th, 2006, totaling $14,150, fines accruing until affidavit of compliance is received by Code Enforcement. Order Item of No. 5, fines at a rate of $100 per day for a period between June 29th, 2005, through April 7th, 2006, totaling $28,300, fines accruing until affidavit of compliance is received by Code Enforcement. CHAIRMAN BARNETT: Do I have a second? MR. PONTE: I'll second. CHAIRMAN BARNETT: All those in favor? MR. MORGAN: Aye. CHAIRMAN BARNETT: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Any opposed? (No response.) CHAIRMAN BARNETT: Thank you. MS. ARNOLD: Thank you, Mr. Marshall. We're going to hang up now. CHAIRMAN BARNETT: We don't have any old business? MS. ARNOLD: Nope. CHAIRMAN BARNETT: And we don't have any reports. Comments? Next meeting is going to be May 25th, 2006. I will entertain a motion to adjourn. MR. DEAN: Motion to adj ourn. Page 133 CHAIRMAN BARNETT: MR. PONTE: Here. CHAIRMAN BARNETT: MR. MORGAN: Aye. CHAIRMAN BARNETT: MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Second? All those in favor? Aye. Thank you. April 27, 2006 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 2:40 p.m. CODE ENFORCEMENT BOARD SHERI BARNETT TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING, INC., BY CAROLYN J. FORD, RPR Page 134