Motion1 CELU20200000904 FOGGS INVESTMENTS LLCPerezCristina
From:
Sent:
To:
Cc:
Subject:
OssorioMichael
Wednesday, July 1 5, 2020 3:16 PM
PerezCristina
LetourneauJeffrey
FW: Foggs Nursery Matter
Fyi
From : KlatzkowJeff <J eff. Klatzkow@col I iercou ntyfl.gov>
Sent: Wednesday, July 15, 2O2O 2:14 PM
To: coleen@cjmaclaw.com
Cc: OssorioMichael <M ichael.Ossorio@colliercountyfl.gov>
Subject: Foggs Nursery Matter
Ms. MacAlister:
I am in receipt of your motion to transfer the Foggs Nursery matter from the Special Magistrate to the Code
Enforcement Board.
There is no mechanism on a staff level to transfer cases between the Special Magistrate and the Code
Enforcement Board. You are of course welcome to request this from the Special Magistrate when this matter is
heard. Should such a request be made, staff will likely object, as it is staff s belief, which I concur with, that the
Special Magistrate is better equipped to handle the complexities of this matter. Staff will, however, adhere to
whatever ruling the Special Magistrate may make should you ask for such relief.
As always, please feel free to call me should you have any questions
Jeffrey A. Klatzkow
Collier County Attorney
(23e) 2s2-2614
Under Florida Law, e-mail addresses are public records. lf you do not want your e-mail address released in response to a
public records request, do not send electronic mailto this entity. lnstead, contact this office by telephone or in writing.
1
Coliier County, FL Code of Ordinances Page 1 of 1
Sec.2-2022. - Qualification, appointment, and removal of Special lVagistrates
Appointment of a Special lVagistrate shall be based on the following qualifications and terms:
(1) The Commission shall appoint as many Special lVlagistrates as deemed
necessa ry.
(2) Special Magistrates shall at minimum: (a) be a graduate of a lawschool
accredited by the American Bar Association; (b) demonstrate knowledge of
administrative law, land use law and local government regulations and
procedures; (c) be a member in good standing with the Florida Bar; and (d) be
either a certified mediator under the rules of the Florida Supreme Court, an
arbitrator qualified by a recognized Arbitration Association, or a former judge;
and (e) meet other such qualifications that may be established by resolution
of the Commission.
(3) Special Nlagistrate appointnnent shall be for a two-year term. Upon
recommendation of the Special Magistrate Review Board, any Special
Nlagistrate may be reappointed at the discretion of the Commission. There
shall be no limit on the number of reappointments that may be given to any
Soecial lVagistrate; provided a determination for removal or reappointment is
rnade for each individual Special lVagistrate at the end of each two-year term.
The Commission shall have authorityto remove a Special IVlagistrate with or
without cause upon ten days written notice.
{4) !f any Specia! N/agistrate resigns or is removed prior to expiration of his or
her term or the Review Board determines that the Special I\4agistrate should
nct be reappointed, the Review Board shall make a recommendation for
reappointment from the candidates previously interviewed to fill the vacancy
within 30 days.
(Ord. No. 2010-04, 5 1)
abou.t:blank 71t512020
CODE ENFORCEMENT - COLLIER COUNTY, FLORIDA
Office of the Special Magistrate
BOARD OF COUNTY COMMISSIONERS,
COLLIER COUNTY, FLORIDA
Plaintifl
CASE NO. : CELU20200000904
FOGGS INVESTMENTS LLC,
Respondent.
RENEWED MOTION TO TRANSFER CASE NUMBER CELU2O2OOOOO9O4 FROM THE
OFFICE OF THE SPECIAL MAGISTRATE TO CODE ENFORCEMENT BOARI)
COMES NOW, Respondent, FOGGS INVESTMENTS LLC, by and through its
undersigned counsel, and files this renewed motion to Transfer Case Number CELU20200000904
from the Office of the Special Magistrate to the Collier County Code Enforcement Board for
hearing. In support, Respondent would state as follows:
l. On or about January 23,2020, this case was opened by Collier County Code
Enforcement following a noise complaint by an undisclosed new homeowner in LaMorada, a
housing development recently completed next to Foggs. On January 24,2020, Code Enforcement
made an inspection visit to Foggs Nursery on Immokalee Road, which has been selling
landscaping materials in Collier County since 1987. On May 71,2020, Notice and an Order to
Correct Violations was posted on Foggs' property. A Notice of Hearing on the violation was
issued on June 24,2020, for a Hearing before the Office of the Special Magistrate on July 8,2020.
2. On June 25,2020, Foggs Investments filed a Molion to Continue the Hearing and a
Motion to Transfer Case Number CELU20200000904 from the Office of the Special Magistrate to
Page I of 5
VS.
the Code Enforcement Board. The motions were styled "Office of the Special Magistrate." [Exh
A, Motions]
3. On June 30,2020, counsel for Foggs Investments received an email from Christina
Perez of Code Enforcement stating that it had received Foggs' "written request" and that she had
"reviewed your request with the Division Director" and "will grant the continuance..." There was
no mention or reference to Foggs' Motion to Transfer the Hearing to the Code Enforcement Board.
[Exh B, Email from Christina Perez]
4. From the outset, Christina Perez has been an active participant in the investigation
and prosecution of Case Number C8LU20200000904 against Foggs.
5. In the initial Motion to Transfer, Foggs argued the Notice of Violation specifically
stated that failure to correct violations could result in "mandatory notice to appear," "issuance of a
citation" or "Code Enforcement Board review." (Emphasis added) On May 26,2020, Foggs,
through its counsel, sent Collier County Code Enforcement written notice that it objected to the
Notice of Violation dated May 11,2020, and specifically requested a hearing before the Code
Enforcement Board. [Exh C, notice]
6. Foggs' motion did not challenge the jurisdiction of the Office of the Special
Magistrate to hear the violation, but argued that it anticipated a fact and evidence-intensive hearing
and lengthy legal argument on a zoning matter that was not "cut and dry" and the composition of
the Code Enforcement Board, and its public debate before issuing a decision, would provide a
perspective that would be especially helpful in deciding whether a zoning violation had actually
occured. Mr. Fogg stated his belief that his right to due process would be best served by having
the more diversified Code Enforcement Board hear the case. [Exh A].
Page 2 of 5
7. In moving for the transfer, Foggs argued, " The Code Enforcement Board also
employs its own legal advisor. Well-established Florida law states that traditional notions of
justice and fair play prohibit an administrative board from having a single attomey act as both the
prosecutor and legal adviser to the Board. Impartiality and zealous representation are inherently
incompatible in the same person at the same time."
8. It is abundantly clear that in this case, Foggs' motions for continuance and transfer
were never even seen by the Office of the Special Magistrate, much less ruled upon by that Office
Foggs motion to continue was decided by one of the prosecutors of the case and the Code
Enforcement Division Director and apparently, together, they decided to simply ignore Foggs'
request for transfer of the case. Here, not even a county attorney was involved. Instead it was the
prosecuting administrative department that decided motions brought by the responding party.
9. If the argument is that Foggs did not follow proper procedure for filing the motions,
then the motions should have been returned, not ruled on and ignored.
10. It does not appear that either Florida statute or Collier County ordinance have
established criteria, policy or procedure for determining whether a particular matter, except in
certain enumerated circumstances, is heard by the Special Magistrate or the Code Enforcement
Board. Multiple Florida jurisdictions have found that it is often necessary to fill procedural gaps in
Chapter 162by the common sense application of basic principles of due process. In the absence of
any policy or procedure to the contrary, if Foggs is not afforded the privilege of requesting the
forum it considers most capable of deciding the charged violation in a fair and unbiased manner,
and forum selection is left solely to the discretion of the prosecuting office, then traditional notions
of fair play and due process are violated.
Page 3 of 5
I l. If the determination of this motion is discretionary, as it appears it is, then the same
"good cause" standard for exercising discretion applicable to judicial matters should apply to
quasi-judicial matters, and the motion should be granted. In this case, the prosecuting
governmental entity ruled on one motion brought by a responding corporate citizen and failed, to
the corporate citizen's detriment, to forward the other motion to the Office of the Magistrate
While Foggs makes no claim that the Special Magistrate engaged in any improper conduct, it does
appear that the relationship between the Office of the Special Magistrate and Code Enforcement is
close enough that Code Enforcement felt privileged to respond to Foggs' motions in the manner
that it did and without the involvement of the Office of the Special Magistrate or the county
attomey. Where there is even the hint of bias, as here, good cause demands the case be transferred
to the Code Enforcement Board, or that a hearing be set to determine which forum should hear the
violation
WHEREFORE, Respondent, FOGGS INVESTMENTS LLC, respectfully requests
transfer of Case Number CELU20200000904 to the Collier County Code Enforcement Board.
Respectfully itted on behalf of Respondent by:
J. MacALISTER
lorida 04711
LAW OFFICES OF
COLLEEN J. MacALISTER, P.A
5061 Napoli Dive
Naples, Florida 34103
Phone: (239)262-3760
FAX: (239) 790-s779
colleen@cjmaclaw.com
Page 4 of 5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that three true and correct copies of the foregoing have been
hand delivered to the Office of the Special Magistrate, c/o Collier County Code
Enforcement, 2800 North Horseshoe Drive Naples, Florida 34'104, and a true and correct
copy has been mailed by US Mail to: Collier County Board of County Commissioners,,
3301 Tamiami Trail East, Building F, Naples, Florida 341 on this 7'h day ofJuly 2020.
By:
CO . MacALISTER
Bar : 080471I
Page 5 of 5
BOARD OF COUNTY COMMISSIONERS,
COLLIER COI.]NTY, FTORIDA
Plaintiff,
vs CASE NO.: CELU20200000904
FOGGS INVESTMENTS LLC,
Respondent.
MOTION FORCONTINUANCE OF HEARING AND
MOTION TO TRANSFERVIOLATION TO CODE ENFORCEMENT BOARD
COMES NOW, Respondent, FOGGS INVESTMENTS LLC, by and through its
undersigned counsel, and files this Motion for Continuance ofa Hearing noticed on June 24, 2020,
for July 8, 2020, and Motion to Transfer Violation to the Collier County Code Enforcement Board
for hearing. ln support, Respondent would state as follows:
l. On or about January 23, 2020, this case was opened by Collier County Code
Enforcement following a noise complaint by an undisclosed new homeowner in LaMorada, new
housing development built next to Foggs. On Jarr.nry 24,2020, Code Enforcement made an
inspection visit to Foggs Nursery on Immokalee Road which has been selling landscaping
materials in Collier County since 1987. Following that inspection, a meeting to discuss the
County's concems was held at the offices of Collier County Code Enforcement on February 5,
2020 with Stan Fogg, representing Foggs Investments LLC, counsel for Foggs, and three Code
Enforcement staff, including zoning, in attendance. Zoning said it wanted a site inspection and
Mr. Fogg agreed. A site inspection visit was scheduled for March 10,2020. On March 10, Mr'
Fogg, Foggs counsel, and a code Enforcement investigator waited for an hour at Foggs before
EXHIBIT A
CODE ENFORCEMENT - COLLIER COUNTY, FLORIDA
Office of the Special Magistrate
being informed that zoning was not going to appear. Mr. Fogg and counsel were told by the
investigator the case would be closed.
2. The case was not closed and two months later, on May I l, 2020, Notice and an
Order to Correct Violations was posted on Foggs' property. The Notice specifically stated that
failure to correct violations could result in "mandatory notice to appear," "issuance ofa citation"
or "Code Enforcement Board review." (Emphasis added)
3. The Notice was not clear on what course ofaction Foggs was to take ifit denied
any violation had occurred. OnMay 26,2020, in an abundance ofcaution, Foggs, through its
counsel, sent Collier County Code Enforcement written notice that it objected to the Notice of
Violation dated May 11,2020, and requested a hearing on the Order to Correct before the Code
Enforcement Board.
4. Collier County Code Enforcement responded six weeks later, on June 24,2002,
with a Notice of Hearing before the Special Magistrate scheduled for July 8, 2020. Despite on-
going contact between Foggs, its counsel and Code Enforcement, no attempt was made to
coordinate the Hearing in advance ofscheduling.
5. Mr. Fogg is scheduled to leave Naples for the 4'h ofJuly holiday on July 3d and will
not retum to Naples until July 20, 2020. This is an annual vacation for Mr. Fogg. When he
retums, Mr. Fogg will be alone at Foggs the last week in July while his crew takes advantage of
Florida's sport lobster season, also an annual event. Counsel for Foggs is scheduled for cataract
surgery on July 21, 2020, and has already completed her pre-op medical clearance.
6. Even ifMr. Fogg, as representative ofthe respondent was available, Code
Enforcement has provided such short notice that it is difficult to see how the four-week publication
schedule can be satisfied, and not possible to make wriften requests for subpoenas and then serve
those subpoenas with sufficient notice to the witness. Given Code Enforcement's slow pace in
bringing this case forward, it can hardly object to a continuance or argue there is a need for
immediate resolution.
7. Mr. Fogg also specifically requested a hearing before the Code Enforcement Board.
While jurisdiction over this matter is coextensive between the Code Enforcement Board and the
Office of the Magistrate, Mr. Fogg anticipates a fact and evidence-intensive hearing and a len$hy
legal argument on a zoning matter.
8. Both Code Enforcement Board and the Special Magistrate are more than competent
to hear the legal argument, but that is where the similarity ends. The Code Enforcement Board is
composed ofindividuals representing occupations including architect, business owner, engineer,
general contractor, subcontractor and realtor who are considered for the Board on the basis oftheir
experience or interest in the areas of the codes and ordinances to be enforced. The composition of
the Board provides a perspective on zoning issues that is especially helpful in matters such as this
that are not "cut and dry."
9. The Code Enforcement Board also employs its own legal advisor. Well-established
Florida law states that traditional notions ofjustice and fair play prohibit an administrative board
from having a single attomey act as both the prosecutor and legal adviser to the Board.
Impartiality and zealous representation are inherantly incompatible in the same person at the same
time.
10. Mr. Fogg believes his right to due process will be best served by having the more
diversified Code Enforcement Board hear the case.
WHEREFORE, Respondent, FOGGS INVESTMENTS LLC, respecttully requests a
continuance ofthe Hearing until after August l, 2020, with sulficient time to between the notice
and date of the hearing to accommodate a request for subpoenas and service thereof, and transfer of
the Hearing on the violation to the Collier County Code Enforcement Board.
on behalf of Respondent by:
. MacALISTER
BarNo: 080471I
LAW OFFICES OF
COLLEEN J. MacALISTER, P.A.
5061 Napoli Dive
Naples, Florida 34103
Phone: (239)262-3760
FAX: (239) 790-s779
colleen@cjmaclaw.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
fumished by certified mail no.: 7015 0640 0005 0346 7198 and by U.S. Mail to: Elena
Gonzalez, Collier County Code Enforcement,
34104, on this 25'h day of June 2020.
2800 N Horseshoe Drive Naples, Florida
By
J. MacALISTER
Florida Bar No: 080471 1
From : PerezGristana Cristin a. Perez (?rrcol liercou ntyf l. gov
Subject: CELU20200000904
*ale: June 30,2O2O at 5:03 PM
To : cr.;lleen r:il,cjrnaclatnr.corn
Good Afternoon Ms. MacAlister;
Code Enforcement Division received your written request for a continuance of the hearing
scheduled forJuly 8th,2O2O regarding case CELU2O2OOOOO9O4,Fogglnvestments LLC.
I have reviewed your request with the Division Director Mr. Ossorio and will grant the
continuance from the July 8th hearing; case will be re-scheduled for the next Special Magistrate
Hearing on August 7,2020.
Regards,
Cristina Perez, CPM
I'tlCE Certified in Levels 1.2,3,4
lnvesti gtrlive Supert,isor Cenlral District
G row' t h lVla n a ge m e n t D ep a rt me nl, P I a n n ing o n d Regtt I at io n
( 1 xlc Etrfim'cment Division
O.//i c:e ; 2 3 9. 2 5 2. 6867
Cell' 239-877-8127
Far: 239.252.3904
C*lrnty
Under Florida Law, e-mail addresses and their context are public records. lf you do not want your
e-mail address or the contexts released in response to a public records request, please do not
send electronic mail to this entity.
not send elecl()nic rnail to this errtity lnstead. contact this offrce by telephone or in writing
EXHIBIT B
Law ffi ces of Colleen J. MrcAlister,PA
tv1ailirg1661oo
506lt€poliDtive
llapl€6,FL3flO3
rrvutw.cjrnaclar,com
Telephonq 239262J.1@
Facsimile 239.79Oi29
Ernail: ccilleen@irn tclaw.@rrl
May 26.2020
Collier County Code Enforcement
2800 North tlorseshoe Drive
Naples. Florida 34144
Sent via U.S. Mail
Re:Notice of Violation
Location: Fogg Investments LLC
10270lmmokalee Road
Naples, Florida 34nA (Unincorporated Collier County)
Case Number: CELU20200000904
'l'o Whom It May Concem:
On May ll,}}}},lnvestigator John Fuentes delivered a Notice and Order to Corrcct
Violation(s) to Stanley Fogg, Jr., o\ener of Fogg Investments, LLC. d/bla Fogg's Nursery
rcgarding his property at 10270 Immokalee Road. The Notice of Violation was the result ol'a
Complaint about noise from a new homeowner or homeowners in the La Morada development
on oi about January n.2AZA. A site visit to Fogg's resulted in the posting of an unlawful Clease
and Desist Notice on January 24.2A2A by Collier County Code Enforcement.
Mr. Fogg has, on more than one occasion, allempted to resolve this matter with Collier
County. to no avail. After receipt of the Notice and Order on May I l. he offered to meet again
with the County, but apparently county personnel were not available to meet with Mr. Fogg when
he was available. On May 12,202A, the undersigned called and spoke rvith Investigator Fuentes
and infbrmed him that Mr. Fogg did not agree with Code Entbrcement's determination that his
operation in any way violated the permits under which he currently operates or that any part of
his operation required an additional permit. Counsel told the inspector the Notice crf Violation
*u, urgu., over broad and ambiguous and Mr. Fogg was requesting a hearing on thc Notice ol'
Violation with the Code Enforcement Board.
Code Enforcement should consider this letter as Mr. Fogg's formal objection to thc
Notice of Violation dated May I l, 2020. and his Request for a Hearing on the Order to Correct
Violations before the Code Enforcement Board.
EXHIBIT C
Page 2
Letter to Collier County Code Enforcement
May 26,2024
Mr. Fogg is also formally requesting the names and phonc numbcrs ol'thc persons in La
Morada that have complained about Fogg's to Code Enforcement. Mr. Fuentcs intr:rmed counscl
that he did not have to provide names and phone numbers becausc thc initial call came in as a
3l I call. He has also stated he has been to La Morada on numerous occasions lbr numerous
complaints about Fogg's from numerous La Morada homeowners.
Per Code Entorcement's own published policy and a Board of County Commissioncr's
policy eftbctive March 12. 2013, a name and phone number must be providcd regardless ol'
whether a complaint is filed by phone, through the online complaint portal" through the Collier
3l I system or in pcrson, unless the concem is an emergency that immediately threttens the
public health and safety or could cause calastrophic consequences. '[his mattcr has been pending
for months and no code enforcement official has explained how a noise complaint or any o[the
other numerous complaints that has been stated rise to the level of a threat to the puhlic health
and safety or could cause catastrophic consequences - especially givcn that l;ogg's has been
conducting business in the same manner at the same location since 1997. Since Mr. Fogg
initially made this request almost thirty days ago, I expect that the namcs and phonc numbers rvill
be provided forthrvith to the undersigned.
Please advise on the date of the hearing before the Code Enlbrcement lJoard on the
above-referenced Notice and Order. Mr. Fogg remains open to discussions with the County until
the hearing date. All correspondence should he directed to the undersigned.
Sincerely,
Esq-