CEB Case Number 2007-35
COUNTY EXHIBIT A
TABLE OF CONTENTS
Board of County Commissioners of Collier County, Florida
vs.
MMB of Southwest Florida LLC and Bonita Media Enterprises, LLC, Respondent(s)
Brennan, Manna & Diamond, PL (Registered Agent),
CEB No. 2007-35
DEPT No. 2006120468
ITEM
PAGE(S)
Notice of Hearing
Statement of Violation and Request for Hearing
Notice of Violation
Copy of Applicable Ordinance
I
2
3
4-7
COLLIER COUNTY, FLORIDA
CODE ENFORCEMENT BOARD
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS, Petitioner
CEB CASE NO. 2007-35
DEPT CASE NO. 2006120468
vs.
MMB Of Southwest Florida LLC and Bonita Media Enterprises, LLC., Respondent(s)
NOTICE OF HEARING
To: MMB Of Southwest Florida LLC and Bonita Media Enterprises, LLC
1750 I Stepping Stone Drive
Fort Myers, FL 33912
Brennan, Manna & Diamond, PL (Registered Agent)
330 I Bonita Beach Road, Suite 202
Bonita Spring, FL 34134
Pursuant to Section 162.06 and 162.12, Florida Statutes, and Collier County Ordinance No. 92-80, you are hereby ordered to
appear at a public hearing for failure to correct code violation(s) noted in the attached Statement of Violation by the time specified
by the Code Enforcement Investigator, pending and undetermined by the Board, on May 24, 2007 at 9:00A.M. at the Collier
County Goverument Center, Administrative Building, Third Floor, 3301 East Tamiami Trail, Naples, Florida 34112, The
Board shall issue findings of fact, based on evidence of record and conclusions ofIaw, and shall issue an order affording the proper
relief consistent with powers granted under chapter 162, Florida Statutes. Included in the packet are the Rules and Regulations,
which govern the hearing and enforcement processes. The attached packet (Attachment A) will be presented to the Board by the
County at the public hearing. You may provide the Board a defense packet. If you decide to do so, you must make fifteen
(15) copies and have them delivered to ODerations Coordinator, Code Enforcement, Community Development and
Environmental Services, 2800 N. Horseshoe Dr., Naples, FL 34104 by 1:00 P.M. no less than 10 business days prior to tbe
hearing. In your packet you may give a summary of events and/or present any evidence you want the Board to consider. You
may also contact the Code Enforcement Investigator before the hearing to discuss an agreement to abate the violation at (239) 403-
2440. This agreement is subject to Board approval.
PRE-HEARING PROCEDURES:
1. A pre-hearing conference will be held at 8:30 a.m. the morning of the scheduled hearing and the following may occur:
a. You may be asked if you wish to contest the violations. If you are not contesting the violation, the case will be placed
under the first section of the agenda under Public Hearings. If you are contesting the violation, the case will be placed
under the third section of the Public Hearing portion ofthe agenda.
b. The parties may stipulate to any facts, exhibits or evidence to be introduced into the record. Any stipulated facts or
evidence shall be presented to the Board along with any pre-hearing evidentiary packets or agreements.
c. The parties may exchange the names and addresses of witnesses to be called.
HEARING PROCEDURES:
1.
If you fail to attend the hearing, the Board may make a determination in your absence and upon a finding of violation
impose a fine for each day the violation continues and for all costs incurred by the County in the prosecution of this
matter.
If prior to the scheduled hearing the violation is corrected, the Board may, upon a finding that a violation did exist,
impose a fine for all costs incurred by the County in the prosecution of this matter.
The Board may, upon a finding of a repeat violation, impose a fine for each day the violation continues, beginning with
the date the repeat violation was found to have reoccurred by the investigator, including all costs incurred by the County
in the prosecution of this matter.
Presentations by all parties are limited to twenty (20) minutes. Each party shall be permitted to make brief opening
statements. The County shall present its case and Respondent shall present hislher case. Both parties shall have an
opportunity to cross-examine all witnesses.
2.
3.
4.
~~~
. Bendisa Marku
Operations Coordinator
Secretary to the Code Enforcement Board
REV 4-5-05
J
COLLIER COUNTY, FLORIDA
CODE ENFORCEMENT BOARD
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS, Petitioner
MMB of Southwest Florida and Bonita Media Enterprises, LLC
Registered Agent: Brennan, Manna & Diamond, PL
Respondent( s)
CEB CASE NO. 2007-35
DEPT CASE NO. 2006120468
vs.
STATEMENT OF VIOLATION AND
REOUEST FOR HEARING
Pursuant to Section 162.06 and l62.12, Florida Statutes, and Collier County Ordinance No. 05-55, the undersigned code
enforcement official hereby gives notice of an uncorrected violation of the Collier County Code, as more particularly described
herein, and hereby requests a public hearing before the Collier County Code Enforcement Board, for the following reasons:
1. Violation ofOrdinance(s04-41, Land Development Code, as amended, Section 5.06.06 [UJ,
5.06.06[W], and 5.06.06 [XI
2. Description of Violation: Vehicle with moving/changing sign copy.
3. Location/address where violation exists: Itinerant or transient in nature.
4. Name and address of owner/person in charge of violation: MMB of Southwest Florida and Bonita
Media Enterprises, LLC ,C/O Registered Agent : Brennan, Manna & Diamond, PL, 330 I Bonita
Beach Road, Suite 203, Bonita Springs, FI 33912
5. Date violation first observed: December 14th, 2006.
6. Date owner/person in charge given Notice of Violation: January 18th, 2007.
7. Dale onlby which violation to be corrected: February 20th ,2007.
8. Date ofre-inspection: March 15th, 2007.
9. Results ofRe-inspection: Violation Remains.
STATE OF FLORIDA
COUNTY OF COLLIER
Based upon the foregoing, the undersigned code enforcement official hereby certifies that the above-described violation
continues to exist; that attempts to secure compliance with the Collier Coun Code have failed as aforesaid; and that the
violation should be referred to the Collier County Code Enforcement Board 4> a pub I hearing.
Dated this 29th. Day of March, 2007
Kit
Code Enforcement Investigator
STATE OF FLORIDA
COUNTY OF COLLIER
March ,2007 by
(PrinVType/Stamp Commissioned
Name of Notary Public)
NOTARY Pl'RUe . ITA TE OF FLORIDA
/~\ K. A. Van Sickle
;,. /CO=ssion #DD618488
',1/"..... EXPlres: Nay. 29, 2010
BONDED THRU ATLA.VTl''': ;JO.vVL'fG co., INC.
2,
REV 3-3-05
COLLIER COUNTY COOE ENFORCEMENT
NOTICE OF VIOLATION
OF SOUTHWEST FLORIDA, LLC Date: 1/18/2007
AND
BONITA MEDIA ENTERPRISES,LLC
ATTN JON MCLEOD, MGRM
BRENNAN, MANNA & OIAMOND, PL
AS REGISTERED AGENT FOR:
MMB OF SOUTHWEST FLORIDA, LLC
AND
BONITA MEDIA ENTERPRISES, LLC
Mailing: 17501 STEPPING STONE DRIVE
FORT MYERS FL 33912
3301 BONITA BEACH RD, SUITE 202
BONITA SPRINGS FL 34134
Location ITINERANT OR TRANSIENT IN NATURE
COUNTY WIDE
Zoning
Dist
Legal:
)ubdivision
Folio
NOTICE
Pursuant to Collier County Code Enforcement Board (CES) Ordinance No.
OS-55 and 97~35. as amended, you are notified that a violation(s) of the
following Collier County Ordinance(s) and or PUD Regulation(s) exists at
the abov&-descrlbed location.
1Zl0rd No. D4-D41, as amended Section 5.06.06 (UJ
1Zl0rd No. 04-041, as amended Section 5.06.06 [WI
1Zl0rd No. 04-41 , as amended Section 5.06.06 [X)
DOrd No. t as amended Section
DOrd No. , as amended Section
r'''rd No. , as amended Section
"SCRIPTION OF CONDITIONS CONSTITUTING THE VIOLATlON(S).
Did WItness:
ON 12/14105 - VEHICLE WITH MOVING SIGN COPY THAT CHANGEO
APPROIMATEL Y EVERY 30 TO 40 SECONDS ADVERTISING
BUSINESS. CREATING A TRAFFIC HAZARD THROUGH THE
A TrRACTlON AND lOR DISTRACTION TO THE MOTORIZED PUBLIC.
THIS IS CONTRARY TO THE COLLIER COUNTY LAND
DEVELOPMENT CODE AND MUST BE BROUGHT INTO COMPLIANCE
WITH CURRENT CODE.
I>(JSuoolemental attached ORDINANCE ATTACHED.
INQUIRIES AND COMMENTS SHOULD BE DIRECTED TO CODE
ENFORCEMENT KITCHELL T. SNOW
INVESTIGATOR:
2800 No. Horseshoe Dr. Naples. FL 34104
(239) 403-2493 r--... ~..4 4003-3-22343433
Investigator signature
VIOLATION STATUS:
'itial
DRecumng
ORepeat
C05e Number
2006120468
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Investigator
KITCHELL T. SNOW
Phone: 239-403-2493
Sec Twp
Rug
Block
Lot
OR
Book
Page
ORDER TO CORRECT VIOLATlONrSI :
You are directed by this Notice to take the following corrective
action(s)
CEASE DISPLAYING ANY SIGN THAT EMPLOYS MOVEMENT OR
MOTION OR THAT GIVES THE ILLUSION OF MOTION, WHETHER
SAID VEHICLE IS IN OPERATION OR STATIONARY WITHIN THE
UNINCORPORATED AREA OF COLLIER COUNTY. CEASE ALL
FUTURE USE OF SIGNS THAT DO NOT COMPLY WITH THE
COLLIER COUNTY LAND DEVELOPMENT COOE.
nSuDolementaJ attached
ON OR BEFORE:
FEBRUARY 20TH 2007
Failure to correct violations may result in:
1) Mandatory notice to appear in court or issuance of a citation that
may result in fines up to $500 and costs of prosecution. OR
2) Code Enforcement Board review that may result in fines up to
$1000 per day per violation, as long as the violation remains, and
costs of prosecution.
SERVED BY:
~rsonal ServIce
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~DFax OMail
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Signa ure and Title of ReCIpient /'
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I8ICertlfied Mail
o Posting of Property
Print
Dated this
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JANUARY
2007
day of
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5.06.00 SIGNS
Page 18 of21
that would otherwise be prohibited by this Code.
W. Internal directory signs for institutional or governmental facilities that cannot be
seen from abutting right-of-way. Each sign shall be no higher than 6 feet in height or
larger than 64 square feet.
(Ord. No. 04-72, 93.U)
:_-_~.06~QI'tE?rohibi~c!.~igns
It shall be unlawful to erect, cause to be erected, maintain or cause to be maintained, anysign
not expressly authorized by, or exempted from this Code. The following signs are expressly
prohibited:
A. Signs which are in violation of the building code or electrical code adopted by
Collier County.
B. Abandonedsigns .
C. Animated or activatedsigns ,except special purpose time and temperature signs
and barber pole signs complying with section 5.06.04 C.12.b.
D. Flashingsigns or electronic reader boards.
E. Rotatingsigns or displays, except barber pole signs complying with section
5.06.04 C.12.b.
F. IIluminatedsigns in any residentially zoned or used district, except residential
identification signs ,residential nameplates, and street signs that are illuminated
by soft or muted light. Nonresidential uses within residentially used or zoned districts by
conditional use , PUD ordinance, or as otherwise provided for within the land
development code, shall be allowed the use of illuminated signs , subject to the
approval of the community services administrator or his designee.
G. Signs located upon, within, or otherwise encroaching upon county or public rights-
of-way ,except as may be permitted under the provisions of Ordinance [No.] 82-91, as
amended, and those erected by a governmental agency or required to be erected by a
governmental agency.
H. Billboards.
I. Strip Iightedsigns
J. Neon typesigns , except non-exposed neon signs covered with an opaque or
translucent shield which will prevent radiation of direct light, within all commercial and
industrial districts.
K. Roofsigns.
L. Portablesigns
M. Signs which resemble any official sign or marker erected by any governmental
agency, or which by reason of position, shade or color, would conflict with the proper
function of any traffic sign or signal, or be of a size, location, movement, content, color,
or illumination which may be reasonably confused with or construed as, or conceal, a
traffic control device.
State law references: Display of unauthorized traffic signs, signals or markings, F.S. 9316.077.
N. Signs ,commonly referred to as snipe signs , made of any material whatsoever
and attached in any way to a utility pole, tree, fence post, stake, stick or any other object
located or situated on public or private property, except as otherwise expressly allowed
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5.06.00 SIGNS
Page 19 of21
by, or exempted from this Code.
O. Windsigns (except where permitted as part of this section of this Code).
P. Anysign which is located adjacent to a county right-of-way within the
unincorporated areas of the county which sign was erected, operated or maintained
without the permit required by section 10.02.06 having been issued by the County
Manager or his designee shall be removed as provided in this section 5.06.06. Such
signs shall include but are not limited to structural signs ,freestanding signs ,[and]
signs attached or affixed to structures or other objects.
Q. Any description or representation, in whatever form, of nudity, sexual conduct, or
sexual excitement, when it:
1. Is patently offensive to contemporary standards in the adult community as a
whole with respect to what is suitable sexual material for minors; and
2. Taken as a whole, lacks serious literary, artistic, political, or scientific value.
R. Beacon lights.
S. Anysign which emits audible sound, vapor, smoke, or gaseous matter.
T. Anysign which obstructs, conceals, hides, or otherwise obscures from view any
officia.1 traffic or government sign ,signal, or device.
U. . Anysign which employs motion, has visible moving parts, or gives the illusion of
motion (excluding time and temperature signs ).
V. Anysign which is erected or maintained so as to obstruct any firefighting equipment,
window, door, or opening used as a means of ingress or egress for fire escape purposes
including any opening required for proper light and ventilation.
W. Anysign which constitutes a traffic hazard, or detriment to traffic safety by reason
of its size, location, movement, content, coloring, or method of illumination, or by
ob;>.tructing or distracting the vision of drivers or pedestrians.
,/'1c..,\
XYSigns mounted on a vehicle, be it the roof, hood, trunk, bed, and so on, where said
sign is intended to attract or may distract the attention of motorists for the purpose of
advertising a business, product, service, or the like, whether or not said vehicle is
parked, or driven, excluding emergency vehicles, taxi cabs, and delivery vehicles, where
a roof mounted sign does not exceed two square feet. This section shall not apply to
magnetic type signs affixed to or signs painted on a vehicle, provided said vehicle is
used in the course of operation of a business, and which are not otherwise prohibited by
this Code. It shall be considered unlawful to park a vehicle and/or trailer with signs
painted, mounted or affixed, on site or sites other than that at which the firm, product, or
service advertised on such signs is offered.
Y. Anysign which uses flashing or revolving lights, or contains the words "Stop,"
"Look," "Danger," or any other words, phrase, symbol, or character in such a manner as
to interfere with, mislead, or confuse vehicular traffic.
Z. Anysign which advertises or publicizes an activity not conducted on the premises
upon which the sign is maintained, except as otherwise provided for within this Code.
M. Nosign shall be placed or permitted as a principal use on any property, in any
zoning district except as follows: U-Pic signs ,political signs or signs approved by
temporary permit pursuant to the time limitations set forth herein.
BB. Inflatablesigns.
CC. Accent lighting as defined in this Code.
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5.06.00 SIGNS
Page 20 of21
DO. IlIuminatedsigns ,neon or otherwise, installed inside businesses and intended to
be seen from the outside. signs that comply with the provisions of section 5.06.05 M
of this Code are exempt from this section.
EE. Human directionalsigns. People in costumes advertising stores or products.
FF. Attachments tosigns, such as balloons and streamers.
GG. Bannersigns.
HH. Pennants.
II. Benchsigns.
JJ. Signs that due to brilliance of the light being emitted, it impairs vision of passing
motorist.
KK. Allsigns expressly prohibited by this section and their supporting structures, shall
be removed within 30 days of notification that the sign is prohibited by the County
Manager or his designee, or, within 30 days of the end of the amortization period
contained in section 9.03.03 D. or, in the alternative, shall be altered so that they no
longer violate this section. Billboards with an original cost of $100.00 or more, and which
have been legally permitted, shall be treated as nonconforming signs and removed
pursuant to section 9.03.03 D.
(Ord. No. 04-72, ~ 3.U)
5.06.07 Enforcement
A. General. Nosign shall hereafter be erected, placed, altered or moved unless in conformity
with this Code. All signs located within Collier County shall comply with the following
requirements:
1. The issuance of asign permit pursuant to the requirements of this Code shall not
permit the construction or maintenance of a sign or structure in violation of an existing
county, state or federal law or regulation.
2. Allsigns for which a permit is required shall be subject to inspections by the County
Manager or his designee. The County Manager or his designee is hereby authorized to
enter upon any property or premises to ascertain whether the provisions of this Code are
being adhered to. Such entrance shall be made during business hours, unless an
emergency exists. The County Manager or his designee may order the removal of any
sign that is not in compliance with the provisions of this Code, is improperly maintained,
or which would constitute a hazard to the public health, safety, and welfare.
3. The County Manager or his designee shall be charged with interpretation and
enforcement of this Code.
B. Enforcement procedures. Whenever, by the provisions of this Code, the performance of an
act is required or the performance of an act is prohibited, a failure to comply with such
provisions shall constitute a violation of this Code.
1. The owner, tenant, and/or occupant of any land or structure, or part thereof, and an
architect, builder, contractor agent, or other person who knowingly participates in,
assists, directs, creates or maintains any situation that is contrary to the requirements of
this Code may be held responsible for the violation and be subject to the penalties and
remedies provided herein.
2. Where anysign or part thereof violates this Code, the County Manager or his
designee may institute any appropriate action or proceedings to prevent, restrain,
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5.06.00 SIGNS
Page 21 of21
correct, or abate a violation of this Code, as provided by law, including prosecution
before the Collier County Code Enforcement Board against the owner, agent, lessee, or
other persons maintaining the sign ,or owner, or lessee of the land where the sign is
located.
3. If asign is in such condition as to be in danger of falling, or is a menace to the safety
of persons or property, or found to be an immediate and serious danger to the public
because of its unsafe condition, the provisions of section 2301.6 of the Standard
Building Code, as adopted by Collier County shall govern.
4. Code enforcement shall immediately remove allsigns in violation of this Section that
are located in or upon public rights-of-way or public property.
5. Penalties. If any person, firm or corporation, whether public or private, or other entity
fails or refuses to obey or comply with or violates any of the provisions of this Code,
such person, firm, corporation, or other entity, upon conviction of such offense, shall be
guilty of a misdemeanor and shall be punished by a fine not to exceed $500.00 or by
imprisonment not to exceed 60 days in the county jail, or both, in the discretion of the
court. Each violation or noncompliance shall be considered a separateand distinct
offense. Further, each day of continued violation or noncompliance shall be considered
as a separate offense.
a. Nothing herein contained shall prevent or restrict the county from taking such
other lawful action in any court of competent jurisdiction as is necessary to
prevent or remedy any violation or noncompliance. Such other lawful actions
shall include, but shall not be limited to, an equitable action for injunctive relief or
an action at law for damages.
b. Further, nothing in this section shall be construed to prohibit the county from
prosecuting any violation of this Code by means of a code enforcement board
established pursuant to the subsidiary of F.S. Chapter 162.
(Ord. No. 05-27, S 3.KK)
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BRENNAN, MANNA & DIAMOND, P.L.
3301 Bonita Beach Road . Suite 100 . Bonita Springs, FL 34134
Phone (239) 992-6578 . Facsimile (239) 992-9328
cr" ')
-' '.
Scott W. Duval
direct dial:
(239) 992-8631
swduva/(ii;hmdnl.com
April 19,2007
Via Hand Delivery
Ms. Bendisa Marku
Operations Coordinator
Collier County Code Enforcement
Community Development and Environmental Services
2800 N. Horseshoe Drive
Naples, Florida 34104
Re: Collier County Board of County Commissioners v. MMB of Southwest Florida, LLC and
Bonita Media Enterprises, LLC
Dept. Case Number 2006120468
CEB Case Number 2007-35
Dear Ms. Marku:
In response to the Notice of Hearing for the above referenced case, enclosed please find fifteen
(15) copies of our memorandum of response. Due to the extremely late receipt of notice of this
hearing, please accept this letter as a second request for a continuance to the May 24, 2007
meeting date (reminder that you may want to correct the date on the web as it indicated the nod
was your next meeting).
I continue to reserve all rights that my client has, including his right to due process and the right
to a meaningful response, related to this matter. I appreciate your continued consideration.
Please do not hesitate to contact me should you have any questions in the meantime.
.:2...
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C'y
Scott W. Duval
cc: J. McLeod (via email)
M. Jackson (via email)
Jacksonville, FL 076 S. Laura Street oSuite2110 oJacksonville, FL 32202 oPhone: (904)366-1500 oFax: (904)366-1501
Akron,OH 075 E. Market Street oAkron, OH 44308 oPhone: (330) 253-5060 oFax: (330) 253-1977
visit us online at www.bmdDl.com or www.Drobusinesslaw.ore:
BRENNAN, MANNA & DIAMOND
3301 Bonita Beach Road + Suite 100 . Bonita Springs, FL 34134
Phone (239) 992-6578 + Facsimile (239) 992-9328
Scott W. Duval
direct dial:
(239) 992-8631
swJuva/(jj)hmdD/.com
MEMORANDUM OF RESPONSE
RE:
Collier County Board of County Commissioners, Petitioner
vs.
MMB of Southwest Florida, LLC and Bonita Media Enterprises, LLC,
Respondents
CEB Case No. 2007-35
Please accept this memorandum in response to the Notice of Hearing for the above
referenced matter. The purpose of this memorandum is to provide certain background
information in relation to the Notice of Violation dated January 18, 2006 as it relates to the
Respondents defenses. While we understand that the Code Enforcement Board does not have
jurisdiction to hear any statement, argument or evidence alleging any conflict with the State or
Federal Constitution, State Statutes, prior court decisions or the like as referenced in Article IX
of the Rules and Regulations, some of the information presented herein addresses such topics but
is important to present the issues as part of our defenses as a whole in order to preserve an
accurate record. We will not request the Board make any ruling other than on finding of fact and
conclusions of law, however; nothing contained in this memorandum shall be deemed a waiver,
either voluntary or otherwise, of any rights, at law or in equity, the Respondents may have,
including the right to due process under the law.
First, I would like to establish the time line of this matter. Sometime during the first
week of January, Respondent, MMB of Southwest Florida, LLC received a Notice of Violation
Page 2
issued by Investigator Kitchell T. Snow and dated December 18, 2006 for alleged violations
occurring on December 14,2006 and requiring the matter be corrected on or before December
21,2006 (the "First Notice"). A copy of the First Notice is attached hereto as Exhibit "A". The
First Notice was postmarked December 26, 2006, almost a full week after the alleged violation
was to be corrected. A copy of the postmarked envelope is attached hereto as Exhibit "B". In
response to receipt of the First Notice, on January 9, 2007, I sent a letter to Investigator Snow
pointing out the deficiencies in his notice, as well as our contentions related to the violation
itself. A copy of that letter is attached hereto as Exhibit "C". After telephone conferences with
Michelle Arnold, it was agreed that the Notice of Violation would be re-issued providing until
February 20, 2007 to correct the alleged violation (the "Second Notice"). A copy of the Second
Notice is attached hereto as Exhibit "D". The Second Notice was issued with the understanding
that we would provide Michelle Arnold with documentation supporting our position, which we
provided in a letter dated February 19,2007, a copy of which is attached hereto as Exhibit "E".
It was our understanding that we would receive some written response, other than a Notice of
Hearing. Respondents then received a Notice of Hearing on April 17, 2007 (with this office
apparently receiving the notice on April 16, 2007). I responded with a letter dated April 17,
2007 to Michelle Arnold and Bendisa Marku objecting to, once again, defective notice, a copy of
such letter is attached hereto as Exhibit "F". In the aftemoon of April 17, 2007, I received a
telephone call from Michelle Arnold and Bendisa Marku indicating receipt, by facsimile, of my
letter earlier that day and informing me that our office had received the notice on April 16, 2007,
despite the fact that it had, supposedly, been placed in the outgoing mail in late March. Michelle
Arnold indicated that she would accept the letter as a formal request for a continuance. In any
event, receipt of such late notice has not allowed the Respondents a meaningful amount of time
Page 3
to prepare witnesses, perform research and otherwise prepare a defense to this Notice of Hearing.
Accordingly, we hereby object to these notices as a violation of the Respondents' right to due
process and any and all action, other than a continuance, taken at the Code Enforcement Board
Hearing on April 26, 2007 will be appealed to the fullest extent of the law.
To the extent, and when this matter is considered by the Code Enforcement Board, in
addition to the above referenced issues, the matters that the Respondents would like to be
considered are as follows, which are essentially the same points as are raised in the memorandum
attached to the letter dated February 19, 2007 as referenced above:
I. State of Florida Uniform Traffic Control Law and its Impact upon Local
Government.
In Florida, Municipal ordinances are inferior to laws of the state and must not conflict
with any controlling provision ofa statute. Thomas v. State, 614 So. 2d 468 (Fla. 1993). As the
Florida Supreme Court stated in Rinzler v. Carson, 262 So. 2d 661, 668 (Fla. 1972), "[a]
municipality cannot forbid what the legislature has expressly licensed, authorized or required,
nor may it authorize what the legislature has expressly forbidden." Although municipalities and
the state may legislate concurrently in areas that are not expressly preempted by the state, a
municipality's concurrent legislation must not conflict with state law. City of Miami Beach v.
Rocio Corp., 404 So. 2d 1066 (Fla. DCA), review denied, 408 So. 2d 1092 (Fla. 1981). While a
municipality may provide a penalty less severe than that imposed by a state statute, an ordinance
penalty may not exceed the penalty imposed by the state. Edwards v. State, 422 So. 2d 84 (Fla.
2d DCA 1982). It is settled in Florida that "a general principle of statutory construction that the
mention of one thing implies the exclusion of another; expressio unius est exclusio alterius."
Hence, where a statute enumerates the things on which it is to operate, or forbids certain things,
Page 4
it is ordinarily to be construed as excluding from its operation all those not expressly mentioned.
Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So.2d 234 (1944); Thayer v.
State, 335 So. 2d 815 (Fla. 1976).
The State of Florida has exclusive jurisdiction over traffic enforcement in the State of
Florida via the UTCL, Section 316 of the Florida Statutes. Florida Statute 316.002 specifically
states that the "intent in the adoption of this chapter to make uniform traffic laws to apply
throughout the state and its several counties and uniform traffic ordinances to apply in all
municipalities." F.S. 316.002. Further, it is "unlawful for any local authority to pass or to
attempt to enforce any ordinance in conflict with the provisions of this chapter." Id. F.S.
316.007 further states that "no local authority shall enact or enforce any ordinance on a matter
covered by this chapterunIess expressly authorized." F,S.316.007. Section 316.008 delineates
the powers of local governments pertaining to traffic laws. The list of powers is exhaustive;
however, no provision within F.S. 316.008 allows for a local government to regulate sign
ordinances involving moving traffic and "it is unlawful for any local authority to pass or to
attempt to enforce any ordinance in conflict with the provisions of this chapter." F.S. 316.008.
It is important to note that the UTCL governs everything that is considered "traffic."
Section 316.003(57) defines traffic as "Pedestrians, ridden or herded animals, and vehicles,
streetcars, and other conveyances either singly or together while using any street or highway for
purposes of traveL" Section 316.003(53)(a) defines a street or highway in part as "the entire
width between the boundary lines of every way or place of whatever nature when any part
thereof is open to the use of the public for purposes of vehicular traffic." There can be little
doubt that the Collier County sign ordinance has overstepped its bounds in the regulation of
signs on moving traffic. As such, the County must enforce a prohibition of signs such as that
Page 5
cited for, if such a prohibition exists, in a manner proscribed by the UTCL In this particular
case, neither the method nor the manner in which the citation was issued complies with Section
316. Sate Law would clearly preempt local law and therefore restrict the means with which
counties and municipalities may enforce the law in question.
Interestingly, the State has its own sign regulation statute in place. Chapter 479 of the
Florida Statutes regulates signs near Federal and State Highways. The sign law specifically
describes prohibited signs and deals exclusively with those that are at or along the State or
Federal Highway system. Notably, there is no reference to signs attached to a moving
automobile. Further, the State grants the local code enforcement boards the right and duty to cite
and enforce sign laws in violation of State law. F.S. 479.11(5). Therefore, following the
premise that the mention of one thing implies the exclusion of another, it can be assumed that if
signs attached to moving vehicles were intended to be in control of the local code enforcement
board, the State would have accounted for it within the State sign law and grant the local boards
the authority to do so, at least with regards to their enforcement upon Federal and State
highways. Unlike Chapter 162 of the Florida Statutes, which grants municipalities the specific
authority to regulate code violations, the State did not grant the authority to regulate moving
vehicles within Chapter 479. The obvious reason for this is that traffic enforcement is regulated
under completely different standards than that of code violations.
The Collier County Land Development Code was created in order to "promote the health,
safety, convenience, aesthetics, and general welfare of the community by controlling signs which
are intended to communicate to the public.. ," c.c. LDC 5.06.01 (A). Section 5.06.06 (X) of the
Code prohibits the use of any signs, with the exception of magnetic signs used in the course of
business, mounted on a vehicle where "said sign is intended to attract or may distract the
Page 6
attention of motorists for the purpose of advertising a business... whether or not the vehicle is
parked, or driven." c.c. LDC 5.06.0] (X). Section 5.06.06 (D) prohibits the use of electronic
signs or those that employ "motion, employs moving parts or gives the illusion of motion
(excluding time and temperature signs.) C.C. LDC 5.06.01(X). Finally, Section 5.06.06 (W)
prohibits any sign that could constitute a traffic hazard or detriment to traffic safety.
There can be little question that the County Ordinance(s) in question are intended to
regulate traffic. For instance, Section 5.06.06 (W) of the Collier County Code prohibits any sign
that could be constitutes a "traffic hazard or detriment to traffic safetv." If the conduct of our
client is prohibited by state statute, a County or Municipality would be required to adhere to the
enforcement procedures outlined in section II.
II. Capacity of Municipal Code Enforcement Officers to Enforce Traffic
Violations Under the UTCL
The enforcement of the DTCL is restricted to various entities including numerous state
enforcement agencies (ie, Highway Patrol, FDOT, Division ofFish and Wildlife, etc.) Counties
and municipalities are restricted to the Sheriff of Police departments; however, they may employ
a "parking enforcement specialist who is any individual who successfully completes a training
program established and approved by the Criminal Justice Standards and Training Commission
for parking enforcement specialists." F.s. 316.640 2(c)I-2 and 3(c)I-3. Sherriff's and police
departments may also employ Traffic Enforcement Officers who, after completing mandatory
training, can issue citations for traffic violations that they witness. F.S.316.640(5)(a)(b). No
other individuals may issue citations for traffic violations.
In addition, not only does the State regulate who can enforce a law governed by the
DTCL, it governs how the law can be enforced. Specifically, 316.650(I)(a) states that "the
Page 7
department shall prepare, and supply to every traffic enforcement agency in this state, an
appropriate form traffic citation containing a notice to appear (which shall be issued in pre-
numbered books with citations in quintuplicate) and meeting the requirements of this chapter or
any laws of this state regulating traffic, which form shall be consistent with the state traffic court
rules and the procedures established by the department" Clearly, even if a code enforcement
officer was authorized to enforce a traffic law, the procedure mandated by Florida law was not
followed.
Having outlined the State statutes regulation of traffic violations, it is clear that the State
has taken a leading role in defining what a violation is, who can enforce it, and how such a law
may be enforced. It is doubtful that a municipal code enforcement officer was intended to have
such authority. F.S. 316.002 does state that "the Legislature recognizes that there are conditions
which require municipalities to pass certain other traffic ordinances in regulation of municipal
traffic that are not required to regulate the movement of traffic outside of such municipalities."
However, local authorities may not deviate from the mandated enforcement requirements. If a
Code Enforcement officer has not completed the prescribed training and is not authorized by the
local Sherriff or Police Department, he/she may not issue citations for traffic violations.
III. The Collier County Sign Ordinance is an Impermissible Restriction Upon
Commercial Speech in Violation of the First Amendment of the Unites States Constitution
As written, the Collier County Sign Code violates the First Amendment as an
impermissible restriction upon commercial speech. Specifically, if the regulation is not content
neutral, that is to say the sign regulation may not define the content of the sign, it will be found
to be in violation of the First Amendment. In determining the constitutionality of a sign code,
the first step a court must take is to determine whether he regulations are content based. Burk v.
Page 8
Augusta-Richmond County, 365-F.3d 1247, 1251 (I ICir. 2004). This is extremely important as
content neutral signs will be reviewed under a "time, place and manner" standard and content-
based regulations are subject to strict scrutiny.
The Supreme Court attempted to clarify the issue in Metromedia, Inc. v City of San
Diego, 453 U.S. 490 (1981). In Metromedia the plaintiffs challenged a local ordinance that
prohibited all billboards except commercial billboards on the sites of businesses. The Court held
that the ordinance was unconstitutional on its face, since it prohibited noncommercial signs while
allowing commercial signs on business premises. Specifically, exemptions for religious signs,
time and temperature signs, government signs, and political signs amounted to content-based
criteria for permitting. The ordinance reached too far into the realm of protected speech by
permitting signs advertising goods and services while it did not allow for noncommercial
messages on the same signs. Despite the plurality decision, the court did highlight some of the
requirements that lawmakers must meet when passing such ordinances. The standard set in
Metromedia is now followed with a majority of the Circuits, excepting the Third. Sign laws
must have a neutral effect on speech. However, there are two types of neutrality: viewpoint and
content neutrality. Rarely does viewpoint neutrality become an issue because it simply means
that a sign ordinance may not regulate a point of view. For instance, a City could not prohibit a
sign that opposes or supports a "pro-life" position. Following Metromedia, the II th Circuit has
held that regulations allowing flags only if they represented a governmental entity was an
impermissible content-based regulation. Dimmitt v. the City of Clearwater, 985 F.2d 1565, ] 569
(I I th Cir. 1993). Interestingly, in Dimmitt, the Court found that although the city's proffered
interests in aesthetics and traffic safety were substantial, they were not sufficient to justify the
content-based ban, and were thus struck down. Id. at 1569-] 570.
Page 9
Content neutrality has caused local governments difficulties. Content neutrality means a
sign regulation may not define the content of a sign and base the restriction on this content. The
principal inquiry in deciding a content neutral matter is whether the govemment has adopted a
regulation because ofa disagreement with the message it conveys. The Government's interest is
the controlling consideration. Ward V. Rock Against Racism, 491 U.S. 781, 791 (1989). In
Metromedia, the San Diego ordinance was struck down because it contained a list of exempted
signs defined by their content. Metromedia at 465. Disagreement with the message therefore is
not the only reason for finding that a law is content based.
The issue presented here is whether the exceptions within the Collier County sign
ordinance invalidate the ordinance itself. Specifically, Section 5.06.06 (U) exempts time and
temperature signs in an otherwise universal prohibition on moving signs. It is not the first time
this dispute has been looked at: in 2000, a federal court struck down large sections of a
municipal ordinance because the signs were defined by their content and then these definitions
were used as a basis for their regulations. See North Olmsted Chamber of Commerce v. City of
North Olmsted, 86 F. Supp. 2d 755 (1996). Moreover, a Kentucky court found that a local
ordinance that excluded time and temperature signs from its restriction on illuminated and
moving signs was content based and invalidated the ordinance. The court stated that "the
electronic billboards in question, which complied with the technical requirements of the
regulation, may display "temperature--99 degrees" but may not display "regular unleaded $1.07."
Flying J Travel Plaza v. Transportation Cabinet, Dep 't of Highways, 928 S.W. 2d 344, 348 (Ky.
1996). When the regulation prohibits commercial speech but allows time, date, temperature or
weather information to be displayed, the regulations become substantially broader than necessary
to protect the governmental interest of highway safety. Id.
Page 10
Perhaps most importantly to the issue facing Collier County is the II th Circuit Court of
Appeals decision in Solan tic, LLC v. City of Neptune Beach, 410 F.3d 1250, (11th Cir. 2005). In
Solantic, a business operated an emergency medical care facility in front of which, it installed a
large "Electronic Variable Message Center" sign. !d. at 1254. The City's Code Enforcement
Board conducted a hearing and determined that the sign violated the sign code for several
reasons including that a sign permit had not been obtained prior to the sign's installation and the
sign's copy could blink, flash, and scroll. !d. at 1255. Following Metromedia and Dimmit
standards, the court found that the Sign Code's exceptions rendered the Code a content-based
restriction of free speech. The court noted several hypothetical incongruities where the
exceptions created such as the fact that a homeowner could install a large flashing neon arrow
and "Parking in Back," sign but could not place a traditional yard sign reading "Support our
Troops" on his or her own property. Solantic at 1264. Because some of the signs were
extensively regulated while others were not, the court held that: (I) because most (though not all)
of the exemptions from the sign code were based on the content -- rather than the time, place, or
manner -- of the message, the sign code discriminated against certain types of speech based on
content; (2) the sign code was not narrowly tailored to accomplish the City's asserted interests in
aesthetics and traffic safety; (3) the city had not demonstrated that its interests were compelling;
(4) the exemptions were not severable from the remainder of the ordinance; and (5) the absence
of any time limits rendered the sign code's permitting requirement unconstitutional. Id. at 1273.
It must be noted that the sign ordinance in Neptune Beach was constructed almost exactly
in the same manner as that of Collier County. Further, the exemptions listed in the Collier
County Code are strikingly similar to the sign ordinance in Neptune Beach. As stated above, the
II th Circuit cited several hypothetical situations in Solantic that illustrated the constitutional
Page II
violations of Neptune Beach's sign ordinance. Specifically, the court stated that "pursuant to
927-581 (4), (6), bar the use of these devices (moving parts or flashing lights) by nonexempt
individuals and other private signs. Thus, the City govemment could display a ten-foot-tall sign
identifYing "City Hall" in blinking lights, whereas 927-581 (6) would prohibit a homeowner from
posting even a modestly sized sign using flashing lights to identifY "The Smith residence..."
Solantic at 1264. This exact situation is allowable under the Collier County sign ordinance.
Specifically, 95.06.06 (D) prohibits "Flashing signs or electronic reader boards." However,
95.06.05 (I) exempts "Bulletin boards and identification signs for public, charitable, educational
or religious institutions located on the premises of said institutions and not exceeding I 2 square
feet in size." Thus, the Collier County govemment could post the 10 foot-tall sign, flashing
"City Hall" while a resident could not; this is the specific situation cited to in Solantic as
evidence that the Neptune Beach Sign Code violated the First Amendment. Following Solantic,
it is irrefutable that Collier County Sign Ordinance does the same.
IV. Conclusion
The Collier County Sign Code violates both State law and the Federal Constitution. First,
the prohibition of signs such as those at issue involves the regulation of traffic which is
exclusively controlled by the UTCL. Moreover, even if a law is broken under the UTCL, a code
enforcement officer, without the training mandated by statute, is not able to enforce it. Only one
with training specified by statute would be able to enforce such a law. The UTCL does not grant
local municipalities the ability to choose their enforcement methods. They must comply with
State mandated requirements. Secondly, based on the 11th Circuit's holding in Solantic, the
Collier County sign ordinance as a whole violates the First Amendment as it impermissibly
restricts commercial speech by the regulation of content based signs. Following Metromedia,
Page 12
Dimmitt and Solantic, there is no question that the Collier County Sign ordinance would be
invalidated if challenged.
Finally, it is the Respondents' intention to create and establish an accurate record of the actions
of this matter. Therefore this memorandum is intended to be included, in its entirety, in the
record of this matter and any attempt to redact, modifY, limit or otherwise constrict its content
will be met with an objection to the fully extent permitted by law. Nothing contained herein
shall be deemed a limitation or waiver of any rights or remedies available to the Respondents.
Case Number
2006120468
COLLIER COUNTY CODE ENFORCEMENT
NOTICE OF VIOLATION
Qwner:
MMB OF SOUTHWEST FLORIDA, LLC Date: 12118/06
ATTN: JON MCLEOD,MGR
~[rg:
[pROPERTY OWNER]
BRENNAN, MANNA & DIAMOND, PL
AS REGISTERED AGENT FOR:
MMB OF SOUTHWEST FLORIDA, LLC
BUSINESS]
17501 STEPPING STONE DRIVE
FORT MYERS FL 33912
3301 BONITA BEACH RD, SUITE 202
BONITA SPRINGS FL 34134
ITINERANT OR TRANSIENT IN NATURE
COUNTY WIDE
Zoning
Dist
Legal:
;ubdivision
Folio
Location
NOTICE
Pursuant to Collier County Code Enforcement Board (CES) Ordinance No.
05-55 and 97-35, as amended, you are notified that a violation(s) of the
following Collier County Ordinance(s) and or PUD Regulation(s) exists at
the above--described location.
00rd No. 04-041, as amended Section 5.06.06 [U]
00rd No. 04-041, as amended Section 5.06.06 [W]
00rd No. 04-41 , as amended Section 5.06.06 [Xl
OOrd No. . as amended Section
OOrd No. . as amended Section
OOrd No. , as amended Section
DESCRIPTION OF CONDITIONS CONSTITUTING THE VIOLATION(S).
Did Witness:
ON 12/14/06 - VEHICLE WITH MOVING SIGN COPY THAT CHANGED
APPROIMATELY EVERY 3D TO 40 SECONDS ADVERTISING
BUSINESS, CREATING A TRAFFIC HAZARD THROUGH THE
ATIRACTlON AND lOR DISTRACTION TO THE MOTORIZED PUBLIC.
THIS IS CONTRARY TO THE COLLIER COUNTY LAND
DEVELOPMENT CODE AND MUST BE BROUGHT INTO COMPLIANCE
WITH CURRENT CODE.
R1Suoolemental attached ORDINANCE ATTACHED.
INQUIRIES AND COMMENTS SHOULD BE DIRECTED TO CODE
ENFORCEMENT KITCHELL T. SNOW
INVESTIGATOR:
2800 No. Horseshoe Dr. Naples, FL 34104
(239) 403-2493 (; Fax~ 403-2343
Investigator signature ~ U ~
VIOLATION STATUS:
01nitial
D Recurring
oRepeat
Investigator
KITCHELL T SNOW
Phone: 239-403-2493
Sec
Twp
Rng
Block
Lot
OR
Book
Page
ORDER TO CORRECT VIOLATlONISl :
You are directed by this Notice to take the following corrective
action(s)
CEASE DISPLAYING ANY SIGN THAT EMPLOYS MOVEMENT OR
MOTION OR THAT GIVES THE ILLUSION OF MOTION WHETHER
SAID VEHICLE IS IN OPERATION OR STATIONARY WITHIN THE
UNINCORPORATED AREA OF COLLIER COUNTY. CEASE ALL
FUTURE USE OF SIGNS THAT DO NOT COMPLY WITH THE
COLLIER COUNTY LAND DEVELOPMENT CODE.
nSuDDlemental attached
ON OR BEFORE:
DECEMBER 21 ST 2006
Failure to correct violations may result in:
1) Mandatory notice to appear in court or issuance of a citation that
may result in fines up to $500 and costs of prosecution. OR
2) Code Enforcement Board review that may result in fines up to
$1000 per day per violation, as long as the violation remains, and
costs of prosecution.
SERVED BY:
DPersonal Service
o Fax
~ertified Mail
OMail
OPosting of Property
Signature and Title of Recipient
Print
Dated this
18TH
2006
day of
DECEMBER
EXHIBIT
I
a
A
5.06:06 PrQhibited Signs
It shall be unlawful to erect, cause to be erected, maintain or cause to be maintained,
any sign not expressly authorized by, or exempted from this Code. The following signs are
expressly prohibited:
A Signs which are in violation of the building code or electrical code adopted by
Collier County.
B. Abandoned signs.
C. Animated or activated signs, except special purpose time and temperature
signs and barber pole signs complying with section 5.06.04 C.12.b.
D. Flashing signs or electronic reader boards.
E. Rotating signs or displays, except barber pole signs complying with section
5.06.04 C.12.b.
F. Illuminated signs in any residentially zoned or used district, except residential
identification signs, residential nameplates, and street signs that are illuminated
by soft or muted light. Nonresidential uses within residentially used or zoned
districts by conditional use, PUD ordinance, or as otherwise provided for within
the land development code, shall be allowed the use of illuminated signs,
subject to the approval of the community services administrator or his designee.
G. Signs located upon, within, or otherwise encroaching upon county or public
rights-ot-way, except as may be permitted under the provisions of Ordinance
[No.] 82-91, as amended, and those erected by a governmental agency or
required to be erected by a governmental agency.
H. Billboards.
L Strip lighted signs.
J. Neon type signs, except non-exposed neon signs covered with an opaque or
translucent shield which will prevent radiation of direct light, within all commercial
and industrial districts.
K. Roof signs.
L Portable signs.
M. Signs which resemble any official sign or marker erected by any governmental
agency, or which by reason of position, shade or color, would conflict with the
proper function of any traffic sign or signal, or be of a size, location, movement,
content, color, or illumination which may be reasonably confused with or
construed as, or conceal, a traffic control device.
State law references: Display of unauthorized traffic signs, signals or markings, F.S. 3
316.on
N. Signs, commonly referred to as snipe signs, made of any material whatsoever
and attached in any way to a utility pole, tree, fence post, stake, stick or any
other object located or situated on public or private property, except as othelWise
expressly allowed by, or exempted from this Code.
O. Wind signs (except where permitted as part of this section of this Code).
P. Any sign which is located adjacent to a county right-of-way within the
unincorporated areas of the county which sign was erected, operated or
maintained without the permit required by section 10.02.06 having been issued
by the County Manager or his designee shall be removed as provided in this
section 5.06.06. Such signs shall include but are not limited to structural signs,
freestanding signs, [and] signs attached or affixed to structures or other
objects.
a. Any description or representation, in whatever form, of nudity, sexual conduct, or
sexual excitement, when it:
1. Is patently offensive to contemporary standards in the adult community
as a whole with respect to what is suitable sexual material for minors; and
2. Taken as a whole, lacks serious literary, artistic, political, or scientific
value.
R. Beacon lights.
S. Any sign which emits audible sound, vapor, smoke, or gaseous matter.
T. Any sign which obstructs, conceals, hides, or othelWise obscures from view any
official traffic or government sign, signal, or device.
U. Any sign which employs motion, has visible moving parts, or gives the illusion of
motion (excluding time and temperature signs).
V. Any sign which is erected or maintained so as to obstruct any firefighting
equipment, window, door, or opening used as a means of ingress or egress for
fire escape purposes including any opening required for proper light and
ventilation.
{'Iii. Any sign which constitutes a traffic hazard, or detriment to traffic safety by
reason of its size, location, movement, content, coloring, or method of
illumination, or by obstructing or distracting the vision of drivers or pedestrians.
X. Signs mounted on a vehicle, be it the roof, hood, trunk, bed, and so on, where
said sign is intended to attract or may distract the attention of motorists for the
purpose of advertising a business, product, service, or the like, whether or not
said vehicle is parked, or driven, excluding emergency vehicles, taxi cabs, and
delivery vehicles, where a roof mounted sign does not exceed two square feet.
This section shall not apply to magnetic type signs affixed to or signs painted
on a vehicle, provided said vehicle is used in the course of operation of a
business, and which are not othelWise prohibited by this Code. It shall be
considered unlawful to park a vehicle and/or trailer with signs painted, mounted
or affixed, on site or sites other than that at which the firm, product, or service
advertised on such signs is offered.
Y. Any sign which uses flashing or revolving lights, or contains the words "Stop,"
"Look," "Danger," or any other words, phrase, symbol, or character in such a
manner as to interfere with, mislead, or confuse vehicular traffic.
Z. Any sign which advertises or publicizes an activity not conducted on the
premises upon which the sign is maintained, except as otherwise provided for
within this Code.
AA No sign shall be placed or permitted as a principal use on any property, in any
zoning district except as follows: U-Pic signs, political signs or signs approved
by temporary permit pursuant to the time limitations set forth herein.
BB. Inflatable signs
CC. Accent lighting as defined in this Code.
DO. Illuminated signs, neon or otherwise, installed inside businesses and intended to
be seen from the outside. signs that comply with the provisions of section
5.06.05 M of this Code are exempt from this section.
EE. Human directional signs. People in costumes advertising stores or products.
FF. Attachments to signs, such as balloons and streamers.
GG. Banner signs.
HH. Pennants.
II. Bench signs.
JJ. Signs that due to brilliance of the light being emitted, it impairs vision of passing
motorist.
KK. All signs expressly prohibited by this section and their supporting structures,
shall be removed within 30 days of notification that the sign is prohibited by the
County Manager or his designee, or, within 30 days of the end of the
amortization period contained in section 9.03.03 D. or, in the alternative, shall be
altered so that they no longer violate this section. Billboards with an original cost
of $100.00 or more, and which have
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EXHIBIT
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BRENNAN, MANNA & DIAMOND, P.L.
3301 Bonita Beach Road + Suite 202 . Bonita Springs, FL 34134
Phone (239) 992-6578 . Facsimile (239) 992-9328
Scott W. Duval
direct dial:
(239) 992-8631
swduval(ij)hmdDI. com
January 9, 2007
Kitchell T. Snow, Investigator
Collier County Code Enforcement
2800 N. Horseshoe Drive
Naples, Florida 34104
EXHIBIT
j
c
Re: Case Number 2006120468
Dear Mr. Snow:
This firm represents Bonita Media Enterprises, LLC, the owner and operator of that certain
business known as "Mobile Exposure" and BME Leasing, LLC, the company that owns and
certain mobile billboard vehicles which are leased to the referenced operator. In addition, this
firm represents MMB of Southwest Florida, LLC, however that entity ceased any and all
operations as of December I, 2006. Please take note that the Notice of Violation for the above
referenced claim was sent to a company that was no longer doing business and therefore, my
client reserves all rights to object to the violation notwithstanding anything contained herein to
the contrary.
Further, you executed your notice of violation on December 18, 2006 with an order to correct the
violation on or before December 22, 2006. The notice was postmarked December 26, 2006. My
client further reserves all rights to object for failure to provide adequate notice and the problems
with the timing of such notice.
Notwithstanding any other flaws in the Notice of Violation referenced above, it appears as if you
are attempting to regulate a moving vehicle, which is beyond the scope of your authority. Am I
to assume that a Collier County Code Enforcement officer can issue me a citation for not having
my car up to the building code? It sounds ridiculous because it is, as is your attempt to cite my
client for a sign violation while he is traveling on a public highway.
If this case continues, you may be violating my client's civil rights, including the right to free
speech as well as violating the commerce clause contained in Article I, Section 8 of the United
States Constitution.
Please accept this letter as a demand for an immediate withdrawal of the Notice of Violation and
an acknowledgement that code enforcement does not have the authority to regulate moving
vehicles while on public highways. In the event this matter proceeds further and my client incurs
Jacksonville, FL 076 S. Laura Street oSuite 2110 oJacksonville, FL 32202 oPhone: (904) 366-1500 oFax: (904) 366-1501
Akron,OH 075 E. Markel Street +Akron, OH 44308 o Phone: (330) 253-5060 oFax: (330) 253-1977
visit us online at www.bmdol.com or www.orobusinesslaw.or!!
expenses related hereto, including attorney fees, we will demand reimbursement from the County
for such expenses.
Thank you in advance for your cooperation. Please do not hesitate to contact me should you
have any questions or concerns.
Sincerely,
~-~
Scott W. Duval
cc: Michelle Arnold, Director of Code Enforcement
J. McLeod
Jacksonville, FL .76 S. Laura Street . Suite 2110 .Jacksonville, FL 32202 .Phone: (904) 366-1500 .Fax: (904) 366-1501
Akron, OR .75 E. Market Street .Akron, OH 44308 .Phone: (330) 253-5060 .Fax: (330) 253-1977
visit us online at: W\vw.bmdnl.com or www.nrobusinesslaw.orQ
Case Number
2006120468
COLLIER COUNTY CODE ENFORCEMENT
NOTICE OF VIOLATION
Owner:
MMB OF SOUTHWEST FLORIDA, LLC Date: 1/18/2007
AND
BONITA MEDIA ENTERPRISES,LLC
ATTN JON MCLEOD, MGRM
BRENNAN, MANNA & DIAMOND, PL
AS REGISTERED AGENT FOR:
MMB OF SOUTHWEST FLORIDA, LLC
AND
BONITA MEDIA ENTERPRISES, LLC
Mailing: 17501 STEPPING STONE DRIVE
FORT MYERS FL 33912
3301 BONITA BEACH RD, SUITE 202
BONITA SPRINGS FL 34134
Location ITINERANT OR TRANSIENT IN NATURE
COUNTY WIDE
Zoning
Dist
Legal:
~ubdivision
Folio
NOTICE
Pursuant to Collier County Code Enforcement Soard (CES) Ordinance No.
05-55 and 97-35, as amended, you are notified that a violation(s) of the
following Collier County Ordinance(s) and or PUD Regulation(s) exists at
the above-described location.
18I0rdNo. 04-041, as amended Section 5.06.06 [U]
18I0rd No. 04-041, as amended Section 5.06.06 [W]
18I0rd No. 04-41 , as amended Section 5.06.06 [Xl
OOrd No. , as amended Section
OOrd No. t as amended Section
OOrd No. , as amended Section
OESCRIPTION OF CONDITIONS CONSTITUTING THE VIOLATION(S).
Did Witness:
ON 12114/06 - VEHICLE WITH MOVING SIGN COPY THAT CHANGED
APPROIMATEL Y EVERY 30 TO 40 SECONDS ADVERTISING
BUSINESS, CREATING A TRAFFIC HAZARD THROUGH THE
ATTRACTION AND lOR DISTRACTION TO THE MOTORIZED PUBLIC.
THIS IS CONTRARY TO THE COLLIER COUNTY LAND
DEVELOPMENT CODE AND MUST BE BROUGHT INTO COMPLIANCE
WITH CURRENT CODE.
I5<ISuoolemental attached ORDINANCE ATTACHED.
INQUIRIES AND COMMENTS SHOULD BE DIRECTED TO CODE
ENFORCEMENT KITCHELL T. SNOW
INVESTIGATOR:
2800 No. Horseshoe Dr. Naples, FL 34104
(239) 403-2493 n ,~: (239) 403-~343
Investigator signature ~
VIOLATION STATUS:
I8Ilnitial
ORecurring
o Repeat
EXHIBIT
I
Investigator
KITCHELL T. SNOW
Phone: 239-403-2493
See Twp
Rng
Block
Lot
OR
Book
Page
ORDER TO CORRECT VIOLATIONISI :
You are directed by this Notice to take the following corrective
action(s)
CEASE DISPLAYING ANY SIGN THAT EMPLOYS MOVEMENT OR
MOTION OR THAT GIVES THE ILLUSION OF MOTION, WHETHER
SAID VEHICLE IS IN OPERATION OR STATIONARY WITHIN THE
UNINCORPORATED AREA OF COLLIER COUNTY. CEASE ALL
FUTURE USE OF SIGNS THAT DO NOT COMPLY WITH THE
COLLIER COUNTY LAND DEVELOPMENT CODE.
nSuoolemental attached
ON OR BEFORE:
FEBRUARY 20TH 2007
Failure to correct violations may result in:
1) Mandatory notice to appear in court or issuance of a citation that
may result in fines up to $500 and costs of prosecution. OR
2) Code Enforcement Board review that may result in fines UP to
$1000 per day per violation, as long as the violation remains, and
costs of prosecution.
~'::~D BY
~onal Service I8ICertified Mail
L So- OFax OMall
OPosting of Property
Signature and Title of Recipient
Print
Dated this
18TH
2007
day of
JANUARY
o
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5.U6.UU SIGNS
Page 18 of21
that would otherwise be prohibited by this Code.
W. Internal directory signs for institutional or governmental facilities that cannot be
seen from abutting right-of-way. Each sign shall be no higher than 6 feet in height or
larger than 64 square feet.
(Ord. No. 04-72, 93.U)
5.06.06 Prohibited Signs
It shall be unlawful to erect, cause to be erected, maintain or cause to be maintained, anysign
not expressly authorized by, or exempted from this Code. The following signs are expressly
prohibited:
A Signs which are in violation of the building code or electrical code adopted by
Collier County.
B. Abandonedsigns .
C. Animated or activatedsigns , except special purpose time and temperature signs
and barber pole signs complying with section 5.06.04 C.12.b.
D. Flashingsigns or electronic reader boards.
E. Rotatingsigns or displays, except barber pole signs complying with section
5.06.04 C.12.b.
F. lIIuminatedsigns in any residentially zoned or used district, except residential
identification signs , residential nameplates, and street signs that are illuminated
by soft or muted light. Nonresidential uses within residentially used or zoned districts by
conditional use , PUD ordinance, or as otherwise provided for within the land
development code, shall be allowed the use of illuminated signs , subject to the
approval of the community services administrator or his designee.
G. Signs located upon, within, or otherwise encroaching upon county or public rights-
of-way , except as may be permitted under the provisions of Ordinance [No.] 82-91, as
amended, and those erected by a governmental agency or required to be erected by a
governmental agency.
H. Billboards.
I. Strip lightedsigns
J. Neon typesigns , except non-exposed neon signs covered with an opaque or
translucent shield which will prevent radiation of direct light, within all commercial and
industrial districts.
K. Roofsigns.
L Portablesigns
M. Signs which resemble any official sign or marker erected by any governmental
agency, or which by reason of position, shade or color, would conflict with the proper
function of any traffic sign or signal, or be of a size, location, movement, content, color,
or illumination which may be reasonably confused with or construed as, or conceal, a
traffic control device.
State law references: Display of unauthorized traffic signs, signals or markings, F.S. 9316.077.
N. Signs ,commonly referred to as snipe signs ,made of any material whatsoever
and attached in any way to a utility pole, tree, fence post, stake, stick or any other object
located or situated on public or private property, except as otherwise expreSSly allowed
1..~.'n;1..____1 _~~_:__.J_ ~__f___~__'1T:_~_.11""C\n"/11'1r:IA"
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5.U6.UU SILiNS
Page 19 of21
by, or exempted from this Code.
O. Windsigns (except where permitted as part of this section of this Code).
P. Anysign which is located adjacent to a county right-of-way within the
unincorporated areas of the county which sign was erected, operated or maintained
without the permit required by section 10.02.06 having been issued by the County
Manager or his designee shall be removed as provided in this section 5.06.06. Such
signs shall include but are not limited to structural signs , freestanding signs , [and]
signs attached or affixed to structures or other objects.
a. Any description or representation, in whatever form, of nudity, sexual conduct, or
sexual excitement, when it:
1. Is patently offensive to contemporary standards in the adult community as a
whole with respect to what is suitable sexual material for minors; and
2. Taken as a whole, lacks serious literary, artistic, political, or scientific value.
R Beacon lights.
S. Anysign which emits audible sound, vapor, smoke, or gaseous matter.
T. Anysign which obstructs, conceals, hides, or othelWise obscures from view any
official traffic or government sign ,signal, or device.
U. Anysign which employs motion, has visible moving parts, or gives the illusion of
motion (excluding time and temperature signs ).
V. Anysign which is erected or maintained so as to obstruct any firefighting equipment,
window, door, or opening used as a means of ingress or egress for fire escape purposes
including any opening required for proper light and ventilation.
W. Anysign which constitutes a traffic hazard, or detriment to traffic safety by reason
of its size, location, movement, content, coloring, or method of illumination, or by
obstructing or distracting the vision of drivers or pedestrians.
X. Signs mounted on a vehicle, be it the roof, hood, trunk, bed, and so on, where said
sign is intended to attract or may distract the attention of motorists for the purpose of
advertising a business, product, service, or the like, whether or not said vehicle is
parked, or driven, excluding emergency vehicles, taxi cabs, and delivery vehicles, where
a roof mounted sign does not exceed two square feet. This section shall not apply to
magnetic type signs affixed to or signs painted on a vehicle, provided said vehicle is
used in the course of operation of a business, and which are not othelWise prohibited by
this Code. It shall be considered unlawful to park a vehicle and/or trailer with signs
painted, mounted or affixed, on site or sites other than that at which the firm, product, or
service advertised on such signs is offered.
Y. Anysign which uses flashing or revolving lights, or contains the words "Stop,"
"Look," "Danger," or any other words, phrase, symbol, or character in such a manner as
to interfere with, mislead, or confuse vehicular traffic.
Z. Anysign which advertises or publicizes an activity not conducted on the premises
upon which the sign is maintained, except as othelWise provided for within this Code.
AA Nosign shall be placed or permitted as a principal use on any property, in any
zoning district except as follows: U-Pic signs , political signs or signs approved by
temporary permit pursuant to the time limitations set forth herein.
BB. Inflatablesigns .
CC. Accent lighting as defined in this Code.
'.. In",
- .J _ _ _ ___ ,__ _ _ Ir\_ _"\: r: ____/1 "')An,., '1 J"'IL:IA""I
'1n"1''"'J(\(\t:
).UQ.UU SIGNS
Page 20 of21
DD. IlIuminatedsigns , neon or otherwise, installed inside businesses and intended to
be seen from the outside. signs that comply with the provisions of section 5.06.05 M
of this Code are exempt from this section.
EE. Human directionalsigns. People in costumes advertising stores or products.
FF. Attachments tosigns, such as balloons and streamers.
GG. Bannersigns.
HH. Pennants.
II. Benchsigns.
JJ. Signs that due to brilliance of the light being emitted, it impairs vision of passing
motorist.
KK. AIIsigns expressly prohibited by this section and their supporting structures, shall
be removed within 30 days of notification that the sign is prohibited by the County
Manager or his designee, or, within 30 days of the end of the amortization period
contained in section 9.03.03 D. or, in the alternative, shall be altered so that they no
longer violate this section. Billboards with an original cost of $100.00 or more, and which
have been legally permitted, shall be treated as nonconforming signs and removed
pursuant to section 9.03.03 D.
(Ord. No. 04-72, 93.U)
5.06.07 Enforcement
A. General. Nosign shall hereafter be erected, placed, altered or moved unless in conformity
with this Code. All signs located within Collier County shall comply with the following
requirements:
1. The issuance of asign permit pursuant to the requirements of this Code shall not
permit the construction or maintenance of a sign or structure in violation of an existing
county, state or federal law or regulation.
2. AlIsigns for which a permit is required shall be subject to inspections by the County
Manager or his designee. The County Manager or his designee is hereby authorized to
enter upon any property or premises to ascertain whether the provisions of this Code are
being adhered to. Such entrance shall be made during business hours, unless an
emergency exists. The County Manager or his designee may order the removal of any
sign that is not in compliance with the provisions of this Code, is improperly maintained,
or which would constitute a hazard to the public health, safety, and welfare.
3. The County Manager or his designee shall be charged with interpretation and
enforcement of this Code.
B. Enforcement procedures. Whenever, by the provisions of this Code, the performance of an
act is required or the performance of an act is prohibited, a failure to comply with such
provisions shall constitute a violation of this Code.
1. The owner, tenant, and/or occupant of any land or structure, or part thereof, and an
architect, builder, contractor agent, or other person who knowingly participates in,
assists, directs, creates or maintains any situation that is contrary to the requirements of
this Code may be held responsible for the violation and be subject to the penalties and
remedies provided herein.
2. Where anysign or part thereof violates this Code, the County Manager or his
designee may institute any appropriate action or proceedings to prevent, restrain,
1.............."1:1...___.1 _.._:__..:J~ ~~_I_........IT"o__'tT:_n./1""(\(\"/l/.,c.IA""\
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5.06.00 SIGNS
Page 21 of2l
correct, or abate a violation of this Code, as provided by law, including prosecution
before the Collier County Code Enforcement Board against the owner, agent, lessee, or
other persons maintaining the sign , or owner, or lessee of the land where the sign is
located.
3. If asign is in such condition as to be in danger of falling, or is a menace to the safety
of persons or property, or found to be an immediate and serious danger to the public
because of its unsafe condition, the provisions of section 2301.6 of the Standard
Building Code, as adopted by Collier County shall govern.
4. Code enforcement shall immediately remove allsigns in violation of this Section that
are located in or upon public rights-of-way or public property.
5. Penalties. If any person, firm or corporation, whether public or private, or other entity
fails or retuses to obey or comply with or violates any of the provisions of this Code,
such person, firm, corporation, or other entity, upon conviction of such offense, shall be
guilty of a misdemeanor and shall be punished by a fine not to exceed $500.00 or by
imprisonment not to exceed 60 days in the county jail, or both, in the discretion of the
court Each violation or noncompliance shall be considered a separateand distinct
offense. Further, each day of continued violation or noncompliance shall be considered
as a separate offense.
a. Nothing herein contained shall prevent or restrict the county from taking such
other lawful action in any court of competent jurisdiction as is necessary to
prevent or remedy any violation or noncompliance. Such other lawful actions
shall include, but shall not be limited to, an equitable action for injunctive relief or
an action at law for damages.
b. Further, nothing in this section shall be construed to prohibit the county from
prosecuting any violation of this Code by means of a code enforcement board
established pursuant to the subsidiary of F.S. Chapter 162.
(Ord. No. 05-27, 93.KK)
L,,","-. fna.___.l _.._:~~~_ ....---_./.........,........rn.......:u;"".......Jl :l00'") '1 1"21::. fA'")
lln7nOO{;
BRENNAN, MANNA & DIAMOND, P.L.
3301 Bonita Beach Road . Suite 202 . Bonita Springs, FL 34134
Phone (239) 992-6578 . Facsimile (239) 992-9328
Scott W. Duval
direct dial:
(239) 992-8631
swduva/(ii;hmdDLcom
February] 9,2007
Michelle Arnold, Director
Collier County Code Enforcement
2800 N. Horseshoe Drive
Naples, Florida 34104
Re: Case Number 2006120468
Dear Ms. Arnold:
In response to the revised Notice of Violation dated 1/18/07, I had asked Matt Jackson from our
Jacksonville office to do some research. Prior to joining this firm, Matt worked with the City of
Jacksonville and actually assisted with the rewriting of their sign ordinance, so I figured he was
the man for the job. Enclosed please find a copy of the memorandum which he prepared related
to this matter.
Once you and the county attorney have had an opportunity to review the memo, please do not
hesitate to contact me or you may contact Matt, his direct dial number is (904) 366-7316. Matt
would be more than happy to provide you with copies of any of the case law referenced.
Thank you again for your consideration in having provided us some additional time to research
the issues. I look forward to hearing from you and resolving this matter shortly. Please do not
hesitate to contact me should you have any questions or concerns.
S4
Scott W. Duval
-~
~
/
cc: J. McLeod
M. Jackson (w/o enclosures)
EXHIBIT
I
E
Jacksonville, FL .76 S. Laura Street .Suite 211 0 .Jacksonvi1Ie, FL 32202 .Phone: (904) 366-1500 .Fax: (904) 366-1501
Akron,OH .75 E. Market Street .Akron, OH 44308 .Phone: (330) 253-5060 .Fax: (330) 253-1977
visit us online at: wv.'w.bmdol.com or www.Drobusinesslaw.on!
BRENNAN, MANNA & DIAMOND
76 South Laura Street + Suite 2] 10 + Jacksonville, FL 32202 +www.bmdvl.com
Matthew T. Jackson.
Phone: (904) 366-]500
Fax: (904) 366-1501
MEMORANDUM
DATE:
February 12, 2007
TO:
Scott Duval
FROM:
Matthew T. Jackson
RE:
Ability of Code Enforcement Officers to Enforce Sign Restrictions on Public
Streets and/or Moving Vehicles
I have been asked to research the ability of a municipal code enforcement officer to
regulate the use of prohibited signs under a local county land use restriction on a public street
The issue is two fold: first, whether a sign regulation that seeks to restrict or prohibit certain
forms of traffic is actually governed by the State of Florida's Uniform Traffic Control Law
("UTCL") and; two, if so, whether a code enforcement officer has the authority to regulate such
an ordinance, Further, I have undertaken significant research to determine whether the sign
ordinance for Collier County, as written, may violate the U.S. Constitution.
I. State of Florida Uniform Traffic Control Law and its Impact upon Local
Government.
In Florida, Municipal ordinances are inferior to laws of the state and must not conflict
with any controlling provision of a statute. Thomas v. State, 614 So. 2d 468 (Fla. 1993). As the
Florida Supreme Court stated in Rinzler v. Carson, 262 So. 2d 661, 668 (Fla. 1972), "[a]
municipality cannot forbid what the legislature has expressly licensed, authorized or required,
nor may it authorize what the legislature has expressly forbidden." Although municipalities and
Page 2
the state may legislate concurrently in areas that are not expressly preempted by the state, a
municipality's concurrent legislation must not conflict with state law. City of Miami Beach v.
Rocio Corp., 404 So. 2d 1066 (Fla. DCA), review denied, 408 So. 2d 1092 (Fla. 1981). While a
municipality may provide a penalty less severe than that imposed by a state statute, an ordinance
penalty may not exceed the penalty imposed by the state. Edwards v. State, 422 So. 2d 84 (Fla.
2d DCA 1982). It is settled in Florida that "a general principle of statutory construction that the
mention of one thing implies the exclusion of another; expressio unius est exclusio alterius."
Hence, where a statute enumerates the things on which it is to operate, or forbids certain things,
it is ordinarily to be construed as excluding from its operation all those not expressly mentioned.
Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So.2d 234 (1944); Thayer v.
State, 335 So. 2d 815 (Fla. 1976).
The State of Florida has exclusive jurisdiction over traffic enforcement in the State of
Florida via the UTCL, Section 3 I 6 of the Florida Statutes. Florida Statute 316.002 specifically
states that the "intent in the adoption of this chapter to make uniform traffic laws to apply
throughout the state and its several counties and uniform traffic ordinances to apply in all
municipalities." F.S. 316.002. Further, it is "unlawful for any local authority to pass or to
attempt to enforce any ordinance in conflict with the provisions of this chapter." Id, F,S.
316.007 further states that "no local authority shall enact or enforce any ordinance on a matter
covered by this chapter unless expressly authorized." F.s.316.007. Section 316.008 delineates
the powers of local govemments pertaining to traffic laws. The list of powers is exhaustive;
however, no provision within F.S. 316.008 allows for a local govemment to regulate sign
ordinances involving moving traffic and "it is unlawful for any local authority to pass or to
attempt to enforce any ordinance in conflict with the provisions of this chapter." F.S. 316.008,
Page 3
It is important to note that the UTCL governs everything that is considered "traffic."
Section 316.003(57) defines traffic as "Pedestrians, ridden or herded animals, and vehicles,
streetcars, and other conveyances either singly or together while using any street or highway for
purposes of travel." Section 316,003(53)(a) defInes a street or highway in part as "the entire
width between the boundary lines of every way or place of whatever nature when any part
thereof is open to the use of the public for purposes of vehicular traffic." There can be little
doubt that the Collier County sign ordinance has overstepped its bounds in the regulation of
signs on moving traffic. As such, the County must enforce a prohibition of signs such as that
cited for, if such a prohibition exists, in a manner proscribed by the UTCL. In this particular
case, neither the method nor the manner in which the citation was issued complies with Section
316. Sate Law would clearly preempt local law and therefore restrict the means with which
counties and municipalities may enforce the law in question.
Interestingly, the State has its own sign regulation statute in place. Chapter 479 of the
Florida Statutes regulates signs near Federal and State Highways. The sign law specifically
describes prohibited signs and deals exclusively with those that are at or along the State or
Federal Highway system. Notably, there is no reference to signs attached to a moving
automobile. Further, the State grants the local code enforcement boards the right and duty to cite
and enforce sign laws in violation of State law. F.S. 479.11(5). Therefore, following the
premise that the mention of one thing implies the exclusion of another, it can be assumed that if
signs attached to moving vehicles were intended to be in control of the local code enforcement
board, the State would have accounted for it within the State sign law and grant the local boards
the authority to do so, at least with regards to their enforcement upon Federal and State
highways. Unlike Chapter 162 of the Florida Statutes, which grants municipalities the specifIc
Page 4
authority to regulate code violations, the State did not grant the authority to regulate moving
vehicles within Chapter 479. The obvious reason for this is that traffic enforcement is regulated
under completely different standards than that of code violations.
. The Collier County Land Development Code was created in order to "promote the health,
safety, convenience, aesthetics, and general welfare of the community by controlling signs which
are intended to communicate to the public..." C.c. LDC 5.06.01 (A). Section 5.06.06 (X) of the
Code prohibits the use of any signs, with the exception of magnetic signs used in the course of
business, mounted on a vehicle where "said sign is intended to attract or may distract the
attention of motorists for the purpose of advertising a business... whether or not the vehicle is
parked, or driven." c.c. LDC 5.06.01(X). Section 5.06.06 (U) prohibits the use of electronic
signs or those that employ "motion, employs moving parts or gives the illusion of motion
(excluding time and temperature signs.) C.C. LDC 5.06.01(X). Finally, Section 5.06.06 (W)
prohibits any sign that could constitute a traffic hazard or detriment to traffic safety.
There can be little question that the County Ordinance(s) in question are intended to
regulate traffic. For instance, Section 5.06.06 (W) of the Collier County Code prohibits any sign
that could be constitutes a "traffic hazard or detriment to traffic safetv." If the conduct of our
client is prohibited by state statute, a County or Municipality would be required to adhere to the
enforcement procedures outlined in section II.
II. Capacity of Municipal Code Enforcement Officers to Enforce Traffic
Violations Under the UTCL
The enforcement of the UTCL is restricted to various entities including numerous state
enforcement agencies (ie, Highway Patrol, FDOT, Division ofFish and Wildlife, etc.) Counties
and municipalities are restricted to the Sheriff of Police departments; however, they may employ
Page 5
a "parking enforcement specialist who is any individual who successfully completes a training
program established and approved by the Criminal Justice Standards and Training Commission
for parking enforcement specialists." F.S. 316.640 2(c)I-2 and 3(c)I-3. Sherriff's and police
departments may also 'employ Traffic Enforcement Officers who, after completing mandatory
training, can issue citations for traffic violations that they witness. F.S.316.640(5)(a)(b). No
other individuals may issue citations for traffic violations.
In addition, not only does the State regulate who can enforce a law governed by the
UTCL, it governs how the law can be enforced. Specifically, 316.650(l)(a) states that "the
department shall prepare, and supply to every traffic enforcement agency in this state, an
appropriate form traffic citation containing a notice to appear (which shall be issued in pre-
numbered books with citations in quintuplicate) and meeting the requirements ofthis chapter or
any laws of this state regulating traffic, which form shall be consistent with the state traffic court
rules and the procedures established by the department." Clearly, even if a code enforcement
officer was authorized to enforce a traffic law, the procedure mandated by Florida law was not
followed.
Having outlined the State statutes regulation of traffic violations, it is clear that the State
has taken a leading role in defining what a violation is, who can enforce it, and how such a law
may be enforced. It is doubtful that a municipal code enforcement officer was intended to have
such authority. F.S. 316.002 does state that "the Legislature recognizes that there are conditions
which require municipalities to pass certain other traffic ordinances in regulation of municipal
traffic that are not required to regulate the movement of traffic outside of such municipalities."
However, local authorities may not deviate from the mandated enforcement requirements. If a
Page 6
Code Enforcement officer has not completed the prescribed training and is not authorized by the
local Sherriff or Police Department, he/she may not issue citations for traffic violations.
ITI. The Collier County Sign Ordinance is an Impermissible Restriction Upon
Commercial Speech in Violation of the First Amendment of the Unites States Constitution
As written, the Collier County Sign Code violates the First Amendment as an
impermissible restriction upon commercial speech. Specifically, if the regulation is not content
neutral, that is to say the sign regulation may not defme the content of the sign, it will be found
to be in violation of the First Amendment. In determining the constitutionality of a sign code,
the first step a court must take is to determine whether he regulations are content based. Burk v.
Augusta-Richmond County, 365-F.3d ]247, 1251 (lICir. 2004). This is extremely important as
content neutral signs will be reviewed under a "time, place and manner" standard and content-
based regulations are subject to strict scrutiny.
The Supreme Court attempted to clarifY the issue in Metromedia, Inc. v City of San
Diego, 453 U.S. 490 (1981). In Metromedia the plaintiffs challenged a local ordinance that
prohibited all billboards except commercial billboards on the sites of businesses. The Court held
that the ordinance was unconstitutional on its face, since it prohibited noncommercial signs while
allowing commercial signs on business premises. Specifically, exemptions for religious signs,
time and temperature signs, government signs, and political signs amounted to content-based
criteria for permitting. The ordinance reached too far into the realm of protected speech by
permitting signs advertising goods and services while it did not allow for noncommercial
messages on the same signs. Despite the plurality decision, the court did highlight some of the
requirements that lawmakers must meet when passing such ordinances. The standard set in
Metromedia is now followed with a majority of the Circuits, excepting the Third, Sign laws
Page 7
must have a neutral effect on speech. However, there are two types of neutrality: viewpoint and
content neutrality. Rarely does viewpoint neutrality become an issue because it simply means
that a sign ordinance may not regulate a point of view. For instance, a City could not prohibit a
sign that opposes or supports a "pro-life" position. Following Metromedia, the 11th Circuit has
held that regulations allowing flags only if they represented a governmental entity was an
impermissible content-based regulation. Dimmitt v. the City of Clearwater, 985 F.2d 1565, 1569
(1 lth Cir. 1993). Interestingly, in Dimmitt, the Court found that although the city's proffered
interests in aesthetics and traffic safety were substantial, they were not sufficient to justify the
content-based ban, and were thus struck down. Id. at 1569-1570.
Content neutrality has caused local govemments difficulties. Content neutrality means a
sign regulation may not define the content of a sign and base the restriction on this content. The
principal inquiry in deciding a content neutral matter is whether the government has adopted a
regulation because of a disagreement with the message it conveys. The Government's interest is
the controlling consideration. Ward. V. Rock Against Racism, 491 U.S. 781, 791 (1989). In
Metromedia, the San Diego ordinance was struck down because it contained a list of exempted
signs defined by their content. Metromedia at 465. Disagreement with the message therefore is
not the only reason for finding that a law is content based.
The issue presented here is whether the exceptions within the Collier County sign
ordinance invalidate the ordinance itself. Specifically, Section 5.06.06 (U) exempts time and
temperature signs in an otherwise universal prohibition on moving signs. It is not the first time
this dispute .has been looked at: in 2000, a federal court struck down large sections of a
municipal ordinance because the signs were defined by their content and then these definitions
were used as a basis for their regulations. See North Olmsted Chamber of Commerce v. City of
Page 8
North Olmsted, 86 F. Supp. 2d 755 (1996). Moreover, a Kentucky court found that a local
ordinance that excluded time and temperature signs from its restriction on illuminated and
moving signs was content based and invalidated the ordinance, The court stated that "the
electronic billboards in question, which complied with the technical requirements of the
regulation, may display "temperature--99 degrees" but may not display "regular unleaded $1.07."
Plying J Travel Plaza v. Transportation Cabinet, Dep't of Highways, 928 S.W. 2d 344, 348 (Ky.
1996). When the regulation prohibits commercial speech but allows time, date, temperature or
weather information to be displayed, the regulations become substantially broader than necessary
to protect the governmental interest of highway safety. Id.
Perhaps most importaatly to the issue facing Collier County is the I I th Circuit Court of
Appeals decision in Solantic, LLCv. City of Neptune Beach, 410 F.3d 1250, (11th Cir. 2005). In
Solantic, a business operated an emergency medical care facility in front of which, it installed a
large "Electronic Variable Message Center" sign. /d. at 1254. The City's Code Enforcement
Board conducted a hearing and determined that the sign violated the sign code for several
reasons including that a sign permit had not been obtained prior to the sign's installation and the
sign's copy could blink, flash, and scroll. /d. at 1255. Following Metromedia and Dimmit
standards, the court found that the Sign Code's exceptions rendered the Code a content-based
restriction of free speech. The court noted several hypothetical incongruities where the
exceptions created such as the fact that a homeowner could install a large flashing neon arrow
and "Parking in Back," sign but could not place a traditional yard sign reading "Support our
Troops" on his or her own property. Solan tic at 1264, Because some of the signs were
extensively regulated while others were not, the court held that: (I) because most (though not all)
of the exemptions from the sign code were based on the content -- rather than the time, place, or
Page 9
manner -- of the message, the sign code discriminated against certain types of speech based on
content; (2) the sign code was not narrowly tailored to accomplish the City's asserted interests in
aesthetics and traffic safety; (3) the city had not demonstrated that its interests were compelling;
(4) the exemptions were not severable from the remainder of the ordinance; and (5) the absence
of any time limits rendered the sign code's permitting requirement unconstitutional. Id. at 1273.
It must be noted that the sign ordinance in Neptune Beach was constructed almost exactly
in the same manner as that of Collier County. Further, the exemptions listed in the Collier
County Code are strikingly similar to the sign ordinance in Neptune Beach. As stated above, the
II tb Circuit cited several hypothetical situations in So/antic that illustrated the constitutional
violations of Neptune Beach's sign ordinance. Specifically, the court stated that "pursuant to
g27-581 (4), (6), bar the use of these devices (moving parts or flashing lights) by nonexempt
individuals and other private signs. Thus, the City government could display a ten-foot-tall sign
identifYing "City Hall" in blinking lights, whereas ~27-581(6) would prohibit a homeowner from
posting even a modestly sized sign using flashing lights to identifY "The Smith residence..."
So/antic at 1264. This exact situation is allowable under the Collier County sign ordinance.
Specifically, g5.06.06 (D) prohibits "Flashing signs or electronic reader boards." However,
~5.06.05 (I) exempts "Bulletin boards and identification signs for public, charitable, educational
or religious institutions located on the premises of said institutions and not exceeding 12 square
feet in size." Thus, the Collier County govemment could post the 10 foot-tall sign, flashing
"City Hall" while a resident could not; this is the specific situation cited to in Solantic as
evidence that the Neptune Beach Sign Code violated the First Amendment Following Solantic,
it is irrefutable that Collier County Sign Ordinance does the same.
Page 10
IV. Conclusion
The Collier County Sign Code violates both State law and the Federal Constitution. First,
the prohibition of signs such as those at issue involves the regulation of traffic which is
exclusively controlled by the UTCL. Moreover, even if a law is broken under the UTCL, a code
enforcement officer, without the training mandated by statute, is not able to enforce it. Only one
with training specified by statute would be able to enforce such a law. The UTCL does not grant
local municipalities the ability to choose their enforcement methods. They must comply with
State mandated requirements. Secondly, based on the II th Circuit's holding in Solantic, the
Collier County sign ordinance as a whole violates the First Amendment as it impermissibly
restricts commercial speech by the regulation of content based signs. Following Metromedia,
Dimmitt and Solantic, there is no question that the Collier County Sign ordinance would be
invalidated if challenged.
BRENNAN, MANNA & DIAMOND, P.L.
3301 Bonita Beach Road . Suite 100 . Bonita Springs, FL 34134
Phone (239) 992-6578 . Facsimile (239) 992-9328
Scott W. Duval
direct dial:
(239) 992-8631
swduvaJ(jiJhmdDLcom
April 17, 2007
Via Facsimile and Regular Mail
EXHIBIT
Michelle Arnold, Director
Collier County Code Enforcement
2800 N. Horseshoe Drive
Naples, Florida 34104
I
F
Ms. Bendisa Marku
Operations Coordinator
Collier County Code Enforcement
Community Development and Environmental Services
2800 N. Horseshoe Drive
Naples, Florida 34104
Re: Collier County Board of County Commissioners v. MMB of Southwest Florida, LLC and
Bonita Media Enterprises, LLC
Dept. Case Number 2006120468
CEB Case Number 2007-35
Dear Ms. Arnold and Ms. Marku:
My client is in receipt of a Notice of Hearing for the above referenced case. I strongly object to
the date of the proposed hearing being April 26, 2007. Please note that my client received the
formal Notice of Hearing this morning, just nine days prior to the proposed hearing. Despite the
Statement of Violation and Request for Hearing being signed on March 29, 2007, the formal
notice was not postmarked until Friday, April 13, 2007. I have enclosed a copy of the
postmarked envelope for your records. You have not provided my client ten (10) days notice, as
is required by Article VII, Section 3 of the Collier County Code Enforcement Board Rules and
Regulations. My client is willing to appear at the hearing scheduled for Tuesday, May nnd,
which appears to be the next scheduled Code Enforcement Board hearing date. I would greatly
appreciate a prompt response to this request.
On a related note, I am disappointed that the Notice of Hearing is the path that was decided to be
taken without so much as a courtesy calL As you may recall, the first Notice of Violation was
received in December, 2006 as was subsequently corrected due to improper notice of that
Jacksonville, FL .76 S. Laura Street .Suite 211 0 .Jacksonville, FL 32202 .Phone: (904) 366-1500 .Fax: (904) 366-1501
Akron,OH .75 E. Market Street .Akron, OH 44308 .Phone: (330) 253-5060 .Fax: (330) 253-1977
visit us online at: www.bmdol.com or www.Drobusinesslaw.org
violation, After some discussions, we agreed to provide a position paper, which we did on
February 19, 2007.
Please note that I will make every effort to compile a response/defense packet, but since there is
a mere 9 days until the proposed hearing (unless it is postponed as requested), I Cartnot provide
the defense packet within 10 days of the hearing as is required in the Notice of Hearing.
I reserve all rights that my client has, including his right to due process. I look forward to
hearing from you in regard to the postponement of the hearing on this matter until the May nnd
meeting. Please do not hesitate to contact me should you have any questions in the meantime.
Sincerely,
~
- -C:J~
Scott W. Duval
cc: J. McLeod (via email)
M. Jackson (via email)
Jacksonville, FL .76 S. Laura Street .Suite 2110 .Jacksonville, FL 32202 .Phone: (904) 366-1500 .Fax: (904) 366-1501
Akron,OH .75 E. Market Street .Akron, OH 44308 .Phone: (330) 253-5060 .Fax: (330) 253-1977
visit us online at: www.bmdnl.com or www.Drobusinesslaw.oTQ
I1111 II II 11111 11m
Code Ent(Jreement Board Case No 2007-35
Page I of I
Patricia L. Morgan
From: MarkuBendisa [BendlsaMarku@colliergovnetJ
Sent: Thursday. May 24. 2007 3.52 PM
To: Patncla L. Morgan
Subject: Code Enforcement Board Case No 2007-35
Hello Patricia,
ThiS e-mail IS In regard to Code Enforcement Board Case Number 2007-35. The County's Exhibit B has the case
number of CEB 2007-44 inslead of CEB 2007-35 Code Enforcement Records have already been corrected.
Please let me know. If you have additional questions
Thank you.
Bendisa Marku
Operations Coordinator
Collier County Code Enforcement
(239)213-5892 (Direct Line)
(239) 403-2343 (Fax)
BendlsaMarku@colliergov.net (E-mail)
ATTENTION: Be advised that under Florida's Government-in-the-Sunshine law, information
contained within this email becomes public record, unless protected by specific exemption, The law
provides a right of access to governmental proceedings and documents at both the state and local
levels. There is also a constitutionally guaranteed right of access. For more information on this law,
visit: Flonda's Sunshme Law
6i5/2007
Code )'nf()reemenllloard Case l\;o 2007-35
Page I 01'2
Patricia L. Morgan
From: MarkuBendisa [BendisaMarku@colllergovnetJ
Sent: Thursday, May 24, 20074:08 PM
To: Patncla L. Morgan
Subject: RE Code Enforcement Board Case No 2007-35
Thank you
From: Patricia L. Morgan [mailto:patriCia.morgan@COllierClerk.com]
Sent: Thursday, May 24,20073:59 PM
To: MarkuBendisa
Subject: RE: Code Enforcement Board Case No 2007-35
lklldI:si.1,
'71ils /Iol!fic(/tw/I wl[[fie p(um/wltli tfie record/or tfie (lEB meetlllg ~f:May 2./, 2001. (P(ease fie assurea tfiat tfils
nOllfic,IlW/I ",[(fic p[;l.-cd'"lIfi tfie 'Lt:/ilfill 'JJ referCllcntJor e(EJJ (ase W'o. 2001.35 (not 01-II as mari{,alllcorrectry
on the crli,tilfj. r71i,s uJ,-r{6c made part (f'E\/ii6itfJ~for tlie r~!~rL'n(L'd-case num6er.
'TlianI( \-'ou,
7nsl; : fto~qal/
JJ' ftN.: fla'''I,qer
.!39-71-~-S:;99 ,Pilon/!
:!.JY-77-1-/U08 i[,V::.
From: MarkuBendisa [mailto:BendisaMarku@colliergov.net]
Sent: Thursday, May 24, 20073:52 PM
To: Patricia L. Morgan
Subject: Code Enforcement Board Case No 2007-35
Hello Patricia.
This e-mail IS In regard to Code Enforcement Board Case Number 2007-35. The County's Exhibit B has the case
number of CEB 2007-44 Instead of CEB 2007-35 Code Enforcement Records have already been corrected
Please let me know. If you have additional questions
Thank you.
Bendisa Marku
Operations Coordinator
Collrer County Code Enforcement
(239)213-5892 (Direct Line)
(239) 403-2343 (Fax)
BendisaMarku@colliergov.net (E-mail)
6/5/2007
~ ."~_...~-.-
Code Enforcement Board Case No 2007-35
Page 2 01'2
ATTENTION: Be advised that under Florida's Government-in-the-Sunshine law, information
contained within this email becomes public record, unless protected by specific exemption. The law
provides a right of access to governmental proceedings and documents at both the state and local
levels. There is also a constitutionally guaranteed right of access. For more information on this law,
VISit: Florida's Sunshine Law
6/5/2007
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COLLIER COUNTY CODE ENFORCEMENT
COMMUNITY DEVELOPMENT AND ENVIRONMENTAL SERVICES DIVISION
2800 N. Horseshoe Dr. _
Naples. Florida 341 04. 2J9....J.03w2440. FAX 239.403-2343
DATE:
June 6, 2007
TO:
Trish Morgan, Clerk of Courts - Records
FROM:
Bendisa Marku, Code Enforcement
RE:
CEB Orders from 5/24/07 Hearing
Please find attached the orders issued by the CEB.
I respectfully request that your office certify all documents contained herein and then
forward the document, with this memo, to the Recording Department for official
recording.
Recording Department Instructions:
Please record all documents contained herein as Orders/Liens and return the
originals to:
Bendisa Marku, Operations Coordinator
Collier County Code Enforcement
CDES Building
2800 North Horseshoe Drive
Naples, FL 34104
Please include a statement of all recording fees so that I may charge the appropriate
parties. The Code enforcement Cost Account is 111-138911-649030.
Thank you all very much for your assistance. Should you have any questions or
require additional information, please do not hesitate to contact me at 213-5892.
CODE ENFORCEMENT BOARD
COLLIER COUNTY, FLORIDA
BOARD OF COUNTY COMMISSIONERS,
COLLIER COUNTY, FLORIDA,
Petitioner,
CEB NO. 2007-35
vs.
BONITA MEDIA ENTERPRISES, LLC,
BRENNAN, MANNA & DIAMOND, (Reg. Agent)
Respondents
/
FINDINGS OF FACT. CONCLUSIONS
OF LA W AND ORDER OF THE BOARD
THIS CAUSE came on for public hearing before the Board on May 24, 2007, and the Board, having heard
testimony under oath, received evidence. and heard respective to all appropriate matters, thereupon issues its
Findings of Fact, Conclusions of Law, and Order of the Board, as follows:
FINDINGS OF FACT
I. That MMB OF SOUTHWEST FLORIDA, LLC AND BONITA MEDIA ENTERPRISES, LLC,
BRENNAN, MANNA & DIAMOND, (Reg. Agent) are the owners of the subject business. MMB OF
SOUTHWEST FLORIDA is no longer in existence.
2. That the Code Enforcement Board has jurisdiction of the person of the Respondents and that the
Respondents, having been duly notified, appeared at the public hearing in person and by counsel.
3. That the Respondents were notified of the date of hearing by certified mail and by posting.
4. That the real property located at itinerant or transient in nature, is in violation of Collier County Ordinance
County Ordinance 04-41, the Land Development Code, as amended, sections 5.06.06(U), 5.06.06(W) and
5.06.06(X) in the following particulars:
Vehicle with moving/changing sign copy.
ORDER OF THE BOARD
Based upon the foregoing Findings of Faet and Conclusions of Law, and to the authority granted in
Chapter 162, Florida Statutes, and Collier County Ordinance No. 04-41, it is hereby ORDERED:
That the violations of Collier County Ordinance 04-41, the Land Development Code, as amended, sections
5.06.06(U), 5.06.06(W) and 5.06.06(X) be corrected in the following manner:
I. By ceasing immediately displaying of any sign within Collier County that employs motion, or the
illusion of motion, or any sign mounted on vehicle be it roof, bed, hood, truck and so on where said sign is made to
attract or distract the attention of motorists for the purpose of advertising a business, product, service or the like
attract or distract the attention of motorists for the purpose of advertising a business, product, service or the like
whether or not said vehicle is parked or driven or any sign which constitutes a traffic hazard or detriment to traffic
safety by its size, color, movement, content, coloring, or method of illumination. The Respondent agreed to stop
the motion of the sign immediately.
2. That if the Respondents do not comply with paragraph I of the Order of the Board, then there will be
a fine of $1 ,000 per sighting.
3. That the Respondents are ordered to pay all operational costs incurred in the prosecution of this
Case.
Any aggrieved party may appeal a final order of the Board to the Circuit Court within thirty (30) days of
the execution of the Order appealed. An appeal shall not be a hearing de novo, but shall be limited to appellate
review of the record created within. Filing an Appeal shall not stay the Board's Order.
DONE AND ORDERED this '11ft day of !J ,2007 at Collier County,
Florida. ~
CODE ENFORCEMENT BOARD
COLLIER COUNTY, FLORIDA
BY: 4L' A....ff-
Sheri Barnett, Chair
2800 North Horseshoe Drive
Naples, Florida 34104
STATE OF FLORIDA )
)SS:
COUNTY OF COLLIER)
The foregoing instrument was acknowledged before me this~day of ~I\-€- ,
2Q.oy, by Sheri Barnett, Chair of the Cod!l Enforcement Board of Collier County, Florida, who is
~ personally known to me or ~ who has produced a Florida Driver's License as identification.
,,;&'llli'i't:
~~f" ij
"'.......>71
. 4'1f..f,\'f,~-
CHRISTINA L URBANOWSKI
MY COMMISSION' DO 241717
EXPIRES, Novemb... 22, 2007
BorldedTl1ruNOIlIryPlbiCUrtaefWriters
Ln\.rtil)U~\_l~~~
NOTARY PUBLIC
My commission expires:
CERTIFICA TE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of this ORDER has been sent by U. S. Mail to U. S.
Mail to BONITA MEDIA ENTERPRISES, LLC, 17501 Stepping Stone Drive, Ft. Myers, FL 33912 and
BRENNAN, MANNA & DIAMOND, (Reg. Agent), 3301 Bonita Beach Road, Ste. 202, Bonita Springs, FL
34134this~ayof~ ,2007.
/ ~
C~-~
12 hl
....-...~., '1j5~"'~.~~:/ M. ean Ra son, Esq.
....,,~~,,;....~-:c\
.. '~"'/y'. Florida Jil No. 750311
Attorney for the Code Enforcement Board
400 Fifth Avenue S., Ste. 300
Naples, Florida 34102
(239) 263-8206
~~L
Date: June 25, 2007
BRENNAN, MANNA & DIAMOND, P.L.
3301 Bonita Beach Road, Suite 100
Bonita Springs, Florida 34134
Ph. 239.992.6578
Fax. 239.992.9238
~ ..' ~~
To: Clerk to the Board of County Commissioners
From: Richard Annunziata
Subject: C.E.B. Case No. 2007-35
BCC v. Bontia Media Enterprises, LLC
I am enclosing with this letter Bonita Media Enterprises, LLC's Notice of Filing
Administrative Appeal for filing in the above matter and as part of the Minutes and
Records for the Board of County Commissioners and the Code Enforcement Board for
Collier County.
The attorney for Code Enforcement for Collier County, JeffKlatzkow, advised, today
June 25, 2007, that Collier County Code Enforcement does not have a clerk. Therefore I
am filing the Notice of Administrative Appeal with the Clerk for the Board of County
Commissioners.
Richard Ann
cc: JeffKlat ow
Jean Rawson
Bendisa Marku
CODE ENFORCEMENT BOARD COLLIER COUNTY FLORIDA
Appeal NO.:~' ')
."':0/~
L.T. No. CEB No 2007-35
BONITA MEDIA ENTERPRISES, LLC,
BRENNAN, MANNA & DIAMOND (REG. AGENT),
Respondent! Appellant
v.
BOARD OF COUNTY COMMISSIONERS,
COLLIER COUNTY, FLORIDA,
Petitioner/Appellee
/
NOTICE OF ADMINSITRATIVE APPEAL
NOTICE IS GIVEN that BONITA MEDIA ENTERPRISES, LLC, Appellant,
appeals to the Circuit Court in and for the Twentieth Judicial Circuit of Collier County
the Order of the Code Enforcement Board Collier County, Florida rendered on June 4,
2007, conformed copies of which are attached hereto in accordance with
Fla.R.App.P. 9.11 O(d) and 9.130(c). The nature of the Order is a final Order of the
Code Enforcement Board for Collier County against Bonita Media Enterprises, LLC.
BRENNAN, MANNA & DIAMOND, P.L.
Attorneys for Defendant
3301 Bonita Beach Rd., Suite 100
~?7;~>~
. ic ard S. Annunziata
Florida Bar No. 00782
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has
been furnished to the following:
Jean Rawson, Esq. (Attorney for Code Enforcement Board)
400 Fifth Avenue S., Suite 300
Naples, FL 34102
Jeff Klatzkow, Esq. (Attorney for Collier County and Board of County
Commissioners, Florida)
3301 Tamiami Trail, E., Bldg. F
Naples, FL 34112
Sheri Barnett (Chairwoman for Board)
Code Enforcement Board Collier County, Florida
2800 N. Horseshoe Drive
Naples, FL 34104
Michelle Arnold (Code Enforcement Director)
2800 N. Horseshoe Drive
Naples, FL 34104
Bendisa Marku (Code Enforcement Operations Coordinator)
2800 N. Horseshoe Drive
Naples, FL 34104
by regular U.S. Mail this 25th day of June, 2007.
BRENNAN, MANNA & DIAMOND, P.L.
Attorneys for Defendants
3301 Bonita Beach Rd., Suite 100
Bonita . gs, FL 34
Retn: BIIDISA KARlU
COLLIIR CODlTl CODI IIFORCI
2800 I RORSISROI DR
IAPLIS FL 3UOI
4030299 OR: 4241 PG: 2452 DC
RlCORDID in the OfFICIAL RICORDS of COLLIIR COUITY, FL FII
Oi/08/2007 at 01:30PM DWIGRT 8. BROCK, CLIRK
18.50
CODE ENFORCEMENT BOARD
COLLIER COUNTY, FLORIDA
BOARD OF COUNTY COMMISSIONERS,
COLLIER COUNTY, FLORIDA,
Petitioner,
CEB NO. 2007-35
vs.
BONITA MEDIA ENTERPRISES, LLC,
BRENNAN, MANNA & DIAMOND, (Reg. Agent)
Respondents
/
FINDINGS OF FACT. CONCLUSIONS
OF LAW AND ORDER OF THE BOARD
THIS CAUSE came on for public hearing before the Board on May 24, 2007, and the Board, having heard
testimony under oath, received evidence, and heard respective to all appropriate matters, thereupon issues its
Findings of Fact, Conclusions of Law, and Order of the Board, as follows:
FINDINGS OF FACT
I. That MMB OF SOUTHWEST FLORIDA, LLC AND BONITA MEDIA ENTERPRISES, LLC,
BRENNAN, MANNA & DIAMOND, (Reg. Agent) are the owners of the subject business. MMB OF
SOUTHWEST FLORIDA is no longer in existence.
2. That the Code Enforcement Board has jurisdiction of the person of the Respondents and that the
Respondents, having been duly notified, appeared at the public hearing in person and by counsel.
3. That the Respondents were notified of the date of hearing by certified mail and by posting.
4. That the real property located at itinerant or transient in nature, is in violation of Collier County Ordinance
County Ordinance 04-41, the Land Development Code, as amended, sections 5.06.06(U), 5.06.06(W) and
5.06.06(X) in the following particulars:
Vehicle with moving/changing sign copy.
ORDER OF THE BOARD
Based upon the foregoing Findings of Fact and Conclusions of Law, and to the authority granted in
Chapter 162. Florida Statutes. and Collier County Ordinance No. 04-41, it is hereby ORDERED:
That the violations of Collier County Ordinance 04-41, the Land Development Code. as amended, sections
5.06.06(Ul. 5.06.06(W) and 5.06.06(X) be corrected in the following manner:
,
I. By ceasing immediately displaying of any sign within Collier County that employs mOtion. or the
illusion of motion, or any sign mounted on vehicle be it roof, bed, hood, truck and so on where said sign is made to
attract or distract the attention of motorists for the purpose of advertising a business, product, service .or the like
*** OR: 4241 PG: 2453 ***
attract or distract the attention of motorists for the purpose ofadvertising a business, product, service or the like
whether or not said vehicle is parked or driven or any sign which constitutes a traffic hazard or detriment to traffic
safety by its size, color, movement, content, coloring, or method of illumination. The Respondent agreed to stop
the motion of the sign immediately.
2, That if the Respondents do not comply with paragraph I of the Order of the Board, then there will be
a fine of $1,000 per sighting.
3. That the Respondents are ordered to pay all operational costs incurred in the prosecution of this
Case.
Any aggrieved party may appeal a final order of the Board to the Circuit Court within thirty (30) days of
the execution of the Order appealed. An appeal shall not be a hearing de novo, but shall be limited to appellate
review of the record created within. Filing an Appeal shall not stay the Board's Order.
. l.J1J1, Ii .. .
DONE AND ORDERED thIS ~ day of~, 2007 at CollIer County,
Florida.
CODE ENFORCEMENT BOARD
COLLIER COUNTY, FLORIDA
BY:~' /3-;tj-
Sheri Barnett, Chair
2800 North Horseshoe Drive
Naples, Florida 34104
STATEOFFLORIDA )
)SS:
COUNTY OF COLLIER)
The foregoing inslnlment was acknowledged before me thiS~day of ~.ciL ,
2Q!l/,' by Sheri Barnett, Chair of the Cod9 Enforcement Board of Collier County, Florida, who is
~ personally known to me or ~ who has produced a Florida Driver's License as identification.
.
CIfISTINA L UIIlANOWllKI
MY COMMISSION' 00241717
EXPIRES: _22,_
BorlcIId TIw NciIIry N* lhIIlwrIh
c..nl'd~r'H'\~,~~
NOTARY PUBLIC
My commission expires:
CERTIFICATE OF SERVICE
state Of FLORtDA
;ounty of COWER
I HEREBY cERTlFV'm.ATthii.lU._
oorrect copy ot it ooclt.(n.8Ilt-on:j1le In
30ard Minutes.and Rll!:oros otl::olller.count)
~~ESS my ~no 'aria official seal t.,!!S
day 01 ~ "~/",~~ .c'
I)WIGHT E. BRO,"K, CLmK OFcpURTl
Bva~.1 II ^61~tc) I ~ D.Q.
I HEREBY CERTIFY that a lnIe and correct copy of this ORDER has been sent by U. S. Mail to U. S.
Mail to BONITA MEOlA ENTERPRISES, LLC, 1750 I Stepping Stone Drive, Ft. Myers, FL 339) 2 and
BRENNAN, MANNA & D~MOND, (Reg. Agent), 3301 Bonita Beach Road, Ste. 202, Bonita Springs. FL
34134this~ayof. .~ ,2007.
j2.~
<. M. ean a son, Esq.
, ; Florida No. 750311
Attorney for lhe Code Enforcement Board
400 Fifth Avenue S., Ste. 300
Naples, Florida 34102
(239) 263-8206
-"-'''''.'i~~l
"",
"1.
.e.
May 24, 2007
TRANSCRIPT OF THE MEETING OF THE
CODE ENFORCEMENT BOARD OF COLLIER COUNTY
Naples, Florida
May 24, 2007
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 9:00 a.m., in REGULAR SESSION in Building "F" of
the Government Complex, East Naples, Florida, with the following
members present:
CHAIRWOMAN: Sheri Barnett
Jerry Morgan
Richard Kraenbring
George Ponte
Gerald L. Lefebvre
Larry Dean
Kenneth Kelly (Excused)
Charles Martin
Lionel L'Esperance, Alternate
ALSO PRESENT:
Michelle Arnold, Code Enforcement Director
Bendisa Marku, Code Enforcement Operations Coordinator
Jean Rawson, Esquire, Attorney for the Code Enforcement Board
Page 1
May 24, 2007
CHAIRWOMAN BARNETT: All those in favor?
MR. MARTIN: Aye.
MR. MORGAN: Aye.
MR. KRAENBRING: Aye.
CHAIRWOMAN BARNETT: Aye.
MR. PONTE: Aye.
MR. LEFEBVRE: Aye.
CHAIRWOMAN BARNETT: Any opposed?
(No response.)
CHAIRWOMAN BARNETT: Thank you.
MR. SNOW: Thank you very much.
CHAIRWOMAN BARNETT: I believe that closes out the
stipulated agreements, and so now we'll move into the hearings.
And it looks like the first case is going to be the Board of County
Commissioners versus MMB of Southwest Florida, LLC, and Bonita
Media Enterprises, LLC.
MS. MARKU: For the record, Bendisa Marku, Operations
Coordinator for Collier County Code Enforcement.
I would like to ask if the respondent is present.
MR. ANNUNZIATA: Yes. Richard Annunziata from the law
firm of Brennan, Manna & Diamond on behalf of Bonita Media
Enterprises. And just for the record, MMB of Southwest Florida,
LLC, is no longer in existence. So we're here just for Bonita Media
Enterprises today.
CHAIRWOMAN BARNETT: Thank you.
MS. MARKU: The respondent and the board was sent a package
of evidence, and I would like to enter the package of evidence as
Exhibit A.
CHAIRWOMAN BARNETT: I'll entertain a motion to accept
the county's packet.
MR. LEFEBVRE: Accept the county--
MR. DEAN: Second.
Page 16
May 24, 2007
CHAIRWOMAN BARNETT: All those in favor?
MR. MARTIN: Aye.
MR. MORGAN: Aye.
MR. KRAENBRING: Aye.
CHAIRWOMAN BARNETT: Aye.
MR. PONTE: Aye.
MR. LEFEBVRE: Aye.
CHAIRWOMAN BARNETT: Any opposed?
(No response.)
CHAIRWOMAN BARNETT: Okay.
MS. MARKU: Violation of ordinances, 04-41, Land
Development Code as amended, section 5.06.06[U], 5.06.06[W], and
5.06.06[X].
Description of violation: Vehicle with moving/changing sign
copy.
Location/address where violation exists: Itinerant or transient in
nature.
Name and address of owner/person in charge of violation: MMB
of Southwest Florida and Bonita Media Enterprises, LLC.
MS. ARNOLD: We'll just correct that, that MMB is not an
existing entity anymore.
CHAIRWOMAN BARNETT: Okay.
MR. ANNUNZIATA: If I may, I haven't received a copy of the
packet of evidence given to the board. I don't know if that's something
that I would normally be provided with so that I could assess it while
the presentation's being made.
MS. ARNOLD: It was sent with the Notice of Violation.
MR. ANNUNZIATA: Oh, okay. That's it?
MS. ARNOLD: That's what they're talking about, yeah.
MR. ANNUNZIATA: Okay, very good.
MS. MARKU: Co-owner (sic) registered agent/registered agent:
Brennan, Manna & Diamond, PL, 3301 Bonita Beach Road, Suite
Page 17
May 24, 2007
203, Bonita Springs, Florida, 33912. Is that correct?
MR. ANNUNZIATA: Did you say co-owner?
MS. MARKU: C/O registered agent.
MR. ANNUNZIATA: Registered agent, that would be correct.
MS. MARKU: Date violation first observed: December 14,
2006.
Date owner/person in charge given Notice of Violation: January
18,2007.
Date on which violation to be corrected: February 20,2007.
Date ofre-inspection: March 15,2007. Results ofre-inspection:
Violation remains.
At this time I would like to invite Code Enforcement Investigator
Kitchell Snow.
CHAIRWOMAN BARNETT: Okay. Before we get really
started too far, Mr. Kitchell Snow and--
MR. ANNUNZIATA: Richard Annunziata.
CHAIRWOMAN BARNETT: Richard.
MR. ANNUNZIATA: I was going to say, please call me
Richard.
CHAIRWOMAN BARNETT: Do you think this case is going to
take longer than five minutes for either of you to present?
MR. ANNUNZIATA: I do.
CHAIRWOMAN BARNETT: How long do you think you'll
need?
MR. ANNUNZIATA: I would like at least the 20 minutes to
present. I mean, I don't know that I'll go that long. I certainly would
like whatever -- you said more than five minutes?
CHAIRWOMAN BARNETT: Uh-huh.
MR. ANNUNZIATA: Yeah, I think we'd go more than five
minutes. I'd like -- I have a presentation, a couple of questions, and
then I think we'll be done, I mean, but --
CHAIRWOMAN BARNETT: What is the board's privy on this
Page 18
May 24, 2007
because we have to give him our authorization because it's over a
five-minute limit.
MR. ANNUNZIATA: And just for the record, at the last hearing
I had requested -- although I don't think it was a ruling -- for some
additional time -- I asked for some additional time.
CHAIRWOMAN BARNETT: That's kind of why I brought it
up.
MR. ANNUNZIATA: Thank you.
MR. KRAENBRING: Well, is he actually the representative of
the respondent?
CHAIRWOMAN BARNETT: Dh-huh.
MR. KRAENBRING: So he has the 20 minutes. He's not a
witness or --
CHAIRWOMAN BARNETT: Right. Okay.
MR. KRAENBRING: -- just speaking.
MR. ANNUNZIATA: Correct. I'm the attorney for --
MR. KRAENBRING: So he would have 20 minutes.
MR. ANNUNZIATA: -- Bonita Media Enterprises.
CHAIRWOMAN BARNETT: Okay. All right.
MS. ARNOLD: The rules allow for 20 minutes.
CHAIRWOMAN BARNETT: Fine. I read them over and over
and over this weekend, so I'm probably confusing a couple of different
issues. I'm sorry.
MR. ANNUNZIATA: And maybe I'm confused. My
understanding was that he had 20 minutes and I had 20 minutes; is that
not --
CHAIRWOMAN BARNETT: That's correct.
MR. ANNUNZIATA: That is correct, okay.
CHAIRWOMAN BARNETT: Okay. May I have them both
sworn in then, please. I'm sorry
(The speakers were duly sworn.)
CHAIRWOMAN BARNETT: Go ahead, Mr. Snow.
Page 19
May 24, 2007
MR. SNOW: For the record, Investigator Kitchell Snow with
code enforcement. Before we start, I have some photographs I'd like
to submit as evidence, please.
CHAIRWOMAN BARNETT: Okay. May we accept Exhibit B
for the county, please.
MR. PONTE: I make a motion to accept.
MR. LEFEBVRE: Second.
CHAIRWOMAN BARNETT: All those in favor?
MR. MARTIN: Aye.
MR. MORGAN: Aye.
CHAIRWOMAN BARNETT: Aye.
MR. PONTE: Aye.
MR. LEFEBVRE: Aye.
CHAIRWOMAN BARNETT: Any opposed?
(No response.)
MR. KRAENBRING: Me. I'd like to see the photos before we
accept them.
MS. ARNOLD: We have to decide whether or not we want to--
MR. KRAENBRING: Whether you're going to accept them or
not, okay. Before we had a situation where we had seen photos that
weren't applicable to the case.
MS. ARNOLD: Well, you accept them and you decide which
one is relevant.
MR. KRAENBRING: Okay. Then I will change my vote.
MR. PONTE: I don't know if you can do that.
CHAIRWOMAN BARNETT: Okay.
MS. ARNOLD: Mr. Annunziata, do you have any objections to
those photos?
MR. ANNUNZIATA: I have no objection to the photos. I had
just made a suggestion that I also had a brochure that I wanted to
present to you.
MR. SNOW: No objection.
Page 20
May 24, 2007
MS. ARNOLD: Oh, yeah. You could do that at your time -- at
that time.
MR. ANNUNZIATA: Very good.
MS. ARNOLD: Was there a decision from the board?
CHAIRWOMAN BARNETT: Yes, it was accepted.
MR. KRAENBRING: Accepted.
MR. SNOW: This has been an ongoing case since last year. It
involves a vehicle that has motion or movement of signs. And I want
to read you the ordinances which they were cited on so we can be very
clear on what they've been cited for.
Sections 5.06.06[U] states, any sign which employs motion, has
visible moving parts, or gives the illusion of motion, excluding time
and temperature signs; any sign which constitutes a traffic hazard or
detriment to traffic safety by reason of its size, location, movement,
content, coloring, method of illumination or by obstructing or
distracting the vision of drivers or pedestrians.
X, any sign mounted on the vehicle, be it the roof, hood, truck,
bed, and so on where said sign is intended to attract or may distract the
attention or motorists for the purpose of advertising a business, a
product, a service, or the like, whether or not said vehicle is parked or
driven, excluding emergency vehicles, taxicabs, and delivery vehicles
where a roof mounted sign does not exceed two square feet.
This section shall not apply to magnetic type signs affixed or
signs painted on a vehicle provided said vehicle is used in a normal --
I'm sorry -- in the course of operation of a business, which are not
otherwise prohibited by this code.
It shall be un -- it shall be unlawful -- it shall be considered
unlawful to park a vehicle or a trailer with signs painted, mounted, or
affixed on a site or sites other than that at which the firm, product, or
service advertised of such sign is offered.
And this is a case where the vehicle has three sides and it is
changeable copy. And as you can see from the photographs -- and this
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May 24, 2007
is in Collier County. This is running down Airport Road right near
Exchange. And you notice the time frame of the camera. It changes
approximately -- I didn't time it. Again, I was in the vehicle following
it. For safety reasons I wasn't -- I was paying more attention to traffic
than just trying to photograph.
But as you can see, the copy does change. It does flip. There are
visible moving parts within this sign, which is expressly prohibited by
the code.
For the record, these are in time sequence. This is clearly a
violation of the code as it stands today.
CHAIRWOMAN BARNETT: Okay. Is that -- Richard, it's your
turn. Would you like to enter anything in for evidence, because I
believe --
MR. ANNUNZIATA: We have already presented the board with
a response memorandum and a whole package, and I would ask that
that be made a part of the record. I have an extra copy here which I'd
like to submit.
I've -- what I'm submitting on the record is exactly what was --
already been presented to Michelle Arnold, the attorneys of your
board.
CHAIRWOMAN BARNETT: Make a motion -- or I will
entertain a motion, please, to accept his packet A.
MR. LEFEBVRE: Make a motion to accept his package A.
MR. PONTE: Second.
CHAIRWOMAN BARNETT: All those in favor?
MR. MARTIN: Aye.
MR. MORGAN: Aye.
MR. KRAENBRING: Aye.
CHAIRWOMAN BARNETT: Aye.
MR. PONTE: Aye.
MR. LEFEBVRE: Aye.
CHAIRWOMAN BARNETT: Any opposed?
Page 22
May 24, 2007
(No response.)
CHAIRWOMAN BARNETT: Okay.
MS. ARNOLD: This packet was already sent to you with your
packet.
MR. ANNUNZIATA: I'd like present it to the court reporter to
make it part of the record.
CHAIRWOMAN BARNETT: That's fine. Did you want to
enter the brochure?
MR. ANNUNZIATA: I do, yes. The second thing I'd like to do
is -- and I apologize. I only have two of them. I'd like to present the
brochure to the board. I have two of them. If we could pass them
through and then make at least one ofthem part of the record. I'd like
to do it that way as well.
MS. ARNOLD: Can we see the brochure?
MR. ANNUNZIATA: Absolutely.
CHAIRWOMAN BARNETT: Would we like to entertain B for
the respondent? Motion to accept?
MR. DEAN: I make a motion to accept.
MR. PONTE: Second.
CHAIRWOMAN BARNETT: All those in favor?
MR. MARTIN: Aye.
MR. MORGAN: Aye.
MR. KRAENBRING: Aye.
CHAIRWOMAN BARNETT: Aye.
MR. PONTE: Aye.
MR. LEFEBVRE: Aye.
CHAIRWOMAN BARNETT: Any opposed?
(No response.)
MR. ANNUNZIATA: The whole purpose is just to get a visual
picture.
CHAIRWOMAN BARNETT: Why don't you go ahead and pass
one down so we can be looking at it at the same time.
Page 23
May 24, 2007
Go ahead. It's your floor.
MR. ANNUNZIATA: Very good.
MS. ARNOLD: The county will just let you know whether or
not we have any objections.
CHAIRWOMAN BARNETT: Okay, I'm sorry.
MR. ANNUNZIATA: Bonita Media Enterprises is a Florida
company.
CHAIRWOMAN BARNETT: Okay. Let me -- I'm sorry.
MR. ANNUNZIATA: I apologize.
CHAIRWOMAN BARNETT: I'm messing up today.
MR. ANNUNZIATA: We're still trying to figure out if we're
going to accept that?
CHAIRWOMAN BARNETT: We've accept it, but we need to
know whether or not they have any objections to it.
MR. ANNUNZIATA: Fair enough.
MR. KLATZKOW: None whatsoever.
CHAIRWOMAN BARNETT: Okay. There we go.
MR. ANNUNZIATA: Bonita Media Enterprises is a Florida
company that's based out of Bonita Springs, which owns and operates
a mobile advertising company and operates -- I apologize -- operates a
mobile advertising company both in Lee and Collier County and in
other counties throughout Florida.
Bonita Media Enterprises owns and operates trucks which
effectively have four advertising panels with three sides each which
rotate at uniformly controlled intervals. Essentially, the purpose of
which is to change the copy of the advertising that's on the trucks.
This is done effectively while the trucks are traveling along the
federal, state, and local roadways of Collier, Lee, and other counties
within Florida.
One of the points -- my client was cited for three sections of the
Land Development Code pertaining to prohibited use of signs in
Collier County. I need to bring to the Court -- to the board's attention
Page 24
May 24, 2007
that my client owns no land in Collier County and no land
infringement is at issue here today.
Effectively, the Land Development Code that's at issue here does
not -- it is our position, respectfully, that the Land Development Code
does not apply and was not intended to apply to a mobile advertising
company such as Bonita Media Enterprises.
Section 1.04.01 of the Land Development Code specifically
states that the provisions of this land development -- of this LDC, the
Land Development Code, shall apply to all land, property, and
development in the total unincorporated area of Collier County except
as expressly and specifically provided otherwise in this Land
Development Code.
Clearly, I would submit this does not apply to Bonita Media
Enterprises, that ordinances that are at issue, the three sections of the
signs that deal -- that are listed in the Land Development Code do not
apply to Bonita Media Enterprises. No land is at issue -- no land use
is at issue here or property issues or development issues are involved.
Second -- and I may have some questions for Mr. -- Mr. Snow as
we proceed. But this is not the kind of case where we have a business
owner making certain use of property and making certain use of
signage on his property.
And, again, I would submit that the Land Development Code
does not apply to moving vehicles and traffic. It is our position -- and
we have stated this in our position paper. And to the extent that -- to
the fullest extent we adopt all those arguments today in relation to our
position against the code enforcement violations.
The State of Florida has exclusive authority over traffic
enforcement, and it is our position that Florida law effectively states
that it is unlawful for any local authority to pass or attempt to enforce
any ordinance that's in conflict with the provisions of Florida Statutes,
Chapter 316, and that no local authority shall enact or enforce any
ordinance under matter covered by that section unless expressly
Page 25
May 24, 2007
authorized.
Traffic is defined -- the purpose of the Florida state law -- as
pedestrians, ridden or herded animals, vehicles, streetcars or other
conveyances either singularly or together while using any street or
highway for purposes of travel.
Florida law defines a street or highway as part of the entire width
between the boundary lines of every way or place, or whatever nature,
where any party thereof is opened to the use of the public for purposes
of vehicular traffic.
It is our position the state law controls traffic laws. The local
body here, it is our position, has no authority to enforce the laws if the
state's not granted them the power to do so. The vehicle was moving.
The code enforcement officer followed the vehicle, as he testified, and
issued a citation. We submit that that's not proper in this case.
I have some questions for Mr. Kitchell Snow which I'll get to in a
couple of minutes.
With regard to the particular sections, it's our position that the
Land Development Code sign ordinance, both on its face and as
applied to Bonita Media Enterprises, seeks to improperly control the
content of the signs of my client's trucks.
For instance, and by way of example, section 5.06.06, section D,
it says it effectively prohibits any signs that employs motion, has
visible moving parts or gives the illusion of motion, excluding time
and temperature signs. So they allow for time and temperature signs,
but they don't allow for anything -- they seem to make a clear
exclusion for some content here but not for others.
Now, the moving of the signs -- I would submit that the sign
ordinance is vague as to what is allowable. Section 5.06.06, section
D, prohibits any sign which employs motion. Again, just the section I
read that has visible moving parts or gives the illusion of motion,
excluding time and temperature.
The signs in question are programmable and effectively don't
Page 26
May 24, 2007
have moving parts -- moving -- they are not moving signs. They--
effectively the movement is to change the copy. They do not scroll. It
takes less than one -- probably less than one second to flip, and they
do not employ motion for the purposes of attracting attention, but
rather, again, to change copy.
Section 5.06 -- the second section which they were cited under,
5.06.06, section X, excludes signs mounted on a vehicle
impermissibly excluding certain vehicles, for example, taxicabs, that
are intended to attract or may distract the attention of motorists for the
purpose of advertising. I submit to the board that all signs on trucks
are intended to attract motorists and to attract attention for advertising
purposes.
I would also submit that section 5.06.06 is vague and
unenforceable under Florida state law. The language reads that any
sign which constitutes a traffic hazard or detriment to traffic safety by
reason of its size, location, movement, content, coloring, or method of
illumination or by obstructing or distracting the vision of drivers or
pedestrians. That's what it seeks to prohibit.
There's no evidence that our signs caused a traffic safety issue.
And further, there was no evidence suggesting that the officer had any
training in -- or authority to go ahead and issue a citation for my client
moving through the roadways of Collier County on a truck which has
advertising which has no connection to the land or has any land use
implications that the code in question here is designed to address.
I have some questions for Mr. Snow, which I'll get to -- I'd like to just
end with my questions for him, if possible.
But finally, overall, I would point out that there are recent federal
holdings -- and I understand there's some limitations here with what
we can address and what we can't address with regard to constitutional
issues, but there are recent holdings in federal court clearly which
support that each of the sign ordinances at issue improperly regulate
the content of my client's advertising -- in violation of my client's
Page 27
May 24, 2007
constitutional guaranteed rights relating to commercial speech.
We've outlined those arguments in writing for the record.
Hopefully the board has taken that into consideration. But,
effectively, overall, our argument is that the Land Development Code
doesn't apply to moving vehicles. The board -- the county does not
have the ability, or I should say, the code enforcement officers do not
have the ability to go ahead and to enforce traffic laws.
And at this point I'd like to ask a couple of questions ofMr.
Kitchell Snow if possible.
CHAIRWOMAN BARNETT: Go ahead.
MR. ANNUNZIATA: Just for the record.
Mr. Snow -- there's something else I'd like to bring to the
attention of the board, if I may, before I do that.
There is a section under 5.06.05 dealing with signs exempt from
regulations. It says, in addition to those signs identified elsewhere in
this code, the following signs are exempt from the permit
requirements of this code and shall be permitted in all districts subject
to the limitations set forth below. In subparagraph S it says, copy
changes for shopping centers, theaters, billboards or marquees that
have routine changes of copy or are specifically designed for changes
of copy.
I would submit that that is -- we fall within that exemption with
regard to -- especially billboard signs with marquees, along those
lines. There are exemptions that -- an exception that's in place dealing
with copy changes for advertising, so --
Mr. Snow, when did you first see the vehicle which is the subject
of the violation, the alleged violation here today?
MR. SNOW: According to my Notice of Violation, 12/14/06.
MR. ANNUNZIATA: And where did you see the vehicle?
MR. SNOW: I don't recall at this time. I -- I don't know where I
saw it. It was in Collier County.
MR. ANNUNZIATA: Was it moving or was it parked; do you
Page 28
May 24, 2007
recall?
MR. SNOW: It was moving.
MR. ANNUNZIATA: You indicated that you followed the
vehicle for safety purposes.
MR. SNOW: No, sir. That's the second time I viewed it or third
time I viewed it.
MR. ANNUNZIATA: That's the second or third time that you
viewed it?
MR. SNOW: Yes, sir. Then I -- when I followed it and took the
photographs. Various times throughout the case we received reports
that it was operating in Collier County, but as you know, I have to
witness the violation, so there was nothing I could do till I witnessed
the violation.
MR. ANNUNZIATA: All right. But you indicated -- but your
testimony earlier before the board was that you followed it for -- at
one point in time you followed the vehicle for safety purposes; is that
correct?
MR. SNOW: No, sir. I followed it to take photographs.
MR. ANNUNZIATA: Okay. Well, I thought you said
specifically that you followed it for safety reasons. That was your -- I
thought that's what you said earlier. All right.
CHAIRWOMAN BARNETT: If you want clarification ofthat,
we can have the court reporter read back what he stated, but I think
what he was referring to is he was paying attention to the traffic for
safety reasons while he also was taking pictures.
MR. ANNUNZIATA: That's fine. His testimony is what it is.
How did you determine the amount of time it took for the sign -- oh,
you said you didn't really clock how long it took to change the signs?
MR. SNOW: That is correct, I did not clock. The photographs
have the time and the date on them, so that's how -- the documentation
that they were revolving, moving. I had motion of the illusion, motion
involved.
Page 29
May 24, 2007
MR. ANNUNZIATA: In your Notice of Violation, you state that
the sign copy created a traffic hazard through the attraction or
distraction of the motorized public. What do you base your
conclusion that a traffic hazard occurred as a result of my client's
signs?
MR. SNOW: That's what the Land Development Code says,
section 5.06.06. Shall I read it for you again, sir?
MR. ANNUNZIATA: No. I was asking you, what do you base
your conclusion that a traffic hazard occurred?
MR. SNOW: 5.06.06[W].
MR. ANNUNZIATA: All right. What you do you base your
conclusion that the motorized public was attracted (sic) to the sign?
MR. SNOW: Again, 5.06.06[W].
MR. ANNUNZIATA: Okay. And what do you base your
conclusion that the motorized public -- I'm sorry -- was distracted by
the sign?
MR. SNOW: Personally, sir, I was distracted by it when I was
driving behind it trying to photograph what was going on. It was
flipping. It was very, very distracting. It had six or eight panels on
each side. It was flipping constantly in different ads.
MR. ANNUNZIATA: The question that I asked you was, what
do you base your conclusion that the motorized public besides -- I'm
not talking about you -- was distracted by the sign?
MR. SNOW: I am the -- I was motorized at the time that I took
the photographs, so I think I'm allowed to have an opinion on, was it
distracting or not distracting.
MR. ANNUNZIATA: Do you have any special training for the
issuance of traffic violations?
MR. SNOW: Be more specific, sir. I can issue parking citations,
but this is not an issue of traffic. This is an issue ofa sign.
MR. ANNUNZIATA: I know, but I'm asking you a question
specifically. Do you have the -- do you have special training for the
Page 30
May 24, 2007
issuance of traffic -- moving traffic violations? That's, I guess, what
I'm suggesting.
MR. SNOW: No, I can't issue any citations for moving traffic.
MR. ANNUNZIATA: Okay. Have you been trained or received
any training to -- in connection with the performance of your job --
have you received any training to perform your job according to any
training approved by the criminal justice standards and training
commission?
MR. SNOW: I'm -- I'm Florida Association of Code
Enforcement level one certified, which, Statute 162, if I wasn't, the
county gives me that authority.
MR. ANNUNZIATA: Okay. But -- so that's the extent of your
MR. SNOW: Florida Association of Code Enforcement, yes, sir.
MR. ANNUNZIATA: Okay, all right.
MR. SNOW: And also I'm certified by the county through the
code enforcement department.
MR. ANNUNZIATA: Do you know whether the form of the
notice to appear today is consistent with state traffic court rules and
procedures established by the department of transportation?
MR. SNOW: I can't comment on that -- I can't comment on that,
sir. This has nothing to do with traffic.
MR. ANNUNZIATA: Just -- all I'm asking is some questions. I
just ask that you answer the questions I ask.
I'm just -- do you have any specialized equipment within your
vehicle, flashers, sirens, reflective vests, et cetera, that could be used
to divert traffic?
MR. SNOW: I have flashers and a vest, yes.
MR. ANNUNZIATA: All right. Could you issue a speeding
ticket or other traffic violation?
MR. SNOW: No, I could not.
MR. ANNUNZIATA: Okay. If my client had a sign -- just bear
Page 31
May 24, 2007
with me one sec. If my client's sign switched between time and
temperature, would there be a violation of section 5.06.06[U]?
MR. SNOW: No, sir. I believe U is excluding time and
temperature signs.
MR. ANNUNZIATA: Okay. If under -- excuse me. Just bear
with me. Just bear with me one moment.
At this time I have no further questions but just would reiterate,
again, that we just don't believe, and it's our position, that the Land
Development Code does not apply in this case.
CHAIRWOMAN BARNETT: Okay. County Attorney seems to
want to say something.
MR. KLATZKOW: What we have here is a movable billboard.
That's his business, all right. And nobody's disputing that. I've put up
on the monitor an excerpt from his packet, from his exhibits, and his
business is to get people who are driving to look at his signs. That's
the business, all right.
And the truck drives around Collier County or elsewhere
targeting the audience so that people who are driving look at the signs,
not at the road, but at signs.
It's a violation of three of our ordinances, and Mr. Snow has
outlined that. It is a sign that employs motion and has visible moving
parts. That's a violation of subchapter U in front of you.
It's a sign that constitutes a traffic hazard. It's geared to get the
public to look at it, all right. That's the whole business. This isn't
somebody's business on a van, Joe's Plumbing Shop. This is a guy
who goes out with a fleet of trucks, movable signs, to get people who
are driving to look at his truck, and it's a clear violation ofW.
By its terms, it's a clear violation of X on the sign's intending to
attract, and may distract the attention of the motorist, the purpose of
advertising a business, product, service or the like.
Now, the arguments made that for various reasons, whether it be
constitutional or an issue that the state preempts it through statutes,
Page 32
May 24, 2007
that the ordinance is not valid. That's not before you. We've got other
venues for that, all right. And whether the violator decides to take that
up to the state court level, the federal court level, it's his prerogative.
But this is an ordinance duly adopted by the Board of County
Commissioners after extensive public hearings, since this went
through the land development process, that the people of Collier
County want, all right.
We don't want to be Las Vegas. We don't want to be South
Beach, all right. We have a strong sign code because we have a
certain desirability for the aesthetics and the character of the
community that we live in.
We've proven our case just with the packet he gave you, all right.
We don't even have to say anything. He's not denying that he's
moving his trucks through Collier County. He's just saying that our
ordinances are not valid.
That's not for you to decide. You're simply here to find out
whether or not, based on the evidence you are presented, he violated
our ordinance. And if so, to take whatever action you deem
appropriate.
MS. ARNOLD: I'd like to just add that the motion ofthe signs is
what we're bringing before you. The fact that he has advertising on
his truck is not what the issue is. Motion of those advertisement is the
Issue.
CHAIRWOMAN BARNETT: Okay. Do you have any rebuttal?
MR. ANNUNZIATA: Again, the -- it's -- the fact that the
ordinance is not valid under the Florida -- I'm sorry -- Florida and/or
federal constitution, that is one of our arguments. But another
argument that we have is that the Land Development Code in and of
itself does not apply to moving traffic such as this.
Again, there's no land at issue here.
CHAIRWOMAN BARNETT: Okay. Can you address that
statement?
Page 33
May 24, 2007
MR. KLATZKOW: The growth management act requires us to
put our sign ordinances in the Land Development Code. That's just
why it's there. Many signs concern land obviously. If you go into a
mall, you see the signs there in front of businesses, and so all counties
and local governments in this state put their sign ordinance in the Land
Development Code. It's just where it goes.
MS. ARNOLD: And the question is whether or not we have an
ordinance in place that says, can you have moving signs. The
argument as to whether or not it's in -- should be in the Land
Development Code is not one that is being brought to you nor is it one
that you really have jurisdiction over making a determination. That's
something that he needs to argue in the courts if that's --
CHAIRWOMAN BARNETT: I think he's trying to state that
because he's got a vehicle, that it doesn't fall under the Land
Development Code. That's my understanding of what he's trying to
say.
MS. ARNOLD: The Land Development Code addresses
vehicles as well as --
CHAIRWOMAN BARNETT: The signs on the vehicle --
MS. ARNOLD: -- on land.
CHAIRWOMAN BARNETT: -- and that's where he was -- I'm
questioning --
MR. KLATZKOW: It's any sign. That's just where -- that's just
where the sign ordinance goes pursuant to state statute.
CHAIRWOMAN BARNETT: Okay.
MR. DEAN: One quick question. The zoning district, does it
not include the roads also?
MR. KLATZKOW: Well, yes. The zoning district would
include the roads.
MR. DEAN: I mean, that's how I read it, that zoning district
counts all the land around it, in that area, plus the roads.
MR. KLATZKOW: Roads fall within the zoning district, but I'm
Page 34
May 24, 2007
not sure this -- this is not a zoning issue.
MR. DEAN: I understand that. I'm just asking for clarification.
MR. KLATZKOW: Yes.
MR. DEAN: Thank you.
CHAIRWOMAN BARNETT: Okay.
MR. ANNUNZIATA: I would just -- can I add one more thing?
I mean, the argument made, this is not Las Vegas, we don't want to be
South Beach and things like that, I mean, aesthetically I think my
client's truck is one of the finest out there. It's done tastefully. No one
contests the fact that there's, you know, true legal advertising out there
on the trucks. Done in a tasteful manner in a way to expose
advertising and to do so in a way that is aesthetically pleasing. My
client's goal is not to create a Las Vegas type atmosphere, all right,
and never was.
And the issue of movement is -- I would submit, is minimal at
best. You have a situation where, again, copy is changing on a truck
that is advertising and changes, I would submit, in a way that is done
rather quickly and with the least -- is no traffic hazard -- and there is
no evidence before this board today of any kind of traffic hazard
caused by my client.
CHAIRWOMAN BARNETT: Jean, I've got a couple questions
to you, I think, that I posed earlier to you --
MS. RAWSON: Yes.
CHAIRWOMAN BARNETT: -- in regards to this. Because
having read through this and having some background knowledge in
what I'm married to, which is a law enforcement officer, I wanted to
get your opinion on, would this be a moving violation for traffic court
or does this really fall, in your opinion, under the Land Development
Code and sign ordinance? I'm having a little bit of a time wrestling
with this one.
MS. RAWSON: I don't know whether there is a moving
violation because I think a moving violation is, you know, when we
Page 35
May 24, 2007
get caught speeding. Is it a traffic offense? It might be, You know,
these are very, very interesting legal arguments, both sides. There are
a lot of these legal arguments that you don't have the power to make a
determination on.
I think that you have to look at our county ordinance and decide
whether or not there's been a violation of that county ordinance
knowing that the sign code is a part of the Land Development Code
for whatever reason. There's nothing in there that prohibits you from
still looking at the sign code and deciding whether there's been a
violation.
There's going to be an interesting outcome probably further down
the line. There are maybe constitutional issues, which is certainly far
beyond your scope. There may be other violations. But your job is
only to look at our --
CHAIRWOMAN BARNETT: Okay.
MS. RAWSON: -- our code and decide whether there's been a
violation. That's really all you can do.
CHAIRWOMAN BARNETT: With that in mind, because I
understand where my thought processes are going there, how -- do we
have the jurisdiction to cite someone that does not live in our county,
that's property doesn't exist in our county other than moving through?
MS. RAWSON: I think we do it all the time.
CHAIRWOMAN BARNETT: Yeah.
MS. RAWSON: This is Naples. Nobody lives here.
CHAIRWOMAN BARNETT: I mean, the actual physical -- the
physical sign though does not reside here. It moves through, so it may
or may not be here at certain times.
MS. RAWSON: That's true. And I might remind you that you
have, actually not too long ago, found somebody in violation of an
ordinance, and we didn't have any land to attach it to.
CHAIRWOMAN BARNETT: Okay.
MS. RAWSON: You might recall not too long ago. There was
Page 36
May 24, 2007
no land to attach that to, and you found there was -- that a violation of
our code existed. So while I think this whole case is extremely legally
CHAIRWOMAN BARNETT: Interesting.
MS. RAWSON: -- interesting--
CHAIRWOMAN BARNETT: It's pretty cut and dry on our end,
I think.
MS. RAWSON: You just don't have the power to be the
Supreme Court here today.
CHAIRWOMAN BARNETT: Okay.
MS. RAWSON: You have to be the Code Enforcement Board of
Collier County and just decide whether or not there's been a violation
of our code.
CHAIRWOMAN BARNETT: Okay. Thank you.
MS. ARNOLD: Madam Chairman, I just wanted to point out to
you that in paragraph X, which was cited, it refers to signs mounted on
vehicles.
CHAIRWOMAN BARNETT: Okay.
MS. ARNOLD: And so the Land Development Code --
CHAIRWOMAN BARNETT: Does actually cover it.
MS. ARNOLD: -- actually covers it.
CHAIRWOMAN BARNETT: All right. Thank you. At this
time then if there's -- unless anybody has some other questions,
somebody took the floor, 1'11 close the public hearing and go to the
board's discussion. Is that in agreement with everyone? Okay.
MR. LEFEBVRE: Yes.
CHAIRWOMAN BARNETT: Public hearing is closed.
Discussion amongst the board?
MR. DEAN: 1'11 be happy to be first up. I do feel that there's a
violation, and X certainly states that and also U, with moving parts,
and so I feel there's a violation there.
CHAIRWOMAN BARNETT: I'm in agreement with you.
Page 37
May 24, 2007
MR. PONTE: Yeah, totally. It's -- the copy changes, and that's
the movement we're talking about, the movement of the copy.
MR. MORGAN: I agree there's a violation and a traffic hazard.
CHAIRWOMAN BARNETT: Anybody want to put that in the
form of a motion for finding of fact?
MR. KRAENBRING: I make a motion that a violation does
exist.
CHAIRWOMAN BARNETT: Do I hear --
MR. LEFEBVRE: Second.
CHAIRWOMAN BARNETT: All those in favor?
MR. MARTIN: Aye.
MR. MORGAN: Aye.
MR. KRAENBRING: Aye.
CHAIRWOMAN BARNETT: Aye.
MR. PONTE: Aye.
MR. LEFEBVRE: Aye.
CHAIRWOMAN BARNETT: Any opposed?
(No response.)
CHAIRWOMAN BARNETT: Okay. Remedy?
MR. KRAENBRING: Do we have a recommendation
CHAIRWOMAN BARNETT: Do we have a recommendation
from the county?
MR. SNOW: Yes, ma'am. The recommendations are to cease
displaying any sign that employs motion, the illusion of motion, or
any sign mounted on vehicle, be it roof, bed, hood, truck, and so on,
where said sign is made to obstruct or distract the attention of
motorists for the purpose of advertising a business, product, service, or
the like, whether or not said vehicle is parked or driven, or any sign
which constitutes a traffic hazard or detriment to traffic safety by its
size, color, movement, content, coloring, or method of illumination.
Fines of$l,OOO a day will be imposed until such time as both
respondents' entities provide through their authorized agents sworn
Page 38
May 24, 2007
statements attesting that such signs are no longer being used in Collier
County. After such sworn statements are provided to the county, a
fine of $5,000 per sighting will be imposed.
CHAIRWOMAN BARNETT: Would you like to put that on the
screen for us, please.
MR. SNOW: Yes, ma'am.
CHAIRWOMAN BARNETT: Any comments?
MR. PONTE: Yes, I do. I think that it looks all right, but I think
that we ought to just add something to tighten it up, cease displaying
any sign that employs motion, yackety-yak, all that sure when their
vehicle is in Collier County.
MR. KRAENBRING: Well, I don't think we can go beyond our
jurisdiction.
MR. PONTE: No, we're not. What I'm saying is, if -- when
you're in Collier -- if the same vehicle was driving through Collier
County and the sign was not in any kind of motion, it wouldn't be in
any violation.
MR. LEFEBVRE: It still wouldn't be--
MR. PONTE: Not if the copy's not moving.
MR. KRAENBRING: Right, exactly.
MR. LEFEBVRE: Yes. According to X --
MR. KRAENBRING: So you're asking, George, to have --
MR. PONTE: To make clear that what we're talking about is,
where it says cease displaying any signs, et cetera, that we're talking
about cease displaying that in Collier County.
CHAIRWOMAN BARNETT: And is it correct that as long as
the sign is not moving, if it were on the side of the board (sic) and it
did not change copy, it would be okay?
MR. SNOW: Yes, ma'am, that is correct. And I need to put the
-- pay operational costs in the amount of $433.70 in this case. I need
to add that.
CHAIRWOMAN BARNETT: Is everybody comfortable with
Page 39
May 24, 2007
the signage fines amount? Because I'm a little concerned that that's
excessive in comparison to other signage issues that we've had. Any
comments?
MR. PONTE: Well, it is -- I agree, it is high. I'm just trying to
scan this to see how much time the respondent has to stop, to cease.
Immediate?
MS. ARNOLD: I would think he could because we've had
meetings with the respondent, and he indicated that he can time when
the copy changes and those types of things, so he can shut it off as
well as time it.
MR. PONTE: I agree. So perhaps that should be here as well,
cease -- immediately cease displaying.
MR. ANNUNZIATA: Since Ms. Arnold has brought up the idea
that we had had a meeting and talked about certain options -- I mean, I
know you are at a different phase of discussion at this point, but --
CHAIRWOMAN BARNETT: Right, and technically it's closed,
but I did have a question, is, are the signs able to be turned off?
MR. ANNUNZIATA: The signs are not only able to be turned
off, they're also able to be controlled as to interval of time and
changing of copy.
CHAIRWOMAN BARNETT: So if you were in Collier County,
you wouldn't be able to flip them.
MR. ANNUNZIATA: If you were in Collier County you could
stop them, from what I understand, or you can have the -- have a
interspurt (sic) -- you know, you could have the timing of the rotation
being done at a time -- at any interval that you can set the --
CHAIRWOMAN BARNETT: They're not allowed to have any
flipping signs or moving signs other than a time and temperature sign
in Collier County, so they would not be able to be moved, just to make
it clear.
MR. KRAENBRING: Yeah. I think that becomes a slippery
slope as to when you could change the sign. Could you pull over to
Page 40
May 24, 2007
the side of the road in a protected area where you couldn't be seen and
flip them? There's no way of enforcing that.
CHAIRWOMAN BARNETT: Right.
MR. KRAENBRING: If it is just one sign on the truck that is not
having motion, intentionally or unintentionally, distracting the
motorist, then fine. But otherwise, I don't see how it could possibly
been enforced.
CHAIRWOMAN BARNETT: Right.
MR. KRAENBRING: As far as adding immediately cease or--
that's fine. If that's good for George, I mean, that's good for me. It
just sort of tightens it up.
As far as it being in Collier County, that is our jurisdiction, so I
don't think that language is particularly necessary, although we can
put it in there if it works for other people on the board. But otherwise,
I would make a motion to --
CHAIRWOMAN BARNETT: You agree with the fining
amounts?
MR. PONTE: Yeah, I think that we ought to address that. I
think $1,000 a day, seeing that there is no hazard, haste, you know--
if it's not happening, it's just not $1,000 a day fine. I think if we did
250 it would be probably more --
MR. KRAENBRING: The issue that I don't have with the fine is
that this can be immediately complied with. This is not a matter of
going out and getting a permit and then altering the condition of
trucks.
MR. PONTE: That's true.
MR. KRAENBRING: They can just turn the switch off.
MR. PONTE: Yes.
MR. KRAENBRING: So let them turn the switch off and there
won't be any violation and they won't be fined.
MR. PONTE: That's true. Turn it back on, just as fast --
MR. KRAENBRING: There's your fine.
Page 41
May 24, 2007
MR. PONTE: -- it's going to cost you 1,000.
MR. KRAENBRING: Yep. So -- because it's going to be real
easy for somebody to turn that switch on by accident.
So again, I will make a motion that we accept the
recommendations of the county as presented.
MR. PONTE: I think that's good logic. I'd agree to that.
MR. DEAN: I'll second.
CHAIRWOMAN BARNETT: Okay. Do you want to include
though the few changes that George --
MR. PONTE: Yeah. I'm just talking about the fine. I think the
fine stays at 1,000.
CHAIRWOMAN BARNETT: Right.
MR. PONTE: But I think immediately cease.
MR. KRAENBRING: Okay.
MR. PONTE: Don't drive the truck out of the lot from here with
the signs in rotation.
MR. KRAENBRING: Then I will amend my motion, make a
motion that we add, before the word cease, immediately cease
displaying any signs, so on and so forth. Make a motion to accept that
of the county.
MR. DEAN: I'll second that.
CHAIRWOMAN BARNETT: The county manager had a --
MR. KLATZKOW: Not county manager yet.
MR. KRAENBRING: And operational costs.
CHAIRWOMAN BARNETT: Attorney, I'm sorry.
MR. KLA TZKOW: And hopefully never to be. He's got a very
hard job.
Just for purposes of clarity, we're asking for a fine of $5,000 a
day if we catch him, and the idea being that we're trying to take the
economic incentive out of him going around hoping that he can get
away with it, because it's very hard for our code inspectors to be
driving along and actually run into him as he's doing business. It's not
Page 42
May 24, 2007
like he's got a fixed location that we can go to.
And so the question -- the request was $1,000 a day until he gives
us an affidavit saying he won't do it anymore, but we can get rid of
that if you want to. Simply cease immediately, cease and desist, and
that gets rid of that. But if we catch him, we're asking for $5,000 only
because they're in the business of driving through different places, and
they may feel that if the sign isn't sufficient that, from business
standpoint, they'll take the risk, and we're trying to take that equation
out of it.
CHAIRWOMAN BARNETT: Okay. I have a motion on the
floor and I also have a second. Did we want to amend or change those
motions?
MR. ANNUNZIATA: For the record, I would object to the
request. I mean, I don't know -- I don't know if I'm closed or if I'm out
-- able to speak or not, but for the record, I'm -- I have to say that that
-- that what they're asking for is the absolute maximum. My guy is --
I don't know that he's reached a level of -- to warrant such a harsh
penalty.
CHAIRWOMAN BARNETT: Understood and taking it into
context is why I'm going back to the board now, and it is closed to
public hearing.
MR. ANNUNZIATA: Yes.
MR. KRAENBRING: But I know that we're not addressing
public, but just don't do it and you won't be fined.
MS. ARNOLD: Well, I think what the county attorney wanted to
point out --
CHAIRWOMAN BARNETT: It's not $1,000 a day--
MS. ARNOLD: -- for clarification--
CHAIRWOMAN BARNETT: -- it's $5,000.
MR. KRAENBRING: Right. I understand that.
MS. ARNOLD: Right.
CHAIRWOMAN BARNETT: And I personally still have a little
Page 43
May 24, 2007
bit of an issue with -- I can see the $1,000 going away if they
immediately cease and desist.
MR. PONTE: Well, now that we've focused on that part, I agree
with that. The 5,000 is too high. I mean, it's --
CHAIRWOMAN BARNETT: I can go --
MR. PONTE: It's at maximum. And you know, the -- I don't
know what the respondent charges his advertisers, but let's suppose he
charges them 250 or $500 a day for a display. I doubt it's that much.
A fine of $5,000 for sighting is accessive.
CHAIRWOMAN BARNETT: But, again, we have a motion and
we have a second, unless the gentleman to my right would like to
amend his motion, we need to call it.
MR. PONTE: I'd like to ask my colleague to reconsider that
because I don't think we were looking at the 5,000.
MR. DEAN: Well, amend the motion. You can amend the
motion.
MR. KRAENBRING: Well, I would amend the motion based
on, if we have immediately cease, then we're taking out the sworn
statement of --
MS. ARNOLD: Can I just point out, what the county was
looking for is some assurance from the respondent that they were
going to stop, because we're in communication with them. They can
tell us whether or not they are going to stop doing business in Collier
County with the motion. And--
CHAIRWOMAN BARNETT: Michelle?
MS. ARNOLD: And upon receipt of that is where that $1,000--
or if you modified to another lower amount.
CHAIRWOMAN BARNETT: The county stated that they could
withdraw that because we're saying immediately cease.
MS. ARNOLD: Okay.
CHAIRWOMAN BARNETT: I would like to get this motion
either pulled from the floor or amended because otherwise I need to
Page 44
May 24, 2007
call for a vote.
MR. KRAENBRING: I'll just ask one other question of the
county. From a point of enforcement, is it better to have that
document, that affidavit, from the respondent?
MR. KLATZKOW: I don't think there's a matter of great
concern to me. I mean, I think your approach is fine.
MR. KRAENBRING: Okay.
MR. KLATZKOW: And just -- if it was 5,000, we'd have to
come back to this board anyway and you could reduce it at that time.
MR. KRAENBRING: I think that's something that we've done in
the past.
CHAIRWOMAN BARNETT: I don't want to -- well.
MR. LEFEBVRE: One other question.
CHAIRWOMAN BARNETT: Go ahead.
MR. LEFEBVRE: Could we get a statement here on record from
the respondent stating that he would not drive through with the signs
in motion; would that be acceptable?
MR. KLATZKOW: That would be fine. It's up to--
MR. LEFEBVRE: Versus an affidavit.
MR. ANNUNZIATA: I would like the opportunity to talk with
my client.
CHAIRWOMAN BARNETT: Go ahead. We still have to keep
crafting this, so take your time.
Currently I have a motion and I have a second. Would you like
me to table it or -- would you like to have a vote or do you want to
table?
MR. DEAN: Well, I can withdraw my second.
CHAIRWOMAN BARNETT: Thank you.
MR. KRAENBRING: Withdrew the second?
CHAIRWOMAN BARNETT: Yeah.
MR. KRAENBRING: For purposes of expediency, I'll withdraw
the motion so we can just finish crafting this and then we'll just
Page 45
May 24, 2007
resubmit it.
CHAIRWOMAN BARNETT: Thank you.
MR. KRAENBRING: I mean, as I look at this now, maybe I
would feel more comfortable with something in writing that says
they're going to, you know, cease and desist. I don't know whether --
is it $1,000 from today, they have to have this by the end of the day to
you?
CHAIRWOMAN BARNETT: We're crafting it. Don't ask the
county.
MR. KRAENBRING: Well, I guess that's an open question to
the rest of the board, too.
MR. LEFEBVRE: Let's see what we hear from the respondent.
CHAIRWOMAN BARNETT: Did the -- do you guys have a
decision as to whether or not you would say on record that you would
not move the signs?
MR. ANNUNZIATA: My understanding is that my client will
agree to shut the signs off while he's traveling through the
unincorporated areas of Collier County, which I believe is your
jurisdiction, and will do so effective tomorrow, from what I
understand.
MR. McLEOD: I have to get to the vehicle.
MR. ANNUNZIATA: We're going to need some time.
However, we do have some concerns that, you know, look, in life and
in business, accidents happen. Things happen, and sometimes they're
not intentionally done. To the extent that -- you know, we don't want
to feel like we're being hunted down -- or actually, I should say my
client doesn't want to feel like he's being hunted down, and certainly
we'll abide by the board's order pending, you know, the appellate
process and whatever process we're going to be dealing with from here
on out.
CHAIRWOMAN BARNETT: Okay.
MR. ANNUNZIATA: But I just wanted to put that on the record
Page 46
May 24, 2007
as well so that the board is understanding where we're coming from.
CHAIRWOMAN BARNETT: We understand. Thank you.
MR. KRAENBRING: So we're looking at possibly reducing the
per sighting fine?
CHAIRWOMAN BARNETT: Yes.
MR. KRAENBRING: Does anybody on the board have a
thought as to where it ought to be?
MR. DEAN: I'm sorry. I didn't hear you. What are you saying?
CHAIRWOMAN BARNETT: We're looking at changing the per
sighting sign from 5,000, because that is our maximum fine, and I
don't think this really consti -- there are several board members that
have felt that this does not constitute that grave of a mark.
MR. PONTE: I'll add another thought to that, too. If the 5,000
were to be there, it's almost like putting a bounty on the respondent as
a, okay, we can just wait until somebody does have that little accident.
So the 5,000 is excessive.
MR. KRAENBRING: Were we comfortable with our first
thought of that 1,000?
MR. PONTE: Yes.
MR. KRAENBRING: Okay.
MR. LEFEBVRE: I would be in agreement with 1,000 also.
MR. PONTE: Okay.
MR. KRAENBRING: I think that maybe is where we thought it
was headed until the clarification from the county attorney, so I would
agree with that, too.
CHAIRWOMAN BARNETT: Okay. You want to form that
into a motion then?
MR. KRAENBRING: Make a motion that we're going to accept
the county's recommendation with this alteration, we're going to still
say immediately cease displaying any signs, and then we're going to
be eliminating the sentence, fines of $1 ,000 per day will be imposed
until such time as both respondents' entities provide either authorized
Page 47
May 24, 2007
representatives' sworn statements attesting that such signs are no
longer used -- being used in Collier County. We'll strike that.
And then we're going to change the last sentence from $5,000 per
sighting to $1,000 per sighting. And that's my motion, plus
operational costs of whatever it was.
MR. MORGAN: $433.
MR. DEAN: Seventy cents.
MR. KRAENBRING: And immediately cease.
CHAIRWOMAN BARNETT: Do I hear a second?
MR. DEAN: Second.
MR. PONTE: I'll second.
CHAIRWOMAN BARNETT: All those in favor?
MR. MARTIN: Aye.
MR. MORGAN: Aye.
MR. KRAENBRING: Aye.
CHAIRWOMAN BARNETT: Aye.
MR. PONTE: Aye.
MR. LEFEBVRE: Aye.
CHAIRWOMAN BARNETT: Any opposed?
(No response.)
CHAIRWOMAN BARNETT: That's where it stands. So if you
understand, we immediately cease the movement --
MR. DEAN: Operational costs.
CHAIRWOMAN BARNETT: -- of the signs. And if you are
sighted with it moving in Collier County, it will be $1,000 a day fine,
plus operational costs.
MS. RAWSON: Is it a $1,000 a sighting or -- per sighting?
CHAIRWOMAN BARNETT: Per sighting.
Okay. That's where we stand, thank you.
MR. ANNUNZIATA: Thank you.
MR. KLATZKOW: Thank you.
MR. SNOW: Thank you.
Page 48
Appeal No.: 07-2035-CA
LT No. CEB No.: 2007-35
Respondent/Appellant
v.
BOARD OF COUNTY COMMISSIONERS,
COLLIER COUNTY, FLORIDA,
Petitioner/Appellee
/
DIRECTIONS TO CLERK
Appellant, BONITA MEDIA ENTERPRISES, LLC, directs the clerk to include
the following items in the original record described in rule 9.200(a)(1):
ITEM
DATE FILED
1. The entire record of, and all documentation pertaining to, Bonita Media
Enterprises, LLC'S May 24, 2007 hearing before the Collier County Code
Enforcement Board, including, without limitation, the transcript of all proceedings,
all exhibits thereto, and all documentation submitted to both the board and the
court reporter by code enforcement and/or Bonita Media Enterprises, LLC. All
documents reflecting the decision(s) of the code enforcement board members for
the Collier County Code Enforcement Board, including without limitation, the
June 4, 2007 Order against Bonita Media Enterprises, LLC.
#~/ ;/
'. / Richard S. Annun .
~
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has
been furnished to the following:
Jennifer Belpedio, Esq. (Attorney for Collier County and Board of County
Commissioners, Florida)
3301 Tamiami Trail, E., Bldg. F
Naples, FL 34112
by regular U.S. Mail this 5th day of July, 2007.
A TIE 2~T : " . ' ~ .,'!;
, - ,. ...,. ~ ." ~'"'' C", . 1~ /- q:;"
:k~. ,:\""v. "'. -~~,~
~~ Lit~\~l~;~ "?!'
c
"
BRENNAN, MANNA & DIAMOND, P.L.
Attorneys for Defendants
3301 Bonita Beach Rd., Suite
Bonita . ri gj FL 3 34 -------..:
By: .' e./~'
Richard S. Annunziata
Florida Bar No. 007821
'<1. S'~;'_~t, >-