CESM Minutes 01/19/2024 January 19, 2024
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MINUTES OF THE HEARING OF THE
COLLIER COUNTY SPECIAL MAGISTRATE
Naples, Florida, January 19, 2024
LET IT BE REMEMBERED the Collier County Special Magistrate, having conducted
business herein, met on this date at 9:00 AM in REGULAR SESSION in Administrative
Building “F,” 3rd floor, Collier County Government Complex, Naples, Florida, with the
following persons present:
SPECIAL MAGISTRATE: Honorable Patrick H. Neale
ALSO PRESENT: Helen Buchillon, Code Enforcement Specialist
Miriam Lorenzo, Administrative Support Specialist
January 19, 2024
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Any person who decides to appeal a decision of the Special Magistrate will need a record of the
proceedings pertaining thereto, and therefore may need to ensure that a verbatim record of the
proceedings is made, which record includes the testimony and evidence upon which the appeal is to be
based. Neither Collier County nor the Special Magistrate shall be responsible for providing this record.
I. CALL TO ORDER-SPECIAL MAGISTRATE PATRICK H. NEALE PRESIDING
The Honorable Special Magistrate Patrick H. Neale called the Hearing to order at 9:00 AM. All those
testifying at the proceeding did so under oath.
II. Pledge of Allegiance
The Pledge of Allegiance was recited.
III. APPROVAL OF AGENDA
Special Magistrate Neale approved the Agenda as modified.
IV. APPROVAL OF MINUTES
None
V. MOTIONS
A. MOTION FOR CONTINUANCE
None
B. MOTION FOR EXTENSION OF TIME
None
C. MOTION FOR REHEARING
None
VI. STIPULATIONS
None
VII. PUBLIC HEARINGS
A. HEARINGS
1. CASE NO: CEEX20230010561
OWNER: Zachary Waldstein
OFFICER: Danielle Jersey
VIOLATIONS: Collier County Code of Laws and Ordinances, Chapter 14, Article II, Section
14-38. Collier County Domestic Animal Services (CCDAS) has determined
that there exists sufficient cause to make the initial determination that the dog
is a “Dangerous Dog”; “Balashi”.
FOLIO NO:
PROPERTY ADDRESS: 9143 Trivoli Terrace, Naples, FL 34119
Special Magistrate Neale outlined the process for the case to be heard.
Ronald Tomasco, Assistant County Attorney represented the County
Marcy LaHart, Attorney represented the Respondent.
County Case
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Mr. Tomasco noted a hearing packet was prepared for the case and questioned Danielle Jersey,
Domestic Animal Services Manager who testified she prepared the Dangerous Dog Determination
packet dated November 25, 2023 which was hand delivered along with other information to the
Waldstein’s on that day.
Ms. LaHart objected to the hearing packet it was only provided to her this morning. The only way
she obtained materials on the case prior to today’s hearing was via a public records request. The
hearing packet was not provided to the Waldstein’s and is unsure if the information contains in the
packet matches the documentation obtained during the public records request.
Mr. Tomasco noted every document in the hearing packet was provided to the Respondent in
piecemeal fashion via personal delivery or a public records request.
Special Magistrate Neale overruled the objection.
Ms. Jersey noted:
She made the initial determination on Balashi being declared a Dangerous Dog and
forwarded the case to the County Attorney’s Office for review.
The Respondent appealed the Declaration of Balashi being a Dangerous Dog.
Ms. LaHart questioned Ms. Jersey who testified:
The incident occurred on June 3, 2023 and the case was closed in June pending an affidavit
from the victim’s mother.
The victim’s mother was not present when the incident occurred. She agreed it would be
important if she witnessed the event as she filed the affidavit.
There is no requirement on the length of time before an affidavit may be filed on an
incident.
It was her decision to forward the case to the County Attorney’s Office who declared the
dog dangerous.
The facts involved in the “sufficient cause” determination were not included in the
November 25, 2023 Declaration delivered to the Respondent, nor the penalties involved
with the determination.
She is familiar with Florida Statutes Annotated (F.S.A.) Chapter 767 part 2 and the
determination was based on severe injury and no information was provided if the dog was
provoked.
Ms. Waldstein did speak with Officer Sparks regarding the incident on October 19th and she
requested permission to file an affidavit after the dog was deemed dangerous.
No interviews were conducted with the Respondent.
The County has not adopted the procedures outlined in F.S.A. 767.12
The Respondent was not “interviewed” on the incident prior to the Declaration being
issued.
Other witnesses to the incident were not interviewed by the County before the Declaration
was issued.
Ms. LaHart moved for dismissal of the case due to the County’s complete failure to comply with
F.S.A. 767 and the determination was based on a hearsay affadavit.
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Mr. Tomasco stated the County has not completed the case and has other witnesses available to
provide testimony.
Special Magistrate Neale took the motion UNDER ADVISEMENT.
Mr. Tomasco questioned Ms. Jersey who testified:
The Respondent signed the “Dangerous Dog Acknowledgments” delivered in November,
September and June.
The Respondent’s affidavit from October 28, 2023 were reviewed before the Declaration
was issued.
The affidavit indicated Balashi has issues with non-family members.
The Respondent also provided an affidavit dated October 30, 2023 from Richard
Szatkowski, a witness to the incident which did not state the dog was provoked prior to the
bite and indicates the girl approached from behind and wanted to pet the dog and it startled
him and bit her in the face.
During Ms. LaHart follow up, Ms. Jersey testified:
She notified the Respondent on October 11, 2023 the dog would be declared dangerous,
prior to their affidavit and interview, or requesting either.
She did not interview the Respondent prior to signing of the acknowledgements which did
not include the penalties for the dog being deemed “Dangerous.”
Mr. Tomasco noted the Respondent signed the “Dangerous Dog Acknowledgements” in June,
September 2023 and November of 2023 which references F.S.A. 767 and the County Ordinance.
The penalties for the dog being deemed “Dangerous “were included in the document.
Mr. Tomasco questioned Kevin Sparks, DAS Officer who testified:
On October 11, 2023 he visited the Respondent’s residence and no one was home so he left
a “door hanger” notice.
Later that day, DAS Officer Olivia Martinez received a call from the Respondent.
On October 19, 2023, he spoke to Erica Waldstein who informed him she didn’t witness the
incident, but the dog has never bit anyone. The incident occurred during birthday party for
her son, the dog is not good in social settings, warned the girl regarding the dog as she was
messing with it. She requested permission to file an affidavit and he provided the necessary
form via email.
On December 13, 2023 he left a voicemail regarding the hearing date.
On December 21, 2023 he spoke with Ms. Waldstein he notified him she was moving and
the provided residential address information.
Ms. LaHart questioned Officer Sparks who testified he was not involved with the determination
and did not interview any parties related to the incident.
Mr. Tomasco questioned Olivia Martinez, DAS Officer who testified:
She visited the Respondent’s residence on October 11, 2023 when the “hanger notice” was
left on the door and spoke to her via telephone notifying Ms. Waldstein the County
Attorney’s Office had sufficient evidence to declare Balashi “Dangerous.”
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On November 25, 2023 she returned to the Respondent’s residence where both the
Waldstein’s were was present. She delivered the official Declaration of Dangerous Dog
packet, sufficient cause notification, copies of the Florida State Statute and County
Ordinance and Dangerous Dog application. The Respondent queried on the appeal process,
and she answered her questions.
Ms. LaHart questioned Officer Martinez who testified:
During October, she made the Respondent aware of the Dangerous Dog determination.
The Declaration acknowledgement was signed by Mr. Waldstein.
A copy of F.S.A. Chapter 767 was provided with the Declaration.
A packet was not provided with the October 11, 2023 Acknowledgement delivered to the
Waldstein’s.
The County Attorney’s Office made the determination Balashi should be declared a
“Dangerous Dog.”
She did not conduct any interviews during the investigation, only delivered the Declaration.
She did provide copies of the Florida Statute.
Mr. Tomasco confirmed with Officer Martinez Mr. Waldstein “signed” for the Declaration packet.
Mr. Tomasco questioned Tad Bartareau, DAS Officer who testified:
He was the initial investigator of the incident following a complaint filed on June 5, 2023.
He visited the victim’s residence where the mother, father and minor victim were present
and provided details on the incident.
He had minimal contact with the minor victim, verified the details and took photographs of
the victim’s injuries.
Following the visit, he proceeded to the Respondent’s residence, and they were not present,
so he left a “door hanger” notice.
On June 6, 2023 he met with the Respondent at their home, they informed him on the
specifics of the incident and provided vaccination information. A “Dangerous Dog
Acknowledgement” was signed by the Respondent, and he reviewed the criteria and
conditions for a “Dangerous Dog.”
The dog was quarantined and released to the Respondent on June 13, 2023 and the
investigation was closed.
On June 18, 2023 he received a phone call from the victim’s mother and he notified her
without an affidavit, the case was closed. This was reiterated on August 8, 2023 following
an inquiry by the victim’s mother.
On September 10, 2023, the victim’s mother notified him she would be filing an affidavit
on the incident.
He received the affidavit the same day and an Injury to Person Citation was issued to the
Respondent who signed another “Dangerous Dog Acknowledgement.”
He notified Manager Jersey on the status of the case.
Ms. LaHart questioned Officer Bartareau who testified:
He did not notify the Respondent the Dog would not be declared a “Dangerous Dog.”
He interacted with the dog whose demeanor was good and was not impounded.
He interviewed the victim’s mother who provided information via the minor victim.
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No determination or evidence was provided either way on if the dog was provoked prior to
the incident.
He did not specifically ask the Waldstein’s how the bite occurred.
His notes from discussions with the victim’s mother indicated the child was at party and she
was bit on left side of her face. The injury broke the skin, the incident was unprovoked, she
visited the Emergency Room and he assumed she was present when the incident occurred.
The case was closed on June 13, 2023 with no further action, however re-opened following
an affidavit filed by the victim’s mother.
He did not interview other guests and did not personally conduct the Dangerous Dog
investigation which was undertaken by the County Attorney’s office.
Evidence Entered: Respondent Exhibit 1: Email from Danielle Jersey to Tad Bartareau
County Exhibit 1: Hearing Packet
Mr. Tomasco questioned the victim’s mother Adrian Rickert who testified:
On June 3, 2023 she attended a birthday party with the victim at the Respondents home and
stayed for approximately 30 minutes and returned home. The victim remained at the party.
She received a telephone call about 1 hour later that she needed to return to the party
because of an incident and when arrived at the Respondent’s home she learned her daughter
had been bit on the left side of her face by Balashi.
The Respondent drove her to the hospital emergency room, and they subsequently met with
a plastic surgeon who stitched the injury.
The child has ongoing medical and mental health treatment as a result of the incident.
Ms. LaHart questioned Ms. Rickert who testified the victim is 11 years old and was the same age
at the time of the incident. The stitches performed by a plastic surgeon were to minimize the
damage to the face and close the wound.
Break: 10:25am
Reconvened: 10:31am
Mr. Tomasco questioned the 11 year old victim who testified:
On June 3, 2023 she went to the Respondent’s home for a party.
She attempted to pet Balashi and he bit her on the left side of her face.
She didn’t do anything except attempt to pet the dog.
Ms. LaHart questioned the victim who testified:
She only tried to pet the dog.
She brought 2 squirt guns to the party and they were not taken away by Ms. Waldstein.
She was familiar with the dog and previously interacted with the dog who was generally
good natured and would growl if you got near his food dish.
She approached the dog from behind when the incident occurred but did not try to hug the
dog.
Respondent’s Case
Ms. LaHart questioned Erica Waldstein who testified:
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Balashi was acquired as a puppy and has participated in puppy and behavioral training and
interacts well with children.
On June 3, 2023, the day of the incident she was holding a birthday pool party for her son.
The victim was squirting the dog with water guns and she took them way and told her about
Balashi being scared of water.
The incident occurred in the kitchen when she was with guests preparing to serve the
birthday cake.
She saw the victim approach the dog and try to hug him however she did not witness the
incident.
She had previously warned the victim to leave the dog alone.
She was notified by the officials it was determined Balashi would be deemed a “Dangerous
Dog.”
She was never interviewed by Collier County DAS officials nor asked to provide a list of
attendees to the party.
She submitted an affidavit after she requested permission.
Mr. Tomasco questioned Ms. Waldstein who testified:
The dog weighs 105 lbs. and she did not witness the incident.
Prior to November 25, 2023 she spoke with Officer Sparks and Martinez regarding the case.
She provided an affidavit on the incident as did a witness.
In the affidavit, she stated Balashi gets nervous with non-family members when they are in
his personal space.
She notified the party guests (parents or children) of Balashi’s being nervous with non-
family members when they are within his space.
She did not notify the victim or mother when the child was dropped off for the party as they
knew of his behavior.
The dog was not separated from the party guests on the day of the incident.
A friend, Richard Szatkowski who was at the party provided an affidavit on the event and
she believes it is accurate.
Ms. LaHart questioned Ms. Waldstein who testified County officials never requested her to
submit an affidavit and she warned the victim to leave the dog alone.
Break: 10:55am
Reconvened: 11:05am
Ms. LaHart questioned Zachary Waldstein who testified:
He was present at the party and his wife’s testimony was accurate.
County officials never requested him to submit an affidavit on the incident. He was only
questioned on the basic details of the incident and not asked to provide a list of the party
attendees.
He was not notified it was an option, not a requirement to sign the Dangerous Dog
Acknowledgement.
He did not receive written notice on the Dangerous Dog process, copies of County
Ordinance 07-44 or the Special Magistrate Rules and Regulations regarding the procedures
of the hearing.
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He filed public records request to obtain the documents regarding the case which were
redacted. The emails obtained in the request only included his correspondence.
Respondent Evidence Entered: Composite Exhibit 2: Balashi character references
Mr. Tomasco did not object to the evidence but questioned its relevance to the case
Respondent Evidence Entered: Exhibit 3: Notice of Collier County Code Enforcement Hearing
Exhibit 4: Special Magistrate Rules and Regulations
Mr. Tomasco questioned Mr. Waldstein who testified he did not challenge the information
provided in the public records request as being inadequate.
Mr. Tomasco noted the information provided in Respondent Exhibit 1, includes County Official
emails, not just those of Mr. Waldstein.
Ms. LaHart stated the package she provided to Mr. Tomasco was from her public records request
which included all emails, not the information provided to Mr. Waldstein during his request.
Mr. Tomasco questioned Mr. Waldstein who testified DAS officials responded to his requests on
the procedures and provided basic information. He doesn’t contrast any testimony his wife shared.
Ms. LaHart questioned Richard Szatkowski who testified:
He was present at the party and the kids were playing with the dog.
The event included pool activities, water guns and pizza being served.
He was inside during the preparation of the cake serving and the dogs were watching. The
victim entered and reached down for the dog.
The victim approached from behind with the dog looking in the opposite direction.
Mr. Tomasco questioned Mr. Szatkowski who testified he provided an affidavit dated October 30,
2023 on the event. The affidavit references the language “pet” the dog and the victim startled the
dog who teeth touched her face. The victim was interacting frequently with the dog at the party
and leaned over to pet the dog and the dog bit her in the face and cowered away.
Ms. LaHart questioned Mr. Szatkowski who testified the victim approached the dog from behind
and she extended her hand with her face down close to the dog when the incident occurred.
Ms. LaHart questioned Whitney Stalker testified her son is friends with the Waldstein’s son and
spends time a the residence including sleepovers. Balashi has always behaved appropriately during
these times. She dropped her son off at the party and did not stay for the festivities.
Mr. Tomasco questioned Ms. Stalker who testified she wasn’t present at the party when the
incident occurred. She told her son to stay away from the dog because he likes to interact with
animals. She wasn’t aware the dog was terrified of water.
Ms. LaHart reported she was calling an expert witness, Dr. James W. Crosby to testify in the case
who has a PHD in Veterinary Medical Science, a Canine Aggression expert, worked in law
enforcement, been Director of 2 animal control agencies, reviewed file and met with the dog.
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Mr. Tomasco objected to the witness as Dr. Crosby was not present during the incident and the
case involves whether Balashi meets the Statutory definition of a “Dangerous Dog. He can’t testify
if the dog was provoked and couldn’t provide an opinion on how the dog acted during the incident
including whether it was an aggressive or offer an opinion if Balashi is “Dangerous.”
Ms. LaHart noted Dr. Crosby has investigated and testified in numerous legal cases including dog
related homicides and has been qualified as an expert witness.
Mr. Tomasco reiterated his position.
Ms. LaHart noted Dr. Crosby is an expert on evaluating dog bites.
Special Magistrate Neale allowed Dr. Crosby to testify for the limited purpose of the dog bite.
Respondent Evidence Entered: Exhibit 5: Dr. Crosby’s resume
Dr. Crosby outlined his credentials and experience which include work in law enforcement,
County Domestic Animal Services, Dog Training, Canine Encounter Training, etc. He has a PHD
in Veterinary Medical Science, worked as a consultant worldwide, has appeared as an expert
witness approximately 200 times for and against dogs and served as a Hearing Officer for
Dangerous Dog proceedings in Florida.
Special Magistrate Neale qualified Dr. Crosby as an Expert Witness in dog bites.
Ms. LaHart questioned Dr. Crosby who testified:
Ms. LaHart and Ms. Waldstein contacted him to provide an expert opinion on Due Process
and if the County’s determination was appropriate.
He read the material in the packet, examined a photograph of the post treatment injury and
reviewed emails about the case.
He met the dog and interacted with him for 2 hours and formed an opinion on his behavior.
He does not have to be present at an incident to determine a dog’s intent for biting.
He has testified in numerous legal cases including homicides to determine the severity of
wound and type of dog behavior. His opinions were based on the physical evidence and
statements provided.
After reviewing the case information, he has determined the injury sustained by the victim
was a Level 4 (Moderate) (on the Ian Dunbar Bite Scale) dog bite. The type of bite where a
dog engages and releases to gain space and allow the victim to retreat.
His analysis indicates the bite was not a high pressure action.
He has interacted with Balashi at the Respondent’s home and observed no behavioral
warnings that he was sensitive to triggers and displayed no warning behavior during the
visit.
Approaching a dog from behind can startle the animal, especially if their attention is
focused on something else.
Following an objection by Mr. Tomasco, Dr. Crosby was not allowed to provide an opinion if the
dog was aggressive or if the bite was aggressive or should be Declared a Dangerous Dog.
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Ms. LaHart stated if he were to testify, he would say the dog does not meet the definition of
Dangerous Dog. The bite was not aggressive nor was their multiple bites because the dog was
approached from behind and startled.
Ms. LaHart continued the questioning and Dr. Crosby testified:
Under the Florida Statute, the victim or parents are not allowed to make a Declaration of a
“Dangerous Dog.”
When he conducted Dangerous Dog investigations, he interviewed the dog’s owner and
other witnesses.
County Evidence Entered: Exhibit 2: Photo victims face with dog bite premedical treatment
Exhibit 3: Photo of victims face with dog bite post medical treatment
Mr. Tomasco questioned Dr. Crosby who testified:
After examining the photos he still qualifies the bite as “Moderate” and was aware the bite
caused chipping of a tooth.
He never interviewed the victim nor listened to her testimony.
The bite was not observed by anyone including the victim as her eyes typically would be
closed during the incident.
He did not interview Richard Szatkowski but the affidavit statements reinforce the dog was
approached from behind and the dog could not observe the victim approaching him.
The bite was a quick, engage and release bite.
The Waldstein’s did inform him the dog gets nervous, but he did not observe it during his
interactions.
The Waldstein’s informed him on Balashi’s fear of water which is not unusual given many
dogs don’t like water.
He was paid $500 including travel time for the appearance at today’s hearing.
Ms. LaHart questioned Dr. Crosby who testified the face of the victim was bitten as it was the
closest part of the body to the dog.
Recess: 12:11pm
Reconvened: 12:21pm
Closing Arguments
Mr. Tomasco concluded the case noting:
The County followed the required Statutory process for the November 25, 2023 Declaration
Balashi is a “Dangerous Dog.”
The Respondent provided statements to the County prior to November 25, 2023 Declaration
and Ms. Waldstein’s personal interview was not necessary as she did not observe the
incident.
There were only 2 witness to the incident, Richard Szatkowski who provided an affidavit
which stated the victim approached the dog from behind, startled the dog which caused him
to bite the victim and the victim who testified to the incident.
The definition of a Dangerous Dog includes the language if the dog aggressively bitten or
inflicts severe injury on a human being.
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Balashi aggressively bit and inflicted severe injury and meets the criteria to be deemed a
“Dangerous Dog.”
The determination for Balashi being Declared a “Dangerous Dog should be affirmed.
Ms. LaHart concluded the case noting:
The determination was made by the County Attorney’s Office, not Domestic Animal
Services.
The November 25, 2023 determination does meet the standards as the County did not adopt
the procedures as outlined in Chapter 767.12(3) of the F.S.A.
The Notice to the client included a statement to review Collier County Code 07-44 which
has been repealed. The hearing was subject to F.S.A. 162.06. and 162.12 which does not
identify the proceedings required for a Dangerous Dog hearing.
The Notification contained no factual basis for the determination or the penalties for the
dog being declared dangerous.
The case was closed by Domestic Animal Services, but reopened at the request of the
victim’s parents who wanted the dog declared dangerous.
There was no investigation conducted and the determination was based on a hearsay
affidavit.
The investigators did not talk to party attendees, which was important to determine the
circumstances leading up to the event.
No evidence was provided Balashi bit aggressively. The evidence indicates the dog was
approached from behind, was startled and inflicted a warning bite, not an aggressive bite
and cowered after the incident.
The victim squirted the dog and was told multiple times to leave the dog alone and got a nip
in the face as it was close to the dog’s face.
Requiring medical treatment does not determine the severity of a bite.
There is no evidence of an aggressive bite as the dog was defending its space from a child
that startled it.
Multiple statements on the dog’s demeanor were provided where no prior incidents were
identified.
The dog was startled in a corner area and nipped the victim.
The Respondent regrets the incident but the dog’s action should not require it to be deemed
a Dangerous Dog.
Mr. Tomasco noted:
The evidence indicates an aggressive bite and severe injury but F.S.A. 767.11 does not
require both criteria be met.
Activities that occurred 1 hour prior to the incident cannot be extended to provoking during
the incident.
There was no evidence the victim tormented, abused, assaulted or provoked the dog
immediately prior to the incident.
The issue at hand is was there an aggressive bite and/or severe injury inflicted which
warranted the Declaration. There was no provocation for the incident.
Ms. LaHart noted the never stated the dog was provoked by the victim, rather he was startled from
being approached from behind.
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Special Magistrate Neale reported he was taking the case UNDER ADVISEMENT and will be
considering the following in the decision:
1. Due Process
2. F.S.A. 767.11(1)(a )
3. F.S.A 767.11(2)(a)
4. F.S.A. 767.12(1)
The parties have until the close of business on Monday, January 22, 2024 to provide any
additional information relevant to the 4 items listed.
B. EMERGENCY CASES
None
VIII. NEW BUSINESS
A. MOTION FOR REDUCTION/ABATEMENT OF FINES
None
B. MOTION FOR IMPOSITION OF FINES AND LIENS
None
IX. OLD BUSINESS
A. MOTION TO AMEND PREVIOUSLY ISSUED ORDER
None
B. MOTION TO RESCIND PREVIOUSLY ISSUED ORDER
None
X. CONSENT AGENDA
A. REQUEST FOR SPECIAL MAGISTRATE TO IMPOSE NUISANCE ABATEMENT LIENS
ON CASES REFERENCED IN SUBMITTED EXECUTIVE SUMMARY.
None
B. REQUEST TO FORWARD CASES TO COUNTY ATTORNEY'S OFFICE AS REFERENCED
IN SUBMITTED EXECUTIVE SUMMARY.
None
C. REQUEST FOR SPECIAL MAGISTRATE TO IMPOSE DAS CITATION LIENS ON
CASES REFERENCED IN SUBMITTEDEXECUTIVE SUMMARY.
None
XI. REPORTS
None
XII. NEXT MEETING DATE – February 2, 2024 at 9:00am
January 19, 2024
There being no further business fir the good of the County, the Hearing was adjourned by Order of the
Special Magistrate at 12:33prn,
COLLIER COUNTY SPECIAL MAGISTRATE
HEARING
Patrick IL Ne :pedal Magistrate
The Minutes were approved by the Special Magistrate on "")-- 4 , s presen
or as amended
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