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CEB Minutes 11/29/2007 R November 29,2007 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida November 29,2007 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 Community Development and Environmental Services, Room 609/610, 2800 Horseshoe Drive, Naples, Florida, with the following members present: CHAIRMAN: Sheri Barnett Larry Dean Kenneth Kelly Richard Kraenbring Gerald Lefebvre Lionel L'Esperance (Alternate) George Ponte Charles Martin (Excused Absence) Jerry Morgan ALSO PRESENT: Jean Rawson, Attorney for the Code Enforcement Board Michelle Arnold, Code Enforcement Director Bendisa Marlill, Operations Coordinator Page 1 CODE ENFORCEMENT BOARD OF COLLIER COUNTY. FLORIDA AGENDA Date: November 29, 2007, at 9:00 a.m. Location: 2800 North Horseshoe Drive, Naples Florida, Community Development and Environmental Services Room 609/610 NOTICE: THE RESPONDENT MAYBE LIMITIED TO TWENTY (20) MINUTES FOR CASE PRESENT A TION UNLESS ADDITIONAL TIME IS GRANTED BY THE BOARD. PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM WILL RECEIVE UP TO FIVE (5) MINUTES UNLESS THE TIME IS ADJUSTED BY THE CHAIRMAN. ALL PARTIES PARTICIPATING IN THE PUBLIC HEARING ARE ASKED TO OBSERVE ROBERTS RULES OF ODER AND SPEAK ONE AT A TIME SO THAT THE COURT REPORTER CAN RECORD ALL STATEMENTS BEING MADE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NEITHER COLLIER COUNTY NOR THE CODE ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. I. ROLL CALL 2. APPROVAL OF AGENDA 3. APPROVAL OF MINUTES - October 25, 2007 4. PUBLIC HEARINGS A. MOTIONS Motion for Withdrawal I. BCC ys. Horse Creek Partners, L TD CEB 2007-41 Motion for Continuance I. BCC YS. Glen and Sharon Van Slyke CEB 2007-119 Motion for Modification of Orders I. BCC YS. Jerry and Kimberlea Blocker 2. BCC YS. Jerry and Kimberlea Blocker 3. BCC YS. Jerry and Kimberlea Blocker CEB 2006-16 CEB 2006-17 CEB 2006-18 B. STIPULATIONS C. HEARINGS I. BCC YS. John Farrell 2. BCC YS. E'S Country Store, LLC 3. BCC YS. Jaime Lam, Don Lee and Linh Lam 4. BCC YS. James W. Craft 5. BCC YS. Ramon Cabrera and Rosa M. Pittaluga 6. BCC YS. Ramon Cabrera and Rosa M. Pittaluga 7. BCC YS. Jobani Gonzales 8. BCC YS. Jobani Gonzales 9. BCC YS. Emma Houston 10. BCC YS. Stanley Fogg Jr. and Theresa M. Fogg II. BCC YS. Subway Plaza, lnc 12. BCC YS. Tollgate Commercial Center 13. BCC YS. Naples South Realty Associates, LLC 14. BCC YS. Glen and Sharon Van Slyke 15. BCC YS. Yunier E. Ortiz 16. BCC YS. R.P.K. Enterprises of Bonita, lnc 17. BCC YS. Horse Creek Partners, L TD CEB 2007-82 CEB 2007-96 CEB 2007-106 CEB 2007-107 CEB 2007-110 CEB 2007-111 CEB 2007-112 CEB 2007-113 CEB 2007-114 CEB 2007-115 CEB 2007-116 CEB 2007-117 CEB 2007-1 18 CEB 2007-119 CEB 2007-120 CEB 2007-121 CEB 2007-122 5. OLD BUSINESS A. Request for Reduction of Fines/Liens B. Request for Imposition of Fines/Liens 4. BCC YS. Jerry and Kimberlea Blocker 5. BCC YS. Jerry and Kimberlea Blockcr 6. BCC ys. Jerry and Kimberlea Blockcr 7. BCC YS. Joscph Ferio Francois 8. BCC YS. Alfredo and Miradis Miralles CEB 2006-16 CEB 2006-17 CEB 2006-18 CEB 2006-52 CEB 2007-79 C. Request to Forward to the County Attorney's Office I. BCC YS. EJ Properties, LLC Leonardo D. Starke, ESQ., Reg. Agent 2. BCC YS. Patrice E. Sayignano CEB 2005-09 CEB 2005-28 6. NEW BUSINESS A. Code Enforcement Board Rules and Regulations 7. REPORTS 8. COMMENTS A. Aflirmative Defense under Ordinance No. 2007-44 9. NEXT MEETING DATE - January 24, 2008 10. ADJOURN November 29,2007 CHAIRWOMAN BARNETT: Good morning. At this time I'd like to call the Code Enforcement Board of Collier County to order. Notice, the respondent may be limited to 20 minutes per case presentation, unless additional time is granted by the board. Persons wishing to speak on any agenda item will receive up to five minutes unless the time is adjusted by the chairman. All parties participating in the public hearing are asked to observe Robert's Rules of Order and speak one at a time so that the court reporter can record all statements being made. Any person who decides to appeal a decision on this board will need a record of proceedings pertaining thereto and, therefore, may need to ensure that a verbatim record of the proceedings is made, which record includes testimony and evidence upon which the appeal is to be based. Neither Collier County nor the Code Enforcement Board shall be responsible for providing this record. May I have the roll call. MS. MARKU: Mr. George Ponte? MR. PONTE: Here. MS. MARKU: Mr. Gerald Lefebvre? MR. LEFEBVRE: Here. MS. MARKU: Mr. Larry Dean? MR. DEAN: Here. MS. MARKU: Ms. Sheri Barnett? CHAIRWOMAN BARNETT: Here. MS. MARKU: Mr. Jerry Morgan? MR. MORGAN: Here. MS. MARKU: Mr. Richard Kraenbring? MR. KRAENBRING: Here. MS. MARKU: Mr. Kenneth Kelly? MR. KELLY: Here. MS. MARKU: Mr. Charles Martin has an excused absence. Page 2 November 29,2007 Mr. Lionel L'Esperance? MR. L'ESPERANCE: Here. MR. YBACET A: Ladies and gentlemen, before we start, may I have your attention. I would like to give you first a little pointer about the microphones that are in front of you. They aren't the same as the ones at the BCC board. They're more directional. So we're going to need for you to talk closer into them, if you don't mind. Thank you very much. CHAIRWOMAN BARNETT: Thank you. May we have approval of the agenda. MR. DEAN: Motion to approve. MS. ARNOLD: I've got some changes. CHAIRWOMAN BARNETT: That's what I figured. MS. ARNOLD: For the record, Michelle Arnold, Code Enforcement Director. Under Item 4-A, it was noted as a motion for withdrawal. We're changing that to a motion to dismiss without prejudice. Same case. And we have -- we're withdrawing Case No. 4-C-l, that's Board of County Commissioners versus John Farrell. We have a stipulation for 4-C-4, and that will become 4-B-1. We have a stipulation for 4-C-12, and that will become 4-B-2. And we also have a stipulation for 4-C-13, and that will become 4-B-3. Do we have another stipulation just now? We also have a stipulation for 4-C-6. And just because of the order, we're going to be making that 4-B-4. There's also a request to hear 4-C-5 right after 4-B-4, which is same property owner. He's abated that violation, so we're just going to go through that quickly. CHAIRWOMAN BARNETT: 4-C-5? MS. ARNOLD: 4-C-5 will become I guess 4-C-l. Page 3 November 29,2007 CHAIRWOMAN BARNETT: I will give the board just a few minutes to arrange their packet, and then we'll go for an approval. MR. DEAN: Motion to approve the agenda. MR. LEFEBVRE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. CHAIRWOMAN BARNETT: Any opposed? (No response.) CHAIRWOMAN BARNETT: Move to the public hearing. There's a motion for a continuance, the Board of Collier County Commissioners versus Glen and Sharon Van Slyke. Oh, I'm sorry, I missed the approval of minutes. I messed up. Let me back up. Go for the approval of minutes on October 25th, which I'll have to abstain, because I was not present. MR. DEAN: Motion to approve the minutes of October 25th. MR. PONTE: Second. MR. KELLY: We have an approval and a second. All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. MR. MARTIN: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. MR. KELL Y: Anybody opposed? MR. L'ESPERANCE: I also have to abstain. MR. KELLY: Motion carries. Page 4 November 29,2007 CHAIRWOMAN BARNETT: Now we'll go to the public hearings. I'm sorry. And the first case will be motion for continuance of Board of Collier County Commissioners versus Glen and Sharon Van Slyke. MS. ARNOLD: There's actually a motion prior to that. The motion to dismiss without prejudice. CHAIRWOMAN BARNETT: Oh, I thought you -- okay, we have to approve that. Sorry, people. We'll go back to Board of Collier County Commissioners versus Horseshoe Creek Partners, LTD. Motion to dismiss without prejudice. MS. ARNOLD: That's a motion that the county is presenting to the board. I believe you all have been provided a copy of that. We did hear that case previously, so what we're trying to do at this time is to dismiss the prior case so that there's no -- that can be removed off the property. And then you have a hearing for another case today that's going to be presented for -- that's the issue. So we're needing to remove the prior case. CHAIRWOMAN BARNETT: Entertain a motion? MR. LEFEBVRE: Make a motion to dismiss the case. MR. DEAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. CHAIRWOMAN BARNETT: Any opposed? (No response.) CHAIRWOMAN BARNETT: Okay. Now then, we'll go to motion for continuance. Board of Collier County Commissioners versus Glen and Sharon Van Slyke. Page 5 November 29,2007 MS. ARNOLD: And that particular request was provided to you. The respondent I don't believe is present, and is requesting a continuance for I think three months. MS. O'FARRELL: Ninety days. MS. ARNOLD: Ninety days. CHAIRWOMAN BARNETT: Looks like she's going to be out of town, according to the paperwork that we received. I'll entertain a motion. MR. PONTE: I'd like to just make an observation. The request that the respondent has made to continue this case for at least three months I think is unreasonable. This case has been around since July of 2006. She hasn't suggested a specific date, it's just at least three months. I would say it's okay to continue this to January 24th, but certainly to deny the continuance indefinitely. MS. ARNOLD: And that would be the county's position as well. MR. LEFEBVRE: I second that motion, if it is a motion. MR. PONTE: It's a motion. CHAIRWOMAN BARNETT: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. CHAIRWOMAN BARNETT: Any opposed? (No response.) CHAIRWOMAN BARNETT: We're going to go ahead and continue until the 24th. The next case is a motion for modification of orders. And it's actually three cases. CEB-2006-16, 2006-17, 2006-18. But before we start, I would like to read something from our rules and regs. And it basically states, a party may motion a rehearing on Page 6 November 29,2007 the board's order based only on grounds that a decision was contrary to evidence of that hearing involving an error or ruling of law which was fundamental to the decision of the board. The written motion for rehearing shall specify the precise reasons thereof. The motion for rehearing shall be written and sent to the secretary of the board within 10 days of the date the order is received by the party but no event more than 20 days from the date of mailing of the order. The order of the board shall be stayed and the time for taking an appeal tolled until motion for rehearing has been disposed of and the decisions received by the parties provided. However, that in no event shall the order be stayed for a period longer than 20 days from the date of the mailing of the rehearing notice or decision. In that case, this isn't necessarily a request for a rehearing. They've never made that request, as I understand. It's a modification of orders, but we can't really do a modification of orders, according to our attorney in this case. And I'm going to turn it over to Jean to explain it, because I spoke to her prior to this meeting. MS. RAWSON: Well, basically there's nothing in our rules and regulations, or actually in the statute that allows you to modify an order. You can have a rehearing, but you have to do it in a timely fashion. And that hasn't happened here. Obviously they can file an appeal within 30 days. That hasn't happened here. So he -- the respondents are back here to ask you for some relief. Maybe a better motion would be an abatement of the fines. You know, you've read his motion to modify and, you know, I certainly want you to hear his legal argument, but you have to be able to make orders within the parameters of our rules, which parrot Chapter 162. Page 7 November 29,2007 CHAIRWOMAN BARNETT: So in order to proceed, Michelle, I don't think we can hear it as requested. MS. ARNOLD: Well, I would suggest that you hear what the request is and give Mr. White his day in court, so to speak. MS. RAWSON: Yeah, I would, too. Because you can't necessarily go by the title in a motion. You know, let's hear from Mr. White and see what kind of relief he is requesting. CHAIRWOMAN BARNETT: Okay. MR. WHITE: Good morning. CHAIRWOMAN BARNETT: We need to swear you in, please. MR. WHITE: Yes, Madam Chair. I was going to ask that all parties who intend to testify. CHAIRWOMAN BARNETT: Okay. (Speakers were duly sworn.) MR. WHITE: I'd just like to start, Patrick White with the law firm of Porter, Write, Morris & Arthur. I'm here representing Jerry and Kimberlea Blocker on the three matters listed on your agenda under my motion and request. For the record, we did in fact ask for a rehearing timely last May. And regretfully that was not allowed. So what we have is a circumstance where although there is a bit of procedural novelty to what we're looking for, I don't believe it's unprecedented. This board has in fact issued orders nunc pro tunc, one of those lawyer words. And I apologize, you know, I have to bring those things forward. What that basically means is that you go back and you revise an order. Because under the notions of fairness and fundamental equity, you are recognizing that there is some aspect of your prior order that should be modified. And that's why I've stated it as an order to modify that prior order. Now, for many reasons we submitted this well in advance so that we would have all of the board members able to review what those reasons in support of the motion were, so that you could make a test -- Page 8 November 29,2007 or apply the test, rather, of fundamental fairness, and operating in a way where equity would apply. And I believe there's nothing in your rules of procedure that prohibits you from doing this. We're not asking for a rehearing, we're simply saying that your prior order is one that had cause for revision and modification, because there were aspects of it that are fundamentally unfair. And two of them of course are the notion that you've asked us to take an action that seems to be in excess of what's necessary to abate the violation. That being to actually request demolition permits. The other of course being to take an action to rezone the property where, in a timely manner consistent with your order, we went in and spoke with the county staff and they advised us essentially, you can't get there from here. If you want a rezoning, you have to first obtain the comprehensive plan amendment. So we're stuck in a place where unfortunately we would prefer to be able to find some way to abate these violations, but regretfully the county's own processes prevent us from doing so in a timely way. So I have no other means to come to you than to say would you please look at your order on at least those two points and consider under the notion of what's fair and reasonable modifying your order. You still have jurisdiction of this case. You still have the opportunity to essentially, if there is no rule on the subject, to create one. There's nothing -- in fact, there's specific authority for that in your rules and procedures. You can set them. And there's nothing that says that you can't set them as you find them necessary, based upon a particular case. And I submit to you that this case is as factually long in its history, well over 50 years, complex in terms of its procedural history as well, in terms of what rules are supposed to have been applied when, what the effect of your order is going to be on already approved and existing building permits, and the idea that somehow we're just Page 9 November 29,2007 trying to get to the place where I hope you want us to be and that is to abate this violation in a way that's consistent with the county's rules. So to come full circle, the first part of that motion is to ask to be treated in the same manner as other mobile home parks, nonconforming mobile home parks. To be treated in the same way that the folks who owned this property before my clients did were given a chance, at least under the Notice of Violation that was issued back in 2001 to the Collins. Part of their abatement that was available to them was the site improvement process plan -- excuse me, site improvement plan process, the SIP. So we're asking, have been asking, and hopefully can stop asking here, to be treated fairly and reasonably by simply being able to participate on the site improvement plan process that the rules allow for. And I've provided in your packets the Land Development Code that creates the opportunity for that to take place. But in order to do so, you do have to modify your order. So as a procedural point of fundamental fairness, I think there are at least three very compelling reasons why the motion should be considered, and I believe granted. CHAIRWOMAN BARNETT: I've got a question for you in regards to the consent order that's in our packet. MR. WHITE: Yes, Madam Chair. CHAIRWOMAN BARNETT: It was not -- the one copies that we have were not signed. MR. WHITE: That's correct. They are pursuant to the Department of Environmental Protection attorney's request. Attorney named Karen Bishop. We have until tomorrow to sign those, as do the actual landowners of the junkyard next to us. Both parties, if you will, have till tomorrow to sign. We would love to walk out of here knowing that we're going to be able to abate the violations by way of the site improvement plan process, work with the Department of Environmental Protection and Page 10 November 29, 2007 the adjacent property owner to complete the cleanup. I have photographs here showing the substantial level to which that adjacent right-of-way has been cleaned up, the waste tires removed, many junk cars removed, at least out of the easterly 40 feet of the 80 feet of the Broward right-of-way. On Tuesday, the Board of County Commissioners also acted to grant us quitclaim deeds for the county's interest in that full 80 feet of right-of-way, plus the other side. That all goes to the owners of the junk yard, the Ratliff trust. The Blockers get the easterly 40 feet of just Broward. The significance of that is that for the first time with those deeds in hand -- and I told you this is a complex case. The deeds themselves are conditioned by the county upon a signing the DEP consent order. So there's a very strong possibility that we're going to sign the consent order tomorrow, because we believe we need to have the ownership of that easterly 40 feet in order to in a meaningful way participate in the site improvement plan process. That 40 feet gives us the distance and area to provide for proper setbacks, to create an appropriate wall or fence, and any buffering and landscaping that may be required. Additionally, the site improvement plan process, as you may know, would allow for the replacement of some of those mobile homes, travel trailers that could benefit from being replaced. So we feel that it is fair and reasonable to ask for that type of relief. Our predecessor in title had that opportunity. I don't understand why five years elapsed before the case was prosecuted, but we are where we are. And we're simply asking to effectively be treated in the way that others have. Now, I understand some of the county's objections to that position, but I think we have good evidence and good explanations for every aspect of it. So if you have another question, I'd be happy to answer it. Page 11 November 29,2007 CHAIRWOMAN BARNETT: I do, but I think Mr. Kelly has one also, so I'll go ahead and let him speak. MR. KELLY: I have more of a comment. I believe if we have the ability to dismiss an order, I think we have the ability to amend one, as we did in the first case yet today. So that's just my position. MS. RAWSON: You do have the ability. And we do issue orders nunc pro tunc when there's been a mistake. Generally speaking, it's a clerical mistake. Maybe I, you know, put 2006 instead of2007. But nevertheless, we have issued orders nunc pro tunc when errors have been made. So I would ask you to listen to what Mr. White has to say, listen to the evidence, listen to what the county has to say and make your decision. MR. KELL Y: And I would suggest that Mr. White walk us through step by step and then if we could have county say their position on each one of these. It would help us understand it. MR. WHITE: Well, I appreciate that. Your question, Madam Chair, for follow-up? CHAIRWOMAN BARNETT: I'll wait. It may be answered. MR. WHITE: The significant part of the motion, and why I think it appears first, relates to the site improvement plan process. And the county's position has been, and I believe may explain why it wasn't offered before, that they believe that the use is just flat out illegal. The evidence that I provided you in the form of affidavits from former Board of County Commissioners, two of them, as well as a neighbor who has lived at a location literally around the corner since the mid Fifties. Those affidavits stand simply for the idea that this use has been there since the mid Fifties. The difficulty we've had in working this case forward is that we've had to keep going backwards further and further in time to be able to demonstrate either of two things: One, that this use existed and has continued to exist without interruption since the early -- since the Page 12 November 29,2007 mid Fifties. Before, to the best of our ability, we can even find that there were any county zoning regulations. That has been my challenge. I have said to my client, we're at the point where we need to ask Mr. Peabody for the Wayback Machine, because we keep going back further and further in time. Because the county's position is, you know, once you're illegal, essentially you're always illegal and therefore you're not nonconforming. Our position is MS. ARNOLD: I object to that. I'd rather speak for the county rather than have Mr. White speak for the county. MR. WHITE: Let me clarify, board members. My understanding of the county's position is that we're illegal. And that is -- in that regard. And that is not something that was stated to us until the past two months. So we had nothing to kind of focus on as to what the objection was until that point in time. We have been working diligently since I was retained to work on this case. Almost daily on finding a way to abate this violation under the law. We believe that the site improvement plan process is one that's available in any zoning district anywhere in the Immokalee urban area. As you may know, the Immokalee master plan and visioning committee is currently looking to revise the Growth Management Plan provisions for the Immokalee master plan. My clients are engaged in that process, along with other family members that have an interest in that community. As you may know, the Blockers own a lot of property in the Immokalee area, so they're very interested in what happens in that community and what its reputation is throughout the county and the region. So they're actively engaged in that process. And I mention that because it goes back to the point about what do you need to do in order to get the rezoning? In order to get the rezoning that you directed us to do and that we went to the staff and Page 13 November 29,2007 asked about in a timely manner at a pre-application meeting. They said we're sorry, we can't accept your application for a rezoning because you first need to file for a Growth Management Plan amendment. Now, filing for a Growth Management Plan amendment at the very point in time when the process to amend that master plan is ongoing didn't seem to indicate that it was a wise expenditure of money on my client's part to hire someone to file for a small-scale amendment to the tune of some $50,000 just to start that process. As some or all of you may know, that is at a minimum a two-year process. And thereafter, probably 12 months for a rezoning is, I would say, very optimistic. The more typical circumstance, that it's a minimum of 18 months. So the point is as to your order, the time that was originally afforded was not sufficient to achieve the objective that you charged my clients to meet. So we feel that on that ground it makes sense to at least extend the time frame to allow for the Growth Management Plan amendment process to work forward. And we would suggest to you that it makes far more sense to do that as part of the Immokalee master plan visioning process. And to just give you an update on where that is, we appeared -- I appeared, along with Mr. Blocker, in front of that committee in August. And I asked them specifically not about the rights or wrongs of this case but I asked them, is there anything in either the existing master plan or what you're proposing to change in the master plan that would somehow make us ineligible for the site improvement plan process at the comprehensive plan level? And I have a letter back from the chairman, Mr. Thomas, that was directed to the County Commission Chairman, Mr. Coletta, that basically says there isn't anything about what we have or would do in our changes that would preclude you from being able to participate in site improvement plan process. It is a process that's intended to operate Page 14 November 29,2007 anywhere and everywhere in the Immokalee urban area. Now, the relevance of that is that it creates kind of an umbrella under which the Land Development Code provision that I put into your motion packets actually operates. And again, not looking to speak for the county, but the explanation I believe as to why we may not have been afforded that SIP opportunity under the original Notice of Violation is because if you've read that provision in the portion that I highlighted for you, it indicates that the only way that the window that closed some year plus ago can be reopened is if this board orders it. The reason why that provision is in there is one that I'm very familiar with. I wrote it. I wrote it working with Michelle. And we wrote it for the very simple reason, one, we had to reextend the window for a case that was then ongoing, and we did. But that time has since passed. But we also recognize that there was the possibility -- and I know there are other cases out there where there are nonconforming mobile home parks in the Immokalee urban area that are going to have to come through somehow to have their violations, if you will, addressed. And they're going to need this provision. And you're going to, I believe, have to consider, the same as in this case, whether you're going to apply that provision in a way that allows that way to cure the violation. Effectively to say all those other nonconforming mobile home parks that have been have been in existence for decades and the county finally locates and prosecutes the case, you're going to be afforded the opportunity to consider whether or not site improvement plan process is the appropriate way to abate that violation. The county's position, as I understand it here today, is we didn't originally qualify for that, one because the window was closed, and they weren't thinking that you could or should reopen it because we weren't, quote, nonconforming, unquote. You'll remember back to April of last year there was a significant Page 15 November 29, 2007 amount of discussion about what were the prior rules. In fact, we've been cited for violating the 70 regulations that are no longer even law. They've been repealed. Repealed for decades. And yet we're cited for violating under your order a law that no longer exists. Minor point, one not worth mentioning in my motion, but recognizing this is a very complex case. A lot of procedural history, I have to bring it up. Next I think it's important to understand that that time line I was talking about and why it's significant that we have an opportunity for you to understand this use has existed for well over 50 years. This board and some of your members struggled with the idea that there were permits from the Sixties for some of those mobile homes that Mr. Blocker presented to you and that are part of the record. And you struggled with the idea of well, how do we effectively eliminate those. I'd suggest to you that this board doesn't have the authority to revoke a building permit. I think that only the Board of County Commissioners and potentially the building official have that authority. But suffice it to say, that it was something that was something that was of concern to this board. And that's because you understood the idea of something being grandfathered. This case is one that is the closest to what I would call great-grandfathering, because the history is so long. We've shown you by the way of the affidavits that there is a continuing long history. The thing that's missing -- those are the facts. The thing that's missing is the law. And the other thing I came before this board and asked for last month was an opportunity to have a public records request responded to by the county. It's been a cause of concern, not only for the county but for my client as well. And that's because we previously had a copy of a map that although dated 1952 we couldn't tell you when it was actually effective. We have been through the Clerk of Courts, all of their files and Page 16 November 29, 2007 microfiche, we've had one of their attorneys in the vault looking for Zoning Book 1, Page 1 that's supposed to exist. We have gone back to the root of zoning regulations in this county, and we cannot find anything that tells us when it began specifically. But the best we can determine is that we believe we predated those existing rules. So -- CHAIRWOMAN BARNETT: Are you going to need a whole lot longer? Because there is a 20-minute -- MR. WHITE: Well, I appreciate the opportunity that if! have three cases before you that I might have 20 minutes for each. I apologize for making that request. I know there's a lot of folks here who would like to be heard as well. CHAIRWOMAN BARNETT: Well, we have a pretty big docket today -- MR. WHITE: I understand. I understand, Madam Chair. CHAIRWOMAN BARNETT: -- so if you can make it as expedient as possible, we would appreciate it. MR. WHITE: My point to you is that as far as grandfathering and nonconforming go, we believe that we have demonstrated by what we have provided you and what we additionally can provide if you care to see it, is that this property has been -- has either existed as a use before there were any county rules, which is more the case, or even if you accept the alternative, the last -- the next best set of rules we have are from 1959. And we believe that under the zoning district we think this property was then designated as, which is Commercial 3, our use was permitted under those rules. So the point at which we became nonconforming wasn't until the early Seventies when the county changed the zoning district to industrial. So what you have here is a case where effectively the county has sat on its heels for well over 35 years. They attempted to prosecute the case in 2001. In 2001 they recognized that SIP was an appropriate way to handle this case and to abate it. Page 17 November 29,2007 And I submit to you that if the county had gone forward at that time with the prosecution, my client wouldn't be here today. The site improvement plan process would have been followed, there would have been no violation, and we all would have been moving on to the next case. So what I'm asking you to do is to recognize that there's law that allows you to amend your order in this fashion. If for some reason you don't think that that's fair and best in this case, then the alternative I put before you is at the minimum you should add two more years to the time frame we have just to get us back to the place where we might get a comprehensive plan amendment or work through the Immokalee master plan visioning process, as we presently are attempting to do, in order to be able to get the right kind of land use designation for this property. And at a minimum, I fail to understand why it is at all necessary to have to apply for demolition permits for the structures that are on that property. Every other use case that I've seen, and I've prosecuted a bunch of cases in my career, simply ceasing that use is sufficient to abate the violation. Why, can anyone explain to me, my client has to go and destroy his buildings and his trailers in order to come into compliance with the law. Something seems fundamentally unfair about that. And I ask you to well consider the motion. If there are any questions, I'm happy to address them. There's certainly more I can bring to your consideration of this, but I understand that time is limited. And I thank you for bearing with us thus far in listening to what I have to share with you. CHAIRWOMAN BARNETT: Okay, at this time I'll turn it over to Michelle. MR. WHITE: Are there any questions? CHAIRWOMAN BARNETT: I think we'll come back to questions at the end so that we can hear both sides and then question. MS. ARNOLD: I would agree with Mr. White that you all have Page 18 November 29,2007 the ability to amend your order. I would just caution the board to look really at what he's asking you to do in his request. Because this matter was heard by the board in April of 2006, and yes, Mr. White pursued the first part of the order to request a pre-application meeting, and did hold a pre-application. So he met that portion of it. And he was advised at that preap. that he needed to go through a plan amendment to get the rezone, but failed to pursue that plan amendment and failed to request an amendment of your order at that time when he was advised by staff that that was a route that would remedy the violation. Instead of coming back to the board at that time, there was an appeal, in a sense, not the normal appeal that would have gone to the civil court, but another appeal that went to a special magistrate process. And much of the things that he discussed with you today was discussed at that special magistrate process, and the special magistrate MR. WHITE: Madam Chairman? MS. ARNOLD: Can I have my opportunity, Patrick? MR. WHITE: No, ma'am, I don't believe you can. I just --let me make my point of my objection. MR. DEAN: Excuse me. No, sir. MR. WHITE: I don't get to tell you why I object? I object -- I didn't say anything before, Madam Chair, because she was talking about the procedure of that statutory process. When she wants -- when Ms. Arnold wants to speak about the substance of it, I have to tell you that I have to object because it's a matter that's presently under litigation, okay? We had to file an appeal, if you will, of that appeal based upon the way that the Board of County Commissioners considered that. So I don't want to inject into this proceeding whatever the substance of that discussion was. And I'm not trying to hide the facts, I'm simply saying it's a matter that's under litigation, and I don't know Page 19 November 29,2007 what relevance it has to you. CHAIRWOMAN BARNETT: Hold on. Jean, I'm going to ask for guidance. MS. RAWSON: He's made his objection for the record. CHAIRWOMAN BARNETT: We can still hear what Michelle has to say, correct, with that objection in mind? MS. RAWSON: Yes, you can. CHAIRWOMAN BARNETT: Okay, go ahead, Michelle. MR. WHITE: I'm assuming that my objection's denied. CHAIRWOMAN BARNETT: Your objection is noted. MS. RAWSON: I'm not ruling one way or another on his objection, obviously that's not my role. I'm just telling you, if you note his objection for the record then you can make a decision to go ahead and hear what Ms. Arnold has to say. CHAIRWOMAN BARNETT: Well, go ahead-- MR. WHITE: But the point is you're going to have heard what it is she has to say that I believe may prejudice -- CHAIRWOMAN BARNETT: But we also know that you've appealed it, so we do know that there's got to be legal reasons for that appeal. MR. WHITE: Understood. Thank you, Madam Chair. MS. ARNOLD: As I was saying, much of the arguments that were made during that special magistrate process were similar to what was mentioned to you today. The special magistrate upheld your decision that there was a violation, there is a violation, and -- MR. WHITE: Madam Chair, I have to again object. Ms. Arnold I understand is probably explaining to you what she believes the effect of that magistrate's report was -- MS. ARNOLD: I'm just explaining in my opinion -- MR. WHITE: It had nothing to do -- MS. ARNOLD: -- just like you did note the county's opinion. MR. WHITE: It had nothing to do with the Code Enforcement Board Page 20 November 29, 2007 order that you entered. It simply was a discussion about those elements of the statute. And they don't authorize the special master to make a determine about what you all did. That is still something that we at the end of that process -- and Ms. Rawson had indicated to you that we had not yet appealed. We don't get a right to appeal your April order of '06 until after the conclusion of the litigation involving the special magistrate. So we don't know what that court may someday do when we file our appeal. But we haven't yet. What I'm trying to do today is to avoid having to go through all of that process. So I appreciate what Ms. Arnold is saying, but the magistrate was not able to comment about your order in the manner -- in the way that she's characterizing it. Sorry. CHAIRWOMAN BARNETT: Go ahead, Michelle. MS. ARNOLD: So the special magistrate order has nothing to do with your order, but yet he can appeal your order after the termination of what the special magistrate did. Okay. I just wanted to note that although the special magistrate in Mr. White's opinion did not uphold your order, those were all things that were presented through that process. The argument that he made was presented through that process. It's the county's position that although something did exist in the Fifties, what exists today and what was brought to you in August of -- or April of 2006 is not what existed back in the Fifties. It is progressively increased. And we have a residential use in an industrial zoned property. I was a major part of the development of the site improvement plan process when it was developed back in the county in the -- I can't even remember how long ago that was. And it was not contemplated at that time or any time to apply to uses that are not authorized by the zoning district. Page 21 November 29,2007 That's what we have here in this case. We have a residential use in the industrial zoning district. The site improvement plan process can be used anywhere throughout the Immokalee area is absolutely correct. But the zoning always is looked at to determine whether or not that use is authorized in that zoning district before we apply it. There was a Notice of Violation served to the prior property owners. It was served in error. That is the reason why it was not pursued or prosecuted before this board. Again, I want to caution you all to look at what he's asking you all to do with the amendment of your order. Essentially he's asking you to allow something that staff has, and the zoning department has determined that is not authorized. The site improvement plan is allowed but not in an industrial zoning land for residential purposes. MR. WHITE: May I respond? CHAIRWOMAN BARNETT: Basically, Michelle, what you're saying is even ifhe were to apply for a site improvement plan, it probably would not be granted because of the zoning? MS. ARNOLD: Absolutely. MR. WHITE: May I respond? CHAIRWOMAN BARNETT: Yes. MR. WHITE: There are a number of points that I think need to be made clear for the record, and I hope you'll indulge me. First among them is that as to the prior NOV, if the reason why the county didn't pursue it is because it was in error, as to the idea of the SIP, why didn't they process it as to the legality of the use? But let's step past that. Let's look at the NOV in this case. The NOV in this case does not cite my client in anyone of those three cases for some kind of an expansion of a nonconforming use. It's not in there. It's not cited. So if the county's position today is that somehow we've done that impermissibly, that isn't part of this case. Page 22 November 29,2007 And that's not just some fine legal point of law, it is the fundamental thrust of what we're saying to you is unfair about this process. And as to the magistrate's proceeding, the facts that were then being discussed are different than the facts that further research by using the Wayback Machine have uncovered. And in fact we were unaware of some of the things at that time. Our challenge -- my challenge has been that every time we come up with something that we think is a way to be treated fairly and reasonably, the county throws down another barrier. And I understand, their job is to gain compliance of the law. We're saying to you that we believe we qualify under that provision. You've got the words in front of you. In the LDC it talked about the Immokalee nonconforming mobile home overlay district. That district is the entirety of the urban area. It doesn't say anything at all in there that you have to be in a zoning district where the use is permitted. If that were the case, logically you wouldn't need the provision. You'd be lawful. You wouldn't be nonconforming. But let me tell you about a case that's presently being considered by the county for SIP. It's a case that in fact-- MS. ARNOLD: I object. Has nothing to do -- we're talking about the Blocker case. And the relevance or the facts of this other case, and I don't even know what it is, is no relevance on this one. We're dealing with this matter right now. And I just want to correct the record with regard to bringing up something new. Mr. White is the one that brought up the Wayback theory, and I just wanted to clarify that that wasn't -- we brought this case to the board for illegal land use, and that's what we brought to you all. And I wasn't introducing any further violations by insinuating that this was something that had grown through the years, I guess, as implied by Mr. White. The fact remains, we brought the case for what -- for those Page 23 November 29,2007 violations noted. He did bring up there are older provisions that have been since repealed. Those were merely showing a historical -- the historical nature that he's arguing that that particular residential use had never been authorized, with the exception of a single caretaker's quarters. And what we were dealing with is multiple units in an industrial area. MR. WHITE: My point is that the prior regulations that we did discover I think stood for the proposition. At the time we didn't know what the district was. Everybody assumed it was industrial. What we subsequent to the magistrate process discovered by this intensive research that I would submit may be something that the county should have done beforehand, but in any event we've now done at great expense and time, demonstrates that under the preexisting rules before 1970, this is a permissible use in the industrial district. We don't believe it was industrial. We think just like the junkyard next door, it was then commercial C-3. And under those rules, it was a permissible use. So the point is either we -- and we think we preexisted even those earliest rules that we can find. So the notion is that at some point we were either preexisting, and when the rules changed and the industrial district was created in '72, I believe, we became nonconforming. If we're nonconforming, we're not illegal. And we qualify under those rules. And I will tell you for the record and correct Ms. Arnold, that there has been no determination made by zoning about this issue. In fact, one of the reasons I said to this board last month I needed time till this month was to get that public requests record answered. I went down, my paralegal did, and attempted to find the very map that we had found before. It doesn't exist in the county's files today. Maybe they couldn't find it, I don't know. But the reason I asked for it is because as part of our analysis to try to determine whate Page 24 November 29,2007 was the effective date of that map, because it had a 1952 date on it but it didn't say something like adopted in 1952. The plat that predated that says yes, accepted as to the road right-of-way. These zoning-- this map doesn't have anything like it on it. So we went through and for every platted subdivision that was on there, every feature that was identified, a school, the farmer's market, we went back to the best of our ability to determine when those things came into existence. So my map, the only copy I had, has scribbles all over it of our notes. So in order to come to you with a clean document, we went to the county and asked for those records. They no longer exist. No one can find any ordinances earlier than the ones in the early Seventies that actually adopted the zoning regulations that apply to these lands. But to the best of our ability to determine, we're nonconforming. And you have the authority to allow us to go forward. But you have to amend your order. CHAIRWOMAN BARNETT: Mr. Kelly, do you have a question? MR. KELL Y: Thank you, Mr. White. I'm glad that you brought up the original notice of violation and subsequently our order, because if I remember correctly the biggest issue that I had in my mind was a safety issue, health and safety issue. And although I'm not completely adverse to granting an extension of time in order for you to pursue the process, I would really like to know that there has been considerable effort to make sure that the residents, especially children, were at least safe in that community until somebody determines whether that is industrial or commercial or allowed or not, improved, otherwise, that contradicts our order. MR. L'ESPERANCE: Madam Chair, also if I could piggyback your comments. This seems to be turning into a rehearing. Did we intend that to happen this morning? Page 25 November 29,2007 CHAIRWOMAN BARNETT: No, we did not. And I would like to try to ask everybody to keep that in mind, that we do not want to rehear the case. We're trying to listen to your request and give both parties the ability to express their side. Do I have anybody else -- MS. ARNOLD: Can I just make a suggestion? Because this does seem like it may not be ending any time soon. We do have a few stipulations. Maybe we can go through those stipulations quickly and then come back to this? MR. WHITE: I have no objection to that, Madam Chair. And in fact, as to the idea that we may need to stipulate to something else, we would stipulate to the fact that we violate today's zoning district. That's not a problem. We understand we're a residential use. And the other thing is, we would stipulate to a violation of the nonconforming provision, if that's required to amend your order, which I believe it is. CHAIRWOMAN BARNETT: At this time frame I think-- MR. WHITE: I have photos for Mr. Kelly or others who may choose to see them. CHAIRWOMAN BARNETT: I'm going to table this until we get through the stipulations, because I think it's unfair to the people in the audience that are waiting. Because I think this is going to be lengthy. MR. WHITE: I'm more than willing to do so, Madam Chair. And I appreciate it. And if there had been an original desire on the part of the county for us to hear this, along with our order imposing fines, we would have probably been agreeable, try to wrap it up all at once. MS. ARNOLD: I don't think that request was ever made to me, so -- if that request was made to me, I would have forwarded that to you all. MR. KELLY: I make a motion we table this. MR. LEFEBVRE: Second. CHAIRWOMAN BARNETT: All those in favor? Page 26 November 29, 2007 MR. KRAENBRING: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. CHAIRWOMAN BARNETT: Opposed? MR. DEAN: I oppose. CHAIRWOMAN BARNETT: Okay. MS. ARNOLD: Okay, we do have one other stipulation that came in after we approved the agenda. That was item 4-C-3. And so the first one would be, that you're going to consider, is Craft, James Craft. Board of County Commissioners versus James Craft. CHAIRWOMAN BARNETT: Where do you want the 106, the three to go in, at the end? MS. ARNOLD: That would go in at the end. (Speakers were duly sworn.) MS. O'FARRELL: For the record, Susan O'Farrell, Collier County Code Investigator, Environmental Specialist. This would be CEB Case No. 2007-107, and Department Case No. 2006060535. Mr. Craft owns a property out on the East Trail heading down into the Everglades, and what I observed on it was mounds of vegetative construction litter and a large amount of debris. Weare here today to present a stipulation. Mr. Craft has agreed to the violations that existed under Ordinance 05-44, the weed, litter and exotics control ordinance, sections six through eight, and are described as property with mounds of vegetative, miscellaneous and construction litter. Therefore, we have agreed that Mr. Craft will pay the operational costs in the amount of $600.81 within 30 days of this hearing, incurred in the prosecution of this case. He will abate all violations by: Removing all litter on the property as defined by the Collier County Ordinance 05-44, Section 6 Page 27 November 29,2007 through 8, within 30 days of this hearing or a daily penalty of$lOO per day will be assessed as long as the violation persists. CHAIRWOMAN BARNETT: Does he have to notify you? MS. O'FARRELL: I'm not finished. I was trying to let her catch up a little bit. The vegetative debris occurring from the property due to storm damage, which would have been Hurricane Wilma, he is being allowed to dispose of in an uncovered, excavated three -- no deeper than three-foot pit on the property. This is something that I had checked out with the engineers from our engineering department, and this is allowable as long as it's an uncovered pit. The construction debris will be removed from the property and the vegetative debris that has been dumped on the property by opportunitistic cleanup people after Storm Wilma will be removed from the property to an approved landfill facility, and Mr. Craft will notify me when all of these have been abated. I would like to add that Mr. Craft has been working diligently for the last month removing debris from the property. He has graded out areas where there were large amounts of mulch and topsoil, so the property is becoming more appropriate to what it should look like. He has worked very hard since he started. CHAIRWOMAN BARNETT: Mr. Craft? MR. CRAFT: Yes, ma'am. CHAIRWOMAN BARNETT: Do you agree with the stipulated agreement? MR. CRAFT: Yes, ma'am, I do. CHAIRWOMAN BARNETT: Mr. Kelly, do you have a question? MR. KELL Y: So it was illegal dumping that caused this? MR. CRAFT: Yes, it was. During Hurricane Wilma I was out of town for about 30 days. When I come back, they had used my Page 28 November 29,2007 property to dump trees and debris and stuff there. MR. KELLY: Is 30 days going to be sufficient for you? MR. CRAFT: It is going to be, because I'm going to make it. With Christmas and New Year's -- I'm hauling to a separate company, and as long as they don't close down on me, we're fine. And they said as long as they get plenty of work, they're working through that. So yes, 30 days will be enough. If not, I have to come back and can ask. But I really believe that I will work whatever I can. I've got a full crew down there working. We've been working there for a month now, and we believe that we will have it cleaned up. MS. O'FARRELL: Could I just add one thing, Mr. Chairman? It's not all illegal dumping. There was -- a certain amount of it was illegally dumped, but there was some storm debris from his own property that he had piled up in into piles and there was some construction debris I think from other projects maybe that he was working on. MR. CRAFT: Yeah. And that part had been cleaned up a year ago, the construction debris -- MS. O'FARRELL: And I placed a stop work order on his property and that was when he started cleaning up. MR. CRAFT: Right, we cleaned all that up. But the debris that was cleaned from Hurricane Wilma, we went through and picked up all the trees, piled it in a pile, and according to county ordinance we're not allowed to pile it on top of the ground, we have to dig a three-foot hole and put it in the ground. So it wasn't that we -- all the property's in piles, and actually one major pile. So we just didn't dig the hole is what the problem was. CHAIRWOMAN BARNETT: Richard? MR. KRAENBRING: I just wanted to make sure 30 days was good. Otherwise, the holidays are coming up, the gentleman has been working diligently, and it may be better just to give him 60 days. MS. O'FARRELL: Well, I was on-site yesterday and I believe Page 29 November 29,2007 he's about 60 percent completed, so I think 30 days would be plenty. MR. CRAFT: Can I put a stipulation in? Ifwe have a problem, we can come back and talk? I will -- I believe I will have it cleaned up in 30 days. MS. O'FARRELL: I explained to Mr. Craft that ifthere is an imposition of fines hearing and he had gone over because of the holidays that I would testify that we give him some relief on those fines. I just don't want the case to go any farther than it already has. CHAIRWOMAN BARNETT: Anybody else have any questions? (No response.) CHAIRWOMAN BARNETT: Okay, I'll close the public hearing on that and -- MR. LEFEBVRE: I make a motion to accept the stipulation. MR. KELLY: Second. CHAIRWOMAN BARNETT: I have a motion and a second. MR. PONTE: I'll second. CHAIRWOMAN BARNETT: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. CHAIRWOMAN BARNETT: Any opposed? (No response.) CHAIRWOMAN BARNETT: Thank you. MR. CRAFT: Thank you very much, appreciate it. MS. O'FARRELL: Thank you, Mr. Craft. CHAIRWOMAN BARNETT: Michelle, if I'm in the correct order, is the next case 2007-117? MS. ARNOLD: Correct. Page 30 November 29,2007 CHAIRWOMAN BARNETT: Stipulated agreement for Raymon Cabrera and Rosa -- MS. ARNOLD: No, that would be Tollgate Commercial Center. CHAIRWOMAN BARNETT: I messed up, sorry. I read the right number but pulled the wrong case. Tollgate Commercial, James Nici, registered agent. MS. O'FARRELL: James Nici is being represented by Mr. Neil Dorrill. (Speakers were duly sworn.) MS. O'FARRELL: For the record, Susan O'Farrell, Collier County Code Investigator, Environmental Specialist. This would be CEB Case No. 2007-117, Department Case No. 2005050579. The Tollgate property has quite extensive preserve area and over the years had not been maintained on a regular base and had become infested with exotics. And we have been working over the last two -- three years now in getting this property cleaned up. Some of the problems that we have had have been the turnover from the developer to the condominium association. I began preparing the case for CEB because I was frustrated by the lack of response. However, when Mr. Dorrill and I began communicating with each other, immediately action began to be taken. They are probably 90 percent in compliance right now with the exotic vegetation being removed. The wetlands are being cared for. I was on the site day before yesterday with Mr. Dorrill who has been very good about meeting me on-site and ruining shoes and walking in mud to get this thing taken care of. They have had a boundary survey done for the border along 1-75, which shows that they do have little more exotic removal to be taken care of. In this case we are presenting a stipulation where Neil Dorrill is representing the Tollgate Commercial Center. The violation is that of Sections 3.05.07(A-D) and (H) of the Collier County Land Page 3 1 November 29, 2007 Development Code Ordinance 04-41, and are described as preserve on property contains a wide variety of plant species including but not limited to Brazilian Pepper, Air Potato, Melaleuca, Earleaf Acacia and Java Plum. Right now all that we have on the property is the Brazilian Pepper, because they've been working towards compliance. The Tollgate Commercial Center has agreed to pay the operational costs in the amount of 689.02 within 30 days of this hearing incurred in the prosecution of this case. They are going to abate all violations by: Remove all exotics from the preserve area following the standards set forth in 3.05.07(H)(g)(ii) within six months of this hearing or a daily penalty of $100 will be imposed as long as the violation persists. The removal of the exotics shall follow the above mentioned standards, with special attention paid to the following phrase: All exotic vegetation within the first 75 feet of the outer edge of the preserve will be physically removed. Any exotic tree that is removed must be cut down to grade and the stump treated. Exotic vegetation within the interior of the preserve beyond 75 feet from the outer edge area can be treated in place if it is determined that the physical removal will not -- cause more damage to the native vegetation in the preserve area. I said "not" by accident, so I want to make sure that it's "will" cause. Where prohibited, exotic vegetation is removed, but the stump remains. The stump must be treated with United States Environmental Protection Agency approved herbicide mixed with a visual tracer dye. Control of exotics will be conducted on a yearly basis or more frequently when required. They will obtain any necessary Collier County or state permits for the removal of vegetation. That would be because there are some wetlands on the property, if in the future they need to remove exotics from that area. Mr. Dorrill has agreed to this and I'm presenting it to you today. Page 32 November 29, 2007 CHAIRWOMAN BARNETT: Does he have to notify you when all the -- MS. O'FARRELL: Yes. CHAIRWOMAN BARNETT: -- exotics have been removed? MS. O'FARRELL: Yes, Mr. Dorrill will notify me when the exotics have been removed. I would like to make some comments, and that is that I gave them 60 -- six months to do this small amount, because Mr. Dorrill is faced with a new budget year, and I think he's run up to a wall in terms of money in order to finish the project. So I'd like to give him time to get a new budget approved by his board in order to have money to continue. CHAIRWOMAN BARNETT: Mr. Dorrill, do you have -- do you agree to the stipulations? MR. DORRILL: (Witness nods head affirmatively.) MR. LEFEBVRE: Just a -- CHAIRWOMAN BARNETT: Any comments? MR. LEFEBVRE: -- comment? Yes. In the order it states that it will be hand removal, and I didn't -- MS. O'FARRELL: It's hand removal for the first 75 feet, but most -- it's already all been done in that area. MR. DORRILL: Our contractor has done all hand removal thus far. It's quite a good wetland area, and most of it is a created wetland. But the work that has been done there, and the cypress trees that have been planted there are actually thriving at the moment, in spite of the drought conditions. And so we have a very good licensed contractor who has been doing this work. It has been constrained by the fact that it is adjacent to 1-75 right-of-way that is entirely infested with Brazilian Peppers. And many of the pepper trees are growing over. But all of the work thus far has been hand work, not mechanical work. Page 33 November 29,2007 CHAIRWOMAN BARNETT: Any other questions, comments? MR. PONTE: I'm just a little concerned about -- you say six months? MS. O'FARRELL: I'm trying to work with Mr. Dorrill in terms of his budget and the process that he has to go through in order to get more money to finish the job. I'm worried that if we only give him 30 days to finish, he's not going to have the budget in time, and then he's going to start incurring fees. So because he's worked so diligently with me on this, I'm trying to make it possible for us to finish this case with a positive closure, rather than making it more difficult. MR. PONTE: When will the new budget be approved? MR. DORRILL: The new budget will be January. If I can back up maybe just 30 seconds. This case is a situation where a developer did not comply with his permit conditions or the original development order. In the interim period of time, where this case began, he turned the association over quickly to the property owners. The community has been -- it's all commercial property -- has been completely sold, and the owners of the property now run this commercial condominium association. They inherited this problem from a developer who shirked his responsibility under the original Notice of Violation. But I will tell you this: For these group of commercial property owners, it's been a very difficult fiscal year. Three of the largest property owners have not paid any of their assessments this year and are now facing liens and possible foreclosures as a result of not paying their assessments. So I only have about half of the remaining property owners who are paying quarterly into the association. I think your staff has realized, since our firm was hired by the property owners and with absolutely no money we have actually exceeded the original time frames that we were given to do the removal in phases. Page 34 November 29,2007 But at this point I'm out of money. And if necessary, our firm will pay these costs on behalf of this not- for-profit property owners association in order to comply until I can get access to new funds in the first quarter of the new fiscal year that starts on January the 1st. MR. PONTE: Thank you. CHAIRWOMAN BARNETT: Any other questions or comments? (No response.) CHAIRWOMAN BARNETT: If not, I'll close the public hearing and look for a motion. MR. LEFEBVRE: I make a motion to accept the stipulation. CHAIRWOMAN BARNETT: Do I hear a second? MR. KRAENBRING: I'll second. CHAIRWOMAN BARNETT: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. CHAIRWOMAN BARNETT: Any opposed? (No response.) CHAIRWOMAN BARNETT: Thank you. Good luck. MR. DORRILL: For those of us who have entered into and are trying to work with the county, I want to thank you for tabling that prior motion, for those of us who are attempting to work in good faith with your staff and this board. MS. O'FARRELL: Thank you. Thank you, Mr. Dorrill. MS. ARNOLD: Madam Chairman, the next item would be 2007-118, Naples South Realty Association. (Speakers were duly sworn.) Page 35 November 29, 2007 MS. O'FARRELL: For the record, Susan O'Farrell, Collier County Code Investigator, Environmental Specialist. This is CEB Case No. 2007-118, Department Case No. 2003120279. It is a violation of Collier County Land Development Code Ordinance 04-41, as amended. Sections 4.06.05(1)(1) and (2), maintenance of required landscape. The description of the violation is that the required landscape has fallen below the standards of the site development plan. The Naples South Plaza, which is located on 41, has been a case that I've worked on and several other investigators have worked on prior to me since 2003. For some reason we have been just stymied by being able to keep trees alive in the islands in this parking lot. As of yesterday I drove over there and the trees have all been installed due to the hard work and again diligence of Mr. Havens here who's representing Richard Baer, who is the registered agent for the LLC. The irrigation has been replaced. They've had trees replaced three or four times in the last six months. We've had vandals come in and turn off irrigation, we've had people come in and screw down the lids on the bubblers. It's just been one of those cases that we'd just like to die. So -- and I know Mr. Havens feels the same way. MR. HAVENS: Three-hour drive from Palm Beach, absolutely. MS. O'FARRELL: So we have come to a stipulation agreement. Mr. Havens is here on behalf of Richard Baer and Naples South Realty. He has agreed that the violations were as stated. He has agreed that the violation are Sections 4.06.05(1)(2) of the Collier County Land Development Code Ordinance 04-41, as amended, and are described as required landscape has not been properly maintained and Page 36 November 29, 2007 has fallen below Collier County approved site development plan standards. They have agreed to pay the operational costs in the amount of $1,235.62 within 30 days of this hearing that were incurred in the prosecution of this case, and to abate all violations by restoring the required landscape of the property to the standards set by the Collier County approved site development plan, SDPI 2006 AR 8135, to include the replacement of dead and dying required plant material in the property buffers and landscaped areas and fully operational irrigation within 30 days of this hearing or a daily penalty of $100 per day will be imposed as long as violation exists. And that the -- Mr. Havens will notify me with the violation has been abated. Sorry, I keep forgetting that one. I would like to say that all the trees are now in place, they've all been staked as I have requested, the irrigation is all in place, and I have fervent hope in my heart that it will stay that way for a long time. I know that Mr. Havens knows that I will be watching the property, because I have explained to him that with this adjudication the next step would be to go straight to the Code Enforcement Board for another hearing if I happen to drive by and 10 out of the 20 trees are dead. CHAIRWOMAN BARNETT: Hopefully we can find the vandals too in the process. MS. O'FARRELL: Yes, that would be nice. That's been very difficult. MR. HAVENS: Send me a photo of it or something. MS. O'FARRELL: I would also like to say that since Mr. Havens took over this property, he has been easy to work with, he's been available by cell phone, always answered my phone calls. He has been there bye-mail, he's kept on top of his landscaper. And I think at one point even told his landscaper he was going to fire him if he didn't get his act together and start making these trees look right. So I would like Page 37 November 29, 2007 to say thank you to Mr. Havens for working hard on this job. CHAIRWOMAN BARNETT: Mr. Havens, do you agree with the stipulations that have been -- MR. HAVENS: Yes, ma'am, I do. CHAIRWOMAN BARNETT: Do we have any comments? MR. LEFEBVRE: Just one comment or question. I just want to make sure that you state for the record that you do have the authority MR. HA VENS: I'm sorry? MR. LEFEBVRE: -- to represent-- MR. HAVENS: Yes. Yes, I do. MS. O'FARRELL: The stipulation is actually signed by Mr. Baer. So he's here representing Mr. Baer, but the appropriate, you know, final I guess responsibility has been signed by him. MR. LEFEBVRE: Okay, thank you. CHAIRWOMAN BARNETT: Any other questions or comments? MR. PONTE: Just one. Has the Sheriffs Department been notified of this repeated vandalism? MS. O'FARRELL: That would be something you'd have to ask Mr. Havens. MR. PONTE: I'm curious about that, because you're stipulating to clear up the problem within 30 days, but the vandalism could return in 35 days. Maybe extra patrol or something needs -- the property just needs extra attention. MR. HA VENS: Well, we have notified them. And we actually -- one of the programs I'm putting in place -- I'm relatively new with the company, actually since February. We have vacant space at the plaza, and I'm working with Collier County Sheriff right now to set up a substation. And I think it's not necessarily our plaza but it's the entire area. So right now I'm looking a way to donate the space for their use. Page 38 November 29, 2007 MR. PONTE: Terrific. Thank you. MS. O'FARRELL: And I was out there this week, two days prior, in order to have something to tell you at the hearing today, and there were two policemen in the back having lunch or something. You know, they sit in their cars. So there were policemen on property. MR. PONTE: Thank you. MS. O'FARRELL: You're welcome. CHAIRWOMAN BARNETT: Any other questions or comments? (No response.) CHAIRWOMAN BARNETT: Ifnot, I'll close the public hearing, ask for a motion. MR. LEFEBVRE: Make -- MR. PONTE: I make a motion to accept the county's stipulation as read. MR. LEFEBVRE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. CHAIRWOMAN BARNETT: Any opposed? (No response.) CHAIRWOMAN BARNETT: Thank you. MS. O'FARRELL: Thank you. Thank you, Mr. Havens. CHAIRWOMAN BARNETT: Is he next one 2007-111? MS. ARNOLD: Yes. Raymon Cabrera. CHAIRWOMAN BARNETT: Yes. Raymon Cabrera and Rosa Pittaluga. Page 39 November 29,2007 MS. ARNOLD: Actually, we would ask that we remove Ms. Rosa's names off both of those cases, because we've since found that she's not responsible for -- CHAIRWOMAN BARNETT: Okay. (Speakers were duly sworn.) MR. SNOW: For the record, Investigator Kitchell Snow. We have entered into a stipulation in this case. We have agreed that there is a violation of Sections 5.06.05(M) of 04-41, the Land Development Code. Specifically window occlusion exceeding the allowable 25 percent. We have agreed to remove any window occlusion in excess of the allowable 25 percent within 14 days of the date of this hearing or a fine of $150 a day will be imposed until such time as excess occlusion is removed; and to cease displaying any signs in accordance (sic) to and compliant with 04-41, the Land Development Code of Unincorporated Collier County; and to notify the code enforcement investigator when the violation has been abated. CHAIRWOMAN BARNETT: Mr. Cabrera, do you agree to the stipulated agreement? MR. CABRERA: Yes. MR. SNOW: Oh, did we say operational costs? I'm sorry. CHAIRWOMAN BARNETT: Yes, I'm sorry. MR. LEFEBVRE: What case are we hearing? CHAIRWOMAN BARNETT: 2007-111. MR. DEAN: 111. MR. KELL Y: That's a whole different issue. MR. LEFEBVRE: That's regarding the facade and 10 percent painting, not the -- MR. SNOW: That's the occlusion? I'm sorry, there's probably -- there's two cases, so that's probably going to have to be 111 and not 110, for the record. MR. LEFEBVRE: The 111, ifI'm looking at this correctly, is a Page 40 November 29,2007 facade with more than 10 percent painted a primary second color or -- MR. SNOW: Correct. It's going to have to be 1 -- 111 is the facade painting? CHAIRWOMAN BARNETT: Yes. MR. LEFEBVRE: Yes. MR. SNOW: Then it's going to have to be 110. MR. LEFEBVRE: It's being stipulated-- MR. SNOW: To 110, correct. CHAIRWOMAN BARNETT: So we pulled the wrong case. MR. SNOW: No, in the stipulation I probably wrote the incorrect case number. CHAIRWOMAN BARNETT: So we need to be doing 20l0? MR. SNOW: Yes, ma'am, 2010. MS. ARNOLD: We need to change the stipulation. MR. LEFEBVRE: Does the stipulation have 110 on there instead of 111 ? MS. ARNOLD: Yeah, it needs to be changed and initialed by the property owner as well. MR. SNOW: We'll redo that, sir. MR. LEFEBVRE: Thank you. CHAIRWOMAN BARNETT: And he did not stipulate to the other one, then, correct? MR. KELL Y: Correct. MR. SNOW: No, actually we're going to hear the other case as well. That violation's been abated. All we're asking for is operational costs on that one. CHAIRWOMAN BARNETT: Good enough. Just so that we get it right. Okay. MR. DEAN: The operational costs? CHAIRWOMAN BARNETT: The operational costs are? MS. ARNOLD: The operational costs -- we've got to check to see if it's the correct cost, since the wrong number was given. Page 41 November 29,2007 MR. SNOW: I have it. 111 is 295.37.295.37. MS. ARNOLD: Let's not confuse it. The stipulation that you're considering, the operational cost is 283.14, okay? CHAIRWOMAN BARNETT: Okay. Do you want to go back through it just so that we have everything? MR. SNOW: Yes, ma'am. Are we clear? It's 2007-110.2007-110 is the case for the stipulation. CHAIRWOMAN BARNETT: And the operational costs are $283.l4? MR. SNOW: Yes, ma'am. CHAIRWOMAN BARNETT: Does everybody understand? You've got that? MR. PONTE: Yes. MR. DEAN: Yes. CHAIRWOMAN BARNETT: Okay, public hearing closed. May I entertain a motion? MR. LEFEBVRE: I make a motion to accept the county's and respondent's stipulation. MR. DEAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. CHAIRWOMAN BARNETT: Any opposed? (No response.) CHAIRWOMAN BARNETT: Thank you. MS. ARNOLD: We had the request to hear the other case at this time as well, so if we can -- while the respondent's here, hear case now 2007-11. Page 42 November 29, 2007 MR. SNOW: Real quick, Madam Chair? CHAIRWOMAN BARNETT: Um-hum. MR. SNOW: This is a violation of the Land Development Code. We request a finding of fact. 05-05-08 C-- MS. RAWSON: Both of you need to be sworn again. (Speakers were duly sworn.) CHAIRWOMAN BARNETT: And actually Bendisa needs to talk before Kitchell, so slow down. MS. MARKU: For the record, Bendisa Marku, Operations Coordinator, Collier County Code Enforcement. The respondent is present and this is in reference to Code Enforcement Board Case No. 2007-111, Department Case No. 2007081071. It's Collier County Board of County Commissioners verses Raymon Cabrera. And for the record, we would also like to remove Rosa M. Pittaluga, due to her not being the business owner. The respondent and the board received a package of evidence and I would like to enter the packet of evidence as Exhibit A. CHAIRWOMAN BARNETT: Do I have a motion to accept packet A? MR. LEFEBVRE: Motion to accept. CHAIRWOMAN BARNETT: All those in -- do I have a second? MR. KRAENBRING: Second. CHAIRWOMAN BARNETT: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. CHAIRWOMAN BARNETT: Any opposed? Page 43 November 29,2007 (No response.) CHAIRWOMAN BARNETT: Thank you. MS. MARKU: Violation of Ordinances 04-41, Collier County Land Development Code, as amended, Sections 5.05.08(C)(13)(b). THE COURT REPORTER: Excuse me, Bendisa, I will swear in the interpreter at this time. Mr. Ybaceta? (Interpreter was duly sworn.) MS. MARKU: Description of violation: A facade with more than 10 percent painted a primary, secondary or florescent. Location/address where violation exists: 203 West Main Street, Immokalee. Folio No. 33580560003. Name and address of owner/person in charge of violation location: Raymon Cabrera, 4862 Weymouth Street, Lake Worth, Florida, 33463. Date violation first observed: August 28th, 2007. Date owner/person in charge given Notice of Violation: September 11 th, 2007. Date on/by which violation to be corrected: September 27th, 2007. Date of reinspection: September 28th, 2007. Results of reinspection: A violation remains. Has it been abated? MR. SNOW: It has been abated. MS. MARKU: As of today, the violation has been abated. At this time I would like to turn the case over to Investigator Kitchell Snow. MR. SNOW: Good morning. For the record, Investigator Kitchell Snow. I would like it be known for the record that Marlene Serrano interpreted on the previous stipulation, that she did explain to him in Spanish. I felt that was appropriate. Mr. Cabrera does speak English, but just so he may be more comfortable in speaking Spanish. Page 44 November 29, 2007 Just for the record, they have abated this. He's worked very diligently since I've talked to him to try to do this. The property looks a lot better. They still have some things they need to do, but we're working with them on that. All we're asking for is operational costs in the amount of 295.37 in the prosecution of this case. And again, the violation has been abated. MS. ARNOLD: So the county would be asking that you find a violation did exist. CHAIRWOMAN BARNETT: Does Mr. Cabrera understand that? THE INTERPRETER: How much is the operational cost? CHAIRWOMAN BARNETT: It's $295.37. THE INTERPRETER: He understands that. CHAIRWOMAN BARNETT: Do we have any questions? (No response.) CHAIRWOMAN BARNETT: Close the public hearing. Look for a motion first and finding of fact. MR. LEFEBVRE: Make a motion that there is in fact a finding of fact. CHAIRWOMAN BARNETT: Violation did exist. MR. LEFEBVRE: Violation did exist. CHAIRWOMAN BARNETT: Do I have a second? MR. MORGAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. CHAIRWOMAN BARNETT: Any opposed? Page 45 November 29, 2007 (No response.) CHAIRWOMAN BARNETT: Look for a motion now as to imposing the operational costs per the county's request. MR. LEFEBVRE: Make a motion to impose the operational cost in the amount of$295.37 to be paid within 30 days. MR. DEAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MARTIN: Aye. MR. PONTE: Aye. CHAIRWOMAN BARNETT: Any opposed? (No response.) CHAIRWOMAN BARNETT: Okay. MR. SNOW: Thank you for your patience today. CHAIRWOMAN BARNETT: Thank you. Then we have the last stipulated agreement of 2007 -- MS. ARNOLD: We do have one more that was added. And expect another one. They're making copies. CHAIRWOMAN BARNETT: Do you want to take a break then? Cherie', how are you doing? MS. ARNOLD: Before we take a break, there has been a request. There is a respondent here that has a young baby, if we could take her out of order. And I'll let you know what that is when I come back. (Recess.) (At which time, Mr. Kraenbring is absent.) CHAIRWOMAN BARNETT: Attention. We need to bring the meeting back to order, please. Make note that one of our members had to leave, due to another Page 46 November 29,2007 engagement. But we still have a quorum. Michelle, the case next? MS. ARNOLD: The next case is 2007-106, and it's Jaime Lam. There is another stipulation that's going to be heard after that, which is 2007 -116, Subway Plaza, Incorporated. And then we'll go to Ms. Ortiz, and that case would be 2007-120. (Speakers were duly sworn.) MS. WALDRON: For had record, Jen Waldron, Environmental Specialist, Collier County Code Enforcement. This is CEB Case No. 2007-106, Department Case No. 2006-031099. The address of the violation is 3580 First Avenue Southwest. The violation is of Collier County Land Development Code 04-41, as amended, Section 03.05.0l(B), described as vegetation removed over the allowable acreage without obtaining the proper permits. The Respondent Linh Lam has agreed to the stipulation. He has agreed to pay the operational costs in the amount of$455.76 incurred in the prosecution of this case within 30 days of this hearing. He's also agreed to prepare a mitigation plan which meets the criteria stated in 04-41 as amended, Section 1O.02.06.E.3. The mitigation plan shall be prepared by a person who meets or exceeds the credentials specified in Section 0.02.02.A.3. The respondent is required to establish a monitoring program that would determine the 80 percent survivability of species of the plants used in the mitigation effort over a two-year period, with replacement required to maintain the 80 percent minimum annually. A minimum of two reports will be submitted by the respondent. This mitigation plan must be submitted within 60 days of this hearing or a daily fine of $200 will be imposed for each day until mitigation plan is submitted. All plant materials must be installed in accordance with the mitigation plan within 30 days of acceptance of mitigation plan or a Page 47 November 29,2007 daily fine of $200 will be imposed for each day until the plant material is installed. And respondent agrees to notify code enforcement when the violation has been abated to perform a site inspection. CHAIRWOMAN BARNETT: Mr. Lam, do you understand the stipulation? MR. LAM: I do. CHAIRWOMAN BARNETT: Any questions, comments? MR. DEAN: Just one question. Time frame. That was done in March of '06 and we're all the way down to 8/16/07. MS. WALDRON: I spoke to Mr. Lam today. The Notice of Violation was served to his father who lives on the property and they were never given the copy of the Notice of Violation. So the first copy they received was the notice of hearing. So we agreed to give them more time with the holidays also to get that in it. MR. MORGAN: They've been very cooperative in getting this work done? MS. WALDRON: Yes. MR. LEFEBVRE: I have a couple of questions. First of all, is this area irrigated at the present time? MR. LAM: Excuse me? MR. LEFEBVRE: Is there irrigation? MR. LAM: No. MR. LEFEBVRE: We are going into the dry season, so what I'm worried about is if these plants are planted, if they're going to survive. MS. WALDRON: I believe there's someone on the property that will be able to do irrigation, or you could set up temporary irrigation, correct? MR. LAM: Definitely, yes. MR. PONTE: How much acreage is involved here? MS. WALDRON: It's 2.73 acres. They're allowed to clear one acre on the property. And the majority of the property has been Page 48 November 29,2007 cleared. There are still some trees left on the property. But he also explained to me that appear lot of trees that were removed were damaged from Hurricane Wilma and there were also a lot of dead trees on the property. So what will happen is the environmental consultant will take all of that into consideration when they come up with a mitigation plan for this property. MR. PONTE: I just share my colleague's concern about the fact that we're entering a very dry season and already having problems. And if irrigation is not -- if an irrigation system is not in place now, chances of survival of new plantings I would think would be at risk. MS. WALDRON: Well, that's up to your discretion, if you would like to postpone it until -- the planting until the rainy season starts. But like this year we had a big problem because there really wasn't a rainy season, so. MR. KELLY: Which is even -- MS. WALDRON: It's a very difficult situation, because we just don't know what's going to happen. MR. KELLY: Which could potentially be a worse situation, now, going into our dry season after already being so dry. I'm concerned about the $200 a day fine. I think that's excessive. In previous environmental cases it's been about 100 bucks a day. So that was one comment. And then also, out of that removal was there any exotics, and should those be taken into consideration? MS. WALDRON: There may have been exotics. Are exotics on some of the adjacent properties. Usually towards the front of the property, there is some Brazilian Pepper. And the environmental consultant will take all of that into consideration when they do their plan. MR. KELLY: And is there a way to get an after-the-fact permit and just get this approved? Page 49 November 29,2007 MS. WALDRON: There's really -- we wouldn't approve an after-the-fact permit for this because it wasn't cleared for any kind of structure or any kind of use, so -- CHAIRWOMAN BARNETT: Any other questions? (No response.) CHAIRWOMAN BARNETT: Ifnot, I'll close the public hearing, open it to the board for discussion, motion. MR. PONTE: Well, I don't have a motion, but I have several concerns. I do think the fine suggested by the county is high. I do think that the respondent is at considerable risk of not being able to cope with the survival of the plants. So I'm not quite sure how to word the motion. Obviously there's a violation. MS. BARNETT: Maybe lower the fine and extend the length of time to get the plants planted? MR. PONTE: Well, it's not the planting of the plants, it's the watering of the plants. CHAIRWOMAN BARNETT: Well, if we extend the time to plant the plants, then it would be extended into the -- you could extend it into the rainy season. MR. PONTE: You're talking about extending it to April or May? CHAIRWOMAN BARNETT: Urn-hum. MS. WALDRON: I just want to comment on that, too. Last year the rainy season did not start till probably at least August, so -- MR. DEAN: Did I not hear the respondent say he had ways to irrigate? Did you -- CHAIRWOMAN BARNETT: He said he had somebody that lived on the property that could water. MR. LAM: Yes. MR. LEFEBVRE: The problem I have, it's going to be watering an acre or so of land, more than likely. I mean, that's a lot to walk around with a bucket or hoses or whatever the case may be. So -- MR. PONTE: They're already talking about putting limitations Page 50 November 29, 2007 on watering just once a day -- I mean once a week, rather. MR. LEFEBVRE: I think if we accept the 30 days to submit the mitigation plan. MS. WALDRON: Sixty days. MR. LEFEBVRE: Sorry, 60 days to submit the mitigation plan and maybe 120 dates or 150 days after that the plantings, that would put them in a position where somewhere around potentially Mayor June that they could plant and give a chance of these plants surviving, or these trees surviving. MR. PONTE: I think that's the right direction. You want to make a motion? Or it is a motion? MR. LEFEBVRE: No, I threw out a couple of things. So I'll make a motion. I'll make a motion that the 455.66 -- is that correct? CHAIRWOMAN BARNETT: 76. MR. LEFEBVRE: 76, okay. -- 76 be paid within 30 days. The mitigation plan submitted within 60 days. CHAIRWOMAN BARNETT: Or what's the fine? MR. LEFEBVRE: Or a fine of let's say $75 a day. And then they will have -- well, I guess can I ask one question? CHAIRWOMAN BARNETT: Urn-hum. MR. LEFEBVRE: Very specific. How long does it usually take to accept a mitigation plan? MS. WALDRON: Usually if they have it submitted, I can get it done in the same day. If there needs to be changes, though, ifthere's something on there that needs to be amended, then they will have extra time to make those changes. MR. LEFEBVRE: So we're looking somewhere around the -- yeah, end of January submittal of the mitigation plan at the worst case scenario, another 15, 30 days possibly to accept it if there has to be changes. So we're into February. Page 51 November 29, 2007 So let's say 120 days after the mitigation plan has been accepted to have the plantings in or a fine of $75. MS. WALDRON: The only thing I see is what happens -- the only problem I see is what happens if the rainy season does not start again. Then he's held to these -- MR. PONTE: Then he's back here. MS. WALDRON: -- time frames and we're back to the same thing that we're doing right now. MS. ARNOLD: Then he can come back and ask for a modification. MR. DEAN: Correct. Agreed. MR. KELL Y: Can I make a suggestion on your motion? MR. LEFEBVRE: Sure. MR. KELLY: Ifwe said 180 days to apply, approve, plant. MR. LEFEBVRE: And have just one fine? MR. KELL Y: Just one date, one fine, and kind of go from there. This will leave it open. CHAIRWOMAN BARNETT: I disagree with that, because I think you need to get the mitigation plan in first so that he has something to follow. And that could take time because he has to hire someone to do that. So I think it needs to be in two parts. MR. KELL Y: Okay. MR. LEFEBVRE: With those changes, I make a motion. MR. PONTE: I'll second the motion. CHAIRWOMAN BARNETT: All those in favor? MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. MR. L'ESPERANCE: Aye. CHAIRWOMAN BARNETT: Any opposed? Page 52 November 29,2007 (No response.) CHAIRWOMAN BARNETT: Do you understand what we did? We changed it. MR. LAM: Yes. CHAIRWOMAN BARNETT: So you pay the operational costs of 455.76 within 30 days; you get your mitigation plan done within 60 days or a fine of $75 a day will apply. You will then have monitoring again for two years, as she had stated before. We did not change that. You can plant 120 days after the acceptance of the mitigation plan, or $75 a day will be incurred. And you must notify her when that is completed. Okay? MR. LAM: Yes, thank you. CHAIRWOMAN BARNETT: Thank you. MS. WALDRON: Thank you. CHAIRWOMAN BARNETT: So the next case would be 2007-116? MS. ARNOLD: Correct. CHAIRWOMAN BARNETT: Subway Plaza. Is the respondent Ajay R. Patel, registered agent, here? MR. SANTAFEMIA: He was up until the last break. Never came back from the break. (Speaker was duly sworn.) MR. SANTAFEMIA: For the record, John Santafemia. S-A-N-T-A-F-E-M-I-A. Property Maintenance Specialist for Collier County Code Enforcement. This property -- or this case involves property located at 10565 Tamiami Trail North, also known as the Subway Plaza. It's CEB Case No. 2007-116, Department Case No. 2007-040895. I did meet with the property owner and registered agent, Mr. Ajay Patel this morning and discussed the case with him. He did agree to enter into a stipulation with me. He agrees that the -- or he stipulates that the violations do exist. Page 53 November 29,2007 The violations are that of Sections 2.02.03, 1O.02.06(B)(1)(a), and 10.02.06(B)(I)(e)(i) of the Collier County Land Development Code, Ordinance 2004-41, as amended, and are described as a commercially zoned structure with a second story being used as rental property for the employees of the Subway Restaurant located on the first floor. Additionally, a second story has been altered from the originally permitted condition without first obtaining Collier County permits. Mr. Patel agrees to pay the operational costs of $432.45 incurred in the prosecution of this case within 30 days of the scheduled hearing date, which is today, and abate all violations by ceasing the use of the second-story residential living space as rental property for all residents except for what is allowable in the C-3 zoning description outlined in the Collier County Land Development Code 2004-41 within seven days of this hearing or a fine of $50 per day will be imposed for each day the violation continues. Additionally, he agrees to obtain all required permits, inspections and certificate of occupancy for any unpermitted alterations to the second-story living space within 90 days of this hearing or a fine of $200 per day will be imposed for each day the violation continues. Alternatively, the respondent may obtain a demolition permit and convert the second story back to its originally permitted condition, and obtain all inspections and certificate of occupancy within 90 days of this hearing or a fine of $200 a day will be imposed for each day the violation continues. He also agrees to notify code enforcement, myself, when the violation has been abated in order to conduct a final inspection to confirm the abatement. I did check the status yesterday on this property. He has been issued a permit at this point, so he is well on his way to getting his inspections and his C. O. CHAIRWOMAN BARNETT: Did he agree to the stipulation? Page 54 November 29,2007 MR. SANT AFEMIA: Yes, he did. He did sign it. And like I said, he was here up until the last break. CHAIRWOMAN BARNETT: That is him back there? MR. SANT AFEMIA: Oh, there he is. CHAIRWOMAN BARNETT: Would you come up, please. Cherie', I'll have to ask you to swear him in. MS. ARNOLD: Can I just make a slight change? In the stipulation, it does say C-3 zoning description. It really should be the C-3 zoning district. Because the district describes all of the permitted uses. (Speaker was duly sworn). CHAIRWOMAN BARNETT: Good evening (sic), Mr. Patel. I believe you were in the room when he was going through most of the stipulated agreement. MR. PATEL: Yes. CHAIRWOMAN BARNETT: So I'm going to ask you, do you agree to the stipulated agreement? MR. PATEL: Yes, I do. CHAIRWOMAN BARNETT: Do we have any questions, comments? MR. DEAN: I have a question. How many people live on that second floor? MR. PATEL: At this time, none. At the time I think two or three people were there. MR. DEAN: So nobody's there now? MR. PATEL: Sorry? MR. DEAN: Nobody's there now, right? MR. PATEL: No. MR. DEAN: Thank you. MR. LEFEBVRE: You said that there's a permit that has been applied for? MR. SANT AFEMIA: Correct. Page 55 November 29,2007 MR. LEFEBVRE: What is that permit for? MR. SANT AFEMIA: The permit is actually issued. It is to correct the violations. Some of the walls were moved. Interior walls were removed on the structure that had to be -- and that was done without permit. So he has gotten a contractor to pull the permit and get everything done correctly. CHAIRWOMAN BARNETT: Anybody else? (No response.) CHAIRWOMAN BARNETT: I thought I saw a hand over on this side. Okay, if there are no other questions, then I'll close the public hearing, entertain a motion or discussion. MR. PONTE: I'll make a motion that we accept the stipulation as read. MR. LEFEBVRE: I'll second. MR. DEAN: I'll second. CHAIRWOMAN BARNETT: We have the motion and a second. All those in favor? MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. MR. L'ESPERANCE: Aye. CHAIRWOMAN BARNETT: Any opposed? (No response.) CHAIRWOMAN BARNETT: Stipulated agreement stands as read. Thank you. MR. PATEL: Thank you. MR. SANT AFEMIA: Thank you. MS. ARNOLD: I think now we are at 4-C-15, which is BCC versus Mrs. Ortiz. We do have two other stipulations that were added. Page 56 November 29,2007 And I'd rather do it after this particular case. And those are 4-C7 and 4-C-8. (Speaker was duly sworn.) MR. GANGULI: Collier County Code Enforcement Investigator Rob Ganguli. Spelled G-A-N-G-U-L-I. (Speaker and Interpreter were duly sworn.) MS. MARKU: This is in reference to Code Enforcement Board Case No. 2007-120, Department Case No. 2007-040560. For the record, I would like to state that the respondent is present. The respondent and the board were sent a packet of evidence and I would like to enter the packet of evidence as Exhibit A. CHAIRWOMAN BARNETT: Entertain a motion. MR. DEAN: I'll make the motion for Exhibit A. MR. PONTE: Move to accept. CHAIRWOMAN BARNETT: All those in favor? MR. DEAN: Aye. MR. KELL Y: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. MR. L'ESPERANCE: Aye. CHAIRWOMAN BARNETT: Opposed? (No response.) THE COURT REPORTER: Excuse me, I didn't get a second on that one. MR. KELLY: Motion, second. MR. DEAN: I made the motion. CHAIRWOMAN BARNETT: He made the motion, and he seconded. MS. MARKU: Violation of Ordinances 2004-41, as amended, the Collier County Land Development Code, Sections 1O.02.06(B)(1)( a), 1O.02.06(B)(1)( e), and 1 0.02.06(B)(1)( e )(i). Page 57 November 29,2007 Description of violation: Unpermitted erection of wooden privacy fence, aluminum shade awning, and improvements including electrical and plumbing made to lanai enclosure and kitchen. Location/address where violation exists: 38 -- 2831 44th Terrace Southwest, Naples, Florida, 34116. Name and address of owner/person in charge of violation location: Ortiz, Yunier E. Date violation first observed: April 18th, 2007. Date owner/person in charge given Notice of Violation: April 19th, 2007. Date onlby which violation to be corrected: May 19th, 2007. Date of reinspect ion: June 14th, 2007. Results of reinspect ion: No permits applied for. At this time I would like to turn the case over to Code Enforcement Investigator Rob Ganguli. MR. GANGULI: Good morning. I'd like to start out with there's some question of the validity of this lady to represent the respondent. Her status hasn't quite been established yet. CHAIRWOMAN BARNETT: Okay. So this is not Mrs. Ortiz? MR. GANGULI: No, ma'am. Not as I understand her. CHAIRWOMAN BARNETT: Is she Mrs. Ortiz? THE INTERPRETER: She says that she's the common law wife. MR. DEAN: A what? THE INTERPRETER: Common law wife. They're not legally married. CHAIRWOMAN BARNETT: Does she have a notified -- there is a letter that is required from the individual that is being charged that has to be -- MR. YBACET A: She says no. But if you need that, you can call him on the phone and he can attest to it. THE COURT REPORTER: May I have your full name, please? THE INTERPRETER: Yesenia Moncada. Y-E-S-E-N-I-A. Last Page 58 November 29,2007 name M-O-N-C-A-D-A. CHAIRWOMAN BARNETT: Jean, should we give -- MS. RAWSON: We need some authorization from her that she has his permission to represent him here today. CHAIRWOMAN BARNETT: She was saying that we could call him on the phone and ask him. Would that work? MS. RAWSON: Yes. Probably would have to have the inspector do it. MS. ARNOLD: Jean, I just would wonder who would recognize that she's calling Mr. Ortiz. Because the investigator had indicated that he wouldn't recognize his voice on the phone. THE INTERPRETER: She's stated that every time he's gone over to the house he's been the one that's talked to her. CHAIRWOMAN BARNETT: Is that true? MR. GANGULI: Yes, ma'am. CHAIRWOMAN BARNETT: So she has been there every time? MR. GANGULI: I can't testify to every time, but she has been there in the past. THE INTERPRETER: She has a driver's license that states that she lives there. CHAIRWOMAN BARNETT: Can we have her just say for the record then she has permission? MS. RAWSON: She can say for the record that she lives there and that she has his authority to represent him here today. And, you know, then if we find out later that that's not true, then we'll have to deal with it. But if she puts that on the record. CHAIRWOMAN BARNETT: Okay, we need her to -- THE INTERPRETER: She has no problem giving that. CHAIRWOMAN BARNETT: Okay, she needs to make the statement then. And I guess you can interpret it. THE INTERPRETER: How would you like that? CHAIRWOMAN BARNETT: We would like to say that she Page 59 November 29,2007 lives there and that she has permission to represent Mr. Ortiz. THE INTERPRETER: She lives there. She lives on that address, and she has legal representation for it. MS. ARNOLD: Could we ask where Mr. Ortiz is? THE INTERPRETER: He's working in Texas. CHAIRWOMAN BARNETT: Then I guess it would be kind of hard to have him here. I guess we'll proceed then. That's what we can do. Thank you. MR. GANGULI: Yes, ma'am. Okay, this involves Code Enforcement Board Case No. 2007-120, Department Case No. 2007-040560. The location of the violation is 2831 44th Terrace Southwest in Golden Gate City, which is residentially zoned. The description of the violation is it involves several unpermitted improvements to the property. One is the erection of a wooden privacy fence; the addition of an aluminum shade awning to the lanai; structural improvements made to the lanai; and electrical and plumbing improvements made to the lanai and kitchen areas. THE INTERPRETER: No plumbing or electricity. MR. GANGULI: This case originated from a call-in complaint about unpermitted work. On April 19th, 2007, Investigator Ed Morad and myself met with the respondent who allowed an inspection of the property. At this time we took photographic documentation, as well as made explanations of the violation in English, and personal Notice of Violation service was achieved. Madam Chair, we don't have the luxury of an overhead projector and I have several photographs I'd like to submit. MR. KELLY: I make a motion we accept the photos. MR. LEFEBVRE: If I second. CHAIRWOMAN BARNETT: All those in favor? MR. DEAN: Aye. Page 60 November 29, 2007 MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. MR. L'ESPERANCE: Aye. CHAIRWOMAN BARNETT: Any opposed? (No response.) MR. GANGULI: Ma'am, I have a second copy of them, if you'd like to pass them port and starboard in order to expedite this. CHAIRWOMAN BARNETT: That would be great. MR. GANGULI: I can describe each and every one of them as rapidly or as slowly as you'd like. If you have any questions, I'll just begin. I-A depicts old fencing material with a new fence erected. 1- B represents the new fence itself. 2-A is the lanai enclosure with a shade awning addition. 2-B is the shade awning addition itself. 2-C is the county property appraiser's depiction of the property. Am I going too fast for the board? MR. DEAN: No, we're fine. MR. GANGULI: 2-D is the property appraiser's aerial photograph of the property configuration. And 2-E is the same photograph with the area in question highlighted. 3-A is the structural modification of doors. 3-B is the structural modification of windows. CHAIRWOMAN BARNETT: Those aren't listed in the charging documents, are they, the doors and the windows? MS. ARNOLD: He indicated other structural improvements. CHAIRWOMAN BARNETT: Okay. MR. GANGULI: Exhibits 4-A, Band C depict interior electrical improvements to the lanai. Page 61 November 29,2007 Exhibits 4-D and E depict exterior electrical improvements to the lanai. THE INTERPRETER: Which numbers are those? MR. GANGULI: 4-D and 4-E are exterior electrical improvements. 4-F depicts electrical improvements in the kitchen. THE INTERPRETER: She states that existing electricity was there already. MR. GANGULI: And lastly, 4-G depicts the plumbing modifications in the kitchen. THE INTERPRETER: She says that the -- on this last picture what they removed was the cabinetry. This was the kitchen, but the plumbing and everything else remained the same. They were just removing the cabinetry. MR. GANGULI: Proceed? On June 29th, 2007, a meeting was held with the Collier County permitting staff when the respondent was given requirements necessary in order to retain the improvements made, as well as demolition options. THE INTERPRETER: The 1 st of June? MR. GANGULI: 29th of June. This meeting was also attended by an architectural representative for the respondent. On September 13th, 2007, this case was prepared for the Code Enforcement Board when my investigation revealed that no permits had been applied for and attempts to contact the respondent for an update on his progress were unsuccessful. As of my final inspection conducted yesterday, November 28th, 2007, the violation remained. I'd like to add to the record that the notice of this hearing was posted on October 22nd, 2007, and that two days ago on November 27th, 2007, our secretary to the Code Enforcement Board received a Page 62 November 29, 2007 request for continuance. It was explained that this request could not be considered unless it was received at least five business days prior to the date set for this hearing. And I'll withhold my recommendation until asked for. THE INTERPRETER: Could you repeat that, please, so I can -- and slower. MR. GANGULI: The notice of this hearing was posted on October 22nd, 2007. Two days ago, on November 27th, 2007. THE INTERPRETER: What date was that? MR. GANGULI: Two days ago, November 27th, 2007. Our secretary to the Code Enforcement Board, Bendisa, received a request for a continuance. And it was explained that the request could not be considered unless it was received at least five business days prior to the date set for the hearing. CHAIRWOMAN BARNETT: He is going to wait for his recommendation until afterwards, so it's her turn to speak. THE INTERPRETER: She didn't know that at the time when they tore down the fence and put it up that they needed a permit. What they were doing is taking out the old fence and putting in a new fence. And the next page, the pictures. This is the new fence that they've put up. She also stated that on the first page the fence that you see in the background is actually not hers. So the next packet, 2-A, this used to be a screened lanai and what she did was she closed it in and put in windows and altered it. And they made a terrace portion of it. You can see that on 2- B. They have hired an architect that is working on putting together permits for this, submitting to Collier County for it. And in the kitchen there was no changes in plumbing or electricity. It was just changing out the cabinetry, which they want to install new cabinetry. Page 63 November 29,2007 CHAIRWOMAN BARNETT: Question for her, then. Can she explain the picture 4-B? THE INTERPRETER: 4-B? CHAIRWOMAN BARNETT: Urn-hum. THE INTERPRETER: She states that if you look at the receptacle towards the bottom, she says that that receptacle was there already. What she had added were from the same line done by an electrical technician. They've added the -- CHAIRWOMAN BARNETT: Explain to her that is an electrical change without a permit. THE INTERPRETER: Yes. CHAIRWOMAN BARNETT: Would you please explain that to her. THE INTERPRETER: I'm sorry. Yes. She understands that. This is not on the kitchen, though. CHAIRWOMAN BARNETT: But it's saying lanai and kitchen. I'm just going through -- I believe the kitchen in question, the electrical, is 4- F. MR. GANGULI: Madam Chairman, that is correct. THE INTERPRETER: The sheetrock that you saw on that photo that went through the inside, from when they took out the door that led to the lanai, this portion stayed, so that's where you see this. This is actually an existing. CHAIRWOMAN BARNETT: Existing electrical? THE INTERPRETER: Yes. CHAIRWOMAN BARNETT: But exposed. THE INTERPRETER: But exposed, yes. CHAIRWOMAN BARNETT: And it does look like on 4-G that they possibly removed the cabinets, and the plumbing was existing. THE INTERPRETER: She says yes, that is the old stuff. CHAIRWOMAN BARNETT: Okay. I will -- THE INTERPRETER: She's asking, do you need a permit to Page 64 November 29,2007 change the cabinetry? CHAIRWOMAN BARNETT: Yes. It's any modifications, as I understand it. Don't you, Michelle? MS. ARNOLD: I don't believe to change out their cabinets they wouldn't have to get a -- CHAIRWOMAN BARNETT: But they didn't just change out cabinets, they did windows, walls. MS. ARNOLD: Well, I believe the person coming in will get a permit to do everything. I mean, had they just done a simple change out the cabinet, then it wouldn't be -- but because of all of the -- THE INTERPRETER: She understands that. CHAIRWOMAN BARNETT: Okay. THE INTERPRETER: She understands that now. She says on the inside when she moved the cabinetry, because there was -- it was an infestation of roaches. She feels that for the kitchen she doesn't think that she needed a permit. But for the fence portion of it too, she didn't know that when you changed out a fence needed to pull a permit. CHAIRWOMAN BARNETT: Okay. I look to your recommendations, I guess. Or wait a minute. I guess we'd better close the -- do we have any questions? MR. DEAN: I have one. CHAIRWOMAN BARNETT: Go ahead. MR. DEAN: Would you translate to the young lady that the reason we have permits for electrical and plumbing is to save the joy that just left the room that was in her arms. We've read stories and we have copies of stories of fires, and that's why we're strict on what we do with the permits. Especially for electrical. THE INTERPRETER: Okay, thank you. CHAIRWOMAN BARNETT: Any other questions? MR. KELL Y: I just want to know if there's a permit on the house at all, any type of permit. Like did they do all of this work without any Page 65 November 29, 2007 permit at all? MR. GANGULI: There was originally a permit for a lanai enclosure from 1990. It was drawn by a property owner previous to this one. And it was C.O.'d. I believe the photographs depict this work has taken place past 1990. CHAIRWOMAN BARNETT: Anybody else? MR. LEFEBVRE: Yes, I do. CHAIRWOMAN BARNETT: Okay. MR. LEFEBVRE: The current is -- I saw a lot of wood and so forth. Has any of this been finished? THE INTERPRETER: No, it has not been finished. It's as is. What you see is what it is now. MS. ARNOLD: But she needs to obtain a permit to finish it, so-- MR. LEFEBVRE: Right, I understand. But I was wondering ifit was moved along or if the project has stopped. THE INTERPRETER: She's stating that right now she's in the process of getting a permit. But depending on how much it cost, especially with impact fees and everything else, that she might opt just to remove everything and put as is, or as it was. MR. LEFEBVRE: What I'm worried about is there's a lot of exposed wiring in the status that it is. THE INTERPRETER: She had an electrician do all the work, all the electrical work, she says. MR. LEFEBVRE: But what I'm worried about, ifthere's any power to these outlets and so forth, with a baby in the house. THE INTERPRETER: She says that right now, no. Some of it is, some of it isn't. It's disconnected. CHAIRWOMAN BARNETT: Any other questions? (No response.) CHAIRWOMAN BARNETT: Okay, ifnot, I'll close the public hearing, look for a finding of fact. Do I hear a motion? MS. ARNOLD: Would you like to hear the county's Page 66 November 29,2007 recommendation? CHAIRWOMAN BARNETT: Not until after we -- MS. ARNOLD: Okay. CHAIRWOMAN BARNETT: They wanted to wait until after they got the finding of fact. MS. ARNOLD: Sorry. CHAIRWOMAN BARNETT: I started to do it that way and I got -- so -- MR. LEFEBVRE: I'd like to make a motion that there is a violation. MR. KELL Y: I'll second it. CHAIRWOMAN BARNETT: I have a motion and a second. All those in favor? MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. MR. L'ESPERANCE: Aye. CHAIRWOMAN BARNETT: Any opposed? (No response.) CHAIRWOMAN BARNETT: We have found that there was or is a violation. And we'll now look to the county for their recommendation. MR. GANGULI: Ma'am, my recommendation is that the Code Enforcement Board order the respondent to pay all operational costs incurred in the prosecution of this case in the amount of $338.93 within 30 days of this hearing. THE INTERPRETER: How much is that? MR. GANGULI: $338.93. THE INTERPRETER: $338.93. MR. GANGULI: Within 30 days. Page 67 November 29,2007 And abate all violations by obtaining a Collier County building permit, all required inspections and certificate of occupancy within 90 days of this hearing. THE INTERPRETER: 90 days? MR. GANGULI: Yes. Or a fine of $200 a day will be imposed. THE INTERPRETER: $200 a day? MR. GANGULI: $200 a day will be imposed for each day any violation remains. THE INTERPRETER: 90 days to finish it or $200 a day? CHAIRWOMAN BARNETT: Correct. MR. GANGULI: C.O.'d within 90 days or a fine of $200 a day. Or by obtaining a Collier County demolition permit, all required inspections and certificate of completion, and restoring the structure to its originally permitted condition within 90 days of this hearing or a fine of $200 a day will be imposed for each day any violation remains. And lastly, the respondent must notify code enforcement when the violation has been abated in order to conduct a final inspection to confirm abatement. CHAIRWOMAN BARNETT: Thank you. Comments from the board as far as how they want to proceed? MR. KELLY: I like the county's recommendation. I think the time frame and the amount of the fines are appropriate. MR. MORGAN: Second. MR. KELL Y: That was my comment, but I'll make that into a motion. I make a motion we accept the county's order. MR. MORGAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN BARNETT: Aye. MR. MORGAN: Aye. Page 68 November 29,2007 MR. PONTE: Aye. MR. L'ESPERANCE: Aye. CHAIRWOMAN BARNETT: Any opposed? (No response.) CHAIRWOMAN BARNETT: Stands as the county stated. So that's what she has to do. Does she understand all that? THE INTERPRETER: Yes. CHAIRWOMAN BARNETT: Thank you. THE INTERPRETER: You're welcome. MR. GANGULI: Thank you for your patience. CHAIRWOMAN BARNETT: Is the next case 2007-113? MS. ARNOLD: One, one -- CHAIRWOMAN BARNETT: Three and four? 112 and 113. (Speakers were duly sworn.) CHAIRWOMAN BARNETT: Okay. Are we ready? MR. BALDWIN: Board of County Commissioners, Collier County Florida versus Jobani Gonzalez. We have entered into a stipulation agreement. The undersigned Jobani Gonzales on behalf of himself has represented for the respondent and entered into a stipulation and agreement with Collier County as the resolution of notices of violation of the recurring violation in reference to the original Case No. 2006-110054, dated the 2nd day of November, 2006. The violations noted in the referenced Notice of Violation are accurate and I stipulate to their existence. The violations are of section 2005-44 of the litter, weeds and exotics ordinance and are described as litter consisting of but not limited to vehicle parts, assorted wood, metals, plastics, et cetera. Therefore, is it is agreed between the parties that the respondent shall pay the operational costs in the amount of $301.41 that incurred in the prosecution of this case. As of yesterday, November 28th, 2006 (sic) the violation was Page 69 November 29,2007 abated. And number three, Collier County would give 60 days from this hearing -- from the date of this hearing to pay the operational costs of the 301.41. And we have down here respondent must notify the Code Enforcement when the violation has been abated. But again, I was out at the property yesterday and the violation has been abated. MR. L'ESPERANCE: May I make a note that you meant yesterday, 2007, this year. MR. BALDWIN: Yes. CHAIRWOMAN BARNETT: Do you understand the stipulated agreement, that you have to pay the operational costs? Do we have any questions or comments? MR. LEFEBVRE: Was the operational cost to be paid within-- CHAIRWOMAN BARNETT: Sixty days. MR. LEFEBVRE: Within 60, okay. CHAIRWOMAN BARNETT: And ifthere's no questions or other comments, then I'll close the public hearing and look to entertain a motion. MR. LEFEBVRE: Make a motion to accept the stipulated agreement. MR. MORGAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. L'ESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) Page 70 November 29, 2007 CHAIRWOMAN BARNETT: Thank you. And for his next case? (All speakers were duly sworn.) MR. BALDWIN: Board of County Commissioners, Collier County, Florida, versus Jobani Gonzalez. CEB No. 2007-113. Department No. 2007-051073. The county's entered into a stipulation agreement with Mr. Gonzalez. He's here to represent himself. Respondent entered into the stipulation agreement with Collier County as the resolution of notice of violations for the repeat violation that was previously adjudicated on April 26th, 2007 by the Code Enforcement Board, our reference Case No. 2006-11055. And that was dated the 2nd day of November, 2006. The violations noted in the reference -- referenced notice of violation are accurate, and I stipulate to their existence. The violation is that of Sections 2.02.03, prohibited uses of the Collier County Land Development Code and are described as the owner storing vehicles, dump trucks not belonging to anyone residing on the Estates-zoned property, and owner using the Estates-zoned property for storage in a mechanics shop which is not an allowable use for the zoning district. Therefore, the both parties agreed upon: Number one, pay operational costs in the amount of 455.40 incurred in the prosecution of the case. And two, the respondent would abate all violations. He must cease and desist using the property for storage of vehicles and the mechanic shop. Owner must use this property only as allowed under the Land Development Code. Owner shall comply by removing all stored vehicles or equipment within three business days of this hearing or a fine of $300 a day will be imposed until the violation is abated. B, if the violation is not abated by the end of the third business Page 71 November 29,2007 day, the Collier County Code Enforcement may hire a licensed contractor to remove the commercial vehicles and may obtain assistance from the Collier County Sheriffs Department, and all costs of abatement will be assessed to the property owner, including a daily fine. C, Collier County to impose a fine of $100 a day commencing from July 31 st, 2007 for the repeat violation of prohibited uses of Section 2.02.03, specifically the storage of commercial vehicles, until October 11th, 2007 for a total of71 days. That equals $7,100. But Collier County will reduce the total amount of the $7,100 to a total of $2,500. D, the respondent must notify the code enforcement investigator when the violation has been abated in order to conduct the final inspection to confirm abatement within 24 hours. And E, Collier County will give 60 days from the date of this hearing for the total payment of $2,500 plus operational costs of $455.40, equaling $2,955.40 to be paid. And the violation has been abated as of right now. But the problem with this property was commercial vehicles kept coming back to the property, so I would still like to after three business days go out and conduct my final investigation. CHAIRWOMAN BARNETT: I have a question for Jean. Only because we've never done a case where we've gone without an actual charging document. I mean, I know it's a repeat, but they're going back to their -- have we ever done that before, and is that allowed? MS. RAWSON: We've done several repeat violations. CHAIRWOMAN BARNETT: Repeat violations, yes, we usually up the fines from that time frame but we don't go back to the original date that -- MS. RAWSON: No, we don't. CHAIRWOMAN BARNETT: I don't think we've done that before, have we? Page 72 November 29,2007 MS. RAWSON: We have not. CHAIRWOMAN BARNETT: Are we allowed to do that? Because there's no charging document to -- I mean, there was no case at that point. It was abated and now this is a new case. So there was no standing case. MS. RAWSON: I understand. I think what I heard him -- the inspector just say, that the violation has now been abated. CHAIRWOMAN BARNETT: Again. It was abated before, but they're wanting to charge him $100 a day from July 31 st of 2007 to October 11 th because he was in violation during those time frames. MS. RAWSON: I don't think that they're going to charge him that unless there's another violation. MS. ARNOLD: Let me just -- the statute allows you to go back n once you've adjudicated a case -- and I was asking the investigator for the prior order. So this is a repeat violation. CHAIRWOMAN BARNETT: I know it's a repeat. We usually just up the fines. MS. ARNOLD: Right. But the statute allows for you to go back to the date that the violation reoccurred and charge from that date until it's been abated. I think the recommendation is to -- although you could do that 7,100, the county's requesting that you charge a penalty for the repeat violation of 2,500. MR. BALDWIN: And actually, the case was reopened a month after, after four -- it was adjudicated on 4/26/2007. I received -- well, the county received an anonymous complaint in May, a month later, that the case opened up. But I did not get on the property to inspect the commercial vehicles on the property until 7/31 of '07. And I was on the property with my supervisor and Collier County Sheriffs Department. And we could confirm that the trucks on the property were not belonging to anyone residing on the property. Page 73 November 29,2007 And I have photos from 7/31 to 10/11 of '07 when those vehicles were removed. And that was 71 days. And so it's actually the 71 days from when I could actually prove that the trucks were on the property. CHAIRWOMAN BARNETT: I just wanted to make sure we-- MS. RAWSON: No, that's fine. That's permissible. Did he sign a stipulated agreement to this? MR. BALDWIN: Yes. CHAIRWOMAN BARNETT: Okay. Do we have any other questions? MR. PONTE: Yeah, I don't really understand the rationale about dropping the fine, I guess, from $7,100 to $2,500. What's the reason for this generous negotiated reduction? MR. BALDWIN: The county's reasoning for the reduction is that on 7/31 finally we learned that the owner did not actually live in the house 7/31/07. He was not living in the house, he was living somewhere. Up until that time for the previous year and a half we were told by the people living in the house who were on the deed at one time that he was living in the house and he just would not either call me back or return any of my phone calls. So the county is giving him a little leeway in this. And then from 7/31 he still had until October 11 th to abate the violation, and so those are the 71 days that we were concerned about. MR. PONTE: Thank you. CHAIRWOMAN BARNETT: Any other questions? (No response.) CHAIRWOMAN BARNETT: Okay, ifnot, first let me ask, Jobani, do you understand the stipulated agreement? MR. GONZALEZ: Yes. CHAIRWOMAN BARNETT: Did you understand you're not allowed to do this? MR. GONZALEZ: I'm not living in the house. But it's in my Page 74 November 29,2007 name, so I have to pay. CHAIRWOMAN BARNETT: Okay. No other questions, I'll close the public hearing and move to the board for either discussion or a motion. MR. KELL Y: I make a motion that we accept the county's recommendation. MR. LEFEBVRE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. L'ESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) CHAIRWOMAN BARNETT: Okay. Are we finished with stipulated agreements, I believe? MS. ARNOLD: We're finished with stipulations and agreements. CHAIRWOMAN BARNETT: We've got six hearings. Do we want to get through those and then maybe break for lunch? And then we'll go back to the Blocker case, if that's okay with them? MS. ARNOLD: I think that Patrick's okay with us hearing all the other cases prior to -- MR. WHITE: I agree with that and had asked Michelle on our break, thank you. CHAIRWOMAN BARNETT: Okay, so then I guess the first case we need to hear is Board of County Commissioners versus E's Country Store. MS. ARNOLD: Correct. MS. MARKU: This is in reference to Code Enforcement Board Page 75 November 29,2007 Case No. 2007-96, Department Case No. 2006-120386. For the record, I would like to find out if the respondent is present? MR. SNOW: The respondent was here earlier, he is not here now. CHAIRWOMAN BARNETT: I don't think I understand why. MR. SNOW: We'll clear it up. MS. MARKU: The respondent and the board has received a packet of evidence and I would like to enter the packet of evidence as Exhibit A. MR. LEFEBVRE: Make a motion to accept the package. MR. PONTE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. L'ESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) MS. MARKU: Violation of Ordinances 04-41, Collier County Land Development Code, as amended, Sections 5.06.04(C)(8)(B), 5.06.04(C)(8)(C), 5.06.04(C)(8)(D) and 5.06.04(C)(8)(E). Description of violation: Sign installed without obtaining proper permits, and did not obtain all inspections and CO, certificate of completion, within 60 days of after- the-fact permit issuance. Location/address where violation exists: 14344 Immokalee Road. Folio 76422000065. Name and address of owner/person in charge of violation location: E's Country Store, LLC. Burton Eisenbud, as registered Page 76 November 29, 2007 agent for 21246C Clubhouse Drive, Boca Raton, Florida, 33434. Date violation first observed: December 12th, 2006. Date owner/person in charge given notice of violation: April 7th, 2007. Date onlby which violation to be corrected: April 30th, 2007. Date of reinspection: August 10th, 2007. Results of reinspection: The violation has been abated. The respondent has also paid the operational costs incurred in the case. MS. ARNOLD: I just want to correct that at the time, the August 10th '07, the violation remained, but the last reinspection was when? Yesterday? MR. SNOW: Yes, ma'am. MS. ARNOLD: Yesterday, September 28th (sic), and at that time the violation was abated. (All speakers were duly sworn.) MR. SNOW: For the record, Investigator Kitchell Snow, Collier County Code Enforcement. We request that a finding of fact that there was a violation on the property issued. This was a sign without a permit. They were required to get all inspections through certificate of completion within 60 days of permit issuance. The permit was issued on 5/23 -- I'm sorry, 5/30/2007. The CO came at 10/10/2007, so there were a little bit past their time frame. He did come in, they have complied. The violation is abated. They have paid operational cost. And I guess Mr. Eisenbud didn't feel he needed to be here anymore from that, so that's where we're at. CHAIRWOMAN BARNETT: Thank you. Any questions? (No response.) CHAIRWOMAN BARNETT: Ifnot, close the public hearing, look for a finding of fact. MR. KELL Y: I'll make a motion that a violation did exist. MR. LEFEBVRE: Second. Page 77 November 29, 2007 CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. L'ESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) CHAIRWOMAN BARNETT: And as there are no fines incurred because operational costs have already been paid, that concludes it. MR. SNOW: Thank you. CHAIRWOMAN BARNETT: Thank you. The next one would be Board of County Commissioners versus Emma Houston. MS. MARKU: This is in reference to Code Enforcement Board Case No. 2007-114. Department Case No. 2007-07-0595. F or the record, I would like to ask if the respondent is present? The respondent is present. (All speakers were duly sworn.) MS. MARKU: The respondent and the board is in receipt of packet of evidence and I would like to enter the packet of evidence as Exhibit A. CHAIRWOMAN BARNETT: I have a motion? MR. PONTE: Move to accept. MR. DEAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. Page 78 November 29,2007 MR. L'ESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) MS. MARKU: Violation of ordinances 2004-41, as amended, the Collier County Land Development Code, Sections 4.02.01(A), Table 2.1, 1O.02.06(B)(1 )(A), 1 0.02.06(B)(1 )(E), 1O.02.06(B)(1 )(E)(I), and Sections 105.1 of the Florida Building Code 2004 Edition. Description of violation: Two mobile homes on property which are approximately 18 to 24 inches from the rear property line in violation of setback requirements. Also, both mobile homes have been illegally converted from single-family units to multi-family without proper permits, and both mobile homes also have additions which are unpermitted. Location/address where violation exists: 415 South Third Street, Immokalee, Florida. Name and address of owner/person in charge of violation location: Emma Houston, P.O. Box 1275, Immokalee, Florida. Date violation first observed: July 18th, 2007. Date owner/person in charge given Notice of Violation: August 8th, 2007. Date on/by which violation to be corrected: September 21 st, 2007. Date of reinspect ion: September 21st, 2007. Results of reinspect ion: No corrective action taken. For the record, I would like to state that a couple days ago I spoke with Ms. Houston and she requested a continuance of the case, and I stated that due to not being sufficient time and timely manner I could not accept that continuance. At this time, I would like to turn the case over to investigator John Santafemia. Page 79 November 29,2007 MR. SANT AFEMIA: For the record, John Santafemia, S-A-N-T-A-F-E-M-I-A, Property Maintenance Specialist for Collier County Code Enforcement. MS. ARNOLD: I don't know if the board before going through this wants to hear why Ms. Houston wants to do a continuance. Because she approached me out in the hall so -- CHAIRWOMAN BARNETT: Actually, she wasn't granted the right to one. MS. ARNOLD: Well, I think you can consider one here. We just couldn't do it -- CHAIRWOMAN BARNETT: Through your channels? MS. ARNOLD: Right. MR. LEFEBVRE: We didn't accept it on the last case, which, same situation, there was a request for continuance, and -- MR. L'ESPERANCE: I think we should still hear her request, though. MS. RAWSON: I think what happened on the last case, there was no objection because the person was here. I think they can't accept the continuance unless they get it five days in advance, in all fairness to you. But we have people here that come and stand before you and say please give me a continuance and you grant them. So I think you should probably hear her. CHAIRWOMAN BARNETT: I'll go ahead, John, before you start, and we'll go ahead and see what she has. MS. HOUSTON: Thank you. I'm put in a position that not only am I put into, but I have met the code enforcement at my place because of a tenant. And she was three months behind in rent and she called the code enforcement. And at that time I just happened to be on the premises when he checked her house. And that's when I was -- you know, with him. And it was weeks after that I got a paper after he give me the things to Page 80 November 29,2007 correct, I went ahead and did it, which went into about 4,000 and some dollars of my money, which -- you know, personal money. And then when it come to this, I had like that case confusing also with a lot of paperwork with this case and another case which was in Fort Myers, all because of the divorce that I have this property. I didn't do this, but I'm accused of this. And I did not know that the hearing that I'm attending today was at this impact. I got to sit with him today and find out, you know, about the setback. I know he said that I was not -- you know, didn't have a permit. So then I needed representation, and the papers that I have did not do any measurements or whatever because I'm not familiar with these things. So then I did not -- the person that was supposed to come this morning, they could not come because they didn't have coverage at their office. So I am in a position. In have to go on with this, I must, but I am not ready. But that's what I'm saying this morning. And I got into this through a divorce, and this was part of what the judge give me, because it was not agreement. And I'm knowledge about now that these things are not permittable. This is my inheritance of my divorce, why I'm standing here today. CHAIRWOMAN BARNETT: So in giving you a continuance, what is that going to allow you to do? MS. HOUSTON: It allows me to get some legal representation and get some checking back and measurements and to make sure that I am knowing what I'm doing. Because right now I do not know what I'm doing, okay. And I'm not -- and I don't have any representation. CHAIRWOMAN BARNETT: What's the county's stance for delaying this until January? MR. SANT AFEMIA: Well -- CHAIRWOMAN BARNETT: And allowing her to get legal representation? MR. SANT AFEMIA: I don't necessarily oppose a continuance. I Page 81 November 29, 2007 understand her situation. She does have several issues. This case was actually brought to my attention through an investigation into a property maintenance minimum housing issue. So she does have a lot of things going on this property. Where I kind of part company with her a little bit is that she has had a lot of time already to work on this problem, to start something on this problem. I know you got a copy of my Notice of Violation in your packet. If you look at it, the supplementals are very specific about what she needs to do. The first line in my order to correct states that she needs to hire a licensed professional to help her with this problem. She has done -- to my knowledge has done none of that. She did inform me today that she did hire somebody, a contractor, but -- and there was some confusion about what case she was working on. My concern is that if you give her a continuance that nothing's going to come of it. But it is your choice and I don't necessarily oppose it. MS. ARNOLD: My request is that because there has been an issue with Ms. Houston picking up her mail, so if you do get notice from the post office that you have mail from the county, if you could go ahead and do that. And I would request that notice be waived for the next meeting so that we don't have an issue with future notice. CHAIRWOMAN BARNETT: Any other questions, comments from the board? MR. PONTE: I don't see we have any option whatsoever. If someone requests legal representation, they must be granted. CHAIRWOMAN BARNETT: I'll entertain a motion then for a continuance until the January meeting, with the stipulation that you waive your right to notice, which means you know you have to be here. MS. HOUSTON: Yes, I will. Page 82 November 29,2007 And may I add, I have stayed in Collier County for over 40 years, and I have had notices, and I always show up and am responsible. CHAIRWOMAN BARNETT: I'm just letting you know that we won't be sending you a notice. We're just telling you right now that if we grant this and vote on it, that you will have your continuance and it will be in the January meeting. MR. LEFEBVRE: Which is what day? MS. RAWSON: 24th. CHAIRWOMAN BARNETT: The 24th of January. MR. PONTE: And at a different location. CHAIRWOMAN BARNETT: Right, it will be at the courthouse, I believe. MS. ARNOLD: It will be downtown. CHAIRWOMAN BARNETT: So we have a motion. Do I have a second? MR. DEAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. L'ESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? MR. LEFEBVRE: Opposed. CHAIRWOMAN BARNETT: The next case would be Board of County Commissioners versus Stanley Fogg, Jr. and Theresa M. Fogg. MS. MARKU: This is Code Enforcement Board Case No. 2007-115, Department Case No. 2007-040776. F or the record, the respondent is present. The respondent and the board were sent a packet of evidence and I would like to enter the packet of evidence as Exhibit A. Page 83 November 29,2007 CHAIRWOMAN BARNETT: Entertain a motion. MR. LEFEBVRE: Make a motion to accept. MR. PONTE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. L'ESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) (All speakers were duly sworn.) MS. MACALISTER: For the record, I would just like to add that my name is Colleen MacAlister, and I'm here today as representative for Mr. Fogg. We'll both be speaking this morning. Madam clerk, my name is C-O-L-L-E-E-N, M-A-C-A-L-I-S-T-E-R. And as I came in late, I apologize that we don't have an additional supplemental packet for you. MS. MARKU: Violation of ordinances 2004-41, as amended, Section 2.02.03 of the Collier County Land Development Code. Description of violation: Sheds being sold on agricultural zoned property. Location/address where violation exists: 10270 Immokalee Road, Naples, Florida, 34120. Name and address of owner/person in charge of violation location: Stanley Fogg, Jr. and Theresa M. Fogg, 6151 Everett Street, Naples, Florida, 34112. Date violation first observed: April 23rd, 2007. Date owner/person in charge given Notice of Violation: June 19th, 2007. Page 84 November 29, 2007 Date on/by which violation to be corrected. July 19th, 2007. Date of reinspection: July 19th, 2007. Results of reinspection: Violation remains. At this time I would like to turn the case over to Code Enforcement Investigator Michelle Scavone. MS. SCAVONE: For the record, Collier County Code Enforcement Investigator Michelle Scavone. This case is in reference to Department Case No. 2007-04-0776. Violation of the Ordinance 2004-41, as amended, Section 2.02.03 of the Collier County Land Development Code, selling of sheds on agriculturally zoned property. This case was started as an anonymous complaint on March 9th, 2007 for displaying sheds on the front property off of Immokalee Road and should not be displaying anything. April 23rd, 2007, a site visit was made. It was observed that sheds were being displayed on the agriculturally zoned property, approximately 15 or more. Extensive research was done and the owner was contacted. Mr. Fogg admitted the sales of the shed and insisted that he could sell them on his agriculturally zoned land. It was expressed to Mr. Fogg that he would need a zoning verification letter to clarify land use, and time was granted for him to get the verification letter. June 19th, 2007, still no letter had been obtained, so personal service of the Notice of Violation was served to Mr. Fogg at the Immokalee Road address. June 22nd, 2007, a copy of the verification letter was obtained. And I'd like to submit that into evidence. MR. KELLY: Make a motion we accept the packet. MR. LEFEBVRE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. November 29,2007 MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. L'ESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. MS. SCAVONE: In that letter, it was concluded by Ross Gochenaur, the planning manager of the zoning and land development review department, that regarding the sale of prefabricated sheds as an accessory use to Fogg's Retail Nursery, the sale of prefabricated sheds is not considered a valid accessory use to the principal use of a retail plant nursery and is therefore prohibited on the property, therefore, not to be considered an accessory to the retail plant nursery. September 10th, 2007, I obtained some pictures, and would like to enter them into the evidence as County Exhibit B. MR. KELLY: I make a motion we accept the Exhibit B. MR. DEAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. L'ESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) MS. ARNOLD: I think that would be C. The second one was B and then this is C. MS. SCAVONE: Okay. The first picture is just of the sign showing that it's Fogg's, and that sheds are that way, the display of the sheds. The second picture is the sheds on the property. And the third is a Page 86 November 29,2007 different angle of the sheds on that same property. As of this present date the violation remains. And I would like to enter into evidence the County's exhibit for the last picture. Are we on D now? CHAIRWOMAN BARNETT: Do I hear a motion to accept the packet? MR. KELLY: Motion to accept. MR. LEFEBVRE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. L'ESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) MS. SCAVONE: The sheds are still for sale on the agricultural zoned property in violation of Collier County Land Development Code. MR. L'ESPERANCE: Madam Chair, I'm going to recuse myself from voting on this particular case. The counsel is involved with a legal issue that I'm also involved in. So I'm going to recuse myself from voting. CHAIRWOMAN BARNETT: That's fine. You'll have to get with Jean to get a paper that you need to fill out and then you return it, I believe, to Cherie'. Okay. Ready to hear from you. MS. MACALISTER: Thank you. I think part of the issue here is the interpretation of the Land Development Code. When Mr. -- and I apologize in advance in slaughter this gentleman's name -- Mr. Page 87 November 29,2007 Gochenaur issued his letter, I think he took some rather casual-- he chose a rather casual definition of the retail sales ordinance section of the Land Development Code. What the code actually says under retail plant nurseries subject to the following conditions is: Retail sales shall be limited primarily to the sale of plants, decorative products, such as mulch or stone, fertilizers, pesticides and other products and tools accessory to or required for the planing and maintenance of said plants. Mr. Fogg's position is that storage sheds are an integral part of the maintenance accessories to any plant maintenance regime. I don't have statistics on how many sheds are sold for other purposes in Collier County but my guess is most of them house mulch, dirt, rakes, et cetera. I think the other thing about the letter is that he takes the interpretation that they are intended for much more than general use. Well, a lot of agricultural products have multiple uses. And again, he says that sheds are not mentioned. Well, if you look at the Land Development Code ordinance itself, neither are rakes, neither are hoes, and yet no one would take issue with the fact that hoes and rakes are accessories or other products necessary to maintenance of plants in agricultural use. I have asked the county for any precedent that would support an interpretation that sheds are a prohibited use. I would also point out that the Land Development Code, where it wants to prohibit something, has specifically prohibited it, namely, the sale of large power equipment, such as lawn mowers, tractors and the like shall not be permitted in association with a retail plant nursery in the rural agricultural district. So where the commissioners chose to limit the application, they have done so specifically. I think that in this particular case the planning department simply took a position that because it wasn't dirt and it wasn't mulch, it wasn't an appropriate item for sale in a retail agricultural environment, Page 88 November 29, 2007 without any real fundamental justification for the position other than well, we just don't think it is. And I would suggest that, as I said, most storage sheds in Collier County house rakes, tools, hose, dirt, mulch and pots for plants. We have some photos -- and again, I apologize that we had them late -- that Mr. Fogg took. And they show-- MR. FOGG: You want me to just show them all that? MS. MACALISTER: Yeah, why don't I let him -- CHAIRWOMAN BARNETT: First get a motion to accept your pictures as your first exhibit. MR. DEAN: Motion to accept. CHAIRWOMAN BARNETT: But I think the county wants to look at them first, right? (Speaker was duly sworn.) MR. DANTIN!: I might object to the -- what are the pictures of? MR. FOGG: They're pictures of sheds used in an agricultural operation, including my own. MR. DANTINI: Not the sheds on your property? MR. FOGG: One of the -- yes, two of them are on my property. And then I showed some examples of other nurseries and agricultural operations right in the local area that also have sheds also. MR. DANTINI: I object to the pictures, because they don't represent the sale of the sheds from his property. It has -- MR. FOGG: They represent the evidence that a shed is an accessory use to agricultural operation. That's what they -- CHAIRWOMAN BARNETT: I'll note your exception, but we have a motion on the floor. I believe there was one. MR. DEAN: I made the motion. CHAIRWOMAN BARNETT: He made the motion. We need a second to accept the packet as their -- MR. DANTINI: I'm sorry. CHAIRWOMAN BARNETT: Do I have a second? Page 89 November 29,2007 MR. LEFEBVRE: I make the second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) CHAIRWOMAN BARNETT: Okay. We will note your exception. MS. MACALISTER: I might point out to the board that Mr. F ogg has been a retailer on Immokalee Road for 20 years, 10 years in another location on Immokalee Road and 10 years in this location, without any code violations. He made a business decision that sheds were an appropriate item to sell to customers that he's selling plants, rakes, mulch and other agricultural plant products to. And he made that decision based on the experience that that is what most people buy a shed for. And I think the county has sort of stepped in here and decided to define business purposes of something that is a retail operation that is allowed under Land Development Code. I might also say that I think the operative word in the Land Development Code is maintenance of said plants. And I think there's no doubt that sheds are an integral part of the maintenance of plants that you buy in any setting. MR. FOGG: I'd like to give a couple of examples today, in may. MR. L'ESPERANCE: Speak into the microphone more directly, please. MR. FOGG: I'd like to give a couple of examples of that, in may. Page 90 November 29,2007 The Collier County agricultural extension has two sheds or outbuildings. The Florida Department of Agriculture on Randall has three sheds on their property, zoned -- these are agricultural operations. Pelican Nursery has sheds, Ray's Lawn and Gardens has a shed. A lot of operations, I have sheds for my operation. It's a bona fide accessory. And that's my point. It's definitely a bona fide accessory. It does not state anywhere in the law that a shed is not. And that's -- MR. DANTINI: May I intervene on that one? First of all, I don't believe that they were selling their sheds on their properties; that they had placed them on there, but they weren't for sale. The second thing, the county does not -- did not just pick something out of the sky and say the sheds aren't part of this -- the problem here, it says under the standard industrial classification code on No. 5211 that prefab sheds are a building -- buildings including sheds are identified under the SIC Code 5211 that are sold under lumber and other building material dealers. And it doesn't have anything to do with nurseries. And that's a Bible they go by as far as land use on a lot of their decisions. MS. MACALISTER: I am not aware, is that incorporated by reference into our Land Development Code, the standard industrial classifications? MR. DANTINI: That is something that they use for reference. MS. MACALISTER: I understand that. But is it technically legally part of our Land Development Code as a basis for making decisions under our Land Development Code? MR. DANTINI: I'm not a planner so I can't answer that. MS. MACALISTER: I'm just not aware that it is, so I'm not aware how relevant that classification is to the discussion here. I think we need to look to the language that we have before us that was Page 91 November 29, 2007 provided by the county. MS. RAWSON: You've got to look at the statute as it's written, the ordinance as it's written. MR. LEFEBVRE: When Mr. Ponte gets done with that letter, can I please review that again? MR. FOGG: If I may, we're under the agricultural ordinance, not industrial ordinance. MR. DEAN: Can I ask one question? Are some of these sheds permanent buildings? MR. FOGG: No. MR. DEAN: None of them are permanent? MR. FOGG: On my property I have two permanent sheds which I'm using myself. The other ones are not permanent. They're loaded on a truck and they're sold places like I was describing. CHAIRWOMAN BARNETT: The pictures that he showed us of the other nurseries are permanent structures. MS. MACALISTER: If you would like the precise language of the statute to look at -- ordinance, I have it here. CHAIRWOMAN BARNETT: Yes, please. Could I have that as MR. KELLY: Make a motion we accept the Exhibit B from the respondent. CHAIRWOMAN BARNETT: Do I hear a second? MR. LEFEBVRE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. L'ESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Page 92 November 29,2007 MR. DANTINI: We have no objection. MS. SCAVONE: May I -- I just wanted to quote in the letter -- I don't know if everyone has gotten a chance to read it or not -- that it says, such prefabricated buildings are not directly related to growing and maintaining plants, and although they may be used for storage of tools and equipment related to growing and maintaining plants, they are not intended for much more of general use. So therefore, their sales would not be considered an accessory use to retail plant nursery. MS. MACALISTER: And of course that is precisely what I just took issue with, which is that the code doesn't require that they be directly related, it requires that they be an accessory to. And that was why I said I thought that the interpretation of the actual ordinance was really casual by the planning department. MS. ARNOLD: Can I just interject to something here? If there's a question with regard to the written interpretation that's been presented, there is a process afforded to the public to request a formal interpretation, and then if they disagree with that interpretation, it's appealable to the Board of County Commissioners. I don't know if it's correct for the Code Enforcement Board to be interpreting the code. It's left to the zoning department to do that, and that's the process that exists currently. MS. RAWSON: That's precisely what you're being asked to do. Ms. MacAlister's legal argument is that basically that that's the wrong interpretation of the statute, that the statute doesn't specifically prohibit this. In other instances when they mean to prohibit something, they say it. This is a legal interpretation of an ordinance, which is really probably beyond your purview. You can't really find that there's a violation existing unless you are sure what the statute means. CHAIRWOMAN BARNETT: Correct. So -- MS. RAWSON: And I don't know that you can be the ones to interpret the statute without some more -- Page 93 November 29,2007 CHAIRWOMAN BARNETT: It says products, but it doesn't specify what those products are, so -- MS. RAWSON: I didn't really know there was this process that you could do. I think Ms. MacAlister said she asked for precedence and apparently didn't get any. But I didn't realize that there was a process by which the county could help give you that interpretation. CHAIRWOMAN BARNETT: We can't make a finding because we can't interpret the -- MS. RAWSON: Right. Unless Mr. Wright's here and wants to weigh in. MS. MACALISTER: Nonetheless, we are here on a code enforcement violation. So Mr. Fogg is a little bit between the proverbial rock and a hard spot here. CHAIRWOMAN BARNETT: We understand that, we're trying to wrestle with it ourselves. MS. ARNOLD: Staff requested what they got and presented for you, and they're acting upon what they received from the zoning department. If there was an objection to that, then the respondent has the ability to request a formal interpretation. I'm going to have to kind oflook to Jeff to see whether or not the board asks for a formal interpretation, how that whole thing works out. MS. SCAVONE: I just wanted to add that also in that letter that was received it says that if they wish to contest this decision they may apply to Susan, the zoning director for an official interpretation of the code. MS. ARNOLD: Right. And that's the process they should have taken if they object to that. MS. MACALISTER: For $1,500. That part of the sentence was left out. CHAIRWOMAN BARNETT: I'd like to get from Jeff some assistance here. MR. WRIGHT: Thank you, Madam Chairman. I'm not aware of Page 94 November 29,2007 any provision that allows for this board to ask for a request for interpretation. That's not to say one doesn't exist. I'm just not aware of one. I've never seen it done in practice either. I think that the process that Michelle has just explained is the norm, and I know that that is expressed in the code. Without knowing absolutely for certain, my opinion would be that we would defer to the language that Michelle just quoted, which says if they have a problem with this interpretation, they go to her to follow up on that. So I'm not aware and I'm not confident that there's any provision that would allow direct request from this board to have Susan Istenes issue her interpretation in response to your request. CHAIRWOMAN BARNETT: I'm kind of caught between -- MS. MACALISTER: I would like to say -- CHAIRWOMAN BARNETT: -- an issue myself -- excuse me. MS. MACALISTER: I'm sorry ma'am. CHAIRWOMAN BARNETT: An issue myself because our attorney is telling us that technically their attorney is asking us to interpret the Land Development Code -- MS. ARNOLD: That's not what you do. CHAIRWOMAN BARNETT: -- and we can't do that. But without something -- we have the zoning interpretation, which mayor may not go along with how they're feeling. I'm not sure how we can rule. MR. WRIGHT: Well, I think that if they had a subsequent redetermination from the zoning director, they could bring that back to you and make their case and you would have jurisdiction to hear that. CHAIRWOMAN BARNETT: So we would just have to go by what we have in front of us from the -- MR. WRIGHT: Exactly. CHAIRWOMAN BARNETT: Okay, thank you. MS. MACALISTER: In might add, however, it seems to me that Page 95 November 29, 2007 initially code enforcement interpreted the Land Development Code and cited my client, so we're now in front of the Code Enforcement Board that says that it's apparently deciding they don't have the authority to rule on the interpretation because we absolutely have a code violation here that says he's -- CHAIRWOMAN BARNETT: We have a ruling from the zoning department, who is the department that has the right to interpret the Land Development Code, as far as I'm understanding. What we're being asked to do by the county and what I am being instructed to do by the county's attorney and our attorney is to utilize that information to make our decision. If you disagree with that, you have the right to go back and ask the zoning department, pay the $1,500 fee, I understand, for the more formal interpretation. And if at that time it comes back in your favor and that we misinterpreted through what information we were given, you can come back to us and we will rehear it. That's what I am being instructed to do at this time. If that is the privy of the board. We haven't gotten that far. MS. MACALISTER: I understand. So what you're telling me is really your authority only extends to an up or down on the planning director's letter; is that correct? CHAIRWOMAN BARNETT: Yes. Because I cannot -- we cannot as a board interpret the Land Development Code. MS. RAWSON: There's another alternative. If you find a violation exists because you believe the interpretation of the zoning board, knowing that you don't really have the power to interpret the statute, she can appeal and the court may interpret the ordinance. CHAIRWOMAN BARNETT: Okay. And that wouldn't be the $1,500 fee if you'd let the court do it. MS. RAWSON: No, it might be more. CHAIRWOMAN BARNETT: Okay. Do we have any questions? MR. LEFEBVRE: Can I look at the LDC, please. Page 96 November 29,2007 CHAIRWOMAN BARNETT: Sure. I'll pass both the letter and that back. MR. DANTINI: May I ask Mr. Fogg a question, please? MR. FOGG: Sure. MR. DANTINI: Is Steve LaRusso -- is he an employee of yours? MR. FOGG: He is my subcontractor selling sheds for me. He's my vendor. He represents Ted's Sheds as my vendor, yes. MR. DANTINI: Thank you. CHAIRWOMAN BARNETT: Do you have any questions? (No response.) CHAIRWOMAN BARNETT: If not, then I'm going to close the public hearing and open it up to the board for discussion. MR. KELL Y: I'll make a motion that a violation does not exist. CHAIRWOMAN BARNETT: Do I hear a second? MR. DEAN: I'll second that motion. CHAIRWOMAN BARNETT: Discussion? MR. PONTE: I'd like a little discussion on that, yes, because the photographic evidence that I saw and that was presented shows sheds, a couple of items that look like playhouses, or dollhouses. I didn't see any agricultural equipment or mulch or -- I didn't see anything there related to nurseries. I think there is a violation, just based on common sense of what I was looking at in the photo evidence. MR. KELL Y: To answer why I don't think a violation exists, I believe that the attorney's suggestion that it was originally interpretated (sic) in a loose fashion from the planning department here, I tend to agree with. And I think that sheds are directly related to mulch, plants, nursery items that are allowed to be sold in this property the way it's zoned. MR. PONTE: I think that's true, except these are cosmetic sheds. The ones that we saw in the photo evidence have windows and things Page 97 November 29,2007 like that. You don't put windows in a shed where you're going to store mulch. MR. KELLY: Well, actually, yeah, that's actually a feature of them. And if there was a better picture of the property zoomed back further, you would see not just bags of mulch, but entire piles larger than the size of buildings that are sold in bulk. So I think this is a bulk, if you will, kind of a wholesale nursery facility, who into this pretense should be allowed to sell sheds as well. CHAIRWOMAN BARNETT: Okay, I have a motion on the floor and a second. Any other discussion? (No response.) CHAIRWOMAN BARNETT: All those in favor? MR. DEAN: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. All those opposed? MR. MORGAN: Aye. MR. LEFEBVRE: Aye. MR. PONTE: Aye. MR. LEFEBVRE: We have a split decision. CHAIRWOMAN BARNETT: A split decision. MS. ARNOLD: Mr. L'Esperance, did you-- MR. L'ESPERANCE: I recused myself. MS. ARNOLD: Oh, that's right, I forgot about that. MS. RAWSON: A split decision is a denial. CHAIRWOMAN BARNETT: Is a denial, correct. So that means that the plaintiff has won. MS. RAWSON: Correct. MR. KELLY: Correct, the violation doesn't exist. CHAIRWOMAN BARNETT: The violation does not exist. MS. MACALISTER: Thank you. MS. ARNOLD: Is that correct? Because a split decision is a Page 98 November 29,2007 denial of the motion at hand. They have the ability to -- MS. RAWSON: I think it's in our rules, isn't it? MS. ARNOLD: -- they have the ability to do additional motions if they want to. CHAIRWOMAN BARNETT: Let me see. We happen to have our rules with us today. MS. RAWSON: No, that's right. Michelle's right, you can make another motion. MS. ARNOLD: Because it's -- no n CHAIRWOMAN BARNETT: It's just a dead motion. MS. ARNOLD: The motion was that there was no violation, which fails. So you don't go away with no violation if there was no approval of the motion. CHAIRWOMAN BARNETT: This is just no approval of the motion. So entertain another motion. MR. KELL Y: We probably need more discussion to change one person's mind, at least. MR. LEFEBVRE: Can I look at the LDC once again? CHAIRWOMAN BARNETT: I'm just thinking-- MS. ARNOLD: Can I ask the question, because Mr. Kelly did explain why he came to the conclusion, which seemed like an interpretation of what the zoning should say, or what the regulations should say. CHAIRWOMAN BARNETT: The public hearing was closed, though, Michelle. MR. KELL Y: I will comment, though, for the general benefit, that although I can't interpret the code, I can interpret the letter that was being used, I guess, was my rationale behind it. MR. PONTE: But the letter says the sale of prefabricated sheds is not considered a valid accessory use to the principal use of a retail plant nursery and therefore prohibited on the property. Page 99 November 29, 2007 CHAIRWOMAN BARNETT: Accessory ofsa1e of plants, stating that such sales limited primarily to the sale of plants, decorative products, tools, accessories to -- MS. ARNOLD: Can you speak into the mic? CHAIRWOMAN BARNETT: Sorry. It says here the Land Development Code allows certain retail sales as accessory to the sale of plants, stating that such sales shall be limited to the sale of plants, decorative products and tools accessory to or required for the planting and maintenance of said plants. As you note in your letter, prefabricated sheds are not mentioned. If you pull out the LDC code -- if you'll give it to me, please -- it actually states that retail plant nursery subject to the following conditions. Retail sales shall be limited primarily to the sale of plants, decorative products such as mulch, stone, fertilizers, pesticides and other products, and tools accessory to or required for the planting or maintenance of said plants. MR. PONTE: May I just direct your attention to that paragraph that I underlined. CHAIRWOMAN BARNETT: I know, I'm going on. It states -- it goes on to state that prefabricated sheds are not mentioned. Retail sales of prefabricated buildings including sheds are identified under SIC Code 5211, lumber and other building material dealers. Such prefabricated buildings are not directly related to growing and maintaining plants. And although they may be used for storage of tools and equipment related to growing or maintaining plants, they are intended for much more general use. The sales would therefore not be considered accessory to a retail plant nursery. MR. KELLY: Shall I explain a little more why? CHAIRWOMAN BARNETT: Sure. MR. KELLY: If you look at the letter from the zoning department -- I'm sorry, the department of zoning and land, there's a Page 100 November 29,2007 statement that sheds are not considered accessory use, but yet under that it goes on to cite the zoning ordinance which does include those items necessary for planting and maintenance of said plants. So I believe in the letter itself there's a contradiction. I believe that a shed is necessary to house tools and equipment and fertilizers in order to maintain those plants. And then I go to the zoning code itself and it says planting and maintenance of said plants. That gave me the two bullets that I used to come up with the idea that they would be allowed. MR. LEFEBVRE: Can I see the LDC again, please. It says in Paragraph A in 2.03.01 that uses that are generally considered compatible to agricultural uses that would not endanger or damage agriculture, environment, potable water or wildlife resources to the county are permissible under conditional uses. Are we saying conditional uses -- conditional use on the next page under section two, it says accessory uses, uses and structures that are accessory and incidental to uses permitted as of right in a district. Are we saying that these -- are we saying that this needs a conditional use? MR. KELLY: I would say that it's not contradictory to the way that they're zoned and what their land use is allowing. MR. LEFEBVRE: But I'm wondering if this needs a conditional use. CHAIRWOMAN BARNETT: I think we're trying to interpret the Land Development Code. MR. KELLY: Yeah. And the letter also cites an occupational license. And is it possible that maybe the occupational license doesn't include sheds, yet they're trying to tie that into mounting a case against them. MR. LEFEBVRE: Well, it states that one of the conditional uses would be the sale of potentially what -- a shed. So with that being said, am I correct that there's a process to get a conditional use or is Page 10 1 November 29,2007 that just granted under the LDC? MS. ARNOLD: Do you want us to answer that or -- MR. WRIGHT: Typically there would be a process for that. In may just point out a couple of things. The zoning verification letter was in direct response to a request from the investigator that was made in April, a couple of months before. And in that letter from the zoning director, her responses are specific to this situation. And if you look at the NOV, it's the selling of sheds on ago zoned property. There's nothing to suggest that they're using these for mulch and storage. They're using them to sell them. And in that instance, the zoning director speaks directly to that. The sale is not considered valid and is prohibited. So I just wanted to clarify that for the record. CHAIRWOMAN BARNETT: Thank you. Okay, we need a motion. MR. PONTE: I'll make a motion that a violation exists. CHAIRWOMAN BARNETT: Do I hear -- MR. MORGAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? MR. KELLY: Aye. CHAIRWOMAN BARNETT: So there is a violation that does exist. Recommendation from the county, please. MS. SCAVONE: The county recommends that the Code Enforcement Board order the respondent to pay all operational costs in Page 102 November 29, 2007 the amount of $331.48 incurred in the prosecution of this case and abate all violations by removing all sheds for sale within 14 days of this hearing or a fine of $250 a day will be imposed until the violation is abated. The respondent must notify the code enforcement investigator when the violation has been abated within 24 hours in order to conduct a final inspection to confirm abatement. CHAIRWOMAN BARNETT: Fourteen days to remove the sheds? MS. SCAVONE: Correct. MS. MACALISTER: May I -- am I allowed to comment on that? CHAIRWOMAN BARNETT: No. Do you want her to? Go ahead. MS. MACALISTER: Thank you, ma'am. We need longer than 14 days to consider the legal options of either appeal directly to the circuit court or perhaps to seek the $1,500 letter to bring back to the board. That would be my only comment at this point. CHAIRWOMAN BARNETT: Thank you. MR. KELL Y: May I comment? CHAIRWOMAN BARNETT: Sure. MR. KELL Y: Given the fact that we originally had a split decision on this, and it is on the borderline and it does need further interpretation, I would like the board to be lenient in the time frame to allow the respondent to possibly seek other alternatives. MR. PONTE: I think that sets a dangerous precedent. Any case that came before us, the person could -- the respondent could then say well, I'd like to seek a little more advice here, so whatever the time frame you've suggested isn't quite sufficient for me to get all of the information that I need for further support to further develop my case. That's a totally different situation. CHAIRWOMAN BARNETT: I'm concerned about 14 days just Page 103 November 29,2007 to be able to find a place to move the sheds to legally -- MR. PONTE: It's not our problem. CHAIRWOMAN BARNETT: -- and remove them. I don't think it's enough time, personally. MR. PONTE: How many sheds are on the property? Didn't look like that many. CHAIRWOMAN BARNETT: There were quite a few in the pictures, I thought. MR. LEFEBVRE: I have to agree with Mr. Ponte. And the reason being is they did have an option already back in June when this letter was written, and the option was to spend the $1,500 and get a more formal result. And they didn't go forward, they waited until today and it's the end of November. And I think 14 days is a little bit short. I think maybe a little bit more time possibly to move them. But to go through the hoops to go with all the legal avenues, I think that would be extending it way too far. MR. KELLY: I believe it's absolutely reasonable to assume that they didn't decide to go that route, pay the $1,500 and get the interpretation was because they did have a very valid argument. And it was enough of an argument to sway half of this board the first time around. I think that 14 days is obviously too soon in order to move those sheds anyway, so I would agree with you there. But I would ask for maybe a little more time to try some kind of review process. CHAIRWOMAN BARNETT: They can always come back to us as well with extenuating circumstances. So -- are there any questions to the participants? (No response.) CHAIRWOMAN BARNETT: Ifnot, I'll close the public hearing again and move back to formulating a motion. MR. KELLY: Can I take a stab at it? Page 104 November 29,2007 CHAIRWOMAN BARNETT: Sure. MR. KELL Y: You guys can yell at me if you like. That the respondent pay operational costs of $331.48 within 30 days of the date of this hearing. Two, remove all sheds within 120 days or a fine of $250 a day will be imposed for each day thereafter the violation is not abated. And three, notify code enforcement within 24 hours of abatement. MR. PONTE: 120 days. These are portable sheds designed to be put up and taken down quickly. 120 days to take down a half dozen sheds, I can't go along with that. MR. LEFEBVRE: Yeah, I think 120 days is excessive. MR. MORGAN: I agree with 90 days. MR. KELLY: I'll amend my motion to 90 days for the removal of all sheds. MR. DEAN: I'll second that. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? MR. PONTE: Opposed. MS. ARNOLD: Can we hear the full order again? MR. KELLY: Pay op. costs of $331.48 within 30 days. To remove all sheds within 90 days or a fine of $250 per day until the violation is abated. And three, notify code enforcement within 24 hours of abatement. CHAIRWOMAN BARNETT: And ifin your legal process you find that that's not enough time, then you have recourse to come back to us and request. MS. MACALISTER: Absolutely. Thank you very much. Page 105 November 29,2007 And thank you, Mr. L'Esperance. CHAIRWOMAN BARNETT: The next case, Board of County Commissioners versus R.P.K. Enterprises of Bonita, Inc. MS. MARKU: This case is in reference to Code Enforcement Board Case No. 2007-121, Department Case No. 2007-070013. F or the record, the respondent is present. (All speakers were duly sworn.) MS. MARKU: The respondent and the board was sent a packet of evidence and I would like to enter the packet of evidence as Exhibit A. CHAIRWOMAN BARNETT: Entertain a motion. MR. KELL Y: Make a motion we accept. MR. PONTE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. MS. MARKU: Violation of Ordinances 04-41, Collier County Land Development Code as amended, Sections 10.02.06(B)(2)(A), 10.02.06(B)(2)(D)(ix), 5.04.05(A)(I), 5.04.05(A)(2), and 2004-58, the Property Maintenance Code, Sections 16(2)(i) and 16(2)(j). Description of violation: Signs without proper permits and banner displayed without proper permits. Location/address where violation exists: 4295 Bonita Beach Road. Folio No. 24470640005. Name and address of owner/person in charge of violation location: R.P.K. Enterprises of Bonita, Incorporated. Attention: Jeffrey Mantz as registered agent, 27567 Grove Road, Bonita Springs, Page 106 November 29,2007 Florida, 34135. Date violation first observed: July 7th, 2007. Date owner/person in charge given notice the violation: August 30th, 2007. Date on/by which violation to be corrected: September 30th, 2007. Date of reinspect ion: October 2nd, 2007. Results of reinspection: Violation remains. At this time I would like to turn the case over to Code Enforcement Investigator Kitchell Snow. MR. SNOW: Good morning. Before we begin, I would like to submit an evidence packet with photographs. And it does have a letter in the back I would like your consideration on. CHAIRWOMAN BARNETT: I'll entertain a motion to accept Packet B for the County. MR. DEAN: Motion to accept Packet B. MR. PONTE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) MR. SNOW: For the record, the respondent has seen the photographs. I have discussed what exactly the evidence details. If you will look that it shows evidence that there were banners, there was legal signage. This property used to be Bonita Beach Bar and Grill. I guess the -- well, I'm sure the business has since left and a Page 107 November 29,2007 new owner moved in there, or a new business owner moved in there. He erected signs, illegal signs. He had banners. He didn't have any permits for anything. I attempted contact several times with him. I left door knockers, I left business cards. He never called me and I really didn't understand why. I attempted several times in the evening to go by and see them, I attempted in the morning, and I exhausted all avenues to try to get in touch with him. I issued a Notice of Violation. Once that was issued and the time expired, I had contact, various contacts with the respondent, Mr. Mantz, and he expressed to me he had the same problem with his tenant, that he wasn't paying his rent, he was not in compliance, wouldn't talk to him. And we were having this discussion, and he was currently trying to get him evicted and move on. But unfortunately the violations continued to remain, and that's why we're here today. The violations, most of them have since been abated. As the Notice of Violation states, we need temporary use permits for the banners that were displayed, and we'll discuss that and my recommendations. But the letter on the back talks about Mr. Mantz and some of the issues that he has in this issue. And the county's a little sympathetic with what happened, but still, the violations were there and the violations were there for quite some time. MR. LEFEBVRE: The first page states that there's a recommendation. Should that be pulled from -- CHAIRWOMAN BARNETT: Urn-hum. MR. LEFEBVRE: Let the record note that the recommendation, which is the first page of the packet, has been pulled. MR. SNOW: And the photographs are current yesterday. There's still a wall sign that has been painted over. We have discussed that. It needs to be painted in a workmanlike fashion, the same color of the structure. Page 108 November 29,2007 He's indicated to me he's doing a lot of work on his own on the weekends and will take care of it as soon as he can. And again, we'll discuss that at a later time. CHAIRWOMAN BARNETT: Mr. Snow, is that all you have? MR. SNOW: Ma'am, yes, ma'am, I'm clear. CHAIRWOMAN BARNETT: Sir, would you like to speak? MR. MANTZ: Yes. My name is Jeff Mantz. My wife and I are the owner of that property under the corporation R.P.K. Enterprises. Last April the former owner of the business, Bonita Beach Grill sold the business, which we had no part of, to Midnight Enterprises, which was the corporate entity that took possession of the business. I executed a lease from them in April, and from the very start had difficulty with the tenant as far as collecting rent. I came by one Monday and found he had painted the building iridescent yellow and then had put -- later on put banners up over the old signs. Code violations came out, I tried to contact him a number of times. And having the lease, I had no right to go on the property and make the corrections myself. Everything -- we went from bad to worse. I finally had to hire an attorney to start eviction proceedings. And I think October 7th, I believe, or November 7th, he finally vacated the premises and then within 12 hours I went and removed the signs. His solution to the iridescent yellow building color was to paint it a better color, but to paint the name of the business on the side of the building. So at the same time I removed the banner, I used Kilz to spray over the old painted-on sign, with the intent I will paint the entire side of the building so it matches one color. As I said, I had no right to go on to the property until he vacated the premises, and so my hands were tied. But as soon as I could access the property, I took care of the problem. CHAIRWOMAN BARNETT: Any other questions? Page 109 November 29,2007 MR. MORGAN: Mr. Snow, what's the present condition of the building? MR. SNOW: The building is vacated. The only-- MR. MORGAN: I mean, the exterior is-- MR. SNOW: The exterior still has, if you'll look on one of the photographs, it's -- looks like it's been whited out on the side where they had Shooters on. Currently that's the only thing here. There is some signage on the property, and we'll go over when I have recommendations about some of the things that we can do on this property, that he's going to have to do, because there is no tenant in there. And the code is very specific about signs and when they're allowed and what you're allowed to do with them. So we can discuss that. But to answer your question, the only thing that's left of the former business is that white out of Shooters. CHAIRWOMAN BARNETT: Any other questions? MR. LEFEBVRE: Yeah, I guess a follow-up to that. So the way -- the status of it being painted in white trying to cover it, is that still a violation? MR. SNOW: Yes, sir. The code states in the property maintenance Code 2004-58, states if a wall sign is removed, it has to be painted in workmanlike fashion to cover any shadowing created by that removal. So once he paints that, then that violation will be abated. MR. LEFEBVRE: Which he has already stated that he's in the process, this was is a process to kill, or to take care of -- I don't know what color the lettering was -- MR. MANTZ: It was very dark. It was a brown on a very light beige building. So I felt the need to put a base coat over first. I used the Kilz. MR. LEFEBVRE: Right, it's almost like primer over a dark color of paint in your house. MR. MANTZ: Yes. But I'm probably going to need to paint the Page 110 November 29,2007 entire wall because unless I can match exactly the old color -- MR. LEFEBVRE: Very unlikely you will. CHAIRWOMAN BARNETT: Any other questions? (No response.) CHAIRWOMAN BARNETT: Ifnot, I'll move to finding of fact. MR. LEFEBVRE: I'd like to make a motion that there is a violation. MR. PONTE: I'll second the motion. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) CHAIRWOMAN BARNETT: Would you like to give your recommendation, please. MR. SNOW: Yes, ma'am, I would. Madam Chair, I would like to read a definition for you from the sign code. When signs -- when a business is no longer there, and if it's got copy on it or doesn't have copy on it, it could be deemed an abandoned sign after 90 days. I would like to read this definition too because this is pertinent to my recommendations. It states: Sign Abandon. Any sign or sign structure expressly installed for the purpose of affixing a sign which bears no sign or copy for 90 consecutive days or more or for a period of 90 consecutive days or more, displays information which incorrectly identifies the business, owner, lessor or principal activity conducted on the site, or Page 111 November 29,2007 which through lack of maintenance becomes illegible or nearly so or in a state of disrepair, signs displaying an Available for Lease or similar message or partially obliterated faces which do not identify a particular product, service or facility shall be deemed abandoned. And the important thing here is there is no copy. If you look on the photographs, there's no copy on them anymore. So I've discussed this with him and he's pretty sure he's going to have a tenant there within 90 days. But if not, then those signs have to come down. My recommendations are as follows: Obtain required permits for signs if attainable or remove within 90 days of the date of the hearing or a fine of $150 a day will be imposed until said signs are permitted or removed. If a wall sign is removed, paint facade in a workmanlike fashion to cover any shadowing created by the removal of said sign. The permit number is to be affixed to the said sign upon CO. This is about the temporary use permits and the banners. And we understand that the tenant was there, but he's also responsible as a property owner. Number two, obtain temporary use permit for the banner displayed on the property from 7/2/07 to 7/15/07 and from 7/17/07 to 7/30/07 within 14 days of the date of the hearing or a fine of $150 a day will be imposed until such time as the permit is obtained. After-the-fact permit fees of two times the amount of the normal permit are to apply. The respondent is to notify the code enforcement investigator when the violation has been abated in order to conduct a final inspection to confirm abatement. The respondent is to pay all operational costs in the amount of 273.28 incurred in the prosecution of this case within 30 days of the date of the hearing. MR. MANTZ: Can I speak? You know, the tenant is the one that applied for the sign. I had nothing to do with that at all and really had Page 112 November 29,2007 no way to control what he did. I guess I just really -- to go -- for me to have to go pull a permit for a sign that I never wanted to do to begin with, I wonder how fair that is. That's my only comment. MS. ARNOLD: Can I just speak to that for a second? It's -- the temporary use permit for banners are applicable to the business, so -- a part of why we generally ask for this type of a corrective action is that if the same business is there, they're not granted additional days beyond what the code already permits. In this case you've heard that that business that obtained the temporary use permit is no longer there. So to penalize the property owner for permits, after-the-fact permits, I think the county's going to withdraw that. CHAIRWOMAN BARNETT: So the after-the-fact permits will be withdrawn. Entertain a motion? Or ask questions? MR. LEFEBVRE: A question regarding the sign removal within or after 90 days. Does that mean the pole and every -- it's the whole structure? MR. SNOW: Down to the ground. And the wall sign too. There's a wall sign up there, sir. So all signage that was permitted before, and I did research on the property, Bonita Beach Bar and Grill did have permits for those signs. Any time you make a change to any sign it requires a new permit. And even if they put them up and had a new tenant move in, they're going to have to repermit anything. The county's concern is it doesn't -- we wanted to make sure that it aesthetically keeps its same value and doesn't run in disrepair. And unfortunately it states 90, it's deemed abandoned and has to be brought to the ground. MR. MANTZ: My question would be, I have some very good tenants I'm going to be leasing it to, I'm very sure of. But with the state of economy, my concern is even in can't find a tenant in 90 Page 113 November 29,2007 days, to pull a very valuable, non-replaceable sign down, that's a rather harsh -- MR. LEFEBVRE: I guess that's what I'm asking, what would be -- is there any alternative? Can he put up a For Sale sign or For Lease sign? CHAIRWOMAN BARNETT: No, because that's what he read in the code, you couldn't. MR. MANTZ: I'll move my business in there before I'll pull a sign down and get a sign permit for the business. CHAIRWOMAN BARNETT: That's an alternative. MR. LEFEBVRE: I mean, because the cost, I would think, to remove a sign and to install a sign, if it's going to be four months, five months -- CHAIRWOMAN BARNETT: That's why he took the time to read us the code before. He's kind of got his hands tied with that. MR. MANTZ: I don't believe that sign could ever be replaced under current codes. That building's been there for a long, long time. MR. SNOW: Well, it was permitted in 2005, so it's after the 2003 sign code, so it meets current code. I don't think that will be an issue. CHAIRWOMAN BARNETT: Hopefully he can get a tenant in within 90 days. If not, he'll do it himself. MR. MANTZ: For sure. CHAIRWOMAN BARNETT: Any other questions? MR. KELLY: One question, Mr. Snow. Does that include the one on the parapet wall or the mansard as well? MR. SNOW: Yes, sir. All the signage has to come, so -- MR. MANTZ: That will be done, I think, by the end of this weekend. That looks terrible. CHAIRWOMAN BARNETT: Any other questions? MR. LEFEBVRE: I make a motion to accept the county's recommendation with the removal of the one section with the after-the- fact permits. Page 114 November 29,2007 CHAIRWOMAN BARNETT: Do I hear a second? MR. MORGAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) MR. MANTZ: Thank you. CHAIRWOMAN BARNETT: Thank you. And Board of County Commissioners versus Horse Creek Partners. (All speakers were duly sworn.) MS. MARKU: This is in reference to Code Enforcement Board Case No. 2007-122, Department Case No. 2005-090022. For the record, the respondent is present. The respondent and the board was sent a packet of evidence and I would like to enter the packet of evidence as Exhibit A. CHAIRWOMAN BARNETT: Entertain a motion. MR. KELL Y: I'll make a motion to accept it. MR. LEFEBVRE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. Page 115 November 29, 2007 CHAIRWOMAN BARNETT: Aye. MS. MARKU: Violation of Ordinance 04-41 as amended, the Land Development Code, Sections 9.03.03(D)(1)(d), 9.03.03(D)(2)(a) plus (b), 9.03.03(D)(3)(c), 9.03.03(D)(5), 1O.02.06(B)(2)(a), and 1 0.02.06(B)(2)( d)(ix). Description of violation: Nonconforming sign erected prior to 1991 and exists beyond the operation schedule regarding conformity to current code and not properly maintained according to code. Location/address where violation exists: 102 Palm River Boulevard. Folio No. 65220000100. Name and address of person/owner person in charge of violation location: Horse Creek Partners, Ltd, Alan T. Schiffman as registered agent, 870 II1th Avenue North, Naples, Florida, 34108. Date violation first observed: August 25th, 2005. Date owner/person in charge given Notice of Violation: October 1 st, 2007. Date onlby which violation to be corrected: October 19th, 2007. Date of reinspection. October 21 st, 2007. Results of reinspection: Violation remains. At this time, I would like to turn the case over to Code Enforcement Investigator Kitchell Snow. MR. SNOW: Please excuse me, Madam Chair. I haven't showed the photographs of what I've got, so I will need to show those to the respondent before we proceed. CHAIRWOMAN BARNETT: Okay. MR. SNOW: I would assume you're looking through my-- MS. ARNOLD: You have to ask -- MR. SNOW: Oh. Could you -- I would like to submit as evidence. I'm sorry. I have photographs and some other evidence. I would like to submit that, please. MR. KELL Y: Are we making a motion then to accept all of it at once, then? Page 116 November 29,2007 CHAIRWOMAN BARNETT: Yeah. MR. KELLY: I make a motion to accept. MR. PONTE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) MR. SNOW: I'll give you all time. This has been a very, very long running case. It concerns a nonconforming sign. I believe we all probably know, it's on Immokalee Road, the Fairways Motel. I think we've all seen it. I've received numerous complaints from citizens from the Palm River homeowners association concerning this sign. If you look at the first page I have, that's -- basically we're talking about the sign, where it's located. That X is where the sign is. And we've heard this case before, so. The photographs are taken yesterday of the sign. As you notice, the sign has a shroud cover on it, which is illegal. It's got no panels in it, I guess they were blown out in the last hurricane. It does look a little better than it has in the past, but it still is not what it should be. If you look at the photographs, the concern about this sign is A, it's too large, it has never been permitted that we know of, and it is a nonconforming sign. And according to code, a nonconforming sign has to be brought up to code by February 1st of2003. I have that listed in your packet. I've also included in your packet a letter. There's been several meetings on this to try to find a solution for the property owners. We Page 117 November 29, 2007 are very concerned about the businesses and how they're maintained and helping them find solutions to their problems. Unfortunately in this case there's been several attempts and variances and everything, meetings, that have gone on since 2005. I want to draw your attention to a letter from Susan Istenes that is one of the sole people within code enforcement, as we talked earlier, or as you heard earlier, that is allowed to interpret code. She's the VOIce. And there was a meeting, as you can see. The meeting attendees were zoning and land development review, Susan Istenes, Code Enforcement Director Michelle Arnold, Marlene Serrano, my supervisor, County Attorneys Jeff Wright, JeffKlatzkow, and the principal planner Nancy Gundlach. And I will read this for you: The primary purpose -- and this is a synopsis of the meeting that was held. The primary purpose of this meeting was to discuss the possibility of how the sign might be made to be a legal sign that is in conformance with the Collier County Land Development Code, LDC. The existing sign must be removed. Must be removed. Because it is not compliant with the Land Development Code. Susan Istenes suggested the parking facilities easement site the existing sign mostly resides on be rezoned to the same RT, or Residential Tourist, as the land that the motel is located. Once the rezoning is accomplished, the petitioner could seek a variance for the dimensional sign requirements such as height and area. If, if, the variance is granted by the Collier County Board of Commissioners, then the petitioner could build a new sign and locate it on the same site as the parking facilities easement. I've also included another synopsis. And this is from Nancy Gundlach, an e-mail from her. I will let you all read this one, it's rather lengthy. It talks about some other things that are involved, how long the case has drawn out, what has happened in the case. Page 118 November 29,2007 This is a nonconforming sign. It has been allowed to exist far too long. In a large process, which we're talking about variance applications, I don't know if you're familiar with how this goes, but basically what happens is you attend a pre-ap meeting. All the people that are involved with this within the county such as landscape, sign, principal planners, everyone attends that meeting. The respondent attends that meeting. They submit for this. It has to go to all the different departments. Once that goes to the different departments, they usually receive a rejection letter in 30 days, that's what we hope. Code stipulates it's got to be quicker than that, but 30 days. Once that goes through, the respondent has six months to submit the correction for that. So technically, this could keep running on and running on and running -- and that's what has happened in the past. This is a nonconforming sign, nonconforming structure that's been allowed to exist for far too long. CHAIRWOMAN BARNETT: Is that all you have, Mr. -- MR. SNOW: Yes, ma'am. MR. HANCOCK: It's not good morning. Good afternoon, Madam Chair, members of the code enforcement board. My name is Tim Hancock with Davidson Engineering. I'm here on behalf of Steven Mirowitz, the owner of Fairways Resort. Also with us is Ms. Judy Battista, the manager of the property. And as previously submitted in accordance with a code enforcement action that you actually withdrew this morning as your first action of business, we do have authorization from Horse Creek Partners to represent them in this matter. The subject property is owned by Horse Creek Partners and Fairways Resort as a perpetual right to use the parcel for parking to support the resort, and also has authority granted by the property owner to erect and maintain a sign on the property. Page 119 November 29,2007 The sign in questions is 41 years old. I'm happy to say, it predates me. Not by much, but it predates me. It's been in continuous use during that time. This property has never fallen out of use, never been vacant. It's operated continuously for 41 years. The current condition of the sign being covered with a temporary banner is a leftover gift from Hurricane Wilma in September of2005. Wilma blew out the face of the sign into two pieces, making it impossible to just simply put it back. This is where the tale of woe begins for Mr. Mirowitz, who has owned the property for nearly 10 years. Had the replacement of those panels occurred, we might not even be here today, despite the fact that the sign does not comply with the current code. We recognize that. This item was heard in May of this year by this board, who approved a stipulated settlement agreement that the petitioner was to pursue with all diligence a variance for the sign, and upon granting of that variance, should it be granted, a new sign that met current regulations would be constructed. We appreciated that consideration. That was May of2007. We had the pre-application for that variance in May of 2006, a year prior. We filed for that variance in September of2006. Contrary to what Mr. Snow placed into the record, which is patently false, it did not take us six months to respond to what the county put forth as comments, it took the county six months to give us comments on our variance application. The comment letter is dated in April of 2007. So no, it wasn't six months for us to respond. We received it in April, 2007. We had a hearing before you in May of 2007, and in an effort to resubmit -- and let me tell you why it took six months. The original planner was Carolina Valera. She was moved to growth management. Somehow it fell between the cracks. This is not a reflection on Nancy Gundlach at all. But Nancy picked it up and we began getting activity Page 120 November 29,2007 on it. What came out of that after our meeting in May is in June we had several e-mails and several meetings with county staff, and Mr. Snow attended at least one of them that I attended and maybe two of them, where we found out or were informed by planning staff that a variance was not possible. The variance could be granted for, examples, reductions in measurements or setbacks. But in this case, the small strip in front of Fairways Resort that the sign is situated on is zoned RSF-3, which is a single-family zoning district. It's a leftover piece. We don't know how this happened. As a matter of fact, right across the driveway, if you look at the pictures, you'll see a LaPlaya sign. It also is an off-premise sign located in RSF-3 zoning-- MR. SNOW: Just for the record, that has no bearing on this case. That has nothing to do with the sign we're talking about. I object to that testimony. MR. HANCOCK: Thank you. It is recognized by us and the county it was permitted in error. So it's not a precedent, we understand that. But this piece is RSF-3. So after agreeing to pursue a variance, after incurring the cost of applying for a variance and doing everything you need to do to go through the variance process, we're told sorry, variance is not an option. So in July of this year, we're told you have to rezone the property. That's a pretty significant step. The property is 1.2 acres, plus or minus. The cost is going to be $10,000 plus to rezone it, at which point we haven't even begun to get a sign permitted and built. But Mr. Mirowitz has decided, because of the value of the sign to the business long-term, quite frankly because the property sits well off the road, the sign is responsible for a significant amount of business. Page 121 November 29,2007 Without it the disadvantages would be too great. We had a pre-application meeting yesterday with staff on a rezone for the property. This is starting to feel like the movie Groundhog Day. In May of last year we had a pre-application for a variance, which was supposed to help solve this problem, and we got three-quarters of the way down the road and got turned back. Here we are again with pre-application conference number two, all of this costing Mr. Mirowitz money and time. Our goal simply is to do whatever is necessary to allow us to replace the existing sign with a sign of lesser size that is more reflective of the current sign code. We mayor may not seek variances on the permitted height in conjunction with that rezone, but we have every intent to continue with this rezone in order to effectively replace the sign with something that is approved by the board. We have initiated that process. Now that we've literally wasted the last 12 to 13 months on the issue of a variance, we're going back to start and going with a rezone. What we're asking you to consider today in your action is that n the staff recommendation, I believe, is for just complete removal of the sign within 120 days. Ifwe had the property rezoned and went to apply for a building permit for a sign, we'd be lucky to get it in 120 days. So in effect what staff is saying is four months from now take the sign down, and if it takes you another eight, nine months to get a new sign, tough nuts. This property relies on that sign to a degree. And if I could ask to enter into the record as Exhibit B -- and I brought copies for everybody so you don't have to share. CHAIRWOMAN BARNETT: Entertain a motion. MR. DEAN: Motion to accept Exhibit B from respondent. MR. LEFEBVRE: Second. CHAIRWOMAN BARNETT: All those in favor? Page 122 November 29,2007 MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) MR. HANCOCK: Unlike many of the cases you've heard today where somebody executed an action that resulted in a code enforcement violation, all Mr. Mirowitz and Ms. Battista are doing is running an existing resort that's been there for 41 years. What I'm providing you is, we have the fortune of being able to tell you exactly how valuable that sign is and why we would like relief from the 120 days. When a person checks into the motel, they're given a card. We want to know how did you find out about us. Well, it turns out that somewhere between eight percent and 15 percent of all people coming into the resort notice the sign. They saw the sign and they turned in. And 10 and behold, we had guests. That has been annual revenue impact of somewhere between 50 and $72,000 a year if that sign just disappears. So if Mr. Mirowitz seems somewhat obstinate in his position of not wanting to just simply remove the sign and roll the dice in the meantime, I think that is a clear exhibit of why he's taken that position. And again, our position is not to keep the existing sign. We want to replace it. But it's taken almost a year for us to find the vehicle in order to do that. And again, I don't mean to cast aspersions with Mr. Snow, he has worked with us where he can work with us. But I think, as Mr. Snow will tell you, we sat in a meeting with a lot of people scratching their Page 123 November 29,2007 heads on this very issue, on, gee, what is the solution, what is the vehicle, how can this happen. The exhibits attached to that cover letter basically show you the difference between where that existing sign is located, which is a green arrow on Page 2, and where, if we were required to erect the sign on the RT-zoned parcel, is the red arrow. The difference here is a difference of visibility when you're coming down Immokalee Road from the Interstate, which is the vast majority of folks who use the property, of over 1,000 feet when you can see a sign versus less than 100 feet when it would become visible. And that's why we feel that the simple removal of the sign, irrespective of the processes that we've been told to go through and then road blocked and then asked to go through again, is not appropriate. What we would request is we have no problem with there being a time frame placed on the rezone that is reasonable. I've been doing this for 20 years. Currently a rezone takes a minimum of nine months, realistically, 12 months to get through the process. Subsequent to the rezone, and if there are variances required, we would then companion with the rezone, a sign will have to be permitted. Obviously we can't permit the sign before the zoning is done. We can design it, we can be ready to go, we can be ready to put a sign permit in, and that can take 30 to 60 days for a sign permit. I know it is difficult to stand here and ask you to allow something to sit out there that causes Mr. Snow to receive phone calls from folks for another year. What we hope to demonstrate to you is that the fiscal impact of the removal of that sign, the fact that it's been in place for 41 years and was not in essence an active code violation enacted by the property owner. And furthermore, that they have spent considerable time and money over the last 13, 15 months in trying to follow a course of action provided us by the county planning staff and were then turned Page 124 November 29,2007 back should not count against us in looking at a window of opportunity to make this correct. The last item I want to request is we paid administrative costs the last time we were before you. That particular violation was actually withdrawn this morning. And if there's any consideration of the application of paid administrative costs on a Notice of Violation that was withdrawn, we'd appreciate that. In the overall scheme of things that's a small issue, but it's something I wanted to ask, because once you close the public hearing we are at your mercy. With that, I'm going to ask Mr. Mirowitz if there's anything else he would like to add to the testimony provided, with your permission. And beyond that, that's the extent of what we have to present here today. MR. MIROWITZ: I suppose the only other thing I'd like to add to the testimony is the figures on the revenue dollars. If somebody returns the following year, we count them as a repeat guest, so it's quite possible that somebody came to the motel from the sign the first year and then followed up the subsequent years as a repeat guest, which would not be reflected in these figures. And that's about it, unless anybody has any questions. CHAIRWOMAN BARNETT: I don't have any questions. I do have one comment. And I don't know if it's going to take me off this case or not. But I used to live in Cocohatchee River Estates behind Palm River back in '74, and the sign was there at the time. I just know it was there. MS. ARNOLD: I don't think I was sworn, can 1-- (Speaker duly sworn.) MS. ARNOLD: I just wanted to add I don't believe this case -- well, I know the case isn't about the existence of this particular sign for 41 years, which happens to be younger than me. MR. HANCOCK: But I look much older. MS. BARNETT: I just told a story. I'm older than the sign. Page 125 November 29,2007 MS. ARNOLD: It's merely regarding the fact that it did exist prior to 1991, and the sign code -- or the sign code portion of the Land Development Code requires all signs that existed prior to that date that did not conform to the LDC need to be brought into conformance. So I just wanted to clarify what the case before you is about. MR. HANCOCK: And while we don't dispute any of those points, the truth is as a business owner who's busy operating his business, when the code was changed in '91, a light didn't go off in Mr. Mirowitz's head that said, hey, I've got to replace my sign. Sometimes it takes a code enforcement violation to bring this to their attention. MS. ARNOLD: Right. I just merely say that for clarification, because I think it was kind of being swung off track a little bit. And, you know, staff will give you our recommendation, but obviously it's up to the board to grant whatever time frame you find. CHAIRWOMAN BARNETT: I have a question for Michelle in regards to the fact that we did withdraw the previous case and they did pay those charges. MS. ARNOLD: Right. What happened was we withdrew the Code Enforcement Board case and -- the code department case is the same case. We're not going to charge an additional operational cost. In fact, because they've already paid there's no recommendation to charge operational costs for this case. CHAIRWOMAN BARNETT: So rather than refund, we're just not charging any additional. MS. ARNOLD: Right. Well, it's the same -- unfortunately because we have a separate number for the Code Enforcement Board cases, the code case is still the same and -- yeah, that's not an issue. CHAIRWOMAN BARNETT: I just needed clarification on that. Any other questions? MR. SNOW: In may add. Sir, when was your original variance submitted, Mr. Hancock? Page 126 November 29,2007 MR. HANCOCK: Variance was submitted in September of2006. MR. SNOW: I'm not going to introduce this as evidence because we did this in the last hearing, but we have a letter from -- to Davidson Engineering, to Mr. Hancock, a letter that talks about their variance, and it's a reply letter to them, so it didn't take the county six months. This is dated January 24th. So he and I differ on the dates about who was responsible. I don't think that's the issue. I think the issue here is there's a nonconforming sign on the property, it's been there a long time, we need to find a solution. CHAIRWOMAN BARNETT: Any other questions? (No response.) CHAIRWOMAN BARNETT: Okay, ifnot, I'll close the public hearing and move to finding of fact. Discussion? MR. KELLY: Well, I think the respondent admitted that there was a violation, so I make a motion that a violation does exist. MR. DEAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) CHAIRWOMAN BARNETT: Okay. Recommendation from the county? MR. SNOW: Yes, ma'am. Madam Chair, the CEB orders the respondent to, number one, remove the nonconforming off-premise sign and structure within 120 days of the date of the hearing or a fine Page 127 November 29,2007 of $150 a day will be imposed until such time as the sign is removed. The respondent must notify the code enforcement investigator within 24 hours that the violation has been abated in order to conduct a final inspection to confirm abatement. CHAIRWOMAN BARNETT: Discussion amongst the board? MR. KELL Y: I believe that -- I don't think the county would have a problem extending the time frame. I just was a little concerned that I didn't want to speak too far out without, you know, hearing some other comments. But maybe a year. The respondent said nine months would be on the good end, so maybe a year to get this thing taken care of. I'd like to hear other people's opinion. MR. LEFEBVRE: Again, what do you feel would be a time frame for rezone and a variance? MR. HANCOCK: Because this rezone hopefully is on the simple side, since there's no structures involved, I think we're looking at a minimum of nine months from start to completion of the rezone. MR. LEFEBVRE: Of the rezone. And then from there you'd have to get a variance; is that correct? MR. HANCOCK: Well, the variance, we would agree to run any variances as companion items of the rezone, and rather then tacking them on the end. You can do that and they hear both items on the same day. So if there are any variances requested, we'd run them companion with the rezone, because without the rezone we can't request a vanance. And then the only thing left would be to pull a permit on the sign. It would be up to us to take the risk of getting the sign design and everything done while the rezone is going on so that the permit could go in shortly thereafter. And sign permits should be issued within 30 days, but sometimes you get an electrical comment and it kicks you to maybe days for a permit. Page 128 November 29,2007 MR. LEFEBVRE: And submittal of the sign permit could not be done until the rezone and until the variance has been accepted, correct? MR. HANCOCK: Based upon my experience with your review staff, that is correct. MR. LEFEBVRE: I think a year would be appropriate. So that way they don't have to come in front of us again. MR. PONTE: I agree with that. I think that's right. CHAIRWOMAN BARNETT: I agree also. I have a tendency to agree with that as well, due to the fact that they've already gone through one mitigating situation. I think we need to give them some leniency and try to help them along. And the fact that the sign has existed as long as it has and hasn't really caused any issues, I don't think it's going to hurt anybody to stay there that length of time. I know it's not in conformance, but -- and you want to get it fixed. But I -- this is kind of the way we're leaning -- MR. WRIGHT: I just want to add something. You're probably going to address this without my comment, but neither the variance nor the rezone are guaranteed. So I would just ask that your order reflect the possibility that it would be denied. CHAIRWOMAN BARNETT: If it's denied then they have 30 days to get a new sign permitted. I would think that would -- MR. KELLY: Whatever. I mean, if you don't get it within 12 months, then you'll have to tear it down and that's the end of it. MR. LEFEBVRE: I guess that wasn't put in there, correct? MR. KELLY: Well, it's 12 months to either remove -- it's 12 months to remove the sign or to get -- either way, they're going to have to remove the sign and put a new one. So, I mean, 12 months to remove the sign, period. MR. HANCOCK: For the record, the applicant understands that the time period is the time period. Period. No exceptions. CHAIRWOMAN BARNETT: Want to take a stab at it? Page 129 November 29,2007 MR. KELL Y: Sure. Make a motion that in this case the respondent has 12 months to remove the sign and abate the violation. And number two, notify code enforcement within 24 hours of abatement. CHAIRWOMAN BARNETT: Ifhe doesn't do it in 12 months, what's the fine? MR. KELLY: Fine of $150 a day for each day the sign -- or the violation is not abated. CHAIRWOMAN BARNETT: Operating costs were already paid. MR. DEAN: I'll second that motion. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) CHAIRWOMAN BARNETT: Okay. MR. HANCOCK: I thank you. MR. SNOW: Thank you. CHAIRWOMAN BARNETT: It's that time. MS. ARNOLD: Before we break? CHAIRWOMAN BARNETT: Yes. MS. ARNOLD: There has been one other request. We have on the agenda Item 5- B- 7, which is an imposition of fines. And the respondent -- CHAIRWOMAN BARNETT: Francois? MS. ARNOLD: Yeah. And they're here and they're requesting to Page 130 November 29,2007 be heard before lunch break. CHAIRWOMAN BARNETT: Because they have been so considerate to sit through all this, we'll be glad to hear them. MR. WHITE: Just for the record, Madam Chair, we have no objection. (Speakers were duly sworn.) MS. ARNOLD: It's my turn. I'm sitting here. CHAIRWOMAN BARNETT: It's been a long morning. MS. ARNOLD: It's been a long morning. This is Board of County Commissioners versus Joseph Ferio Francois. And this case was heard by the Board of County Commissioners -- I mean, sorry, Code Enforcement Board on October 26th, 2006. The finding of fact that was entered into the record is attached for your review. On that date the respondent was found in violation and ordered to comply in accordance with the order. Compliance has not been met. This particular case was a structure that had extensive fire damage, and the respondent is attempting or had been attempting to get a building permit to correct the damage and to put the building in operational. That has not occurred. As a result, fines have accrued at a rate of $250 per day for the period between October 27th, 2007 through November 29th, today, for 33 days, for a total of $8,250. Additionally, operational costs of $319.79 cents have not yet been paid. So we're asking at this time for fines to be imposed in the amount of$8,569.79. Before the respondent is able to have their opportunity to speak, the board's order directed them to obtain building permits and COs within a year, and if they didn't comply, that the fines would accrue. We have since this time been authorizing the county to consider removal of structures. And I think that this has been going on for some time, and the county is going to request an amendment to your order, Page 13 1 November 29,2007 which -- CHAIRWOMAN BARNETT: We've already been through that so we know we can do it. MS. ARNOLD: Yes, absolutely. To consider an alternate to the abatement. But before we discuss that any further, I think the respondent should have an opportunity to speak to why they haven't obtained compliance at this time. MR. BRUGGER: My name is John Brugger. I'm an attorney who was retained back in July to represent Dr. Francois in moving forward with his progress on this building. He acquired the building back in 2005, and as Michelle noted, it had roof damage. There was a fire damage. He had made application to the county for a building permit for remodeling, repairing the building. The building was found structurally sound except for the roof. The permits, to the best of my knowledge, have been approved except for a condition that an SDP had to be obtained for the building. At the time Dr. Francois looked into, because it was the Immokalee planning district, to getting an SIP. He had retained Blair Foley, a local engineer, to meet with the county. They actually held a meeting on May 4th of 2006, at which time it was determined that an SDP should be obtained. Dr. Francois being a busy practitioner, turned things over to the engineer. I've got a letter here. I've got a couple letters which I'd like to enter into evidence, one of which is a letter from -- CHAIRWOMAN BARNETT: Excuse me one moment, I need to have that accepted as an evidence packet. MR. KELLY: I make a motion to accept the evidence. MR. LEFEBVRE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. Page 132 November 29,2007 MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) MR. BRUGGER: Dr. Francois, being a professional, hired a professional to undertake the work for him and was relying on him. I've got a letter here that I'm passing out, dated October 25th, 2006, in which Mr. Foley acknowledges that he was retained back in April to undertake this work. He's had a number of meetings with different planning consultants, an architect, et cetera, to move forward, and that the work should be completed in 30 to 60 days, taking into consideration that the holidays were ahead and you know. So Dr. Francois thought something early 2007 would be the result. He made a number of phone calls to the engineer, got no response. And in July of 2007 he came in and discussed with me what he had to do to move this matter forward because he wasn't getting a response from his engineer. I do quite a bit of development work for a number of clients and understood the procedure and how things had to move along. I attempted to contact Mr. Foley several times by telephone, got no response. I think he was out of town for a period of time. I finally wrote a letter to him demanding -- and this was in, I'd say, late July -- demanding a response, because Dr. Francois had signed an agreement with him for engineering services, had paid the retainer fees and undertaken what he was supposed to do. We then received in response to that, Mr. Foley put together a summation of where he stood. We had a meeting on August 24th of 2007, at which time he assured me that he thought he could get this Page 133 November 29,2007 done in the next 30 to 60 days, but he needed some things accomplished. One of which, and I don't know the reason, but there were architectural renderings required, they had not been submitted to him. I immediately brought in an architect. We got renderings done, turned over to Mr. Foley, and in -- by mid-October he returned all the documents to me for review before they were submitted. At the time he gave them to me, I noted a concern I had on a survey that was included. It turned out that a portion of this building, which had stood there for years, encroached eight feet onto adjoining property. And I went back to the individuals, I told them that that encroachment is going to have to be removed. The county is not going to grant a variance to allow you to hold eight feet of your building on an adjoining property. When we noted that, I returned it to J.D. Allen, who was the architect. He was out of town for two weeks. Mr. Allen had to correct the renderings on the building to remove the footprint because the materials that had been provided to him showed that the building was all within the boundaries of the property. That was accomplished as of about two weeks ago. Items were returned to Mr. Foley, and Mr. Foley has promised, as he has in the past, that we would have things ready to file before Christmas. Based upon his past history, I can't guarantee that will happen. But I can't agree with, you know, Dr. Francois has been pursuing this diligently. I can't agree with the county's position on tearing the building down. He's got over $20,000 invested in engineering fees, survey fees, architect fees, and he was relying on the professionals who were doing the work for him. Also, I would like to note, my understanding from Dr. Francois was that the county had agreed to a fine of $50 a day, not $250 at the prior hearing. Page 134 November 29,2007 We understand we're under a time gun, and we're pushing to get it accomplished. Do you have any comment to add? MS. ARNOLD: I don't know -- the order that I'm reading says 250 per day. So I don't know what Mr. Francois is referring to. MR. LETOURNEAU: We have a stipulated agreement also that was signed agreeing to a $250 a day fine. DR. FRANCOIS: How much was it, 250 or -- MR. LETOURNEAU: Two-fifty. DR. FRANCOIS: Because I was under the impression it was $50, that's what, you know, I heard that day, so -- MR. BRUGGER: I wasn't present, so ifhe signed it, I guess it is 250 a day. MS. ARNOLD: Yeah, it says 250. CHAIRWOMAN BARNETT: I don't recall us changing it. MS. ARNOLD: The only way it would have been changed if there was an amendment to the order to change that amount. Because the stipulation does says 250 and the board's order says 250. CHAIRWOMAN BARNETT: Jeff, do you have anything to add? MR. LETOURNEAU: Yes. They tried to acquire a permit to get this structure fixed up back in June 16th of2005. They haven't taken any action on this permit since the last action on this thing was May of 2006. So that's 18 months this thing has been sitting here without any action by the owner. I'd like to submit as evidence a note from the fire inspector declaring this structure a dangerous structure, which I agree with, because, from what the pictures we got yesterday, it appears that possible homeless people are living in this right now and who knows what else is going on. It's on the Main Street of Immokalee. It's just a total blight to the whole city. CHAIRWOMAN BARNETT: You're going to add the pictures Page 135 November 29,2007 in with your packet too, please. MR. LETOURNEAU: Yes. What I'll do is this will be County Exhibit A. I'll drop off a copy to the respondent here. CHAIRWOMAN BARNETT: May I have a motion to -- MR. DEAN: Motion to accept A. MR. MORGAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. MR. LETOURNEAU: This is the fire inspector's note. I've only got one set of pictures right here, so I'll let them take a 100k at it, see if they have any objection to these pictures being submitted as evidence. MR. BRUGGER: I guess my only comment is as part of the building permit, we have had structural engineers look at the building and the building has been found to be structurally safe. The fire department has passed the permit application. The only thing holding up the permit approval, to my understanding, is the fact that the SDP process had to be undertaken. We've got copies of the documents here, as of April 14th, where they respond to all the comments of the building department. And the only condition left undone is the SDP, which as I explained, we shortly hope to apply for. CHAIRWOMAN BARNETT: Is this going to be Packet B for the county, please? I need to make a motion. MR. DEAN: I'll make a motion to accept Packet B. CHAIRWOMAN BARNETT: Do I have a second? MR. DEAN: A was in, this is B. Page 136 November 29,2007 MS. MARKU: A is the exhibit that-- MR. DEAN: I've got A in my hand-- CHAIRWOMAN BARNETT: Two different groups. MR. DEAN: That's A, that's B. CHAIRWOMAN BARNETT: I have a motion, and do I have a second? MR. LEFEBVRE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) CHAIRWOMAN BARNETT: The original application, though, that was approved, was back in '06, correct? MR. BRUGGER: The original agreement, the stipulation with the board here? CHAIRWOMAN BARNETT: You said that you had gone through planning and that you had to do an SDP. That was back in '06, was that not? MR. BRUGGER: Yes, ma'am. April 13, 2006 was the last letter from the county setting forth the final requirements to issue the building permit. And the final requirement was that an SDP would be required. CHAIRWOMAN BARNETT: Because I'm wondering with the roof being open how much wear has been added to the building structure. MR. BRUGGER: We've actually had a structural engineer out Page 13 7 November 29, 2007 there within the last 60 days as a part of the process because I said before I get involved I want to make sure that the building could be structurally sound, are we wasting our time and money here. CHAIRWOMAN BARNETT: That's pertinent, thank you. MR. BRUGGER: I guess our request would be if it would be possible to grant n it's going to take -- if in fact Mr. Foley gets this application completed, the engineering work that has to be done, I've done everything I can, the architect has done his -- if we can get an application in within 45 days, because I can't guarantee with the holidays that he's going to get done when I've been pushing him all along. After that I would assume it's going to take six months for the county to comment and approve an SDP, at which time I don't know where the county would stand on the building permit, whether there have been code modification that have to be brought up. But I would request a reduction in the daily fine while this process continues. Dr. Francois has invested a lot of time and money in the engineering and has been the unfortunate recipient of poor consultation with his professionals. MR. LETOURNEAU: I would just like to point out again that it's been 18 months since anything's been done on this property, that they've tried to move forward on anything on this property. I can take into consideration that they had some problems with the people they hired, but if I had a daily fine hanging over my head, I would think I would look into other -- MR. BRUGGER: I think there's been several problems. One is Dr. Francois is sort of a quiet individual, and I think that the engineers, I've found, respond to who's yelling at them the loudest and who needs the work done. And he received the letter, sat back and trusted the deadlines that he was provided. It was only when I became involved and start raising Cain that progress started to progress. In addition, in the time frame -- I can understand what happened Page 138 November 29,2007 with Mr. Foley, I'm certain, because I'm a development attorney, Lee County had a jump in impact fees that took effect in January of2007, so he probably put aside other work to get his Lee County developers in. And then Collier County has the same thing occurring now, if you don't have an application in before January, 2006, your impact fees are going up. And poor Dr. Francois gets shuffled to the side unless somebody is riding the engineer hard. MR. LETOURNEAU: One more point I'd like to make is this fire occurred on May 24th, 2003, so this building has been sitting out on Main Street Immokalee for approximately four and a half years in this condition. MR. DEAN: Can I ask what the use of that building was? What was there? CHAIRWOMAN BARNETT: It was a restaurant. MR. DEAN: Restaurant? Still is? CHAIRWOMAN BARNETT: No, it's empty -- DR. FRANCOIS: It was a grocery store -- MR. LEFEBVRE: Grocery store. MR. DEAN: It's a grocery store now? MR. LETOURNEAU: I thought it was some type of convenience store, wasn't it? MR. PONTE: Beer, cigarettes, groceries. MR. MORGAN: Make sure somebody isn't living there. Jeff, what does the interior look like? MR. LETOURNEAU: It's totally gutted -- you know-- MR. MORGAN: Inside? MR. LETOURNEAU: Inside it's been burnt. MR. MORGAN: Is there any structural members inside that's been damaged? MR. LETOURNEAU: Yeah, the whole inside's pretty much burnt -- MR. MORGAN: I mean, supporting the roof or rafters or trusses Page 139 November 29,2007 or-- MR. LETOURNEAU: I think that the hold-up they had was that when they went to submit this permit that more than 40 percent of it was destroyed by the fire, if that gives you any indication. That's why the hold-up was, they had to get the site dev -- no, that's -- DR. FRANCOIS: Actually, no. Only the roof was damaged. It's a block building. MS. HART: My name is Jacqueline Hart, for the record. Because once it's 40 or close to 50 percent, then they would require you to do just actually more than that, pretty much tear down the building. But it was not 40 percent damaged. And just for the record, Dr. Francois obtained the property of 2005. He assumed the responsibility, or the headache, with the property. So he's trying his best to get this accomplished. And when we applied for the permit, the permit was for the repair of the damage -- the fire damage; however, during the permitting review process, that's when they realized that an SDP or an SIP was required in order to pursue the permit. And that's why the hold-up. But everything has been approved on the permitting process side of it. I just wanted to clear it up. MR. LETOURNEAU: Everything hasn't been approved, otherwise it would have been issued. MS. HART: It's just waiting for the SDP, Jeff. MR. LETOURNEAU: Eighteen months. CHAIRWOMAN BARNETT: Jeff, have you actually been inside? MR. LETOURNEAU: No, I haven't been inside. I've just -- you can see through like the cracks of the windows and stuff what's going on. MR. BRUGGER: It's been boarded up to prevent people-- MR. LETOURNEAU: It has been boarded, yes. CHAIRWOMAN BARNETT: You say it's been boarded up, so Page 140 November 29, 2007 you can't see through the windows. MR. DEAN: So you can't get in. CHAIRWOMAN BARNETT: Okay. Any other questions? MR. BRUGGER: Again, I feel he's very close to being able to make the application for the SDP, and he was just too passive in the previous, you know, pursuit of it, having turned it over to other people to handle it for him. He has paid their fees, everything's been accomplished. I would request a little leniency, and give him a little bit more time. Certainly not go to the extreme of tearing the building down. CHAIRWOMAN BARNETT: Any other questions from the board? (No response.) MR. LEFEBVRE: I just have a comment. Again, it's been going on for 18 months. This building has had a fire in 2003. Again, four and a half years. I understand that the respondent took possession of this building in 2005. But I feel that, without the pun, but we need to keep his feet to the fire and make sure that this property is repaired and repaired in a timely fashion. And I don't feel that he has taken responsibility and kept on this and made sure that if you hire professionals, you can fire them if they're not doing their job. And I feel that hasn't been the case. He hasn't looked at this as a priority. And he needs to do that. And by keeping the fine as is and running, when everything is said and done and the permits are issued and the property comes into compliance, then he can come back to us. But I feel that it's still important to keep these fines as is and runnmg. MR. BRUGGER: I understand your feeling, but I'd -- when we talked about replacement when Dr. Francois contacted me back in July, I looked at the issues and called some other engineers I talked to, they couldn't fit in commencing it in their schedule for another three Page 141 November 29, 2007 months. So I made the decision that the quickest way to finalize the matter was to keep pursuing it with the existing professionals, simply because the other people wouldn't fit it into their schedule for an extended period. CHAIRWOMAN BARNETT: Are there any other comments, questions? If not, I'm going to close -- Michelle? MS. ARNOLD: I just wanted to kind of summarize. There is the request to impose fines at a rate of 250 per day. You have a couple of requests on the table, one of which is -- I think I heard was to reduce the fines to $50 per day and grant additional time to come into compliance, and the other one was to abate the -- or modify the order as well, if you're going to modify to give additional time to give the option to the county to remove the structure. So those are all the things that you have on the table for consideration. CHAIRWOMAN BARNETT: A, B or C. Okay. At this time I'm going to close the public hearing and go to the board. And as Michelle just explained, we have three options. MR. PONTE: Well, there's a fourth, isn't there? The fourth one is that when we modify then we could also modify and give extended time for the demolition. I agree with Gerald, that the fining should continue just as is, but I have some feeling -- sympathy with the fact that $20,000 has been invested here already and that to tear down the building at the end of having invested $20,000 is not only counterproductive, it doesn't make very much sense. CHAIRWOMAN BARNETT: We don't have to grant the modification. MR. PONTE: So that we -- I understand that. So that we could extend the time with the fine running at 250 per day until such time as the permits are all received and in hand, and perhaps that's only 60 or 90 days from now. And then come back and apply for reduction, if things are stalled. Page 142 November 29,2007 But to say okay, it's time, the clock's ticked, we're starting demolition of the building tomorrow, I don't think that serves the community, actually. CHAIRWOMAN BARNETT: Well, I don't think it serves the community to have a blight in the middle of downtown either -- MR. PONTE: Oh, I agree. I agree with you. CHAIRWOMAN BARNETT: n and it's been there since 2003. MR. PONTE: I agree. CHAIRWOMAN BARNETT: I empathize with Mr. Francois in the fact that his professional has not handled this in a timely manner, but I'm going to chastise Mr. Francois in that he didn't get on the phone or something and say why aren't you getting this done for me? Because I know that's what I would do. You were a little bit too complacent or too busy, one of the two. You need to get on and to get it finished, because I think there's an alternative here. We can continue to let the fines go as their going, give them X amount of time to complete it. If they haven't got it done in that time frame, then grant the county the right to have the choice to tear it down. MR. PONTE: Yes, I'd agree to that. I think that's what I'm saymg. CHAIRWOMAN BARNETT: Because we've got to do something and make it stick. MR. PONTE: Yeah. MR. MORGAN: From the photographs that I've seen and from testimony, I agree with the county, remove it. It needs to be torn down. CHAIRWOMAN BARNETT: But the gentleman has spent $20,000. They said -- MR. MORGAN: There's a lot of people spend a lot of money. CHAIRWOMAN BARNETT: They just said that they had an engineer within the last 60 days? Page 143 November 29,2007 MR. BRUGGER: He told us the application -- MR. MORGAN: Has he been inside and taken photographs, taken measurements? MR. BRUGGER: He didn't take photographs. He did a personal visit. He did not take photographs. MR. MORGAN: He just walked through the building. MR. BRUGGER: He's been a structural engineer for 50 years, yes. MR. MORGAN: Did he make an analysis of the inside structure? MR. BRUGGER: He told me that, in his opinion, by placing a new -- the walls were structurally sound, the building needed a new roof and everything would be okay. MR. MORGAN: I still agree with the county. CHAIRWOMAN BARNETT: I'll entertain motions or suggestions as to how we want to do this imposition of fines and the other two orders that are -- requests that are out there. MR. LEFEBVRE: We might be able to have come to an agreement here by having it stated that within a certain time frame, if, again, they do not get the building permitted and CO'd and so forth, that it can be torn down. So that ultimately that would be the end result, Jerry, and I think that would take care of all the issues. I guess the question would be what would be your time frame for having the building CO'd. MR. BRUGGER: Could I suggest that we would be given 60 days to get the SDP finalized because of the holidays. As I said, he's promised me it would be before Christmas, but I can't rely on that. So we would have 60 days to get the SDP submitted to the county -- well, the approval period is going to take six months probably from the county for an approval. I can't guarantee -- again, we've hired a professional engineering who has experience with the county working with Collier County, and hopefully the matters are all there. But I'm doing three other SDPs Page 144 November 29,2007 right now, they come back for comments after about 45 days, it takes 30 days to respond. Sometimes you get a second set of comments. So I'm saying it's probably going to take another six months after that to get the SDP approved with the county. MR. LEFEBVRE: I don't think in this case we can do a blanket one year and get everything done, because the SDP has to be reviewed by the county, and you can't penalize the respondent for the time it takes the county. CHAIRWOMAN BARNETT: Is there a guarantee that an SDP will be granted, Michelle? MS. ARNOLD: I think that there's no guarantees, but they're -- that was the recommendation from the county that they pursue that, so CHAIRWOMAN BARNETT: It's plausible then that they -- MS. ARNOLD: -- it's something that they believe is -- yeah, it's plausible, feasible. MR. BRUGGER: There's been actually a meeting held with the county where you have the, you know, pre-SDP meeting, the planning session meeting, and that was what was suggested. And in my review of it, I didn't see anything adverse. We've had to make some modification to include surface water management that wasn't there. But in speaking with the engineer, the property can be brought into compliance and there should be no problem. MR. LEFEBVRE: Can we maybe structure it where it's 60 days for SDP to be submitted, and then upon any comments regarding SDP, let's say -- CHAIRWOMAN BARNETT: Upon approval of the SDP. MR. LEFEBVRE: Well, I don't want to say approval, because if there's comments to be made on the SDP and it takes -- I want to have a time from for any comments, that they have to come back within a certain amount of time with those comments. Because they could just hang up and just sit there. Page 145 November 29,2007 So if there's any comments from the county regarding SDP, they must be resubmitted within -- MR. BRUGGER: I'd agree to 30 days for resubmittal. MR. LEFEBVRE: Within 30 days. And upon approval of the SDP, X amount of time to pull permits. And then from there -- CHAIRWOMAN BARNETT: She said the permits are all ready to go except for the SDP. MR. LEFEBVRE: Okay. All right, then-- MR. BRUGGER: Well, the one thing I would suggest is that we know during that period whether the county will keep this permit active or whether or not it has to be brought up to -- whether there's been code changes. Because if we feel comfortable we're getting an SDP, there should be no reason that the permit shouldn't be verified, you know, that we don't go back and argue over building permits issues then. MR. LEFEBVRE: When was the permit issued? MR. BRUGGER: Well, the last comment letter was April 16th of 2006. So it's been a year -- CHAIRWOMAN BARNETT: There's no permit. MR. LEFEBVRE: There's no permit issued. MR. KELL Y: I have a question. What happens if they miss one of these deadlines? They're already being fined. Do you fine them more? Or what is the purpose of all the individual deadlines? MS. ARNOLD: It sounds like you're recommending to modify your order to grant additional time. So we would not be imposing fines today, it would be granting additional time. MS. RAWSON: I was going to ask you that. Based on your discussion, I mean, we're here on a request for imposition of fines -- MR. BRUGGER: I would suggest that if we don't make those deadlines, that the county can come back and bring us here to bring forward their motion to tear the building down. MR. KELL Y: I would just make a motion that we impose the Page 146 November 29,2007 fines and that we allow the county to, at its decision, decide what to do with this building, let's say six months from now or nine months from now. And then the county, based upon the progress, can decide at that point whether, hey, another couple of months this thing is going to be fine and they're going to rebuild it or there's no progress, we need to remove this structure. MR. PONTE: Does that mean that we would have to modify our order where it says -- where the demolition is part of the original order? So if -- MR. BRUGGER: I don't think demolition, that isn't part of the existing order, is it? No, you're seeking it now. CHAIRWOMAN BARNETT: It was crossed out. Jean, can we do that? MS. RAWSON: I was just asking like where you're going. Because we are here on a request for an imposition of fines. You don't have to do that, you can turn this into the modification of the order. I just need to know what -- CHAIRWOMAN BARNETT: Which way we're going? MS. RAWSON: Right. CHAIRWOMAN BARNETT: We were told we had like -- they were requesting us to reduce the fine, and we've kind of pretty much threw that one out. We were going to, I think, impose the fines and then modify the order in lieu with -- in other words, they're wanting to tear down the building, but we know that he's invested 20,000. So we're trying to give him a little bit of leeway in saying that we're going to let this continue, we're going to impose the fines as they are now, let it continue, but then modify our order to state that if in six to nine months, whatever we decide, that if they have not made enough progress, then we would allow the county to then demolish the building on their discretion with how much progress is being made. Page 147 November 29, 2007 So we're kind of combining two things. Are we allowed to do that? That was my question. MS. RAWSON: Well, I think it's probably going to require two orders. MS. ARNOLD: Well, and I think that there might be some, I guess, unfairness to the property owner, because then we're going to allow fines to accrue for another six months and then additional costs for the demolition would be compounded on top of that. So -- CHAIRWOMAN BARNETT: We want to encourage him to hold his feet to the fire. MS. ARNOLD: I understand. MR. KELL Y: Would the county be willing to just pull this imposition of fines and bring it back in six, nine months, after you determine whether or not progress has been made? MS. ARNOLD: I would rather the board, if that's -- if you're wanting to grant them that time, I would rather you modify your order to grant them that time so that we're not placing a lien on their property for this amount -- CHAIRWOMAN BARNETT: In other words, you don't want us to impose the fines and extend the time, you want us to do one or the other. MR. LEFEBVRE: Let me ask another pretty important question. Are you looking to finance any of this work? DR. FRANCOIS: It will be a small portion. I mean, to clarify something, I already spent over $40,000 in the process. Before the first permit that I was trying to get through the county I spent over $20,000. The $20,000 dollars that my lawyer is talking about, that's what I already give to Mr. Foley. So over $40,000 is already spent, you know, in the process. MR. LEFEBVRE: Again, a question. Are you going to finance any of these repairs? Because if you do and we impose a fine, it is Page 148 November 29,2007 going to be on record and that might impinge on your financing. DR. FRANCOIS: Yes, I will finance, you know, part of it. CHAIRWOMAN BARNETT: I have an idea. That we not impose the fine at this time, that we modify our order. And this is -- I'm just throwing out as an idea, guys. In six months if not significant progress has been made, to then allow the county to demolish the building. MR. LEFEBVRE: I would agree with that. CHAIRWOMAN BARNETT: That's not a motion that I can make. MR. LEFEBVRE: I'd like -- I'd like to make a motion to amend our order where it states ifthere's not sufficient improvement or progress made to getting permits and so forth, that the county will be allowed to demolish the building. CHAIRWOMAN BARNETT: Within -- MR. LEFEBVRE: Within six months, thank you. MR. BRUGGER: At their discretion? MR. LEFEBVRE: At their discretion. MR. BRUGGER: I'd like to remove the word improvement, but progress -- MR. LEFEBVRE: Yes, progress. CHAIRWOMAN BARNETT: Do I have a second? MR. PONTE: I will second that motion. CHAIRWOMAN BARNETT: All those in favor? MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? MR. MORGAN: I disagree. Page 149 November 29, 2007 MS. RAWSON: I need some clarification. Ifwe are modifying the order that you entered back in October, which gave them one year till October 26th, 2007, and now you are giving them an additional six months, that's additional six months from today's date? CHAIRWOMAN BARNETT: From today's date. MS. RAWSON: And you're adding one more part of your order in the alternative the county may demolish -- CHAIRWOMAN BARNETT: Demolish the building. MR. KELLY: So they're technically not in violation now. MS. RAWSON: Correct. They wouldn't be -- MS. ARNOLD: They're in violation but the fines aren't accruing. CHAIRWOMAN BARNETT: They're in violation but the fines are not accruing, so there are no fines at this time. MR. BRUGGER: Thank you. CHAIRWOMAN BARNETT: And with that, can we adjourn for lunch? MS. ARNOLD: For how long? CHAIRWOMAN BARNETT: One hour, thirty minutes? Is there still a little Subway shop? It's after lunchtime, so everybody else is gone. So why don't we adjourn for 30 minutes and we'll be back here at 2:40. (A lunch break was taken.) CHAIRWOMAN BARNETT: We'll get started. Go ahead and call this meeting back to order. And I guess we'll be hearing the Blocker case next. MR. WHITE: I appreciate the reminder. And I would like to thank the board for allowing us to table the discussion about our motion and to take the time to fully consider not only that but if we get as far as the fines aspect of it. And before I would forget, I would also like to thank you for last month's continuance to allow us to come back today. I appreciate that. Page 150 November 29,2007 I think where we had left off, if my recollection serves, is that there was a discussion about the zoning determination and whether in fact one had been made officially or otherwise by staff. And as a point of concern from the original hearing back in April of last, my recollection is in review of the record was there wasn't a professional planning opinion. And all of that said, today we're at a place where I'm asking for your consideration of a provision in the Land Development Code where I'm only aware of most recently there being some concern based upon what were the then known facts in law by the county's professional staff. It's not part of these proceedings, it's not part of the record, but it wasn't until, I believe, September of this year that I was apprised of what, if any, concerns the county may have had about the SIP process. The reason why we weren't more emphatic about it, I believe, before when we spoke to you at our rehearing is because we were not then presently able to effectively apply for and utilize the SIP process. One of the reasons we asked for our continuance had to do with what I had mentioned earlier, was the receipt of quitclaim deeds just this past Tuesday on the board's agenda, Board of County Commissioners' agenda. Those quitclaim deeds will become effective after tomorrow when we sign the Florida Department of Protection's consent order. Because it's condition of the approval of the quitclaim deeds that we sign the consent order. That makes sense from the county's perspective because one of the issues that had been holding up the whole discussion about the clean-up was who owned the right-of-way, and more so, who had the responsibility to clean up those tires and junk cars. MS. ARNOLD: Can I object? Because that has nothing to do with the Blocker case. Tires on a right-of-way has nothing to do with the case of the illegal land use that was brought before you all. I just wanted to state that. Page 151 November 29,2007 CHAIRWOMAN BARNETT: Michelle, I understand your contention, but I think part of the board's opinion at the time and I think what he's trying to refer to is we were concerned about the safety because of the tires and the junk cars that were so close to the residents' homes at that time. And we pointed that out. So I think that's what he's reflecting. MR. WHITE: That's absolutely correct, Madam Chair. And further to that, I note, and the deed's not here -- and I have photographs that were taken about six weeks ago of that clean-up as well as one other piece of information I'd like to put into evidence, if I may. CHAIRWOMAN BARNETT: Okay, that would be packet -- MR. WHITE: I guess this would be our B. CHAIRWOMAN BARNETT: Does county have an objection? MS. ARNOLD: I have not seen anything. CHAIRWOMAN BARNETT: Would you like to look at them first? MS. ARNOLD: That would be nice. MR. LEFEBVRE: What relevancy do these pictures have to -- CHAIRWOMAN BARNETT: I'm sorry. He asked what was the relevancy of the pictures. And I said I think it's because he's trying to show that they've cleaned up some of the area that's close to the mobile homes. And that was one of their safety issues that we had in concern at the original hearing. MR. WHITE: I'm presenting them presently for the purpose of demonstrating how we now are able to meaningfully participate in the site improvement plan process. And without -- CHAIRWOMAN BARNETT: We need to have a motion made whether or not to accept the packet. MR. DEAN: Motion to accept the packet. CHAIRWOMAN BARNETT: Do I hear a second? MR. PONTE: I'll second. Page 152 November 29,2007 CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. PONTE: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) MR. WHITE: Thank you. And part of that packet -- yes, thank you. There are three separate photographs. Feel-- MR. LEFEBVRE: They're all copies, correct? MR. WHITE: Yes. MS. ARNOLD: I have to object to the second part of it. Again, because -- well, the objection is the health department's rules have nothing to do with the county zoning rules. And that's the other thing that's being -- MR. KELL Y: Is that a separate packet? MR. WHITE: That was part of what I was looking to bring in. And if Michelle wants to make a separate objection to that, that's fine. I'm happy to -- MS. ARNOLD: And I guess I need clarification from the attorneys on what we're really doing, because I thought this was a motion to modify the board's order. And it looks like we're getting additional evidence that wasn't considered previously at the original hearings. It's almost like a continuation of a hearing that -- I'm not really clear what we're doing. MR. WHITE: I can answer that. I'm sorry, Jeff-- MR. WRIGHT: I would like to get into that -- let me pipe in a syllable or two here. The -- earlier we had a discussion today on when Page 153 November 29,2007 would it be appropriate to amend an order. And I agree with Michelle and Ms. Rawson's comments that it would be appropriate where there's a clear error or maybe where there's a health and safety issue, or it's just manifestly unjust the way it is. And I don't think that there would be any question that it would be appropriate to amend an order here. Mr. White, I think, is pointing out a lot of things that don't fall into any of those categories. And I just wanted to point out that, since the hearing, and I don't know if this is my rebuttal or not, but I want to get this on the record, since the April, '06 hearing, there was a motion for rehearing, as you know. There was a mediation. That didn't go so well, apparently, because Mr. White has appealed the results of that mediation -- MR. WHITE: I have appealed the way that the county handled the consideration of it. MR. WRIGHT: And then he's also petitioned the Board of County Commissioners for relief last Tuesday and pulled it off the agenda at the last minute and got a continuance at the last meeting. And Michelle Arnold noted on the record at the last meeting that it had been pulled twice from the agenda. So I just want to keep the focus of the board on the issue at hand. And that is, is it appropriate to modify this order. And I haven't heard any error pointed out. I haven't heard any health, safety issues. In fact, Mr. White just pointed out that, based on these photos, the health, safety issues have been addressed. So there's no burning building to take care of. And I don't see any grounds on which a modification would be appropriate. What I see, if I count them up, how many bites of the apple that Mr. White is asking for, I'm going to have to start using both of my hands, because it's been at least five bites. And I'd also point out, I want to get this on the record too, this order that he's asking you to modify is presently on appeal in the Page 154 November 29, 2007 circuit court. MR. WHITE: That's not correct. MR. WRIGHT: I have the appeal here. And if I may read an excerpt from it. Nature of relief sought. In the alternative, petitioner seeks to have its notice of appeal of the CEB's order considered immediately then filed. Basically -- MR. WHITE: At which point it would then be considered. So it is more legally correct to say it's not. MR. WRIGHT: I'd defer to your own attorney on this particular point. But the caption of the appeal is: Petition for Writ of Certiorari based on the BCC's handling, or, in the alternative, notice of appeal of the very orders he's asking you to modify. So he's already submitted an appeal. And I'd defer to Ms. Rawson that when you plead in the alternative it's an either/or. They can be mutually exclusive. But you are pleading, you're laying it out there. So he -- I'm really not sure what the result of this hearing -- if for example you were to approve his modification, whether or not that would mean that he would be sticking with the appeal of the prior orders or would he change this to the modified order that you would issue? I'm to really sure. And maybe, Mr. White, you want to put on record right now that your notice of appeal is withdrawn. Because otherwise, it's in the court, it's under consideration by the court, and you represented earlier that it's not. But I just wanted to point out that it is. So that's some comments I wanted to get on the record, so you weren't -- CHAIRWOMAN BARNETT: That refers back to my original request at the beginning, and I was told by our counsel that we should listen to what the Blockers' attorney had to say, which is what I think we were doing, was indulging him. As to whether or not we would even consider making a Page 155 November 29,2007 modification, we were just trying to listen to what he had to say. I did caution before the break, though, that I didn't want to be rehearing this case. And I don't want to rehear the case, because it's not a rehearing, it's asking for a modification. So I'm kind of like going to look for Jean, and also Mr. Kelly has a comment that he would like to submit. MS. RAWSON: If your original order of the Code Enforcement Board is up on appeal, you have no jurisdiction to modify it -- CHAIRWOMAN BARNETT: We can't do anything, okay. MS. RAWSON: -- and I don't know whether it's up on appeal or not. So I would look to the county attorney for that. He's apparently got a copy of it with him. But if it looks like they've appealed your order, you have no jurisdiction to hear the case. CHAIRWOMAN BARNETT: We can't do anything. MR. WHITE: May I clarify? This is going to take a while. I told you this is a complex case and it has a long procedural history. CHAIRWOMAN BARNETT: One simple question for you. MR. WHITE: Yes. CHAIRWOMAN BARNETT: Per the county's attorney, this case has been appealed -- MR. WHITE: That is not correct. CHAIRWOMAN BARNETT: -- is that true? MR. WHITE: That is not correct. Unless and until the court determines that the relief we've requested originally, which has to do with the special magistrate's consideration by the Board of County Commissioners, is not going to be granted, it cannot be considered filed until that point. And ifI were to, under Chapter 70, which is the special magistrate proceeding for this type of alternative relief, if I filed that notice of appeal, I effectively have lost the jurisdiction of the Page 156 November 29,2007 magistrate proceeding. They are alternatives to each other. And what the statute says is if you come in and you file a notice of appeal, which I have not done, I have done it in the alternative and alerted the court, because the time frame between when the court may choose to deny the relief I'm seeking as part of the magistrate proceeding, if that's denied, then instantaneously the clock starts to run for the time for me to file my notice of appeal. And I only have 30 days from the original order that you entered. And my concern is that by the time I actually get the Court's order, my time to have appealed would have expired. Because I think that there's a good argument that the county may have -- and I hate having to tell them the tactics that are their best defense in my filed case -- but if I don't plead it in the alternative, I don't have the opportunity for making sure that the window doesn't close on my 30 days, that everybody says I have, before I file my notice of appeal. It is not technically filed unless and until the court denies the otherwise requested relief. Because that continues the magistrate proceeding, which I expect will remand it, send it back to the Board of County Commissioners to dispose of. Because that statutory process says that it doesn't end until the Board of County Commissioners have disposed of that special magistrate's order -- or report, excuse me. CHAIRWOMAN BARNETT: You have met with the magistrate once, though, correct? MR. WHITE: Yeah, we did. That was -- took forever to get going, and when we finally did -- CHAIRWOMAN BARNETT: And that case you're appealing, correct? MR. WHITE: I'm appealing not that but rather the way that the Board of County Commissioners considered it. We didn't have a chance to appear at that consideration. We didn't have any notice, so -- we never got to put our side of the story before the Board of County Page 157 November 29,2007 Commissioners. And I -- to tell you what would the result be, my belief is that I may be able to convince my client that if we enter into the SIP process, that we withdraw all of those things. And in fact, the reason why I tell you that this is a complex matter is because up until near the end of July I was working with the county attorney's office, Administrator Schmitt, on a compliance agreement, the significance of which is, if you go back to the provision I showed you out of the LDC, the alternative way by which we can have the SIP process entered into is one that's reached by compliance agreement. And we spent months working on that in coordination with the efforts regarding the DEP and the consent order. So some of the characterizations we really haven't been doing anything to try to abate these violations, I just can't agree with. We've been very busy. Now, what's the reference the photos -- CHAIRWOMAN BARNETT: -- the legal round, and some clean-up. So I won't say you haven't been doing anything. But Jean, I need some general direction, because I've got two -- MS. RAWSON: I can tell you -- again, I haven't seen the appeal and so I'm just going to give you some general overall rules of law. If you file an appeal of this board's order, you lose jurisdiction. If you file an appeal in the alternative, and based on the conversation I gather that he's appealed both the special master -- CHAIRWOMAN BARNETT: Magistrate. MS. RAWSON: -- magistrate's order as well as yours. If you plead in the alternative, it's as if -- in other words, that's like you have still lost jurisdiction if you're one of the alternatives. MR. WHITE: But we won't know what that is, Madam Chair and board members, until that judge rules. CHAIRWOMAN BARNETT: But technically then, if you don't Page 158 November 29, 2007 know what that is -- MS. RAWSON: When you file -- when you file, you lose jurisdiction. CHAIRWOMAN BARNETT: -- we can't know what that is. So therefore, we can't make a ruling. MR. WHITE: I wouldn't agree with you. I think it's just the opposite. You still have jurisdiction until the court says you don't. MS. RAWSON: I think you'd lose jurisdiction the minute an appeal is filed. The minute that appeal goes into the clerk's office, it gets stamped -- MR. WHITE: I have not filed, to my recollection, such a notice. I'm asking the court to consider it. MR. WRIGHT: IfI may, this does not have a case caption or a stamped date, but it's captioned Notice of Appeal. I don't know what case number it is. It's signed by Mr. White, May 24th, saying that he appeals to the Circuit Court of the 20th Judicial Circuit regarding the Code Enforcement Board's finding of fact, conclusions of law and order of the board -- I'm sorry. I can give you a copy of this document, so -- I was trying to speak -- CHAIRWOMAN BARNETT: We couldn't even catch up with you. MR. WRIGHT: Bottom line is I have in my hands a notice of appeal of the very cases that he's requesting modification of, signed by Mr. White, dated May 24th, '07. Maybe he never filed it but this is what was presented to our office -- MR. WHITE: No, I -- I will put on the record that that is part of the filing of my petition for Writ of Certiorari, and they're different. CHAIRWOMAN BARNETT: Jean, explain to me what Writ of Certiorari means. MS. RAWSON: Petition for Writ of Certiorari is part of your appeal when you are asking the higher court to reach down and hear a lower Court's decision. This is not the United States Supreme Court. Page 159 November 29,2007 That's when you usually hear the Certiorari term used. But you file a petition of Certiorari because you're asking the Circuit Court to hear a Code Enforcement Board or a magistrate's ruling. CHAIRWOMAN BARNETT: So it still takes it out of our hands, then, doesn't it? MR. WHITE: No, ma'am. MS. RAWSON: If it's been filed with the court. In my opinion it does. If it's been filed at the clerk's office -- and we don't have a filed stamped copy -- but if it's a petition for Certiorari and that notice of appeal is attached to it, I don't think you have jurisdiction to do anything yet. MR. WHITE: I couldn't object more. And unfortunately, the reason why this is so critical, not only for your consideration today but to the rest of our case, because if what you do is effectively consider me to have appealed the case and argue that you've lost jurisdiction, you've trumped what the court is being asked to do. Now, you are loath to step into the shoes of the zoning official for interpretations of law -- and I just can't tell you how devastating the effect would be to make that ruling. Because the way that the Chapter 70 statute works is very precise, it tells you -- CHAIRWOMAN BARNETT: Do we have a copy of that? MR. WHITE: Chapter 70? MR. WRIGHT: Yes, ma'am. In fact, I'd like to make this part of the record, if I could. It's captioned Notice of Appeal submitted by Patrick White to the Circuit Court. MR. WHITE: I believe that that, without the rest of the filing, I'm going to have to object to. It is in and of itself going to be prejudicial without the rest of the document. CHAIRWOMAN BARNETT: Hang on. MR. WHITE: The only thing you'll have is something that is what is Part B of my request, that only becomes legally effective if Page 160 November 29, 2007 part A is denied. If my Writ for Certiorari is denied by the Court under the Chapter 70 proceeding and they say there was no error, the Board of County Commissioners did everything appropriate with regards to that special magistrate's report, up until that point that notice of appeal is not considered filed. Because the second it gets filed I've lost the jurisdiction for the special magistrate proceeding. So what you would be doing is effectively telling the Court, and I know you can't do this, that they can't hear what I've asked them to hear. And that's why it's of such concern and why I think that -- my understanding of how that statute is intended to operate. And there's been a district court of appeal in the Second District that's come out since that says as long as that magistrate proceeding is going forward under Chapter 70, that the time is tolled for filing your appeal. My 30 days, I suspect, could be up by the time I know what the outcome of the Court's decision is. So in an abundance of caution, to not have the county come back to me and tell me, sorry, Mr. White, the window's closed, I filed that as an alternative. I did not separately file it. It has not activated the Court's time frame to consider your prior order. MS. ARNOLD: Jean, is what you're saying or Jeff what you're saying by filing in the alternative it gives -- it files both motions -- MS. RAWSON: Correct. MS. ARNOLD: -- and therefore once a decision's made on the first one, it doesn't -- CHAIRWOMAN BARNETT: It mayor may not -- MS. ARNOLD: It doesn't extinguish that 30-day period that he's concerned about that would toll his appeal. MS. RAWSON: No, it doesn't. MS. ARNOLD: So they can consider it right after. But essentially he's filed both motions, is that what you're saying? Page 161 November 29, 2007 MS. RAWSON: I think that's what he said. All I have in my hand is a notice of appeal dated the 29th day of May, 2007. MR. WHITE: And the problem with that is it seems to suggest to you that what I've done is cut off my own nose to spite my face, which of course I have not done. I have not filed a notice of appeal. I am not telling the court that I'm appealing. CHAIRWOMAN BARNETT: Let me see ifI understand what Jean's trying to tell us. By you filing as you have in-- MS. RAWSON: The alternative. CHAIRWOMAN BARNETT: Alternative means that if A doesn't go through, your B is then considered. MR. WHITE: Then B. CHAIRWOMAN BARNETT: But because you have done that, you've tied our hands, in my opinion, in what I'm understanding Jean to explain. Because if A doesn't go through and then B is considered, B is our case, and so there -- let me finish. So therefore unless A is accepted, we are at risk of making a decision on something that may come up in front of the courts and we have modified something that they are then going to be considering, and that's going to be null and void anyway. Am I correct, Jean? MS. RAWSON: I hate to answer your questions in a vacuum, because I don't really have any of the filings in front of me. But if you plead in the alternative, they can discount A, go to B, they can, you know, keep B and throw out A. The alternative means either one, either/or. MR. WHITE: No, ma'am. This one is specifically tied to a series of events that are A and B. You correctly said it, Madam Chairman. You said if A is denied, only then do they move to B. They are not a petition for two kinds of relief. If that were true, I would have filed a separate notice of appeal. I have not done that. And that is why I strenuously object to any characterization that I did. You're effectively telling me I would have committed legal Page 162 November 29,2007 malpractice. MS. RAWSON: Let me say this. I'm really very uncomfortable with your moving forward and modifying an order when something has been filed with the Circuit Court like a Writ of Certiorari and we've not seen it. Unless I see it and can really properly advise you -- and apparently Mr. Wright doesn't have it either -- it's hard for me to say, oh, well, don't worry about it and let's just go forward. I have to see it in order to really give you a very good legal opinion. MR. WHITE: Let me give you a practical outcome. If I had come to you after the court had ruled, okay, I think that what you're saying would be absolutely correct. If the court ruled and denied my petition and started my notice of appeal, you are all absolutely correct, meaning Jeff and those who see it from that end of the telescope, that I would have lost jurisdiction. This is a jurisdictional question and that is why it is so significant and so important. I don't want you to have lost jurisdiction. If that were the case, my goodness, what have we been doing trying to convince you of an alternative way to cure these violations? And in an abundance of caution, all I would ask you to do is, even if you're wrong, what's the harm? What's the harm? Is the harm going to be that I'm going to take you to court and tell you that I don't want the relief you may give me? Or in the alternative is it going to be that I'm somehow not going to withdraw my appeal? I'm telling you on the record under oath that if we have the SIP relief, we will withdraw it. That was what was in the compliance agreement back in July. MS. RAWSON: Let me answer what the harm is. If you don't have jurisdiction, any order you enter is void. MR. WHITE: And there is no harm. MS. RAWSON: You've wasted your time. MR. WHITE: And the other way for me to cure it is ifI withdraw it before the court rules on it, Madam Chair? That's null and void. Page 163 November 29,2007 So I effectively give you the protection, if you will, that you think you may need, but I'm pretty certain you don't. MR. WRIGHT: I just want to get a clarification on the record. I'm a little confused as to how an attorney could sign a notice of appeal, say it's submitted by me, with a bar number on it -- MR. WHITE: As an attachment. MR. WRIGHT: As an attachment or however, it went to the clerk of court. It's now in their hand. And it's captioned Notice of Appeal submitted by you, and that's not in dispute. To the court, that's not in dispute. I'm not sure how there's any other way to interpret it. You could have zipped it in a ziplock bag, thrown it in as an exhibit. But you submitted a notice of appeal to the court, period. And it's there. And I'm not sure if you're denying that. But I think that what you said on the record is that you did indeed submit that very document, submitted by you, signed by you, to the Circuit Court. And if that's not the case, I just want to make sure I've got that right or wrong. MR. WHITE: Very good arguments, Mr. Wright. But let me ask you this: Did you check the docket in Circuit Court? MR. WRIGHT: I did. MR. WHITE: Does the docket show that I have a running notice of appeal? MR. WRIGHT: I'm not really sure. I don't have the docket memorized. MR. WHITE: Did you look through the petition for Writ of Certiorari in the pleading and is it or is it not written in a way that it is clear how the statutory proceeding under 70 intended to operate, that you only have jurisdiction under the magistrate up to the point where you file the notice? If my notice were filed, I would have cut off my own nose to spite my face in the petition for Writ of Certiorari. You can't have it both ways. Page 164 November 29,2007 MR. WRIGHT: That document that's captioned Notice of Appeal was or was not filed with the clerk of the court? MR. WHITE: It was filed secondarily to, and would not become legally effective and operate unless the court denied the petition for Writ of Cert. That is my answer, sir. CHAIRWOMAN BARNETT: I'm going to stop here and I'm going to poll the board just to ask what direction the board wants to go. MR. LEFEBVRE: Ifwe just have -- CHAIRWOMAN BARNETT: Temporarily I'm closing the public hearing just to poll the board as to how they want to proceed. Because I don't want to make this decision myself as to how we want to go. MR. PONTE: Personally, I think we're way out of our depth. This is the Code Enforcement Board, and what we're hearing are legal arguments between three lawyers about which way to go. I don't think there's anybody on this board that's qualified to make that decision -- CHAIRWOMAN BARNETT: Thank you, George. MR. PONTE: -- just hearing a legal argument over which we have no authority or experience. MR. L'ESPERANCE: Madam Chair, if I may give my little input here also. I feel the same way. I feel that at the minimum we should continue this until the next hearing, allowing for the attorneys to do a little bit more research into the court's docket, perhaps, to get the documents that you need to look at to be sure that the opinions you're giving are the opinions that you espoused today. I suggest that we continue this for at least one month. MR. LEFEBVRE: It would be two months. MR. L'ESPERANCE: Two months. January -- the next hearing, exactly. MR. LEFEBVRE: I guess I want to back up a little bit with the time frame. It came in front of us, we heard the case. Didn't go in Page 165 November 29, 2007 favor of the Blockers, so he went to special magistrate. The special magistrate upheld -- CHAIRWOMAN BARNETT: Actually, he asked for a rehearing and we denied him. Then he went to the special magistrate. MR. LEFEBVRE: Thank you. The special magistrate upheld our decision. MR. WHITE: Sorry. I know it's not public hearing but I just want to correct the characterization. I don't think that that's fair. CHAIRWOMAN BARNETT: I remember from discussions prior, the special magistrate didn't rule on our issue per se according to the attorney. But he ruled in favor of upholding the basis of it, based on how it was presented, and they didn't have their right, which is why he's appealing it. MR. WHITE: Could I clarify? CHAIRWOMAN BARNETT: No, I don't want any -- I'm just trying to make it for our discussion. Thank you. MR. LEFEBVRE: There was an appeal filed for a procedural error, whatever case it may be. I feel if there was an appeal filed, it was based on the magistrate made a decision either to support -- whatever, made the decision based on the case. If you revert back to Steve Lovelace's case, which is a case where he filed in Circuit Court a day before he was supposed to come back to us, he asked for a rehearing, and it fell -- our meeting was 31 days after our previous hearing. So the attorney went and filed in Circuit Court. At that point, when Mr. Lovelace and the attorney came in, which was about a year and a half ago, came in and said I filed in court, we couldn't hear the case. So I feel that this would fit under that criteria, that if there was an appeal it was based on our case, that it's out of our jurisdiction at that point. CHAIRWOMAN BARNETT: Your input? Page 166 November 29,2007 MR. DEAN: Well, you know, I can piggyback what Gerald said. It makes a lot of sense to me. I kind of agree with that. And if I had to make a decision right now, I'd make a motion for a modification order to be denied. Just because it's on my agenda doesn't mean I have to take it. I mean, I can put it someplace else, and they can go someplace else. MR. KELL Y: In reference to the opinion as to whether or not this case -- I think we are able to modify this case, I think because we modified the order just prior to lunch for Francois, I think we probably should, only because -- CHAIRWOMAN BARNETT: I'm concerned about the appeals out there. MR. KELL Y: -- we've done that part. So that's part one. Part two, I think both sides are strong. However, I think that it does make procedural sense to have an order have two parts, and the second part be reliant upon the decision of the first. And I don't think that second part should be considered as filed until the first is ruled upon. But I'm not an attorney. MR. L'ESPERANCE: But that's a legal opinion we're not qualified to make. MR. PONTE: We have contradictory advice -- CHAIRWOMAN BARNETT: I am comfortable with the thought of tabling this -- MR. PONTE: We have contradictory advice. Madam Chair, we have contradictory advice on this. One lawyer has said it is not filed because it hasn't been accepted by the court or something to that order. And our attorney is saying it's filed as soon as the clerk receives it. How are we supposed to make some determination about that? CHAIRWOMAN BARNETT: I am going to lean towards your decision that we table this until January, have it come back with the attorneys being able to get all the information together for us, providing Jean with the documents that she needs to review in order to Page 167 November 29,2007 give us a better understanding so that we can then make an educated ruling one way or the other. MR. L'ESPERANCE: Madam Chair, we are quasi-judicial, not judicial. CHAIRWOMAN BARNETT: Correct. And we need to listen to the advice of our attorney. And I don't want to step above and over her in that guard. MR. LEFEBVRE: Could we make a ruling -- MS. RAWSON: Did -- Ijust want to ask a question of Jeff. Did you get a certificate of service on the Writ of Cert? Because I know I didn't get it. MR. WRIGHT: It says certificate of service to David Weigel. That's how it got to me. MS. RAWSON: Okay. I haven't seen it. I'm just uncomfortable because we're talking about documents that I haven't seen. CHAIRWOMAN BARNETT: I am -- MR. WHITE: And I think the reason you haven't seen it, if I may, Madam Chair, is because the court itself does not consider it to be a notice of appeal. And if it were, which I'm telling you again, it can't reach until after the matter's considered by the judge, then the notice of appeal, then the service would come. CHAIRWOMAN BARNETT: That's why I'm leaning towards thinking the only fair thing to do here is table this until January so that we can get everybody to have the proper documents that they need to look at to advise us. MR. WRIGHT: Madam Chair, ifI may, this is -- we're all conceding here that this is before the court, it may be a contingency that is before the court, but ultimately the issues he's asking you to decide are going to be decided by a court. And I think that when we come back in January we're going to be stuck with these same legal questions, and they're more appropriate -- CHAIRWOMAN BARNETT: Hopefully she'll have seen the Page 168 November 29,2007 documents and can give us some advice as to whether or not we could proceed at all. And that's what I'm looking for. MR. WRIGHT: I'm afraid that we might be getting an eighth bite of the apple here. MS. ARNOLD: And I would speak for the county. I think that's exactly what we're doing. All of these efforts are delaying any action whatsoever. And there was one part of your order that was complied with, a meeting that was attended, and he was given direction at that time how to comply. No efforts whatsoever have been made to try to come into compliance with that direction that was given. MR. WHITE: That is absolutely false. We were not given any direction -- MS. ARNOLD: Can I speak, Patrick? Because you've allowed ample time to speak and you've interrupted everybody -- MR. WHITE: I don't have any direction -- MS. ARNOLD: Can I speak -- CHAIRWOMAN BARNETT: Excuse me. MR. WHITE: I don't have any direction. CHAIRWOMAN BARNETT: Excuse me. I'm going to make everybody stop speaking here in a minute. MS. ARNOLD: Can I finish, Madam Chair? CHAIRWOMAN BARNETT: Sure. MS. ARNOLD: There's been arguments about your ability to amend your order. I don't argue against that. I think you can. The reasons for amending that order have been given to you. And I think what he's -- what is being asked of you today is beyond those reasons that have been granted in prior orders that have been amended. There's been a request to enter into a site improvement plan process. That is not something that is afforded to this particular property because it's zoned inappropriately for that use. There's been discussion about the compliance agreement process being another avenue for him to take to get into the site improvement Page 169 November 29,2007 plan process, and the county was entering into that. It stopped. Well, why? Because it's not an adequate avenue for him to pursue. These are all these -- CHAIRWOMAN BARNETT: I don't disagree with you. I agree with what you're saying. But I am sitting on what I think is more important is a legal issue as to whether or not we can even move forward because of a potential appeal that is out there. And until Jean has a chance to review that or until we can find out whether or not that his appeal is stated as Mr. White states or if it states as -- MS. ARNOLD: In the interim, they continue to collect rent on something since your order has been rendered. And that's my point. This is just a way to continue to operate in violation of your order. MR. WHITE: I object. CHAIRWOMAN BARNETT: I feel like my hands are a little bit tied, Jean. And I'm looking for you, because I really think we need to -- to do service correctly, we need to look at the legal issue. MS. RAWSON: Well, here, it's interesting. What Ms. Arnold is telling you is to deny the motion because it doesn't qualify to be modified. My discomfort in your hearing the motion at all is the lack of jurisdiction. But Mr. White on the other hand is telling you you've got jurisdiction, go ahead and make a ruling. So -- MR. WHITE: Let me make the rest of my presentation -- MS. RAWSON: -- you know, it's going to be up to you. He says, oh, yeah, you've got jurisdiction, I want you to have jurisdiction -- CHAIRWOMAN BARNETT: So we can make a ruling -- MS. RAWSON: Well, according to Mr. White-- CHAIRWOMAN BARNETT: -- according to Mr. White-- MS. RAWSON: -- it's okay, you didn't lose any jurisdiction. I don't know that. CHAIRWOMAN BARNETT: Ifwe don't modify anything, then Page 170 November 29,2007 we don't break the jurisdiction if it has gone to court, correct? MS. RAWSON: Right. I don't know. I know that when you file an appeal or a Writ of Cert, and I've seen the documents that you guys don't have anymore jurisdiction. He says you've got jurisdiction. Michelle is saying okay, if you have jurisdiction, deny the motion. MR. LEFEBVRE: Jean, do we have in an alternative denial to hear or denial to rule upon either one of these? MS . RAWSON: You can deny the motion. You can table the motion. MR. LEFEBVRE: Table is what I'm thinking of. MS. RAWSON: You can table the motion. MR. LEFEBVRE: Which is not denying it. MR. DEAN: Madam Chair, I'd like to make a motion. Motion for modification of orders be denied. CHAIRWOMAN BARNETT: Do I hear a second -- MR. LEFEBVRE: Denied or tabled? CHAIRWOMAN BARNETT: He said denied. Do I hear a second? MR. KELLY: By doing that, we're accepting jurisdiction. MR. DEAN: I agree. MR. KELL Y: Which I'm in favor of. But I'm just saying, I was the only one who was in favor of accepting jurisdiction on that. MS. ARNOLD: How are you accepting jurisdiction by acting on a motion that was asked of you? MR. KELL Y: If I'm not mistaken, by hearing the motion we're accepting jurisdiction, where Mr. Wright is saying that we technically don't have because an appeal was filed. MS. ARNOLD: Like the Lovelace case, you took action on that request, you denied it. MR. WRIGHT: Based on a lack of jurisdiction.- Page 171 November 29,2007 CHAIRWOMAN BARNETT: Exactly. MR. KELLY: Oh, I'm sorry. Okay, thank you. I see what you're saymg. CHAIRWOMAN BARNETT: I have a motion on the floor. Do I have a second? MR. MORGAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? MR. L'ESPERANCE: Opposed. MR. PONTE: Opposed. CHAIRWOMAN BARNETT: I have two opposed? MR. WHITE: May I comment. You've just cut off my ability to present you with the evidence that I think could have led you to conclude otherwise. And I fail to see how that's procedural due process. And that's what I'm actually just trying to get for my client is procedural due process. I don't care how many bites of the apple. If the apple is sour, my client has a right to keep coming back and asking. CHAIRWOMAN BARNETT: I appreciate you staying here the length of time you did and allowing the people to go in front of you. MR. WHITE: Thank you. CHAIRWOMAN BARNETT: I feel that in this case we have ruled the only way we could, other than to suspend it. MR. WHITE: Certainly that would have been preferred. And I don't know how you disposed of the motion and I don't recall there being a second, so procedurally I guess it's -- CHAIRWOMAN BARNETT: There was a second. Page 172 November 29,2007 MR. WHITE: I'm talking about the motion to table, Madam Chair. CHAIRWOMAN BARNETT: There wasn't a second. MR. WHITE: I understand. CHAIRWOMAN BARNETT: Okay, the next case is Board of County Commissioners versus -- oh, did he have a question? MR. WHITE: Well, what I wanted to do was to proffer what I would have otherwise told you as part of my motion. CHAIRWOMAN BARNETT: I think we've made a decision and I think that's ended it. I'm sorry. MR. WHITE: Okay, then I hope to not bore you by telling you about it in a different manner. CHAIRWOMAN BARNETT: We have the request of impositions of fines now, the Blockers. MS. ARNOLD: Right. I guess you can -- I guess -- should I proceed with those? MR. KELLY: Michelle, are these all -- they're the same. MS. ARNOLD: It's the same thing. MR. KELL Y: Can we lump them together or do you have to do them individually? MS. ARNOLD: I don't think so. I don't need to do them individually, unless Jean, you-- MS. RAWSON: I'm going to -- MS. ARNOLD: -- I'll just say it all together. MS. RAWSON: That's fine. I'm going to write three orders. MS. ARNOLD: These were all heard on the same day. That was heard April 27, 2006 and that was Cases No. 2006-16, 2006-17, and 2006-18, Board of County Commissioners versus Jerry and Kimberlea Blocker. The violations were of unlawful and unappropriate development of residential use in an industrial zoned property. A violation was found on all three cases, and the orders have Page 173 November 29, 2007 been attached for your review. Weare at this time asking that fines be imposed at a rate of $150 per day between the period of June 30th, 2007 through November 27th, 2007,152 days, for a total of $22,800. Also -- and that was for item number two, which indicated that if a rezoning action -- if rezoning -- acting in due diligence to pursue the rezoning and obtaining the same within 365 days from the pre-application meeting. So that was not done. Also, item number six indicated in the alternative by obtaining a complete and sufficient Collier County demolition permit within 90 days or within 10 days after abandonment of the pursuit of the SDP rezoning and SDP, whichever is applicable -- and from that there's an additional $150 per day from the period of July 10th, 2007 through November 29th, 142 days, for $21,300. Additionally, there's operational costs of $354.16, for a total of $44,454.16. And that applies to each case. The numbers are -- yeah, the amounts are exactly the same for all three cases. MR. L'ESPERANCE: 44,000 -- MS. ARNOLD: 44,454.16. MS. RAWSON: They all go through November the 29th? MS. ARNOLD: Yes. MS. RAWSON: So order number nine was -- what was the total? MS. ARNOLD: The total for order number nine? MS. RAWSON: Order item nine. MS. ARNOLD: Okay, all right. Which is equivalent to two, which is what I said, it's the $22,800. Because in the order we state what they have to do and then the fine amounts -- MS. RAWSON: Gotcha. MS. ARNOLD: -- are noted in another number. So it's a total of 44,454.16 per case. CHAIRWOMAN BARNETT: Jean, I have a question. Because Page 174 November 29,2007 we state in here that if they get a rezoning upon approval of an SDP or SIP. He's apparently trying to get permission to go after an SIP. So he is actually trying to comply in one way of proceeding. MS. RAWSON: Correct. MS. ARNOLD: But your order says rezone and SDP/SIP, whichever appropriate. CHAIRWOMAN BARNETT: Right. My thing is he's trying to get the SIP and get permission to get an SIP, so he's trying to comply in one respect, correct? MS. RAWSON: I think he is. And again, if you issue fines and he complies, he can come back and ask you to abate them. CHAIRWOMAN BARNETT: Right, so he has that-- MR. WHITE: Assuming that those fines and liens aren't recorded. Because once they are, you lose jurisdiction and it goes to the Board of County Commissioners. CHAIRWOMAN BARNETT: Well, then they have the right to waive fines too, I believe. MS. RAWSON: Well, yes, that's true. Actually, he has the right to come back and ask you to abate the fines, however, before you end up turning it over to the county attorney for foreclosure. That's when you lose jurisdiction. CHAIRWOMAN BARNETT: So even if we impose the fines, if they get through and they get the SIP or they get through this process, they can come back and ask us to abate the fines, correct? MS. RAWSON: We do it all the time. I know there's an Attorney General's opinion that says you can't do that, but we do it all the time. And it's not in the statute that you can't. The only time you have ever lost jurisdiction is when you tell the county attorney to foreclose. CHAIRWOMAN BARNETT: Okay, thank you. MR. WHITE: I'm just looking for some clarification, because I had been told by another assistant county attorney, Mr. Klatzkow, that as soon as those orders were recorded that jurisdiction of this board Page 175 November 29,2007 was lost. And if I'm mistaken about that, and what's on the record today is Ms. Rawson's opinion and this board's understanding that up to the point in the time at which foreclosure is being ordered -- or sought by this board that I have the opportunity to come back and request abatement and/or mitigation of fines, then that's fine, and I guess we could talk about that. CHAIRWOMAN BARNETT: Jean, do you want to answer that one? MS. RAWSON: I'm going to ask Jeff for his opinion. MR. WRIGHT: I agree with Jean, and the reason is, that particular AG opinion, we like to say it's hard and fast but it's not really settled law, and that opinion really says that it can only be released, compromised or settled by the governing body, so nobody else can get rid of it, but it doesn't say that it can't be amended in that interim. So it -- actually the special magistrate and -- the CEB special magistrate tends to draw the line at the imposition and not amend orders. But I have seen even her amend her lien orders. And I know, as Jean says, that you guys have done it regularly. Obviously the clear line in the sand is that 90-day period, once it's turned over for foreclosure, but until then the law's not perfectly settled. So I would defer to Jean and whatever advice you're getting from her. CHAIRWOMAN BARNETT: In the past we have released people. MS. RAWSON: Yes-- CHAIRWOMAN BARNETT: As long as they come up -- we've abated -- MS. RAWSON: Even have a form they can fill out to come in and ask for an abatement or a reduction of fines after they're in compliance, notwithstanding the AG's opinion. MR. WHITE: IfI could just kind of try to vision how that would Page 176 November 29,2007 have to occur. We would have to be cited for a violation of non-conforming under SIP. MR. KELL Y: If you stick around for a few minutes, the next item on our agenda is a request to forward to the county attorney's office. At that point you could come and speak to those issues. MR. WHITE: Understood. I have it clarified. Up until this moment, my understanding was otherwise, but I'm accepting what's being said and it makes sense to me. CHAIRWOMAN BARNETT: I will say that is how we have always practiced. Which is why I brought it out. I wanted to get that clarified for you. MS. ARNOLD: I believe there was a discussion with Mr. White at -- with this board regarding no time period for requesting reduction abatement of fine specified in your -- so, I mean, if you lose jurisdiction once you imposed it, how do you not then have -- how do you abate or reduce those fines if you lose jurisdiction after you've imposed it? I don't know if you recall that whole discussion that there was no time period specified in our rules. MR. WHITE: I'm not sure if Ms. Arnold is saying something different than what our general understanding is. I hope not. MS. ARNOLD: No. MR. WHITE: We're all in agreement then. That's fine. CHAIRWOMAN BARNETT: So we need to make a ruling as to whether or not to impose these fines. MR. WHITE: Madam Chair, I believe that I hopefully have an opportunity to -- CHAIRWOMAN BARNETT: I'm going to let you speak now. MR. WHITE: Thank you. My first objection is a procedural one, and it goes to the rules and regulations of this board. And what I'm suggesting to you is that -- and I don't know if the rules and regulations that are out front on the table are the current rules or not? Page 177 November 29,2007 MR. KELLY: They're the current rules aside from two small changes, and I believe those are highlighted or underlined. They're underlined. MR. WHITE: In the document that's out there? CHAIRWOMAN BARNETT: Yes, that's what I understand. MR. WHITE: Then I would direct your attention to what I have a copy of that's Page 8, under Article 10, Roman numeral 10, entitled Enforcement. Is everybody with me? MR. L'ESPERANCE: On Page 10? MR. WHITE: No, no, sir, Page 8, Roman numeral 10. MR. DEAN: What section? MR. WHITE: I'm going to for the moment step over section one and direct your attention to section two. It says the investigator shall file an affidavit of compliance or noncompliance with the secretary to the board. There are two affidavits of noncompliance in each of the three cases that we're here discussing today. Can someone tell me when those were filed? Because I note that they're dated respectively -- that they were sworn on anyways, June 29th and July 11 tho So I just have a question as to when they were filed with the secretary. Is -- Ms. Marku, are you under oath? (The speaker was duly sworn.) MS. MARKU: I would like to state that the affidavits of noncompliance that were provided to me were provided the same date that they were already signed by the investigator and notarized by the investigator. The investigator, Dennis Mazzone, in this case, in the three cases, the date that he dated the affidavit and the date that he notarized the affidavit, he provided me with the original copies. MR. WHITE: So it's your testimony that they were considered filed on those dates? Page 178 November 29, 2007 MS. MARKU : Yes, sir. MR. WHITE: Would it be your duty, Ms. Marku, to send a copy of those affidavits by regular mail as section two states? MS. MARKU: Section two in the rules? MR. WHITE: Yes, ma'am, section two, the second sentence reads: Copy of said affidavit shall be sent to the violator by regular U.S. Mail and recorded in the public records of Collier County, Florida. And then thirdly, the secretary to the board shall report the status of the said affidavit at the next scheduled board meeting. Was there a -- MR. L'ESPERANCE: I'm not reading those provisions in my copy. MR. PONTE: I didn't see that. Where are we? CHAIRWOMAN BARNETT: I think you have a different copy than we do. MR. WHITE: I have what was out front. I apologize, board members. (Discussion was held off the record.) MR. WHITE: Then can we go back on the record? MS. ARNOLD: What he's reading from is the one that has actually been approved by the board. The one that you have in your packet, it hasn't been approved by the board, and so that's why -- CHAIRWOMAN BARNETT: There were some changes on this one, that's why we were all looking, going we can't find it, so -- MR. WHITE: Well, the one that I'm reading from -- CHAIRWOMAN BARNETT: That's the one that is actually the approved one. So we just went out and got some copies for everybody, so -- are there any more out there? Let's go back to Page 8. MR. LEFEBVRE: Page 8, you said, section ten? CHAIRWOMAN BARNETT: Two. Page 179 November 29, 2007 MS. ARNOLD: Article ten. CHAIRWOMAN BARNETT: It's article ten, section two. Now we're all on the same page. MR. WHITE: Thank you. MR. WRIGHT: I would object to this line of questioning about the issuance of the affidavit and the ordering of the affidavit. The relevant information that you should be looking at is in section three. I would just say section three, actually. MR. WHITE: That's a request for a reduction or abatement of fines. MR. LEFEBVRE: These are rules we haven't voted on, correct? CHAIRWOMAN BARNETT: Correct. MR. LEFEBVRE: So then why are we looking at this? MR. WHITE: The copy that I have-- CHAIRWOMAN BARNETT: The one that's out front is the current copy that we have voted on. The one that's in our packet is the one that we have not voted on. MR. WHITE: I may get confused if this keeps up. I'm sorry for that. Because I'm just trying to follow the rules. That's my job is to help us all. CHAIRWOMAN BARNETT: That was our misunderstanding because we're all looking at the ones we haven't even voted on yet tonight. MR. WHITE: Then we're agreed as to what article ten, section two says under the heading Enforcement. CHAIRWOMAN BARNETT: Should be sent to the violator regular U.S. Mail and recorded public records -- sorry. It says that a copy of said affidavit shall be sent to the violator by regular U.S. Mail and recorded in the public records of Collier County, Florida. The secretary to the board shall report the status of the said affidavit at the next scheduled board meeting. MR. WHITE: Thank you for putting it into the record. Page 180 November 29,2007 And so I just return to my question, ifI may. Ms. Marku, was there a point in time at which you sent a copy of the affidavits of July MR. WRIGHT: Objection. This is irrelevant to the question of whether or not to reduce the amount of the lien. MR. WHITE: The question is whether they should be imposed or not. There is no lien. MS. MARKU: There is no amount of time where it states in the rules that I have to provide you with -- that I have to provide the respondent with a copy of the affidavit. Also, this case has been going on in a continuance, have been put on the agenda, I removed off the agenda, so -- and these affidavits has been part of the exhibits. MR. WHITE: They're part of the exhibits of to day's -- MS. MARKU: Today, and last hearing when it was continuance. MS. ARNOLD: Patrick, the process has been -- MR. WHITE: Michelle, I think I can understand how to read the rules, and I'm just trying to ask some questions about whether your staff has followed the process, whether the county -- MS. ARNOLD: And I'm trying to answer-- MR. WHITE: -- can at this point lawfully impose fines. MS. ARNOLD: I'm trying to answer your question, Patrick. MR. WHITE: I did not ask a question of you, Michelle, I asked a question of Ms. Marku. MS. ARNOLD: And she replied to your question. Can I explain the -- MR. WHITE: And I would like to ask her some more questions about that answer, ifI may, please. May I inquire, Madam Chair? CHAIRWOMAN BARNETT: Go. MR. WHITE: Thank you. So Ms. Marku, let me see if I understand. Is it your testimony Page 181 November 29, 2007 that you never sent a copy of the affidavit to the Blockers by regular mail? MS. MARKU: No, I have not. MR. WHITE: Did you at any point in time record in the public record of the county those affidavits? MS. MARKU: No, I have not. MR. WHITE: And was there a point in time at which you as the secretary to the board reported the status of those affidavits from July and June, at whatever would have been the next then scheduled board meeting? MS. MARKU: I have placed these copies of the affidavit on the exhibits that the board members have received from last month's agenda that they were -- you had a motion for continuance. It was in their packets, as well in these packets again. And it does not state on the rules that it has to be a specific amount of time where I would have to send these affidavits to the respondents. MR. WHITE: Well, that was my first question, which I thought you previously answered that you had not. The third question had to with whether you reported the status of them at the next board meeting. That would be the board meeting following June 29th and July 11 th, which would have been the meeting at the end of July, as far as I know. And so my question is, did you report those affidavits at the end of July, 20077 MS. MARKU: And then my answer again is that they were on the packets of the board members. MR. WHITE: For which month? MS. MARKU: It was for the last month. MR. WHITE: For October? MS. MARKU: Yes. MR. WHITE: And for November. Page 182 November 29,2007 MS. MARKU: Yes. MR. WHITE: So it's fair to say they were not part of the packets for July then? MS. MARKU: I have to go back and see if you were -- if you were on the agenda in July, then yes, they were. MR. WHITE: It's okay to say you don't know. I'm not trying to make this torturous, believe me. I just need to get on the record that there is a noncompliance with this board's own rules about providing affidavits of noncompliance. MS. ARNOLD: And I would have to object, because Patrick White knows that he has requested continuances prior to coming to this board so we were unable as staff to place this on the agenda for your consideration the following month based on his continuances. MR. WHITE: There are two separate issues of whether the affidavits of noncompliance are reported -- MS. ARNOLD: And because he's not allowing me to tell him what the procedures are, I can't explain to him why those affidavits weren't put on there. CHAIRWOMAN BARNETT: Michelle, I'm going to ask you to go ahead and explain the procedures to me. MS. ARNOLD: Well, the normal procedures are once -- and they are normally placed on the agenda the next month after being filed with the secretary and then recorded after the board's action has been taken. But because this particular -- and we do imposition of fines timely, because the affidavits are requested at the time your specific actions are so noted in your order. And in this particular case, you've got several different actions to be taken. So the affidavits were filed, provided to the secretary to the board. She attempted to place them on your agenda so that you would have an update. Several requests were made for continuances, so I've asked her not to place them on the agenda prior to your being asked that yourself. Page 183 November 29,2007 So that was the reason at our last hearing that we asked that that be the final request for continuance that was being granted for this particular case, or these cases, because there's been numerous requests that have been granted for this case, and that's the only reason why you weren't able to consider them prior to today. CHAIRWOMAN BARNETT: Okay. Jean? MS. RAWSON: Yes. CHAIRWOMAN BARNETT: Because apparently there has been a difference on how we've handled this case because of the continuances -- MS. RAWSON: Correct. CHAIRWOMAN BARNETT: -- we have apparently not given the defendant -- his affidavit has not been mailed to him. MS. RAWSON: It usually goes out with the packet that you get that they get. CHAIRWOMAN BARNETT: So he would have received it last month then. MS. RAWSON: He should have. MR. WHITE: No, he did not. MS. RAWSON: It's in your packet. They get the same packet you do. MS. ARNOLD: What I had indicated is that they would get it after your consideration. But you've never considered it. So apparently it was never mailed to them. CHAIRWOMAN BARNETT: Okay, so they haven't actually received an affidavit then? MS. MARKU: They have received an affidavit. Yesterday I -- if I recall correctly, I had a public request from Mr. White's office to have the packet of evidence, these exhibits, and she has received those. MR. WHITE: And the reason we asked is because we hadn't received them, they hadn't been provided by mail. Page 184 November 29,2007 Now, we're talking about the third of those three things, and the first of them. But the one that I think is most problematic for this procedure is the fact that they were never recorded. And certainly I would suggest that if your rules require something be done and it's not done, that it's premature and inappropriate for you to consider imposing fines today. CHAIRWOMAN BARNETT: Jean? MS. RAWSON: You know, I'm going to let Mr. Wright speak here. I'm not sure that one has a whole lot to do with the other, honestly. You know, the liens and fines are going to continue to accrue from the June date and from the July date, you know. If you impose them today or if you impose them next month because now we gave them a copy of the affidavit, I mean, they're just going to keep going. MR. WHITE: Like I said, we skipped over section one. CHAIRWOMAN BARNETT: I understand. Mr. Wright? MR. WRIGHT: I just want to point out that compliance is no longer at issue. Everybody knows, including Mr. White, that it's not in compliance. So the fact -- MR. WHITE: I object to Mr. Wright putting words in my mouth. I wish you would stop. MR. WRIGHT: I apologize, maybe it is in compliance, in which case we should be made aware of that. But we haven't been made aware of that. So far, based on what I've heard and what I've seen, the property is not in compliance, and I think that's consistent with your order as well. Now, whether or not there was a mailing of an affidavit, I trust that Bendisa put together the appropriate packages and sent it to them. Regardless of that, compliance is not at issue in this instant matter which you're considering, which is whether or not to impose a lien. There's already been a finding of noncompliance. There hasn't been a finding of compliance. Page 185 November 29,2007 So to get run off the path on this red herring is just going to take up more of your time. And I would just suggest that you focus specially whether or not to impose a lien and give him the courtesy of, as he's requested, considering factors for mitigation of the fine. MR. WHITE: Certainly the first of those would be whether the county itself complied with its own rules. And I find it somewhat astounding that a member of the Bar would suggest to you that you don't have to follow your rules, that you should just rush to judgment -- if I may be like you and put some words in your mouth -- and impose fines without having any discussion about whether or not there has been compliance, or efforts towards compliance, or what the gravity of the violations may be. There are a set of factors that are supposed to be evaluated. And I'm prepared to put on evidence about those things for you in an effort CHAIRWOMAN BARNETT: I would like you to move forward on that then and give us some of that information because I'm getting tired of listening to everything but the information that should be pertinent to whether or not we have a fine imposed. MR. WHITE: I appreciate your frustration, Madam Chair, believe me, I really do. I would object that we are not procedurally in a proper position to be able to consider the imposition of fines unless and until at the minimum those affidavits are recorded in the public records. Your rules require it, it's not been done. I don't know how you can get to the point of going ahead with the process when it hasn't been complied with under your own rules. MS. ARNOLD: Can I say something? That these rules are guidelines for you, and you all as the board being your rules have the discretion whether or not to accept or require all those actions to be taken. As Bendisa pointed out, there's no time line specified of the recording of the liens -- of the affidavits. So I mean, I'm not sure Page 186 November 29, 2007 where Mr. White is coming from that they have to first be recorded in the public records before you all consider imposing those fines. And if they're recorded, as J eff Wright indicated, so what? They're still in noncompliance. The fines still continue to accrue. You all just need to make a determination whether or not you want to impose today or we'll bring it back again in another month for you to impose, because I don't think we're going to get anywhere closer to compliance. CHAIRWOMAN BARNETT: I want to find out why he thinks he should -- besides the affidavit issue, because I don't think it falls into play here, to be honest, because there is no time frame where it says in our -- it says it needs to be filed, it doesn't say when. I would like to move forward and listen to what he has to say in regards to why we shouldn't impose the fines at this time. Because he says he has arguments in that regard. If I don't hear that information, then I'm going to stop this proceeding and I'm going to ask the board to make a decision. MR. WHITE: Thank you, Madam Chair, I'm happy to move forward. But I'm noting my procedural concern for the record. CHAIRWOMAN BARNETT: I understand. MR. WHITE: Thank you. The first thing I'd ask you to do is kind of go back to where we were before. The gravity of the violation here, I think, has largely to do with the public health, safety, welfare concerns that this board saw with respect to the adjacent property. And the photographs that were provided to you and are part of the record indicate clearly that there has been significant clean-up and that largely all of those materials that were offensive and obnoxious and were a nuisance accumulation have been removed from the property line and are in the process of continuing to be cleaned up. And I believe that as to the extent of any violation in terms of this board feeling that there was a health, safety, welfare concern, that it has been mitigated. And I would ask that the fine amounts certainly Page 187 November 29, 2007 should reflect that. There are other concerns I have about the affidavit of noncompliance. And Mr. Mazzone is here and if I may ask him a few questions, please, about it? CHAIRWOMAN BARNETT: Mr. Mazzone. You have to swear him in, Cherie'. (Speaker was duly sworn.) CHAIRWOMAN BARNETT: Before we start, we're having to lose another member because he has to be elsewhere. So we'll say good-bye to George. Merry Christmas, George. MR. PONTE: Merry Christmas. CHAIRWOMAN BARNETT: We might still be here. (Mr. Ponte leaves the room.) MR. WHITE: I was hoping for New Year's, actually. MS. RAWSON: You're going to lose your attorney very shortly, because I'm catching a plane. So, Mr. White -- MR. WHITE: Trust me, I had somewhere else I had to be at 3:00 as well. MS. RAWSON: We're probably going to have to really -- because they can't do without me. So let's get this done. CHAIRWOMAN BARNETT: Go ahead, Mr. White. MR. WHITE: Thank you. Mr. Mazzone, you're the one that prepared the June 29th and July 11 th affidavits, and do you have a copy of one of those in front of you? MR. MAZZONE: I do not. MR. WHITE: Could someone provide him with a copy, please. MR. MAZZONE: I have those now. MR. WHITE: In paragraph number three of the June 29th affidavit, you make the statement that -- in the second sentence that the respondent has not complied with paragraph nine by not having acted with due diligence in pursuit of a rezone of property in question by June 29th. Page 188 November 29,2007 What actions did you take to determine that my clients had not used due diligence? MR. MAZZONE: I had spoken to a planner who was in charge of that project and they had stated that there had been no progress made, they have not heard back from you. MR. WHITE: Did that individual also tell you, Mr. Mazzone, that we weren't able to file for a rezoning because we did not have a comprehensive plan amendment? MR. MAZZONE: I don't believe they mentioned that. MR. WHITE: But it is your understanding that one is required? MR. MAZZONE: Correct. MR. WHITE: So is it fair to say that no matter what degree of diligence my clients would have used, there was no way they could have obtained a rezoning by June 29th because they did not have a comprehensive plan amendment? I mean, is that a fair statement? MR. MAZZONE: I think that's a statement. I believe that the process of going through a rezone, in my heart of hearts, was one that was just a delay tactic. MR. WHITE: I understand. I've heard that from others before. Thank you for your opinion. CHAIRWOMAN BARNETT: Mr. White, I've got a question. I think all of this information that you're presenting would be really good for an abatement of fines if it were imposed at a later time. I would -- MR. WHITE: It goes to the second factor ma'am, that says any actions taken by the violator to correct the violation. My point is simply this: There were no actions we could take to rezone the property because we're legally precluded from doing so because we did not have a comprehensive plan amendment. Nor did this board afford us time to get one. CHAIRWOMAN BARNETT: Which is what I'm stating is, I Page 189 November 29,2007 think it would be a better argument for an abatement. Michelle? MS. ARNOLD: As I noted earlier, Mr. White indicated that he was told at that preap. meeting that he needed a compo plan amendment in order to pursue a rezone. He could have at that time come back to the board and asked for additional time. He could have at that time submitted a compo plan amendment request and started pursuing something towards the rezone, but neither of those avenues were taken. MR. WHITE: May I respond, Madam Chair, in kind? CHAIRWOMAN BARNETT: Yes. MR. WHITE: No one from code enforcement came to you either when they recognized that there was a problem. Instead they rely upon my client to come back here. And we did. But we felt it was in our best interest to not come back to you all until we had done what we could under the other factor that says what can we do to abate the violation that you were concerned about as far as the health, safety, welfare concern. And it has taken our best efforts until the end of this month to get those things in place. So I ask you, was that fair? The second point that Michelle made was that we haven't filed for a small-scale amendment. Well, what we have done in the alternative, as my motion indicated and I think as some of the testimony has been stated thus far, is that my clients are actively involved in the Immokalee master plan restudy process, and routinely attend the master plan visioning committee meetings. So I fail to understand why the county's failure to come forward and look to correct an order which they recognize is a problem because it doesn't give time to get a compo plan amendment suddenly becomes my client's problem. MS. ARNOLD: And I would object. I've never said that. I Page 190 November 29,2007 believe your order was -- can I just speak to the comment about -- CHAIRWOMAN BARNETT: Actually, the board's getting a little bit leery. MS. ARNOLD: Can I just make one comment, speak to the abatement of the health, safety? It was Mr. White's testimony previously, I believe, that he indicated that the site improvement plan process would afford his clients to come into compliance and allow them to replace some units that are currently on there. I would argue that the reason some of those units needs to be replaced is because they're not completely up to code. MR. WHITE: There's no evidence of that, ma'am. MS. ARNOLD: Well, I'm just kind of repeating what -- there would be no reason for replacement-- MR. WHITE: No, I was simply indicating -- MS. ARNOLD: -- if these units were 100 percent health, safety without health, safety concerns. MR. WHITE: There's a large difference between them being sufficient for human occupancy, and that was the other document I was seeking to give you from HRS. MR. DEAN: You're out of compliance. CHAIRWOMAN BARNETT: I'm done. Right now it is out of compliance. It has not come into compliance. I will grant that the respondent has done some due diligence in trying to bring it -- get it to where he can bring it into a compliance in the manner that he wants. I'm going to close it. I think I've heard enough. It may not be to your liking, but we need to move forward, because we're about ready to lose our attorney and we won't be able to finish the rest of our cases for the day. MR. WHITE: Madam Chair, I'm prepared to come back at any point in time when you have a quorum and an attorney. MR. DEAN: Motion to close the public. MR. LEFEBVRE: Second. Page 191 November 29,2007 CHAIRWOMAN BARNETT: There's been a motion from the board member to close the public hearing, and a second. MR. WHITE: Just note for the record-- CHAIRWOMAN BARNETT: All in favor? MR. MORGAN: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) CHAIRWOMAN BARNETT: Okay. MR. WHITE: I just note for the record there were at least two other factors -- MR. DEAN: It's closed-- CHAIRWOMAN BARNETT: I understood. MR. WHITE: Mr. Dean, I believe I have the right to put on the record for me to appeal -- MR. DEAN: Sir, we closed the meeting for the public. You've talked for two and a half hours, sir. CHAIRWOMAN BARNETT: Mr. White, I understand that you have two other points that you would have liked to have brought up, and I will put it on the record for you. And that should close it. MR. WHITE: It does. CHAIRWOMAN BARNETT: I'm looking for whether or not to impose the fines. MR. LEFEBVRE: I make a motion to impose the fines. CHAIRWOMAN BARNETT: Do I hear a second? MR. MORGAN: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. Page 192 November 29, 2007 MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. At this time we're imposing the fines. However, as I stated, you have the right to come back and ask for abatement once you come into compliance, however long that takes. MR. WHITE: As long as it doesn't take more than three months. CHAIRWOMAN BARNETT: And at that time frame, your arguments would weight heavy. I will tell you that. Okay? MR. WHITE: I appreciate knowing that, and I would just want to say for the record that as far as the imposition of fines and the dollar amounts, I believe that they are in excess of what is necessary to get us to compliance. Weare doing things and have demonstrated to you that we have done things -- CHAIRWOMAN BARNETT: Come back at the time you come into compliance and use that argument, sir. I'm not saying you have to pay it at this time, I'm saying come into compliance and come back to us and we will look at abating some of them. MR. WHITE: You understand that that's at least three years away. CHAIRWOMAN BARNETT: That may be. Thank you. MR. WHITE: Thank you. CHAIRWOMAN BARNETT: The next case is Board of County Commissioners versus Alfredo and Miradis Miralles. MS. ARNOLD: This case was actually on your agenda last month, and Mr. Miralles came, and there was question about whether or not it was clear that he needed to paint over the shadowing, I believe, of the sign. And you gave him additional time before abating -- imposing the fines. Page 193 November 29,2007 The violation has been abated. He did it the next day. We went and verified that. So it's up to you all whether or not you want to impose the fines that were accrued at that point. That was from September 7th, 2007 through October 29th, 2007 for a total of 52 days at a rate of$100 per day, $5,200. There is an additional $335.67 for operational costs. None of any of the fines or operational costs have been paid. I don't know if you recall at your last hearing as well, there were several other items I believe on -- CHAIRWOMAN BARNETT: I don't recall because I wasn't here. But does Mr. Snow have an opinion on this particular case? (Speaker was duly sworn.) MR. SNOW: Investigator Kitchell Snow for the record. No ma'am, we have -- ifthe board would decide leniency on this matter. It was just a small matter of painting the shadowing, and we would have no objection to any reduction of fines. CHAIRWOMAN BARNETT: He found that out and then he took care of it the next day. MR. SNOW: He took care of it the next day. And they were doing a lot of work up there on it. You weren't here, Madam Chair, but they were working on another property. They did everything else but just the shadowing, and he did it the next Monday, right after when the board ordered. So we would have no objection to any reduction. CHAIRWOMAN BARNETT: I'll close the public hearing then. Wait, Michelle had one more thing to say. Okay. MS. ARNOLD: I just wanted to note that there is one other case that you all did consider with Mr. Miralles. He did have operational costs for that, and those haven't been paid either. So maybe some time period could be placed on -- CHAIRWOMAN BARNETT: When he has to pay -- MS. ARNOLD: When he has to pay whatever he has to pay. And if you are reducing it, if it's not paid timely, then maybe some Page 194 November 29,2007 consideration should be given to bumping it back up to what the original amount was. MR. KELL Y: I'll make a motion that we impose operational costs of$335.67 to be paid within 30 days. CHAIRWOMAN BARNETT: If it's not paid within 30 days? MR. KELL Y: Can we do anything with operational costs as far as -- CHAIRWOMAN BARNETT: No. We can go back to adding some of the fine back, though. Michelle had asked that if they didn't pay what he asked them to pay, operational costs, that we then go back to incurring some of the fine. So I was just telling him that that's what he ought to consider. MR. KELL Y: In my motion, we would impose operational costs of$335.67 to be paid within 30 days or a civil penalty of$1,500 would be imposed. MR. LEFEBVRE: Second the motion. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) CHAIRWOMAN BARNETT: Okay. Does that work? MS. ARNOLD: So essentially you're abating the fine, and ifnot -- if the operational cost is not paid within 30 days, the fine of $1 ,500 would be imposed, correct? MR. KELLY: Yes, ma'am. And the reason why I said that, it's not a number I pulled out of the air. In the stipulated agreement, there was, because it was a repeated violation, a $1,500 civil penalty. I think Page 195 November 29,2007 that's part ofthe same -- MS. ARNOLD: No. MR. KELL Y: I have a copy of their stipulated agreement. CHAIRWOMAN BARNETT: That was in the original. MS. ARNOLD: That's what I was going to say. We've had other cases with Mr. Miralles, and I don't believe it's the same case that you MR. KELLY: Okay, so this wasn't supposed to be in our packet then? CHAIRWOMAN BARNETT: Anyway. MR. KELLY: Well, anyways, that's-- CHAIRWOMAN BARNETT: That's why he pulled it out. MR. KELL Y: That's why I picked that number. MR. L'ESPERANCE: It's still a good number. MS. ARNOLD: That wasn't supposed to be there. I caught that too. MR. MORGAN: I caught one too. CHAIRWOMAN BARNETT: That's okay, it was a good number and we went with it, so continue. Okay, I believe next is a request to forward to the county attorney's office. BCC verse EJ. Properties LLC. Leonardo D. Starke, Esquire. MR. DEAN: I make a motion we move this to foreclosure. MR. KELLY: Second. CHAIRWOMAN BARNETT: And then there was a second. All those in favor? MR. MORGAN: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Page 196 November 29, 2007 Any opposed? (No response.) CHAIRWOMAN BARNETT: The next one being Board of County Commissioners versus Patrice E. Savignano. MR. KELL Y: They went together. CHAIRWOMAN BARNETT: They went together? Oh, he sent them together, I'm sorry. MS. ARNOLD: There's a memo, that was what I was searching for, that you all should have received, that just lists the properties that have passed the three-month time period that need to be forwarded for action before the -- CHAIRWOMAN BARNETT: We're sending them both to the-- MS. ARNOLD: County attorney. CHAIRWOMAN BARNETT: Okay, new business. Code Enforcement Board rules and regs. And I had one little item on the new ones. MR. LEFEBVRE: I don't know where I got that in my packet. CHAIRWOMAN BARNETT: It was in your packet. MR. LEFEBVRE: I got mine yesterday. So I'm not sure where it should be or where it was. MR. DEAN: What's the number you're looking for? CHAIRWOMAN BARNETT: It was on Page 2, article five, section two. I just need to scratch out a couple of words, if everybody agrees, because we're planning on not having a meeting in December. And according to our rules, and we want to make sure we're going to comply with our rules, the regular meetings, regular meetings of the Code Enforcement Board shall be held at least monthly. And seeing that we're skipping a month, we need to strike out that at least monthly and just say on the fourth Thursday and/or at times and places as needed determined by the board in the Board of County Commissioners chambers. And leave it alone. If that's okay with everybody? Page 197 November 29,2007 MR. DEAN: He says if you miss two out of three consecutive -- CHAIRWOMAN BARNETT: No, no, no, no. We're on page-- MR. DEAN: You said Page 2. CHAIRWOMAN BARNETT: Section two, held at least monthly. MR. DEAN: Okay. MR. L'ESPERANCE: Madam Chair, I would concur with your recommendation. MR. LEFEBVRE: It says place -- okay. MR. DEAN: I thought the answer came with 4-B. It says succeSSive. CHAIRWOMAN BARNETT: I'm just wanting to make sure that we have the right to skip a meeting if we need to for holidays or whatever, no ability to have one because we have no room to have one, whatever the case may be. MR. DEAN: At least monthly except for holidays. MR. LEFEBVRE: Let's go to the next -- the comma after Thursday, and/or at other times and places needed and determined by the board in the Collier County commission chambers. That's contradictory. It's saying that you can only have it in -- CHAIRWOMAN BARNETT: At the chambers. MR. LEFEBVRE: Right. But in the sentence before, in that same sentence it says and/or at other places and times. MR. L'ESPERANCE: That's not exclusionary, it's inclusive. CHAIRWOMAN BARNETT: It's and/or. All right, move on. Michelle, you had this brought up to us because of a few changes? MS. ARNOLD: Yes. We have highlighted in article six of your agenda just some minor things to reflect really what you're doing currently on your agenda. Order of business. And that would be to insert A, motions for imposition of fines under old business. Motion for Page 198 November 29,2007 reduction/abatement of fines, and to include in there also under item seven, a consent agenda item, clarifying that those would be motions for imposition of fines where the respondent is not present. That was something that you all -- you weren't here -- requested to be considered, you know, since some of these things are so routine. Once you approve the agenda the consent agenda items are also being approved. If the respondents are here for those motions for imposition of fines, obviously we would have it under old business and they would be afforded the opportunity to speak. Same thing for -- well, for the items requesting county attorney's action. So those would be -- and the other reason for bringing this back is number seven. We actually attempted to put this on the Board of County Commissioners' agenda, and it's been pulled because there was some language that currently is in your rules that the county manager felt is in conflict with his ordinance. So the suggestion is to modify paragraph P, which is on Page 7, to reflect actually what the statute says is that the board shall notify the local governing body, which may make all reasonable repairs required to bring the property into compliance. And this would apply to when you're giving us authorization to demolish something or to clean up the litter or to tow, whatever. So instead of you giving us direction, you're really saying okay, we're notifying you, you can go ahead and do this if you find fit. And we've coordinated something with the county manager's office that he would look at those things. Is that the only thing? Did you have anything, Jeff? MR. WRIGHT: Nothing. CHAIRWOMAN BARNETT: Do we need to make a vote on this then? MR. KELLY: Yeah. I make a motion we accept the changes. Page 199 November 29,2007 MR. LEFEBVRE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Any opposed? (No response.) MR. KELLY: Under new business, can I add one thing in real quick? Since Gerald had to resign in order to seek public office and he was our vice chair, I don't think that it's fair that I stay as vice chair. I was wondering if it would be okay to step down and to allow Gerald the opportunity to continue out the rest of his term as we originally voted. If that's the will of the board. CHAIRWOMAN BARNETT: Is there any objection or comments? MR. DEAN: Gerald, do you still want to be the vice chair, sir? MR. LEFEBVRE: Sure, yes. MR. DEAN: And you want to do that, sir? MR. KELLY: Yes. MR. DEAN: I'll make the motion that Gerald Lefebvre become the vice chair and Mr. Kelly is stepping down. CHAIRWOMAN BARNETT: Need a second. MR. L'ESPERANCE: Second. CHAIRWOMAN BARNETT: All those in favor? MR. MORGAN: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. Page 200 November 29,2007 CHAIRWOMAN BARNETT: Aye. Any supposed? (No response.) CHAIRWOMAN BARNETT: Okay. MS. ARNOLD: Can I just add one other comment? Oftentimes the respondent, although they're supposed to give their packets to us in advance, they don't do that, and we just kind of as a routine accept it and the county's not ever seen it. I just request that the board afford us the opportunity to review it before, just as we do for them. CHAIRWOMAN BARNETT: I tried to do that today when I was cognizant of the fact you didn't get them. Okay, do we have any other? MR. DEAN: Affirmative defense. MR. WRIGHT: I'll try to limit this to a minute or so. Jeff Wright for the county attorney's office. There's a new consolidated Code Enforcement ordinance, as you probably are all aware of. It's Ordinance No. 2007-44. And that ordinance is 14 pages long. On the 14th page, under article six, is Affirmative Defense. And that affirmative defense provision provides basically that you go to the building official, and I will read directly from that paragraph. It shall be a complete defense to a code enforcement action, and I'm paraphrasing here, if you are able to demonstrate to the building official as defined by the Florida Building Code, by a preponderance of the evidence. So basically, anybody that wants to use this particular defense has to go to the building official, who has his own scale and is trying to weigh by a preponderance of the evidence. So we've run into some questions on how does the average person coming through the door at CDES invoke this affirmative defense. And I wanted to give you all this information and also the public the information. There is a person in the lobby right now, Carol Page 201 November 29, 2007 Stachura, probably not much longer, but Carol Stachura, who is answering questions directly related to this affirmative defense. And also, the building department is putting together a formal policy that they'll publish and have up front for people to look at so they'll know exactly what they need to do to invoke this defense. And I would ask if anybody has any questions. We want to kind of promote this to people so they don't realize it halfway through their case that they had this option. So we want to make it known that people have this available to them. So if you have any questions, call our office, the county attorney's office. Our number is 774-8400. Or you can call the permitting hotline. I don't have the number here, but the contact person is Carol Stachura, S-T-A-C-H-U-R-A. And I apologize if I went over time, but that's all I have. MS. ARNOLD: I just have one other announcement. The special magistrate is going to be conducting a public forum on January 30th? MS. MARKU: 31st. MS. ARNOLD: 31st. And it's for the public. She would love it if you all would attend as well. And it's -- trying to make announcements in as many places as possible so that we have pretty good attendance. And the idea behind it is just to give the public some understanding of that process, which is very similar to this process. And we're going to try to have like some mock hearings so that the public, if they choose to participate, they can kind of understand by being placed in certain -- you know, a situation of a respondent or a situation of the investigator to try to get an idea of what the process is all about and what's expected of people that are attending that process. So it's January 31st, and it's going to be in the Board of County Commissioners' chambers. MR. DEAN: Sounds like fun. Maybe we'll go into the New Year MS. ARNOLD: I know, it does sound like fun. Page 202 November 29,2007 CHAIRWOMAN BARNETT: Time frame? MS. ARNOLD: 9:00? Or is it 8:30? MS. MARKU: 9:00. MS. ARNOLD: 9:00. MR. LEFEBVRE: The other thing is, maybe we can all pull our packages out for Emma Houston since we're probably going to re-see this next -- CHAIRWOMAN BARNETT: There's a couple of them, actually. I didn't do that, that's in the pile. MR. LEFEBVRE: But maybe just to save -- MS. ARNOLD: Thank you so much for doing that. MR. LEFEBVRE: -- some time and money. MR. DEAN: You said January 31st? MR. LEFEBVRE: Which was the other case? CHAIRWOMAN BARNETT: The Skyles. MR. LEFEBVRE: What was it, Styles? MS. RAWSON: Van Slykes. CHAIRWOMAN BARNETT: And with that, do we-- MR. DEAN: I make a motion to adjourn. MR. KELLY: Second. CHAIRWOMAN BARNETT: Thank you. All those in favor? MR. MORGAN: Aye. MR. DEAN: Aye. MR. LEFEBVRE: Aye. MR. LESPERANCE: Aye. MR. KELLY: Aye. CHAIRWOMAN BARNETT: Aye. Page 203 November 29,2007 ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 4:30 p.m. COLLIER COUNTY CODE ENFORCEMENT BOARD SHERI BARNETT, Chairman These minutes approved by the Board on as presented or as corrected , TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY CHERIE' NOTTINGHAM Page 204