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CEB Minutes 03/27/2008 R March 27, 2008 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida March 27, 2008 LET IT BE REMEMBERED, that the Code Enforcement Board, in and for the County of Collier, having conducted business herein, met on this date at 9:00 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Gerald Lefebvre Larry Dean Kenneth Kelly Edward Larsen Gerald Lefebvre Richard Kraenbring Lionel L'Esperance George Ponte (Absent) Charles Martin (Absent) Jerry Morgan ALSO PRESENT: Jean Rawson, Attorney for the Board Michelle Arnold, Code Enforcement Director Bendisa Marku, Operations Coordinator Page 1 -CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA AGENDA Date: March 27,2008, at 9:00 a.m. Location: Collier County Government Center, Third Floor, 3301 East Tamiami Trail, Building F, Naples, FI 34112. NOTICE: THE RESPONDENT MAY BE LIMITIED TO TWENTY (20) MINUTES FOR CASE PRESENTATION 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. 1. ROLL CALL 2. APPROVAL OF AGENDA 3. APPROVAL OF MINUTES - February 28, 2008 4. PUBLIC HEARINGS A. MOTIONS Motion for Rehearing 1. BCC vs. James Bachmann CEB 2006090001 Motion for Extension of Time 1. BCC VS. Bart and Sandy Chernoff 2. BCC vs. Alfredo and Miradis Miralles CEB 2007-105 CEB 2007-109 B. STIPULATIONS C. HEARINGS 1. BCC vs. Stanley F ogg, JR and Theresa F ogg 2. BCC vs. Brien S. Spina 3. BCC vs. Mary Edwards 4. BCC vs. Jeffrey Macasevich 5. BCC vs. Frank Fernandez 6. BCC vs. Toys R US 7. BCC vs. Ascenstion, Inc 8. BCC vs. GreenBelt, LLC 9. BCC vs. 1mmokalee Road, Inc 10. BCC vs. 1. Peaceful, L.C. 11. BCC vs. Marquesa Plaza, LLC 12. BCC vs. MKA Holdings, LLC 13. BCC vs. Lennar Homes, LLC 14. BCC vs. Collier Realty Corporation CEB 2007-115 CASE NO. 2007050845 CASE NO. 2006080127 CASE NO. 2006100314 CASE NO. 2006120290 CASE NO. 2007100037 CASE NO. 2007100552 CASE NO. 2007080860 CASE NO. 2007110518 CASE NO. 2007060387 CASE NO. 2007110494 CASE NO. 2007070696 CASE NO. 20070000341 CASE NO. 20070000116 5. OLD BUSINESS A. Request for Reduction of Fines/Liens B. Request for Imposition of Fines/Liens 1. BCC VS. Saxon Manor Isles Apartments Limited Partnership 2. BCC vs. Anthony Gualario 3. BCC VS. Linda Giebelhouse-Deluca and Charles Deluca CEB 2007-88 CEB 2007-94 CEB 2007-108 C. Request to Forward to the County Attorney's Office 1. BCC vs. Jerry and Kimberlea Blocker 2. BCC vs. Jerry and Kimberlea Blocker 3. BCC vs. Jerry and Kimberlea Blocker 4. BCC vs. Frank Fernandez 5. BCC vs. Angel Riquelme and Lissette Riquelme 6. BCC vs. Roilan Perez 7. BCC vs. Francisca Alas 8. BCC vs. Jose and Carmen Martinez 9. BCC vs. Alfredo and Miradis Miralles CEB 2006-16 CEB 2006-17 CEB 2006-1 8 CEB 2007-22 CEB 2007-34 CEB 2007-37 CEB 2007-49 CEB 2007-50 CEB 2007-79 6. NEW BUSINESS 7. REPORTS 8. COMMENTS 9. NEXT MEETING DATE - April 24, 2008 10. ADJOURN March 27, 2008 CHAIRMAN LEFEBVRE: I'm going to call the Code Enforcement Board meeting to order. Notice, the respondent may be limited to 20 minutes for 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 Roberts 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 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 the record. Roll call, please. MS. MARKU: Mr. George Ponte has an excused absence. Gerald Lefebvre? CHAIRMAN LEFEBVRE: Here. MS. MARKU: Larry Dean? MR. DEAN: Here. MS. MARKU: Jerry Morgan? MR. MORGAN: Here. MS. MARKU: Richard Kraenbring? MR. KRAENBRING: Here. MS. MARKU: Kenneth Kelly? MR. KELLY: Here. MS. MARKU: Edward Larsen? MR. LARSEN: Here. MS. MARKU: Charles Martin? (No response.) Page 2 March 27, 2008 MS. MARKU: Lionel L'Esperance? MR. L'ESPERANCE: Present. CHAIRMAN LEFEBVRE: And make a note that Lionel L'Esperance will be voting as a regular member. Approval of the agenda. Do I hear a motion? MR. DEAN: Motion to approve the agenda. MS. ARNOLD: I have stipulations to add. CHAIRMAN LEFEBVRE: All right. MR. DEAN: Okay. MS. ARNOLD: For the record, Michelle Arnold, Code Enforcement Board director. We have a few stipulations. Item 5 -- 4-C- 7 is stipulated and will be the first item on your stipulation section, so it will be 4-B-1. Item 4-C-9 will become 4-B-2. And that's Board of County Commissioners versus Immokalee Road, Inc. And 4-C-IO will become 4-B-3. And that's Board of County Commissioners versus 1. Peaceful, L.C. And we also have, under 5-B-3, that item's being withdrawn because of payment. MR. DEAN: Which one? MS. ARNOLD: 5-B-3. And that's Board of County Commissioners versus Linda Giebelhouse-Deluca and Charles Deluca. CHAIRMAN LEFEBVRE: Would you like to take a minute or two so you can get your package in order? MS. ARNOLD: My staff is also telling me that the respondent under Item 5-B-2, Anthony Gualario, is asking for an extension of time. He did not submit anything. That request came this morning. And it's up to you all whether or not you want to add that as a motion under your agenda. MR. KELL Y: Is the respondent present? MS. ARNOLD: Yes. CHAIRMAN LEFEBVRE: Do I have any discussion from the Page 3 March 27,2008 board? MR. L'ESPERANCE: Concerning the request to extend? CHAIRMAN LEFEBVRE: Correct, to move it up to -- MR. KRAENBRING: Item three. CHAIRMAN LEFEBVRE: Yes, exactly. Motion for extension of time under number three. MR. L'ESPERANCE: Would the Chairman want to hear any verbal request from the respondent, or do we just discuss it amongst ourselves? MS. ARNOLD: Well, you're making a determination whether or not you want to hear that verbal discussion as a motion. MR. KRAENBRING: I make a motion that we hear that for the extension of time. MR. L'ESPERANCE: Second it. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) MR. KELL Y: And I'll make a motion that we approve the agenda with the changes. MR. L'ESPERANCE: Second. CHAIRMAN LEFEBVRE: Do I hear a motion -- do I hear a vote? All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. LARSEN: Aye. Page 4 March 27,2008 MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Thank you. Approval of the minutes. MR. DEAN: Motion to approve February 28th, '08 minutes. CHAIRMAN LEFEBVRE: Do I hear a second? MR. MORGAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. MR. MORGAN: Aye. MR. LARSEN: Aye. CHAIRMAN LEFEBVRE: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: We're going to move on to public hearings. And stipulations will be first, correct? MS. ARNOLD: The motion for rehearing is first on the agenda. CHAIRMAN LEFEBVRE: Motion for rehearing. That would be BCC versus James Bachmann. MR. WRIGHT: Good morning. For the record, I'm Jeff Wright, Assistant County Attorney. And we are bringing this motion before the board this morning. MR. FLOOD: Peter Flood, appearing on behalf of Mr. Bachmann. MR. WRIGHT: I guess I'll just get right in to it. Page 5 March 27, 2008 There is a -- we don't like to bring motions for rehearing. We trust the judgment of this board and we don't want to beat up on citizens. But in this case we felt like the decision had an impact on other residents in that other residents had issues with the ability to build pools and were informed that they couldn't do that. And on the case of Mr. Flood's client, the board found that he was allowed to build a pool. So we wouldn't be bothering with this, we just want to make sure we get it right, because it affects a lot of people. There's a provision in the consolidated ordinance for rehearing of cases, and I'm sure you're quite familiar with it but I just want to go through a couple of the highlights. Under Article 4, Section 7 of the Consolidated Ordinance: A request for rehearing shall be based only on the ground that the decision was contrary to the evidence or that the hearing involved an error on a ruling of law which was fundamental to the decision of the board. So first all, it's contrary to the evidence and second, in involved an error on a ruling oflaw. And either of those bases can be enough for a rehearing. In this case we think that both of those bases are applicable. First of all, the decision -- well, if I could back up and just refresh you on the arguments that were made. Basically Mr. Flood made two arguments on behalf of his client: First of all, that the county could not identify which sections of the LDC prohibited this use. So the county couldn't identify the sections of the LDC. The second argument that he made was that the Right to Farm Act basically exempts his client from county regulation under the LDC. So that's the two arguments: County couldn't identify it and the Right to Farm Act exempts them. So now we go back to the standard for rehearing, that it was -- Page 6 March 27,2008 the decision of the board was contrary to the evidence. And the reason that I say -- and we're putting this forward that the decision was contrary to the evidence is that there was a lot of evidence presented that there was a pool and it prohibited -- it was a prohibited use, and that the regulations in that zoning district didn't allow that pool. There was a lot of evidence presented. Mr. Gochenaur, I believe -- there was a letter from Mr. Gochenaur to that effect. There was also testimony to that effect that there was a pool and there is no provision in the LDC that would allow it. And during the hearing we said, well, there's -- for each zoning district there's charts for which uses are permitted, which uses are conditional and which uses are accessory. And it's on the burden -- the burden is on the applicant -- or the respondent to point to one of those uses, to point to one of those charts where their use is authorized. And that's what they were unable to do at the hearing. So there was a lot of evidence to show that this use is not allowed in that district, but there was no evidence, no specific mention of which section in the code would authorize that pool to be constructed. So under -- as I outlined in my motion under section -- he was cited under this section, 2.03.03, any use or structure not specifically identified in a zoning district as a permitted use, conditional use or accessory use shall be prohibited in such zoning district. So Mr. Flood attempted to put the burden on the county to show where this is allowed. And I remember him throwing an LDC amendment right here on the podium saying, show me where this is allowed. And it's not the county's burden to show where it's prohibited, it's the respondent's burden to show where it's allowed. I'll just illuminate that section: Any use or structure not specifically identified in the zoning district as permitted, conditional or accessory. Now, ifMr. Flood was able to say here it is, it's specifically Page 7 March 27, 2008 identified as conditional, or permitted or accessory, then the case would be done. But he didn't do that at the hearing. And we just believe that that -- the decision of the board saying that there is no violation was contrary to the evidence throughout the hearing. So first of all, we think that the decision of the board was contrary to the evidence presented. And like I said, we're not trying to beat up on the applicant, we just want to get it right. We want to make a -- we want a decision of the board that's consistent with the evidence. Second of all, his argument that the Right to Farm Act exempts him them the LDC. There's also a provision in the CEB rules where the CEB does not have jurisdiction to listen to arguments under state statutes, and they don't have jurisdiction to listen to case law arguments, Florida case law. And what happened was Mr. Flood got up here and said, the Right to Farm Act exempts us, and he pointed to a couple of cases, I think a Miami-Dade case involving an airplane. And he mentioned several -- I think a couple of cases that he referred to that -- basically to support his argument that the Right to Farm Act exempts him. And the board took that in and I believe that information was fundamental to the decision of the board. So again, we're not asking -- we're not saying anybody's right or wrong, we just feel like the standard for rehearing has been met here and we want to get it right, and we respectfully request that we set this matter for a rehearing so we can get it right. Thank you. CHAIRMAN LEFEBVRE: Mr. Flood? MR. FLOOD: Yes. First of all, I think the attorney has mischaracterized in regards to what the burden is by the county, if we go to the rules in regards to what transpires in regards to a code enforcement in front of this commission. It specifically states that the board shall deliberate in open session before the public and determine whether the county, the Page 8 March 27,2008 county, has proven by competent substantial evidence that a violation has occurred. It's not up to the respondent to prove that it has not occurred. It's up to them to prove that it has occurred. In this situation we presented evidence, we presented factual basis in regards to citing code violations. And if you read my reply in regards to supporting my client's position, it's not up to him. It's not up to him to prove that the burden -- that no violation has occurred. It's up to them to prove it. Now, the county attorney stands here and just made a statement that that's not the fact, we don't have to prove that. We don't have to prove specifically what has happened, we just have to allege a violation and then the respondent has to come in. That's now how it works. That's not how it works under any system that I know. My client's entitled to due process. My original argument was you've got to specifically say what he's violating. If you read the transcript that's been provided by the attorney, someone says where's the list? Where are all these uses that are allowed? Where are they in the code? They still can't produce it, they'll never be able to produce it because it doesn't exist. In my reply, the only thing they ever relied upon was an opinion by the zoning and planning official in regards to some memo that he sent in response to the code enforcement officer requesting some sort of opinion. That's not the law. That's not the rules. There's rules, specific cited rules that we have in our ordinances, that we have in our codes, okay? You have the opportunity to interpret those rules, okay? That's your function. We would ask that the rehearing be denied. My client is a small businessman, small individual. You know, he's being -- because Page 9 March 27,2008 there's other pools involved, that has nothing to do -- that's not even part of the rehearing rules. The only thing you can consider is based only on the ground that the decision was contrary to the evidence or the hearing involved an error in ruling of the law. You know, other pools or other people, that's not a basis for a rehearing. You state that. Basically we presented our evidence based on what we were charged with, okay, in the original notification. To this date, my client went in, he tried to pull his pool permit, he still can't pull his pool permit, okay? So we'd ask that the rehearing as petitioned by the county be denied for all the reasons set forth in our reply, and that they still haven't met any type of burden, and nothing's going to change between now and a hearing in regards to what they can prove, or where the violation came from. Nothing's going to change. MR. WRIGHT: May I respond? CHAIRMAN LEFEBVRE: Yes. MR. WRIGHT: Thank you. Well, first of all, the county's burden to bring this case forward is to show that they have built something that's not allowed by the code. And we have offered evidence to that effect. In response they can show yes, it is authorized by the code. Here is where it's authorized by the code. And Mr. Flood has referred to the fact that we would never be able to produce these charts and tables. They are in the very section that his client was cited under, that's 2.03.03. The introductory paragraph says, any use or structure not specifically identified in a zoning district as a permitted conditional use or accessory shall be prohibited. And then after that, what follows that very same section that he was cited under is an extensive set of matrices that layout what uses are permitted, conditional or accessory. And the burden's on them at Page 10 March 27, 2008 that point to point to one of those. And they have not done that. And that's why we believe it's appropriate to have a rehearing. And as far as the other pools being involved, I agree with Mr. Flood, and sorry if I misstated this, but the other pools have nothing to do with the standard for rehearing. I mentioned that by way of explanation to show that we don't normally do this. I've never in my time here, couple of years here, never done a motion for rehearing. We just want to get it right because other people are affected. And I just wanted to lay that down as an exploratory note, not as a basis for the rehearing request. MR. FLOOD: Just one quick response. Article 9 hearings set forth in your rules specifically states that the board shall deliberate in open session before the public, paragraph N, and determine whether the county, the county, has proven by competent substantial evidence that a violation has occurred. I don't think the respondent has the duty to prove that a violation has not occurred. I think they have the burden to prove specifically in the rules that a violation has occurred. We had a hearing, the evidence was presented, they proved that the no violation has occurred. And, you know, now they want another bite at the apple. They want to keep going on with this. Like I said, my guy is a small businessman, he's in an agricultural business, he's a landscaper, he's got a family, he's got small kids. You know, this is causing a real hardship on him in regards to, you know, paying me to be here, keep getting these violations, he still can't go get his pool permit. And, you know, we're just asking the board to take a look at everything that was presented and look at our reply and deny the hearing. Thank you. CHAIRMAN LEFEBVRE: I'm going to close the public hearing. Discussion of the board, please. Page 11 March 27,2008 MR. KELLY: Can I ask questions -- CHAIRMAN LEFEBVRE: Yes, you can. MR. KELLY: -- before we close, if! can? CHAIRMAN LEFEBVRE: Well, we can close, they just can't respond. You can ask questions. MR. KELLY: Thank you. Actually, I don't know who the correct person would be to ask. Perhaps Jeff. Is the Farm Act a federal law that supersedes local ordinances which are backed by state law? MR. WRIGHT: The Right to Farm Act is a state law. MR. KELLY: So which one has precedence, a local LDC or the Right to Farm Act? MR. WRIGHT: Well, when there's a conflict, the Right to Farm Act would trump. However, I just want to highlight the fact that this board literally does not have jurisdiction to hear Right to Farm Act, the state statute arguments or case law at all. So when we start to get into is this a Right to Farm Act use, is it not, it's kind of touchy territory, because it's clear in your rules that you don't have jurisdiction to listen to arguments that are based on state statutes. So that's where it gets a little bit dicey. And I haven't heard anything today from Mr. Flood to suggest that the Right to Farm Act -- the arguments that we made in our motion regarding the Right to Farm Act, that is the board considered that argument. And I believe, and this is in the request for rehearing, it was fundamental to the decision of the board. I remember a lot of deliberation on the different various structures. We talked about a porch, we talked about a deck, we talked about a -- all the way to an airplane. I think it was a hangar that we were referring to. So there was deliberation by this board on that very statute, and Page 12 March 27, 2008 case law under that statute. And that's where I think that second part of our rehearing request, that the decision involved an error on a ruling of law. That's where we're hanging our hat, basically. MR. KELL Y: I only bring it up because it is in Mr. Flood's reply for rehearing. And he cites it as one of the points why we shouldn't grant the rehearing, because of that situation. I just wanted to understand it better. And Jean, in this situation, although I don't want to get into trying to, you know, investigate rule oflaw, yet can we use the rule of law as help to decide which way is the right way to go here? MS. RAWSON: You can use the Chapter 162, Florida Statutes. You don't have the right to interpret the federal law. MR. KELLY: Okay, thank you. MR. LARSEN: I have a question. CHAIRMAN LEFEBVRE: Go ahead. MR. LARSEN: Mr. Wright, I read the minutes and your submission. Is it clear that they're allowed to have a single-family dwelling on the property? MR. WRIGHT: I believe so. I haven't done a specific analysis, but that's my understanding. MR. LARSEN: In regard to this above ground pool, is it considered a structure? MR. WRIGHT: Yes. MR. LARSEN: It is considered a structure? MR. FLOOD: Temporary. MR. WRIGHT: Yeah, it's all temporary right now, but yes, it is a structure. MR. LARSEN: I'll be right with you, Mr. Flood. So is the argument that it's an accessory to that single-family home or not accessory? MR. WRIGHT: Well, regardless of how you characterize it, it wouldn't be allowed. So even if it were accessory, it's not listed in the Page 13 March 27, 2008 accessory uses for that zoning district. If it's a permitted use, it's not listed in the permitted uses for that zoning district. And if it's a conditional use that they would be arguing, it's not listed as a conditional use. MR. LARSEN: Thank you. Now, Mr. Flood, when you originally argued this, did you argue -- I read the minutes. Did you argue that it was an accessory? MR. FLOOD: Correct. MR. LARSEN: And what basis did you have for that? MR. FLOOD: Your Section 1.082 set forth in my reply indicates -- see, the problem is com -- can I respond? The problem coming in is that Mr. Gochenaur issued a memorandum setting forth in his opinion what the incidental uses were to this principal use. What the incidental uses are. They're not specifically set forth in the ordinances anywhere. It's just not set forth. Our argument was basically it's an incidental use, even though he's in a farm -- in an agricultural, incidental to the use of -- CHAIRMAN LEFEBVRE: Mr. Flood, right here. I think we're going a little too far. We're going into rehearing the case and -- MR. LARSEN: Well, my point is, Mr. Flood, what's your response to the county's argument that, you know, there was insufficient evidence? And that's the basis for their argument rehearing. They argue that there was insufficient evidence -- or is contrary to the evidence? Correct? Is that the argument why you want to rehear it? MR. WRIGHT: Yes, sir. MR. FLOOD: No, my argument is that they have the burden to prove that a violation existed. The hearing occurred. The board felt that a violation did not exist. They still have the burden, even if we go to a rehearing, to prove that a violation exists. That's the basic thrust of this whole -- of the rules in regards to this for a rehearing. MR. WRIGHT: Mr. Chairman, if! may, I think that Mr. Larsen Page 14 March 27,2008 has accurately stated the standard that is applicable at this particular hearing, and that is that the decision was contrary to the evidence. Not whether or not we've proved a violation, but whether the decision was contrary to the evidence, or involved an error in the ruling of law. CHAIRMAN LEFEBVRE: Any other comments from the board, or questions? (No response.) CHAIRMAN LEFEBVRE: Do I hear a motion to rehear or to deny? MR. KRAENBRING: I just have a question for Jean, probably. Jean, is this something that really should be filed as an appeal? I mean, do we really have jurisdiction of this, especially considering that Farm Act may be coming through? MS. RAWSON: Well, you have jurisdiction to determine whether or not to rehear the case. We have requests for rehearing presented before this board all the time. And both of these gentlemen have pointed out to you what the standard is for rehearing. It's unusual to have the county -- I think Mr. Wright said this was the first time he'd ever done it. But we have a number of respondents who do this. And so they've told you what the standard is. You've got the right to decide whether or not this board, given the arguments here today, believe that there's been an error of law that was fundamental to your decision, or if there was a fact -- you considered some facts that were in error. And if you believe you did, then of course you have the right to rehear the case starting all over again. If you think you were correct the first time, then you don't. But yes, you have jurisdiction to do that. MR. KRAENBRING: Thank you. CHAIRMAN LEFEBVRE: Any other questions from the board? (No response.) CHAIRMAN LEFEBVRE: Do I hear a motion? Page 15 March 27, 2008 MR. KRAENBRING: I don't know if! have a motion so much as -- you know, we did find in this case already. I think that maybe we're not hearing a motion because we're just a little bit uncertain as to whether we have that jurisdiction, you know. This is -- you know, in the past when we've had people come up for rehearings, I think we've always been amicable to rehearing them. Just because the county is making this request, I don't know if we should be putting a different standard on that. So for that reason, I might suggest that we do rehear the case. But, I mean, we're not going to be rehearing it today, is that the case? It would be set forth for a different time? MS. ARNOLD: That's correct. MR. KRAENBRING: So we can maybe as a board look at these standards and at that point, you know, let them make their case again. CHAIRMAN LEFEBVRE: Are you making a motion to rehear the case? MR. KRAENBRING: Oh, I'm just sort of discussing it between everyone here to see if anybody has any other thoughts. MR. DEAN: I think you're correct. You know, any time that somebody asks for a rehearing, we more or less do it for the benefit of the individual. And just because the county's doing it, we certainly should give them that window also. So I'm in favor of a rehearing. MR. KELLY: I'm of a different opinion. I feel that there is a basic constitutional right that it is government's job to prove the burden, not necessarily the defendant's right to prove otherwise. And that goes all the way back to Boston, if I remember correctly, back in the 1770's. But I think in this particular case, whether it's the county or whether it's a respondent that's rehearing this, there's still a burden. And I think that we did hear it once. I didn't today hear any real bullets on the county's side to contradict what we might have heard the first time around. So I'm leaning more towards not rehearing this case. Page 16 March 27,2008 CHAIRMAN LEFEBVRE: Any other thoughts? MR. KRAENBRING: Our decision today may not be really, you know, the facts of the case so much as does the county have the right to call for this rehearing. I think that's maybe what our job is today. And then if we have to hear it again, we can decide the merits of the case at that point. It just seems that maybe both sides are, you know, have equal opinion here, equal weight. I would make a motion toward rehearing this case. MR. DEAN: I'll second the motion. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: All those opposed? MR. LARSEN: Aye. CHAIRMAN LEFEBVRE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Two opposed, myself and -- MR. KELLY: Three opposed. CHAIRMAN LEFEBVRE: -- Mr. Kelly. I'm sorry, I didn't see your hand. And Mr. Larsen. MR. KRAENBRING: So do we have -- MR. DEAN: It's 4-3. CHAIRMAN LEFEBVRE: Motion is passed for a rehearing. MS. RAWSON: May I ask that you give me the specific reasons. Do you as a board believe that there was a fundamental error of law or do you believe that the evidence that you heard was contrary to your decision? So that I can write the order correctly. CHAIRMAN LEFEBVRE: Who would that come from? Would that come from the one that made the motion? MS. RAWSON: It would come from you. That is the argument, Page 17 March 27,2008 that both -- well, Mr. Wright made and was countered by Mr. Flood. But if you're going to grant a rehearing, there has to be a reason. MR. KRAENBRING: I would say it's probably to the rule of law for that issue with the state. That sort of struck me is, you know, can we really be hearing that. You know, do we have the jurisdiction to hear that. I mean, that certainly did make an impression on me as far as, you know, the State Farm Act and whether we have the ability to hear that or not. CHAIRMAN LEFEBVRE: Is that okay? MS. RAWSON: That's right. I mean, that's okay. I'm not going to tell you what's right or wrong, but that is right that you've now given me a reason that I can now put in the order, so thank you. CHAIRMAN LEFEBVRE: Thank you. We're going to move on. We're going to move on to stipulated agreements. MS. ARNOLD: You've got motions for extension of time before. CHAIRMAN LEFEBVRE: Oh, okay. MS. ARNOLD: And then we do have additional stipulations that were added. If I could state them now or at the time of the stipulation, and you could amend the -- CHAIRMAN LEFEBVRE: Since you're speaking, you can do it now. MS. ARNOLD: We have since added item 5-C-12, Board of County Commissioners versus MKA Holdings, and that's now going to be 5-B-4. We've also added Item 5-C-13, Board of County Commissioners versus Lennar Homes, LLC. And that's going to be 5-B -- excuse me, 4-B-5. Also, 4-C-8, Board of County Commissioners versus GreenBelt LLC will be 4-B-6. And 4-C-11, Board of County Commissioners versus Marquesa Page 18 March 27, 2008 Plaza, LLC will be 4- B- 7. CHAIRMAN LEFEBVRE: Okay. Now we're going to -- do I need a motion to amend? MS. ARNOLD: That's right. CHAIRMAN LEFEBVRE: Motion to amend the agenda. MR. KRAENBRING: Make a motion to accept the amended agenda. MR. KELLY: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. KELLY: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: No nays. Okay, moving on to motion for extension of time. BCC versus Bart and Sandy Chernoff. MS. ARNOLD: Correct. (Speakers were duly sworn.) MS. MacALISTER: I believe it was my motion. For the record, Colleen MacAlister for Respondents Bart and Sandy Chernoff. When we were here a few months ago, we told you that we had a pending civil suit in this matter to try and determine liability and damages so that Mr. and Mrs. Chernoff would have the resources to do what was most appropriate in resolving the code enforcement violation. And at the time we discussed time frames and the fact that Page 19 March 27, 2008 litigation is unpredictable, at the least. I'm here today to ask for an extension of time. I can tell you that we have made significant progress toward not taking the matter to court. We do have sworn under oath testimony as to liability. So we now know who built the offending structures. We did not know that last time we were here. They've admitted to such, and we are negotiating damages. We started out very far apart on the issue of damages. Mr. and Mrs. Chernoff of course paid for the structures, regardless of whether they were approved or not and legal. So we are at this time negotiating. We have had offers of settlement back and forth. And that's where we are in the case. It's my feeling that I think we can bring this to resolution without going to court. So I'm here to ask the board for a little more time to do that, as the damages seriously impact Mr. and Mrs. Chernoffs options in terms of how to deal with this. As I said to the board, if they get a settlement of cash damages, they may be able to purchase a variance from their adjoining neighbor so that the structures would no longer be in violation of the code. So, you know, that's where we are and I think probably -- I'll leave it up to the board, but I would ask for a minimum of 90 days. CHAIRMAN LEFEBVRE: Can you just refresh my memory on what the violation was? MS. MacALISTER: The violations dealt with a pole barn that had been built. It had been built unpermitted and it encroached. So their only option at the time was to tear the offending structures down. Mr. Chernoff had added on to the pole barn and admits that he did that without a permit. And that part of it is not at contest here, we've admitted to that portion of the violation. But there was that and a small shed that were both built without permits. The party that admitted to building them without a permit initially came in and said well, we'll just tear them down. But of Page 20 March 27, 2008 course when the Chernoffs bought the property, they bought the property with the structures as part of the value of the property. And so we're kind of at a place now where we're trying to figure out the market value at the time of the purchase and the cost to replace, and try to determine what an appropriate amount of damages would be. CHAIRMAN LEFEBVRE: The reason I asked, I just wanted to see what kind of violation it was. Was it a health and -- MS. MacALISTER: No. CHAIRMAN LEFEBVRE: -- safety type of -- MS. MacALISTER: -- no. CHAIRMAN LEFEBVRE: -- matter or strictly an encroachment? MS. MacALISTER: No. And we had that discussion last time relative to health and safety issues. CHAIRMAN LEFEBVRE: Go ahead, sir. MR. MORAD: For the record, Code Enforcement Investigator Ed Morad. M-O-R-A-D. There may be a health and safety issue. There was a three- fixtured bathroom that was built by the respondent in this dwelling unit that was built also without any permits. I have no idea about the septic system, if it's still in use. The kitchen, a full kitchen. You know, I don't know where that -- or the staff -- or county don't know whether that it's ever been inspected by health, never been permitted. So there may be an issue. Well water issue, I don't know. But this case has been going on for two years. There was some structures built from the previous owner. There could have been a resolution being -- applying for a variance for this pole barn without affecting the other properties that was mentioned. So there was an opportunity for that in order to get everything permitted. MS. MacALISTER: We had this discussion about the bathroom Page 21 March 27, 2008 in the previous -- CHAIRMAN LEFEBVRE: I don't want to rehear the case. MS. MacALISTER: Right. And I can only tell you at that time Mr. Chernoff testified that the apartment had originally been built for his mother-in-law. She was deceased. It was totally not in use now. It's still not in use. The county can come out and look at that if they choose to assure themselves that it's not in use. CHAIRMAN LEFEBVRE: Okay. I think we have sufficient evidence. MS. ARNOLD: Can I just add one thing? The county -- it's the county's position that we object to the extension of time, mainly because there's measures or steps that the respondent could have taken to bringing some of the property into compliance, particularly the portion of which they violated. There was construction done by the respondent themselves. I understand that they're negotiating with the previous property owner at this time, but if some efforts would have been made to comply with a portion of your order, I think it would have shown a little bit more of good faith to try to do something. There's been no attempt to even apply for permits with the county, and it's for that reason that the county objects to the extension of time. CHAIRMAN LEFEBVRE: Thank you. MR. MORAD: If I could also add one thing. Obviously the hearing for this case was held on October 25th, 2007. The order was 180 days to comply, six months. The very least, I would think that in order for something like this -- I'm not saying it would happen, but it could happen again without the order being followed through and fines imposed and of course lien on the property. There's no safeguard in place for the respondent to sell his property, pass this particular violation on to another property owner or a new property owner, and then we'd be back in the same situation. Page 22 March 27,2008 And one more thing. Obviously you all know that you can oppose these fines if the violation's abated, impose the fines and we -- CHAIRMAN LEFEBVRE: Correct. MR. MORAD: -- could always come back at a later date and ask for a reduction of fines. CHAIRMAN LEFEBVRE: Discussion and questions from the board? MR. KELL Y: I have a question for Michelle or Ed. Because this is a code case, will they have any type of expedited variance carry-through to help them if they did apply for a variance? MS. ARNOLD: That's something that we could work with the department on. But there is no process that, you know -- I mean, we always try to work with the other departments to let them know that there's a specific time frame. But it's not like the affordable housing thing where there's an expedited process that's outlined in the system, but -- MR. KELLY: All right. And my opinion is twofold. I'm kind of torn on this one. Originally when we heard this case, we heard there's open litigation. And there was discussion amongst the board that hey, that could be a year, nobody really knows. And we ended up settling somewhere around six months for the time frame. So here we are six months and we're faced with this again. But at the same time, I agree with Investigator Morad. If we went ahead and imposed fines or whatever happens down the road, there is always the chance for abatement down the road. CHAIRMAN LEFEBVRE: Any other thoughts? MR. LARSEN: Well, you know, I believe under the circumstances an extension may be warranted for the additional 90 days that Ms. MacAlister asked for. But I'd place a caveat on it that no further extensions would be granted. CHAIRMAN LEFEBVRE: Any further comments from the Page 23 March 27, 2008 board? MR. DEAN: One question. How long has Mr. Chernoff owned the property? MR. CHERNOFF: July will be 10 years. We're not going anywhere. MS. MacALISTER: But he didn't find out with about the -- he didn't know about the violations until code came out. And I would add that he did go in -- CHAIRMAN LEFEBVRE: There was one question posed and he answered the question, thank you. MS. MacALISTER: I'm sorry. CHAIRMAN LEFEBVRE: Any further discussion from the board? MR. KRAENBRING: I think that, you know, we've had similar situations where there's pending or ongoing litigation where someone's trying to get their funds together and the board has sort of been ruling in favor of allowing these extensions. I would agree here with my colleague that yeah, 90 days, if that's going to wrap it up, that would be it. Of course we can always, you know, abate fines later on, but maybe we're just making some more paperwork for ourselves. So my sense of it is I would be in favor of the extension and let the litigation run its course. I don't think we have a huge public safety hazard here. And certainly there is an invitation, you know, to come by and take a look at the plumbing if there is a problem. So I don't see any problem with an extension here. CHAIRMAN LEFEBVRE: Do I hear a motion? MR. LARSEN: I move to extend the time for an additional period of 90 days with the caveat that no additional extensions be granted. MR. KRAENBRING: I'll second. CHAIRMAN LEFEBVRE: All those in favor? Page 24 March 27, 2008 MR. KRAENBRING: Aye. MR. DEAN: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. KELLY: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: I've recused myself from voting on this case already. CHAIRMAN LEFEBVRE: Okay. Any nays? (No response.) CHAIRMAN LEFEBVRE: All those are in favor. And you do understand that? MS. MacALISTER: I do. CHAIRMAN LEFEBVRE: Very good. MS. MacALISTER: Thank you. CHAIRMAN LEFEBVRE: Next request for extension of time, BCC versus Alfredo and Miradis Miralles. I'm sure I did not say that correctly, but -- MR. MORGAN: Miralles. CHAIRMAN LEFEBVRE: Miralles, thank you. MR. VALDES: Good morning -- THE COURT REPORTER: Excuse me, may I swear you in, please. (Speakers and interpreter were duly sworn.) MR. VALDES: Good morning. CHAIRMAN LEFEBVRE: Good morning, sir. MR. VALDES: I am here to make translation, at my best. From him make a statement. I am not an attorney. I'm not a contractor. Okay? I'm a community activist and I'm friend of him for 40 years. Okay, I don't know if you have the copy of the request, maybe yes? Page 25 March 27, 2008 CHAIRMAN LEFEBVRE: Yes, we do, sir. MR. VALDES: For health problem we are requesting 90 day. At this moment he comply with at least 80 percent of the requirements from the code enforcement. For the other 20, maybe 25 percent, he need the time, maybe 90 day, maybe 80 day, to comply complete. Also he said that he's compliant with the health department, everything that they require. CHAIRMAN LEFEBVRE: Investigator? MR. SANTAFEMIA: For the record, John Santafemia, Collier County Code Enforcement, Property Maintenance Specialist. While I am sympathetic to Mr. Miralles's health issues in the past, I will say that at this point I am not aware of any compliance that he has met that he was brought to this board for. He was required to obtain any and all permits that applied for conversion of three structures from single-family to multi-family. He also had a fourth structure that had two illegal additions that were built onto it. As of yesterday, there are no permits that have been pulled or applied for. To my knowledge the structures have not been converted back in any form or fashion. The illegal additions still remain. I've had numerous cases with Mr. Miralles over the past few years. He does tend to procrastinate until he is brought before the board or the OSM, the special master, where he is basically -- starts to get fines. Then he tends to comply with us. He did have 120 days that you gave him originally in this case. And like I said, to this point he has not done anything to bring that property into compliance. CHAIRMAN LEFEBVRE: Have you been inside the building at all? MR. SANTAFEMIA: No, actually, I have not been on the inside. I have -- my contact with him has always been his son, Alex, who for some reason is not returning my phone calls. Mr. Miralles is a Page 26 -~-------r-. March 27, 2008 Spanish-speaking only respondent, so I usually deal with his son. I did speak to Mr. Valdes on the phone a couple days ago, and actually he stated to me that they were -- you know, I had asked why he hadn't at least gotten application for some of the permits or done something, and his response was is that they were going to wait until this board made a decision on the extension before they did anything. You know, it's important to note that this case has been opened since October, 2006. It was brought to my attention by the health department for health and safety reasons. I did have very informative meetings with Mr. Miralles. Everything was interpreted in Spanish at the time. That was over a year ago. He knew very well what needed to be done. Still had done nothing. CHAIRMAN LEFEBVRE: Okay. Any questions from the board? MR. KELLY: I do. The health department, when they originally notified code enforcement, did they do any type of internal inspections? I don't remember the case, so that's why I'm asking. I don't want to rehear it, obviously. MR. SANT AFEMIA: Yes, they did do inspections on the property. The property was being used as migrant housing, which is why they had done an inspection of it. They saw a lot of stuff that brought concerns to them. I will say this: That originally when I first got the case there was another -- there was two other structures on this property that were unsafe structures that they did demolish pretty quickly. It was -- as far as the health department concerns, they kind of just backed out of it and let the county go in now and do their thing. At this point, like I said, I know he's had those properties converted for quite a long time, and I don't know ifhe's done anything yet. Page 27 March 27,2008 MR. KELLY: I'd like to offer this up to the board as just a comment. From my opinion, I really believe that if the health department turns it over to the county, it's to take action. I believe we're the correct venue for that. I'm not in favor of granting the extension. CHAIRMAN LEFEBVRE: Any other comments? MR. VALDES: I need to translate to him, because at the same time I can't speak because he -- CHAIRMAN LEFEBVRE: We'll stop. MR. VALDES: -- has some problem with his -- CHAIRMAN LEFEBVRE: No problem, we'll stop for a minute so you can translate. MR. VALDES: He said that you can send to verify that he comply with 75, 80 percent at this moment. You send the investigation (sic) today or tomorrow, you will see that he has 75 or 80 percent plus the health problem. CHAIRMAN LEFEBVRE: He stated that before. We're at the point where the board will be asking you questions, so -- Richard? MR. KRAENBRING: I'll abstain for right now. MR. DEAN: I'd like to ask ifhe's drawn any permits. Any permits at all for the work you're doing inside, 80 percent? MR. VALDES: Okay, what he can do it, he do it. But he is waiting for the board to hire the contractor to do the hard issues. And at this time he will have -- request the permits. MR. DEAN: I guess I don't understand. If you've done 80 percent of the work inside that you say you've done but no permit, I don't understand that. CHAIRMAN LEFEBVRE: Okay. MR. KRAENBRING: I have a question also just for Michelle, I guess. Page 28 March 27, 2008 I see that item nine under 5-C has got their name on it. That's this case? MS. ARNOLD: It's a different case. MR. KRAENBRING: It's a different case, okay. MR. KELLY: If I can, to the board. One of the issues here is a single-family home being converted into multiple units. That's more than just going inside and fixing health and safety issues. That's completely recertifying the structure. And I don't know what the zoning issues -- if it's even allowed. So I would say there's a lot to do here. MR. KRAENBRING: I'd have to agree with Mr. Kelly. I think that, you know, there may be some evidence here that unless your feet get held to the fire, you're not going to perform. Weare looking at multi-family situations. So I would make a motion that we do not extend the time. MR. L'ESPERANCE: Second that motion. MR. DEAN: What about close the public -- point of order? Do we want to close the public hearing first? CHAIRMAN LEFEBVRE: Public hearing's closed. We have a motion and we have a second. Can I have a vote? All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: There's no nays. Page 29 March 27, 2008 The motion has been passed that there will be no extension. MR. VALDES: No extension? CHAIRMAN LEFEBVRE: No extension, sir. MR. VALDES: Okay, thank you. CHAIRMAN LEFEBVRE: Okay, we're going to move on to the next extension of time. Anthony Gualario? I know I said that wrong. MR. GUALARIO: Actually, that wasn't too bad. (Speakers were duly sworn.) CHAIRMAN LEFEBVRE: Go ahead, sir. MR. GUALARIO: Good morning, gentlemen. I appeared before this board on September the 27th for a code violation matter, and at that time I was given two weeks to apply for a permit and 90 days entire -- in its entirety to acquire a certificate of occupancy for the code violation which was some unpermitted improvements. I applied for that permit within the two-week period. But at the time I was here, I said I'm not in control of the permitting process and I'm concerned that that permitting process will take me longer than the time allowed. And this board said at that time if you need more time, ask for it. And so on that basis, I proceeded. The permitting process has been very arduous. It took 47 days for our permit to be reviewed, and it was initially rejected on November the 27th. And because of the holidays, I did not find out about that until December the 5th. But I had my architect revise and resubmit that permit on December 17th. The 90-day period was due to expire on December the 27th, a very short period of time after that. So on December the 20th I sent a letter to Mr. Santafemia, asking for an extension of time. And I may have made that extension to the wrong person. Maybe it should have been directed right to the board. Page 30 .~-'.,"-"~"',---, --'--~'-'''~''---~~--------''----'--'-~-r March 27, 2008 But Mr. Santafemia sent me a voice message and said that there wasn't much he could do, that the board would probably impose fines and I could attempt to have those waived at a later time. Now we are here at the point of imposition of fines. And what I am telling you is that I have very diligently applied for the permit. It has taken me two additional submissions, but the permit was issued on March the 24th. I have arranged for a general contractor, filed a notice of owner, hired a subcontractor, done everything that is in my power to do so. And I imagine that the violation will be rectified in a very short amount of time. So I am asking for some additional time to accomplish what I need to do. And that is -- that is basically why I am standing here. MR. DEAN: How much time? MS. ARNOLD: Can I just say something for the board? We did have a stipulation with Mr. Gualario, and we -- our recommendation was to do two weeks and then 60 days from the issuance of the permit. But I read in the order that it just was a flat 90 days that was noted. So I think if you were to follow our stipulation, he'd probably have adequate time. I don't know. MR. GUALARIO: This is what Mr. Santafemia and I had discussed at the very first meeting, that 60 days from the issuance of the permit would be a reasonable thing to do. But that's not how it came out at the board meeting. And I would be very happy to comply with that. CHAIRMAN LEFEBVRE: Close the public hearing. Discussion of the board? MR. L'ESPERANCE: Mr. Chairman, is it possible for us to simply amend our findings to accommodate the county's suggestions? She's shaking her head yes. CHAIRMAN LEFEBVRE: Jean? MS. RAWSON: It is. That means that you're basically going to go back and rewrite the order. Page 31 March 27, 2008 CHAIRMAN LEFEBVRE: Right. MS. ARNOLD: Or you could grant his extensions 60 days from the issuance of a permit. MR. KRAENBRING: I was going to say, from a housekeeping standpoint it might just be easier to proceed with the extension. MS. RAWSON: It would be. MR. L'ESPERANCE: Sounds reasonable. CHAIRMAN LEFEBVRE: Make a motion? MR. KRAENBRING: How many days do you -- okay, so we're going to say 60 days from -- CHAIRMAN LEFEBVRE: March 24th. Right. MR. KRAENBRING: That's how we would -- MS. ARNOLD: Not a specific date. The issuance of the permit. So whenever -- CHAIRMAN LEFEBVRE: Which it was issued -- MR. SANT AFEMIA: The permit was issued on the 24th of this month. CHAIRMAN LEFEBVRE: 24th of March. MS. ARNOLD: Oh, okay. I thought you were still going through reVIew. MR. GUALARIO: No, the permit has been issued. MS. ARNOLD: Okay, I missed that part. MR. LEFEBVRE: So 60 days from March 24th would be what the motion would be. MR. KRAENBRING: Sixty days from Monday, this past Monday. CHAIRMAN LEFEBVRE: That's correct. MR. KRAENBRING: Okay. I make a motion that we grant the extension for 60 days from March 24th. And that should be enough time to get your work done? MR. GUALARIO: It should. CHAIRMAN LEFEBVRE: Do I hear a second? Page 32 I-'~"-- March 27, 2008 MR. MORGAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Motion is passed. You have 60 days from the 24th of March. MR. GUALARIO: Appreciate it. CHAIRMAN LEFEBVRE: All right. I've been anxiously waiting to get to the stipulated agreements. And the first one, another difficult name, will be BCC versus Jeffrey Macasevich? MS. ARNOLD: No, actually, the first one is the Ascension. It's item number seven, Board of County Commissioners versus Ascension, Incorporated. CHAIRMAN LEFEBVRE: Oh, I missed that one. (Speakers were duly sworn.) MR. SNOW: For the record, Investigator Kitchell Snow. K-I-T-C-H-E-L-L, S-N-O-W. We have reached a stipulation agreement with the county, and it is so forth: To one, pay operational costs in the amount of $404.16 incurred in the prosecution of the case within 30 days of the date of the hearing. Obtain permits for said sign or remove within 30 days of the day of the hearing or a fine of $150 a day will be imposed until such time the sign is permitted or removed. Page 33 March 27, 2008 B, obtain all inspections through certificate of completion within 60 days of after-the- fact permit issuance or a fine of $150 a day will be imposed until such time as the sign is C.O.'d, certificate of completion or removed. The permit number is to be affixed to the sign at the time of the C.O. Respondent must notify code enforcement that the violation has been abated and request the investigator to come and perform a site inspection. CHAIRMAN LEFEBVRE: And you agree to this agreement, sir? MR. RAJ: Yes, sir. THE COURT REPORTER: May I have your name, sir? MR. RAJ: Mohan Raj. M-O-H-A-N. R-A-1. CHAIRMAN LEFEBVRE: And let me ask you for the record, what is your association with this company? MR. RAJ: I'm the president of this company. CHAIRMAN LEFEBVRE: Okay. And do you have the authority to sign agreements and so forth for them? MR. RAJ: Yes, I do. CHAIRMAN LEFEBVRE: Any questions? MR. KELLY: I think the daily fine amount seems a little bit high. That's usually around the amounts that we would do for perhaps a safety violation. Usually sign issues, unless they're immediately in the right-of-way or obstructing or something, I think they're usually around 50 bucks a day. I'm okay with it because it was agreed to, but just to make a general statement. MR. SNOW: For the record, when you're dealing with an unpermitted sign, we don't exactly know what is or what isn't. And it could be construed as a health and safety issue. And this is the standard fine amount that we use. It hasn't changed. We don't deviate Page 34 -, March 27, 2008 from that. Again, we would agree with anything the board would impose, but this is pretty much standard. MR. KELLY: And also, I agree with it because the respondent did agree to the stipulated agreement. I was just making a general statement. MR. KRAENBRING: Just also a comment, that it looks like they extended it from 14 to 30 days so that it becomes more of a doable compliance. And you're good with that 30 days, right? You're going to be able to get this work done in that time and the sign permit will be issued in that time? You're pretty comfortable with that? MR. RAJ: I think so, sir. Because I already hired one guy. You know, he already took my $2,500 and he took off, and no answer from him. And that's what (sic) I asked Mr. Snow to extend more time for that, you know. CHAIRMAN LEFEBVRE: Any other comments from the board? (No response.) CHAIRMAN LEFEBVRE: Do I hear a motion? MR. KELL Y: Make a motion that we accept the stipulated agreement. CHAIRMAN LEFEBVRE: And the second? MR. KRAENBRING: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. MR. L'ESPERANCE: Aye. Page 35 March 27, 2008 CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Okay, sir. MR. RAJ: Thank you. CHAIRMAN LEFEBVRE: You're welcome. MS. ARNOLD: The next item is Board of County Commissioners versus Immokalee Road, Incorporated. CHAIRMAN LEFEBVRE: Versus who? MS. ARNOLD: Immokalee Road, Incorporated. MR. KRAENBRING: Can I ask one thing? Do we have a stipulated agreement on item number four? MS. ARNOLD: No, we don't. MR. KRAENBRING: Okay. For some reason I took it -- we both heard that, right? CHAIRMAN LEFEBVRE: I heard that, too. (Speakers were duly sworn.) MR. SNOW: You have before you a stipulated agreement that was agreed upon from the respondent and the county. It is therefore agreed that they will pay operational costs in the amount of 439.58 incurred in the prosecution of this case within 30 days of the date of the hearing. And abate all violations by, A, obtain a temporary use permit for banners displayed on the property from 11/20/07 to 11/22/07, 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 are to apply. B, cease any activity that is not in compliance with and accordance to the Land Development Code of unincorporated Collier County. And C, the respondent must notify Code Enforcement Board investigator when the violation has been abated in order to conduct a final inspection to confirm abatement. CHAIRMAN LEFEBVRE: Can you state your name for the Page 36 March 27, 2008 record. MR. GONDER: My name is Scot Gonder. Last name is G-O- N - D- E- R. CHAIRMAN LEFEBVRE: And you agree to the stipulated agreement? MR. GONDER: Yes, I do. CHAIRMAN LEFEBVRE: I'm going to close the public hearing. Any questions from the board? MR. KELL Y: I have a question real quick. If Investigator Snow could speak to possibly the number of days that are remaining for this sign, if he wanted to continue to display it. MR. SNOW: It's under a year, sir. So they just displayed it. And again last year they had 28 days for the total year. Unfortunately I had worked with the manager on this property. And not to elaborate, but it kind of got out of control. And this wasn't the first time that this happened. But they're at a fresh start so they have 28 days this year, to answer your question. MR. KELL Y: Thank you, sir. CHAIRMAN LEFEBVRE: Any other questions from the board? (No response.) MS. ARNOLD: Mr. Chairman, do you need clarification who Mr. Gonder is with respect to this company? CHAIRMAN LEFEBVRE: Okay. MR. GONDER: Yes, I'm an agent of the property. I'm the property manager for Hovland Real Estate, who does manage the property. The violation was caused by the tenants, not the property owner. We're simply here because we were called to appear before you. And of course we require our tenants to apply for all the proper permits and sometimes they don't. CHAIRMAN LEFEBVRE: Okay. And you have the authority to Page 37 March 27, 2008 sign on behalf of Hovland? MR. GONZALEZ: Yes, I do. On behalf of Immokalee Road, Inc., actually. And Hovland as well. MR. KELLY: I'll make a motion that we accept -- CHAIRMAN LEFEBVRE: Hold on a second. MR. KELLY: Sorry. CHAIRMAN LEFEBVRE: Michelle, you had something else to say? MS. ARNOLD: No. After you're all done. MR. KELLY: Make a motion to accept the stipulated agreement. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KRAENBRING: Second. MR. MORGAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) MS. ARNOLD: Before he leaves, my staff just informed me that Item No. 4-C-ll, which is now 4-B-7, Marquesa Plaza, he's also the representative. So while he's up there, you may want to just take that out of order. MR. KELL Y: I make a motion that we change the agenda. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KRAENBRING: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. Page 38 March 27, 2008 MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. (Speakers were duly sworn.) MR. SNOW: The respondent and the county have agreed to a stipulation. It is therefore agreed that: One, they will pay operational costs in the amount of 496.35 incurred in the prosecution of this case within 30 days of the date of this hearing. Two, abate all the violations by A, obtaining a temporary permit from banners displayed on property from 10/18/07 to 11/1/07 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 are to apply. B, cease any activity that is not in compliance with and in accordance to the Land Development Code of unincorporated Collier County. And C, the respondent must notify the code enforcement investigator when the violation has been abated in order to conduct a final inspection to confirm abatement. CHAIRMAN LEFEBVRE: And again, if you could state for the record your relationship? MR. GONZALEZ: Again, I work for Hovland Real Estate, who is the property manager for Marquesa Plaza, LLC. CHAIRMAN LEFEBVRE: And you have the authority to sign on behalf of Marquesa Plaza? MR. GONDER: I have the authority to sign, yes. CHAIRMAN LEFEBVRE: Thank you. MS. ARNOLD: Can I -- I believe there's an incorrect operational cost amount noted. It should really be 396; is that correct? Page 39 r~' March 27, 2008 MR. SNOW: 396. MS. ARNOLD: 396.35. So I saved you $100. MR. GONDER: Thank you. And thanks for changing the agenda so I didn't have to sit down and come back up. CHAIRMAN LEFEBVRE: You're welcome. MR. KELLY: Make a motion -- I'm sorry, are we closed? CHAIRMAN LEFEBVRE: Any questions from the board? MR. LARSEN: I have a question. Sir, both of these violations seem to have occurred about the same time. MR. GONDER: Yes, sir. MR. LARSEN: Is any actions being taken by the property manager to ensure that this is not a recurring event? MR. GONDER: Yes. Generally what happens, and as I was stating to you, the inspector -- I manage approximately 300 tenants. And this -- very seldom does this happen that it goes this far. And this is the first time I've appeared before you all. What traditionally happens is on the first Notice of Violation I either get a phone call from the inspector or I get a call from the tenant saying hey, what am I supposed to do. And at that point we coach them through it, and we remind them on their lease, the document they've signed, they have to have the proper permits. And usually at that point it is all rectify and resolved. On these particular instances, I was either not aware or aware after the fact. And I'm referring to both violations, but I know we're talking about one. And it had already gotten so far -- the horse had gotten so far out of the barn that I could not pull it back. And yes, we do encourage all our tenants, and legally explain to them that they have to have these permits. And some just don't do it. MR. LARSEN: Thank you very much. MR. GONDER: Thank you. CHAIRMAN LEFEBVRE: Do I hear a motion? Page 40 March 27, 2008 MR. KELL Y: I'll make a motion to accept the stipulated agreement. MR. DEAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: It has passed. Okay, I'm not sure ifI'm in order, but BCC versus 1. Peaceful, L.c. MS. ARNOLD: You got it. CHAIRMAN LEFEBVRE: All right. (Speakers were duly sworn.) MR. CHAMI: George Chami, for the record. THE COURT REPORTER: Please spell your name. MR. CHAMI: C-H-A-M-I. MR. SNOW: The respondent and the county have agreed on a stipulation. Therefore, it is agreed that they will pay operational costs in the amount of 398.70 incurred in the prosecution of the case within 30 days of the date of the hearing; and abate all violations by A, bring all damaged wall signs up to current code by removing or repermitting, if needed, all such signs within 30 days of the date of the hearing or a fine of $150 will be imposed -- it should be $150 a day -- will be imposed until such signs become either permitted or removed. Monitor said signs for all inspections till final C.O., certificate of completion, within 60 days of permit issuance or $150 a day will be Page 41 March 27, 2008 imposed until such time as all signs are C.O.'d, certificate of completion (sic). And affix permit numbers to all signs that are C.O.'d. B is cease any activity that is done in compliance with and accordance to the Land Development Code of unincorporated Collier County. And C, the respondent must notify the code enforcement investigator that the violation has been abated in order to conduct a final inspection to confirm abatement. CHAIRMAN LEFEBVRE: Before we move forward, what is your relationship to J Peaceful, L.C.? MR. CHAMI: I'm president of the company. CHAIRMAN LEFEBVRE: And do you have full authority to sign on behalf of them? MR. CHAMI: Absolutely. CHAIRMAN LEFEBVRE: Okay. And do you agree to the stipulation? MR. CHAMI: Absolutely. The only thing, if I can. I was trying to avoid to be in front of you today, so we signed to make sure -- I know that the code enforcement did their best by giving me 30 days to do these changes. Basically what we have here is only one sign who (sic) was broken on the face of it. Now, the problem we have here is we need to digitize the whole sign. It's a contour sign. And we tried our best for over three months to call the sign company who produced this -- who manufactured this sign, without any success. Now, what we have to do is to remove the sign, send it to a different company and digitize this particular sign, since the company produced it. Unfortunately they're not responding in a timely manner. Now, with any kind of acceptance from you to have more than 30 days, it would be great, unless what we sign is what we sign. CHAIRMAN LEFEBVRE: Now, if the sign's removed -- as he said, the sign is going to be removed and it's going to be sent out to a Page 42 March 27, 2008 company to be fixed. MR. SNOW: No, sir, ifhe removes it. He's got two options: He can either remove it or if it needs to be repermitted, repermit it or fix it and display it as it was. That's going to be up to his decision to do that. On my side of the inspection, yesterday there were two signs. He has since removed one of them. And again, that's going to be his choice to either repermit it, if it's changed, put it exactly like it was, and no permit required, or remove it. CHAIRMAN LEFEBVRE: But he just stated that he -- let's say he goes and gets the sign repermitted because there's text change or whatever, I'm not sure what it is. But we don't need to go into that. But if he removes the sign, let's say in 10 days, technically he abated. MR. SNOW: Absolutely, yes, sir. CHAIRMAN LEFEBVRE: But then when he replaces the sign. MR. SNOW: He has to just go get another permit. This case is closed on that. Once he removes it, it's over, it's done. CHAIRMAN LEFEBVRE: Okay. So as long as the sign is removed within your 30 days, but you still have to get a permit, if I'm not mistaken, to put the sign up if it's changed. MR. CHAMI: Even the same one? Even putting back exactly the same -- MR. SNOW: Well, ifhe removes it and it's down, then he has to repermit it. MR. KRAENBRING: But is he removing it for the purpose of repair? MR. SNOW: I can't testify to that, sir. MR. KRAENBRING: I think that's what he said. CHAIRMAN LEFEBVRE: That's what he just said, he'll have to send it out to a company to correct it. MR. SNOW: The best thing to do is to talk to sign review within the county and they can advise on what would be -- need to be Page 43 March 27, 2008 permitted and what wouldn't need to be permitted. Our issue is is they've been out of compliance for two years, so CHAIRMAN LEFEBVRE: Michelle? MS. ARNOLD: I was going to say, I think there's electrical associated with this sign. And I think he might have to repermit it. But Kitchell's right, if they remove it, our case is closed. Whether or not they need to get another permit, that's something he needs to talk to the sign department on and verify whether or not you need to get that permit. But I think you might have to get another permit, even if it's the same copy. MR. CHAM!: So the best I believe to do is to get the company to digitize in place, not to move it then. Then probably it will take more than 30 days to do so, since they have to come on site, they have to do it with a boon truck, which is not very easy. And then they have to produce it and then come back to install it. It's a very small one. It's around four feet long. It's not a major one. But we know how things go here. CHAIRMAN LEFEBVRE: How long do you think it will take to -- MR. CHAMI: Probably 60 days max. MR. DEAN: We have a-- MR. CHAMI: I don't see more than 60 days anyway. MR. DEAN: We have a stipulation, though, do we not? MR. CHAMI: Absolutely. MR. KRAENBRING: But I think it's, you know, up to the board to determine if that stipulation is going to be practical. And, you know, we have to approve it. So hearing whether there's an extension that we can impose, I mean, I'd like to see it not come back to us just because of 30 days, and, you know, he has to be able to get the company to come out and do this. I just don't want to have to rehear it. Page 44 March 27, 2008 MR. SNOW: For the record, we -- the county doesn't object to that. If the board desires to give him 60 days, then please do so. MR. CHAMI: Thank you very much. MR. DEAN: That's fine with me. I'm just saying you two gentlemen discussed it and stipulated it. And then we're here for an exception now, you're making a change. So obviously, you know, you weren't sure when you made that stipulation. MR. CHAMI: The county said at the time that they cannot go more than 30 days. The only entity who can do it is yourself, the board. So we signed since it was not -- I don't want to bother you with this. But since I'm here, why not to ask for it. But I don't want to rock the boat, seriously. MR. DEAN: It's okay to bother us, that's why we're here. MR. KELLY: I was going to say, sir, thank you for bringing that up. We're not here to hurt, we're here to help the community and you. My question is just for clarification, Investigator Snow, is this a structure and then the signs are the face or the Lexan glazing? MR. SNOW: The wall sign, yes, sir. MR. KELL Y: If he removes just the face, not the actual sign casing with the electrical and everything, he removes that face and has new copy printed and then that face put back on, does that constitute a new permit? MR. SNOW: No, sir, it's if it's exactly the same. The problem is the one -- one of the signs has been removed, had no face. The other sign is missing part of that face. So it's feasible for him to put that back up and it remain exactly as it is. And no, that's not going to require a permit. If he makes any changes to that wall sign as in any sign then yes, it would have to be repermitted. MR. KELL Y: All right, thank you, sir. MR. KRAENBRING: Kitchell, could you put that stipulation back up on the screen for us? March 27, 2008 MR. SNOW: Sure. Yes, sir. MR. KRAENBRING: So as we look at this, if it's the board's favor to change that from 30 days to 60 days, and then also just to make sure that you -- looks like you did make a note to yourself to say it's $150 per day, not just $150 fine, I'd make a motion that we amend the stipulation for the 60 days. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KELLY: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. MR. CHAMI: Thank you very much. CHAIRMAN LEFEBVRE: And before you leave, if you could have him just initial the changes, so then that way we don't have to chase him down again. We're going to take just a break until 10:30, a recess. (Recess.) CHAIRMAN LEFEBVRE: I'm going to call the meeting back to order. And the next stipulation, if I'm not mistaken, is BCC verse MKA Holdings, LLC. (Witnesses were duly sworn.) MR. SNOW: The county and the respondent have reached a stipulation agreement. Therefore, it is agreed that -- to pay operational costs in the amount of 402.01 incurred in the prosecution of this case within 30 days of the date of the hearing, and abate all violations by: Obtain after-the-fact permit fees for all unpermitted construction, Page 46 March 27,2008 remodeling additions on property. Get all inspections through certificate of completion within 120 days of the date of the hearing, or a fine of $200 a day will be imposed until such time as the unpermitted construction remodeling has been permitted, inspected and C.O.'d, or obtain a demo permit and remove unpermitted construction remodeling additions within 120 days of the date of the hearing and restore the building to its original permitted state or a fine of $200 a day will be imposed until such time as the building is restored to its permitted state and all unpermitted construction remodeling additions have been removed. Remove all construction waste to the appropriate site for disposal. If a site development plan is required, respondent can come back to the board to request additional time. And B, cease any activity that is not in compliance with and in accordance to the Land Development Code of unincorporated Collier County . And C, the respondent is to notify the code enforcement investigator when the violation's been abated in order to conduct a final inspection to confirm abatement. And also for the record, if an SIP is required, he's going to have to come back to get that, or an SDP, he's going to have to come back for that. It's going to take longer than 120 days. CHAIRMAN LEFEBVRE: That's correct. MR. SNOW: But he's well on his way to -- he's got his architect, they're doing another submittal today, I believe Mr. Walker told me. And I think that he's on his way to doing what he needs to do to come into compliance. But again, we would request that he be allowed to come back and request more time, if it is needed. And he's been diligent in pursuing what he needs to do. CHAIRMAN LEFEBVRE: So should it stipulate site Page 47 March 27, 2008 development plan or site improvement plan, or both? MR. SNOW: We don't know what's going to be required. Should he need additional time is what it should have said, because of an SDP or an SIP, then he should be allowed to come back and do that, request that. CHAIRMAN LEFEBVRE: Do you want to make that notation, that change on the order that include SIP? MR. SNOW: Yes, sir, we can do that. CHAIRMAN LEFEBVRE: And if you can state your name and then two questions that I've asked previous respondents: One is your relationship to MKA Holdings, LLC. MR. WALKER: James M. Walker, and I'm the managing member of the LLC. CHAIRMAN LEFEBVRE: And you have the authority to sign MR. WALKER: Yes, I do. CHAIRMAN LEFEBVRE: -- for MKA? Then if you could just put that back up, because we're going to have some possible questions. And you agreed to the stipulated agreement? MR. WALKER: Yes, I did. CHAIRMAN LEFEBVRE: Any questions from the board? MR. DEAN: Just one. In the addition where you have office space, is there washrooms and things in there that are being used? MR. WALKER: No, sir. MR. DEAN: Thank you. MR. WALKER: These -- I purchased the property in '06 and some of these things have been there for many, many years. MR. DEAN: Thank you. CHAIRMAN LEFEBVRE: Any other questions from the board? (No response.) CHAIRMAN LEFEBVRE: Do I hear a motion? Page 48 March 27, 2008 MR. KRAENBRING: I'll make a motion to accept the stipulated agreement. MR. KELLY: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: And just if you can have them before he leaves, initial off on the SIP. MS. ARNOLD: It already has been. CHAIRMAN LEFEBVRE: He initialed off on the SDP. MR. SNOW: That's correct, we didn't include the SIP. MS. ARNOLD: Oh, okay. CHAIRMAN LEFEBVRE: Next one should be BCC versus Lennar Homes, LLC. Is the respondent here? MR. SNOW: For the record, the respondent was here. CHAIRMAN LEFEBVRE: Okay. (Speaker was duly sworn.) MR. SNOW: For the record, the respondent was here this morning. He agreed to the stipulation agreement. CHAIRMAN LEFEBVRE: Can you just state your name again? MR. SNOW: Yes, sir. CHAIRMAN LEFEBVRE: I recognize your name -- I mean, I recognize your voice at this point, but -- MR. SNOW: Investigator Kitchell Snow, Collier County Code Enforcement. It is agreed upon that they will pay operational costs in the Page 49 March 27, 2008 amount of 427.59 incurred in the prosecution of this case within 30 days of the date of the hearing and abate all violations by: A, remove any commercial flag wind signs, except those that are exempt by code within 10 days of the date of the hearing or a fine of $150 a day will be imposed until such time as the aforementioned signs are removed. B, cease displaying any sign that is not in accordance to and compliant with the Land Development Code of unincorporated Collier County. And C, the respondent must notify the code enforcement that the violation's been abated and request the investigator to come out and perform a site inspection to confirm abatement. CHAIRMAN LEFEBVRE: Any questions? (No response.) MR. KRAENBRING: I'll make a motion. Make a motion to accept the stipulated agreement. MR. MORGAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELL Y: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: No nays. And are you up for the next case, too? MR. SNOW: Yes, sir. CHAIRMAN LEFEBVRE: All right. We're going to go to hearings at this point? MR. SNOW: I think we have one more-- Page 50 March 27, 2008 MS. ARNOLD: No. MR. KRAENBRING: GreenBelt. CHAIRMAN LEFEBVRE: I'm sorry. MS. ARNOLD: We have Board of County Commissioners versus GreenBelt, LLC. And while I have the mic, we did have one other stipulation slip in there. Board of County Commissioners versus Brien S. Spina. That will be the last one. CHAIRMAN LEFEBVRE: Make a motion to agend (sic)? MR. KELL Y: Amend the agenda. I'll make a motion. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KRAENBRING: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Is the respondent present? MR. SNOW: The respondent was present this morning. (Speaker was duly sworn.) MR. SNOW: For the record, Investigator Kitchell Snow, Collier County Code Enforcement. The respondent was here this morning. And therefore, it is agreed upon between the county and the respondent that: One, to pay all operational costs in the amount of 406.07 incurred in the prosecution of the case within 30 days of the date of the hearing. And abate all violations by: A, to paint the facade in a workmanlike fashion within 30 days of the date of the hearing or a Page 51 March 27,2008 fine of $150 a day will be imposed until such time as the facade is painted and the shed is removed. And B, obtain proper permits and all inspections through certificate of completion for any future change in copy made to pole sIgn. C, is minimum landscaping requirements at the base of the sign within 30 days of the date of the hearing or a fine of $150 a day will be imposed, until such time as the requirements are met. And D, is to maintain signs on the property to the minimum standards set forth in the Property Maintenance Code as amended of unincorporated Collier County. MR. L'ESPERANCE: Mr. Chairman? CHAIRMAN LEFEBVRE: And the must -- and also, respondent must notify code enforcement. MR. SNOW: Oh, yes, three, I'm sorry. The respondent must notify the code enforcement investigator that the violation's been abated and request the investigator to come out and perform a site visit. MR. L'ESPERANCE: Mr. Chairman, paragraph C, the last word should be M -E- T, I would think. CHAIRMAN LEFEBVRE: Correct. MR. L'ESPERANCE: Mr. Kitchell pronounced it correctly. MR. KRAENBRING: Make a motion to accept the stipulated agreement. MR. DEAN: Second. CHAIRMAN LEFEBVRE: Do I hear a second? MR. DEAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. Page 52 March 27, 2008 MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Motion is passed. MR. SNOW: Thank the board. CHAIRMAN LEFEBVRE: Next one will be stipulated agreement, Brien Spina. (Speakers were duly sworn.) MS. SORRELS: For the record, Azure Sorrels, Investigator, Collier County Code Enforcement. This case is regarding -- MS. ARNOLD: All you do is state the stipulation. MS. SORRELS: This case is regarding an unpermitted boat lift, electrical boat lift that was added to an existing dock. Myself and Mr. Spina had discussed and he's agreed to enter into a stipulation agreement with the county. You want me to proceed with the stipulation? CHAIRMAN LEFEBVRE: Yes. MS. SORRELS: The stipulation is for Mr. Spina to pay all operational costs in the amount of $328.52 incurred in the prosecution of this case, and to abate all violations by: Obtaining all required building permits, inspections and certificate of completion within 120 days of this hearing or a $200 a day fine will be imposed for each day the violation remains. Or he may obtain a demolition permit and demo the electrical boat lift within 30 days of the hearing or a $200 a day fine will be imposed for each day the violation remains. We originally had agreed on the 60 days but we extended it out 120, due to the fact that Mr. Spina brought to my attention the waterway that his dock is in is in Rookery Bay, which will require the Page 53 March 27, 2008 state to be involved in inspections and approval. MR. SPINA: I'm not 100 percent sure that 120 days for the DEP to do the environmental study is sufficient, but that's what she suggested. So I'm saying okay. We did hire Turrell & Associates to handle the case from here. CHAIRMAN LEFEBVRE: Can I have the spelling on your first name, please. MR. SPINA: Brien. B-R-I-E-N. CHAIRMAN LEFEBVRE: Okay. Because we have it spelled B-R-I-A-N in some of our documents. So I just wanted it to be on record. Any comments from the board? MR. DEAN: Are you currently using the electrical boat lift? MR. SPINA: Yes. It has four jet skis on it. MR. DEAN: You're using it now? MR. SPINA: Correct. MR. DEAN: See, that's why you get a permit, you know. Was that done by a certified licensed contractor? MR. SPINA: Actually, originally we were in agreement that this was going to get taken care of by a contractor, and then he kind of backed out, which is why we're in the process of doing the permit. And he was doing it and he was paid two separate payments in cashier check, and finally I said well, I'm going to the hearing and I'm going to bring up your name unless you turn over the permits to us and we'll take it from here. So we are now taking care of it ourselves at the last minute. Because I had talked to the officer and told her that we were taking care of it. But apparently at the last minute he did not file the permit in the proper amount of time. MR. DEAN: Thank you. MR. KRAENBRING: So your issue was that you thought that you were building this with permits and your contractor just didn't Page 54 March 27, 2008 perform? MR. SPINA: Correct. MR. KRAENBRING: I don't know ifthere's any concern about the 120 days, whether it should read something to the effect of applying for a permit in a certain amount of time? Just from the sake of not having to come back here in 120 days. I just don't know if it's enough time. I mean, from experience I don't know. MR. KELL Y: I would concur. But also would like to state that Todd Turrell is probably the best in the nation at it when it comes to environmental engineering. MR. KRAENBRING: So this may be a case that we come back and hear it again, as long as progress is being made. Accept the stipulated agreement as it is? CHAIRMAN LEFEBVRE: We're going to close public hearing. Do I hear a motion? MR. KELL Y: I make a motion we accept the stipulated agreement. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KRAENBRING: I'll second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any nays? MR. DEAN: Opposed. Nay. CHAIRMAN LEFEBVRE: One opposed, Larry Dean. You have 120 days, sir. MR. SPINA: Thank you. CHAIRMAN LEFEBVRE: And now we can move on to Page 55 March 27,2008 hearings. I just want to make a note that we do have this room until 1 :30. We do have -- there's another meeting that is going to be coming in. So if I can just ask for brevity I guess in the cases, that would be greatly appreciated. The next case would be BCC versus Stanley Fogg, Jr. and Theresa Fogg. MS. MARKU: For the record, Bendisa Marku, Operations Coordinator, Collier County Code Enforcement. 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. CHAIRMAN LEFEBVRE: Do I hear a motion? MR. KELL Y: I make a motion we accept the packet. MR. DEAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: No nays. 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. Page 56 March 27, 2008 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. Date onlby 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. (Speakers were duly sworn.) MS. SCAVONE: For the record, Collier County Code Enforcement Board Investigator Michelle Scavone. This case is in reference to Code Enforcement Board Case No. 2007-115 and Case Department No. 2007040776. Location of where the violation exists is on agriculturally zoned property located at 10270 Immokalee Road, Naples, Florida. The first hearing of this was on November 29th, 2007. The violation is of Ordinance 2004-41, as amended, Section 2.02.03 of the Collier County Land Development Code. The act of selling 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 they should not be displaying anything. On April 23rd, a site visit was made. It was observed that sheds were being displayed on the agriculturally zoned property. Approximately 15 or more sheds. Extensive research was conducted, and owner contact was made. We -- myself and Supervisor Dantini had spoke with Mr. Fogg, who admitted selling the sheds off the property, and he insisted that he could sell them because it was agricultural zoned property. Page 57 March 27,2008 It was expressed to Mr. Fogg that he would need to get a zoning verification letter to clarify the land use. And time was granted for him to do so, to get that letter. I have a couple of things I'd like to submit into evidence. One is a zoning verification letter. The pictures before and after, if you'd like me to submit them all at once. CHAIRMAN LEFEBVRE: Sure, that would be fine. Make a motion to accept? MR. KELL Y: Yeah, I'll make a motion to accept it. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KRAENBRING: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELL Y: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) MS. SCAVONE: As of June 19th, no letter had been obtained from Mr. Fogg, so personal service ofa Notice of Violation was served to Mr. Fogg. On June 22nd, a copy of the verification letter was obtained, which is what I had submitted. And it was concluded by Ross Gochenaur of the planning -- the planning manager of the zoning department that basically -- I'm just not going to read the whole entire thing but just kind of summarize -- is that the sale of the 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. The prefabricated sheds are not directly related to the growing Page 58 March 27, 2008 and maintaining of the plants. And although they may be used for storage of tools and equipment, they are intended for much more than just that general use. Therefore, their sales could not be considered accessory to the retail plant nursery. In that letter it was also expressed to Mr. Fogg that ifhe wished to contest this decision, that he was able to apply for an official interpretation from the Zoning Department Manager Susan Istanes. MS. ARNOLD: Istanes. MS. SCAVONE: Istanes. With a nonrefundable fee of $1,500. In that letter that's where, you know, the act of selling the sheds was presented that he was selling the sheds on his property. It was determined that that was the violation. He had a choice in the matter of whether to remove them or not. As of yesterday, he did remove the sheds. They were not there. And he also was able to get an official interpretation from the zoning department, which is what their job is to do. Do you have any questions? MR. KELLY: What did the official determination state? MS. SCAVONE: They did not get an official interpretation. MR. KELL Y: Oh, they haven't. MS. SCAVONE: No. He was given that option to do so, which he had not, and which brought us to this point here. And it's your job to decide if the act of selling sheds was there or not. It's the zoning department's decision of whether they're allowed or not. They're interpreting the codes. You're deciding if there was an act of selling the sheds or not. MR. KELL Y: Does the zoning department, that review board, the one that you would pay $1,500 to to get an official interpretation, is that represented by 100 percent county employees, or is there a public aspect to that review board? MS. SCAVONE: I do not know the answer to that question. Page 59 March 27, 2008 MS. ARNOLD: It's not a review board that is charged with interpreting the code. It's the zoning director. Or it's the county manager or his designee, and in this case it's the zoning director that's responsible for interpreting the Land Development Code. There's no body that does that. MR. KELL Y: And so there's no citizen input from community at large. Any type of advisory committee or anything put together. MS. ARNOLD: No. MR. KELLY: Okay, thank you. CHAIRMAN LEFEBVRE: Ms. MacAlister. MS. MacALISTER: For the record, Colleen MacAlister for the Respondents Stanley and Theresa Fogg. I would like to clarify two things: Number one, we already have an interpretation by the zoning and planning department here. Mr. F ogg could not see where a $1,500 investment just to go up the stairs to another employee of the same department would yield any different result, and I've not really ever heard where that actually happens. Number two-- MS. ARNOLD: Can I just interrupt? I'm sorry. The responsibility to interpret the code is the zoning director. There is an appeal process that involves bringing it to the public hearing before the Board of Zoning Appeals, and that's where the public may be involved. MR. KELL Y: Thank you, Michelle. MS. MacALISTER: But of course we do have an opinion letter here that is the basis for the violation. I think what we decided last time is the board's job here is to decide whether the letter issued by the zoning department was based on substantial and competent evidence or was just an opinion. And that's what we're here for. I don't believe that it is your job to interpret the code. I think it's your job to decide whether there was substantial evidence provided Page 60 March 27,2008 that there was indeed a violation of the code in the selling of sheds on Mr. Fogg's land. And where we ended up last time was, was that letter considered substantial and competent evidence, and I believe that's why we wanted Mr. Gochenaur here today. It is my opinion -- I will state this, it is my opinion that potting and gardening sheds, and I've included that in my packet, are as intimately related to growing and maintaining plants as are trowels, rakes and shovels. Since the earliest days of the French and British garden you've seen sheds on gardening properties. I've showed you in composite Exhibit D in there where there is literally a whole category of sheds called garden sheds. Potting and gardening sheds are an essential, and these days actually a more essential part of gardening, because most people do not prefer to keep fertilizers and pesticides any longer in their homes or garages. The purpose was to provide you with some evidence that indeed these are legitimately considered an accessory to the growing and maintaining of plants. MS. SCA VONE: May I say something? It would just be in my opinion also that if you were to have a motorcycle shop that they would turn around and sell garages because it's the use of -- you know, you could put a motorcycle into a garage as well. It's that -- you need to get the permission from the county to be able to sell those on agricultural land. MS. MacALISTER: The argument of course is that -- and that was the argument advanced in the zoning letter was that sheds can be used for something else. I would counter that with saying the type and kind of shed that Mr. Fogg was selling on his property indeed cannot be used for something else. They are sort of defined by the size and square footage. You certainly on any of the sheds -- and I've provided pictures of Page 61 March 27, 2008 what he was selling on the property. Any of the sheds he was selling, you can't park an airplane. You may be able to wheel in a motorcycle on occasion to keep it out of rain. But mostly they're defined by the size of your lawnmower and the amount of other accessories you have in terms of, you know, weeders and trimmers and pots and plants and mulch that you store in your shed. He was not trying nor does he intend to sell any sheds that, you know, exceed the scope of the kind of business he runs. Mr. Fogg's nursery is somewhat unique, and that's why I provided you with so many pictures, because he sells some things that are only available to gardeners at his -- for instance, organic compost. There really is nowhere else that you can get natural Collier County organic compost. It's composted out there, it's shaken out there. That series of big piles I showed you in that big piece of equipment. So, you know, anymore than you could say that a bird feeder or a fountain that waters your garden is not an accessory to gardening I don't really understand how they can say that a shed that is defined by size and use is not an accessory to gardening. CHAIRMAN LEFEBVRE: Do we have Mr. Gochenaur? MS. SCAVONE: Yes, he's here. MS. ARNOLD: Can I just ask a question about one of the pictures that was submitted by the respondent? CHAIRMAN LEFEBVRE: Sure. MR. DEAN: I have one, too. MS. ARNOLD: (Indicating.) MR. DEAN: I was going to ask that. MS. ARNOLD: Can you explain how the doghouse is essential to gardening and landscaping that is shown in these photographs? MS. MacALISTER: Well, first of all, kennels are a conditional use of the agricultural zoning. So certainly under that category you could have doghouses. I don't know anywhere else you'd put a doghouse but in your backyard. Page 62 March 27, 2008 You know, so if you don't want him to sell doghouses, that's fine. But I would suggest that under other uses allowed in agricultural zoning, doghouses would be an acceptable thing to sell. If we can have kennels, I think we could have doghouses out here. And I guess that's the point here is I think the board has to take a look at what the code, the Land Development Code intended in an agricultural type zoning type category. It wanted things that were compatible with agriculture, with environmental and with conservation uses. And that certainly would fit the description of what Mr. Fogg sells on his property, in his nursery. And I don't really understand -- I know that they came out there on an anonymous complaint. But I would suggest that probably had that anonymous complaint never been made, nobody would have even paid any attention to what he was doing out there. MS. ARNOLD: I just wanted to ask the question to note that it's the argument that these sheds are related to the use that's permitted. I don't believe there's a permitted kennel on the property. So that's why I just wanted to point out this particular photograph as well. And I had one other question about this photograph. Is there active agricultural farming actually happening -- growing the tomatoes and those types of things as well on the property? MR. FOGG: We don't grow tomatoes right now. Right now we're growing trees. And we get the produce from other farms. But yes, we have grown them in the past. And with the road construction the way it was -- THE COURT REPORTER: Could you please get on the mic? CHAIRMAN LEFEBVRE: You need to talk into the -- MR. FOGG: And with the road construction that was just completed, we had to make adjustments to our whole operation, as far as farming goes. It was up front closer to the road, and now it's not. MS. MacALISTER: I would also point out that under 2.03.01, Page 63 March 27, 2008 Section 21, II, retail plant nurseries subject to the following conditions says additionally, and this is in your packet, additionally the sale of fresh produce is permissible at retail plant nurseries as an incidental use of the property as a retail plant nursery. And I did show you in there pictures of the tree farm at the back. Those were the -- MR. FOGG: What we're growing is Washingtonian palms and oaks right now. CHAIRMAN LEFEBVRE: You need to be on the mic. MR. FOGG: We're growing Washingtonian palms and oaks right now. MS. ARNOLD: Mr. Gochenaur is here, if you want to speak with him. CHAIRMAN LEFEBVRE: Yes. And if you can swear him in, please. (Speaker was duly sworn.) MR. GOCHENAUR: For the record, Ross Gochenaur, G-O-C-H-E-N-A-U-R, zoning and land development review. I was the author of the letter in question. And what I'd like to do, if you'd bear with me, is try to explain what our process and role is and what those of code enforcement would be under general circumstances. In the zoning department we're responsible for applying the Land Development Code. This letter is a determination that that use would not be allowed on the property. We make these determinations regularly. Sometimes verbally, sometimes in letters. Sometimes the zoning code is not clear and in those cases we're asked by staff and the public to make -- to give opinions and make determinations. I do not have the authority to interpret the Land Development Code. Only the zoning director has that authority. We have due process at work here. We've made a determination that the use is not allowed. The Page 64 March 27, 2008 attorney has given her opinion that it would be and why. We disagree. The way to contest that is not in this forum. That should be contested through an official request for a zoning interpretation from the zoning director. That's where you do that. We've already determined that there's a violation -- that this act is a violation, that this use is a violation. What your agent -- excuse me, what your investigator has done has been provide you with competent and substantial evidence that the sale of sheds is occurring on the property. We have already determined that the sale of sheds on any agricultural property as accessory to a retail nursery is not valid. So the investigator is simply allowing you to decide, based on her competent and substantial evidence, if the sale of sheds is occurrmg. And if the attorney wishes to contest the zoning verification letter, then the process for that would be an official interpretation. Questions? MS. MacALISTER: Mr. Gochenaur, what ifMr. Fogg sold a bird bath? Is that allowed? MR. GOCHENAUR: First let me make it clear, I'm not here to debate whether the letter that was sent to Mr. Fogg is valid. That was our determination. MS. MacALISTER: Well, let me ask you this: If you had determined in your letter that sheds were an acceptable use on the property, would there still have been a code violation? MR. GOCHENAUR: I'm not sure I understand the point of that question. MS. MacALISTER: The point of the question is if your letter had said no, I find that sheds are an accessory to the retail sale of plants, would that have then -- would we then be here today talking about a code violation? MR. GOCHENAUR: If the letter had determined that there was no violation, then the investigator would not have proceeded with the Page 65 March 27, 2008 case. MS. MacALISTER: So it's not really fair then for you to say here today that all we're talking about is the substantial and competent evidence provided by the investigator that sheds were being sold, because the basis for that violation, by your own admission now, is still the letter. MR. GOCHENAUR: It wasn't an admission, it was a statement. What I was stating was it has been determined by the zoning department that the sale of sheds as accessory to any retail nursery anywhere in agricultural zoning is not valid. It's not compatible with the intent of the Land Development Code. And anyone wishing to contest that would have to file a request for a informal interpretation from the zoning director. What you're hearing today is the investigator's evidence that the sale of sheds is occurring on the property. MS. MacALISTER: Correct. My question to you, sir, was if your letter had been a different interpretation, would we be here today? MR. WRIGHT: I'm going to have to object at this speculation. I don't know that it's going to get us anywhere, to be presenting hypotheticals to Mr. Gochenaur. I just wanted to get that on the record. CHAIRMAN LEFEBVRE: Let's move on from this questioning. MS. MacALISTER: I have no other questions. I think he's -- MR. GOCHENAUR: Gentlemen? CHAIRMAN LEFEBVRE: Does the board have any questions? MR. FOGG: I'd like to say something-- CHAIRMAN LEFEBVRE: You're going to have to talk -- THE COURT REPORTER: Please talk in the mic. MR. FOGG: There is not one agricultural nursery, business or farm anywhere in Collier County that does not use a specific outbuilding as an accessory to their operation.G Page 66 March 27, 2008 If you go to Immokalee, the farmers market is full of these places. The forestry department has sheds, agricultural. The agricultural exchange has three sheds. We sell them soil, okay? Ray's Lawn and Garden, Pelican Nursery, every single one of them uses an outbuilding for a shed specifically because they need it. It's an accessory. It's absolutely -- I have one for my use in my operation. So I find it hard to believe that it wouldn't be categorized as an accessory . You know, it's kind of ambiguous because in the law it states we cannot sell motorized equipment. We cannot do this, we cannot do that. It does not say we cannot sell an outbuilding as an accessory. It does not say that. So, you know, we're not selling garages, we're sticking to the agricultural theme. It's a bona fide tool and use of the industry. I just want you to fully understand that. So take that into consideration. MR. WRIGHT: Could we present just a couple of questions to this gentleman -- CHAIRMAN LEFEBVRE: Yes, sir. MR. WRIGHT: -- in rebuttal? Sir, do you sell-- prior to yesterday, do you sell these sheds on the property? MR. FOGG: I have sold sheds on the property. Right now we're not selling any sheds today because we're changing vendors. But I do want to sell this product. It was a big hit. I had one complaint, and I would like to say, you know, you -- it was an anonymous person who called. What it was, it was a competitor. And, you know, but not going there. MR. WRIGHT: If you could just -- one other question. You're not contesting this allegation that you are selling sheds on the property . MR. FOGG: No, no. Page 67 March 27, 2008 MR. WRIGHT: Okay, I just want to make sure-- MR. FOGG: No, I'm not contesting that at all. MR. WRIGHT: And does that -- when I say sheds, does it include the doghouses? MR. FOGG: You know, I don't have to sell dog -- you know, that was like a little trinket thing. It doesn't mean anything to me. The shed, a bona fide agricultural use, means something to me. And it means something to my customers. MR. WRIGHT: So have you sold doghouses on that property? MR. FOGG: No. MR. WRIGHT: You haven't sold any doghouses? MR. FOGG: Actually, they were taken away. They never sold. MR. WRIGHT: But they were for sale? MR. FOGG: They were for sale. CHAIRMAN LEFEBVRE: And have you ever marketed any of these sheds as quote, unquote, garden sheds? MR. FOGG: Yes. MR. WRIGHT: And do you ever -- can you put anything else in them like a fishing rod or other -- MR. FOGG: You can put fertilizer, you can put -- I mean, come on, technically you can put anything you want in there. You can put a sack of money in there. But, you -- CHAIRMAN LEFEBVRE: Okay, I think we-- MR. WRIGHT: I just have a couple of closing comments. We all agree that there are sheds are being sold on this property. The only thing we disagree on is whether or not they're accessory to the planting operation. We have testimony from Mr. Gochenaur that they're not. We have no testimony to refute that. And basically we would ask that you find that this is not an accessory use to the plant operation. Because to allow that would open Pandora's Box to sale of garages on the lot, sales of sprinklers, Page 68 March 27, 2008 trimming equipment, anything else that you could remotely tie to gardening. Thank you. CHAIRMAN LEFEBVRE: I think both sides made their point. MS. ARNOLD: Can I just have one comment? And briefly, it's my position and my department's position that we're not asking this board to make a determination whether or not this use is accessory to agricultural. It's not your -- it's not your position to do that. The zoning director's responsible for doing that, and the Board of County Commissioners in the body of the zoning appeals is responsible for hearing any appeals to that determination. It's our request that you find that there was selling sheds (sic) and it's not a permitted use. It's not an authorized use in that zoning district, period. CHAIRMAN LEFEBVRE: I'm going to close the public hearing and leave it up to discussion of the board. MR. LARSEN: Well, I'd like to ask Mr. Write a question. CHAIRMAN LEFEBVRE: You could. MR. LARSEN: Mr. Write, it appears that supplemental exhibits were submitted by Ms. MacAlister, and she submitted Exhibit B. Do you have that, sir? MR. WRIGHT: Yes, sir, I do. MR. LARSEN: And it seems to be a section of the Land Development Code. And on Page 13 should Ms. MacAlister refer to subsection 21. Do you have that? MR. WRIGHT: Yes, I do. MR. LARSEN: Okay. In sub. one where it says, retail sales shall be limited primarily to the sale the 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. Do you see that, sir? MR. WRIGHT: Yes, sir. MR. LARSEN: Is that section applicable to the allegations Page 69 March 27, 2008 against Mr. Fogg? MR. WRIGHT: It is. That's what you would point to if you were saying this is allowed and you pointed to that section. And that's where the crux of this argument is. They're saying it does fall under that, we're saying that a determination has been made by staff that it doesn't. Sheds don't fall into that. MR. LARSEN: I looked at the photographs. These are rather large sheds. MR. WRIGHT: Yes. MR. LARSEN: And I guess the argument from the county is that they're multipurpose rather than just garden sheds? MR. WRIGHT: Exactly. As outlined in Mr. Gochenaur's letter. MR. LARSEN: Thank you very much, sir. MR. WRIGHT: Thank you. CHAIRMAN LEFEBVRE: Any further questions from the board? MR. KELL Y: I don't have a question, but I have a comment. CHAIRMAN LEFEBVRE: Okay. MR. KELLY: I believe that no violation exists. And I don't think the county has done their part to produce enough evidence to prove otherwise. And although I cannot go in and interpret the code, as can Mr. Gochenaur, the evidence is just lacking, period. Because they cannot prove in the code or anywhere else where this is strictly prohibited under the use. So I don't believe a violation exists. MR. LARSEN: I'm of the same opinion, Mr. Kelly. CHAIRMAN LEFEBVRE: Any further comments from the board? MR. LARSEN: Just to be clear why I believe that, you know, I agree with Mr. Kelly is because basically I think it was incumbent upon them to show that they were not accessories to the planting or Page 70 March 27, 2008 the maintenance, and I don't think that that has been accomplished. CHAIRMAN LEFEBVRE: Any other comments from the board? MR. DEAN: You know, I guess I just feel a little opposite to that, because it was stated that he sold the sheds, and then he said other people have sheds on their properties, other areas of agricultural selling things. Well, they're not sell -- they have the sheds for their own use, as he probably does. But also, he's still selling sheds. And so I just think that's a violation to what the rule is. MR. KELLY: If! can comment to what Larry said. I agree with what Larry says, but I also think that it points to how pertinent sheds are to the accessory of agricultural purposes. Larry, I agree with you, but I also think that it helps to prove that a violation does not exist. Because everybody does use sheds in agricultural purposes. CHAIRMAN LEFEBVRE: I think the two points that we're getting mixed up is one, yeah, they're used, but then he's selling them. And I think that's where we're getting a little muddled. MR. KRAENBRING: Yeah, I mean, I see that. But as I read the section here, and other products or tools accessory or required for the painting and maintenance of said plants. I'm thinking in the respondent's mind, those were for maintenance of gardens. I wish that the code would be written a little bit clearer to say no, no sheds at all, whatever, but it's not. And I would have to agree with Mr. Kelly, I don't think that there's enough evidence here to say that he knew that there was a violation. This may not be the venue for this thing also. I think they already had some evidence that this could be bumped up for interpretation. I would have to agree that $1,500 is a little bit of a chilling effect for possibly getting the same opinion. Otherwise -- I mean, is that Page 71 March 27, 2008 $1,500 necessary in order to hear an appeal? I don't know. But I don't know if this is the right venue for us to be determining or changing the code or amending it. We're not trying to do that. MR. KELLY: Mr. Kraenbring, I think you bring up a great point. And if it was in the county's interest to further investigate this or to make a final determination, there is an LDC amendment process, and it happens every other year. And I think if the county was worried about repercussions from this case as setting precedence, I think it's a great idea to maybe interject that into the amendment process. But again, beyond our venue. We really have to just decide on what we're presented here today. CHAIRMAN LEFEBVRE: Any other comments from the board? (No response.) CHAIRMAN LEFEBVRE: Do I hear a motion? MR. KELLY: I'll make a motion that a violation does not exist. CHAIRMAN LEFEBVRE: Do I hear a second? MR. LARSEN: I second that. CHAIRMAN LEFEBVRE: All in favor? MR. KRAENBRING: Aye. MR. KELLY: Aye. MR. LARSEN: Aye. CHAIRMAN LEFEBVRE: Any nays? MR. DEAN: Aye. MR. MORGAN: Aye. CHAIRMAN LEFEBVRE: Aye. MR. L'ESPERANCE: And I recuse myself, continued from last November. MS. RAWSON: He's an alternate. MS. ARNOLD: There's no alternates. Everybody's voting right now. CHAIRMAN LEFEBVRE: Everyone's voting. Page 72 March 27, 2008 MS. RAWSON: That's right, because we're missing some people. MR. LARSEN: I'm a full member. CHAIRMAN LEFEBVRE: Yes. So again, the vote was 4-3. MR. KELL Y: Three to three. THE COURT REPORTER: Could I hear the nays once again? CHAIRMAN LEFEBVRE: (Indicating.) MR. DEAN: (Indicating.) MR. MORGAN: (Indicating.) MS. ARNOLD: It's actually 3-3, because -- CHAIRMAN LEFEBVRE: Oh, yes, that's correct. MS. ARNOLD: -- Mr. L'Esperance abstained. MR. KELL Y: Michelle, again, what happens in those situations when there's a tie? CHAIRMAN LEFEBVRE: Well, actually it would be-- MS. ARNOLD: The motion fails. Or you can -- and then you can make another motion. MS. RAWSON: Right. MR. DEAN: Can I ask one more question? On the sale of the sheds, and I see this big building, could they not sell the sheds inside, or is it on the property totally? That I don't know. MR. WRIGHT: I don't believe that it's a permitted -- they're permitted for retail nursery uses. And the argument of the county is that under that use shed sales is not included. CHAIRMAN LEFEBVRE: Seems like we're at an impasse here. MR. DEAN: Well, I would think that ifit calls for sheds are not allowed to be sold on the property, I would definitely make a motion that we not approve this, because sheds cannot be sold on the property as stated in our ordinance. And I don't understand how we can go against our ordinance. MR. MORGAN: I agree. Page 73 March 27, 2008 MR. KELLY: However, it doesn't state such. It specifically says in the last part of Section 21, I-A, it says and tools accessory to or required for the planting or maintenance of said plants. I mean, it's -- technically it's leaving it open on purpose for these type of additional accessones. MS. ARNOLD: And it does say tools required. And I don't know if a shed is required for mulching or landscaping. And I don't know if a shed would be defined as a tool. I could see it as a structure. But a tool -- when I look at a tool, it's something that you actually use to physically help you do whatever that act is that you're performing on the property. I understand that it is used by many for storage of agricultural, storage of toys, storage of a lot of things. I really think that the precedent that this board is setting is not for the sale of sheds on agricultural properties but it's the interpretation of the Land Development Code. I really think that you're being asked to do something that there's already an established process for, and you're going beyond your authority. That's the precedent that I'm afraid that we're setting here. MR. KELL Y: If it pleases the rest of the board, if the county's case is also relying on this same passage out of the LDC, then I believe we have the ability to decide whether that passage is applicable to this violation or not. If this is what it boils down to. And if the passage does not specifically say that this is not allowed, I do not think that we can say that a violation exists. MS. ARNOLD: You know, the passage in the Land Development Code doesn't say that when you build a 7-Eleven you need to get a building permit. It doesn't say specifically that. But we rely on the zoning department and the building department every day to tell us whether or not something requires their authorization. And we bring matters to this board on a monthly basis for that, based on those opinions from those bodies. And today we're questioning the opinion and we're trying to March 27, 2008 define whether or not that opinion is just. MR. KELLY: That is a very good point. And if it was so important for the county to completely clarify this passage and to support their case, then why doesn't the county go out and pay the $1,500 to have a formal determination made? MS. ARNOLD: We have gotten a clarification that we normally get every day. And we don't dis -- we're not disputing that determination. The respondent is, and some of the members of the board are. And the process is if someone disputes that, there is an official interpretation process. MR. KELLY: I appreciate that. However, Mr. Gochenaur's letter is an opinion, it is not the official interpretation. MS. ARNOLD: Right. And we act and bring cases to your -- this board on opinions, not official interpretations, on the application as it is applied by the zoning department, the building department and all the other departments responsible for the various Land Development Code or ordinances. We don't get official interpretations before we act, we get their professional guidance. And that's what we acted upon. MR. KELLY: And I'd like to add that in this particular case, this is a gray area. And other cases are more black and white. Either it's in the code and it's a violation or it's not. In this particular case, I think that we as a board have the authority and the responsibility to see whether or not this violation exists. And in this case I don't believe it does. CHAIRMAN LEFEBVRE: Mr. Larsen? MR. LARSEN: Thank you. I don't see it as a gray area. Specifically, the section that we were discussing says retail sales shall be limited primarily. And then it says such as mulch or stone, fertilizer, pesticides and other products. And tools accessory to or required for the planting or maintenance of such plants. Page 75 March 27,2008 So I don't see it as such a gray area. I see that retail sales are allowed of things other than plants. And then they give examples of such things and specially say other products which are accessory to or reqUIre. Now, unless there is a -- someone comes forward and gives testimony that says that these sheds are not accessory to or required for the planting or maintenance, I think that Mr. Fogg was in his right to sell the sheds on the property. CHAIRMAN LEFEBVRE: Any other comments? MS. ARNOLD: And I guess what we're saying is that the letter from Mr. Gochenaur is the statement that says that those structures are not required. And it's up to the board -- I guess you're making it up to you to accept that determination or not. And that's our evidence. MR. WRIGHT: In addition, we have Mr. Gochenaur's live testimony here today to back up that very statement, that they're not allowed and they're not accessory to gardening. And I would add, if you were to take this one step further you could have greenhouses on the corner for sale, you could have garages on the corner for sale. But we have presented that evidence, that these are not specifically accessory to planting. Our burden was to present that evidence, and there's been nothing contrary to that. MR. LARSEN: Well, I believe the testimony as to Fogg is contrary to that, as well as the statute. But if I understand Mr. Gochenaur's testimony, his letters, it's based upon the fact that prefabricated sheds are not mentioned; isn't that correct? It's in the body of his letter. It says, prefabricated sheds are not mentioned and thereby, the exclusion from the sheds being mentioned is the premise upon which his letter is based. And I think that's a false premise. MR. WRIGHT: Well, I don't want to speak for Mr. Gochenaur, but I would point out that he -- the term for this letter is a Page 76 March 27,2008 determination, and that's what he does for a living. And he determined that the sale of prefabricated sheds is not considered a valid accessory use for the principal use of a retail plant nursery. He basically said because they're intended for much more general use. I asked him this question, sir, to try to get a sense of what is the continuum here, how about a garden trowel, would that be considered an accessory use? And he said, yeah, absolutely. And I said, how about a cover that stores garden trowels, would that be accessory? And he said, no, because they can be used -- and I was going to take it further, to the sheds, to the greenhouses, to the garage, to the big house, whatever, airplane hangars. But he drew the line right there. And along that continuum, staffs job is to determine when a question comes up where -- what's allowed and that's not, and that's what he did with this letter. That's his job. MR. LARSEN: Thank you, Mr. Wright. MR. WRIGHT: You're welcome. MR. KELLY: Well, that to me seems -- that seems to me to be kind of contradictory. I mean, you can have a shovel or a rake or a trowel, but you have no place to put it. I mean, you just leave it out in the middle of the garden? MR. WRIGHT: You can put it in the shed, but you just can't sell that same shed on the property. CHAIRMAN LEFEBVRE: Mr. Wright, the question wasn't directed towards you, so -- the public hearing is closed. MR. KELL Y: I completely understand where you're coming from in the county. And I appreciate Michelle's opinion, too. It all makes good sense. But I think we -- I'm just on that teeter line and I'm falling more towards no violation. CHAIRMAN LEFEBVRE: Any other comments from the board? MR. LARSEN: I'd like to renew the motion that we find no Page 77 March 27, 2008 violation exists. MR. KELL Y: I'll second it. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. KELLY: Aye. MR. LARSEN: Aye. CHAIRMAN LEFEBVRE: Those against? MR. DEAN: (Indicating.) CHAIRMAN LEFEBVRE: (Indicating.) MR. MORGAN: (Indicating.) MR. L'ESPERANCE: My vote remains the same, I'm recused. MR. WRIGHT: Mr. Chairman? CHAIRMAN LEFEBVRE: Yes. MR. WRIGHT: Excuse me, I just wanted to clarify something on the record. This section of the LDC that we pointed to in a couple of cases today which says any uses not specifically identified are prohibited, and I've heard a couple times from the board that the county hasn't met its proof that this is prohibited. Well, we have presented that proof here. And I just wanted to make sure, I think it was a reference to the 1700's and the burden is on the county. Well, let's just say for example you want to build a factory on your front lawn or you want to build a nightclub on your front lawn, or a kennel, a golf course, any of that stuff. None of that stuff is specified in the code that you can't do it. So we cite that section of the LDC that says if it's not specifically identified in one of these use charts, you can't do it. Because the other option would be to say the following are prohibited: Night clubs, kennels, factories on your front lawn. So that's why -- and we're not -- the last thing we want to do is, you know, take away fundamental rights from people. But that's the way these zoning regulations necessarily have to be set up. You put the burden on the applicant by showing them through a representative Page 78 March 27,2008 from our staff that this is not an allowed use and the burden's on them to find where in the code that it is allowed. And that's what that section that they're cited under is. I just want to make sure that we're not -- it's clear that we're not stepping on people's rights and we are putting the burden on them appropriately. CHAIRMAN LEFEBVRE: I guess the statement I have to make is that in the letter it states that there's a process you can go through. Pay the $1,500, get a statement from the director and then appeal that letter, if you want to appeal that letter. That process has not been followed. That option hasn't been followed through with the respondent. So I guess that's probably one of my biggest issues is why they didn't go through that process. They feel -- they're saying -- Mrs. MacAlister said that they think the outcome would be the same. So if the outcome's the same, there's an appeal process, and I feel that they have to go through that process. Jean? Where do we-- MS. RAWSON: I can't vote. CHAIRMAN LEFEBVRE: I know you can't vote. MR. GOCHENAUR: Mr. Chairman, may I speak, please? MR. KRAENBRING: Just one second. I just want to make one comment that might help to clarify it. CHAIRMAN LEFEBVRE: Go ahead. MR. KRAENBRING: I think you are right, this obviously is not going to be the end of this. At least I don't think it is. I think Mr. Kelly's correct that maybe when LDC review time comes around, they can amend it and clean this up. But there is an appeal process, and maybe that was my point from before is that I don't know if this is always the complete venue to come to a definitive answer. That having been said, I would probably look at saying that the Page 79 March 27,2008 violation does exist, just based on merits of the case presented in front of us. I am sympathetic to Mr. F ogg, because I don't think he intentionally tried to violate the law here. I think to his mind and to a lot of people's minds in this room sheds are part of the gardening process. But I think there is an appeal process that makes that determination to get it into the Land Development Code. So -- MR. KELLY: If that's the case, if the Code Enforcement Board is being called upon to make a ruling of law, then can we throw this case out and have it placed in a different venue? MS. RAWSON: You're going to either find out whether there's a violation or not a violation. MR. KELL Y: But we can't, because it's a determination of the LDC law, which we can't make here. MS. RAWSON: Well, you're going to determine whether or not you think there's a violation of the code, which is the LDC. You either say that there is a violation and it needs to be corrected or there isn't a violation. That's really the scope of your authority. MR. DEAN: Mr. Chairman, could we hear from them? CHAIRMAN LEFEBVRE: Do I need to possibly reopen or -- the public hearing to listen? MS. RAWSON: You may, if you wish to ask them further questions. You have that authority. CHAIRMAN LEFEBVRE: I don't have any further questions, but he wants to make a statement, so -- MR. KELL Y: Mr. Chairman? It might help us to get past this. CHAIRMAN LEFEBVRE: Okay. I'd like to reopen the hearing. MR. GOCHENAUR: Thank you for your consideration. I'd like to try to help us get through this impasse. The first thing I will say is when I made that determination in the letter, it was a consensus, it wasn't personal. I did consult with the zoning director. Page 80 March 27, 2008 When we have gray areas, and we have many in the code, what we try to do is get a preliminary opinion, if it's possible for her to give one without doing a lot of research, and these things take a lot of research, and we convey that in the letter. That basically saves the respondent $1,400. What we're doing is putting the respondent on notice that the official interpretation is very, very likely to uphold the zoning verification letter. And that's what happened in this case. But that is the process we have to follow. Second thing I have to tell you is if you decide that there is no violation here, that's not going to change our opinion. What you're basically doing is allowing an act that the zoning department has decided is in violation of the provisions of the Land Development Code to continue and sending that message to all other citizens in the county who mayor may not be concerned with the retail sale of sheds, have nurseries or any similar activity. So regardless what you decide, it's not going to change our opinion, it's just going to complicate things. I would recommend that the respondent follow due process and apply for an official interpretation. This has been done before. And I can't guarantee the outcome, but I will say that the zoning director has considered this, and that's very likely to be her opinion. Thank you very much for letting me continue. MR. WRIGHT: I just want to briefly add, I've been listening to all of your concerns, and I'm thinking of the doghouse. And I don't want to tailor your ruling to focus on what type of shed, but I don't think that any of your concerns would have been applicable to a doghouse. I just want to highlight that. There's no way, there's no evidence presented that those doghouses are any way connected to a nursery operation. So to the extent they're selling doghouses on the property, I don't see that there would be any basis for finding that there's not a Page 81 March 27, 2008 violation. MR. FOGG: We're not selling doghouses. MS. MacALISTER: May I make -- I've been patient-- CHAIRMAN LEFEBVRE: Public hearing has been reopened, so yes -- MS. MacALISTER: I've been patient through all of the comments by the staff. I would like to say first of all that if the doghouses are a violation or if Mr. Fogg would start selling a shed suitable to store a car or a Cessna 172, then of course the county would be free to violate him and say you are selling something that exceeds a reasonable accessory use for the zoning. And I think that would always be within the county's prerogative. You know, doghouses are not an accessory use to plants and we're going to violate you. And I don't think that would be an unreasonable violation. Number two, I think the county staff has reinforced Mr. Fogg's and my determination that going the next step in the process with the zoning department was fruitless. He admitted such by saying that his letter was already based on a conversation and consensus with the planning director, so it would be a $1,400 adventure to end up where we are today. I would also like to say that what this board can decide is that Mr. Fogg made what was a reasonable interpretation of the code when he decided to sell sheds on his property. And as such a violation does not exist. If the county feels that that's a slippery slope, the county has the option of going in and asking the county commission to clarify later on. But I don't think that Mr. Fogg did not make a reasonable interpretation of the Land Development Code when he made the decision to sell sheds. And I think that the fact that we are having this much debate over an ambiguity in the code speaks volumes about the Page 82 March 27,2008 fact that it would be incumbent on zoning to go in and ask the county commission to clarify that section of the code. As far as Mr. Fogg, I don't think he should be responsible for going in and doing what the county should do, which is clarifying the LDC. He made a reasonable interpretation, and I don't think that should subject him to fines, and I don't think that should limit his business. MR. FOGG: Can I speak? I think going back to what he was citing, in any other accessories involved in the operation. Other is a very big word. Very big word. And, you know, it encompasses a lot of things. MS. ARNOLD: And required is a big word, too. MR. FOGG: Required and other, yes. MS. ARNOLD: And required's in that, right after there. MR. FOGG: And like I was saying, if you look at any agricultural operation, including Collier County's, a shed is required for their operation. MS. MacALISTER: But we need to clarify that word required. Because that's really not what the code says. The code says tools, accessory to or required. So it is not incumbent upon something that is being sold to be required. It is incumbent upon it to be either required or accessory to. And that's the exact language of the LDC. So I would say that -- as I said, I would ask this board to consider the option of finding Mr. Fogg not in violation, primarily because we have so much debate here that one can't say that he did not make a reasonable interpretation of the code when he chose to sell sheds. CHAIRMAN LEFEBVRE: I'm going to close the public hearing once agam. Any more comments from the board? Go ahead, Mr. Kelly. MR. KELLY: I'm probably going to get in trouble for this Page 83 March 27,2008 statement, but I'll make it. If! was at home right now, sitting here watching TV and these proceedings, I'd be embarrassed. Because it really seems to me like it's big government trying to beat up on little businessmen. I mean, we are talking about such a -- it's a huge debate over something that seems so trivial. If it was that important, put it in the LDC. If you wanted to, you know, somehow try to limit the size of the accessory units that were being sold, fine, determine a shed less than 10-foot by 10-foot is considered gardening, anything larger than that could have uses outside the intended purpose of the LDC. But this is -- I mean, this is a lot of burden that we're placing on the respondent to go through these processes, which has already said and we've already heard testimony probably going to be against him anyways. And yet on the same hand they're recommending that as the pathway. My suggestion to the respondent is if this goes against you, I would try to continue to appeal and fight this in whatever way you can. And since you're a community member, jump on one of the LDC amendment commissions and the advisory boards and see if you can't help yourself. CHAIRMAN LEFEBVRE: I think this is outside your -- MR. KELL Y: No, I mean, I'm just offering my opinion. And that's what's leading me to believe that there's no violation. CHAIRMAN LEFEBVRE: Any other thoughts, once again? (No response.) CHAIRMAN LEFEBVRE: Do I hear a motion? MR. DEAN: I make a motion the violation exists. CHAIRMAN LEFEBVRE: Do I hear a second? MR. MORGAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. Page 84 March 27, 2008 CHAIRMAN LEFEBVRE: Aye. MR. MORGAN: Aye. CHAIRMAN LEFEBVRE: Any nays? MR. KELLY: Nay. MR. LARSEN: Nay. CHAIRMAN LEFEBVRE: The two nays are Mr. Kelly and Mr. Larsen. MR. KRAENBRING: Don't you have to hear about the county's recommendation? CHAIRMAN LEFEBVRE: Yes, that would be helpful. Sorry. MS. SCAVONE: The county recommends that the Code Enforcement Board order the respondent to pay all operational costs in the amount of $331.48 incurred in the prosecution of this case, and abate all violations by removing all sheds within 14 days of this hearing, or a fine of $250 a day will be imposed until the violation is abated. Again, he did abate that because yesterday there were no sheds on the property. MR. KRAENBRING: Can you put that up on the board for us, please? And let me just ask a question. So you are not selling sheds at this time on this property? MR. FOGG: Correct. MR. KRAENBRING: Okay, it's already been taken care of as far as that's concerned. MR. FOGG: Yes. MR. KRAENBRING: You may like to sell sheds in the future. And there's probably is this review process that I think now we've come to a consensus that it's beyond what we can do. I just want to make sure that we are giving this gentleman as much latitude as possible not to impose any fines, just because I believe it was in his mind that he was not violating. And again Page 85 -, March 27,2008 because of the ambiguity. So again, the sheds are taken care of, we don't anticipate a fine because of that, unless it's a reoccurring situation prior to him getting permission or a Land Development Code change. Am I just -- if we have to craft something into that, I don't know, I'm just sending that out to the board. Because I do agree with you, Mr. Kelly, that an ambiguity existed. MR. KELLY: Also, I'd like to see if maybe county would be willing to waive the op. costs. And I think $250 a day is excessive for this case. MS. SCAVONE: He already abated it. MR. KELLY: Okay, thank you. CHAIRMAN LEFEBVRE: Do I hear a motion? MR. KRAENBRING: Again, to Ken, we cannot abate the operational costs, but the county can withdraw them. Is that -- MR. KELLY: I don't know, I'm asking. Is that even possible? And if it is, are you willing in this case? MS. SCAVONE: You're wanting to take away the operational costs, is that what you're asking? MR. DEAN: Can't do it. MR. KELL Y: I know we can't do it, but the county has the -- I believe county has the opportunity to. MS. ARNOLD: We do. And I guess I'm asking why would we in this case? Is there a financial hardship or -- MR. KELL Y: Well, maybe the one that's being created now because of this case. I mean, if we were so divided and went to such great discussion and now the second time rehearing the case, you can imagine the amount of attorney bills that came to the respondent because of it. I know that $331 is just piling it on. CHAIRMAN LEFEBVRE: Well, I think the respondent had a choice between either going for the letter or coming back in front of us. And that was a choice that the respondent decided to make. So to Page 86 March 27, 2008 -- I mean, we can't do anything with the operational costs, but -- MS. SCAVONE: I agree. MR. KRAENBRING: We don't have the authority. It was just a request to the county. And I think just to put an emphasis on how divided we were and how sympathetic I think we are to the respondent, even though we did find a violation existed. Can you put it back up on the board again, please? So once again, gentlemen, we're not going to be seeing any fines imposed here because he has cleaned up the property. I would make a motion that we accept the county's recommendations as they stand. CHAIRMAN LEFEBVRE: Do I hear a second? MR. DEAN: Second. MR. MORGAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. CHAIRMAN LEFEBVRE: All those opposed? MR. KELLY: Opposed. CHAIRMAN LEFEBVRE: One opposed, Mr. Kelly. MR. KELL Y: And the reason, for clarification, was I believe the fines were excessive. MR. KRAENBRING: Good luck. MR. FOGG: Thank you. CHAIRMAN LEFEBVRE: We're going to move on to BCC versus Mary Edwards. MS. MARKU: This is in reference to Department Case No. 2006080127. Page 87 March 27, 2008 I would like to ask if the respondent is present. (No response.) MS. MARKU: For the record, the respondent is not 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. MR. KELL Y: Make a motion to accept the packet. CHAIRMAN LEFEBVRE: Do I hear a second? MR. DEAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? (No response.) MS. MARKU: Violation of Ordinances 04-41 as amended of the Collier County Land Development Code, Sections 10.02.06(B)(1)(a), 1O.02.06(B)(1)(d), 1O.01.06(B)(1)(e)(i), and the Florida Building Code 2004 edition, Section 105.1. Description of violation: Enclosed living space attached to existing mobile home without first obtaining all required Collier County permits. Location/address where violation exists: 47 Moon Bay Street, Naples, Florida, 34114. Name and address of owner/person in charge of violation location: Mary Edwards, 47 Moon Bay Street, Naples, Florida, 34114. Date violation first observed: July 26th, 2006. Date owner/person in charge given Notice of Violation: June 21st, 2007. Page 88 March 27, 2008 Date on which violation to be corrected, July 21st, 2007. Date of reinspect ion: September 20,2007. Results of reinspection: Violation continues to exist. At this time I would like to turn the case over to Code Enforcement Board Investigator Christopher Ambach. (Speaker was duly sworn.) MR. AMBACH: Good morning -- afternoon. CHAIRMAN LEFEBVRE: Not yet. MR. AMBACH: Not yet. Close. For the record, Investigator Ambach, first name Christopher, A-M-B-A-C-H, Collier County Code Enforcement. On 7/26 of '06 I received a complaint about an enclosed living space unpermitted, location 47 Moon Bay Street. Later that afternoon I met with the homeowner, Mary Edwards, and explained the complaint and the possible violation. She stated her father had built a shed in that location several years ago, and it had eventually been enclosed with electrical and plumbing added later. On 9/25/06 I met with Joann Greenberg from the records department. At that time we could not find any permits for the conversion. The property card shows an addition was done in 1986. On June 21 st of 2007, after more permit research, I drove to the property to serve a Notice of Violation. I received no answer at the residence. I left a business card requesting a call back and a Notice of Violation was sent certified mail. I also left a courtesy copy on her door, as well as a permit brochure that answers all questions, gives phone numbers who she can speak to at the county to start the process. On 6/22/07 I received a call from Mary Edwards requesting a call back. However the number provided was not valid. On 9/28/07 and 10/1 0/07 I conducted more research that found a 1989 permit and a 1979 permit, one for a carport and one for a screened in dock were found. These were the only permits found, both receiving certificates of occupancy. Page 89 --~'_~"r March 27,2008 After extensive research, no more permits could be found for the cement block enclosed living space. This case was then forwarded to today's hearing. I do have some photographs here I'd like to enter in as evidence. MR. KELL Y: Make a motion we accept. CHAIRMAN LEFEBVRE: Do I hear a second? MR. DEAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? (No response.) MR. AMBACH: What you're looking at here is -- the orange section is the cement structure that has been added to the original mobile home which is to the right of your screen. There is a carport even further right. That again was permitted. Again, this is just a -- the same picture. It travels the entire length, south side of the home to the rear of the home and then heads north again in an L shape. You'll notice there's been some propane tanks added to the side of the unit there also. This is the interior where Mrs. Edwards stated that she now resides. There is a kitchen and a bathroom within. This is an aerial photo here. I'm going to actually walk away. I'm going to show you the structure in its entirety that has been built without permits. That's what I have for my photographs. Page 90 March 27, 2008 I did do some more research also into the -- what the county uses, their leather-bound permit books from the early 1980's, and I went through each one individually from 1984 to 1987 to try and find something for this unit, some sort of permit trail. And there was absolutely nothing that could be found. I think I spent more time researching permits on this case than I've done in any other case in the five years that I've been with the county. And again, I come up with absolutely nothing for this structure. As a matter of fact, I did find a permit for a shed, it was a separate case opened, that we were able to take care of for her. But unfortunately nothing for this. CHAIRMAN LEFEBVRE: I'm going to close the public hearing. Any questions from the board? MR. L'ESPERANCE: Mr. Chairman, I have one question. Is Mrs. or Ms. Edwards confined to a wheelchair? Is she handicapped? MR. AMBACH: Yes, she is. CHAIRMAN LEFEBVRE: Any further questions from the board? MR. KRAENBRING: It was your testimony that she only made one contact with you and then that was an improper number? MR. AMBACH: That's correct. MR. KRAENBRING: So you haven't talked to her since or -- MR. AMBACH: No, sir. MR. KRAENBRING: -- no response. Thank you. MS. ARNOLD: This case was set on a prior agenda, and this is continued to this agenda for -- at her request. The board granted a prior continuance. CHAIRMAN LEFEBVRE: Any other questions? MR. L'ESPERANCE: Does Ms. or Mrs. Edwards have any advocate or anybody assisting her with this case that we know of? Page 91 March 27, 2008 MR. AMBACH: She has a son that lives with her in the actual mobile home. MR. L'ESPERANCE: Has he been assisting in any fashion? MR. AMBACH: He's been no assistance whatsoever, sir. I had a run-in with him on the property also and I was not welcome there. MR. L'ESPERANCE: Thank you. MR. MORGAN: What's your recommendation? MR. DEAN: I'd like to make a motion a violation does exist. MR. KELL Y: I'll second it. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? (No response.) CHAIRMAN LEFEBVRE: Now we can hear your recommendation. MR. AMBACH: The county's recommendation is that the CEB order the respondent to pay all operational costs in the amount of $303.13 incurred in the prosecution of this case within 30 days of today's hearing, and abate all violations by obtaining all required Collier County permits for the enclosure, including all inspections and a certificate of completion, or obtain a Collier County demolition permit, all required inspections, any certificate of completion and restore the property to its original permitted condition within 120 days of this hearing or pay a fine of $200 per day for as long as the violation continues to exist. The respondent must notify the code enforcement investigator Page 92 March 27, 2008 when the violation has been abated in order to conduct a final inspection to confirm abatement. CHAIRMAN LEFEBVRE: Can you put that up on the screen, please? MR. AMBACH: Absolutely. MR. KELLY: I'd just like to make a comment, that I think the fines in this case might be a little light. It's obviously a health and safety issue without prior inspections. I think we should be up near the $250 a day mark. The only thing I'd like to also add is that -- is the question of service. You said you had some problems in the past servicing and noticing her. When we file this, do you think she'll be able to get it timely? I mean, does she actively live there, does she check her mail? MR. AMBACH: She does actively live there, yes. I went out for more or less just to speak with her, and she was not home at that time. That's when I had a run-in with her son. The Notice of Violation had already been served. MR. KELL Y: Okay, thank you. MR. AMBACH: You're welcome. CHAIRMAN LEFEBVRE: Any other comments from the board? MR. KRAENBRING: You know, it's a shame that she's not replying. But really, what can we do? I really don't have a problem with the $200 fine, though, just leaving it as is. And I hope she's able to respond and take care of it. Make a motion that we accept the county's recommendations. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KRAENBRING: Second. MR. KELLY: Second. MR. MORGAN: Second. CHAIRMAN LEFEBVRE: I guess pick one of the three. Page 93 March 27, 2008 All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? (No response.) CHAIRMAN LEFEBVRE: It's unanimous. MR. AMBACH: Thank you. CHAIRMAN LEFEBVRE: The next one would be BCC versus Jeffrey Macasevich. MS. MARKU: That is in reference to Department Case No. 2006100314. F or the record, I would like to ask if the respondent is present? (No response.) MS. MARKU: The respondent is not 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. MR. KELL Y: Make a motion to accept the packet. MR. DEAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? Page 94 March 27, 2008 (No response.) MS. MARKU: Ordinance 04-41, as amended, Land Development Code, Section 107.02.06(B)(1)(a), Section 1.02.06(B)(1)(e), and Section 10.02.06 (B)(1)(e)(i), and Section 22, Article 2 of the Collier County Laws and Ordinance, 104.1.3.5, 106.1.2, and the Florida Building Code 2004 Edition, Section 105.1. Description of violation: Improvement of property without permits, rear of home completely enclosed with sliding doors and windows. Location/address where violations exists: 4469 Lakewood Boulevard, Naples, Florida, 34112. Name and address of owner/person in charge of violation location: Jeffrey A. Macasevich, 4469 Lakewood Boulevard, Naples, Florida, 34112. Date violation first observed: October 16th, 2006. Date owner/person in charge given Notice of Violation: Good service obtained September 6th, 2007, via posting. Date on/by which violation to be corrected: September 17th, 2007. Date of reinspect ion: November 20th, 2007. Results of reinspection: Violation remains. At this time, I would like to turn the case over to code enforcement investigator Mario Bono. MR. BONO: Good morning, Investigator Bono, for Collier County Code Enforcement. CHAIRMAN LEFEBVRE: We need to swear you in. (Speaker was duly sworn.) MR. BONO: Once again, Investigator Bono for Collier County Code Enforcement. I think for the sake of brevity, which pretty much went out the window already, Ms. Bendisa has already stated the violations. And I'd like to also add that this case was a continuance from his Page 95 March 27, 2008 attorney. Apparently he had some medical problems, and we did grant that continuance. In that time I have tried to make numerous attempts with Mr. Macasevich, as did his attorney. And I spoken with her in length over the last two weeks. And today we did receive a -- actually I think yesterday we did receive a letter from her that she has withdrawn herself as counsel for Mr. Macasevich. On the one time I spoke to him actually face-to-face, as well as on the phone, he seemed to understand what the gravity of the situation was. And apparently he did seek counsel obviously to advise him what to do. And again, he did not respond either to my request and my notices, as well as phone calls, and so he did not communicate with his counsel at that point of time. So again, for the sake of brevity, this case was started by another investigator. We do have photos that I'd like to submit in evidence of a rear of a home that we have. CHAIRMAN LEFEBVRE: Do I hear a motion to accept package A from the county? MR. KELLY: Motion to accept. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KRAENBRING: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? (No response.) MR. BONO: These are photos taken once again by a previous Page 96 March 27, 2008 investigator, but they show -- actually they don't show that much but a rear of a structure that was a lanai, as evidenced by the property card, which indicates a screen porch that is now enclosed. On one phone call to Mr. Macasevich he became I guess somewhat hostile. He said, you know, how did you get on my property and all that kind of -- you know, I obviously imposed my civil rights. And I said the photos were taken by another investigator. The violation, obviously as the photographs were taken, does exist. Again, once I did meet him he understood completely what the gravity of the situation was. And that's where we are today. Again, it was my assumption, in speaking with his attorney, that she would be here -- obviously before I received that letter -- as well as Mr. Macasevich to represent himself. And that has not occurred, obviously, so that's where we stand. CHAIRMAN LEFEBVRE: Jean, I have a question. MS. RAWSON: Yes. CHAIRMAN LEFEBVRE: Ifwe know that he was represented by counsel and counsel did send a letter withdrawing herself, do we have to give him ample time to get new counsel, or could we just move forward? MS. RAWSON: We can move forward. There's nothing in our packets to indicate that any attorney has entered their appearance on his behalf. MR. BONO: Would the board like the letter from the attorney too that indicates her withdrawal? CHAIRMAN LEFEBVRE: I don't think that will be necessary. MR. BONO: Okay. MR. KELLY: Investigator, did you search to see if there were any permits on the -- MR. BONO: Yes, as of Monday -- excuse me, Tuesday there was no permits and as of this morning there were no permits. Absolutely. I neglected to say that. Page 97 March 27, 2008 But yes, there are no permits that would indicate that this improvement was permitted by the county. CHAIRMAN LEFEBVRE: I'd like to close the public hearing. MR. DEAN: I'd like to make -- CHAIRMAN LEFEBVRE: Any questions from the board? Any comments? (No response.) MR. DEAN: I'd like to make a motion a violation does exist. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KELLY: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? (No response.) CHAIRMAN LEFEBVRE: There's a violation does exist. Could we hear what your recommendation is. MR. BONO: Yes, sir. That the CEB order the respondent to pay all operational costs of $264.18 incurred in the prosecution of this case and abate all violations in the following manner: Applying for and obtaining all permits, inspections and certificate of occupancy required for the improvements of the property within 120 days of today's hearing or a $200 a day fine would be imposed until violations are abated. Or obtaining an issued Collier County demolition permit and demolishing said improvements and removal of debris to a designated waste disposal facility and returning structure to its original permitted Page 98 ~ March 27,2008 state within 60 days of to day's hearing or a $200 fine a day would be imposed. And the respondent must notify the code enforcement investigator when the violation has been abated in order to conduct a final inspection to confirm abatement. MR. L'ESPERANCE: Can we see that on the screen, please, briefly? MR. BONO: Yes, sir. MR. KELLY: I'd like to add maybe under recommendations that the op. cost be paid within 30 days. MR. BONO: Absolutely. CHAIRMAN LEFEBVRE: Any other questions, comments from the board? MR. KRAENBRING: It's consistent with the recommendations from the last case for something that's fairly similar. CHAIRMAN LEFEBVRE: That's correct. MR. KELLY: Well written. CHAIRMAN LEFEBVRE: Do I hear a motion? MR. DEAN: Motion to accept county's recommendation. CHAIRMAN LEFEBVRE: Do I hear -- MR. KRAENBRING: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? (No response.) CHAIRMAN LEFEBVRE: Motion passes. Page 99 March 27, 2008 Next case will be BCC versus Frank Fernandez. MS. MARKU: That is in reference to Department Case No. 2006120290. F or the record, I would like to ask if the respondent is present? MR. FERNANDEZ: Yes, I'm present. MS. MARKU: For 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. CHAIRMAN LEFEBVRE: Do I hear a motion? MR. KELL Y: Motion to accept. CHAIRMAN LEFEBVRE: Do I hear a second? MR. DEAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? (No response.) MS. MARKU: A violation of Ordinances 04-41, as amended, Collier County Land Development Code, Section 3.05.01(B), vegetation removal, protection and preservation. Description of violation: Vegetation removed on an undeveloped property without obtaining the proper required Collier County permits. Location/address where violation exists: Folio No. 39658240005. Off 20th Street Northeast, Naples, Florida. Name and address of owner/person in charge of violation location: Frank Fernandez, 11987 Southwest Sixth Street, Miami, Florida, 33184. Page 100 March 27, 2008 Date violation first observed: December 5th, 2006. Date owner/person in charge given Notice of Violation: Posted property on May 8th, 2007. Date onlby which violation to be corrected: June 8th, 2007. Date of reinspection: December 10th, 2007. Results of reinspection: Violation remains. At this time I would like to turn the case over to Code Enforcement Investigator Jennifer Waldron. CHAIRMAN LEFEBVRE: Can you please swear in the parties. (Speakers were duly sworn.) MR. WALDRON: For the record, Jen Waldron, Collier County Code Enforcement Environmental Investigator. This case is dealing with vegetation removal on an undeveloped property, which is not allowed without obtaining the proper Collier County permits. The way I'm going to go through the case is just show you some pictures and some aerials, because it will give you a better idea, rather than me trying to explain it to you. MR. KELL Y: Make a motion we accept the packet. MR. KRAENBRING: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? (No response.) MS. WALDRON: The first photo you're going to look at is from the Collier County Property Appraiser's. It's the aerial photo. The Page 10 1 March 27,2008 highlighted area is Mr. Fernandez's property. And if you look in the-- I want you to pay attention mostly to the area that's closest to the road. If you look right there. The next photo will show you -- yeah, that's from 2005, this photo is. This photo is from 2006, and you can clearly see that a majority of the property was cleared. And it remains the same in 2007. These are pictures that were taken on March 24th. They're kind of hard to see. But the portion on the left, the unvegetated portion is Mr. Fernandez's property. And the portion that you see with all the large pines is the neighboring property. So this is just to give you an image of what the neighboring property looks like and this is what Mr. Fernandez's property used to look like. CHAIRMAN LEFEBVRE: Is this a lot that's 75 by 660? MS. WALDRON: Yeah, it's one and a quarter acre lot. CHAIRMAN LEFEBVRE: One point one quarter. MR. WALDRON: They're pretty much all showing the same thing, the pictures are. I just wanted to give you a view of the cleared area and then the adjacent property so you can clearly see that it has been removed. That's also a shot from the road showing the cleared property. Most of the vegetation that was removed was understory mid-story, saw Palmettos, grasses, things like that. There probably were some pines that were also removed. MR. KELL Y: J en, can you go over again the rule in the Estates for the one acre, and does it apply to this? MS. WALDRON: The ruling in the Estates is with a building permit you're allowed to clear up to an acre of your property. And on this property is an undeveloped property. There are no permits for this property whatsoever, so that would mean that no vegetation removal is allowed. Unless he retained a vegetation Page 102 ....._..._-~,-. ---'---'"-'~--r' March 27,2008 removal permit, which probably would not have been issued. They're very rarely issued for undeveloped properties. MR. FERNANDEZ: Could I make one comment? CHAIRMAN LEFEBVRE: Are you done presenting your case? MR. WALDRON: Yeah. MR. FERNANDEZ: There was a fire there, it was my understanding when I purchased the property about nine years ago, back when I was living in Miami. I'm still there. So there was a fire. And I don't live in Collier County, so I don't know what's going on every day, you know. I have a life and I live in Miami. So I can't be monitoring what goes on. I know that a lot of cars were driven by there. That's probably the cause of the palmettos being destroyed. Even my neighbor, which is no longer there, because his house foreclosed, so he's not there, it's just an abandoned house right next to mine, he would tell me he had parties, motorcycle buddies of his, 40, 50, 60 motorcycles. There would be parties there. So a lot -- I would come maybe once a year, maximum twice a year. I would see tire tracks, you know, from motorcycles. Not only two-wheeled motorcycles, but also -- I made some notes here, but also four-wheeled vehicles. And cars were driven there. He also had horses in the back of his area, and I noticed that the horses are no longer there. Because like I said before, he foreclosed on the property, he's no longer there, there's nothing there. Where the horses used to be, it was just white sand. Just white sand. There's nothing. Because the horses would be tromping. I told him please, don't put your horses, don't put your motorcycles on my property. I don't want nothing -- you know. And I didn't have the money and I still don't have the money. I'm not, you know, financially secure at this moment in my life. One step away from bankruptcy. So I don't have money to actually put a fence around my property to keep the horses out, to keep the motorcycles. And -- you know, so the horse Page 103 March 27,2008 would be damaging and the palmettos. And on another note, I want to mention, she says I removed pine trees. That's not true. I walked the property several times. I leaned on a big pine tree and whoom, it went down, just by me leaning on it. Because that fire that was originally -- I don't know how many years ago. It was a lightning caused fire. That damaged the pine trees and they're falling down by themselves. One year I would come, there'd be nice green vegetation all over the place. Next year like, you know, if we had drought conditions it would be all dried out. It's almost like -- it's a dried property. You know, it's just dry. It changes. See what my point is? The landscape changes naturally. It's not that I knocked down or that I cut. I never cut a pine tree. The only thing I've done, and I want to be honest, is I planted at mango tree. That's the only time I took a shovel to that property was to plant a mango tree. I'm a gardener by heart, and I love planting. I don't admire destruction. I just wanted to get that clear. MS. WALDRON: For -- and we have explained to Mr. Fernandez that since it is his property, it is his violation. And unfortunately if that was his doing or someone else's doing, that is not our issue here. I did inform him that he can civilly pursue that with whoever he thinks may have created the violation, but we're not here to determine if he did it or not. It is his property with a violation on it. CHAIRMAN LEFEBVRE: Any further -- MR. FERNANDEZ: That's also another point that I want to get clear. Why am I being blamed for something I didn't do? It's like your neighbor, if you've got a car next to your neighbor and someone scratches it with a key and your neighbor says you did it because it was dark, and -- you know, you're coming up the driveway, you did it. You know? If someone else does something, why should I be harassed and Page 104 March 27,2008 reprimanded and fined? If the neighbor or -- not only the neighbor. The neighbor that was there actually told me that other people would be driving vehicles, you know, the four-wheelers and just those tire tracks all over the place. And also, I had a little situation, I don't know if they remember, I had a car parked there. That was the last time I was here, okay? The toe trucks that went into the property to take out my car, they also caused a lot of damage. CHAIRMAN LEFEBVRE: Mr. Fernandez, just like one of the cases we had before where it was an owner of a shopping center, the tenant wasn't in front of us because he had the sign up, the banner up, it was actually the owner. It is the responsibility of the owner to take care of their property, no matter what. So that's why you're in front of us and obviously not somebody else. Ultimately if there was someone that was trespassing on your property it's your responsibility to make the necessary reports to the Sheriffs Department to correct the situation. That hasn't been done. That's why you're in front of us. MR. FERNANDEZ: Well, if I'm not there to presence their trespass, how can I report the trespass? See? MR. DEAN: I think that's your responsibility, sir. You own the land. MR. FERNANDEZ: Okay, I own -- MR. DEAN: Do you have an intended use? Let me just ask you, do you have an intended use? MR. FERNANDEZ: I don't know what that question means. But what if! live in New York, for example-- MR. DEAN: No, I just -- MR. FERNANDEZ: -- and something happens here? How do you handle that? MR. WALDRON: What he's asking is do you have a plan for that property in the future? What do you plan to use that property for? Page 105 March 27, 2008 MR. FERNANDEZ: I was -- when I was married, I was going to build a house with my wife, and that's no longer, because I'm divorced, so I don't know what I'm going to do with the property now. I just want to the get this cleared. Because, you know, I can't be coming to Collier County. I live in Miami, and I have -- you know, I have things -- a lot of -- you know, I just can't be coming to Collier County . I lived here for about seven months, and it didn't work out, like I said, with the divorce. And I just don't like Collier County for a place to live. That's why I'm back in Miami, better place to live. CHAIRMAN LEFEBVRE: Any other questions? MR. LARSEN: Yes. Ms. Waldron, could you center this photograph a little bit better, and could you cycle through the photographs again showing the difference over the years? MS. WALDRON: This one is 2005. And this is 2006. MR. L'ESPERANCE: It doesn't look like a lot of the larger trees have been removed in the second picture. MS. WALDRON: Right. And I didn't verify that they were. That's not my job, to verify that the pine trees were removed. That is the job of the environmental consultant when they come through and do a mitigation plan. They determine what species have been removed or not. We have determined that the vegetation has been removed. CHAIRMAN LEFEBVRE: To me it doesn't appear that this has occurred over a period of, let's say, since you owned the property nine years. It seems like it's a pretty dramatic picture between 2005 and 2006. And with that being said, I find it hard to believe that it was just trespassing within a certain period of time. In your case -- or in this evidence here within a year period. It seems like there'd be more of a progression to this state from when you had the original aerials, which I think -- what year was it that you started? Page 106 ""' March 27,2008 MS. WALDRON: I started with 2005. It was cleared between 2005 and 2006 aerials. MR. LARSEN: Do you have a photograph of the street view? Thank you, Ms. Waldron. MR. WALDRON: There's a few different photos. MR. FERNANDEZ: That front area, that's where they park their cars, the neighbors. MR. KELL Y: Whose vehicles are there in those photos now? MS. WALDRON: Those vehicles are not there anymore. Those are from the original site visit in '06. CHAIRMAN LEFEBVRE: Are they on Mr. Fernandez's property? MS. WALDRON: Those are. Yes, in this picture they are, yes. CHAIRMAN LEFEBVRE: Okay. MR. WALDRON: Which I believe was a previous case that was brought here, because of those vehicles. MR. KELLY: I notice there a fence in a couple ofthe pictures. MR. WALDRON: That's the neighboring property's fence. MR. KELLY: And does that run completely along the whole stretch? MR. WALDRON: I can't attest to that or not. MR. FERNANDEZ: No, he actually opened it up and put his cars in my property parking. And I mentioned to him, please don't park your cars on my property, you're killing my vegetation. He opened up probably a stretch maybe 25,30 feet of that 660-foot fence thing. CHAIRMAN LEFEBVRE: I'm going to close the public hearing and see if there's any further discussion from the board. MR. KRAENBRING: I think it's -- you know, it's his testimony that he didn't remove the vegetation but, you know, the violation does move with the property. And it's unfortunate, but I'd have to make a motion that a violation does exist. Page 107 March 27, 2008 CHAIRMAN LEFEBVRE: Do I hear a second? MR. L'ESPERANCE: I second that. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Can we hear a recommendation, please. MS. WALDRON: The county orders that the -- the CEB orders the respondent to pay all operational costs in the amount of 463.99 within 30 days of this hearing incurred in the prosecution of this case and abate all violations by: The respondent must prepare a mitigation plan which meets the criteria stated in 04-41, as amended, Section 10.02.06(E)(3). The mitigation plan shall be prepared by a person who meets or exceeds the credentials specified in Section 10.02.02(A)(3). The respondent is required to establish a monitoring program, 10.02.06(E)(3)(e)(i), 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. The mitigation plan must be submitted within 30 days 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 90 days of acceptance of mitigation plan or a daily fine of $200 will be imposed for each day until plant material is Page 108 March 27, 2008 installed. The respondent must notify the code enforcement investigator when the violation has been abated in order to conduct a final inspection to confirm abatement. MR. FERNANDEZ: I have a question. How am I going to get 80 percent survivability with people driving their cars and -- CHAIRMAN LEFEBVRE: The public hearing is closed. MR. FERNANDEZ: -- killing what I plant? CHAIRMAN LEFEBVRE: Any comments from the board? MR. DEAN: When we use that time frame, you know, this isn't the planting season that starts. People plant in June, I understand. So is that -- MR. WALDRON: Well, I gave him 30 days to submit the plan, and from the acceptance of the plan -- MR. DEAN: So that's -- MR. WALDRON: -- it's another 90 days, which is going to be the end of June, I believe. So we did take that into account for rainy season. MR. DEAN: Thanks. Thank you. MR. LARSEN: I move that we accept the recommendation of the agency. MR. DEAN: I'll second that. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELL Y: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. PONTE: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? Page 109 March 27, 2008 (No response.) CHAIRMAN LEFEBVRE: Motion is passed. MR. WALDRON: Thank you. MR. FERNANDEZ: I have a question before I leave and go back to Miami, which I'm dying to go back. Before I leave, I want to know how I can do like an appeal or appeal process. Because I think this is just totally unfair and unjust. MS. ARNOLD: You do have 30 days to appeal after receipt of the order. You're going to get a written document in the mail. So make sure, you know, the address that we have is where you're accepting your mail. And that appeal process -- I don't know, Jean, if you want to speak to it. But I really -- MS. RAWSON: Thirty days. File it with the clerk here. MS. ARNOLD: Yeah. And Mr. Fernandez, you do have another item on the agenda, so please don't leave yet. CHAIRMAN LEFEBVRE: The next case will be BCC versus Toys R Us. MS. MARKU: That is in reference to Department Case No. 20071100037. F or the record, I would like to ask if the respondent is present. (No response.) MS. MARKU: The respondent is not 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. CHAIRMAN LEFEBVRE: Do I hear a motion? MR. KELLY: Make a motion to accept. CHAIRMAN LEFEBVRE: And a second? MR. DEAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. Page 110 March 27,2008 MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) MS. MARKU: Violation of Ordinances 04-41, the Land Development Code, as amended, Sections 2.02.03. Description of violation: Utilizing storage containers on property without county issued temporary use permits. Location/address where violation exists: 5305 Airport Road North, Naples, Florida, 34109. Name and address of owner/person in charge of violation location: TRU2005REI, LLC corporation, servicing company, registered agent, 1201 Hays Street, Tallahassee, Florida, 32301, property owner. And toys R Us, Delaware, One Jeffrey Way, Wayne, New Jersey, 07470, business owner. Date violation first observed: September 25th, 2007. Date owner/person in charge given Notice of Violation: July 7, 2004. Date onlby which violation to be corrected: July 8th, 2004. Date of reinspection: October 18th, 2007. Results of reinspection: Recurring violation. At this time, I would like to turn the case over to Code Enforcement Investigator Kitchell Snow. (Speaker was duly sworn.) MR. SNOW: For the record, Investigator Kitchell Snow. The violations have been abated on this property. We request that a finding of fact be issued. This has been a recurring problem. They are not allowed in that zoning district to have outside storage containers except with a temporary use permit, which Page 111 March 27, 2008 is good for 28 days. They did not obtain that. And I have talked to the property management staff and they assured me that this was not going to happen again, but again, we wish to have a finding of fact that there was a violation on the property, so if it does occur again they can immediately refer (phonetic) it and bring it before you. MR. L'ESPERANCE: Mr. Chairman, question for Mr. Snow. Are we comfortable with the dates as was stated on this -- MR. DEAN: There might be a typo. Is that a typo or is 2004? MR. L'ESPERANCE: Are we satisfied with these dates as they are? 2004, 200n MR. SNOW: Yes, sir, that was when the initial violation was. And again, it's within the time frame, the five years. MR. L'ESPERANCE: It says, first observed, 2007, given violation notice 2004? MR. SNOW: 2004 the previous investigator gave notice of violation for that. MR. L'ESPERANCE: As long as we're comfortable with those dates, okay. It just seems a little bit backwards, but-- MR. DEAN: It did to me, too. MR. KRAENBRING: Violation first observed was '07. CHAIRMAN LEFEBVRE: Three years after the Notice of Violation was given. MR. LARSEN: Mr. Snow, is there a mistake in regard to section five when it says date first observed, 200n Should that be 2004, or 2003? MR. SNOW: That's when I observed the violation, sir. MR. LARSEN: That's when you first-- MR. SNOW: And actually, I issued another note of violation myself on that. But there was a previous Notice of Violation issued. My notice was violation was issued on October 26th. Violation correction date was November 25th. Page 112 March 27,2008 MS. ARNOLD: Yeah, those are the dates that should be identified. The more recent Notice of Violation, which is on your Page 3, it has the October 26th date where it was served and then -- CHAIRMAN LEFEBVRE: Jean, is that going to cause a problem? MS. RAWSON: I think the Notice of Violation has to be corrected so that we get the order correct. Just to show that it did exist. However, it's abated at the moment. The charging document would be the statement of violation, so we need to be sure that that is correct. MR. KRAENBRING: Before we can find a -- MS. ARNOLD: Well, we need to amend the statement of violation to reflect for item number six, the October 26th date instead of July 7th, 2004. MS. RAWSON: Okay. MS. ARNOLD: And the date item number seven, the date the violation should have been corrected was November 25th, 2007. MR. LARSEN: Mr. Snow, do you have any photographs? MR. SNOW: I don't believe I did bring any, because it's -- again, the violation's abated. They've done everything. CHAIRMAN LEFEBVRE: Again, is that going to cause a problem? MS. RAWSON: No, it's not. Those are the dates we want to -- he admitted on the record, which is fine. It's the right citations for the Land Development Code, so it's fine. CHAIRMAN LEFEBVRE: Okay. Any other questions? MR. KELL Y: I have one. CHAIRMAN LEFEBVRE: Go ahead, Mr. Kelly. MR. KELL Y: I guess in order for us to find a violation then, we rely on Mr. Snow's testimony rather than verification by photographs or anything else. Is that acceptable? I mean -- MR. KRAENBRING: I would think it would be. It's sworn Page 113 March 27, 2008 statement. MR. KELLY: There you go. MR. KRAENBRING: And I think, you know, in the past we've gotten these repeat violations, you know, on the record so this way if it happens again -- CHAIRMAN LEFEBVRE: Right, correct. Do I hear a motion? MR. LARSEN: Well, if! may, in that regard, what specifically is the violation? MR. SNOW: Having storage containers on a C-5 zoning property without the appropriate temporary use permit. MR. LARSEN: What kind of storage containers? MR. SNOW: Outside storage containers. MR. LARSEN: Are they like from trailers? MR. SNOW: They had that. And they also had the trailers that are similar to -- that would go on back oftractor-trailers on containers for -- that would come overseas. MR. KELL Y: I make a motion that a violation exists. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KRAENBRING: I'll second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELL Y: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: County recommendation? MR. SNOW: All we request is that there's a finding of fact that Page 114 March 27, 2008 there's a violation on the property. They've paid operational costs and they obtained a temporary use permit for the storage containers. So all we want is a finding of fact, which you've given. CHAIRMAN LEFEBVRE: And operational costs in the amount of what? And 30 days also. MR. SNOW: They already paid it. CHAIRMAN LEFEBVRE: It's been paid. MR. SNOW: It's done. Everything's finished. CHAIRMAN LEFEBVRE: So do you have that -- MR. KRAENBRING: I'm sorry, go ahead. CHAIRMAN LEFEBVRE: Just put that motion up on the -- or not motion, but the recommendation. MR. SNOW: Sir, we don't need any recommendations. It's completed. They paid the ops cost, they paid everything. There was nothing -- no recommendation. It was done before we even got here. CHAIRMAN LEFEBVRE: So I guess we don't need -- MR. SNOW: No. MR. KRAENBRING: We made a motion that a violation did exist. CHAIRMAN LEFEBVRE: And that's it. MR. KRAENBRING: Anything else you need for that, Michelle? MS. ARNOLD: No. CHAIRMAN LEFEBVRE: We'll move on to the next case. BCC verse Collier Realty Corporation. MS. MARKU: This is in reference to Department Case No. CES20070000116. For the record, I would like to ask if the respondent is present. (No response.) MS. MARKU: The respondent is not 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 115 March 27, 2008 MR. KELL Y: Make a motion to accept the packet. CHAIRMAN LEFEBVRE: Do I hear a second? MR. DEAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELL Y: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Do I hear any nays? (No response.) CHAIRMAN LEFEBVRE: No, I do not. MS. MARKU: Violation of Ordinances 04-41, Collier County Land Development Code, as amended, Sections 5.06.05(M), 5.06.04(C)(12)(c), 5.06.06(F). And 10.02.06(B)(2)(a), and 2004-58, the Property Maintenance Code, as amended, Section 16(2)(1), and 16(2)(J). Description of violation: Neon illuminated signs improperly displayed, and window occlusion in excess of allowable 25 percent of non-complying portable signs on the property. Location/address where violation exists: 101 New Market Road East, Immokalee, Florida. Folio No. 63863840004. Name and address of owner/person in charge of violation location: Collier Realty Corporation, 101 New Market Road East, Immokalee, Florida, 34142. Date violation first observed: December 6th, 2007. Date owner/person in charge given Notice of Violation: December 17th, 2007. Date on/by which violation to be corrected: January 20th, 2008. Date of reinspect ion: January 22nd, 2008. Page 116 March 27, 2008 Results of reinspection: Violation remains. At this time I would like to turn the case over to Code Enforcement Investigator Kitchell Snow. (Speaker was duly sworn.) MR. SNOW: For the record, Investigator Kitchell Snow. This was a case involving window occlusion, neon signs and portable signs. It was in Immokalee. I'd like to submit these photographs as evidence. MR. KRAENBRING: Make a motion to accept. MR. DEAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELL Y: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? (No response.) MR. SNOW: The first photograph you'll notice was taken on December 6th. One of the reasons that the county's very concerned about window occlusion, it's a health and safety issue. Ifthere's ever a fire or there's an altercation which requires the sheriffs to come, they can't see in, they don't know what's going on. As you can see, this is completely covered. They have several neon signs in the window. The next photo was taken yesterday. And as you can see, they've made significant improvement, but there's still some things that need to be done. They're allowed to have 25 percent, which is questionable on the Page 117 March 27, 2008 two windows on your left with the photographs in them. But the Coca Cola signs need to -- they can't have all that. And the A TM, obviously that's a neon sign. I have talked with the property owner several times, discussed this with him. I think my next step is, is hopefully get up, talk to my supervisor, as she speaks fluent Spanish, and go up to Immokalee, make an appointment with these folks. Even though the owner does speak English, the manager does not. And there's where my communication has been. And I have talked to him also. But I think they just need to do a little bit more on this and get it complete. And I think they just need a little bit of push to take care of it. And again, this window occlusion is a serious affair, and we take this very seriously. It is a health and safety issue. But we get the neon turned off and get the other two windows squared away, and one more -- and they do have portable signs on the property, which are prohibited in the county. That's just attached to the light pole alongside of it. This is on New Market. That's not uncommon in Immokalee to have those things, and we need to be attentive up there, just as we are anywhere else. And we're requiring to move that. That's all. CHAIRMAN LEFEBVRE: I'd like to close the public hearing. Any questions from the board? MR. KRAENBRING: Make a motion that a violation does exist. CHAIRMAN LEFEBVRE: Do I hear a second? MR. MORGAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. Page 118 ~-'----"-------"'--"~-'"'~""-"- ,"-,..- .~~.~,.,._~--,~;,"",--- March 27, 2008 MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? (No response.) CHAIRMAN LEFEBVRE: And your recommendation, please. MR. SNOW: Sir, it is recommended that they pay operational costs in the amount of 423.98 occurred in the prosecution of the case within 30 days of the date of the hearing. And two, abate all violations by: A, remove all window occlusion in excess of the allowable 25 percent within 14 days of the date of the hearing or a fine of $150 a day will be imposed until such time as the occlusion is removed. Remove any illuminated neon signs from the window within 14 days of the date of the hearing or a fine of $150 a day will be imposed until such signs are removed. C is cease displaying any sign that is not in accordance to and compliant with the Land Development Code of unincorporated Collier County. And D, remove any portable noncomplying signs on said property within 14 days of the date of the hearing or a fine of $150 a day will be imposed until such time as the portable noncomplying signs are removed. And the respondent must notify the code enforcement investigator within 24 hours when the violation has been abated in order to conduct a final inspection to confirm abatement. CHAIRMAN LEFEBVRE: Any comments from the board? (No response.) CHAIRMAN LEFEBVRE: Do I hear a motion? MR. DEAN: Motion to accept the CEB report as read. CHAIRMAN LEFEBVRE: Do I have a second? MR. KRAENBRING: Second. CHAIRMAN LEFEBVRE: All those in favor? Page 119 March 27,2008 MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? (No response.) MR. SNOW: We thank the board today. CHAIRMAN LEFEBVRE: Thank you very much. Okay, moving on to requests for imposition of fines and liens. THE COURT REPORTER: Any chance of taking a break? MS. RAWSON: We have to -- well, we actually need to ask everybody to move up in case they close the section off by 1:00. MS. ARNOLD: Yeah, if we can move everybody to the front. But are we taking a five-minute break? MR. KRAENBRING: She needs five minutes. CHAIRMAN LEFEBVRE: Sure, yeah. (Recess.) CHAIRMAN LEFEBVRE: I'm going to call the meeting back to order. Request for imposition of fines and liens. BCC versus Saxon Manor Island (sic) Apartments Limited Partnership. MS. ARNOLD: Okay, this case was heard before the board on October 25th, 2007. And a violation was found for removal of landscaping that had fallen beneath the county's minimum site plan requirements, landscaping requirements. The board ordered abatement of the violation by January, 2008. The respondents are now in compliance, and the fines have accrued at a rate of $100 per day between January 24th, 2008 and February 6th, 2008 for a total of$1,300. Operational costs of$459.74 Page 120 March 27, 2008 have been paid. And it's actually the county's recommendation that the board not impose these fines. This is an affordable housing project. The investigator is here to speak to the property owner's due diligence in trying to get everything done timely, and -- but we needed to bring this to you in order to not have those outstanding fines imposed. CHAIRMAN LEFEBVRE: All parties need to be sworn in. (Speakers were duly sworn.) CHAIRMAN LEFEBVRE: If you can just keep it brief. MS. O'FARRELL: For the record, Susan O'Farrell, Collier County Code Enforcement Environmental Investigator. We're here to discuss the imposition of fines for Saxon Manor. I would like to say that Saxon Manor did fall over their deadline, but only because the job was so big. And they did get everything cleaned up. It looks very nice over there. They've done a great job. I would like to put it on the record and remind the representatives of Saxon Manor that our policy -- our Land Development Code requires any dead plant material to be replaced within 30 days. And that if a case comes up before me in the same -- regarding the same issues, that we'll be coming straight to the Code Enforcement Board. CHAIRMAN LEFEBVRE: Do you understand that? MS. STORY: Absolutely. CHAIRMAN LEFEBVRE: Very good. I'm going to close the public hearing. MS. O'FARRELL: I think we need to identify the representatives. MS. STORY: My name is Star Story, and I am vice president of Ledic Management Group out of Atlanta. MR. GROVER: And I'm Richard Grover. I'm the property manager of Saxon Manor, also known as Meadowlakes Apartments. Page 121 March 27,2008 MS. O'FARRELL: There's just been a change where Susan Rathbun was the original property manager. She coordinated all of the work. And Mr. Grover has taken over her position, as she was promoted. MR. KRAENBRING: Did you close the -- CHAIRMAN LEFEBVRE: I close the public hearing, yes. MR. KRAENBRING: I make a motion that we do not impose the fines. MR. KELLY: Second. CHAIRMAN LEFEBVRE: Do I hear a second? All those in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Thank you very much. MS. O'FARRELL: Thank you for your time. CHAIRMAN LEFEBVRE: Under request to forward to county attorney's office -- MS. ARNOLD: We do have -- don't we have one more? CHAIRMAN LEFEBVRE: Anthony came in front of us, and Linda was withdrawn. MS. ARNOLD: Okay, I'm sorry. CHAIRMAN LEFEBVRE: This is one time that I was right. One question, Jean, for you. Typically we do these for a term that George uses, George Ponte, as a consent item, and we go through everything as one. But since we have one of the respondents here, can we take him out? MS. RAWSON: Yes. Page 122 March 27, 2008 CHAIRMAN LEFEBVRE: Okay. And maybe hear from him first? MS. RAWSON: Sure. CHAIRMAN LEFEBVRE: And then we can move forward with the other ones. MR. KELL Y: Mr. Chairman? CHAIRMAN LEFEBVRE: Yes. MR. KELLY: Also, if you're pulling that from the consent, I'd just like to pull Angel and Lissette -- and I can't pronounce the last name, but it's number five down, just on the date issue. CHAIRMAN LEFEBVRE: Okay. Yeah, we will have to get some clarification on that. Thank you for pointing that out. Well, maybe -- the county attorney left. Is that a -- yeah, Mr. Kelly. Can we get a clarification on that? MS. ARNOLD: Yeah, she's looking in the files right now to make sure. CHAIRMAN LEFEBVRE: All right, let's -- I guess procedurally, either I don't remember or this usually doesn't occur that there's someone here. MS. ARNOLD: Well, actually, I didn't realize -- we actually don't send notices for these, because they are supposed to be consent. And I was reading it as we were imposing fines. So I talked to Mr. Fernandez at the break and explained to him that we were forwarding this to the county attorney's office for their handling, and he expressed to me that he desires to do a payment plan. And I said that we could work on that at the time. He's going to get notification from the county attorney's office once this gets forwarded. So I'm not sure he has anything else to add. MR. FERNANDEZ: Here or on the microphone? MS. ARNOLD: Yeah, you'd have to -- CHAIRMAN LEFEBVRE: You would have to come up to the Page 123 March 27, 2008 microphone. MR. KELL Y: Mr. Chairman, procedurally in these cases -- actually, for maybe even Michelle, so how does this normally work? This is the first time we've seen this. Is the respondent supposed to petition us to ask for anything, or they can just speak on it? MS. ARNOLD: Yeah, it was my mistake to tell him about -- but anyway, so he can, since he's here, you give him an opportunity to speak. MR. KELLY: Absolutely. CHAIRMAN LEFEBVRE: If you could please swear him in? (Speaker was duly sworn.) CHAIRMAN LEFEBVRE: If you could state your name again, please. MR. FERNANDEZ: Mr. Frank Fernandez. Okay, on the matter of what has transpired, the case before with the vehicle on my property, and also this, I'm just very upset. As I spoke with Bendisa, I feel that I'm being discriminated against. Why, I don't know. Maybe because I'm Hispanic and I don't like the treatment that I received. Once I was -- I just lived through a lot here in the Collier County area when I was here for about seven months. I was back and forth from Miami to Collier, trying to establish a home here. But I just didn't feel comfortable here, so I'm back in Miami. And I don't think Collier County would -- with everything that's happened to me, I haven't gotten a lawyer, but I believe that that is what I must do. MR. DEAN: Yes, you should. MR. FERNANDEZ: Because I feel discriminated against. And I don't think Collier County would like a, what do you call it, a discrimination lawsuit. Because I feel I'm discriminated against, just the way everything was handled. I explained that I was between addresses, didn't receive mail. So Page 124 March 27, 2008 the servicing I think was improper. The way things were handled I think was improper. And I guess I feel that I -- me personally I was discriminated against because I'm Hispanic. And I'm just going to get a lawyer. And I don't want to, but if that's what it comes down to, I'm going to put in Collier County a lawsuit, a discriminational lawsuit. And also, maybe some of my rights were violated. And I'd have to consult that with a lawyer as well. CHAIRMAN LEFEBVRE: Thank you very much. MR. FERNANDEZ: That's what I -- Ijust wanted to say. Thank you. MR. KELLY: Thank you, Mr. Fernandez. I've got a question about this case. Earlier in the other case we heard testimony that this particular case was in compliance now because the vehicles were removed. And on this document being forwarded it says the status is still under non. So I'd like to correct that if it goes forward. MS. ARNOLD: No, it says it's non-homesteaded. It is in compliance. MR. KELLY: It says status, non -- the second to the last column. Is that compliance, non, N complied. MS. ARNOLD: If it said N, it would be noncompliance. If it says C it would be compliance. CHAIRMAN LEFEBVRE: And it has a date. MS. ARNOLD: And it has a date. It has C and then 7/25 -- MR. KELLY: Oh, I see, okay. And then my next question would be ifMr. Fernandez -- did he ever file a motion to reduce or abate fines? MS. ARNOLD: This -- no, this particular fine was a -- county abated the violation, and so that's the cost to the county to abate. MR. KELLY: Okay, thank you. Thank you very much. Page 125 March 27, 2008 MR. FERNANDEZ: And one more thing. I never received notice of the fine there that we're talking about now, the second item. I never got it in my mail. If I had gotten it, I would have paid it. Because the last thing I want is a lien on my property. I spent nine years paying for that property. And, you know, it took me a -- it took me a long time to pay for that property and a lot of effort, monthly payments, to actually pay for it. MR. KELLY: I just tried to come up with a creative way to help out, but it's past that time frame, so I'm sorry. CHAIRMAN LEFEBVRE: And he's agreed to payments, which MR. FERNANDEZ: I'm willing to pay that fine. I just need -- for financial reasons, I'm -- CHAIRMAN LEFEBVRE: You've already explained that to Michelle and that's something that you can work out. The next step we make is either to send it to the county attorney's office or not. And so I guess that's where we're standing at this point. Do I hear a motion? MR. DEAN: Motion to forward the foreclosure collection to the county. MS. ARNOLD: For this particular one, is that what you're-- CHAIRMAN LEFEBVRE: Just for this one. MR. KELL Y: Unless you want to clarify -- MR. DEAN: I left it on there and do them all. MS. ARNOLD: The date for that Riquelme -- is how you say that name -- is 2007 instead of2008. CHAIRMAN LEFEBVRE: Okay, I just thought we were going to take them separately. But procedurally could we take them all as one now? MS. RAWSON: Yes, you can. MR. KELLY: I'll second Mr. Dean's motion. Page 126 March 27, 2008 CHAIRMAN LEFEBVRE: To -- MR. KELL Y: That they all be forwarded. CHAIRMAN LEFEBVRE: They all be forwarded to the county attorney's office. All in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Any opposed? (No response.) CHAIRMAN LEFEBVRE: Motion is passed. It will be forwarded to the county attorney's office. And if you could, please, while you're here make arrangements with Michelle on paying that fine. Thank you. MR. FERNANDEZ: How does that work, though? If I don't pay the lien or it's already liened, or -- MS. ARNOLD: It's already a lien on your property. We did the imposition of fines back in September of'07. I think September, yeah. And at that time you should have gotten a notice in the paper -- I mean not in the paper, a notice in the mail, because it goes regular mail, from the attorney's office. MR. FERNANDEZ: I got no notice. MS. ARNOLD: But as I explained to you, you should get another letter from the county attorney's office. So we need to verify that we have your correct address. MR. FERNANDEZ: I gave her my new one. MS. RAWSON: I've got it. MS. ARNOLD: All right. Page 127 March 27, 2008 And we can talk about the payment plan at that time, okay? And you have my number, correct? CHAIRMAN LEFEBVRE: Thank you very much. MR. FERNANDEZ: Thank you, board. MR. DEAN: Thank you. CHAIRMAN LEFEBVRE: Do we have any new business? MS. ARNOLD: I just wanted to say that in the future we're going to put these particular items on your consent agenda, because you did with your last rules adopt a new consent agenda. And I just wanted to say that today's Jerry Morgan's last meeting with us, and wanted to thank him for his time and commitment to this board. MR. MORGAN: Thank you. CHAIRMAN LEFEBVRE: Thank you very much. MR. DEAN: What, is he running for governor? MR. MORGAN: The problem is that I can't serve on two quasi judicial boards. And I've been on the Collier County Utility Board for about six years. And I elected to stay with them because we have some items that's coming up in the next meeting or in our May meeting that needs -- and I don't want to walk away from them. Also, we have one member -- it's a five-member board. We have one member that's -- we're not too sure that he's coming back. So that would leave three people. And that's really not fair. MS. O'FARRELL: I just wanted to say from the investigators that we've appreciate you being here. You've been a very good influence. MR. MORGAN: The utility board regulates all the investor owned utilities in Collier County: Ave Maria, Goodland, Orangetree, part of Marco, and there's a couple others. So I've enjoyed being here, I've enjoyed working with these people. And regardless of what anybody says, they've been treated Page 128 March 27, 2008 fairly. They've been treated with courtesy and dignity. And I can't say anything bad about any of these people, what they've said. I know that a lot of people were dissatisfied with their penalties that were imposed upon them, but they were fair. So with that, that's -- like I said, I enjoyed working with you. MR. DEAN: Good luck to you. CHAIRMAN LEFEBVRE: Reports? MS. ARNOLD: We don't have any. CHAIRMAN LEFEBVRE: No? Comments? I guess one comment. I won't be at next meeting. I will be away. And is Mr. Ponte going to be away also at next meeting? MS. MARKU: Yes, he will. CHAIRMAN LEFEBVRE: That's what I thought. Next meeting will be April 24th. And do I have a motion to adjourn? MR. DEAN: Motion to adjourn. CHAIRMAN LEFEBVRE: Do I hear a second? MR. MORGAN: Second. CHAIRMAN LEFEBVRE: All in favor? MR. KRAENBRING: Aye. MR. DEAN: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Aye. MR. LARSEN: Aye. MR. MORGAN: Aye. MR. L'ESPERANCE: Aye. CHAIRMAN LEFEBVRE: Thank you very much. ***** Page 129 March 27, 2008 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:59 p.m. COLLIER COUNTY CODE ENFORCEMENT BOARD Gerald Lefebvre, Chairman These minutes approved by the board on presented or as corrected as Transcript prepared on behalf of Gregory Reporting Service, Inc., by Cherie' R. Nottingham Page 130 FORM 8B MEMORANDUM OF VOTING CONFLICT FOR COUNTY, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS LAS NA FIRST NAME—MIDDLE NAME ' NAME OF BOARD,COUNCIL,COMMISSION,AUTHORITY,OR COMMITTEE p.PA GNP oZ„ L.[WI P4 C9 cowl C E 0 MA LI G ADDIRE4S THE BOARD,COUNCIL,COMMISSION,AUTHORITY OR COMMITTEE ON � (^ WHICH I SERVE IS A UNIT OF: CITYp ' • COUN ❑CITY COUNTY ❑OTHER LOCAL AGENCY �1 �� t Q,{ NAME OF POLITICAL SUBDIVISION. IVISION DATE O WHICH VOTE OCCURRED !' �! �e u t� ^t(a �,9 �O MY POSITION IS: A (� vj ❑ ELECTIVE 9,./Ar3POINTIVE WHO MUST FILE FORM 8B This form is for use by any person serving at the county,city,or other local level of government on an appointed or elected board, council, commission, authority, or committee. It applies equally to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Section 112.3143, Florida Statutes. Your responsibilities under the law when faced with voting on a measure in which you have a conflict of interest will vary greatly depending on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before completing the reverse side and filing the form. INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES A person holding elective or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which inures to his or her special private gain or loss. Each elected or appointed local officer also is prohibited from knowingly voting on a mea- sure which inures to the special gain or loss of a principal(other than a government agency) by whom he or she is retained (including the parent organization or subsidiary of a corporate principal by which he or she is retained);to the special private gain or loss of a relative;or to the special private gain or loss of a business associate. Commissioners of community redevelopment agencies under Sec. 163.356 or 163.357, F.S., and officers of independent special tax districts elected on a one-acre,one-vote basis are not prohibited from voting in that capacity. For purposes of this law, a "relative" includes only the officer's father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, and daughter-in-law. A "business associate" means any person or entity engaged in or carrying on a business enterprise with the officer as a partner,joint venturer, coowner of property, or corporate shareholder (where the shares of the corporation are not listed on any national or regional stock exchange). ELECTED OFFICERS: In addition to abstaining from voting in the situations described above,you must disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the min- utes of the meeting,who should incorporate the form in the minutes. APPOINTED OFFICERS: Although you must abstain from voting in the situations described above, you otherwise may participate in these matters. However, you must disclose the nature of the conflict before making any attempt to influence the decision, whether orally or in writing and whether made by you or at your direction. IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE TAKEN: • You must complete and file this form(before making any attempt to influence the decision)with the person responsible for recording the minutes of the meeting, who will incorporate the form in the minutes. (Continued on other side) CE FORM 8B-EFF. 1/2000 PAGE 1 APPOINTED OFFICERS (continued) • A copy of the form must be provided immediately to the other members of the agency. • The form must be read publicly at the next meeting after the form is filed. IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING: • You must disclose orally the nature of your conflict in the measure before participating. • You must complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes of the meeting,who must incorporate the form in the minutes.A copy of the form must be provided immediately to the other members of the agency,and the form must be read publicly at the next meeting after the form is filed. DISCLOSURE OF LOCAL OFFICER'S INTEREST z sp ereGvx C-e° Lone( hereby disclose that on f\f\ 4 7 ,20 Q cQ': (a)A measure came or will come before my agency which (check one) tt inured to my special private gain or loss; ___ inured to the special gain or loss of my business associate, inured to the special gain or loss of my relative, __— inured to the special gain or loss of by whom I am retained;or _ inured to the special gain or loss of ------ ,which is the parent organization or subsidiary of a principal which has retained me. (b)The measure before my agency and the nature of my conflicting interest in the measure is as follows: Pj C e u s. S a.,,, in. For r , 'GE Ala .21007- its o- d CC O S. o-r-C,1 e r' ►to�r";- M 0, 0007- /os- ti eCuke �.„td /e i' j -C wt7 i 71etr 411, t-*/AP' d ig ig na ture NSW NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317, A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED$10,000. CE FORM 8B-EFF. 1/2000 PAGE 2