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CEB Minutes 11/20/2008 R November 20, 2008 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY CODE ENFORCEMENT BOARD NAPLES, FLORIDA November 20,2008 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 at Community Development Services, 2800 North Horseshoe Drive, Naples, Florida, with the following people present: Chairman: Gerald 1. Lefebvre Richard Kraenbring Robert Kaufman Lionel L'Esperance Edward Larsen Larry Dean George Ponte Kenneth Kelly ALSO PRESENT: Diane Flagg, Code Enforcement Director Jennifer Waldron, Code Enforcement Investigative Supervisor Jean Rawson, Esquire, Attorney for the CEB Page 1 CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA AGENDA Date: November 20th, 2008, at 9:00 a.m. Location: Commnnity Development Services, 2800 North Horseshoe Drive, Naples, F134104. NOTICE: THE RESPONDENT MAYBE 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 - October 31st, 2008 4. PUBLIC HEARINGS/MOTIONS A. MOTIONS Motion for Re-Hearing Motion for Extension of Time I. BCC Ys. AMG Properties Inc. CEB NO. 2007090454 B. STIPULATIONS C. HEARINGS 1. BCC vs. Empire Developers Group, LLC. 2. BCC YS. Brian & Dara Gorman 3. BCC YS. Eduardo & Annette Nodarse 4. BCC YS. Maricela Nunez 5. BCC YS. Mencia's Restaurant, Inc. CEB NO. CESD20080014496 CEB NO. CESD20080008567 CEB NO. 2007020522 CEB NO. 2007080129 CEB NO. CESD20080014639 5. OLD BUSINESS A. Motion for Imposition of Fines/Liens I. BCC YS. Empire Developers Group, LLC. 2. BCC vs. Patriot Square, LLC. 3. BCC vs. Heriberto and Antonio Perez CEB NO. CESD20080007919 CEB NO. 2007060341 CEB NO. CESD20080000222 B. Motion for Reduction/Abatement of Fines/Liens 1. BCC YS. Mark Brecher CEB NO. 2007-06 6. NEW BUSINESS 7. CONSENT AGENDA A. Motion for Imposition of Fines/Liens B. Request to Forward Cases to County Attorney's Office 1. BCC vs. Cynthia Aurelio Markle CEB NO. 2006060005 8. REPORTS 9. COMMENTS 10. NEXT MEETING DATE - January 22nd, 2009 11. ADJOURN November 20,2008 CHAIRMAN LEFEBVRE: I'd like to call the Code Enforcement Board of Collier County, Florida 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 the 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. May I have the roll call. MS. WALDRON: Good morning. CHAIRMAN LEFEBVRE: Good morning. MS. WALDRON: Mr. Edward Larsen? MR. LARSEN: Present. MS. WALDRON: Mr. George Ponte? MR. PONTE: Here. MS. WALDRON: Mr. Gerald Lefebvre? CHAIRMAN LEFEBVRE: Here. MS. WALDRON: Mr. Kenneth Kelly? MR. KELLY: Here. MS. WALDRON: Mr. Larry Dean? MR. DEAN: Here. MS. WALDRON: Mr. Lionel L'Esperance? MR. L'ESPERANCE: Here. MS. WALDRON: Mr. Richard Kraenbring? MR. KRAENBRING: Present. Page 2 November 20, 2008 MS. WALDRON: And Mr. Robert Kaufman? MR. KAUFMAN: Here. CHAIRMAN LEFEBVRE: Any changes to the agenda, please? MS. WALDRON: For the record, Jen Waldron, investigative supervisor of Collier County Code Enforcement. We have the following changes for the agenda. Under motion for rehearing we will be adding BCC versus Richard and Lisa Karnes, CEB case number 2007060801. And we will be moving Item 4.C.2, BCC versus Brian and Dara Gorman, CEB number CESD 20080008567 under Item 4.A, motion for continuance. CHAIRMAN LEFEBVRE: Is that it for the changes? MS. WALDRON: That's it. CHAIRMAN LEFEBVRE: Do I hear a motion for approval? MR. DEAN: Motion to approve. MR. PONTE: Second. CHAIRMAN LEFEBVRE: Do I hear a second? MR. PONTE: I second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Motion passes. Approval of the minutes for October 31, 2008. Do I hear a motion? Page 3 November 20, 2008 MR. DEAN: Motion to approve the minutes. MR. KELLY: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Motion passes. We're going to start off with a motion for rehearing, Richard and Lisa Karnes. Can you please swear the parties in. (Speakers were duly sworn.) CHAIRMAN LEFEBVRE: Go ahead. MR. KARNES: Yes, sir. Attorney Stephens is walking in right now. MS. STEPHENS: Good morning. I apologize. We were just across the way trying to sort out the time line details for what occurred last night. How are you this morning? CHAIRMAN LEFEBVRE: Good. Can you state your name for the record, please. MS. STEPHENS: Sure. Samantha Stephens on behalf of Richard and Lisa Kames. I'm not quite sure how to begin here and what the Board is looking for. But, Ms. Capasso, would you mind coming to the microphone, please? Thank you. Page 4 November 20, 2008 CHAIRMAN LEFEBVRE: We are going to have -- there's a couple of parties that have not been sworn in. So, again, if you can swear them in. (Speakers were duly sworn.) MS. STEPHENS: Thank you. Ms. Capasso and I were just speaking in the back to try and make sure that we had a firm grasp of the timelines in this case. Before coming to today's hearing and the request that was made by Mr. Karnes, I watched the video of the last meeting that took place. And, I believe, that Ms. Capasso and I are in agreement. What we saw happen was the Board was discussing it first a violation that had occurred that was written up by the building department. But what happened was during the meeting itself, which is why we've asked for the review today, it kind of took, as we said, or we were just discussing in the back, a left-hand turn and went towards instead of the violation itself being cured, which was the whole reason why the meeting was called and that everybody was supposed to be deciding, it turned to becoming an issue of, "Well, wait a minute. We have an open permit," which was not the issue that was technically before the Board at that time. So that is why we have asked for your consideration today and just deciding whether or not to abate, reduce, modify, or whatever you will, the prosecution costs that were brought up and assessed by the Board at the last hearing. And with the Board's permission I believe that I can make a quick time line that will help clarify the issues and show how this particular violation as alleged was actually cleared up prior to the hearing or the proceeding that even took place last time in front of the Board. If I may? CHAIRMAN LEFEBVRE: Well, are you looking to rehear the case today? MS. STEPHENS: No, we are not. We are only looking to Page 5 November 20, 2008 establish how the Board kind of went off on the wrong topic and assessed prosecution costs on a basis of something that was already resolved. So, I mean, if -- I don't know if you would like to call that a rehearing. I really don't know the procedural aspect of this. I apologize. CHAIRMAN LEFEBVRE: Jean. MS. RAWSON: Are you asking that they abate the costs? Is that -- because there are no fines, right? MS. STEPHENS: Correct. There are no fines in this case. MS. RAWSON: This Board doesn't have the authority to abate the costs. The costs are something that the County assesses. I don't think it's astronomical, but this Board doesn't have that authority. MS. STEPHENS: Okay. If -- and obviously this is a legal issue and thank you very much for addressing me. MS. RAWSON: You're very welcome. Jean Rawson, Code Enforcement Board attorney for the Board -- or for the record. MS. STEPHENS: Thank you. If the Board saw fit to rehear the issue -- because one of the things that was determined was the fact that a violation had occurred. That was part of the finding. If the Board were to reverse that finding, would that then mean that the prosecution costs could possibly be reversed? MS. RAWSON: You know, this Board can't make that decision. You'd have to ask for a rehearing and ask that they abate their original order. · You always have the right to abate fines, but this Board can't abate the costs because that's something that the County assesses much like the Clerk's office. MS. STEPHENS: Thank you. So then, I guess, our request would be to have a rehearing on the issue based upon what Ms. Rawson has just explained. And, of course, that's with the Board's permiSSion. MR. MORAD: Okay. For the record, senior investigator Ed Page 6 November 20, 2008 Morad. Staff requests that you deny the motion to rehear the case on the grounds that there are no grounds. When Mr. Karnes submitted his packet for -- submittal packet, we don't agree with it that he -- oh, she's saying that a violation didn't exist. It did exist. Sorry about that. We don't agree that the Board's decision was contrary to the evidence or the hearing involved in error in ruling. The facts were heard. There was a violation. He admitted to the violation. In his packet he has an e-mail admitting to the violation. He got the due process. The violation was found to exist. A notice was discussed -- a notice of violation was discussed, reviewed by Mr. Karnes. He even signed it. He began to comply with the order to correct, which was to get a permit, to get his inspections and to get his certificate of completion. When we went before the Board, the reason he was brought before the Board is that he did not get his certificate of completion. The Board found that he was in violation. He had a partial inspection on his permit that he re-apped, but he never got his certificate of completion. He complied with the order of the Board and got his certificate of completion. And at that time the case was closed and there was no fines imposed at all. MR. KRAENBRING: So we're just looking at the operational costs here? MS. STEPHENS: Yeah, it is the operational costs at this point. MR. KRAENBRING: Do we have a sense of what that is in dollars? MS. WALDRON: $87.44. MS. STEPHENS: Correct. That's my understanding. CHAIRMAN LEFEBVRE: But we can't do anything with that as a Board. MS. STEPHENS: And the reason why I was asking for the Page 7 November 20, 2008 rehearing is because the violation was found. And I think if the Board -- and, like I said, I'm not going into the details of it. I think if the Board listens to the time line of events on reconsideration you may agree that there was no violation by the time the hearing took place last time. CHAIRMAN LEFEBVRE: Just to let you know that in previous cases violations have been corrected between the time that it's requested be brought to the Board and by the time it's brought to the Board. We have found where there are, in fact, a violation, but it has been corrected already. MS. STEPHENS: Well, that was not declared. That's what I'm saying. The last time around the order from this Board was that there was a violation and it needed to be corrected. In other words, it was a continuing problem -- CHAIRMAN LEFEBVRE: Right. I understand. MS. STEPHENS: -- because of some confusing aspects with some permitting that happened in the case. So I think that if there was a rehearing on the issue that the ultimate determination would be that there was no violation. You may still opt to keep the prosecution costs in place. I don't know what the Board would decide to do. But that's why we've come today. MR. LARSEN: If! may, Mr. Chairman. Ms. Stephens, if I'm correct, what you're taking issue is with the Board's decision dated August 6th, 2008? MS. STEPHENS: Yes, sir. MR. LARSEN: And it says -- the order of the Board was: Based upon foregoing findings of fact and conclusions of law and to the authority granted in Chapter 162, Florida Statutes, and Collier County Ordinance No. 04-41 it is hereby ordered that the violations of the Collier County Ordinance 04-41, the land development code, as amended, Sections 10.02.06 B(l), et cetera, and the Florida Building Page 8 November 20, 2008 Code 2004 be corrected in the following matter. And what you're saying is they were already corrected? MS. STEPHENS: Correct. That's what I'm saying. MR. LARSEN: And then basically number one is: By demolishing the screen enclosure upon demolition permit 2008040719, including all required inspections and receiving a certificate of completion and restoring the property to its original permitted condition within 30 days from August 30, 2008? MS. STEPHENS: Correct. That is what I'm saying. MR. LARSEN: All right. MS. STEPHENS: That's why I'm saying there is an error of fact and also in the conclusions of law that were reached by the Board. Because the timeline established in this case from the documents that were actually submitted by both parties show that -- CHAIRMAN LEFEBVRE: We don't want to get into -- MS. STEPHENS: Oh, I'm sorry. Yes, that is my point. CHAIRMAN LEFEBVRE: Mr. Kelly, you have a question? MR. KELL Y: Gerald, I was wondering if you would allow just the discussion on that quick time line thing. I think it has relevance to whether or not we should rehear. If you don't mind, just to enter into record the time the permit was approved, the time that the case was heard, and the time the order was supposed to have been corrected by. Because the way I see it -- and this was my question that I was going to ask. You know, there was a permit. It did receive its final building on August 21 st. They had to comply by August 30th. Well, that means they're bringing something into compliance. MR. L'ESPERANCE: Mr. Chairman, if I may interject here. The request is for a motion for rehearing. It seems that we're just about on the precipice of rehearing it right now. I think it's improper. CHAIRMAN LEFEBVRE: I have to agree with you. I think her argument is two things. Instead of saying that there was, in fact, a violation, she wanted to say there wasn't a violation Page 9 November 20, 2008 found or there might have been a violation, but it's been corrected already. I think we have to go either with rehearing the case and to possibly just -- it sounds like a very minor change that she would want in our order. But I think we need to take a vote for either rehearing it or not. MR. LARSEN: May I? Mr. Chairman, may I ask one more question of Ms. Stephens? CHAIRMAN LEFEBVRE: Yes. And then I'll be closing the public hearing. MR. LARSEN: Excuse me. CHAIRMAN LEFEBVRE: Then I'll close the public hearing. MR. LARSEN: Thank you. Ms. Stephens, paragraph four of the order indicates that the Respondents were ordered to pay all operational costs incurred in the prosecution of the case in the amount of $87.44 within 30 days. MS. STEPHENS: Yes. MR. LARSEN: And you're asking us to abate those prosecution costs? MS. STEPHENS: Yes. If the Board finds that the order changes in its substance to the fact that there was no violation at the time the hearing took place, then, yes, that is what I'm asking. MR. LARSEN: Do you have any other request for relief, other than just the abatement of those prosecution costs? MS. STEPHENS: Yes. I'm asking that the Board find that there was no violation and that you do abate the costs based upon the time line of events. So those would be the two things that I would be requesting; a finding of no violation at the time that the hearing took place. And, yes, the abatement of prosecution costs. MR. LARSEN: But are you also arguing that there was no violation at the time that they were cited? MS. STEPHENS: No. Page 10 November 20, 2008 MR. LARSEN: Okay. Thank you very much. CHAIRMAN LEFEBVRE: I'm going to close the public hearing. Discussion amongst the Board? MR. KELLY: I think that hit it. I think that's the point. The fact that we've ruled countless times on the fact that a violation did exist, which is what happened in this case admittedly. I don't think there's a need for a rehearing. I think it would behoove the Respondents, as well, to maybe make nice with County because I think they can waive costs. I think that's all it really boils down to. CHAIRMAN LEFEBVRE: Any other discussion with the Board? MR. L'ESPERANCE: Mr. Chairman, I agree. CHAIRMAN LEFEBVRE: Do I hear a motion to deny the request for rehearing? MR. KELL Y: I'll make a motion to deny the request. CHAIRMAN LEFEBVRE: Do I hear a second? MR. PONTE: I'll second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: The motion passes. The hearing has been denied. Page 11 November 20, 2008 MS. STEPHENS: Thank you. CHAIRMAN LEFEBVRE: Okay. We're going to move on to the next one, which is extension of time. BCC versus AMG Properties, Inc., CEB number 2007090454. Are the parties here? Is the investigator here; is the Respondent here? MR. PONTE: Is anyone here? (Speaker was duly sworn.) MR. SNOW: For the record, Kitchell Snow, Collier County Code Enforcement. I would assume that this is a request for a continuance? CHAIRMAN LEFEBVRE: Extension of time. MR. SNOW: Extension of time. The issue here is the time has already eclipsed for the Board's order, so I don't know. The County requests denial until they get finished what they need to get completed. They have a contractor and I would prefer for them to come back and then ask for leniency when the fines are accruing. You could stay the fines because they are progressing and this is an extensive job. You could also do that. It's up to the Board's discretion. But as far as for an extension of time, the time has already eclipsed. I don't see how we can do that. CHAIRMAN LEFEBVRE: When were they supposed to come into compliance? What was the date? While Jen's looking for that, Mr. Kelly has a question. MR. KELL Y: Is this the one over in the industrial park where the firewalls -- MR. SNOW: Yes, sir. No, not the firewalls, sir. Where they made the extension in the back. MR. KELLY: That's all right. MR. SNOW: They added around -- I think it was 2,000 square feet without permits. Mr. Garcia is -- Page 12 November 20, 2008 MS. WALDRON: Their compliance date was October 24th. CHAIRMAN LEFEBVRE: Thank you. So about a month ago. MR. LARSEN: Supervisor Snow, did you see the letter addressed to the Board from a Jose Garcia? MR. SNOW: I did, sir. MR. LARSEN: And there's an attachment. It looks like an e-mail and it references design wind speed. And it's from a Mitch Van Beek. MR. SNOW: Yes, sir. MR. LARSEN: How does that play into this matter? MR. SNOW: Well, because it has to be brought up to -- they're going to go the route of an affirmative defense. I'm only assuming here that they're going to go the route of the affirmative defense because the improvements were done prior to 1997. So they have to go back and look at all that criteria from the 1997 permitting to see what they could do, as far as bringing that up. They aren't going to bring it up to current standards because it was done. The County allows them to do that. So they have to figure all that out. They were looking for permission to do several things. And that's not for us to decide to do. That's up for him and his contractor to decide what they want to do with that structure. MR. LARSEN: Thank you. But my question really pertained to whether or not this is an ongoing matter under the supervision of either the County Code Enforcement or some other agency in regard to the structure being safe. MR. SNOW: It's under -- actually under the supervision of this Board because you issued an order that they were either going to demo it or get it permitted. Now, he has a contractor that I've been in contact with and is going to do this and is going to submit for permits, but they haven't done that. That's the reason they're asking for the extension of time to allow more time to do that. Page 13 November 20, 2008 But, again, they requested the extension past the time granted for October 24th. That's what the whole issue is. It's not -- they're just asking for an extension of time before the fines start. And that's already passed for what they asked for. MR. LARSEN: But the work has not been completed as -- MR. SNOW: No, sir. No work has been completed yet. MR. LARSEN: And there's still an issue as to the -- whether or not this was properly constructed and permitted? MR. SNOW: I actually received an e-mail from him earlier this week that stated that he wanted my permission to start the construction. I told him I don't give permission to start construction. So that's your -- you're the property owner. You make that decision. But they are very far along in this plan. They are very far along. They just haven't started construction yet. And they have submitted. MR. LARSEN: Okay. Thank you very much, Supervisor Snow. MR. SNOW: Yes, sir. MR. LARSEN: That's all I have, Mr. Chairman. CHAIRMAN LEFEBVRE: Thank you. Any other questions? (No response.) CHAIRMAN LEFEBVRE: I'm going to close the public hearing. Discussion of the Board? MR. KELLY: I don't really feel comfortable going and changing our original order. You know, the order stands. Hopefully it's not going to interfere with anything. Let him get it finished and then come back and request reduction or abatement. MR. PONTE: I agree. MR. LARSEN: If the Respondent was here to make an argument, other than what's stated in his papers, perhaps we could be persuaded, you know, one way or another. But based upon the supervisor's testimony and the information that was provided and the fact that the Respondent isn't here to elaborate on it, I would suggest Page 14 November 20, 2008 that we deny the application. CHAIRMAN LEFEBVRE: Any other comments from the Board? (No response.) CHAIRMAN LEFEBVRE: Do I hear a motion to deny? MR. KRAENBRING: I make a motion to deny. CHAIRMAN LEFEBVRE: Do I hear a second? MR. DEAN: I'll second the motion. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Motion passes. MR. SNOW: Thank you, Board. CHAIRMAN LEFEBVRE: The next motion will be a motion for continuance. Brian and Dara Gorman, case CESD 20080008567. (Speaker was duly sworn.) CHAIRMAN LEFEBVRE: Okay. Go ahead, sir. MR. WHITE: Good morning, Mr. Chairman, Board members. My name is Patrick White. I'm with the law firm Porter, Wright, Morris and Arthur in our Naples office. I'm here today on behalf of Brian and Dara Gorman. We're seeking a motion to continue. I have spoken with your staff and with the County Attorney's office representative. Neither of them have an objection to the motion. Page 15 November 20, 2008 I believe that the next meeting date you have, January 22 of '09 should give us sufficient time to address what are at this point some unresolved and unsettled facts regarding property lines, locations of easements and some other complicating matters that I believe we can address and hopefully find a way to abate this violation in a timely manner. And I would ask your indulgence to do so on behalf of Mr. and Mrs. Gorman. Mr. Gorman intended to be here. He called me last night and advised me he was unable to attend today. If you have any questions. You were provided a motion I hope gave you in a more expanded way the basis for why I believe the motion should be granted. But if you have any additional information you'd like from me or questions I can answer for you that you would like to ask, I'd be happy to try and do so. Thank you. MR. MUSSE: For the record, Jon Musse, Collier County Code Enforcement. We have no objection to the continuance. CHAIRMAN LEFEBVRE: Okay. MR. L'ESPERANCE: I have one question. Are there any public safety or health issues? MR. MUSSE: No. MR. LARSEN: I'd like to ask Ms. Waldron. Mr. White is asking for a 30 day continuance. MR. WHITE: Or to the next hearing, sir. MR. LARSEN: That was my point. It would probably be in January . MS. WALDRON: January 22nd. MR. LARSEN: I see in Mr. White's papers, paragraph three in his motion for continuance, that he needs to probably compile reports and affidavits to prepare and present and also prepare such experts' potential testimony prior to the next hearing. So I think that's a sufficient basis upon which to grant the motion for the continuance. CHAIRMAN LEFEBVRE: Any other comments of the Board? Page 16 November 20, 2008 MR. KRAENBRING: Since I see no objection from the County, I would make a motion that we allow the continuance. MR. LARSEN: I would second that motion. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Motion passes. MR. WHITE: Thank you. CHAIRMAN LEFEBVRE: You're welcome. MS. WALDRON: And we do have a stipulation agreement. CHAIRMAN LEFEBVRE: I was wondering. We can't go without one meeting not having a stipulation. We're going to have to amend the agenda. MR. KELL Y: I make a motion to amend the agenda to put this in as a stipulated agreement. MR. DEAN: I'll second that motion. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. Page 17 November 20, 2008 MR. KELLY: Aye. CHAIRMAN LEFEBVRE: I'm just going to take a couple minutes to read it over. MS. WALDRON: I'd like to advise the Board also that there are two people that would like to speak on this issue. CHAIRMAN LEFEBVRE: Has everyone had an opportunity to read it? MR. KELLY: Yes, sir. CHAIRMAN LEFEBVRE: Can I bring the parties up? MS. WALDRON: Can I get Mr. Gene Mayberry? MR. MAYBERRY: I would waive until after I hear the comments. CHAIRMAN LEFEBVRE: I'd like to have the Respondent up and the investigator. MR. BALDWIN: There was just a problem with the computer to display the pictures, so I have some copies here. CHAIRMAN LEFEBVRE: And can I have you first sworn in. (Speakers were duly sworn.) CHAIRMAN LEFEBVRE: And are you looking to have that entered as package? MR. BALDWIN: I have a composite package here to enter into the record. CHAIRMAN LEFEBVRE: Okay. And has the Respondent seen it? MR. SLA VICH: No. CHAIRMAN LEFEBVRE: Please show it to him before we look at the pictures. MR. SLA VICH: Okay. A lot of water. CHAIRMAN LEFEBVRE: You would like to have that entered as package -- MR. BALDWIN: Yes. MR. KELL Y: Make a motion to accept the packet. Page 18 November 20,2008 CHAIRMAN LEFEBVRE: Do I hear a second? MR. DEAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Motion passes. Was this case before us last month or is this a different case? MR. BALDWIN: This is a different case on a separate parcel. There's two different parcels. CHAIRMAN LEFEBVRE: Okay. Has everyone had an opportunity to look at the pictures? MR. KELLY: Yes, sir. CHAIRMAN LEFEBVRE: Go ahead. MR. BALDWIN: Good morning. For the record, Patrick Baldwin -- Investigator Patrick Baldwin with the Collier County Code Enforcement. This is in reference to department case number CESD 20080014496. Both parties have entered into a stipulation agreement as of this morning. The Board of County Commissioners, Collier County Florida versus Empire Developers Group, LLC stipulation agreement. Comes now the undersigned, William Slavich, on behalf of himself as a representative for the Respondent and enters into the stipulation and agreement with Collier County as the resolution of notice of -- notice of violation in reference to case number CESD 20080014496 dated Page 19 November 20, 2008 the 20th day of November 2008. In consideration of the disposition and the resolution of the matters outlined in said notice of violation of which a hearing is currently scheduled for, to promote efficiency in the administration of the Code Enforcement process, and to obtain a quick and expeditious resolution of the matters outlined therein the parties hereto agree as follows: The violations noted in the referenced notice of violation are accurate and I stipulate to their existence. The violations are of the sections of the Florida Building Code 2004 Edition Chapter 1 Permits, Section 22 through 26, Subsection 105.5.5 and 04-41, the Collier County land development code as amended, Sections 4.06.04.A.l.a.vii[a-d] and are described as disturbed land in Vita Tuscana have not be been hydro-seeded and is now creating dust. Adequate dust control measures shall be employed by the permittee to prevent complaints arising from the unhealthy, unsafe and damaging conditions. Failure to utilize adequate dust control procedures shall be sufficient cause to order cessation of the work causing such dust and to decline an inspection requests. Therefore, it is agreed that both parties agree that the Respondent shall pay the operational costs in the amount of$86.71 that incurred in the prosecution of this case. And, two, to abate violations by hydro-seeding all disturbed land in folio number 00185880006, a total of28.6 acres; grade house pads to a four to one slope; and level all stockpiled material within four days of this hearing or a fine of $10 per day per acre will be assessed until the violation is abated based on the motion passed by the Board of Collier County Commissioners on 10/28/08. "B", grade house pads to the four to one slope and level all stockpiled material in folio number 00186000005, 18 acres, within four days of this hearing or a fine of $10 per day per acre will be assessed until the violation is abated based on the motion passed by the Board of Collier County Commissioners on 10/28/08. Page 20 November 20, 2008 "C", if the Respondents fail to abate the violation, the County may abate the violation and may use the assistance of the Collier County Sheriffs Office to enforce the provisions of this order. And, "D", the Respondent must notify the Code Enforcement Investigator when the violation is abated in order to conduct a final inspection to confirm abatement. And it was signed by William Slavich. CHAIRMAN LEFEBVRE: Thank you. Please state your name. MR. SLA VICH: William Slavich. CHAIRMAN LEFEBVRE: And you represent Empire Developers, correct? MR. SLA VICH: I'm the managing member of Empire Developers Group, correct. CHAIRMAN LEFEBVRE: And you agree to the stipulated agreement that was just read into the record? MR. SLA VICH: I did with one clarification. That four days is four business days, not four calendar days. CHAIRMAN LEFEBVRE: That was going to be something that I ask, too, being that the weekend is coming up. MR. SLA VICH: So picking up our permit by Wednesday was the understanding that we had in the discussion. CHAIRMAN LEFEBVRE: So you have picked up your permit? MR. SLA VICH: We have not. We closed last night. I have a letter here. I'd be more than happy to read it into the record that we have the money for the permit and for the infrastructure improvements per the approved SDP to do sitting in escrow waiting to be drawn down. I couldn't get it this morning before I ran in here and I couldn't pick my permit up that quick anyway. CHAIRMAN LEFEBVRE: A little convenient. You're right here now. MR. SLA VICH: I was hoping that we wouldn't be here today, Page 21 November 20, 2008 but we ended up a day delay on the closing. MR. LARSEN: Mr. Chairman, may I ask a question first? CHAIRMAN LEFEBVRE: You certainly can. MR. LARSEN: Mr. Slavich, you're going to hydro-seed all disturbed land within four business days. Do you already have the subcontractor on notice that he's to start the work almost immediately? MR. SLA VICH: We will put him on notice today to start the work. Although, it would only be a one percent chance he'd actually be doing the work. And we actually have hydro-seeded a portion of the property. Not the roadway, but we have hydro-seeded. And we've actually been out with Code Enforcement a number of times in the County. MR. LARSEN: My concern is over the four days. And basically we're coming into Thanksgiving next week. And I'm just concerned that it might not be a sufficient amount of time for that to actually occur before you start incurring -- MR. SLA VICH: I have been insured by staff that if I walk in here with a check this afternoon I'll have a permit by Wednesday. MR. LARSEN: By Wednesday of next week? MR. SLA VICH: Correct. Which is why I asked about the four business days and not four calendar days. MR. LARSEN: Well, all right. But-- CHAIRMAN LEFEBVRE: But that's still-- if you get the permit next Wednesday, that's pretty much the four days. MR. SLA VICH: That's correct. CHAIRMAN LEFEBVRE: So you're going to be in violation. MR. SLA VICH: Well, I'll be in violation on Thursday if I don't have my permit on Wednesday. That was the understanding of the discussion in the hallway. So four days starts today or does four days start tomorrow? Because ifit starts today, then we'd ask for five days. Ifit starts tomorrow, then we're okay with four days. Page 22 November 20, 2008 MR. KELL Y: Well, according to this it starts the day of this hearing. MR. SLA VICH: Then we would ask for five days. MR. KELLY: There's no motion of picking up -- there's no mention of picking up a permit versus actually doing the work. You have four days to pick up your permit, do your work from the date of MR. SLA VICH: Well, if I pick my permit up, I don't have to hydro-seed. MR. KELLY: I see what you're saying. MR. SLA VICH: Because then I have an approved SDP. The next date we'll be in there digging -- excuse me. The next day will be Thanksgiving. No one will be working. That following Monday we will be in there grading and putting sewer, water and everything. We have an approved SDP. All I have to do is pay my transportation impact fees for my permit. MR. KELLY: There's no mention of a new SDP. You are agreeing to hydro-seed land that you're about to tear up. You might want to rethink this one. MR. SLA VICH: Then we would need to have -- okay. Then we would need some new agreement. Because the agreement has always been if we walk in here, pay our fees, pick our permit up, then we're in compliance with the SDP and we're not required to hydro-seed. MR. LARSEN: That's not what your stipulation says. MR. KELLY: You're agreeing to hydro-seed, regardless of what else happens. And you're agreeing -- MR. SLA VICH: I'm not agreeing to do that. That would be ridiculous. MR. KELL Y: Right. Well-- MR. LARSEN: May I ask a question, Mr. Chairman, of our counsel? Do standard rules apply in regard to the calendar days; and the Page 23 November 20, 2008 four days would start as of tomorrow, am I correct? MS. RAWSON: It would. MR. LARSEN: And they would not count weekends; is that also correct? MS. RAWSON: Well, no, not usually. We count days. But he has stipulated that we're talking business days. So my order would reflect business days. Business days would not include the weekend. It would not include Thanksgiving and it may not include Friday. MR. LARSEN: But because it's under seven days, it would not include weekends normally? MS. RAWSON: Correct. MR. LARSEN: Thank you very much, Ms. Rawson. So, Mr. Slavich, I believe that the way this stipulation is to be read fairly to you would be if you enter into this agreement today, starting tomorrow you have four business days to hydro-seed your property, irrespective of whatever permits or whatever other understandings you may have had. Is that your understanding of what the agreement is that you entered into? MR. SLA VICH: No. MR. LARSEN: Okay. So with that, Mr. Chairman, I would suggest that basically we not approve of this stipulation. CHAIRMAN LEFEBVRE: Okay. MR. KELLY: My suggestion would be either take another stab at it or leave it on as a normal hearing and we'll talk about it then. CHAIRMAN LEFEBVRE: Either that or add in there if a permit is picked up to go ahead and build, then this would become null and void. I mean, I think that might be some type of language to work out. MR. KRAENBRING: I think we'd like to hear from the investigator. MR. BALDWIN: I think I'd like to call up Stan Chrzanowski Page 24 November 20, 2008 here. He can better explain the permit process and the time frame. (Speaker was duly sworn.) MR. CHRZANOWSKI: Hi. I'm Stan Chrzanowski. I'm with the engineering department. My understanding is that if Mr. Slavich pulls his permit that he will be going in there and grading and he won't have to hydro-seed. The hydro-seeding is only a requirement if he doesn't pull his permit. When he pays his impact fee tomorrow, the woman in -- Flores in impact fees will sign off in a program called CD-Plus. And the people in the intake team who have present custody of all the project files will go back to one of their, quote, files and pull out the project file and forward it to engineering review, my department, for a final approval letter. Ifhe pays tomorrow, we'll probably get the project file on Monday. I can ask Steve, the person that writes these up, to put it first on line. I would guess he would probably have his permit by Tuesday at the very latest. I can't see anything going wrong if he pays his fee tomorrow to where he wouldn't have his permit by Wednesday. Ifhe has his permit on Wednesday, he can go out there and start tearing up ground and putting in infrastructure and regrading. Is that what you want to know? MR. LARSEN: My only concern is basically that the stipulation agreement doesn't provide for that contingency. It only provides that basically he start -- he, Empire Developers Group, hydro-seed within four days. Where the understanding was that if he pulls his permit he does not have to hydro-seed, he can go right to the development stage. And that's not reflected in the agreement. So I don't want him to be bound by an agreement which doesn't adequately reflect what the true agreement between the County and Empire Developers is. So it just takes a modification of this stipulation of agreement to reflect what you just testified to. Page 25 November 20, 2008 MR. CHRZANOWSKI: Right. I agree. I hadn't read the agreement prior to this. I was only here to tell you about the permit procedure and why it takes days to -- MR. KELL Y: The reason why we're bringing this up is because we're a quasi judicial board, almost like a court system, versus CDS, which deals with permits and engineering and so forth, land development code issues. You're more or less being held to exactly what's in here as if you were in a court of law. Although we intertwine with Community Development quite often because we deal with property issues, we're not part of them. We only try to enforce the rules of the ordinances of the land development code that have already been established. So you want to be very clear that the language precisely gives you an out if you decide -- if you're going towards picking up a permit and following your SDP plans. MR. SLA VICH: Okay. I mean, that's a misunderstanding. Because the understanding is that if you pick your permit up, then you're in -- if you pay your impact fees, excuse me, and pick your permit up, then you're in compliance with your SDP and you would not be required to hydro-seed. So we need to amend that agreement to say that in the event we don't pick our permit up by next Wednesday, then we would -- I mean, I can't hydro-seed the same day. But we would be required to hydro-seed the entire site, including the roadways and everything. That is the intent of what our discussions have been and what we've been trying to do. MR. LARSEN: Okay. Mr. Chairman, I assume that we can do one of two things. Either we can -- we're not approving the stipulation. We can continue it on the agenda and allow them an opportunity -- the County and Respondent an opportunity to amend their agreement and bring it back to us this morning. CHAIRMAN LEFEBVRE: I think that's going to table it. Page 26 November 20, 2008 MR. KRAENBRING: Mr. Chairman, there's also a member of the community that wanted to speak on this. CHAIRMAN LEFEBVRE: Yes. MR. SLA VICH: Just so you understand, this has been going on for quite some time. Understand that. There is not a chance -- money is sitting down on Fifth Avenue -- that this permit is not getting paid or the impact fees are not getting paid either this afternoon or tomorrow morning, unless somebody gets run over that is bringing the check up here. That would be the only way the money is not coming into Development Services. MR. LARSEN: Well, we hope that doesn't happen. MR. KELL Y: How about -- you know, since we're here and we're hearing it, how about we add that provision in ourselves and then just approve the stipulation with the changes? CHAIRMAN LEFEBVRE: We have to have both parties agree to it, which it sounds like they are. They have. And then we have the couple people from the public that would like to -- MS. PETRULLI: If! may, may I make a comment? CHAIRMAN LEFEBVRE: I need to have you sworn in. (Speaker was duly sworn.) MS. PETRULLI: For the record, Supervisor Patti Petrulli with Collier County. CHAIRMAN LEFEBVRE: Thank you. MS. PETRULLI: I'd like to make a comment here. In the land development code I searched and searched. I can find nowhere in the land development code written black and white where it says that when he is issued the permit it alleviates his responsibility to have the property hydro-seeded. One of the purposes of hydro-seeding is to keep the dust obviously from blowing. And let me just for -- read this. When fill is used to bring building lots to desired construction elevations, those lots shall immediately be seeded to prevent erosion, exotic seed Page 27 November 20, 2008 infestation. All fill areas where lots or stockpiles must have erosion controlled field fencing. Any stockpiling in place for more than six months must be sodded or hydro-seeded. Failure to do so within 14 calendar days of notification by the County will result in a fine of $10 per day. This has been going on for 18 months. In the event that any portion of the stockpile is in place for greater than 18 months, the County will order the fill to be removed and the land to be revegetated. I understand what Mr. Slavich is saying that he is going to probably get the permit next week. But my question is in my responsibility to the citizens that live next door is: If he does not hydro-seed, ifhe's -- it's 46 acres. Ifhe's working on 10 acres at one time, what about the rest of the property? We're going into the dry season. So whatever area he's not working on will not have hydro-seed on. And they're going to have the same problems that they've been having for the last 18 months. And in fairness to the residents that surround that area, I have to make that comment. MR. SLA VICH: I have a point of clarification. There is not 46 acres that's cleared. MS. PETRULLI: It is a total of 46 acres. MR. SLA VICH: I understand that. But over 20 acres have been deeded to Southwest -- to South Florida Water Management for the flow way and is a preserve. You're not hydro-seeding something that's going to be -- that's a flow way in the district. MS. PETRULLI: But, sir, with all due respect because you did not do what you were supposed to do when you initially started by hydro-seeding as soon as you disturbed the land, when you start construction you're still leaving portions of that uncovered due to erosion. We're going to have winds. It's the dry season. So where does that leave your surrounding neighbors? MR. SLA VICH: We're not having any stockpile offill. And this discussion came up at the Board of County Commissioners meeting Page 28 November 20, 2008 two or three weeks ago. What we agreed to do and what we've already done is gone in and any piles that are out there we graded. We graded the, quote, unquote, fill pads that there are some lots that are filled to grade to build. We graded the slope of those down to four to one slope, which is the requirement and they are hydro-seeded. Those specific lots might not be disturbed, but you're talking about a 20-acre site that's going to have stormwater, paving, sewer and everything else. So the entire site is going to be disturbed. There's also a buffer wall four feet high that needs to be built up against the preserve to prevent from erosion and water. MS. PETRULLI: I think for your benefit you need to look at some of these photos. I was out there Monday. My investigator was out there yesterday. One of the things that the BCC had requested is the stockpiling be leveled out. There was some that was leveled out, but as you will be able to see by the photos that there are many, many that were not leveled out. Mr. Slavich, did he do some hydro-seeding? Yes, he did. But most of the hydro-seeding in the small area he did did not take. The only one -- the picture -- the only picture you're going to see where there's some green is the actual -- where the model homesite was going to be. So you have a lot of erosion going on out there. And I just wanted to bring that to your attention. This here is some of the stockpiling that's going on. Some of those piles of rocks were leveled out. But as you can see, there's many more. W e'lllet you see some of the other photos. There's another example there. I don't know if you can see it, gentlemen. I apologize. But it shows you how barren it is out there. And if he's not requested to hydro-seed at all -- I realize he's going to be working. I realize it's a construction site. But, at the same time, what do we do about the erosion going into the dry season? Page 29 November 20, 2008 MR. LARSEN: Ma'am, I understand your points. The Board was asked to approve a stipulation. Clearly there is no agreement between the County and the Respondent. And I would move that we not approve the stipulation. And if this goes on for a hearing today, it goes on for a hearing. MS. PETRULLI: And I appreciate that. I just wanted to make you aware of the problems. And Mr. Slavich did, in good faith, sign that stipulation with us. And we explained to him the stipulation and he did sign it. MR. SLA VICH: Is erosion control -- MR. LARSEN: We can't have a colloquy between you. CHAIRMAN LEFEBVRE: I think we're almost hearing the case now and we don't want to do that. You came here in front of us regarding a stipulation. And obviously we're talking about the stipulation right now. Now, I'm not sure if we should have the -- I guess make a decision or have the public come up first and -- MR. LARSEN: Well, rather than a stipulation, if we're going to have a hearing, we should have the hearing. CHAIRMAN LEFEBVRE: All right. Let's make a decision if we're going to have the hearing or not or stipulate if we're going to approve the stipulation or deny it. Do I hear a motion to deny the stipulation? MR. LARSEN: I move that we deny -- we not approve the stipulation. MR. PONTE: I'll second that. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. Page 30 November 20, 2008 MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Okay. So do you want to direct them to try to come up with a -- MR. LARSEN: I don't think that's within our purview to direct them to reach an agreement. If they need more time before we can bring this on for a hearing, we can move to amend the agenda so that MR. KELL Y: It's next. MR. LARSEN: -- 4.C.l is not heard immediately and that we go on to the next. And we put 4.C.l, BCC versus Empire Developers, down at the bottom of the hearing list to give them an opportunity to discuss it further. If they want to proceed to a hearing now, that's fine with me, as well. . MR. KRAENBRING: Well, I think you have to ask that of the County and the Respondent. So are you going to go out and work out the details to the stipulation or do you want to move toward a hearing? MR. SLA VICH: I mean, I'll be more than happy to work that out. I mean, there isn't a construction site in Collier County that's putting infrastructure in that's required to hydro-seed while infrastructure is going in. But I'll be more than happy to go out and abide by the LDC that's in place and hydro-seed after if we haven't picked the permit up. As I said earlier, that's a moot point. But I understand why we need an agreement. MR. KELLY: I'd like to be heard, Mr. Chair. Since we know so much about the case now, when a new stipulated agreement comes back, if it's not very clear I'm going to be Page 3 1 November 20, 2008 more likely to push towards hearing the details of the case. Because I'd like to know more about what the SDP states and how that alleviates them from having to do any hydro-seeding for the next 18 months. It's almost like it's restarting the cycle. I'm curious to see how that plays out. MR. LARSEN: I believe there's a member of the audience that would like to be heard on this matter. Sir, we're not at a hearing stage yet. MR. MAYBERRY: Right. My objection is to-- CHAIRMAN LEFEBVRE: We can't -- when they come back with a stipulated agreement, then we can hear you at that point. So I guess that's what we're going to do. We're going to amend the agenda and you'll come back hopefully with a stipulated agreement. MR. SLA VICH: Okay. Perfect. CHAIRMAN LEFEBVRE: Or rehear the case. MR. LARSEN: I make a motion to amend the agenda item. MR. DEAN: So move. CHAIRMAN LEFEBVRE: Do I hear a second? MR. DEAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. MS. WALDRON: So we're going to place this item last on the hearings? CHAIRMAN LEFEBVRE: Yes. That's correct. Page 32 November 20, 2008 MS. WALDRON: And we also have another stipulation agreement. CHAIRMAN LEFEBVRE: Okay. MS. WALDRON: For 4.CA. MR. KELL Y: I make a motion to amend the agenda. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KRAENBRING: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Next stipulated agreement would be BCC versus Maricela Nunez. (Speakers were duly sworn.) MR. BALDWIN: This is in reference to case number 2007080129, Board of County Commissioners versus Maricela Nunez, dealing with a separated guest house constructed without first obtaining proper Collier County permits located at 1401 Orange Street, Immokalee, Florida 34142, folio number 30682040005. The Respondent has agreed to enter into a stipulated agreement. Respondent is to pay operational costs in the amount of $86.71 incurred in the prosecution of this case and abate all violations by obtaining a Collier County building permit, inspections and certificate of completion within 120 days of this hearing or a fine of $200 per day will be imposed until violation is abated or obtaining a Collier County demolition permit, inspections and certificate of completion within 120 days of this hearing or a fine of $200 per day will be Page 33 November 20, 2008 imposed until violation is abated. If Respondent fails to abate the violation the County may abate the violation and may use the assistance of the Collier County Sheriffs Office to enforce the provisions of this order at the owner's expense. Respondent must notify Code Enforcement within 24 hours of abatement of the violation and request investigator to perform a site inspection to confirm compliance. CHAIRMAN LEFEBVRE: State your name for the record. MS. NUNEZ: Maricela Nunez. CHAIRMAN LEFEBVRE: And you agreed to this stipulation? MS. NUNEZ: I do. But I have a concern and a question. CHAIRMAN LEFEBVRE: Okay. MS. NUNEZ: I purchased that home in 1996. That was 12 years ago. And it was owner -- owner finance. I had no idea that that dwelling was not permitted. I also got it financed six years ago through Suncoast Credit Union. It went right through the channels. No one said anything to me until a year ago when Jonathan stepped in. My question is: Couldn't it be grandfathered in without me having to pay all these -- because I have to hire a contractor to get it approved. I have to pay all these fees. And I don't think that I should have to pay for all that. I mean, the shed is 20 by 20. It's withstood all these hurricanes that have gone through the area. I mean, I want to use it for the appliances, for lawnmowers, for whatever, you know, I need it for. But I don't -- really I don't have the monies to really pay for all these fees that is required. That will be required. CHAIRMAN LEFEBVRE: It says-- MR. LARSEN: Mr. Chairman, may I ask a question after? Let me hold that one. CHAIRMAN LEFEBVRE: It says guest house. Is it a guest Page 34 November 20, 2008 house or is it a storage shed? MS. NUNEZ: Well, now it will have to be -- it has been-- actually, I have not rented that home like in two years. I have not received any money. CHAIRMAN LEFEBVRE: No one lives there? MS. NUNEZ: No one. Not even in the other dwelling. I have not rented that house out. It has been a long time. CHAIRMAN LEFEBVRE: Mr. Larsen. MR. LARSEN: Actually, that was my question whether or not it was a guest house or a shed that had yard tools in it. I would like to ask the Code Enforcement Investigator what his observation of the unit was. MR. MUSSE: I can show you pictures at your request. I do have them. When I first got there, it was a guest house. There was a gentleman living there. It was poor living conditions. Electrical wires exposed and -- MR. LARSEN: I would like to see the photographs, please. MR. MUSSE: I haven't showed it to her, so -- MR. LARSEN: Show the photographs to her. Mr. Chairman, are we entering the arena of actually hearing the case when we see the photographs? CHAIRMAN LEFEBVRE: Well, we did see photographs in the last one. MR. KELLY: It's a stipulated agreement. MS. NUNEZ: I also want you to know that when he went to the house we stopped the construction because it was being repaired at that time. I had hired a gentleman to go and do the electrical work. He did -- had not gone to finish the job, but it was -- as you see it here, it was never touched. We just left it alone, never had anybody go back and do any kind of additional work. CHAIRMAN LEFEBVRE: You would like to enter this as -- Page 35 November 20, 2008 MR. MUSSE: Exhibit B-1 through 6. And Exhibit C-l. CHAIRMAN LEFEBVRE: Do I hear a motion? MR. KELLY: Make a motion to accept the exhibits. MR. LARSEN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELL Y: Aye. MR. LARSEN: Thank you, Ms. Waldron. MR. L'ESPERANCE: Mr. Chairman, question. CHAIRMAN LEFEBVRE: Go ahead. MR. L'ESPERANCE: Do you have any comments as to the setbacks or zoning of this particular structure in that area? MR. MUSSE: From what I gather, when she tried to get permitted as a guest house she didn't meet the required setbacks. Dave Hendricks, former employee of the County, stated that when she tried to apply for a variance to obtain a permit for the guest house -- he stated that the variance -- there was no way she could get approved for the variance, but possibly get permitted as a shed. MR. KRAENBRING: Okay. MS. NUNEZ: The setbacks are there. I have the measurements here that I did myself. MR. KRAENBRING: Can I ask what your intentions are with the property; repair it and -- MS. NUNEZ: Well, actually what I -- what I had planned and I still can if it is approved is I want to repair it so that it is strong enough and -- you know, reasonable enough to keep as a shed. I want to Page 36 November 20, 2008 widen the doors so I can get a drive-in lawn mower. MR. KRAENBRING: Do you think that 120 days is an adequate amount of time? MS. NUNEZ: Actually, because I have been struggling economically. I'm actually right now supporting two households, which is that and the home I live in. I need a little bit more time than that. CHAIRMAN LEFEBVRE: Any other questions? MR. DEAN: I have a problem with that. The fact that I think you're going to use it for a living area. It looks like it's set up -- MS. NUNEZ: No, I won't do that. I teach at Pinecrest. I'm not going to do anything that is -- that is going to jeopardize my job or my reputation or -- you know. MR. DEAN: If somebody hasn't been in the property for two years, I think there is a little neglect there. So I worry about it being rented. MS. NUNEZ: I promise it's not going to happen. MR. LARSEN: Well, the issue now is whether or not we approve the stipulation agreement between the County and Ms. Nunez. And I'm inclined to approve the agreement. I think the 120 days is fair to the Respondent and -- CHAIRMAN LEFEBVRE: I have a couple of issues about approving this stipulation. One being that it states in the violation that it's a guest house and she states it is going to be a storage shed. And our stipulated agreement doesn't state where -- what it is supposed to be. Is it going to be a shed or it's going to be permitted as a guest house? So what are we approving? We are approving it to be a guest house or a shed, which are two different things. If it's a shed, it's not going to have the bathroom and all the facilities. If it's a guest house -- MR. LARSEN: Does that really matter? Basically she's going to Page 37 November 20, 2008 have to get the permit, inspections, completion of 120 days, irrespective of whether or not it's a guest house or a shed. She can do what she likes as long as she's properly permitted. She could make it into something completely different. Right now, based upon the photographs, what we have clearly is a property that was used for rental purposes. I don't think there is any denial of that. But Ms. Nunez, if she can get the permits to make it into a guest house, that's fine. You know, if they can get permits to make it into a storage shed or some other thing, I think that's a prerogative, as well. At this point I believe that 120 days is a sufficient amount of time for her to one way or another figure out what she wants to do with the property. CHAIRMAN LEFEBVRE: Any other comments? MR. DEAN: I just have one more comment. You're not going to be renting this out or somebody is not going to be living there? MS. NUNEZ: Well, like I had told in the very beginning, it has always been -- it used to be an additional -- additional monies for me. So when I talked to Jonathan, then I was in the understanding I cannot -- I cannot rent that house. So I did exactly what he said that I could not do. But my concern was -- you know, and what I wished, that I wanted, was it to be a guest because that's what I had used it for before. So if it -- if I can use it as a guest, then I would really -- it would really help me out a lot. MR. DEAN: Can I just ask one more? When you say a guest, you have company over and let them live in there? MS. NUNEZ: Yeah. Stay in there. MR. DEAN: The wiring and the plumbing, it's all out of code. And if you let somebody live there, that's what bothers me. MS. NUNEZ: Actually, when I -- when Jonathan went to the Page 38 . November 20, 2008 house, the house was not used. But I knew this older man and he asked if he could live there and I said yes. So while he was living there, I wasn't charging him anything. And it was under construction. It was being worked on, but we stopped it because Jonathan stepped in. CHAIRMAN LEFEBVRE: Any other questions? MS. NUNEZ: He didn't have a place. He was a homeless man. CHAIRMAN LEFEBVRE: Do I hear a motion? MR. LARSEN: I move that we approve the stipulation agreement as proposed by the County at this time. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KELL Y: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? MR. DEAN: Nay. CHAIRMAN LEFEBVRE: Nay. Motion passes. Stipulated agreement. MR. LARSEN: Mr. Chairman, does the reporter need a break? CHAIRMAN LEFEBVRE: Okay. We'll take five. We'll come back at quarter after. (A recess was held from 10:04 a.m. until 10:14 a.m.) CHAIRMAN LEFEBVRE: I am going to call the Code Enforcement meeting back to order. And our next case is BCC versus Eduardo and Annette Nodarse. And it is CEB number 2007020522. (Speakers were duly sworn.) Page 39 November 20, 2008 MS. WALDRON: Okay. This is in reference to department case number 2007020522, BCC versus Eduardo and Annette Nodarse. For the record, the Respondent and the Board was sent a packet of evidence and we would like to enter the packet of evidence as Exhibit "A". CHAIRMAN LEFEBVRE: Do I hear a motion? MR. KELL Y: Motion to accept the packet. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KRAENBRING: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Motion passes. MS. WALDRON: Violation of ordinance 04-41 as amended, Collier County land development code, Section 3.05.01(B). Description of violation: Property has been mechanically cleared in excess of one acre without required permits. Location/address where violation exists: 4184 6th Avenue N.E., Naples, Florida. Name and address of owner/person in charge of violation location: Eduardo and Annette Nodarse, 4184 6th Avenue N.E., Naples, Florida 34120. Date violation first observed: 2-20-2007. Date owner/person in charge given notice of violation: 5-29-07. Page 40 November 20, 2008 Date on/by which violation to be corrected: 5-16-07. Is that right? MR. LARSEN: That's a problem. MS. WALDRON: Date of reinspect ion: 8-1-08. Result of reinspection: Violation remains. At this time I would like to call Code Enforcement Investigator Susan O'Farrell. MS. O'FARRELL: Good morning. For the record, Susan O'Farrell, Collier County Code Enforcement Investigator and environmental specialist. This is in reference to case number 2007020522 with violation of Sections 3.05.01(B). It is located at 4184 6th Avenue N.E., Naples, Florida in regards to clearing in excess of one acre without a permit. I would now like to present case evidence "A" or "B" through "E". Sorry there is so many. CHAIRMAN LEFEBVRE: Have the Respondents seen the pictures? MS. O'FARRELL: Yes, they have. MR. KELLY: Make a motion to accept the packet. MR. DEAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. MS. O'FARRELL: I would also like to add that Mr. Nodarse has his daughter as his translator. CHAIRMAN LEFEBVRE: Do we need to swear her in as a Page 41 November 20, 2008 translator? MS. RAWSON: Yes. (Ms. Martinez was sworn in to interpret from English to Spanish and Spanish to English.) CHAIRMAN LEFEBVRE: What is the size of the property? MS. O'FARRELL: I believe it is 2.25. Let me see. MR. KELLY: .28. MS. O'FARRELL: 2.28; is that what it says on the aerial? MR. KELLY: Yes. CHAIRMAN LEFEBVRE: How much over the one acre has been cleared roughly? MS. O'FARRELL: Roughly they have cleared 1.32 acres minus the one acre. So we are talking about .32 acres. They have left uncleared .95 acres. CHAIRMAN LEFEBVRE: Has everyone had a chance to look at them? MR. KELLY: Yes. CHAIRMAN LEFEBVRE: Are you set? MS. O'FARRELL: I'm ready. The case was originated by general investigator Michelle Scavone, who observed on 2-20-2007 the property cleared and spoke to the owner who stated her husband had cleared -- had cleared the property so the children could play. She took photos, which are presented with Exhibit "B". Staff researched the property and showed that it was cleared .32 acres in excess of one acre without the necessary permits. MS. MARTINEZ: I would like to -- he wasn't aware that he needed -- MS. O'FARRELL: I'm sorry. But the presentation of the first part of the case is for the investigator and then the Respondent is allowed to -- MR. LARSEN: You will have your-- Page 42 November 20, 2008 MS. MARTINEZ: I thought she was done. MS. O'FARRELL: No. I'm sorry. The interview was sent and signed for by the Respondent on May 29,2007. The Nodarses were given a list of environmental consultants that they could use in order to prepare their plan for mitigation. He was hired, but not paid his contract fee. So the acting supervisor, Marlene Serrano and the then Code Enforcement Investigator Jen Waldron worked very closely with the Nodarses to try and come up with a plan. They required -- let's see. It was ten slash pines and 30 three-gallon saw palmettos. The plan was then changed again to 40 slash palmettos instead of -- I'm sorry. Saw palmettos instead of the slash pines. When the staff conducted the site visit, they determined that the native plants had been not installed and found that seven plants had been planted and 20 ficus. These are nonnative plants. Originally the plan was accepted for the ten slash pine and 30 three-gallon saw palmettos. I was on site and observed no plants that were nonnative and County accepted that were installed. And all the nonnative plants that were installed were dying or not thriving. Those would be on Exhibit "C". Exhibit "D" is the aerials that show the property over the last three years and how it has been cleared with 2008 more cleared. When I was on the property on the July 30th visit, I observed more destruction to the property. And, you know, I am finished presenting my case. MR. LARSEN: I have some questions of Ms. O'Farrell. Mr. Chairman, may I please? CHAIRMAN LEFEBVRE: Yes. MR. LARSEN: How did you calculate it was in excess of one acre? MS. O'FARRELL: I had my staff researcher, who is quite good Page 43 November 20, 2008 with maps. And he is here to testify, if you'd like. His name is Investigator Pete Seltzer. And he created a map that we can pass around that we can show it as Exhibit "F". MR. LARSEN: Why don't you show that to the Respondent and have your man testify. (Speaker was duly sworn.) MR. SELTZER: For the record, environmental specialist Pete Seltzer. CHAIRMAN LEFEBVRE: Get closer to the microphone. MR. SELTZER: Sorry. CHAIRMAN LEFEBVRE: Hold on one minute. MR. SELTZER: Sure. MR. KELL Y: Make a motion to accept Exhibit "F". MR. DEAN: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (N 0 response.) CHAIRMAN LEFEBVRE: Motion is approved. MS. O'FARRELL: These are approximate calculations. They are not exact. And Mr. Seltzer will explain to you how he did it. Are you ready? MR. SELTZER: Okay. What I did basically to calculate the acreage is I used the aerials from 2008. And using the GIS Arc map program, I was able to actually draw out the outlines of the cleared Page 44 November 20, 2008 sections and generate a feel for the calculated acreage. And doing simple math conversions from square feet to acres, I was able to draw out -- calculate out the cleared sections and the sections that remained. Like Ms. O'Farrell said, this is just an estimate. This is not an exact survey. This was done from the computer, not at the site. And it's relying on the data layers that come from Collier County. Nothing more than that. And I have had several years of experience doing this for the State of Florida with the Division of Forestry. I even worked for the fire department doing mapping. I feel fairly comfortable with it. MR. LARSEN: So what's your professional opinion? MR. SELTZER: My professional opinion is that it's accurate to only a certain degree. It would not give you a clear estimate. Maybe within a tenth or nearest two-tenths of an acre. MR. LARSEN: Is it your professional opinion that in excess of one acre was cleared or not, sir? MR. SELTZER: Yes. Yes, sir. MR. LARSEN: How much in excess of one acre was cleared? MR. SELTZER: I would say, based on my knowledge, anywhere between a quarter and a half. I'm not going to be precise. I want to cover myself on this. So between 1.25 and 1.5 acres based on the -- MR. LARSEN: Right. MR. SELTZER: -- estimate that I generated. MR. LARSEN: But your testimony has to be clear. Is it in excess of one acre or not? MR. SELTZER: Yes, sir. Without a doubt. CHAIRMAN LEFEBVRE: Any other questions? MS. O'FARRELL: We anticipated that question. CHAIRMAN LEFEBVRE: Are you all set with your case? MS. O'FARRELL: I'm ready to turn it over to the Respondent. MS. MARTINEZ: Basically he did not clear out one acre and a Page 45 November 20, 2008 quarter. There was stuff cleared out before when the house was made. What he cleared out was in the back, not an acre and a quarter. MR. L'ESPERANCE: Speak into the microphone, please. You can actually move the microphone towards you. MS. MARTINEZ: Like I said, there was -- I mean, he cleared out stuff in the back. And not in the front. And he didn't take out any big trees or anything. The trees that are missing are, like, I guess, the cypress. The taller trees that are missing have gradually fallen off with time. And, you know, and he -- the thing was, too, he bought two acres, and nobody told us that we could only have an acre for us to do whatever we needed to do with it or he needed to do with it. Also, when he did the contract to the house to get the house built, he specified he didn't want any big trees taken out. So, I mean, to our knowledge it was because he had taken off some trees -- the reason we're here is because he had taken off some trees he wasn't supposed to. But now I see it all taking a turn that he cleared more than an acre. He said that towards the back there was smaller trees and just pretty much weeds and stuff. He wasn't aware that we needed a permit also to clear out anything in the lot. CHAIRMAN LEFEBVRE: If you look at the aerials between 2007 and 2008 -- I don't know if you have that in front of you. MS. MARTINEZ: I don't, but we did take a look at it. CHAIRMAN LEFEBVRE: There is a distinct difference in the way the land looks. 2008 it appears to be quite a bit of the property is cleared and it's pretty stark. It's pretty obvious that a good part of the land has been cleared at that point. MR. NODARSE: (In English) Look at that. It's all big tree. It's over there. MS. MARTINEZ: All basically he cleared out was the -- I guess, the smaller stuff. But he didn't clear out any big trees. And basically if you can see from 2007, a lot of trees have been drying up and Page 46 November 20, 2008 falling, as well. Like the taller ones. MR. NODARSE: Not only my land. It's every land around. The big tree is gray. CHAIRMAN LEFEBVRE: Mr. Kaufman, go ahead. MR. KAUFMAN: I see on Exhibit C-l that there's a boat and the front part of an 18-wheeler and, I guess, a trailer. Are those -- is that why the road was put in; to get those vehicles back there? And is it being used for that purpose? MS. MARTINEZ: Yes, it is. And everything that he took out of the lot he didn't bum it, he didn't bury it or anything. It's in the back and it's living. It's actually there. MR. NODARSE: It's living anyway. MS. O'FARRELL: I'm sorry. But this case is here about the vegetation removal. If he cleared for the road and for the trucks, you still need to get a permit. I might also say that if he transplanted anything in the back, I didn't see it. CHAIRMAN LEFEBVRE: Any other questions? Go ahead. Mr. Kelly. MR. KELL Y: Susan, do they ever allow people to clear more than one acre? For instance, if! was to go in and get a permit and I wanted to clear an extra half an acre on my property over the one, that's allowed; do they allow those? MS. O'FARRELL: They would allow you to clear as long as you had an accessory use. An accessory use would be keeping animals, building another guest house that was not going to be rented but used periodically. And then they would get the space for that house -- the square footage of that property structure, as well as the setback. But to clear in order to operate a business, unless they got a variance to the zoning, they would not be allowed to do that without a permit. Page 47 November 20, 2008 MR. KELLY: Thank you. MR. LARSEN: Mr. Chairman. CHAIRMAN LEFEBVRE: Yes. MR. LARSEN: Ms. O'Farrell, what's the County's response to the Respondent's contention that the Respondent didn't personally clear in excess of an acre; that it was partially cleared prior to his purchase of the property? MS. O'FARRELL: Well, the Collier County code states that we hold the property owner responsible. Also, the property that was cleared for the house, the driveway, the front yard, the side yards would have been close to that one acre. MR. LARSEN: And in respect to the clearing on the back of the property, that exceeded one acre? MS. O'FARRELL: That's why it's .32, instead of the whole property or even half ofthe property. MR. LARSEN: The County's contention in regard to that area that has been cleared which is in excess of one acre constitutes, what, a violation? MS. O'FARRELL: A violation of the code. MR. LARSEN: Okay. And that's what this Respondent has been cited for? MS. O'FARRELL: Yes. MR. LARSEN: Okay. MS. O'FARRELL: It's the .32 of an acre that they're being cited for. MR. LARSEN: Okay. Do you understand that and what exactly you're being cited for? Because there was some question that initially you thought it was for removing some vegetation. MS. MARTINEZ: That's what we were told at first. That it was because we had removed some vegetation and they wanted us to put certain plants in. Page 48 November 20, 2008 However, we were told to put certain plants and there was a miscommunication between my parents and, I guess, the other -- I guess investigators they were working with. And they put in the wrong plants. But it's not like that they were not trying to fix the problem. Because obviously you could tell they've been putting plants in, but just the wrong ones. MR. LARSEN: I just want to be clear. MS. MARTINEZ: But yes, yes. MR. LARSEN: Do you understand why you're here today? MS. MARTINEZ: Yes. MR. LARSEN: Did you hear Ms. O'Farrell's testimony that it's because it was in excess of one acre by a certain amount because that was cleared in the back? And that's why the violation is being presented to the Board today. MS. MARTINEZ: Yes. MR. LARSEN: All right. I just want to make sure you understand what -- MS. MARTINEZ: Right. MR. NODARSE: (In English) I'm sorry for that. MR. LARSEN: It's fine. MS. MARTINEZ: We were not aware that he wouldn't clean more than one acre. I mean, we figured he bought two acres and -- two acres and some, but we weren't aware that he could only use of his property one acre. MR. LARSEN: Thank you very much, Mr. Chairman. CHAIRMAN LEFEBVRE: Any other questions? MS. O'FARRELL: I would like to make a statement. The Nodarses were told several times by Marlene Serrano, who also speaks Spanish, what the violation was. She negotiated with them for saw palmettos, which would have been the primary plant there and the ten slash pines, which would have been the secondary. So I believe they knew what plants they were supposed to plant. Page 49 November 20, 2008 And also the fact that they planted those queen palms in a straight line would not have been something that would have been told to them by an environmental investigator or supervisor. MR. L'ESPERANCE: Thank you. MS. O'FARRELL: So I understand them saying that they didn't recognize that they had the violation. But then when they were given many opportunities to abate it, they did not. CHAIRMAN LEFEBVRE: Any other questions? MR. LARSEN: Make a motion. I move that a violation of ordinance 04-41 as amended by the County, County land development code, Section 3.05.01(B) did, in fact, exist. MR. DEAN: I'll second that motion. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Motion passes. A violation has been found. MS. O'FARRELL: We have a recommendation by the County that will be passed out by Ms. Waldron. CHAIRMAN LEFEBVRE: Did you say that there was a mitigation plan prepared previously? MS. O'FARRELL: The mitigation plan was not prepared by an environmental consultant. It was negotiated between the investigators and the supervisor and the Nodarses. Page 50 November 20, 2008 I can honestly say I was not the investigator at the time. I'm going by the records that were being kept by those investigators involved. MR. KAUFMAN: Is this recommendation more than the original agreement was for? MS. O'FARRELL: Yes, it is. MR. KELLY: I would like to take a stab at it, if you'd like. MS. O'FARRELL: May I just make a statement real quick? No; closed? CHAIRMAN LEFEBVRE: Go ahead. MS. O'FARRELL: The mitigation report that -- the mitigation that was approved by the general investigator or the supervisor I think more reflected what the property actually looked like. And I also believe that it was given in good faith and given with enough time to submit it. CHAIRMAN LEFEBVRE: Okay. Go ahead, Mr. Kelly. MR. KELL Y: That the CEB order the Respondent to pay all operational costs incurred in the prosecution of this case within 30 days of the date of this hearing in the amount of $86.43. Number two, that the Respondent abate all violations by planting and ensuring 80 percent survival within two years of ten slash pines and 30 saw palmettos or a fine of $50 per day will be incurred for every day thereafter the violation is not abated. Number three, if the Respondent fails to abate the violation the County may abate the violation and may use the assistance of the Collier County Sheriffs Office to enforce the provisions of this order. Number four, the Respondent must notify Code Enforcement Investigator when the violation has been abated in order to conduct a final inspection to confirm abatement. CHAIRMAN LEFEBVRE: Did you mention anything about the plants surviving over a period of time? MR. KELLY: I did. In that case it was 80 percent survival Page 51 November 20, 2008 within two years. MS. O'FARRELL: Could you please clarify something for me, Mr. Kelly? MR. KELLY: Sure. MS. O'FARRELL: The mitigation report needs to be submitted within how many days? MR. KELL Y: I didn't put a mitigation report since that was what the County had already talked about with the Respondent. I'm figuring we can just put that into the order and save them the money of getting an environmental specialist. MS. O'FARRELL: Okay. So, I guess, my question is that if that mitigation was negotiated by the County, would there be a certain number of days or shall we just take that part of the recommendation? MR. KELLY: Oh, I apologize. I don't think I put a time frame. MS. O'FARRELL: Right. MR. KELL Y: Yeah, I didn't. If it pleases the Board, let me amend that motion to include a time frame of 120 days. MS. O'FARRELL: For the mitigation negotiation to be submitted? MR. KELL Y: To have everything planted and completed. MS. O'FARRELL: Okay. MS. MARTINEZ: Excuse me. So I need somebody to explain this to me, like, in simpler words. MR. KELLY: Let us get it finished. MS. MARTINEZ: Okay. MR. KELLY: Because we're working out the details and we'll absolutely explain it to you. MS. MARTINEZ: Okay. Okay. Thank you. MR. KELL Y: Susan, would you be willing to also help them with how to plant the vegetation? MS. O'FARRELL: Yes, I will. CHAIRMAN LEFEBVRE: 120 days we're at the cusp of going Page 52 November 20, 2008 into the dry season. And when these things are planted, it's going to be, let's say, hypothetically March or so, which is still very much a dry season. MR. KELL Y: This is true. If it please the Board, we obviously can change that time frame. MR. L'ESPERANCE: Okay. Go for it. CHAIRMAN LEFEBVRE: Maybe six months, 180 days. And that way they'll be catching the beginning of the wet season, rainy season. MR. KELLY: Well, 180 days is still May. It's still dry. MS. O'FARRELL: I'm sorry. Four months would be March. Six months would be May. MR. DEAN: Still dry. MS. O'FARRELL: And I would go with seven months so that June is actually -- we'll really be into the wet season. MR. KELLY: In that case, 1'11 amend again to include a time frame of seven months. MR. LARSEN: That would be 210 days. MR. KELLY: 210 days. MS. O'FARRELL: And that would be for the whole mitigation and planting? MR. KELL Y: To have everything completed. MS. O'FARRELL: Okay. MR. LARSEN: Could you clarify as to exactly what it is that they are supposed to do in regards to planting? MR. KELLY: Yes. They're to plant ten slash pines and 30 saw palmettos. MR. LARSEN: Okay. MR. KELLY: And the details of the size can be worked out with the County's investigator. MS. O'FARRELL: The original plan was for 30 gallon saw palmettos and the slash pines we could do eight to ten feet tall so that Page 53 November 20, 2008 they would have a better survivability. MR. KELLY: Let's put that right in the order then. MS. O'FARRELL: Yes. MR. KELLY: Eight to ten-foot slash pines and 30-gallon saw palmettos. Jean, are you getting all this? MS. O'FARRELL: 30 three-gallon. MR. KELL Y: 33-gallon? MS. O'FARRELL: 30-gallon slash palmetto would be humungous. And then the $50 fine. $50 for the whole thing? MR. KELLY: $50 per day after the 210 days. CHAIRMAN LEFEBVRE: Does everyone have that? MR. KELL Y: I tried to simplify it. I don't think it came out that way. MR. KRAENBRING: You did a good job. CHAIRMAN LEFEBVRE: Do I hear a second? MR. DEAN: I'll second the motion. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELL Y: Aye. CHAIRMAN LEFEBVRE: Motion passes. MR. KELLY: Shall I explain it? CHAIRMAN LEFEBVRE: You can explain it because I didn't jot down notes. MR. KELLY: Okay. Within seven months you're to plant ten Page 54 November 20, 2008 slash pine trees eight to 10- foot high, 30 three-gallon saw palmettos. It's important that those plants survive at a rate of 80 percent for two years. Okay. And then within 30 days make sure you pay the operational costs of $86.43. MS. MARTINEZ: Where do I pay that to? MR. KELLY: You can talk to Code Enforcement. Susan will help you. MS. MARTINEZ: Okay. MR. KELL Y: And, also, if you run into a problem somewhere along the way, it's good to communicate back with us. MS. MARTINEZ: He wants to know -- he wants to know the saw pines could be maybe -- MR. NODARSE: (In English) I have a rock -- a rock in my line. MS. MARTINEZ: If they could be a little bit smaller. MR. KELL Y: They have to be eight to ten feet and you're going to have to talk with Susan about where to plant them. What we don't generally want is them all in one cluster or one row. MS. MARTINEZ: Right. MR. KELL Y: She's going to explain how to kind of put them in. MS. MARTINEZ: Okay. That works. That works. CHAIRMAN LEFEBVRE: Great. Thank you very much. Have a good day. Next hearing will be BCC versus Mencia's Restaurant, Inc., CEB number CESD 20080014639. MR. ESPINOZA: Could I be sworn in as translator and representative also? CHAIRMAN LEFEBVRE: Okay. Great. Thank you for telling us. (Mr. Espinoza was sworn to translate from English to Spanish and Spanish to English.) (Speakers were duly sworn.) Page 55 November 20, 2008 MS. WALDRON: This is reference to department case number CESD 20080014639, BCC versus Mencia's Restaurant. For the record, the Respondent and the Board was sent a packet of evidence and we would like to enter the packet of evidence as Exhibit "A". CHAIRMAN LEFEBVRE: Do I hear a motion? MR. KELL Y: Motion to accept the packet. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KRAENBRING: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. MS. WALDRON: Violation of ordinance Collier County code of laws and ordinances, Chapter 22 buildings and building regulations, Article II, Florida Building Code, as amended, Section 22 through 26[b][104.1.3.5],[106.1.2],Florida building code 2004 edition, Chapter 1 permits, Section [105.1] and 04-41, Collier County land development code, as amended, Section 10.02.06 [B][l][e], and 1 0.02.06[B][1][ e ][i]. Description of violation: Removal of sections of a firewall without permits. A DJ booth constructed on the interior of the structure without permits. A gas stove with a hood and a cooler installed without permits. Electrical work throughout building completed without permits. Location/address where violation exists: 205 to 209 West Main Street, Immokalee, Florida 34142. Name and address of owner/person in charge of violation Page 56 November 20, 2008 location: Mencia's Restaurant, Inc., Juan Acevedo, P.O. Box 1648, Immokalee, Florida 34142 as registered agent. Mencia R. Acevedo, 710 Oak Street, Fairlawn, New Jersey 07410. Juan Acevedo, 205 West Main Street, Immokalee, Florida 34142. Date violation first observed: September 19th, 2008. Date owner/person in charge given notice of violation: October 7th, 2008. Date onJby which violation to be corrected: October 26th, 2008. Date of reinspect ion: October 29,2008. Results of reinspection: The violation remains. At this time I would like to present the case to Kitchell Snow. MR. SNOW: Good morning. For the record, Kitchell Snow. That's spelled K-i-t-c-h-e-l-l S-n-o-w. This concerns case number CESD 20080014639. It's remodeling additions without permits. Folio of the property in question is 2558060002. Service was given on 10/7. The property was posted and registered mail was gIven. And let me first start off by saying this a health and safety issue. The paramount issue here is the concern for the safety. We do have a packet of photographs we'd like to submit. We can consider it Exhibit B-1 through 9. And we also testify that these photographs are a true and accurate representation of the property as it was at the time of the photographs. CHAIRMAN LEFEBVRE: Do I hear a motion? MR. LARSEN: Has the Respondent seen it? CHAIRMAN LEFEBVRE: Yes, sir. I showed Mr. Acevedo the MR. KELL Y: Motion to accept the photos. MR. KRAENBRING: Second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. Page 57 November 20, 2008 MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Motion passes. What's the date of these photos? MR. SNOW: They were taken on the 26th. CHAIRMAN LEFEBVRE: Of October? MR. SNOW: Of September, sir. As you can see, the first photograph you're going to see is -- it's no fault of the Respondent's. But a vehicle ran through the front of that. And that's initially how all this started. We do normal task force meetings with Collier County Sheriffs with the community policing and they alerted that this might be a permitting issue. So we went to the property -- myself, my investigator from Immokalee -- with the Sheriffs Office, Corporal Mike Taylor, who will testify as an expert witness here shortly about the health and safety issue of this property. And then we looked and we noticed several things on the property. And as you can see throughout, there's just -- they have massive intrusion of the firewall. It was originally permitted as two separate suites. And 1'11 submit as evidence the original property card here shortly. You see massive electrical work. I didn't even want to go in the bathroom it was so bad. And that wasn't -- that's not a health and safety issue. The main health and safety issue is when the car struck the original -- the building, there was possibility of structural damage. Page 58 November 20, 2008 But it moved a gas stove and they continue to operate. When I went in, I initially told Mr. Acevedo I was very, very concerned about having citizens in this with all these health and safety issues. And they continue to operate today. I don't think that we should allow them to operate. I don't think he should be operating until he's got his permits and all his inspections and COSo I think it's a severe health and safety issue for this community . As you can see by the photographs, I think that clearly states that. I'd like to submit into evidence the property card, which is -- you already have it. We'll go for Exhibit "C" on that 1 through 4. If you look on that property card -- CHAIRMAN LEFEBVRE: Has the Respondent seen this? MR. SNOW: The property card, no. I can show it to him. For the record, on here if you will look on the -- CHAIRMAN LEFEBVRE: Motion. MR. KELLY: It's already been accepted. MR. SNOW: On the first page you'll notice the structure that there is an interior firewall. There's two separate structures. There's two separate suites in there. In the time -- sometime when it was built and today that was -- the intrusion was made in there. Also, if you look on there, it's got a very comprehensive record on the property owners. There's only been one permit on there. I know there's sometimes a question about some permits in Immokalee, but this is a very thorough property card. It has a lot of information on it. I don't think any permits have ever been pulled, other than the original one. I checked CD Plus. There's been no permits pulled, other than one for a fire suppression system in 2003, which was never COed. It was canceled. Again, I just have severe reservations about letting this business operate as it currently is. I don't think it's even remotely safe for the Page 59 November 20, 2008 citizens of Immokalee. MR. LARSEN: Mr. Chairman, may I ask Investigator Snow some questions? CHAIRMAN LEFEBVRE: Yes. MR. LARSEN: For the record, Investigator Snow -- Supervisor Snow. I'm sorry. I apologize. The first page you identified as the front of the building after an automobile ran through? MR. SNOW: Yes, sir. MR. LARSEN: Okay. And you've got some wood up there, which, I guess, is secured in place? MR. SNOW: Yes, sir. One of the questions I asked, sir, not to interrupt you, was I had talked to one of the original contractors. And he had some reservations about the structure being safe. And we did, too. If you look at one of those photographs back by where one of the condensers is, you see the building is cracked. MR. LARSEN: Well, we'll get there. MR. SNOW: I'm sorry. MR. LARSEN: The second photograph seems to be some construction inside with a monitor of some sort, a hand truck, and a couple of speakers. What is that picture? MR. SNOW: That's a DJ booth, sir. MR. LARSEN: And after looking at the property card, was that a permitted addition to -- MR. SNOW: No, sir. MR. LARSEN: All right. MR. SNOW: Keep in mind, sir, this is supposed to be a restaurant. MR. LARSEN: All right. So, in your opinion, what is the status of this DJ booth? MR. SNOW: That's an illegal addition, sir. Page 60 November 20, 2008 MR. LARSEN: All right. Going on to the third photograph. It seems to be a stand-alone air conditioner of some sort; is that correct? MR. SNOW: It looks like a condenser to me, sir. MR. LARSEN: Okay. And what's the importance of this photograph? MR. SNOW: Well, sir, if you look on the top of that, that's the coiling from around -- that goes through the wall. I don't know of anything they could possibly permit. And they've got electrical hooked up there some way and I don't --like I say, there's so many things, as far as electrical, that's going on with the side of that and the interior of that. We have no way of knowing is that even permittable as it is. MR. LARSEN: All right. But it's your contention that this is a violation, as well? MR. SNOW: That's illegal, sir, yes. MR. LARSEN: Were you making reference to any of the cracks in the side of the building? MR. SNOW: Yes, sir. If you'll look above that, I'm not sure whether that happened because of the intrusion of the vehicle in front of that property. But structurally that doesn't seem real sound to me. I'm not a structural inspector, but I have grave concerns about this. MR. LARSEN: Going on to the next photograph, it seems to be an interior view with a column painted black and it looks like a walk-in box. MR. SNOW: Yes, sir. MR. LARSEN: What's the importance of this photo? MR. SNOW: Sir, that's an intrusion into the firewall. There's an intrusion into the firewall in two areas there. MR. LARSEN: Well, when you say intrusion, you mean the firewall was moved partially? MR. SNOW: It was cut. MR. LARSEN: It was cut? Page 61 November 20, 2008 MR. SNOW: It was cut and allowed intrusion into both suites, SIr, yes. MR. LARSEN: So what is your position in regard to -- is that allowed; is that not allowed? MR. SNOW: No, sir. It's never been permitted to do that. There are certain instances when you could be allowed to make an intrusion, but it has to be -- you have to have a permit for it. They call it the missing wall. I'm sorry, sir? MR. LARSEN: What's the danger? MR. SNOW: If the fire is going to go from one suite to the other. MR. LARSEN: The next photograph is the same thing of an interior with another black column. Is that for the same purpose? MR. SNOW: Yes, sir. MR. LARSEN: And that just shows a different perspective on it? MR. SNOW: Yes, sir. And probably if you look at that photograph in the rear you're going to see a cooler again. That's never been -- there's no permits for it. It's never been -- MR. LARSEN: You're talking about the two-door cooler in the back? MR. SNOW: Yes, sir. Yes, sir. MR. LARSEN: All right. And then the next paragraph -- photograph we seem to have another outside view of electrical service? MR. SNOW: Yes, sir. MR. LARSEN: What's your complaint about this? MR. SNOW: Never been permitted, sir. We don't even know what the load of that structure is, what's allowed in there, and we need an electrical. MR. LARSEN: So there were no electrical permits ever pulled on this property? MR. SNOW: Only on the original one, sir. And as you can see, Page 62 November 20, 2008 there's a lot of additions in there. MR. LARSEN: So it's the additional electrical service? MR. SNOW: Yes, sir. MR. LARSEN: And the next photograph seems to be more conduits? MR. SNOW: Yes, sir. More conduits, additions, an electrical added without permits. MR. LARSEN: Next photograph, what's that? Same thing; more conduits? MR. SNOW: Same thing, sir. We're following a path. MR. LARSEN: These conduits are -- were not permitted? MR. SNOW: Added illegally, yes, sir. MR. LARSEN: And then, finally, the last photograph seems to be some wiring. What's that? MR. SNOW: Sir, that's the main electrical coming into it. As you can see, there's disconnects up there and there's other connections up there. There actually was a wire hanging down from that that appeared to be -- I don't know what it was attached to. And he told me he would pull it down and it was live. I know it was live coming on the electric because I saw the meter move. And I advised him to get away from it and don't pull it, so -- MR. L'ESPERANCE: I have one question. Is that prior or after the meter? MR. SNOW: I'm sorry, sir? MR. L'ESPERANCE: These photographs -- MR. SNOW: Oh, those are prior to the meter. MR. L'ESPERANCE: Prior to the meter? MR. SNOW: Yes, sir. MR. L'ESPERANCE: I wanted to make that clear. MR. SNOW: Yes, sir. MR. LARSEN: Now, with the property card there is a schematic on the front first page of the property card. Do you have that in front Page 63 November 20, 2008 of you? MR. SNOW: Yes, sir, I do. MR. LARSEN: All right. Now, there evidently is some marking with a line down the middle which represents that wall you were speaking of; is that correct? MR. SNOW: That is correct, sir. MR. LARSEN: All right. And is it your contention that that wall was the one that was partially removed in the photographs? MR. SNOW: That is my contention, sir. MR. LARSEN: And in regard to the permitting, tell me where the permitting would be found on this property card if -- MR. SNOW: Sir, if you look on the second page it says two-- parcel number two, page two. It's got one original permit on there. Normally when there are any additions done to these structures permits are added. And especially in the older system before CD Plus -- prior to CD Plus, which was in the early '90s, this is where they listed all those things on there. And the reason I bring this up is if you look at the ownership on one of these pages, it's very clear and concise about the property, custody of the property going from one to another. And I checked for permits on this property. I checked in every system we have available. And there's never been any permits, other than this one issued. And this was a very vague permit just -- it talks about a storefront. It talks about -- it doesn't mention anything about any coolers, anything else. Our contention is and still remains that there's been many illegal additions on this property. MR. LARSEN: All right. Let me ask you a question. Is there any possibility that some of the non-permitted additions or some of the wiring might have been grandfathered; they might have pre-existed the code? Page 64 November 20, 2008 MR. SNOW: Well, the only thing I would say, sir, is when any additions are done to the property and you're adding, then the normal process would be to bring it up to code. Because, again, we don't know what the loads are in that. And this is massive, massive reconstruction on the interior. And I'll bring Corporal Taylor up in a minute. But we all remember the fire that took place a few years ago in New Jersey when all those folks were caught in the nightclub. This is -- when you're talking about removal of firewalls, that's what that's for is to stop any fire from going over to the next suite. The occupancy in here, sir, is between 31 and 74. He's had in excess of 300 people in this place documented and the Sheriff can testify to that. We're talking health and safety. That's -- we're just-- all we want is this to be legal. We want to protect our citizens. MR. LARSEN: But it's your position that once they started any kind of renovations or any kind of changes to the construction of the building, they were supposed to bring everything up to code? MR. SNOW: Well, they're going to have to bring the electrical up to code. If they're going to do that, they need a permit for the stove up front. The firewall intrusion, that's a permit that's called the missing wall permit. The fire department is going to have to go in there and look at all that, find out is that legal and can they do what they're doing in there. MR. LARSEN: Have you communicated with the fire department? MR. SNOW: I have communication with the fire department. MR. LARSEN: And what's their position? MR. SNOW: They had no comment at this time. MR. LARSEN: All right. So clearly some of the renovations are recent because you could tell from, you know, the photographs? MR. SNOW: Yes, sir. MR. LARSEN: And it's your position that basically at that point Page 65 November 20, 2008 they should have went and got permits and that would have caused an inquiry as to the other electrical load and the other issues that are -- you're addressing here today? MR. SNOW: Well, sir, it's not the County's position to impose any undue burden on any business or any citizens of the County. But to answer your question, when we would go in and look at something -- hopefully an inspector would notify code and say, listen, we've got this going on. And this is -- I think this is a long running thing. I think these additions have been going throughout the years and I think they've been adding and adding and adding. That's what it looks like to me. It's not just one. It's massive. It really is. MR. LARSEN: Right. But that's your testimony earlier that basically -- from your review of the records maintained by the County, there are no permits for any of this? MR. SNOW: None of it, sir. MR. LARSEN: Okay. And you have somebody else to testify? MR. SNOW: Yes, sir. I'd like to call Corporal Mike Taylor to the stand, please. MR. KELLY: Mr. Chairman, if! may. He will need to be sworn m. MR. L'ESPERANCE: I have a question of Supervisor Snow. CHAIRMAN LEFEBVRE: Okay. Great. Go ahead. MR. L'ESPERANCE: Supervisor Snow, have you consulted the Health Department thus far in your investigation? MR. SNOW: The Health Department has been out there. They did get their occupational license for -- to operate as a restaurant. They haven't been in there since this happened. And, I guess, they're waiting for permits or whatever they're going to have to do to fix it up and then they'll come. But as far as they're concerned, they're still operating. MR. L'ESPERANCE: Would it be appropriate to also have Page 66 November 20, 2008 somebody consult the County's structural building department for any of these issues we've been speaking of this morning? MR. SNOW: Yes, sir. We will do that as soon as we get -- and, again, we're just in the process. We're trying to prevent any injuries from taking place and anything. He does have a contractor. I have been in talks with their contractor, so I'm going to assume that they're going to talk to structural before permits are issued. And when we get to our recommendations, we'll discuss some things. MR. L'ESPERANCE: Thank you, Mr. Chairman. (Speaker was duly sworn.) CHAIRMAN LEFEBVRE: If you can state your name for the record, please. CORPORAL TAYLOR: Yes, sir. For the record, I'm Corporal Mike Taylor with the Collier County Sheriffs Office. CHAIRMAN LEFEBVRE: Thank you. CORPORAL T AYLOR: What we want to testify to is just the overcrowding of the -- of the building. If you take a look at the restaurant, it's about the size of the building that we're in right now. You got to add in four pool tables, a couple of gaming machines. And on a couple of occasions we went out on -- in November of last year we counted out over 380 people in a building that should have 31 to 72. CHAIRMAN LEFEBVRE: Today we're not talking about overcrowding. We're talking specifically about the issues here regarding the cooler, the DJ booth, and possible structural issues. But we're not talking about capacity. CORPORAL TAYLOR: Okay. Well, we were doing the health and safety for the law enforcement and that did lead to capacity for us. Because when we have to go into a facility that's got 400 people in it, you've got two law enforcement deputies that had to go into that building, it's a great concern for law enforcement. That's why we're Page 67 November 20, 2008 here to testify now. We had to go in -- on several occasions we had to go into that building with two law enforcement deputies and you got two or 300 people in there. And that's what we're here to testify as for the safety for law enforcement when they have to enter that structure with three or 400 people inside. CHAIRMAN LEFEBVRE: Okay. But today, again, we're not talking about -- CORPORAL T AYLOR: Well, I know -- as far as the cooler and the DJ booth, I can testify that it does have the dance floor, the coolers, and the DJ booth. We have been out on several occasions with code enforcement. I know we went out with them when they have told them that they have to bring it up to the code. And we've been out with the fire department also. And the fire department has been out to the building for the coolers, the dance floor and the DJ booth. MR. LARSEN: I have some questions, Mr. Chairman. CHAIRMAN LEFEBVRE: Go ahead. MR. LARSEN: Deputy Sheriff, where are you stationed? CORPORAL T AYLOR: I'm stationed in Immokalee, sir. MR. LARSEN: Okay. Are these personal observations? CORPORAL TAYLOR: Yes, sir, they are. MR. LARSEN: All right. So you've been actually in the premises yourself? CORPORAL TAYLOR: Numerous times, yes, sir. MR. LARSEN: Okay. And you've been in there during the day and in the evening? CORPORAL TAYLOR: Yes, sir. During the day and in the evening when they have the crowds. I've been there both times. MR. LARSEN: All right. And are these -- what are they operating actually in there? Is it a restaurant, is it a bar, is it a nightclub? What are they Page 68 November 20, 2008 actually doing on the premises? CORPORAL TAYLOR: It appears to be a nightclub. If you go in, they've got a DJ booth. They've got a bunch of people dancing and they've got a little kitchen area. But for the longest, they wasn't serving any food. Code enforcement got on to them about that and now they've got an area set up to serve food. But most of the time you go in, it's the DJ, it's dancing, and a lot of drinking. MR. LARSEN: And how long have you been observing the conditions at this place? CORPORAL TAYLOR: Almost three years now. MR. LARSEN: All right. Have you seen changes to the interior over that period of time? CORPORAL TAYLOR: I can't say that I have, sir. MR. LARSEN: Well, has a DJ booth been added during that period of three years? CORPORAL TAYLOR: From the time I've been going there I've seen the DJ booth. I can't say the DJ booth has been added since I've been going to the building. MR. LARSEN: And this is a routine observation or you've been called out to the premises? CORPORAL T AYLOR: It's both. It's routine and we've been called out to the premises. MR. LARSEN: And has -- and I understand it's a capacity problem and that's not before the Board. But when you've been called out there, has it been because of somebody from the nightclub calling you or some patron of the nightclub calling you or neighbors? CORPORAL TAYLOR: Yes, sir. On numerous times -- if you look at the stack that I've got right here, that's the times that we've been called out to the nightclub for either fights or something else that's occurred inside the restaurant or outside the restaurant or nightclub or bar. Page 69 November 20, 2008 MR. LARSEN: But you've gone into the nightclub on those occasions? That's the real point. CORPORAL TAYLOR: Yes, sir. MR. LARSEN: You've personally seen this yourself; the physical conditions of the nightclub? CORPORAL TAYLOR: Yes, sir, I have. MR. LARSEN: Okay. Thank you, Mr. Chairman. CHAIRMAN LEFEBVRE: Any other questions? MR. KAUFMAN: Question. Do you know whether or not they have a license to sell liquor or beer or wine? CORPORAL T AYLOR: They've got a beer and a carryout. No liquor. MR. KAUFMAN: During your visits, have you-- CHAIRMAN LEFEBVRE: That's not part of -- we're getting beyond the scope of what we're here for. Any other questions of the Board? MR. KAUFMAN: No. CHAIRMAN LEFEBVRE: Thank you very much, Deputy. MR. SNOW: The County has nothing left to present at this time. We request the right to cross-examine and redirect. CHAIRMAN LEFEBVRE: Very good. Go ahead, sir. MR. ESPINOZA: Okay. We're getting back to the violations. I am the general contractor. He's hired me to come in. I mean, he just got this October 7th. I brought it in. As soon as he got this, he called me up. I got my architect out there, Rob Andreas. Rob went out there. We took a look. There -- we brought a structural engineer in because the firewall has been -- they have gone in and disturbed that firewall. But it's nothing that can't be permitted. We've already put -- I just came yesterday because we've been working really fast between the architect, the structural engineer and the electrical contractor. There are numerous violations and we're not denying that. Page 70 November 20, 2008 Unfortunately, when he bought the property, he bought all the headaches that came along with it. All this structural and electrical, the majority of it has been done prior to his acquiring the property. And now that he's the present owner, he's going to have to bring everything up to code and he understand that because I've explained it to him. He's more than willing to do what he has to do to bring this place up to code. So we're presently working on it. We've got our permit. I've already submitted for permit. As soon as we get that, we can start going in there. The structural engineer has already verified that there's plenty of support to carry the weight of the compromised wall. There's just not enough for the upload, so -- CHAIRMAN LEFEBVRE: For the what? MR. ESPINOZA: For the upload, like if a hurricane came and tore off the roof. So we need to secure that, but that's nothing that can't be accomplished. I mean, but other than that, we're in the process of bringing all violations up to code. CHAIRMAN LEFEBVRE: Any idea when you're going to get permits? And then once you get permits, how long is it going to take to complete the work after permits? MR. ESPINOZA: Well, the last time I got a permit here it took about almost a month. And I just submitted it yesterday. From the time we get the permit to the time of completion of work is -- I would say it would be nice to have at least 60 days from the time that we get the permit. MS. WALDRON: Mr. Chairman, can I just ask Jean a question for clarification at this point? MS. RAWSON: Sure. MS. WALDRON: Jean, this gentleman was sworn in as just a Page 71 November 20, 2008 translator. MR. ESPINOZA: I said translator and representative. MS. RAWSON: Translator and representative. MS. WALDRON: Okay. We just wanted to clarify that for-- MS. RAWSON: Well, apparently he's speaking for him as his contractor, too. MS. WALDRON: Okay. I just wanted to clarify that that he was sworn in for that. MR. LARSEN: Can we have the witness then, Mr. Chairman, identify himself once again and the name of his business? MR. ESPINOZA: Jesse Espinoza. Leo Construction, general contractor. CHAIRMAN LEFEBVRE: Any questions? MR. LARSEN: I have some questions, Mr. Chairman. CHAIRMAN LEFEBVRE: Go ahead. MR. LARSEN: You were stating you're licensed by the -- MR. ESPINOZA: The State of Florida. MR. LARSEN: By the State of Florida. Did you have an opportunity to take a look at these photographs? MR. ESPINOZA: I've been out to the site. MR. LARSEN: But the question is: Have you-- MR. ESPINOZA: I saw the photographs, yes. MR. LARSEN: Are these a true and accurate depiction of what the current conditions are out there? MR. ESPINOZA: That is a true and accurate depiction. I mean, that's what's out there. MR. LARSEN: Do you know if any of these conditions were ever permitted before? MR. ESPINOZA: Going through it with him, he didn't realize that the owner before him did not permit the cooler, the -- I guess, it was the stove or the hood. I can't remember which one it was. MR. SNOW: It was both. Page 72 November 20, 2008 MR. ESPINOZA: It was both. MR. SNOW: The stove and the hood. MR. ESPINOZA: Okay. The stove and the hood. That was already there when he bought the place. The DJ booths he put in. The compromised firewall was already like that when he bought it, so -- and the electrical. I mean, that electrical is like forget it. I mean, that thing is old. MR. LARSEN: So the Respondent is not contending that any of that was permitted at any time? MR. ESPINOZA: No, no. He's not saying that -- you know, I told him, hey, unfortunately you bought this place. You bought the headaches that come with it. You know, you want to get these guys off your back, you need to bring it up to code. MR. LARSEN: Now, is the Respondent open and operating the facility right now? MR. ESPINOZA: Yeah, he's still in operation. MR. LARSEN: Okay. Thank you. Mr. Chairman, I have no further questions. CHAIRMAN LEFEBVRE: Any other questions of the Board? MR. SNOW: Mr. Chair, please. I would just like to -- we have one more person to testify. Because of the long history that's been involved in this, I'd like to call Lieutenant Dolan of the Collier County Sheriffs Office. CHAIRMAN LEFEBVRE: Is it in regard specifically to the violations? MR. SNOW: It's concerning the firewall, sir. The intrusion. CHAIRMAN LEFEBVRE: Okay. (Speaker was duly sworn.) LIEUTENANT DOLAN: Hi. For the record, I'm Lieutenant Mike Dolan, Collier County Sheriffs Office. I'm the substation commander for the Immokalee district and I've been in that position for about five years. Page 73 November 20, 2008 I can certify to the Board with regards to the -- specifically to the firewall. In dealing with this bar/lounge for the last three, five years, up to three years ago the firewall was intact. So when he's presenting to you the issue that, gee, I had this place and it came to me when I bought it and the firewall had already been removed, that's not accurate. Up to three years ago the firewall was there. There was nothing but a little door because we had issues with our deputies going from one side of the bar to the other side of the bar. We'd have to funnel through that little door. So if he's presenting to you the fact that he purchased the place with a firewall that had already been removed, that's not accurate. That's something that has been done since he's been -- I don't know how long he's owned the building, but since he's been operating the bar. CHAIRMAN LEFEBVRE: I think it was 2005 he purchased it. 2004 to clarify. MR. LARSEN: Mr. Chairman, may I ask some questions? CHAIRMAN LEFEBVRE: Yes. MR. LARSEN: Are these your personal observations? LIEUTENANT DOLAN: Yes. MR. LARSEN: So you've been in the premises? LIEUTENANT DOLAN: Yes. MR. LARSEN: Okay. So have you taken a look at the photographs? LIEUTENANT DOLAN: Yes. MR. LARSEN: All right. And is this a true and accurate depiction of what the conditions are in the premises? LIEUTENANT DOLAN: Yes. MR. LARSEN: So when you're talking about that firewall, you're specifically referring to -- these photographs would show an absence of perhaps in excess of ten feet across the wall. Page 74 November 20, 2008 LIEUTENANT DOLAN: That's correct. MR. LARSEN: Okay. And prior to that there was a single door? LIEUTENANT DOLAN: Single door. MR. LARSEN: And it had the regular door jamb around it; it wasn't just a -- it was a properly constructed wall? It was a regular wall; it wasn't just a makeshift wall? LIEUTENANT DOLAN: It was a solid concrete block wall that traversed the entire length of the room with the exception of one door entry. And at the time that I saw it, there was no door attached. It was just -- the door had been removed to allow ingress and egress between the two halves of the building. MR. LARSEN: Okay. Once again, your authority is as a commander of the substation? LIEUTENANT DOLAN: Yes, sir. I'm the commander of the Immokalee substation for the entire area of which this bar is part of. MR. LARSEN: And that -- and you first became the commander of that substation or you first were stationed out there when? LIEUTENANT DOLAN: I've been in and out of there for my 27 years with the Sheriffs Office, but I've been the substation commander for the last five years. MR. LARSEN: That would be approximately 2003? LIEUTENANT DOLAN: Yes. MR. LARSEN: Thank you. I have no further questions, Mr. Chairman. CHAIRMAN LEFEBVRE: Any other questions? (No response.) LIEUTENANT DOLAN: Thank you. CHAIRMAN LEFEBVRE: Any other questions? MR. SNOW: No, sir. The County rests. CHAIRMAN LEFEBVRE: Comments? MR. ESPINOZA: Well, just for the record, we're willing to bring it up to code. Page 75 November 20, 2008 CHAIRMAN LEFEBVRE: I'm going to close the public hearing. Any discussion from the Board? MR. KELLY: Make a motion the violation exists. CHAIRMAN LEFEBVRE: Do I hear a second? MR. PONTE: Second. CHAIRMAN LEFEBVRE: Pick one. All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Motion passes. There is -- a violation has been found. And the recommendation? MR. SNOW: Yes, sir. We'd like to pass some of those around. And I'd like the Board to keep in mind the severity of the health and safety issue to the citizens of the Immokalee area and the folks that may go inside this bar. This is a little unusual recommendation, but I think it's appropriate at this time for this particular venue. And the penalty is to ensure that the Respondent understands the severity of the situation and takes care of the situation as quickly as possible without any hesitation. MR. L'ESPERANCE: Mr. Chairman, I have a question of our attorney. Page 76 November 20, 2008 CHAIRMAN LEFEBVRE: Go ahead. MR. L'ESPERANCE: Jean, is it within our purview to issue such an order to include item number one as you see on this recommendation? MS. RAWSON: As long as there's a health and safety issue you have the right to cease the use of occupancy until the permits are obtained. MR. LARSEN: Mr. Chairman, I'd like to make some comments. CHAIRMAN LEFEBVRE: Absolutely. MR. LARSEN: Well, the recommendation by the County is that they cease any use or occupancy on the property until all permits have been obtained with all inspections through a certificate of completion issued. Any use or occupancy not associated with permitted inspections shall result in a $1,000 a day fine. So, essentially, the Collier County Code Enforcement Board is asking us to approve their recommendation, which says that they can conduct no operation, no business on this premises. Now, typically, that would be very deleterious to the owner of the property because there would be no income. They wouldn't be able to pay bills. They wouldn't be able to use their property for which they bought it, which is a fundamental right. But in this particular case, in light of the testimony by the Collier County Sheriffs Office, both the commander, as well as the Deputy Sheriff and the code enforcement official and the fact that the Respondent has not denied any of the allegations, nor has contested that there is a health and safety violation or numerous violations occurring, I feel very strongly that they should not be allowed to operate out of this premises until everything is permitted and inspected. So I would -- I would strongly urge the Board to approve this recommendation. CHAIRMAN LEFEBVRE: Okay. The recommendation actually hasn't been read. Do we need to read that? Page 77 November 20, 2008 MR. SNOW: I can, sir. I can read that into the record. MR. KRAENBRING: Just before you start that, I think the first sentence of the description of violations is actually backwards. It's not the removal of. It would be the restoration of. MR. SNOW: Well, that's a description of the violation, sir, was the removal of. MR. KRAENBRING: Okay. Thank you very much. Appreciate it. MR. SNOW: This concerns department case number CESD 20080014639. The recommendation is the Code Enforcement Board order the Respondent to pay all operational costs incurred in the prosecution of the case in the amount of $90.43 within 30 days of the date of the hearing. And abate all violations by: Cease any use or occupancy on property until all permits have been obtained with all inspections through certificate of completion issued. Any use or occupancy not associated with permitting and inspections shall result in a $1,000 a day fine. I would also like to add that the code enforcement can request the help of the Collier County Sheriffs Office in monitoring the property. And, number two, 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: Any other questions, comments? MR. KELLY: I am not -- I'm not sure the severity has been demonstrated. I think that if this building has been operating under its current capacity for three years and all that happened was a car ran into the front window and the structural engineer said no problem with the existing load, I don't think that we have demonstrated that it is a -- needs to cease operation tomorrow type situation. We already have got the contractor working diligently. Let's give him some time to get that done without any additional harm. Page 78 November 20, 2008 MR. LARSEN: Mr. Chairman, in response, if! may. CHAIRMAN LEFEBVRE: Absolutely. MR. LARSEN: We haven't had a structural engineer testify. That was basically a contractor employed by the owner saying what the structural engineer told him, which -- in light of the fact that they stated that the wall was removed before the ownership by the Respondent, we had contrary testimony by the commander of the substation. I believe it would require us to hear directly from the structural engineer. My concern is basically in a flash conditions could change out there where they could have a number of people utilizing the premises and electrical or something could cause a fire or cause injury. So I understand your concern that we are basically telling the owner of the property that he is not allowed to conduct his business. You know, I feel strongly people should be allowed to operate businesses, except under the most extreme circumstances. And I think in this particular case we have the most extreme circumstances of people violating the County code rules and regulations. MR. KELLY: He was reissued a certificate of occupancy to conduct his business. The health department refused to shut it down and the fire department has refused to find a violation. I just don't think we need to shut down the man's business until it's time. I do agree that we should keep the time very short. But at the same time, I don't think we should cripple him. MR. L'ESPERANCE: Mr. Chairman, I have got a question about fire suppression also. The fire department didn't mention anything about fire suppression inspections. MR. SNOW: I'm sorry. I could testify, if! may. In 2003 they applied for that and they didn't get it. Just for the record, the fire did not -- they had no comment. It doesn't mean they didn't find a violation, sir. That is not exactly accurate. Page 79 November 20, 2008 MR. KELL Y: Right. They didn't find the need to shut down the place either. MR. SNOW: Well, I don't believe they ever went to the place, SIr. MR. KELL Y: Thanks for the clarification. CHAIRMAN LEFEBVRE: Any other comments? MR. KRAENBRING: You say they applied for fire suppression or fire inspection? MR. SNOW: Fire suppression system, sir. MR. KRAENBRING: And they were denied? MR. SNOW: No, sir. It was withdrawn. MR. KRAENBRING: The permit was withdrawn by the -- MR. SNOW: Yes, sir. I don't know, sir. It doesn't specify. MR. L'ESPERANCE: This type of facility, is that required? MR. SNOW: I can't testify to that, sir. I would assume it is in a restaurant. MR. L'ESPERANCE: I don't have any idea. MR. SNOW: Again, occupational licenses are issued on -- they get one zoning certificate. And it is done yearly. They don't do zoning inspections every year. So if they got their occupancy in 2004, which they did, if they added things or subtracted things, nobody else goes on the property. That is done by mail. That's not done by inspection. CHAIRMAN LEFEBVRE: Any other comments from the Board? MR. KELL Y: One more comment. If the Board is inclined to accept the recommendation from the County, I would like one item added to number one under the last sentence where it starts, associated with permitting and inspections. Can we add in there associated with construction, permitting and inspections? They are going to need to have access to do the work. MR. LARSEN: Mr. Chairman, if there is no other comments, I Page 80 November 20, 2008 would like to make a motion. CHAIRMAN LEFEBVRE: Go ahead. MR. LARSEN: In regard to the recommendation by the Collier County Code Enforcement Board in case number CESD 20080014639, I would suggest that we accept the recommendation of the Collier County Code Enforcement Board with the applicable changes to paragraph one, which would include the word "construction" prior to the word "permitting". So it would read: Associated with construction, permitting and inspections shall result in a $1,000 a day fine. Additionally, that we add that the Collier County Code Enforcement Board will work in conjunction with the Collier County Sheriffs Office to insist in monitoring the premises pending the permitting and inspection and all other parts of the recommendation be approved. CHAIRMAN LEFEBVRE: Do I hear a second? MR. L'ESPERANCE: I will second that. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. CHAIRMAN LEFEBVRE: Any nays? MR. KRAENBRING: Nay. MR. KELLY: Nay. CHAIRMAN LEFEBVRE: Do you understand what we just did? MR. ESPINOZA: So he has to shut down until he gets everything up to code? CHAIRMAN LEFEBVRE: That is absolutely correct. Page 81 November 20, 2008 MR. SNOW: Thank you, Board. CHAIRMAN LEFEBVRE: Would you like to take a little break? We'll come back at 25 of. (A recess was held from 11:22 a.m. until 11:37 a.m.) MS. WALDRON: Can I ask to make one amendment? CHAIRMAN LEFEBVRE: Let me call the meeting back to order. Call the meeting of the Code Enforcement Board back to order. MS. WALDRON: Empire Development is working with County staff on a stipulation agreement and have a few things that need to be finalized. So if we could go ahead and go through the imposition of fines and put them at the very end of the agenda. MR. LARSEN: So move. MR. KELL Y: Before we do that, they are number one. MS. WALDRON: They are okay with the imposition of fines. Weare talking about the first hearing that they are not ready for yet. CHAIRMAN LEFEBVRE: The Respondent is sitting-- MR. LARSEN: Make a motion to amend the agenda. MR. SLA VICH: We already came to an agreement, unless something happened in the last 30 seconds. MS. FLAGG: They are ready now. MS. WALDRON: They have reached a stipulation agreement. CHAIRMAN LEFEBVRE: What we are going to do is hear the stipulated agreement and then we will hear from the public at that point. (Speakers were duly sworn.) MR. BALDWIN: For the record, Investigator Patrick Baldwin with the Collier County Code Enforcement. The Board of County Commissioners, Collier County, Florida has reached a stipulation agreement with Empire Developers Group, LLC. This is in reference to department case number CESD 20080014496. Page 82 November 20, 2008 The stipulation agreement reads as follows: Comes now, the undersigned, William Slavich, on behalf of himself or as a representative for Respondent and enters into this stipulation and agreement with Collier County as to the resolutions of the notice of violation in reference case number CESD 20080014496 dated the 20th day of November 2008. In consideration of the disposition and resolution of the matters outlined in said notices of violation for which a hearing is currently scheduled for; to promote efficiency in the administration of the code enforcement process; and to obtain a quick and expeditious resolution of the matters outlined therein the parties hereto agree to as follows: One, the violations noted in the referenced notice of violation are accurate and I stipulate to their existence. The violations are that of sections of the Florida Building Code 2004 Edition, Chapter One Permits, Section 22 through 26, subsection 105.5.5 and 04-41, the Collier County land development code, as amended, Section 4.06.04.A.1.a.vii[a-d] and are described as disturbed land in Vita Tuscana have not been hydro-seeded and are now creating dust. Adequate dust control measures shall be employed by the Respondent to prevent complaints arising from unhealthy, unsafe or damaging conditions. Failure to utilize adequate dust control procedures shall be sufficient cause to order cessation of the work causing such dust and to decline an inspection -- and to decline inspection requests. Therefore, it is agreed between both parties that the Respondent shall, one, pay all operational costs in the amount of $86.71 incurred in the prosecution of this case. Two, abate all violations by, "A", hydro-seeding disturbed land in folio number 00185880006, grade house pads to a four to one slope and level all stockpiled material within four days of this hearing, November 26th, or a fine of$1O per acre, per day will be assessed until the violation is abated or a plans and plat permit is issued. If a plans and plat permit is issued and construction work is not Page 83 November 20, 2008 started by December 31 st, 2008, the Respondent agrees to hydro-seed all disturbed land within 14 days, January 15th, 2009, or a fine of$1O per day, per acre will be assessed until hydro-seeding is finished. "B", grade house pads to a four to one slope and level all stockpiled material in folio 00186000005 within four days of this hearing or a fine of $10 per acre, per day will be assessed until the violation is abated or a plans and plat permit is issued. "C", if the Respondent fails to abate the violations, the County may abate the violation and may use the assistance of the Collier County Sheriffs Office to enforce the provisions of this order. "D", the Respondent must notify the Code Enforcement Investigator when the violation is abated in order to conduct a final inspection to confirm abatement. And this was signed by William Slavich. CHAIRMAN LEFEBVRE: Ours isn't signed. MR. BALDWIN: I believe Ms. Waldron has the original signed copy. CHAIRMAN LEFEBVRE: Very good. Questions? MR. LARSEN: I have a question. Reference has been made to the use of the assistance of the Collier County Sheriffs Office to enforce the provisions of this order. How do you anticipate their use might be utilized? MR. BALDWIN: To let us on the property in case there is a disturbance or people don't want to let us on the property. MR. LARSEN: You don't have the authority to access the premises without the property owners' permission? MR. BALDWIN: We do. But if we -- all ofa sudden we had trucks -- hydro-seeding trucks coming onto the property, I don't think -- they might not feel comfortable if the owner is telling them not to come on the property, unless the Sheriffs Department is available or on site. Page 84 November 20, 2008 MR. LARSEN: I guess I have a question for Ms. Rawson. Can we authorize the Collier County Code Enforcement to utilize the Collier County Sheriffs Office? MS. RAWSON: Yes. We have been doing that a lot lately. Because if the County has to abate the violation because the Respondent did not, the County is precluded from getting on private land, unless they have the authority that comes from the Sheriffs Department. So, yes, you can do it. MR. LARSEN: Okay. Thank you. CHAIRMAN LEFEBVRE: Any other questions from the Board? (No response.) CHAIRMAN LEFEBVRE: Now, would this be the proper time to have the public come up and speak before we -- MS. RAWSON: Probably. CHAIRMAN LEFEBVRE: Very good. MS. WALDRON: Mr. Mayberry. (Speaker was duly sworn.) MR. MAYBERRY: Thank you very much. My name is Gene Mayberry. I'm a resident at Gold Cypress and you can probably detect a considerable level of frustration. This Vita Tuscana project abuts Olde Cypress. And this project has more marrows than any project I have ever witnessed. There was an early work authorization, as you know, that was authorized in June of '07 and it expired in October of '07. And there has been substantial work completed on -- or done on that site without permit, which has caused a lot of dust, erosion, eyesore and a lot of irritants to the community ofOlde Cypress. We have had promise after promise to have this site leveled and hydro-seeded. The first promise came in February of this year from Mr. Slavich to Commissioner Henning and Mr. Ochs and to the community ofOlde Cypress that ifhe did not have his permits by Page 85 November 20, 2008 February that the site would be graded and hydro-seeded. In March the excuse was we did not have rains. In June -- you know, it's just one mar after another mar. The point that I would make -- the first point. I only have two points. The first point is this is another promise. The most recent promise was to -- I believe you folks about four or five weeks ago, as well as to the commissioners, that this site was going to be graded and hydro-seeded by today's date. There has been no work done. The second point I would make is relative to getting a permit and starting work. And as agreement with State, it is to start work. I don't see work continuing on this site very long from the point that there is over a million dollars worth of liens against this property. There is back taxes against this property. As soon as work starts on this project, it will be stopped by creditors or the people that are seeking their money. And then, as I understand, we would have another year and a half for him or Empire Builders to rectify the situation. Gentlemen, enough is enough. We, as citizens of this very proud town, have had it. And we say enforce the code. The code has been violated for over a year. Thank you for your consideration. CHAIRMAN LEFEBVRE: Any questions of the Board? MR. LARSEN: I have a question of Ms. Waldron. Ms. Waldron, we previously issued an order on the 2nd day of October 2008 in regard to this matter? MS. WALDRON: There are two separate cases. There are two separate folios. MR. LARSEN: All right. So the prior order pertained to a separate lot, a separate parcel of property? MS. WALDRON: Yes. MR. LARSEN: It had nothing to do with the parcel of property that we're here on today, which is a separate amount of acreage; is that Page 86 November 20, 2008 correct? MS. WALDRON: Correct. MR. MAYBERRY: I guess I don't understand that. What was the order on the 2nd of October? MS. WALDRON: This property consists of two parcels. And with those two parcels you have to have two separate cases because of the individual parcels. And only one parcel was brought forth to you at the last hearing. MR. MAYBERRY: But that is the parcel that we are talking about? MR. LARSEN: It appears not, sir. And that's why I raised it. Because you had mentioned that about prior Board activity. And this seems to be a separate piece of property that we are discussing here today. MS. WALDRON: And if! can clarify. The piece or parcel, I believe, from the last hearing that you are talking about will be up for an imposition of fines hearing today. MR. MAYBERRY: Okay. For clarification, I believe there is approximately 80 acres in total to be developed under the name of Vita Tuscana. There's currently a parcel of about 40 acres that is -- has been cleared, except for what is under conservation. I think the property that we're talking about, and correct me, Mr. Slavich, that has been cleared is roughly about 29 acres. And that's the same property that should have been up for discussion on the 2nd of October. MR. SLA VICH: If I can speak. The first one that we went to, which the imposition of fines will be today, was for one -- it's divided into two parcels. The first one -- we had a case on the first parcel. That's what we started with from the beginning. There was a little bit of a misunderstanding from the beginning. We had -- now we have both parcels. Today we are only speaking about the second parcel. It's is roughly about 26 acres. The other Page 87 November 20, 2008 parcel is roughly about 18 acres. CHAIRMAN LEFEBVRE: In the other stipulation you stated in the first -- in "A" it was 28 point something acres and the -- MR. LARSEN: Six. CHAIRMAN LEFEBVRE: And then the other one was 18 acres. MR. SLA VICH: Correct. CHAIRMAN LEFEBVRE: Now, the one that is 18 acres is up for imposition of fines. The folio number is the same as "B". So I am a little confused here why we have an imposition of fines and we also have this part of the order. I see the same folio numbers. MS. FLAGG: Members of the Board, the Board of County Commissioners heard this case. When you heard the first parcel number and the NOV in the order that was issued on that first parcel, which is up for imposition of fines today, is -- that one did not include leveling the stockpiles and grading to a four to one slope, which is a motion that was passed by the Board of County Commissioners for both parcels. Therefore, in the stipulation agreement it includes that first parcel that you heard the leveling and the grading, but it does not include the hydro-seeding because the hydro-seeding part for the first NOV is under imposition of fines today. MR. LARSEN: I think this gentleman's concern is about the dust control; is that correct? MR. MAYBERRY: It's about the 28 acres. MR. LARSEN: But your concern is that there is a great deal of dust -- MR. MAYBERRY: It's not only the dust, sir, but the value of our property is also being diminished because the first thing that you see when you drive into the community on the right-hand side -- there is mounds of dirt. And the first question is: What is that? And that dust and dirt blows over the properties in Olde Cypress. CHAIRMAN LEFEBVRE: In the stipulated agreement it doesn't Page 88 November 20, 2008 stipulate the acreage. At least I don't see it in this stipulated agreement, so -- MR. SLA VICH: I think we referred to it as cleared area. CHAIRMAN LEFEBVRE: But I would like to -- we are basing it -- the $10 per acre, per day, but we don't have an acreage amount. So I want to be very clear that if we are imposing fines it's going to be based on an acreage. I want that acreage in this stipulated agreement. MR. SLA VICH: We'll agree to the cleared acreage on the fine amount. Is that what you're asking? You want a number on the exact cleared acreage? CHAIRMAN LEFEBVRE: Well, the original stipulated agreement, if I'm not mistaken, said 28.6 acres -- and correct me if!'m wrong -- and then 18 acres for the other parcel. The folio number 001886000005. Is that correct? MR. LARSEN: Well, the stipulation earlier today indicated in paragraph 2- B that -- grade house pads to a four to one slope and all stockpiled material in the folio up to 18 acres within four days. So I assume that's what the Chairman is referring to? CHAIRMAN LEFEBVRE: That's correct. MR. BALDWIN: Chairman, if we could alleviate the confusion here with "B". That has already been done by the developer. That part of the violation has been abated, if we can alleviate some confusion there with folio numbers and everything. CHAIRMAN LEFEBVRE: Do we have any other parties that -- MS. WALDRON: Diane Ebert. (Speaker was duly sworn.) MS. EBERT: For the record, Diane Ebert. Mr. Slavich has been brought to you in August and his case was continued because he said he was going in front of the BCC trying to get reduction in the transportation COA fees that he owes, which are 409,000. He was going to try and get that cut in half. Page 89 November 20, 2008 So you gave him another 30 days. He said he would be back in September. He never went in front of the BCC in September. October he came back. He said he would get the work done. If you look at the -- your folder, you will see he keeps promising. He has promised this County, he has promised the Commissioners, he has promised everyone what he would do. This is 18 months. When he got his EW A, it's good for 120 days at the most. At that point the EW A should have been voided. And it should have been hydro-seeded. And as of now, December 6th, it should be replanted with 64 trees per acre. The residents of Olde Cypress have really put up with a lot. He keeps telling you what he is going to do and yet he still does not -- from his original thing with the BCC, when they approved his PPL, he has not even come across with that. He does not have the bond money. He does not have the money for transportation. We do not -- the County does not have their easement in case they need to build a bridge in front of this. Ninety percent of the executive summary has not even been filled. He has promised us. We had Joe Schmitt, we had several people out from the County starting in January promising that he would do these things or he is telling them, let's put it that way, what he will do. He has probably promised ten times to bring in the money. He stood in front of the BCC last month and said, well, I didn't get the loan because Lehman Brothers went under. Lehman Brothers just went under last month, not last year when you started this project 18 months ago. He has -- as far as this, we brought this against him. He has so many liens on his property. He has never paid the people that even brought in the dirt. And he's telling you -- he can't even pay $9,500 for people who moved the dirt for the berm. And he is going to tell you he is going to bring in this money. He has promised it so many times. And, I'm sorry, we have seen Page 90 November 20, 2008 nothing. And this case was brought in May and here we are almost in December. And they let him go on for a long time without hydro-seeding because it was a drought last year. They kept saying as soon as the rainy season. Rainy season has come and gone and here we are again with no rainy season. It is just pure frustration. And he has back taxes. And this County should allow nothing until your fees are paid. We pay our taxes. He should have to pay all his things that he owes this County. He should get nothing until everything is paid and he has met his commitments to this County. Thank you. CHAIRMAN LEFEBVRE: Thank you. Discussion? MR. KELL Y: Make a motion that we accept the stipulated agreement. CHAIRMAN LEFEBVRE: Any other discussion? (No response.) CHAIRMAN LEFEBVRE: We have a motion. Do I hear a second? MR. KELLY: We might have some discussion. MR. PONTE: I'm thinking about this. MR. DEAN: I will second. MR. PONTE: I'm not ready to-- CHAIRMAN LEFEBVRE: We have a motion on the table. MR. DEAN: I will second the motion. Now you can open it up for discussion. CHAIRMAN LEFEBVRE: Discussion? MR. PONTE: I'm hesitant to vote for the imposition or the going along with the stipulation agreement, but I don't know what the alternative is. I'm very concerned about the testimony we just heard. MR. L'ESPERANCE: George, I think what the stipulation outlines is if we don't see action by the Respondent, then we are going Page 91 November 20, 2008 to get action by the County enforced by the Sheriffs Department. Am I correct? MR. BALDWIN: Yes, sir. CHAIRMAN LEFEBVRE: Well, what we could do is possibly -- it would take care of some of the apprehension of the residents is shorten the December 31 st time frame. Weare giving him four days MR. PONTE: Yeah. The four days is like one of those promises you can't keep. I can't do anything in four days. I don't know why it's so short. MR. LARSEN: Well, I mean, the stipulation says hydro-seeding disturbed land in the folio, right, grade house pads to a four to one slope and level all stockpiled material within four days of this hearing, November 26th? MR. PONTE: That is over 28.6 acres that you're talking about. You're going to do it in four days? MR. KELLY: They don't plan on doing it. I think they're getting their permit. MR. LARSEN: Or a fine -- and I see the testimony that we had earlier from the gentleman who testified as to the protocol for the permits. Or a fine of $10 per acre. Now, the number of acres at issue is 18 acres? CHAIRMAN LEFEBVRE: 28.6. And 18 acres on the other folio number. MR. LARSEN: Well, let's take the 28.6. That's going to result in, you know, $280 per day or $2,800 per week. Well-- CHAIRMAN LEFEBVRE: That's for ten days. MR. LARSEN: And then basically we'll be assessing until the violation is abated or a plans and plat permit is issued, okay? So say he -- the Respondent gets the plans and permit plat permit. If it is issued, well, then he can proceed as long as construction work is started by December 31 st. Page 92 November 20, 2008 If the construction work is not started by December 31 st, the Respondent agrees to hydro-seed all disturbed areas within 14 days. That would be by January 15th, correct? MR. BALDWIN: Yes, sir. MR. LARSEN: Or a fine of$10 per day will accrue. Now, is that $10 a day in addition to the other $10 a day; how does that work? MR. BALDWIN: That fine $10 a day will be from that day of-- well, it would be from January 2nd until the County abates the violation. MR. LARSEN: All right. Per acre will accrue until hydro-seeding is finished? MR. BALDWIN: Yeah. MR. LARSEN: All right. So are you saying the outside date before the County will take action will be January 15th? MR. BALDWIN: Yes, sir. MR. LARSEN: All right. So one way or another, the problem has to be resolved by January 15th or the County will step in? MR. BALDWIN: Yes. MR. PONTE: What is the completion date? MR. LARSEN: How long will it take to hydro-seed in your estimation? MR. BALDWIN: I'm not an engineer, sir. That question could probably be better directed towards Mr. Slavich over there. MR. SLA VICH: Four or five days. MR. LARSEN: Four or five days? CHAIRMAN LEFEBVRE: The issue I have here is the work is started. I mean, what does work started mean? MR. PONTE: What is the completion? CHAIRMAN LEFEBVRE: He could dig one hole and say, "I started to work," and then stop. MR. LARSEN: Well, let's look at it. It says if a plans and plat permit is issued and construction work is not started by December Page 93 November 20, 2008 31 st. So it's a valid point. What is the County's interpretation of what -- you know, the commencement of construction work means? MR. KRAENBRING: Well, I think when you look at item "D", he has to notify the County when it is completed. That's going to probably be the time line. You know, I have sympathy for the neighbors. And all we really can do is issue the order or agree with the stipulation. And if the gentleman and company are not able to financially meet their obligation, well, then we'll be hearing this again and we'll be imposing fines. But I don't think we have any authority outside of this. MR. PONTE: I think there should be a completion date here. They should agree to a completion date. It is just open ended. It all says start. It never says completed by. MR. LARSEN: And I think that's what the lady was testifying about. Basically they could make a nominal effort and it could go on for, you know, an extended period of time without any oversight or additional County action if they -- I guess, if they basically did some CHAIRMAN LEFEBVRE: I have a question. For a permit that he's going to be pulling for site work, how long is that permit valid for? MR. BALDWIN: That's a good question. The plats and plans permit may be -- Stan Chrzanowski is in the back. He could answer that question a little more clear. It's going to depend on how -- the different inspections and timely fashion that they are -- CHAIRMAN LEFEBVRE: We need to have him sworn in. (Speaker was duly sworn.) MR. CHRZANOWSKI: Weare in the process of extending that because of the economy. We had a time span, I think, of 18 months from the time of construction beginning to the end. But we're extending that by another year because we have so many projects that Page 94 November 20, 2008 are in this same situation. I think that one might have been approved on the last go-round. CHAIRMAN LEFEBVRE: What I'm afraid of is that this does go to permitting, gets permitted, and work starts and stops and he now has 18 months or now 28 months or whatever the case may be, 30 months, to finish the project under the permit. And they are going to have to suffer through another two and a half years when they have already -- MR. PONTE: Already gone a year and a half. CHAIRMAN LEFEBVRE: Already a year and a half. So I think ifthere's something in this order, it should be -- somehow if we can word it or not. I'm not sure if we can. If work commences and then stops for a period he will have to -- I don't know if we can do that. MR. KRAENBRING: Jean-- MR. PONTE: Mr. Chairman, why can't we just put in a completion date to be completed by? CHAIRMAN LEFEBVRE: Well, because he is going to be filing an SDP. MR. PONTE: Yeah. But he is willing to do this in four days. Just give him 30 days to complete it. MR. KRAENBRING: I have a question of Jean. Do we have the authority to supersede this 180 day figure? MS. RAWSON: No. I don't think so. The only thing I think you could do is put some kind of a word instead of is not started, like substantial -- CHAIRMAN LEFEBVRE: Completion. MR. KRAENBRING: Progress. MS. RAWSON: Something like that. MR. LARSEN: Right. But that is subject to interpretation. MR. PONTE: Substantial is rather -- MS. RAWSON: It is, but it's better than is not started. Page 95 November 20, 2008 MR. SLA VICH: Is your concern the hydro-seeding being completed, sir? Your concern is -- MR. PONTE: My concern is that there isn't a completion date here. MR. SLA VICH: A completion date for the hydro-seeding or for the infrastructure? MR. PONTE: To correct the problem. MR. SLA VICH: Well, the problem, as it stands today, without a permit is hydro-seeding. I will be more than happy to put a completion date in there. Just so that you know, we have already signed over our cash bond to the County to -- in the event we didn't hydro-seed, then the money was available for them to hydro-seed. So if you want to put a completion date for the hydro-seeding, I don't -- other than within the next four days, I don't have any issue with that. I don't believe that you can put a completion date of my infrastructure work. MR. PONTE: No. MR. SLA VICH: But completing of the hydro-seed -- if you even want to put in there completed by December 31 st, I have no issue with that, instead of January 15th. If you want to shorten that time frame up, I'll be more than happy to sign that. Or, as I had mentioned earlier, we've already signed our cash bond over -- a release of that -- to the County in the event that we don't do the hydro-seeding or the grading of the four to one. I'm not going to really get in and argue about what Mrs. Ebert or Mr. Mayberry said because there is a lot of differences of opinions and factual law. But if you want to have that by the end of the year, I have no problem with that. And have that as a completion date. In the event we don't do it, then the County can do it with our bond money. MR. PONTE: County's position on that; December 31st? MR. BALDWIN: I have no objections to that, sir. MR. LARSEN: I'm a little unclear about what everybody is Page 96 November 20, 2008 agreeing to. MR. SLA VICH: The hydro-seeding. MR. LARSEN: I understand. But it states in the agreement evidently worked out before, if a plans and plat permit is issued and construction work is not started by December 31 st, the Respondent agrees to hydro-seed all disturbed areas. I interpret that to mean if you got a plans and plat permit you would not hydro-seed. MR. SLA VICH: That's correct. MR. LARSEN: Now, you're agreeing to hydro-seed? MR. SLA VICH: I'm agreeing to hydro-seed if we have not started construction. MR. LARSEN: But the question is basically what constitutes starting construction. MR. SLA VICH: Well, you file a notice of -- new notice of commencement on the job is typically what you -- what is defined as starting construction. And when there is five or six bulldozers and backhoes on the job, I believe that would be starting construction. We can take a picture. And they are going to be out there for the duration, along with two houses under construction. MR. LARSEN: Right. I think the concern of the residents is that basically even if you started construction, there's still going to be a certain amount of dust floating over their neighborhood. And if a certain part of the parcel is not going to be used for construction during that period of time, is it possible to hydro-seed the part that you were not going to be actively constructing? MR. SLA VICH: We will -- we will be more than happy to abide by the LDC, which is if your lots are up to grade, which is road height, which you're not going to terminate until your road is in, which is the last thing to go in because you have to put everything under that first. That if our lots are graded to road height or ready to start construction on and we haven't started construction on, then we would hydro-seed them because that would be a measure of dust control, yes. Page 97 November 20, 2008 We had discussion -- long discussion about if we hydro-seed five acres or six acres or ten acres of the site while you're working on the other. We have a short -- we have a schedule that we're doing infrastructure in and to build houses. We have signed proposals and performance bonds put in place by the subcontractors to do that work. So there are going to be a tremendous amount of people on that site working. And, you know, as I said, we will go by the LDC. And that's really what dictates to developers on what you're supposed to do. MR. LARSEN: Thank you, sir. MR. BALDWIN: Once the permit is issued there are other dust control measures that can take place, as well. Once the active permit . . IS gomg. MR. LARSEN: Thank you. Thank you, Mr. Chairman. MR. KELLY: Let me reaffirm the motion and also add that I don't think it's our place on the Board to change the LDC. If he gets the permit, that's kind of what -- you're stuck with the LDC. MR. LARSEN: I agree with that. I think that basically the LDC is what he has to comply with. I'm not sure we can put in a separate interpretation of what we believe to be start construction or actively engaged in the construction process. And that's my concern. Is that basically if we started to do that, we would be in conflict with other ordinances, rules and regulations. CHAIRMAN LEFEBVRE: All right. Can you add in the 28.6 acres for the first folio and 18 acres for the second? MR. KELLY : Yeah, if I can. But I would like to clarify. Is it 28.6 acres that have been cleared or is there a portion of that that is part of the preserve? MR. SLA VICH: The total acreage is around 43 acres, which would be the two. And roughly -- I don't have that exact amount of acreage. But I would say it's probably close to 26 or 27 acres that Page 98 November 20, 2008 have been cleared. A small portion of that is two lakes. If you took the entire cleared area, I wouldn't -- I'm not going -- I wouldn't argue over one or two acres. So you can call it 28 acres if you want to. That's fine. MR. KELL Y: Fair enough. MR. PONTE: Please clarify for me where we are. We have the Respondent who has agreed to a completion date of December 31 st. The County has agreed to a completion date of December 31 st. Read the amendment -- the proposed amendment. Are you going to have a completion date? MR. KRAENBRING: I think, George, that we should, my opinion, leave it where it is. If you want to add the acreage in -- MR. PONTE: The acreage is not my concern. My concern is completion of the project. MR. KELLY: We can't change the land development code. MR. PONTE: Does the land development code prohibit putting a date in there? MR. KELLY: We certainly couldn't -- MR. PONTE: It's not my intention to change the land development code. MR. KELL Y: I think the way it is worded -- the way it is worded, once you start construction, they allow you to have barren land because you're running over it, destroying it and earth working. If you were to hydro-seed that area and then dig it up and have to hydro-seed again and then dig it up, it doesn't make sense for builders. So the land development code gives them a window of time in order to do what they need to do without hydro-seeding. MR. PONTE: And what is that window? MR. KELLY: Well, unfortunately, sir, I think it is quite lengthy. But it is beyond the jurisdiction of our Board. We can't go and change the code itself. MR. LARSEN: I don't think Mr. Slavich is agreeing to that. Page 99 November 20, 2008 MR. SLA VICH: Agreeing to? MR. PONTE: December 31st completion date. MR. SLA VICH: We need to clarify that. I agree to December 31 st completion date of the hydro-seed in the event we do not pick up our permit, yes, sir. MR. PONTE: That's what I'm talking about. MR. SLA VICH: I will be more than happy to agree to that on the record. We can change the agreement if you want, sign that. MR. PONTE: That's precisely what I was talking about. MR. SLA VICH: Okay. MR. KELLY: In that case, let me attempt to amend the original motion. MS. FLAGG: November 26th is when he has to hydro-seed by. MR. KELL Y: Correct. Unless he gets the plans and plat permit. MR. SLA VICH: Unless we haven't started construction. I think the way it said that if we have not started construction by the 31 st, then we would have hydro-seeding finished by the 15th. If you're trying to shorten that time period up, then what you might want to say is if we haven't started construction by December 15th, then we'll have the hydro-seeding by December 31 st. If that works for you, that is fine with me. MR. LARSEN: Right. That's paragraph 2-A where it states: Respondent agrees to hydro-seed all disturbed areas within 14 days, January 15th, 2009. And what you're saying, sir, is you will agree to shorten that from January 15th down to December 31st? MR. SLA VICH: Correct. MR. LARSEN: All right. And that's the only thing you're agreeing with; you're not agreeing to do anything with regard to time constraints on the construction or once you get your plans and plat permit in regard to hydro-seeding the undisturbed areas or areas other than what you're actively constructing? Page 100 November 20, 2008 MR. SLA VICH: What we agreed to is that we would abide by whatever is in the LDC and our permit. MS. WALDRON: Can I just clarify something? I see where you guys are going. But if you look at 2-A in here, the November 26th date, that is for ifhe does not pick the permit up. Just so we are all on the same page with this. Correct? MR. SLA VICH: Right. The concern was if we picked our permit up and didn't do anything for six months, eight months, if it gets extended to 18 months, whatever. I have no interest in paying a tremendous amount of interest on money that's sitting down there not doing anything. So we are going to put people to work. And if you want to shorten the time frame from the 15th down to hydro-seed it, if we don't start construction, to December 31 st, I'll be more than happy to agree to that. MR. KELLY: Okay. Amend my initial motion. In part2-A the second date would be changed from December 31 st to December 15th. And the Respondent agrees to hydro-seed all disturbed areas within 14 days of that date, bringing it to December 31 st. And also we're adding the amount of acreage to 28.6 acres. CHAIRMAN LEFEBVRE: And 18 on the other one. MR. KELLY: And 18 on part "B", which has already been abated anyway. Larry, do you want to -- MR. DEAN: I will second that motion. CHAIRMAN LEFEBVRE: Anymore discussion? (No response.) CHAIRMAN LEFEBVRE: Do I hear -- MR. KRAENBRING: Take a vote. CHAIRMAN LEFEBVRE: All in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. Page 10 1 November 20, 2008 MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Motion passes. MR. SLA VICH: Thank you. CHAIRMAN LEFEBVRE: The next one would be a motion for imposition of fines and liens. BCC versus Empire Developers Group, LLC. CEB number -- MR. LARSEN: Mr. Slavich. CHAIRMAN LEFEBVRE: We have imposition of fines. MR. SLA VICH: Okay. CHAIRMAN LEFEBVRE: CEB number CESD 20080007919. Do you know if Ms. Ebert would like to speak on this, too? MS. WALDRON: I'm assuming not. She is not here, but -- CHAIRMAN LEFEBVRE: I'm not sure if she knew -- MS. EBERT: On which parcel? MS. WALDRON: We'll let you know. CHAIRMAN LEFEBVRE: This is on the case that we heard last month? MS. WALDRON: Yes. CHAIRMAN LEFEBVRE: Last month. I just want to make sure that we cover our bases. MS. WALDRON: There are some corrections I'm going to read through. CHAIRMAN LEFEBVRE: Go ahead. MS. WALDRON: We have had to change some amounts. In reference to code enforcement case number CESD 20080007919. For Page 102 November 20, 2008 the record, the Respondent is present. On September 25th, 2008 the Code Enforcement Board issued a finding of fact, conclusion of law and order. And that order is attached for your review. The Respondent was found in violation and the Respondent has not complied with the Board's orders from September 25th, 2008. At this time the County is recommending imposing a lien for the fine at a rate of $180 per day for the period between October 10th, 2008 to November 3rd, 2008 for a total of24 days in the amount of $4,408.43. Operational costs of $88.43 have not been paid. CHAIRMAN LEFEBVRE: Okay. It hasn't been complied with. I didn't notice that before. If it had been complied with, then we could have a discussion. But do I hear a motion? MR. LARSEN: Well, Mr. Chairman, I see that they have an affidavit of noncompliance by code enforcement official Patrick Baldwin. Is there any other testimony, evidence by the County in regard to the noncompliance? CHAIRMAN LEFEBVRE: He needs to be sworn in again. (Speaker was duly sworn.) MR. BALDWIN: Yes. As of yesterday, the property still was not in compliance with the Board's order at the last meeting. MR. LARSEN: What is -- what do you mean by not in compliance? What was ordered and what was not -- MR. BALDWIN: All the disturbed land with that folio number -- I believe the folio number is 00186000005. All the disturbed land in that folio number should have been hydro-seeded. It has not been. MR. LARSEN: All right. When did they have to -- what date did they have until to hydro-seed? I am looking at the order. It says October 9th, 2008. Is that Page 103 November 20, 2008 correct? MR. BALDWIN: Yes. MR. LARSEN: And you personally observed no hydro-seeding? MR. BALDWIN: Yes. CHAIRMAN LEFEBVRE: Any other questions? MR. KELL Y: I make a motion to impose the fines. MR. PONTE: Second. MR. LARSEN: Mr. Slavich, do you have anything to say? MR. SLA VICH: Other than I apologize to the Board. I wasn't at that meeting. And there was just a misunderstanding. We thought that it was starting hydro-seed because we had started by that date. Obviously it was completing hydro-seed. Weare in violation and we'll pay the fine. CHAIRMAN LEFEBVRE: I have a motion and a second. MR. PONTE: I second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. MR. SLA VICH: Thank you. MR. KELLY: And if I could add to the County that they push forward on having the County hydro-seed in response to this time. In this particular case, it doesn't matter what the condition of the permits are on the property. He signed an order stating that he would hydro-seed regardless of what he was doing to the property. MR. LARSEN: I'm sorry, Mr. Kelly. Your comment was that basically the County is to hydro-seed now? Page 104 November 20, 2008 MR. KELL Y: That's what my suggestion would be. It's up to staff to decide what to do with it. CHAIRMAN LEFEBVRE: We'll move on to the next one. BCC versus Patriot Square, LLC., CEB number 2007060341. (Speakers were duly sworn.) MS. WALDRON: For the record, the Respondent is present. On August 22nd, 2008 the Code Enforcement Board issued a finding of fact, conclusion of law and order. And that order is attached for your review. The Respondent was found in violation and the Respondent has complied with the Board's order from August 22nd, 2008. At this time the County is recommending imposing a lien for the fine at a rate of $150 per day for the period between August 30th, 2008 to September 8th, 2008 for order item number one for a total of ten days in the amount of$1,500. And $150 per day for the period between August 30th, 2008 to September 8th, 2008 for order item number two for a total often days in the amount of$1,500, totaling $3,000. Operational costs of $89.75 have been paid. MS. PATTERSON: For the record, Sherry Patterson, Collier County Code Enforcement. Weare here today because of the two issues, the two items on the order. The Respondent was ordered by the Board to obtain an after-the-fact demo permit and all required inspections, including the CO, on or before August 29th, 2008. The after-the-fact demo permit was applied for on August 28th, issued on September 3rd, and then finally COed on September 8th. So they were out of compliance there with that first item. Now, what I would like to say with respect to that is that we have Crystal Hosman here. She is with Sign Craft. And we have Justin Claussen here. He is a representative of Patriot Square. Dennis Claussen, registered agent's, nephew actually. And Crystal came down on their behalf here to the County to try to obtain that after-the-fact demo permit. She went up to the front Page 105 November 20, 2008 desk up there and asked to get the permit from one of the permitting techs. And there was some miscommunication between the County and Sign Craft. They just didn't understand whether they -- how to issue the permit or something. There was just some miscommunication, but I wasn't there. I wasn't present at that time. So the same day I went there -- over to the front counter and spoke to the people up front and said I don't understand why we wouldn't be issuing an after-the- fact demo permit. Because what they were doing was taking down a huge structure, a huge sign, that had electrical on it. It had sharp edges and all kinds of stuff on there. So after that, I went and spoke to Alamar Finnegan. She is actually the permitting supervisor for building and review. And I asked her to send me an e-mail stating that they do, in fact, need to get that after-the-fact demo permit or a demo permit at any time to take down a structure. And I actually have an e-mail here from her confirming that. The second item of the order was to remove the remaining portion of the sign and all the debris associated with that sign. Again, on or before August 29th, 2008. I made a -- I confirmed the removal of all of that actually on September 8th, 2008. So the Respondent was ordered by the Board also to contact myself, the investigator, to let me know that everything had been taken care of on the site so that I could go out there and confirm everything had been done. They did not do that. So that was the reason why I went by on my regularly scheduled routine visit on the 8th actually. That's pretty much all I have. CHAIRMAN LEFEBVRE: Any questions, comments? MR. L'ESPERANCE: The Respondents are fully in compliance at this date? MS. PATTERSON: Yes. Yes, they are. Page 106 November 20, 2008 MR. KELL Y: Well, I would say since the operational costs have been paid and it looks like they did diligently try to work on getting the permit and with the representative here to testify to the fact -- I say we abate the fine of$3,000. MR. DEAN: I will second that motion. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELL Y: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Motion passes. You're all set. MS. PATTERSON: Thank you. CHAIRMAN LEFEBVRE: Next case is BCC versus Heriberto and Antonio Perez, CEB number CESD 200800002222. Is the Respondent present? (No response.) MS. WALDRON: The Respondent is not present. (Speaker was duly sworn.) MS. WALDRON: On April 24th, 2008 the Code Enforcement Board issued a finding of fact, conclusion of law and order. And that order is attached for your review. The Respondent was found in violation and the Respondent has not complied with the Board's orders from April 24th, 2008. At this time the County is recommended -- recommending imposing a lien for the fine at a rate of $200 per day for the period Page 107 November 20, 2008 between August 23rd, 2008 to November 5th, 2008 for a total of 75 days in the amount of$15,363.18. Operational costs of$363.18 have not been paid. MR. KAUFMAN: Mr. Chairman. CHAIRMAN LEFEBVRE: Go ahead. MR. KAUFMAN: I think there's an error at the bottom of the page where it says August 23rd. I think that should say April, unless I'm wrong. MS. WALDRON: No. The hearing was in April. CHAIRMAN LEFEBVRE: And they had 120 days, correct? MS. WALDRON: Yeah. Their compliance date was August 22nd. CHAIRMAN LEFEBVRE: They had 120 days to come into compliance. So it was from that date. MR. KAUFMAN: Okay. MR. KRAENBRING: I make a motion that we impose the fine or lien. CHAIRMAN LEFEBVRE: Do I hear a second? MR. DEAN: Second the motion. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) CHAIRMAN LEFEBVRE: Motion passes. Thank you. Page 108 November 20, 2008 The next one would be a motion for reduction/abatement of fines. BCC versus Mark Brecher, CEB number 2007-06. (Speakers were duly sworn.) CHAIRMAN LEFEBVRE: Okay. MS. WALDRON: I believe -- if we want to let Ms. Brecher speak since she asked for the reduction. MS. BRECHER: Hello. My name is Dawn Brecher. I have written a little note here so I wouldn't forget anything. So excuse my notes here. I live at 4830 Cherrywood Drive. And I thank you for the opportunity to be present today and request a release of fines associated with the code violations at my residence. They were caused by actions previously undertaken and admitted to by my husband, Mark. In January of this year he was arrested and -- for an unrelated situation and is currently in North Carolina awaiting his sentencing. When I became -- and then when I became aware of the situation in the matter, I constantly worked to resolve the requirements and to help -- and with the help of my attorney and friends to take care of all the requirements that were done on the violations on this land. I'm a mother of three boys, 15, 13,9, and I have found it necessary to return to work to support my family. As you can imagine, the year 2008 has been a most difficult year for me. And the removal of fines involving this matter would be greatly appreciated. I'm aware and I'm willing to pay today any remaining operation, investigation or permit costs. It's kind of a summary of my story. MR. KRAENBRING: Thank you. CHAIRMAN LEFEBVRE: What is the amount of the fines right now? MS. WALDRON: The imposition of fines that you ordered previously was $77,800. And it did keep occurring from that point on. What the County has to say right now is we don't object to getting rid Page 109 November 20, 2008 of the fines. CHAIRMAN LEFEBVRE: Has it been abated? MS. WALDRON: Yes, it has. And Ms. Brecher has worked diligently. MR. L'ESPERANCE: What are the operational costs? MS. WALDRON: The operational costs have been paid. MR. KRAENBRING: You said it was 77,000? MS. WALDRON: That was what was ordered from the imposition. And there were additional fines that had accrued on top of that. MR. KRAENBRING: We are in compliance? MS. WALDRON: They are in compliance. MR. KRAENBRING: The County has no objection? MS. WALDRON: The County has no objection. And Mrs. Brecher also has another case which she is working very diligently on also. So we have no objection to abating the fines. MR. LARSEN: Mr. Chairman, I would make a motion to abate the fines. CHAIRMAN LEFEBVRE: Do I hear a second? MR. KRAENBRING: I'll second. CHAIRMAN LEFEBVRE: All those in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. MR. KELLY: Aye. CHAIRMAN LEFEBVRE: Any nays? (No response.) MR. LARSEN: Have a nice day. Page 110 November 20, 2008 MR. KRAENBRING: Good luck. CHAIRMAN LEFEBVRE: And any reports? Any new business, first of all? Any new business? (No response.) CHAIRMAN LEFEBVRE: And we approved the consent agenda already. Any reports, comments? MS. FLAGG: I would just comment. I had informed you all, but Ms. Jen Waldron is now the lead for the enforcement section for both Code Enforcement Board and also the Office of the Special Magistrate. CHAIRMAN LEFEBVRE: Congratulations. (Applause.) CHAIRMAN LEFEBVRE: Our next meeting will be January 22nd,2009. MR. KELL Y: Are we home again or -- MS. WALDRON: We are back to BCC again, if you guys remember where that is. If you need directions, let me know. MR. DEAN: They are going to let us back in now. CHAIRMAN LEFEBVRE: And do I have a motion to adjourn? MR. DEAN: Happy holidays. MR. KRAENBRING: I will second that. MR. LARSEN: Motion to adjourn. MR. KRAENBRING: Second. CHAIRMAN LEFEBVRE: All in favor? MR. KAUFMAN: Aye. MR. L'ESPERANCE: Aye. MR. LARSEN: Aye. MR. KRAENBRING: Aye. CHAIRMAN LEFEBVRE: Aye. MR. DEAN: Aye. MR. PONTE: Aye. Page 111 November 20, 2008 MR. KELLY: Aye. ***** There being no further business for the good ofthe County, the meeting was adjourned by order of the Chair at 12:35 p.m. COLLIER COUNTY CODE ENFORCEMENT BOARD GERALD 1. LEFEBVRE, Chairman These minutes approved by the Board on as presented or as corrected. TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY KELLEY MARIE NADOTTI Page 112