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CEB Minutes 06/23/1994 R 1994 CODE ENFORCEMENT BOARD MINUTES June 23, 1994 CODE ENFORCEMENT BOARD OF COLLIER COUNTY DATE: June 23, 1994 TIME: 9:00 A.M. PLACE: 3rd Floor Boardroom, Building "F", Collier County Government Center, Naples, Florida CEB STAFF PRESENT ALLEN ANDREWS LAZARUS LAFORET L'ESPERANCE RAWSON X exc. exc. X X X CRUZ MANALICH CLARK X X X MINUTES BY: Sue Barbiretti and Marilyn Fernley, Deputy Clerks CALLED TO ORDER AT: 9:00 A.M. ADJOURNED: 10:35 A.M. PRESIDING: Lionel L'Esperance, Chairman ADDENDA TO THE AGENDA: None Page 1 CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA ~ Q k N Q ~ Date: June 23, 1994 at 9:00 o'clock A.M. Location: Collier County Government Center, Bldg. "F" Third Floor NOTE: 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 RESPONSIB~E FOR PROVIDING THIS RECORD. 1. ROLL CALL 2. APPROVAL OF AGENDA 4. APPROVAL OF MINUTES N/A 5. PUBLIC HEARINGS Board of County Commissioners vs. Gunnar L. Olson, Marilyn Olson and J & J Palms, Inc., John Watkins and John Raulerson CEB No. 94-006 6. NEW BUSINESS Filing of Affidavit of Compliance - CEB 93-006 BCe vs. Kevin Stoneburner and Gul: Materials Recovery and Artificial Reefs, Inc. 7. OLD BUSINESS Request for Imposition of Fines - CEB 93-003 BCe vs. Elba Development Corp. Request to modify the Order of the Board - Case No. 94-001 ~ BeC vs. First Bank of Immokalee 8. REPORTS Discussion of new amendments to Florida Statutes, Chapter 162 " pertaining to local code enforce~ent boards 9. NEXT MEETING DATE July 28, 1994 10. ADJOURN CODE ENFORCEMENT BOARD OF COLLIER COUNTY (036) ITEM: COMMENTS: MOTION: (054) ITEM: COMMENTS: (081) ITEM: COMMENTS: JUNE 23, 1994 Addenda to the Agenda Maria Cruz, Code Compliance Coordinator, noted that Item 9, Next Meeting Date, should read August 25, 1994. She said that there will be no meeting in July. Mr. L'Esperance commented that Item 5 should be deleted from the Agenda. Made by Ms. Rawson to delete Item 5 from the Agenda. Seconded by Mr. Allen. Carried: 4/0. *** BCC vs. Kevin Stoneburner and Gulf Materials Recovery and Artificial Reefs, Inc. - CEB 93-006 Ms. Cruz stated that this item is jn compliance at this time. Assistant County Attorney MaDalich stated that the attorney for the respondent, Mr. Pitkin, contacted him and confirmed that the fines have been paid. *** BCC vs. Elba Development Corporation - CEB 93-003 Ms. Cruz stated that this case came before the CEB last month for an imposition of fines. She said that the attorney representing the respondent requested a 30 day extension to bring this matter into compliance. She said that an investigation was done yesterday and revealed that the violations still exist. She stated that the violations include final inspections which consist of the right-of-way engineering, site drainage, landscaping, and on-site parking inspections. Ms. Cruz stated that Staff is requesting an imposi- tion of fines be filed in the amount of $40,250.00 which covers the dates of January 14, 1994 to June 23, 1994. Dick Clark, Interim Community Development Administrator, stated that the total amount of Page 2 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 23, 1994 fines is $58,500.00. He noted that residents have been victimized in this case. He said that the respondent had pulled permits to construct ameni- ties and have not completed the amenities which is a violation of County Ordinance. Mr. Clark stated that the imposition of fines will not satisfy the residents or solve their problem. He said that completion of the amenities is the only solution. He said that the respondent requested several extensions and still has not completed the project. Mr. Clark stated that the CEB has done a commen- dable service in bringing this problem to this point but remarked that the CEB and Staff are limited in their ability to bring this matter into compliance. He said that Staff will exert all possible pressures to resolve this matter. He said that we are close but close is not enough. Moran Walter spoke on the subject. In response to Mr. Walter's questions, Mr. Clark stated that the fines are legal fines. He stated that Staff will make every attempt to see that the fines are paid. He said that State Statute allows that fines may be collected by putting liens or judgements against corporate property. He said that the system is not designed to allow this type of situation. He said that there is not adequate pro- tection in Collier County. He said that additional provisions can be incorporated into our Ordinances to prevent this from happening in the future. After being sworn in by Ms. Cruz, Kenneth Meadvin, President of Elba Development Corporation, stated that the Water Facilities have been accepted by the Board of County Commissioners on June 21, 1994. He said that this is a pre-condition to finalize the procedures in order to get the Certificate of Occupancy. Mr. Meadvin said that the pool has been by Health and Rehabilitative Services. that the inspection revealed some minor that are currently being corrected. inspected He said violations Mr. Meadvin suggested that the members of the CEB drive through Embassy Woods and determine if this is a project that is in trouble. Page 3 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 23, 1994 Mr. Meadvin stated that he fully expects to have the Certificate of Occupancy before the next meeting of the CEB. Mr. Clark remarked that the inspection report reveals that right-of-way engineering, site drainage, and landscaping inspections have not yet been completed. Mr. Meadvin stated that he believes that the viola- tions that were noted have been corrected in anti- cipation of obtaining a final inspection. In response to Mr. LaForet, Mr. Meadvin confirmed that the furnishings are on site. Mr. Clark pointed out the furnishings and equipment cannot be used because there is no Certificate of Occupancy for the building. Mr. Allen questioned if any of the violations men- tioned at last month's meeting have been corrected? Ms. Cruz confirmed that the right-of-way engi- neering, site drainage and landscaping inspections still reveal violations. Mr. Clark remarked that Elba Development Corporation is not doing what the CEB has asked them to do. In response to Assistant County Attorney Manalich, Ms. Cruz confirmed that the total amount of the fines to this date is $40,250.00. In response to Mr. Manalich's request, Ms. Cruz agreed to submit another Affidavit of Non-Compliance as basis for the Order. Mr. Manalich stated that he assumed that the Order Imposing Fine should be recorded. He also pointed out that Mr. Lazarus had requested information regarding piercing the Corporate veil. He said that this is a complex subject. He said that his initial review indicates that the Florida Supreme Court indicates that the Corporate veil can be pierced when there is a showing of improper con- duct. He said that as this action presently stands, he believes that the request to pierce the Page 4 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MOTION: COMMENTS: JUNE 23, 1994 Corporate veil would require a jury finding on whether the necessary elements of improper conduct were there. Mr. Clark stated that it may be advisable to proceed with civil action if we are unsuccessful in the present direction which is to obtain compliance, completing the project and collection of fines. Mr. Manalich agreed. In response to Mr. L'Esperance, Mr. Manalich replied that a motion is required for the Order Imposing Fine for the total amount of $40,250.00, for a total amount of $58,500.00, as requested by Staff and provide the County Attorney's Office authority to draft the Order Imposing Fine. He asked if the CEB wished to record the Order Imposing Fine? He requested direction on the foreclosure issue. Made by Ms. Rawson to direct the County Attorney to draft an Order Imposing Fine from the date of the last Order to the present date in the amount of $40,250.00, for a total of $58,500.00, that the Order be recorded and that the Order Imposing Fine not be issued until an Affidavit of Non-Conformance is filed with the County Attorney. Seconded by Mr. LaForet. Carried: 4/0. Mr. Manalich asked if the CEB wanted to pursue foreclosure proceedings. Mr. Clark stated that he would like to see a modi- fication because the amended Ordinance states that if previous Order of the Board has not been complied with by a specific time or upon finding that a violation has been repeated may order the violator to pay a fine, not to exceed, $500.00 per day. Mr. Clark stated that he would like to revise Staff's recommendation and utilize the exceptional penalty provision to the Board to increase the amount to $500.00 per day for a total amount of $80,500.00. Page 5 CODE ENFORCEMENT BOARD OF COLLIER COUNTY \ n.2:~____~_~7 Made by Ms. Rawson to amend her previous motion to change the amount of the fine to $80,500.00. Seconded by Mr. LaForet. MOTION: COMMENTS: Mr. Manalich asked for the analysis of why this constitutes a repeat violation? Mr. Clark stated that the respondent has never brought the project into compliance by a specified time. Ms. Rawson stated that the Affidavit of Non-Compliance dated April 28, 1994, alleges that the Certificate of Occupancy has not been obtained. She said that since it has not be obtained that is obviously a repeat violation. Mr. Manalich advised the CEB that after November 1, 1993, which is when the C.O. should have been obtained, that failure to do so would constitute a repeat violation. He said that they could increase the fine to $500.00 per day if they feel it is reasonable. Mr. Clark replied that it is Staff's opinion that ~o. se,OOQ.QQ per day would be reasonable but is not authorized to do that. Ms. Rawson stated that a fine of $500.00 per day could be imposed after November 1, 1993. She pointed out that her motion only requests the increase from the date of the last Order of this Board. Mr. Manalich stated that would be a more cautious approach. He said that would clearly find that there was non-compliance and beyond that Order that it has been repeated. MOTION: Made by Ms. Rawson to amend her motion to amend the amount of the Order Imposing Fine to the amount $80,500.00 and to record this Order. Seconded by Mr. LaForet. Carried: 4/0. COMMENTS: Mr. Manalich asked if the CEB wished to defer the issue of foreclosure proceedings. Mr. L'Esperance directed that Staff research the subject and inform the Board of the findings. Page 6 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 23, 1994 Mr. Clark requested the County Attorney's Office to use the earliest possible dates to impose all liens for foreclosure action to reach compliance. Mr. Clark stated that he could not think of a single case that has affected this many victims as this one. Ms. Rawson stated that she would not want to file foreclosure action against property that will become the property of the homeowners. Mr. Manalich stated that the Statute refers to the Order Imposing Fine may be recorded and shall constitute a lien against the land in which the violation exists and upon any other real or per- sonal property owned by the violator which is the corporation in this case. He said that he believes that the CEB could foreclose on any other assets owned by the corporation. He said that he will work with Staff to see how compliance proceeds. *** Recess: 9:55 AM - Reconvened: 10:00 AM At this time, Deputy Clerk Fernley replaced Deputy Clerk Barbiretti *** *** (1614) ITEM: Case No. 94-001 - BCC vs. First Bank of Immokalee COMMENTS: Dick Clark, Interim Community Development Services Administrator, stated that Staff is recommending a revision to the Order imposed on the First Bank of Immokalee, Respondent. He explained that Respondent should be granted an extension of six (6) months from June 23, 1994 to obtain a Certificate of Completion for the partially constructed and abandoned building at 380 Randall Boulevard, Naples, FL. Mr. Clark indicated that by law, a Bank cannot operate another business but possesses the subject property through foreclosure. He pointed out that the First Bank of Immokalee wants to complete the structure but can only complete the shell because of the uncertainty as to who will eventually occupy the building. Mr. Clark stated that the First Bank of Immokalee is striving to remove the aesthetic and danger Page 7 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 23, 1994 nuisance of the structure and the roof is presently being completed. He indicated that Staff is also recommending that Respondent be given 18 months to complete the project from June 23, 1994. Ramiro Manalich, Assistant County Attorney, reminded the Board that the original Order found that the First Bank of Immokalee is the owner of record of the subject property and a violation existed resulting from a continuing existence of a partially constructed and abandoned structure without the authority of a valid building permit or Certificate of Occupancy. He stated that the Order of the Board was to provide temporary barricades, have a permit on the job site in 30 days and the building completed, along with a Certificate of Occupancy, within 180 days or as of July 27, 1994, or a fine of $200 per day will be imposed. Mr. LfEsperance questioned whether fencing was men- tioned to alleviate the nuisance? Mr. Manalich explained that the only thing done was installing temporary barricades at the job site within 72 hours to provide for the public health and safety. Mr. Clark informed that the requirement was until a building permit was obtained which has been done; now the standard provisions of building permits is in affect. In response to Mr. LfEsperance, Mr. Clark informed that the Respondent is taking normal precautions of any building site, therefore, the site is no longer an attractive nuisance. Mr. Clark stated that an in-ground tank exists which the First Bank of Immokalee will stipulate that no petroleum products will be stored in the tank and will be covered upon obtaining the Certificate of Completion for the structure. Richard Smith, representing the First Bank of Immokalee, stated that the Bank applied for a per- mit within months of obtaining title but a problem existed with the original plans submitted by Winsco Builders. He explained that the Bank is working as diligently as possible to solve the nuisance and a contractor is now on-site working on the building. Page 8 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 23, 1994 In response to Mr. L'Esperance, Mr. Clark indicated that the site appearance has improved over the past couple months. Mr. Smith indicated that the Bank contends that it did not willfully violate any ordinance and only became a problem to the Bank upon foreclosure. He stated that steps have been taken as rapidly as possible from the time of foreclosure forward. Mr. Manalich requested clarification of the Bank's position regarding the Request for Rehearing which was submitted. Mr. Smith informed that when it became obvious to the Bank that a building permit would be obtained, the feelings were that the matter would be withdrawn in terms of compliance conformance but due to the problem with the plans, obtaining the building permit took longer than expected. He said that an Order should be entered stating that the First Bank of Immokalee will comply and will obtain a Certificate of Completion within six (6) months and a Certificate of Occupancy within 18 months. Mr. Smith stated that the Bank wants to preserve rehearing rights. Mr. Clark indicated that Staff does not have a problem with the Bank preserving rehearing rights because of the desire on the Respondents part to resolve the situation. Mr. Manalich advised that the parties can be accommodated as proposed by preserving their rehearing and appeal rights. He said that the Board also preserves the right to impose fines. Mr. Smith indicated that neither party is waiving their rights. Mr. Clark stated that the Board can specify that a $200 per day fine be imposed if the building is not 50 percent complete within 90 days, a Certificate of Completion within 180 days and the project completed within 18 months or have obtained a legal extension of the permit. In response to Mr. Laforet, Mr. Smith replied that the original project was for a gasoline Page 9 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MOTION: (2450) ITEM: JUNE 23, 1994 station/convenience store placed in the ground. He will either be covered or utilized. and the empty tanks were explained that the tanks removed and will not be Mr. Laforet pointed out that the expected life of an in-ground tank is 10 to 15 years and the poten- tial exists for the ground to collapse if the tanks are not filled with cement. He indicated that the problem needs to be addressed in the near future. Mr. Clark indicated that Staff will monitor the in- ground tank situation. Mr. L'Esperance recommended that the motion should contain the 50 percent completion within 90 days requirement and that assurance be made that the site is safe from potential problems. Mr. Manalich stated that this is an amended Findings of Fact and Conclusions of Law and Order of the Board relative to the compliance section of the original Order. Made by Mr. Allen to amend the original Order requiring the First Bank of Immokalee to obtain a Certificate of Completion within six (6) months with the stipulation that 50 percent of the work be completed within 90 days and a Certificate of Occupancy be obtained within 18 months from the date of the signing of the Order. Seconded by Ms. Rawson. Carried: 4/0. Mr. Manalich mentioned the discussion relative to the in-ground tanks. Mr. Clark indicated that all underground tanks be covered and to make the outside area safe. In response to Mr. Manalich, Mr. Clark elaborated that during construction the area should be kept safe at all times, but does not need to be included in the Order. *** Discussion of New Amendments to Florida Statutes, Chapter 162, Pertaining to Local Code Enforcement Boards Page 10 " CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 23, 1994 COMMENTS: Ramiro Manalich, Assistant County Attorney, stated that a memorandum from Assistant County Attorney Richard Yovanovich was distributed relating to amendments to Florida Statutes, Chapter 162. He explained that the amendment will allow Boards to recover all costs incurred in prosecuting cases, the cost of repairs may be included along with the fine, costs incurred and recording and satisfying liens, and notices can be posted at the Courthouse as an alternative to publishing notices in the newspaper. In response to Mr. L'Esperance, Mr. Manalich replied that this is new legislation which has already been enacted. Mr. Manalich indicated that the County needs to make amendments to the Ordinance to be consistent with the Chapter 162 revisions. Dick Clark, Interim Community Development Services Administrator, stated that Chapter 162 should be effected immediately until the Ordinance can be amended. Mr. Manalich stated that Chapter 162 provides that three (3) months after filing the Order Imposing Fines you can foreclose but the County Ordinance states six (6) months which may be restrictive because due process may not have been served. Mr. Clark stated that Chapter 162 empowers the Board to take corrective action to repair a dangerous situation and then lien the property to recover the expense because of the timeliness in obtaining compliance in some cases. Mr. Clark indicated that the cost for the recording secretary taking minutes of the hearings can now be recovered. Mr. Manalich explained that the legislation does not elaborate what the costs of prosecution entails but an argument can be made that the recording secre- tary is required in having the case heard. Mr. L'Esperance indicated that the new legislation is a positive move and encouraging. Page 11 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 23, 1994 Mr. Clark stated that evolution of the legislation has been interesting and is the outcome of cities and counties voicing opinions and requesting addi- tional authority when prosecuting violators of local ordinances. *** There being no further business for the Good of the County, the meeting was adjourned by Order of the Chair. CODE ENFORCEMENT BOARD OF COLLIER COUNTY Page 12