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CEB Minutes 08/25/1994 R 1994 CODE ENFORCEMENT BOARD MINUTES August 25, 1994 DATE: TIME: PLACE: CODE ENFORCEMENT BOARD OF COLLIER COUNTY August 25, 1994 9:00 A.M. 3rd Floor Boardroom, Building "F", Collier County Government Center, Naples, Florida CEB ANDREWS LOUVIERE ALLEN L'ESPERANCE LAZARUS RAWSON LAFORET MINUTES BY: Marilyn Fernley, Deputy Clerk PRESIDING: CALLED TO ORDER AT: X ABSENT X X X X X 9:00 A.M. STAFF PRESENT CLARK MANALICH CRUZ ADJOURNED: 9:45 A.M. Lionel L'Esperance, Chairman ADDENDA TO THE AGENDA: Two Items Continued X X X Page 1 " CODE ENFORCEMENT BOARD Of ._COLLIER COUNTY, FLORIDA li ~ 1; !i 12 8 Date: August 25, 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 RESPONST 1-\1 ,F, FOR PROVIDING THIS RECORD. 1. ROLL CALL 2. APPROVAL OF AGENDA 4. APPROVAL OF MINUTES May 26, ]994 and June 23, 1994 5. PUBLIC HEARINGS N/.A 6. NEW BUSINESS N/A 7. OLD BUSINESS BCC vs. Robert J. McCarthy - CEB 90-025 Request for Reduction of Fines Bec vs. Meadowood Club Apts, Ltd. - CEB 93-011 Request for Reduction of Fines BCC vs. Elba Development Corp. - CEB 9)-003 Request for Imposition of Fines BCC vs. Elba Development Corp. - CEB 93-003 Request for Reduction of Fines 8. REPORTS N/A 9. NEXT MEETING DATE September 22, 1994 10. ADJOURN CODE ENFORCEMENT BOARD OF COLLIER COUNTY (020) ITEM: COteQJfTS: MOTIOK: CO....-rS: MOTIOK: AUGUST 25, 1994 Approval ot Agenda Maria Cruz, Code Enforcement Coordinator, stated that Staff is requesting that the last two (2) items under Old Business pertaining to Elba Development Corporation, Case Number CEB 93-003, be continued to the meeting of September 22, 1994 because the respondent has requested a continuance due to a conflict in schedules. Mr. Lazarus pointed out that the Motion from the respondent dated August 23, 1994 states that coun- sel was just retained but the minutes of May 26, 1994 indicate that Mr. Reina was the representative for Elba Development at that meeting. Assistant County Attorney Manalich explained that Mr. Reina appeared at the May 26, 1994 meeting as the representative for Elba Development and indi- cated that he would continue to represent Elba as long as all the directives were complied with. He stated that a conflict arose between the parties and Mr. Reina was temporarily off the case but is now representing Elba again. Mr. Lazarus stated that Case No. CEB 93-003 has remained unsettled for an extremely long period of time and must be addressed soon due to public interest. Mr. Andrews and Mr. Laforet agreed. Mr. Manalich explained that compliance has been achieved in this matter which is why Staff does not object to this continuance. Ms. Cruz informed the Board that the Certificate of Occupancy has been obtained. Made by Mr. Lazarus to continue C..e Mo. CBB 93-003 to the ..eting ot Septe.her 22, 199.. Seconded by Mr. Andrews. Carried: 6/0. Mr. Manalich stated that he will express to Mr. Reina the urgency of the Board to decide this issue at the meeting of September 22, 1994. Made by Mr. Allen to approve the ...nded agenda. Seconded by Ma. Rawson. Carried: 6/0. Page 2 CODE ENFORCEMENT BOARD OF COLLIER COUNTY (1..) ITDI: co....ns : MOTIOK: (188) ~: CO....TS: MOTIOK: AUGUST 25, 1994 ... Approval ot Minute. Ms. Rawson pointed out that Mr. Reina's name is misspelled in the minutes of May 26, 1994. Ms. Cruz stated that the figure of $5,000 should read $500 on Page 6 of the minutes of June 23, 1994. (Upon verification of the audio tapes, the language in the minutes reflect the statement made by Mr. Clark is correct.) Made by Me. Ita_on to approve the _Dded .1nute. ot May 26, 199. and June 23, 199.. Seconded by Mr. Latoret. Carried: 6/0. ... BCC v.. Robert 3. McCarthy - C..e Ko. CaB 90-02S Ms. Cruz explained that this is a request for a reduction in fines. She stated that the case was presented to the Board on April 26, 1990 and the respondent was found in violation by storing vehicles and equipment and unauthorized accumula- tion of trash, debris and litter. Ms. Cruz remarked that the Board issued an Order and requested the respondent to comply by June 12, 1990 or a $150 per day would be imposed. She indicated that several Affidavits of Noncompliance were filed but on January 10, 1991 the violation was brought into compliance. Ms. Cruz stated that Staff has no objection to the requested reduction in fines. She mentioned that $2,500 is a suitable amount of fines to be paid. In response to Mr. L'Esperance, Ms. Cruz informed that the original fine was $14,400 and the $2,500 adequately covers the cost incurred to hear the case. Made by Mr. Lazarua to reduce the tine relative to C... caB 90-028 to $2,800. Seconded by Mr. Andr.... Page 3 CODE ENFORCEMENT BOARD OF COLLIER COUNTY COMMERTS : AMKJIDKD MOTIOK: (33.) ITEM: COIMKIITS : AUGUST 25, 1994 Ms. Cruz stated that the fines are to be paid within ten (10) days. Mr. Lazaru. _nded hi. action to include that the tine be paid within ten (10) day. or the original tine will r_in in-place. Mr. Andr_ _Deled his .econd. Carried: 8/0. ... BCC v.. Meadowood Club Apart..nt., Ltd - CBB 93-011 Ms. Cruz announced that this is a request for a reduction in fines. She explained that violations accumulated fines totaling $44,000 before being brought into compliance on May 16, 1994. Ms. Cruz informed that the violations resulted in assessed fines at $250 per day for 20 days. Ms. Cruz explained that mitigating factors which contributed to the seriousness of the fine was a lengthy amount of time the previous owner of Meadowood failed to maintain the stairs and balco- nies which led to the collapse of one (1) balcony and the injury to two (2) individuals. Ms. Cruz indicated that mitigating factors lessening the responsibility of the present owner of Meadowood include the fact that the property was purchased through bankruptcy and, thus, the new owner inherited the deterioration problem of the stairs and balconies. She mentioned that the pre- sent owner acted responsibly and expended a substantial amount of funds to bring the violations into compliance in a relatively short period of time through the general contractor, Len Berlin. Ms. Cruz announced that the County has invested $11,876.78 investigating and prosecuting this case and Staff is requesting payment for the expenses incurred and that a $5,000 punitive fine be imposed. Mr. Allen questioned why the $5,000 punitive fine is being requested? Ms. Cruz responded that the punitive fine is being requested because of the injuries sustained by the two (2) individuals when the balcony collapsed. Page 4 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MOTIOM: COtllmlft8: AUGUST 25, 1994 Mr. Lazarus indicated that he agrees with imposing the fine but would not refer to it as punitive because the Code Enforcement Board is not in the punishment business. Mr. Manalich indicated that the function of the Board is not punishment but to secure compliance through a course of measures. Made by Mr. Lazarus to iapoae a tine ot $11,876.78 tor coata plus $5,000 tor DOnco~liance with the original Order ot April 28, 1993. Seconded by Mr. Andr_ . Len Berlin, General Contractor, as agent for Meadowood Club Apartments, stated that he concurs with the $11,876.78 but is questioning the addi- tional $5,000 fine. He introduced Attorney Tracy Rollins, counsel for the Receiver, and requested that she make a presentation if the fines are to be assessed. Ms. Rollins stated that she wishes to correct the record and informed the Board that the subject pro- perty is not in bankruptcy but is a typical foreclosure proceeding. She explained that the receiver was appointed to run the property due to the lack of a person of responsibility to perform those duties. Ms. Rollins explained that General Electric Capital Corporation (GECC) is the lender and the foreclo- sure process is complicated due to numerous junior liens and confusion on the part of GECC as to how to handle the litigation. She mentioned that a trial has not been set, a motion for summary judgment is not pending and the case is expected to linger for a lengthy period of time. Ms. Rollins mentioned that the Receiver moved quickly to make necessary repairs and bring the property into compliance. Ms. Rollins mentioned that Florida Statute Section 162.09 dictates when an assessment is made into a judgment that then serves as a lien upon the property. She stated that the receiver's concern is that he can only perform the duties that the Court empowers him to do. Ms. Rollins explained Page 5 CODE ENFORCEMENT BOARD OF COLLIER COUNTY AUGUST 25, 1994 that if the receiver cannot secure sufficient funds to pay the assessments upon the property, and since GECC will not supply out-of-pocket monies to pay same, the liens will be foreclosed and the lienee will not receive any money. Ms. Rollins acknowledged that the receiver is pre- pared to pay the administrative expenses incurred by the County but requests that any other fine be reduced because the receiver did bring the property into compliance and no responsible party exists in this situation. Ms. Rollins stated that the receiver is prepared to file a motion with the court requesting that any revenues from the property that is not utilized to pay expenses of the property be used to pay the $11,000 fine as assessed. She explained that GECC or any other party to the litigation can challenge the motion but doubted that anyone would challenge the motion. Ms. Rollins indicated that she wanted to let the Board know where the receiver stands in the pro- cess, how he must proceed in addressing any fine that is assessed and advise of the constraints the receiver is under regarding GECC and the statu- tory provisions thereto. In response to Mr. Allen, Mr. Berlin informed that he has now been paid in full for the work performed at the Meadowood Club Apartments. Ms. Rollins indicated that due to the court system in general and a change in judges in the pro- ceedings, there was a lapse in time in obtaining an order approving the issuance of receiver cer- tificates which delayed payment to Mr. Berlin. Mr. Manalich requested that Ms. Rollins clarify her position regarding lien priorities in the proceedings. Ms. Rollins responded that there is no provision for super priority which would allow the County judgment to take priority over any other lien. She remarked that two (2) receiver certificates are outstanding which will come before the mortgage, then the GECC mortgage will be paid, and then any Page 6 CODE ENFORCEMENT BOARD OF COLLIER COUNTY AUGUST 25, 1994 junior liens according to the filing dates. Ms. Rollins pointed out that this judgment, should it become a lien, will appear low on the junior liens listing. Mr. Lazarus questioned if the receiver is willing to pay the $11,876.78 but any other fine will be disputed? Ms. Rollins apologized if that is the understanding she lead the Board to believe but that is not correct. She explained that the receiver has no money and operates with the proceeds of the pro- perty but intends to commit to paying the fines when there are sufficient revenues to do so. Ms. Rollins stated that receiver certificates develop from outside money. Mr. Lazarus pointed out that the County should have recorded the lien earlier. He questioned what dif- ference it would make if the Board imposes a larger fine? Ms. Rollins explained that the receiver intends to cooperate as fully as possible to pay whatever fine is assessed but $11,000 will be easier to pay than $17,000 because he is governed by the income from the property. In response to Mr. Lazarus, Ms. Cruz replied that the original fine requested by Staff was $44,000. Mr. Lazarus pointed out that the difference between $44,000.00 and $16,876.67 represents a substantial reduction in fines and now the receiver is requesting a further reduction so that the County will only recover expenses. Ms. Rollins responded that the receiver is appre- ciative of the fact that the Board has reduced the fine but is requesting that the Board consider a reduction or deletion of the nonconformance fine. Ms. Cruz pointed out that Staff is requesting that the fines be paid within 120 days because a judge must approve payment. In response to Mr. Manalich, Ms. Rollins indicated that it will take 120 days to file a motion and Page 7 CODE ENFORCEMENT BOARD OF COLLIER COUNTY AUGUST 25, 1994 allow GECC to file an objection. She pointed out that obtaining approval in a timely manner has been difficult on the east coast but may be easier in Collier County. Ms. Cruz mentioned that if the fines are not paid in 120 days, Staff recommends that the $44,000 fine remain in-place. Mr. Lazarus explained that 180 days is more appropriate. Mr. Laforet questioned what difference the amount of the fine makes because if $44,000 is assessed and adequate funds are available, the County will received $44,000; if adequate funds are available to pay an assessed fine of $16,000 then the County will receive that amount. Ms. Rollins indicated that all payment of fines are subject to court approval. She explained that a smaller fine will be easier to satisfy and noted that the property has been brought into compliance as quickly as possible under difficult circumstan- ces. Dick Clark, Interim Community Development Services Administrator, stated that Staff feels that the available amount of funds is not an issue but the mitigating circumstances surrounding the occurren- ces at Meadowood Club Apartments does preclude assessment of an additional fine as iterated by Ms. Cruz. Mr. Berlin pointed out that no matter what the amount of the lien on the property, the lien is subject to dismissal at a later date. Mr. Berlin reiterated that reimbursement of the expenses incurred by the County is reasonable but the issue of the two (2) individuals who were hurt due to neglected maintenance at Meadowood Club Apartments will be addressed by the Courts. MOTIOK: Mr. Lazarus _nded ia action to include that pay-.nt ot the tinea be paid wi thin 180 days. Mr. Andrews ...nded hi. aection. Carried: 6/0. Mr. Manalich was directed to prepare the Order Imposing Fine and record same. Page 8 CODE ENFORCEMENT BOARD OF COLLIER COUNTY AUGUST 25, 1994 ... There being no further business for the Good of the County, the meeting was adjourned by Order of the Chair. Page 9