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CEB Minutes 10/27/1994 R 1994 CODE ENFORCEMENT BOARD MINUTES October 27, 1994 CODE ENFORCEMENT BOARD OF COLLIER COUNTY. FLORIDA ~QgN~~ Date: October 27, 1994 at 9:00 o'clock A.M. Location: Embassy Woods Clubhouse, 6800 Davis Blvd.:, Naples FL 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 RESPONSIBLE FOR PROVIDING THIS RECORD. 1. ROLL CALL 2. APPROVAL OF AGENDA 4. APPROVAL OF MINUTES N/A 5. PUBLIC HEARINGS N/A 6. NEW BUSINESS N/A 7. OLD BUSINESS BCC vs. Elba Development Corp. - CEB 93-003 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 November 23, 1994 10. ADJOURN MEETING OF THE CODE ENFORCEMENT BOARD OF COLLIER COUNTY October 27, 1994 Embassy Woods Clubhouse, Naples, Florida ~~rc:~V,7 t; ': ~ : "1--/ \ { '<0 ~::.y U U ~ 1 APPEARANC~ 2 MEMBERS OF THE BOARD: 3 LIONEL L'ESPERANCE, Chairman JIM ALLEN, Vice-Chairman 4 CHARLES M. ANDREWS MIREYA LOUVIERE 5 MONTE LAZARUS M. JEAN RAWSON 6 LOUIS LAFORET 7 RAMIRO MANALICH, Assistant County: Attorney 8 RICHARD CLARK, Director, Collier ~ounty Code Enforcement 9 10 ALSO PRESENT: 11 LEONARD REINA, ESQ., representirg Elba Development Corp. KENNETH MEADVIN, President, E1b~ Development Corp. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 OFFICIAL COURT REPORTERS, COL~IER COUNTY, FLORIDA 33962 ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CLARK: Good morning. My name's Dick Clark, with the County, by the way. We have a little handicap this morning in that we have no sound system, so we're going to try to speak up. We're going to try to identify ourselves and we're going to try to make sure we speak loudly enough for everyone to hear. Bu ladies and gentlemen, the Commission Chairman, Tim Constantine, we are honored to have your commissioner here with us this morning, and in a couple moments I would like to ask Commissioner Constantine -- he has stated that he's received a lot of comments from a lot of people, and he would like to at least express those comments that he's heard on behalf of some of the citizens. You may be here, but some of them probably may not be here today, so perhaps that would be beneficial. If I might, we'll try to -- unfortunately, everyone doesn't have enough chairs -- so we'll try to make this as brief as possible. This action this morning is a request by the Respondent, and the Respondent in this matter is Elba Development Corporation. Their representative, Leonard Reina, attorney, is here, and he has, on behalf of Elba Development, requested a reduction in fine. That's correct, Mr. Reina? OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. REINA: That's correct. MR. CLARK: We have Assistant County Attorney Ramiro Manalich here with us this morning, and he is the Code Enforcement Board adviser from the County Attorney's Office. If we might have the Board members identify themselves to you, perhaps we could start, Mr. Chairman. CHAIRMAN L'ESPERANCE: Mr. Clark, yes. What I'd like to do now is to call the October 27, 1994, session of the Code Enforcement Board to session, order at this time. 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 insure 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. We will now have a roll call and introduction of the Board members, starting on my left. MR. LAFORET: My name is Louis LaForet. MS. RAWSON: Jean Rawson. MR. LAZARUS: Monte Lazarus. MS. LOUVIERE: Mireya Louviere. MR. ANDREWS: Charlie Andrews. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 "" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIRMAN L'ESPERANCE: Number two, approval of the agenda. Are there any changes or additions to the agenda, Mr. Clark? MR. CLARK: Mr. Chairman, there are none. CHAIRMAN L'ESPERANCE: May I have a motion for approval of agenda? MR. ANDREWS: Motion. MS. RAWSON: Second. CHAIRMAN L'ESPERANCE: We have a motion and second to approve the agenda as submitted. All those in favor signify by saying "aye". Any opposed? Approval of the minutes, not applicable to public hearings, nothing. New business, nothing. Oid business. Mr. Clark, please proceed. MR. CLARK: Thank you, Mr. Chairman. At this time I would like to ask Commission Chairman Tim Constantine to relay the sentiments he has had expressed to him, to the Board. MR. CONSTANTINE: I'm going to direct my comments to the Board, but I'll try to keep an angle so y'a11 can hear me as well. First, I want to thank Dick Clark and I want to thank all of you and I want to thank the Board, because I think without the work of all of you, there would still be a pile of cinder blocks and beams here instead of us standing in this building right now. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So the work of Mr. Clark and his staff. Just a little bit of history. Prior to my being on the Board of Commissioners, I served on this Code Enforcement Board from the day it was created until the day I resigned to run for the Board of Commissioners. So I am very familiar with the job you all have in front of you. In fact, Monte and Charlie, I served with both of them. One of the things we always struggled with when I was on the Board was, after someone had complied, was trying to decide whether or not to reduce fines. And we always tried to balance whether we were simply a Board that was trying to get compliance or whether there was ever a situation in which compliance had been so difficult to get that the fines should stay in place. And I remember one meeting in particular, Monte and I had a great debate on this about four years ago. Today I am sharing my personal thoughts from that experience, and more importantly, I have had a number of calls from the residents of the area. And not only those who are here now, but some who are still in the north country and won't be back for another month or two. And I wanted to get those points across, though I'm sure many of them will choose to speak today, too, and get some of those points. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For me, the most frustrating thing when I served on the Code Enforcement Board was when any corporation or any individual thumbed their nose at the process. We still have this problem on occasion with the Board of Commissioners, not only with Code Enforcement, but with all the different ordinances and rules that we try to bring about. There are some people who it simply takes a little longer to comply, for whatever reason. The feeling I received here and the calls that I received seem to be unanimous in the sentiment that the developer here indeed thumbed their nose at the process. My fear is that if you reduce the fines, it in effect takes away the teeth of this Code Enforcement Board. Without the teeth, it's going to be awful hard to enforce not only things now, such as this, but other problems in the future, and I think you need to keep those teeth. Just on a personal note and on behalf of the people who have called and contacted me, I can assure you there is unanimous acclaim amongst those people to keep the fines as they are and to keep the process intact. Do the right thing, do not reduce the fines. Thanks. (Applause) I apologize. I've got a meeting on Marco Island OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 at 9:30, but I wanted to be sure and get those sentiments across this morning. This has been a long 18 months, 17 months, whatever our process has been since we started, and I hope we can bring it to the appropriate conclusion. Thanks. MR. CLARK: Mr. Chairman, at this time, I would like to kind of refresh everyone's mind as to the course of action and how we arrived at where we are at. As you will recall, the last action on this matter was the 30th of June, 1994. And for the record, that was an Order Imposing Fines, Board of County Commissioners, Petitioner versus Elba Development. And the Order Imposing Fines stated: This cause came on for public hearing before the Board on April 22, 1993 1993 -- after due notice to respondent, at which time the Board heard testimony, received evidence, and issued a finding of fact. The Board -- at that time, the Affidavit of Noncompliance bearing the date of June 23, 1994, for the period of November 2, 1993, through January 13, 1994, was filed with the Code Enforcement Board, that affidavit. A substantial amount of evidence, a substantial amount of staff work went into this. At that time, the County Attorney's Office was consulted by this Board OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and by my office and a determination to determine whether or not the $500 a day fine could be imposed. In other words, the maximum amount of fines. The State statute says $500 a day. It was amended to can be imposed a maximum of. This Board then expressed a desire upon our request to do so. However, a research of that issue by the County Attorney's Office determined -- and the County Attorney will speak to this -- that even though the State statute said we could do $500 a day fine maximum, that in fact, unless and until we amended our ordinance reflecting that authority, that we could not do so. So from that viewpoint, the $250 a day maximum fine, staff is now recommending that the $80,500 accumulated plus the 18, which would have made it $98,500, be adjusted to reflect that. And I'm going to ask the County Attorney's Office to remark to this to the Board's satisfaction. But that amount be reduced to the $250 a day maximum allowable under law. That's the maximum under our County ordinance, which would accumulate to $58,500. And that would be for the noncompliance from January 14, 1994, to June 23, 1994, at $250 a day. Also for the noncompliance period of November 2, 1993, through January 13, 1994. That total amount would be $58,500 plus $2,380 in administrative OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 , n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 expenses that the County has invested in this from its own resources, personnel costs, and so forth. So the total that we are recommending the maximum fine be imposed, maximum fine and expenses, of $60,880. At this time, I'd like to ask the County Attorney's Office, perhaps he would like to articulate that finding. MR. MANALICH: Thank you, Mr. Clark. For the record, Ramiro Manalich, Assistant County Attorney. Mr. Clark basically described the sequence of events in this case. What we have is this Board is able to enter an order imposing fines. The authority of the Board -- and I talked about this with the Chairman individually, as well as with a couple of the attorneys on the Board -- and basically, the authority of the Board to impose fines stems from statute and from ordinance. The statute prevails and the ordinance cannot contradict the statute. In this particular case, back in June when the change was made to $500 a day, a reading of the ordinance by myself as well as the Board members at the time, indicated that that was authorized. However, when we have gone back to the statute, the statute makes very clear that in the case of a continuing violation as opposed to a repeat violation -- a OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 , , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 continuing violation being a violation that began at a certain date and took a certain amount of time to correct which is apparently what we have here -- as opposed to a first violation, correction and then a second violation, which we do not have here. In that first case where it's just a continuing violation, the maximum amount of fine available is $250. For that reason, my advice to the Board is that the only legal available fine is $250 per day. And that Mr. Clark's requested adjustment is correct, and that the Board is precluded from a $500 per day fine. Now that will still leave the full amount that Mr. Clark has described, to which the Respondent may make his argument. But I must say that as a matter of law, that $500 a day is not available and that order that was previously entered needs to be corrected to reflect that. Mr. Chairman, does the Board or any of the members have any questions about that? CHAIRMAN L'ESPERANCE: Any questions from anybody? I don't believe so. MR. CLARK: Mr. Chairman, on behalf of the County, I would like to articulate our reasons -- we always try to do this -- like to articulate the County's reasons for recommending the maximum amount of fine. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 , ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We believe that there are several mitigating circumstances in this case. That it is not merely a fact of they didn't comply; it is much more than that. The time frame, the untimely delays and the effects on all of these people. In earlier testimony by members of this community before the Board, they articulated very well the untimeliness of the delays, the effects of the delays, the problems, the building permits that were pulled. This has gone on for approximately a year and a half. In fact, it's gone on for several years. But the fact is when the County got involved in this, it's been a substantial amount of time. And in fact, the fines reflect that, a substantial amount of time. The Respondent may argue before you that they weren't given enough time to complete that. If you remember correctly, George Rice was the attorney excuse me -- the contractor duly authorized as a representative from Elba Development, came before this body and before this body stated six months is adequate time, we can finish it, no problem. That was their word, that was their time frame, that was their promise. That was an additional promise that was not kept. There have been promises after promises after OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 , ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 promises made and not kept, not only for and the promises made to these residents have been made for years. They have been broken. That's something I suppose we may not have necessarily the authority to do anything about. We do have the authority about the promises that were made before this Board, the promises that were made to this Board. The order of this Board was given that, as I again said they will comply by certain dates. They broke everyone of those dates. The fines imposed, the fines imposed cannot bring back -- cannot bring back -- several people, I understand, in this community who were promised these amenities several years ago and have died since then. They will never have the opportunity to use those amenities. The last few years of their lives that they could have used what they paid for, they can't get back; they will never get back. There is no way we can possibly return any of the pleasures that they lost, any of the promises that they were lost to. I think the minimum that we can do is impose the maximum amount of fine, and perhaps -- not only for this Respondent -- so this Respondent will learn that what the Board says and promises made should be kept. But perhaps additionally important, as an additional OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 1 A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 deterrent for other people who will toy with promises to people. Thank you. CHAIRMAN L'ESPERANCE: Mr. Clark, at this time do we have anybody in the audience that wishes to say anything? MR. LAZARUS: Mr. Clark, excuse me. I have a question. Mr. Clark, what's the purpose of the fines? MR. CLARK: The purpose of the fines, sir, the fine -- in any instance, a fine is available to us, to the County, to recommend to the Board and to be imposed for -- in my opinion, and I can speak for the County's opinion -- in my opinion, -the fine is for several things. The fine is to, if compliance wasn't brought about as directed by this Board and the effects of it, if the effects of it are extremely serious -- as I believe they are in this circumstance -- the fines are punitive in nature. The fines are in fact to -- they are an order of the Board and they are only not as a punishment measure, not as a punishment measure, they are to be imposed because the Board said they will be imposed. The Board has said in the order of Board, if you don't do such and such by this date, fines will be imposed. And if the seriousness of that failure to OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 , c::: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 comply is serious enough, that I think circumstances demand that they be imposed. Otherwise, in the County's opinion, we're speaking to a hollow bell -- we are ringing a hollow bell, if in fact we have special circumstances and mitigating circumstances such as this. If these circumstances don't demand fines, I would give to you that no circumstance would demand fines. MS. RAWSON: Mr. Clark, and if the fines are imposed and there is a lien, can the lien be attached to property other than this property, other individual property of the builder, rather than property that would affect these people? MR. CLARK: In my opinion and of course, I'm going to defer that to the County Attorney's Office but in my opinion, any corporate assets. This is a corporation, that is, the Respondent. That any corporate assets can be attached, whether that be the fees from the golf course or whether that be a corporate car, whether that be any corporate asset. (Applause) MR. MANALICH: In response to that, Chapter 162.09 provides that if the order imposing fine is recorded after it's rendered, it can constitute a lien not only on the land but upon any other real or personal OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 , ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 property owned by the Respondent. CHAIRMAN L'ESPERANCE: How many people would like to speak this morning? Could I see a showing of hands? How many people in the audience would like to speak? Raise your hands, please. Seven. MR. CLARK: Mr. Chairman, if we could, perhaps we could begin with those people who wish to speak who are witnesses for the County or wish to speak on its behalf, and then the Respondent may wish to either address them or ask questions of them, or I'm sure, make comments to the Board, at least. CHAIRMAN L'ESPERANCE: Mr. Clark, do you have a list of people that you wish to call then? MR. REINA: As a point of order CHAIRMAN L'ESPERANCE: Yes. MR. REINA: it's my suggestion, since we're here and, you know, it's better for me to discuss our issues with you after you have actually physically seen the facility , rather than show you pictures, that we might want to consider taking a short break -- five minutes walk through the facility so you know exactly what we're talking about. (Laughter) CHAIRMAN L'ESPERANCE: All right, please. Please. The acoustics of this room are a little bit reverberating; we have to be careful how much we talk. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ,~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Yes, Mr. Clark. MR. CLARK: Mr. Chairman, I would respond to that. Obviously I'm not opposed to it. But the point being we asked for this meeting to be held here, as well as the Respondent, and perhaps the Respondent's attorney can address his own -- I can't speak for him -- what his intentions were. Our intentions were to ask for this meeting to be held here for the convenience of these people. They have been inconvenienced enough. In fact, far too much, as the record shows. Our purpose was to provide a convenience for them. If the Board feels -- they have walked through here if the Board takes notice of the fact that the order has been issued, that they are in compliance, we have stated they are in compliance now, if that's sufficient for you, so be it. If in fact you wish to take that stroll through memory lane, I suppose that's up to the Board. MR. REINA: In all due respect, I think we have asked for the hearing to have a reduction in fines. That's the purpose of it. It's sort of our day in court. I would say to you that you can make a more informed decision if you have looked at the facilities rather than people telling you the condition of the facilities. However, if the Board does not want to OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 take advantage of the opportunity to do that, obviously that's not within our control, but we think that's a reasonable thing to do. These folks are familiar with the facility. It wouldn't take but five minutes for the Board to adjourn, walk through. These folks can stay here, have a cup of coffee. When you come back then I won't have to show you pictures, or the pictures will be a supplement to what you have actually seen yourself. To me, that seems to be a reasonable thing to do. CHAIRMAN L'ESPERANCE: We have a couple of comments, questions from Board members. MR. LAZARUS: I have a question for both Mr. Clark and Mr. Reina. Isn't the purpose of this hearing to decide on a reduction of the fine, which gets into the issue of the timing of the completion of the facility? Does it make any difference what the facility looks like at this point? MR. REINA: I think MR. LAZARUS: Isn't the question the inconvenience and the hardships suffered by the folks in this development by virtue of the failure to complete the project when it was promised to be completed, regardless of how beautiful or whatever the facility may be? OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 1 n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. REINA: Well, I think that question is all-encompassing. I really believe that a fair evaluation of whether my client's complied and whether he did so in good faith, you have to look at the structure. There are many ways of detailing a facility out that probably would have met with their contractual obligations. As you can see, there isn't anything that is skimped on in the facility. And a lot of the things that went into this facility and it is part of our argument -- were things that were required to be especially ordered because they're upgrades in the products that were used through an interior decorating firm, which had the subcontract for that, which has to order chair rail, paper, carpet and those things that have delays which all go into the time frame of completing a construction project. Now, if these folks would have been happy with these walls painted white and have a simple color of carpet put in here, we probably could have sped up the completion. CHAIRMAN L'ESPERANCE: I feel we're getting into a ground of new testimony here, which I think is unnecessary. Do we have any more Board member questions? OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. LOUVIERE: I don't have any questions. But I agree with him that's irrelevant, whether we view the facility at this time as it exists. We are here to fine you because you didn't complete on a timely basis, so let's go ahead and proceed. MR. REINA: Which is exactly my point. You have people yelling from the back of the room that it's still not complete. They would have you believe that this place is falling down and run down. MS. LOUVIERE: I walked through and I made sure what had been done before I came in here. MR. REINA: Thank you. MR. CLARK: Mr. Chairman, the County will stipulate that it is completed to the point that is required by the ordinance, by the building codes and by the order of this Board. We have stipulated it is completed to that. Now whether they are happy with everything, that's another issue. I would like to address one point the Respondent made and would like to make a comment. Mr. Reina is highly regarded by the County and is highly regarded by me, and this in no way reflects on Mr. Reina. We're talking about the client he represents, the Respondent. If someone would have us believe that painting this wall would have gotten this done earlier, the OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~1 1 Board did not order how it was done. To be done, to be 2 completed according to the order of the Board. And in 3 all due respect, those four or five people who have 4 died since then and not been able to even use any of 5 this, wouldn't care what color these walls were 6 painted. They would like to use them. 7 MR. ANDREWS: I agree with you. Our only purpose 8 here is to hear and decide on a reduction of the fines. 9 We are a quasi-judicial body and all these whatever 10 they want to talk about, defects and so forth, is out 11 of our realm. We have nothing to do with that. For 12 that we have a staff that handles that part of it. So 13 - I think we should get on with our position and 14 determine what we are going to do about this fine. 15 CHAIRMAN L'ESPERANCE: Yes. I'd like to say one 16 other thing, too. Please keep all your reactions in a 17 very, very civil mode, if we can. This room is not 18 designed for this many people. If we have any 19 uncontrollable outbursts, I'm going to have to ask 20 everybody that is standing up to leave. So let's all 21 try to keep it a little bit civil so we can all stay 22 together and listen through the whole proceedings. 23 Thank you. Mr. Clark, see if we can keep this as 24 brief as we can. 25 MR. CLARK: If we could, those people who would OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 .,., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 like to speak, stand up here. CHAIRMAN L'ESPERANCE: Mr. Clark, I'd like to put a time limit on these folks of three minutes, please. MR. MANALICH: Mr. Chairman, as a point of clarification, there was a motion made, as I understood it, for a tour of the facility they have. Does the Board have a ruling on that motion? CHAIRMAN L'ESPERANCE: What is the pleasure of the Board? MR. ANDREWS: I move we don't participate. CHAIRMAN L'ESPERANCE: Is there a second for that motion? MR. ALLEN: Second. CHAIRMAN L'ESPERANCE: Motion and second not to take the inspection. Discussion at this time? All those in favor signify by saying "aye". Any opposed? Please proceed. Three minute time limit, please. MR. CLARK: Ma'am, if you would state your name for the record, please, and your address. MS. PETTIT: Kay Pettit, 908 Marblehead Drive. My husband and I are year round residents in the Montclair Villas. CHAIRMAN L'ESPERANCE: Excuse me. Do we need to swear these people in? MR. CLARK: I think it would be appropriate. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~~ 1 (Thereupon, all those wishing to speak were duly 2 sworn.) 3 MRS. PETTIT: We are year round residents of the 4 5 6 7 8 9 10 Montclair Villas. I could tell you stories of dates I was promised, starting with 1990 when I first signed a contract. That does nothing for what we are doing here now. I would urge you, he's already had his fine reduced, legally. We are victims in this room. Please at least stay with the maximum you can. Give a signal to Elba in the future or any other developer. Protect 11 the citizens of Florida. 12 That's all I want to ask you, is let's talk about 13 tomorrow, our children, the rest of the construction in 14 this place. He's already had one reduction. Please 15 don't make us victims much longer. Thank you. 16 MR. CLARK: If everyone who wishes to speak would 17 raise your right hand, maybe we could -- 18 (All potential speakers were duly sworn by Mr. 19 Clark.) 20 MR. DONAHOE: Edward Donahoe, 806 Marblehead 21 Drive. Mine is sort of a personal problem. I put a 22 down payment on a house in May of 1992 and it hasn't 23 been started yet. That's all I have to say. 24 MR. CLARK: See me when we get done, if you would, 25 please. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~A 1 MR. DONAHOE: Okay. 2 MR. SCHULTZ: Wolfgang Schultz, 6860 Dennis 3 Circle, Unit K-101. You asked what the purpose of the 4 fine was. Yes, it's punitive. The man signed a 5 contract with us, but he didn't comply. Why are we 6 bitter? For one simple reason. For two years not once 7 did he or his company return a personal phone call. He 8 was never there, it was never returned. So he never 9 showed up to any meeting to explain the situation, 10 which we all would be understandable because of 11 different economic circumstances during sometime. Not 12 once did he face us as a group and explain as a 13 - gentleman what his problems were. We might show some 14 understanding. 15 Secondly, to assess any of the assets here with 16 these punitive damages, I think that's 17 counter-productive. After all, we're going to be the 18 owners of this eventually, so if you assess a fine and 19 then impound anyone of these, it's counter-productive; 20 we would end up eventually paying for it ourselves. 21 I think the man must comply and he must the 22 only way he can do it under the legal system is throw 23 him into jailor make him pay a fine which will make 24 other builders comply. It's a warning signal, you must 25 comply with the County. I think that's a very, very OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~c::: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 simple issue and I think that's what it should stand now. Thank you. MR. CLARK: Yes, sir. MR. BECKWITH: Robert Beckwith, 6860 Dennis Circle. I just want to refresh the Board's memory on the timing of this thing. This building was not supposed to be completed in November of 1993. That's when it was ordered to be completed by this Board. The prospectus when we bought here said it would be finished in 1992. So a year and a half later, you ordered it completed, and it wasn't anywhere near completed. Then it took another 10 months. So really, we're looking at three years of broken promises and not just 10 months. So keep that in mind when you're considering the fines. MR. NORMAN: My name is Donald Norman. I live at 902 Marblehead Drive. All I have to say to all of you is if I want a sandwich next door, I have to bring it myself. MR. CLARK: Is there anyone else? Yes, sir. MR. RONDO: I'd like to say something. Paul Rondo, 6700 Dennis Circle. We're in this meeting room today sitting on rented furniture. We've talked about taking a tour of the facility. The room next to us is OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 completely empty. Another room is completely empty. Shower curtains were only allocated for the women's restroom, not the men's restroom, because for some reason, it's not felt necessary for us. My suggestion to the Board would be we have been the ones that have suffered. $58,000 in fines, I think it would make sense to try to come to some kind of understanding to get the inside of this finished using some of that money. After today and this is done, we have no recourse to see that furniture gets in this room or that the things that are promised next door in the woodworking room are completed, the ceramic room. We have no pool furniture: You could do something for us today by creating some type of situation where he'd have 30 days to whatever monies were spent on the inside could be towards a reduction of some sort in his fines. Something to help us out. That once you leave today, we're done and our recourse is done with the County, as I understand it. So I think it would be intelligent to somehow come to some type of arrangement that would help out the homeowners. The way the clubhouse stands right now, from a sales standpoint, the people that are coming in are seeing empty rooms, empty promises, all of that. Our OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 property values are directly related to the success of this community. Elba Development doesn't feel, from a sales standpoint, they need to finish this room, finish these things. We're going into season. That's how this community is going to become successful, by this being finished. And I think it would make sense to allocate some way to get the inside finished, from the fines. MR. LAFORET: I would like to respond to the young man. Are you certain that there is no furniture, exercise equipment, or anything else in this building? MR. RONDO: No. I say that this room is. We're on rented chairs today. It's not finished. That room isn't finished. The only thing that is in this, to the best of my recollection, is exercise equipment and pool tables and chairs in the men's and women's card rooms. MR. LAFORET: I can recall at a prior meeting -- and I'm sure there are records -- that I specifically asked the Respondent did he have the furniture and equipment on hand or was it on order. If it was on hand, was it on the premises or in storage. And his reply to me was it was on the premises. (Public says "no".) MR. LAFORET: Well, I don't want rebuttal. I just want to bring a point. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIRMAN L'ESPERANCE: Mr. Lazarus, go ahead. MR. LAZARUS: I have a question for the County Attorney. This was an intriguing idea about using some of the money to complete some of the unfinished pieces. I'm not sure we have the authority to do that, and I'd like to ask County Attorney whether we do have such authority. MR. MANALICH: It might be possible to do something along the lines described, as long as providing in the order that the fines would be reduced if it can be shown that certain monies are being spent toward these purposes. I'm a little bit more concerned about the situation where you actually go out, foreclose, collect the fine, and then appropriate those fines to that use, because I do not see any statutory authority, although I would be happy to research that and see if there were any authority. But the first alternative might be more doable than the second. MS. LOUVIERE: The way I look at it, I don't think we are looking at a reduction. I think we have $60,880 to work with, of which $2,380 are going to be administrative, and we know we can't touch that. So I think we're asking if we work towards the additional the $58,500 that are left. And can we be specific as to what it can be used for and that's where you're OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ..n 1 saying you are going to have to look into it? 2 MR. MANALICH: Obviously, you're saying the 60,000 3 amount in fines; right? 4 MS. LOUVIERE: Right. I don't foresee us really 5 reducing them. I'm saying just using that money for 6 those specific purposes to finish doing what needs to 7 be done here, instead of liening the property overall. 8 MR. MANALICH: I can research that. I don't know 9 of any authority offhand which allows a fine to be 10 converted to private use. But I'm not saying it can't 11 be done, I'm saying it would have to require some 12 study. 13 - MR. ANDREWS: If that were done, that would have 14 to be before the County Commission. So it's not up to 15 us. We have nothing do with that. 16 MR. MANALICH: It could require that stuff also, 17 because at that point they are county funds. 18 MS. LOUVIERE: Exactly. Yes. So go ahead, Dick. 19 MR. MANALICH: Typically these collections are 20 used to fund the whole system of the Code Enforcement 21 Board and its whole expenditures, but -- 22 MR. CLARK: Mr. Chairman, I don't know how this 23 would work out, but as Mireya has stated and many of 24 you have stated, I don't know that there is any 25 prohibition that if the fines were collected, put in OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the County's coffer, no matter what funds you take them back out of, if the County Commission wants to take money out of some fund and offset, I don't know that that's impossible. But that was something the County Attorney's Office would have to look at and the County Commission would have to. But I think we're getting ahead of yourselves now. CHAIRMAN L'ESPERANCE: Yes. Mr. Clark, let's proceed, please. MR. STAHL: Ed Stahl. I live 6665 Harwick Court. To do what you're just talking about is just turning around and giving the fine back to the man. (Applause) I have a couple other questions. One thing, I would like to know what his building status is in this county. Is he still able to function here, can he build where he wants to build or is his license in jeopardy? CHAIRMAN L'ESPERANCE: Sir, that's a matter for a different time frame, I'm afraid. MR. CLARK: I'll address that after we leave. We probably shouldn't do it here. MR. STAHL: Okay, I have another comment to make. I have several friends who have worked on various projects for him here that still don't have their money and some of them worked on the clubhouse here. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~ 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIRMAN L'ESPERANCE: Sir, again, that's a question for a different forum, I'm afraid. Yes. MR. CLARK: Someone else? MR. VALENTINE: Don Valentine, 525 Saratoga Circle. Some of the things that have just been discussed here were what I was going to speak to. Any fine that is imposed will really be paid by us if you are going to attach the green fees from the golf course and if you're going to put a lien on the property that we have to eventually pay. So he's not being punished for what he has not done. We're the ones that are being punished for that. I don't think that's fair. I would like to suggest that you may delay the imposition of fines -- just a moment, let me speak if you will, please and have some of these furniture improvements and so forth be furnished by them, and then use that, as the young fellow suggested, use that to reduce the amount of the fines. That gives us some benefit and it does not make us pay for that. MR. CLARK: If I might address that. Mr. Chairman, the staff proposes and is recommending that the fines be imposed. However, we are going to try to be very creative in working with the County Attorney's Office in obtaining the fines if they're not paid willingly, so that they do not become a burden on the OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 residents. That's not the intent, that's not the desire, nor will we proceed in that direction. CHAIRMAN L'ESPERANCE: Any more public speakers? MR. PENNY: Phil Penny, 908 Marblehead Drive. How can you trust him? We've already paid for the furniture in all this place, so what good is that going to do? I think you should just take his money and everybody go home. MR. CLARK: Are there any other speakers? CHAIRMAN L'ESPERANCE: Mr. Reina. MR. REINA: Ladies and gentlemen, Code Enforcement Board, my name is Leonard Reina. I represent Elba Development. I have just handed each one of you a package which includes an index including the history and overview of which I'm going to -- it's two pages -- I'm going to read this into the record so the record's clear. It has the site plan for here, it has a clubhouse floor plan, it has a picture of the completed clubhouse, it has a construction pictorial that shows you what was done and the approximate date that it was done. There is a Contractor's Affidavit and there are letters from residents about what they think should be appropriate action. If I can, I will read into the record my History OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and Overview, and then make some comments. Embassy Woods is a golf course community in Collier County, comprised of 300 acres, more or less, which will provide for the development of approximately 1,300 single family and multi-family residences, developed by Elba Development Corp. Elba Development has been building and developing in Collier County for over 10 years. Elba is responsible for the successful development of over 2,000 residential units, including Royal Wood Golf & Country Club, Sandpiper Bay, Monte Carlo and others. The approved PUD community of Embassy Woods at Bretonne Park was purchased in late 1989, with development commencing shortly thereafter. The original financing for Embassy Woods was provided by Southeast Bank. Southeast Bank went into receivership in approximately 1991 and was unable to honor its $24 million loan commitment, which included financing for the master amenities, including the clubhouse, pool, tennis courts, et cetera. This forced Elba Development to seek financing elsewhere. Elba Development diligently sought financing from other sources nationwide during the country's most recent economic downturn and recession. As you can imagine, finding a lender willing to commit to a loan OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in the amount of $24 million for a project with a build-out of approximately five years is a difficult task. Lending institutions have become increasingly more conservative in their lending practices and require a myriad of documentation, review and approval by committees that can take anywhere from six months to a year or more to complete. In spite of the fact that financing was not available, Elba Development funded a portion of the Embassy Woods Clubhouse from its own retained earnings until such time as Elba Development's resources were exhausted. Elba Development was finally successful in obtaining new financing from the First National Bank of Boston which originally only included the vertical construction of residential units. However, with the pledging of additional assets by the principal of Elba Development Corp. which were not included in the original loan from Southeast Bank, the First National Bank of Boston agreed to fund the build-out of the clubhouse and master amenities. In approximately April of 1993, hearings were held by the Code Enforcement Board wherein Elba shared with the Board the status of all negotiations and progress in confirming the availability of financing to move forward with the project as planned. However, the OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~l:: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board ordered that the entire master amenities be completed within six months over -- it's my understanding -- the protest of Elba, who reiterated that six months was an overly optimistic timetable. Even though the First National Bank of Boston agreed to fund the project, since the permits had expired, Elba was required to renew the permits so as to allow the newly hired contractor to recommence construction. In June of 1993, the financing having been secured, permits renewed and a contractor hired, construction began anew on the clubhouse, which was substantially completed by approximately December of 1993. Even though the clubhouse was substantially completed in December of '93, before Elba could receive a C.O., it was required to give an easement to the County for a fire and sprinkler line, which required the consent of Southeast Bank and its successor, First Union, who still held a mortgage on the property. As you can imagine, dealing with a lending institution that went into receivership and its successor is not an easy task. Attempting to explain to them the reason for agreeing to an easement and receiving the bank's consent caused additional delays in receiving the C.O. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Notwithstanding these problems, the c.o. was issued in June of 1994, or approximately one year after financing was in place, a new contractor was hired and construction had recommenced. During the process the owners at Embassy Woods understandably became impatient. The Code Enforcement Board continued to levy fines against Elba Development in an amount totaling approximately $100,000. The levying of fines was not instrumental in the project being completed any earlier or in an exceptional manner inasmuch as the elements causing the delay in the completion of the project were not under the complete dominion and control of Elba Development but rather involved many others, including many lending institutions, the new contractor, and the County's permitting and inspection processes. In summary, Elba Development has completed the clubhouse in an exceptional manner. With approximately 850 more units remaining to be constructed, Elba Development has much to do at Embassy Woods before the project is totally built-out. Any attempt to collect the fines levied against Elba Development will only result in Elba Development's time, attention and resources being diverted from completing the project. Therefore, it is counter-productive and not in the best OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 interest of the unit owners or the County to seek collection of the fines. Accordingly, Elba Development is requesting that the fines be reduced to the actual cost to the County for its Code Enforcement activities. This would make the County whole and allow both the County and Elba to concentrate on more productive activities. Even if the County reduces the fines that have been levied, Elba Development will have already suffered penalty enough as a result of adverse publicity due, in part, to a lack of full understanding and appreciation of all of the factors creating the delays in the construction of the clubhouse. If you look at Exhibit B, you can see how big a project Embassy Woods is. That gives you the pictorial of what is anticipated to be here when it's completed. If you look at Exhibit C, you can see the size of this clubhouse. We're not talking about a 1500 square foot house. We're talking about 15,000 square feet of construction here. We're talking about tennis courts, parking lots, pools, landscaping, sprinklers, and all the things that go into that. And to complete this project of this size in one year under the circumstances that Elba was suffering is not an OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 unreasonable time period. Let's go on to look at what it looks like. There is a pictorial there of the front and rear view of this structure. E begins the pictorial history of the construction phase. And if you want to take the time to go through this -- which I'm not going to do at this time -- you can see that there are dates above these pictures that show you that all along this period of one year, there are things being done. You get the feeling, as you look at these pictures, the immensity of completing a project this size in a year. Now you have to take into consideration we are not talking about the best of times to complete a project of this size. This isn't the 1980s when everybody had full crews and you could put 50 guys with hammers out here and do something quickly. We're talking about in the worst economic recession in recent history in Collier County, where basically most folks went out of business. I will tell you what I think is unusual about the matter we have here today, not the delay, if you even consider it a delay, that it took to finish this clubhouse. What's unusual is that it is finished and it's finished in a first class manner excuse me -- is that it is finished and finished in a first class OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 manner. They weren't left with a developer who walked away from this project and left it sticking in the ground, just bricks, for years, weeds growing over it for somebody else to come and try to foreclose on it, get a new builder to come in and change the whole scope of it and build something totally different. This project was completed as contemplated and it was done within a year's time. Now you tell me where you're going to go and get $24 million worth of financing if you are a builder in this community and that, through no fault of your own, the lending institution that has made a contractual commitment to loan you $24 million and goes broke. Now where do you go to get $24 million? I don't think the Code Enforcement Board can solve that problem. I don't think the people in this room can solve that problem. I think that that is a problem that is beyond all of us and it's a problem that we all have to deal with. You know, in America we are all becoming a society of victims. Everybody wants to blame somebody else for their problems instead of saying some things in life happen to us. Some people die, good people get injured, all these things happen to us. Is it somebody else's fault all the time? Do we have to blame OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 An 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 somebody else? Does somebody have to step in and write us a check every time we have a problem? And the answer to that is no. What it takes is a full and fair understanding of all the elements that go into this problem, to try to come to a reasonable conclusion. Now Elba Development has 850 units to build-out. Their reputation has been damaged. To continue to levy fines on them, the adverse publicity, the attempted collections activity, is that going to do anything to help this developer finish this project? You can't have your cake and eat it, too. If you want to run these guys out of town, if you want to hurt them, punish them because people are unhappy that the economy took a downturn, that a lending institution failed on a $24 million contractual loan commitment, and that these guys scrambled around for a year to get other financing -- had to go to Boston to find it and had to pledge other assets that were unencumbered to get the money to do it -- and finished it, all within a year's period of time, I think they deserve some recognition for that instead of the scorn that I keep hearing from here. These folks in this room have their own point of view and I do not argue if I was in their situation I OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 .111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would be frustrated, I would be furious. And they have a right to be. But let's try to be constructive about this. Everybody in this room has the same exact objective. Do you think that Elba Development said gee, let's start a project, let's run it into the ground, let's make everybody angry, not complete it, let's get a whole bunch of fines, and then we'll come in, have a big day and ask everybody to reduce the fines and get away with murder. That's absolutely ridiculous. Elba Development is in the business of developing and constructing and selling good quality -- excuse me -- good quality housing for people in Collier County. The fact that's true is evidenced by all these folks that bought in here. They thought it was a good deal, they thought the product was a good product, a good location, that it was a value for their money. And it continues to be. We have had a problem; there is no question about that. But we are not in control of the world. We are a developer that's trying to earn a living here and trying to keep our reputation and trying to produce a product that can be sold that people are happy with. We don't want this kind of animosity. We want to continue on and build out the rest of the project and OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 A~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not have to walk away from this or get it involved in foreclosure proceedings, and then what will we have? We'll have a project that's failed. Try to sell your home in a project that's failed. I bet you six months ago if these folks went to sell their house they would have had a problem. Now if they want to sell their homes, they can say the clubhouse is completed and it looks damn good. What I'm saying, while we understand the frustration of the folks in this room -- CHAIRMAN L'ESPERANCE: Please, please. MR. REINA: -- I think it is, in all fairness, a little misdirected and not really in their best interest. As much as, if I was in their seats I would want to see some heads roll, I think we've got the wrong guy. I think even if you say we got the right guy, even if you say we got the right guy, you're going to cut your nose off to spite your face. These people have to finish this project. If this project isn't finished, the value in your housing is not going to be here, folks. The longer it takes them to build it out, the longer it's going to take you to get full value for your project. So my question to you is do we really have the right person in this room? I mean maybe it should be OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 A~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the guys at Southeast Bank that made all the bad loans that caused them to fail. So where does it stop? UNIDENTIFIED SPEAKER: If 58,000 bucks is going to put them under, they are going to go under anyway. CHAIRMAN L'ESPERANCE: Please. MR. REINA: So I'm going to conclude here with a couple comments. I think we all share the same objectives. The residents want good housing, they want a place they can be proud to live in. Elba Development wants to continue construction and sell homes and make a living. They are not in this business to make people angry or ruin their reputation or be sued or be fined. I think the County Code Enforcement the County, first of all, has an obligation to try to assure that the ordinances are complied with and they have done everything they could. I think the Code Enforcement Board has an objective here of trying to make sure that when the County finds a problem, that they do what they can to enforce it. So we all have the same objectives here, which is to provide good, clean, value housing for people in Collier County. So what is the purpose of the fines? Well, you've heard that it's to, in one aspect, to punish. The other aspect is, I guess, to ensure compliance, and the other aspect is to deter future noncompliance. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 AA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Well, the compliance is basically done. There are many other things that Elba Development needs and wants to do here. If you take 50,000 or 15,000 or $100,000 away from Elba Development, it comes from this pocket and it goes someplace else and it's not there when they want to take the money out of this pocket to do something here. You can't have it all. If you want to fine him and you want to hurt him, you're just kicking yourself in the leg. The best thing you can do is to wish just like countries that have disputes, border disputes -- they've got to wish that everybody can put this stuff behind them and go forward and live together, because it's not going to change. There's always going to be that border there and there's going to be a difference of opinion. But it's not going to be constructive for you to fight with the very guys that are required to finish and build out this project and do a good job for you. If you take their money, if you take their reputation, if you insist we are going to have more bad publicity about this, if you are a purchaser out there moving into town, are you going to come to Elba Development and buy from Embassy Woods? I think you would think real hard about it if you went to your lawyer and he OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 AI:: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 says do you know they have 50,000 worth of fines and they have liened all their property. As much as Mr. Clark -- I respect his opinion says he's going to try to craft this so it doesn't hurt you, I can tell you that when you a file a lien against an entity, it's a lien on all of their property, everything, including this clubhouse. So everybody who buys a proposed unit out here, in order to get this project finished, their lawyer is going to look at the abstract and say there are liens on the clubhouse. Guess what? No deal. So does it accomplish anything for you to ask this Code Enforcement Board, who apparently is inclined to do what you want them to do. They are inclined, I think, from looking at some of the faces and the comments I heard, to fine Elba Development $60,000. And I'm telling you that it's your responsibility to think about this very hard and give them some guidance that that's not really what you want. Because you be careful what you dream because those dreams have a way of coming true. You may get your $60,000 fine and then you may be stuck with a nightmare of trying to figure out how to sell your unit one of these days when you want to go someplace else and can't do it because guess what, the County is going to spend another year OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 A~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or two trying to figure out how to collect those fines. It is not an easy process. UNIDENTIFIED SPEAKER: Put him in jail. MR. REINA: The purpose of the fines is not in your best interest. It's not in anybody's best interest. What is in everybody's best interest is for us to put this behind us. Let's get some good publicity out there about Embassy Woods, about what a great clubhouse it is, how good it looks UNIDENTIFIED SPEAKER: How long does the attorney have to rant and rave like this? CHAIRMAN L'ESPERANCE: Sir, please sit down. He has the equivalent time of everybody else who spoke here, which is about 22 minutes. He's been speaking for 14 and a half. MR. REINA: In summing up, the reasons to reduce the fine, first of all, let's take a look at the intent. There's been a lot of talk here about how these guys thumbed their nose at the County. Now let's think about that. They are a company that's been in business for 10 years. They have put together a beautiful project here. Now do you really think that their intent was to get in here and mess this project up, to lose a $24 million loan commitment, stall this job, irritate the Code Enforcement Board and get fined? OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 A., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 That was not their intent. They have never intended to do that. I will tell you that the interest -- figure it out at 10 percent on $24 million, do you know what it comes out to a day? It's probably close to 10,000 bucks a day. Now if that isn't enough deterrent to get you to do what you can do, a $60,000 fine isn't going to help. You are just adding problems on top of problems. And again, not only that, it's the bad publicity, it's the bad precedent that you set here about your community, and it's the fact now you tie their hands behind their back when they try to build-out and sell out this project. Don't forget, they have to borrow money to do these things. When they go to borrow money from the lenders, what do you think the lender's lawyer does? We're not going to give you a construction loan on this next project, you guys have liens you haven't paid. When we can't pay the liens, we can't sell the units. We can't sell the units because we have the liens, and it's a big circle. You're all part of it. Like it or not, we're all in this room together to solve the problem, and I don't think the problem's going to be solved by demanding OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 .110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 retribution. I think a full and fair evaluation of this is we are all unhappy that it took this long to get here, Elba Development included. They have a reputation that has been injured and it's going to take a long time to correct that. But the best way they can do it is for us to move forward. And it's just like a lawyer when he tries a case, you know, you got to look at things in the best possible view. You got to move forward with optimism. You can't be negative because all that does is scare other people. And I'm telling you that really what's in everybody's best interest here is to go ahead, let these guys finish this project, let's not get any more bad publicity. Don't ask these folks to fine them the full amount of the fine. My suggestion is that what's fair is they pay for the cost to do this. And that we all recognize that there are a lot of factors of which all of us don't have control. It's real tempting to want to do black and white, but it doesn't work. These guys aren't all bad and they are not all good. Okay. There may be some things they could have done better or differently. But they finished your clubhouse and they did it in a reasonable period of time, considering what they had to work with. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 An 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Finally, let me say to you as well, that when you look and say we're going to impose a fine, what does a court do when it has a situation like this? Courts generally will not impose an order which one, is not enforceable. It does no use for you to tell a guy to put the oak trees back after he's cut them down and they don't exist anymore. That is an order that a court will not enter into because the courts have long experience in trying to craft relief and know when you make an order that a guy can't comply with you got nothing but trouble. It doesn't make sense. To ask these guys to pay a fine when they are already having financial problems trying to complete this, is basically asking somebody to do something which is not possible. So you're going to have an enforcement problem. So if they go ahead and order the fines be levied, they have an order now, they've created another problem. We'll be back here months from now; you did what we asked you to do, you levied the fine, these guys haven't gotten to first base now, we want you to collect the fine now, and it will be a whole process where these guys are going to be getting phone calls from you saying when are you going to collect the fine. That's the phone call you're going to be getting OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 1::1 1 MR. REINA: First of all, this Code Enforcement 2 Board, I believe, has a history of reducing fines. We 3 are not coming here asking you to do something that is 4 unusual. I think it's standard practice. And I will 5 say to you, that if you look at some of the other fines 6 that you have imposed against folks for not building 7 their house in time, look at what you've done, I think 8 reduction is a way of doing business. You inspect it, 9 you get your compliance, then you do what makes sense. 10 I know we have a lot of folks out here that are 11 upset. I hope that's not going to sway you into 12 varying from your tradition of trying to look at things 13 - and saying what are we trying to accomplish and how do 14 we do it and is a reduction appropriate. I think based 15 on past history we are not singling these guys out for 16 some special treatment here. I'm asking you to do what 17 you do as standard operating procedure. 18 Finally, those folks that are not happy with Elba 19 Development and this development, you know what their 20 recourse is? Not to buy homes. It's not going back 21 and doing things you guys are already are, where you 22 already own the homes. I understand that. But in the 23 future, that's what people will do. If we continue to 24 have a problem they won't buy homes here. That doesn't 25 help you. We are all in it together. We got to solve OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 I::~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it together, unfortunately, but I think we can do it. Thank you. MR. MANALICH: Mr. Reina, are you requesting that that material be moved into evidence as part of the record? MR. REINA: Yes, I am. MR. MANALICH: Mr. Chairman. CHAIRMAN L'ESPERANCE: We need a ruling that this packet submitted by Mr. Reina be entered into evidence by a motion, please. MS. RAWSON: So move. MR. LAZARUS: Second. CHAIRMAN L'ESPERANCE: We have a motion and second. What do you label it as, Mr. Manalich? MR. MANALICH: It would be Respondent's Exhibit 1 as part of this hearing. CHAIRMAN L'ESPERANCE: Respondent's Exhibit 1. Any discussion? All those signify by saying "aye". Oppose? Yes. We have a couple questions. MR. LAZARUS: Mr. Reina, I have some questions, please. First is, what was promised to the folks who decided to buy here at Embassy Woods when they first contracted? Was there a time frame established for completion of these facilities? Please, folks, I want to hear the answer from Mr. Reina. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ""~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. REINA: I don't know the exact dates. Mr. Meadvin is telling me approximately two years MR. LAZARUS: Two years from what time? 1989? MR. REINA: From the time they originally started selling in '90. MR. LAZARUS: Did -- in the process of running into the financial difficulties and the problems of completing these facilities, did Elba make several efforts or any efforts to come back to Mr. Clark or any of the folks in county government saying look, we're trying to comply, we're trying to get this thing completed, we have run into problems, let us work with you and solve the problems and please understand the reasons for the delays. Did that take place at all? MR. REINA: I can't tell you that I have a complete knowledge of the history. Mr. Clark obviously would know that, Mr. Meadvin would know that. I would tell you that I'm sure that there's been a breakdown in communication. I'm sure, as I said before, there are no blacks and whites in the world nor in this matter. And that probably if they had had a better chain of communication -- and if I had been involved, I can tell you that there would have been a better line of communication about this problem -- it may have gone easier. But, you know, it's sort of like when you owe OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 1 \. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ""A somebody money you sort of avoid them, and I think MR. LAZARUS: That usually creates problems, doesn't it? MR. REINA: That's exactly what happened. MR. LAZARUS: My next question is when you said that the fines should be reduced, except the cost to the County. Are you asking us to reduce it to $2,380? Are you serious? MR. REINA: Yes. Yes, I am. MR. LAZARUS: Now what are the resources of Elba Development Corporation? What's their net worth? MR. REINA: I have no idea. You know, I doubt seriously when you're dealing with a corporation that has this many things in the fire, it's sort of like if you know how much money you're worth, you're not worth a lot. I don't know who would know that, off the top of their head. MR. LAZARUS: If I understood what you were saying, you estimated roughly -- and I'm not holding you to a precise figure -- but that it would cost Elba about $10,000 a day in interest payments. MR. REINA: I'm just taking $24 million MR. LAZARUS: Not holding you to that. I'm just saying generally -- it could be nine to 11,000? MR. REINA: Right. It could be seven. It's a lot OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 1::1:: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of money. MR. LAZARUS: If I could equate that with what the fine would be, that's about 6 days' worth of interest, $60,000; is that right? MR. REINA: It may be. But it's an additional $60,000, no matter how you label it. MR. LAZARUS: Of course it is. Now with respect to your statements about parties, and don't blame us, don't blame the other one -- as between the innocent parties in a situation like this, who should bear the brunt of any enforcement action? MR. REINA: Well, quite frankly, in my opinion? MR. LAZARUS: Nobody? MR. REINA: No. Here's where the problem lies. If you go into business and someone promises you they are going to finance you to the tune of $24 million and you break ground -- and by the way, I didn't tell you this. But that golf course was completed before the first units were sold; am I correct? That golf course is a tremendous outlet, and most developers don't do that. So I'm not sure if I answered your question. MS. LOUVIERE: I'm going to let Charlie talk and then I'm going to go. CHAIRMAN L'ESPERANCE: Charlie. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 I::~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ANDREWS: I want to speak to Mr. Reina. Number one, this Board being quasi-judicial, our only object is compliance. That is the only one. You mentioned a whole bunch of other ones, but you know better. In other words, a fine is our only weapon to force compliance. That is our number one. We are not in here to make money; we don't want to make a dime. As far as I'm concerned, you already got around a $40,000 reduction because it was $100,000, which when you came MR. REINA: I beg your pardon. But really, the County is telling you that that was an improper fine. MR. ANDREWS: Well, until that came about. So it's been reduced. Okay. This $2,000 in here doesn't even begin to cover our costs. I mean those are just bare amounts. It's costs to us. It's costs to the County. So we're talking nits and lights here, but as far as money is concerned. And so I don't see, if these people are not -- have no influence on us about the fines. The fines are our business. That's our weapon. So they could talk to us all day and it's not going to influence us. We've heard all these hearings before, we know what went on. And if we hadn't imposed this fine, would this building have been here today? OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 l::~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. REINA: Yes, sir. MR. ANDREWS: Well, I don't think so. Because we've done this before and this thing has been drawn out just as long as it could. MR. REINA: Well, my question is MR. ANDREWS: Wait a minute. When we get through, maybe three or four years, whenever anything ever gets finished and we got a big fine and we reduce it to zero, what's our weapon? We might as well abolish the Board. So this is very small and I don't see why we're here arguing about it. MR. REINA: May I make one comment about that? Number one, a reasonable fine is something that is hard to -- probably hard to argue with. I think the proper approach is to get reimbursed for your expenses. But if you're saying we think that our expenses aren't 3,000, are you going to hurt my feelings if you say we think we're going to throw some more on that to make sure we cover some of the things that weren't included in that? I don't think so. But between talking about the maximum fine, which the County has told you is around $60,000, and not $100,000 so we're not really dealing with that figure because that's not really legal. MR. ANDREWS: I understand. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ""0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. REINA: So somewhere between $3,000 and $60,000 there is a reasonable number. I think it's closer to the $3,000 figure for all the reasons I told you. MS. LOUVIERE: Okay. As I understand it, this is a 300-acre, PUD development of 300 acres. I understand what happened to your project in the financing, that you had this financed. What I am concerned with was the way it was managed. If you had obtained a Subdivision Master Plan, if you went through the site development process -- or rather subdivision -- you recorded your plat, you put in to build your infrastructure, why didn't you phase this project? Why wasn't Phase I completed, your amenities and the golf course, and then continue with your other phases? You would never have gotten in a financial jam. MR. REINA: Can he respond? MS. LOUVIERE: Of course you can. MR. MEADVIN: It was phased. It's been phased into three units -- MS. LOUVIERE: You have three phases? MR. MEADVIN: I and II are platted, as a matter of fact. CHAIRMAN L'ESPERANCE: Mr. Meadvin, identify yourself for the record. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ""n 1 MR. MEADVIN: I'm sorry. Kenneth Meadvin. 2 (Thereupon, KENNETH MEADVIN was duly sworn by Mr. 3 Clark.) 4 CHAIRMAN L'ESPERANCE: This is the last time I 5 warn you. If we have any more breakout like this, I am 6 going to have to clear the people that are standing up. 7 Please continue. 8 MR. MEADVIN: I'm sorry. I just want to get off 9 the track for a second and respond back to Mr. Lazarus. 10 Extensive sharing of information was done with -- who 11 was your predecessor? 12 MR. LAZARUS: Michael padone? 13 MR. MEADVIN: Okay. Thank you. We had the County 14 Attorneys involved with the First National Bank of 15 Boston, we had contracts for Mr. Padone's review, we 16 had conversations with the bank's attorneys, we had 17 conversations -- everybody was very, very, much up to 18 speed with regard to our process on how to get to the 19 juncture where we were going to replace our financing 20 and be able to move forward with the completion of this 21 22 23 24 25 project. In very much detail with Mr. Padone. I believe Mr. Manalich was involved. And who was the other attorney? MR. MANALICH: Mr. Ivanovich? MR. MEADVIN: No. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MANALICH: Bryant? MR. MEADVIN: Yes. He was involved. So there was extensive sharing of our stages of where we were periodically through this whole course of events. MR. MANALICH: Mr. Chairman, that was principally in regard to the Board's action on what was known as partial releases, if the Board will recall. CHAIRMAN L'ESPERANCE: Yes. MS. LOUVIERE: Okay. So had you three phases. MR. MEADVIN: So we have three phases. Our golf course was completed prior to the first unit being complete. MS. LOUVIERE: What about why wasn't that completed? MR. MEADVIN: This wasn't required. Maybe I'm not following your question, ma'am, but this was not required. Our financing -- originally Southeast Bank provided financing for the acquisition and development, the infrastructure, the roads, the water and the sewer, the connections between Radio Road and Davis Boulevard. MS. LOUVIERE: Right. And I understand. MR. MEADVIN: And also involved in that was the financing for this clubhouse facility. MS. LOUVIERE: I understand the bank may not have made you go ahead and say exactly how you are going to OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 phase the project. Still, you as the project owner and as responsible for this project, should have phased it out better. I don't totally hold you responsible. It was not your intent. But I do see it as poor management. MR. MEADVIN: Are you saying we should have spent the bank's money differently? Is that what you're saying? MR. REINA: I think she's saying that the project would have been better if this facility had been early on rather than a second phase. MS. LOUVIERE: Right. Thank you. MR. MEADVIN: Well, it was. MS. LOUVIERE: Right, it could have been made part of your golf course and this and then your amenities should have been Phase I. Then you could have started developing sites and going along. MR. MEADVIN: It was, ma'am. It was. The golf course was the first priority. As I said, the golf course was complete prior to the first unit closing, okay. MS. LOUVIERE: I'm just on a fact finding mission here and I want to thank you for taking the time MR. MEADVIN: I'm just trying to understand and I want you to understand the bank started experiencing OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 financial difficulties which resulted in the beginnings of this, and they finally went out of business. And it wasn't the fact that gee, they were funding all of their commitments right up until the day they closed. There was several months prior to that where several draws, several requests for financing, went unfunded. MS. LOUVIERE: Well, thank you so much for your time. CHAIRMAN L'ESPERANCE: Mr. Clark. MR. CLARK: Mr. Chairman, I'd like to respond a little bit to a few comments that were made by the Respondent. Respondent would have us believe -- in fact, a comment, a statement was made that this project, the Code Enforcement Board's actions didn't spur any action, nothing; it would have occurred anyhow. I used to believe in the tooth fairy and Easter Bunny, too, but I don't anymore. A couple other points. We're talking about $60,000, we are already talking about liens will have to be placed. Is there already an admission that the Respondent wob't pay the fine that he would owe? Are we already saying here's another debt lowe, I won't pay it. Sounds like we are saying that already. Another comment was made a lot of time impacted on our business, you know, a lot of them because they OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 weren't paid by contractor-developers. That's why they went out of business. I'd like to probably finish up a little bit and say we can talk about a lot of broken promises by their own admission, 1992 -- I'm not sure the date was accurate -- it was stated to be 1992, this was supposed to have been be done. This is 1994. Even by their own admission, that's two years ago. The Code Enforcement Board didn't ask to get involved in this; the County didn't ask to get involved in this. There were a lot of victims created, many victims created. Many people were victimized by -- we call it poor management. We can call it a lot of things, I've heard the names called. We can call it a lot of things, but the victims were created nonetheless. This Board didn't ask to get involved, the County didn't ask to get involved. We got involved because there were victims created. This corporation, this Respondent, do you know what 58, $60,000 is? I saw a Rolls Royce zipping by here. (Applause) The Rolls Royce cost more than $60,000. We are talking about six days' interest, as Mr. Lazarus pointed out. Are we saying we don't six days' interest? I think the comment was made we are going to allow this project to fall because we didn't OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have six days' interest? To me, this is a matter of honor now. If we're saying gee, all these things happened and I'm the poor Respondent, I'm the poor developer who got caught in all this mess and I had no control over it, the first thing I would say, the first thing any responsible person would say is gee, I'm sorry, let me pay my fine, let me try to make amends, let me try to make amends as best I can; let my pay my fines; I don't want to argue about it and try to beat anybody else out of anything else. Let me pay it and get out of here. (Applause) MR. REINA: Can I just say one thing? I forgot to address the letters in the back of the brochure I gave you. There are three. Those are samples of folks that probably don't have the courage to come here and stand up in front of this kind of adversity and tell you in person how they feel. But if you take a look at that, we aren't the only voice out there in the Woods saying that the the fines really aren't going to serve a useful purpose. There's an example of three folks who do live here that did have the courage to give us a letter. CHAIRMAN L'ESPERANCE: Mr. Clark, at this point, would you like to -- or was that your final closing OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~"" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 statement? MR. CLARK: We have concluded, Mr. Chairman, unless there are any questions by the Board. We would like to strongly recommend again, that if any case that's ever been brought before the Board I think I have been involved in since 1989 deserves the full weight of the fines, this is it. Thank you. MR. LAZARUS: Mr. Chairman, I move that public record be closed. MR. ANDREWS: Second. CHAIRMAN L'ESPERANCE: Yes. We have a motion and second by Charlie that the public hearing be closed. Any discussion at this time? All those in favor signify by saying "aye". Opposed? Okay, Board members, what is your discussion; what is your pleasure? MR. LAFORET: I have a question, sir. I would like to ask Mr. Reina CHAIRMAN L'ESPERANCE: The public hearing is closed now. MR. LAFORET: What for? Thank you very much. CHAIRMAN L'ESPERANCE: We can discuss it amongst ourselves now. What is your question? MR. LAFORET: The question I had was what relationship has $50,000 or $60,000 have with 850 OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 units? What significance is a levy of that nature against the cost of the 850 units he has to complete? I would suggest it's probably around 1 percent. And I'm wondering on any budget how could a builder or anybody else talk that kind of money and come within 1 percent? The second question I have is that I don't consider this fine, as it's been referred to, strictly as punitive. If this Board is going to be effective, we have to have a deterrent on other people, and that is emphasized by the fact that the attorney himself stated that you usually let contractors get away with this. If this continues on granting reduced fines, then we will lose our efforts. And I think we need to maintain those efforts. That's all I have. Thank you, sir. CHAIRMAN L'ESPERANCE: What is your pleasure? MR. MANALICH: Mr. Chairman, just a point of clarification. It will help your deliberations. Under both the statute and the ordinance the law provides, in determining the amount of fine, if any, the Enforcment Board shall consider the following factors, the gravity of the violation, any actions taken by the violator to correct the violation, and any previous violations committed by the violator. Those are the three things OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 outlined in both ordinance and statute for you to look at. CHAIRMAN L'ESPERANCE: Thank you. MR. ALLEN: May I make a comment? I understand the facilities and clubhouse are approximately a million dollar contract. That's what I would assess it at. Basically, Elba Development had the use of this million, or not having spent the million dollars when they were supposed to three years ago, it's all related to interest. They have said what they saved is over a quarter of a million dollars. So this fine is actually a fourth of the money they saved. CHAIRMAN L'ESPERANCE: Do we have a motion, Board member? MS. LOUVIERE: I make a motion we keep the fines at the full amount of $60,000 -- what is the correct amount -- 2,380 dollars, right. And that we will try to work through the process of Collier County to see if we can remove the administrative fines out of that and use the other funds to try to bring the rest of this facility up to whatever standards the County sets that the people that live here would like, whether it's finish up the amenities. I know that's tough, and originally we had talked about it and Ramiro was going to look into it. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIRMAN L'ESPERANCE: Discussion on that motion? Is there a second on that motion? No second on that motion. MR. LAZARUS: I'll second it for purposes of putting it on the table. On the one hand, this is a case where the fine is justified because of the lack of compliance. And regardless of all the words about punitive and punishment and all the rest of it, our function is, as Charlie Andrews said, compliance. What troubles me is the possibility of an adverse impact on the people who are here in this room and the people who are not here in this room. If the fine comes back in the form of-liens, it could bite those folks. Everybody here should understand that if we impose a fine and lien the property, and if the County is unable to come up with some imaginative way to use the money, you can have a problem here. I don't want to see you have any additional problems and that is the matter that is troubling me. I will vote in favor of the motion. I think the fine is justified. I do not believe that there was a sincere attempt to come into compliance, and that's what we are fining for, lack of compliance. I do believe after Code Enforcement, after Mr. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Clark's people got into the issue, compliance was forced upon Elba Development. I don't think they willingly complied, and that's the reason why I would vote in favor of maintaining the fine. But again, I reiterate I am deeply troubled about the possibility of this property being liened and some of you folks having to face problems as a result of the liens being imposed. That is the sum and substance of my position. As I said, I will vote in favor of the motion. CHAIRMAN L'ESPERANCE: Discussion on the motion? Any further discussion on the motion? I think there is a concern, as it has been-expressed before, if these fines are used to financially complete this project is it not benefitting, perhaps, the Respondent? That has been brought up before by Board members and perhaps by Mr. Clark, too. Counselor, is it possible for those fines not to be used as a substitute? You see what I'm trying to phrase here. I don't wish these fines to be used to bail them out, for monies that they would have or should have spent in completing the project anyway. I think they should be separate funds. MR. MANALICH: Well, clearly, the fine is intended for the different purposes we have discussed here OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 .,n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 today. Normally, when most fines are imposed they create a lien. That lien can be imposed upon or the fines paid, depending on how it develops. At that point then, when it goes to the County, it's typically used to fund the operations of this Board. End of story. I said depending on the Board's directives and pleasure, we could look at creative alternatives. But I am not aware of any that are specifically authorized under Chapter 162. But we certainly can study that. One of which I said was to possibly, if the idea was to get completion of the facilities, credits for any monies that it can be shown are spent by the developer for completion, a credit on the fine. That might be one. That might be easier than saying, you know, here's fine money and we're going to give it over and use it for the facility. That's probably easier than that. But that's an area that we have never explored before and would require study. And Mr. Clark, I'd have to get his input, obviously, on anything we did. MS. LOUVIERE: I guess my main concern is we do not end up -- I am also with Mr. Lazarus that we don't end up with a lien, because they are correct. If they lien this property, anyone that tries to buy in here, OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anyone that tries to sell, has to deal with that. So I would like to see these fines paid, although I would like to see it done in such a way this property doesn't get liened. MR. MANALICH: The only way that wouldn't happen is if we don't record your order. But if you don't record the order, then you don't have any teeth. As a matter of fact, as part of this discussion, if the Board and I still don't know what the Board's going to do but if the Board chooses to impose a fine, I'm going to want specific self direction as to whether you want me to start thinking very seriously about foreclosing and doing everything allowed by law to collect. CHAIRMAN L'ESPERANCE: Yes, Mr. Clark? MR. CLARK: We had a similar situation, if the Board will recognize, at the Villa Lake. Extremely similar. The Villa Lake we did basically exactly what we're asking you to do today, impose a fine and work with the County Attorney's Office in such a way as that the individual owners are not injured. They were not, there. We can do that. It's been done in the past. So I think maybe our concerns are very real, but I think we do have a proven way of dealing with them. And again, we're assuming that -- I hope we're not, OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 .,., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 maybe we are -- assuming that the developer is going to be irresponsible again and not pay the fine that he's obligated to pay. I hooe he's not going to be that irresponsible again. MR. MANALICH: We did hear from Mr. Clark. Supposedly the public hearing was closed. But Mr. Reina, do you have any comments on this last point? MR. REINA: I think the point's been well-made that what's going to happen with this fine is that it's going to go to the County coffers and not going to get back to help any of those folks here. I think that's the result of it. - That's the reason why I've said we're all in this together and we have to be creative about how to solve it. The final thing is, I think it's fine that what you're contemplating is the maximum. I don't think you gave anybody any breaks here, so it's not like gee, we didn't do everything we could do to you. I think what you're contemplating is the absolute maximum that you could have done. My God, we are trying to solve a problem here. I don't think that's the way to do it. I really think if you're going to impose a fine it should be reasonable, and there isn't anything wrong with reducing the maximum. As I said before, you have OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reduced these fines before. You are holding us to the maximum that you could possibly do. No break at all is what you're saying, period. None. No sympathy, no understanding, give him the full shot. UNIDENTIFIED SPEAKER: The meeting was closed. CHAIRMAN L'ESPERANCE: That's it. We are stretching the rules a little bit. Would you like to have your motion stand as it is or amend it? MR. ANDREWS: I would like to make a comment. I don't think it's our duty to say what happens to the fine. I don't even know where it goes. But it has nothing to do with -- why we are here is whether we are going to reduce the fine, how much we are going to fine, and that's what we should do. That's my opinion. MR. LAZARUS: I wonder if Meriya would be willing to amend the motion to provide that the fine be $60,880 and that we ask that the County Attorney and staff work to see that no individual hardships are effected on the members of the association. MS. LOUVIERE: Excellent. Thank you. MR. LAZARUS: I'll second that motion. CHAIRMAN L'ESPERANCE: We have a motion and a second. Any further discussion on the motion? MS. RAWSON: I think Mr. Manalich would like us to OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 .,.11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 also put in the motion what he wants us to do with this. Does he want it recorded? Is that part of your motion? And if it's recorded, then do you want him to take all reasonable efforts to have it enforced and collected? MS. LOUVIERE: Well, I just think we can have it recorded, but in the meantime, they could be working very diligently to see that these funds are used in such a way as to not harm the property owners. And in the meantime, perhaps we could not proceed to collection while these issues are being resolved and that should be done on a timely basis, as I understand it. MR. CLARK: And if we're dealing with a responsible Respondent, he could pay the fine. MS. LOUVIERE: Exactly. We could be dealing with a developer who, if he is truly meaning to get things straight, he should come up with the money. MS. RAWSON: Once it's recorded, it's going to be on this property. Once it's recorded, it's a lien, whether we like it or not, and he needs then to immediately try and collect from some source. But it will be a cloud on this title. CHAIRMAN L'ESPERANCE: Would you consider a 60-day time period for imposition of lien? OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~"" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. LOUVIERE: That's an excellent thought. MR. MANALICH: We already have two orders imposing fines already recorded against this property. We have one from February and we have one from June. What's probably going to happen in this process if the Board chooses to take the course it's currently choosing, is the order of February is perfectly valid. That was approximately $18,000 that was imposed in the maximum amount of $250 per day. That's fine. The law requires about six months waiting for foreclosure. We can proceed on that very quickly. The other one was in June. That's going to have to be amended to reflect the change down to 250, as we explained by law, and then reflect the full amount to date of compliance. But there are actually two other orders already recorded. MR. LAFORET: Isn't the land that these 850 houses is going to be built on, isn't that specific land worth $60,000? Can't you foreclose on that land? MR. MANALICH: Any lien will attach against the land and any other real or personal property owned by all the Elba Development Corporation. MR. LAFORET: So can't we put a lien against the land that has not been developed? MR. MANALICH: Yes. We are authorized to do that. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 .,~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LAFORET: Not affecting these people at all? Lien that land, sell it and then everything is -- MR. MANALICH: I don't know if there's a mortgage on it. We have to sort out all the minutae on it, but obviously, all that is subject to it. CHAIRMAN L'ESPERANCE: We have a motion on the floor. Would you like to stand as submitted? MS. LOUVIERE: Basically I have a motion on the floor to go ahead and adhere to the current fine but remove the administrative out of it. And Dick Clark is going to work very diligently to see these funds are used to benefit and complete whatever needs to be done at the clubhouse and other amenities. MR. LAZARUS: The motion started out to say whether the money would be used in a certain way. We would say that the staff will work to assure that no hardship is worked on the property owners here. MS. LOUVIERE: Yes. MR. LAZARUS: And that the fine will be recorded, a lien will be recorded. MR. MANALICH: Mr. Clark, the actual amounts again for the fine exactly, and the costs? MR. CLARK: $58,500 for the fine and $2,380 for the administrative costs, for a total of $60,880. MR. MANALICH: Also, I think that the Board should OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~~ 1 make some statements -- and obviously it can refer to 2 the record made as a whole here today and any other 3 factors that it wants to specify as to the basis for 4 the maximum fine being applied. 5 MR. LAZARUS: I believe that's already been stated 6 in our previous order. What we are really here for is 7 on a motion, if you will, to reduce the fine. So what 8 we're saying, in effect, is save for the operation of 9 law we are standing by our previous findings and 10 decision as to the facts and the law. 11 MR. MANALICH: That's fine. 12 CHAIRMAN L'ESPERANCE: We have a motion and a 13 - second to impose a $60,880 fine or not to impose, but 14 not to reduce the fine. Any further discussion by the 15 Board members? All those in favor signify by saying 16 "aye". Passes unanimously. 17 MR. MANALICH: Do we have any direction as to the 18 recording and any foreclosure and collection accounts? 19 CHAIRMAN L'ESPERANCE: Motion? 20 MR. LAZARUS: The motion included recording the 21 lien. 22 MR. MANALICH: Also all necessary steps for 23 collection provided we minimize the hardship? 24 MR. LAZARUS: Yes. 25 CHAIRMAN L'ESPERANCE: Anything further, Mr. OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 ~o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Clark? MR. CLARK: Nothing. CHAIRMAN L'ESPERANCE: At this point the meeting is adjourned. Thank you for your attendance. (The meeting was adjourned at 10:40 a.m.) OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 1 CERTIFICATE OF REPORTER 2 STATE OF FLORIDA ) COUNTY OF COLLIER) 3 4 I, KAYE GRAY, RPR and Deputy Official Court 5 Reporter, 20th Judicial Circuit of Florida, do hereby 6 certify that the foregoing proceedings were taken before me 7 at the date and place as stated in the caption hereto on 8 Page 1 hereof; that the foregoing computer-assisted 9 transcription consisting of pages numbered 2 through 78, 10 inclusive, is a true and accurate record of my notes taken 11 at said proceedings. 12 Dated this 8th day of November, 1994. 13 14 15 16 17 18 19 20 21 22 23 24 25 / ~~~ qu~t Kaye G ay Registered Professional Reporter Deputy Official Court Reporter 20th Judicial Circuit of Florida STATE OF FLORIDA ) COUNTY OF COLLIER) The foregoing certificate was acknowledged before me this 8th day of November, 1994, by KAYE GRAY, who is personally known to me. r- N tary Public, at Large :\1>-1<-" PlJ~ OFFICIAL NOTARY SEAL o (' J ~ '\1)<;:;<:'.;""0 UDITU E BleE 1< ~\"/-.'\_'; ~ COMMISSION NUMBER ~ 't.:''2J--.t. <{ c C" 4 8 19 4 'Y ~~ Q ... ~ 1'- ""/;- Q.:' MY COMMISS:ON EXP. OFF\.o MAR. 281998 OFFICIAL COURT REPORTERS, COLLIER COUNTY, FLORIDA 33962 October 27, 1994 *** 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