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CEB Minutes 08/26/1993 1993 Code Enforcement Board Minutes August 26, 1993 DATE: TIME: PLACE: CODE ENFORCEMENT BOARD OF COLLIER COUNTY August 26, 1993 9:00 A.M. 3rd Floor Boardroom, Building "F", Collier County Government Center, Naples, Florida CEB ANDREWS LAZARUS L'ESPERANCE PEDONE RAWSON ALLEN VARIE STAFF PRESENT x X EXC X X X ABS CLARK MARALICH BRYANT BARTOE MINUTES BY: Annette R. Guevin, Recording Secretary CALLED TO ORDER AT: 9:00 A.M. ADJOURNED: 10:55 A.M. PRESIDING: Michael Pedone, Chairman ADDENDA TO THE AGENDA: one item X X X X Page 1 - CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA ~ Ag~H.QA Date: August 26, 1993 at 9:00 o'clock A.M. Location: Collier County Government Center, Bldg "F" Third Floor NOTE: ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NEITHER COLLIER COUNTY NOR THE CODE ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. 1. ROLL CALL 2. APPROVAL OF AGENDA 3. APPROVAL OF MINUTES N/A 4. PUBLIC HEARINGS N/A 5. NEW BUSINESS a) Request for Imposition of Fines for Case No. 93-004 Board of County Commissioners vs. Montclair Building Corporation, Kenneth R. Meadvin, President, Eli Baron Director, and George Rice, Agent b) Request for Imposition of Fines for Case No. 93-005 Board of County Commissioners vs. Deauville Lake Club Dev. Corporation, Mimon Baron, President, and George Rice, Agent c) Request ,for modification of the Order of the Board for Case No. 93-006 Board of County Commissioners vs. Estate of Donald L. Stoneburner and Gulf Materials Recovery and Artificial Reefs, Inc. 6. OLD BUSINESS N/A 7. REPORTS N/A 8. NEXT MEETING DATE September 23, 1993 9 . ADJOURN CODE ENFORCEMENT BOARD OF COLLIER COUNTY Tape #1 (26) ITEM: COMMENTS: MOTION: COMMENTS: (78) ITEM: COMMENTS: AUGUST 26, 1993 Approval of the Agenda Dick Clark, Code Enforcement Director, asked that an additional item be included on the agenda as Item 5d, Request for Rehearing filed by Attorney Tim Ferguson on behalf of Respondent Dr. Moses W. Howard. Made by Mr. Lazarus to approve the agenda with the above addition. Seconded by Ms. Rawson. Carried 5/0. Mr. Lazarus communicated that his law partner, Patrick Neale, is noted as attorney of record for Gulf Material Recovery and Artificial Reefs, Inc., Respondent in Item 5c. He stated he will recuse himself from that discussion. ***** New Business Request for Imposition of Fines for Case No. 93-004, Board of County Commissioners vs. Montclair Building Corporation Kenneth Meadvin, President of Montclair Building Corporation, was sworn in by Mr. Clark. He said at issue is the completion of the pool at Embassy Woods, which the Code Enforcement Board directed to be completed by July 29. He recalled having asked for 120 days, but was given 90 days to complete that work. Notwithstanding that fact, he said, their best efforts were put forth, and all improve- ments were completed within a few days of what was ordered by the Board. He explained weather con- ditions precluded finishing the pool within the given timeframe. He suggested it is not the intent of this Board to levy fines or impose penalties, and asked that the fines be waived. Mr. Clark reported Staff feels very strongly about this case. He advised that the violation existed for a long period of time prior to being brought before the CEB. He pointed out when these matters are brought before the Board, especially one which Page 2 CODE ENFORCEMENT BOARD OF COLLIER COUNTY AUGUST 26, 1993 has resulted in a considerable amount of Staff time and expense, the taxpayers should not bear that burden. He strongly recommended the fine in this matter be imposed. Mr. Lazarus asked if Staff views a four-day delay, especially considering weather conditions, as non- compliance? Mr. Clark replied in the affirmative, stating the Respondent had more than ample time to complete the work. He said the Order of the Board did not pro- vide for mitigating weather conditions, or state there will be substantial completion by July 29, it stated the work will be completed by that date. In response to Chairman Pedone, Mr. Clark stated the amount of the fine is $1,000. He added the amount of time and expense on the part of Staff is well in excess of that amount. MOTION: Made by Mr. Allen to impose a fine of $1,000 in Case No. 93-004. Seconded by Mr. Andrews. COMMENTS: Mr. Lazarus commented this Board has been charged with achieving compliance, which has occurred. Mr. Andrews agreed, but added the only weapon available to achieve that compliance is through the imposition of fines. Assistant County Attorney Ramiro Manalich clarified that the Code Enforcement Board Ordinance indicates a vote of four members is needed in order for the action to be official. The call for the question resulted in a vote of 3/2 (Mr. Lazarus and Ms. Rawson opposed). MOTION: Made by Mr. Allen to impose a fine of $750. Seconded by Mr. Andrews. Carried 4/1 (Mr. Lazarus opposed). COMMENTS: Assistant County Attorney David Bryant stated if the Board desires to record a lien as the result of this action, he presumes there is no wish to encumber private unit owners who are not involved in this case. H~ suggested a determination be made of what parcels, etc., that the developer still owns. Page 3 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MOTION: (735) ITEM: COMMENTS: AUGUST 26, 1993 Mr. Lazarus communicated he would be in favor of recording a lien in this matter, but not if it will result in a cost and time burden on Staff. Made by Mr. Lazarus to table the question of recording a lien until the next regular meeting. Seconded by Ms. Rawson. Carried 5/0. ***** Imposition of Fines for Case No. 93-005, Board of County Commissioners vs. Deauville Lake Club Dev. Corporation Chairman Pedone noted that the Respondent is not present at this hearing. Assistant County Attorney Manalich commented there is ample indication in the record that notice was provided to the Respondent's representatives. Mr. Clark recalled the CEB ordered by July 21, 1993, that the swimming pool be completed with a Certificate of Occupany issued, that the clubhouse be completed and that a temporary fence be put up around the pool. He advised the temporary fence is the only evidence of compliance to date. Referring to photographs, he stated the Order of this Board has not been complied with. He requested the fines of $250 per day for each of the two remaining violations be imposed, for a total of $17,500. Mr. Lazarus questioned if the fines will continue to accrue if the $17,500 fine is imposed, to which Mr. Clark responded in the affirmative. Attorney Joseph Adams, representing the Deauville Lake Condominium Association, remarked no action has been taken by the Respondent, who seems to be scoffing at the Board's Order. He said the 230 condominium owners who reside at the project are the victims in this situation. He added to make matters worse, HRS, who has jurisdiction over the swimming pool that is open, is threatening to close it down because the project was designed to have two swimming pools. Additionally, he said, the property owners are facing a staggering decline in the value of their properties. He communicated the Page 4 CODE ENFORCEMENT BOARD OF COLLIER COUNTY AUGUST 26, 1993 Condominium Association is very appreciative of the efforts of Staff and the CEB, and supports Mr. Clark's request for the imposition of fines and any other action that may serve to expedite the resolu- tion of this matter. Mr. Clark clarified there were four original viola- tions that the Board ordered corrected, of which Violations "A" and "D" remain. In response to Mr. Lazarus, Mr. Clark indicated repeat violations can be fined the maximum of $500 per day, therefore, from this day forth each viola- tion can be considered repeat violations and be fined that amount. Chairman Pedone remarked evidently neither Mr. Rice nor Mr. Baron considered it worth their time to appear at this hearing, and he has the impression that whatever the CEB does will make no difference to them as far as complying with the Order of the Board or paying the fine. He noted it is his understanding that numerous liens have been filed against this property and asked what will this fine by the CEB do for these property owners? Mr. Clark asked that the fine be imposed as leverage to gain compliance. Attorney Adams added, to his knowledge, there is no Internal Revenue Service lien against the recreational part of the parcel, although some individuals who are principles in the development have IRS levies of record against them. Mr. Lazarus inquired if there is legal basis for the CEB to refer this matter to the State Attorney's Office for possible criminal action? Assistant County Attorney Manalich advised that action has already been taken. In answer to Assistant County Attorney Manalich, Mr. Clark stated at this time, the recreational areas are not owned by the condominium association. He informed should they obtain title to that pro- perty, he has suggested to Attorney Adams that the association may ask the CEB for a modification, which Staff will not oppose. Page 5 CODE ENFORCEMENT BOARD OF COLLIER COUNTY AUGUST 26, 1993 Assistant County Attorney Bryant suggested the CEB direct Staff to contact the Attorney General's Office for their assistance in this case. Attorney Adams further requested that the CEB direct Staff to exert any possible additional pressure on individuals who are the beneficiaries of this project. MOTION: Made by Mr. Lazarus that a fine of $18,000 be imposed from July 22 through August 26, 1993; that commencing on August 27, 1993, the two remaining violations be fined at a rate of $500 per violation per day; that Staff refer this matter to the Attorney General's Office and to any other appropriate State official; and that Staff look into the issue of whether there can be action taken against any of the individuals involved in this situation. Seconded by Ms. Rawson. Carried 5/0. MOTION: Made by Ms. Rawson that Staff work with the attor- neys for the Deauville Lake Condominium Association in the proper recordation of a lien; and that the lien be recorded against the recreational area so that it does not have any affect on innocent third parties. Seconded by Mr. Lazarus. Attorney Adams suggested it will be in the interest of the home owners if the motion can be clarified for the County Attorney that, to the extent the homeowners are claiming a property interest in the recreation parcel, it is the CEB's intention that Staff also work with them to make sure they accomplish that goal. MOTION: Amended by Ms. Rawson to reflect above request. Seconded by Mr. Lazarus. Carried 5/0. ***** (1490) ITEM: Request for Modification of the Order of the Board for Case No. 93-006, Board of County Commissioners vs. Estate of Donald L. Stoneburner and Gulf Materials Recovery and Artificial Reefs, Inc. COMMENTS: Chairman Pedone noted for the record that Mr. Monte Lazarus has been recused on this case. Page 6 CODE ENFORCEMENT BOARD OF COLLIER COUNTY AUGUST 26, 1993 Attorney Jerry Pitkin, representing Kevin Stoneburner, recalled the Order of the Board in this case found the Respondents in violation of the Collier County Litter Ordinance. He said the Respondents were ordered to remove the debris from the property on or before August 25, 1993, or a $250 per day fine would be imposed. He presented a Motion to Modify Order of Board, asking the Board to consider that since the date of the Order, the Respondent, Kevin Stoneburner, has been making a good faith effort and continues to make that effort, to clean up this property. He referred to a letter attached as Exhibit A to the Motion to Modify, from Cadenhead Construction Company, Inc., which details work completed by that company, the amount paid thus far and an estimate for the remaining debris removal. He noted the Respondent Kevin Stoneburner has borne the entire debt to date, has taken on the obligation and respon- sibility of bring the property in compliance without any assistance whatsoever from Respondent Gulf Materials Recovery and Artificial Reefs, Inc. He presented photographs which he referred to as Respondent's Exhibits B through E, depicting the condition of the property prior to clean up, the work in progress and its present condition. Mr. Clark indicated Staff does not oppose a con- tinuation for 90 days due to the extenuating cir- cumstances involved. He asked, however, that Attorney Pitkin stipulate there will be no further requests for continuance of the compliance date. Attorney Pitkin reiterated the Respondent is making a good faith effort to remove the violations, and asked that Mr. Cadenhead testify as to the exte- nuating circumstances involved in completion. Upon being sworn in by Mr. Clark, Bobby Cadenhead stated he has been hired by Kevin Stoneburner to remove the debris on the subject property. He explained the problems they have incurred in attempting to remove the debris from the subject site. He indicated approximately 75 percent of the site has been cleaned up and they are now waiting for a special piece of equipment which will not be available until September 1. With regard to the 90-day continuance, he said, he cannot guarantee the job will be completed, however weather con- Page 7 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MOTION: (2272) ITEM: COMMENTS: AUGUST 26, 1993 ditions notwithstanding, that time frame should be sufficient. Mr. Clark reiterated the position of Staff that a 90-day continuance will not be opposed, however, any further requests will not be supported. Attorney Pitkin asked that the Board consider not imposing the fine until after the 90-day con- tinuance. Made by Mr. Rawson to grant the Motion to Modify Order of Board, that the Respondent be given an additional 90 days to achieve compliance and that the fines not be imposed during the intervening time. Seconded by Mr. Andrews. Carried 4/0 (Mr. Lazarus recused). ....* Request for Rehearing in Case No. 91-019, Board of County Commissioners vs. Moses W. Boward Attorney Tim Ferguson, representing the Estate of Moses Howard, communicated he has filed a Motion for Rehearing on this case. He indicated the County Attorney's Office has been directed to file a lien against this property, and he is requesting that Order, as well as the remaining fines in this case, be stayed in order to rehear this case. He noted Section 12 of the ordinance requires a stay of the Order until a decision is made on the rehearing. Mr. Clark asked if the County will be given assurances that the subject property will not be transferred to another name? He communicated his concern that the County will be left with no remedy as a result of the Estate proceedings. Assistant County Attorney Manalich stated that the Respondent's Motion for Rehearing contains good points that may warrant further discussion. Attorney Ferguson explained the Estate is being challenged and it has become very difficult to expend any funds from the Estate. He said it is his understanding that a plan has been worked out Page 8 CODE ENFORCEMENT BOARD OF COLLIER COUNTY AUGUST 26, 1993 to mitigate the subject site and efforts at compliance are forthcoming. In response to Assistant County Attorney Manalich, Attorney Ferguson stated he does not foresee that the property will be transferred. He requested that the Motion for Rehearing be addressed at the next regular CEB meeting, because the problem may be remediated by th~t time. A lengthy discussion ensued with regard to the request to Stay the Order of the Board imposing fines. A recess was taken to allow Assistant County Attorney Manalich to research Section 12 of the ordinance to properly advise the CEB on whether to deny or grant the Motion for Rehearing. *** Recessed: 10:25 A.M. COMMENTS: MOTION: Reconvened: 1045 A.M. *** Assistant County Attorney Manalich provided his opinion that Section 12 does not apply to Orders imposing fines, based on State Statute language which allows fines to be imposed without the necessity of a hearing. In addition, he said, Section 12 mentions "the" decision of the Board which read in context of the ordinance along with the original Order, leads him to believe that only the original Order is subject to the rehearinglstay provision. He commented in light of the concerns of both parties, the County does have the ability to record a certified copy of the original Findings of Fact and Conclusions of Law and Order of the Board, to constitute notice to subsequent purcha- sers, successors in interest or assigns, that the Order will be binding upon the violator and those individuals. He suggested that may be a way to preserve the Board's security without imposing a lien by recording the Order imposing fines. Made by Mr. Lazarus to deny the Motion for Rehearing and to direct Staff to record a certified copy of the Board's original Order. Seconded by Ms. Rawson. Carried 5/0. *** Ms. Rawson left the meeting at this time. *** Tape #2 COMMEIfTS : Attorney Ferguson asked for clarification of whether the fines in this case will be stayed. Page 9 CODE ENFORCEMENT BOARD OF COLLIER COUNTY AUGUST 26, 1993 Mr. Clark communicated Staff is not opposed to a stay of fines in certain circumstances. He suggested if Attorney Ferguson had control of this issue, it would have been solved long ago. He indicated if Attorney Ferguson is not allowed to have control of this matter, which may continue for years, there is no incentive to have it solved. Attorney Ferguson noted fines have already accumu- lated to $38,400. In response to Mr. Lazarus, Attorney Ferguson requested the fines be stayed for a period of 60 days. MOTION: Made by Mr. Lazarus to abate fines in Case No. 92-019 from August 26, 1993, for the next 60 days. Seconded by Mr. Allen. Carried 4/0. ***** There being no further business, the meeting was adjourned by Order of the Chair. ENFORCEMENT BOA~F COLLIER I~L Pedone, Chairman COUNTY CODE Page 10