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CEB Minutes 01/28/1993 1993 Code Enforcement Board Minutes January 28, 1993 DATE: TIME: PLACE: CODE ENFORCEMENT BOARD OF COLLIER COUNTY January 28, 1993 9:00 A.M. 3rd Floor Boardroom, Building "F", Collier County Government Center, Naples, Florida CEB ANDREWS L'ESPERANCE STRAIN PEDONE VARIE LAZARUS RAWSON x X X X X X X ANTHONY PIRES, SPECIAL COUNSEL TO THE CEB MINUTES BY: Annette Guevin, Deputy Clerk CALLED TO ORDER AT: 9:00 A.M. ADJOURNED: 12:10 P.M. PRESIDING: Michael Pedone, Chairman ADDENDA TO THE AGENDA: None STAFF PRESENT CLARK MANALICH YOVANOVICH BARTOE WEIGEL CRUZ FAHEY X X X X X X X - Page 1 I 1 -... '~L~J {~ G6-0~.i CODE ENFORCEMENT BOARD OF COLLIER COUNTY. FLORIDA 8g~!!.Q8 Date: January 28, 1993 at 9:00 o'clock A.M. 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 f.'.ADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NEITHER COLLIER COUNTY NOR THE CODE ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. 1. ROLL CALL 2 . APPROVAL OF AGENDA 3. APPROVAL OF MINUTES October 29, 1992 4. PUBLIC HEARINGS A. BCC vs. Commercial Clean-Up Enterprises, Inc. Thomas N. Tibstra, Registered Agent CEB No. 92-016 B. BCC vs. Maxi storage, Inc. CEB No. 92-013 Robert W. Mattson, President and Marsha Gibbs, Vice President 5. NEW BUSINESS N/A 6. OLD BUSINESS Request for modification to the order of the board dated Octobe 29, 1992 on CEB No. 92-015, BCC vs. Estate of Nancy Zilowey, Stacey A. Ruggerillo, Representative and William Zilowey & Bonnie Wilowey, as Tenants in Common 7. REPORTS N/A 8. NEXT MEETING DATE February 25, 1993 9. .ADJOURN CODE ENFORCEMENT BOARD OF COLLIER COUNTY Tape #1 (17) ITEM: MOTION: (23) ITEM: MOTION: (32) CASE NO.: RESPONDENTS: LOCATION OF VIOLATION: COMMENTS: JANUARY 28, 1993 Approval of the Agenda Made by Mr. Lazarus to approve the Agenda as pre- sented. Seconded by Mr. L'Esperance. Carried 7/0. *** Approval of Minutes - October 29, 1992 Made by Mr. Strain to approve the Minutes of October 29, 1992, as presented. Seconded by Mr. Andrews. Carried 7/0. *** 92-016 Commercial Clean-Up Enterprises, Inc., Thomas N. Tibstra, Registered Agent Collier County, Florida, more particularly described as various commercial business locations. Jim Siesky, Attorney representing the Respondent, asserted his belief that the Board of County Commissioners has made certain errors, resulting in it being inappropriate for the Code Enforcement Board to hear this case. He said a contract bet- ween the County and Waste Management of Collier County purports to grant them an exclusive franchise. He indicated there is a question of whether Waste Management has subcontracted its duties to his client, Commerical Clean-Up, by vir- tue of oral agreements that took place approxima- tely 12-18 months ago, as well as prior litigation between the parties. He said a question remains whether there should have been competitive bidding when Waste Management was granted the franchise area with Collier County. He explained his client had a contract with its customers that preceded the agreement between Waste Management and the County, resulting in a question of whether Ordinance 90-30 and said agreement uncqnstitutionally impair the obligation of contract between Commercial Clean-Up Page 2 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JANUARY 28, 1993 and its customers. He concluded with his belief that these issues should be determined by a Court of Law and are beyond the purview of the CEB. Assistant County Attorney Ramiro Manalich stated the position of the County Attorney's Office that this Board can proceed regardless of the pending litigation. Attorney Anthony Pires, Special Counsel to the CEB, concurred with the opinion stated by Mr. Manalich. Attorney Siesky argued there is a complete lack of authority on the part of the CEB to act, since it has not been properly appointed. He referred to a letter from Attorney Don Pickworth to the County Manager, which he stated summarizes the basis for this objection. (Copy not provided to the Clerk to the Board.) He contended the original ordinance that created the CEB, Ordinance 88-89, was repealed by the Land Development Code (LDC). Subsequently, he said, an attempt was made to repeal the repealer, by striking through some of the changes made by adoption of the LDC. He alleged that action was not properly advertised as imposition of a new ordinance. He also indicated Resolutions 92-373, 91-114 and 91-187 appointed various members to the CEB, and referred to appointment pursuant to Ordinance 88-89. He said since those appointments, which were made subsequent t~ the adoption of the LDC, were made pursuant to the repealed Ordinance 88-89, it is his opinion that there are no valid Board members at this time. Assistant County Attorney Richard Yovanovich countered that legislative intent must be con- sidered when looking at Statutory construction. He stated when the LDC was amended to remove the CEB provisions, and Ordinance 92-80 was adopted making the CEB a separate entity, it was the clear intent of the Board of County Commissioners that those actions take place at the same time so that the CEB would never have been disbanded. He indicated upon review of case law, it is the opinion of the County Attorney's Office that the CEB is a properly constituted Board. Chairman Pedone asked Attorney Pires for his opi- nion. Page 3 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JANUARY 28, 1993 Attorney Pires indicated he was not given an oppor- tunity to review the stated objections prior to this meeting. He said he cannot appropriately pro- vide an opinion without properly researching the issues. Mr. Strain asked if it is appropriate to request the author of the letter, Attorney Pickworth, to respond to questions during this hearing? Assistant County Attorney Yovanovich and Attorney Pires both indicated they have no objection to Mr. Pickworth testifying at this time. Attorney Donald Pickworth, representing Maxi Storage, Inc., in Case No. 92-013, apologized for the lateness in delivering the subject letter to the CEB. He reviewed the history of the adoption and repealing process involved with the CEB provi- sions of the LDC. Assistant County Attorney Yovanovich interjected that through his research, he is able to cite a Supreme Court case which states that one looks at the legislative intent, follows the tracking and makes an interpretation. MOTION: Made by Mr. L'Esperance that the composition of the CEB be deemed appropriate to hear this case. The motion died for lack of a second. COMMElfTS : Mr. Lazarus suggested the Board recess for one hour to give Special Counsel an opportunity to fami- liarize himself with the position of Staff and per- sonally research the issues. MOTION: Made by Mr. Lazarus to recess for one hour to obtain an opinion from Attorney Pires. Seconded by Ms. Rawson. Carried 7/0. *** Recessed: 9:40 A.M. Reconvened: 10:48 A.M. *** COMMENTS: Attorney Pires stated in reviewing the cases pro- vided to him by the County Attorney's Office and doing some additional research, he still has questions and has not fully formulated the ability to opine properly on some of the issues raised. He communicated his concern that he has not been given Page 4 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MOTION: COMMENTS: MOTION: JANUARY 28, 1993 enough time to research the substantive matters that have been raised. He indicated he is not completely comfortable with the CEB's ability to continue. He suggested the Board request that all parties file everything of record with adequate time for all sides to prepare. In response to Mr. Strain, Attorney Pires advised that a week's period of time would give him ade- quate time to research the matters. He suggested the Respondents be required to file their issues no later than three days prior to the hearing. Mr. Lazarus suggested the Board resolve the issue pertaining to Attorney Siesky's motion for recusal of two members of the CEB prior to any vote being taken on whether to continue the two public hearings. Attorney Pires gave the opinion that Mr. Siesky's motion for recusal was made without any citation of any basis or authority. He said there are no methods or standards for disqualification within the Statute that authorizes Code Enforcement Boards. He cited an opinion by the Attorney General and concluded that unless there is a direct, clear situation which constitutes a conflict, or the party cannot get a fair hearing, there is no basis for the recusal of a member of the CEB. Made by Mr. Lazarus that the motion to recuse Mr. Pedone and Ms. Rawson be denied. Seconded by Mr. Strain. Carried 7/0. Chairman Pedone offered his opinion that the CEB is a legal Board and should hear both Case No. 92-016 and Case No. 92-013. A lengthy discussion ensued regarding whether or not to hear both cases. Attorney Jim Shenko, co-counsel in Case No. 92-016, objected to the CEB hearing this case prior to the hearing to take place before Judge Blackwell on March 8th. Made by Ms. Rawson to continue Case Nos. 92-016 and 92-013 to February 4th at 9:00 A.M.; Attorneys for Page 5 CODE ENFORCEMENT BOARD OF COLLIER COUNTY Tape #2 (145) ITEM: COMMENTS: JANUARY 28, 1993 the Respondents to submit their issues no later than Monday, February 1st at 5:00 P.M., and the County Attorney's Office to provide a written response by Wednesday, February 3rd at 5:00 P.M. Seconded by Mr. Strain. Carried 6/1 (Chairman Pedone opposed). *** Old Business Request for modification to the Order of the Board dated October 29, 1992, on CEB No. 92-015, BCC vs. Estate of Nancy Zilowey, Stacey A. Ruggerillo, Representative and William Zilowey & Bonnie Zilowey, as Tenants in Common Upon being sworn in by Dick Clark, Code Enforcement Director, William Zilowey requested the Board modify its Order of October 29th. He explained the house has been sold because he was unable to finish the structure himself. He advised it will take two to three weeks at the most for the new owner to be fully covered by a mortgage, who in the meantime has already begun finishing the necessary work. He requested an extension of 120 days, although the new owner has indicated he can finish the project in 90 days. Mr. Clark noted the Order states the corrections are to be completed on or before February 12, 1993, and if the Respondent does not comply with the Order on or before that date, the Respondent is ordered to pay a fine of $100 per day for each and every day the violation continues. He asked Mr. Zilowey how much work has been completed to date? Mr. Zilowey reported the house has been struc- turally finished to the point it is now a safe and sound structure. He said any work remaining is strictly superficial. He noted the structure was originally deemed unsafe, however, he has obtained a letter from a structural engineer who inspected before and after, and has stated the entire struc- ture is now structurally sound. Mr. Clark communicated many of the complaints from neighbors centered on the violations having con- Page 6 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JANUARY 28, 1993 tinued for more than two years. He said Mr. Zilowey has not completed any of the exterior ele- ments that were of so much concern to the neigh- bors, such as windows being installed and the outside of the house being in a state of disrepair. Mr. Zilowey argued that the new owner has begun work on the exterior of the house, and has installed two windows. Mr. Clark reported Staff is in the process of recording in the public records, the Order of the CEB so that any subsequent owner will be obligated to the same conditions as apply to Mr. Zilowey. Upon being sworn in by Mr. Clark, the following people spoke regarding this item: Steve Miller Ted Silk Mr. Strain asserted that Mr. Zilowey admitted on October 29, 1992, that the third story is unsafe and that it would be demolished. He said the CEB ordered that portion of the structure to be demo- lished and there has been no attempt for demoli- tion, in fact, just the opposite has occurred. Mr. Clark commented that Mr. Zilowey asked if he obtained the services of an engineer to state how the structure could be made safe, would it meet the requirements. He indicated Mr. Zilowey was advised if he obtained the services of an engineer, who provides such plans and a contractor is obtained to complete the work, that matter may be brought before the CEB to modify the Order. He indicated none of that advice has been followed, and Staff recommends that the Board follow the original Order if the work has not been completed by February 12th. MOTION: Made by Mr. Strain to deny cation of the Order of the 1992, on Case No. 92-015. Carried 7/0. the request for modifi- Board dated October 29, Seconded by Mr. Lazarus. *** There being no further business, the meeting was adjourned by Order of the Chair. Page 7 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JANUARY 28, 1993 COLLIER COUNTY Page 8