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CEB Minutes 06/21/1991 1991 Code Enforcement Board Minutes June 21, 1991 FJ , C~;- '- CODE ENFORCEMENT BOARD OF COLLIER COUNTY DATE: June 2 1, 1991 TIME: 9:00 A.M. PLACE: 3rd Floor Boardroom, Building "F", Collier County Government Center, Naples, Florida .QE~ STAFF PRESENT ANDREWS CONSTANTINE VARIE LAZARUS PEDONE STRAIN WILLIAMS x X X X -- X X ABS CLARK VALCARCEL BRUTT OLLIFF x X X X ALSO REPRESENTING THE COUNTY: Bruce Anderson of Young, van Assenderp, Varnadoe & Benton, P.A. MINUTES BY: Wanda Arrighi and Annette Guevin, Deputy Clerks CALLED TO ORDER AT: 9:00 A.M. ADJOURNED: 3:10 P.M. PRESIDING: Monte Lazarus, Chairman ADDENDA TO THE AGENDA: None Page 1 ~~ CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA A Q1Lt! Q A Date: June 21, 1991, 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 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 A. Continuation of Board of County Commissioners vs First Assembly of God Church of Naples, Florida, Inc. CEB # 91-013 5. OLD BUSINESS N/A N/A N/A 6. NEW BUSINESS 7. REPORTS 8. NEXT MEETING DATE Thursday, July 25, 1991 9 . ADJOURN -... CODE ENFORCEMENT BOARD OF COLLIER COUNTY NOTE: ITEM: MOTION: CASE NO: RESPONDENT: VIOLATION: COMMENTS: JUNE 2 1, 1991 *** Mr. Lazarus pointed out that this meeting is the third meeting on the subject of the County versus the First Assembly of God, Naples, Florida. Mr. Lazarus noted that at the conclusion of this meeting there will be a discussion as to when the next meeting for the CEB will be held in July. *** Minutes of June 10, 1991 After some discussion regarding the minutes of the June 10, 1991 meeting, Mr. Strain moved, seconded by Mr. Pedone and carried unanimously, that the minutes of the May 30, 1991, and June 10, 1991, meeting will be approved at the next meeting of the CEB. *** CEB 90-013 First Assembly of God of Naples, Florida, Inc. Ordinance 82-2, Section 10.2 and 10.7; Ordinance 90-75, Section Al03.1,l.1 and Section Al07; Ordinance 82-2, Section 13, Subsection 13.1e; Ordinance 89-06, Section 5; Ordinance 82-2, Section 7.12 b4 Mr. Lazarus explained that this meeting is to hear argument and reach a decision on the subject case, He reiterated that the Board will not be deciding on any constitutional issues, but will be ruling on the five alleged violations. He noted that each party should conclude their arguments within a 15 minute time period and 5 minutes will be allowed for rebuttal. Attorney Anderson informed that the County is requesting that if the Board finds the Church in violation of anyone or more of the alleged charges, they will make preliminary findings and conclusions allowing the County and the Church the opportunity to resolve the issues raised prior to the start of the school year. Page 2 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE ?1, 1991 Mr. Lazarus expressed his concern regarding the possibility of denying the respondent the right to appeal to the courts if a final finding is not concluded. He agreed that both parties have worked in good faith to try and resolve the issues; but now is the question of what is the most satisfac- tory manner to deal with the findings, conclusions and possible penalties? After some discussion between the County and the respondent regarding the authority of the CEB to make a decision on the interpretation made by the Zoning Director, Mr. Lazarus remarked that this issue can be revisited at a later time and suggested that the summations on the merits of the arguments previously presented begin. Code Enforcement Supervisor Clark stated that the respondent has been charged with several violations of County ordinances at the First Assembly of ,God property located at 2132 Shadowlawn Avenue, Collier County, Florida. He informed that the respondent was advised of the violations and the corrective actions required for compliance which have not been followed. He added that the failure to cease the violations have resulted in these hearings before the CEB. He pointed out that violation one, remo- deling a structure without the required building permits and inspections, violates Ordinance 90-75 and Ordinance 82-2 Section 10,2. He noted that the construction performed at the Church exceeded the minimum $500 valuation of construction which evidence presented verified. He reported that the testimony of Code Compliance Supervisor Bill Smith noted that he had observed newly installed showers and other remodeling during his inspections on the dates of April 18, 1991, May 2, 1991, May 10, 1991, May 15, 1991, and May 29, 1991. He pointed out that photographs of this construction were provided to the CEB in Composite Exhibit A. He informed that Mr. Smith had learned that the construction had not been permitted and did advise the respon- dent to do so by way of the referenced Notice of Violation which the respondent did receive. He cited that the new construction and remodeling were not contested by the respondent, but in fact Rev. Mallory and Rev. Richardson did admit to the installation of three showers and other work, He noted that Rev. Mallory testified that the three Page 3 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 shower stalls were purchased at Scotty's for $98.00 each and that three commodes were removed with modifications made to the drainage system and hot water lines installed. Mr. Clark informed that Mr, Smith advised that he has a State certified general contractor license and a chief building inspector certification and has the expertise to estimate that value of construction which in this case he estimated the value of construction to exceed the minimum of $500.00 which requires a building per- mit. Mr. Clark noted that Rev. Mallory testified that the construction could have exceeded the $500.00 minimum if the valuation of the labor and modifications were considered. Mr. Clark pointed out that there is no disagreement that building permit was not obtained. In review of violation three, Mr. Clark informed that this is a violation of Collier County Housing Code Ordinance No. 89-06 which indicates that too many residents were residing in the subject struc- ture without the required minimum amount of floor space. He advised that the Ordinance states in Section 2, paragraph 2, "The provision of the Housing Code shall apply in the unincorporated area of Collier County to every portion of a building or premise used or intended to be used as a dwelling or dwelling unit in whole or in part, irrespective of the primary use of the building or structure and irrespective of when such building or structure was or is constructed, altered or repaired." He added that the Ordinance contains two separate and distinct definitions, one for dwelling and one for dwelling unit. He explained that dwelling is defined as, "Any building, structure, trailer, mobile home, or rooming house which is wholly or partly used or intended to be used in whole or in part for living or sleeping by human occupants whether or not the building, structure, trailer, mobile home, or rooming house is occupied or vacant." He pointed out that a dwelling does not require cooking and eating facilities which are required for a dwelling unit. He noted that in the May 30, 1991, transcript the respondent's attorney agreed that the Church will stipulate that people reside on an overnight basis at the subject church property. Mr. Clark commented that Mr, Smith concluded an on-site investigation on May 10, 1991, where 26 individuals were residing at the subject Page 4 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 property; on May 15, 1991, he found 21 individuals residing there; and on May 29, 1991, he found 28 residents. He informed that Mr. Smith measured the habitable floor space and found it to be 1510 square feet which at 150 square feet for the first occupant and 100 square feet for each additional occupant as required by the ordinance, there is a violation. He added that even at the figure of 1750 square feet provided by the respondent, they are still in violation of the ordinance because the maximum occupants allowed would be 17 individuals. He advised that the respondent and their attorney claim that a homeless shelter is not covered under the definition of dwelling; however, if it is not a building, a structure, a trailer, a mobile home, a rooming house which is wholly or partly used or intended to be used in whole or in part for living or sleeping by human occupants whether or not the building, structure, trailer, mobile home, or rooming house is occupied or vacant, then it is difficult to define what it is; particularly with reference to the stipulation by the respondent's attorney, it is doubtful that the respondent could argue that the building or structure is not a building or structure or that it is not being used in whole or in part for living or sleeping or that the occupants are not human occupants. He noted that any building or structure that is used for living or sleeping certainly includes hotels and motels, neither of which are an issue in this instance. He asserted that the facts are simple and the evidence substantial to charge the respon- dent under the Housing Code in violation of the required space for the dwelling and dwelling units which are two definite and distinct definitions. He remarked that the respondent feels since there are no cooking or eating facilities in the struc- ture, the Housing Code does not apply; however, he pointed out that this is contrary to the Ordinance because the structure or building is a dwelling under this ordinance since the listed definition of dwelling does not require cooking or eating facili- ties. He specified that the occupants of a dwelling or dwelling unit are each required to comply with all the requirements of the Housing Code. He affirmed that the subject building or structure is a dwelling and is in violation of the Housing Code. Page 5 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 Attorney Anderson informed that he will address violations number two, four, and five which deal with the Zoning Ordinance. He pointed out that the Church property is zoned RMF-6, and Section 7.12 of the Zoning Ordinance sets forth the standards for the RMF-6 zoning district. He advised that this section permits homeless shelters only as a provisional use; however, no provisional use for a homeless shelter has been granted nor has it been applied for. He commented that no one can doubt the sincerity of Rev. Mallory's belief and intentions or the need to address the problem of homeless people. The issues, he continued, are not that but rather one of land use regulation, growth management, and zoning laws which place limitations on private property for the public good. He indi- cated that as discussed in detail in his first memorandum of law, the U.S. Court of Appeals for the 11th Circuit has upheld an absolute prohibition on churches in a residential zoning district such as in Grosz versus City of Miami Beach where the Supreme Court refused to hear the case on appeal. He noted that if a local government can prohibit churches in a residential zoning district, then a local government can place reasonable regulations on a church that is permitted in a residential zoning district. He pointed out that the County is not prohibiting the Church from operating a home- less shelter. He remarked that the Church started operating a homeless shelter without the proper requests for a provisional use, building permit, or complying with the laws that other citizens of the County must follow, and this, he asserted, cannot be sanctioned. He noted that provisional use could possibly be granted by the Board of County Commissioners if requested. He advised that the Church claims that they are not changing the type of use occurring on their land and that a homeless shelter is an accessory use to the church; there- fore, they feel they do not need to apply for a provisional use. He explained that the Church pro- vided Mr. Bruce McLaughlin from Pinellas County as an expert witness who testified that in his opinion a homeless shelter is a customary use to a church and that a customary use is uniformed throughout the State, and in Pinellas County homeless shelters are treated as customary uses. Mr. Anderson pointed out that Mr, McLaughlin also testified that in Pinellas County a day-care center is not treated Page 6 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 as an accessory or customary use to a church under any circumstances, but he acknowledged that in Collier County a day-care center can be considered an accessory use to a church; therefore contrary to Mr. McLaughlin's statements, there is no uniformity between Pinellas County and Collier County as to what is customary or accessory uses to a church. Mr. Anderson added that Collier County is no more bound by the interpretation of the zoning laws in Pinellas County than the people of Pinellas County are bound by the interpretation of the zoning laws in Collier County because each local government has the authority to enact its own zoning laws. He recounted that the Church also called two ministers to testify that a homeless shelter is a customary/accessory use to a church, but neither of the two ministers who testified operate a homeless shelter on or off their church's property. He called attention to the testimony by Rev. Morale that every pastor does not have the gift of being able to work with the homeless and that every pastor has his own ministry that he must follow. Mr. Anderson cited that the Church's own witnesses contract the point that they are trying to make. He stated that Collier County's Zoning Director has issued an interpretation that a homeless shelter is not an accessory use to a church, and he noted that Section 12 of the Zoning Ordinance vests the authority to issue such interpretations to the Zoning Director and also provides that any person disagrees with that interpretation may appeal it to the Board of County Commissioners. He asserted that until the interpretation is appealed and the Board of County Commissioners acts on the appeal, the Zoning Director's interpretation is binding on ~._~ Code Enforcement Board and binding on the 8hurch. Mr. A~de=s ~~sagreed strongly with t__2 ~~le~~ by the Church's attorney that he has nothing to appeal from in regards to an interpretation on this issue because he claims that the Zoning Director's interpretation was not addressed to him, even though the interpretation was served on him. Mr. Anderson informed that he has requested the Zoning Director to respond to Mr. Kramer's letter, and Mr. Anderson divulged that he has the response ready to deliver to Mr. Kramer today. Mr. Anderson disclosed, however, that Mr. Kramer's letter does Page 7 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 not request an interpretation as to whether a home- less shelter is an accessory or customary use to the church nor does it even mention a homeless shelter, but the Zoning Director's response to his letter does provide him with the interpretation that he can appeal to the Board of County Commissioners in the next 30 days. Mr. Anderson closed his comments by indicating that the Board's actions will set a precedence that others in the community will follow. He explained that if churches can ignore and avoid zoning laws simply because they are churches, other businesses in the County are sure to find a way to benefit from the situation. He pointed out that the most fundamental of responsibilities of local government of the Board of County Commissioners are at stake which includes protection of the public health, safety and welfare, growth management and the pro- tection of every neighborhood that has a church located near it. He declared that if the CEB finds in favor of the Church or the operation of the homeless shelter, then every church in every area of Collier County can open a homeless shelter. In response to Mr. Strain, Mr. Anderson commented that the ordinance that specifically lists homeless shelters as an authorized provisional use was put into effect April 19, 1991 and prior to this time there was no provision in the Zoning Ordinance to allow a homeless shelter as even a provisional use. Mr. Strain posed the question that if the Church had applied for a permit for the work they wished to perform, would the Zoning Department have issued the permit and signed off on it? Mr. Clark indicated that he was not sure; however, he had no inclination that the Zoning Department would not have, Mr. Strain informed that the fire department has classified a homeless shelter as a dormitory and questioned if the County has a definition of a dor- mitory? Mr. Clark answered that the Church was charged under Ordinance 89-06 which is the Housing Code which is very inclusive regarding dwelling or dwelling units and a dormitory would be included in this definition. Page 8 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 Mr. Strain pointed out that there is a discrepancy between the Fire Department's calculation of 30 persons per the subject structure and Code Compliance's calculation of 15 persons per same structure. He noted that the Fire Department based their calculation on NFPA10l which the County accepted as an ordinance for Collier County, and he questioned if the definition of a dormitory effected the interpretation between Code Compliance and East Naples Fire Department. Mr. Clark noted that since a dormitory is inclusive in the definition of dwelling or dwelling units, Ordinance 89-06 prevails because the uses of buildings have to coincide with all codes. In response to Mr. Pedone, Mr. Clark affirmed that the number of people allowed per structure provided by the Fire Department is a safe containment number in the event of a fire, but it does not imply use of the building. In response to Mr. Lazarus, Mr. Clark confirmed that the church building and church use did exist prior to the enactment of the zoning code; however, the homeless shelter did not. Mr. Lazarus questioned if a Church operated a home- less shelter prior to the zoning code, would the Church have any vested right to continue the shelter or would they have to apply to the County for a provisional use? Mr. Anderson responded that a number of issues would need to be considered in a case such as this, but it certainly would be regarded at a minimum as a non-conforming use and would need to request a provisional use. Mr. Anderson confirmed Mr. Lazarus' comment that in Collier County accessory use under no circumstances includes a homeless shelter in a church. Mr. Anderson also concurred with Mr. Lazarus' statement that the decision on whether a proper accessory use includes a homeless shelter is a local one. Mr. Anderson advised that basis for this statement would be at the discretion of a particular loca- lity as to what is a customary/accessory use as in the differences between Pinellas County and Collier County regarding day-care centers. Page 9 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 In regards to the building permit, Mr. Lazarus questioned what the valuation cost of the completed construction was? Mr. Clark informed that the valuation of construction costs as testified to by Mr. Smith exceeded $500.00 considerably and esti- mated an approximate cost of $2000.000 which was objected to because of the question as to what work was included in the cost; however, even on redirect questioning Mr. Smith valued the cost at con- siderably over $500.00. Mr. Lazarus noted that there are five charges brought against the Church and questioned if the charge regarding the provisional use was not brought would the charge regarding the building permit have been made? Mr. Clark affirmed that the building permit charge would have been made because inspections need to be made for health and safety reasons. Mr. Lazarus inquired if it is fair to require the respondent to request an interpretation regarding a homeless shelter when their letter of April 19, 1991, has not been answered? Mr. Clark indicated that no unfair requirement has been placed upon the respondent, and pointed out that the respondent did receive the interpretation in a packet of infor- mation which as already noted was not requested in the letter from the respondent. In response to Mr. Lazarus, Mr. Clark commented that he believes that there may be mitigating cir- cumstances in the favor of the Church, however, the negative of the circumstances far out weigh them. He pointed out that there are many areas in Collier County that would allow a homeless shelter, but the Church has elected not to seek these areas. Mr. Lazarus asked if the fact that the County has already designated the shelter in question as a cold weather shelter has any bearing on the case? Mr. Anderson responded that it does not because that designation on a temporary emergency basis when cold weather comes does not make the church a homeless shelter on a permanent basis anymore than it does the Collier County Court House or any of the school buildings that are also designated as temporary cold weather shelters. Page 10 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 In response to Mr. Strain's inquiry as to how many people would be allowed in the shelter in question during a time of emergency, Mr. Clark stated that the answer would need some research, but pointed out that in an emergency situation matters are dif- ferent. Mr. Strain pointed out that the subject shelter was issued 60 cots for emergency purposes and questioned if this means the County has authorized 60 people to sleep in this shelter during emergen- cies? Mr. Anderson answered that although he can- not say with certainty, the cold weather policy does not specify a particular building on the Church property that is to be used for this pur- pose. Mr. Lazarus stated that if there are no other questions, the meeting shall proceed with the sum- mations by the respondent. Attorney Kramer reminded the Board that they are confronted with addressing five issues of violation which the Church claims are not justified. Mr. Kramer noted that there was some question regarding the Church's ministry, and added that the Church is doing no more than what its original, basic, and continuing purpose is, to aid people. He claimed that Mr. Anderson did not address specifically the alleged violations. He pointed out that the County has the burden of proof to show to this Board that there have been violations and suggested that the County has failed to prove them. In regards to violation number one involving the actual work performed, Mr. Kramer stated that the Church relied on information provided that they did not need to apply for a building permit because the cost of the work performed was within the minimum limit of the $500.00 valuation. He pointed out that there is no specific definition of valuation, and noted that the County has not proven that more than $500.00 worth of work has been completed at the subject bUilding. Mr. Kramer said of the second violation, regarding change of occupancy, that the County charges ille- gal land use based on the lack of a provisional use granted for a homeless shelter; however, the zoning Page 11 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 ordinance regarding the acknowledgment of homeless shelters was enacted after the Church had already established the operation of the homeless shelter. He claimed that the violation indicating a change of occupancy is not valid when taking into con- sideration the definition of a church and its customary and accessory use. He admitted that this definition has been challenged by Mr. Anderson, but Mr. Anderson has not introduced any testimony to the contrary; therefore, the only definition pre- sented is that a church within the confines of customary and accessory use may operate a homeless shelter because of its ministry to the poor. He commented that although differences were mentioned between Pinellas County and Collier County, the two communities are similar. He recounted that early testimony indicated that a church in Immokalee is operating a homeless shelter without a provisional use designation. Mr. Kramer noted that in regards to violation number three, if the housing code had been read in total rather than it part, it would indicate, as described in paragraph five, that dwelling and dwelling units shall have a refrigerator and stove in working order; therefore, the code does provide for a type of dormitory, as in the Church and its operation of the shelter. He argued that the County has failed to prove that the Church has a dwelling or dwelling unit. Violation number four, illegal land use, Mr. Kramer reported, again involves the concept of whether or not a Church may operate a homeless shelter as part of its customary and accessory use in addressing the needs of the poor and their religious needs. He commented that the County has not proven its case. Mr. Kramer claimed that violation number five, regarding the four member family provision, has not been addressed at all by the County. Karen Ornowski, attorney for the defense, con- curred that the County has completely failed in its burden of proof of showing any illegal land use. She commented that the County has failed to show what is a customary and accessory use leaving only the testimony by the respondent as to what histori- Page 12 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 cally, traditionally and currently the church does provide which is to administer to the poor. She stated that the County did not restrict the provi- sional use granted to the First Assembly of God in 1983 in any way as to its use except for drainage and access. She cited that the provisional use granted in 1983 included the building being used at the present time for the homeless shelter. She argued that there will be no precedence set by allowing this shelter to continue to operate. She claimed that there was no competent evidence pre- sented linking the testimony of transiency or vagrancy to the Church. Mr. Strain pointed out that regarding the church operating a homeless shelter in Immokalee, this church is located in a C-4 zoning district and, therefore, did not need a provisional use. Mr. Kramer acknowledged that he stands corrected on that point. In response to Mr. Pedone, Mr. Kramer advised that his letter to the County in April was a result of a meeting held where the Church was informed of the violations to which it took exception to. Mr. Pedone informed that the newspaper account advised that the church spent thousands of dollars on its remodeling. Mr. Kramer explained that this reference of cost is in regards to the building of the non-permanent partitions, but are not part of the building which he understands would not require a building permit. In responding to Mr. Lazarus, Mr. Kramer stated that he does agree that accessory use is a local issue because he feels that the customary and accessory uses of a church are not confined to a local area. Mr. Kramer also noted that a church's needs for use may be different in one area from another. He noted that the Church has never held the position that it was in non-compliance with the zoning code. He continued in answer to Mr. Lazarus' questions, by relating the law is clear that objective standards must be established in the code itself to avoid inconsistencies. He affirmed that it is the Board's responsibility in deciding the application of customary use which results in the decision to accept the Church's position or the County's. Page 13 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 Mr. Kramer responded to Mr. Lazarus by contending that the Church has vested rights in regards to the ordinance passed in April, 1991, because the home- less shelter was already in operation. It was pointed out by Mr. Lazarus and Mr. Constantine that the issue regarding the CEB March 23, 1991, meeting is irrelevant because the case was not heard at that time. Mr. Constantine asked what the dollar value would have been if the work performed had been done by a licensed plumber? Mr. Kramer advised that he did not know, but added that the cost of installing one or three showers was not shown by the County either. *** Recessed: 10:35 A.M. Reconvened: 10:45 A.M. at which time Deputy Clerk Guevin replaced Deputy Clerk Arrighi *** COMMENTS: Attorney Bruce Anderson noted he has provided Mr. Kramer with Mr. Baginski's specific response to Mr. Kramer's specific requests. He provided members of the CEB with a copy of the letter, Chairman Lazarus indicated he will accept the letter, with the understanding that the original request was written on April 17th, and this is now June 21st. Mr. Anderson noted that he understands that Mr. Kramer has an objection to the letter being entered into the record. Mr. Anderson continued, stating the County has in the past recognized the existence of homeless shelters and has, in fact, permitted them in com- mercial zoning districts. He mentioned St, Matthews House is in a commercial --' - - --- and the Co~~~y ~:E~ded the Zoning Ordinance in 1981 to =e=G:~ ~h2t establishment as a Provisional Use in the zoning district at issue today, as well as a Principal Permitted Use specifically identified in all the commercial zoning districts and some of the higher density multi-family zoning districts. He reported the County's testimony through Mr. Baginski addresses that a homeless shelter is not an accessory use to a church and the terms of the Zoning Ordinance, Section 7.12, identify Group Care Page 14 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 Facilities Category II. He noted that is the cate- gory in which homeless shelters fall as a specifi- cally identified Provisional Use. He advised it is a cardinal rule of statutory construction that the expression of one thing is to the exclusion of another, and by identifying and allowing a homeless shelter as a Provisional Use, the shelter is thereby excluded as an accessory use. He said the shelter was not lawfully established, therefore, no vesting or grandfathering argument can apply. Mr. Clark addressed a statement made by an attorney for the Respondent who stated there had been no testimony about the valuation of construction when in fact, Reverend Mallory stated the value of construction of the shower bases, hot water lines, drainage modifications and the labor could exceed $500. He said that, coupled with Mr. Smith's expert testimony that it exceeded $500, is an overwhelming amount of evidence supporting that violation. Mr. Strain inquired if the County considers day care centers separately under the law? Mr. Anderson responded that according to Mr. Baginski's testimony, when a day care center is operated for the members of a church's congregation and not open to the general public, it is considered an accessory use to the church. He said once it is opened to the general public, it will no longer fall within that category. Mr. Strain referred to Mr. Anderson's statement that the expression of one thing is to the exclu- sion of another. He said the testimony indicates that day care centers are considered an accessory use for a church, yet the homeless shelter is not because it is expressly noted in the Zoning Ordinance to be a requirement in specific zoning. He mentioned day care is also expressly noted in the Ordinance as being specifically required in a particularly zoned area. He asked how does one apply and not the other, if they both are separa- tely expressed within the code? Mr. Anderson responded that is the interpretation made by Mr. Baginski, in which he distinguished the difference on the basis of whether it is exclusi- vely for members of the church's congregation while Page 15 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 they are attending a service or function at the church, or whether it is open to the public generally. Chairman Lazarus questioned if Mr. Baginski opera- tes under standards or does he use his own discre- tion? Mr. Clark said the standards by which Mr. Baginski must conduct his interpretations are the Ordinance in its totality and the designated intent of the Ordinance. He stated the intent of all Zoning Ordinances is to protect the integrity and the content of neighborhoods. He mentioned Mr. Baginski also testified that the impact of uses on neighborhoods is a serious consideration. He reported the impacts on a neighborhood of a day center and a homeless shelter are significantly different, which is the reason for the Provisional Use requirement for a homeless shelter in a neigh- borhood. He said if that use, which can be very disruptive to a neighborhood, is to be allowed, there are certain constraints to be placed on it. He said, for instance, although a church is intended to care for people, it would not be allowed to build a 10-story hospital for that pur- pose in a residential neighborhood. Mr. Kramer indicated he is unaware of the specific standards in the zoning code under which Mr. Baginski could have made a determination, nor is he aware of standards that have an element, including the impact on a neighborhood, in making such deter- minations. He advised the church has not sought to build a 10-story homeless shelter, it has only taken an existing building and made use of it to house homeless people. He added the church has also administered to them and there is religious activity in that building. In answer to Chairman Lazarus, Mr. Kramer replied it may have been suggested that the County controls day care centers when they are not addressing purely the needs of the congregation. He said, therefore, the religious aspect goes back to the issue of customary and accessory use. Regarding the impact on the community, he reported it is very clear that the community is better served with these people in a shelter with a participating religious ministry, than sleeping on the streets and in schoolyards. He said if that is to be the Page 16 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 determining factor for this panel as to whether or not the shelter should be there, the panel must decide the shelter should be there because it is helping the neighborhood. Chairman Lazarus asked if they should be required to obey the Zoning Ordinance? Mr. Kramer indicated in the affirmative, if the Ordinance is valid and enforceable. In response to Chairman Lazarus, Mr. Kramer gave the opinion that if in fact it is established that a hospital is a customary and accessory use for a church, then the church could operate a hospital and would be required to comply with local and State requirements. He said it would be unne- cessary for the church to apply for a Provisional Use because the hospital would be operating within the framework of customary and accessory use. Mr. Constantine questioned if residents of the shelter are required to attend services at the church? Mr. Kramer indicated they are required to participate in Bible studies. Mr. Pedone hypothesized that another minister may come into the church in five years and decide that a home for unwed mothers, rather than a shelter for the homeless, is customary and accessory to his ministry and would not expect to obtain a Provisional Use. Mr. Kramer commented if the church takes the posi- tion that this is a customary and accessory use and they are not in violation of any zoning, building or housing code provision, they would proceed. He said the issue would then comeback to the CEB or go to court as to whether or not they were correct in their position. He said the problem goes back to the very ambiguous definition that the County has instituted and is seeking to enforce. Mr, Constantine asked if someone refuses to par- ticipate in religious services, are they banned from the shelter, to which Mr. Kramer indicated in the affirmative. Mr. Strain inquired why there are now five viola- tions against the church as opposed to one viola- Page 17 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 tion noted on March 23rd? Mr. Clark replied that further investigation found additional violations. Mr. Strain commented that upon reinvestigation on March 18th, the record indicates the property was in compliance. Mr. Clark stated that the viola- tions were moved from the church to another building. He indicated when Staff discovered the violations were moved to another building, they started another investigation. In answer to Mr. Pedone, Mr. Clark recalled that cots were supplied to the church by the County during a declared emergency by the County, when weather reached below 40 degrees. Chairman Lazarus declared that this portion of the record on oral argument is concluded and the Board will proceed to deliberations on this case. He proposed that each of the alleged violations be dealt with separately. Mr. Strain commented that Items 2 and 4 are essen- tially the same and asked that they be combined. MOTION: Made by Mr. Andrews that Items 2 and 4 be a single discussion, continuing to be two violations. Seconded by Mr. Constantine. 6/0. taken as alleged Carried Chairman Lazarus asked for the Board's con- sideration of Item #1: Convert and remodel struc- ture without proper permits or inspections, in violation of Ord 82-2 Section 10.2, 10.7 and Ord 90-75 Sections AI03.1.1.1 and A107. Mr. Andrews related his concern with the church not having a permit for the construction, because of the inspections that would go with such a permit. He said it is very important for the safety and welfare of the occupants that plumbing and electric improvements be inspected. Mr. Constantine commented that testimony has shown the work done would have cost more than $500 and should have required permits. Mr. Strain mentioned that according to previous testimony, Reverend Mallory did get a permit for Page 18 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MOTION: COMMENTS: JUNE 2 1, 1 991 the electrical work and also had inspections by the Fire Department. He reported he has visited the homeless shelter and viewed the construction. He said, as a general contractor himself, if he were installing that facility on a one by one basis, it would not need a permit based on value. He stated that collectively, the showers would be over $500. He noted there has been no testimony heard by this Board to indicate the showers were installed all at the same time. Mr. Constantine gave his opinion that it is highly inappropriate for a member of this Board to inspect the premises and base some of his opinion on that inspection. He said it is the role of this Board to base its decision on the evidence presented. Made by Mr. Constantine to find the Respondent in violation of Item #1. Seconded by Mr. Pedone. Chairman Lazarus stated in his judgment, there has been a technical violation with regard to Item #1. He said there is sufficient evidence in the testi- mony that a violation has occurred. He noted the question of what penalty or fine should be imposed is a separate issue, and one in which he sees some very important mitigating circumstances. Upon call for the question, the motion carried 5/1 (Mr. Strain opposed). Chairman Lazarus asked the Board to consider Item #2: Change occupancy without obtaining required provisional use; and Violation #4: Illegal land use, by conducting a homeless shelter in an RMF-6 zoned area without first obtaining the required provisional use authorization, in violation of Ord 82-2 Sections 7.12 b4, and by violating the terms and conditions of PU #83-21C obtained for "CHURCH" usage. This is in violation of Ord 82-2 Section 13. Mr. Constantine asked for an explanation of why two separate items are listed for the alleged viola- tions of Items #2 and #4. Mr. Clark indicated it is the opinion of Staff that there are two separate and distinct violations, however, he will not object to combining the two charges. Page 19 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MOTION: COMMENTS: JUNE 2 1, 1 991 Mr. Strain asserted the mission of the church is very admirable, however, he cannot agree that this should not go through the proper public process to be zoned for a Provisional use as a homeless shelter. Mr. Lazarus remarked that he has a serious question about the discretion applied by a County employee in deciding customary and accessory use without having sufficient standards specified in an ordi- nance. He said the County is correct in dealing with this as a local issue, but he is very con- cerned with the manner in which it was dealt, including the disregard of the letter of April 17, which raised the very issue being discussed. Mr. Pedone concluded that customary and accessory use is not an issue to be decided by this Board. He said a County official makes the determination, and the Respondent in this case should have handled this matter using a legal method instead of opening the shelter on his own. He agreed that the letter to Mr. Baginski should have been answered when received, especially knowing the notoriety this case would bring. He concluded, however, that the church was informed in March of the need to apply for a Provisional Use and has not done so to date. He stated in his opinion, the church is in viola- tion of the Ordinance. Mr. Constantine agreed that the cause of the church is admirable, and the CEB is not saying they cannot have a homeless shelter, rather, they need to go through the process to get it permitted. Made by Mr. Constantine to combine Items #2 and #4 as one charge, and find the church in violation as a single offense. Seconded by Mr. Andrews. Carried 6/0. Chairman Lazarus directed attention to Item #3: Too many people for floor space provided, in viola- tion of Ord 89-06 Section 5 Subsection 13. Mr. Strain reiterated that he has visited the shelter and, compared to other homeless shelters in the County, it is not congested and does not hamper the safety of the residents. He added the East N~ples Fire Department is in agreement. Page 20 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 2 1, 1 991 MOTION: COMMEBTS: MOTION: COMMENTS: Mr. Constantine noted the role of the CEB is to follow the zoning laws, which require 150 square feet for the first person and 100 square feet for each person thereafter, Made by Mr. Constantine to find the church in violation of Item #3. Seconded by Mr. Andrews. Carried 4/2 (Messrs. Strain and Lazarus opposed). Chairman Lazarus next considered Item #5: Allow more than four unrelated persons to occupy a single dwelling unit by utilizing a structure as a home- less shelter (Group Care Facility Category II) without obtaining the required provisional use, in violation of Ord 82-2 Sections 7.12 b4. Mr. Strain mentioned this is a redundant violation because it has already been addressed in Items #2 and #4. Mr. Clark indicated Staff would not be opposed to including Item #5 with the combined charge of Items #2 and #4. Made by Mr. Constantine to withdraw Item #5 from the list of violations. Seconded by Mr. Strain. Carried 6/0. Chairman Lazarus stated having found the church in violation of Items #1, #3 and combined Items #2 and #4, the members will now consider the imposition of fines or penalties. Mr. Strain questioned, with regard to Item #1, if they apply for an after-the-fact permit to get the facility inspected, is there any guarantee that a permit will be obtained? Mr. Clark advised there can be no guarantees. Chairman Lazarus commented that Item #4 is the major violation in his judgment, and the other violations would be corrected if there were an agreement on a Provisional Use. He asked Mr. Clark if penalties can be deferred to give the Respondent an opportunity to either appeal these decisions, or get the proper documentation permission from the County to proceed with the facility and proper building permits? Mr. Clark replied his respon- sibility is looking after the welfare of people in Page 21 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 the surrounding neighborhood who have stated they have been adversely affected. He said he shares Chairman Lazarus' empathy with the church and its operation, however, he is also empathetic with the people who have been negatively affected. He stated he has not heard anything from the Respondent indicating they would like to have any number of days to obtain permits or that they are even going to attempt to do so. He asserted that a reasonable period of time to obtain permits and legitimize their operation would be 10 days, if the Respondent wishes to have that period of time. Chairman Lazarus referred to a Memorandum of Law which requests the CEB to make preliminary findings about violations, and also states the desire to afford the Respondent a certain time period in which to file an appeal to come into compliance. He indicated he is attempting to find the dif- ference between what he has suggested and Mr. Clark's remarks. Mr. Anderson advised that he wrote the Memorandum of Law which was predicated upon an understanding with the church's attorney that would permit the CEB to make preliminary findings only, so that no one is forced into filing an appeal in Circuit Court. He said the Respondent is unwilling to agree to preliminary findings and allowing them an extended period of time to come into compliance. Therefore, he said, he agrees wholeheartedly with Mr. Clark's recommendation and requests the Board to issue an order, that the Respondent cease and desist from using the church property as a homeless shelter within the next 10 days. Mr. Constantine commented he has trouble with the concept of a continuance because, should they opt to appeal, the appeals process will suspend any fines mounting at that time. He referred to Item #1, stating shower stalls are not an imminent danger to anyone. He suggested that perhaps a low fine and a long lead time to allow them time to get the appropriate permits would be appropriate. Mr. Strain commented they cannot apply for the per- mits without having a proper Provisional Use for the facility. Page 22 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 Attorney Ornowski mentioned that a reasonable time period should be allowed so that the church can correct the situation. Mr. Constantine remarked when anyone enters into a project, they need to be very careful they are complying with local, state and federal laws and regulations. He commented it would not be appropriate to let the operation continue until the issue is settled. Mr. Clark indicated the assumption seems to be that the Respondent will apply for a building permit and be denied. He said he is not sure that is an accurate statement. He suggested they be given 10 days to apply and receive the building permit. If they apply and come into compliance, he said, the issue is moot. He stated if they apply and are denied, then perhaps additional time is warranted. He avowed that should the First Assembly of God wish to locate in an area that is legally con- forming, he will offer the services of himself and his Staff to assist them in finding appropriate facilities in a commercially zoned area that can accommodate larger numbers of people than can be accommodated in an RMF-6 area. He said Compliance Services do not consider themselves as punitive, rather, their responsibility is an enforcement action designed to bring compliance. Chairman Lazarus questioned how long it will take the Respondent, should they decide not to seek a Provisional Use, to perfect an appeal to the Courts? Ms. Ornowski responded they only have 30 days to appeal Mr. Baginski's letter. In answer to Mr. Kramer, Chairman Lazarus made the assumption if the Respondent appeals to the Board of County Commissioners who then decide that the interpretation of Mr. Baginski is incorrect, this case would be reopened by the CEB. He indicated he would also assume if an appeal is taken to the BCC, if a Provisional Use is sought, or if there is an appeal directly to the Courts, that penalties would be stayed. Mr. Kramer asked if Mr. Anderson would stipulate to that, to which Mr. Anderson replied he is not authorized to do so. Page 23 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 Mr. Clark remarked that Item #1 has nothing to do with any appeal or interpretation by Mr. Baginski, nor does the Housing Code issue. He recommended that those two issues not be deferred, however, he will have no problem with deferring the other two items. Mr. Constantine asked if there is any way possible to correct the violation without permitting, to which Mr. Clark replied technically, there would not. However, he said, Compliance Services would not pursue the issue if they removed the items that were placed in violation of obtaining a building permit. Mr. Kramer mentioned to remove the items and replace the sinks that had been there, would be no less work or value than what has already been done. He also relayed his understanding that the Respondent would need a permit to remove the items. He asked, if the items are removed down to one shower which costs less than $500, would that be a problem? Chairman Lazarus indicated that since the settlement phase has passed, it is too late to con- sider that option at this point in time. Chairman Lazarus concurred with Mr. Strain that the Board consider Item #4 prior to concluding discussion of Item #1. Mr. Strain advised that in discussions with Staff, he was told that, because the Board of County Commissioners is about to take recess for a por- tion of the summer and also the amount of work it takes to put a Provisional Use through, it will now take three to four months to get one accomplished. Mr. Clark indicated Staff would not be opposed to granting a 30-day timeframe on this issue, for which to apply and pay the fee. He said as long as the progression from that point is in an orderly fashion and the Respondent does not stall the issue by asking for continuances to go before the BCC, Staff will agree to a period of time of 90 to 120 days. In answer to Mr. Constantine, Mr. Clark advised that as long it is on the calendar of the BCC within 120 days, Staff will not be opposed. He Page 24 ~ CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 concluded the CEB should proceed with a fine after the 30-day period otherwise. Mr. Pedone questioned if the homeless will remain in the building while this issue is being appealed or brought before the Board of County Commissioners? Mr. Anderson advised the County tried to reach an accommodation before this hearing in order to avoid going through an appellate pro- cess to the Circuit Court. He said that arrange- ment would have permitted the Respondent to continue operation of the shelter for a period of time while they filed an Administrative Appeal or sought a Provisional Use and would not have forced them to appeal to Circuit Court, or the County to spend the time and money to defend the CEB's deci- sion in Court. He noted that opportunity is no longer available. Mr. Pedone commented that imposing a fine will be the only incentive for the Respondent to apply for a Provisional Use because, otherwise, they can con- tinue the operation. Ms. Ornowski asserted the cost of bringing this issue through the process is enough of an incentive as the alternative to some other procedure. Mr. Anderson declared the penalty to be imposed should be commensurate with the cost that the church might have if they came into compliance by renting space in a commercial zoning district. Mr. Kramer stated his understanding that the CEB anticipates, once an appeal is filed or the Provisional Use application is filed, there will be no fines incurred. He asked if Mr. Anderson has a different position to that? Mr. Anderson com- municated the only way to come into compliance at this point in time is to relocate the shelter to a zoning district where it is permitted as a Principal Use, or to have a Provisional Use granted, not only to file for one. He said the time has passed for that and the Respondent was afforded that opportunity. Mr. Kramer indicated there seems to be an innuendo that the Respondent has done something wrong. He reported until he spoke to Mr. Anderson approxima- Page 25 CODE ENFORCEMENT BOARD OF COLLIER COUNTY ---------___21:}1!~__~~_L,_~~_~_~ tely 10 or 15 minutes ago, he thought there was an understanding, an arrangement and a stipulation. He said apparently there has been a breakdown in communication, but his understanding was that nothing would be imposed until the Fall to give the Respondent the opportunity to go before the Board of County Commissioners or the Court. Mr. Pedone expressed that neither Mr. Clark nor Mr. Anderson can make decisions for this Board. Mr. Kramer agreed that they would make a recommendation to the Board with the understanding that it is sub- ject to CEB approval. He also pointed out that the school across the street from the church is not jn session until the Fall, which alleviates that problem until that point in time. Chairman Lazarus suggested that the Board recess for one hour during which time the parties may find an accommodation they wish to present. *** Recessed: 12:15 P.M. - Reconvened: 1:15 P.M. at which time Deputy Clerk Arrighi replaced Deputy Clerk Guevin *** COMMEt.TS: Mr. Anderson stated in answer to Mr. Lazarus that the County has a recommendation. Mr. Clark made the recommendation that the respon- dent be allowed 45 days from the date of June 21, 1991, to bring into compliance the violations for which they are charged. He explained that the 45 days will give the respondent the opportunity to seek a suitable location to accommodate the number of homeless they are now housing. He advised that in regards to the building code violation, after the 45 days are exhausted and the violation still exists a charge of $25.00 per day for every day the violation continues to exist thereafter is recom- mended. He suggested that the penalty for the housing violation be set at $50.00 per day per per- son for every individual over the allocated number. For the zoning violation, Mr. Clark suggested, that a fine of $250,00 per day for every day after the 45 day allocation. He asserted that the methods of how the Church removes the violations brought against them is left to their own decision; however, he offered his own personal time to con- tact people in the community to help in regards to financing for them if they wanted. Page 26 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 Mr. Anderson explained the rationale behind allowing the Church 45 days to bring into compliance the alleged violations is to give them the opportunity to appeal to circuit court, appeal to the Board of County Commissioners regarding the Zoning Director's interpretation, bring the viola- tions into compliance, and 45 days from now will be just before school will reconvene. Mr. Kramer pointed out that a provisional use could be applied for, however, its processing would take much longer than 45 days. Mr. Clark noted that if the application is applied for, there is nothing preventing the Church from requesting a rehearing or a reduction in fines based on the good faith to bring the violations into compliance. Mr. Kramer suggested that if the Board's decision is to allow 45 days to make the application, then fines should be suspended until the application has been completely processed. Mr. Lazarus questioned what would be wrong with imposing fines with the stipulation that if the respondent appeals to the circuit court or the Board of County Commissioners or seeks provisional use within a certain time period then the fines are to be stayed until those procedures are exhausted? Mr. Anderson explained that this does not stop the violation from continuing. In response to Ms. Ornowski, Mr, Clark stated it is his interpretation that a separate provisional use would need to be applied for and not an amendment to the existing one for the Church because the use the Churcl' :lot consistent wi th the provisional use that has ~~~ed fo~ the Church. MOTION: Made by Mr. Strain that the CEB continue with the requirements for a provisional use applicationan4 in 45 days review the situation; if in 45 days the respondent has not made earnest effort with the provisional use, then fines will be determined at that time. Seconded by Mr. Varie. Mr. Lazarus commented he does believe that there is merit in imposing the fine now and having a fine in Page 27 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE ~1, 1991 place which will take effect unless a good faith effort is evident by the respondent, and they come back before the CEB. Mr. Lazarus suggested an amendment to the proposed motion that a fine be imposed, but give the respon- dent 45 days to seek provisional use either by an amendment or a new provisional use or appeal to the Board of County Commissioners, and allow them the opportunity to come back before the CEB to request a rehearing on the issue of the timing and amount of the fines. Mr. Strain accepted Mr. Lazarus suggestion as an amendment to his motion. In response to Mr. Constantine's request for clari- fication of the motion, Mr. Lazarus stated that the motion would read that the respondent is fined a certain amount of money, the fine would not be effective until the 46th day after the effective date of our order; however, if the respondent either appeal Mr. Baginski's interpretation to the Board of County Commissioners or seek an amendment to their existing provisional use authority or a new provisional use authority within the 45 day period, permitting them to utilize the homeless shelter on the premises it is now located, they are to be granted the right to appear before the CEB at a special session to seek rehearing on the issue of whether the fines should be delayed, reduced or otherwise changed. Mr. Varie seconded the amended motion. Assistant to the County Manager Olliff requested that stipulations be added to the motion in regards to health and safety issues at the subject shelter. Mr. Kramer objected. Mr. Olliff stated that his recommendations are that there should be some control placed on the interim period of time in which the violation is being allowed to continue so that the individuals being allowed to reside in the shelter during this time have protection in terms of the County's life and safety code. He suggested that 17 people be the maximum amount of people allowed to stay in the shelter during this said time. Page 28 .. CODE ENFORCEMENT BOARD OF COLLIER COUNTY MOTION: MOTION: JUNE 21, 1991 Mr. Kramer related that the Fire Department's code allows 30 individuals. Mr. Strain requested to amend his motion to include a cap of 28 people be allowed to reside at the sub- ject shelter during the 45 days interim time. Seconded by Mr. Varie. Mr. Clark informed that the recommendation pre- sented by staff is valid only with the proposed stipulation included; therefore, without the pre- sence of the said stipulation, the staff's recom- mendation is withdrawn. Mr. Constantine voiced his concern regarding the amended motion to include allowing 28 individuals to be housed at the shelter during the interim period of time because as jndicated the more restrictive of the County codes should apply which in this case is the Housing Code allowing only 17 people. Mr. Kramer pointed out that it is a Florida State law that if a respondent is found in violation of charges, he is to be given a reasonable amount of time to bring the violations into compliance before any fines are imposed. Upon call for the question, the motion failed due to the lack of a majority vote (Mr. Andrews, Mr. Constantine, and Mr. Pedone opposed.) Made by Mr. Con~tantine that Violation 3.t re~ardin~ too many people for floor space provided, be brou~ht into compliance by June 28; and allow 45 days for the other violations. Seconded by Mr. Pedone. The motion failed due to the lack of a majority vote (Mr. Varie, Mr. Lazarus, and Mr. Strain opposed.) Regarding the suggestion by Mr. Strain and its discussion which followed, Mr. Lazarus commented that it would not be unreasonable to allow only 30 days to bring the violations into compliance, and added that if the evidence of good faith is pre- sented, the process for a rehearing can proceed. Made by Mr. Strain to amend his first motion~ reducin~ the number of days to 30 to allow for Page 29 CODE ERPORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 compliance of the violations, appeal to the Board of County Commissioners or seek a provisional use; and if any of these actions are taken, the CEB will grant a rehearing to the respondent with no commit- aent as to the timing of the penalties or the amount of the penalties. Seconded by Mr. Varie. Mr. Constantine reiterated his concern for safety for the number of people that are being housed at the shelter, and stated that if the Housing Code allows 17 people to safely be housed in the allo- cated floor space, then that is all that should be allowed. Upon call for the question, the motion failed due to the lack of a majority vote (Mr. Andrews, Mr. Constantine and Mr. Pedone opposed.) *** Recessed: 2:10 P.M. - Reconvened: 2:40 P.M. *** Mr. Anderson informed that an agreement has been reached with the respondent with recommendations to the CEB to consider the 18 conditions provided for the record for the interim time period. Mr. Kramer advised that the 18 conditions are agreed to by the respondent only if allowed 45 days for compliance. !n answer to Mr. Lazarus, Mr. Anderson acknowledged that 45 days is one of staff's recommendations. In clarification of condition number twelve for the benefit of Mr. Lazarus, Mr. Kramer explained that the shelter will notify the Sheriff's department with the names of the person's seeking shelter. Mr. Clark confirmed that stipulation number one is agreed to by staff based on stipulation number ten and eighteen. Mr. Kramer read for the benefit of the Board stipu- lation number eighteen as it should appear: "The Church shall defend, indemnify, and hold harmless Collier County and its officers, agents, and employees from any claims, causes of actions, or injuries arising from the County's participation in this Stipulation." Mr. Anderson agreed with this stipulation. Page 30 . ~ .. CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 Mr. Lazarus stated to Mr. Kramer that under the conditions set forth, the respondent would have 45 days in which to appeal to the Board of County Commissioners or seek a provisional use by amend- ment or new application, and if this happens, the respondent has the right to come back to the CEB and be granted rehearing without any assurance as to how the Board would react to a rehearing. Mr. Kramer affirmed that is his understanding. Mr. Clark clarified that the rehearing will be on the reduction of the fines or timing of the fines, but not the merits of the issue. MOTION: Made by Mr. Strain that th~St~pulations as pre- sented be accepted for a 45 day period, subject to a request for a rehearina at that time. Mr. Lazarus suggested an amendment be made to the motion by determining a level of fine this date and will be assessed against the First Assembly of God of Naples and become effective on the 46th day after the order is signed; however, in the event that the First Assembly of God of Naples either appeals to the Board of County Commissioners on the interpretation concerning accessory use or applies for an amendment to its provisional use authority or a new provisional use authority, then the CEB will grant a rehearing limited to the issue of the amount of the fine and the time of the imposition of the fine, He explained that granting a rehearing will be to consider the arguments of the respondent that they are acting in good faith to come into compliance, and emphasized that it does not mean the CEB will adjust the amount of the fine or the timing of the fine. Mr. Strain amended his motion to include the amend- ment stated by Mr. Lazarus. Seconded by Mr. Varie. In response ;:c r-.~'..;:...e:: p - _ 8::-; to the motion because there is nothing automatic after 45 days, Mr. Lazarus reiterated that after 45 days the fines will be imposed. Mr. Clark stated that staff would rather the motion read that when the respondent receives Mr. Baginski's letter of interpretation, 30 days be allowed from the date of receipt to appeal to the Page 31 -~ ~ CODE ENFORCEMENT BOARD OF COLLIER COUNTY MOTION: JUNE 2 1, 1 991 Board of County Commissioners. He related that staff would also rather have the motion indicate that a request for rehearing will be granted. Mr. Lazarus asserted that the motion could further be amended to include that the rehearing will be granted only upon the CEB receiving specific evi- dence of an appeal taken to the Board of County Commissioners or a properly executed request for provisional use for the facility. Mr. Clark con- curred. In response to Mr. Kramer, Mr. Lazarus noted that an appeal to the courts will be handled separately. Mr. Strain amended the motion to include the pro- posed amendment suggested by Mr. Lazarus. Seconded by Mr. Varie. Motion carried 5/1 (Mr. Constantine opposed. ) In regards to the question of the fines, Mr. Lazarus related that the County suggests that the fine on the Housing Code violation should be set at $50.00 per day per person over the allocated amount of 28 persons during the interim 45 day period and then $50.00 per day per person over the allocated amount of 17 persons. He indicated that the Building Code violation should be set at $25.00 per day, and the homeless shelter without provisional use authority should be set at $250.00 per day. In response to Mr. Kramer, Mr. Lazarus affirmed that the proposed fines are within the juris- diction of the CEB to levy. Made by Mr. Pedone that the County'S recommendation of imposing a fine of $250.00 per day for the pro- visional use violation, starting on the 46th day after the order is signed; of $50.00 per day per person for every person over an allocation of 17, starting on the 46th day after the order is Signed; of $50.00 per day for every person over an alloca- tion of 28 during the 45 interim period; and $25.00 per day for the bUilding permit violation, starting on the 46th day after the order is signed be applied. Seconded by Mr. Constantine. Mr. Lazarus affirmed that the proposed motion is subject to the granting of a rehearing based on a Page 32 ,. . CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 21, 1991 good faith effort by the First Assembly of God of Naples. Upon call for the question, the motion carried 4/2 (Mr. Strain and Mr. Andrews opposed.) After asking if there were any further issues, Mr. Lazarus stated that the matter is concluded. *** There being no further business, the meeting was adjourned by Order of the Chair. CODE ENFORCEMENT BOARD OF COLLIER COUNTY Page 33