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CEB Minutes 05/30/1991 1991 Code Enforcement Board Minutes May 30, 1991 \. CODE ENFORCEMENT BOARD OF COLLIER COUNTY DATE: May 30, 199J TIME: 9:00 A.M. PLACE: 3rd Floor Boardroom, Building "F", Coilier County Government Center, Naples, Florida CEB STAFF PRESENT _._~.- ANDREWS CONSTANTINE VARIE LAZARUS PEDONE x X CLARK VALCARCEL SMITH WILSON BAGINSKI x x STRAIN WILLIAMS X --,-- X X ABS. MINUTES BY: Debby Farris and Wanda Arrighi, Deputy Clerks CALLED TO ORDER AT: 9:00 A.M. ADJOURNED: 2:30 P.M. PRESIDING: Monte Lazarus, Chairman ADDENDA TO THE AGENDA: None Page 1 ~ CODE ENFORCEMENT BOARD OF COLLIER COUrITY, FTDRIDA Id~&!'.!Ql', Date: May 30, 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 April 25, 1991 4. PUBLIC HEARINGS A. Board of county Commissioners vs First Assembly of God Church of Naples, Florida, Inc. CEB # 91-013 5. OLD BUSINESS NIA Cf 6. NEW BUSINESS Request to schedule next Code Enforcement Board meeting for Monday, June 24, 1991 7. REPORTS 8. NEXT MEETING .DATE. Monday, June 24, 1991 9. ADJOURN ..- CODE ENFORCEMENT BOARD OF COLLIER COUNTY !TE~: COMMENTS: MOTION: CASE NO: RESPONDENT: . MA Y 30, 1 99 1 *** Approval of Minutes of April 25, 1991 Mr. Andrews pointed out that page 1 of the ApriJ 25, 1991 minutes should read that Mr. Varie was present at said meeting instead of Mr. Lamoureux. Made by Mr. Strain to ~pprove the Minutes of April 25, 1991, as amended. Seconded by Mr. Andrews. Carried 6/0. *** 91-013 First Assembly of God of Naples, FL Inc. LOCATION OF VIOLATION: 2132 Shadowlawn Rd.: Naples, FL VIOLATION: COMMENTS: Ordinance 82-2, Section 10.2 and 10.7; Ordinancp 90-75, Section A103.1.1.l and Section Al07; Ordinance 82-2, Section 13, Subsection 13.1e; Ordinance 89-06, Section 5; Ordinance 82-2, Section 7.J2 b4 Chairman Lazarus reiterated that the concerns of the CEB, as a collegial body, are alleged viola- tions of Collier County Zoning Ordinances. He stated that this Board is not concerned with alle- gations of trespass, drunkenness in the neigh- borhood, or any other issues except as stated herein. He referred to the Affidavits contained in the file describing conduct of people in the neigh- borhood, stating that testimony on these allega- tions will not be heard as they are not relevant to the issues before this Board. Code Enforcement Supervisor Clark asked if the Board wishes to hear whether or not a homeless shelter is beneficial to the community. Chairman Lazarus confirmed that issue as well as questions of affect on neighborhood, etc. are not issues properly before this body. Code Enforcement Coordinator Marie Valcarcel reported that the Respondent and members of the Page 2 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 Code Enforcement Board have been provided with copies of the 44-page Composite Exhibit "A", admitted into evidence at this time. Hon. Frederick C. Kramer, Attorney for Respondent, voiced objection to certain documents contained within Composite Exhibit A, including the copy of a newspaper article (page 40 of Exhibit), which he contends is hearsay, as well as Affidavits by per- sons not present today. He asked that these items be removed from the file. Compliance Services Supervisor Clark stated that these elements are relevant. He advised that hear- say is admissible, particularly when there is addi- tional substantiation. He indicated that, if Attorney Kramer wishes to stipulate to the fact that there is a homeless shelter in existence at that location, he will have no objections to removing the requested documents from Exhibit A, but otherwise he will object to doing so. Attorney Kramer pointed out that there is a quote allegedly made by Pastor Mallory that is incorrect, and that is the source of his objection. Mr. Clark countered that the substance of the article is substantiated in several other docu- ments. Chairman Lazarus instructed that the Board will accept the newspaper article but the quote attri- buted to Rev. Mallory will not be considered by them, and the Affidavits will not be made a part of this exhibit as they relate to behavior in the neighborhood and are irrelevant to the issues. Mr. Clark commented that there have been several Appellant Court decisions and Supreme Court deci- sions stating that the affect on a neighborhood in zoning cases are relevant matters to be considered. He stated that, for that basis, if the shelter has a negative affect on the neighborhood it is a very relevant issue. Chairman Lazarus reiterated that the Board will not hear the issue of behavior in the neighborhood as it is irrelevant to the matter before them today. Page 3 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 Attorney Kramer asked the County to stipulate to the fact that it has designated the church as cold weather emergency shelter and that fact is not at issue here today. Mr. Clark disagreed with Attorney Kramer's state- ment. He indicated that the County has documents to be admitted into evidence later on in the pro- ceedings verifying that, during certain limited emergency conditions, the County has, on an emergency basis very temporary in nature, allowed the shelter to be used. Chairman Lazarus stated that, if that information is contained in public documents, this Board will take official notice of it. After being sworn in, Code Enforcement Supervisor Bill Smith verified the credentials which qualify him to inspect buildings for building code viola- tions. In reply to Ms. Valcarcel, Mr. Smith stated he physically inspected the subject premises on 4/18/91, 5/2/9l, 5/l0/9l, 5/l5/91, and 5/29/91; that the zoning classification for the subject pro- perty has been determined as RMF-6 with a provi- sional use approved for a church only; and that the purpose of his inspection of the subject property was to investigate complaints that a homeless shelter was being operated out of the church. In response to Ms. Valcarcel, Mr. Smith referred to page 1 of Composite Exhibit A of 91-013 and expounded on the alleged violations. He referred to the photographs depicting the violatlons on page II of Composite Exhibit A. He stated that toilets, showers, and stalls have been added that do not meet the requirements of Code and for which a Permit was not obtained or inspections made. Attorney Kramer objected at this point stating that the Notice of Ordinance violation does not address any specific violations of the building code. Mr. Smith stated that the Notice refers back to Ordinance 90-75 which adopts the Standard Building Code. Page 4 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 Attorney Kramer indicated the point of his objec- tion is that they have not been placed on notice of violations of specific building codes, and that nothing contained in the documents served on the Respondent advises them of any specific violation other than improving property without obtaining a permit. Mr. Clark interjected that the County would pro- bably agree wit~ Attorney Kramer's point but stated that Mr. Smith is testifying that there are reasons for obtaining a building permit, one of which is insuring that construction adheres to the building code. He stated that the construction represented by the photographs on page 1J of Composite Exhibit A were not built to code. Attorney Kramer pointed out that the basis of his objection is that Respondent has not had the oppor- tunity to challenge or prepare for this issue. Mr. Clark stated that Respondent has not specifi- cally been charged with violations of not bringing the construction to code. Chairman Lazarus stated that the only issue before the Board at this time is whether or not there was a permit. Mr. Smith reported researching Collier County records and finding that no permit was obtained. In answer to Mr. Strain, Mr. Smith verified that he feels the value of the construction exceeded $500. In answer to Ms. Valcarcel, Mr. Smith stated the photographs accurately illustrate what is on that site. In reply to Ms. Valcarcel, Mr. Smith verified he provided notice of violation and a stipulation to Rev. Mallory on 5/l2, and Investigator Jim Seabasty provided Rev. Mallory and his wife with a notice of violation and stipulation on 5/14. He directed attention to pages 8, 9 and 10 of Composite Exhibit A. In reply to Chairman Lazarus, Attorney Kramer con- firmed that the documents were received by Rev. Mallory. Page 5 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY ~..1_~-2.L . In response to Ms. Valcarcel, ~r. Smith attested to the manner and number of times Rev. Mallory was given notice to correct. In response to Ms. Valcarcel, Mr. Smith discussed his findings on subsequent inspections of the site, including 5/10 at which time he found 26 residents, on 5/15 when he fo~nd 21 residents, and on 5/29 when he found 28 residents. He reported talking to several persons at the time of these inspections, none of which were related by blood or marriage. He confirmed that each time he was on site he knocked on the door and was either told to enter and do what he needed to do or was told to enter and he proceeded to count residents. In reply to Ms. Valcarcel, Mr. Smith stated the building calculates to l,5l0 sq. ft. which allows 150 sq. ft. per person for the first person and 100 sq. ft. for every person thereafter under the Housing Code. Ms. Valcarcel introduced a four page document into the record identified as Composite Exhibit B, a copy of which was not provided for the record. Pursuant to a request by Mr. Clark, Mr. Smith iden- tified the proffered document identified as Composite Exhibit B as consisting of four pages and alleged to be a log kept on site at the time and was up to 2/11/91. He said he did not know who made the entries but that when people came into the shelter they were requested to give their name, date of arrival, and place of employment. He said that Exhibit B is a copy of the sheets that were provided to the Sheriff's Department and, in turn, provided to him. Attorney Kramer objected to Exhibit B stating it involves use of the sanctuary as a resting place for the homeless and has nothing to do with the notices before us today dealing with violations in March, April and May of this year. Mr. Clark commented that it is on the same property with the same provisional use, owned by the same ownership showing, in fact, that these facilities have been utilized for homeless shelters for some time. Page 6 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 Chairman Lazarus questioned whether the purpose of Exhibit B is to show the number of people. Mr. Clark stated it not only shows the number of people but also shows the use of the property. Chairman Lazarus pointed out that Attorney Kramer has no objection to having received notice and, in fact, has twice agreed that Respondent did receive notice. Attorney Kramer agreed that the church will stipu- late that people do reside on an overnight basis on the church property. Ms. Valcarcel proceeded to introduce a seven page document identified as Composite Exhibit C, copy of which was not provided for the record. Following discussion, Chairman Lazarus stated that Exhibit C will not be admitted into evidence. Ms. Valcarcel introduced a thirteen page Composite Exhibit D, copy of which was not provided for the record. Chairman Lazarus stated that, hearing no objection, Composite Exhibit D will be admitted for the record. Mr. Smith identified Exhibit D as being the Collier County Cold Weather Shelter Policy. He read the introduction contained within same. He stated that on the three days of his inspection of the shelter the temperature was never below 40 degrees, and that the inspections were made at 4:00 A.M., 4:30 A.M., and 5:00 A.M. with temperatures ranging bet- ween 70-75 degrees. Ms. Valcarcel introdu~ed a two page document iden- tified as Composite Exhibit E. Following discussion, Mr. Clark stated that, based on the stipulation that people without other places to stay do reside at the facility overnight, the County will withdraw Composite Exhibit E. Ms. Valcarcel introduced a nine page document iden- tified as Composite Exhibit F, copy of which was not provided for the record. Page 7 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 Chairman Lazarus stated that Exhibit F is admitted. Mr. Smith identified Composite Exhibit F as pho- tostatic copies from Collier County records of the provisional use that was granted to the site in question by PU-83-2l-C outlining that a provisional use was granted for use as a church. In response to Attorney Kramer, Mr. Smith read paragraph 9 on the third page of Composite Exhibit F. Mr. Smith stated that, by the document presented, he would have to assume that the buildings were in existence. Attorney Kramer stated it is their position that the original buildings did not need a provisional use, that the church was in existence before the Zoning Code came into effect, that the application dealt solely with the structure of the building of a new sanctuary. Attorney Kramer stated he believes the church went into operation in approximately 1956, and that the structure used to house people overnight was built in 1965. He stated he will be introducing the building permit for that as part of his case. In reply to Attorney Kramer, Mr. Smith verified that on the morning of May 29th someone told him to enter the prem'~~~i but that he did not know who the person was. He stated that a deputy accom- panied him on that visit as well as on all the other visits made to the site. He stated he knocked on the door and the person on the other side said "come in". Attorney Kramer presented a book to Mr. Smith which he alleged to be a copy of the Collier County Code. In reply to Attorney Kramer, Mr. Smith said he is not familiar with the book passed to him by Mr. Kramer. Attorney Kramer proceeded to question Mr. Smith as to the contents of the book he had presented him, including whether it contained the Housing Code and the Building Code. Page 8 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 Mr. Smith stated he is not going to answer that because without looking through the book he has no idea as he has just been handed the book. Mr. Kramer questioned whether Mr. Smith wanted to take a minute to research the book. Mr. Smith stated it will take longer than a minute but certainly, and he proceeded to peruse the book. In reply to Mr. Strain, Attorney Kramer verified the the property's earliest use as a homeless shelter was last year, but that people have slept on the property prior to that time. Mr. Strain questioned the date on which the Cold Weather Shelter Policy was enacted, to which Mr. Clark replied it was last year. Chairman Lazarus pointed out that he had examined the book Attorney Kramer had presented to Mr. Smith earlier and noticed it was not updated. Attorney Kramer reflected that it is his belief that the Housing Code and Building Code the County is seeking to enforce is not part of the public records in the Code Book. Assistant County Attorney Wilson stated that it was, in fact, part of the public records but may not be in the codified portion of it as Collier County is not at this time able to afford a regular codification of the Ordinances. She added that the updated versions of the Ordinances are a matter of public record in the Clerk of the Courts Department. She stated she did not know whether they were available in the law library. Mr. Smith stated that he did not find Ordinance 90-75 nOl' 89-06 in the book he has been provided. In reply to Attorney Kramer, Mr. Smith stated that work done at the location of the shelter site without permits included addition of toilets, bathrooms, and showers to the building; that he did not know how many bathrooms have been added to the site; that three toilets have beeD added to his knowledge; that there were four toilets at the time of his inspection; that he can go by the tax Page 9 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30 , 1 991 records to ascertain what the building was pre- viously used for and by what the County previously viewed, which was a day-care preschool; that it was his belief that the day-care preschool had one toilet and that belief is based on what the tax records show; that bathroom facility means one bathroom in his assumption, but that that is the property appraiser's determination, not his; that he has no personal knowledge as to what was there; that it is his belief that two showers have beeD added, but that he is not aware of what was there before; that he does not know when the showers were added; and he does not know when the toilets were converted or put in. Attorney Kramer questioned Mr. Smith's basis for establishing the vaJue of the work done at the shelter, to which Mr. Smith replied it was his experience in the construction field. In response to Attorney Kramer, Mr. Smith stated there were new toilets added that were required to be plumbed into the wall and there is a hole cut out for that purpose. He surmised that if the toilets were put in originally, they would have had to be put in according to code and that code allows for an inspection. He stated the toilets do not meet the 30" requ i remerl t 0 f code and that the showers are elevated approximately 4--6" of~ the floor wi th Ilew ? X 4.' s underneath wIdch allow the plumbing to be tied into the wall thus creating proper fall. He stated it is all new plumbing pipe, all new shower stalls and that the code sta- tes that installation of something new requires a permit. In reply to Attorney Kramer regarding new plumbing pipe, Mr. Smith stated there is new plumbing pipe underneath the toilet and the shower, but that he does not know how far it goes into the ground as he has not cut it up and a lot of it has been covered. Attorney Kramer stated he was still trying to establish what work was in fact done. Mr. Smith stated there was new plumbing and showers installed which does not meet the proper require- ments in side spacing for toilets and showers. Page 10 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MA Y 30, 1 99 1 Mr. Strain asked Mr. Smith where the original construction drawings submitted for the building permit on that structure were. He added that, since it was a provisional use, there must have been detailed drawings available. Mr. Smith answered "No, not to my knowledge". He added that the only thing available was the church and that the other buildings were delineated in the provisional use as to what the building was, but there were no plans for that available to him. In answer to Mr. Strain, Mr. Smith stated there were building plans on the church, but that he found no building plans in the file for the building which he refers to as the far south building. Mr. Strain questioned whether it was possible to verify that those buildings had a permit in their whole entirety. Mr. Smith answered that the Property Appraiser's cards delineate certain permits but he has no knowledge on what the specific permits were. Attorney Kramer questioned whether Mr. Smith attempted to inspect records to find out if a per- mit had been issued in 1975 for the building in question. Mr. Smith answered in the negative, adding that the building on the Property Appraiser's card had been labeled and was under the provisional use as a preschool, and the occupancy changed. Mr. Smith said he did not know whether the county had ever authorized or approved the use of the building as a preschool. Attorney Kramer asked Mr. Smith what he means by "value" . Mr. Smith replied that "value" is estimated cost to have the work done. He added that, if they have to go out into the field and contract to have that work done, it would be a minimum cost. In response to Attorney Kramer, Mr. Smith stated he established the value by his personal knowledge of Page 11 CODE ENFORCEMENT BOARD OF COLLIER COUNTY tvlA Y 3 0 I 1 9 9 1 what construction costs are; that he did not have a breakdown as to what each item was in cost; that he only estimates as to whether or not total cost will exceed $500 and nothing more; that, if a contractor were paid to come in to do the work in question, it would be in excess of $2,000. In reply to Attorney Kramer, Mr. Smith stated there is an interior wall that is installed on the west side of the building which separates the "sitting quarters" with four beds installed there, and that there are four beds installed on the west side and the far south side is also sleeping quar- ters; that the walls are not sturdy enough to be part of the original structure; that he has not seen the plans for the original structure, but they do not meet code; that the installed walls are tem- porary; that they are fixed to the floor but are not fixed to the ceiling; that he has not taken the wall apart but knows that when you grab the wall it shakes but does not move; that there is a partition between the toilets but the wall had not been completed. In response to Attorney Kramer regarding the viola- tion of inadequate space between toilets, Mr. Smith verified that by tearing down the wall he was objecting to there would no longer be a violation, but added that there would remain a violation caused by the toilet sitting too close to the shower. Attorney Kramer asked if that is in accordance with the code as it existe~ in 1975, to which Mr Smith stated he would have to research that. Attorney Kramer stated it could well, in fact, be in compliance with the code existing in 1975 when the structure was built. Mr. Smith responded that the shower is new. In response to Chairman Lazarus, Mr. Smith stated the code requirements regarding distance and pro- vided the distances involved in the alleged viola- tions. In response to Mr. Strain, Mr. Smith verified that $500 is the minimum amount of dollars needed to be expended in order to obtain a permit. Page 12 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 Mr. Clark clarified that the amount refers to value of construction rather than dollars as someone donating money reduces cost but still affects the value of construction. In reply to Mr. Pedone, Mr. Smith stated that if the toilet or water tank only is installed, no inspection is required. He added that in the imme- diate instance there are areas cut out of the wall where it appears that a trap has been installed, which does require an inspection. Regarding Mr. Smith's perception of the first violation, Attorney Kramer asked how long it would take to correct same. Mr. Smith responded 2-3 days, a day if all the paperwork were in order and one could get through the system to get the permits and required drawings. He added that the permit grants six months before the first inspection. In response to Attorney Kramer's question regarding the violation of change of occupancy, Mr. Smith referred to 82-2, Section 10.2, a copy of which is contained on page 23 of Composite Exhibit A, and he proceeded to read the sentence marked with an arrow. In reply to Attorney Kramer regarding basis for alleging change of occupancy violation, Mr. Smith replied that also Building Code 90-75, Section A103.1, a copy of which is contained orr page 32 of Composite Exhibit A, was considered and he pro- ceeded to read same. Mr. Smith confirmed that a building permit is necessary for a change of occupancy. In reply to Attorney Kramer, Mr. Smith stated this section says "prohibited activities prior to permit issuance" is construed to mean they did not have a permit so they have to cease the activities until a permit has been issued for that use. In response to Attorney Kramer!s inquiry regarding what permit, Mr. Smith stated that a permit was needed to come in with a site development plan to show what the property is going to be used for, and that was never submitted. Page l3 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 In answer to Attorney Kramer regarding his deter- mination of this, Mr. Smith referred to page 14 of Composite Exhibit A, which indicates that building #4 is designated as a preschool. In reply to Attorney Kramer, Mr. Smith confirmed that is the basis for his determination on viola- tion #2 as they have changed occupancy, according to the above-referenced document on page l4, and by doing so: they need to provide a new site plan and tell the County what the use is. Mr. Clark interjected that Mr. Smith answered Mr. Kramer's question with 82-2, Section l3, Subsection 131E on page 29 of Composite Exhibit A. Pursuant to Mr. Clark's reql1est, Mr. Smith pro- ceeded to read the pertinent section from page 29 of Composite Exhibit A, marked by an arrow and underlined. He again stated that the provisional use, when granted, shows that building to be a preschool and the Property Appraiser's card shows the building to be a preschool, but the building is now used for housing, thus they have changed the use. In response to Attorney Kramer's inquiry as to where in the Notices Mr. Smith refers to the sec- tion appearing on page 29 of Composite Exhibit A, Mr. Smith referred to page 8 of Composite Exhibit A, Notice of Ordinance Violation and Order to Correct, where we refer to 82-2 under which we refer to Section 7.12 b4, Section 10.2, Section 10.7, Section 13. Mr. Smith confirmed that page 29 of Composite Exhibit A is a part of Section 13. Attorney Kramer stated that, if the provisional use approved in 1983 was solely to allow construction of a new sanctuary, it is no basis for a charge of change of occupancy. Mr. Smith countered that that is Attorney Kramer's opinion. He added that the provisional use was granted to the property and delineated that building as a preschool. Mr. Smith confirmed it was his personal opinion that, because in 1983 the church was authorized to Page 14 CODE ENFORCEMENT BOARD OF COLLIER 'COUNTY MAY 30, 1991 build a new sanctuary under a provisional use, existing buildings were limited to what they were designated at that time, including buildings that had nothing to do with a new sanctuary. He stated he has discussed his opinion with Mr. Clark. In response to Mr. Strain, Attorney Kramer stated that the church, in its application for a provi- sional use, sought and was granted authorization to build a sanctuary. Mr. Strain stated that if the provisional use was issued based on Exhibit E, page 7, then as part of the provisional use, that may apply and the County may determine it as Mr. Smith did in his opinion. Attorney Kramer questioned whether, as a matter of procedure on a point such as that, there was going to be any legal discussion, argument or a legal opinion made to the Ordinance discussions and debate. Chairman Lazarus confirmed that there may be. Attorney Kramer stated it is the Respondent's position that the church did not lose its inherent rights by seeking a new sanctuary. Chairman Lazarus questioned whether Attorney Kramer will be approaching that problem again in his direct case. Attorney Kramer responded that it is more of a legal argument than something he can introduce by evidence but added he will attempt to do so at that point. Replying to Attorney Kramer's referral to violation #3, too many people for the floor space, Mr. Smith stated he considers that the square footage of a building for the occupant load of that building needs to be determined by the size of that building. In response to Attorney Kramer, Mr. Smith confirmed that Ordinance 89-06 directs that the Housing Code applies to all buildings used for housing. He pro- ceeded to read the heading of said Ordinance. Page 15 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 Attorney Kramer asked if the Housing Code applies to motels, hotels, etc. Mr. Smith replied he would have to look at the Code to determine whether they were exempt or not. He proceeded to peruse the Housing Code. *** Recess 10:05 A.M. - Reconvened 10:20 A.M. *** Mr. Smith referred to Ordinance 89-06, Collier County Housing Code, page 2, Section 2, and pro- ceeded to read from same. He referred to page 4 of said Ordinance as well and concluded that the Ordinance does not exempt hotels and motels. Attorney Kramer asked whether or not the density factor in Ordinance 89-06 applies to hotels and motels. Mr. Smith replied that it does unless there is a specific exemption that he is not aware of, but that Ordinance 89-06, as it reads, would apply to hotels and motels. Pursuant to Attorney Kramer's request, Mr. Smith proceeded to read page 9 of the Housing Code, sub- paragraph #5 (cooking equipment). Questions and answers ensued regarding cooking facilities as a means of distinquishing a dwelling unit from a hotel or motel. Pursuant to Attorney Kramer's questioning regarding page l2, paragraph l3 of the Housing Code, Mr. Smith proceeded to read same. Questions and answers ensued regarding the necessity for cooking equipment in a dwelling or dwelling unit. Mr. Clark objected to the line of questioning. Chairman Lazarus stated he feels that what Attorney Kramer is trying to get on the record is whether this constitutes a dwelling place for purposes of these alleged violations or not. In reply to Mr. Strain questioning whether there was any calculation utilized by the County for the Page 16 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 amount of square footage allocated to a single per- son other than the one previously provided, Mr. Smith referred to the Building Code at Table 403. He added, however, that he did not address this but stayed instead with the Housing Code, which allows more people in the facility than under the Building Code. Attorney Kramer questioned what happens when the Building Code and Housing Code are in conflict. Mr. Smith answered that the more restrictive shall apply, adding that the Ordinance tells you how to determine which is the case. Attorney Kramer questioned which Ordinance does so. Mr. Smith proceeded to locate and identify which Ordinance is used to make the determination. Chairman Lazarus questioned Mr. Clark whether there has been any violations alleged under #3 of the Building Code? Mr. Clark answered that the Housing Code was referenced in the charge but the Building Code was not. Mr. Strain pointed out that the Housing Code referenced was the less stringent of the two Codes and thus allows more persons to occupy the building. Mr. Smith verified that, under the Ordinance, Mr. Strain's observations regarding the Building Corle being more stringent than the Housing Code was correct. In answer to Attorney Kramer's question of which Ordinance addresses how to make a determination, Mr. Smith stated that Section 12 on page 18 of Ordinance 89-06 talks about conflict and severabi- lity, and he proceeded to read a portion thereof. Attorney Kramer posed the hypothetical scenario of the existing structure being a child care center with 30 children who ate and slept there in the course of the afternoon and asked whether Mr. Clark's interpretation of the Code would find this to be a violation. Page 17 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1 99l Mr. Clark interjected that that decision is not Mr. Smith's to make, but is instead a management decision to be made in consultation. Attorney Kramer questioned whether Mr. Smith had made that determination against the church. Mr. Clark answered that Mr. Smith had consulted with management and was authorized to make the decision that he made. Attorney Kramer asked who management is. Mr. Clark answered that he is management. Attorney Kramer then posed the same question to Mr. Clark regarding the child care scenario. Mr. Clark responded that he would need to research the issue involved, the laws involved to see if there were conflicting laws on interpretations, and maybe even research it with legal counsel. He added that he has not had that case nor the question before. Discussion ensued regarding the differences between the immediate case and a day care center dwelling unit. Mr. Clark objected to the line of questioning regarding the differences relative to the day care center. Chairman Lazarus stated there has been enough on the distinctions between day care and the shelter issue. Pursuant to Attorney Kramer's request, Mr. Smith provided his personal definition of what a homeless shelter is. In reply to Attorney Kramer, Mr. Smith referred to page 34 of Composite Exhibit A and proceeded to read the definition of the word "church". In response to Attorney Kramer, Mr. Smith proffered his rendition of customary accessory uses. Mr. Clark objected to Attorney Kramer's examination of Mr. Smith regarding his interpretation of the Page 18 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MA Y 30 I 1 9 9 1 Zoning Code, adding that the Zoning Director was present and was, in fact, the interpreter of the Zoning Ordinance. Pursuant to Attorney Kramer's request, Mr. Smith read Item 4 on page 21 of Composite Exhibit A, identified by a check mark. Tape #2 Regarding violation #5 and in compliance with Attorney Kramer's request, Mr. Smith referred to page 34 of Composite Exhibit A and proceeded to read the definition of "family" contained thereon. In response to Attorney Kramer regarding his interpretation of the provision on page 34, Mr. Smith answered that in the immediate instance, if it was an institutional group, you could not apply "family" to that terminology. Mr. Smith confirmed for Attorney Kramer that he feels the family limitation does not apply to an institutional group. In reply to Mr. Clark regarding the term "family" and its application, Mr. Smith responded that in the immediate case, if there are more than four persons, it is a violation. Mr. Constantine questioned whether it was possible that the construction which was the subject of the violation could, in fact, have been in existence since the building was originally built, to which Mr. Smith replied that, in his opinion, the answer is no. After being sworn in by Mr. Clark, Sharon Mueller, attested to visiting the homeless shelter at the invitation of those operating same. She stated that Pastor Greg Richardson informed them that construction had been done to separate married couples from the rest of the people being sheltered and showed them the bathrooms that had been recently renovated. She verified that she felt that what she saw and was told during that visit to the shelter substantiated Mr. Smith's earlier statement that there was recent construc- tion. Page 19 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 After being sworn in by Mr. Clark, Rev. Greg Richardson of The First Assembly of God, attested that the word "renovation" was not used during Mrs. Mueller's visit to the shelter. In response to Mr. Clark, Rev. Richardson confirmed that additional showers and a room partition were added to the building. After being sworn in by Mr. Clark, Planning Services Manager Kenneth Baginski outlined his edu- cational background and professional experience. He verified that, as Planning Services Manager in Collier County, his title also included that of Zoning and Planning Director. Pursuant to Mr. Clark's request, Mr. Baginski explained the logic behind Collier County having various zoning classifications. In response to Mr. Clark, Mr. Baginski referred to page 15 of Composite Exhibit A and identified same as a memo from himself to Mr. Clark regarding an interpretation of the homeless shelter in question. He then proceeded to read the memo. In response to Mr. Clark, Mr. Baginski referred to page 20 of Composite Exhibit A and explained the purpose of same. In ~eply to Mr. Clark, Mr. Baginski referred to page 34 of Composite Exhibit A and proceeded to proffer his rendition of the term "family" as well as his interpretation of the last sentence of the definition of same contained on page 34. Pursuant to Mr. Clark's request, Mr. Baginski referred to pages 20 and 21 of Composite Exhibit A and discussed the application of same as he construes it. In reply to Mr. Clark, Mr. Baginski stated that in his interpretation, a homeless shelter is not a customary accessory use to a church. Complying with Mr. Clark's request, Mr. Baginski referred to pages 12 and 13 of Composite Exhibit A, identified same, and acknowledged that a homeless shelter could be allowed as a provisional use in Page 20 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 the RMF-6 district. He added that, to his knowledge, there has been no request for a provi- sional use for a homeless shelter at the site ill question and none has been approved. In answer to Mr. Clark, Mr. Baginski verified that it was his conclusion that if a homeless shelter is operational at the site in question, it is there illegally. Mr. Strain directed Mr. Baginski's attention to Composite Exhibit E, and asked his opinion of the contents of the memo attached thereto dated October 25th from the Community Development Division con- tained on page 7, Item 1, regarding the grand- fathering of the church. Mr. Baginski proceeded to comply with Mr. Strain's request stating it appears that the provisional use, once requested, would take in the entire pro- perty and existing structures. In reply to Mr. Strain, Mr. Baginski stated that if a property zoned RMF-6 is granted a provisional use, it still carries the RMF-6 designation as well as an additional indication that a provisional use was granted for the site. In response to Mr. Strain, Mr. Baginski answered that the Group Care Facility Category II that allows homeless shelters would be, under the adopted Ordinance, a permitted use in C-l, C-3, C-4, C-5, RMF-12, RMF-16, and the RT districts, and would not need a provisional use or zoning change. In answer to Mr. Strain, Attorney Kramer stated that those housed in the shelter did participate in religious services and programs. Mr. Clark questioned whether that meant they were members of the parish, to which Attorney Kramer responded he did not know the rules of membership of the church and therefore did not know if those housed in the shelter were members. Pursuant to Mr. Clark's request, Mr. Baginski read the last sentence of Item e, Conditions and Safeguards, contained on page 29 of Composite Exhibit A and proffered his interpretation of same. Page 21 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 Mr. Baginski confirmed that provisional uses are conducted in public hearings which allows input from adjacent property owners which might be affected by said provisional use. Attorney Kramer objected to this line of questioning. Mr. Baginski stated there are three forms of noti- fication to property owners within 300 ft. of the subject property advising of the action proposed as well as meeting dates to encourage their attendance and input prior to the Board making a final deci- sion. In response to Mr. Clark, Mr. Baginski referred to page 2l of Composite Exhibit A, Section 7.l2 b4, and confirmed that, in his interpretation, that unless specifically called out or approved by pro- visional use, that any attempt to use the facility for something other than quoted or approved would be a violation. *** Recessed: 11:25 A.M. - Reconvened: ll:35 A.M. at which time Deputy Clerk Arrighi replaced Deputy Clerk Farris *** In reference to to Mr. Baginski's comment regarding the uses for the structure not being specifically, provisional, or by reasonable implication permitted herein, Mr. Kramer question if Mr. Baginski's posi- tion was that the designation of a church and the reasonable implication permitted does include helping the needy? Mr. Baginski responded that there are forms of helping the needy which are within a reasonable implication permitted for a church; however, a form of helping the needy is not allowed to violate ordinances such as providing uses or activities not specifically allowed within the District permitted. Mr. Baginski commented that without being given time to think, he could not elaborate on specifics regarding the church services to the needy that are within reasonable implication and which ones are not. Mr. Clark objected at this time, and stated that if there is a specific use in question, Mr. Kramer should refer to it rather than asking for every possible use. Page 22 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 Mr. Lazarus pointed out that Subsection four of the ordinallce refers to reasonable implication, and feels that the question asked by Mr. Kramer is directed at what in the expert witness' opinion is reasonable implication? Mr. Baginski noted that there are other portions of the ordinance that specifically identify provi- sional or permitted uses, and he does not beljeve that the term "by reasonable implication" necessarily allows or permits a homeless shelter. Mr. Kramer questioned what authority Mr. Baginski has under the Collier County code to interpret the term reasonable implication? Mr. Baginski responded that it is his position as the Zoning Administrator to interpret the term. Mr. Kramer asked what specific provision in the code gives Mr. Baginski this authority for interpretation of terms? Mr. Baginski stated that although he cannot quote the code, there is reference to the Zoning Director as the one to be responsible for making interpreta- tions to the Zoning Code. As to whether this pro- vision provides guidelines and parameters of making such interpretations, Mr. Baginski confirmed that they are identified, but again he indicated that he could not quote the section or provide a verbatim as to the wording. In regards to the concept of reasonable implication and concept of a church, Mr. Kramer inquired whether Mr. Baginski interpreted the church's pro- vision of food and clothing at its facility to the same individuals it now houses within the reaso- nable implication? Mr. Baginski stated that they may be under certain circumstances. Mr. Kramer questioned if Mr. Baginski had ever weighed the concept of reasonable implication in making a decision to seek enforcement against the church to which Mr. Baginski replied that he had not. Page 23 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 Mr. Kramer asked if housing for the homeless is available as a provisional use in the RMF-6 zoning, and Mr. Baginski affirmed that it is. Mr. Kramer continued with whether Mr. Baginski would agree that the homeless shelter concept does not have any inherent danger to exclude it from a residential area? Mr. Baginski commented that it would depend on what is meant by inherent danger. He explained that in any provisional use request, by virtue of the fact that it is a provisional use, it has already been identified as having a unique poten- tial impact which may have to be addressed before the use is granted such as compatibility to the surrounding area. Mr. Baginski added that inherently there would be no specific danger in granting a provisional use for a homeless shelter, but there are specific impacts that should be addressed through the provisional use application. Mr. Kramer questioned Mr. Baginski whether in his capacity with the County it was his position that the church's operation of the homeless shelter is a violation of public safety? Mr. Baginski responded that it may be; however, he has not looked at it from that point of view. In response to another question on the same subject on public safety, Mr. Lazarus asked Mr. Kramer to make his point. Mr. Kramer advised that if the Board does find that the church is in violation and the Board allows reasonable time for the church to correct the matter, the issue becomes, if there is a violation of public safety, that certain safe- guards would need to be implemented to protect the public; however, if there is no issue of public safety, then there would be no need for this imple- mentation during the course of corrective action. Mr. Clark related that until an application for a provisional use for the shelter is submitted, it would not be possible to know whether there is a public safety issue at hand. Mr. Lazarus requested that Mr. Kramer proceed with his questioning in a more precise manner. Mr. Kramer provided to Mr. Baginski respondent exhibit A which had not been submitted into evi- Page 24 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1 991 dence previously, and Mr. Lazarus requested to see a copy of it, as well as Mr. Clark. *** A three minute break was taken during which time copies of the respondent' exhibit A was provided to the Board members and Mr. Clark (not provided for the record). During this time Mr. Kramer requested that Mr. Baginski find in the code where it gives him the authority of interpretation. *** In reference to the respondent's exhibit A, Mr. Kramer stated that Mr. Baginski never responded to it to which Mr. Baginski concurred. Mr. Kramer advised that an opinion letter regarding exhibit A was provided to Mr. Clark, but not provided to him. Mr. Baginski confirmed that he did respond to Mr. Clark; however, did not know whether Mr. Kramer was provided a copy of his response or not. Mr. Clark informed that Mr. Kramer was provided a copy of Mr. Baginski's response to which Mr. Kramer noted that it was only after the violation was filed that he received the response. In reference to violation number three which relates to the Housing Code, Mr. Kramer questioned if the church's building is defined as a dwelling unit under the housing code as noted on page l2 of the Code under Required Space for Dwellings? Mr. Baginski clarified that he does not interpret the Housing Code; however, added that he would not qualify a church as a dwelling unit under the Zoning Ordinance. In answer to who would be responsible for interpreting the Housing Code, he noted that it would be either Code Enforcement or the Building Official. Mr. Baginski affirmed that he was not present in 1983 when the Church was granted its provisional use nor in 1982 when present Zoning Code was enacted. He indicated that his understanding of the Zoning Code is based on his reading of the code. Mr. Kramer referred to the definition of a church as defined in the Zoning Code and specifically the use of the phrase "customary and accessory uses" which is not defined in the Zoning Code, and questioned if Mr. Baginski has the authority under the Zoning Code to define or apply this term? Page 25 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30 I 1 99l Mr. Baginski advised that in regards to the question on his authority, in Section 12.1 of the Zoning Ordinance under Interpretation and Enforcement it states, "It is the intent of the Zoning Ordinance that questions of interpretation and enforcement shall first be presented to the Zoning Director that such question shall be pre- sented to the Zoning Appeals only on an appeal from the decision of the Zoning Director and that recourse to the court shall be as set forth in Section ll.4 of the Zoning Ordinance." Mr. Kramer alleged that becAuse Mr. Baginski did not answer the letter requesting an interpretation, the Church was not able to appeal further. Assistant County Attorney Wilson interjected that the duties of the Code Enforcement Board of Collier County are to interpret the codes and ordinances based on the facts presented. She clarified that this hearing is not an appeal of any staff members decision or interpretation of the ordinance. In response to Mr. Kramer, Mr. Baginski informed that when the issue of a potential violation was brought to his attention and an interpretation was requested, he indicated that a homeless center was not a customary or permitted use of the church. Mr. Kramer requested an explanation as to what cri- teria Mr. Baginski used to base his interpretation to which Mr. Clark objected to the question. Mr. Clark pointed out that Mr. Baginski has described his authority. In response to Mr. Kramer, Mr. Baginski disclosed that his fifteen years of experience of dealing with matters of this nature in this community and others qualifies him to make interpretations on this issue. Regarding the questions by Mr. Kramer on the defi- nition of a family, Mr. Baginski pointed out that he was not present when the ordinance was drafted and, therefore, cannot address why it was worded the way it was. In his interpretation, Mr. Baginski added, he feels that the reference to monasteries and sororities were included to help define what a family is not. Page 26 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 Mr. Baginski explained that he feels that the rec- tory is considered an accessory to the church if it is specifically designated as such and added that this is subject to his interpretation. In regards to Mr. Clark's question as to whether 18 days would be enough time to file an appeal to which Mr. Baginski concurred, Assistant County Attorney Wilson reiterated that this hearing is not an appeal of Mr. Baginski's decision. After being sworn in by Mr. Clark, Dr. Carla Singer informed that she is the principal of ShadowLawn Elementary School. She responded in the affir- mative to Mr. Clark's question as to whether she knew there was a homeless shelter operating near the school. Mr. Lazarus cited to Mr. Clark that his question as to a meeting Dr. Singer attended regarding the homeless shelter in question is irrelevant. Mr. Clark explained that the reason for his questions is that there has been many appellate court decisions that state that a county, state or municipality has the right to enforce zoning ordi- n~nces even when churches are concerned when it can be shown that there are health and safety related issues involved. He emphasized that there is a need to establish whether a health and safety issue does exist. Mr. Kramer informed that if the witness is allowed to testify to these points, he has 10 to 20 people that can provide alternative testimony. *** Mr. Lazarus requested a two minute break at this time. *** Mr. Lazarus noted that the questions which are being asked are not relevant to the issue of whether or not there is a violation here, but are relevant in the event that council for the First Assembly has any intention of attacking the consti- tutionality of the ordinance. He stated that if council is planning to raise a constitutional issue then the question will be allowed to stand. Mr. Kramer questioned whether the Board is in the position to make constitutional decisions or if it Page 27 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 merely applies the facets to the law it is pre- sented. Assistant County Attorney Wilson declared that the second portion of Mr. Kramer's statement is the purpose of the Code Enforcement Board; however, she added that this Board has the latitude to listen to and receive facts that it thinks is necessary in order to make its decision. She cited that t~e facts that are being proffered by Mr. Clark appear to address the substance of the ordinance itself and its purpose. She pointed out that if Mr. Kramer is questioning whether or not the County has the authority to impose the zoning restrictions on the church, then the County should be given the latitude to present evidence that this is an appropriate authority for the County based on the health, welfare and safety issues. Mr. Kramer stated that the respondent takes the position that the County cannot arbitrarily or at its discretion decide what a church's function 01' role is because this is a constitutional issue. He confirmed that the Church must comply with the regulation of the County for public safety. Assistant County Attorney Wilson emphasized that in the County's regulation it is required to determine the use of a particular facility, therefore: the County has found it necessary to review the uses of churches and the parameters of the use. Mr. Kramer declared that if this hearing is going to be expanded to include the issue of whether or not the church's operation of the homeless shelter is a detriment to the community, this hearing will continue for several days. Assistant County Attorney Wilson related that if the argument is going to be that the County cannot regulate this church's use, then the County must respond that it can regulate this use based on its police power under the p~lblic health, welfare and safety authority provided under the constitution. Mr. Lazarus requested that a lunch break be takeD at this time, and when the meeting reconvenes Mr. Kramer can respond to Ms. Wilson's question. Page 28 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 *** Recessed: 12:15 P.M. - Reconvened: 1:20 P.M. *** Mr. Kramer stated their position is that the issl1e whether or not there has been a harm by the usage is an open issue and, therefore, will allow the testimony to proceed. Mr. Clark recalled Dr. Carla Singer as a witness and noted that she has already been sworn in. He questioned that as principal of Shadowlawn School which is directly across from the homeless shelter: if Dr. Singer has observed what is termed as tran- sient type people on the school grounds? Dr. Singer confirmed that she and the aides who work for the school have found during the day several homeless, transient people going through the school yard while the children are on the school grounds. She informed that these transient people have been told that they are in violation of trespassing which has resulted in them getting belligerent and angry even in front of the children. She noted that the school grounds are posted; however, these transient people ignore them and continue doing whatever they want. Mr. Lazarus inquired as to whether Dr. Singer has identified these transient people as being asso- ciated with the shelter? Dr. Singer affirmed that she has seen these people go from the school pro- perty toward the shelter as well as come from the shelter to the school grounds; however, she explained that she has not seen any of them go through the doorway of the shelter. In response to questions from Mr. Clark, Dr. Singer advised that she has found the behavior of these transient people to be detrimental to the children. She cited that the two people that she stopped per- sonally to inform that they were trespassing appeared to be intoxicated because of their slurred speach, and there have been instances of these people openly drinking their beer while walking past the school grounds with the childrezl outside at recess. She noted instances of these people sleeping on the school grounds and has called the Sheriff's Department on nwnerous occasions to have them removed, but she commented that she does not know where these peopJe go after she leaves them Page 29 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 with the Sheriff's Department. She disclosed that she has seen an increase in the traffic around the school, and in her opinion the homeless shelter seems to draw more people to the area which becomes a detriment to the school children. She explained that she has received phone calls from parents informing her that their children have been harassed on the way home from school, and other parents will not allow their children to walk home alone. She concurred that these fears are justified. She reported that there are anywhere from two to twenty trespasser on the school grounds on a daily basis which was not the case before the homeless shelter began. She affirmed that she feels that the homeless shelter is a detriment to the school children. Mr. Kramer asked Dr. Singer to explain what a tran- sient person is in her opinion to which she described these people to be someone with a back- pack and is unshaven and/or unclean for the most part. Mr. Kramer questioned if Dr. Singer felt that the people at the shelter were transient people, and she replied in the affirmative. Dr. Singer clarified that she has not said that she has observed people going into or coming out of the shelter with a beer can in their hand. Dr. Singer related that she does call the Sheriff's Department; however, the problem is that many times by the time they are able to arrive the transient person is gone. In response to Mr. Kramer's question as to the period of time the shelter has been open, Dr. Singer commented that she believes since around Thanksgiving or Christmas, when it started getting cold, because this is when she noticed more problems with transient people. Dr. Singer testified that she learned that the shelter existed about a month ago. Mr. Kramer asked if Dr. Singer had any data indi- cating the number of transients that crossed the school grounds? Dr. Singer replied that she was not aware that she should be keeping these facts; however, she does have a record of this for the Page 30 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 past week and provided it to Mr. Kramer for his review. couple record aide's school Mr. Kramer questioned if Dr. Singer saw a of the specific items she listed on her to which she stated that the teacher or name who witnessed the transient on the property is indicated on the record. Dr. Singer responded to Mr. Kramer that the children are afraid of these people because they try and talk to them. She informed that in an effort to protect the children the Sheriff's Department has been called, this problem has been brought to the attention of her supervisor, a gate has been installed as well as no trespassing signs posted. She explained that there is the potential for something bad to happen to the children because these transient people have proven to be very rude and obnoxious. Mr. Kramer asked what the basis is to assume that the people crossing the school grounds are coming from the church? Dr. Singer noted that she cannot testify that these people are coming from or going to the shelter itself. She commented that in her opinion the transient people are drawn to this area because of the shelter, and people turned away at the homeless shelter are the ones found on the school grounds in the morning. She advised that she has talked to Rev. Mallory and his son who have informed her that the shelter does not take people who are on alcohol or drugs. In response to Mr. Strain, Dr. Singer informed that she has been employed at the school for five years. In reference to the respondent's exhibit C, Dr. Singer cited that the incident report indicates there were only two police reports listed, however, more than two calls have been made to the Sheriff's department. Mr. Lazarus questioned if Mr. Clark and Mr. Kramer could estimate the number of witnesses that they will have? He further asked Mr. Clark if he felt it is now necessary for him to receive outside council to assist him? He suggested if there are a number of witness and if Mr. Clark does desire out- side council that this proceeding be continued until next week. Page 31 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 Mr. Clark stated that he will have a number of wit- nesses to testify and expressed a desire for a con- tinuance in order to review the issues presented. Mr. Kramer indicated that he too will have a number of witnesses. Assistant County Attorney Wilson strongly recom- mended a continuance based on the fact that the issues of health and safety which may constitute constitutional arguments will be discussed. Mr. Lazarus asked if there were additional wit- nesses from either side who will address other issues of the case other than those of constitu- tional question? Mr. Clark and Mr. Kramer noted that they each have one witness. Assistant County Attorney Wilson asserted to the Board that she has concern regarding the witness Mr. Kramer has because he is an expert witness from Pinellas County and will also be addressing legal issues which Mr. Clark may need assistance in responding to. In response to Mr. Kramer, she cited that this advise is given to council to pro- tect the rights of both parties, and that she only represents council and cannot advise Mr. Clark in any manner. Mr. Clark requested that Mr. Kramer's expert wit- ness be continued. Mr. Kramer opposed this request because there have been issues presented that he wishes to address by using this expertise witness. He acknowledged that this witness is from out of town and to request that this witness come back is placing an undue burden on the church financially. Assistant County Attorney Wilson pointed out that the respondent has had the benefit of all the docu- ments that the County is presenting for their case prior to this hearing. Ms. Wilson advised that the County on the other hand could only anticipate what the defense would be, and added that there would be no way the County could anticipate that they would need to address issues dealing with the comprehen- Page 32 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 sive plan which she understands Mr. Kramer's expert witness was proffered to testify on. Mr. Lazarus suggested that Mr. Clark's witness be heard. After being sworn in by Mr. Clark, Judy Thacker, Fire Inspector with East Naples Fire Control and Rescue District, stated that she has inspected the building in question on several occasions since 1987 and has seen additional construction to the facility during this time. She advised that in 1989 there was one toilet and in 1991 another toilet and shower has been added. She noted that other construction performed since 1987 include minor changes which would not need a permit; however, within the last year she has observed construction of two partitions that do not extend all the way to the ceiling which separate the sleeping areas and the closing off of the kitchen. Mr. Kramer questioned if Ms. Thacker was testifying from recollection to which she confirmed that she was, and she has no record indicating the numher of toilets present over the years. Ms. Thacker responded that several years ago the building was being used as a daycare center and at that time there was only one toilet present. In response to Mr. Strain, Ms. Thacker stated that she has inspected the building in question on an annual basis since 1987 with the exception of the inspection in January 1991. Mr. Kramer noted that an occupancy permit for 30 people was issued for this building. Ms. Thacker explained that the Fire Department issues an occu- pational sign indicating the maximum occupant load for the building. She explained that she has said that the maximum number of people for this buildiDg could be 30; however that is not to say that 30 people would be permitted with the present changes. Mr. Lazarus suggested that it would assist the Board if at the conclusion of this hearing a date would be set by which each side would provide a written memorandum on the issues involved in this case dealing with the factual and legal issues. Assistant County Attorney Wilson noted that this Page 33 CODE ENFORCEMENT BOARD OF COLLIER COUNTY MAY 30, 1991 would be beneficial. Mr. Clark and Mr. Kramer con- curred with this action. Mr. Kramer objected to continuing the hearing at this time and requested that his expert witness be allowed to testify today. After much discussion as to why this expert witness should or should not be allowed to testify, Mr. Lazarus suggested that he be allowed to begin his testimony, subject to Mr. Clark's objection at which time the hearing will be continued. Assistant County Attorney Wilson noted for the record that the Board is suspending the typical order of the case. Mr. Kramer advised that as a procedural point he wanted to mention that there were two documents, respondent's exhibit A and C, which were effec- tively introduced and assumed that they were suf- ficiently introduced into the record. Assistant County Attar Py Wilson stated that the Chairman accepted the two documents. After being sworn in by Mr. Clark, Bruce McLaughlin provided his background as having a Bachelor of Arts in Political Science with his undergraduate thesis on American constitutional law, Master Science in urban and regional planning, and pro- fessionally since 1974 he has been representing local governments and the private sector in a variety of land development and land use planning related activity. He indicated that he has reviewed some of the Collier County codes and is familiar with Collier County Comprehensive Plan. In response to Mr. Kramer's question regarding a policy within the Comprehensive Plan relating to the homeless, Mr. McLaughlin reported that the Comprehensive Plan has to be taken as a whole, each element given equal weight with each other element and measured and applied accordingly, and all the other land development regulations have to conform and be consistent with the comprehensive plan. Mr. Clark interrupted to say that he did not know that this discussion by Mr. McLaughlin was to be on the comprehensive plan. Page 34 CODE ENFORCEMENT BOARD OF COLLIER COUNTY rv1A Y 30; 1 9 9 1 Mr. Lazarus concurred that if the testimony is going to be on the comprehensive plan, this witness will not be able to testify at this time. He stated that the Board is not pursuing the Comprehensive Plan, but is pursuing the question of the five alleged violations of the ordinances. Mr. Lazarus informed that the continuation of this meeting will be held on June 10, 1991, at 8:00 A.M. in the 3rd Floor Boardroom, Building "F", Collier County Government Center. He requested that the memorandum requested earlier from Mr. Clark and Mr. Kramer also be available on June 10, ]991. Karen Ornowski, attorney for the defense, commented for the record that they are registering an objec- tion to the County being given extra time to frame a response to one of their challenges regarding the comprehensive plan. After a discussion regarding a guarantee by the County that they would not come on the subject pro- perty with surprise visits, Mr. Clark stated that there are no other visits to the property antici- pated. Mr. Kramer stated that from this day forward Mr. Clark or his staff does not have voluntary per- mission to come on the premises of the subject pro- perty. *** There being no further business, the meeting was adjourned by Order of the Chair. CODE ENFORCEMENT BOARD OF COLLIER COUNTY !~ rus, Chairman Page 35