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CEB Minutes 08/27/1995 1995 Code Enforcement Board August 24, 1995 August 24, 1995 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA Naples, Florida, August 24, 1995 LET IT BE REMEMBERED, that the Code Enforcement Board of Collier County, Florida, met on this date at 9:12 a.m. In Building "F" of the Government Complex, East Naples, Florida, with the following members present: ~4. CHAIRMAN: VICE CHAIRPERSON: James D. Allen M. Jean Rawson Charles Andrews Mireya Louviere Celia Deifik Louis Laforet I." Richard McCormic~ ALSO PRESENT: Ramiro Manalich, Assistant County Attorney Maria E. Cruz, Code Enforcement William Bolgar, Code Enforcement ~- ~. Page 1 '_."~-"""'______~___________""""'~....'#~~_=-t-':~"'~,!"..........~_<~~....,.,..,~..~_~_~__.,.."..._~_~. 'I'" , ~ CODE ENFORCEMENT BOARD OF COLLIER COUNTY. FLORIDA AG~NDA Date: August 24, 1995 at 9:00 o'clock A.M. Location: Collier County Government Center, Adm. Bldg, 3rd Floor NOTE: ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATI~.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 July 27, 1995 4. PUBLIC HEARINGS A. BCC vs. J's All Marine Service - CEB No. 95-009 B. BCC vs. John R. and Emily Landgrebe - CEB No. 95-010 C. BCC vs. Jack A. Queen - CEB No. 95-011 5. NEW BUSINESS N/A 6. OLD BUSINESS A. BCC vs. Embassy Woods Clubhouse - Affidavit of Compliance and Request for Reduction of Fines B. BCC vs. Charles W. and Joan K. Hicks - Affidavit of Non-Compliance and Request for Imposition of Fines 7. ~EPORTS A. Status Report - BCC vs. Louis Filostin and Ocepha Polite _ CEB No ....:95-012 8. WORKSHOP Discussion of Quasi Judicial Proceedings ~. - :.-."'.:....:..;;.~:~._7"'_:...~.,__.:;~~..:_:...r_,~.~~.=':~~,;~~~,~~ote:~:f.....___"-".-. ; 9. NEXT MEETING DATE 10 . ADJOURN .' ~ ~ "~';""~"T;<~_"'"""'/'!_'*"'.-7'C!iI'___;..-. ......" September 28, 1995 :~-k. ~ August 24, 1995 CHAIRMAN ALLEN: Good morning. We'll bring to order the August 24 meeting of the Collier County Code Enforcement Board. Any ~erson 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. We'll start with the roll call at my left. MR. MCCORMICK: Richard McCormick. MR. LAFORET: Louis Laforet. MS. RAWSON: Jean Rawson. CHAIRMAN ALLEN: Jim Allen. MS. DEIFIK: Celia Deifik. MS. LOUVIERE: Mireya Louvie;~. CHAIRMAN ALLEN: We'll go right now for approval of the agenda. Do we have a motion? No. MS. CRUZ: No changes, Mr. Chairman. CHAIRMAN ALLEN: Okay. MS. RAWSON: In that case, I would move we approve the agenda. CHAIRMAN ALLEN:' .'Miss Deifik. MS. DEIFIK: Ihbve no problems with the agenda. I have problems with the minutes. No problem with the agenda. MS. LOUVIERE: I second it. CHAIRMAN ALLEN: All in favor say aye. Passes unanimously. We'll go for the approval of the minutes, for the July 27, 1995, minutes. Miss Deifik. . MS. DEIFIK: Yes. Mr. Chairman, the minutes on page 30 through 31, a series of questions, the questioner is identified as Miss Louviere. In fact, those questions, I believe, were asked by myself of the 13-year-old child, Canton, starting in the middle of the page. I'm sorry. I don't have a set of the minutes. Yes. From right here where it says, counsel, may I inquire of Canton, in the middle of page 30 through -- MS. LOUVIERE: Excuse me. Those -- Those questions were asked by myself. Later on is when you went ahead and you asked some other things, I think. No. You're right. I apologize. Yep. I did not ask those questions. I was here. MS. DEIFIK: I'd just like the record corrected. MS. LOUVIERE: Yeah. I was here. CHAIRMAN ALLEN: Okay. May we get the record to reflect the changes from Miss Louviere to Miss Deifik asking the questions from page 30 to page thirty -- MS. LOUVIERE: I did ask other ones. MS. DEIFIK: -- 31. CHAIRMAN ALLEN: -- 31. MS. CRUZ: Okay. With those changes in the minutes, do we have a motion to approve the minutes? MS. DEIFIK: I so move. MS. RAWSON: Second. CHAIRMAN ALLEN: We have a motion and a second. All those in favor signify by saying aye. ~ Page 2 ~,~~:;"...:;.;;:.o."~7-:::-':."'>;-'~_-;~~f!'~""'-~'~'~-cy.7"'~'7'-~' <"'.,.-,..,.....'''"'"""'....,.--.- ._-- ~.-- ---- August 24, 1995 Any opposed? None. It carries unanimously. We'll go now for our public hearings. The first one is Case CEB No. 95-009, and I need to remove myself for obvious reasons. Miss Chairman, Miss Rawson. MR. MANALICH: Good morning, members of the board. For the record, Ramiro Manalich, assistant county attorney. In this matter in which I'm acting as counsel for staff, this case has been continued twice before at the request of the respondents. While I was out of town last week, counsel for the respondents, Attorney Burt L. Saunders, contacted Mr. Cuyler, my boss, and mentioned that he had another conflict; however, that he indicated that there was substantial progress being made in regard to compliance at the site on almost all of the violations. The only issue was in regard to the violation regarding an opaque feng~ in which Attorney Saunders indicated that his discussions with Sheriff Hunter indicated that Sheriff Hunter had told him that for law enforcement reasons, it was not a good idea to install an opaque fence. That issue still remains to be resolved, possibly -- a variance application was mentioned as a possible solution. In any event, the request that was received by my office and agreed to was to, first of all, continue the actual hearing of this matter until September again on the ba~is -- and staff can comment on this -- that there has been -- almos~all of the violations have been addressed or in the process of being-addressed. And, secondly, I believe that Attorney Saunders had mentioned that Mrs. __ Mrs. Ackerman -- I'm not sure. Is -- is this -- I believe this lady here is Mrs. Ackerman. She's here today -- would also be able to 'lpdate the ,board on the progress of the matter. Mr. Bolgar. MR. BOLGAR: Bill Bolgar. I'm the acting director for Code Enforcement. I was at the site yesterday at four o'clock, and all the violations have been abated except the -- the fence issue, and that's the only matter remaining in this, and they're going to attempt to address that in the next 30 days. MS. RAWSON: Is it the position of staff that they should be continued until September? MR. BOLGAR: Yes, ma'am. MR. MANALICH: Mrs. Ackerman, did you have any comment that you wanted to make at this time? MS. ACKERMAN: That's exactly what I was going to say. All violations have been completed except the one under discussion with Mr. Saunders. MS. RAWSON: Is there a motion to continue the matter until September since it's apparently already been agreed upon? MS. LOUVIERE: I'll make a motion that we continue this matter until September. MR. MCCORMICK: Second that. MS. RAWSON: Any discussion? MR. MANALICH: One comment would be that if, for any reaso~ staff finds that these violations have not been addressed, including the fence issue, because my understanding from the correspondence from Attorney Saunders is that in some manner will be addressed prior to a September hearing date -- if for some reason that remains unresolved, then the matter should come back for hearing to :his board at that time. ~ Page 3 August 24, 1995 MS. LOUVIERE: So basically we have a -- something of a motion on the floor that states that this matter will be continued to September the 30th? MS. RAWSON: That's my understanding. MS. LOUVIERE: Unless -- unless the opaqueness of the fence -- MS. RAWSON: Well; I think we should probably just continue it until September the 30th, and then on that date you can give us a status report or we'll have a hearing. MR. MANALICH: Right. And that's final. MS. LOUVIERE: And even if he tries to -- if he tries to get a variance, it will be time consuming. She won't have it in 30 days. MR. MANALICH: Right. That would be part of the status report. $<<. MS. LOUVIERE: Exactly. So we're going to look at it again. Okay. So we had a motion and a second. MS. RAWSON: Any other discussion? All in favor? All opposed? MR. MANALICH: The only other request of staff is that the record would reflect that Mr. Allen did not participate in this matter due to a conflict. MR. ANDREWS: I was absent.> I didn't vote. MS. RAWSON: Mr. Andrews is here, let the record reflect also. MR. MANALICH: I would request that Attorney Yovanovich prepare the appropriate continuance order. MS. RAWSON: We're now to the'next public hearing, BCC versus Jack A. Queen. Mr. Allen can return. MS. DEIFIK: Come home, Jim. Come home. CHAIRMAN ALLEN: Staff, would you like to proceed? MS. CRUZ: Yes, Mr. Chairman. For the record, my name is Maria Cruz, Code Enforcement coordinator. Our next case is BCC versus John R. And Emily Landgrebe, Case No. CEB 95-010. Mr. Chairman, this case came before the board on June 22, '95, and it was presented before the board again on July 27, '95, at the board's request for a status report resulting in a non-compliance and continuing this issue to appear before this board here today on August 24, , 95. Mr. Landgrebe -- John R. Landgrebe and Emily Landgrebe are the owner of record of the property located at 11621 Lafayette Lane, Naples, Florida. Let the record show that Mr. Landgrebe is present. At this time, I would like to request that a Composite Exhibit A be admitted into evidence. . CHAIRMAN ALLEN: Excuse me. You said Mr. Landgrebe is "present? MS. CRUZ: Yes, sir. I'm sorry, sir. CHAIRMAN ALLEN: I thought this was Mr. Queen. MS. CRUZ: Yes, it is. My mistake. Let the record show that Mr. Landgrebe or Mrs. Landgrebe are not present. MR. MANALICH: These two persons in the audience are not Landgrebes? UNKNOWN VOICE: No. o ~' Page 4 _ "''',.-.__,_.............___.,.-.,..._._._..._'.__..._.....c.. "..~.----;""'~-:......'C~.,:~'I'.".__.......:---.~I>-..,.:...'FU7"'..~;~-,....~.....--".;-'---."..'_~..""..,..... .....~.... ~ .,~_....'. ."-'~' -.-~~_, - August 24, 1995 MR. MANALICH: Okay. I haven't met them before. What type of notice was provided to the Landgrebes for this hearing? MS. CRUZ: A notice of hearing per ordinance requirement -- was sent to Mr. Landgrebe certified, and the notice was received signed by Mr. Landgrebe. MR. MANALICH: Thank you. MS. RAWSON: I would move for the introduction in evidence Exhibit A. CHAIRMAN ALLEN: Do we have a second? By Mr. Landgrebe. MR. MANALICH: Thank you. MS. RAWSON: I would move for the introduction in evidence Exhibit A. CHAIRMAN ALLEN: Do we have a second? MR. ANDREWS: Second. . ~H CHAIRMAN ALLEN: We have a second by Mr. Andrews. All those in favor signify by saying aye. Any opposed? None. It carries unanimously. MR. MANALICH: Is that -- MS. CRUZ: Excuse me? MR. MANALICH: Just for clarification, Composite Exhibit A is the usual packet distributed to the board? MS. CRUZ: That's correct. MR. MANALICH: Consisting of how many pages? Are they numbered? MS. CRUZ: 15 pages. MR. MANALICH: 15 pages. MS. CRUZ: Mr. Chairman, for the record, again this violation still remains. CHAIRMAN ALLEN: Fine. What has staff done as far as at our last meeting, we had the continuance, and we agreed that Mr. Landgrebe would be given some time to remove the trailer and/or get it permitted, et cetera. Has anything been done to the physical site since our last board meeting? MS. CRUZ: I would like to call Dave Hedrich to the stand, please. CHAIRMAN ALLEN: Thank you. MS. CRUZ: Raise your right hand. Do you swear to tell the truth, the whole truth, and nothing but the truth? MR. HEDRICH: I do. THEREUPON, DAVID HEDRICH, a witness, having been first duly sworn, upon his oath, testified as follows: _' MS. CRUZ: State your name for the record. MR. HEDRICH: David Hedrich, Code Enforcement. MS. CRUZ: Would you please advise this board what your findi~s were on August 23, '95, at this location in question? MR. HEDRICH: As of yesterday at 11621 Lafayette Lane, the mobile home in question still remained in the same location where it had been over the previous month$.. There has been no change in the movement of the mobile home nor there has been any application for a permit to allow it to be -- remain there. ~' Page 5 ;.~. -,:.:-:._----~..- ~""', August 24, 1995 CHAIRMAN ALLEN: So, in other words, what you're -- what Mr. Landgrebe promised to do for us two months ago, he'~ done absolutely nothing? MR. HEDRICH: Correct. We haven't had any change. MS. CRUZ: Mr. Hedrich, have you had a chance to check our permit records? . MR. HEDRICH: Yes, I have. As of five o'clock yesterday, we don't have any record of a permit being made for the mobile home. MS. LOUVIERE: What is staff recommendation at this time? Because it appears we're going to start fining this -- this individual. MS. CRUZ: Staff recommends that ten days be given to Mr. Landgrebe either to obtain a permit or remove the mobile home from the site or $150 be imposed for e~~h and every day in violation. MS. LOUVIERE: You know, I -- I'm reluctant to give him ten additional days since he's already had so much time and nothing has been done. MS. DEIFIK: He did remove three other unlicensed vehicles previously, didn't he, Mr. Hedrich? MR. HEDRICH: The unlicensed vehicles didn't become a quest'i6n since they were removed before our last meeting. Mo. LOUVIERE: But the last time he was here was -- he told me he doesn't even live here and that he was just down here. He was going to take care of this matter and -- and then he was going to go back up North. So I'm under the assumption that he's probably back up North, and nothing else is going to be done on this matter since he's been served and he's not here. MR. HEDRICH: From the conservation I had with his son-in-law and daughter who were present at the site when I visit, they made mention that he was down here, in fact, to this meeting and that he 'would be present, and that was the heard. MS. DEIFIK: Well, I have a concern with the weather, that maybe he intended to be present but hasn't been able to get here. MS. STAUFFER: With all due respect, we are neighbors, and we are here. MS. LOUVIERE: I agree. MS. STAUFFER: Thank you. MS. LOUVIERE: I think this person's had more than enough matter -- more than enough time. I think we need to start fining him. MR. HEDRICH: Yes. MS. STAUFFER: Yes. CHAIRMAN ALLEN: Any more discussion by the staff? ~Neighbors, would you like to speak? Would you like to speak ln this -matter? MS. STAUFFER: Yes, I would. C~IRMAN ALLEN: If you would be kind enough to come forward. MS. CRUZ: Mr. Chairman, in the meantime, staff has agreed to amend our recommendation to allow Mr. Landgrebe five days instead of ten days. Ma'am, would you please raise your right hand? Do you made a attend last I ~' Page 6 _.__....-r........'~...'__>.,.-,,,.:.~~.'i:;;~_"',:~.,"!'::.-""'~-"'...-.~.~,,......_.~~.~'.i~:~....-...--~ ..... August 24, 1995 swear to tell the truth, the whole truth, and nothing but the truth? MS. STAUFFER: Yes, I do. MS. CRUZ: State your name for the record, please. MS. STAUFFER: My name is Lori Stauffer. I am a neighbor of the people in question here this morning, and we have suffered with their trashing of their property and the destruction of our property values since they moved in which is long before the first violation came before the board here, and they have unpermitted fences. They have had illegal chicken fights. The trailer in question is not even structurally sound. It is collapsing in the middle. It was taken off of an illegal migrant labor camp on the first street at which was ordered off by, I assume, this board. The bus that was on their property unlicensed was simply returned to another property in the same area, and the poor individual who was not home at the time will have to cont~nd with that because I assume it was put there without his permission. These people have trashed their property. They have mowed the equivalent of twice a year since they have been living there, and trash and junk in the driveway continues to pile up. They are burning it, some of it. What doesn't burn is still there. They have made no effort to keep their property up, and it's an eyesore and a source of a great deal of anxiety to those of us who live on the street or within view of their property. And it seems to me they have demonstrated no intenttion of complying with this with the ordinances, the zoning codes in any fashion. They knowingly with forethought and intentionally put an R.V. out there on their property. They were warned it was illegal. They went ahead and did it anyway. They built a pad, and they ran a pipe from the -- from the toilet out into the woods and had somebody living there to take care of their"chickens. I mean, this is the type of people they are, and we have offered to be good neighbors to help them if they needed it. We do have some resources. We help our neighbors. We pull them 'out of the mud. We graze the road. We maintain the road. We mow the road. We have offered -- I have called and told Julie when she's there alone if she needs anything call us. We will be willing to help. We have nothing personally against these people, but I feel that they have a responsibility like everybody else to maintain their property and keep the neighborhood clean and safe, not a rat's nest which that appears to be, with all of that chicken feed and other stuff sitting there unprotected in unclosed containers. So I, for one, would like to see justice expedited. I would like to see a fine imposed on this man because he does not seem like any other alternative is going to be effective. MS. LOUVIERE: Thank you. MR. MCCORMICK: Thank you. Staff, could you give me some clarification on the purpose of the five-day or a ten-day? Could ~you explain to us your reasoning behind that request? ~ MS. CRUZ: This case has been going on since April of '95, and Mr. Landgrebe has been aware of this violation since then. He appeared before this board on June 22, and the board agreed to grant him 30 days to comply. At that time he agreed that he was going to comply. Scheduling this case before the board today has given him 60 days to obtain a permit or to remove the mobile home, which he has done nothing. I think he has had ample time to comply. And in my in staff's opinion, he has just ignored our -- ~ Page 7 --"'-~''';.:::.";':':;~ .~;-.;':. ~ -:.:....-'t't'-'..::...~~~-_ ~ ~.;..y.~...,:'~~~_~-;;;It'..~~~'""'~~~--;.:-.~.-....... -.,:.~------ .-- August 24, 1995 MR. MCCORMICK: Well, I'm in agreement with what you said. I'm trying to get clarification why even the fiv~-day window that you requested. MR. BOLGAR: I'm not sure. Counsel, does the board have the ability to impose fines immediately, or is it necessary for them to give a so-called reasonable length of time after the proceedings? MR. MANALICH: ~ically an opportunity to comply is allowed. Now, in this one, as Ms. Cruz has mentioned, this case was before the board. My notes reflect that this individual was put on notice that he was being given a continuance for purposes of achieving compliance. Now, I don't believe at the last hearing actual findings of fact, conclusions were actually drawn, but it was deferred. My notes reflect that he was put on notice, that he would have to be back here prepared for hearing. A continuance order was sent out on the 18th of August. It was slightly ~pte, but still I think he was put on notice here at the hearing that he had to be back ready to go on the 24th. We've also got the return receipt received. I would advise that a short period of compliance be allowed as opposed to an immediate fine for purpose of due process, but I think that can be rather short, to the tune of ten, fifteen days as has been suggested, given the prior hearings on the matter. MR. BOLGAR: We -- We had -- We had amended and asked for five days. Is that considered reasonable and acceptable in thi:o.- matter? MS. LOUVIERE: I -- I'm a little bit confused. I feel we have obtained due diligence. We served this person. He has been before our board. He's told us that he's going to fix this problem. He has not fixed it. You know, he was served. He was told he has to be here. He's not here. So why do we have to wait five days? Why do we have to wait ten days? Why can't we go ahead and fine him? If this person is not complying, then start fining him. MR. MANALICH: In response to that -- I mean, I can understand the urgency of the board. I think there's good reason for it, I think, based on the testimony we've heard, but my only point would be that we did not have actual findings made at the last hearing and MS. LOUVIERE: But we found people -- we can fine -- we can do that right now even though he's not here. MR. MANALICH: Oh, certainly. I agree you can. But because those were not made before, it would appear to me that your best position to defend this in the event of subsequent appeal would be to take the position that he was given -- whether it be five or ten days of compliance opportunity after the order was actually rendered. Now, the more you shrink that obviously, the more possibility MS. LOUVIERE: Then can we do two days on it? . MR. MANALICH: Well, you know, I think the more you "shrink that down, the greater the likelihood that he might claim a denial of opportunity, reasonable opportunity, to comply. That's the problem there. MS. LOUVIERE: He -- but the opportunity to comply. MS. DEIFIK: But we want to be ,.able to enforce the order, Mireya. MS. LOUVIERE: Right. { -" I'm sorry. He's already had ~' Page 8 -.-....-----....-'l:"-.'~.-..--~....____;'--.~ August 24, 1995 MR. MANALICH: Certainly the reason normally -- MS. LOUVIERE: But -- but he's telling me that all_I need is just a few days, basically letting him know that we are going to be enforcing an order. So in this case two to three days should be more than sufficient. MR. MANALICH: Well, the thing is this. He's going to have to carry out the cleanup and the correction within that -- That's what we're actually saying here. We're saying you have to remedy this within two or three days. That may not be reasonable to expect. You know, typically we offer, I think, like, 30 days as a reasonable compliance period. I agree, that's too -- too much in this case, given the prior history. But I would recommend -- I'm not sure from staff's perspective what would be expected time-wise for this to be actually remedied. MR. BOLGAR: Well, staff's pg~ition, I think, is that we would endorse and be delighted if they could be fined immediately. I mean, this has dragged out for quite a long time. They've had plenty of opportunity. You know, a couple of more days I think is sufficient in this matter. MR. MANALICH: Well, are you saying, Mr. Bolgar, that from your perspective if this individual were all of a sudden inspired to come into full compliance, he could go out there and in 48 hours actually achieve that cleanup? MR. BOLGAR: I'm saying that he could get the permit within 24 hours and I think -- and that's the basis of compliance here. Once he obtains -- If he's going to keep the trailer and he obtains the permit, he has "X" amount of days to bring that permit into compliance as far as tie-downs and our -- our building codes and do the things he has to do to it to be in compliance. And I would say once he gets the permit, I don't think that at that point that we'd pursue this matter that far. MR. MANALICH: Beyond the permit, would he have to do anything else? MR. BOLGAR: Well, no. Not -- not -- we -- We have an active litter and trash case against him right now that we're monitoring and -- and -- and that matter -- if he doesn't comply probably in a short length of time, that's going to be before the board too, but that's another matter. MR. MANALICH: Now, he is -- is he out of state? We don't know? MR. BOLGAR: I don't know, but he has -- he has relatives here who have -- with our policy and procedures, have an opportunity to obtain the permit, I think, if I understand correctly. All they need is a letter from him giving them permission to obtain this permit. .' MR. MANALICH: I think my advice on this would be based -on what I've heard, that -- My best advice to you would be five to ten days, probably ten, to comply, given what I've heard about how quickly he ca~act. I think any less than that, you run a greater risk that he might be able to attack this as not being reasonable and affording him due process to correct but -- you know -- MR. LAFORET: Counsel, I support the other board member in the respect I don't think the man's entitled to any windows because he did not even have the courtesy to advise us that he would not be ~ Page 9 ~~~ L..~_~_~ ~.' August 24, 1995 here this morning. Now, I know we have adverse weather conditions, but the telephones still work, and if he's not going to make it, if he's not interested in.even placing a telephone call, I'm not" interested in giving him any windows. We gave him 30 days. And that's my two cents' worth. MR. MANALICH: Yeah. I understand the frustration, urgency of the board and I -- I share that, but I'm just saying as your counsel, from the viewpoint of trying to defend this if it's appealed, I think we need to afford him what amounts to a reasonable period to comply from the date the order is rendered. Under the circumstances, I think we can get by with ten days. We go less than that, I think there's risk involved. I mean, I'm just -- MS. DEIFIK: Perhaps the lesson here is that we should have acted sooner in making a finding of fact and -- MR. MANALICH: Possibly. I ~ean, I think, you know, you try to be cooperative, and he was here last time, and he promised that he was going to take action, and I think that was the reason that you gave him the benefit of the doubt. Sometimes that pays off. Otherwise -- you know, sometimes it doesn't. But given that we did afford him that opportunity, that's why I'm saying typically, you know, from any of these things, we afford 15, 30, or more days. I'm saying I think you can shrink that down to five or ten but the smaller If you say immediately, I think there's a risk that a court would say that you didn't afford him a~reasonable opportunity to comply. MS. LOUVIERE: I think this -- we've discussed it on and on. I think -- fine. Five days is fine. MS. RAWSON: I think we have to remember that the the purpose of this board is to gain compliance, not to punish, and so we have to do whatever we have to do reasonably to gain compliance before we punish, and we never had a finding of fact -- Although we all very well know he was in violation, we never had an official finding of fact and gave him a length of time to come into compliance officially. So we have to give him time to meet compliance before we fine, or we, I think, are in legal trouble. MS. LOUVIERE: I think -- Go ahead. MR. LAFORET: I don't think we should -- we should address this as a fine, as more of a legal deterrent to prevent others from doing the same thing with impunity. Counsel, could we admini?ter the penalties as put in the county regulations of $150 a day to start within five days? I'll compromise my opinion that way, and we should make a decision on the fee -- I use the word rather than "fine" -- the deterrent fee of $150 a day to begin within a five-day period? MR. MANALICH: Yeah. I think it -- MR. LAFORET: And that would save us another meeting. He gets another month delay, another meeting. . " MR. MANALICH: No. No. I don't think there's any need ~for any further meetings. What I'm saying is that if you, number one, find that he's in violation and you decide that a fine should be impos~, the discussion has been what amount of time should be given for compliance. I'm saying that given the history of this case, I would say that minimally five to ten days should be allowed, and then at that point the fines start. MR. LAFORET: I would concur. We give a fine today to be imposed if he does not comply within five days. ~ Page 10 August 24, 1995 MR. MANALICH: Okay. Five is at that end of the spectrum. We're starting to get pretty short. We've h~~rd the liscussion, and, you know, my advice has been -- I think my preference would be for ten but -- you know, there's this greater risk MR. LAFORET: Well, I think it's up to the board. MR. MANALICH: Yeah. I agree. MR. LAFORET: I'm'only expressing my own opinion. MR. MANALICH: All I'm telling you is that my advice would be ten. I think there's greater risk as we go closer and closer to immediate. MR. ANDREWS: I have a question for staff. What is the usual time that he receives notification after -- after we -- after we hear the case? I mean, there's a certain length of time that it's mailed -- it's mailed, isn't it, or delivered in person, or how is it handl ed? $<<. MS. CRUZ: The notice of hearing has to be sent out 14 days prior to the hearing date. MS. RAWSON: I think he's asking you, if we make a decision today, how fast will he get our order. MS. CRUZ: Your decision -- MS. RAWSON: Yes. MS. CRUZ: -- I understand has to go out ten days -- It has to go out within tencdays from today's date. MS. RAWSON: When does his five days or ten days start running? From the day he gets this order or from today's date? MS. CRUZ: From the date that the order is signed. MR. LAFORET: Can you advise him by fax or by telephone )r Western Union or something? CHAIRMAN ALLEN: Typically, Mr. Laforet, the time that ~- once the order is done, it takes three or four days in -- in the county to get it typed, three, four, or five days. So even if we say our window today is five days, effectively the man is going to have ten days. MS. LOUVIERE: Right. CHAIRMAN ALLEN: So as quickly -- So by extending it, if I'm saying this correctly to staff, is that at the shorter window we have, it's still -- the man's still going to have, like, another five- or six-day grace period. MR. MANALICH: Yeah, because another factor here, of course, is the delivery of the order and the mailing, you know, when he gets it. You know, we can try to get the order out today. You know, if we can have you sign it today, I can prepare it. I don't know. CHAIRMAN ALLEN: I don't think so. MR. MANALICH: Are we able to do hand-delivery, do we ~know, on this individual? .. MS. CRUZ: I don't believe Mr. Landgrebe is local. He's out of town. M*. MANALICH: We can overnight mail it. MS. DEIFIK: Mr. Hedrich said that his son-in-law said he was here. MR. HEDRICH: Yes, ma'am. That was the statement I had from his son-in-law, but I haven't been able to visually confirm that. MR. MANALICH: Well, we can certainly hand deliver to ~. Page 11 .....~~.......--...... -.....'~...~..~.~._~.,-c-~~."_,..,'-~.,,-u__'_.""~......,...-..."'":''''?-'~~,.,_ ',r Jll ~..~ . August 24, 1995 the local address, and we can overnight mail to the Ohio address:' and that then will only be one total day. I mean, I think given these contingencies, again, you know, my advice would be five to ten"days, preferably ten, but, you know, I understand that there's others that want to go less than that. I think there's greater risk with that. MS. DEIFIK: I want an order that's going to be enforceable so that we'never have to revisit this. MR. MANALICH: Right. And that's my concern. MR. ANDREWS: I think -- I think ten days is pretty short. I wouldn't want to go less than ten. Because of the difference -- if he's up North, you know, you know how mail is today and then with the weather like it is. CHAIRMAN ALLEN: But, Mr. Andrews, what we're talking about, though, is that by the time they sign it, okay, we're going to get -- he's going to have the win~ow already. MR. ANDREWS: Okay. CHAIRMAN ALLEN: Okay. So we -- MS. LOUVIERE: I think like initially Jean said that the purpose of this board is to achieve compliance and we -- we've given him so much time to achieve compliance, and he just hasn't done it, and I understand you're trying to cover your bases. I -- I still believe that five days -- If you show that this case has' been going on -- ongoing for as long as it has and that we've given ~is individual the amount of time we have given him to achieve compliance and he has not done so, I think the five days is adequate. I think you could argue that, don't you think? Yes? CHAIRMAN ALLEN: Mr. Stauffer. Excuse me. Excuse me, Mr. Stauffer. will you come here and speak in the microphone so our court reporter can record this, please. Thank you. MS. CRUZ: Raise your right hand, please. Do you swear to tell the truth, the whole truth, and nothing but the truth? MR. COMFORT: I do. THEREUPON, JERRY COMFORT, (phonetic) a witness, having been first duly sworn, upon his oath, testified as follows: MS. CRUZ: State your name for the record. MR. COMFORT: Jerry Comfort. MS. CRUZ: Okay. You may go ahead. MR. COMFORT: What I was saying is, the trailer's been in there almost a year now illegally, and it's taken a while to get it worked around where someone would do something about it, and I watched them do it on Sunday afternoon. It only took them two hours to put that trailer in there. I don't understand why they have to have all ;~his time to get it out. -- CHAIRMAN ALLEN: Well, I think what we're all discussing is we don't want to give him any time at all like you all don't. Okay?~But we also have to look at the ramifications that if we tell him to move it tomorrow and we have to start fining him tomorrow and he comes back on appeal and says with the weather and the floods MR. COMFORT: Right. CHAIRMAN ALLEN: -- one day's notice isn't a realistic thing. So first is him having an appeal going to take 60 days to ~' Page 12 '-.- -;;'~t;:~':3~~~~:::~~~~~.i.:'~~'."~i.s~::.., ".:__~~i~':':-\~;;~;~~';f.:;~,~~",lfi.~ ,~:.~;_.-~~-.~ ,.''!: August 24, 1995 resolve, 60 or 90 days. We're saying let's give the guy a realistic window so y'all can see no trailer within ten days is better than having him have an appeal and it stays there another 60: . I think that's all we're trying to achieve. MR. COMFORT: Even if he gets a permit for it, I don't know how it would ever pass. As I say, it's collapsing. CHAIRMAN ALLEN: I think that's what MR. COMFORT: And that will give him more time to get the permit. CHAIRMAN ALLEN: -- our joint intent, is that we don't intend for him to repair it. We intend for him to remove. So that's why I think our window -- the smaller window we make, the better off it is for all of us. MS. LOUVIERE: I'm sorry. I would like to hear what he has to say. , ~<< MR. HEDRICH: Just to add to what Mr. Comfort was saying here, these parties when they first brought the mobile home in last year, August of last year, did obtain a permit at that time, but it was clear they had no intention of having it inspected or COed due to the fact they let the last permit expire; and, henceforth, that's what started all this. It was after the permit expired that we initiated the investigation and started this case. MR. MANALICH: Excuse me, Mr. Chairman. News flash. I have just been handed by the administrative assistant a note with today's date, 9:43 a.m., which indicates that Mr. John Landgrebe -- Actually, Julie Landgrebe has called on behalf of John Landgrebe, and it says he is scheduled to appear but is sick. Please call to reschedule. MS. DEIFIK: issue. MR. MANALICH: I think you can proceed today. I just wanted to make you aware of this, that I was just handed this as we speak. MR. HEDRICH: For the record, Julie Landgrebe, John Landgrebe's daughter, who is the resident at this property, 11621 Lafayette Lane where the violation exists. MS. DEIFIK: Thank you, Mr. Hedrich. MR. MANALICH: I would actually, though, feel compelled to offer this into evidence as it has been provided to me by Miss Landgrebe. Defense Exhibit 1 -- or A. Excuse me. CHAIRMAN ALLEN: Do we need a vote on that? Do we need a motion or a vote? MR. MANALICH: Yes. MS. RAWSON: I so move. MS. DEIFIK: I second. CHAIRMAN ALLEN: We have a motion by Miss Rawson, a second by Mi,ss Deifik. All those in favor signify by saying aye. ~posed? None. It carries unanimously. Are we ready to close the public hearing on this matter? MR. MANALICH: Before you begi~ your deliberation, I'll take a moment to pass out our two standard generic orders, one which is the findings, the other which is a dismissal, if that will assist~' Well, I think we'have a public safety offer this -- I Defense Exhibit 1 since So we will mark this as Page 13 ~......'" --'_ .......-:.-*"n.A...4~:~'t""'I __. r ..d August 24, 1995 you in that process. CHAIRMAN ALLEN: Mr. Manalich -- Mr. Manalich, I b~lieve we received those in our packets. MR. MANALICH: Oh, did you? Okay. MS. DEIFIK: I don't have one because I don't have my packet. MR. MANALICH: prepared. MS. DEIFIK: My packet is at my office under water. MR. MANALICH: Like I said, just for the record to be clear, that's -- one of them is a dismissal of the charges. The other one is a finding of violation, and then obviously you choose. MS. CRUZ: Mr. Chairman, staff is done for discussion. In our recommendation we would like to recommend that Mr. Landgrebe if he decides to obtain a permit,~we want him to know that the permit does not get him -- I mean, he has to comply with the permit ar-d -- in other words, we would like to recommend that he obtain a permit and co within three months or remove the mobile home within five days, because what happened the last time is he obtained the permit, and he let the permit expire. But once he obtains the permit, he's got six months or, I believe, 18 months that that permit is valid, and ~e cannot take any other enforcement actions. CHAIRMAN ALLEN: I think the window of opportunity of three months is too large personally, just because of what we've heard from the Stauffers, that it's been there for a year. If the -- If the man's intent was to do such, he would have done it. Would ya'~~ consider closing that window up a little? MS. CRUZ: 30 days to get a p~rmit and CO. CHAIRMAN ALLEN: That sounds like a better window. Is everyone ready to close the public hearing? We'll now close the .public hearing. Any discussion by staff, board members? MR. LAFORET: I object to 30 days. MS. DEIFIK: Couldn't we give him ten days to get the permit and -- CHAIRMAN ALLEN: We can't do that because there's physically you can't process the inspections through the county quick enough. Okay? He's going to catch us in a legal loophole there. MS. DEIFIK: Well, 30 days to get the CO, but we heard earlier that he could get the permit very quickly. CHAIRMAN ALLEN: Correct. But to bring this -- pardon my French -- bring this piece of trash into compliance, it's going to be a major remake. He'll never make the 30-day window. MS. DEIFIK: Okay. CHAIRMAN ALLEN: Do we have a motion? .' MS. LOUVIERE: I wouldn't know -- I wouldn't even know "where to start. MS. DEIFIK: I -- I would move that we accept staff's recommendation and give him 30 days to obtain a permit and a CO, with the understanding that the fines would begin immediately at the highest rate available to us. CHAIRMAN ALLEN: You want to make that in findings of fact? MS. DEIFIK: Okay. Sure. All right. Do you have In case you don't have it, always ~' Page 14 <. ~.-.:.:...:...:~-:':;-,,~~~""~~~..,,;?~---'"'.p -- August 24, 1995 the statute number? CHAIRMAN ALLEN: Yes. MS. DEIFIK: Findings of fact, conclusions of law, and order of the board. This cause came on for public hearing before the board on August 24, 1995, and the board having heard testimony under oath, received evidence, and heard arguments respective to all appropriate matters, thereupon issues its findings of fact, conclusions of law, and order of the board as follows. That Emily Landgrebe and John R. Landgrebe are the owners of record of the subject property; that the Code Enforcement Board has jurisdiction of the person, of the respondent and that Mr. And Mrs. -- respondents. Mr. And Mrs. Landgrebe were not present at the public hearing; all notices required by Collier County Ordinance Number 92-80 have been properly issued; that the real property legally described as MR. MANALICH: I can -- If Y9P will empower me to use the deed description contained in Exhibit A -- MS. DEIFIK: All right -- the description as contained on the deed that was part of the exhibit at this hearing. Mr. Manalich is authorized to fill in that description -- is in violation of Ordinance Numbers 2.6.7.1.1 and 2.7.6, paragraph five, of Ordinance Number 91-102, Collier County Land Development Code; that the facts and circumstances~of the violation continue to be an unlawful storage of a mobile home ~ich we understand is collapsing; that it is in violation of the Collier County ordinances above cited. And based upon the foregoing findings of fact and conclusion of law and pursuant to the authority granted in Chapter 162, Florida Statutes, and Collier County Ordinance Number 92-80, it is hereby ordered that John R. And Emily Landgrebe correct the violation of sections 2.6.7.1.1 and 2.7.6, paragraph five, of Ordinance Number 91-102, the Collier County Land Development Coce, in the following manner. That within 30 days they obtain a permit and a certificate of occupancy'on the subject mobile home; that said correction be completed on or before the 23rd day of September, 1995. Are my calculations correct? That would be 30 days? Okay. And if respondent does not comply -- respondents do not comply with this order on or before that date, then in that event respondent is hereby ordered to pay a fine of $150 per day for each and every day any violation described herein continues past said date -- said date. Failure to comply with the order within the specified time will result in the recordation of a lien pursuant to Chapter 162, Florida Statutes, which may be foreclosed and respondents' property sold to enforce the lien. I would also include in this order the board's direction to staff and the county that said order be expedited and hand delivered to any local address we may have. CHAIRMAN ALLEN: Okay. I have an amendment -- MS. DEIFIK: Yes. CHAIRMAN ALLEN: -- is that we didn't give them the option to get the CO and do it in 30 days and -- or we give them the optio~to remove it, okay, within five days. MS. DEIFIK: I would -- Well, I would amend it to ten days. MR. MS. MR. MCCORMICK: I think that -~ If I may. DEIFIK: Yes. MCCORMICK: They have two options. They either ~ Page 15 _._---.--~..-..- ,...- ._--.' .-..,.-.~--+ August 24, 1995 remove the trailer, or they obtain a permit, and both of those two things have to be done we were talking before in the fi~e~ or ten-day window. If they obtain the permit, they choose to go that route instead of removing it, then they have to get a co in 30 days. So the motion -- as I understood it, we left out the option of removing the trailer, and we didn't put the caveat in that the permit has to happen in that five or ten days. MS. DEIFIK: That was how I wanted to structure the motion originally. Some of the other board members brought to my attention that there would be some difficulties in him obtaining the permit that quickly. CHAIRMAN ALLEN: No. I'm sorry. I'm saying that's incorrect to you. Okay. The 30-day window that we're allowing works if he obtains a permit and fixes the trailer. What we're saying is that's one option. Option B is t~at he obtains a permit within five days, which Mr. Bolgar said he can get within 24 hours, and he removes the trailer within five days or the fine immediately begins within -- by about the 29th day of August. MS. DEIFIK: All right. I would amend my motion, but because of counsel's advice, I would amend it to -- to give the options as described, and I will restate it, but I would make my motion -- give him ten days because I'm concerned that we enter an order that absolutely positively can be e~orced and stand up so that we do not need to revisit this. >So -- and obviously, you know, other members of the board may feel differently, but I would like to put that to a vote. So with regard to the order of the board, the respondent under paragraph one of the order section has two options, A, that within 30 days he -- within five day -- ten days, he obtain a permit, and within the subsequent 20 days, obtain a certificate of occupancy which gives him a total of 30 days to come into compliance. Option B would be to remove the trailer properly and correctly within ten days to come into compliance with this order. If he chooses option Band fails to comply, then the fine would become effective at the end of that ten-day period. Is that -- CHAIRMAN ALLEN: Let's ask one ten-day -- for this ten-day period, Manalich, so I can come by and sign today? MR. MANALICH: Given the short time frame, what we'll need to do is have this prepared today, and I would assume then we would hand deliver it to the local address. We would overnight mail it to the Ohio address. MS. DEIFIK: And I'd like that part of the order. MR. MANALICH: Right. And as I understand it then, the ~way the motion was changed then was for two options. The first to be -within ten days, meaning from today's date, to obtain a permit. MS. DEIFIK: Or-- ~. MANALICH: And within a subsequent 20 days a CO, or within ten days remove the trailer. MS. DEIFIK: Correct. And one of those periods of time to be identical, period, is at the end of the ten days, well, I'm still going to get a permit. question. If this can you have this typed today, Mr. it so our ten-day will begin the reasons I want the -- the initial ten-day I don't want him to say, oh, If he has not obtained a ~' Page 16 ~'_". '.. _.. . _'.,~~''''..n, ,.._.............__........,......._.._ ,~~__,~...........-".. .,,~._n"',. ,.....,'-';>-. - ,.........:;:_.,-.\-,,-..-...'...... ~".F---.-- --_.~ c ,,_.< .":W:'. ~'i"'T_,.;~ August 24, 1995 permit by five o'clock on the tenth day, we will know he has wai~ed his option of proceeding under option A. MR. LAFORET: The.original charges presented to us" include the litter and trash. Now, should we make any mention that it will be handled separately? MS. DEIFIK: Mr. Bolgar indicated that was a separate matter, and that is distressing to me that it is separate. MS. CRUZ: It is a separate matter. MR. LAFORET: It will be handled separately? MS. CRUZ: Uh-huh. MS. DEIFIK: When will that be heard before us, Mr. Bolgar? MR. BOLGAR: Well, I think they have probably about another six days. They've made some progress towards cleaning the trash. Part of the problem is that they did burn some of it, and the residue from the burn is still th~re. But at that point, we can address this matter simply by bidding it out, not necessarily have brought before the board -- MS. DEIFIK: All right. Let's address that after we complete this so we have one motion that everyone can vote on. Is that acceptable? MR. MANALICH: Two clarifications. I believe the compliance section of the order is clear now on your motion. I just wanted to clarify two other things. In regard to that order, if the two options are not complied with -- either of those options are complied with, there will be $150 a day assessed. Mr. Bolgar, do you have any comment as to why that amount is appropriate in this case? MR. BOLGAR: Well, at this point I don't -- We've asked for $150 because I sort of think that we should reserve the $250 fines for health and safety issues, and at this point this is an important issue, but I'm not quite sure it would be categorized as a -- a -- MR. MANALICH: Okay.- But I'm saying, as far as the 150, you feel that amount is justified -- MR. BOLGAR: Yes. MR. MANALICH: -- for what reasons? Just basically can you tell us what about the violation you think justifies 150? MR. BOLGAR: Well, the reasons are that he has some work to do on the -- on the trailer yet. As you know, the front end of the trailer, I think, is opened up and still opened up, and that's one of the contentions that we -- we want to see addressed quickly. And I feel that if the fine is any less than that, that this issue is going to MR. MANALICH: I think the board can also take note, if it chooses, of the testimony of the neighbors. MS. DEIFIK: I think that there is definitely some ,public safety issues. If the trailer is in as bad shape as the ~Stauffers indicate, it may be an attractive nuisance. Children may be playing on this property. Someone may get hurt. There also may be some ~wage and contamination problems there from what is described. So I ~- I certainly feel that a -- the fine is well justified. MR. MANALICH: Okay. I just wanted to put that into the record. The only other clarificatiQn I have about the order would be that the violation as charged on page two of your packet was the unlawful storage of unlicensed vehicles and a mobile home. Now, in ~' Page 17 ,- ~. 0- August 24, 1995 the order and the motion I have heard -- the only thing I am hearing is MS. DEIFIK: I would add the unlicensed vehicles. MR. MANALICH: Okay. And you'll need then to consider that in your order. MS. LOUVIERE: But those -- I'm sorry. I thought those had been removed. MR. HEDRICH: Yes. That problem has been taken care of. MR. MANALICH: Okay. So then that is no longer MS. DEIFIK: All four have been removed? MR. HEDRICH: That issue is no longer MR. MANALICH: Okay. So that appears that that's been properly moved then. MS. RAWSON: Well, procedurally I think we have to vote first on the findings of facts and conclusions of law. So I will second the findings of fact and c~nclusions of law as related by Miss Deifik. MS. DEIFIK: I think that I failed to read the last paragraph, just to make the record clear. CHAIRMAN ALLEN: We're doing this wrong. Like Miss Rawson said, first off -- MR. ANDREWS: Who made the motion? Who made the motion? CHAIRMAN ALLEN: Miss Deifik. Miss Deifik is making the motion. MS. DEIFIK: It's a learning experience for me. MR. ANDREWS: That's okay. CHAIRMAN ALLEN: We have a motion by Miss Deifik, a second by Mrs. Rawson. All those in favor signify by saying aye. Any opposed? Any opposed? Let the record show that Miss Louviere opposes. MS. RAWSON: Now, I think we are to the order of the board, and the order of the board as related by Miss Deifik is as outlined with the ten-day to either remove the trailer or get a permit, and then once they get a permit, only 30 days to get the certificate of occupancy as I understand it. So I would second the order. CHAIRMAN ALLEN: order of the board. by saying aye. Opposed? MS. LOUVIERE: No, I'm for it. Just go ahead. CHAIRMAN ALLEN: Okay. Carries unanimously. MR. MANALICH: Before we move on from the case, if we can just pause a moment just to make sure the exhibits are in order. I want to ask the court reporter if she has staff Exhibit A. THE COURT REPORTER: No. MS. CRUZ: Yes. I have provided you with a copy of Composite Exhibit A which is that packet right in front of you. ~. MANALICH: Okay. I'd like to mark that before we close this hearing. MS. DEIFIK: The warranty deed is on page 15. MR. MANALICH: I'll mark it. (Plaintiff's Exhibit A was marked for identification.) MR. MANALICH: Is there -- Mr. Bolgar, is there any We have a motion and a second on the Bring it to a vote. All those in favor sig~ify ~' Page 18 ........~~..".,.-:-:~~~~~~.~.....~~-~~'..,...Jir.. "T"""'l"ll'l~t 'IIJ.!'IT _ ,~""lFT- A i'!*' ~ August 24, 1995 further comment on this case? MR. BOLGAR: No, sir. MR. MANALICH: Mr: Chairman, if you could just give me just one moment to get the exhibits straightened out. (Defendant's Exhibit A was marked for identification.) MR. MANALICH: Okay. Thank you, Mr. Chairman. CHAIRMAN ALLEN: Excuse me, Mr. Manalich. We have a technical problem possibly. MS. DEIFIK: The warranty deed which shows it was recorded in O.R. Book 1792, page 721 recites Mr. Landgrebe's name as John R. Landgrebe, Senior, and perhaps we'd like to have that included in the order also to be sure there's no misidentification. MR. MANALICH: Noted. CHAIRMAN ALLEN: Staff, let's continue to our next case. MS. CRUZ: Our next case is Eoard of County Commissioners versus Jack A. Quee;~ This case appeared before this board on June 22, 1995, and at this time the board ordered this case to be continued until July 27 to allow Mr. Queen an opportunity to obtain a variance or an appeal before the Board of Zoning Appeals to appeal the staff's interpretation. I believe that appeal was denied, and I'm requesting that this case appear before this board again {today. Let the record show that Mr. Jack Queen is present. o MR. MANALICH: Mr. Chairman, if it may be of assistance at this point, when we last met we had continued this case. We had directed that Mr. Queen and the county attorney's office look into the possibility of whether there was any type of appeal to the Board of Zoning Appeals available to Mr. Queen. If you will recall, this is a case in which the material in your packet has correspondence from Ms. Cacchione at planning services witn Mr. Queen. The issue had come up that Mr. Queen had not availed himself of a 30-day time frame to bring forth that appeal. And at the time of the last hearing, I think the board obviously was conscientiously wanting to know and have me further look into whether there was any alternative where he would be afforded some type of appeal that would alleviate the need for this board to hear the case. We were -- We struggled with that question. Quite frankly, I conferred at length with Mr. Cuyler. I had telephone conversation with Mr. Queen. Mr. Queen was very responsible and very interested in this, in contacting me, and wanting to stay on top of it and getting it resolved. I told him that, you know, we would get an extensive review. I consulted with Mr. Cuyler, with Ms. Student who is our land use attorney expert in the office. We also spoke to Miss Cacchione, looked at all possible angles on this. But unfortunately, as I told Mr. Queen -- and I only told him this because we struggled with it until yesterday. And I called him yesterday, and I explained to him that unfortunately our conclusion was that he had missed his ;~ppeal time frame, and we were not aware of any other mechanism -whereby he could reinstitute that appeal, and for that reason then, he would need to be here today prepared to face this hearing. ~w, I also mentioned to Mr. Queen that because we struggled with this until yesterday, that if he wanted to request of the board one further continuance, I would have to mention to the board that we had, in fact, been struggling with this until yesterday, and the board should take that into account as to whether or not to grant him a continuance. We played with this so long simply because~ Page 19 _,~___: _ ~.~-:-,-.;.,::;-..~~=-..::~~_.:._~.~-,.-_:~_.. -?"<;'~~~~:z~-..~~'~,~_,'-";;:;:~-i~.:_~~~:OO:~i~'::~~_~"'!~~.-~~~~~-=-~r.,..~._ - -..... August 24, 1995 we were looking for some type of way to give him relief without having to face these charges. But the concern that Mr. Cuyler had was that, you know, the rules are available for everyone, and if we set~he precedent that for whatever claims of lack of knowledge about the process or whatever other excusable neglect can be mentioned, we allow it, then, you know, how do we distinguish other situations that also have excuses. So for that reason I informed Mr. Queen yesterday that it was the opinion of the county attorney's office that he had lost his appeal right, and for that reason this case was properly before this board. MR. LAFORET: I would like to hear from Mr. Queen, please. MR. MANALICH: And I will add, Mr. Queen has been very responsible and, you know, following up on this and calling me very frequently wanting very much to try to resolve this. MS. CRUZ: Raise your right hand, please. Do you swear to tell the truth, the whole truth, and nothing but the truth? MR. QUEEN: I affirm that. THEREUPON, JACK A. QUEEN, a witness, having been first duly sworn, upon his oath, testified as follows: I .' MS. CRUZ: State your name foro:he record; please. MR. QUEEN: Jack Queen. If I could take a minute to give you a little past history on this that Mr. Cuyler didn't have the knowledge of or Mr. Manalich either. Back before our master plan was adopted, we applied for a permit to expand the building and knew we would need a zoning change and wanted to go through that process. Then I was asked to wait until the master plan -- At that time -- At that time Immokalee had no borderlines of commercial and residential and all the other; so I was asked to wait until the master plan was put in effect and then go for the zoning change. So at the meetings and with Michelle Edwards, I was asked -- or I asked the question if we were going to get commercial zoning that would apply to our operation in that particular area and was informed that that was on the map to be commercial property, could be made commercial property, and asked some of the committee members too, and they all agreed that it was going to be commercial. So I waited until the plan was adopted, and then I came before the building and zoning and applied for a permit, and they said, well, you need a zoning change. So we tried to get the zoning change, but the commercial zoning was not would not fit our operation that was allowed in that area which I thought all the time that it would be. Now, we still wanted to go with that, and I could not get it changed. I proceeded through this investigation after what I thought was the top in building and zoning. I sent a check down for review of this to Cacchione -- Mrs. Cacchione's office, and I thought I had exhausted my means, all the means that I had of appeal. So from there things seemed to take pretty rapid action and I wanted to __ still want to get it straightened out. I have no intention of not complying with this, but we had some very expensive machinery that was being -- in the weathe~, and we put a roof over it, and that was the violation. ,~ Now, I would like to go back and give -- I'd like for __ ~_r.. Page 20 ~.""""'~ ~--:----~.-.::--. --"'.......-----.----~ --- August 24, 1995 to get Mr. Cuyler some more information about my attempts for this. I want to do it. I want to do it properly, but I can't do it in the zoning that's there now. And I would like -- still like' to have an appeal to the Board of County Commissioners since I know what to do now to see if we can get a variance in the zoning and if it would be possible to give us -- to grant another extension, which I know it's pretty hard to ask this, but if the legal counsel here would advise me on what -- if -- if we could go back to -- MR. MANALICH: Well, one of the reasons -- This is further back. One of the reasons that we struggled hard at this was because in speaking with Miss Cacchione, she did an interpretation of the master plan which affects this situation, and she wrote that up, and she believes that -- and she's confident that she's correct on that, that she was very candid in saying that that's really -- it was exactly that. It was an interpretation. And, quite frankly, the Board of Zoning Appeals conceivably could have had a different interpretation than hers, although she believes that hers was correct and that -- that's one of the factors we weighed and why we struggled with this. But procedurally we just found that he had been put on notice, and that 30-day time frame was rather clear, and that simply was waived. The other aggravating factor here is that. despite -- you know, Mr. Queen has pointed out a somewhat convoluted background and, ,~ you know, his being a novice in the system, but, on the other hand, the structure was put up without a permit which clearly, you know, is something that cannot be done. So those are the factors. Now, I just spoke on the phone with Mr. Cuyler at the office. He indicates -- you know, obviously he's willing to consider any further information that Mr. Queen may have. He did say that, you know, he wanted you to consider after hearing also from staff, whether or not a continuance would be harmful in any way to the residents or not in the sense that because we only got back to him yesterday, that, you know, he would have no opposition to one other extension if he wants to bring further facts. However, that depends on what staff tells you about the nature of the violation, how it's impacting the community. MS. LOUVIERE: Okay. So let's -- Can we just slowdown a little bit and go back to some issues. Basically the problem we have is that -- just going back through my minutes, is that there was a letter sent to you on April 20 of 1995, and it gives an interpretation of the Immokalee area master plan. It references the fact that your property will need to be rezoned to C-5 which is heavy commercial or industrial zoning district. Okay. That was the main problem. You had -- your use was okay until you started expanding on it. ,Then'they told you -- MR. QUEEN: Grandfathered in. MS. LOUVIERE: They grandfathered in what you had. MR. QUEEN: Right. MS. LOUVIERE: But then you went ahead and you expanded, and that's when you got into problems. Then they said you had 30 days to go ahead and try to appeal and you -- and you didn't do it. MR. QUEEN: I thoY9ht that I had appealed. I thought I was at the top. MS. LOUVIERE: Right. -_Tr Page 21 '."""_"",,-,"",u'-,.'-_-:-'__,, '--'-"'.-.::'~_'~._ August 24, 1995 MR. QUEEN: I didn't know that -- See, this -- this is my ignorance of the -- of this problem. MS. LOUVIERE: I understand that. So then this -- -'this -- Then when you came before us and we said, well, let's see if we can find Mr. Queen some more time so he can actually go through the correct procedure. But now the county attorney's office is telling us that, sir, you have gone over your 30-day limit -- MR. QUEEN: I know that. MS. LOUVIERE: -- and that you cannot apply, okay, to the zoning appeal for a -- for a variance. MR. MANALICH: Yeah. Essentially the concern was that there did not appear to be any relief from that time frame, and the precedent that would be created MS. LOUVIERE: It would be -- this is the time we give; and, therefore, you have to act within that time. We cannot just make an exception to you because then everyone would be coming to us and asking for that. You know, at this point the only avenue that's left to us is for you to really remove the addition that you have on this existing use that you -- you built without a permit. MR. QUEEN: Although there's not -- the information did not get to Mr. Cuyler that -- what we had done. It didn't get to him, and if we'd have had -- If we -- If we could have had a decision befor~ yesterday or give us a little time, we'might have gotten back, and it'd have been a different point of view. MR. MANALICH: Again, my office -- depending on how you view it, depending on what staff tells you about how the violations affect the community, my staff -- Given the fact that we struggled with this until yesterday, we would have no opposition to one further time where he could have one last opportunity to air his facts. MS. LOUVIERE,: Who would he air his facts to? MR. MANALICH: Well, he's saying he has additional facts that he wants Mr. Cuyler to consider in his appeal procedure __ MS. LOUVIERE: In his 30-day appeal to -- I mean, see, basically the -- the only way -- the only board that I know in Collier County that has the right to grant Mr. Queen this variance would be the Board of County Commissioners which serves as the Zoning Board of Appeals. MR. MANALICH: Right. MS. LOUVIERE: And if you are telling him that his 30 days to appeal to the Board of County Commissioners or to the Zoning board of Appeals are up, then I don't understand what other avenue is there. MS. DEIFIK: Is there something that would hold the time, Mr. Manalich? MR. MANALICH: We could not identify anything. I mean, the -best that was presented to us is simply that there was confusion or ignorance of the process; however, the record was clear from the letter of that process. Now, I'm not saying that equitably there may not be some claim to what he says, but unfortunately we could be facing those in a multitude of cases if we granted an exception. MS. LOUVIERE: My -- My point is -- and I want to work with Mr. Queen. I thi~k I was the one that brought up the time to try to give you some time-~- that the only way you're ever going to make this use a conforming use is to go ahead and get the zoning appeals -_r~ Page 22 August 24, 1995 the Board of Zoning Appeals to rule for it, and you are telling me that his time has been up to do this. MR. MANALICH: Yes. We-- MR. QUEEN: The zoning board can't -- can't change it. It would have to go before the county commission. MS. LOUVIERE: Right. That's another name for the Board of County Commissioners. MR. MCCORMICK: If I can ask for some clarification. What you've told us is that based on the information that you had in the county's attorney's office, you could not recommend that to go to the Board of County Commissioners. MR. MANALICH: That's correct. MR. MCCORMICK: But your -- MR. MANALICH: We found that the time frame had elapsed, and he did not have the basis for avoiding, you know, the execution of a -- MR. MCCORMICK: You're saying that you would be inclined to accept additional information to review that in the same manner as this in the last 30 days? MR. MANALICH: Well, the only thing is this. You had directed -- you had directed at the last meeting that the decision the review by county attorney and the decision on that be made within two weeks which would have given him another 'two weeks to either prepare 'lor this hearing or do whatever other thing he wanted to do. We took -- We struggled long and hard with it, and for that reason we really didn't have a final decision until yesterday. Because of that lateness of decision in order to be fair to Mr. Queen and because he says he has additional information that he doesn't feel we considered, we are not opposed -- If staff tells us that the residents of the community are not,going to be adversely immediately harmed, we are not opposed to one final 30-day extension because of the lateness of our decision; however, I doubt that our opinion will change. MR. MCCORMICK: And your opinion still would be the determining factor whether it could go to the Board of Zoning Appeals or not. MR. MANALICH: Right. At this point MR. MCCORMICK: The only thing that we could do would be to allow an extension for you to re-review additional information. MR. MANALICH: Right. And consider anything further he has to pre~ent, and I guess the other thing would be as a matter of due process, if, you know, he feels that he was not ready for today's hearing because we didn't get back to him until yesterday. Although, at the last meeting, we did mention that this would be coming back for hearing if he could not appeal it. MR. QUEEN: I think that what we're up against what I'm ~p against now is the technicality of the 30-day time period in the past that I evidently didn't pick up in the letter or something, and I thought I had went to the top at that time. We're not in a position to -- to move or anything like that, but we are in a position, if we could get the proper zoning, to spruce the place up a little bit. It looks bad now because I can't get permits to change it, and we're having b~jldings -- well, our parts buildings -- the roof's got to be -- well, it's almost rotten. So we need to do something, and I thought through this process we could make the place -_r. Page 23 ~._----""-'"""",:~.-~~~'1'!':-"'''''''''''',:","'~.,:r- l!. ~~.'~J.4'" ~'~...' ....:::-:.....-..~..' August 24, 1995 appear' a lot better. I could put a nice front on the building and -- but the technicality of the time limit is what's holding -- holding me down now or what -- and it's -- like I say, it's my ignorance.--I don't blame anyone for it but myself, but we can make things better if we could get this appeal to the county commission and get a variance in the zoning and -- so where we could make this change. MR. MANALICH: I realize on that, Mr. Queen, that -- I mean, obviously that the board if you if you had not lost that time -- if you had, in fact, been able to go to the county commission, there's no guarantee -- ' MR. QUEEN: That's right. MR. MANALICH: as to what they would have done. I know Miss Cacchione is on record as saying that her interpretation would not allow -- MR. QUEEN: Well-- MR. MANALICH: -- for your structure, but, granted, I don't know what the Board of County Commissioners -- how they would interpret it. MR. QUEEN: We went through quite a few people with the study on that and -- of what the master plan says, and all of them interpreted out of the book of what it says, but the interpretation of that will not cure the problem. It's going to have to -- we're going to -- You won't know if you can get it .<?;1:" not" until you apply for a variance in it, and this is a part of town that there's a lot of businesses there anyhow. MR. MANALICH: Just to be clear, as I understand it -- MR. LAFORET: I would like to ask you if I'm correct as to my memory. I think that at the last meeting -- and I'm sympathetic with your position. MR. QUEEN: I appreciate it. MR. LAFORET: And I appreciate your efforts to correct it. But if I understand correctly, you were given 30 days to apply to the commissioner -- MR. QUEEN: Back MR. LAFORET: MR. QUEEN: No. MR. LAFORET: Yes. MR. QUEEN: No. Not to the commission. MR. MANALICH: Well, it was a 30-day period for us to decide whether he had an ability to do so given that he had not followed the time frames mentioned to him previously by staff. In the April 20 letter at page 12 of your packet, Miss Cacchione told him that he had 30 days to appeal her interpretation to the commissioners. That was not done. When this case then came before you last month, the guestiDn was, was there any way that he could circumvent that __ his missing that 30-day time frame and get to the board. We took that under advisement. Our conclusion has been that, no, he could not. He missed his time frame. He can't get to the Board of County Commissioners anymore. MR. LAFORET: What next 30 days? MR. MANALICH: Th~ only thing that -- about the next 30 days was that because-we only informed him of that conclusion yesterday, if he either had additional information or felt that he Yeah. at our last meeting. Cor What do you propose to do in the "'_r, Page 24 --:.'..~.:..-=;:::-:,:.:.:- <,~,~!.~;r;~~~~-~~~:~",:..;;:::.;..-'i-{~-;,.- 'l_~,~~-:."" August 24, 1995 could not be ready today for this hearing because of the lateness of our notification to him yesterday, that is the reason that I said if there was no immediate harm to the surrounding neighborhood, that you might want to consider affording him that last opportunity. MR. LAFORET: If he gives you -- Counsel, if he gives you his additional information in the next 15 days, would you be able to put this thing in motion before the end of 30 days? MR. MANALICH: Obviously, yes. I mean -- MR. LAFORET: You can do that. MR. MANALICH: Yeah. MR. LAFORET: What if he gives you the additional information he has within five days? MR. MANALICH: I -- I would expect that whatever else he wants to present to us he can do immediately. MS. LOUVIERE: What does staff recommend? Hello, staff. Staff. MR. QUEEN: My main concern is, it's not going to do me any good if we can't get before the Board of County Commissioners. We need to go ahead and correct our problem now. MS. LOUVIERE: This is what I think, and, you know, I understand your concern and what you're sharing, the fact that you -- it was -- they just gave you this information and might not have had time to get ready and everything, but even if'" we give you more time and you still go to the county attorneys, they may come -- asking for the fact that they need to break the rule of that 30-day window for you to apply to the Board of County Commissioners, they may still come back and say no. I don't have a problem with giving you -- I don't know -- ten more days to get more information. I really don't think it's going to help you. I really don't believe -- MR. QUEEN: If we can't get an appeal. I agree with you. If we can't get it before the board. MS. LOUVIERE: If they're going to come back and tell MR. QUEEN: If you're going to stick strictly with that that one. MS. LOUVIERE: The 30 days. MR. QUEEN: 30-day period. MS. LOUVIERE: You had 30 days. You didn't do it. : MR. QUEEN: I agree with you but MS. LOUVIERE: So you're just really -- Mr. Queen, you're just wasting your time, sir. You need -- You have a -- You have a problem there, and you need to deal with it and, you know, we I " 0- MR. QUEEN: That's what I want to know, where the final decision is made and let us go ahead and deal with whatever we have to do. MS. LOUVIERE: Yes, sir. It's getting to that point, I think, don't you? MR. QUEEN: The only thing is that maybe -- maybe Mr. Manalich here can tell us right now. If we come in with the -- with Mr. Cuyler knew that we were -- had applied, are you still going to stick with the.technicality of the 30-day period as expired or -- See, we tried -- we tried eVftry legal way to get permitted that I knew how. MR. MANALICH: Mi: Queen, let me -- let me just clarify something. When we spoke yesterday afternoon, the additional "-I-.. Page 25 "",,,,-~,u~''''''':'"'~.~}'''''''''''''r-~_~:'''_~ "t''1d7 ...:III.....~,'f.:.I,.i{~_ L _,' J:l. ..;:,,~.-._:L. . Iii. J 'Ml. r _ r TL August 24, 1995 information that you wanted me to be aware of was that you indicated in summary that you had gone to apply for a permit. Okay? MR. QUEEN: Several times. - MR. MANALICH: All right. You had applied for the permit. At that time you were told that you did not have the correct zoning to have a permit issued to you. MR. QUEEN: Right. MR. MANALICH: Okay. You also mentioned that you were told by different individuals that as part of the adoption and/or preparation of the master plan, that there might be a possibility of a zoning change in your favor; is that right? MR. QUEEN: Michelle Edwards, Jimmy Spires was on-- Michelle Edwards was in charge of this, but Jimmy Spires was on the committee. Curtis Blocker was on the committee and Jack A. Williams. They all told me that you have to have the proper commercial zoning through this master plan, led me to believe now that -- that I could expand my building when the master plan was adopted. MR. MANALICH: Okay. Now, you went ahead -- as, I believe, you indicated to me, you went ahead and built the addition because you needed to protect some expensive equipment? MR. QUEEN: Right. MR. MANALICH: But you did not have a per~it when that was done MR. QUEEN: No. MR. MANALICH: right? And then after that, you had the discussion with staff and Miss Cacchione through correspondence that we find in the evidence. MR. QUEEN: Right. But -- Now, I did apply for a permit after the master plan was put into effect when they said it's been adopted and it's ready. So I went straight then to the building and zoning and said I want to get a permit to expand my building. MR. MANALICH: And what happened then? MR. QUEEN: They said, well, you need C-5, and you can't get C-5. MS. DEIFIK: Mr. Queen MR. QUEEN: We can't get C-4. MS. DEIFIK: -- how many employees, if any, would be affected if you had to remove that structure immediately? MR. QUEEN: Well, we'd have to -- there'd be -- There'd be five, at least, that would be out in the open. See, we had -- have our drill press, our lathe, $25,000 lathe, and a couple of welding machines that -- working on a slab -- would be working on the slab there without a roof. MR. MANALICH: I mean, I doubt -- MR. QUEEN: Mechanics too. MR. MANALICH: In all candor to the board, you know, based on this additional information, I doubt that our opinion on the procedure will change, you know, in all honesty. MR. LAFORET: Counsel, that's the reason I was trying to pin down the number of days for him to get his information to you, the number of days for you to get your response to him or recommendation, whatever. ~ Now, as I recall; at the last meeting, he said as a last resort, he'd have to take down this unauthorized shed and move it -_i=~ Page 26 .- -:,.-_" .::.j:.-=f":-::..f::-~~G~~.~~~:#':'--'.-_.~~~ -.3'=-:- .h_-~ August 24, 1995 somewhere and then move the equipment somewhere. Now, what I'm trying to do is expedite the case in the respect that if you c~n,give him a response in ten days, I would like to see him come to our nexr-meeting -- we'll give him 30 days -- but with a contract that he has rented other space in an industrial area, suitable area, and he has made arrangements to remove that shed, bring it over to the other area and bring his equipment to the other area. In other words, I don't want to give him the 30 days to come back here and say, there's nothing I can do. Then we have to give him another 30 days to move the equipment. Now, he has agreed he's going to move the equipment if all his operation is unsuccessful. Now, what I'm trying to do is to save time for the board and the staff and everybody by saying good. He'll bring you the additional information, and you respond to him in ten days. It gives him 20 days to contract for space, authorized space, to move this equipment and the shed. MR. MANALICH: Yeah. I don't see any problem with that time frame because we thought long and hard about this. As a matter of fact, I don't know, Mr. Queen, that you have anything additional to add. MR. LAFORET: I want to give him the opportunity to give you whatever information he has. MR. MANALICH: Right. And that's fine. We can abide by .0 tha t . MR. LAFORET: I want to give you the opportunity to come to a firm decision of the upper no. If the answer is no, I want to give him the opportunity to contract for space to put this stuff. Now, up to this point I'm not recommending any -- any MS. RAWSON: Is that a motion? MR. LAFORET: Fine. CHAIRMAN ALLEN: Mr. Laforet -- MS. RAWSON: Is that a motion? MR. LAFORET: Yeah. Make the motion for me. MS. RAWSON: Well, you just made it. MR. LAFORET: Oh, I just made it? I'll make a motion. MR. ANDREWS: I second it. MR. LAFORET: I'll make a motion. CHAIRMAN ALLEN: A motion and a second. MS. RAWSON: Good. And Charlie seconded it. MR. QUEEN: First of all -- first of all, this this what you recommended is -- is not quite possible because it entails more than this particular part of it. The -- the -- We would be moving a part of our equipment where a man would have to be coming from one area to the another to complete the job. CHAIRMAN ALLEN: Mr. Queen, excuse me. Okay? The motion is'pretty lenient. Okay? . MR. QUEEN: All right. CHAIRMAN ALLEN: I think you ought to live with it because when you built the shed without a permit -- okay. Let's don't get back into that one. MR. QUEEN: All right. If there's no -- If there's no chance of getting an appeal Defore the board, then I think that -- I don't want to waste yo~~ folks' time anymore about this thing, and we'll go ahead and get it corrected. We're going to do what's right about it, and I may appeal -- maybe I can start from scratch and ~_r~ :.. - Page 27 L--;-.--. . -..-.~--_.~- , ' August 24, 1995 appeal for a zoning change to the proper zoning. MR. ANDREWS: Mr. Queen, I read -- I read a lot of letters here -- I think you write real nice letters -- that you wrote to the chairman of the board, Bettye Matthews. Did she every reply? I didn't get any -- any idea here whether she replied to your letter. MR. QUEEN: Yes, she did. MR. ANDREWS: Did she give you any ideas or suggestions or anything? MR. QUEEN: Well, she just said that they couldn't change the zoning there, and at that time when there's -- I didn't know that -- I didn't know that you had a -- I thought that zoning board controlled the zoning, and I didn't go far enough with it to understand that we had to go above that board to the county commission board to change the zoning. But, again, if you're going to stick with the 30-day or 25-day, whatever it was, grace period, then that's gone. MR. MANALICH: Mr. Laforet, just as a clarification, you've got a motion and second. Please clarify for me. What I understand then is that you wish to proceed to a determination in this case today, and with keeping in mind that if you make a determination that there's a violation, then you would have in mind a structured time frame of ten days for the county attorney to be able to come to a complete final decision on the/appeal and an additional 20 for compliance is what I believe I'v8 heard or at" least for a contract MR. LAFORET: Not necessarily compliance. I realize 20 days to rent land and move that stuff is not very much. MR. MANALICH: What would be done within the 20 -- MR. LAFORET: But to bring in documentation that he has rented space and has made arrangements to move that shed plus the additional trucks or whatever equipment that's under that shed needs protection. Now"if he's made arrangements, come and see us at our next meeting, and'he can explain to us how long this is going to take him, and then we'll decide when the penalty -- how much time we'll give him and the penalties. MS. DEIFIK: Would that include that if in the interim he discovers that he can appeal and he comes back and says, well, I have an appeal pending, then we would consider that also? MR. LAFORET: Yes. Whatever. MR. MANALICH: What I'm not clear is, are we going to be having actual findings today? MR. LAFORET: I want to get action. MS. RAWSON: I don't think he wanted to make findings until next month. MR. LAFORET: I didn't want to make a finding until next month. MR. MANALICH: Okay. - MR. LAFORET: I want to glve him a month. MR. MANALICH: Okay. MR. LAFORET: But I want to give him a restricted month to produce evidence to us that he has taken action, and the evidence I would look at would be he has a rental lease on land and that he has made arrangements with some contractor to move that shed and move that equipment on this land~that he's renting. MR. MANALICH: All right. So basically it will be __ the burden is on Mr. Queen to immediately provide whatever additional ~_r, Page 28 August 24, 1995 information he wants to my office. My office within ten days will render a decision to Mr. Queen as to whether we maintain our present opinion that there is no appeal available. If there --'Obviously he needs to be back here in a month to update the board. If no ~ppeal is, available, he will then need to show evidence of his efforts to move the shed, gauging compliance. At that point you will consider entering findings if appropriate. MR. LAFORET: In accordance with what he agreed at our last meeting. He said, if I was defeated in this, I would move the shed and the equipment to some other location. MS. LOUVIERE: And, Mr. Queen, you still understand that when you come to the board the next time and we go into the finding of facts, we're probably going to order that you have -- I know we will. I know I'm -- I am -- that you're going to have to take down the structure that you built without a permit and that it's non -- non-conforming use. You're going to just have to leave there what was there for 20 years and was considered grandfathered. You -- You need to be aware that that's what I'm going to make my motion. MR. QUEEN: Yeah. Well, that's what I understand. MS. LOUVIERE: Are you looking at me, sir? That's what I'm going to do. MR. QUEEN: That I understand. When I get the final answer from Mr. Cuyler's office, we'll -- we"llproceed with with what we have to do. 0 MR. MANALICH: What I would suggest, Mr. Queen, is this afternoon or tomorrow at the latest, you contact me to provide whatever additional information you want us to consider so that we can act promptly on this within the ten days. MR. QUEEN: I suppose I'll fax you a letter on what we MR. MANALICH: That would be even better. If you can put it all into a written document with all your arguments, that would be best. MR. QUEEN: All right. Let's CHAIRMAN ALLEN: Are we ready hearing? Ready to close the public Mr. Laforet, second by Mr. Andrews. saying aye. Any opposed? None. It carries unanimously. That concludes our cases this morning. We have no new business. We'll-- MR. ANDREWS: Mr. Chairman -- CHAIRMAN ALLEN: Yes, sir, Mr. Andrews. MR. ANDREWS: Could we have a short recess? "CHAIRMAN ALLEN: Certainly. Let's take about ten minutes. (A short break was held.) CHAIRMAN ALLEN: We'll reconvene our -- Since we have no new business, our first old business is Board of County Commissioners versus Elba Development. Mr. Reina. Excuse me, staff. Can we hear from an attorney who's.wearing shorts? MS. DEIFIK: You'~e got nice legs, Lenny. MR. REINA: I apologize, and I didn't do this to try to "_r~ do that. to close the public hearing. We've had All those in favor' a motion by signify by Page 29 August 24, 1995 prejudice anybody. Before I put my obligatory 25 pounds of middle age on; I probably would have looked somewhat persuasive, b~~ this is out of necessity that I look like this today and I -- I hope that you don't take it as any disrespect on my part because it certainly isn't meant to be. CHAIRMAN ALLEN: Pardon me. That was simply in jest. I'm jealous. MR. REINA: I know. I know it was. I thought it was rather smart when I saw the catfish in the park~ng lot, and I did the right thing. I'm here today -- First of all, I want to tell you that I think you're incredibly patient, and I thank you for your time. I know that this is a public service that you -- that you're doing, and I've observed not only this case, but other cases, and I know you put a lot of time and energy into this, and I believe that this is something that you've given a lot of time and energy to, and I appreciate your efforts. Obviously I'm here on behalf of Elba Development Corporation to tell you why I think the deal that has been worked out, and hopefully been recommended to you, is one that you should consider favorably. When we talked about this -- and we spent a lot of time with Ramiro and with Bill going over how we got to this point -- I think we came to a conclusion that the main objective of this whole procedure is to get compliance, and I think it's fair to say that you did get compliance. It was late according to your time table, but the compliance was achieved, and I believe that the product that was obtained was everything that it should have been and maybe a little bit more. So there wasn't any corners cut. It did get -- it did -- The amenities did get constructed, and they are at least as good as was promised, if not better. I think I'm just going to take a second -- because I know that you're busy, and you all probably have other places you want to be -- to just tell you just for a second -- to refresh how we get here for a second about Elba Development. It's been a building development company here in Collier County for over ten years, over 2,000 residential units successfully built. You probably remember from the last time that I was before you that I talked about Southwest Bank going into receivership. There was a $24 million loan to finish this project out. So Elba had to go and find financing elsewhere. They wound up spending a lot of their retained earnings to the extent they could to complete the amenities, and finally there just wasn't anymore. And luckily in April of '93 -- By the way, I guess a better way to put it is, in April of '93 hearings were held by the Code Enforcement Board where Elba shared with the board the status of all negotiations and progress and confirming the availability of financing Cy to move forward with the project as planned. I think they were frank and honest that they had problems, and there wasn't any doubt about that. The board ordered that this -- the amenities be completed within six months. Now, depending on what your recollection of the facts is, I think Mr. Meadvin says that he never felt that that was a sufficient amoun~ of time and really didn't agree with that and argued for more because that's really the key issue. If you would have given him a year, we probably wouldn't be here, but we did -- you -_r. Page 30 -..."...~~_.... .- ~;::'\O.A:I.,""'"'.:'_.....,.. :"-~~ _..~~~- O"'<J~'C"""_ _ !I t:..,.J ..[ _~ J,. - li4....-;l. w;:...-....... August 24, 1995 did decide that six months was a time period that they needed to comply with, and they didn't make it even though the clubhouse was substantially completed in December of '93. The hearing was in April of '93. It was substantially completed in April of '93. So we weren't far off from substantial compliance but -- or substantial completion, but there were problems getting COs because of several reasons. Fire -- There was a fire sprinkler line which required the consent of Southeast Bank and its successor, First Union. We still had a mortgage on the property, and these things just -- Celia may know that they're not always easy to do. And you know better than I do. Maybe they are easier than I've been led to believe that these things are to do. In any event, it took a little longer than what we had hoped. I will say to you that the CO was issued in June of '94. I do -- I do firmly believe that the leveling of the fines, as I said before, was not instrumental in this project being completed, and that's not because these guys were just telling you to -- flaunting to you that they weren't going to be doing what you wanted them to do. It's because I think they really sincerely had assault on all fronts. They were a developer in a period of time in which financing was a problem and everybody was having a problem that was in the development business, and there just is no rational reason why these guys would have wanted to cause this kind of problem for themselves and for you a~a board trying to force them to do somethihgthat they wanted to do a~ that they eventually did do. It was good for their business to do it. It was not good for their business not to do it. They still have some 800 units out there to complete. They're in this for the long run, and the last thing in the world any businessman with this kind of money invested and this kind of time frame invested wants to do is create a public relations problem and a compliance problem and have problems with the: county. It's just stupid business. And these guys may be a lot of things, but they're not stupid, and they didn't go into business to cause problems for the folks out at Embassy Woods, and it caused you a problem, and it caused the county attorney's office a problem. So I really think that they had their hands tied behind their back and are still struggling. And anybody who knows anything about them knows that they are still struggling to make ends meet and probably will be for maybe another year or two; but there __ they -- The least I can say for them, they didn't just fold up and go away. There's a lot of guys with less character that might have done that and done something else and come back with a different entity and be building houses somewhere else. So by way of -- By telling you how we got to this agreement, we spent long and hard talking about what we could do, and I think anybody here that's ever put a deal together knows that it doesn't make any sense to promise to do something you can't do. To get "the other guy -- even when you have a superior bargaining position, to promise something that you want that you know we can't do is really a prescription for failure, and I think in this case we pushed the limits to try to come up with something that was rational, fair. I believe it is a reasonable response to the -- to the problem we have, I think, if you look at this as a compliance problem, not a penalty procedure, not~where you're penalizing people, but saying, our objective was to get compliance, and we got it. And knowing the fact' that to a certain extent, the six months' limitation to complete the .-,,-.. Page 31 '-='-:;.:-~<:.:..::::~~~~~~:~~~-:~-;.:'~,~~~~~;;:~;-~...a'.~f..::...,-=..___~""'i,:",-":"""""",,~~.,..~.,,..---~,,"- August 24, 1995 amenities was one that the board imposed, that was to a certain extent discretionary or arbitrary. It could have been eight m9nths. It could have been twelve months. The fines would have been reduced accordingly. So what I'm saying to you is I think we're dealing with some 90 or $100,000 worth of fines. I forget what the figure is. And we -- the deal that has crafted -- that we brought to you that we think we can live with is about a third of what the fines were. And, again, if you would have changed your time frames that you ordered the compliance to take place in, we may have been 100 percent of what the fines would have been if we had been given more time, or there may have been no fine at all. So taking that into consideration and looking at the amount, we're talking about $20,000 which we have broken down into two ways. One is cash, and the other is amenities. Again, trying to do the most we could do and honestly agree to do so, that we weren't back here with another problem, we structured it so that there was a cash payment sufficient to cover the expenses that the county had involved in this matter plus some -- plus some amenities that we saw as a win-win for everybody, and that's in the way of landscaping on the public right-of-ways. And, you know, at first glance, you say, well, gee, isn't that -- that's kind of real good for you guys. Yes, it is. And'it makes sense for everybody because we do something for the COUn5Y in general, but specifically it does make the units easier to sell: Hopefully it will make the folks that already own there happier, and it does -- it does cost us some money. I think -- and I didn't talk to my client about this, but I think part of the idea is that they're going to give you $10,000 worth of value and show you where that's coming from, but they may have to promise their landscaper -- I don't know this to be a fact, but I imagine that they, -- part of the reason they may be able to get that done is on credit because the landscaper will probably be doing more work there and might be willing to do this in -- as a way of sort of financing the resolution of this. So that's another reason why I think it worked. So, in summary, I think that we -- closure is well advised here. I think we've really put a lot of time and energy into it. I think personally I've done everything I can do to get these guys to come up with a deal that is one that we can take to you that I don't think you need to be embarrassed about at all. I mean, if you look at the amount of the -- the -- the -- the penalty, we're talking about $20,000. I don't know, because I'm not down here all the time, but when the last time is some developer paid 20,000 to you for being late in building some amenities. I think that's probably at least in line with whatever you've done before, probably stiffer. So I would think if you look at it from three or four different ways, it makes sense'. It makes sense to have it over with. I will tell you that I'm not going to be involved in this after this date because it's on appeal, and I'm just back here to argue it because it has some continuity about how we got here, but there's another law firm that's dealing with the appeal, and whether it's got merit or not, I don't know. And, quite honestly, you know, I'm -- I probably feel._~like you do. You're probably sick of hearing about this and want t6'putit behind you and be done with it, and I'm certainly going to accept whatever it is you say here today and_say -_r... Page 32 ~:.o..~.~~___~.. A~ August 24, 1995 I've gIven it my full and total effort, good-faith effort, to try to work a deal out, and I hope that you -- after you think about it and discuss it, think that you can live with this because I -think ~t was well thought out, and I think it makes a lot of sense, and I think it's a win-win for everybody, and I would ask you that you accept it. And I think that, quite honestly, if I were in your shoes and this is the way I look at it, and I'm being honest about this -- I don't think that there's a compromise on the county's part with this deal. I think it's a pretty -- pretty stiff deal really, you know, when you consider how we got here, and I'll be happy to answer any questions that you have. MS. RAWSON: I have one. Isn't part of the settlement that the appeal is going to be dismissed? MR. REINA: Yes. Yes. MS. DEIFIK: Before we go any further, I have a possible conflict of interest that I want to be sure Mr. Reina is advised of. Now, I did study Florida Statute 286 and Florida Statute 112 and found to my surprise the conflict of interest is not defined the way I perceived it to be. The conflict that I perceived is that I previously represented persons purchasing at Embassy Woods, and I spoke with and corresponded with Mr. Meadvin about whether they would proceed to close, and they had purchased preconstruction. I ca."1. see I that someone might say I might have some bias" because I was invo:ved in that two or three years ago. I would be happy to excuse myself. Florida Statutes provide that I may not abstain from voting unless I have a conflict of interest as defined in the statute which says that I stand to make some pecuniary gain. I do not stand to make any pecuniary gain. I'm going to leave that decision to you, Mr. Reina. If you'd like me to excuse myself, I'll be happy to do that right now. MR. REINA: Well, I guess a smart lawyer would ask you, which way are you leaning? Are you leaning MS. DEIFIK: Well, I haven't heard the deliberation, is the smart answer. MR. REINA: Quite honestly, I -- I think it -- you know, I don't -- I think that you're a fair individual, and that's all I want you to do, is to be fair, and I don't -- unless you feel uncomfortable. Then I would say, by all means, if you feel uncomfortable, then that's probably the -- an easy decision, but I don't think you need to abstain. I trust your judgment, and I know that you'll do what's reasonable. I'm sure that as a la\vyer you can separate the issues. That's what we're trained to do, and I trust your judgment and your ability to do that. So I have no problem with you being involved. MS. DEIFIK: All right. Thank you very much. Then I'll remain. . CHAIRMAN ALLEN: Excuse me. Mr. Manalich, you said you wanted to say something. MR. MANALICH: That was the point I wanted to clarify. CHAIRMAN ALLEN: I'm sorry. Excuse me. Mr. Laforet. MR. LAFORET: Thank you. I have several questions, sir. This landscaping on the right-of-way -- as a homeowner -- you are going to put landscapi~ on a right-of-way -- I would object strenuously because I-would have to take care of that landscaping. I' would have to pay for trimming it. I would have to take care of that 0' -_c-. Page 33 ;;",~~"~:'V5R _ "::'5....;..~.c;>'~..!51II: August 24, 1995 landscaping on public right-of-way. I do now, and I'm not crazy about it. I'm not sure the people there would appreciate adding to their burden with selected, trees which they have nothing to say. Now, again, if you're going to pay the landscaping man, I don't see why you can't instead pay that directly to -- what do you want to say -- the deterrent fees. Now -- because if you do not pay them -- If we agreed to this and you do not pay the landscaper and do you it on credit, he can come and take the stuff out which leaves us and the owners nothing. Can you appreciate that point? MR. REINA: Would you like me to respond to that? MR. LAFORET: All right. Now-- CHAIRMAN ALLEN: Excuse us. Mr. Laforet, let Mr. Reina respond, please. MR. REINA: I just haven't thought about that particular issue. It's a good point. I would say to you that generally people view landscaping as something that's positive, and I know that if we put the landscaping on the community areas, the unit owners would be paying for it anyway for sure. If you put it on the county property -- county right-of-ways, I'm not sure how that works. I would defer to Mr. Manalich on that. I would imagine that all the MR. LAFORET: I can tell you how it works. I'm maintaining trees and bushes put on the county property, and I have to maintain them -- ' MR. REINA: Okay. MR. LAFORET: -- the same as I have to cut the grass on the county property in front of my house, the right-of-way. MR. REINA: Well, I guess -- I guess our thinking, just so you know where we came from -- MR. LAFORET: Small point. 10,000 bucks. I just wanted to make the point. The second point I have is I'm not in agreement on a $2,000 fee that'you have negotiated. How did you arrive at that cost figure? MR. BOLGAR: That amount, $2,300, was dete~ined back MR. LAFORET: Is that straight salary, sir? MR. BOLGAR: It's usually devised by other matters we do at about $15 an hour which is -- MR. LAFORET: How about overhead? Insurance? Retirement? MR. BOLGAR: MR. LAFORET: MR. BOLGAR: Most of this work MR. LAFORET: How about the insurance you pay, the office space you pay? MR. BOLGAR: Most of this work is done by secretarial staft~ so the wages are considerably less than the $15. MR. LAFORET: Well, if that's what you're happy with, it's immaterial to me, but I would ask counsel and I'm base -- I'm not an attorney, but I'm basing myself as an arbitrator for many years that unless you hired specific people to do this Elba construction work, unless they were devoted 100 percent of the time to this construction work, the~ you would -- and you could discharge him this Elba work is done: then you cannot charge that time because would be paying these people anyway whether they were doing this --;.:, That's included. The $15 -- $15 an hour? -- is our salaries and overhead. Right. after you job Page 34 August 24, 1995 or not. MS. LOUVIERE: Could I ask a question? I understand. What is the total that.they owe us? MR. MANALICH: 60,880. MS. LOUVIERE: $60,880. MR. LAFORET: Let me finish my comments, and then somebody else can have'it. I'm not going to do all the trouble. All I ask, sir, is that we consider this case very carefully. You didn't tell me anything today that you didn't tell me when we were -- met in the -- in the auditorium there, the meeting house. I'm not in agreement with you that it's such a great meeting house. We had people in there standing around. People that lived there, they were standing there against the fire regulations. That place is not big enough for the number of people. So that it's a moot point whether I disagree with you or not, but I'm$.trying to base -- we did the very best judgment, and be assured that we considered every aspect of the evidence presented to us. We gave you every consideration. And, as a matter of fact, we seen -- we were not in 100 percent agreement that the $60,000 was enough money. MR. REINA: That was the maximum amount that you were allowed to -- to impose. You can ask your county attorney. You did not give these folks any slack at all. MR. LAFORET: I'm not going to debate it with you. I'm just saying we established the 60,000 as a just and fair amount, and nothing I have heard today has caused me to change my opinion. I thank you now. MR. BOLGAR: Mr. Chairman, I would like to amend those figures that I gave as $15 an hour. We have documentation here that shows that the hourly rate was assessed at $20.70 an hour for staff, 25.50 for supervisors an hour, and 35 for above supervisors' positions in this matter. CHAIRMAN ALLEN: Thank you, sir. So noted. MR. ANDREWS: How about the code enforcement? We spend hours. MS. RAWSON: We CHAIRMAN ALLEN: That's not included in our -- MR. ANDREWS: I know. MS. RAWSON: The statute provides that we are not paid. MR. ANDREWS: Oh, really? MS. RAWSON: Yes. MR. ANDREWS: I'm glad you let me know. This is my seventh year, and my salary's doubled every year. CHAIRMAN ALLEN: Miss Louviere. MS. LOUVIERE: I guess I -- I -- I agree with Mr. Reina, that I would love to see this come to a conclusion. This has been ;Qngoing for a long time. The biggest concern that I see with this -and I have a copy of your letter, your settlement letter, your proposed settlement letter -- is I have -- I have a few things that I'm a~~ittle bit uncomfortable with. First, you owe six -- or, rather, your client owes $60,880, and so we're really only receiving out of those fines -- you propose to pay us 2,000 plus an additional 20 in cash and amenities for a total of 22; is that correct? MR. MANALICH: It should be 20,000 total. MS. LOUVIERE: $20,000, period. Okay. So that -- As ~' Page 35 .. ~ __ ~~ '" _ - __ '._......__ "7..'"',.,."'....,.."... ~- ,...... ';":,U........:,'. ____~,-~,__,...,.~",.......,... ."'_~.... '. ...... ....--" _,',-,"'-"""..: .' _.....-. August 24, 1995 you can see, that's still $40,880 that are out there. As far as~ landscaping goes, I think it's wonderful that you want to landscape the right-of-way. That's great. I love to see beautiful-landscaping. $10,000 for landscaping, that doesn't buy very much. I'm working on a project right now that's $7,000 of landscaping. You're looking at a few palm trees. Then again, we had her before. We're looking at maintenance. We're looking at the fact that if you don't pay the person, it gets pulled out. I would like to see your settlement be a little bit higher than $20,000. I think that nobody wants to go to litigation on this. It would be silly on your part and on the county's part to have to go through that exercise, but I think that we went from 60 to 20. That's a big difference. I mean, we're not even meeting in the middle here. And maybe you can come up with other ways of paying the landscaping, and on that one I'm open to the board. Maybe someone here can have some ideas. s<< MR. ANDREWS: I want to talk to our -- I want to hear from our attorney a little further. I -- I don't -- I don't know how they arrived at that -- at that -- at that figure, and it's an ambiguous figure anyway. But after our experience -- we've had lot -- you know, this isn't the first case we've had with this developer, and this seems to be his procedure, that he milks the thing long distance as long as he -- as l0ng as he can and -- and he had several chances. I'll have to admit, thev came in and talked to us about various things and so forth but always~wanted something in return, and we tried to comply and -- and -- and I wasn't just kidding, but the board spent a hell of a lot of hours on this thing. That's seven people round trip several times and a lot of hours, which is fine. That's what we're here for. Compliance is the name of the game, not bucks. But in good faith, I don't understand -- why is it stretched out. Even if -- if -- if we accept your proposition or whatever -- I guess you made the proposition -- why it was stretched out, and I would be a little more comfortable for the $20,000 settlement if we got a check for it. Now, the company is paying plenty for lawyers and plenty to go to court. It's going to cost them a lot more than that -- than the 20,000 bucks, and then it would be out of our hair and out of your hair, and I'd like to think -- I'd like to have you think about that, and I'd like to hear from our attorney. MR. MANALICH: In response, first, Mr. Andrews, I'd like for staff to have a chance to comment if they have anything on the agreement, and then I'll be happy to add whatever I can after that. MR. BOLGAR: Mr. Chairman, my name is Bill Bolgar. I'm the acting director for Collier County Code Enforcement, and the key word here is "acting." I have this job for seven more days, and hallelujah. Many of the things that I was going to address right here ~~r. Reina touched on. So I -- I -- I will just touch on the highest ~points in this matter that led us to arrive at -- at this figure. Some of the circumstances are this, that we certainly met our main objectLve. Our job is compliance and, ~as a few of the board members have said, is not punishment. So that's not the purpose of this, to punish Elba. We -- The Embassy Woods now has a beautiful facility. They seem to be happy wi th it. I' m,.:sorry that their people are not here. It's probably for two reasons, obviously the weather, and a lot of their residents are -- are probably out of town, and I'm sure it ~' Page 36 - ---",:_,~~,':~:_::~?;~-"~~";-~-~'~:i~~'~~~~'::~~~?~;;-",:,--,"-,..~; '-~.;j,~;:::~;.~~ . August 24, 1995 would have been good to hear from them. The other matter is, is that obviously the county would like to take a lot of credit for bringing this to a conclusion-and getting compliance. Well, there's credit that has to be given to the county, to the board, the people from Embassy Woods, but I think a little bit of credit has to be given to Elba also in this matter. As you know, this'matter is under appeal right now, and we've had meetings with their attorneys concerning this, and they've made some strong arguments. Obviously they didn't share all their ammunition with us, being good attorneys, but let's take into consideration several things. If their appeal is upheld, this matter comes back, and we go through this thing again. Okay. We have a chance now to put this to rest. The other thing I would like to address is, let's assume for purposes of this conversation that their appeal is denied and that theY're~<<made to pay the entire 60,000-plus dollars, 60,880. Staff, with the assistance of the county attorney's office, has done some research into assets because no doubt that this thing, if the full amount is upheld, is going to go to lien. What we have found is $300,000 in assets for this corporation. The other important thing we found is there's approximately $700,000 worth of taxes, judgments, and liens against that $300,000. Now, very simple mathematics tells you we're going to stand in line, and I suppose there's not going to be much left for us to recover. She county has expenses here, and I realize their first duty is to serve the taxpayers, the citizens, and the voters, and I think we've done that. We have some money that the county has cost -- have some monies that we have -- have cost us to pursue this matter. We have a chance to recover that, and I would like to see that. The -- The reduction of fines' that we propose, it really benefits both parties. The $10,000 in cash obviously goes to the county, and one of the things that we wanted to work out, we were hoping that we would have something that we could give back to S~assy Woods, and obviously I did not want to put the amenities -- in this case, the trees, the shrubs -- on Embassy Woods' proper -- property for fear of being criticized that we went after penalties to benefit a certain portion of the community directly. Our suggestion was the right-of-way. Many golf courses in our area -- and I've worked on golf courses -- do have property -- do have vegetation in the right-of-way, and the times I've worked at the courses I've worked, they've taken care of them because they do not want their front end of their exclusive country clubs looking shabby because possibly our county doesn't get around there enough times to do proper upkeep, and I'm certain that's going to be the case here. The $10,000 -- The $20,000 is approximately 30 percent of the total fine. I really think at this point I would -- myself what I'd take under consideration -- there's an old saying. A bird in :the hand is worth two in the bush. And I really think it's a decision you have to make of how much more than $20,000 can you collect in this matte~ If I thought that we could collect the entire amount, I would not be-standing up here now. It would be very simple and very easy. But I don't think that's the case. I will close by saying -- and I don't want to belabor the point we've met our goals. We've got compliance. I think everybody is better off. I think we have a chance of putting this ~ Page 37 ~, "'-"',"7"-.~.,... ~-,~",('""~':,-,.~_r"_.c,..__~....__;;:..:;';'~~~'~~W"IM~-"lIM: ~~ T~T;fi:, to .11"_ 1141\& ..11." August 24, 1995 matter to rest; and, therefore, staff recommends the $20,000 fine the way it was presented to the board. MR. MANALICH: Mr. Chairman, if I could add then to that, as Mr. Andrews had requested, basically as Mr. Reina is aware, I have met with each of you individually to discuss with you this proposed settlement. More importantly, because we now have litigation involving this case, appellate litigation, I have met to discuss with you some of the points that I have observed and that have been brought to my attention by the other side regarding possible points on appeal. I think I've told you that there are some issues that they have raised regarding the procedure followed in regard to imposing the fines that may have some substance. I'm not saying that we would not prevail, but I'm simply saying that, as we discussed, we will have to deal with them and let the court decide on those. Now, I would point out that 9asically the county attorney's position in this was -~has always been to be counsel to the board. Staff has obviously been prosecuting the case. We from the legal perspective believe that this agreement if -- it's purely up to you. This is one of those business-type decisions that you need to decide if it makes good sense or not for the board. From the legal perspective, we think it's doable. There's no prohibition of being done. And, in fact, we think that with regard to the settlement of the litigation, there may be some advantages to doing it, and for that reason we feel we can join staff~in making the recommendation. Now, that does not mean, however, that reasonable minds cannot differ when it comes to what is a good settlement of pending litigation. Quite frankly, many times reasonable minds will differ on that, and that's why you will have to make this decision. But the reasons that the county attorney's office believes it can join the recommendation are the following. First of all, under this proposal the appellate litigation would be resolved. They would dismiss with prejudice their claim, and there would not be any more protracted expenditure of time and effort and money from either side on this. If we were to not prevail on the appellate litigation, what I believe would happen __ obviously the court would determine, but the most likely scenario would be that they would require a rehearing on the amount of the fines. If we were to prevail, then obviously we would be able to pursue the entire $60,880. Now, in this case I would note, as Mr. Bolgar has, that from our viewpoint compliance was achieved which is absolutely the most important point. Basically the proposal amounts to about a third of the total fines, and they're always is -- With the unknowns of litigation, there's always something to be said about a bird in the hand is worth more in the bush. We have to obviously analyze the cost benefits, you know, what it's going to cost us to litigate this versus qetting closure on this immediately and laying aside all appellate :issues. Significant here is the fact that with the able assistance of certified legal assistant Ernestine Cousineau, we have done a property searc~ and basically the only thing we could find that Elba Development Corporation owns as far as real property of significance within Collier County was a condominium unit on Gulf Shore Boulevard with an assessed value of approximately 323,000. And when we analyzed further and found that there were judgments, taxes, liens, et cetera, in the amount of approximately 836,000, one thing you have to ~' Page 38 -~~,---:' ~~~'~-_~_-~-.~:,~:-::::-,,_':,:..;:.~~:";;'~_O:'~~~__~ _:.0., ,.... .:..-;*"'"~-t:;-~~.,.;>-.c,_~~~'!'PC---- August 24, 1995 obviously stop and say is, well, if we go through the litigation"and if we prevail, what will we have left to pursue at that time. Will we have anything to grab onto. I will tell you that that search ~id not include other counties. I have not -- I am not in possession of any type of financial statement from their corporation; however, you know, my understanding and what has been represented to me is that this corporation is cash poor. If I can just take another moment of your time, obviously you need to be aware, as has been pointed out to me and as Mr. Bolgar commented, there was a lot of emotion in this case obviously. The residents are not here, and it may be, as Mr. Bolgar said, because of the weather or because it's not the season where they reside down here. I'm certain obviously as -- if everything holds true from the previous hearing, there's probably significant emotion attached to this case. However, ~n the law process, we many times have to detach ourselves from that'emotion and simply try to make a legal business decision based on what is going to best serve the purpose of the board, and I think the proposal that's been made can achieve partially or in good part that purpose. That is, compliance is achieved. Litigation is concluded. No more time and expense on that. And there is a certain -- Within an unkno~m world, there is some degree of certainty that we may get a third of our fines. I cannot tell you that to be the case if we continue through the litigation and try to collect if, those assets are mortgaged or otherwise. I can tell you that I have a $2,000 check here in my possession for the cost which Elba Development has told me we may cash immediately if you approve this proposal. Obviously I'm happy to answer any further q~estions that you have. As Mr. Reina commented in his original comments, when you have litigation, when you have settlements of li~igation, many times there are not perfect answers. If there were, then it probably isn't doable for one side or the other. This has been the product of discussions between Mr. Reina, myself, Mr. Bolga~, all with the purpose of bringing this back to you for your consideration. Obviously, you know, you've heard from both staff and myself that we recommend that you consider accepting this; however, your other alternative is very obviously to not accept it. Either modify it or reject it completely, and we'll go the litigation route. MR. LAFORET: Counsel, I have a question. It has been suggested that the corporation, Elba Development, is cash poor. Are you suggesting that if they were to pursue legal action against us, their attorneys would be working pro bono? MR. MANALICH: Well, obviously that's a good question. I don't know what their arrangements are. MR. LAFORET: I thought that was a hell of a good ~question . " MR. MANALICH: I can have Mr. Reina -- I mean, obviously I'm not in a position to address that. He can make whatever comment he de~s appropriate. MR. REINA: I'll be happy to share with you my past due account that they have with me. They are horrible at paying their bills, and that includes me and they -- MS. DEIFIK: But will the Fort Lauderdale appellate firm work for free? ~ Page 39 August 24, 1995 MR. REINA: You know, all I can tell you is that my experiences -- These guys are not rolling in the money. If they are, I can't figure out how.to get them to pay what they're supposed to pay on a monthly basis on time. MR. LAFORET: They're not going to have any money at all after this pending court case is heard. MR. REINA: Well, 'I guess the -- you know, collection is not easy, and I think that's the point that the county attorney is making, and at least a superficial review of this company indicates that it's going to be a real nightmare, even if -- If we can't agree on what we're going to do, if you have to go to the strong arm, we're going to make you do what we want you to do and we're going to collect on it, it's going to be very difficult to collect and -- because the assets that they're aware of and that I'm aware of is the condominium that three times is owed on it wh~t it's worth. So this is a way of getting some compliance from these fellows, and I believe if -- I think it was crafted in such that if they don't do what they're supposed to do, you go back to -- we go back to the $60,000, and they get a credit for what they've paid. MR. MANALICH: That's correct. MR. REINA: So it's sort of like a -- I think it's a win-win situation and -- MR. LAFOR~: All right. Thank you, counsel. MR. REINA: -- and I would point out one other thing. This company has paid -- I think the figures they gave me -- it's something like 500 or $800,000 over the years in permitting fees and other fees to the county. They have 800-some-odd units out there that they're going to continue to build hopefully because it's to everyone's advantage for that project to be finished. I don't know what the permitting fees per unit is, but I imagine that even if -- MS. DEIFIK: Where is that land? Why is it not showing up in your asset search? ' I was curious about that before because you had said they have 800 additional units to build. MR. REINA: Probably -- probably a different corporation. CHAIRMAN ALLEN: It's been moved laterally. MS. LOUVIERE: Did you say -- Did you say a different corporation? Could you say that again, please? MR. REINA: I don't know. I'm not privy to it, but I assume that it's -- if it was in Elba's name, the county's search would have showed that it was in Elba's name, and it's a legal reality that you have to deal with that legal ownership is what counts, and it may be we find -- I'm sure the attorney's office MR. LAFORET: But do you know when that was transferred from Elba's name? ~. MR. REINA: Well, I think we're getting sidetracked. "The point here is not to become sleuths to figure out, you know, what the financial history of the company is necessarily. That's sort of a side ~sue. It's important, but I think we're putting the cart before the horse, so to speak. I think we've got something that works, and what I was trying to point out to you is that they're going to build these other units. And even at a nominal amount of money to the county, that's significant income that comes into the county, and I'm trying to help you solve a problem. If I could write the check, if ~ Page 40 L-~ August 24, 1995 had the money, I would do it. If I could figure out how to make~'these guys write a check for $60,000, I promise you that woulg be the thing to do. They would never have been in this position if they had would have been able to get out of it, I think, because it just makes sense to solve it. MR. LAFORET: I have one other question you can help me on. It's my understanding that our decision also included a 75-year prohibition of obtaining building permits by the president. I see no mention of that in this paper I have -- this document that I have here, and I'm wondering why -- The thought occurs to me, if this is to be a settlement, does it include that prohibition of him getting a license, or does it not? MR. REINA: I've got to tell you I really have no -- MR. LAFORET: You were at the meeting, sir. MR. REINA: I have no recoll~~tion of that. Do you, Ramiro? MR. MANALICH: Quite frankly, I do not either. I mean, I could be wrong, but I do not recollect that. It's not in the order. MR. LAFORET: We said forever. For the man's lifetime he could not get a license, and you, counselor, said, you can't do that. You have to establish a period of time. We asked how old the ,- ~. man was, and we were told about 50. CHAIRMAN ALLEN: Excuse me, Mr. Laforet. Hedoesn't have a license. MR. LAFORET: Pardon? CHAIRMAN ALLEN: He doesn't have a license. There is no licensing for a developer. That's the whole issue. We're going off on a tangent. There is no licensing for a developer. As long as you are a general contractor -- . MR. LAFORET: No. No. The owner of the land. MS. RAWSON: He doesn't have a license. CHAIRMAN ALLEN: The owner of the land doesn't have to have a license to do anything, and so that's our problem. You can't -- You can't ask somebody to have a license or revoke a license that they don't need to have. MR. MANALICH: We could certainly -- MR. LAFORET: What about building permits? CHAIRMAN ALLEN: The general contractor got the building permit, not the developer. MR. MANALICH: We could certainly, Mr. Laforet, review the transcript, but, quite frankly, and in all honesty, at this point in time, I don't recall that, but I could be wrong. MR. LAFORET: Well, conceding that you're correct, then we were wrong in making that judgment because we changed it from a lifetime to 75 years. We added 50 and 75 and figured he's not going ~~o live that long. : MR. MANALICH: To my knowledge, it's not part of any decision of the board because it's not in the order, to my knowledge. And, ~u know, I -- I'd have to go back and review the transcript. I mean, if I overlooked that and -- but I don't recall it. And, you know, from -- Did this occur at the Embassy Woods meeting? MR. LAFORET: Yes, sir. MR. MANALICH: Okay. Well, I could check -_ MR. LAFORET: At the time we -- at the time we asked for ~ Page 41 August 24, 1995 I think it was $250,000, and you said we could only get 60. MR. MANALICH: We could check the transcript. . MS. LOUVIERE: I was there, and I don't recall any -- any -- any statement to that effect, but we could check on it. MR. MANALICH: And as things now stand, it's not part of this at this point. MR. REINA: One last word, and then I'm going to sit down and be quiet because you guys have been awfully patient. vle're running into the lunch hour. Everybody wants to go home. I urge you not to modify it because you know what happens when you change the deal. Then we go back to this whole thing again, trying to get these guys at the table with the county attorney's office. Even if ie's a small, teeny, tiny change, it requires some negotiations, talks, redoing this. We've got something we can live with. I think it's I think it's a win-win. ~~ CHAIRMAN ALLEN: Mr. Reina, I would like to make a comment. Being all straightforward about this, that was -- our =irst meeting was when Elba started here two or three years ago. I do~'t like the deal. I don't like the terms. Okay. But I'm also quiee day -- on a day-to-day basis involved with the subcontractors and suppliers that are way ahead of us as a county. I've,got subcontractors and suppliers, painters that had the liens on the Admiralty Point condo that are way superior to our lien. I'm no~ As bad as I dislike it, the terms, the deal or the -- and the -- and the -- and the conditions, I think we've probably got the best case scenario we're ever going to get because all the other people t~at have sued the principals of Elba Development, okay, be it Deauv~~le Lakes or whatever, they spent 40s, 50s of thousand dollars of at~orney fees, and they have absolutely zero to show for it because our =~rm personally finished up Deauville Lake Country Club which is exac~ly what we're talking about here. A similar scenario. They all sa~d, we don't like it. Let's go to court. They spent the money with attorneys and received no compensation whatsoever. So I -- MR. MANALICH: And, Mr. Chairman, on that point, just to be clear, since obviously as Mr. Bolgar and you have both mentio~ed, you know, availability of assets to pursue is an issue. You kncN, like I said earlier, the only thing that our property search disclosed in Collier County of significant value was that condominium unit. You know what the status is on that. We also had, I believe, some -- some isolated maintenance areas -- MS. LOUVIERE: Easements. MR. MANALICH: -- that have been reserved -- MS. LOUVIERE: Right. I think you had mentioned easements. MR. MANALICH: -- to the developer, but those are of ;minimal value which we did not think was worth pursuing. Now, again, "you know, I am not endorsing in any way the representation to me that this corporation is cash poor. I cannot tell you today that I know one w~ or another on that. I can only tell you the representation has been conveyed to me. I want you to be fully informed on that. I can tell you what the results of my property search are, and I would mention to you that that is limi ted,.:to Collier County. You know, I could have gone the needle and the haystack and started spending our resources, going to this county or that one, but that requires ~ Page 42 __r''''_'.~__'''-".'_'_',,,~,,,,,,-,__,,~,,,-,,-,_-_,,,,,, ~"-<:1~'''-''-'''--':'- ..,.~.::-:-..,... i:-.-,._-"";I,!,"-'f.;'..,,.. .,..:-.,..~..~c...,;.:...-';;:;o;.":;~~~"-:--"""'-'-_C~~-A'''''''''~~ -..."...__....."l>~..".".....-_.'....--.-.-._.- -...-, August 24, 1995 expenditure for every one we do and I -- you know, I have no way"'of knowing if it's out there. CHAIRMAN ALLEN: Well, Mr. Reina made a good point:' Okay. These people are not dumb, and they're not stupid. Okay. So if they -- Knowing this was coming and knowing this bomb was out there, any assets they had moved laterally. We all know that's happened. That's the name of Elba Development and the principals. That's a historic thing we've all seen. I think you've done an excellent job getting this far. MS. RAWSON: I'd like to say one thing -- and my other hat is a certified mediator -- that when you mediate rather than litigate, nobody is usually ever really happy, and nobody thinks it's a good deal, and this is really not a good deal. However, it is a deal, and we didn't sit at the table with these guys for days to come to this deal, and it is always better to come to a deal, in my opinion as a mediator, than it is to litigate when you don't know what the result is going to be, but one result you know is always sure, that you're going to spend a lot of money in attorney's fees and time. So even though it's not the best deal, and even though he might have been a little smarter than we were in being sure to protect his assets so we couldn't get anything, it is a deal, and so I -- I can vote for it. MR. MCCORMICK: I could give my comments also for the board's benefit and my opinion. I don't know if this is the best solution that we had hoped for. "I'm sure it's not. And we all agree that we don't know if this is the best they can do, the best they can offer, but I respect staff's evaluation and their hard work and their presenting this as an acceptable solution, the county attorney and the staff, and I'm willing to -- to accept the solution, to accept and agree as has also been conveyed by' the other board members that this is a deal, and we can put it behind us, and we can go on, and I'm still open to hearing other board members' comments on the matter. MR. ANDREWS: Well, you know, I -- I agree with that part. My -- the thing that really bothers me -- and, of course, as I say, I know about this company. The fact -- the fact that -- The name of our game is compliance. That's what we want. We don't want any money. We want compliance. And this thing has been going on so long. It's again publicized and -- and when this goes in the paper that we settle the $60,000 deal for 20, that is -- that is going to set a precedent. We're going to be swamped with these kind of deals. The fact that there's no -- there's no property actually that we can lien that's worthwhile, I agree, this is -- this is probably the best deal we can possibly make, but I would like to -- and like you say, change cause a lot of problems. I would like to see it finished right here and there and -- and not have another one we're going to have to worry about, probably have to take back the trees and stuff. I would like ~~o have this settled, even if we took $5,000 less, clean it up, and ~get it out of our hair. MS. LOUVIERE: So what you're saying is more cash? MR. ANDREWS: Right. Now, this -- I mean -- MS. LOUVIERE: More cash instead of landscaping? MR. ANDREWS: Yeah. MS. DEIFIK: I -- I have a -- q question or two. MR. ANDREWS: I won't say anymore. This is -- This is the way I feel. ~ Page 43 -----" .--- -" _-::. '_":'-';.:~~"I:~~:'~~*~~~-~-'-:,;::,::;::_~::'-~~~?i+-~":';':'::~~~~~~~'~~...._o-.,_ August 24, 1995 MS. DEIFIK: I was concerned about the points that Mr. Laforet raised about who will maintain the landscaping. I understand the point that Mr. Bolgar made that it might be in the interest of the homeowners association to maintain it, but we need to recognize we're dealing with two different entities. The homeowners association that controls the property now is not Elba Development. We cannot force them to maintain it. They may very well choose to call the county and say come out here and maintain this. We don't own it. I don't know if Mr. Reina has any response to that. The concern that I have -- and I share everyone else's desire to put this behind us, and I fully understand that compliance is our objective, not punishment. But as the other board member just raised, if we set a precedent that we're not really serious, that's problematic and -- and I have a concern that we don't have enough information on which to base a de~jsion. When I go to the bargaining table in mediation or elsewhere, I have a complete set of facts, perhaps a complete set of financials from the other party, a complete property search. I understand Mr. Manalich's point that he can't do a property search in each of the 69 counties, but if we had information from Elba, we would know what counties they purport to own property in. I'd also like to know from the county attorney's, office when the transfer of 'these other properties took place. I'm not an expert in that -- thatorea, but I think that there's something about a one-year period within which such transfers might be examined or attacked. And, again, this is not to say that I want to blow this deal off. I'm very interested in getting it done, but I'd like to get it done with complete information. MR. REINA: Can I make a comment about that? And I'm not sure. I'm guessing. But I think that a -- basically a 20,000 -- collecting a $20,000 fine is probably unusual, isn't it? I mean, do you usually get those kinds of fines? MS. DEIFIK: But werre not collecting 20,000. MR. REINA: Well, yeah. MS. LOUVIERE: We're collecting 10,000. MR. REINA: Well, no. You're getting $20,000 worth of value. That's assured because we're going to have to show you what the value is regardless of what we have to pay for it. If we can get a better deal, that's part of what makes this work, but the value is supposed to be there; otherwise, we're not being honest and not living up to our agreement. I guess -- Here's what I'm trying to figure out. I think we're hung up on how much we're getting, and really to get hung up on that, you have to say, did we -- do we have a right to get that, or how the heck do we get to that number. Remember, there was the maximum fine available, so there's been no slack given there, and lots ~~f times -- I don't know what your job is and how you do it day to "day, but I imagine sometimes you don't always impose the maximum fine. In this case, you could imagine, you'd just say, okay, we're going to give YGu halfway. We would be settling the thing for almost full value. So there's a lot of discretion that goes into this and -- and I think that you're not giving something away. You're -- You're very smartly looking at the fact that you can't probably collect anything, and any compliance that you get is a smart move because you're winding up today with the 2,000 that it cost you out of pocket. If you don'~ Page 44 ~""""""~i:l.Ii'I.,.1iM'" ~ _.~ '. .- August 24, 1995 get any further than that, you've at least got your out-of-pocket expenses plus these guys are start -- supposed to start paying on the other -- the rest of the 10,000 plus you get some landscaping.-. If they fail to live up with the deal, you go back to your 60, and you can go do whatever you want. In the meanwhile, we've dismissed our appeal with prejudice. So we're putting ~- we're putting value on the table here, and I don't think -- I really think you should be looking Here's how I think you should look at it. It's a real smart deal, and you guys are doing a dang good job of making us pay 20,000 bucks for something that -- and if you look around at your past history, what you do in order to be fair and say, what do we do in similar circumstances, I bet you haven't stuck anybody any worse than this and based on the fact you're not going to collect anything vol -- unless it's voluntarily. I think it's a~~- I think it's a great deal. I really do. I think it's a smart deal. MS. LOUVIERE: I think -- I think is that Elba agrees to withdraw its appeal in this case with prejudice, but then Collie~ County also agrees to withdraw all of its actions in this case with prejudice. MR. REINA: No. But what that means is we'll be stuck -- if we don't live up -- I have to lodk~at the deal, Ramiro. MR. MANALICH: The lien -- The lien eP Admi~alty Point would remain under the express terms until they pay the full value of 20,000. Now, the other thing is, is that for some reason they do not comply with the entirety of the deal, we are then able to reinstitute our collection efforts of the whole $60,000 fine minus whatever you've contributed. MR. REINA: Whatever we've given. MS. LOUVIERE: I'll tell you. This -- this -- I think I think that, you know, you guys got it all tied up nice and neat. Maybe it's true. Maybe it's not. I don't know. I don't have the time to go find out. Okay? That's just me. Staff -- we may di~ect them. That's -- There's other people here that will make that decision. This deal, it's -- you're getting off easy. Okay? You owe us $60,000. You're coming in with 20. MR. REINA: Not me now. I mean, I'm -- MS. LOUVIERE: I'm sorry. MR. REINA: That's okay. I don't want you to get mad at me. MS. LOUVIERE: The person -- the person that you're representing -- MR. REINA: Right. MS. LOUVIERE: -- Elba. We're really getting $10,000 cash. Okay? I know a bird in the hand is worth two in the bush, ;whatever. The point is, is the rest is going to be landscaping, and ~you may not be able to pay the landscaper, and that may get pulled up. MR. REINA: I don't think they can pull it out once they'~ planted. I -- I -- I don't think landscapers can __ MS. LOUVIERE: They can do that. CHAIRMAN ALLEN: Oh, yeah. MS. LOUVIERE: Oh yeah. MR. REINA: Okay. MS. LOUVIERE: I've seen it done. ~ ' Page 45 '.~>:~i-~~-..-;...;~.~...<~'!'"":-~~p;.~~~~~"__~li. August 24, 1995 MR. REINA: Okay. Sorry. MR. MANALICH: Just a couple of points I'd like to ,add. MS. LOUVIERE: I'd like to see more cash, cash. MR. LAFORET: What are you getting red about? MR. MANALICH: A couple of points I'd like to add is things mentioned by the board members. With regard to Mr. Andrews' comment about the precedent and the publicity of this precedent, well, obviously, you know, this is an open public meeting, and, you know, that's an expected result of whatever we do here, and that's perfectly fine under the Sunshine Law. I would mention, however, though, that I don't quite attach to it as much significance as you would, Mr. Andrews, only because the statute makes clear that in any case a respondent can come in and ask for a reduction of fine. It is up to you obviously to either reject that, approve it, or modify it, you know, whatever they come in with.~.And to me, what you do in this case, yes, it will be known by other respondents, but I don't believe it binds you in the sense that you must do the same fractional reduction in other cases you do here. You have to look at all the facts of each one. The second thing was in regard to Miss Deifik. I do want to make it clear that she points out some things,here that, you know, I do not have complete answers for, and those are good points, very astute on her part in observing these. You know, if you will recall the history of this case, the board, because it wanted to achieve compliance, worked very hard to not harm the association or the residents and to the extent that it even risked -- because we had a meeting, and we discussed it, and we decided to unrecord some of the documents we had recorded because we were told that the financing was in peril, and that if we kept the recordation, there was a cloud on the title. The finances were going to be in peril. The residents wouldn't get what they wanted. The board took that risk, and the only thing I can tell you -- I have not scoured this to the final degree. The only thing I can tell you is that when I in November, December of last year issued the order imposing the fine of the full amount -- at that time, it ca~e to my attention that the description of property owned by Elba that had been used throughout the case was no longer correct, and the only thing we were able to find was the condominium. Now, I can't sit here and tell you, you know, how, why, the circumstances of how all that excha~ge or transfers took place. You know, you can impute whatever motives you want, good or bad. I'm not prepared to inform you on that. That--- That's just the facts. You know, we had at one time in this case discussed the possibility that if, in fact, there was an individual developer that was the culprit here of this problem and -- and many others, whether ~~here could be what is known as piercing the corporate veil and "pursuing personal liability, and certainly that could be attempted. I mean, it always could be attempted, but I foresee a difficult road and a lengfrhy road to go, and, you know, the outcome is doubtful. It's not easy to do, and we've discussed that before. So basically, you know, within the limitations of what Ms. Deifik has observed, you know, we think we can recommend it to you as a matter of achieving closure on the litigation in the matter, but , I just want you to understand that she has a~tutely pointed out some~ o ,- . Page 46 August 24, 1995 things that I do not have complete answers for. MS. RAWSON: I'd like to say since I think I proba~ly -- Mr. Andrews and I have.been here since the very beginning of this whole thing. We were very lenient, I think, and we were very careful not to record any land so as to adversely affect the sale of units because we wanted those units sold so they would have monies so they could achieve compliance. So probably, you know, we helped them be able to transfer some of that ourselves. MS. DEIFIK: Can I ask a question of Mr. Reina? MR. ANDREWS: You're right. You're right. MS. DEIFIK: At the -- at the beginning, you made the comment -- and this is what raised the thought in my mind about the 800 units when you first made your presentation, that they still have 800 units to complete, and the landscaping along the right-of-way will assist them in -- or will make th~,remaining units easier to sell. I wrote it down when you said it. How -- And you made the additional point that because they have these 800 units to complete and sell, this will result in more permitting fees to the county. I think there's really a two-part question. How do you reconcile using this -- this landscaping to assist in selling these units with the offer that's on the table, number one; and number two, what kind of permitting fees do you think would be generated for the county out of these additional developments? MR. REINA: Quite honestly,~I'm over my head on what the permitting fees are. I don't know if anybody else has any idea, but I know that there's got to be -- CHAIRMAN ALLEN: 6,500 a house. MS. DEIFIK: 6,500 a house? That's a lot of money. MR. REINA: It's a lot of money and that's -- that's going to be -- MS. DEIFIK: Same for houses and condos? CHAIRMAN ALLEN: Uh~huh. MR. REINA: So you see what -- here -- That's the reason why I say I think this is a win-win, because these guys need to complete the project. The corporate structure, I don't know how they got to where they are. I didn't do any of that work for them. As far as whether they hid any assets or moved assets around because you maybe were nice to them, I doubt that's the case. I'm sure it was set up so that -- you -- you -- you take -- As a good lawyer, you take these things into consideration for your client. You make sure that the liability is limited. That's the whole purpose of corporations and doing business so that -- so that you don't run into the kinds of problems that you would if you were foolish. So I think that was all taken care of way in advance and has nothing to do with trying to sneak around the county. It's just prudent business. ~', And as far as the permits, it's a bunch of money. I'd "like to see these guys get on their feet and be successful and be __ and be something that's positive for us instead of a problem, and this is th~~last thing we have to wrap up. They are in compliance. So it's not like it's -- it's a thorn in our side because there's some ugly half-built structure out there. They've been -- They've made some amends. They've made some progress, and they're now attempting to sellout and build the rest of those units, and this is the last thing we have to wrap up which is this fine and the appeal, and I ~' Page 47 ~ ..._....,__ _......,-,....., _,....~,p..... '_T~ ,_ c. -._e:>""_'~"~~'.":"~'''__''''--~_-''''"''~'''~~':>;'_''','''r- ","""_al!!l~"to-~--_~~,........._---=.,,...-. August 24, 1995 think we can do it today and be done with it. Let them go on ana do, you know, what they know how to do which is supposedly develop and build units and sell them, and I will say that the people' out --there like the units. They buy them. And they think they get good value, and I think they're probably right, even with all the problems. MR. LAFORET: And add $1,000 on each unit, and we'll get our 60,000, and you'll end up with 20,000. MR. REINA: I wish I could write you a check and make it all go away. I think it would be wonderful but I -- I think that we've pounded out the best deal we could under the circumstances. I urge you to go ahead and accept this and be proud about accepting it. It isn't -- this isn't a -- This isn't a losing deal that you guys are being asked to take here. It's -- it's -- when you -- When you consider settlements, you take less than what you think; otherwise, it's not a settlement. If you waUt the whole hog, then you've got to go the whole way. If you ask somebody, look, I want to cut my -- cut this short a little bit, how do we do it, you've got to give, the other guy's got to give. Where that figure is depends on the circumstances and -- and if these guys had assets where they could satisfy the whole $60,000, we wouldn't be in here bargaining with you like this. You'd be saying, no, pay it, or we'll lien and take your property. That would be a different ball game. MR. LAFORET: Maybe they'd pay you, counselor, and we'd still be in here. MR. REINA: I don't think that we would -- we would have a whole lot of choice if the assets were there and it was obvious and easy to get them. So we've spent a lot of time, and you folks have spent an awful lot of time thinking about it too, and we sat down, and we tried to go over all this with ~- this -- Everything we've done here we did five times as much with the county attorney's office going over why we could get to this deal the way it is. So it's been pretty well thought out and I -~ and I don't think it's anything that is a compromise on the county's part that you should be ashamed of. You're collecting a substantial penalty in reality because you've got your cost plus a penalty plus something positive has been done with the landscaping. That's why it makes a win-win. MR. ANDREWS: Mr. Reina MR. REINA: Yes? MR. ANDREWS: -- you've sold me on the idea. Our attorney has sold us on the idea, and the staff agrees it's a good deal. So I'm going to go along with it, but I'll guarantee that Elba will be back in here again. MR. REINA: Well, I hope you're not right, and you may be but I -- it won't be due to any efforts of mine that they They're always advised to do the right thing by me. _' CHAIRMAN ALLEN: Is that a motion, Mr. Andrews? Is that "a motion? MR. ANDREWS: Yeah, I'll make a motion. ~IRMAN ALLEN: Do we have a second? MR. MCCORMICK: I'll second it. CHAIRMAN ALLEN: We have a motion and a second. Any discussion? All those in favor signify by saying aye. Opposed? ~ Page 48 August 24, 1995 .0 4-3. MR. MANALICH: Okay. Mr. Chairman, it appears the motion has passed 4-3.. Dissenting were Ms. Deifik, Ms. Louviere, and Mr. Laforet. CHAIRMAN ALLEN: Correc t . MR. BOLGAR: Mr. Chairman CHAIRMAN ALLEN: Yes, sir? MR. BOLGAR: -- before we close the proceea~ngs, I would like for the record to file the affidavit of compliance in this matter. On the 22nd of April, '93, this board heard a public hearing and issued its order in the above-styled manner, and the respondent would have a certain time for correction on or before November the 1st, 1993. A reinspection was performed on August the 4th, 1994, and found corrective measures have been taken, and they're in compliance, for the record. ~ MR. MANALICH: Mr. Chairman,"<<r would also like to submit for the record, then, based on the board's vote, two items of correspondence, my August 3, 1995, letter which has been signed ~y both Mr. Bolgar and Mr. Meadvin indicating the basic terms of this transaction, as well as my August 4, 1995, supplement to that le~ter from me to Mr. Reina pointing out that if these terms are not achieved, then, of course, minus any discount for what they have achieved, we would then be able to pursue the full fine, and I believe these should be made part of the record then. MR. REINA: If there's nothing further for me, I thank you very much for your time and hope you have a safe drive home. Thanks. MR. ANDREWS: Do you have a boat? MR. REINA: No. Wouldn't have time to use it unfortunately. MS. DEIFIK: Thank you. MR. ANDREWS: Thank 'you. CHAIRMAN ALLEN: Let's hope we go to a less pleasant, distasteful project of the county commissioners versus Charles Eicks and Joan Hicks. MR. MANALICH: Mr. Chairman, before we stare on that, another news flash. They seem to be popular today. I've been handed yet another note. I kind of feel like Johnny Carson playing Kar~ak. But, in any event, this one is a phone message at 11:35 this mor~ing from Charles Hicks, the subject of our next case. The note indicates that he picked up his notice about this case this morning, that he ~s apparently here, but given the weather conditions, he doesn't ~~ow whether he can make it. He wanted to know if he needed to attend, and that's the latest. Now, the only other thing is I would point out that I've been informed that some roads are being closed as we speak apparently. .' MS. DEIFIK: How about 41? Is 41 open? UNKNOWN VOICE: So far, apparently. ~. MANALICH: I do have a telephone number that I can call him at. MS. DEIFIK: Why don't you do it. CHAIRMAN ALLEN: You want to continue this? MR. MANALICH: Well, I guess what I wanted to find out was it's noted by the board that this message just came in and ask yOU , ' Page 49 ~'-"_'.''''''''''''frr""'''''''''-''''-.'"''",,;.......,,";.'...'~~'''''''.''~-- ~.- .. ~~.\t".t'4'''''. ~':D~'~ t:7l ~.~.J.,z"'."~1lilI6. ~ ....""V~_"~.... August 24, 1995 .. what was your preference as far as how to handle this at this point. MR. LAFORET: Due to conditions, I suggest that we give him 30 days. ' MR. MANALICH: Well, the only question I have for staff on that is apparently this involves a seawall which there is some degree of concern about. CHAIRMAN ALLEN: Well, in the pictures that we saw when this case came up, although it's a collapsed seawall, it's not a life safety issue. It doesn't seem to be. MR. MANALICH: Well, frankly, in the order I think we took the position that there was a health, welfare, safety issue. MR. BOLGAR: Yeah. This seawall is starting to jeopardize the adjoining properties. Their land is starting to wash up because the seawall is just about gone. MS. DEIFIK: Today may have ~one it. MS. RAWSON: June 27 we said it poses a serious threat to public health, safety, and welfare, and in particular to the surrounding properties, and today might have just done it In. CHAIRMAN ALLEN: I'm incorrect. Let me retract my comment. MS. CRUZ: If I may add, the notice that Mr. Hicks lS referring to is the notice of hearing for today's hearing for the imposition o~fines. So he's been aware. He's received a notice that this case came before the board on June 22, and he was aware that he needed to comply by August 11. MR. MANALICH: Do you have any comment regarding his message about having only been notified this morning? MS. CRUZ: The notice of hearing was sent on August 12 to his local address for the imposition for the hearing today. MR. MANALICH: Was there a return receipt for that? MS. CRUZ: No. I haven't received anything yet. MR. MANALICH: Mr. Chairman, I mean, if you want to take a five-minute break, I could also call him, and if you wanted to see if he could come in. CHAIRMAN ALLEN: Well, I think we're all sort today. Let's -- I was going to make a suggestion rather. When was he told of the findings of fact law and order of the board? When was he notified decision in June? MS. CRUZ: That notice was sent on June 28. CHAIRMAN ALLEN: So he's had from June 28 until now to comply. MS. CRUZ: after that. MR. MANALICH: Well, interestingly enough, the way I see ~~his, the order has already been entered. The fines go into effect. MS. CRUZ: Right. MR. MANALICH: The only question that I see -- I mean, this ~uld impose some fines, but that's going to -- I mean, that's occurring as we speak anyway automatically. I mean, he has to corne back at some point for the actual imposition, but it's taking place automatically by terms of the order,.: The only question becomes whether at this point, given the facts out there, you do have available to you under the statute the ability to actually mandate tae of beat up -- or a q~estion, and conclusions of of that, of our And I also recall talking to Mr. Hicks right '" " Page 50 " .~;--~-~==::~T::~i~~~:;:;.:"'~~,;fC-"':.j;::-.~;~~~f~~':"-"'" _~--:~!~:~~~~'f~"'J_~;CC~~....st.-__'!.!'Mi" H "lJ'_ August 24, 1995 correction be done by the county and then bill the property owner for this if you find it's a health, welfare, safety issue. That would be, I think, the main ques~ion today. CHAIRMAN ALLEN: I suggest we do that. MS. DEIFIK: Don't we also need to impose the lien? MS. LOUVIERE: Yeah. That's automatic. MR. MANALICH: You can, or you can defer that. I mean, the fines are collecting as we speak by the terms of the order, but to constitute a lien, you must at some point actually enter this order imposing a fine which was brought to you today. Now, the only question is for both of those items is one of notice and due process. That is, from this message, he's basically saying he only picked this notice up or this packet up today, and he's asking should he come in to be heard on this and defend. CHAIRMAN ALLEN: I've got a ~ittle problem with his timing in his news flash. s<<, MR. MANALICH: Well-- CHAIRMAN ALLEN: A little convenient -- a little convenient, it seems like, if Miss Cruz talked to him on the 28th of June. MR. MANALICH: The only thing is he may want the, ,opportunity. He may be willing to drive in as we speak, and he feels strongly enough to be heard on this as to why he feels he has a ,,"defense to any of this., MR. LAFORET: But, counselor, it was raining this morning, and he didn't call in. CHAIRMAN ALLEN: We all made it. MS. LOUVIERE: We all made it. MS. DEIFIK: Did he not get it because he didn't go to the post office and pick it up? He maybe got the certificate? MR. MANALICH: I could call him, and I would venture to I could perhaps -- You know, we have the mic~ophone system here. I could -- even if we have -- we have him speak over the phone, I could put that into the mike. MS. RAWSON: Well, I can say that I think this is in Marco Island, and I know 951 is closed. MR. MANALICH: Well, I certainly can call him right now as we speak if you want, and he has left a telephone number, and I guess he could appear by phone. MR. BOLGAR: A little information for the board. We have sent out requests for bids on this matter, and as of yesterday at four O'clock we got our last bid in, and we are ready to award a bid. MS. LOUVIERE: How much are the bids? What's the cost? MR. BOLGAR: They range -- they range from fourteen thousand eight hundred and -- eight -- nine hundred and eighty dollars to $18,400. :~ MR. MANALICH: Well, Mr. Chairman, I guess what I would suggest is at least give him the opportunity if he wants to be heard by tel~phone on this. Mif. ANDREWS: Gi ve ita try. MR. MANALICH: I could try right now and see if he can be reached. MR. ANDREWS: Give it a try. I doubt if he's on his way, we're not going to unless he's got a phone in his car. .. ~' Page 51 August 24, 1995 MR. MANALICH: Well, no. He said he was not on his way. He was asking whether he was going to be compelled to come in. CHAIRMAN ALLEN: From what you're saying, Mr. Bolgar, you know, you already had four bids put on this. Okay? Knowing how many few subcontractors do seawall and pile cap, he's going to be getting bids from the same people you are. So it's strictly a function of whether --'whether he employs them or the county employs them at this time. Is that how we've got this thing boiled down to? MR. BOLGAR: That's correct. CHAIRMAN ALLEN: So either he can employ somebody to fix the seawall, or you're going to employ them. MR. BOLGAR: That's correct. CHAIRMAN ALLEN: So he's got -- MR. BOLGAR: And at this point he's made no progress towards his end of it. $<<, MR. ANDREWS: You don't even know -- MR. MANALICH: Hello. May I speak with Mr. Hicks? MR. ANDREWS: You don't even know if he has a bid. You don't even know if he's got a bid. MR. BOLGAR: No, I do not. MR. MANALICH: Mr. Hicks, this is Ramiro Manalich. I'm at the Code Enforcement/Board meeting. Can you -- Are you willing to be put on the mike here as.d be heard regarding this case? Okay. Okay. Let me -- Let,me see if I can try to do this here. I have Mr. -- Can you hear me, Mr. Hicks? Okay. I have Mr. Hicks on the phone here. He's indicating to me that he is unable to come from Marco, given the weather conditions; is that correct? Okay. Mr. Hicks, I'm going to see if I put the telephone next to the microphone if, you know, you can be heard here. I'm not sure. But, first of all, could you tell us, please, did you not receive notice of this hearing sometime ago? Okay. I don't think we're going to be able to hear you. I just put it up there, but basically I can convey what you have In response here. He says that he just picked up the notice this morning as of today's date. Okay. He says there's no way he can make it. Do you have a request at this point regarding this case? What is that? Yes. Basically this case is before the board today for two purposes that I can identify. One is whether -- As you know, there was a prior order issued for you to repair the seawall, and basically staff is requesting that fines be imposed on you, which continue to accrue, by the way, under the order. The amount of the xines I believe are calculated at -- . ' MR . ANDREWS: 50 . MR. MANALICH: One moment. It's 150 a day which right now a~of today's date totals -- MS. CRUZ: 1,800. MR. MANALICH: $1,800. They want that 1,800 imposed as a lien on your property. The second thing is they want the board to consider ordering them to actually go forward with the correction of the wall and bill you for that. What ~ Page 52 -- August 24, 1995 He's asking if we have already had people bid to repair the seawall. MR. BOLGAR: Yes.. We've had three, if not four, bfds. MR. MANALICH: Mr. Bolgar says that, yes, he has begun that process. Okay. Well, he says that the lowest bidder contacted him. But do you have any response to the request of staff on both of those points? Okay. Let me just convey this as we go. He says that he does not have any comment other than to say that he cannot afford it at this time because he's in the middle of a divorce situation. Okay. Apparently he's saying that his former spouse refuses to pay taxes, maintenance, et cetera. Okay. He says there was a p~~vious backfill violation that he had to pay 600-some dollars for because of this whole problem with his spouse. Okay. Okay. Okay. Well, as you know, the board is now right now as I speak on the phone, in session here. I wanted to get you on the phone because I got your message and wanted to give you the opportunity to respond to the board in regard to what's been brought forward. Do you in summary have anything further't'o add? Because they need to -- to make a decision here and move o~ Okay. Okay. He says that he doesn't really have anything additional to add other than that on September 18 apparently his divorce case is going to court, and he thinks that some of those problems will be addressed at that time. Okay. COMMISSIONER HANCOCK: Excuse me. Commissioner Hancock. I may want to interrupt since you're locked here in a vacuum. The county is going to be shutting down non-essential personnel at one o'clock. We're opening Red Cross shelters and so forth. So you may have reason to cut your meeting short today. MS. DEIFIK: Could you tell us what roads are closed? COMMISSIONER HANCOCK: Just about all of them. MS. DEIFIK: How about East 41 right here? COMMISSIONER HANCOCK: Unfortunately I don't have that list with me. Ken pineau down on the first floor does. So want to check with him. But beyond that, I just wanted to know what's going on out there because you've been in here working while all of us have been, you know, getting ready So I thought it would be nice for you to know that anyway. CHAIRMAN ALLEN: Thank you, Commissioner. COMMISSIONER HANCOCK: Okay. CHAIRMAN ALLEN: Thank you, sir. MR. ANDREWS: Thanks a lot. .' MR. MANALICH: Well, just -- it makes it more -imperative, then, that we finalize this. Is there anything else you want the board to know? W&ll, he says that he tried to sell the property. As a result of this case, Mr. Hicks? Okay. He says that as a result of this case, he tried to sell the property but have not been 'able to do so. Is there anything further? Okay. Well, then we've given you the opportunity to you may let you busily' to leave. ~' Page 53 August 24, 1995 comment on the action before the board, and now the board will tnen continue its deliberation on this and notify you of its _,resul t. Okay. He says he-conveys regrets that this has occurred-- and that he cannot afford to pay, and he hopes we make it home. Okay. Thank you. Bye. MR. BOLGAR: Mr. Chairman -- CHAIRMAN ALLEN: Yes, sir, Mr. Bolgar. MR. BOLGAR: -- a point here in the proceeding is it necessary, counselor, for the respondent to be here for this order imposing fines? MR. MANALICH: Technically the statute, I believe, does not require a hearing on this. We have always in the abundance of caution and due process wanted to do that, and I think a greater concern to me would be that if we're going to undertake some type of emergency repair, it would appear$~o me, you know, that it was even more important for him to be here, but, in fact, he has had an opportunity to defend here by telephone through my -- MS. DEIFIK: Can we send a copy of the transcript to him and have him sign it and verify that you translated properly? MR. MANALICH: I think that would be a good idea. CHAIRMAN ALLEN: In light of that, aren't we down to this basic point, that he can't afford to do it. We have a life safety issue involved. Okay? Can we direct staff to employ a subcontractor or contractor to go ahead and do the said repairs? MS. RAWSON: I would move that we do that. And, in addition, I would move that we impose the fine and the lien. MS. LOUVIERE: I second it. MS. DEIFIK: I second it. CHAIRMAN ALLEN: This will be'an easy one. All those in favor signify by saying aye. Any opposed? None. Carries unanimously. MS. DEIFIK: I move we adjourn. MS. RAWSON: Well, I would move that we continue the workshop until next month. MS. LOUVIERE: Second it. Let's go. CHAIRMAN ALLEN: We will now adjourn. MR. MANALICH: What I would ask at this point would be simply that you authorize me to prepare an order consistent with your direction for the chairman's signature. MS. RAWSON: I so move. MR. MANALICH: Mr. Chairman, the other thing is we have item, the Landgrebe matter, which we talked about trying to get order out ASAP. I don't know if we're going to be able to do this afternoon or we'll have to do it tomorrow. CHAIRMAN ALLEN: I'll be available either day. MR. MANALICH: All right. Maybe if you have a mobile phone or something, you can give it to me, and we'll see when we can get tqgether under the circumstances. CHAIRMAN ALLEN: I'm going to the office. I'll be there. MR. MANALICH: Okay. MS. RAWSON: You think. CHAIRMAN ALLEN: Meeting is adjourned. Thank you. that that that ~' Page 54 ~""~.-.:e.""-'~"._""~._'.';'''''~~~'''''':-. -~.1". ":.fl!" .~ lIC'fr'" ,,~............-,'- August 24, 1995 ***** There being no further business for the Good of the County, the meeting was adjourned by Order of the Chair at 12:12 p.m. COLLIER COUNTY CODE ENFORCEMENT BOARD JAMES D. J:...LLEN, CHAIRMAN .r.<< TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING BY: Christine E. Whitfield, RPR .~. ~' Page 55 :-:.;:.: ~.: --~~. -~.}~,.'i~~~~..;-~~:~:..~--~-~-:~:.:.:"-~~,. ~,-~:.~-~::-,;;~~~.~";';;:~~,~~~.:t.t-:'~'~'~~'~~~':;~;"";OW'~;-:--~,'._-"-' August 24, 1995 ***** There being no further business for the Good of the County, the meeting was adjourned by Order of the Chair at 12:12 p.m. BOARD ~<< TRANSCRIPT PREPARED ON BEHALF OF ~bNOVAN COURT REPORTING BY: Christine E. Whitfield, RPR ~. ~ Page 55