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CEB Minutes 09/22/1995 1995 Code Enforcement Board September 22, 1995 September 22, 1995 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida, September 22, 1995 Met on this date at 9:03 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: ACTING CHAIRPERSON: Jim Allen ACTING CHAIRPERSON: Jean Rawson (95-009) Charles Andrews Celia Deifik Mireya Louviere Louis Laforet Richard McCormick ALSO PRESENT: Ramiro Manalich, Asst. County Attorney Maria E. Cruz, Code Enforcement Richard D. Yovanovich, Esq. (95-009) Linda Sullivan, Code Enforcement Director Page 1 , , J e~c/(/rl tI1;.? /,..', (.! Ort] ..,.------- CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA " ~QE.NJ2~ Date: September 22, 1995 at 8:30 o'clock A.M. Location: Collier County Government Center, Admn. 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 VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NEITHER COLLIER COUNTY NOR THE CODE ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. 1 . ROLL CALL 2. APPROVAL OF AGENDA "- 3 . APPROVAL OF MINUTES August 24, 1995 4. PUBLIC HEARINGS A. BCC vs. J's All Marine Service - CEB No. 95-009 B. BCC vs. Jack A. Queen - CEB No. 95-011 5. NEW BUSINESS N/A 6. OLD BUSINESS N/A 7. REPORTS A. Status Report - BCC vs. Louis Filostin and Ocepha Polite eEB No. 95-012 8. WORKSHOP Discussion of Quasi Judicial Proceedings 9 . NEXT MEETING DATE October 26, 1995 10. ADJOURN '- \ September 22, 1995 CHAIRMAN ALLEN: Good morning. We'd like to bring to order the September 22nd meeting of the Collier County Code Enforcement Board of Collier County. Any person who decides to appeal a decision of this board will need a record of the proceedings pertaining thereto and, therefore, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Neither Collier County nor the Code Enforcement Board shall be responsible for providing this record. We'll start with roll call at my left. MR. McCORMICK: Richard McCormick. MR. LAFORET: Louis Laforet. MS. RAWSON: Jean Rawson. CHAIRMAN ALLEN: Jim Allen. MS. LOUVIERE: Maria Louviere. MR. ANDREWS: Charlie Andrews. CHAIRMAN ALLEN: We'd like to start off now with approval of the agenda. MR. ANDREWS: So moved. CHAIRMAN ALLEN: We have a motion. MR. McCORMICK: Second. CHAIRMAN ALLEN: All those in -- MS. CRUZ: For the record there's an addition to the agenda. CHAIRMAN ALLEN: Yes, ma'am. MS. CRUZ: Under old business I would like to request for reposition of fines on BCC versus Louis Filostin and Ocepha Polite, CEB-95-012. CHAIRMAN ALLEN: Let's note that the agenda has been we'll remove that from reports to old business. Okay. MS. CRUZ: That would be okay. CHAIRMAN ALLEN: Let's let the record report -- show that item 7-A will be changed to item 6-A. With that we have a motion you made a motion? MR. ANDREWS: So CHAIRMAN ALLEN: MR. McCORMICK: CHAIRMAN ALLEN: moved. We have a motion. Second. All those in favor signify by saying aye. It passes unanimously. We'll go now to approval of the minutes dated August 24, 1995. MS. LOUVIERE: I make a motion that we approve the minutes. MS. RAWSON: I second. eHAIRMAN ALLEN: I have a motion and a second to approve the minutes. All those in favor signify by saying aye. It passes unanimously. We'll now go to the public hearings. And I need to recuse myself, Miss ehairman. MR. ANDREWS: Ramiro, do we have to make a motion to MS. LOUVIERE: He's going to get it on record. MR. MANALICH: Good morning, members of the board. For the record Ramiro Manalich, assistant county attorney. Just as a Page 2 September 22, 1995 clarification to everyone here today, on this particular case I am acting on behalf as counsel to staff, and Attorney Richard Yovanovich is your advisor on this matter. I also note that Attorney Burt Saunders is here on behalf of the respondent. Perhaps -- I have spoken to opposing counsel, and maybe a preliminary statement might be in order at this point. I believe that it is opposing counsel's request at this time that the respondents be given further opportunity to comply. As I've indicated to opposing counsel, that is opposed by staff, but that I would welcome his opportunity to address you on that matter. MR. SAUNDERS: Thank you, Mr. Manalich. First I want to thank the staff -- both the attorney's office, and the staff, Maria Cruz and everyone, Mr. Bolgar and Mike. They've been extraordinarily helpful and understanding. The basis for asking for more time is simply that the -- MS. RAWSON: Mr. Saunders, would you identify yourself for the record. MR. SAUNDERS: My name is Burt Saunders, and I'm representing the respondents. The basis for asking for more time is simply that the major problems associated with the major violations have all been corrected, and Mr. Manalich, I think, will confirm that. There are three issues that remain to be done. Two of those we thought had been fIxed but have not been. One is they have pump~r stoP$ that are movable, and on the last inspection, some of the bumper stops had been moved. They're crooked; they're not straight, and they need to be lined up. And that's an extraordinarily minor little thing to work out. There are some boats parked in the water manaqement area. That's something that can be moved immediately. The problem 'haS:been is that sometimes that is used for area -- for boats that are being worked on, and so they move boats in, and they move boats out of that. And we will instruct the operators of the marina that the water management area is to remain free of boats. The third area is in reference to the requirement for an opaque fence. They have a fence that is clear that you can see through right now. The reason they put that fence in there originally was because Sheriff Don Hunter had asked that they keep that area open for crime prevention. We have some additional letters, recent letters from the sheriff again confirming that he would like to have that open as opposed to opaque. We need to apply to the county commission in order to get a variance to have a clear fence instead of an opaque fence. And what I would submit to the board would be that I will get with the county commission, file the appropriate paperwork immediately to start that process. And so those are the three areas that we're dealing with. The other areas, the landscaping, the irrigation system, the things that are time consuming and expensive have been done. So based on that we would ask you to give us a little bit more time to correct those two and get the letter to the county commission on the opaque fence issue. MS. RAWSON: How much time are you requesting? MR. SAUNDERS: Well, the two issues can be corrected immediately. The one that's going to take some time is the issue of Page 3 September 22, 1995 the variance before the county commission. And the only thing I can say to you there is that I will get that paperwork started immediately, and we'll report back to Ramiro on the status of that. If we're not able to get some positive response from the county commission, then the Ackermans will simply put in the opaque fence. MR. YOVANOVICH: Can I ask one question to clarify the record? Mr. Saunders, do you represent both respondents or just the Ackermans? MR. SAUNDERS: I am just representing the Ackermans. MR. YOVANOVICH: Okay. MR. MANALICH: Madam Chairman, in response, in fairness to this respondent, I do recognize on behalf of staff that the majority of the expensive, important time-consuming difficult items have been completed by them, and I thank them for those efforts. However, the reason that we oppose a continuance is that this matter relates to an SD~ cnac began -- is dated 1992. I show from the contact sheet that in August of '94 the first contacts began between staff and these respondents. We've had three continuances of this case after it was filed in the spring of this year. I understand sometimes it can be difficult to achieve these corrections, but we simply believe that ~nough opportunity has been afforded that despite substantial progress, we need to have the authority of the board acting on this respondent to make sure that these things are completed within the remaining time frame. .So we would respectfully disagree wit re ard to a continuance and ask you to make findin s today allowing, if ou make t ose ln lngs or a reasonable eriod 0 time, to finls what's remalnlng. I can also mention that present today is Attorney Skip Gebhardt who represents one of the neighboring property owners. And I know that contact with those individuals indicate that this has been a problem in the neighborhood, and they have been patiently waiting for a great deal of time and, frankly, want to see something happen. So our position would be that we proceed to hearing this. CHAIRPERSON RAWSON: Do you have a response? MR. SAUNDERS: Yes, very briefly. I got involved in this matter, I believe, about three months ago. And up until that point in time, the advice that the respondents was getting was that there was a ,wav to defeat the staff in terms of what staff was requesting. There was a different approach in terms of dealing with the issues. The respondents contacted me, and I said you're wasting your time, and you're wasting your money in trying to change these rules or try to fight these conclusions by staff. Staff is reading ~e letter of the law. This board reads the letter of the law, and petitioners -- responaents have to comply with that. So I think Ramiro will confirm that's really been the last couple months that the respondents have realized that they need to correct the matters. So it's -- it's -- I think that their problem has been perhaps the advice that they've gotten up until that point. And so I only say that because I think it's important for the board to know that Lhev were react' Ie al advice that the were getting, and that advice has changed dramatically in the last couple mont s, and their effort has now been to correct those problems. And so, again, I would simply ask you to give us the additional time to finish correcting that. We're not trying to avoid the jurisdiction of this board or the jurisdiction Page 4 September 22, 1995 and regulations of the county, just that I haven't been involved in it long enough to get everything finished. MR. MANALICH: Madam Chairman, I would confirm that since Attorney Saunders has been involved we've had -- obviously had a very good attitude of cooperation. And I know they've made substantial steps, but the fact remains, regardless of whether he came in at the last minute or previously, .the amount of r;m~ that haS elaDs~d is roo gr~at. And we don't believe that they will be harmed if, in fact, they intend on completion, because this board typically allows a reasonable time after its findings are made anyway. And, you know, I would point out that over the last 30 days or so even though substantial progress was made, there was some confusion as to whether total compliance had been achieved or not. .And Mr. Kirbv confirmed very rAc~ntly rnnt it had not been. So we're concerned that despite very significant efforts toward compliance, we're still dragging this thing out. For that reason we'd prefer to go forward. Thank you. MR. ANDREWS: Ramiro, regarding the fence which is probably -- probably one of the biggest parts of this thing, how much -- getting the permit and everything and changed from being opaque, which it was supposed to be in the first place -- was the sheriff the one that recommended that -- that you -- not to opaque that fence? MR. SAUNDERS: My understanding is originally when the fence was first put in that the sheriff had requested that it not be an opaque fence. MR. ANDREWS: Yeah. MR. SAUNDERS: And we have subsequently gotten another letter from the sheriff to confirm that the sheriff's position is that he would prefer it not to be opaque simply because of crime prevention issues. MR. ANDREWS: Well, that's going to be the time consuming part of this, right, if you want a continuance? MR. SAUNDERS: That's correct. That's the only issue that would remain open. MR. ANDREWS: How much time if we do decide to give you a continuance, how much time would it take to get your ducks in order? MR. SAUNDERS: Mr. Manalich, maybe you can help me with that. There are some time periods, delays involved in the variance process. MS. LOUVIERE: Normally it's -- as far as a variance is concerned, it takes at least ~hree to six months to go ahead and get it heard. The two -- there are really three issues here that you have brought up. One is the bumper stops that need to be aligned. That seems to be pretty simple and easy to obtain. The second is you can't park your boats in the water management area, and you should be able to resolve that issue pretty easily. I'm a little bit confused as to why you need a variance for the opaqueness of the fence. Have you talked to staff on that? MR. SAUNDERS: Yes, we have. The code requires an opaque fence, and we haven't determined how we can -- MS. LOUVIERE: I don't think the code requires an opaque fence. I think the SDP -- MR. SAUNDERS: The SDP re~l1irAC! tho Op3.q1.J.~ -fAnr~. and I don't think we've come up with a way to get around that without Page 5 September 22, 1995 well, I guess changing the SDP would perhaps be the -- MR. MANALICH: The only point on that, Attorney Saunders, is that as we have mentioned, ptaff is willinq ln ~nterpreting the SDP to take the position in response to the Letter that the ate wo 0 aque, but of it a 's the onl cou MS. LOUVIERE: Okay, great. So why can't staff do a letter to that effect and you guys meet that instead of going through a variance, and that way you could achieve compliance right away. MR. SAUNDERS: Well, then the issue becomes whether we make the balance of the fence opaque. And our position would be the sheriff's -- apparently the sheriff's position is that he would prefer the fence not to be opaque at all. Now, we can try to expedite the review before the county commission as quickly as possible, and perhaps it won't take three months. But it would be a shame to force the issue on the opaque fence today when, in fact, the commission may very well agree with the sheriff that the opaque fence is not the best approach for that facility. And it's not a question of -- there is a fence there right now. It's a question of whether we make it opaque. MR. MANALICH: I think the opaqueness, thouqh, is important to the reason that it's in the SDP. And Mr. Kirby knows more than I do, but as I understand it, this is a commercial property surrounded by other property that some of which is residential, some of which is upscale office and that obviously having cluttered boats throughout the premises, the opaqueness would contribute to the aesthetics of the neighborhood. That's my understanding for the opaqueness of the fence. And I know at least some of the neighbors are very interested in having that maintained. Is that correct, Mr. Kirby? MR. KIRBY: Yeah, that's correct. MS. LOUVIERE: To serve as a buffer. MR. MANALICH: Yes. MR. LAFORET: I'd like to ask counsel a question. Oh, are you finished? MS. LOUVIERE: Yes. MR. LAFORET: Okay. What is your definition of an opaque fence? MR. MANALICH: As I understand it -- Mr. Kirby can assist me, but as I understand it, it is something that is not see through, that it acts, as one of the board members mentioned, as a buffer, a visual buffer from what is contained within the premises. Mr. Kirby. MR. LAFORET: In an effort to expedite this then, if it's something you cannot see through -- I come from up north, and many people, because of termites and what have you, don't want to use wooden fences, so they use chain-link fences around their swimming pools, and they put colored inserts going diagonally down the slots. You can't see through it, but it's inexpensive. It's quick, and it doesn't require maintenance. MR. MANALICH: Two points on that. ~ believe that would be acr.pprable to staff. MR. KIRBY: I think they generally use the term 80 percent opaque. That -- that allows for, you know, lltcle creative things like that to occur. Page 6 September 22, 1995 MR. LAFORET: I would like to ask counsel what his feelings are on that. MR. MANALICH: If I might just add, the issue, I believe, from opposing counsel's view is that they have submitted a letter from Sheriff Don Hunter that as a matter of law enforcement practice they think that in this particular neighborhood this opaque fence is not recommended. However, that is not a -- that is one of -- ,you know, staff's position ls that althouGh that is nil nllrnoritative important ODlnlon, that is mArAly nn~ oDinion. That is not the law which is in the SDP. And obviously opposinG counsel n~~ th~ opportunity to try to seek a variance if necessary. But we believe that the code should be a lied and ou know, the can still ursue a varianr.p hllr rnis should be enforced until the board decides that i ~ should be -- MS. DEIFIK: The beauty of the scheme that was just described by Mr. Laforet is that that additional screening can be removed if and when they obtain such a variance. And I'm sure that there must be a number of other ways of doing it. I think I'm asking a question rather than making a statement. MR. LAFORET: I'm only offering an economical expeditious resolution to the problem, and that could be done, in my opinion. I don't know if those strips are available down here but, in my opinion, it could be done in a week. MR. MANALICH: Mr. Kirby, would that -- what has been suggested, would that be in compliance if that were done? MR. LAFORET: There's got to be warehousing somewhere. MR. KIRBY: .I don't know. I think ;r m~8to the iat9nt ~f the law. but I'm not sure. MR. SAUNDERS: The problem that we're dealing with is -- there's some realities also. There's an expense associated with that. We don't want to go out and spend a certain amount of money, find out later that it meets the intent of the code but doesn't meet the letter of the law and, therefore, that we have to take those out and put something else in. We'd hate to go through the expense then find out 60 days from now or 90 days from now that the county commission agrees with the sheriff that this should remain a fence that is not opaque. All we're asking is we can correct those other two issues immediately. Practically everything else has -- everything else has been corrected. All we're asking for is the opportunity for me to apply to the county commission for a variance or amendment to the SDP, whatever that process is, in order to change the rule for that particular piece of property. If the commission says no, then .immediately we put the opaque fence in. But we're asking you not to force us to put an opaque fence in today, apply for a variance, and then remove the opaque fence 60 days from now. No one is being damaged at this particular moment because of the issue of the fence. There is a fence there. The sheriff has suggested that from crime prevention standpoints he prefers it to be not opaque. The problem is that you have boats and things in there. If someone wants to get get inside the fence and -- and engage in some mischief there, a sheriff driving by can't see it. Sheriffs won't go in there, and it creates a real major problem. I would also ask the board to understand that originally the reason that the clear fence was put in there in the first instance Page 7 September 22, 1995 was because the sheriff had suggested that that would be the most appropriate thing to do. So we're not -- no one's being damaged by letting us go through the process. That's all we're asking you to let us do. MR. LAFORET: Mr. Saunders, I understand your position. I understand that you're relatively new to the case, but this is costing the county money. Would you be amenable in the event I'm not -- I haven't made up my mind myself yet. I don't know what the others are thinking. In the event that the board elected to recommend a -- a deterrent amount of money, any amount of money, a hundred dollars a day, in the event that they made that recommendation, would you be amenable that it be placed in force as a lien on the property until such time as -- as you correct the situation? After you corrected the situation, then you could come back here and negotiate with us as everybody else does -- I'm against it, but everybody else does -- the actual amount of the fine. MR. SAUNDERS: I'm not sure I understand the scenario that you're setting up. My instincts tell me that we don't agree to any fines to be applied retroactively. MR. LAFORET: The scenario I'm setting up is an inducement for you to act expeditiously, because it's going to cost you a hundred dollars a day if you don't. MR. YOVANOVICH: Excuse me. We're beginning to get a little beyond the scope of the request for a continuance. We're now beginning to get into findings that somebody is in violation. We're not at that stage right now. I think we need to focus just on whether or not you should go against Mr. Saunder's request for a continuance. MR. SAUNDERS: Quite frankly -- and I don't mean any disrespect to the board but, quite frankly, under these facts where the fence has been put up and that we have the information from the sheriff and we want to go to the county commission, I think it would be unreasonable for the board to fine anybody a hundred dollars a day for this opaque fence violation under these circumstances. It would be different if we were in a residential neighborhood and there was no fence up there and there was no request by the sheriff to keep it the way it is. MR. MANALICH: Madam Chairman -- I'm sorry. MR. SAUNDERS: That -- that's all. MR. MANALICH: Two points. One, I noticed that Mr. Jay McMillan is here today. MR. McMILLAN: And I sure would like a chance to speak. MR. MANALICH: He is the other respondent. In line with that, as I mentioned earlier, Mr. Gebhardt, who represents one of the neighboring property owners affected by this, he has requested ---1- realize this is perhaps Slightly in Variance with our procedures, but he had requestedcm_~Q:D~iEuiiIti:::l:Q~1>~-=~rd OIl this continuance '.'issu~ I don't know if Mr. Saunders has a posi fion on that. MR. SAUNDERS: No. It's a -- it's a public hearing, so I certainly have no objection to -- MR. MANALICH: He would briefly like to address you. I have no opposition to him doing so at this time. CHAIRPERSON RAWSON: Before you do so, does anyone else have any more questions for Mr. Manalich or Representative Saunders in regard to the continuance issue? Page 8 September 22, 1995 Mr. Gebhardt. MR. ANDREWS: Well, the thing I'm -- the thing I'm concerned about a continuance is -- is a time certain so, in other words, we can't just let it go on and on and on and on. If we're going to act on it today, we've got to put a -- we've got to put a set a date at which time it has to be completed. And -- and after that there has to be a fine. That's procedure. That's what we have to do. So until we get that settled, I don't see how we can do anything. MR. MANALICH: Madam Chairman, one other point which is that since the board has been gracious enough to allow Mr. Gebhardt the opportunity to speak -- I do know Mr. McMillan is here. I believe he's indicated he would like to be heard on the issue of the continuance. I would not oppose him briefly being heard on that also. CHAIRPERSON RAWSON: Attorney Gebhardt, would you identify yourself for the record. MR. GEBHARDT: Thank you, my name is Robert Gebhardt. I'm an attorney with Gebhardt and Miller. And I represent Mr. Lennane who is the developer of the properties across the street which are upscale office properties. I may be missing something here, but this is my view of what has happened. Sometime in 1993 the county snid yOU can build this if you do these certain thin s. do those certaln t lngs, 1 s a V10 atlon. That was in . Mr. Saun ers as sal ere at the owner has deliberately -- deliberately flaunted that. Whether it's through advice of a lawyer or otherwise, he has deliberately flaunted that. Then Mr. Saunders comes in three months ago, three months ago, and now says I've persuaded my client to obey the law. That's interesting. Up to that time he had just been thumbing his nose at you. Now Mr. Saunders has persuaded him to obey the law. Now three months after Mr. Saunders comes in and says he must obey the law, he says now we would like -- now -- to file an application, not file it three months ago -- now we'd like to file an application for a variance. And in the meantime for almost two years now you should let my client deliberately violate the law. Now, I may be missing something, but that's the simple case. And for y-ou to sit here and say, oka Mr. Ackerman and whoever, you can violate the law for aw g t at ou've een cited by the code, notwithstanding the Code Enforcem rs ave een ou ere, and they sny rnPy'rP in "iolation. They've been written up. An, by t e way, they were written up in 1993. And they were given a six-months continuance in 1993, I believe. Mr. Kirby can correct me on that. As a matter of fact, I think Mr. Kirby will tell you that he originally gave them 30 days in 1994, and that was extended to six months in 1994. So here we are in 1995, late '95, and it hasn't been corrected. I may be missing something, but it's a clear violation of the law, and he's got to correct it. Thank you. MR. McCORMIeK: Madam ehairman. eHAIRPERSON RAWSON: Yes. MR. McCORMICK: If I may, Mr. Gebhardt's involvement in the case and his representing Mr. Lennane has brought to my attention Page 9 September 22, 1995 I may have a conflict in this case, and I need your opinion on it, Mr. Yovanovich. My firm, Wilkinson and Associates, also has worked for Mr. Lennane in the past. MR. YOVANOVICH: Are you currently employed by Mr. Lennane? MR. McCORMICK: Not -- well, currently there's an undeveloped parcel called Bayshore Lake Estates which we have done periodically continual work, so I didn't know of his involvement in the case prior to this, but it sounds like it may be a conflict. MR. SAUNDERS: For the record I would object to anyone who has business connections with Mr. Gebhardt or Mr. Lennane being involved in this matter. I think it's a clear conflict of interest and, you know, there's been a lot of court action by Mr. Gebhardt in reference to the Ackermans and their operations. There -- everyone knows about it or what's read about it in the newspaper. There's a whole lot more going on here than is on the surface. And so I think for your sake I would suggest that if you have business connections with Mr. Lennane, you are involved in the possibility of doing more work, that you do have a clear conflict of interest, and I would object to your sitting on the board. MR. McCORMICK: Is that your recommendation? MR. YOVANOVICH: I would agree. I think there's a good likelihood that your client would receive a benefit from -- MR. McCORMICK: Okay. MR. YOVANOVICH: -- the action you take at this hearing, so I would recommend MR. McCORMICK: So I'll excuse myself, Madam Chairman. CHAIRPERSON RAWSON: Let the record reflect that Mr. Andrews (sic) and Mr. McCormick have recused themselves. Anybody else have a conflict? MR. MANALICH: I don't believe we have any alternates either. MR. YOVANOVICH: Mr. McCormick, you'll need to file the necessary paperwork, and I'll get with you on that. CHAIRPERSON RAWSON: All right. Does anybody have any questions for Mr. Gebhardt? MS. LOUVIERE: I don't have any questions for Mr. Gebhardt, but I would like to go back to the description of the violati 0 em av for just the opaaueness. because they're very detal e . MR. MANALICH: One comment. Just -- I mentioned Mr. McMillan, I believe, another respondent in the case, wanted to be heard on the continuance issue at some point if that can be granted. MS. LOUVIERE: We can hear him. He can come up. CHAIRPERSON RAWSON: Let's keep in mind that the only thing before this board at the moment is a motion for continuance, not the merits of the case. Mr. McMillan, would you please identify yourself, and then we'll need to have you sworn in. THEREUPON, JAY McMILLAN, a witness, having been first duly sworn, upon his oath, testified as follows: MR. McMILLAN: Jay Bruce McMillan. I am the tenant at 4825 Bayshore Road. Good morning, guys. I'm trying to stay right Page 10 September 22, 1995 with the continuance issue. It's a very deep subject. The only reason, Mr. Laforet, if I pronounce your name correctly, it's costing the county a lot of money, I believe Mr. Lennane is costing the county a lot of money, not my business or anything else. We have complied -- it is very odd, and it's very hard for me, and I'm very nervous to sit in this room rentinG a piece of property that Mr. James Allen built for m~ tb~t's not IIp to COOil I just can't fathom that, folks. He's the gentleman that built my property, and he built it not up to code. We have done our very best to come up to code and comply, but we're not wealthy, rich people that can just do the things and not care. We cannot afford a $5,000 fence to have it taken down two months later. A little education on you guys -- I know you don't have personal insight into this, but my boats are anywhere from 25 to 30 feet tall. Putting a $4,000 8-foot fence around my yard will do nothing at all. And I have personally polled all the residents of my neighborhood, the people that live there; they like my shop. I've cleaned up the area. I offer security. I offer lighting. I do all the things -- the residents like me. The only people that don't like me is Mr. Lennane. I would hope you guys think about that when you're going through it. We have tried our very best, and I've worked as best as I can with my pocket and the money that I have and Mrs. Ackerman, to comply to the county codes and things that they've asked us to do. And we do need some time, and that's all I ask. CHAIRPERSON RAWSON: Anybody have any questions for Mr. McMillan? Mireya, do you want to ask your questions about what's been done to Mr. McMillan? MS. LOUVIERE: What's been done to Mr. McMillan? CHAIRPERSON RAWSON: No, what's been done so far. Sorry. I asked that question to Mr. -- of Mr. McMillian, I should say. MS. LOUVIERE: Why did you think Mr. Lennane -- this is maybe -- MR. McMILLIAN: It's a perfectly good question, ma'am. MS. LOUVIERE: Why does Mr. Lennane not like you, or he's the only one that has a problem with your shop? MR. McMILLIAN: Well, this is another subject, but I don't understand that either because Mr. Lennane uses my services. I repair his boats for him, okay, and so -- CHAIRPERSON RAWSON: Earlier you had a question about where are we on the stops, the boats -- MS. LOUVIERE: There's a big description of the violations -- MR. McMILLAN: Right. MR. SAUNDERS: May I approach the podium for just a moment? In terms of what the violations are and what has been done to correct them, I would prefer perhaps that staff respond to that. I think you're going to have more confidence in making sure that the technical things are complied with if the response comes from staff. MS. LOUVIERE: That's fine. I don't really care who answers my question. Okay. There were several things as per SDP 92-90 that -- that are described here: Missing a number of plants, the sabal palm was cut down, .the landscaoe bl1ffpr ~lQ:ng the aortlJo~at. and ROllrh Ride were missing entirely. Were those things -- Page 11 September 22, 1995 KIRBY: Those havp hoen corrol"'rpq. LOUVIERE: Okay. The chain-link fence is still not That's the one issue. KIRBY: Correct. LOUVIERE: Okay. Tnp a total of nine. Was MR. KIRBY: ,Their arkin but they're moved routinely. Practically-- MR. McMILLIAN: Explain why. MR. KIRBY: Okay. So that Jay can get boats in and out of his storage area. MS. LOUVIERE: Let's try to stay calm. Okay. There'~ oats outside the gravel storage area. MR. KIRBY: That's still a V10 atlon. MS. LOUVIERE: Is that still continuing? That's still a violation? MR. KIRBY: Yes, it's still continuing. MS. LOUVIERE: The irrigation system not installed. MR. KIRBY: It has been installed. MS. LOUVIERE~ Okay. There's a berm on the retention area on the south side that's cracked, and it's allowing the water -- I think this is a pretty big one -- the water to flow onto adjoining property. And the retention area on the east side is not graded to route surface water to on-site retention areas. Instead it runs to the adjacent property. Has it been repaired? MR. KIRBY: Our engineering inspector said it was re aire rlier this week, Monday or Tuesday. MS. LOUVIERE: 0 ay. So t e water management issue has been resolved? MR. KIRBY: .There is one outstandinG issue that we haven't routinely discussed. It was brought up in the beginning about amltered end, a concrete mlcerea ena to the culvert. MS. LOUVIERE: Yes. MR. KIRBY: ~nd' attention~ and we just -- about that. MS. LOUVIERE: Okay. Okay. I just wanted to know what status all this was in. Thank you. I don't have any questions for you. MR. MS. opaque. MR. MS. wheel bumpers' there, s our an Mrs. Ackerman Any other questions for Mr. either attorney board -- what are four Page 12 September 22, 1995 issues; the bumper stops, the boats in the water management area, the mitered end to the pipe. Those three will be corrected. I think that Jay has already indicated that there are no boats left in the water management area, but those will be corrected immediately. And I don't think there's any time involved in correcting those three things. The issue of the opaque fence, if the board gives us permission, then we will apply immediately for the appropriate variance or amendment to the SDP, whatever process staff tells us that we need to go through, we'll go through. I will keen the board ,informed on a monthl~ basis to let you know where we are with tnat. We will try to expedlte that to the greatest extent possible. ,Lf rnere is a violat.ion of anything else. then obviously we would e ect back here and and for ou to make a findi fines immediately on anythlng. T e on y thing we're asking you for is the tlme to ma e e app lcations for the opaque fence. And I understand Mr. -- is it Laforet? CHAIRPERSON RAWSON: Laforet. MR. SAUNDERS: I'm sorry, Mr. Laforet. MR. LAFORET: That's all right. It makes no difference. MR. SAUNDERS: I understand the concerns about how long this has dragged on. I want this board to know that I certainly did not intend to imply that the Ackermans have deliberately flaunted the law. That is not what I said, and that's not what they've done. The Ackermans have been law abiding citizens in this community for a long, long time. They've done an awful lot of good for this community in terms of charitable events and supporting community efforts, and they're well-known. So I think that to characterize them as people who would deliberately flaunt the law is just surlish at best. And I would just simply ask this board to give us the time that we need to comply with the requirements of filing on the opaque fence. Thank you. MR. MANALICH: Madam Chairman, just in response, again, we recognize that since Mr. Saunder's involvement, you know, and honestly probably even before then, but especially since his involvement, there has been si nificant progress made. Howeve Mr. Gebhardt 'ointe . oncerne. lS has ~ f~r too long We believ~ rn~t makino findinqs today on hese violations will give the final little push necessary to get this ,resolved. Typically you allow for a reasonable perlod of time tor correction. That would be allowed also here, and they would not be harmed if, in fact, they are sincere about completing the compliance. l?ut the concern of staff i R rhilt toJ~' uo nad off and ~ re orts wher mentioned we have the bumper stops in place, ever thin a ears to be se e en e re ac nQ"nin. If we have findinQ if that OCCllrC! ~Cf~;n t.hen, 0 course, repeat violations could be imposed and fines imnosed at that point. But we see no reason -- we don't believe, based on their representations, they would be harmed. I mean, obviously you can build into your order a provision as to the opaque fence which is a little more in dispute that they -- if you wanted to be allowed to pursue a variance. But they must do that immediately and timely, otherwise fines would apply there too. So we don't see any harm. If anything, w~ sep t.ne Pllhlir. ~nd tho noighborhooH hpino benefitted by Page 13 September 22, 1995 proceedinG today to findings. Thank you. CHAIRPERSON RAWSON: AnYbody have any other questions or comments? MR. LAFORET: I have a discussion. I question the validity of the fact that the boats are higher than the fence. I think that if there's an objection in that respect, then they should go to the code -- to the county commissioners and have the code changed that the fences have to be higher than the boats. But up to now the code says a height for a fence for this use, and whether it's sufficient or insufficient is up to the writer of the code as long as the code is complied with. And I believe that is the basis. Now, the other comment by the witness regarding that his contractor didn't build it according to code, I don't think that's an issue here. I think that's a separate issue between he and his contractor. I can only look at this as if there's a violation of code, it's existed for a long time, bang. CHAIRPERSON RAWSON: Any other comments? Questions? Do I hear a motion? MR. ANDREWS: Well, I have a -- I still have a problem before we find findings of fact, that -- and we enforce a fine or anything that we should have some kind of determination for a time limit, and I don't seem to be getting it from anybody. CHAIRPERSON RAWSON: Well, counsel can correct me if I'm wrong. I believe that the only thing before this board right now is the motion for continuance. MR. ANDREWS: Oh, okay. CHAIRPERSON RAWSON: And we haven't actually even introduced the packet into evidence yet or gotten into the merits of the case. Although in discussing whether or not to grant that continuance, we had to talk about some of the facts of the merits of the case. MR. ANDREWS: Yeah. CHAIRPERSON RAWSON: So I believe the only thing we need to decide right now is based on Mr. Saunder's request for some more time. MR. ANDREW: Some more time. Okay. CHAIRPERSON RAWSON: How much time or if any time is up to this board. MR. ANDREWS: We'll decide on that. CHAIRPERSON RAWSON: So I'm asking is there a motion before this board. MR. ANDREWS: Yeah, I'll make a motion that we consider a continuance. CHAIRPERSON RAWSON: Is there a second to that motion? MR. LAFORET: I didn't hear the motion. CHAIRPERSON RAWSON: I think the motion was that we consider giving the respondent a continuance. MR. ANDREWS: Yeah, considering it. MR. LAFORET: I'm not going to second it, no. CHAIRPERSON RAWSON: Is there a second? Motion fails for want of a second. Are there any other motions? MS. LOUVIERE: r m~ke a motion we do not grant a ~ntinu~ncc. Page 14 September 22, 1995 MS. DEIFIK: I second the motion. CHAIRPERSON RAWSON: Moved and seconded that a continuance not be granted. Is there any discussion? All in favor of the motion not to grant the continuance signify by saying aye. MR. ANDREWS: Nay. CHAIRPERSON RAWSON: ~he motion not to arant the ~~ontinuance nns p~ssed 4 to 1. and I ~lPSS now we need to qet into the merits of the case before we make the findings. Is there anything "that staff would like to tell us further? MR. MANALICH: Madam Chairman, at this point I think I would inquire of opposing counsel if it would be their position that they are in a position to stipulate to any of these violations or whether we need to actually have the hearing on the violations. So, Mr. Saunders -- MR. SAUNDERS: I'm sorry. MR. MANALICH: -- at this point they've denied the motion for continuance. I wanted to inquire of you. did you want to contest this matter, or were at least your client willino to stipulat~ ~to th~ violationC! pxistlnq? MR. SAUNDERS: I think that at this point we'd like to hear the evidence. MR. MANALICH: Okay. MR. YOVANOVICH: Would you like to ask the same question of Mr. McMillan? MR. MANALICH: Yes. I I'm sorry. I forgot he's not represented. Mr. McMillan, do you wish to contest these violations at this time then, or do you wish to admit to them? Mr. Saunders indicated on behalf of the Ackermans that they are going to contest this matter. You have the right to do so. MR. McMILLIAN: Do I contest that these -- MR. MANALICH: That these violations exist. MR. YOVANOVICH: You need to come to the microphone and get on the record, please. MR. MANALICH: It's your right to oppose any findings here today, and Mr. Saunders indicated he, for his client, is going to assert that right. Likewise, I assume you also wish to do so. MR. McMILLIAN: Yes, sir. MR. MANALICH: Okay, fine. MS. RAWSON: Then we would at this time hear from staff. And we probably need a motion to introduce the Exhibit A that's been provided, I assume, to the respondents into evidence. MR. MANALICH: Yes. I would at this time have this marked as Staff Composite Exhibit A, and I would ask it be moved into evidence. MS. DEIFIK: I so move. MR. ANDREWS: Second. CHAIRPERSON RAWSON: It's -- Mr. Saunders and Mr. McMillan, the county has requested that -- made a motion to introduce into evidence as Exhibit A the packet that I presume has been provided to both of you. Is there an objection? MR. MANALIeH: This is an approximate 21-page document that has been provided both to opposing counsel and respondents as , well as to the board. Page 15 September 22, 1995 MR. SAUNDERS: In terms of the photographs, is there information in here as to who took the photographs? MR. MANALICH: I believe Mr. Kirby will testify that those are his photographs; is that correct, Mr. Kirby? MR. KIRBY: Yes. MR. SAUNDERS: If you could authenticate, I have no objection. MR. KIRBY: ~aria and I took these on a site visit. MR. SAUNDERS: No objection. CHAIRPERSON RAWSON: Mr. McMillian, do you have any objection to the introduction of the evidence of this packet? MR. McMILLIAN: No, ma'am. CHAIRPERSON RAWSON: It's been moved -- was it seconded? MS. DEIFIK: Yes. CHAIRPERSON RAWSON: It's been moved and seconded that Exhibit A be introduced into evidence for the board's consideration. All in favor? All opposed? It will be introduced into evidence as Exhibit A. Mr. Manalich, you may begin your case. MR. MANALICH: Miss Chairman, as you've observed, much of this has been already heard, but since this is going to be contested, I may have to cover quickly some of the same ground. At this time I would call Mr. Kirby as our first witness. MR. SAUNDERS: If I might interrupt for just a moment, perhaps I can save this board some time and sav aff some time. Oln to 0 ahea an s lpulate a here are a coup e violations here. One, we'll IlS we will stipulate Lh L Lh~ b. ve been crooked, and we will straighten ~he bumDprRJ W~'ll stipulate that there from tlme to~~ l~a~ ee~ poats in the water management area, and that will not -- that violation will not contlnu e mltere the plPe is not. tnprPr- And we'll also stipulate that we on't opaque fence. We -- those three violations will be corrected. We will then apply to the county commission for the appropriate variance on the opaque fence issue. MR. YOVANOVICH: Again, we need to have McMillian come in. Do you agree to that stipulation, or is that -- MR. McMILLIAN: I do. MR. YOVANOVICH: Thank you. MR. SAUNDERS: Now, I would like to ask the board -- I presume that the staff will prepare the appropriate stipulation. I would ask the board to not levy any fines -for ~ poriod of 30 days oE 60 days, whatever period of time you deem appropriate, so that staff 9an confirm that the three violnrions; tnp bumpers. t.he water - management district. and the oioe end. t.hat. those three violation~ 'pave been corrected. I would further ask the board not to levy fines in reference to the opaque fence until after we've had some determination from the county commission as to whether they will permit an amendment to the SDP or variance for the opaque fence. I would also agree to come before this board or ~ommunicate with thIs board in wrlting on a monthly basis for the next three to four months while we're going through that process to keep you fully updated on the opaque fence. If we're not -- if we don't Page 16 September 22, 1995 correct those violations -- those three violations within that period of time that you give us, at that point in time then your fines would be imposed. And then on the opaque fence thing, if I don't communicate with you on a regular basis, we would certainly be expecting you to begin to fine us on that. MS. DEIFIK: I want to be clear on what you're asking. Not levy any fines on the opaque fence until the county commission indicates whether they will hear the variance or indicates whether they will grant the variance? MR. SAUNDERS: Whether they will grant it. But the condition on that would be that I would move this as quickly as lS possible. The county attorney would confirm that we are moving this as quickly as possible. If we get to a point where you feel that we're not communicating with you sufficiently or we're not moving this sufficiently, then you can go back and make a finding that there is a violation in reference to the opaque fence and begin the fines. But we want a -- we want a period of time to apply to the county commission on the opaque fence issue. MR. MANALICH: Madam Chairman, in response, I appreciate Mr. Saunder's willingness to save everyone time here on the proof of the violations. We would agree on the -- I conferred with staff here just this moment. The three violations, my understanding from Mr. Kirby, the pipe, the boat, and the bumpers are things that -- Mr. Kirby, am I not correct -- that can be done relatively immediately? MR. KIRBY: That's correct. MR. MANALICH: We believe those should be ordered in 15 days since they can be done immediately. On the fencing issue staff indicates to me that they are willing to agree to a 30-day time frame to have the necessary application made for a variance to the Board of County Commissioners including -- because I know Mr. Saunders raised this -- the issue on whether the fees can be waived or not. MR. SAUNDERS: Right. MR. MANALICH: But that would all be diligently pursued and properly applied for within a 30-day time frame from today and that it continue to be diligently pursued until a determination is achieved by the board. In the event that either it's not diligently pursued or the board denies any aspect of it, that then immediately the requirement for the fencing go into effect. And I suppose there would be maybe 10 days for the actual fence to be put up from the denial. Mr. Kirby, what would be your position on that? The event that the Board of County Commissioners denies the variance, what time frame would be reasonable to require -- that we can recommend to the board that the fence actually be erected? MR. KIRBY: I would still go for a little bit longer, two to three weeks, because that opaqueness, it can vary. You may fail an inspection on the opaqueness. That's how come my answer was a little vague before, because sometimes the slats work, sometimes they don't. So I would -- I would be inclined to give them somewhere in the middle, between two and three weeks, 15, 16 -- 16 days. MR. MANALIeH: Mr. Kirby, do you have a position in the event that any of these stipulations are not met what should be the appropriate fine if they are not met? MR. KIRBY: I believe we agreed on $150 per day earlier. Page 17 September 22, 1995 MR. MANALICH: What is your basis for that? MR. KIRBY: It -- it's -- it's a smaller fine than the 250. It's not the maximum, and it's not the minimum. We -- the time frame that's surpassed maybe doesn't warrant -- and the -- and the severity of the violations doesn't -- doesn't warrant the maximum, nor does it warrant the minimum, so we selected a fine that's in the middle of the road. MS. DEIFIK: Mr. Manalich, I'm -- I'm confused. I think that I heard a few moments ago you and staff saying that diligent pursuant of the variance would have initiated two to three years ago. And now you're saying that if they start now, that's a diligent show. Which -- which is your position? MR. MANALICH: Well, I think we're trying to be reasonable. I see there is somewhat of a contradiction there as you've mentioned. But in -- in the light -- I think, Mr. Kirby, our position is based on the fact that we've seen further cooperation here at the hearino with a willingness to be locked into soecific time frames and becaus I think we've softened somewhat our position. Had we -- had it been contested, ObV10US y I t lnk we would 'have been in a firmer position than we started off with. Is that correct, Mr. Kirby? MR. KIRBY: Yes. MR. MANALICH: Thank you for letting me figure out my reasoning. MR. SAUNDERS: One point of clarification on the stipulation in terms of the violations. Mr. Kirby indicated during the debate on the motion for continuance that as a practical matter he knows that the bumpers have to be moved from time to time so the boats can be brought in and out. That's just the way the property is physically laid out. And so we're stipulating that the bumpers will always be left the way they're supposed to be, which is straight. But we understand -- I just want staff to understand and the board to understand that when boats are being brought in and out, some of the bumpers are going to have to be moved so that the boats can be moved, but then the bumpers will be put back. So the mere fact that they move a bumper to let a boat in or out will not be a violation, but they will have to put the bumper back straight the way it's supposed to be. I believe, Mr. Kirby, you had indicated that that was what you expected. MR. KIRBY: Correct. There's -- that's a minor violation, that if we find cooperation that please move the bumpers back -- you know, if we stop by and Mr. McMillan immediately does that -- you can always find minor thinqs wrona with any property. I would like to offer somethln thou h that ma be you might want to redesi n our arkin and that -- that's the Solutlon to t e roble MR. SAUNDERS: More than likely when we app y or the variance, we're also going to take a look at the whole site development plan there and -- MR. YOVANOVICH: Madam Chairman, I'm a little troubled by the word diligently. I don't really know what that means, and I think we need to have some objective standards here, otherwise it's going to come back to the board to hear evidence on whether or not they have been diligently complying with your order. I ask Mr. Kirby, is there standards already in the Land Development eode for when you Page 18 September 22, 1995 must respond to a staff's, you know, review of the variance request? Do you have to respond within a certain time, and then if you do not respond, the variance request is -- the application is denied automatically? Are there objective standards already in the code? MR. KIRBY: No. When we make a finding of the board here that, you know, if -- if I'm anticipating correctly that they apply -- properly apply for a variance within 30 days MR. YOVANOVICH: Uh-huh. MR. KIRBY: -- and now that the scenario is that they don't properly apply for the variance within 30 days, what happens then? MR. YOVANOVICH: No, I understand the 30 days to apply. I don't understand how you diligently continue the application process. I don't know what that means. MS. LOUVIERE: I think once you put a variance application in the system, the hearing system, as I'm going to term, this is obviously not going to be an administratively granted variance because those can only be given for lot line adjustments, those types of things. So you're obviously going to go through the whole entire hearing process where it goes to the board of zoning appeals; correct? MR. SAUNDERS: That's correct. And I think in terms of the use of the word due diligence, we frequently use reasonable time, exercise of due diligence. Those are not terms that are foreign to lawyers. We use those all the time. What we're saying is that any delays in the processing of the application for the variance will not be the fault of the respondents. As all of you know, frequently when applications are filed there sometimes are delays in staff review. Sometimes there are delays because the county commission isn't meeting at a particular time or because a county commissioner may want to continue a particular item. MS. LOUVIERE: Can I ask you a question? When you apply for this variance, normally planning staff is going to make a recommendation to you to grant it or not to grant it. If they -- if they recommend not granting, that's what the planner's position is going to be, are you going to continue -- MR. SAUNDERS: Absolutely. That's what county commissioners are for. They don't always agree with their staff. So to say that we will be bound by staff would not be reasonable. MS. DEIFIK: What time frame do you actually see this taking? MR. SAUNDERS: Well, staff has indicated that a variance could take anywhere from three to five months. We just don't know. We will get the application filed. We will push it as quickly as we can. And I'll report back to you to let you know where we are in the process. The only thing I can tell you is that if there are delays, it will not be the fault of the respondents. We will diligently pursue this and make it happen as quickly as we can. But we are at the mercy of other people. MR. MANALIeH: Mr. Saunders, that also extends to -- because I know one time you had contemplated asking, given the unique circumstances, for waiver of the fees related to this variance. Your time frame will also apply to any such -- MR. SAUNDERS: Absolutely. We will ask for that at the same time. And if they grant that, fine. If they don't, then we have Page 19 September 22, 1995 to decide whether we just want to go ahead and put the opaque fence in. MR. KIRBY: Mr. Yovanovich, I'll follow up with the answer I had for you. There's been delays in this case, someone's out of town -- the variance, we can't do this because of this reason or that reason. So that's why when we say due diligence, if it's staff's own delays for some reason or another, that won't count, of course. But if, you know, it gets continued because of someone's out of town or, you know, for this reason or for that, you know, that's part of the process. MS. DEIFIK: But then we get into eternal arguments over whose fault it truly was. MR. YOVANOVICH: That's what I'm trying to avoid is you know, I understand we all use those terms. But we always -- what does reasonable mean? They're going to come in and say it wasn't our fault. You're going to say it wasn't our fault. It was their fault. I'm trying to see if we can come up with a better -- a better definition. That's all. I don't want -- right here is a good example of whose fault the whole continuance request earlier on was a question of have we been -- MR. SAUNDERS: We can put a time period in, but then you have to understand that we may come back in and say for a variety of reasons we haven't met your 60-day time period. will you give us another 60 days? We still get into the same argument at that point as to who's been reasonable in the delay. So I don't want to make a big deal out of it. If you want to give us 90 days, but you have to understand that if you give us 90 days and we don't get the variance within 90 days, we're going to expect you to give us more time if it's not our fault. You're in a process that staff will tell you will take anywhere from three to six months, four to eight months. You ask different staff members the question on the variance, and they'll give you different time periods because they don't know themselves. You're asking us to give you a time period. We can't do it. MR. YOVANOVICH: What I'm suggesting, and this is just a suggestion as a number of days. For instance, let's just say that the respondent must respond to any questions asked by the county during the process within seven days. So then if the county staff has delayed it, that's fine. But the respondent must then respond to any requests in the process within seven days. MR. SAUNDERS: Let's hope that seven days don't include four days of a Thanksgiving vacation. It's just absurd, quite frankly. MS. DEIFIK: But, Mr. Saunders -- I certainly respect your argument -- had your client started back in '93 or '94, we would not have this problem today. MR. SAUNDERS: We're dealing with 1995. We're dealing with today. And if you want to go back to 1993 and argue about what happened then, we can do that. We can have a 12-hour hearing on what happened in 1993. We're now at the stage where we're trying to decide how much time we're going to have on the stipulation to file the variance and get it completed. That's the only issue. And if you want to give us a time period, be free to do it, but we're going to have the same argument 30 days from now or 60 days from now as to what was the cause in the delay. Page 20 September 22, 1995 CHAIRPERSON RAWSON: I'd like to ask a question of counsel. Assuming the motion is made to give them 30 days to make application to the commission for the variance, what would be a reasonable time limit to put on them to obtain the variance? Somewhere between five and seven months? MR. YOVANOVICH: Probably can get it through at that time period. But I would -- I would again -- I'm trying to leave it a little bit more open. As long as they're continuing to pursue it through the -- diligently pursuing it -- if it has to take nine months, that's fine, as long as staff agrees they're diligently pursuing it. MR. SAUNDERS: There's the D word again. MR. YOVANOVICH: I don't want to put a seven- or nine-month period in or five, but I'm trying to give you an objective response. Your response to staff request for information within a certain period of time, that's your evidence that you're diligently pursuing it. That's what I'm trying to set forth. MR. SAUNDERS: Okay. MS. LOUVIERE: Can I -- can I make a statement here? I think Commissioner -- or Representative Saunders seems so smart, and he's such a good attorney that I think he can get a variance in six months; don't you? MR. SAUNDERS: Okay. Well, first of all, we don't need to make fun of each other here. That's not what we're all about. If you give us six months, we're going to try to get it as quickly as lS humanly possible. And we may be able to do it in three months. I don't know. MS. LOUVIERE: I'm sorry. I wasn't making fun. I was really complimenting you. MR. SAUNDERS: Okay. Well, I appreciate that. MR. MANALICH: Frankly, I would suggest something short of six months because, frankly, I'd have to consult it. I don't typically do land use in my office. But I would recommend for sure that we use the word diligently pursue. I realize, as Mr. Yovanovich just pointed out, that may be a subject of some argument, but you'll be the judge of that. It's just hard to put a time frame because of all of the contingencies that can go into these processes. But it would seem to me that it's pretty clear to me that within 15 days the three violations, without talking about the fence, have to be done, also that the application and any waiver of fees has to be properly applied for within 30 days. And I would suggest to the board fixing this at 90 days for the variance and then putting the burden on the respondent to return if he has not achieved a conclusion within that time frame to justify why he has not. MR. SAUNDERS: That's fine. And we all know, though, going into this that it's impossible to get a variance in 90 days. But that's fine. We'll be back in 90 days. MR. MANALICH: First off, I don't want an impossible burden. Is that your position? I mean, if it is, I don't want to give you a 90-day impossible burden. MR. SAUNDERS: Well, I think you know it's impossible. MR. MANALIeH: I don't know that. MR. SAUNDERS: Okay. MR. MANALICH: What is -- in your opinion, what lS Page 21 September 22, 1995 realistic? MR. SAUNDERS: four months to get four to six months days. MR. MANALICH: All right. MR. SAUNDERS: And if we're not able to get it, then we'll be back on our hands and knees begging for another 30 days, but hopefully that won't happen. MR. MANALICH: I would join in 120 days. MR. SAUNDERS: Okay. MR. LAFORET: I'd like to ask counsel a question. Counsel, this discussion of anywhere of 30 days to 7 months to have the fence done, this discussion seems to me is predicated on the fact that we're going to give any time. MR. YOVANOVICH: Right. You have not agreed to any of this. You'll have to consider what has just been negotiated between the parties. You'll make the decision whether you agree with it or not. You may impose a difference. MR. MANALICH: Ms. Deifik brought up the question that originally we had taken the position that the fence should go in right now, but in talking to my staff member, he's indicated that given the substantial progress, given the gestures of compliance that was made today, that staff would not be opposed to the 120 days for the conclusion of the variance proceeding. So in that respect, as Ms. Deifik pointed out, our position changed based on what occurred here this morning. CHAIRPERSON RAWSON: Any further discussion? Questions? Comments? Anybody have a motion? MR. LAFORET: I would like to make a motion to the effect that no time be extended on this project for completion, the penalties to begin -- the fines to begin immediately. CHAIRPERSON RAWSON: There's been a motion. Is there a second? MR. SAUNDERS: First of all, let me say that the motion is out of order. You don't have any -- unless we have a stipulation, you don't have any facts in the record. And we're not going to stipulate facts and then begin fines today. So if that's going to be the motion, I would say that that motion is out of order. If there is no motion to give us the time, then we go back to the fact that we have no stipulation. We start allover again. MS. DEIFIK: Mr. Yovanovich, was there a joint stipulation -- I'm sorry, I may have missed it -- contingent upon the -- the waiver and the -- MR. SAUNDERS: Let me assure you that it was my intention that we're talking about one package on the stipulation. I did not intend to stipulate that there was violations without this issue. As a matter of fact, in my statement concerning the stipulation I mentioned the opaque fence and the fact that we needed time. So we won't get caught on that. MR. YOVANOVICH: I did not hear the fact that the stipulation as to violations was contingent upon a certain penalty being imposed upon the parties. Could we go back to -- MR. MANALICH: To make it easier, we have no objection I've never heard of it being less than a variance. But I've heard the time frame between is what I've heard. So why don't you make it 120 Page 22 September 22, 1995 if the stipulation wishes to be withdrawn. We'll certainly hear the case. MR. SAUNDERS: Only -- only if that motion -- MR. MANALICH: I'm not going to hold him to that, though. I think they should be allowed to withdraw their stipulation if it's not going to be accepted and other motions are made. MR. SAUNDERS: I appreciate that. MR. YOVANOVICH: Well, then we need a proposed -- we're just kind of out of order here. I mean, you either -- I think what you've got to do is -- I don't think we can tell the board that here's a take it or leave it type thing, close the hearing, and if you don't get the results you want, reopen the hearing. I think you're going to have to either stipulate to the facts that there's a violation, or you have to go forward with the hearing. I don't think you can broker an agreement, be unhappy with the agreement, have the board go through it's findings of fact, conclusions of law, recommend an order, and then not agree to it and say I now want to hear the evidence. CHAIRPERSON RAWSON: The other way we could do this, thinking like a lawyer again, is if the two parties are stipulating to facts -- findings of facts, conclusions of law, and a proposed recommendation to the board for what we can do about imposing fines and giving time limits, the parties could come back to us with a stipulated agreement and simply ask us to approve it. MR. MANALICH: I think that's where we're at. I think the intent was that Mr. Saunders offered a proposed stipulation that staff indicated they were willing to accept. I don't think I would want to create a record, nor my staff here, if there's ever an appeal of this that would lock them in to having admitted on one basis and then another motion being made. I just -- I don't think that would be, quite frankly, fair. And I think it would be questioned on appeal. And my duty is obviously to prevail. So my position is that if they want to -- if for whatever reason they want to withdraw the stipulation because of whatever motion is made by the board, I would have no objection to that occurring. However, we still are willing to do the stipulation per staff's perspective. MR. SAUNDERS: Well, I think it may be a simpler matter than we're making it. Right now there is a motion on the floor that has not been seconded. We have a stipulation that staff and the respondents have come to you with that we think resolves the issue. If Mr. Laforet's motion is seconded, and it appears that it's going to be approved, then I think we've got -- we've got a problem. But if his motion isn't agreed by the board, then I think we have a stipulation. I hate to throw out the stipulation and start allover again when we may, in fact, have a stipulation. But I just wanted to state for the record when the motion was made that we entered into this discussion -- I entered into the discussion under the impression that it was a whole package in terms of the stipulation. If Mr. Laforet's motion is not seconded or if there's not going to be support for that motion, we still have a stipulation. We can still resolve that the way staff has recommended. eHAIRPERSON RAWSON: Why don't we do this. Let me ask if there's a second for Mr. Laforet's motion. Not hearing a second, it dies for want of a second. Now, let me ask the respective counsel if you would like Page 23 September 22, 1995 to take some time to -- take a break or we'll hear our next case, and the two of you can go and come back to us with a stipulated total agreement and ask for our approval or not. Is that what you would like to do now? MR. MANALICH: Frankly, I think that exists right now, but what occurred was that the board responded to that with a motion that was different than what the stipulation was. That's-- MS. DEIFIK: But is that going to happen again and again? What if someone makes a motion that varies in some slight detail from Representative Saunders proposal? And, again, I go back to Mr. Yovanovich. I heard, with all due respect, two different things, and I really have no vested interest in it being either way. But I just don't want to stay here all day while we go back and forth and say, well, we don't like that motion so -- MR. SAUNDERS: Well, I think the stipulation is that on the bumper stops, on the boats in the water management area, and the pipe end, we will correct that -- those -- we stipulate that there is a violation, and we will correct those violations within 15 days from the date of the entry of that order that there is a violation. MR. MANALICH: Well, we would ask from today. MR. SAUNDERS: Fifteen days from today. And on the issue of the opaque fence, we're stipulating that there is a violation that the SDP or whatever the appropriate document is requires an opaque fence, but there will be no imposition of any fines until after -- I believe staff was suggesting 20 days or 15 days after a final resolution by the county commission on whether we can get a variance or not on that issue and that we will use -- we have 120 days to get that variance. MS. DEIFIK: And my question is if the board comes -- first of all -- or excuse me because I'm losing my voice. Are you willing to separate those first three violations from what's going on with the fence? And if not, if the board were to say we're going to give you 119 days or we want fines of $50 a day to initiate after five months, are you then going to come back and say, well, I withdraw my stipulation to the violation, and then Mr. Manalich and staff have to put on evidence? We'll go back and forth. MR. SAUNDERS: No, I'm not going to be unreasonable. It's a matter of degree. But Mr. Laforet's motion was to find violations immediately and begin fines today. And so, you know, that was a rather dramatic change from what we were talking about. If you're -- minor tweaking -- tweaking with the stipulation is -- is going to be fine. It's a negotiation process so, no, I'm not going to do that. If you want to separate those three, that's fine. MS. LOUVIERE: So basically there is two parts to what you would like to see happen. One is you want 15 days to be able to complete those three items; correct? MR. SAUNDERS: That's correct. That was staff's recommendation. MS. LOUVIERE: And that after that you want 30 days to be able to file your variance. And I propose that you have to have it within, hand your variance granted within 120 days, that is six months (sic) . MR. SAUNDERS: MS. LOUVIERE: Right. I mean, you have to have it. Page 24 September 22, 1995 MS. DEIFIK: Well, Mr. Yovanovich -- MR. SAUNDERS: I'm sorry. 120 days from -- from now would be the -- MR. YOVANOVICH: I like the chairman's approach that you come with an agreement of what it's going to be. If it's accepted by the board, fine. If it's not accepted by the board, we need to get on and put the case in, or else we're going to be here all day going back and forth saying it's 118 days. That's okay with you, but $150 a day is not fine to me. At some point there's got to be a take-it-or-Ieave-it approach. CHAIRPERSON RAWSON: I'd like to see that because I don't want us to be in the position of trying to change one or two words of your agreement. We're either going to approve your stipulation or we're not going to approve your stipulation. If we don't approve your stipulation, then we're back to square one. MS. DEIFIK: Just put on evidence and get on with it. MR. MANALICH: Well, my understanding is there is currently a stipulation that we can have for you right now for either approval or disapproval. And I can -- the terms of that, just to be clear, are there -- that there will be from today's date 15 days for the respondents to take care of the bumpers, the boats, the mitered pipe. If he does not do that within those 15 days, $150 a day fine. Secondly, within 30 days from today's date there shall be diligent application for the variance and/or the waiver of fees related to that variance, and that will be done within 30 days. And no later than 120 days from today's date that variance will be brought to conclusion unless counsel -- MR. SAUNDERS: I'll have to show good cause at that point. MR. MANALICH: -- comes before this board and show good cause as to why it was not granted. If at any point in that 120-day process they do not diligently pursue or if, in fact, they do not obtain the variance at the end of that process without showing good cause, then at that point there would be an additional 15 days granted for the opaque fence to be installed. And if any of that is violated, then $150 a day would apply on that also. MR. SAUNDERS: That's correct. MS. DEIFIK: And would the 15 days start to run from the denial of the variance, not from the end of the 120 days? MR. SAUNDERS: From the denial of the variance. MS. RAWSON: And the -- MS. DEIFIK: And would the board further be free to set the fine at -- at whatever level they feel appropriate at that point in time if it's not done, or are we going to be confined to the 150? MR. MANALICH: I would have no problem with that. Counsel, what is your position on that? MR. SAUNDERS: I certainly would have no objection to a hearing on the issue of the amount of the fine at that point. eHAIRPERSON RAWSON: And the 30 days to make application to the commission -- MR. SAUNDERS: So, Mr. Manalich, if you would in the stipulation you're not putting in the fine; it's just that the board would determine the fine. MR. MANALICH: Well, we would ask 150 be applied on the Page 25 September 22, 1995 immediate 15-day three items. MR. SAUNDERS: Right. I meant on the fence. MR. MANALICH: But as to the opaque fence I believe the board has made comment, and you have also, that you would like to have a hearing on the amount of the fine for the opaque fence MR. SAUNDERS: Right. MR. MANALICH: -- and I have no objection. We have reserved rights to ask for whatever fine we think appropriate. It could be in excess of 150. MR. SAUNDERS: I understand. CHAIRPERSON RAWSON: My other question, just to make your stipulation clear, the 30 days to make application to the commission begins today? MR. MANALICH: Everything starts running from today. MS. RAWSON: Okay. MS. DEIFIK: Mr. Saunders, do you need 30 days to make that application? MR. SAUNDERS: I'm not sure what we're applying for. I'm not sure at this moment whether it's a variance. I'm not sure, if it is a variance, whether we have to throw in the water management issues and some other issues. If we do a variance, we're probably going to look at the entire package anyway, so I'd like to have the 30 days. I just don't know how long it's going to take. If I can do it sooner, I will, but -- CHAIRPERSON RAWSON: Having heard the terms of the stipulation, I think that the only thing this board needs to do -- and counsel you can correct me if I'm wrong -- is to make a motion whether or not to approve the stipulation. MR. YOVANOVICH: That's correct. MR. ANDREWS: You both agree? This is all on tape anyway. You agree on the stipulations, both of you? MR. SAUNDERS: Yes. MR. ANDREWS: I'll go ahead and make a motion that we accept -- MR. MANALICH: Staff indicates that that's their preference. CHAIRPERSON RAWSON: Do I hear a second? MS. DEIFIK: I'll second. CHAIRPERSON RAWSON: It's been moved and seconded that the stipulation as presented to us by respective counsel for the Board of County Commissioners and the respondent maybe I should before we go on to the motion ask Mr. McMillan if he is in agreement with this stipulation as well. MS. DEIFIK: Also we need to modify the motion and -- and make it clear if it's not already clear that if at any time during these monthly reports back we find that they're not acting with due diligence, we're free to take whatever action we feel appropriate at that time. eHAIRPERSON RAWSON: Any comment on Ms. Deifik's modification? MR. MANALICH: I have no opposition to that. Are you envisioning reports from the respondent or from staff or both? MS. DEIFIK: Mr. Saunders said that he would take responsibility of making sure we were advised. Page 26 September 22, 1995 MR. SAUNDERS: Yeah, I have no objection to our requirement that we exercise due diligence during that 120 days, and we will keep the board informed as to where we are with it. MS. DEIFIK: And that if -- MR. SAUNDERS: If you make a finding that we have not been diligent in our efforts during that 120 days, bring us back here. That's fine. CHAIRPERSON RAWSON: Mr. McMillan, have you heard the terms of the stipulation? MR. McMILLIAN: Yes, ma'am, I have. CHAIRPERSON RAWSON: And are you in agreement with those terms? MR. McMILLIAN: Total. CHAIRPERSON RAWSON: It's been moved and seconded that the stipulation be approved. Is there any further discussion? All in favor signify by saying aye. The stipulation will be approved unanimously, and I would like to ask respective counsel after the transcript is typed that you reduce this to writing and both sign off on it, have Mr. McMillan sign off on it before I get it to sign. MR. MANALICH: Let me just clarify that. I would propose that our able advisor to the board, Mr. Yovanovich, draw up the stipulation and order, share it with both counsel for then submission to -- for your approval. Mr. Yovanovich? MR. YOVANOVICH: That's fine. MR. SAUNDERS: Again, I want to thank staff for their patience in helping us get through this. I want to thank the board for your indulgence on the stipulation. I think we'll get this resolved, and everyone will be satisfied with it. Thank you. CHAIRPERSON RAWSON: Thank you. Next case is BCC versus Jack Queen. Mr. Allen, you may come back. MR. MANALICH: Miss Chairman, just for a moment, just for clarification to the board and members of the public, that was the only hearing on which I acted, as the ordinance allows, as counsel for staff. For the rest of these proceedings I will not be advising staff. I will -- and I have not in any of these cases done so in the past. I will be returning to my normal role with you as your advisor. MS. DEIFIK: Before Mr. Yovanovich leaves, I would just like in the future for us to make sure that we don't get into a situation like that where somebody stipulates to the evidence and then says, well, I didn't mean it. MR. YOVANOVICH: I apologize for that, but I thought that was clear. MS. DEIFIK: I'm not blaming you. I'm just saying let's take precautions to be sure that it's clear. MR. YOVANOVICH: I thought it was clear. I didn't hear any contingent offer that we were stipulating to the fact. MR. MANALIeH: And, you know, in behalf of Mr. Yovanovich, I mean, he, I think, was very clear as to what his position was on that. I took the view that to best protect the record for the prosecution MS. DEIFIK: I understand. But I think he heard and I Page 27 September 22, 1995 heard the same thing. MR. MANALICH: Okay. MR. YOVANOVICH: Right. MS. RAWSON: Thank you, Mr. Yovanovich. You've earned your money today. MR. YOVANOVICH: I certainly did. Not that I haven't earned it others times; right? CHAIRMAN ALLEN: Shall we continue? Staff, shall we continue with the Collier County Commissioners code enforcement against Mr. Jack Queen, CEB number 95-011? MS. CRUZ: Yes, sir. Case number CEB 95-011, Board of County Commissioners versus Jack A. Queen. Let the record show that Mr. Queen is present. This case is before this board. On July 27, '95, his case came before this board. On August 24th, '95 after testimonies and arguments in regard to this matter were heard, the board decided to continue this case till today, October -- September 22nd. Mr. Chairman, Mr. Queen is before this board due to increasing of a nonconforming structure occupying a greater area of land and structure without proper permits, which is allegedly a violation of the Land Development Code 91-102, Section 2.7.6, paragraphs 1 and 5. Mr. Queen, are you willing to stipulate to the violations? MR. QUEEN: Yes. MS. CRUZ: Let the record show that Mr. Queen has stipulated to the violation. On March 6, '95, code enforcement conducted an inspection at the property located at 211 Ninth Street North, Immokalee, Florida, more particularly described as Township 47, Range 29, Section 4, Parcel 39. Code enforcement investigator Dave Hedrich inspected the property which at that time found the violation described before as existing. First of all, we'd like to introduce this composite exhibit into evidence. MS. RAWSON: I so move. MR. ANDREW: Second. CHAIRMAN ALLEN: We have a motion and second. All in favor signify by saying aye. So moved. MR. MANALICH: Mr. Queen, did you have any objection to the admission of evidence of that composite exhibit that you were provided a copy of? MR. QUEEN: Copy of what now? MR. MANALICH: This is the staff packet of information that MR. QUEEN: Oh, this -- MR. MANALICH: That you were provided while -- MR. QUEEN: I guess you meant to say months before. MR. MANALIeH: That's right. It's approximately how many pages, Ms. Cruz? MS. CRUZ: Twenty-four pages. MR. MANALICH: It had some photographs, I believe. MS. eRUZ: That's correct. MR. MANALIeH: You have no objection to that? MR. QUEEN: No. It is true. eHAIRMAN ALLEN: Excuse me. Let the record reflect 25 Page 28 September 22, 1995 pages. MS. CRUZ: 24 pages -- I'm sorry, 25 pages including the photos. MS. CRUZ: Mr. Chairman, at this time I would like to call Investigator Hedrich to the stand. MR. MANALICH: Ms. Cruz, does the court reporter have a copy of that Staff Composite Exhibit A? MS. CRUZ: Yes, she does. MR. MANALICH: Okay. I'd like to have that marked at this time to avoid any confusion as staff Exhibit A. If you will give me just a moment. (Staff Exhibit No. A was marked for identification.) MR. MANALICH: Thank you. THEREUPON, DAVID HEDRICH, a witness, having been first duly sworn, upon his oath, testified as follows: DIRECT EXAMINATION BY MS. CRUZ: Q. State your name for the record, please. A. I'm David Hedrich, Collier County code enforcement investigator. Q. Mr. Hedrich, I believe you have been at the subject property located at 211 Ninth Street North, Immokalee? A. Yes, I have. Q. would you please tell this board what your findings were during your visits? A. Upon my visit we found violations to include additions to a nonconforming structure without the proper Collier County building permits. Q. Did you have a chance to review our permit records? A. I did. Q. Did you find if there was a permit for the subject violation? A. No, I found no such permit. Q. Did you advise Mr. Queen of the violation? A. Yes, I did. Q. Did you -- did you serve him with a notice of violation? MR. QUEEN: Excuse me. Didn't all this go through isn't this all on record that this happened? Do we need to go through it again for records? Right now, see, we removed the building, and this is why I thought we came here today, to settle that part of it. This has all been on record for months. MS. eRUZ: Okay. MR. QUEEN: Do we need to go through all this preliminary stuff again? MR. MANALIeH: My notes indicate that this case began to be presented, and some of this ground was covered at the prior hearing. Then the issue came up, which was directed to my office and which I copied all of you on, as to whether or not he would have the opportunity to appeal to the board of zoning appeals. We exhaustively looked at it. We rendered a final opinion saying no, he was not. Page 29 September 22, 1995 Basically Mr. Laforet had made a motion at the previous hearing that based on the testimony presented at that time that my office had rendered the opinion and that if the opinion was he had no appeal to zoning appeals, then this gentleman had to return, indicate what he had done to comply; is that correct, Mr. Laforet? That's my recollection of your motion. So I think there's been an -- an admission to the violation. The Staff Composite Exhibit A is in evidence. I think we can short-circuit some of this by getting directly to the issue of compliance. CHAIRMAN ALLEN: Let's please do. If we have no more information -- MR. MANALICH: Unless there's something new that staff wants to bring up. MS. CRUZ: Have you had a chance to inspect the property lately? MR. HEDRICH: Last inspection was last month. MS. CRUZ: Mr. Queen, what have you done to resolve the violation? MR. QUEEN: We have removed the structure. MS. CRUZ: No further questions from staff. CHAIRMAN ALLEN: Any questions? MR. LAFORET: Does the property now comply? MR. HEDRICH: I -- I can't conduct a reinspection. As of this date, as of right now I have no confirmation that the violation has been removed. Reinspection will have to occur. MR. QUEEN: All right. But I do have some pictures here of before and after removal. Would you like to have those? MR. MANALICH: While you're looking at that, I would just like to point out that Mr. Queen has been very diligent in approaching this office, trying to work within the system after he failed to make his timely appeal. CHAIRMAN ALLEN: Well, counsel, if these photographs are correct, what you're telling us, that the motion that Mr. Laforet had last month at last month's meeting, that if he couldn't get the appeal, everything would be removed, that has come into compliance. MR. MANALICH: Yeah. Basically Mr. Laforet's motion was if he did not have the appeal, which he doesn't, then he would have until today's date to prepare evidence of his efforts to move the structure or to make lease arrangements or make whatever other arrangements are necessary to comply with the codes, and I think that's what he's showing us now. MR. QUEEN: Yes, sir. Would you like to have some of these for the record? MR. MANALICH: Yeah. If -- would you like those admitted into evidence? MR. QUEEN: Yes, I would. MR. MANALICH: Let's mark those as -- how many pictures are those, Mr. Queen? MR. QUEEN: Well, we've got some of before we got started. Let me get you some -- MR. MANALIeH: Who took these pictures, Mr. Queen? MR. QUEEN: I did and my assistant. MR. MANALICH: When were they taken? MR. QUEEN: This was taken about two weeks ago. This Page 30 September 22, 1995 was taken during the removal part, and this is where we stored the building. MR. MANALICH: Is it your testimony -- MR. QUEEN: This is the area where it was standing before. MR. MANALICH: Is it your testimony that these pictures show that you have removed the structure that was in violation? MR. QUEEN: It is. MR. MANALICH: Okay. Which are the pictures that you would like admitted into evidence? These four? MR. QUEEN: Yes., MR. MANALICH: Okay. Let that be marked then as Defendant's Exhibit A. (Defendant's Exhibit No. A was marked for identification.) CHAIRMAN ALLEN: Excuse me. In the light of these photographs that Mr. Queen has brought, would staff like to readjust? We'd like to change? I'm asking a question. Should we amend our order today saying that it is into compliance? MS. CRUZ: Staff would like to ask for some time to do an inspection of the property. And upon notice -- if the violation has been removed, then we can come back to our next board meeting, and at that time if we note that the violation has been removed, then we will request that the case be dismissed. CHAIRMAN ALLEN: Fine. Do you have a problem with that, Mr. Queen? MR. QUEEN: No problem with that. CHAIRMAN ALLEN: Members of the board, is there any discussion? MR. McCORMICK: If it has been removed, if we find that he is not in violation, does Mr. Queen have to come back next month? MS. CRUZ: If he is not in violation, then we won't have to cite Mr. Queen to come back to the board to our next meeting. MR. McCORMICK: If he's not in violation, the structure is removed -- MS. CRUZ: I'm MR. McCORMICK: MS. CRUZ: No, MR. McCORMICK: would be MS. CRUZ: Right. MR. QUEEN: Could Mr. Hedrich tell -- be able to tell me if there's any other violations when he inspects it then so I'll know if I need to come back? MR. HEDRICH: Absolutely, absolutely. MR. QUEEN: All right, sir. That's good. MR. MANALICH: Mr. Queen, is there any other evidence or testimony that you wanted to present today? MR. QUEEN: No. But I want to say I appreciate the shortening of this meeting since we didn't have to recap all of this. And I have things that I need to do, and I want to thank the board for recognizing that we do that. MR. ANDREWS: Do we need a motion? MR. MANALICH: Yes, we need a motion on the record. sorry, if it's not in violation -- does he have to come back? he does not have to come back. It wouldn't be a public hearing. It Page 31 September 22, 1995 MR. ANDREWS: So moved. MS. DEIFIK: Second. CHAIRMAN ALLEN: We have a motion and a second to put the photographs into evidence, Mr. Andrews, Miss Deifik. All those in favor signify by saying aye. Passes unanimously. MR. MANALICH: Then my understanding, Ms. Cruz, is we are not going to reach any findings today based on what's been presented. You simply want the matter to be continued for one month to be dismissed at that time if you confirm what the -- Mr. Queen has indicated. MS. CRUZ: That's correct. MR. MANALIeH: If not, it would return for full, final, and complete hearing on that date. MS. CRUZ: Correct. MR. MANALICH: Mr. Queen, do you understand that if they confirm that, then you'll not need to come back? MR. QUEEN: The only thing I need to be here -- if I do have to come back, I'll need to be notified of the time. I won't plan on coming unless I'm notified. MR. MANALICH: Just one moment. Do we know what that date is for the next meeting? MS. CRUZ: I don't have a copy of the agenda in front of me, but it's on the agenda. MS. RAWSON: It's October 26th. MR. QUEEN: I'm going to be out of town at that time. Well, Mr. Lightner here can represent me. MR. MANALICH: Okay. Just so we're clear so that there's no misunderstanding then, staff is continuing -- asking this case to be continued for one month for them to confirm Mr. Queen's representation that the structure has been removed is in compliance. For whatever reason staff determines that that is not accurate -- if it is accurate -- excuse me, if it is accurate, then the case will be dismissed without the necessity of your appearing here next month. If it is not accurate, then staff will bring this case back for hearing on October 26. Mr. Lightner will be your representative, and he needs to be here if -- MR. QUEEN: Right. MR. MANALICH: So he should check with staff just to make sure everything has been resolved. But I think the board needs to consider a motion on that, and I'm just trying to outline what I have heard as the framework. CHAIRMAN ALLEN: Would you like to pose a motion? MS. LOUVIERE: I make a motion that we continue this matter for 30 days to give staff the time to inspect the site and make sure that it is -- that the structure -- the nonconforming structure has been removed and that Mr. Queen is in compliance. And within that time if we find that this matter has been resolved, then Mr. Queen is no longer -- is in compliance, he will not have to come before this board again. MR. ANDREWS: So second. CHAIRMAN ALLEN: We have a motion and a second. All those in favor? It carries unanimously. Page 32 September 22, 1995 Thank you, Mr. Queen. MR. QUEEN: Thank you. MR. MANALICH: Mr. Queen, thank you. I'm sorry we could not find a way for you to appeal, but we appreciate your cooperation. MR. QUEEN: Maybe we can go through the proper procedure now, see what we can do with it. MR. MANALICH: All right. MR. QUEEN: Thank you. CHAIRMAN ALLEN: Let's take about a five-minute recess. And we need to have the new director of code enforcement -- would you like to introduce yourself to all the people here that don't know you? MS. CRUZ: Yes, under new business. MS. SULLIVAN: I'm Linda Sullivan. I'm glad to be here. MS. CRUZ: Miss Sullivan is our new code enforcement director. CHAIRMAN ALLEN: A lady slammer. MR. ANDREWS: Hey, we're getting outnumbered here. MS. LOUVIERE: Welcome aboard. CHAIRMAN ALLEN: Anybody want to take five, or do you want to go on with this thing? MR. ANDREWS: It's a shorty here. CHAIRMAN ALLEN: Let's cancel the recess and go ahead with our old business. CEB 95-012, Collier County Board versus the Filostins and Ocepha Polite, pardon me. MS. CRUZ: Mr. Chairman, Louis Filostin and Ocepha Polite on case number 95-12 appeared before this board on July 27, '95. At that time they were found in violation of allowing -- failing to demolish or remove the unauthorized structures illegally placed on the described property as Joyce Park, Block C, Lots 5 and 6. This board ordered the respondent to remove this violation by August 28th, '95. Staff conducted a reinspection on September 6th, '95, which reinspection revealed violations remained. At this time staff requested an order of imposing fines be filed for the total of $1,350 for the days of August 29th through September 6th, '95. MR. McCORMICK: And are those fines continuing daily? MS. CRUZ: Yes. CHAIRMAN ALLEN: In the report did they promise that they would move the people that were occupying those little cabanas behind the house? Were those people moved and -- they had been removed? MS. CRUZ: Yes. CHAIRMAN ALLEN: And the power lines to such structures had been removed? MS. CRUZ: Correct. MS. DEIFIK: But the structures haven't been removed? MS. CRUZ: No, the structures still remain. They're still on the property. MS. DEIFIK: Didn't -- last time we levied fines only against Louis Filostin. MS. CRUZ: That's correct. eHAIRMAN ALLEN: Excuse me. I've got a problem with that in the fact that since CEB fines the property -- okay, we're Page 33 September 22, 1995 going to levy a lien on the property, okay. How do you -- and I know we did this, but we levied it against Louis Filostin, but the property is in her name also. So although we levy -- which rather segregates the fine -- we levied it against Mr. Filostin, the lien still goes on the property in her turf. MS. CRUZ: Perhaps counsel can comment on that. MR. MANALICH: This is one where, if I recall correctly, I had advised that both parties be proceeded against, but the board did not believe that the equities of the situation were such that it warranted fines going against the lady that was here, I believe, Ms. Polite. That's why it was done in that way, and a vote was taken on that. CHAIRMAN ALLEN: Right. MR. MANALICH: Now, obviously it is problematic in the sense that -- is Miss Polite the owner of the property? MS. CRUZ: Uh-huh, correct. MS. DEIFIK: That could be resolved if she were to get a court order directing that the lien come from his share of the proceeds, but I'm of a mind -- and that would be litigation between them that would influence the status of the property. But I'm of a mind at this point in time to levy fines if -- for her failure -- obviously I realize we have to give her the 30 days and go through the procedure again, if -- if she doesn't get it removed within the next 30 days, something like that. MR. MANALICH: Now, one item, I noticed that neither respondent is here today. However, I believe that they were provided notice of this hearing, were they not, Ms. Cruz? MS. CRUZ: Yes, they were, which notice came back marked unclaimed. MR. MANALICH: It went to both individuals? MS. CRUZ: Yes. MR. MANALICH: And was both certified mail returned unclaimed by both? MS. CRUZ: That is correct. MR. MANALICH: It would appear to me that the minimum threshold of notice was met. MS. LOUVIERE: I have a question. You said that the people are no longer living there, and the FP -- and the power has been disconnected to the -- MR. HEDRICH: Correct. MS. LOUVIERE: Okay. I think that's great. Last time she was before us I kind of felt that she might have trouble getting the structures down and that we were going to try to maybe help her actually bring them down or something to that effect. Didn't we discuss something like that? MR. HEDRICH: We discussed methods through county ordinances, perhaps unsafe housing and so forth. MS. LOUVIERE: Right. MR. HEDRICH: And we were going to pursue maybe have these shacks torn down. MS. LOUVIERE: Right. MR. MANALIeH: Our order stated that -- if you'll give me just one moment -- if respondent Filostin does not demolish or remove the unauthorized and unpermitted structures occurred by this Page 34 September 22, 1995 order, the county shall do so by whatever legal means are available. MS. LOUVIERE: I remember that. MS. CRUZ: What the county would have to do is re-cite the respondent under the Ordinance 76-70, which is the unsafe structures, and follow those procedures that are listed on that ordinance. MR. MANALICH: If you'll give me just a moment, I'm also looking at Chapter 162. I know last year there was a change which talked about situations involving threats of public health, welfare, safety. If the violation is of a type that presents a serious threat to public health, safety, and welfare, the enforcement board shall notify the local governing body which may make all reasonable repairs which are required to bring the property into compliance and charge the violator with the reasonable cost of the repairs along with the fine imposed pursuant to this section. The question, I believe, becomes, without having to go through the unsafe structure ordinance, is whether under this provision which was just added last year if the board makes a -- I believe we already have made a finding that some of these violations did pose this type of threat. We may be able to at our expense remove or demolish the structures and then bill the respondents in addition to the fines. But we'd have to confirm, again, that we have that threat existing now because of the structures. I don't know if the -- if the threat was simply because of the electrical cords that apparently have been picked up or whether it was the actual structures themselves that were the threat to public health, welfare, safety. MR. McCORMICK: I think it was the structures themselves and everything about it. There's other homeowners in the area, and there was raw sewage running over into their lots. I think that was a primary concern as anything about the electrical. MR. MANALICH: Well, I mentioned that because that may be what you want to do. It appears that there's lawful authority to do so. MR. McCORMICK: Then what would the advantage or the difference be between what you just described and Ordinance 76-70? MR. MANALICH: Well, under 76-70, as Miss Cruz mentioned, I believe we have to go through some notice provisions. It's essentially starting a new procedure for an unsafe structure, and that's going to at least tie up, you know, a number of days, whereas this, if we want to, we can act immediately and then bill the respondents if we ever can collect. eHAIRMAN ALLEN: I'm just looking at an economic thing. I mean, we all agree that we didn't want to hurt Miss Polite. Economically this can be better to knock these buildings down than let the fine run at $150 a day. MR. McCORMICK: That's what I was going to say also. CHAIRMAN ALLEN: The more expeditious we can act, the less burden she's going to have eventually. MR. McCORMIeK: I think so. MS. LOUVIERE: Do we have to make a motion then that to go ahead and act under the statute that you just quoted and and to go and find the buildings unsafe? MR. MANALIeH: Yes. I mean, I think the only question I Page 35 September 22, 1995 have here is when I read it it says, which may make all reasonable repairs required to bring the property into compliance. MS. LOUVIERE: But basically we cannot -- these are nonconforming structures. They were not built with a building permit. Therefore, we can't repair something that was illegally erected. MR. MANALICH: Yeah. I guess the question is it's really not a repair involved here. MS. LOUVIERE: Right. MR. MANALICH: We're actually talking about removal is the only solution, is what I understand. I'm trying to interpret the statute as to whether repair is limiting us -- MS. DEIFIK: Where did you get that language? MR. MANALICH: The language is that if the violation is of a type that presents a serious threat to public health, welfare, and safety or is irreversible or irreparable in nature, the enforcement board shall notify the local governing body, essentially staff, which may make all reasonable repairs that are required to bring the property into compliance and charge the violator with the reasonable cost of the repairs. MS. DEIFIK: It says repair the property. It doesn't say repair the building. Couldn't that be broad enough to mean remove things? MR. MANALICH: I tend to think so. MR. McCORMICK: Precedingly it said the threat is irreparable. You know, I think -- I think that the threat is irreparable. MR. MANALICH: This is irreparable and irreversible because they can't be there, and they are -- is it staff's position that these structures, if allowed to remain, will immediately seriously threaten the public health, safety, welfare? MR. HEDRICH: Just the standing of the structures itself, the shabbiness of how they're placed together, they're nowhere near any type of building code or requirement. The danger just in the structures standing there themselves is extreme due to the fact that they could be blown down with the strong wind, which one of them has been partially damaged in that manner during the last storm out there. Chance of flying debris from these things, they are nowhere near secure as being fastened together. They are just very shabbily placed together. CHAIRMAN ALLEN: It's staff opinion that we do have a serious threat and irreparable and irreplaceable? MR. HEDRICH: Correct. CHAIRMAN ALLEN: Okay. Is that broad enough for you, Mr. Manalich? MR. MANALICH: I think there is a small degree of interpretation that needs to be done here, but I tend to think it's broad enough. I hope that the two lawyers that are on board MS. DEIFIK: I think it's a lot better than being sued for people coming down with cholera in the neighborhood or a building falling on a child and killing them because of our failure to act. MR. MANALICH: I mean, it does say -- it does mention if it's irreversible or irreparable. So, I mean, if you're allowed to repair it if it's irreparable, it seems to me that this is Page 36 September 22, 1995 contemplated as a type of situation that we could repair essentially by taking it down. That's how you repair the violation here. CHAIRMAN ALLEN: I thought that was a Miss Deifik motion. MS. DEIFIK: Miss Deifik can't talk. MS. LOUVIERE: I make a motion that staff -- because of staff's recommendation, that this is an irreparable structure. MR. HEDRICH: Correct. MS. LOUVIERE: And that it's causing -- that it has public harm -- that it could cause public harm. MR. HEDRICH: Correct. MS. LOUVIERE: That we go ahead and we make -- I make a motion that we tear the structures down. MR. ANDREWS: I second it. CHAIRMAN ALLEN: We have a motion and a second. Any discussion by the board? MR. LAFORET: I have a question on it. When we take them down, do we remove the debris? MS. LOUVIERE: Yes, sir. I'm sure that they will take the debris away also. MR. LAFORET: I'll second the motion. CHAIRMAN ALLEN: A motion and a second and a second second. All those in favor signify by saying aye. It carries unanimously. MR. MANALICH: Are we also going to address the issue that was before us regarding imposition of fines and whether that order is going to be recorded as a lien? CHAIRMAN ALLEN: What's staff's recommendation? MS. CRUZ: What was the question? I'm sorry. MR. MANALICH: I believe the issue that remains, they have ordered that under 162.09 sub (1) staff proceed with the removal of the structures because they are an immediate threat to public safety. However, this matter was originally here on the issue of the imposition of the fines and the lien. And I think the chairman is asking your position as to whether you want to have that done also. MS. CRUZ: I think so. I mean, I don't think -- I recommend that, yes, we go ahead with the imposition of fines, because there is an order requesting the respondent to comply by a certain date, and the respondent failed to comply by that date. MR. MANALICH: Now, are those fines to continue until you have actually gone out there and removed the structures, or are you going to ask them to just be until today's date or -- MS. CRUZ: I recommend that the fines continue until the violation is removed. CHAIRMAN ALLEN: Okay. So what staff is recommending is that in addition to the fines, let's say, for instance, it's going to take staff two weeks to get bids in in order to get numbers to tear this thing down, okay, so we know it's going to be a four or five thousand dollar item to remove these items, so we're going to have another three thousand. So we're talking a total of say seven or eight thousand dollars of cumulative fines that become a lien against the property; is that what we're hearing? MS. eRUZ: Yes, sir. MR. MANALICH: I think the question you'll have to Page 37 September 22, 1995 answer, which was already brought up before, is whether that will be consistent with your direction previously regarding the equities of the situation. I know that at least some -- well, I guess, apparently a majority of the members previously voted to be concerned about whether the lady here, who has a very emotional situation, should be penalized for this or not. They clearly found that the gentleman that did not even appear, Mr. Filostin, who is the one responsible for the structures. That would be fine, but I'm hearing that she is the property owner. So I just want you to understand that in your decision. CHAIRMAN ALLEN: I'd like to make a comment to staff and see what you think, okay. If the greater of the two fines be imposed -- if we let the meter run from today forward, let's say we're at X amount of dollars today, and it takes another three weeks to get to this point, that may be three or four thousand. If it takes four or five thousand to tear it down, we take the greater of the two fines but not the combination of both. MS. CRUZ: I don't know because the order of the board states if the respondent fails to comply by a certain date, there is a dollar amount per each -- for each and every day the violation remains, so I would imagine that the order would have to be amended. MR. MANALICH: Right. You can always address the reduction of fines if you want to get into that. But as the order presently stands, it provides that the fines continue until compliance is achieved, whether it be through staff's efforts or the respondent's efforts. CHAIRMAN ALLEN: Well, all I guess I'm saying you know, I agree a hundred percent with what we did but, on the other hand, we're going to burden the lady more severely than she can handle now, okay. I truly believe in my heart if she had the financial ability to take these buildings down, she would have done so. And an additional financial pressure is only going to force her and her family out of the house, too, because we are going to impose the lien, we are going to impose the fine, and eventually staff is going to foreclose. MR. MANALICH: Well, you could amend your order to stop the fines as of -- impose the ones that have been asked up through that date -- they were asked and then basically say that's -- you know, amend your order, say that's as many fines as we're imposing, and then also add the charges of correction. There's different ways you can do this depending on whether you want to amend that order. But the way the order reads now, until somebody achieves compliance, 150 a day, I think it was, is racking up every day. MS. RAWSON: And we're fining her $150 a day no matter how long it takes the county to -- MR. MANALICH: Correct. MS. RAWSON: -- complete this project. MR. MANALICH: Because it's her responsibility under the order. MS. RAWSON: I understand. But if we get the problem alleviated, she's going to have to pay the cost of whatever the county paid to get the problem alleviated, and then if we put fines on top of that, that seems a little inequitable. MR. MANALICH: Well, the order that you have today is Page 38 September 22, 1995 requesting that you impose through, I believe, September 6 -- through September 6. And at that point it was already at $1,350. Like I said, I suppose you could amend your original order to say that you can impose these 1,350, and you can amend your original order to say that the fines will no longer -- will not be in effect past a certain date. There's different ways to approach this, but that's one idea. You could continue the original order and have the fines rack up and then deal with the reduction of fine issue. That's not always been a popular approach. MR. McCORMICK: I like the idea that Chairman Allen brought up about one or the other so that we can make a judgment call on what the total amount of fines is. Possibly we could do that by just imposing the order today for the fines to continue but to request that any costs associated with the destruction and the removal of the buildings would come back to us for its imposition. And at that time we could either just not -- not impose any fines and, therefore, it would be the greater, which was $150 a day, or we could go back and -- and reduce the fines to what that total construction cost was. MS. RAWSON: If that's a motion, I'll second it. CHAIRMAN ALLEN: How does staff feel? MS. SULLIVAN: I was going to recommend that -- that the fines should continue at the rate the board first said the order should continue until the demolition at which time once the demolition is completed, we will know what the cost of that is and come back here and maybe reduce the fines at that point to a minimal and just put the lien for the demolition on the property. MS. RAWSON: Similar to what you said. MR. McCORMICK: I think it was the same thing essentially. The fines will continue as we decided previously and that we will make the decision on whether to impose a construction a destruction cost onto this or to do some reduction. MS. SULLIVAN: It would be staff's position that otherwise the fines would be -- MR. ANDREWS: Can you speak a little closer to the mike, please? MS. SULLIVAN: The fines would be forgiven while the violation continues. That's the problem I have with reducing the fines at this point until the problem is solved. MR. ANDREWS: Okay. CHAIRMAN ALLEN: Good point. MS. LOUVIERE: So we have a motion and a second. CHAIRMAN ALLEN: We have a motion. Who was the second on MS. LOUVIERE: Jean. CHAIRMAN ALLEN: Okay. We have a motion and a second to basically follow the guidelines as recommended by Miss Sullivan. All those in favor signify by saying aye. It passes unanimously. MR. MANALICH: And one clarification then. Is there -- is that then to include an order imposing fine then to be now recorded against the property in the amount of $1,350 through September 6 plus the fines continue to run until it's in compliance? Is that everybody's understanding? MR. MceORMICK: Is that everybody's understanding? Page 39 September 22, 1995 Yes. MR. MANALICH: Okay. Thank you. CHAIRMAN ALLEN: That concludes our reports. Mr. Hedrich, thank you very much. MR. HEDRICH: Thank you. CHAIRMAN ALLEN: Can we have a quick workshop today, Mr. Manalich? MR. MANALICH: Yes. CHAIRMAN ALLEN: Seven to one break time. (A short break was held.) CHAIRMAN ALLEN: We'll start again. Mr. Andrews said he wanted to start the class to order. Mr. Manalich, are you the professor of this forum? MR. MANALICH: I believe I am. CHAIRMAN ALLEN: Yes, sir. Would you like to go ahead and proceed with this? MR. MANALICH: Okay. I think this can be rather brief. We're very fortunate -- I think I can say this in all sincerity that the membership on this board, I think, is very exceptional quality and very diligent and very conscientious. It's a pleasure for me to work with you as well as with the staff that I think also has the same qualities. Because of that I think my comments can be rather brief. Basically when we talk about quasi-judicial procedures, what we're basically saying is that you are a board appointed by the Board of County Commissioners which has, in my opinion, a very significant and different role than most of the other advisory boards that the Board of County Commissioners appoints. You are, as the name implies, quasi-judicial, acting really in the capacity as a fact finder and judge with regard to county codes. Because of that, the thing I want to stress today -- and I think this is already present on our board, and I think that's a very good thing and that is when you come into these proceedings as you always have, you need to always keep in mind that you need to basically act as a judge would act in the courthouse hearing a case. You're making findings of facts and conclusions of law here. You have litigants that are coming here before you; on one side the staff, which as we've seen in a number of cases, bring some cases to you that are very important. We just found one where we had a serious threat to public health, welfare, safety. Those are very important things. They do a diligent, excellent effort at investigating these cases, and that is one side of the story that you have to hear and consider. The other side of the story that you have to hear and consider, which is equally as important, is that of the individual respondents that come before you. And obviously as the saying goes, there's always two sides to every story. And I think we always have, and I just want to encourage you to continue to act in a manner which is fair, impartial, preserves an open mind, and makes no decision until you've heard all of the evidence from both sides. That really to me is the essence of being a judge, which is basically what you're charged with on this board. Obviously -- and I think our chairmen, in the present and the past, have done an excellent job of keeping the decorum in this room which is necessary that attaches, I think, to anything of a quasi-judicial nature. It means that obviously we conduct this -- these proceedings in a very serious, Page 40 September 22, 1995 deliberative manner and, as I said, that we make our decisions based only on the evidence presented here to you. Now, as I said, some of that I'm kind of preaching to the choir because I believe all of those qualities are already present with our membership. I just simply wanted to reiterate what, in my opinion, is the basic essence of quasi-judicial proceedings. Obviously when I act as your attorney and when you sit there and hear these cases, not only do you need to make a decision based on the evidence presented, but you also need to afford due process to both sides of the case. And basically due process is proper notice and hearing by an impartial person. We have had in the past on assorted occasions times when one of you -- as a matter of fact, today it happened when one of you has disqualified him or herself because of a potential conflict of interest. Interestingly the Florida Statutes have something called the Sunshine Law which you've all been exposed to in one form or another. And it also has another section of statutes having to do with conflicts of interest. The conflicts of interest usually, because it's geared toward more of political bodies like the board of county commissioners, et cetera, that sit and decide policy, talk merely in terms of whether there is a direct benefit or pecuniary gain of some type as being the basis for the conflict. I have always interpreted that -- and I've had some discussion with member Deifik, one of our attorneys about this -- I have always interpreted the conflict requirements applicable to you a little more strictly because of the nature of the quasi-judicial board that you are. And basically even if there is not a direct pecuniary gain of some type, if we get into situations where there is a perception, appearance of impropriety or bias because of prior affiliation, much like the case we had this morning where there was an off and on business relationship, you know, I commend that member for bringing that to the attention of the board and disqualifying himself, and I would support the decision that was made in that case. And in those cases we should also look for those situations because you are acting as a judge, and you need to be perceived and actually be impartial. Now, with regard to the Sunshine Law, I've passed out a resolution and a statutory amendment. And I'd like to start off by just saying, without referring to those, that the basic requirement of the Florida government and the Sunshine Law is that no two members of any appointed or elected board meet and discuss anything which is possibly going to be before you as a matter before this board. And that is -- to me you need to very much adhere to that guideline. It's a rather simple one, and that is no two members of the same board can meet and discuss anything which potentially may be business before this board. And that is the simplest and safest guideline to follow. Now, because you're a quasi-judicial board, things get more interesting. And that is, we have a case which is -- by the name of Jennings versus Dade County. And that, if you're interested in the cites, is 589 So. 2d, 1337. It's a Florida appeals court decision from 1991. And basically in the Jennings case -- and the reason I bring it up is because it applied directly to quasi-judicial boards, and it went a step beyond the Sunshine Law, as I read it. Basically in Jennings what we had was a person who applied for a variance to operate a quick oil change business on his Page 41 September 22, 1995 property adjacent to that of the opposing party in this case. The respondent was a guy by the name of Shotzman (phonetic). Jennings was the guy who owned the property. Shotzman wanted to put in the oil change business. Jennings owned the property nearby who was opposed to that commercial use being put next to this property. And basically this proceeded through the Dade County different boards eventually to the board of county commissioners on this variance issue. And the issue -- without concerning ourselves with all the particulars of what happened in the case, the issue of concern here was that a lobbyist for this Mr. Shotzman who wanted to put in the oil business apparently registered as having -- apparently Dade County ordinance required him to register when he goes to lobby or confer with the commissioners, and he apparently did that. And then the issue became whether that action had tainted the proceedings so as to deny due process to -- I believe the board -- let me check here -- had -- had approved the oil change business. And Jennings, the neighboring property owner, challenged it on the basis that this was an improper communication that had tainted the proceedings. And what it brings me to basically with that background is that the Court at that time in 1991 reviewed this issue of communications. Now, remember in the Sunshine Law we're talking about two members of the same board conferring about a case. This is another step beyond that which is if someone, in this case a lobbyist, but it could be someone from the public, whoever, has a communication with one of you, not another board member, but somebody else, a party or a member of the public has a communication with one of you about a pending case and what impact would that have on the case. And I can just mention a couple of things that the Court said. The holding of the case was that ex parte -- they're called ex parte communications. Ex parte means, you know, something done without both parties present. And basically the Court held that upon proof that there has been an ex parte contact, a presumption arises that the contact was prejudicial to the outcome of the case, and a new hearing will be ordered unless the other side proves that the communication was not, in fact, prejudicial. Now, basically the Court mentioned -- and this is just a little bit to just provide you some instruction on how the Court perceives quasi-judicial proceedings. It mentioned that the quality of due process required in a quasi-judicial hearing is not the same as that to which a party to a full judicial hearing is entitled. Quasi-judicial proceedings are not controlled by strict rules of evidence and procedure. Nonetheless, certain standards of basic fairness must be adhered to in order to afford due process. A quasi-judicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard. In quasi-judicial proceedings the parties must be able to present evidence, cross-examine witnesses, and be informed of all the facts upon which the commission acts. Now, they very importantly said here ex parte communications are inherently improper and are an anathema to quasi-judicial proceedings. Quasi-judicial officers should avoid all such contacts where they are identifiable. However, we recognize the reality that commissioners -- in that case it was commissioners, but it could have, you know, any board like you -- that commissioners and Page 42 September 22, 1995 other board members are in a capacity that they may unavoidably be the recipients of unsolicited ex parte communication regarding matters they are about to decide. The occurrence of such a communication does not mandate automatic reversal. What they said, though, was that if it occurs, it's presumed to be prejudicial, and then the burden shifts to the other side to show that that prejudice did not, in fact, occur. And that was the essence of the Jennings case. Basically what happened then -- that was in 1991. The resolution statute that I have passed out to you were a reaction to that decision by the Florida legislature. And basically what these two -- and they mirror each other. The resolution mirrors the statute which authorized it. And basically as you'll see, the resolution -- we can turn to that -- it basically says that obviously under the first whereas that we're required to operate in the sunshine, that the public should be able to voice its opinions to their officials, that quasi-judicial decision making still must be based on competent, substantial evidence of records, in other words, what is presented to you here at the hearing. But in the fifth whereas it mentions that local officials have been obstructed or impeded from the fair and effective discharge of their duties by expansive interpretations of the Jennings case. So what they have done is the statute authorized and our Board of County Commissioners chose to adopt this resolution in which they said in the first section that this resolution removes the presumption of prejudice from ex parte communications by establishing the process set forth to disclose those communications. Now, the second section, section 2, basically clarifies that you as quasi-judicial board members are covered by this. Section 3 then basically says that unless otherwise prohibited by state -- now that's important, because the importance of that is going back to the Sunshine Law. The Sunshine Law by statute says that two or more members of the board cannot meet. So under all circumstances you must avoid any discussion between any of you except here on the record in public hearing. Okay, and that includes such things as -- you know, frankly, if you want to interpret it strictly, if you're in the middle of a meeting, we should not be whispering to each other off the record. We should not on the way down the hall to the bathroom confer with each other about the case. It means everything you say is right here on the record in public. Yes. MS. DEIFIK: Something that I've wondered about often. Maria is in the same building on the same floor as I am. I see her every day in passing, and we chat about the weather MS. LOUVIERE: Yes. MS. DEIFIK: -- but someone may see us through the glass doors and say, uh-huh, they're talking about that. Jean Rawson and I have lots of cases together. I have numerous occasions to talk to her. I don't talk about this business, but how can I prove a negative? MR. MANALIeH: Well, obviously that is one of the burdens of the Sunshine Law but, frankly, as -- you can gather socially and for many purposes, and that is certainly -- just because you happen to be on the same board, there is no violation whatsoever. The only caveat is, as you just pointed out, that you not discuss business of the board when you are together. Now, there is, of Page 43 September 22, 1995 course, a certain perception which is unavoidable, I suppose, at the fact that you are together and you happen to be members of the board. MS. DEIFIK: You can't say good morning anymore. MS. LOUVIERE: And I guess we can't go to lunch. MR. MANALICH: No. I mean, what I'm saying is you absolutely can. You can be seen together. You can be together. Just do not discuss business of the board. MS. LOUVIERE: Some of these people are my friends. You know, I see them. MR. MANALICH: As an example we get into that even more as an issue with members of the board of the county commissioners that they're often invited to public forums, speaking engagements, things like that. Our advice to them has been, you know, the attorney general has not interpreted the Sunshine Law to require that you avoid these activities. But basically one thing we always suggest is do not sit together because obviously there is that perception if you're right next to each other you're discussing what's happening. The only basic requirement that we decided is that they are not to have discussion about these items at the forum that may come to the board between each other. They are allowed to talk between them and the public like a newspaper reporter or a member of the panel or whatever like that. . But basically in response, there is a certain unavoidable burden that the Sunshine Law has, but you are not in violation if you avoid discussion about the topics coming before this board. And I think it would be the burden as a criminal misdemeanor, which it is, or at least a minimal fine offense on the state or whoever was prosecuting to show that, in fact, you discussed those things, not simply you were together or talked about the weather or anything else other than the business of the board. But, you know -- and the reason for the Sunshine Law, of course, is you want decisions to be made in public without any hidden influences. So under our resolution in that Section 3 where it says any person not otherwise prohibited by statute, what I mean by that is that you are prohibited by statute from having any discussion about any matter coming before this board between yourselves other than at the meeting. However, if it's not otherwise prohibited -- typically, you know, members of the public, maybe a party in a case, et cetera -- then what it says here in this resolution in response to Jennings is that if you're not otherwise prohibited, you may discuss the merits of any matter on which action may be taken. Adherence to the following procedures shall remove the presumption of pTIejudice. And what it basically says in sub A through C is that if ! here is a communication in sub A, then you must at the time of this h aring or before disclose the subject of the communication and the iden ity of whom the communication took place and make that a part of the record. If it's a written communication, you have to do the s me in B. C, investigation and site visits and receiving e pert opinions. Conceivably under this resolution this can be done if you disclose it, but after having saw that and making you aware of it, which it is my duty to do, because this is the rule, I would caution you and advise you that, frankly, I do not suggest that you intentionally avail yourself of this procedure. As a quasi-judicial board member, I think the safest and best advice is simply to avoid even with members of the Page 44 September 22, 1995 public or anyone else discussion about any pending case. And that is by far the safest route. Now, this I see more as a safety valve. If for some reason -- you know, it could be very easily -- as the Court recognized in Jennings, you might be standing in line at the restaurant or whatever and somebody comes up to you and goes before you can even say a word, they say, about that case that you're going to hear, and they throw in a few facts. Well, at that point I see this more as a safety valve where you come in here, and you say, I immediately cut the person off and told him I can't discuss it. But just so everybody knows, it did happen, and this will take away the presumption of prejudice. Because I see you as a quasi-judicial board in a different position, in a more heightened scrutiny position than I would see the board of county commissioners on policy matters. Whereas, they can more readily avail themselves of this on policy matters all the time, with you my advice is yeah, it's there, but use it only as a safety valve. And the best advice is just like the Sunshine Law. Simply avoid discussion of any pending matter unless it's in this room. MS. RAWSON: Wouldn't you think it's the most prudent thing not to ever run out and look at one of the sites? MR. MANALICH: Yeah, I would agree. I think that that -- you know, obviously like a jury in a sense or a judge, you all bring to these meetings -- and that's why you were chosen -- different areas of expertise that help resolve these cases. Now, there's nothing wrong with that. I mean, that only strengthens our board. But where extraordinary things are occurring like site visits or going out and soliciting opinions and things like that, that really detracts from the very nature of the proceeding, which is for you to decide based on the evidence presented by staff and the other side and only on that. So I would caution against that and advise against it. And, frankly, this resolution and this whole academic discussion that we've just been through, I mean, some of it is very real. The Sunshine Law is very real. I mean there are criminal penalties for violating it. But, you know, the Jennings ex parte discussion and this resolution, I think, can all be boiled down very simply for you to avoid with anyone discussions outside this hearing room and only using this resolution in the event that an unavoidable contact occurs. MR. McCORMICK: What about somebody, to the best of your knowledge, is completely disinterested and not involved at all in a proceeding, but they say, hey, I see that such and such a case is going before your board, you know. What do you think about it or just kind of trying to get -- just talking in general, getting some information. What's going on with your Code Enforcement Board, or I saw this in the paper, and you just kind of carryon a conversation without going into any depth or great detail of what your opinion is. You know, how is that related to somebody else you know is involved in the case, and they come up and they, you know, want to talk to you about it? MR. MANALIeH: Well, really both situations I would deal with the same. And that is, I would advise that whether you know them or you don't or regardless of how far in depth they go, the best advice is simply if it's something that you're aware may be coming to the board, the best thing to say is right -- just cut the person off right away, and just say I'm a member of this board. I have to act Page 45 September 22, 1995 like a judge. I cannot -- I'm not allowed by law to discuss it with you. MS. RAWSON: And if I can add to that, even after we've had the hearing and it's made the papers -- MR. McCORMICK: That was my next question. MS. RAWSON: -- because, A, it may be appealed but, B, they'll be back in here for an imposition for fines order because they didn't comply with our order. In some of the cases that we've had since I've been on the board have been famous, and the paper has covered them, and the TV cameras have been in here. People are going to ask you about what you think. And even if it's over, it's never over. MR. LAFORET: Till the fat lady sings. MS. DEIFIK: That raises another question. I would think that the most appropriate thing if a reporter asks you a question or something would be to say speak to Mrs. Sullivan or speak to Mr. Manalich or MR. MANALICH: I think that's the best course. MS. LOUVIERE: The other statement I had is sometimes when I was at the board of county commissioners we would receive written communications on issues. So in case we get something in writing regarding something we're going to hear, it's okay for us to read it and then just when we come -- go ahead and make it a part of the record. MR. MANALICH: Some of that, like I said, is that unavoidable aspect of public life. When you get a letter, you don't know what it's going to say. And you open it up, and then you realize after halfway into it. That's why I think this can act as a safety valve. What you do is if you get that type of communication, then you simply at the beginning of the hearing make both parties aware by putting into the record what was received exactly and when and from whom. And I think that's a good point about the -- you know, whether there may be an appeal or whether there may be further subsequent proceedings, reduction of fines, et cetera. We never know. So really unless you're absolutely clear that this thing is done and concluded definitively, you're just better off not commenting about it. And staff is not under the same constraints as you are, because they're not the judges, so they obviously have more liberty to make comments. MR. McCORMICK: What are the guidelines on our conversations with staff or with counsel prior to the -- the hearing? MR. MANALICH: Okay. Those are two different things. MR. McCORMICK: Right. MR. MANALICH: With counsel you're allowed individually to consult with me, and we have never viewed that as being in any way a violation of the Sunshine Law. We're simply your advisor, and we're not another board member. Now, we cannot be acting -- and this -- you know, you cannot -- the Sunshine Law is always to be construed in a manner that does not allow for it to be circumvented. And basically, you know, I can't play the game, for instance, that I talk with you individually, and then I go to her and say, oh, by the way, here's what he thinks about how he's planning to vote. Just so you know, I can't do that. I can have individual conferences, but I cannot serve Page 46 September 22, 1995 as a go-between. But you can discuss with me individually without my, you know, spreading that among the rest of the members. There was another point on that. Oh, with regard to staff, that is more dangerous. There you should not do that, frankly, because they are a party to the case. And the respondent's not there, and you're influencing the judge by what you're telling him. So staff needs to avoid discussing a pending case with you, and you need to avoid discussing it with them. MS. RAWSON: It's like Ito talking to O. J. MR. MANALICH: Essentially the way you want to arrive here for every board meeting every week is you want to arrive here clean, untainted with no predisposition whatever, with an open mind to listen to both sides and do as the rules and justice require. MS. LOUVIERE: Clean, untainted. MR. ANDREWS: Theoretically it sounds real good. MR. MANALICH: Well, sure. I mean that's why -- sometimes there's just, you know, unintentional things. But that's why you can disclose them and get rid of that. Now, that raised another point, which is -- and we've addressed this, which is that we have traditionally -- and I think it's justified. This is not a court of law. It's got more relaxed procedures. For the purposes of efficiency and everything else, we have always submitted a packet of the staff presentation to you ahead of the case. Now, at -- quite some time ago staff and I discussed it, and we said, well, I think to be fair and proper here and afford due process and this is what we do, we need to afford the respondent the opportunity to submit the same thing ahead of time. And our notices state that that -- you know, this is being submitted and that you have the opportunity by just conveying, I think, through staff. And so they have the opportunity also to present evidence to you, you know, in advance or a summary thereof. MS. RAWSON: What happens if they object to your Exhibit A? We've already got it; we've already read it, and they object to it. And we say, okay, well, it won't be admitted, but we've all read it, well, we won't consider it. MS. DEIFIK: That's just like a judge saying strike that from the record. MS. RAWSON: Yeah, that they heard. MR. MANALICH: Basic concern although, frankly, I agree with the analogy, and the alternative would be to say that you come in here cold. And that may slow things down substantially. I think that harm probably outweighs the possible prejudice because the other side is free to come in here and say we object to these particular things being admitted as a basis for you to decide for these reasons, then here's our response in advance. MS. DEIFIK: One thing -- and maybe you already do this. Maybe I'm not familiar enough with the procedure. But if you have a situation where you expect that the other side may be contesting -- I think this works both ways. The evidence might be helpful if it was broken down into coherent parts so that, you know like, for instance, maybe Mr. Saunders would have agreed to part A and part B but not part e, and we could have just argued about part C or MR. MANALIeH: Yeah, basically in our procedures -- and Page 47 September 22, 1995 we are not required to follow a strict, you know, courtroom-type atmosphere, but I mean my preference would be both when -- in those occasional cases where we have acted as prosecutor or in those where staff is doing that on the typical basis that we have, and I think we roughly have followed this, some type of brief opening statement from both sides and then a formal presentation of evidence through witnesses or exhibits with cross-examination afforded and then the other side being given the opportunity -- you know, the prosecution rests and the other side being given the opportunity to present their evidence with cross-examination and then any rebuttal and a brief summation by both sides. I agree if we can adhere to that. And I think roughly we have done that. Today, unfortunately, in the earlier case it got a little disjointed because even as we arrived here this morning we weren't sure how it was going to unfold, and then you saw what all developed. But that is -- I think that, as a matter of fact, when we follow a rough outline like that, it does afford a greater guarantee of due process. MS. DEIFIK: Can we object to taking something into evidence? I understand that we don't follow the rules of evidence. But I read the statute, and it says, you know, what an ordinary reasonable man would accept. And let's say that some evidence is presented to us, third-party hearsay or something which we feel has no indication of credibility. Without necessarily citing to the rules of evidence, could one of us just say, I just think that that letter should not be admitted or whatever? MR. MANALICH: Yes, very much so. I think basically it probably would need to be in the form of a motion. Just like you admitted through a motion, I think you should deny it through a motion. MS. RAWSON: Or since we're quasi-judicial, maybe the more prudent approach is to bring out the fact that the letter is not relevant. MS. DEIFIK: Not material. MS. RAWSON: Not material, hearsay upon hearsay, and then we can consider the weight we would afford it. And if we tell the other board members, you know, who haven't been stupid enough to go to law school how we're thinking -- MS. DEIFIK: Uh-huh. MS. RAWSON: -- at least we get it in, and they can't say we didn't let it in, decide what weight to give it. MR. MANALICH: Uh-huh. I mean, basically the requirement is fundamental fairness, substantial due process and with, you know, some relaxed provisions. Materiality, relevancy obviously are bases for objecting and denying it. Hearsay when it's used as the only evidence, not to simply corroborate or supplement, privilege, those things we all recognize in our ordinance. One of the things I also want to mention now that we're talking about procedure, is the importance of the findings of fact and conclusions of law. When this -- when these cases occasionally get appealed, that order and what it contains gets scrutinized by the counsel for the party that's appealing. And what's important to realize -- and we've generally been pretty good about this, but what's important to realize is in the findings of fact we don't want to just reiterate the code section that's involved. We have to plug in facts Page 48 September 22, 1995 that have been presented through exhibits or testimony that correlate with that code provision from the specific case. Now, that can be hard to do sometimes. You know, we sit here for a number of hours if it's a long case. But you've got to dig back and actually extract the basic facts which support the conclusion of law, and that's going to be very important. And believe it or not, these things do come up. You recall the Elba case that we recently had and, you know, I mentioned that one of the threatened bases of appeal in that case was an ex parte Sunshine Law type allegation. Now, I -- you know, my position on that was there was no credible evidence that had been presented to me of that nature, but this does come up in the real world. MS. RAWSON: And another, I think, in that case was, you know, just so the other board members might know or not know, was a comment, a crack made during the course of the hearing. So we have to be real careful what we say. MR. MANALICH: Correct. MS. RAWSON: That was going to be one of the bases of appeal. MR. MANALICH: Yeah. As a matter of fact, it was the comment about a Rolls-Royce -- MS. RAWSON: Right. MR. MANALICH: -- being driven. And sometime -- you know, that would be the time of inflammatory prejudicial comment that, frankly, I don't believe as your counsel that we would have lost on that. I really don't believe it altered the result, but it's ammunition in an appeal. And that is a very important point. court reporter is taking down every word this is said here for complete transcript as it should be, but that cuts both ways. if you make a good record, if you make good observations, good findings, that all works to our advantage because it's there. We can use it on the appeal. Likewise, if we're loose and we make improper comments or we make unfounded comments or prejudicial ones like that one, it's going to be scrutinized. I can guarantee you, and I think the lawyers here on the panel here can guarantee you that if you've got a seriously contested case where there is significant dollars involved and people are being paid substantial sums to represent someone, it is their duty and they will scrutinize that transcript up and down line by line as to everything that was said. And, you know, at the end of a long day sometimes it's hard to -- anybody -- to think clearly. But do keep in mind that every single thing being said is being transcribed. Let's see, we have worked out pretty much the details with Mr. Brock, the clerk of courts, Donovan Court Reporting, my office, and staff on exhibits. There's nothing more frustrating than to go through eight hours of hearing and have a good record made for whatever the result and then be faced with an appeal and find that we can't track down exhibits or that they've been lost or something doesn't jive with what's in the record. And basically what we've worked out through all the cooperation of the parties -- and you've seen me do it -- is that whoever is sitting here as counsel to the board is assisting the court reporter in keeping an exhibit sheet for both sides, numbering the exhibits. You know, staff, if it's physical The a That lS Page 49 September 22, 1995 evidence, which occasionally we might have, they'll help us getting that moved around, because that can be a storage issue too. So I think we've worked on that and handled that pretty well. Let's see, that really is the most important points that I wanted to cover. Is there any other questions that anyone may have about the nature of these proceedings? MS. RAWSON: This is not about the nature of the proceedings, but I do have a motion, I guess, but we've lost our leader. Today we started at 8:30, and I liked that. And I wondered if, you know, we might start earlier on a regular basis and how everybody else felt about that. MR. McCORMICK: 8:30 is slightly better than nine o'clock for me, I think. MS. RAWSON: I don't know about staff. MR. ANDREWS: They told you, coffee and doughnuts, he'll come. MS. CRUZ: Staff does not object to that motion. MS. RAWSON: Well, I don't know what happened to our leader. However, I had mentioned it to him, and I think he thought that was a good idea too. MR. ANDREWS: I have no -- I have no objection. MS. RAWSON: Do I need to do that in the form of a motion since I just disclosed my ex parte communication with Mr. Allen? MR. MANALICH: That didn't have to do with the substance of a pending case, so I don't think it's a problem. MR. ANDREWS: Just do it by consensus. MR. LAFORET: It's all right with me if the leader buys the coffee. He's going to take our coffee drinking time. What happens in the case, or is there a reason -- evidence was submitted this last case. You got a copy of the photographs. The attorney got a copy of the photographs. We never did get a copy of the photographs. MR. MANALICH: I think those were photos that were taken very recently after the packet was prepared. MR. LAFORET: Yes. MR. MANALICH: Is that right, Mike? MR. LAFORET: But we were asked as a quasi-judicial board to consider all the evidence presented, and that was admitted in evidence, the ones that were submitted just this morning. MS. DEIFIK: I think that's a good point. Somebody should make a point to have it passed out. MS. RAWSON: I think the case was continued, wasn't it? Isn't that the case that has been continued for 30 days? So we really didn't consider the evidence. MS. LOUVIERE: That's right. We did decide to continue it for 30 days. MR. MANALICH: There were two cases that had photos, the Jay's Marine and then the Queen case. MS. RAWSON: Mr. Queen came in with some new photographs which he handed you to look at. And we -- ordinarily they pass them around. We didn't see them. But that case got continued, so we really didn't deliberate. MR. LAFORET: I know, but if I didn't bring it up, we Page 50 September 22, 1995 would never see them. MR. MANALICH: Well, actually we would if the case comes back and is going to be heard. But it's a good point. I mean, we need to always -- and I think overall we have, but we need to always make sure our exhibits are either in a form that can be passed out and looked at or else -- either that or blown up. MR. LAFORET: Even if we immediately don't get copies, if we get to see it, understand what they're talking about, and then if they want to send us property -- copies in their report, that's fine. MS. LOUVIERE: A picture is worth a thousand words. MR. MANALICH: One other thing I wanted to point out well, I'll reiterate something the court reporter said earlier which happened quite a bit today and sometimes unavoidable. But that is to avoid talking over one another, because it gets very difficult for the court reporter to take it down when we have more than one person going. So we'll need to remember that, all of us. But more importantly, Section 11 of the ordinance, in the event of a case where you actually make a finding of a violation, it mentions that in determining the amount of the fine, if any, the board shall consider the following factors: The gravity of the violation, actions taken by the violator to correct the violation, and any previous violations committed. I would like -- you know, when you impose these fines -- one of the issues that came up again in the case like Elba, that was a case where a $250 fine per day was slapped on. And, frankly, our record on that one was a little bit thin. I mean, we all knew, I think, having lived through that case, why that amount was chosen. But the point is, just like the findings of fact, conclusions of law, it's got to be articulated. And when we have an order, we need to, when we decide on that fine, have a bases, and staff obviously, I think, needs to come in prepared to make a -- to take a position to you as to why they think a certain recommended fine is appropriate; why is it that 150 is appropriate here as opposed to 200, 250 or less. And that should be factored into your deliberation too. I don't know if there's any other questions. I hope that served as a good overview for you of the nature of these proceedings. Obviously like when we talk about courtroom procedures, we can get as in depth or as general as we want, but I think that's a good basic working overview of how this board must operate. If any of you have any other questions -- MR. McCORMICK: I just have two more questions for you, if I can. One is on the resolution. There's a Section C which you touched on it. It says that -- I guess it's Section 3, part C, says that such actions will not be prejudicial if that's offered for the record before final action is taken on the matter. So if you drive by a site, you see something, you want to add it, or you have some information that you don't think from a -- to somebody's regard is expert you don't think could be presented during the hearing, you can bring that up as long as it is prior to the final decision of the board? MR. MANALICH: Well, what I said on that is, first of all, you must bring that up if that has occurred. MR. MceORMIeK: Right. Page 51 September 22, 1995 MR. MANALICH: I did not advise, however, that you actively do that. MR. McCORMICK: Right, I understood that part. MR. MANALICH: You know, if it -- if it just -- if it happened just because of circumstances, then you must bring it up to remove the taint of prejudice. But I do not advise that you use this to go out and make extraordinary steps. My best advice is that you avoid that and just make your decision based on what's presented to you here at the hearing. MR. McCORMICK: But if you bring it up at the hearing, the hearing can go on. You can still be a participant -- MR. MANALICH: It can, but I tell you in all honesty, this is a new statute amendment. I have a feeling that if we had the right case, there may be some litigation about this, because I can see a court being persuaded that no matter if you disclose it or not, you know, if you -- I could see a case where if you get enough extraneous information that directly impacts the result, and especially if it's the type of information that a party cannot be expected to immediately react to if they're in the middle of a hearing, I see that that there may be a challenge to that provision. MS. DEIFIK: Ramiro, wouldn't it be the better practice if something significant comes up, like if somebody gets a four-page letter from an engineer that someone decided to send you, and the other party is saying that you continue that hearing to give them an opportunity to prepare to avoid that kind of thing. MR. MANALICH: Yes, I think that would be a wise thing to do, because -- MS. DEIFIK: Whereas, you know, if you just get a one-line letter saying vote for -- MR. MANALICH: Yeah, it's going to be depending on the circumstances. And that's why I say I do not encourage you using this in an offensive manner and taking advantage of it to go out and gather your own evidence. That's not your job. You know, your job is simply to make a decision based on what the two sides have presented to you. Whoever has presented the evidence that convinces you is the one you should go with, and that's presented here. MR. McCORMICK: The other question I had was on the disclosure. You seem to always ask the defendant if they have an objection to it. Is that what you base your decision on or your advice to us, or is that for the record or -- MR. MANALICH: Well, essentially it's considered, you know, in the courtroom professional courtesy to always allow the other side an opportunity to see the exhibits that you're going to submit, likewise, to afford them the opportunity to object. And it's really a matter of due process. The Court needs to hear if there is a basis for objection. If there is, the Court needs to decide if that is a substantial basis. There may be those situations where there is an objection and it's valid or there's good reason for it, and you'll have to deny admission of whatever the exhibit is. So, I mean, it's done for due process reasons. It's done as a matter of courtesy to the respondents. And that brings me to another point which we should probably mention which is we oftentimes will deal with people here that are unrepresented. And you need to factor that into your -- your Page 52 September 22, 1995 consideration here, because there's all levels of sophistication that come before. There's people that are represented by very able counsel. There's people that do not have counsel, but they are very astute and maybe are attorneys themselves or have some kind of background which makes them more informed as to this process. And then you have people that come in here that have no idea of what this is about or that have a very low educational level. And I think obviously when you deal with unrepresented persons, there is a certain flexibility that's necessary in -- in hearing the case. And, you know, for instance, that's one of the reasons why if we have an unrepresented person to protect your record, I will often ask that person, because they may not even think that they have the right to object. And I will ask them to keep the record clean that they have been afforded that due process. MR. ANDREWS: I -- I have a question. And probably, Celia, I should have known it but I don't. You mentioned when you were going through this thing something about findings of fact. Why did -- for years, years we used this finding of fact form and order, and the staff put all of -- names and the sections and violations and all that sort of thing. Why all of a sudden did -- did we eliminate that? Because if there were new facts that come up that weren't on this, we've got enough sense to write them in. But that is so -- was so helpful, and we could go through it. Now you've got to chase all over the place and get all these things. It's ridiculous. MR. MANALICH: Well, my understanding was that Judge Brenda Wilson instituted that change, and I agree with her, the reason being that I understand it's more cumbersome. It's more time consuming, but the point is that I think an argument can be made that you are being improperly influenced by having the prosecution's facts presented to you in that order. The courts basically put the burden on you to work -- to come up with your own findings and your own conclusions. And I think that that can be interpreted as being invading the province of your decision making and influence you improperly with the prosecution's facts. Now, we do give you the basic outline of a generic order that has the areas that you need to cover without any factual information in it. And we also distribute at the same time a generic order that would say dismissal of the charges so that we're fair to both sides, and we're not perceived as taking one side or another being predisposed. But on that one I realize it's more of a burden, and it slows things down, but I think we're open to attack on that. MS. RAWSON: I think the argument could be made that we'd already made the decision in advance of the hearing because there it is all written out for us. MR. ANDREWS: I'm talking I'm just talking about the names and the numbers, you know, of the section numbers and all that stuff. MR. MANALICH: Well, the names, I think, we -- well, even that, I mean, the thing is, see, you may have several respondents on a case. You may have -- as the case develops, the evidence is presented, you may find that what the prosecution alleges are the area -- the rules that have been violated may not be the ones that you think were violated. You may think it was another one. MR. ANDREWS: Yeah, but you can change that. What the Page 53 September 22, 1995 hell, if we're so smart, we can change these things. We ought to be smart enough to change it. MR. MANALICH: Right. It's the question of two things. Number one, have you, in fact, been influenced or predisposed and, number two, the appearance of impropriety. That is that that -- you know, there the prosecution has influence with you on what the order should be prior to the hearing. MS. CRUZ: I have a question. MR. ANDREWS: Well, it's farfetched. MS. CRUZ: Would that apply to the order imposing fines also? MR. MANALICH: Well, the order imposing fines, if you follow that reasoning, I suppose there could be an argument made to that extent, too. Although the difference I've seen there is that there -- when you, for instance, put in the amount of the fine, that's simply taking the board's order and computing the rate that the board has already ordered for the number of days. The other one's much more significant, in my opinion, because there you're actually making the determination is there a violation or not and what is the basis. I see the second one as being more mechanical. I guess I would invite any comment. If we think that's a problem, maybe we need to make those generic too. MS. RAWSON: The only thing I would say about that is there's no problem with the heading up there and the order imposing fine because that's why we're here, and that's what you want us to hear, and we've already made a finding and a conclusion a law. You might, however, leave the amount of fine blank. MR. ANDREWS: We always did. MS. RAWSON: No, it's in here. MR. ANDREWS: Oh, I'm talking about the forms that -- that when -- when we MS. RAWSON: If you leave it blank, then we have some discretion to -- MR. ANDREWS: Yeah, they should leave it blank. MS. RAWSON: -- fill in the blanks. Then you can tell us what your recommendation is. MR. MANALICH: That's certainly safer. MR. ANDREWS: But I think your idea -- I guess it was your idea -- of them explaining why we -- why they chose that amount, we don't necessarily have to accept that, but that gives us some idea. MR. MANALICH: One other point I might mention, that with regard to witnesses and exhibits, et cetera, but especially witnesses that come before you, initially when they testify they are all to be accorded no -- how shall I say it -- any greater weight or credibility simply because of their status. You know, if they're an official of some type or whatever, I mean, you have to -- it's your job to weigh the substance of their testimony and their credibility, not just based on their station in life, but based on what they present to you here at the hearing. I don't know if either of the two lawyers -- is that a more or less correct description of what you would hear in court? MS. RAWSON: Right. All litigants are equal. MR. ANDREWS: We had a good example today. Page 54 September 22, 1995 MR. MANALICH: Now, obviously as -- you know, so what I'm saying is simply because Mr. Kirby is a code enforcement officer does not entitle him to any greater initial credibility or weight to his testimony than it does to the respondent. However, it may be that because of his brilliance and his preparedness Mr. Kirby will convince you that you should afford him greater weight and credibility, and that's fine, but not initially just because of his station. I think that's all I -- MR. LAFORET: He gets fined, doesn't he, if he does convince us of his basis? MR. MANALICH: It's a high stakes -- well, anyway, I think class is ready to be adjourned unless you have other questions. MR. ANDREW: Thank you. We appreciate your time. MR. MANALICH: I hope it's helpful. I think a lot of what I said was probably unnecessary because I think you guys handle this in a very professional manner as it is, but it never hurts to go over some of these points and desensitize ourselves to these things. MR. ANDREWS: You did a lot of fine things. We appreciate it. MR. MANALICH: All right. MR. LAFORET: Thank you, Counselor. MR. MANALICH: You're welcome. MS. RAWSON: I guess we're adjourned since the leader's gone. I'll adjourn. There being no further business for the Good of the County, the meeting was adjourned by Order of the Chair at 11:37 a.m. JIM ALLEN, ACTING CHAIRPERSON TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING BY: Barbara A. Donovan Page 55