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CEB Minutes 10/26/1995 1995 Code Enforcement Board October 26, 1995 October 26, 1995 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida, October 26, 1995 LET IT BE REMEMBERED, that the Code Enforcement Board met on this date at 8:30 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRPERSON: Jim Allen Charles Andrews Mireya Louviere M. Jean Rawson Louis Laforet Richard McCormick ALSO PRESENT: Ramiro Manalich, Assistant County Attorney Maria Cruz, Code Enforcement Linda Sullivan, Code Enforcement Page 1 .. CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA r 8:QJ;;.N:J28: Date: October 26, 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 r 3 . APPROVAL OF MINUTES September 22, 1995 4. PUBLIC HEARINGS A. BCC vs. B. BCC vs. C. BCC VB. D. BCC vs. 5. NEW BUSINESS NAPLES TROLLEY TOURS - CEB No. 95-013 JEFFREY A. WARD & CHARLOTTE T. WARD - CEB NO. 95-014 TERRI L. KIRWAN - CEB NO. 95-016 REBECCA Z. WALLACE - CEB NO. 95-017 A. BC~ vs. John R. Landgrebe and Emily L. Landgrebe - Filing of Affidavit of Non-Compliance and Request for Imposition of Fines B. BCC vs. Ronnie Parks - CEB 95-003 Filing of Affidavit of Non-Compliance and Request for Imposition of Fines 6. OLD BUSINESS A. BCC vs. Jack A. Queen, Trustee - CEB No. 95-011 Request for Dimissal of Charges 7. REPORTS ( N/A 8. NEXT MEETING DATE November 30, 1995 .4 9 . ADJOURN October 26, 1995 CHAIRPERSON ALLEN: Good morning. I'd like to call to order the October 26 meeting of the Collier County Code Enforcement Board. Any person who decides to appeal the decision of this board will need a record of the pertaining -- of the proceedings pertaining thereto and, therefore, may need to ensure that a verbatim record of the proceedings is made which record includes 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 a roll call beginning at the left. MR. MCCORMICK: Richard McCormick. MR. LAFORET: Lou Laforet. MS. RAWSON: Jean Rawson. CHAIRPERSON ALLEN: Jim Allen. MS. LOUVIERE: Mireya Louviere. MR. ANDREWS: Charlie Andrews. CHAIRPERSON ALLEN: And let's note that Miss Celia Deifik has called in, and she will -- she's going to try to be here, but she is sick. She does have an excused absence. She can't make it. We'll start with approval of the agenda. Do we have any additions, deletions? MS. CRUZ: Yes, we do, Mr. Chairman. For the record, my name is Maria Cruz, code enforcement coordinator. Under public hearings, there's three items. Item A, staff is requesting that this item be continued for our next board meeting and item Band D removed from the agenda since both of these cases are in compliance at this time. Also -- also under new business, item A, instead of filing the affidavit of non-compliance, we instead we will file an affidavit of compliance. MR. MANALICH: That's 5-A, Miss Cruz? MS. CRUZ: 5-A, yes. CHAIRPERSON ALLEN: Do we have any other comments from staff or counsel? MR. MANALICH: Good morning, Mr. Chairman, members of the board. Yes, I have a couple of comments. First, I'd like to introduce you to two people today: First of all, Assistant County Attorney Michael Pettit who has been with our office now going on a year, and he was extensively in private practice both in Ohio and here prior to that time with extensive litigation experience, and he will continue serving as a back-up role to this board, and I'd like to present him to you today. MR. PETTIT: Nice to meet you all. MS. RAWSON: Welcome, Michael. MR. PETTIT: I'll take a minute to shake everybody's hand. Mr. Andrews. MR. ANDREWS: Welcome aboard. MS. LOUVIERE: Nice to meet you. CHAIRPERSON ALLEN: I'm Jim. MS. RAWSON: We've spoken on the telephone. MR. PETTIT: We spoke on the telephone. MS. RAWSON: Yes, nice to meet you. Page 2 October 26, 1995 MR. LAFORET: It's not too late to change your mind, you know. That's all we need is more lawyers. MR. MANALICH: Well, as you know, Mr. Chairman, you have previously voted that down the road here we are going to be changing our roles, and we are working with staff on that. There are some funding aspects that are involved in that. But until that occurs obviously as long as we continue to represent the board, either myself or Mr. Pettit will be here in that role. Secondly, I'd also like to introduce to you this morning a intern with our office who is a law student from Germany, and her name is Birgit Liehnen. Unfortunately -- there she is. And she is here today. She's going to be with us through December, so I'm kind of taking her around to show her the workings of the county. MS. LIEHNEN: I'll start here. MR. ANDREWS: Nice to meet you. MS. LOUVIERE: I met you with Marjorie. How are you, ma'am? MS. LIEHNEN: Yes, that's right. CHAIRPERSON ALLEN: Good morning, ma'am. How're you doing? MS. LIEHNEN: Good morning. MR. MANALICH: She is specializing, I believe, ln administrative law in Germany. MR. ANDREWS: Marjorie? MR. MANALICH: Actually Birgit. MS. LOUVIERE: Birgit. MR. MANALICH: And her specialty of interest in Germany is administrative law, but she's getting a broad tour of duty with us. Mr. Chairman, in addition, I'd also in regard to the agenda, an item I'd like you to consider as an add-on today, I'd like to hear your discussion on it. It has come to my attention through staff -- if you will recall the Jay's Marine case that was heard last month, as a matter of fact, the board did hear that case. It was one of those that was pretty hotly debated by both sides. And in that case an order was issued. It has come to my attention through Mr. Kirby that -- and through Mr. Saunders who you'll recall was representing Mr. Ackerman that there have been some problems in applying that order. And specifically what is involved is Mr. Saunders had made it -- had communicated with me and indicated that he would be speaking to other elements of our staff in our planning division I believe, Mr. Arnold, Mr. Mulhere, who typically, as I understand Mr. Kirby, are the ones charged with interpreting site development plans and related ordinances. MR. KIRBY: That's correct. MR. MANALICH: And Mr. Saunders apparently discussed this situation that had come to the board with those gentlemen, and it is my understanding that Mr. Arnold and Mr. Mulhere believe that perhaps the interpretation that staff has given to the SDP may be a little bit overly restrictive of Mr. Saunders' clients and what is expected them at the site. Specifically, I believe, Mr. Kirby, with regard to the bumper stops and also with regard to what -- the retention area, water retention area? Page 3 October 26, 1995 MR. KIRBY: My name is Mike Kirby, code enforcement investigator, for the record. Yes, they got -- Mr. Saunders approached Mr. Mulhere. And Bob Mulhere, planning and services let's see if his title's correct -- planning and technical services manager, did write him a letter which made the order of the board -- gave them a little leeway. Specifically he allowed them to remove six parking bumpers to allow vehicular access from the parking area into the gravel storage area; okay? And he was -- I guess his thinking was on a practical note because the parking spaces, if all of them were in place, they would completely block off someone driving around the site pulling boats in and out; okay? And then secondly, he allowed temporary parking and storage of boat trailers in the water management areas so MR. MANALICH: Mr. Chairman, the reason I bring this to your attention is because essentially what we then have is a situation where we have somewhat of an internal inconsistency between the position that was presented by Ashley -- in that case I was advisor to staff so by myself and staff to you and one of our own portions of our planning department that usually interprets those SDP provisions. Now, that puts Mr. Kirby on a day-to-day basis on the field in attempting to apply your order in somewhat of a difficult situation as you can understand. Because of this, I didn't want to let this go on any further for another month. And I thought it would be advisable to bring this to your attention today for what I would view as a clarification of your order if you choose to do so in light of this new information. Now, I had spoken to Mr. Saunders, also to Rich Yovanovich who was acting as your counsel for that case as well as to Mr. Gebhardt who you will recall representing some nearby property owner about this situation. We all seemed to be in agreement with my suggestion that this matter come to you today for clarification rather than let this proceed for another month and Mr. Kirby be put ln a difficult position of enforcement out in the field. Consequently, it would be my request if this could be heard today. The only problem we had with that was that everyone that is needed was not available until 11 a.m. today, and we had tentatively scheduled it at that time but obviously with the understanding I would first come to you and see if you were amenable to having the agenda changed to accommodate this matter today. It was -- you know, I suggested putting it before you because I did believe it required your immediate review given this new information. But there are other ways that this could be approached depending on how you want to proceed today. MR. ANDREWS: Well, the -- the only -- the only problem looks like the agenda's been cut so short and we started early. Tell you, we're going to be out of here by eleven o'clock, so -- MR. MANALICH: Right. When I -- MR. ANDREWS: -- can we set it another time earlier? MR. MANALICH: Well, I can try to reach the parties. The problem was that I know a couple of them at least were not available until eleven. I saw that there were four contested cases, and I thought we would run to eleven. Obviously that always can change. I could try to see if anyone can make it any earlier and call Page 4 October 26, 1995 if we have a short break at some point. But obviously your first determination needs to be if you want to change the agenda to address this matter or if you want to proceed otherwise. MS. RAWSON: Are they requesting that we modify our order? Is that it? MR. MANALICH: Well, you know, we do have a specific provision here regarding rehearing. In a way I viewed this as more of a clarification of your order because of this new information. But essentially I believe that yes, there would be a mod -- there could be a modification of your order. But I do believe if that were to occur we would need to have the parties present and be heard on this. Now, other alternatives here, of course, would be to have the matter simply continued -- MS. LOUVIERE: I -- I -- MR. MANALICH: -- until next month. MS. LOUVIERE: I'm sorry. I don't mean to interrupt. I have somewhere I have to be at twelve, so obviously eleven o'clock doesn't work for me. That's just me personally. I don't know about the rest of the board. MR. MANALICH: It would not? MS. LOUVIERE: No. MR. MANALICH: Okay. CHAIRPERSON ALLEN: It won't work for me, but I would recuse myself anyway. MR. ANDREWS: I don't think eleven o'clock's a good time. MR. MANALICH: Okay. Well, the other thing we could do is either to have some type of special meeting on this, or we could simply say that your order continues in effect until the next month is the only thing. Mr. Kirby, any comment on that? MR. KIRBY: Yes. MR. MANALICH: Or is that going to put an internal inconsistency before us? MR. KIRBY: When I go out, you know, I'm not finding any problems because of the new information. I would have found problems with the order of the board without this interpretation from Mr. Mulhere. So things are going along okay. But some other things we discussed was boats are parked also in the right-of-way there or just outside of the water management areas. They're parked in the parking spaces and the right-of-ways, and they're out of the water management areas, those two in particular. So when I go there, there's boats in those places. But the order of the board simply said boats shall not be parked in the water management areas. And that's something else that I would like for us to bring out and clarify. And we did discuss that with -- with Mr. Saunders and Nancy Ackerman. MR. MANALICH: I'm not -- as far as, you know, I mean, on this one I have been acting as counsel to staff. So, I mean, I can't obviously advise you as to how you should proceed. I just made you aware of this new information, the situation as it is. The parties were willing to be here at eleven. Obviously I realize that's -- this is a last-minute thing that this information's been Page 5 October 26, 1995 received. I understand if the board is not able to address this today. And I'll be happy to contact the parties. I could also attempt to call them if we had a short break and see if they can be here any sooner than that. But that depends even if you even want to hear this today. MR. LAFORET: Is this open for discussion? MS. LOUVIERE: Yes. MR. LAFORET: It is? CHAIRPERSON ALLEN: Miss Louvieres (sic) says she will be available at eleven. MR. LAFORET: I -- if I understand it, they are not objecting to the fence. MR. MANALICH: That's not an issue, no. MR. LAFORET: That's not of issue. They're going to put up an opaque fence. MR. MANALICH: They are in the process of pursuing a variance which you afforded them that opportunity for the fence. CHAIRPERSON ALLEN: I think the issue -- MR. LAFORET:. The only issue then I understand or the subject of this meeting I understand is all internal, behind the fence, parking spaces. Now, if there's a variance that you're dealing parking spaces so that they can move the vehicles, is there a code requirement that they have so many parking spaces? MR. KIRBY: Yes, there is. MR. LAFORET: There is. Now, if you delete, you're in violation of the code again, aren't you? MR. KIRBY: Yes. If you fill up your automobile -- excuse me. If you fill up your automobile parking spaces with something else, obviously the people that are using the parking -- the public that are going in and out won't be able to use those, and you're forming a bit of a traffic hazard. And there's cars where they shouldn't be and waiting in line outside the marina. MR. LAFORET: Well, now I und -- I understand your answer, and that was my supposition. CHAIRPERSON ALLEN: Excuse me, Mr. Laforet. All we're asking this morning right now is do we hear -- do we hear -- do we change -- do we change the agenda to hear it at eleven o'clock or not. That's all we're saying, yes or no. MR. LAFORET: Oh, all right. CHAIRPERSON ALLEN: Okay? We're not -- we're not gonna if we say we're not gonna add it to the agenda, we don't have to discuss it any further. MR. MANALICH: It seems to me that obviously there's different ways to approach this. If the board is not prepared or desirous of going forward today, I think we'll simply have to reschedule this. Now, we can either reschedule it for the next month's regular meeting or for a special meeting prior to then. Obviously this is a developing situation. The difficulty I think from staff's perspective is if there's an internal tension between the order and the latest interpretation that was handed by Mr. Mulhere and Mr. Arnold which would relax slightly your order if you chose to follow that. MS. LOUVIERE: I understand your position. I feel that perhaps -- and I'm not blaming anyone here because that's not what the Page 6 October 26, 1995 point is -- that perhaps this clarification' should have been obtained or should have been looked at before this matter was heard by the board. I'm sorry that it wasn't. I don't know whose -- why it wasn't. That's really not my concern. My concern is that I had -- I was prepared to listen to this agenda. This agenda has now been changed. I'm not prepared to listen to that item today. I would like that item to be listened to next month when I can be prepared to listen to that item. I need I read my agenda, and I come prepared to these meetings. CHAIRPERSON ALLEN: Let's take that in the form of a motion. Do we need to vote on that? MR. MANALICH: Well, yeah, I think you MR. MCCORMICK: That only leaves three people to hear the case. MS. LOUVIERE: MR. MCCORMICK: chairman did so -- MS. LOUVIERE: And Jim recused himself. Celia's not here. We're not prepared to hear this item. MS. RAWSON: We -- we wouldn't have a quorum because the two of them recused themselves. Maria's not here. There's only three of us. MS. LOUVIERE: Celia. MS. RAWSON: Celia's not here. MR. MANALICH: Okay. Well, you know, I MS. RAWSON: Well, you wouldn't be here either. MR. MANALICH: I simply -- MS. LOUVIERE: That's right. MR. MANALICH: You know, I appreciate the concerns of the board, and I think what I will do if -- what I'd like if I could have just a brief recess to perhaps contact the parties and let them know that the board has chosen not to hear this. And apparently your your preference is to hear it simply at the next regular agenda; is that correct? MR. LAFORET: Right. MS. LOUVIERE: Uh-huh, yes. MR. MANALICH: And we'll have to sort through the issues at that time as they have developed. MS. LOUVIERE: And I think that will give staff some time to sort through these issues too. MR. MANALICH: Well, I appreciate that. And I did want to inconvenience the board, but I did want to make this was developing in case you did want to address it. happy, though, to advise the parties of your decision. CHAIRPERSON ALLEN: That's fine. MR. MANALICH: Okay. MR. ANDREWS: Thank you. CHAIRPERSON ALLEN: With all that, okay, shall we have a motion to approve the amended agenda? MR. LAFORET: I move we approve the continuance. CHAIRPERSON ALLEN: No, this is a motion -- MS. LOUVIERE: I make a motion that we amend the amend that we approve the amended agenda. MS. RAWSON: I second. Exactly. And I excused myself last week and the not you aware that I'll be Page 7 October 26, 1995 CHAIRPERSON ALLEN: All those in favor? Passes unanimously. We'll go now to the approval -- MR. ANDREWS: As amended; right? CHAIRPERSON ALLEN: Yes. MS. LOUVIERE: As amended. CHAIRPERSON ALLEN: We'll go now to the approval of the minutes dated September 22, 1995. Do we have any modifications to the minutes? Members of the board, do we have any problems with the minutes? MS. LOUVIERE: I make a motion that we approve the minutes. MR. LAFORET: Second. CHAIRPERSON ALLEN: We have a motion and a second. All those in favor signify by saying aye. Passes unanimously. We'll go now to our public hearings. Miss Cruz, would you like to begin? MS. CRUZ: Yes, sir. Our next case is Board of County Commissioners versus Terri L. Kirwan, case number 950-16 (sic). I've prepared a composite exhibit of 15 pages. I'd like to request for this composite exhibit to be admitted into evidence. MS. RAWSON: I would move the introduction into evidence. CHAIRPERSON ALLEN: I'll second that. We have a motion and a second to introduce the minutes into evidence. Do we have a -- all those in favor signify by saying aye, please. Carries unanimously. Continue, please. MS. CRUZ: Let the record show that Mr. Kirwan is not present. Mr. Kirwan is the property owner of -- at the property located at 248 Madison Drive, Naples, Florida, more particularly described as Willoughby Acres, lot 261 and the east half of lot 262. Mr. Kirwan is in violation of a placement of landscaping in the right-of-way without first obtaining the proper Collier County permits. A notice of violation was served to Mr. Kirwan on April -- April 18, '95, requesting this violation to be corrected by June 30, '95. The last reinspection was conducted yesterday, October 25, which resulted the violations still exist. Staff is open for any questions from the board members. MR. MCCORMICK: Have you had any contact with Mr. Kirwan because I notice here he said he wanted to argue his case in front of the board? Do you know why? MR. LAFORET: He was here before, a short while ago, 20 minutes. MR. HEDRICH: That was Mr. Landgrebe. MS. CRUZ: Mr. Hedrich, would you come to the stand, please? Raise your right hand. THEREUPON, DAVID HEDRICH, a witness, having been first duly sworn, upon his oath, testified as Page 8 October 26, 1995 follows: MS. CRUZ: State your name for the record again. MR. HEDRICH: Dave Hedrich, Collier County code enforcement investigator. MS. CRUZ: Mr. Hedrich, I'm repeating Mr. Laforet's question. Have you had communication with Mr. Kirwan? MR. HEDRICH: Yes, I have, several occasions, including yesterday. I spoke to Mr. Kirwan after visiting his residence. He had begun the removal of certain items from the right-of-way that could not be permitted, cutting down of some ficus trees that he had planted in the right-of-way. And in order to obtain the permit for the remainder of the landscaping in the right-of-way, that was part of the process, that the ficus trees be removed because they could not be permitted. Mr. Kirwan also indicated that he would be here this morning. Evidently we haven't seen him as of yet. MS. CRUZ: Staff has no further questions. MR. ANDREWS: Did you say he did -- he did need a -- a permit to take the to take down the ficus trees? MR. HEDRICH: He doesn't need a permit to take down the ficus trees. MR. ANDREWS: But -- but -- but they're illegal, and -- and he was -- he was supposed to take those down too. MR. HEDRICH: Right. And that is one item that cannot be permitted. No matter what, the ficus trees would have to be removed before the permit could be issued for the remainder of the landscaping. MR. ANDREWS: And and did he get a permit for the shrubbery? MR. HEDRICH: The permit cannot be obtained until the trees have been removed. MR. ANDREWS: Oh, okay. MR. MANALICH: Mr. Hedrich MR. LAFORET: Excuse me. I have a question. On your photographs on page 14 showing the property -- MR. HEDRICH: Yes, sir. MR. LAFORET: -- is that the only property -- as you look down the street I don't see any other properties that have planted up to the -- to the grass line. MR. HEDRICH: Yes. MR. LAFORET: Is that the only one? MR. HEDRICH: The only property with the landscaping all the way out to the roadway. MR. LAFORET: Is there a swale or drainage ditch on this property? MR. HEDRICH: Yes, sir. MR. LAFORET: How would the county get to that to clean it? MR. HEDRICH: That is precisely, you know, how this all came to be. The county does not have access into that swale with all the landscaping that has been added. MR. LAFORET: Thank you, sir. MR. MANALICH: Mr. Hedrich, what type of notice for this hearing was provided to Mr. Kirwan? Was it certified mail? MR. HEDRICH: Yes, it was certified mail. Page 9 October 26, 1995 MR. MANALICH: Does it -- do we have a receipt that it was received? MS. CRUZ: On page 8 of Composite Exhibit A, there's a copy of the certified receipt signed by Brandy Kirwan on June 10 of , 95 . MR. MANALICH: In addition, Mr. Hedrich, you said you spoke to him yesterday and he was aware of the hearing today? MR. HEDRICH: Yes, he was. MR. MANALICH: Thank you. CHAIRPERSON ALLEN: What's staff's recommendation? MS. CRUZ: Staff recommendation -- recommends that a hundred dollars be imposed for every day of non-compliance, have Mr. Kirwan comply within ten days, remove the -- the landscaping from the right-of-way or paying the proper permits or a hundred dollars be imposed for every day the violation exists. CHAIRPERSON ALLEN: Would you like to do the honors this morning? MS. RAWSON: Sure. MS. CRUZ: Mr. Chairman, staff would like to amend that recommendation, instead of ten days give -- allow Mr. Kirwan 30 days due to a previous conversation with Mr. Hedrich and Mr. Kirwan. MR. MANALICH: Before we proceed any further, I just would like to inquire of the court reporter/clerk if she has a copy of Staff Composite Exhibit A. THE COURT REPORTER: Yes, I do. MR. MANALICH: I'd like to -- let me just take the opportunity to mark that. Has it already been marked? Just one moment. MR. ANDREWS: Maria, who recommended 30 days? MS. CRUZ: Staff is recommending 30 days. MR. ANDREWS: Why -- why 30 days? MS. CRUZ: There was a previous conversation with Mr. Hedrich and Mr. Kirwan, and it was agreed that we would allow him 30 days to remove the ficus trees from the right-of-way and obtain the proper permits. MR. HEDRICH: Mr. Kirwan's now here. MR. ANDREWS: It seems to me he had -- he had -- he's had plenty of time on this, but it's not that big of job. Why -- why we should allow him the 30 days I don't quite understand. MS. LOUVIERE: I'm sorry. Did you say Mr. Kirwan is now here? MR. HEDRICH: Yes, he is. Would you like to step up, Mr. Kirwan? MR. KIRWAN: The reason for that MS. CRUZ: Mr. Kirwan, please raise your right hand. MR. KIRWAN: Oh. THEREUPON, BRIAN KIRWAN, a witness, having been first duly sworn, upon his oath, testified as follows: MS. CRUZ: State your name for the record, please. MR. KIRWAN: Brian Michael Kirwan. The reason I was asking for 30 days is at this time the stumps are under water and that it was hard to get the stumps out at this time. They're -- right now Page 10 October 26, 1995 the swale grade is just so full that it was just impossible to get a chain saw under water to try to remove the stumps. CHAIRPERSON ALLEN: Excuse me, Mr. Kirwan. What relationship are you to Terri L. Kirwan? MR. KIRWAN: Her husband. CHAIRPERSON ALLEN: Okay. MR. MCCORMICK: Is it your intention, Mr. Kirwan, to remove the ficus trees? MR. KIRWAN: Yes. Most of the trees are all gone right now. It's just the actual stump that's left. There was two trees. There's about a five -- a stump about this tall, and I just -- at this time they were submerged in water, and I was just waiting for the swale grade to drain -- to drain enough so that I could physically remove them, and that was the reason for that. MS. LOUVIERE: So basically you've removed all the landscaping; is that correct? MR. KIRWAN: The ficuses. MS. LOUVIERE: The ficuses. MR. KIRWAN: Right. MS. LOUVIERE: And then you're gOlng to try to obtain a right-of-way permit -- MR. KIRWAN: Yes. MS. LOUVIERE: MR. KIRWAN: Yes, MS. LOUVIERE: right-of-way. MR. KIRWAN: Right. MS. LOUVIERE: Okay. MR. KIRWAN: Right. MS. LOUVIERE: And you would like to have 30 days to finish removing the ficus stumps, and then you were going to go to the county and get a right-of-way permit and put in the landscaping or be allowed. MR. KIRWAN: Right, exactly. MR. MANALICH: Mr. Kirwan, are you authorized to be here today representing Terri Kirwan on this matter in this hearing? MR. KIRWAN: My wife is here with me. MR. MANALICH: Oh, she is also here? MR. KIRWAN: Yes. MR. MANALICH: Okay. MR. HEDRICH: Might I add one thing that our right-of-way inspector, Bill Spencer, has already been to the site and has made a statement that once the ficus trees are removed he will provide a permit for the remainder of the landscaping in the right-of-way, just that he couldn't permit the ficus trees to be there. MR. MANALICH: Just to be clear, Mr. Kirwan, are you contesting this charge of this violation, or are you admitting that this violation exists? MR. KIRWAN: Oh, I admit that the -- yeah, that the trees are there, and I had attempted to get them approved, and they didn't feel as though they wanted the ficuses there. They didn't have a problem with the other landscaping that was there. It was just requested that the ficuses be removed, and that's where I'm at at this to place -- I am. the landscaping in the -- in the This is what you're proposing. Page 11 October 26, 1995 point. MR. ANDREWS: You -- you say you have cut the trees, but the stumps are still there; right? MR. KIRWAN: Yes, sir. MR. ANDREWS: And -- and as soon as -- as soon as you're able to work on them, you're going -- you're going -- you're going to have the stumps removed. MR. KIRWAN: Yes, sir. Yes, sir. MS. CRUZ: Mr. Kirwan, one thing, you are legally authorized to represent Terri L. Kirwan under this -- on this case? MR. KIRWAN: Yes, yes, yes. MS. CRUZ: And we also want you to understand that you have the 30 days. You will remove the stumps and obtain the permit within those 30 days. MR. KIRWAN: Right. MS. LOUVIERE: I -- does anyone have any other questions because I'm getting ready to make a motion? CHAIRPERSON ALLEN: Do we have any more comments by staff or the board? MS. SULLIVAN: We just wanted to make clear that the permit -- Linda Sullivan. I'm the code enforcement director. We just would like to make sure that the order clarifies that the permit will also be obtained within that 30-day period as well as the removal. MS. LOUVIERE: I make a motion that we grant Mr. and in this case Mrs. Kirwan because she's your wife and she's the legal owner 30 days to remove the ficus stumps and obtain the right-of-way permit or we will start fining you as recommended by staff of a hundred dollars per day. CHAIRPERSON ALLEN: We need to do an order imposing fine. MR. MANALICH: Do you have -- I have the two sample orders, the one for no findings and the other one for findings. Do you -- does any of you need that? CHAIRPERSON ALLEN: I think Miss Louviere will need that. MS. LOUVIERE: Oh, am I going to do this? No, I don't like doing this. MR. MANALICH: Let me provide you one of each, and you can choose whichever's appropriate, the findings or no findings. MS. RAWSON: You need the one with the findings. MS. LOUVIERE: Okay. Well, do I have to make -- don't I make the motion first and then we vote on it, and then I could into right -- just go into -- right into finding of facts? Okay. I guess I have to go right into findings of facts, conclusion of law, and order of the board; correct? CHAIRPERSON ALLEN: (Chairperson nodded head.) MS. LOUVIERE: This cause came on for public hearing before the board on -- today's what? October the 25th? 26th? -- 26, 1995, and the board having heard testimony under oath, received evidence, and heard arguments respective to all appropriate matters -- getting it? -- thereupon issues this findings of fact, conclusions of law, and order of the board as following: That -- give me a moment, and I'll go through it -- Terri L. Kirwan, K-i-r-w-a-n, is the owner of record of the subject property; that the -- number two, that the Page 12 October 26, 1995 Code Enforcement Board has jurisdiction of the person of the respondent and that Miss Kirwan was present at the public hearing and represented by Mr. Kirwan who spoke for her; number three, all notices required by Collier County ordinance number 92-80 have been properly issued; number four, that the real property legally described as -- can I just reference my agenda? MR. MANALICH: Yes. If you will grant me the authority in the order to include a reference to the deed and other property information in the composite exhibit, I will insert that. MS. LOUVIERE: I hereby grant you that authority. MR. MANALICH: Thank you. MS. LOUVIERE: And, therefore, I do not have to read number four at all, correct, because you're going to insert the deed and you're going to insert -- MR. MANALICH: Right, but it does reference what is the -- the section and violation of what ordinance. You do need to state that. MS. LOUVIERE: Okay. She is in violation of sections 4 of ordinance 93-64, the Collier County right-of-way ordinance. And the description of the violation is placement of landscaping ln the right-of-way without first obtaining proper permit. The conclusion of law, that Miss Terri L. Kirwan is in violation of section 4 of ordinance 93-64 which is -- I just read that which is -- and she -- basically she's placing landscaping in the right-of-way without first obtaining proper perming -- permit. It is the order of board that based upon the foregoing findings of facts and conclusions of law and pursuant to the authority granted in Chapter 162, Florida Statutes, and Collier County ordinance 92-80, it is hereby ordered that the respondent correct the violation of section 4 of ordinance 93-64 which is the Collier County right-of-way ordinance in the following manner: That the respondent has 30 days within to remove the stumps of the ficus and obtain a right-of-way permit to be able to place this landscaping in our right-of-ways in Collier County; that said corrections be completed on or before -- could I please have 30 days from now which would be what? November MR. HEDRICH: I don't have a calendar. MS. LOUVIERE: -- by -- by 30 days from now and if respondent does not comply with this order on or before that date, then and in that event respondent is hereby ordered to pay a fine of $100 per day for each and every day any violation described herein continues past said date. Failure to comply with the order within the specified time will result in the recordation of a lien pursuant to Chapter 162, Florida Statutes, which may be foreclosed and respondent's property sold to enforce this lien. Done and ordered this 26th day of October, 1995, in Collier County, Florida. MR. MANALICH: Mr. Chairman, as you act on that motion, one item to keep in mind with regard to the suggested penalty lS that under the statute you are to consider, as always, the gravity of the violation, any actions taken by the violator to correct the violation, whether there have been any previous ones committed by the violator. MS. LOUVIERE: And we did, and I think that's why staff recommended a fine of $100 per day and not the maximum that is Page 13 October 26, 1995 allowable. MR. MANALICH: MS. LOUVIERE: to comply with us. CHAIRPERSON ALLEN: We have a motion. Do we have a MR. ANDREWS: I second both the find -- findings of fact and the order. MS. RAWSON: I think we should probably vote first on the findings of fact and conclusions of law and if that passes then vote on the order. MR. ANDREWS: Okay. CHAIRPERSON ALLEN: We have a motion, and let's amend the second. Is that what you'd like to do to vote on the findings of fact? MR. ANDREWS: Findings of fact. CHAIRPERSON ALLEN: All those in favor? Pass unanimously. Now we'll go to a motion and a -- we have a motion now by Miss Louviere for the -- MR. ANDREWS: I second the -- I second the -- CHAIRPERSON ALLEN: -- order imposing fine? MR. ANDREWS: On the order, yes. CHAIRPERSON ALLEN: We have a motion and a second. All those in favor signify by saying aye. Any opposed? None, so we have -- passes unanimously. So, Mr. Kirwan, you're -- you're up to speed. You've got 30 days to obtain a permit and get the ficus stumps out of the area. And whatever permits you need from the right-of-way people, we need to obtain that. MR. KIRWAN: Okay. MS. LOUVIERE: Otherwise we start fining you, okay, so you've got 30 days? MR. MANALICH: Just to be perfectly clear for the order, the order is that the respondent has 30 days from today's date to remove the stumps and ficus trees and obtain a proper permit. MS. LOUVIERE: Obtain a right-of-way permit. MR. MANALICH: Right-of-way permit. MS. LOUVIERE: Uh-huh. MR. MANALICH: Otherwise a fine of $100 per day. MS. LOUVIERE: Commences. MR. ANDREWS: Is that -- is that right-of-way permit difficult to get? Can you go right there -- MS. LOUVIERE: They're very -- they're very easy to obtain. MR. ANDREWS: Okay. CHAIRPERSON ALLEN: Thank you all. Staff, shall we continue to our next case? MS. CRUZ: Yes, sir. MS. LOUVIERE: Thank you. MR. ANDREWS: New business. MS. CRUZ: Our next item is under new business. Item A, the Board of County Commissioners versus John R. Landgrebe and Emily L. Landgrebe, case number 95-010. Staff would like to request a That's fine. We understand that -- that he lS trying Page 14 October 26, 1995 filing of the affidavit of compliance. This case appeared on -- before this board on August -- I'm sorry, on September 14, '95. The board ordered Mr. Landgrebe to take correction action to correct the violation by removing the unpermitted mobile home from the location. An inspection was conducted on August twenty -- on October 25 which revealed that the violation had been removed. MR. MCCORMICK: Can you tell us what the corrective action was? MS. CRUZ: He removed the mobile home from the property. MR. MCCORMICK: Removed it? MS. CRUZ: Uh-huh. MS. LOUVIERE: I make a motion that we file the affidavit of compliance. MR. ANDREWS: Second. CHAIRPERSON ALLEN: We have a motion and a second. All those in favor signify by saying aye. Carries unanimously. MR. MANALICH: Were any fines incurred ln this case? MS. CRUZ: No fines. CHAIRPERSON ALLEN: That concludes Mr. Landgrebe. MS. CRUZ: Yes, sir. CHAIRPERSON ALLEN: Okay. Shall we continue to Mr. Parks? MS. CRUZ: Next item is Board of County Commissioners versus Ronnie Parks, case number 95-006. This case appeared before this board on May 25 of '95. Again, an order was issued ordering Mr. Parks to correct the violation of unlawful accumulation of litter, unlawful accumulation of unlicensed non-operable vehicles, and unlawful storage of a travel trailer being used as a primary residence. Reinspections were conducted resulting in a non-compliance. Staff is requesting that an order imposing fine be filed for the total number of days of 72 days times the amount im -_ ordered by this board which is $750 per day. MS. LOUVIERE: Could you explain to me why the fine's $750 for the record? MS. CRUZ: Yes, the fines -- the fines were set at 250, $250, per violation. There were a total of three violations which became to be a total of $750 per day. MS. LOUVIERE: Okay. CHAIRPERSON ALLEN: Has staff had any conversation with Mr. Parks since this order imposing fine? MS. CRUZ: I will let Mr. Hedrich comment on this question. MR. HEDRICH: Hello once again. Yes, we've had quite an extensive conversation with Larry Parks who has been residing out there at this property; no conversation with Ronnie Parks whatsoever. And as of this time, we haven't had any conversation with Ronnie Parks. Larry Parks, who is residing on that property at this time, gave us quite a scuffle the last time we were out there. It involved quite an extensive long day, the sheriff's department, the confiscating of a loaded weapon, and threat -- death threats and so on. MR. LAFORET: Did he miss you? Page 15 October 26, 1995 MR. ANDREWS: He must have. MR. MANALICH: I have a couple of questions. First, I believe that notice was furnished to both Ronnie and Larry Parks of today's hearing; is that correct? MS. CRUZ: That's correct. MR. MANALICH: In what manner? MS. CRUZ: Certified mail. MR. MANALICH: And was any of that returned as of this date? MS. returned received MR. MS. that. I MR. Ronnie. MS. CRUZ: of record. MR. MANALICH: address? MS. CRUZ: Uh-huh. MR. MANALICH: Okay. There was also I believe -- notice was sent to the property site itself where Mr. Larry Parks is residing? MS. CRUZ: That's correct. MS. RAWSON: I have a question. In our order of June 13, we ordered that he pay 250 a day per violation each and every day. Did I hear you just recommend 150? MS. LOUVIERE: No. MS. CRUZ: Seven fifty. MS. RAWSON: Seven fifty, okay. That's for each violation, a total of 750. MS. CRUZ: Right. MS. RAWSON: Okay. MR. MANALICH: My question on that would be as I look at that order, it does say that the correction is A, removal and clean-up of litter; B, cease using trailer as living residence. And then it mentions that in the event that does not comply with the order, respondent's hereby ordered to pay a fine of $250 per violation per day. Are there just two violations there? MS. CRUZ: No, there's three violations. On the order on page 1 where it says description of violation, item A, violation number one is unlawful accumulation of litter consisting of cement roof tiles, metal, plastic, paper, wood, glass, derelict vehicle parts and piles of tires; violation two, unlawful accumulation of unlicensed and on -- and/or non-operable vehicles; and violation three, unlawful storage of travel trailer being used as a primary residence. MR. MANALICH: And those -- all three of those continue to exist as violations. MS. CRUZ: That's correct. CHAIRPERSON ALLEN: Mr. Hedrich, this same one that wrote you that nice personal MR. HEDRICH: There's been so many, I CRUZ: The certified receipt for Ronnie Parks was -- excuse me, was signed for, and the certified receipt was at our office. MANALICH: Was that signed for by Larry Parks? CRUZ: It was signed by L. picks or something like cannot understand the writing and the signature. MANALICH: That was sent to his last -- Mr. Parks, It was sent to the Tennessee address, address That was Ronnie Parks' last known Mr. Parks is the memo back in May; right? can't recall Page 16 October 26, 1995 exactly which one you're speaking. CHAIRPERSON ALLEN: I think it was an exhibit back in Mayor June. MR. HEDRICH: Oh, the statement I had written out? CHAIRPERSON ALLEN: Yes, sir. MR. HEDRICH: Yeah. Based on one of our conversations, yes, the same Mr. Parks. MS. RAWSON: I have a motion. I'd first like to move for introduction into evidence the affidavit of non-compliance dated October 11, 1995. MR. ANDREWS: Second. CHAIRPERSON ALLEN: We have a motion and a second. All those in favor signify by saying aye. Carries unanimously. MS. RAWSON: Then my second motion is that the respondent, Ronnie Parks, be ordered to pay to Collier County a fine in the amount of whatever 72 days times 750 is. MS. CRUZ: Fifty-four thousand. MS. RAWSON: Thank you. Fifty-four thousand dollars for non-compliance with the board's order of June 13, 1995; that that fine is for the dates of July 24, August 30, September 6, September 25, and October 3; and that that $750 per day fine continue to accrue until the respondent Ronnie Parks comes into compliance. MS. LOUVIERE: I second it. CHAIRPERSON ALLEN: We have a motion and a second. MR. LAFORET: I have a -- I have a question on what she said. Does this fine -- to staff, does that include the costs of the investigation by the environmental protection which I understand was some 360 hours or something, 36 hours I think it was? MS. CRUZ: No, sir. This amount strictly includes the amount of fines. MR. LAFORET: It's just your costs in your shop. All right. Thank you. MS. LOUVIERE: But statute dictates that we can only fine certain amounts. MS. CRUZ: Right. MS. LOUVIERE: So that's why staff lS recommending $250 per violation per day. MS. CRUZ: Correct. CHAIRPERSON ALLEN: That's as extreme as this board can go? MR. MCCORMICK: Uh-huh. CHAIRPERSON ALLEN: So we have a motion and a second. Any further discussion? All those in favor signify by saying aye. Carries unan -- MS. RAWSON: I-- CHAIRPERSON ALLEN: Excuse me. Sorry. It carries unanimously. MR. MANALICH: Mr. Chairman -- MS. RAWSON: I have a third motion, and that is that the order should be recorded, and then that would constitute a lien against the property. CHAIRPERSON ALLEN: Second for that? Page 17 October 26, 1995 MS. LOUVIERE: I second it. CHAIRPERSON ALLEN: Okay. We have a motion and a second for recordation of lien. All those in favor signify by saying aye. That carries unanimously also. MR. MANALICH: Mr. Chairman, just one item -- one item to consider in this. Going back to my earlier point, the question that I'm dealing with here is whether the way the order is structured he's been ordered to do two things for three types of violations. The question is whether we have properly imposed fines on two or three violations. As I look at the violations, one is the unlawful accumulation of litter consisting of a number of items that were disposed of on the property; two is the unlawful accumulation of non-operable vehicles. Now, is that a separate section of the litter ordinance, or is that simply another description of litter on the property? And then three, we have the unlawful storage of a travel trailer. My understanding is a travel trailer, that is -- is that not a separate violation apart from the litter ordinance? So we clearly have two. What I'm struggling with is whether we actually have two or three violations because it may be that one and two are actually both litter violations. MS. CRUZ: It's a separate violation, the unlicensed vehicles from the litter. MR. MANALICH: You consider them separate? MS. CRUZ: Uh-huh. MR. MANALICH: They're separate parts of the ordinance? MS. CRUZ: Separate section of the ordinance, yes. MS. LOUVIERE: So in addition to that, an order of the board states that the respondent correct the violations of sections 5, 6, 7, and 8 of ordinance number 91-47, but -- and that -- which is which is the Collier County litter ordinance. But then it states sections 26711 and 2115 of 91-102. So basically he is also in violations of two sections of the Land Development Code. MR. MANALICH: Right. MS. LOUVIERE: So you are still concerning yourself with three violations. MR. MANALICH: It appears that's correct. The only thing I'm struggling with a little bit is simply if we've only ordered him to do two things to correct -- but I agree with you. I think the essence is how many violations are there, and you can fine per violation, not per order you issued. So I agree. We can uphold the prior motion. That amount, Miss Rawson, was $54,000; is that correct? MS. RAWSON: I think that's right. CHAIRPERSON ALLEN: Do we have any more discussion by staff or the board members? MS. CRUZ: No more discussion. CHAIRPERSON ALLEN: Okay. We will continue now to our that concludes our new business. We'll now go to our old business. MS. CRUZ: Board of County number 95-011. Our next item under old business ,is item A, Commissioners versus Jack A. Queen, trustee, CEB This case appeared before this board on September 22, Page 18 October 26, 1995 '95. After having heard testimony under oath, received evidence, and heard arguments respective to all this -- to this matter, this case was continued for one month, for today's date, October 26, '95. At the hearing on September 22, '95, Mr. Queen appeared before this board and stated that the violation had been corrected, and this board orders -- continued the case for one month to staff to verify the compliance of the violation. Staff did -- conducted a -- conducted a violation -- a recheck on this property and confirmed the violation had been removed. We are asking that this case be dismissed at this time. MR. MCCORMICK: I'll make a motion we dismiss the charges against Mr. Queen, Code Enforcement Board case number 95-011. MR. ANDREWS: I second. CHAIRPERSON ALLEN: We have a motion and a second to dismiss those charges. All those -- MR. LAFORET: Second. CHAIRPERSON ALLEN: And a second second. All those in favor signify by saying aye. And that carries unanimously. We go now to reports. Do we have any reports by staff, board members, or counsel? MS. CRUZ: No reports. MS. LOUVIERE: I have a question. is just a question. Can -- does the over Collier County staff? MR. MANALICH: In what respect? MS. LOUVIERE: If we rule on something, can Collier County staff then revisit an item and come in with different decisions than what we -- who has -- who's the highest power in the land? MR. MANALICH: Well, that's -- I think by implication you're referring to the earlier discussion on the Jay's case, and that is an interesting question. And, frankly, I think that's going to require a hearing on this matter to see exactly how things developed. MS. LOUVIERE: See? MR. MANALICH: Essentially, I mean, I see you operating on different spheres in a sense. I mean, Mr. Mulhere just reminded me, that, you know, the planning staff and the county attorney's staff typically are the ones that interpret the Land Development Code. MS. LOUVIERE: Uh-huh. MR. MANALICH: Obviously I think -- and this is a pretty unique case. I -- what I would recommend is we simply -- you've chosen to defer hearing it and see -- MS. LOUVIERE: Well, that's fine. MR. MANALICH: Yeah. MS. LOUVIERE: I just wanted to kind of be prepared to answer that question -- MR. MANALICH: Right. MS. LOUVIERE: -- when we come back in a month. MR. MANALICH: And that is an issue in the case no doubt. MS. LOUVIERE: I think so. MR. MANALICH: Essentially you each have somewhat independent but yet in some cases overlapping spheres of responsibility. This is not -- this does this board have authority Page 19 October 26, 1995 MS. LOUVIERE: Uh-huh. MR. MANALICH: And sometimes they overlap in interesting ways which we'll have to sort out. I don't know if I can provide you an answer right here today is the only thing. MS. LOUVIERE: Okay. CHAIRPERSON ALLEN: No other questions? I've got -- I've got one question for Miss Sullivan. Do you think it would be appropriate to have Mr. Hedrich hand deliver this $54,000 lien to Mr. Parks in Newport, Tennessee? MS. SULLIVAN: I'm not sure it'd be real safe, and I don't think I want to go with him. I went the last time. Thank you. MR. HEDRICH: I would like to request a tank to do so. CHAIRPERSON ALLEN: I just thought I'd ask that question. Mr. Mulhere. MR. MULHERE: I just wanted to add something. Bob Mulhere with current planning staff. In general interpretations are -- the Land Development Code provides that the planning services director is the person charged with interpreting the code. And we are required by the Land Development Code to counsel -- to seek, you know, the counsel of the county attorney's office to find that they concur with our interpretation. But there are some gray areas I think as were alluded to. Certainly anyone with standing has the ability to disagree with that interpretation and to challenge it, and there is a process that's set up for that. And I don't want -- without being specific, that could be someone who is found to be in violation or someone who feels that there was a violation and disagrees with the staff interpretation. So either way anyone with standing could challenge that, and there is a process that is set up through the Land Development Code. And I -- you know, legally I don't know whether that extends to the board if they disagreed with a finding of -- of the planning services director or not but -- MR. MANALICH: I think we'll need to be prepared. Obviously you've chosen to hear that particular case next month. All parties will be prepared to address that issue. It has kind of come at us in a backward-type fashion because, of course, this occurred after the order as opposed to previous to the order which is another complication. But again, I think the safest course obviously that I would on behalf of staff today request of you is simply to defer this matter as you've chosen to do and hear all the parties and then see how it sorts out. CHAIRPERSON ALLEN: That's fine. Do we have any other reports or comments? Our next meeting date will be November 30. Are we going to continue to meet at 8:30 in the morning? MS. CRUZ: That's okay with staff. CHAIRPERSON ALLEN: Okay with everyone? MR. ANDREWS: Yeah, I thought that was permanent. MS. RAWSON: It was my suggestion, and I love it. It's only 9:27, and we're out of here. Page 20 October 26, 1995 CHAIRPERSON ALLEN: Wonderful. MR. HEDRICH: Nice change. MR. MANALICH: That's November 30? CHAIRPERSON ALLEN: November 30, 8:30 in the morning. Do we have any other comments by staff, counsel, or members of the board? We'll adjourn this meeting. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 9:28 a.m. cctJ5*ARD JIM ALLEN, CHAIRPERSON These minutes approved by the Board ~~4AI~ as presented or as corrected ~. TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING BY: Shelly Semmler Page 21