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CEB Minutes 11/30/1995 1995 Code Enforcement Board November 30, 1995 CODE ENFORCEMENT BOARD OF COLLIER COUNTY. FLORIDA AMENDED AGEN;QA Date: November 30, 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 October 26, 1995 4. PUBLIC HEARINGS A. BCC vs. NAPLES TROLLEY TOURS - CEB No. 95-013 5. NEW BUSINESS N/A 6. OLD BUSINESS A. BCC vs. Deauville Lake Club Dev. Corp. - Affidavit of Non-Compliance and Request for Imposition of Fines B. BCC vs. Deauville Lake Club Dev. Corp. - Affidavit of Compliance C. Review of CEB Order issued September 22, 1995 - BCC vs. J's All Marine Service - CEB No. 95-009 7. REPORTS A. Nuisance Abatement Ordinance and Code Enforcement Board Amendments 8. 9. NEXT MEETING DATE ADJOURN January 25, 1996 November 30, 1995 CHAIRPERSON ALLEN: Good morning. I'd like to call to order the November 30 meeting of the Collier County Code Enforcement Board. 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 -- MR. ANDREWS: The -- this isn't on. CHAIRPERSON ALLEN: 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 begin with a roll call at my left. MR. MCCORMICK: Richard McCormick. MR. LAFORET: Louis Laforet. CHAIRPERSON ALLEN: Jim Allen. MS. DEIFIK: Celia Deifik. MS. LOUVIERE: Mireya Louviere. MR. ANDREWS: Charlie Andrews. MS. CRUZ: Mr. Chairman, I request that Jean Rawson's absence be excused. She called, and she was called into trial this morning, and she's going to try to be in later. CHAIRPERSON ALLEN: She was here earlier. That's so noted. Thank you. Start now with the approval of the agenda. Do we have any comments, changes? MS. CRUZ: Yes, Mr. Chairman. Under item A, I'd like to continue that case to CHAIRPERSON ALLEN: Okay. will that to the agenda? MR. MANALICH: Mr. Chairman, on that on the item involving J's Marine we have perhaps if that item could be next heard been the request I received. CHAIRPERSON ALLEN: Fine. So we're going to move old business after we approve the agenda and the minutes, and that will be our first hearing; is that correct? All righty. With those two items, do we have a motion? MR. MCCORMICK: I'll make a motion that we approve the agenda as noted. MR. ANDREWS: I second. CHAIRPERSON ALLEN: We have a motion and a second. All those signify by aye. Passes unanimously. We'll go now to our approval of the minutes of October 26, 1995. Do we have any changes in those minutes? MR. ANDREWS: I'd -- I'd make -- I'd make a motion that we -- that we accept them except I can't understand them. With all those dots and dashes and open spaces, I mean, and stuttering, it doesn't make sense. I'm the -- I'm the worst offender, but I'll go ahead and approve them. CHAIRPERSON ALLEN: worst offender. MR. MCCORMICK: Second. CHAIRPERSON ALLEN: Do we have -- motion and a second. public hearings, our next meeting. be the only change point, I do believe several persons present, and in -- in sequence, that has We have a motion to approve by the Page 2 November 30, 1995 All those in favor signify by saying aye. It carries unanimously. We'll go now to our new business, and that will be bringing CEB case of J's All Marine first; is that correct? MR. MANALICH: Mr. Chairman, on that point I'd just like to begin for -- with a clarification for the record. This is one item on which I am representing staff. You will be advised by Mr. Yovanovich, and I will leave this table now and join staff. CHAIRPERSON ALLEN: Obviously I'm going to recuse myself also. MR. MCCORMICK: For the record, I also recuse myself for previously stated conflict. MS. LOUVIERE: Yeah, we're going to have a quorum. CHAIRPERSON ALLEN: I believe you still have a quorum. MS. DEIFIK: Is three a quorum? MS. LOUVIERE: Four, we got four. I don't think the mike -- are the microphones on? MR. ANDREWS: No. MS. DEIFIK: We just made you chairman. MS. LOUVIERE: How convenient. MR. SAUNDERS: Looks like Del comes and everybody leaves. MR. ANDREWS: Yeah. They're afraid of you. When they see you walk up here, it scares them off. MS. LOUVIERE: Hello. Is that on? MR. MANALICH: Test. No, I don't think MS. LOUVIERE: I think this is the new installed. I think it cost like $300,000. MR. MANALICH: I can check next door a they have an answer. MS. LOUVIERE: Could you do that? MR. ANDREWS: There's a button -- there's a button to push out there if somebody knows where it is. MS. LOUVIERE: It'll just take a minute. MS. DEIFIK: I can hear everybody. MR. MULHERE: It's on. MS. LOUVIERE: Is it on? Okay. Sorry. MR. ANDREWS: Can you guys hear? Can you hear? THE REPORTER: Barely. (A short break was held.) MS. LOUVIERE: It's fine. Thank you. MR. MANALICH: Help is on the way. MS. LOUVIERE: We've got it. I think it started. Yes. Okay. Thanks a lot. I appreciate it. MR. ANDREWS: I can hear it through this thing, but you guys can't hear it very good. MS. LOUVIERE: Well, we're going to go ahead and get started. MR. ANDREWS: Just yell. MR. SAUNDERS: Madam Chairman, I'm not sure what procedure the staff wants to use in this petition. I did want to kind of lay the groundwork for just -- by making one comment. There's been some concern as to how we all kind of got to where we are. And as I indicated to the board a couple months ago, so. system they just No, I'm kidding. moment and see if Page 3 November 30, 1995 I got into this a little bit late. And after I had our first meeting with the Code Enforcement Board, I sat down with staff. And we went through the code and made some -- got some clarifications as to what was permitted and what is not permitted. And so you've seen a flurry of letters indicating that certain things that were considered a violation by staff are no longer considered violations by staff, and that's because of the interpretations of the planning staff. And so that may look a little strange to you in light of the fact that we were here on violations on those issues. And so the only explanation for that is that I did get involved a little bit late, and that's why it's -- why we have the clarifications from staff after the initial Code Enforcement Board actions. Also I think the staff will verify that Del has complied with all of the requirements under the order of this board. We have applied for the variance petition. I have a letter from the staff verifying that the petition has been filed. We're before the planning commission on December 7. And I have a receipt for the $425 filing fee. So that's moving along as quickly as we can move it. We expect to be before the county commission I believe in January to resolve that. So with that introduction, Ramiro I'm not sure how you want to proceed on this. MR. MANALICH: Just as an update, if you will recall, this matter was brought to your attention last month basically consisting of what Mr. Saunders indicated. Subsequent to your rendering of an order in the hearing of this matter, it was brought to my attention that there had been discussions regarding the inter -- proper interpretation of the site development plan and how that affected your order. This matter is here before you today for a review of your order in light of those interpretations. And I think at the last very brief mention of this item that was continued to today, at least some of the members had some questions in regard to the powers of staff to interpret the codes and how that overlaps with your enforcement of the codes on this board. And basically I have met with staff. I have also talked with Marjorie Student, our Land Development Code expert in our office. And basically the position that staff has in this matter at this time is that under section 1.6.1 of the Land Development Code, Mr. Arnold and Mr. Mulhere do have the ability to interpret matters of the code. Now, obviously there is some degree of overlap we would maintain between their function and yours. Yours as we -- as staff sees it is to obviously enforce the codes by applying them to particular fact situations. Now, occasionally I think that may inherently involve some degree of interpretation by you in applying those codes. Basically yours is one of fact finding and enforcing the code. We do believe that WaYne and Bob have the ability under the section to interpret the code. This came to you in a rather awkward manner because this interpretation came after you heard the case. Regardless, staff's position is we feel we need to arrive at the right result, whether it was done in advance or Page 4 November 30, 1995 afterward. Because of that, we think that the order should be amended slightly to be consistent with the interpretation rendered by Mr. Arnold and Mr. Mulhere. They are here today to elaborate I think briefly on what they interpreted in relation to what was covered by your code -- or by your order. MS. LOUVIERE: Okay. Can we stop right there? I -- I -- this is fine and dandy that staff has the right to go ahead and render decisions on -- on the code, and I think that's wonderful. I personally don't have the time, and I'm sure the rest of our board doesn't either. I am concerned about the fact that once the order was imposed, then staff decided to revisit this issue. I really would like to see staff work better together be -- you know, talk to one another so that some of these issues could have been resolved before this item came before the board and we placed -- we placed the order, and now we're having to change it. I mean, there -- this could have been handled in a lot of different ways. I -- I -- I don't have a problem with staff looking at the -- at the Land Development Code and making decisions on it. I think it's just that the way it was done, the timing that I'm concerned with. MR. SAUNDERS: Madam Chairman, if I might comment on that with -- with your permission, the -- I understand the -- the frustration of the board because the board did spend quite a bit of time MS. LOUVIERE: Exactly. MR. SAUNDERS: -- dealing with this issue. However, I think the -- the fault really lies with me and not with staff because had I gone to staff the very first day that I received this petition, perhaps I could have short circuited some of that. But I was faced with the file and a code enforcement action. And I simply approached it in terms of how do we get this resolved in terms of compliance. And once I began to get into this and realize that -- that there may be some flexibility in the code as it relates to these violations, I then went to staff. But it was my fault in not going to staff prior to the first -- first action. So I just want to say I understand your frustration. But it really should be directed on me I think at this point. MS. LOUVIERE: Well, I -- I appreciate that. MR. SAUNDERS: And I apologize for that. MS. LOUVIERE: Staff's going to love that. I guess we can then go ahead and proceed. There's -- I -- I understand -- I'd like to go ahead and go through the actual violations which I think it's -- it's in the findings of fact and conclusions of law. Can we just go ahead and go straight to that, A, B, C, and D? And I understand D which is the opaque fence we're still going to go ahead. You applied for a variance on that issue. MR. SAUNDERS: That is correct. MS. LOUVIERE: Okay. Great. So how do we obtain -- how does staff get to the point that the other -- these -- these things that before they were saying were not -- were violations are now considered not violations? Could I hear from staff on that? MR. MANALICH: Perhaps on this item, Mr. Arnold, would you care to briefly chip in on what interpretation you gave and how Page 5 November 30, 1995 that interplays with the order? MS. LOUVIERE: I think we need to have this on the record. MR. ARNOLD: Sure. For the record, WaYne Arnold, your planning services director. MS. LOUVIERE: How are you? MR. ARNOLD: The specific -- one of the specific things we were asked to look at was whether or not boat parking would be permitted within the retention area. MS. LOUVIERE: Correct. MR. ARNOLD: The site development plan obviously indicated that we had a retention area with no boat parking there. The question of interpretation would be whether or not our Land Development Code would permit it as opposed to whether or not the site development plan permitted it. Had the applicant come back in and administratively requested an amendment to that Land Development Code, we could have processed that and permitted some limited parking within the retention area subject to meeting other parking requirements for customers on the site. So it was really an interpretation not of -- it ended up being a compliance issue with the site development plan as approved as opposed to consistency with the Land Development Code provisions. MS. LOUVIERE: So basically you're telling me now that -- that there is really no problem with them parking boats on the water retention area. MR. ARNOLD: That is correct. It is permissible in our code to do so. MS. LOUVIERE: Okay. It is permissible -- MR. ARNOLD: The site plan -- MS. LOUVIERE: -- in our Land Development Code. MR. ARNOLD: would need to be amended to reflect that modification. MR. LAFORET: I have a question. MR. ARNOLD: Yes, sir. MR. LAFORET: You referred to the reserved parking for the customers and there's been no change. But as I understand at the last meeting, they were going to remove the stops and just use that for a turnaround or mobile area. So you would in effect lose two parking spaces for the public. MR. ARNOLD: I guess I'm not prepared to comment specifically on the two parking spaces. But I would -- I would tell you that the -- the -- the proposal has been to utilize the retention as sort of a parking and pick-up area for some of the boats that people are going to be picking up because there's not MS. LOUVIERE: I think what -- MR. ARNOLD: -- a staging area there for them. MR. LAFORET: I -- I have no reservation on that point. I have no reservation on a temporary removal of the parking stops so that you can maneuver a boat in there. MR. ARNOLD: Uh-huh. MR. LAFORET: But I do have a reservation of abandoning the two required parking spaces. MS. LOUVIERE: There was never -- I don't think that was Page 6 November 30, 1995 discussion ever. I think what we -- what we're trying to obtain here is to make sure that we are still going to have enough parking spaces for everyone. MR. MULHERE: Well, as I understand it, the violation was that they had not -- either had not installed the bumper stops or in any case -- MS. DEIFIK: record? MR. MULHERE: My name's Bob Mulhere from current planning. Thank you. MR. SAUNDERS: The bumpers were crooked. MR. MULHERE: They were crooked, okay. But bumper stops are not required except under certain circumstances, for example, where they -- where the parking is adjacent to a landscape buffer. They are not required adjacent to their storage area. So although they were shown on their site development plan, an inspector going out in the field is going to look and say, you don't have them; you're not consistent with your plan or they're crooked or whatever. The point is they're not required. The SDP has been amended to remove a number of those bumper stops to allow access into that, but they will still maintain those parking spaces. MS. LOUVIERE: Bob? MR. ARNOLD: They simply will not have bumper stops there. MS. LOUVIERE: Bob? MR. MULHERE: Striped parking. MS. LOUVIERE: I couldn't help but overhear that you said the SDP had been amended. When was the SDP amended? MR. MULHERE: Didn't you do an insubstantial change to show the -- the change in the bumper stops? MR. SAUNDERS: We have -- we wrote to the department requesting the interpretation of the site development plan in terms of the -- these issues, and the response was that they were not required. So I had presumed that that would constitute the amendment to the site development plan. MR. MULHERE: We put the letter in the file. MR. SAUNDERS: If we -- if we -- MR. MULHERE: I thought there was an insubstantial change done. If I'm -- if that hasn't been done, I -- I stand corrected. MR. SAUNDERS: If we that there's an amendment what we've done, we'll do administratively done. MR. MULHERE: The normal procedure would be an insubstantial change because you're right. The inspector in the field has no way of knowing -- if they're shown on the plan, he wants them there. And so an insubstantial change would allow for the removal of those. I thought we had done one. I -- I apologize if we haven't, you know, if I misspoke. MS. LOUVIERE: Thank you. MR. MULHERE: It's a standard procedure. MR. LAFORET: Then do I understand your interpretation, Could you identify yourself for the need to file something to verify to the site development plan in addition to that. It was my understanding that that was Page 7 November 30, 1995 sir, to be that you may cross the spaces in relocating a boat or putting something in the pick-up area which is the retention area but they will remain parking spaces? MR. MULHERE: (Mr. Mulhere nodded head.) MR. LAFORET: Now, what if somebody's cars are parked in there? How do you do that? MR. MULHERE: Then they're in trouble. Then they won't be able to get in there I guess. MR. SAUNDERS: Well, the -- MR. MULHERE: What they -- MR. SAUNDERS: The reality is that none of the parking bumpers are really required at all. MR. LAFORET: All right. MR. SAUNDERS: Now, we don't -- MR. LAFORET: Take the bumpers out. MR. SAUNDERS: Well-- MR. LAFORET: The parking spaces are required. MR. SAUNDERS: The parking spaces are required, and they're going to remain there. MR. LAFORET: Now, if you remove those parking spaces and move their boat into a retention area -- MR. SAUNDERS: If someone is parked in -- in the spaces that are open for access, then Jay's going to have to simply ask them to move their car so the boats can be moved through. We can either do that, or we can remove all of the bumpers. But we thought that -- that that would not be necessary for operations out there. But we can go ahead and remove all the bumpers. You still have the same problem that you're addressing. MR. LAFORET: Well, I understand what you're saying. What I'm trying to avoid is people moving their car out and blocking the street on a temporary basis. And that word temporary is -- is real bad. MS. LOUVIERE: So I think Mr. Laforet's concern is parking here, and I think we need to maybe hear from staff that there's going to be adequate parking on the site to satisfy this use so that we can remove Mr. Laforet's concern. MR. ARNOLD: I think maybe the appropriate method of handling that would be for us -- as a site development plan amendment would be required to reflect the removal of the bumper stops, for instance, in this case, that that would an opportune time to go back and reevaluate the parking to make sure that they are in compliance with the code requirements. I would also let you know that there is a provision now that's in the Land Development Code that became effective about three weeks ago that allows an applicant to justify a reduced or different parking standard than we currently have in our code based on a need analysis that they would perform for us. So they might be able to justify that they have not used or did not need those based on the type of business they operate. And we might have an administrative ability to -- to deal with that. MS. LOUVIERE: I feel very -- I feel very comfortable with that. I feel -- I -- I agree. I think this is an unusual use. And I think that that is something that needs to be visited by staff. I think this is not your typical use. So you could -- you -- maybe Page 8 November 30, 1995 they could go around and -- and speak with you and -- and one of the terms that you used that is a special use, and you could ask for reduced parking requirements. MR. ARNOLD: That is correct. That is one of the options. They may -- they may have adequate parking based on the ability to restripe some of their existing parking. MS. LOUVIERE: I -- I do want to state that there has been some parking in the right-of-way, and I am concerned about that, and I would like to see that handled. MR. ARNOLD: In the right-of-way? MS. LOUVIERE: I read somewhere in here that that might be something that's going on. No? Okay. Well, my mistake. MR. SAUNDERS: Let me -- let me make a couple points. One is what we will do is in light of the fact that no bumpers are required, we will remove the bumpers, all of the bumpers. And in terms of the number of parking spaces, the number of spaces that are there are way in excess of what's ever being used anyway. They never use all the spaces. So we will apply to have the spaces -- the number of spaces reduced. But the issue of whether someone drives, you know, in a circle in that parking lot I think really gets a little bit beyond what you need to worry about. We'll take care of the parking spaces and the parking bumpers. The issue of parking in the right-of-way -- in the right-of-way, we're not here on that. If there's a problem with that, then we need to address that with staff and find out what the problem is. But that's a new one that I've not been aware of. MS. LOUVIERE: Just -- just enough parking would be perfect. MR. SAUNDERS: Yeah, okay. MS. LOUVIERE: Enough parking so the site functions. MR. SAUNDERS: Yes. MS. LOUVIERE: So that would resolve "A"; correct? MR. ARNOLD: Correct. MR. SAUNDERS: Okay. So in terms of -- so I fully understand, in terms of "A", we're not in violation, and we're going to do the site plan insubstantial amendment to take care of that, and we'll not have to come back before the Code Enforcement Board. MR. ARNOLD: You would not be in violation technically of the Land Development Code, but you are in violation of your approved site development plan. MR. SAUNDERS: But we do not have to appear before the Code Enforcement Board again on that issue. MR. ARNOLD: That typically is an administrative action. MR. SAUNDERS: Okay. MR. YOVANOVICH: Can -- can I interject just for a moment for -- I think after hearing what I've heard, the board's order is still accurate in that they are in violation of the charges they were charged for violating which was being in violation of the site development plan. I think I also heard that they corrected all of the violations at this point. I think what they're concerned about is not being found in violation again if the bumpers get crooked or people park in the water management area. Am I correct at this point? Page 9 November 30, 1995 So I think what -- I think what they're trying to do is they're trying to make sure they don't -- they don't fall afoul of the -- of the board's order. And what they're doing now is correcting -- doing the administrative actions they need to -- to do to make sure they will not be found in violation again. So I'm not sure we need to pursue this much further from the board's standpoint. If they get the administrative changes to the SDP, obviously they will not be charged again with violating an SDP for having crooked bumpers or for having parking in the water management area if the SDP no longer requires that they not park in the water management area and they no longer have bumpers. So I think the board's order is accurate, and they are in compliance. MS. DEIFIK: Don't we still have to amend this order, though, so that they don't get fined? MR. YOVANOVICH: From what I understand from staff is and Mr. Arnold just said that -- that they are in violation of their SDP until they amend the SDP so -- MS. DEIFIK: But didn't you just say or did somebody just say that -- that the act of putting that letter in the file may have acted as a -- MR. SAUNDERS: I -- I thought -- MS. DEIFIK: -- de facto amendment? MR. SAUNDERS: I thought that it did and that we had complied with that, but apparently I need to file another form. MR. MANALICH: Our concern simply was -- I mean, I -- I agree with what's been said. I think staff's position, though, is that because of the interpretation as far as what the code requires, there should be no fines levied of any type since it's not required by code. Whether the SDP -- whether the -- the arrangement there was consistent with the SDP or not was another issue. But there should be no fines or any lack of compliance asserted because they're consistent with the code even though not with the SDP technically. MS. DEIFIK: Rich, do we -- shouldn't we still amend this order, and can we do it nunc pro tunc? MR. MANALICH: My concern, Mr. Yovanovich, was that under the order of the board, sub 1 says the respondents will correct violations A, B, and C. And that's what we want clarified in the sense that whatever's going to be done on that, that correction is not mandated by the code at least as to the bumper stops. MR. YOVANOVICH: Well, my question is, was the requirement in the SDP improperly included in the SDP, and is that the conflict? The code says you don't have to have it. It shouldn't have been in the'SDP in the first place. Is is that what I'm hearing? If -- if not then -- MR. MULHERE: No. I mean, it's there's -- there's -- there's also -- it's just it's not required. It's also there's no legislation or requirement that says, you know, that you -- it's the choice of -- of the person developing the property in the case of -- of where it's not required by the code. Just -- I just wanted to let you know, yes, I was under the impression -- of course, I have a staff member, Bryan Milk, who is handling the review of this SDP. I was under the impression that an insubstantial change had been submitted. It's -- it's a normal procedure. We do hundreds of them a year. There is a fee, and they Page 10 November 30, 1995 submit four revised copies of the site plan, one to the inspector, put one in their file and track it that way. And and that's -- and that's the step that still needs to be taken. MR. YOVANOVICH: I think a simple change to the order would be that either correct these or get the appropriate administrative changes to the SDP to -- to -- to remedy the situation and give them a time frame to do it like we did with the -- MS. DEIFIK: So without beating a dead horse -- MR. YOVANOVICH: Right. MS. DEIFIK: here, you're saying it's premature for us to amend this. MR. YOVANOVICH: No, I'm saying you can amend it based on what you've heard. But I -- from what I was hearing, it didn't sound to me as if your -- your order was incorrect. MS. LOUVIERE: I'd like to take this a little further. I mean, they're going to come back to us -- there -- it's it's pretty much -- he's going to go to staff and get these A, B, and C administratively handled. MR. SAUNDERS: Correct. MS. LOUVIERE: Okay? And he has to file for a variance. We -- we -- we've heard this before; okay? Basically they're here because they'd like to get the board -- the order of the board amended to remove A, B, and C because he's going to go and get that administratively handled. And we can continue and leave 2 on which is that he will correct go ahead and get a variance for his opaqueness of the fence which he has already started, and then we're done with it. MR. YOVANOVICH: Okay. MR. SAUNDERS: That's -- that's correct. MS. LOUVIERE: Does anybody else have any questions? MR. LAFORET: What ever happened to the opaque fence? MR. MANALICH: That's in the process of the variance being applied for. MR. LAFORET: All right. MS. LOUVIERE: And if I am correct and if staff staff the opaqueness fence has got to be met, or he has to obtain a variance per the Land Development Code; correct? MR. ARNOLD: That is correct. For storage-type facilities an opaque fence is required around that storage facility. They have requested the variance, and that will be heard by the planning commission in December, and I'm not positive of the board of county commissioner date. MS. LOUVIERE: So he either has to meet it per the Land Development Code or he has to obtain a variance. Perfect. Okay. MR. SAUNDERS: That's done. That's correct. MR. MANALICH: Now, just one other clarification, my understanding -- and Mr. Kirby's here who's our on-site inspector. But basically in speaking with him, he's indicated that C and D of the order, the pipe -- well, the fence we talked about. But the pipe, I believe our engineer has indicated that that is complied with. MR. KIRBY: Yes. MR. MANALICH: Okay. MS. DEIFIK: That that is what? MR. MANALICH: Has been complied with. Page 11 November 30, 1995 MS. LOUVIERE: They did place a miter end pipe in order to facilitate water management. MR. KIRBY: Yes. MR. MANALICH: And you've heard the discussion about "A". With regard to B, is there any further question on that? My understanding is that -- Wayne, did you address B as far as your interpretation, the water management area and the boats? MR. ARNOLD: I think I covered that, but I'd be happy to restate. MR. MANALICH: Is there any further need? My understanding is, again, that it -- given the interpretation, there is not a violation occurring there. MS. LOUVIERE: I I don't have any further questions on B. MR. SAUNDERS: Then the -- the order of the board then will be that as far as A, Band -- A and B are concerned that as long as Jay applies for the appropriate administrative change and that's granted, we're in compliance. MS. LOUVIERE: As long as J's Marine -- MS. DEIFIK: With -- let's set a time frame. Within 30 days? MR. SAUNDERS: Okay. And then if we -- if we make that application within the 30 days and we get that granted, we don't have to come back to the Code Enforcement Board. That will be done. MS. LOUVIERE: An administrative -- I think the correct term is an administrative insubstantial change to your site -- MR. SAUNDERS: Yes. MS. LOUVIERE: -- development plan. MS. DEIFIK: Or just have staff let us know that it happened. MR. MANALICH: I can only think of two other clarifications. I was talking to Linda Sullivan, our code enforcement director, just a moment here. And basically based on this discussion, I believe -- and, Mr. Saunders, correct if I'm wrong -- but I believe everyone is clear that this discussion today does not in any way alter what the code requires as far as your required parking at the site. MR. SAUNDERS: That's correct. MR. MANALICH: Okay. And the other thing is in regard to the opaque fence, that will be going through its process, and we'll see how that unfolds. MR. SAUNDERS: If we don't get the variance, then we have I think 15 days to put in the opaque fence. MS. LOUVIERE: Correct. Respondent shall install an opaque fence within 15 days of respondent's failure to apply for relief, denial of relief, or failure to diligently pursue relief from SDP requirement. MS. DEIFIK: When is the variance going to be heard? MR. SAUNDERS: Planning commission on December 8, and then it's scheduled before the county commission in the middle of January. MS. MR. MS. MR. LOUVIERE: SAUNDERS: LOUVIERE: SAUNDERS: So you're within your 120-day period. Yeah. You're doing great on that. Yes. Page 12 November 30, 1995 MS. LOUVIERE: Excellent. MR. MANALICH: Mr. Yovanovich, now do you intend to issue any type of amended order at this point or simply wait? I guess we'll need direction from the board on that, but I'm just inquiring at this point. MR. YOVANOVICH: I would think at this point as long as they have gotten the administrative change to the SDP they will have complied with the board's original order. And I don't really think a clarification is necessary at this point of the order. I mean, I think the order still stands. MR. MANALICH: Mr. Saunders, are you consistent with that? MR. SAUNDERS: I -- I don't -- I don't have any problem with that. What I thought you were going to do is a modified order based on today's discussion that simply said that as long as we applied for the adminis -- insubstantial administrative change within 30 days then -- and we obtained that -- MS. LOUVIERE: Rich, can't we do that? MR. YOVANOVICH: Sure. MR. SAUNDERS: -- then we -- MS. DEIFIK: Suspend -- suspend "A" through "C" for 30 days to permit them to make that application and -- MR. YOVANOVICH: It would be "A" and "B.". Yes, you can do that. C has been complied -- MS. DEIFIK: Okay. "A" and "B". MR. YOVANOVICH: -- with and D is MS. DEIFIK: Okay. MR. YOVANOVICH: Right, "A" and "B". MS. DEIFIK: And can you do that for us? MR. YOVANOVICH: Sure. Just -- I would I would prefer it done by motion of the board. MS. LOUVIERE: Okay. If we just make a motion and second it, do we actually have to -- we do not have to actually read the order again, go through the findings of fact. MR. YOVANOVICH: No, just a -- just a motion that you want to revise your order to -- to suspend enforcement. MS. LOUVIERE: Do you want to make it? MS. DEIFIK: I move that with regard to the stipulated findings of fact, conclusions of law, and order of the board which was recorded in OR book 2121, page 879 that item 4-A and B be suspended for 30 days to permit the applicant to make the appropriate application for an insubstantial change to the SDP. And if that's done within 30 days and staff reports back to us, then that would be eliminated from the order. MR. YOVANOVICH: I believe the correct motion should be to revise paragraph 2 of the order section. That's the section where you said they must comply within 30 days. It's still a -- the finding of fact is still there. It's just a matter of when they must comply so just -- MS. DEIFIK: Paragraph 2 -- MS. LOUVIERE: No, not paragraph 2. MS. DEIFIK: -- addresses violation D. So let me add to my motion paragraph 1. MR. YOVANOVICH: I'm sorry. Page 13 November 30, 1995 MS. LOUVIERE: One. MR. YOVANOVICH: You're right. Thank you. MS. DEIFIK: Paragraph 1 as far as implementation of violations A and B, that is suspended for 30 days to permit them to obtain that amendment to the SDP. If staff reports back that it was not attained for whatever reason, then we would address it. MR. YOVANOVICH: Right. MS. DEIFIK: Do I have a second? MS. LOUVIERE: And paragraph 2 will remain as is. MS. DEIFIK: Paragraph 2 remains as is. MS. LOUVIERE: As is. MR. YOVANOVICH: My mistake. Sorry. It was paragraph 1. MS. LOUVIERE: Okay. that. I second it. We have a motion MR. LAFORET: In with just a majority, will vote in favor. MS. LOUVIERE: Okay. So we have one. The rest of them signify by saying aye. It passes four to zero. MR. MANALICH: For the record, just to clarify, we did notify, if you will recall, Mr. Gebhardt who represented an adjoining property owner and was very interested in this matter -- MS. LOUVIERE: Correct. MR. MANALICH: -- of the hearing this morning. I don't know why he's here (sic), but I was told by my staff that he was notified. So he did have notice of this matter. MS. LOUVIERE: So we basically had no opposition from the public or other party -- interested parties against this. MR. MANALICH: Well, I wouldn't say that. I suspect there is, frankly, strong opposition, but the opposition was not here although notified. MS. DEIFIK: Excuse me. Ramiro, forgive me. But when Mr. Gebhardt was here, it was my recollection -- and perhaps someone else can fill me in -- that his client's primary objection was that the opaque fence was not in place and that that was causing a lot of problems to adjoining property owners. I don't recall him having concerns about the boats turning in the water management area and the parking. MR. MANALICH: In all candor, my impression -- and he would need to speak for himself, but my impression in a number of discussions that I've had with him is that he would most likely be in opposition to a number of these items today. But, I mean, the board was aware of that as of the last meeting. I just wanted to make clear that Mr. Gebhardt, even though he's not a direct party in this, was interested. He was allowed to be heard last time. Because of that he was notified. For whatever reason he's not here today. MS. LOUVIERE: Thank you very much. MR. SAUNDERS: Madam-- MS. LOUVIERE: We appreciate that. MR. SAUNDERS: Madam Chairman? I wanted to go ahead and reiterate and a second. Do we have a vote? view of the situation of the board here I have reservations, deep reservations, but I Page 14 November 30, 1995 MS. LOUVIERE: Sir. MR. SAUNDERS: Jay is here. He wanted to make a comment. I'm not representing Jay. I'm representing the property owner, Del Ackerman. But Jay indicated he would like to make a comment, and we're -- we're finished. MS. LOUVIERE: Okay. MR. SAUNDERS: Thank you. MS. LOUVIERE: Could you please give us your name for the record? MR. MCMILLAN: Jay McMillan. And I just want to take a quick comment, ma'am. I want to make sure to assure you that there will be no parking happening out in the -- MS. LOUVIERE: Right-of-way. MR. MCMILLAN: -- right-of-way area. I can assure you of that. I also want to make a comment that there is more than enough parking for -- I only have one or two customers ever at my shop at one time. My spaces are 17. There's a slight bit of overkill, sir. MS. LOUVIERE: MR. MCMILLAN: and I wish I had 17 time. And I just want to this and addressing the here. He's here purely I'm glad the county has Collier County. MS. LOUVIERE: MR. MCMILLAN: MR. LAFORET: MS. LOUVIERE: MR. LAFORET: Forget it. But for the record, I would like to state that I was basing my thought on not whether the parking was adequate or not but did it comply with the code requirements or not. MS. DEIFIK: Well, and I think that's what Mr. Arnold and Mr. O'Hare (sic) were addressing, and that's why MR. LAFORET: All right. MS. DEIFIK: -- you know, told one thing before and were MR. LAFORET: All right. not confirm that. Okay. MR. MANALICH: Madam Chairman, for the record, at this point having concluded the J's matter -- MS. LOUVIERE: Yes, sir. MR. MANALICH: -- I will return to my typical role as your advisor on -- on the next couple of cases which I have been your advisor on. And also the two code members that were -- board members that were -- removed themselves because of conflict reason in the J's case may now return and participate on the remainder of the matters. MS. LOUVIERE: Thank you. If the two board members could please return and take over this -- this chairperson position. Okay. So we have plenty of parking for anybody, customers -- I'd be a happy man -- all at one thank you guys for seeing through all -- the situation with Mr. Gebhardt and being because of -- they want me out of there. And seen fit to see -- to allow me to operate in Thank you. Thank you very much. I would like to Thank you for your comment. I'd like to address him. All right. why we were concerned we were told something else now. But his -- his statement did Page 15 November 30, 1995 MR. ANDREWS: Yeah, come on. Hurry up, Mr. Chairman. MR. MANALICH: With regard to the next item which is the Deauville cases, I would point out that present today is Attorney Leonard Reina representing Deauville, and I have been in communication with him as of yesterday. And he had sent to me a request for continuance of this matter. I believe that staff's position on this is that they are not opposed, but I would like Mr. Reina if he would have the opportunity to address you in regard to this. Ms. Cruz, am I correct that staff is not opposed to this request? MS. CRUZ: That's correct. MR. REINA: Good morning. For the record, my name's Leonard Reina. We received notice of this hearing I think over the Thanksgiving holiday. So by the time we opened our mail on Monday, it didn't give us time to actually get ahold of Ramiro who was on vacation until -- he came back yesterday to try to see if there was some way we could come up with a resolution that would work for everybody. This hearing is for an order imposing fines in according with your findings of fact. I will tell you that there are -- there's an affidavit of compliance that indicates that back in June 5 of 1995 this project was in compliance. So it isn't something that's been on the front burner anyway. I think what we were doing is we were trying to marshal our assets and solve two problems that we had with the county one at a time which was -- last time I was here was Embassy Woods. And I'm pleased to tell you that my clients have so far done what they said they were going to do in -- in resolving the -- the problem that we had at Embassy Woods. I understand, Ramiro, that in talking with my clients that the landscaping is in. That's what they told me three or four times on the telephone yesterday after I talked to you. I was not able to get ahold of the other fella at the code compliance that you referred me to. But I told them that I was going to come here and represent to the board that the landscaping was in and for them to make sure that that was the case. And they said not only was that the case, but apparently they even added a little bit more than what the plan actually called for them to do. So -- and -- and from talking to you, I understand that the payments are current. MR. MANALICH: What I -- the situation as I know it, Mr. Chairman, is that we have received two partial payments on the amounts ordered on the fines. You'll recall they had approximately a year to submit the entire amount. This is now on the Embassy Woods, Elba case that was settled and two partial payments in substantial amounts approximating -- well, let's see -- well over $1,000. I don't have the exact figure in front of me. But we received two partial payments. They apparently have a schedule here where they intend to pay -- make -- continue making payments on a schedule with interest. I've made very clear to the representatives of Embassy Wood and Mr. Reina and without disagreement that we are considering these Page 16 November 30, 1995 to be partial payments, not obviously any kind of accord and satisfaction for a lesser amount. With regard to the landscaping, I don't -- Mr. Kirby unfortunately is not here. He left from the last hearing. I think he's been monitoring that. Ms. Sullivan, do you have any information on that? I do not as far as the current status of the landscaping. MS. SULLIVAN: He hasn't indicated any problems, and he has been monitoring, so I assume it's okay. MR. MANALICH: The reason I ask is that I have no reason to refute what Mr. Reina says. But I do know that as recently as a month ago or so there was still correspondence going back as to -- back and forth as to the status of the landscaping. But I have not been current any time after that. So that's where we stand as far as my knowledge of the matter. MR. REINA: Well, it's my understanding it has been taken care of. So I certainly wouldn't come here and make that representation if -- if I hadn't been told that. But I don't don't really think that's an issue. I tell you that by way of background. And the reason I'm telling you that is because I'd like to ask for a continuance to have an opportunity to talk to the county and see if we can work out some kind of a plan on this. Quite honestly, the fines on this are are about a quarter of a million dollars. Those aren't going to be uncollectible. We'll have to come up with some kind of creative approach if we're going to be able to solve the problem. And you can imagine it's not something you can do over the telephone in two or three days. So I'm thinking that realistically if we could get through the holidays, probably the first part of February if we can come back here, we might -- we should know whether we can do anything or not. And if not, then you can go ahead and impose the full fine and attempt to levy it or do whatever you think's in the county's best interest. But I would think that by that time we should know whether we're going to be able to come up with anything, have an opportunity to get with folks from the county over the holidays, as you know how difficult that is. Half the -- half the month of December and January is -- MS. LOUVIERE: I have a few questions. I don't mean to cut you off. Okay. On the -- on the other property that they own, the one that we -- I'm sorry. What was that? Embassy Woods. MR. MANALICH: Embassy Woods. MS. LOUVIERE: Okay. So you said they've paid half and half. MR. MANALICH: MS. LOUVIERE: they given us? MR. MANALICH: If you'll give me just a moment, I have a check in my possession dated November 7 which I have to transmit for deposit -- MS. LOUVIERE: Right. MR. MANALICH: -- which is in the amount of $754. We received previous to that on October 16 a check in the amount of I They have made partial payments. Partial payments. How much money have Page 17 November 30, 1995 $666. MS. LOUVIERE: Uh-huh. MR. MANALICH: And those are the two partial payments. Now, with the last check, I have enclosed a document titled mortgage and loan analysis. And as far as I can tell, that appears to be some type of schedule of payments, but I'm not clear on that. But in any event, they have a year for the full amount of the payments. They're apparently choosing to pay them with interest on an ongoing partial payment basis. MR. REINA: In other words, they're not in default of that -- that agreement. MR. MANALICH: No, certainly not. MS. DEIFIK: What was the amount, the full amount, that they were supposed to pay? MR. MANALICH: The full amount I believe is -- MR. REINA: $10,000 I think. MS. CRUZ: I believe it was 10,000. MS. LOUVIERE: Ten thousand. And therefore because he's making payments, he's having to pay interest as he goes along. MR. MANALICH: Yes. The agreement specified that there would be interest due on the amount. MS. LOUVIERE: Okay. And then there's -- now there's Deauville Lake which is owned by the same people. And we never MR. REINA: Well, it's kind of complicated. It's not really legally I think their responsibility, but they want to take care of it. Who owns the company is not even clear in my mind, but I've been asked by -- MS. LOUVIERE: So we were here to go ahead and start charging you, right, because of affidavit of non-compliance to go ahead and start fining you; correct? MR. MANALICH: Well, the fines by operation of the order were in effect automatically. MS. LOUVIERE: Correct. MR. MANALICH: Okay. What we're talking about here is staff coming to you for an order imposing the fines. And, of course, you're free to do that at any point. By your order imposing fine, that creates the lien on the property. MR. REINA: In other words, these fines are already over and done with because they've been in compliance for six months. MS. LOUVIERE: But for -- MR. REINA: It's a housekeeping procedure to come to you and say, okay, this -- this matter's concluded. Here's the period of time they were out of compliance. And if you add the fine to the days out of compliance, it comes out to around approximately $240,000. And the last formal task for you to do is to go ahead and impose by an order those fines. And all I'm saying is before you do that, give us another couple months to see if we can sit down and come up with a with a -- an agreement and then maybe you can ratify -- if we can, you can ratify that agreement, and we don't have an order that we then have to negotiate against. MS. LOUVIERE: You know, Mr. Reina, my main concern is this has been ongoing for so long. Why haven't you tried to work with staff on this before this? MR. REINA: Well, maybe I didn't make myself clear. But Page 18 November 30, 1995 we worked on solving the Embassy Woods problem first because there's only so much resources that can be applied at anyone time. And so we carved this one out and took care of one problem at a time. Quite honestly, I don't think my clients have any obligation to do any of this. But we'd like to have an opportunity to talk about doing it. If you want to impose the fine, then there's nothing I can do about it. But if you want to give me an opportunity to try to help you solve this problem, I would like to do that. And it -- you know, it is -- I think I was instrumental in helping the county come to a resolution with these folks that is better than having some uncollectible lien out there. I'd like to try to do the same thing here. But if you're determined to go ahead and levy the fine, then I guess you can. But I'm trying to be an aide to everybody. CHAIRPERSON ALLEN: I'd like a little -- to shed a little light on this. Maybe I have to recuse myself, and maybe shedding the light will help staff here and the board members. Our firm was hired by Deauville Lakes homeowner association to finish the clubhouse which is the problem we're talking about right here. The homeowners spent roughly $80,000 in attorney fees trying to force the Barons and their related companies and their related people to finish the clubhouse for them. After spending roughly $80,000, they realized they were not going anywhere. And they all chipped in, and they assessed each other to the tune of like $1,800 per unit. And they paid our firm roughly $400,000 to complete the clubhouse. So me being privy to that information, I think we need to know that, that as Mr. Reina's saying his clients are technically uncollectible, I can attest to the fact that I know of firsthand that the homeowners' association spent $80,000 trying to get Eli Baron, Mimon Baron, Deauville Lakes Club, whatever, to come into compliance. After 80,000 they -- they said we're tired of throwing good money after bad. We're just gonna -- we're just gonna chip in and bring it into compliance ourselves. So that's how the project came into compliance. MS. DEIFIK: Well, this brings us back to the questions that were raised before which is if we do impose a lien, is there anything to impose it against because Deauville doesn't own this property anymore. It's been turned over to the homeowners' association; is that true? MR. MANALICH: Again -- yeah. Again, that would be a major concern. Now, I have not done an updated MS. DEIFIK: And how did we get -- well -- MR. MANALICH: Go ahead. MS. DEIFIK: I think that we addressed last time, I mean, how did we come to that situation. And, you know, we discussed it in the context of Embassy Woods. In the context of Deauville Lakes, I don't know. Maybe, Mr. Manalich, you could explain that. I mean, I wasn't here. I don't -- MR. MANALICH: Right. I'm just trying to figure out exactly -- why aren't there assets to pursue? Is that your question? MS. DEIFIK: Or maybe a better question -- I'm trying to put this as diplomatically as possible because I'm not trying to make trouble. I'm just trying to understand what happened. How did we -- Page 19 November 30, 1995 how did the situation evolve that we delayed imposing fines until there were no longer assets against which to impose them? MR. MANALICH: Well, I'm not sure how many assets there were from the beginning to impose against at the time the case came to the board. That's the first question. The first -- the second thing would be that if you will recall just like in Embassy Woods, my recollection of this entire evolution of this case was that the direction given by the board upon request of the respondent and as far as input from staff and everyone else was that we did not want to run contrary to the homeowner association efforts. We did not want to do anything against the property. MS. DEIFIK: They wanted partial releases so they could get other financing. Was it the similar situation? MR. MANALICH: I believe this was involved here also. But, Mr. Reina, do you recall? MR. REINA: You know, I'm -- there has been so much of this. These guys have had so many problems that they've tried to work through. My recollection was that they did work with trying to get this solved, and there was something to do -- I think this is the one where there were some partial releases, and they applied the money towards the units that they still had towards completing the project if I understand that correctly. Does that sound sort of right? CHAIRPERSON ALLEN: That was correct. And what happened, okay, which gets even stickier which was -- please believe me. I don't have any love for the Barons; okay? But as the county made partial releases, okay, the releases were -- the monies were actually given to Sunrise Pool Company. And for that Sunrise Pool Company was going to buy a vac pack -- for lack of terminology, it's a $30,000 filtering system for the pool -- to try to bring the pool and the clubhouse into compliance. And the fella who owns Sunrise Pools because he had been unpaid, he just -- he took the releases that were given to him by the county for the equipment to go to the pool and put the money in his pocket. MS. DEIFIK: Okay. Now, Jim, is that -- did that happen with Embassy Woods or with Deauville Lakes? CHAIRPERSON ALLEN: That's strictly Deauville Lakes. MS. DEIFIK: Okay. Because the other thing I'm confused about is I understood on Embassy Woods a lien had been placed and then been lifted -- MR. MANALICH: That's correct. MS. DEIFIK: Okay -- by the county to permit the Barons to go ahead and get other financing -- MR. MANALICH: That's correct. MS. DEIFIK: -- that wanted some priority or something. MR. MANALICH: Yes. MS. DEIFIK: But on Deauville Lake was a lien ever actually imposed? MR. MANALICH: No. MS. DEIFIK: And then -- okay. So what -- so what were partial releases given from? Not from the county. CHAIRPERSON ALLEN: Partial release -- MR. MANALICH: Well, we had recorded and we have always recorded and it's remained recorded the original findings of fact, conclusions of law, and order of the board. Remember, that binds any Page 20 November 30, 1995 successors in interest, assignees, transferees. MS. DEIFIK: So on Deauville Lake the county gave partial releases from that, Jim, in -- MR. MANALICH: That's what it would be a release from, yes. MS. DEIFIK: -- order to enable the pool CHAIRPERSON ALLEN: That's what I understand, okay, and what -- what happens -- MR. MANALICH: Because, Miss Cruz, correct wrong, but my recollection is that the order -- an order imposing fine is coming to the board. done before, the -- correct? MS. CRUZ: I'm sorry. There was an order imposing fines filed for 18,000 recorded. MR. MANALICH: Okay. So there was one order. MS. DEIFIK: On Deauville Lake? MS. CRUZ: On Deauville Lake. MR. MANALICH: Okay. I stand corrected. MS. LOUVIERE: So we have a lien for 18,000. MS. CRUZ: That's correct. MR. MANALICH: This is simply for the time from the time of that order over until compliance? MS. LOUVIERE: And what would be the amount of this order if we were to impose it? MS. CRUZ: I'm sorry? MR. MANALICH: What is for this order then MS. CRUZ: $244,500. MR. MANALICH: That does not include the 18,000 or -- MS. CRUZ: No. MR. MANALICH: Okay. So basically there was an order early on recorded for the 18,000, and now we're asking for an order updating from that time through the compliance date. MS. CRUZ: Exactly. MS. LOUVIERE: For how much is it? MS. CRUZ: Two hundred forty-four thousand MS. LOUVIERE: Five hundred? MS. CRUZ: -- five hundred. MR. MANALICH: But my recollection is also that in this case there were also discussions about partial releases and working with the homeowner association and not contrary to the association. Is that your recollection, Mr. Allen? CHAIRPERSON ALLEN: That's pretty close. The -- my understanding going into this because I spent many, many hours with the homeowners' association in trying to get this problem resolved and trying to get an equitable number for them to finish this project up is that before the order imposing fines of the Code Enforcement Board is that the homeowners had gone already previously against the -- the Barons and their company. And there was X amount of units that were left unsold, but the mechanic liens of the unpaid painter, the unpaid pool people, okay, the lien -- the liens of the un -- let's say -- I'm going to call it a dozen units for lack of memory. But the dozen units that were left unsold is where everybody said these are assets that are left within the corporation. me if I'm this is the first time That has never been the amount you're requesting Page 21 November 30, 1995 Well, the mechanics liens took precedence over anybody else's liens. And so by the time that -- that they got -- because the units were finished first. The subcontractors weren't paid. So the subcontractors put liens against the units prior to the clubhouse becoming in default. So the Code Enforcement Board and Collier County became such far back -- I mean, our -- our lien against the assets is so far removed and so far behind. And that's why the homeowners' association was ahead of us. And they spent 80,000, and they couldn't come up with anything. That's what I'm just trying to bring this to light is that our lien is valid, but we're so far down on the list, I mean, there's no equity to grab. MR. MANALICH: Just one point at this point, since you've heard, Mr. Reina, Mr. Allen's candid description of his involvement and his knowledge of the history of this, on behalf of the respondent, do you have any request at this point for him to remove himself based on his prior involvement? MR. REINA: No, I certainly don't. I just think this is a common sense decision of trying to get some time to -- to -- to solve something. And he has a knowledge of the kind of problem that we're dealing with and -- and that there probably is no real legal coercion that can be used to solve this problem. It's going to have to be trying to figure out how we can persuade and why they would want to try to do something to take care of this in a way that can make sense for everybody. And it might not happen. You might say, look, what you guys have offered is just not enough for us to have the newspaper say that, you know, we gave you a sweetheart deal. We'd rather just go ahead and levy the fine and have -- maybe have it not be collectible. That may be a strategy that you wind up having to follow. But I'm saying is -- if you give me an opportunity, I will sit down and talk to these guys. They've asked me to come here and ask you for a continuance. I don't know why they would do that if they're just -- if they're not going to do anything at all. This is a company that has been -- looks like it's been getting itself on its feet very slowly from, you know, some major problems. They seem, you know, that they're trying to concentrate on business and stay in business. So maybe there's something that they can put on the table that would be interesting to the county as -- as a solution. And I'm not here to tell you that I have a perfect understanding of who the players are and what the assets are. I just know that there's been a lot of problems in the past. There was a lot of cooperation, I thought,' in trying to get Deauville Lakes completed between my clients, the homeowners' association, their attorney, and the county. There was some cooperation going on there. And I think that's the reason why this was put on the back burner because it wasn't just a, you know, we don't care about you, do whatever you want. It would have been better, of course, if they could have completed their project and not been here at all. Yes. MS. DEIFIK: MR. REINA: Who are your clients? Mr. Baron and -- and basically his related Page 22 November 30, 1995 entities which are numerous. MS. DEIFIK: Which Mr. Baron? Eli? MR. REINA: Uh-huh. And I think, you know, he would be instrumental in coming up -- coming up with a resolution. I think that Mr. Allen's description is probably right. Deauville Lake Club Development Corporation is going to have nothing to satisfy this. It would have to be that Mr. Baron wants to do it to keep an amicable relationship with the county the best that he can. And, you know, he's in business, and he's trying to, as difficult as it may be, shore up his reputation as best we can. MS. LOUVIERE: Could could we hear from staff on this? MS. SULLIVAN: Staff staff's position is that we were asked yesterday to continue -- to ask for a continuance. And it's my policy that when something's been continued one or two times, the staff no longer is going to ask for a continuance but require the person to show up and ask themselves and leave it up to the board. The only reason that we are not opposed to a continuance until the next meeting of what? January 25 or whatever is because of the complexity of this and, you know, is it collectible or what. But -- but for the board's information, that is our new policy. We're not going to come and ask for people -- continuances for people. They're going to have to show up after they've had one or two. MR. MANALICH: Two points, Mr. Chairman. First, Ms. Deifik, the -- the discussion to answer your questions as to the assets collectibility issue to the best extent we can, that -- was your question answered? MS. DEIFIK: Well, yes and no. And maybe Jim has -- has some knowledge about this. But one question that -- that comes to my mind -- and it may be completely futile -- did anyone explore piercing the corporate veil and going after the principals in any of these corporations? MR. MANALICH: That was discussed at one point early in the process. But, frankly, the research that I did on it indicated that would be a difficult proposition at best. MS. DEIFIK: Mr. Allen, do you know if the homeowners' association pursued that? CHAIRPERSON ALLEN: Yes, ma'am. They -- they -- I spent probably six months with these people trying to come up with an equitable solution wherein the Barons would put up so much money and they would put up so much money. And it came to an impasse, and their attitude was, we don't care what it costs us; we're going to get Eli Baron. And they took every avenue known to man and came up with an empty hat so -- MR. REINA: I wasn't involved with that, so I can't really tell you. But -- but I think some of the things we're struggling with could be solved in the sense that you would have more information to make a good decision, a better decision, if we had the continuance, we sat with staff and they could do some homework and then report to you here's what we've come up with, and here's why we have this solution if we're able to come up with one. It's not collectible. We've done X, Y, and Z to determine it's not collectible so you don't have that question in the back of your mind if you're Page 23 November 30, 1995 giving away something you shouldn't have. And to give you the rationale as to why we're going to do what we're going to do, I'm not prepared to really give you much information other than they've asked me to come down here and ask for a continuance and tell you what I basically already told you. MR. MANALICH: The only other point I would have on this request is that I know Mr. Reina did work very hard on behalf of his client but also in cooperation with us in regard to the Embassy Woods resolution on that. I mean, whether you agree with it or not, I mean, I know he put a lot of effort into it. The Deauville matter was not ignored at that time. I mean, he was aware of it. He did address it. But as it turned out, those negotiations ended up just being a resolution of Embassy Woods, but it was on their mind. They had not ignored it at that time. MR. REINA: Yeah, once -- once we thought we were going to come up with some kind of a global resolution. It turned out that we wanted to solve at least one problem, and so we concentrated on the Embassy Woods, and we got that solved. And one of the things I wanted to know before I came here and talked to you, are they doing what they said they were going to do with the Embassy Woods deal, and apparently they are. So that's a good sign. And I don't feel bad about coming to you and asking -- I would not have come here and asked you to -- to continue this because if these guys weren't complying with what you already agreed to and what they agreed to, we'd be wasting our time. I'm just saying there's a little ray of hope that if you give me a month or two that we can come back here, possibly have at least talked it out and know that we've explored some avenues of trying to resolve this because we have not really concentrated on what it would take to solve the problem. I don't know what -- what the county has in its mind what it would like to see. There would probably have to be some frank discussions about what the corporation has and what it doesn't have. And then we can kind of see where our positions are. And, you know, it's -- it's a business deal. And you have to use some common sense about it. I mean, if there are no assets there and there's no legal way of forcing some kind of a payment, then obviously, you know, your bargaining has to be much more realistic. Now, if this was an ongoing concern and had assets, a $250,000 fine would be something that, you know, you might be able to expect to get a higher percentage of. But I just think it's premature, and I just think we're we're -- we might -- MS. DEIFIK: Well MR. REINA: -- be rushing the issue. And you really have not lost anything by waiting another month or two. I mean, these fines have already -- are already in place. It's not like you're ignoring a -- a problem that's ongoing. This -- this -- this notice of compliance was six months ago they were in compliance, June 5. MS. DEIFIK: Ramiro, can you clarify here? Do we have an option of going ahead and imposing the fine and then later suspending it or modifying it? MR. MANALICH: Well-- Page 24 November 30, 1995 MS. DEIFIK: And do we have a lien now? I mean, are we losing -- are we losing something by continuing it? MR. MANALICH: Right now we have a lien based on the order of imposing fine that was previously recorded. So that is record. Obviously you can always modify an order imposing fine. can reduce a fine, et cetera. I mean, I don't really see that -- honest assessment, I don't really see that you're losing anything deferring this. MS. DEIFIK: Then what was the purpose of this hearing? I mean, why would we be imposing another $244,000 fine if we already have a lien? MR. MANALICH: Well, I think it's that -- MS. DEIFIK: We're just -- we're just stating the amount? MR. MANALICH: that correct? MS. SULLIVAN: We only have a lien for 18,000. MS. LOUVIERE: Eighteen thousand. MR. MANALICH: Right. MS. LOUVIERE: Not for 244. MR. MANALICH: Yeah, having the order reflect that the lien is for a much greater amount. MS. LOUVIERE: My -- my question is if -- if you're saying that we're so far down on the chain food, whatever, because there's all these other people around that are in front of us and you don't have the money to pay us anyway, why are you so concerned if we place a lien on this or not? Apparently we're not going to collect. That's what you're telling us. MS. DEIFIK: But you care enough to be here. Your clients -- MS. LOUVIERE: But you care enough to be here to tell us not to place a lien on this. MR. MANALICH: It's definitely a cloud on title. There's no doubt about that. MR. REINA: I'm not aware that Deauville Lake owns anything anymore. I think it's a corporation that was set up to do this development, and I think it's -- it's sold out. I don't know if there's any -- any units left. That's -- that's not an unreasonable question. I think probably in the long view it probably doesn't make that much difference, although psychologically it might seem to indicate that we have some ongoing relationship and some cooperation. I would think that it would be probably psychologically a good thing to -- to leave here today thinking that we're working with each other towards solving a problem. I don't know why the county would want to say, no, we're going to fine you; and if you can figure it out later on, figure it out because the attitude may then be, well, we'll worry about this another time. MS. DEIFIK: But didn't you tell us last time that the Baron companies were developing other properties here in Collier County and that was part of the reason for their continuing concern? MS. LOUVIERE: Yes, that's what I heard also. MR. REINA: Well, they're in business, yeah. They're-- they're -- I think Embassy Woods, they're still building stuff. of You my by That's correct as I understand it. Is Page 25 November 30, 1995 They're still -- that was part of the -- that was part of the reason we wanted to -- to do the landscaping plan, why it was a win-win, because it was improving not only the people who already lived there, their property. But it was also making the project look good so that they could sellout the rest of it so it could be a completed project with everybody participating. MS. DEIFIK: I'm not adverse to your request. trying to -- to make sure I understand. And -- and one more time, Mr. Manalich, do we lose anything by fine today and then reconsidering it later? MR. MANALICH: I suppose we could lose time in the sense that I suppose other litigants might be able to record other liens in that interim of time that we would fall behind. That's the only thing I can think of offhand. MS. DEIFIK: But you just told me we already have a lien. MR. MANALICH: We do. MS. DEIFIK: But not for that amount. MR. MANALICH: Not for that amount. MS. DEIFIK: Not for that amount. MS. LOUVIERE: I-- MR. LAFORET: Counselor, I'd like to ask you to clear up my understanding of this. You suggested that they were proposing a partial payment plan over perhaps a year. MR. MANALICH: That's on the other case now. MR. LAFORET: Oh, it's on the other case. MR. MANALICH: Yeah. I'm just giving you -- he was giving you and I was giving you an update on what was going on on the case you did settle with them on. MR. LAFORET: All right. All right. Then that answers my question if it's another case. MR. MCCORMICK: I'll put my two cents in and -- MR. REINA: You know what? MS. LOUVIERE: Yes, go ahead. MR. MCCORMICK: -- try to -- try to bring this to a close too. Based on the advice of the county attorney that we are not substantially going to lose any position here, it's unlikely that we'll come back and regret a two-month delay. And also based on what Mr. Reina said to us about the psychological impact of whether we have an open mind and give him time to work on this or whether we make the step today and impose the fine, I think that would definitely be the end of any money that we would see. So I don't know if this is good news for you, Mr. Reina, but I'd like to -- to see you continue working with your clients. You say that's what you want. But I -- I am agreeable to the delay, to continue this, and see what they come back with and at the same time to get some more information from the attorney's office on what you really think the Deauville Lake -- Deauville Lake Club Development Corp. has as assets and some more background on that. MR. MANALICH: I -- I agree with what you say. I just want to clarify that as I sit here now, my only reservation on -- on granting their continuance, I think it -- I'm not opposed to it. My only clarification is simply that the only negative that I see is that conceivably we don't increase our lien and then, of course, we wait I'm just I'm going to ask not imposing that Page 26 November 30, 1995 another couple months and for some reason there are assets that we're not aware of and other litigants come in and take our place, we could conceivably -- MS. DEIFIK: Could you do a search like you did on Embassy Woods? Have you done one? MR. MANALICH: I have not done one as of today's date. MS. DEIFIK: Have you ever done one, and as of what date would it have been? MR. MANALICH: I'm trying to recall, and I don't believe so. MS. LOUVIERE: I -- I really don't see a problem with imposing these -- these fines. I -- I understand the psychological impact. I think that Mr. Reina seems like an honorable person and he would like to resolve this matter -- MS. DEIFIK: I know he's an honorable person. MS. LOUVIERE: -- with Collier County. So I think it just is a way of protecting ourselves, and I think we could always come back to the board and maybe modify it when he starts working with us. I look upon this not in a bad psychological way, just sort of as a way of getting you motivated. MR. REINA: Can I just make -- sorry. MS. LOUVIERE: And -- and it's just -- it's been ongoing for so long. And in addition, I agree that I am all for staff for doing further research to see just how much more they own because I was working on some long-range demographic projections, and I did run up against some other properties that are owned by the same individuals that were never brought up to us. MR. REINA: But, see, this is Deauville Lake Club Development Corp. MS. LOUVIERE: I understand that. MR. REINA: It's not Eli Baron, friends, cousins, uncles, dads, moms. That's the reason why they can't collect because this particular corporation is kaput from what I understand. It's out of business so -- MS. LOUVIERE: So putting a lien on it is really not going to make any difference. It's kaput. MR. REINA: Well, you know, that may -- that may be true. MS. LOUVIERE: You have no money. MR. REINA: I can't really answer MS. LOUVIERE: There's nothing for us to get. MR. REINA: -- as to why -- again, the only reason I -- the only thing I'm thinking here as trying to be part of the solution is that if you give us a continuance, I now have a deadline to talk to these guys about it and say the county Code Enforcement Board wants to hear from us at such and such a date. We need to do something between now and then. If you guys impose the fine, I go back and say, well, the -- the order imposing fine's been there. And then guess what? There's no deadline to do anything. So it's one of those things, okay, we'll talk to them one of these days about maybe doing something about that. And that's going to get put in the back burner, and I guarantee you if there's no assets, which these guys say there aren't, there's going to probably be very little interest in addressing this. Page 27 November 30, 1995 Now, that they sent me down here and asked for a continuance, if I go back and say, okay, now, you got what you want, so we at least have the obligation of sitting down with Ramiro at some time and spending a half a day at least talking about this and seeing what we can do and coming to the table with some ideas. But I think if we don't have that deadline, it's going to be one of those deals like I'm going to lose weight one of these days. But when Christmas comes along, you say, okay, I'm making a resolution. January 1 I'm going to start, and now you got a deadline. At least you have something that -- a goal to work towards. I think that it would be beneficial. I think I could help you more and I could be of more service and I can put more into getting some cooperation from my clients if we have a deadline by which you've been gracious enough to allow us to have some discussions. And that -- and that's really the only thing I can say. As far as your answer, I cannot answer your question as to why they think if there's no assets that a lien is going to be a big deal. It does make sense other than psychologically that it probably isn't going to affect them rather than whatever it signals from the county which maybe -- maybe it's good. Maybe it signals that you guys are a get-tough mentality and but I don't think so. I think from knowing these fellas -- MS. LOUVIERE: And and if -- if we -- if we impose this fine, the fact that he is being fined or that this corporation is being fined, wouldn't that be motivation to go ahead and try to resolve this because the fines are going to continue? MR. REINA: Well, I just will point out to you that I found in my file here these releases, these partial releases. MR. MCCORMICK: The fines are continuing regardless. They're -- they ended on June the 5th when they came into compliance; right? That's when the fines -- MR. REINA: Yeah, the fines have been all totaled up. The period of non-compliance has already been determined. You put the amount of the fine that was in your order towards those days. You come up with the figure that they've come up, and that won't change. I guess it's possible that you could -- and I don't even know whether -- whether -- if you actually impose the fine whether interest starts running at that time or something. But we're talking about numbers that aren't going to be collectible anyway. So I really -- it's just my opinion, my strong opinion, from trying to negotiate, I think that if you give us an opportunity to have the county do their homework and give you better advice -- even the county doesn't know whether they have any assets. But that's up to you guys, and I appreciate your patience in listening to me and MS. LOUVIERE: To be honest -- go ahead, Celia. MS. DEIFIK: Lenny MR. REINA: Yes. MS. DEIFIK: -- do you have any case law that tells me because I -- because I -- I can't seem to get -- and maybe I need to do this research myself. I can't seem to get a clear answer on where we stand in the chain of creditors and how strong or large our lien is regardless of what action we take today. Mr. McCormick is Page 28 November 30, 1995 saying -- and it makes sense -- that if the fines were already imposed, that anyone looking at the public records will see fines of $250 a day. It could be a million dollars. We better go check. MR. REINA: Right. MS. DEIFIK: Mr. Ramiro is saying, no, our lien is only for 18,000, and some other creditor might look at it and say, oh, well, they have a lien of $18,000, so there's still equity in the property. We could do this. And then when we come back and say, well, it's 244,000, we're too late. And what I'm looking for is an answer to that legal question to help -- MR. REINA: I'll just tell you my opinion. MS. DEIFIK: Yeah. MR. REINA: My opinion would be that any prudent lawyer who is reviewing title of anything owned by this company and came across a recorded MS. DEIFIK: Do you have the recorded lien because I don't see it? MS. CRUZ: I have it. I have a copy of it. MS. DEIFIK: Can I see it? MR. REINA: I have a findings of fact and conclusions of law which -- which clearly state that there's going to be a $250 per day fine having been recorded, I would think would say, let's get something that clears up whether or not the county ever imposed the lien or claims to have an equitable lien or whatever; so any prudent lawyer. Now, if you got somebody that really likes to play tough and says, well, technically it's recorded, but it isn't a lien until the -- the Code Enforcement Board makes -- turns that into an order and records it, that might legally be the only way to -- to enforce it. But I think any prudent lending institution -- if it wasn't some kind of a sweetheart deal, no arm's length transaction I don't believe anyone's going to look at this and not want an answer from the county saying this is a problem or it isn't a problem. So I think in effect it clouds the title to the point where it de facto is a lien. As far as whether it's a really lien in an enforceable sense -- could you foreclose on what you have recorded now? -- probably not. MR. MANALICH: I think you could foreclose on the $18,000 -- MR. REINA: Right. MR. MANALICH: -- order imposing fine. MR. REINA: Oh, yeah, I think you could do that. MS. DEIFIK: I think there has to be some definiteness. MR. REINA: Yeah, I think you can foreclose on -- on the lien that you do have filed. The findings of fact MR. MANALICH: The findings of fact, no. MR. REINA: -- are probably not foreclosable. But, like I said, they, in fact, are -- MS. DEIFIK: Okay. But I'm looking at the order imposing fine lien, and it says respondent pay to Collier County a fine in the amount of $18,000. This fine is for the dates of July 22 through August 25 at the rate of $500 per day. It is further ordered that a fine of $500 per day Page 29 November 30, 1995 continue to accrue for any repeat violation commencing on -- oh, then the argument would be that there was no proof that there was a repeat violation. MR. MANALICH: I don't think that would legally prevail as far as being able to foreclose. MS. DEIFIK: Okay. So the only way to be safe from the standpoint of a real estate attorney writing an opinion of title would be to have the $244,000 imposed. That's the answer to my question. That's -- that's the -- the -- the narrow question that I'm trying to address. Mr. Reina, is that correct? MR. REINA: I would -- I would say that probably legally that is correct. But as I said, anybody who looks at this who's responsible -- MS. DEIFIK: You're right. I mean, if I were reviewing title, I would say, hey, stop. MR. REINA: Yeah, wouldn't you feel like it would be malpractice if you didn't point it out to your client and you say, well -- MS. DEIFIK: Right. Collier County. MR. REINA: That's true. That's true, and it could be kind of a deal where somebody's closely related and is willing to that risk, and that's how I think that -- that might happen. a real institutional investor, probably not. But it goes back to what do you get and what do you lose by waiting a couple months. All I'm saying is I think it sends a right signal, gives me an opportunity to have a deadline to come back to you and try to say, look, I did my best. Here's what we've got, and if you don't like it, go ahead and impose the fine. But -- but we -- and it gives the county an opportunity to also -- also sit down and evaluate their position and then really say to you, yeah, I think this is collectible or and we definitely know it's not collectible, and anything that's put on the table you should take. I think we're being a little bit premature about it, but that's a decision for you guys to make. CHAIRPERSON ALLEN: I don't like the two-month deal; okay? Probably being closer to this than anybody else, I can probably see it maybe a little more clearly. I think two months is -- is excessive. I think if you're really interested in trying to do something and the -- and the Barons are trying to say, well, I'd like to save face, there's no reason we can't get this back in front of us in 30 days. MS. REINA: When when is the next -- MS. SULLIVAN: I I have a real problem continuing something that's been going on since June anyhow. And, like I say, I'm hoping this won't happen in the future because I'm not going to ask for any continuances past one time. But the next meeting is January 26. We don't have a December meeting. MR. REINA: And I'm sure you don't want to have a special meeting for this. So if you're agreeable, January 26 -- MS. SULLIVAN: I agree. I think that's a little long. I would like to see a title and things done, and I would've already had one done if staff had the money for legal services like that, but we don't. You know, it's -- it's a hard call. I would like if -- if But I'm not the only attorney in some take With Page 30 November 30, 1995 you do continue it to have some kind of deadline for them to get with us and let us know what they are proposing before the last minute. CHAIRPERSON ALLEN: What's staff's opinion? Would staff like to see it continued or -- or -- or impose the fine? MS. SULLIVAN: It seems to be uncollectible anyhow, you know. I understand somewhat the psychological thing. But if if staff had its way, I guess we would go ahead and impose the fine so that no one else could come in before us. MR. MANALICH: My understanding is consistent with Mr. Allen's. That is, Heidi Ashton in our office, one of our assistants, typically does the foreclosure actions. I know that there are -- I believe there's still -- correct me if I'm wrong, Mr. Reina -- but ongoing litigation with this entity. MR. REINA: You know, Ramiro, I wish I knew more about it. MR. MANALICH: In any event, my indication from Miss Ashton was that we were not -- we were in the position Mr. Allen described; that is, we were behind a lot of other interests. But, again, you know, you need to have more specifics that I can bring to you at our next gathering. CHAIRPERSON ALLEN: Well, I can -- I can assure staff and your office that -- that that's the case in point, okay, because the reason being is that the violation occurred was on the clubhouse. The units were built first. When Avi Baron built the units, he didn't pay the subcontractors. So the units that were available to be sold that had real value, the subcontract -- subcontractors, suppliers, and vendors had the first liens; all righty? Then the homeowners' association basically took over the project, and they fell in behind the vendors, subcontractors, and suppliers. Now, at this point in time the clubhouse, which is what this case is all about, wasn't in non-compliance; okay? So when this order came before the board about bringing the clubhouse into compliance, actually that was the -- that was the third wave or third tier of liens. And I'm -- I'm positive of that. MR. REINA: I don't know even where they are in the turnover process, if this corporation has turned over all of the -- the property to the condominium association. But it's possible I guess you could be liening basically condominium property which, you know, if the corporation does have common areas that it hasn't turned over or something. I don't claim to understand this completely but -- MR. MANALICH: I know Mr. Reina had their number of partial releases that we had participated in issuing previously which I think supports my recollection that the board, like in Embassy Woods, had requested that staff and my office not work adversely to the interest of the homeowner association as far as anything they would do. MR. REINA: Yeah. I think we got a little mixed up. We didn't come into this sort of with an adversarial position today. I thought -- really quite honestly I thought that we were still on friendly basis working towards solving a problem and that this is something that came up -- it kind of -- we didn't discuss it. We didn't conclude it when we did the Embassy Woods thing. But quite honestly, I felt that we would get back and address it at a later date, and really there wasn't any reason to address it if they weren't Page 31 November 30, 1995 going to live up to the agreement they made with you on Embassy Woods. Now they have been doing that, and apparently it's come up on somebody's calendar, and they've asked you to impose the fine which gets this conversation going saying, okay, what are we going to do about Deauville Lakes because I do see here there are partial releases. I have -- which means that the county -- Mr. Esperance (sic) was signing these partial releases which means that the county and Deauville Lakes were working together towards solving this problem. And I don't know that that has stopped happening. I think this is a housekeeping method trying to figure out, well, what are we going to do with this -- with these -- with this -- this lien? Are we going to turn it into a lien, are we going to solve it, or, you know, let's finish it up. And I think that's what we're talking about today, finishing it up one way or another. And so it's not like we've -- we've come in here and you guys have been beating us on the head to do something about it and we just haven't and now it's time to go ahead and impose the fine. We really haven't been given an ultimatum that we haven't lived up to is what I'm saying. So from that perspective it -- you know, I don't think it's unreasonable for -- for them to say see if the county will give us a continuance and let's talk about it. MR. MCCORMICK: I have one question for Mr. Manalich and maybe possibly Mr. Allen too. Based on what you said, the board in the -- in the past has always acted and tried to consider the interest of the homeowners' group. Would it be prudent for the board to hear from them, to hear their input either -- especially prior to any settlement coming back before us or maybe even on -- on the case of imposing this lien? At some point the -- the homeowners, apparently they wanted blood. Would they settle for trees now? MR. MANALICH: Well, I believe in the past we have heard from them. You know, I'm not opposed to that, you know, as far as hearing from them on this stage if they have a representative. I mean, my understanding was that myself as well as Mr. Bryant in my office and any others who had touched this case that one of our pole-stars in this case was not work adversely to the homeowners' association -- MS. DEIFIK: But-- MR. MANALICH: -- because they were the complainants. MS. DEIFIK: But imposing this fine against Deauville Corporation doesn't harm the homeowners in any way. And -- and with all due respect to Mr. Reina because I -- I really do appreciate what you're trying to do, Lenny, and I do think you're an honorable person, and I know you're trying to work this out. My first instinct as an attorney is get the notice to owner out, get the claim of lien filed, perfect your lien, perfect your lien, argue later, perfect your lien, argue later. I mean, that's my gut reaction. I can't help it. That's the way I was trained. MS. LOUVIERE: I think that's a wise reaction. MS. DEIFIK: You know, we're happy to talk to you after we perfect our lien. We're happy to negotiate. We're happy to work things out. We're happy to go back and hear anything, modify anything. But, you know, get that notice to owner out. Get that claim of lien filed. Page 32 November 30, 1995 Jim, do you have any -- I mean, even if it's useless. CHAIRPERSON ALLEN: That's -- that's a -- that's a -- that's a smart business decision. That is just strictly business. We understand; okay? And this -- this -- this is my gut reaction, and this is not a business decision. MR. DEIFIK: Uh-huh. CHAIRPERSON ALLEN: I only think that Mr. Reina's here today because the Barons have got something else in mind; all righty? MS. DEIFIK: Uh-huh. CHAIRPERSON ALLEN: I mean, we know the Barons. We know how they maneuver; all righty? MS. DEIFIK: Right. They want to go to another financial institution and not look bad. CHAIRPERSON ALLEN: Correct; okay? So the -- so -- but I'm -- I'm trying to look at it on the other side saying there's times I -- there's times I don't file a lien on projects to people that owe me money because I know they're in for refinancing, and I know I got a better shot of collecting if they can -- MS. DEIFIK: Good point. CHAIRPERSON ALLEN: -- if they can -- if they can refinance and have money available to do a new project; all righty? I got a shot at collecting something. If I file a lien against XYZ Shopping Center that owes me $50,000, okay, I know my lien stops the financing. And by stopping the financing, I stop -- I stop all chances of receiving any funds because they -- MR. REINA: I -- I think it is a more sophisticated decision on your part rather than just say, we have a right to enforce this order, we're gonna enforce it, and we'll talk to you about it later. Obviously there's nothing to keep you from doing that. There probably wouldn't be any real criticism from anybody who looked at it superficially for you doing that. But in a problem solving context, it doesn't really seem to make sense. This is nothing that has been on the front burner for a while anyway. All of the problems have been taken care of. The question is how do you get the most juice out of this orange. And I think you get more juice out of them by working with them a little bit. It's certainly easy to say, we're going to impose the lien, talk to you about it later. But what if they take that attitude? Well, they've imposed the lien. Let them collect it. And then you get two people that aren't working together. I'm a mediator as you know. I'm a trained mediator. And I know that you gotta keep people talking. A settlement is when you don't get 100 percent of what you think you're entitled to. That's -- that's a trial. That's a take it or leave it, winner takes all, loser loses. And by saying, we're gonna have our $250,000 and if you want to talk to us about it later, you talk to us about it on our terms later on after we've done everything we think we can do legally, then you're going to say, well, you know, you had your day. Now you -- you -- you've put me in a position where I don't really feel cooperative with you. I mean, we're all motivated by these kinds of things in life. I mean, there's no question about it. People get a better Page 33 November 30, 1995 shake if people like you and if they think you're cooperating than they do if you don't. I mean, try giving a police officer a hard time when he stops you for -- for a ticket. You know you're not going to help yourself by doing that, so you be nice to him, and maybe the guy will explain to you what you did wrong and give you a warning. And in this case I'm just saying that it seems that the proper -- the most -- the most beneficial approach in my opinion would be to allow me to work with these guys. And I'm not promising you that I can bring you back anything that you're going to like. But I can promise you that I will sit down and make them have a meeting with Ramiro so that you can be educated on where everybody stands. And the idea that, gee, we may get behind somebody else in the next 60 days or whatever it is, 6 weeks or 8 weeks, I don't think is really well founded because if there's anything there, there's a lot of people that tried to squeeze this orange. They would've gotten something out of it. As to what the motivation is for these guys to even ask you for a continuance, I don't think it's real strong. But it probably -- it probably doesn't hurt for them to solve their problems rather than to have -- have it look like, gee, they're not cooperating with the county. And I don't have a trick up my sleeve. I would not come down here and say, well, gee, you know, I'm going to just trick these guys for two months because I know something's going on, and then once we get past that, we're going to go like this to you. I don't work like that. I wouldn't do that. They couldn't pay me enough money to come down here and do it. CHAIRPERSON ALLEN: They do it. MR. REINA: Well, they -- they may. They may. But they don't get me -- CHAIRPERSON ALLEN: Okay. MR. REINA: -- to come down here in -- in -- in front of the whole world and -- and tell you guys things. Now, they may have kept some things from me, so that could be the case. But they've asked me to come down, and there may be a little bit of something that maybe they have of interest that I'm not aware of that they would like to solve with you. But no one's been able to find it to this point in time. So I would like to see you give me an opportunity to work, to try to come back. MR. MANALICH: Members of the board, just in advising you on this point, consistent with the questions raised by Ms. Deifik and other members of the panel, I think the judgment call you have to make today is basically -- and you've already seen it here -- which is what is the cost benefit of waiting for two months versus acting now. And there certainly -- I think, as Mr. Allen mentioned, it's almost bordering like on a businesslike decision as opposed to a legal one. The -- the legal scenario is, as we've been able to reconstruct it, that we have an order imposing fine in the amount of $18,000. That is a lien. We could foreclose on that at any point. I do not believe that we have a lien beyond $18,000 until you record the next order imposing fine for that difference. Now, the question becomes -- for you to weigh is given what has been discussed here today, the likelihood of uncollectibility, is it -- in a cost benefit sense 1S it better for Page 34 November 30, 1995 you to grant this request and develop the psychology, the dialogue, the -- the good feeling between the parties to the extent it can exist to try to get whatever blood out of a turnip we can get, or is it better to immediately protect the interest that we have, exercise the full legal rights we have with the risk that that may send a message to the opposing party that would turn them off to any type of negotiation or discussion and with the further risk that it may prove that even though you exercise your legal rights, it would be uncollectible. You know, that's one of those judgment calls. Obviously that's why you get the big dollars to make. But that's the way I see it. And, you know, you're in the best position to make that determination. That's about as much as I can advise you at this point. MR. ANDREWS: I'd like to -- I'd like to make a small comment. Don't matter how we -- how we do this. I think we're 1n my own mind I think we're beating a dead horse. But we spent a hell of a lot of time on this thing, way too much. I would go along -- as far as I would go along with giving a continuance for one month, next meeting. I think we'll hav.e the same answer one month, two month, three months. And I just think we've wasted too much time on this thing. I don't know how many years, but it's a long time. And this is just his way of doing -- Eli's way of doing business. I don't think you ever had a client like this guy. MR. MANALICH: I do -- I do want to mention one thing, Mr. Andrews, and for the rest the board members which is that it's obviously been a very frustrating process. But in any event, compliance was achieved. That is something that we should look with favor as far as the action of the board. I mean, the board did accomplish the essential mission which is compliance. MR. ANDREWS: Well, that -- MS. DEIFIK: At the expense of the homeowners. CHAIRPERSON ANDREWS: Correct, totally. MR. ANDREWS: Well, that was on Embassy. MR. MANALICH: No, on here too I believe. My understanding from staff is that compliance was achieved. MS. CRUZ: That's correct. They are in compliance at this time. MR. MANALICH: So, I mean, I'm saying that as a compliment to the board -- MR. ANDREWS: Deauville-- MR. MANALICH: -- that we have wasted a lot of time, we've done a lot, but we have accomplished an essential mission. The homeowners were -- to a certain extent I think also a compliment to the board, the board is always -- like here and in Embassy Woods, the board is very sensitive to the homeowners in not only getting compliance with them but not working adversely to them. So I think despite the frustration of time and effort, et cetera, those essential things were accomplished. Now we're still talking about another important aspect of this which is the fines and the liens. But I did want to point out let's not forget that you -- you did accomplish those two things. MR. ANDREWS: Okay. Well, the -- my -- my idea then Page 35 November 30, 1995 would -- would be as much -- much as we don't like it, to -- to have a continuance for one month -- for one meeting, till the next meeting, and then that be the last one, and then we go from -- we go ahead and record. I -- I don't care if we do that or record -- or -- or we vote to record it today. But I kind of going along with Mr. -- I mean, I have confidence in him. I just don't have any confidence in his client. MS. LOUVIERE: I like in a way Charlie's motion because Charlie's motion is really a two-part motion where he's saying if we continue, this is your last one, and after that we record. You cannot come back here again. We record after that. You cannot even come up to the board and ask us again. MR. REINA: Sounds fair. MS. SULLIVAN: Staff's position is that staff doesn't want to have to make an eleventh-hour recommendation if -- you know, if they're going to work something out. I prefer that they would get to us in time before the next board meeting so that we would know what's going on. MR. REINA: Well, the recommendation would be no. If we -- if we don't get it -- we don't get it buttoned up, the recommendation would be no. I don't have any problem with that. That accomplishes -- what I've asked you to do is give me an opportunity to sit down and talk to these folks and see if they're serious about putting something on the table you can live with. And there's no reason why we can't get it done by January 25 or 26 and come back. And if we don't, you just say, impose the fine, and -- MS. LOUVIERE: Well, I think -- MR. REINA: -- and you've given us your -- MS. LOUVIERE: I think the motion today would be that come January 25 or 26 which is the next meeting, either you have already talked to staff -- MR. REINA: Absolutely. MS. LOUVIERE: -- or the fine -- or we start -- or the lien goes automatically in effect. MR. REINA: That's fine. MS. LOUVIERE: So-- MR. MCCORMICK: And in addition, I think we want to -- MR. ANDREWS: 25th. MR. MCCORMICK: -- in that -- in that motion include when the draft proposal needs to be to staff MS. LOUVIERE: Bingo. MR. MCCORMICK: -- so you have time and the attorney's office has time to review it. CHAIRPERSON ALLEN: I believe we need to have that proposal to staff before Christmas. The reason I -- this is my gut reaction; okay? If we're being this lenient, which I really think we're being lenient, Mr. Reina, is that Barons have got something up their sleeve. I just feel it in my gut; okay? MS. DEIFIK: We all do. CHAIRPERSON ALLEN: Okay. We're all agreed. So if -- if something hasn't happened I'm going to say by December 15 -- that would be my recommendation. We got two weeks for you to make a recommendation to staff. If we haven't heard back from staff, then we've got to move forward quickly. Page 36 November 30, 1995 MS. DEIFIK: I like that. CHAIRPERSON ALLEN: Okay? If we have to have a special meeting, then we need to have a special meeting. MS. DEIFIK: I'm -- I'm with that. CHAIRPERSON ALLEN: Because we're giving you a -- MS. DEIFIK: I'll be here. CHAIRPERSON ALLEN: -- two-week window. MS. SULLIVAN: Staff feels a lot better about that. CHAIRPERSON ALLEN: Okay. MS. DEIFIK: I'll be here. CHAIRPERSON ALLEN: We'll have a special meeting if we have to if we agree on that. But you got a two-week window to get a proposal to staff. If staff says, this is nothing but a smoke screen, we can call a special meeting, impose fine. MR. REINA: Okay. Now you're -- you're saying at least a -- a proposal on the table, not have it buttoned up and -- and everybody have done all their work -- MS. LOUVIERE: But MR. REINA: and signed on the dotted line -- MS. LOUVIERE: But MR. REINA: type thing. MS. LOUVIERE: But-- MS. DEIFIK: We want something that MR. REINA: Substantial compliance? Sort of like substantial compliance? MS. DEIFIK: Something that Ramiro can report to us and give us -- give us ins, outs, ups, and downs, December 15. MR. REINA: Are you going to be ready to do that, Ramiro? MR. MANALICH: Well, let me see if first part of the motion -- I just want first thing is to continue this case to MS. CRUZ: Fifth. MR. MANALICH: -- 25, '96. MS. LOUVIERE: We -- we went and did something else. MR. MANALICH: Right. But, I mean, that's what it would well, is that out now? Is that MS. DEIFIK: It's out. MS. LOUVIERE: That's out. MR. MANALICH: Oh, that's out. Okay. All right. So then I now heard that -- the date December 15. MS. LOUVIERE: Right. CHAIRPERSON ALLEN: Correct. MR. MANALICH: Okay. What do you want to happen on December 15? CHAIRPERSON ALLEN: proposal -- MS. SULLIVAN: A written proposal to staff. CHAIRPERSON ALLEN: -- to staff by the 15. MS. SULLIVAN: Right. MS. LOUVIERE: Locked down. CHAIRPERSON ALLEN: Locked down. MS. DEIFIK: And staff to make up the -- actually it would have to go to staff and you before December 15 because on I understand. The to make -- specific here. January twenty The We -- we want a pro -- we want a Page 37 November 30, 1995 December 15 you and meeting and tell us MR. MANALICH: on December 15. MS. SULLIVAN: Or 20th or 17th. CHAIRPERSON ALLEN: That would be the motion unless it doesn't happen; okay? And if it doesn't happen, we'll have a special meeting anyway and impose fine. Is that okay with everyone here? MS. LOUVIERE: A buttoned-down proposal saying this is how much they're going to pay just like they did with the other project that they have, and it just started and starts -- they start paying us. MR. REINA: So basically you're giving us two weeks -- MS. LOUVIERE: That's right. MS. DEIFIK: Right. MR. REINA: -- to solve the problem. MS. LOUVIERE: That's right. MS. DEIFIK: Right. MR. REINA: Well, certainly better than zero. CHAIRPERSON ALLEN: Well, look at it this way, Mr. Reina; okay? Knowing we had this meeting today, you didn't come with anything. I appreciate your -- your honesty and your candor. MR. REINA: Right. CHAIRPERSON ALLEN: anything today either. MR. REINA: Right. CHAIRPERSON ALLEN: So now everybody knew this -- this was coming. And the Barons, you know, knowing they've got something in the wind, okay, we want to bring the black eye on it as quickly as possible. MR. REINA: And -- and your reason for the 15th is because you have a -- you have a meeting scheduled for then or some kind of a special meeting where you would all be in one place, and it makes sense that the staff would report to you. I guess what I'm trying to get -- get -- get over is whether -- and it sounds like what you want is a final deal. And I'm wondering if -- if staff comes to you and says, look, we've been working on it, and we've got a couple questions, there's still a few things we want to do, and we need to really -- do need to get back and do X, Y, and Z, are you going to have an open mind if there's been substantial compliance and we look like we're making some progress? I'm just saying you're -- you're -- you're tying -- tying the knot real tight on this, and that may be what you want to do but CHAIRPERSON ALLEN: Personally I think we need to tie the knot; okay? I don't think we're gonna -- we've been -- like we said, okay, Embassy Woods drug on and on and on; okay? Embassy Woods came into compliance, and we agreed -- I agreed personally, okay, under duress and didn't like the deal. I think we've been -- this -- this has had -- has had an equal time frame. It's gone on for three years. It's time that we say either we're going to do it by 15th or im -- or impose the fine, okay, and we file the lien for two forty-four five hundred at that point in time. MR. REINA: At least that gives me a deadline to sit down and tell my clients we have to sit down, we have to talk before staff would need to come in here to our special what's going on. So there is going to be a special meeting But you didn't come with us with Page 38 November 30, 1995 that, and -- and come up with some kind of a solution. MR. MANALICH: So there is going to be a December 15 meeting. If there's a proposal, there will be a special meeting on December 15. MS. DEIFIK: Right. I would anticipate Mr. Reina and his clients would be getting with you within the next few days MR. MANALICH: Right. MS. DEIFIK: -- so that you can start preparing. MR. MANALICH: Right. And basically the requirement is for him to submit a specific written proposal to staff before the 15th. And if that is done, then there would be a special meeting to review that proposal on the 15th. MS. DEIFIK: Well, let's -- let's have a special meeting either way. MS. CRUZ: I'm going to need to verify that the board room is available on that day. CHAIRPERSON ALLEN: That's Friday morning? MS. SULLIVAN: I think it's a Friday. MS. DEIFIK: We can meet somewhere else. MS. CRUZ: Perhaps we can. MS. SULLIVAN: We could meet in any of our conference rooms. MS. CRUZ: Okay. MR. MANALICH: Well, you may want to check -- can you check quickly if this is available? MS. CRUZ: Sure. MR. REINA: Is your order that imposed unless on the 15th you have That's one way of -- of hearing it. unless you get a -- a written order. Then the other -- all I'm trying to do is get out of you guys having to have a special meeting because of this because we don't care obviously. You know, generally January's fine with us. But if you want us to give him a proposal or if you actually want him to have a proposal and something that you're going to vote on on the 15th, then I guess you do have to have a meeting but -- but -- MR. MANALICH: I think you're going to need a meeting MR. REINA: Okay. MR. MANALICH: -- because if your intent is that the proposal is not approved or is not submitted, you're going to order these fines be imposed, I think you need a meeting to do that. So I would just recommend you have a meeting no matter what. And then they're required to submit the written proposal to staff prior to it. CHAIRPERSON ALLEN: If there's something in the wind, two weeks is going -- if we impose the fine -- the stop gap that we're trying to do is going to -- is going to stop funding or at least question the funding of a future project. I think the two -- the two-month window gives them too much time to maneuver. MR. MANALICH: What about Mr. McCormick's comment about the homeowner association input on this? I mean, they don't they do not have actual standing on this. I just mention it because Mr. McCormick raised it. In the past they have been interested. I don't know if they still are. I don't know if we want to complicate it with -- with this or not. I mean, I know you mentioned it. They the -- that the fine be a written proposal from us? You're saying you're imposing it Page 39 November 30, 1995 obviously would be, you know, subject to notice just like any other member of the public when we have these meetings. I'm not saying that they should be included in the negotiation because they're not a party. MR. REINA: I just think it's going to make it more difficult in two weeks to come up with a solution if we include MR. MANALICH: I'm sure that's going to happen. I mean, any time you get more people -- MR. REINA: You know, I mean, if they're going to give their two cents on it, I mean -- MR. MANALICH: But I'm just saying Mr. McCormick raised it. I wanted to be responsive to his comment and -- MR. MCCORMICK: I haven't worked with him before. I'll defer to the board members who were here when the case was heard before. MS. LOUVIERE: I -- I tend to agree think he's got two weeks to come in with live with. And I think if you bring in that's very upset and it's heated, then much more difficult. MR. MANALICH: Like I said, I -- I have no quarrel with that. MS. LOUVIERE: MR. MANALICH: third party. MR. REINA: doing now. MS. DEIFIK: Do we need to make a motion? MS. CRUZ: Mr. Chairman, the board room is available on December 15 from 9 to 11. MS. DEIFIK: That's all we need. MS. CRUZ: For two hours. CHAIRPERSON ALLEN: Nine o'clock? I don't think we're going to need it but about 30 minutes. MR. MANALICH: We need a vote on this too. Basically the motion -- why don't we have a new motion or -- I guess the motion, as I understand it to be on the table, is to continue this item to December 15, 9 a.m. in this room where there will be a special meeting of the board on this case. And prior to that time Mr. Reina is to submit a written proposal to staff for resolution on this matter. And in any event, whether it's submitted or not, you will have a special meeting on December 15 at which you will review, if there's any proposal to review, that -- that proposal, make a decision on it. And if for whatever reason the proposal is not submitted or you do not approve it even if it's submitted, then on that date you intend to vote on the order imposing fine. CHAIRPERSON ALLEN: I have just one comment; okay? If there's no -- can we vote -- can we vote now so if -- if nothing is tendered from the Barons before the 15th, okay, there's no need to have our meeting the 15th. We're going to vote -- can we vote now that we agree that in the event nothing is tendered to staff, for instance, they say, hey, guys, I'm not going to do nothing, all righty, we say -- can we vote now that we order imposing fine now so we don't have to have the meeting on the 15th? Is that valid? Can we with Mr. Reina. I a proposal that we can all homeowners and everybody it's going to make it that For the first time we actually agree. It's between these two parties, not the I don't -- I don't disagree with what you're Page 40 November 30, 1995 pre-vote on something that mayor may not occur? Is that -- MR. REINA: I'll tell you what you can do. You could -- Mr. Allen? CHAIRPERSON ALLEN: Yes, ma'am (sic). MR. REINA: You could -- you could certainly make it clear that if it isn't tendered you are not going to have a meeting, but on your January 25 meeting, there is going to be an imposition of fine. CHAIRPERSON ALLEN: No. the fine. MR. REINA: Okay. CHAIRPERSON ALLEN: 15th. MR. MANALICH: the special meeting CHAIRPERSON ALLEN: That's fine. MR. MANALICH: -- and make your vote if you need to at that point if there's no proposal. I just think you need the special meeting, see what the situation is, and then act accordingly. CHAIRPERSON ALLEN: That's fine. MS. LOUVIERE: But the motion should read that December 15 he's going to come and he's -- he's going to have something to us by then that we're going to vote on. And if we agree that this is not this doesn't work for the county, that -- that -- then the lien goes in effect. He cannot come back and keep asking for more motions. After that that is -- that will be a mute (sic) point. That will not be up for discussion. MR. REINA: Even I won't come back and ask you on the 15th for more time. MS. LOUVIERE: I will not listen to it. MR. REINA: I'll make Ramiro do it. CHAIRPERSON ALLEN: We have a motion. MR. MCCORMICK: Second. CHAIRPERSON ALLEN: Second? Okay. All those in favor signify by saying aye. Any opposed? None. It carries unanimously. We'll see you -- MR. MANALICH: I just have one other comment which is, Mr. Reina, again, just for purposes of the record to be clear, I think Mr. Allen has contributed a great deal to the discussion today for -- for both sides for clarity's purposes. He has stated, however, that he has been personally involved in this case in the past in a tangential manner. You've heard the other comments he's -- he's made with regard to his knowledge about the case and the people involved. After hearing that, on behalf of your client, do you have any opposition to him continuing to participate and vote in this case? MR. REINA: No, I don't. MR. MANALICH: Okay. Because he will then -- consistent with no objection, he will then participate and vote on the 15th. MR. REINA: That's fine with us. MR. MANALICH: Thank you. MR. REINA: Thank you very much for your sorry it took so long. Hopefully I can be of MR. ANDREWS: God bless you -- God bless We want to -- we want to impose We want to impose the fine the For clarity's sake, I think you just have time. I'm help. you, Mr. Page 41 November 30, 1995 Reina. MR. REINA: Thank you. Bye-bye. CHAIRPERSON ALLEN: Thank you. Well said, Mr. Andrews. With that out of the way, can we go on to our new report about nuisance -- nuisance -- MR. MANALICH: Okay. This will be much briefer, but I did want to acquaint you with something which is developing. I talked to the chairman and asked him for permission to put this on the agenda. You're probably already through the media, et cetera, aware of the fact that there are a number of problems in existence for some time now on the Bayshore area in Naples with regard to illegal activities occurring in that area of the community. It's gotten some degree of publicity and news coverage lately. The Board of County Commissioners, seeking to be both reactive and proactive in regard to these problems, has taken a very significant interest in these problems. They have indicated at public meeting that they want some measures taken to -- both through law enforcement as well as through county mechanisms to try to help the residents in that area with these problems. One of the things that has been suggested and that we have direction, meaning the county attorney's office, from the Board of County Commissioners is to work toward a nuisance abatement ordinance that has been implemented in other counties such as Dade County. Basically the theory behind that type of an ordinance is that you deal in part with this -- these types of problems what I'm talking about now is gang activity, drug dealing, prostitution, and other illegal conduct -- by requiring property owners in that area who are on notice that their properties are being used for these types of activities to take remedial' steps to prevent these things occurring on those properties. If they don't, it is considered to be a nuisance, and they can be cited before an appropriate board and potentially subjected to orders of that board and/or fines for failure to do the remedial action after they've been noticed about the problem. That, as I stress, is only one aspect of trying to deal with this type of situation. Obviously it's much more complicated than just one aspect. The reason I mention it to you is that there's a provision in the statutes which says that an administrative board can be created to deal with these nuisances consisting of these type of illegal drug dealing and other behavior. It's the opinion of the county attorney's office that we can -- instead of creating another layer of government, another agency, that these types of cases if the appropriate ordinance is set up and if your Code Enforcement Board ordinance is amended can be channeled to your jurisdiction and to be heard by you if the board approves the entire scheme, the Board of County Commissioners, that is. So I wanted to -- this is in the works as we speak. It has not gone yet to the board. The board has indicated they want this brought to them quickly, at the earliest possible date in January. We have the input of code enforcement staff. We have the input of the sheriff's office and the sheriff's counsel. I know Lieutenant Lloyd Page 42 November 30, 1995 from the vice and narcotics division is very interested in this and is involved in the ongoing efforts to correct the problems in the area. And basically I wanted to inform you of this, get your feedback and input as to this proposal and any suggestions or comments you might have. Obviously the first thing is to know from you your position with regard to hearing these types of cases. It is contemplated, because Ms. Sullivan has obviously a very strong interest in this, that the enforcement and preparation of these cases would be done primarily by the sheriff's personnel and not by her code investigators. The reason for that is we're not talking about basically, you know, property or other violations that don't involve violence or some degree of hazard. Rather we're talking about now prostitution, drug dealing, gang activity where we might have, you know, some very dangerous individuals as well as situations. And law enforcement training would be needed to investigate those types of things beyond just what code enforcement has available to them. (A short break was held.) CHAIRPERSON ALLEN: Go ahead, Mr. Manalich. MR. MANALICH: Well, so anyway, just to wrap up then, basically what I was just wanting to inform you and seek your input with regard to this proposal that the board is asking the county attorney's office, staff, and the sheriff to all work together to bring back to them in early January a ordinance that would declare certain types of illegal activity to be a public nuisance, would provide for a notice mechanism to property owners to require them to attempt to remedy these things occurring on their property, and would then provide for you as the board to hear these cases that would be prepared by -- essentially primarily by the sheriff's office in the investigation. MS. DEIFIK: Okay. This is what I'm not clear on. What can the property owners do to -- to be remedial? Take down a hedge? MR. MANALICH: Perhaps. For example -- MS. DEIFIK: Because that would not be something that the sheriff's office would want to go out and check, whether they cut their hedge because we told them to cut their hedge down MR. MANALICH: The ordinances that I've reviewed -- MS. DEIFIK: -- but -- MR. MANALICH: from other counties are not specific as to -- MS. DEIFIK: Give me some examples. MR. MANALICH: what are the -- the exact remedies. What they're saying is that the board can fashion whatever type of order is necessary given the factual scenario to remedy the occurrence. Now, I suppose the -- the primary example comes to my mind. I don't know because I'm not out in the field if it's so much in this county as it would be in some of the more urban areas but, for instance, our, quote, crack houses. If you know -- if the property owner knows there's a dilapidated structure there that's being used for all these illegal activities, then there -- you can fashion an order saying you need to board it up, you need to lock it up, you need to tear it down, you need to do something so this dilapidated structure isn't infested by all these illegal activities. That's one Page 43 November 30, 1995 example that comes to mind. Now, bear in mind then the Board of County Commissioners -- primarily I know all of the members are very interested in this. I know that Commissioner Norris whose district borders on that area and Commissioner Mac'Kie who I believe it is her district have been the primary concerned proponents. And they understand, I believe, that this would only address one aspect of the problem. You still have a need for undercover law enforcement work which was just done by the sheriff a couple of weeks back as well as other activities. This is just trying to deal with one approach, one tool, to aid in this problem. As far as any further examples of what the board could do, like I said, the way the ordinance are constructed, it's pretty open ended. That's the one that popped to mind right away, but I suppose perhaps, you know, trimming, like you said, if -- if people are doing illegal activities behind, you know, shrubbery -- MS. LOUVIERE: I -- I think -- I think it's a fine idea. I don't have a problem with it. I would like to see some of the other ordinances so we can start -- the ones maybe from other counties MR. MANALICH: Uh-huh. MS. DEIFIK: That haven't been held unconstitutional. MS. LOUVIERE: -- that -- right. MR. MANALICH: Yeah. My understanding is that the ordinances -- MS. LOUVIERE: You are reviewing other ordinances, right, to get an idea how they're drafted? MR. MANALICH: Oh, right, exactly, yeah. Essentially it would be patterned after one that had been in place now for several years primarily out of -- Dade County is the one we have. MS. LOUVIERE: Right. MR. MANALICH: Now, the only twist on this -- and this is what requires some judgment on the part of the county attorney's staff -- is that the section of the statute -- I believe it's 893 which deals with controlled substances talks in terms of creating an administrative board to deal with these public nuisances. There's also a separate chapter, I believe 823, which deals with public nuisance, in general allows the county attorney or the state attorney to go to court trying to enjoin public nuisance. That's another tool that's available. But in I believe it's 893 -- and if I'm not correct, I'll get you the correct cite if you're interested -- but -- and the ordinances, if you want a copy of them, will contain that reference. In that particular section of the statute it talks about the creation of an administrative board. Now, it requires a little bit of legal judgment on our part to say that we can utilize you to enforce the nuisance abatement ordinance. But then again, chapter 162 is designed as a broad grant of authority to you to enforce any of the codes and ordinances of the county. And the Board of County Commissioners' direction on this has been they do not want to create, like Dade County did, a separate nuisance abatement board. MS. LOUVIERE: So basically what we could do is create an ordinance, and then we could even take that ordinance and make it part of maybe like the Land Development Code. And, therefore, we Page 44 November 30, 1995 would still have then the authority to enforce it. MR. MANALICH: Yes, it would -- the ordinance would provide and the Code Enforcement Board ordinance would be modified to reflect that these nuisance abatement ordinance cases would be channeled to you. And perhaps you could even have a separate part of your agenda to deal with this subject. CHAIRPERSON ALLEN: My only comment to this, Ramiro, in thinking through this like we talked the other day is that they're asking code enforcement, okay, to do something that they can't do themselves, okay, and I've got a personal problem with like Miss Sullivan sending Mike Kirby to check out a house, okay, and Mike walks in, oh, this is still a crack house. That ain't going to fly. That ain't -- MS. SULLIVAN: That would be Miss Sullivan's problem with it too. CHAIRPERSON ALLEN: Okay. I mean, that's -- that's where we're really gonna -- I see we're -- we all want to clean up Naples and keep Naples great for everybody to come and generations in the future. But, boy, they're really asking us, okay, to help them solve a problem that they can't solve with guns, S.W.A.T. teams, okay, undercover agents; okay? If they can't keep their prostitutes off the street, how are we going to keep the prostitutes off the street? MR. MANALICH: Well, the response to that is that -- again, this is only addressing one aspect of the problem. And secondly, that Mr. Schryver who is the sheriff's attorney has indicated that he is sensitive to this problem. He has met with both Miss Sullivan and myself. He has indicated to me that he is willing to have the sheriff's department have the primary responsibility for investigating these cases. CHAIRPERSON ALLEN: I understand that. I'm not talking about the primary. I'm talking about the secondary, okay, because because we all know what's going to happen. The crack house is going to move from block A to block B to block C; okay? And as it makes its vicious rotation circle, okay, after the primary investigation's been done, okay, we know the code enforcement has historically cleaned up things for the county. That's what I'm concerned about, is that her staff goes out to do the follow-up, all righty, and they're the ones that are going to get hurt. You're going to have some -- you know, they're not going to be walking up there with guns; okay? They're going to be walking into a hostile environment where it wasn't hostile this week but because the crack house moved from point A to point B, they're going to walk into a scenario, okay, that can -- that can have somebody in a -- in a physical harm. That's what I'm concerned about, is that -- MS. LOUVIERE: You're concerned about enforcement. CHAIRPERSON ALLEN: Right. MR. MANALICH: I think his concern has actually been reflected, for instance, in the Dade County ordinance. That ordinance vests the enforcement and preparation of the cases exclusively in the police department. MS. LOUVIERE: Enforcement I think is the key here, that even though they do the research, that once we go ahead and we place things -- we come in with these orders, I mean, is it going -- is it Page 45 November 30, 1995 -- who is the person -- what is the entity that's going to be responsible for actually enforcing them? Not our code compliance people but maybe the sheriff's department. MS. DEIFIK: The sheriff's department is going to need additional funding to do that. MR. MANALICH: Well, that's an interesting aspect. You're saying not in the investigation. You're saying actually once the case gets to you, you issue an order -- MS. LOUVIERE: Who's going to enforce this? MR. MANALICH: -- your concern is how is that going to be monitored and enforced. CHAIRPERSON ALLEN: I mean, we came real close -- and, I mean, with Mr. Hedrich, had they not had some probably police -- had some -- if he would have secured a man and the big burly fella that he is, Mr. Parks, he might have had a real problem; okay? And that's the case that we saw here. It was a litter case; okay? We're not -- we're not talking about -- and the scale of cases we're going to be looking at are basically criminal types; okay? So, you know, cutting a compliance officer or shooting him or running him over with a car, I mean, we're not dealing with litters and cars and tires anymore. We got a -- we're stepping ourselves up. That's what I'm concerned about is that the staff that she has on follow-up isn't trained -- MR. MANALICH: I think she mentioned she's got a library of Rambo films they can watch and get up to speed real quick, but that may not be adequate. MS. SULLIVAN: Just for the record, I have made these concerns known to everyone in case someone gets hurt. MR. MANALICH: I think that's a very good point. And I think I need to address that with the sheriff because I think what I'm hearing from you is that you think and -- that any enforcement, not only investigation but actually enforcement probably needs to continue to fall on the sheriff. CHAIRPERSON ALLEN: I think if we can work with him, that's fine, but, I mean, we cannot ask code enforcement to do follow-up, okay, or Miss Sullivan's staff to do follow-up on something that's in a -- it's a criminal nature. That's not what our board's about, I don't believe. That's just the comment. MR. MANALICH: There is one other -- at least one other aspect of this that doesn't directly concern you, but I want you to be aware of it as part of the full picture on this. Another discussion that's been had on this whole problem has been whether a county ordinance could be created dealing with the subject of prostitution itself and providing for certain types of anticipatory behavior. And by that fancy word what I mean is -- MS. DEIFIK: Loitering? MR. MANALICH: Yes, loitering and -- and things leading up to prostitution deals but not actually being the deal itself, whether that could be in -- in essence declared unlawful by local ordinance. And that appears to be a somewhat problematic area because Mr. Schryver's indicated to me he is aware that the Florida Supreme Court struck down at least one such ordinance on vagueness and overbreadth grounds. That is -- for example, there are a number of jurisdictions -- they did share with us ordinances from other jurisdictions saying that certain types of things like waving to Page 46 November 30, 1995 passing cars, things like that, would be precursors to this illegal activity. The only problem then, of course, is that that also could be innocent behavior and MS. DEIFIK: Mireya and I were out there last Saturday. CHAIRPERSON ALLEN: I know. I paid 20 bucks. MS. LOUVIERE: Please leave me out of this. MR. MANALICH: But in any event -- MS. DEIFIK: Damn. My husband will be mad. MS. LOUVIERE: I -- I agree that I think that's very vague and almost impossible to enforce. MR. MANALICH: Well, I'm not saying we've given up hope on doing something like that. But we have -- and the sheriff's counsel has shared that concern with us. As a matter of fact, he brought up the fact that the Courts have declared some of those types of ordinances unconstitutional. That's in the back. It doesn't directly concern me. But that's another -- you know, there -- there's a number of things being discussed of possible approaches to deal with this problem. This nuisance abatement approach is one aspect of that. And, frankly, it needs to be understood that there is a potential downside to this which I think can be controlled and and not be an overwhelming problem. But the potential downside that could occur is that when you deal with a property owner, you're not dealing with, quote, the guilty parties. You're not dealing with the actual criminals. And you're now pursuing a property owner to clean up a problem created by criminals. Now, I think with the proper notice and notification to the property owner, I think it's fair to ask that person to do something about it. If he's got an ongoing severe problem, he's been given plenty of notice and told to try to correct it, I think it's fair to require that person to do something or face an order and fines. But it has to be -- the proper discretion has to be exercised because you could have an innocent property owner that may not be aware that activities are going on that property, and certainly that person should not be penalized for the wrongdoing of other criminal agents. MS. LOUVIERE: I think the intent of the ordinance is to put pressure on the person that owns the property to get them to kind of maybe help clean up the act. MR. MANALICH: That's correct. MS. LOUVIERE: And, you know, I saw this done in New Orleans when I lived in Louisiana, and it does work up to a certain point. I -- I don't think -- I personally don't have a problem with listening to these -- to these items or creating an ordinance to that effect as long as it's well drafted so it protects -- protects the county and we can enforce it. The biggest concern I see here is actually enforcing. And we have always had a problem with enforcing. It's wonderful to have this board. But how do we enforce, and how do we obtain compliance? And this is where maybe the sheriff's department needs to stay involved. We can listen, and we can say, this is what we want done. But if we can't enforce it, then it's -- we're accomplishing Page 47 November 30, 1995 nothing. MS. SULLIVAN: Well, for example, on the Larry Parks thing, we're trying to come up with about $2,000 to get someone to accompany us out there to get this cleaned up. And, you know, we don't have the money so -- MS. LOUVIERE: Right. MS. SULLIVAN: So we're in the same situation with that. MS. LOUVIERE: Again, enforcement. The key here -- that's the key word. MR. MANALICH: And, you know, as you pointed out, these can be dangerous individuals, violent situations. We're not talking about, you know, litter or in that -- we've even seen that can become dangerous. But we're talking about criminal activity where people may be carrying weapons, et cetera. MR. LAFORET: Counselor, that -- at my age that wouldn't bother me one damn bit, and I'm serious. If it hasn't happened to me now, it ain't gonna. And if it does, so what? So whatever you whatever you would decide and the board would be helpful to, I'm in favor of it. MR. MANALICH: I will -- certainly in preparing the ordinance and in working with the sheriff and staff, I certainly am going to keep it foremost in mind your concerns not being just investigation but that is, enforcement after you've heard a case. MS. LOUVIERE: Yes. MR. MANALICH: Is there anything else on this topic? It's basically an informative report and just seeking your input on it. MS. LOUVIERE: So are we going to continue going to come back to us and keep us abreast of with this nuisance abatement ordinance? MR. MANALICH: The time table right now appears to be that the Board of County Commissioners sees a problem that needs urgent attention in the community. And they've indicated they want this on their agenda early in January. So I don't know if I'm going to be able to have another meeting with you about this subject. MS. LOUVIERE: Okay. On January -- in January. And, therefore, whether -- is this going -- this ordinance going to be approved by the BCC and -- and we're going to have to enforce it? Are we going to get to vote on this at all, or just only the BCC has the right to -- to draft ordinances; correct? MR. MANALICH: Right, right. I mean, I can certainly -- if you had some type of position that you formally wanted communicated to them as part of the public hearing, either your chairman could appear and address that, or you could convey it through me. MS. DEIFIK: Can you get us copies of the proposed ordinance so that we can -- MR. MANALICH: It has not been prepared yet. I mean MS. DEIFIK: I mean when it is. MR. MANALICH: Oh, sure, sure. And I can get you immediately if you'd like -- you know, we don't intend to do a lot of imaginative creation here because we're dealing with constitutional topics. We'd like to for the most part pattern it after ordinances that have been in place and have withstood the test of time and/or are you of what's going on Page 48 November 30, 1995 courts. So what I can do immediately is to get you a copy of the Dade County ordinance. MS. DEIFIK: Do it. MS. LOUVIERE: I'd like that. MR. MANALICH: And I expect that ours with minor changes will reflect that to a great extent. MS. SULLIVAN: It should be ready by December 15 when we have the special meeting. MR. MANALICH: I can give you an update at that point. MS. LOUVIERE: That would be great and also to see maybe a draft of the -- of the Dade County ordinance and maybe if you have a draft of the new ordinance -- MR. MANALICH: By then I think I will. MS. LOUVIERE: And I think -- I'm just speaking for myself. I don't know about the rest of the board members. I would like it very much that -- that the Board of County Commissioners is aware of the fact that we are very concerned with the -- with the enforcement section of this ordinance. MR. MANALICH: How do you want that concern to be conveyed? MS. LOUVIERE: Is it possible that that -- that be drafted into -- that that would be incorporated into your draft ordinance? MS. DEIFIK: That the sheriff's department do the -- MR. MANALICH: I think it will be in the sense that I do expect to name the sheriff in that ordinance, obviously with his counsel's review of the document, as the primary investigation, slash, enforcement agency. MS. LOUVIERE: Perfect. MR. MANALICH: But if you want to address the board further, I guess there's two ways -- MR. MCCORMICK: Perhaps -- perhaps we could write a separate correspondence letter from the board that they would hear that day that they're hearing the ordinance. That would be the time that they would be most receptive to our input -- MR. MANALICH: You can do that as I see it -- MR. MCCORMICK: -- because they won't see anything prior if that's what we want to do. MR. MANALICH: And you could -- may I have a motion authorizing the chairman to convey a certain message in the letter? MS. DEIFIK: I so move. CHAIRPERSON ALLEN: I'll just be there with Miss Sullivan. I'll just go in -- I'll just go in I'll just go in person. That's going to be better because MR. MANALICH: Do you want him simply to appear? MS. DEIFIK: Yes. CHAIRPERSON ALLEN: -- then we'll hear one side of it. MS. DEIFIK: Yes. MR. MANALICH: Okay. To appear to address what position? That the ordinance should -- MS. LOUVIERE: Not only that the sheriff's department is responsible for the investigation of the cases, but once we place any kind of order in place, that they will be responsible for enforcing that order. Page 49 November 30, 1995 MR. MANALICH: I do know that the sheriff's counsel had requested that even though they would take on the primary responsibility, they still wanted to have access to support by code enforcement. Now, they -- we have not gotten to the point -- and I would invite Miss Sullivan obviously to sit with me and the sheriff's counsel. But we have not gotten to the point where they have specified what degree of support. MS. LOUVIERE: Excellent. I think that's the key. Support is -- is fine. But then again, we have to look at just how much support can we really give them. I mean, if we have a S.W.A.T. team, we would be happy to provide a code enforcement official to sit in the car and say go. MS. DEIFIK: I'll hold your coat. MS. SULLIVAN: I wouldn't -- staff wouldn't have any -- any problem with presenting the cases to you. I mean, that's MS. LOUVIERE: That's fine. MS. SULLIVAN: That's fine. MR. ANDREWS: In other words, everything we do is going to be right here. CHAIRPERSON ALLEN: Do we have anything else? MR. MANALICH: Well, the only thing in relation to that is that I was thinking -- go ahead. MR. MCCORMICK: No, you can finish up on that. MR. MANALICH: Well, I was just going to mention that in relation to that, I do expect that our Code Enforcement Board ordinance would be amended to reflect this area of jurisdiction for you. What I thought we could do also at the same time would be ideally to also make some other minor amendments to the code board ordinance, minor in the sense of being quick, maybe not minor as far as substance. For example, right off the top what comes to mind is the statutes provide for a 20-year foreclosure window. We in our ordinance have currently had only a five-year window. It would seem to me that we would want to take advantage of that opportunity. MS. DEIFIK: Sure. MR. MANALICH: Also, for example, the statutes were amended recently to talk about recovery of investigative and prosecution costs. I would think we would want that also reflected in our ordinance. So I can probably, you know, get that to you obviously by the 15th. I would like to put those changes in and have you review those and have those included if possible as part of the -- MS. DEIFIK: Great. MR. MANALICH: -- the nuisance abatement item. MS. LOUVIERE: Fine idea. MR. LAFORET: Could I have a 10 percent salary increase for this aspect of work? MR. MCCORMICK: I was going to say I may be willing to sell this chair next to the door to the highest bidder. CHAIRPERSON ALLEN: Is that it? MR. MANALICH: The only other quick item was I wanted to thank Ms. Deifik. She in the course of her legal research and review sometimes will share with me items of legal developments in the code enforcement arena. She did provide me an interesting case here very Page 50 November 30, 1995 recently from one of our district courts of appeal having to do with liens. And the challenge in this case was to -- as I understood it to invalidate the lien on the basis of homestead. And the Court basically found that the lien was valid but it could not be foreclosed upon. So in other words, the lien could not be extinguished by the existence of homestead. So it could be recorded. It was not an improper cloud on title, but it simply could not be foreclosed upon or enforced until either that loss its homestead status or was sold and the proceeds recovered so just for your information on our lien issues. CHAIRPERSON ALLEN: Okay. Before we -- go ahead. MR. MCCORMICK: Yeah. The last item if I could -- it won't take long -- I wanted to ask Miss Sullivan if she could give us some feedback or some education on how the code enforcement department can work with the planning and review staff on those cases where it involves a -- site development -- MS. LOUVIERE: Excellent. MR. MCCORMICK: -- plan approvals so that we're not caught in the middle and you're not caught in the middle, what -- what can be done. MS. SULLIVAN: Which is exactly what happened this time. We weren't advised that someone was going in the back door asking for an opinion. What I have decided to do -- and Wayne Arnold and Bob Mulhere have been very nice about this. And any time I think that there's a land development question that might come up to the board, they're going to accompany me to be here to answer questions so that we don't have to go back and do it over. MS. LOUVIERE: Is it possible that any time you see -- or I know it's hard for you -- let me just reiterate that. Any time you see anything that has to do with an SDP or anything that has to do with a PUD -- MS. SULLIVAN: That's what I had mind. MS. LOUVIERE: -- if you could just start copying them on that correspondence. So if there's any administrative decisions that they can make or any research that they need to do, that it's done before this item that comes before the board because once we impose orders, if staff comes to us and we're having to change orders, basically what it does is it takes away from our power. And then later on staff is going to come to us and say, hey, make -- back me up. Well, if we're constantly changing our orders, that's going to diminish our power and the way we -- we are not operating as a team. MS. SULLIVAN: Right. They have agreed to let me know any time anything like this should happen again. I think they really thought that -- that we had been advised that they were coming there to them, but we weren't. So communication should be better. MR. MCCORMICK: Thanks. Sounds good. CHAIRPERSON ALLEN: Just one thing for the minutes. Although Miss Louviere and Miss Deifik admitted to being on Bayshore and waving to clients last week, I'd like to note for the record they were in yellow and white sundresses. MS. LOUVIERE: I was not there. I was out of town. It was somebody that looked like me. Page 51 November 30, 1995 CHAIRPERSON ALLEN: With that, we'll adjourn. ***** There being no further business for the Good of the County, the meeting was adjourned by Order of the Chair at 10:53 a.m. ~~mr BOARD JIM ALLEN, CHAIRPERSON TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING BY: Shelly Semmler Page 52