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CEB Minutes 06/14/1996 1996 Code Enforcement Board June 14, 1996 June 14, 1996 - -- -- -~C~.> --~ --. ---- TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY CODE ENFORCEMENT BOARD NAPLES, FLORIDA, June 14, 1996 LET IT BE REMEMBERED, that the Code Enforcement Board in and for the County of Collier, having conducted business herein, met on this date at 8:37 a.m. in SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRPERSON: VICE CHAIRPERSON: M. Jean Rawson Mireya Louviere Charles M. Andrews James D. Allen Celia E. Deifik Louis F. Laforet Richard McCormick ~LSO PRESENT: Ramiro Manalich, Chief Assistant County Attorney Shirley Jean McEachern, Assistant County Attorney Marjorie M. Student, Assistant County Attorney Kim Patrick Kobza, Attorney to the Code Enforcement Board Catherine E. Kidon, Attorney to the Code Enforcement Board Maria E. Cruz, Code Enforcement Linda Sullivan, Code Enforcement "'0 Page 1 JUN-11-'96 TUE 15:31 ID:COMPLRNCE SERVICES TEL NO:94~ 64~-8~45 ~406 P02 JUN-11-1996 11:05 TREISER KOBZ~ VOLPE P.02 ::=--4_ COLLIER COUNTY, FLORIDA CODEENFOkCEMmNTBOARD ~ Date: June 14, 1996 at 8:30 A.M. LoeadoD: Collier CO\Jl1ty Government Center Administration BuildiDs, Third Floor NOTE:ANY PERSON WHO DECIDES TO APPBAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERT AININO THEa'ETo. AND THEREFORE MAY NEED TO ENSURE THAT A VBRBATIM RECORD OF TIm PROCEEDINGS IS MADE, WHICH RECORD INCLUDES nTE TESTIMONY AND EVIDENCE UPON WHICH lliE APPEAL IS TO BE BASED. NBITHER COLLIER COUNTY NOR THE CODE ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. 1. ~~imi~ MAttMI ... 1. Roll Call ~ 3. ""WlOval of ~~tI. of. Approval Q(~"tes 5. Public Hearinsrli A. Board of County Commissioncn, Collier Count)' I Florida VI. Pacific Landco and Pacific Lmd Company eEB No. 96-010 (1) Hcarins on Motions 6. New Bmli"lI'!!IC "'0 7. Old BUaWl1 8. Rel'orts ,. Next M-nnl Date: June 27. 1996 10. Adtaum TCT~L P.eJ:! June 14, 1996 - _- _- o~---J'> --~ -- - -~- CHAIRPERSON RAWSON: All the attorneys are all ready? ~ollier County Code Enforcement Board will come to order. Let's have the roll call starting at my left. MR. MCCORMICK: Richard McCormick. MR. LAFORET: Louis Laforet. MS. DEIFIK: Celia Deifik. CHAIRPERSON RAWSON: Jean Rawson. MR. ALLEN: Jim Allen. MR. ANDREWS: Charlie Andrews. CHAIRPERSON RAWSON: I'm not sure we -- from the last meeting. Maybe not. Probably until the regular-scheduled board meeting to everybody got an agenda? MR. ANDREWS: I don't know. You've got so much paper here. MR. MCCORMICK: No. I don't think so. CHAIRPERSON RAWSON: Okay. Maybe we don't have an agenda. That's okay. We -- We are here basically because there are two motions that have been filed by the various participants in this action, and we need to probably deal with those respective motions. (Ms. Louviere entered the board room.) CHAIRPERSON RAWSON: The first motion that it's my opinion that we should deal with is the motion to dismiss, because if we deal with the motion to dismiss, depending on its outcome, the second motion mayor may not be necessary; therefore, it seems to me -- and I'll ask my attorney for his opinion -- that we probably should begin with the motion to dismiss. MR. KOBZA: Madam Chairman, certainly the board has discretion to take the motions in either order. Taking the motion to dismiss first is perfectly appropriate so -- CHAIRPERSON RAWSON: Thank you. In that case, we would entertain the motion -- Let me correctly phrase this. It's the amended motion to dismiss for failure to join indispensable parties, and it has been filed by Katherine English who is present here today, and it was submitted to us on the 11th day of June, 1996. So without further ado, I'll ask Ms. English to address the board. MS. ENGLISH: Good morning, members of the board. My name is Katherine English. I am here this morning on behalf of Pacific Land Company to ask you to dismiss the current action before you for failure to join indispensable parties; namely, the Independent Traditional Seminole Nation. Under Florida law an indispensable party is one whose interest in the subject matter is such that if he is not joined, a complete and efficient determination of the rights and equities between the parties is not possible. I submit to you that under these'" circumstances -- that under the circumstances I'm going to talk with you about, that the Independent Traditional Seminole Nations are an indispensable party to this action because they have rights to the property that is the subject to this action -- subject of this action. There's a lease dated nineteen eighty -- April 21, 1987, between Pacific Land Company and Frank Billie as the representative of the Independent Traditional Seminole Nation, and if you look at that lease, it's a very, very simple document. There's not a lot to it, and the reason there isn't a lot to it was that lease was executed to we have minutes not yet. We'll wait approve our minutes. Has Page 2 June 14, 1996 .> ---- ~Z-4._r please partners in Pacific Land Company who had not a history of dealing with the Independent Traditional Seminoles. This lease is not a lease between strangers but a lease between friends. Five or six decades ago, an English and a Billie met and became friends, and the details of how that friendship began and how it developed are lost, but we do know that at this point it has evolved into a relationship between two families, a friendship between the English family and the Billie family. In the early 1980s, Pacific Land Company acquired property on 858 in Collier County, and about the same time the Independent Traditional Seminoles came to live where they do now under an oral lease with Ed English who was at that time, and continues to be, the managing partner of Pacific Land Company. Several years later, because of the structure of Pacific Land Company, a written lease was executed, and that written lease says that there is a right or the Independent -- excuse me. Frank Billie, as the representative of the Independent Traditional Seminole Nation, has the right to the property described in the lease for residential use. But as a history, a member of the Billie family and a member of the English family had always discussed the lease agreement, and the lease was always for the same amount, a dollar a year, and it was always on the basis that the Billies came when they chose, they lived on property owned or controlled by the Englishes, and they left when they chose subject to the terms of the lease. So when you look at the current document, you have to look at it in the context of the history that that it came from. I have an affidavit for you today that was executed by Ed English talking about what he understood the contract to be, and I'd like to give it -- submit it to you now, if I may. MS. MCEACHERN: Madam Chairman, we object on the basis that that's hearsay. MR. ANDREWS: I can't hear you. Speak into the speaker. MS. MCEACHERN: On behalf of the petitioner, I'm Shirley Jean McEachern, and we object to the board seeing this on the basis that it's hearsay. It's not subject to any kind of cross-examination, and we object to the board even considering it. CHAIRPERSON RAWSON: Tell me exactly what you want us to look at, Ms. English. MS. ENGLISH: What I want you to look at is the lease and the affidavit from Ed English which describes the lease and further describes his understanding of the lease and the terms in it when it was executed. Under Chapter Under section one sixty -- 162, it specifically says, The rules of evidence shall not apply. So hearsay is not a bar here. Further, the board has the opportunity to rely on anything that a reasonable person would rely on in making a decision here. Further, the parol evidence rule here does not apply. You can look at extrinsic evidence to explain a specific term without changing that term in the document. That is all this affidavit is intended to do. "'0 MS. MCEACHERN: Madam Chairman, may I respond? CHAIRPERSON RAWSON: Yes. MS. MCEACHERN: With regard to the parol evidence rule which states that when you have a written document, a contract, which Page 3 June 14, 1996 - - ~=--~- this lease is a contract, that unless there is an ambiguity on the face of that lease, that no evidence outside that lease as to its intent is admissible. The parol evidence rule is not a rule of evidence. It is a rule of substantive law; and, therefore, it is binding in the State of Florida, before the Code Enforcement Board, and all across the nation. CHAIRPERSON RAWSON: Let me just say this. We've all seen the lease because it was attached to the motion to dismiss. MS. ENGLISH: Yes, ma'am. CHAIRPERSON RAWSON: And so I don't really think that's We don't need to argue about that because we've all read it. The other thing is the affidavit -- which apparently is his interpretation of what the lease was? MS. ENGLISH: No. It is his understanding of what the lease was doing at the time that he executed it. A lease agreement is like any other contract; you have -- it has to be construed to give effect to the intent of the parties. I'm not trying to change the terms. I'm just trying to explain to you what the intent of the parties were, specifically Pacific Land Company when it granted this leasehold interest. CHAIRPERSON RAWSON: Has this affidavit been shown to the county attorney? MS. ENGLISH: No. I just got it yesterday. I'm happy to submit it to the county attorney. CHAIRPERSON RAWSON: Is the declarant unable unavailable to testify before this board? MS. ENGLISH: Today he is. He will be here on the 27th. CHAIRPERSON RAWSON: Do you have a recommendation for the board, Mr. Kobza? MR. KOBZA: Madam Chairman, Miss English has properly stated the law of procedure before the board. Chapter 162 and the ordinance, county ordinance, allows you the discretion to review virtually anything that could reasonably be important to your decision. So formal -- formal rules of evidence don't necessarily apply in this proceeding. So if in your discretion you believe this is something that you can reasonably consider, in -- in that consideration, you can consider the ability of cross-examination or the inability of cross-examination and the fact that the declarant will be here at some later hearing so -- CHAIRPERSON RAWSON: I'm aware of the fact that the ordinance says that we can't -- we can't have irrelevant, immaterial, or unduly repetitious evidence, but I know the rules of evidence don't apply, and we give latitude. And basically what we've done in the past is we let a lot of things in that are, in fact, hearsay, and we .,. then sift and weigh the evidence and determine what our decision would 0 be. It would be my feeling that we should probably review your affidavit, but understand that it's hearsay evidence and that it can't -- We aren't going to have any cross-examination on it, at least not until the 27th, and then we have to decide as a board what weight to give it, but I don't want to do that unless you share that with the county attorney's office. MR. MANALICH: Just for the record, I will clarify that the fax we received on the 13th did have the affidavit attached, so we Page 4 June 14, 1996 - -- -- -c~~ --~ --- ---- have -- we have seen this. CHAIRPERSON RAWSON: I would like to ask my attorney if I need to take a vote on this matter. MR. KOBZA: I don't believe that you do, Madam Chairman, based upon your historical -- you know, your historical practice. CHAIRPERSON RAWSON: Well, let me ask the board this. Does anybody have any objections to us looking at this piece of paper? MR. MCCORMICK: I think we should look at it since Mr. English is one of the alleged violators. I'd like to hear what he has to say, and it's unfortunate he can't be here today, but I'd like to read his affidavit. MS. LOUVIERE: When will Mr. English be present to speak to us? MS. ENGLISH: public hearing. MS. LOUVIERE: see us on the 27th? MS. ENGLISH: You certainly can and -- but it is -- this is a matter relevant to the issues I've brought before you today and the request that I brought before you today. MS. LOUVIERE: Basically we're going to read an affidavit of what he's going to tell us or the -- I mean, the lease. We've already read the lease. I really don't we need to look at it. We'll talk to Mr. English when he 27th. MS. ENGLISH: I understand, but the terms of the lease -- what -- that lease needs to be given the intent that the parties had when you read it, and I think that this affidavit is important to help explain that. CHAIRPERSON RAWSON: Well, it would -- MS. MCEACHERN: Madam - - Madam Chairman. CHAIRPERSON RAWSON: Yes? MS. MCEACHERN: We would like to add to our objection to say that we were unaware that this was to be an evidentiary hearing, and we object on that baSis as well because she's offering -- counsel's offering evidence. CHAIRPERSON RAWSON: Well, no. I don't really think I'm going to call this evidence. Basically what she's offering us is an affidavit to read. We've already read the lease. It was attached to the motion to dismiss. And I don't construe this to be, in the legal sense of the term, evidence. And I am aware of the fact that you're not able to cross-examine an affidavit, you know, but this board in the past has always looked at all kinds of documents that are probably technically classified as hearsay. We can then read it or not read it. If you don't want to look at it, you don't have to look at it. If some of the board wants to look at it, we can then decide how much weight, if any, to give it. I am not unaware of your problem but -- so we don't -- I don't consider this to be technically evidence and technically testimony, if that helps. MR. LAFORET: Could I ask the counsel a question, please? By offering this affidavit, to the effect of the gentleman's understanding of the lease, are you saying that the lease is invalid because it does not mention MS. ENGLISH: No, sir, I am not. I am saying that that On the 27th of the regularly scheduled Why can't we talk to him when he comes to explaining even see why comes on the "'0 Page 5 June 14, 1996 __o~c~.> ~ ------ lease is valid. I'm saying that that lease is valid as to the Independent Traditional Seminole Nation and their rights to that leasehold. That's what I am saying. MR. LAFORET: You're stating that the lease is a valid one? MS. ENGLISH: Yes, sir. MR. LAFORET: And at the same time, you're trying to take an exception to the lease. MS. ENGLISH: No, sir, I am not trying to take an exception to the lease. I am trying to explain the intent of the parties in executing that lease. That is all. I am not trying to make an exception. MR. LAFORET: You spoke in favor of accepting it? CHAIRPERSON RAWSON: Well, I think -- MR. LAFORET: I'm not in favor of accepting it. CHAIRPERSON RAWSON: Okay. When I say accepting it, all I'm saying is that we'll look at it. That doesn't mean that we're accepting it as evidence. MR. LAFORET: All right. CHAIRPERSON RAWSON: I think that we have to be very clear that the formal rules of evidence really don't apply, but the fundamental due process rights do, and in the past we've always looked at almost anything anybody has ever given us and let almost anybody say what they wanted to say to us, and then we shift and sift that evidence and decide whether it has any value. And if any member of this board chooses not to read that affidavit, that's fine. If others choose to read it, that's fine too. And then you can decide what weight, if any, to give it basically. So why don't you pass us out an affidavit, and then I want to give the county attorney's office an opportunity to comment on this affidavit after we've had an opportunity to read it. . MR. ANDREWS: I'd like -- I'd like to ask our -- our attorney a question. Kim, if the affidavit is valid -- determined that it is valid, what has that got to do with our position as -- as a Code Enforcement Board for a county violation, Collier County violation? What has that got to do with it? MR. KOBZA: Mr. Andrews, going -- going ahead for one moment to what my -- I want to be a little careful here in the sense that I want to make sure the parties have the opportunity to present their legal arguments before we provide you with our advice. MR. ANDREWS: Okay. I'll -- I'll -- I'll bring it up later. Thank you. CHAIRPERSON RAWSON: Mr. Manalich -- or either one of you, would you like to make a comment to the board about the affidavit? I want to give you an opportunity to say whatever you want'" to say before we continue with Ms. English's argument. MS. MCEACHERN: Shirley Jean McEachern on behalf of the petitioner. The lease under review is clearly an unambiguous lease between Pacific Land Company and Frank Billie. Counsel for Pacific Land Company is seeking to rewrite the terms of this lease by first and foremost rewriting who the contracting parties are. Frank Billie on the face of that lease is signing as Frank Billie, Senior. There's no indication on the face of that lease that he is signing in a representative capacity. I ask this board to compare the -- the -- Page 6 June 14, 1996 -- -~,~.> --~ -- - --- the -- the way that Pacific Land Company has executed this lease. ~learly and unambiguously Pacific Land Company is signing in a representative capacity. The lease speaks for itself, and clearly and unambiguously this is a lease between Frank Billie in his individual capacity. There's no indication on the face of that lease anywhere -- there's no mention of Indian, Native American, village residents, Independent Traditional Seminole Nation nowhere. The purpose is for a single residential. That's it. CHAIRPERSON RAWSON: Any response -- MS. MCEACHERN: And -- And to rewrite this -- CHAIRPERSON RAWSON: I'm sorry. MS. MCEACHERN: -- is -- it is rewriting the terms of this lease, and it's rewriting who the parties are to this lease. The parol evidence rule is not a rule of evidence. It is a rule of substantive law, and that is a very big distinction before this board because -- yes, civil rules of evidence do not necessarily apply, but we cannot ignore what substantive law is, and the parol evidence rule is a substantive piece of law that is binding. CHAIRPERSON RAWSON: You know, I know -- I know exactly what you're talking about and so does my colleague to my left, but some of this board might not. So could I ask you to explain to them substantive evidence and the parol evidence rule so that they might be on the same wavelength. MS. MCEACHERN: I'll try to do my best. Rules of evidence tells boards and courts and lawyers the things that they can and cannot enter into evidence. Substantive laws are -- Statutes are substantive laws. We also have what's called a common law which is law that's not necessarily put forth in our -- our statute, so it's not the black letter law but it's common law. The parol evidence rule is a very, very, very old piece of law from beginning back in -- across the continent, and it states that when you have a written document that is clear and unambiguous on its face so you have to look at the four corners of that document, you cannot allow any other extraneous evidence in as counsel is trying to do here to show the intent. The document speaks for itself. It is a culmination of the parties' intent, and clearly and unambiguously the intent of the parties was that it was between Frank Billie and Pacific Land Company. And if -- if Frank Billie had been -- if the intent was to sign in a representative capacity, then why would Pacific Land Company sign in a representative capacity and Frank Billie didn't? MS. DEIFIK: What you're -- What you're basically trying to say is that there's a distinction between substantive law, that rules are obligations, and procedural law or procedural rules that determine how we're going to go about getting there? MS. MCEACHERN: (Nodding head.) MS. DEIFIK: Thank you. CHAIRPERSON RAWSON: Do you have a response? MR. LAFORET: Madam Chairman. CHAIRPERSON RAWSON: I'm sorry. Do you have a question? MR. LAFORET: Yes. The third to last paragraph of this affidavit states that the representative, Pacific Land Company, did not retain the right to enter the land without the permission of the Independent Traditional Seminoles. MS. LOUVIERE: There's-- "'0 Page 7 June 14, 1996 _--c~.> --~ --. --- MR. LAFORET: The lease states that -- then lessee shall become tenant at sufferance, waiving all of the notice, and the lessee shall be enti -- the lessor shall be entitled immediately to reenter and take possession of the premises. MS. ENGLISH: That is only in the event that there is a -- MR. LAFORET: respect. CHAIRPERSON RAWSON: Well, let -- let's do this so we can move on because we've looked at the affidavit, and we have the right to give it whatever weight and listen to the arguments about the affidavit, and we've heard an argument from the county attorney and their position about this affidavit and what weight we should give to it. Let me give Miss English a chance to respond to their argument, and then we'll move on with the motion to dismiss. MS. ENGLISH: My response to the county is -- and to you, is that any contract must be viewed in context. I provided you with that context, and I ask that you look at the document in that context. CHAIRPERSON RAWSON: Thank you. Why don't you proceed with your motion to dismiss. MS. ENGLISH: A lease divides rights to property. For everybody that owns property, there's a bundle of rights, and what a lease does is divide that bundle. As a landowner, where you give a lease, you retain very few rights. You retain the right to legal title, you retain the right to the paYment of rents, and you retain the right to gain possession of that property when the lease is ended. It's a small bundle. All of the present possessory rights in this instance went to the tenant, whether it's Frank Billie or the Independent Traditional Seminole Nation, and that bundle of rights was the present possession of that land, the use of that land, the occupation of that land, and the control of that land. Since that lease was executed, the Independent Traditional Seminole Nation has occupied that land, has used that land, had their homes on that land, and control the access to that property. In your own lee-- in your own notice of hearing packet, there's a picture that shows a gate with a lock on it. Pacific doesn't have the key to that gate. Further, there's a sign on that gate that says, For authorization, contact Mr. Billie, not Ed English. The people who have the control of that property is not Pacific Land Company. Pacific Land Company has the rights. They hold the legal title. They have the right to paYment of $1 a year, and they have the right to get the property back when the lease is over. It's a little bitty bundle and that little bitty bundle that you've got in front of you with the notice of hearing packet that you got from the code enforcement staff -- you've got this great big bundle of rights over here that belong to the Billies that aren't in front of you. The liability section of the Land Development Code, section 1.9.7, talks about who is liable for a violation of your codes, and there are three people listed, an owner -- and it doesn't say whether it's the owner of the land or the owner of the property that's violating your code; a tenant -- and it doesn't say that it's the tenant as a tenant by the entirety or someone who holds the land, I believe this document is flawed in a "'0 Page 8 June 14, 1996 _- - c~.> --~ --.- ---- a tenant; a renter or an occupant. Well, you've got one owner in here; that's Pacific. Regardless of how you view the lease, you have a tenant, Frank Billie, who is nowhere involved in this process. Further, even if you think that the individual -- excuse me -- the Independent Traditional Seminole Nation doesn't have any rights under the lease, they are an occupant of that property. So when you look at the liability section, the liability section will pull in the whole bundle of rights, but the only bundle that you've got is the little one over here that belongs to Pacific. Finally, you are imposing a penal -- If you find a violation you will impose a penalty, and to enforce that penalty, the only person that you can proceed against is Pacific Land Company who doesn't control that property and can't fix the violation if you find one. South Dade Farms versus Peters was a case decided many years ago by the Florida Supreme Court that said unless you had the tenants before the judicial authority, you couldn't bind them to the order of the Court, and in that instance it dealt with a farm lease. South Dade Farms was sued by a tenant. Prior to the time the judge issued an injunction barring farming of potatoes on that land, South Dade executed six leases, and those six tenants went and farmed potatoes. The judge issued an order finding them in contempt. The Florida Supreme Court said to that judge, he didn't have jurisdiction over those people. They weren't in front of you. You didn't determine their rights under the lease, you didn't determine their responsibilities, and you can't bind them to your order. Because of the liability and because of the penalty and oecause of the enforcement issues I've brought before you today, I am requesting that you dismiss the cause of action before you for failure to join an indispensable party in this action which is the Independent Traditional Seminole Nation. Thank you. CHAIRPERSON RAWSON: Thank you. Response from the county? MS. MCEACHERN: Good morning. I'm Shirley Jean McEachern, assistant county attorney, here on behalf of the petitioner which is Collier County. The county has already stated its objection to admitting and considering the affidavit that's been submitted by counsel. I'd like to read to the Court -- to the Code Enforcement Board what the parol evidence is, and I'm reading from the restatement, and it says, More simply stated, the contract made by the parties supersedes tentative terms discussed in earlier negotiations; consequently, in determining the content of the contract, the earlier tentative agreements and negotiations are irrelevant. We are not here to determine terms of any lease. We are not enforcing any rights or liabilities under any lease here; therefore, the South Dade case that counsel has submitted was a case that was determining the rights and liabilities pursuant to a lease. That is not what we're doing today. Attorney General opinions that are cited in our memorandum of law state, In order to determine who the violator is, you look at what the purported alleged violation is. That violation is a failure to obtain building permits. When you look under the code, the code says, first of all, who is -- the question -- who who is charged with compliance. Under the code it says it's the "'0 Page 9 June 14, 1996 - - c....-> ~--~ ~ ---. ----- owner -- MS. ENGLISH: I object. This is not the evidentiary hearing. This is simply a hearing on a motion to dismiss. It's a jurisdictional matter, not an evidence matter. CHAIRPERSON RAWSON: This is only on the motion to dismiss; that's true. This is not an evidentiary hearing, and we're not going to get into the evidence, and we're not going to decide whether there's been a violation of the code today. We're only going to decide whether or not your motion is going to be granted or denied. So your point is well taken, but I'm not going to, you know, stop counsel from saying whatever she wants to say either. MS. MCEACHERN: Furthermore, I don't understand what the objection is. Counsel, I think, has waived that objection herself because she was the first to present evidence before this board by presenting her affidavit -- CHAIRPERSON RAWSON: Well, I'm going to let you say -- MS. MCEACHERN: -- and I don't know what her objection is really directed to. I just was referring to the codes. CHAIRPERSON RAWSON: Well, in -- in terms of the rules of evidence, you know, it's not a sustainable objection, but I'm going to let you say whatever you say, so go right ahead. MS. MCEACHERN: Under the codes of Collier County, the person or entity charged with compliance would be the owner, authorized agent, or contractor. So we go back to the time before these structures were built. We had raw land. Is it reasonable to say that -- Who was the owner? What owner? The only owner at that time was the landowner. There was no owner of a building. It was raw land. And these structures are made out of palm fronds, cypress, pieces that the Indians themselves have said belonged to the creator. They come from the land. They come from the natures. The -- The person or entity charged with compliance is, indeed, the landowner. . If we look at Florida Statute Chapter 162.09 which is the fine and the lien and the enforcement procedure under -- for the Code Enforcement Board, in clear and unambiguous terms that statute says that if a fine is imposed, that it shall become a lien upon the land upon which the violation exists. So, first and foremost, it is the landowner who is the entity to be charged with compliance. The county's position is very strong about this lease, that it is not between the Independent Traditional Seminole Nation because it is between the landowner and Frank Billie. I -- I agree with counsel that there are a certain bundle of rights that a landowner has which includes control over that land. The Independent Traditional Seminole Nation, not having a written lease with the landowner, are nothing more than tenants at will, and that landowner today could tell those possessors of his property -- of the small piece of property to leave,~ and he would be -- have full legal right to do that and we recognize that -- I think it's Chapter 86 of the Florida Statutes has -- even in the case of a tenant at will, there's still some notice requirements, and I think it might even be 60 days. I'm not sure about that. But that landowner today could tell those Indians to leave, and that would be his full legal and enforceable right. Furthermore, the owner, Pacific Land Company, is the entity to be charged with compliance because the entity or the person who is charged with enforcing and interpreting the code is the Page 10 June 14, 1996 :: =--~~~ , -~- director of deve -- of community services and the building official for Collier County, and they will tell you that -- especially in a case of raw land where a structure is going to be built, it requires what the code says, the owner, the authorized agent, or the contractor. We have yet to learn that the Indians have been the authorized agent of the landowner. That lease does not say that, and I challenge counsel to tell me, tell the county where in that lease it says that because it doesn't. The -- The code inspector, David Hedrich, will testify and tell you that one year ago there was no gate to those premises. So for the nine -- eight, nine years, ten years that they alleged to have been there, there was no gate, and there was no key. Our position is that the landowner had full rights to enter those premises. Furthermore, the -- the violation states that it is a failure to obtain building permits as required by the Land Development Code and other regulatory codes of Collier County. Under the housing code, the housing code does define owner; and that is, "owner" means the holder of the title and fee simple and any person in whose name tax bills on the property are issued. The evidence will establish that the owner of this property showing on the tax bills is, indeed, the respondents, and they are the proper party to be charged. And, finally, and perhaps most importantly, the county's position is that this board has no jurisdiction to even determine the issue of who is and who is not an indispensable party. The function of this board, the power and authority that is vested in it pursuant to Florida Legislature and pursuant to the Board of County Commissioners and enacting the -- the applicable ordinance is that this board must determine if there is a violation based upon the facts and the evidence presented to it. CHAIRPERSON RAWSON: Thank you. MR. MCCORMICK: I have a question of the -- CHAIRPERSON RAWSON: Yes. MR. MCCORMICK: -- county attorney or Code Enforcement Board. I haven't been on this board a real long time, but we have had cases -- well, we've always cited the owner as the violator, and we've always looked at the owner first, but there have been times where a tenant was included, and we considered what the situation was. What's the difference here primarily? What-- MS. MCEACHERN: In this situation -- and each case needs to be judged on its own facts, and -- and the county is not saying that in every instance it's going to be only the landowner. But in this particular instance, we have to remember that initially we were dealing with raw land or farmland. There was not a structure on .,. there, and the county does have evidence to establish that. And so when -- The time for compliance under the code was when these structures were initially going to be built from raw materials, and so that would have been the landowner. There was no building, so there could never have been an owner of the building. It was raw land. And because the owner -- Because these are tenants at will and the owner still has all its bundles of rights, the owner has full control. The owner can, indeed, today correct and come into compliance by simply saying leave. Page 11 June 14, 1996 -- ::=-~-' MR. MCCORMICK: Okay. So it's the time-line of this case especially that you're basing your -- your argument on or one part of it -- MS. MCEACHERN: Yes. Yes. MR. MCCORMICK: -- the way I understood it. Okay. Thank you. CHAIRPERSON RAWSON: Would you like to have a response? MS. ENGLISH: Yes, ma'am. Very briefly. The definition of owner that I found was a little different. It says it could be an owner of land or owner of a building. Pacific leased raw land. They didn't build the buildings. They don't live in the buildings. They're not their homes. The homes -- Those chickees were built by Seminoles to be their homes, not Pacific. Pacific treats that land as if there's a lease on it. Even if there's not a lease as to the Independent Traditional Seminole Nation, there is a lease as to Frank Billie, and he has the rights under that lease. Pacific doesn't have the possessory rights. It was the responsibility of the owner of the building to obtain a permit if one, in fact, was required, and I'm not addressing that question. If a permit was required, it was the owner of the building. Under the county's interpretation, you'll never have another land lease in this county where someone rents land and someone else builds a mall or a grocery store or something else on it. Thank you. CHAIRPERSON RAWSON: Does anybody have anything else to say about the motion to dismiss before the board starts its discussion on the motion to dismiss? MR. KOBZA: Madam Chairman. CHAIRPERSON RAWSON: Yes? MR. KOBZA: Can I -- CHAIRPERSON RAWSON: Yes. MR. KOBZA: -- advise the board? We have very carefully reviewed the briefs of the parties, and we have very carefully reviewed the law on this motion. It's our opinion that this board is a creature of statute. You can only do what the statute, Chapter 162, and the ordinance allows you to do. Okay. And in saying that, you can only answer the questions which you are asked to answer. You can't expand the questions. You can't change the questions. You can't rephrase the question. You can only answer that question which you are asked. In this case you have been asked a question which is, is Pacific Land Company in violation is it a violator in violation of the county's ordinances. That is the subject matter of this dispute. You can't change that question. You have no authority to do that. Now, if the county is unable to -- if -- If this board would have -- If they do eventually -- or if you should for any reason find that there exists a violation and if the county is unable to enforce that determination because they have failed to join a party that should have been joined, that is a disability that they will suffer in a circuit court proceeding, but that is not something that today this board can address. Okay. Now, having said that, I believe that as a matter of law you should deny the motion to dismiss because the board cannot compel the county to posture how a matter appears before you. It is the same .,. Page 12 June 14, 1996 -- - c~~ --~ I --- --- logic and the same advice that I will provide to the board in terms of, for instance, other types of arguments, constitutional arguments. The board cannot expand its jurisdiction. The board cannot find on a constitutional basis that the ordinances are improper. You take the ordinances as they come to you. It's the county board that changes the ordinances, not this board. Okay. So you have a very narrow question before you, and the question of what constitutes a violation or who is an appropriate violator is a question which we call the question of mixed law and fact, and that type of a question should be decided by this board at the hearing on the 27th, and it will be the county's responsibility at that hearing to carry a burden of proof to show and demonstrate to you that Pacific Land Company is a violator and that there are violations of the ordinance, and they have to carry that burden at the time of that hearing, but that's not today's question. Today's question for purposes of -- does this board have authority to dismiss the original question presented to it. No. The board doesn't have authority under either Chapter 162 or the ordinance by its terms and I very -- There are a number of Attorney General opinions directly on that point, and I'm going to be consistent with the Attorney General since that's the advice that we've been provided. That's the best guidance we have. CHAIRPERSON RAWSON: Thank you, Mr. Kobza. And I -- I really appreciate the fact that we have our own attorneys to advise us. I've done a little research on my own, and I know that the Florida Rules of Civil Procedure do not apply to the Collier County Code Enforcement Board. And -- And while we might wish that we had the power of the Supreme Court of the United States, especially us attorneys up here, we don't. We only have the power that the statute gives us, and we can't exceed our power. If we do, it's error, and I don't want this board to commit an error. And -- And while I'm willing to entertain any kind of arguments anybody wants to make and I'm willing to let anybody say what they want to say, you have to understand that we have very limited powers here, very limited; and, therefore, I really appreciate the opinion of our attorney. Now we need to have discussion on a motion to dismiss the county's complaint for failure to name an indispensable party. Any board member want to have anything to say? MR. MCCORMICK: I thought Mr. Kobza's advice was very clear to us. CHAIRPERSON RAWSON: Do I hear a motion? MR. ALLEN: I'll make a motion to deny dismissal. MR. ANDREWS: I'll second the motion. CHAIRPERSON RAWSON: Any discussion? Been moved and seconded that we deny the amended motion to dismiss for failure to join indispensable parties because we don' t "'0 have the power to do that, just so everybody knows. All in favor, please signify by saying aye. Any opposed? Let's move on to the next motion which is actually not a motion. It's a notice of intent to participate. MS. BELFLOWER: Good morning, board members. My name is Laura Belflower from the law firm of Holland and Knight. It's a pleasure to be here in person. Holland and Knight is representing the Independent Traditional Seminole Nation and the members of that group Page 13 June 14, 1996 - - ~z4_< that live on this property in the village. We are involved in this issue because it is an important issue and because there are significant risks to their rights, and Holland and Knight is proud to be able to provide their legal voice in this matter. On May 29 we provided to the board our notice of intent to participate. As has been noted already here, this board does not have to follow the rules of civil procedure or the Administrative Procedures Act, and you all do not have a motion practice or any rules governing them or whatever. So the suggested motion to intervene was not something that we were comfortable with knowing what that meant. So we provide -- provided you notice that -- that we felt we had a right to participate and that we would like the opportunity to participate, that we feel that we have that right. The county is correct in the brief that they submitted this week -- and I think it has been stated several times here -- that we are not asking to be a party. Mr. Kobza has advised you that you are without authority to now add us as a party. The county, for whatever reason, chose not to include us as a party. The county is not correct, though, in the brief that they submitted to this board this week that we had only asked to participate as a member of the public. That is a totally inaccurate statement. We are asking the board to allow the Traditional Seminole Nation, the village residents on this property to participate fully in this hearing to the same degree that a party is allowed to participate because we have significant rights on that property that need to be protected. We need to protect their rights, we need to protect their property, and we should be allowed to participate because it's fair and it's right. The people that live on this property, as has been said, are members of the Independent Traditional Seminole Nation which is a group that are the descendants from the original Seminoles in this area. They are a group that have not joined those that are on the reservations. They have always held themselves out to be independent and to maintain their traditional rights and traditional ways of life. They live in scattered villages around South Florida, many of them on private property under agreements, both written and oral, such as the one that this group has with the English family. They live in a manner which maintains their traditional government, their traditional culture, language, religion, and way of life. The arrangement of the villages -- and I don't know if any of you all have -- have been to the village or seen pictures of it, but the chickees that they live in are arranged in a certain way. The entire structure of the village is consistent with a tradition that they have practiced for hundreds of years. I have a letter and I hope that the board -- that the county does not object. I have copies for everyone. It is a letter ~ from Mr. Danny Billie, who is here today to testify and if they want to cross-examine him, talking about their ownership of the buildings and the control they exert over those buildings. If I might provide this to the board -- CHAIRPERSON RAWSON: Is there a comment from the county attorney's office if the board looks at the letter from Mr. Billie? Mr. Billie is available, and after you read the letter, if you want to ask Mr. Billie any questions about the letter, I'll be happy for you to do that. Page 14 June 14, 1996 ~ - .~~-> _~_c MS. MCEACHERN: Again, I'm Shirley Jean McEachern on behalf of the petitioner. The petitioner is surprised that this is coming forward at such a late date but we -- you know, we'd like to look at it first and then be able to give the board our opinion. CHAIRPERSON RAWSON: Fine. MS. MCEACHERN: The petitioner has read the letter. We do not feel the purpose of today's hearing was to be an evidentiary hearing. CHAIRPERSON RAWSON: I would agree with that. MS. MCEACHERN: Okay. Thank you. We, therefore, would like to preserve our objection to entry of this letter and I think preserve it for consideration at the actual hearing on the 27th because in it there are conclusions that we feel are conclusions of law set forth in here as to who has the right to control. Just because somebody says they have the right to control, in the eyes of the law that may not be so and -- so we'd like to further, you know, discuss it and save it for the 27th. CHAIRPERSON RAWSON: Response? MS. BELFLOWER: If I might -- Yes. CHAIRPERSON RAWSON: Yes. MS. BELFLOWER: This is -- Our burden at this hearing is to establish that we have property rights and what we need to do to establish that we have a property right that is due due process. Whatever we have to do to establish that, I felt that we had the right to do that. I don't think there are mixed questions of -- of fact and law in this. It is a statement of their position of their rights, and -- and it is essential to establishing one of the property rights that -- that they have on this property. CHAIRPERSON RAWSON: Yes, ma'am? MS. MCEACHERN: Madam Chairman, the petitioner recognizes and acknowledges that the Independent Traditional Seminole Nation are on these lands. That's not the issue. In reading the notice of intent that was submitted by Holland and Knight on behalf of the Independent Traditional Seminole Nation, nowhere in there do they ask to be a party. Their right to -- what they -- it appears -- the way that we have interpreted is that they are asking to have all the benefits of being a party, the ability to litigate, to interrogate, to present evidence, to conduct cross-examination, direct examination, to attempt to impeach, and yet they don't take on the risk of being a party which is being subject to binding orders of this board and any enforcement proceedings thereafter. So the county is very, very strong in its feeling that -- and we feel that what we have cited in our memorandum of law is correct, that we are governed by Chapter 286, the Sunshine law of the State of Florida, which means it's government .,.- in the Sunshine -- MS. BELFLOWER: Madam Chairman, can -- can I finish my presentation? MS. DEIFIK: Can she finish what she's saying? MS. BELFLOWER: It has nothing to do with this petition. I mean, I'm not finished my presentation. CHAIRPERSON RAWSON: I -- I understand. Your objection to the letter being introduced at this time basically is what you're telling me? MS. MCEACHERN: Yes. And we do acknowledge that they Page 15 June 14, 1996 - --~~ ~ -:.. - -- k ---. - - are living out there. CHAIRPERSON RAWSON: Let me ask you this so -- so we can sort of like get to the bottom line. It seems to me that it's the Independent Traditional Seminole Nation's burden to show this board that the village residents are going to be deprived of a property right, and if they are, then they have some due process. She needs to establish that. will you acknowledge that they are tenants of the land and would be deprived of a property right? Then we can probably move ahead. MS. MCEACHERN: No. CHAIRPERSON RAWSON: the land? MS. MCEACHERN: They are on the land. CHAIRPERSON RAWSON: Okay. Well, I guess we better rule tell -- Tell me again exactly what the -- this letter purports to do so the board can vote on whether or not we are going to look at it. MS. BELFLOWER: It's an explanation of who has the rights to the chickees, to control them, to use them, to enjoy them, take them down, to whatever, which are all elements of ownership. CHAIRPERSON RAWSON: Why don't you tell us in your argument who has the rights to the chickees. I think it's in your motion anyway -- MS. BELFLOWER: Yes. CHAIRPERSON RAWSON: -- and we all know who lives in the chickees, and so why don't you tell us that, and then we can independently determine whether or not their property rights mayor may not be violated in making our decision on your notice of intent, and then we can get past this letter issue. MS. BELFLOWER: Okay. CHAIRPERSON RAWSON: Because I think that we are all, you know, smart enough to know that Mr. Billie's going to say, We live in those chickees; and, therefore, you know, we have some interests here. MS. BELFLOWER: Well, at the very minimum, yes, you're correct. Basically there are several levels of property interests here. The first that we would like to establish -- and this went to that -- is that this is a -- a personal property interest. The county has tried to assert that these structures are fixtures to the land, and -- and they're asserting that as fixtures they are tied to the land and, therefore, are owned by the property owner. That totally flies in the face of -- of law and is not true in terms of the facts of the situation. First of all, in a fixture, permanent attachment is one of the criteria, but more important in overriding that is the intent of the parties and the intent of the parties as to whether or not the~ fixtures run with the land, whether Pacific Land Company considers that they own these chickees, which clearly they do not. And, secondly, the fact is that these structures are not permanently affixed to the land. If you look at the case law, "permanently affixedu means that there is a basement and a foundation and and and that it would cause major harm to the -- to the property to try to sever the personal property from the -- the chattel from the real property, and that's definitely not the case here. In fact, many of the chickees that are on this property were moved from the residents' They are there. Okay. You acknowledge they are on Page 16 June 14, 1996 -- -~. ., --- - ~ ~ --. - - previous village to this site. So they clearly can be moved. They ~an be transported. The structures are not permanently affixed, so chey are not fixtures. So, first of all, we have a personal property interest, and that personal property interest belongs only to those who have the right of possession, the right of control, the right to do with these structures as they wish, and that lies only in the Traditional Seminoles. Second of all, the second property interest they have in this is they have the leasehold interest. Now, we've had a discussion here already about who that lease is with. We maintain with the same position that Pacific has, that that lease was a lease between parties that knew what they were doing, knew what they were negotiating and that it -- that it is between the Traditional Seminole residents of that village and Pacific Land Company who really was with the English family, but since Pacific Land Company held the property, they signed that lease. Even if the county was misrepresentation of the -- interest with Frank Billie. He lives on that property. UNKNOWN VOICE: Brother. MS. BELFLOWER: Excuse me. Brother. He property. He is still a part of the village. leasehold interest only in Frank Billie, then is an interest that cannot be destroyed which county takes -- if the board takes the action without due process. So we -- Then the next level we have is that they are occupants of the property, occupants with permission of the landowner. They are not adverse possessors of this property. Even if the lease isn't valid, even if the lease isn't clear as to who it is, the county concedes they are occupants of the property. They are not occupants adverse, as I said before. And the argument of tenants of will can be severed at any time, that's between the two parties. The -- The term of the lease is irrelevant to this situation. They have the right to be there under a leasehold interest as well as -- as occupants. The residents of that village also have a liberty interest. We have -- I think it's four levels of property interest here. We also have a liberty interest in that they have a liberty interest in the right to maintain their traditional lifestyle and in the way that they live on this property that would be destroyed if the board takes the action the county is urging. If the county is asking this board to take only the violator, only listen to the testimony, the evidence, the material submitted from who they claim is the violator, Pacific Land Company, and the result of that will be that ito permits are not received, the village will be destroyed. The county is asking that those buildings be torn down. So all those interests that the Traditional Seminoles have would be destroyed by this board's actions. So that's why we are asking that we be allowed to participate in this. The county doesn't lose anything by allowing the Traditional Seminoles to participate. The argument that was starting to be made -- and I anticipate we will hear it further -- is that the rraditional Seminoles will not be bound by anything. Well, they won't be bound because the county chose not to bring us properly into this correct in their of the matter, there is a leasehold Frank Billie is Danny Billie's father. lives on that So if there is a that leasehold interest it would be if the the county is urging Page 17 June 14, 1996 --- --~_.> - -- - - ~ --~ ~ - process, and that's the only reason we wouldn't be bound, is because the county didn't do it that way. If this board has jurisdiction, which I do need to clarify that we are not conceding that the board has jurisdiction, and those are facts to get into on the 27th -- but if the board did have jurisdiction and the county had brought us properly into this and all of our defenses are for naught, we would be bound, but the county did not properly bring us into this. They have nothing to lose by allowing us to participate fully, and they actually have no legitimate government interest in keeping us out. I -- I think you started to ask the question earlier as to why it was done that way, and that was not answered. We have no idea of any legitimate government interest that would justify keeping us out of this process and protecting our interests. Therefore, what we're asking today is that the Traditional Seminoles be provided the opportunity -- the right to be heard in a meaningful way before you make a decision which could destroy their village, and being allowed to participate in a meaningful way means to provide all the information, all the evidence, and all the arguments necessary for you to make a just and equitable decision in this case. Thank you. CHAIRPERSON RAWSON: Thank you. I'm MR. ANDREWS: Can-- CHAIRPERSON RAWSON: -- sure there's a response and -- and, Mr. Andrews, I'll let you get your question answered. MR. ANDREWS: Okay. CHAIRPERSON RAWSON: What -- What I really would like for you to sort of hone in on with this board is -- we've all acknowledged that these chickees are occupied by the Independent Seminole Nation, and -- and earlier I asked you a question, if there's any property rights that these people have as a result of occupying. So I'd like for you to, you know, sort of hone in on that part of your argument, and tell this board why they don't have any property right that might be deprived if we don't let them speak at this meeting. MS. MCEACHERN: The petitioner's position is that the Independent Traditional Seminole Nation are what -- it's a legal term called tenants at will. They do not have a written lease with the landowner; therefore, they don't have a legal leasehold interest in the property. As tenants at will, they are there at the will and the mercy of the landowner who can ask them to leave at any time. Something else that's really important is that, you know, I hear counsel, and she's saying that the Indians have the right to control and possess, on and on, this area of land and the chickees; however, strong and -- and still law in the State of Florida is that a landowner cannot give another an illegal use of that land, and the village that is out there right now is, indeed, an illegal use of that land; and, therefore, whatever rights they claim that they have are ~ void or voidable because they are illegal uses; and, therefore, the county's position is that they have no property rights. I can't argue their case for them, so I can't answer your question and say what rights they have. That's what their counsel's position is to do. But the county's concern is we -- we do acknowledge that under the Sunshine law we're government -- in -- open government. We're open to the public. The public has a right to access to the government, to this board, and they have a right to be heard. The extent of that is in the board's discretion. The county is greatly concerned that if Page 18 June 14, 1996 - - ::~4_. they act like a party and they sound like a party, then they should be a party. On the one hand, they say that, you know, this board has no jurisdiction and then another they say, you know, we will be bound. The reason we're not bound is because the county hasn't named us as a party. Well, those are contradictory statements in my mind, and -- and the county is -- is very concerned that, you know, if in the exercise of its discretion this board determines that they can fully participate like any litigant, then they need to be made a party and -- and be bound by -- And at that time, if they are made a party, then they can argue their motion to dismiss because they feel we have no jurisdiction over them because, indeed, that would be their first motion if they had been named as a party. Under the statute and under the code, it says that this board will take evidence from the parties, not the public, but the parties, and so we're greatly concerned the extent of their participation. We do not -- do not deny them a voice, and I want to make that very, very clear, but it's -- it's -- it's the extent. And, again, I say, they want to interrogate, but do they want to be interrogated? CHAIRPERSON RAWSON: Thank you for your argument. Life would be easier for this board if they had just been named as a party, but since they weren't, then this board has to determine how much fundamental due process is due, and I guess that's going to be the board's decision. So I'm going to at this time ask my board members if they have any questions they want to ask of the various attorneys before we have a discussion and ask our attorney for an opinion. MS. DEIFIK: I have a question. CHAIRPERSON RAWSON: Yes. MS. DEIFIK: Miss Belflower -- did I pronounce that correctly? MS. BELFLOWER: That's correct. MS. DEIFIK: Okay. Who -- Do you represent Frank Billie, Senior? MS. BELFLOWER: Our representation is for the Independent Traditional Seminole Nation, specifically the members of that group that live at this village. Included in that is Frank Billie because he -- he lives at that village. MS. DEIFIK: Does anyone, to your knowledge, represent Frank Billie, Senior, in his individual capacity? MS. BELFLOWER: Not -- in -- In this matter or in this issue? MS. DEIFIK: In this matter will we be seeing someone coming in attempting to intervene on his behalf later or challenging any action we take for failure to hear his -- his side? MS. BELFLOWER: Not to my knowledge in that -- in that he doesn't have any rights necessarily different. MS. DEIFIK: Oh, I think he has some very important rights. CHAIRPERSON RAWSON: Well, he's who signed the lease. See, he's the MS. DEIFIK: Are you authorized appearances on his behalf? MS. BELFLOWER: By others? waive any appearances by others. "'0 the -- he's the person leaseholder. to waive any -- any No, I am not authorized to No. We are here on his behalf as Page 19 June 14, 1996 __0 ___~..> - - , ---. - - well as the other residents. MS. DEIFIK: All right. But you don't represent his individual interests? MS. BELFLOWER: Not severed from the others, no. MS. DEIFIK: Okay. That brings me to a question that I have of the chairman and the board. You made a statement earlier that we all acknowledge that the tenants or the persons living on this property are the Independent Traditional Seminole Nation. I have no knowledge one way or another. Has that -- and I see that it's addressed in great detail in these memorandum which I only received this morning, and I'm certainly happy to review those and give those, you know, my complete attention, but at a previous meeting perhaps when I was absent, was that issue addressed? CHAIRPERSON RAWSON: Well, yes. I mean, it's been made known to us by both sides who resides in those chickee huts in addition to which I think it's in both of their memorandums both of their briefs. MS. DEIFIK: And -- and -- And that's exactly why I raise the question. In -- In just glancing through these memorandum -- which, again, in all fairness I have not had an opportunity to sit down and read from beginning to end -- I see that the federal common law provides certain protections and rights to what is defined as or termed dependent Indian communities which are never actually clearly defined, and the writers of these memorandums seem to put a great deal of weight on whether or not the residents of this property here in Collier County come within that definition and further seem to -- to get down that road to get from A to C by saying that because they are the Independent Traditional Seminoles' communities, they there -- and that this has certain meaning, that they, therefore, come within the purview of the case law that discusses dependent Indian communities. To my knowledge, this board has never heard any argument or discussion about that. I'm not sure that we have the authority or jurisdiction to hear any argument on that issue, but I -- I just don't want us to be using terms loosely until we're certain what the impact of what those terms mean is clear to us. MS. BELFLOWER: Would it perhaps be accurate to say that the residents of the village are Seminoles and hold themselves out to be and have consistently held themselves out to be and have been recognized in other circumstances as being members of the Independent Traditional Seminole Nation? MS. DEIFIK: I have no problem with however you characterize them, and I certainly understand that they are -- are Seminoles, and I'm not disputing your definition, but I would like to ask Mr. Kobza if we have any problems or concerns because Frank Billie, Senior, is not before us nor is his legal representative. CHAIRPERSON RAWSON: It's in my understanding from what your comments were earlier when you tried to get us to read this letter and before that, that Frank Billie, Senior, is one of the residents of the chickees at this site, correct, and he is included in your representation of the Independent Nation as a whole? MS. BELFLOWER: Yes. CHAIRPERSON RAWSON: While you don't sever his relationship from the others, can you tell this board that you, in fact, are also his counsel? I mean, "'0 Page 20 June 14, 1996 -- ::~~4_~ MS. BELFLOWER: Yes. I believe that I can. CHAIRPERSON RAWSON: Okay. MS. DEIFIK: I thought I asked you that before, and you said no with regard to his rights under the lease. MS. BELFLOWER: No. I -- I can't say that there will not be someone else coming in. If -- if my client feels that they need to -- to retain a separate counsel because there might be some issue that would -- would be adverse that we couldn't fully represent both groups because of any conflict -- you know, if that is necessary for full representation on this matter, I can't say that that won't happen but -- and -- and I understand what we're dealing with, with the problem here, is that we are dealing with a -- for the lack of a better term, a western interpretation of a relationship and a situation and -- and who somebody is as an individual where the agreements and all the -- the actions that are taking place on that property are being done under a Seminole interpretation of the situation and -- and -- MS. DEIFIK: But any appellate court or circuit court reviewing our action is going to interpret them under western law. MS. BELFLOWER: I don't think so, because I think -- not fully. I agree with you. Yes, generally they would, but I think the -- the -- the point that Miss English made of the intent of the parties and -- and on the 27th it apparently will be necessary to present evidence to demonstrate Frank Billie's role at the time. He has suffered several strokes through this code enforcement time period and is no longer the spokesman for the board -- for the Seminoles in the matters of the camp. I mean, the whole structure -- I'm just barely beginning to understand it -- of -- of -- of representatives on different issues and whatever, and so we will present information to outline that relationship and -- and the understanding, you know, how all that came about. . Now, any interest that Frank Billie may have that he holds separately and that we can establish that he holds separately and beyond his representation of his people we will attempt to be sure -- you know, we may have to bring other counselor -- or some other method of representing that. I don't know at this time. CHAIRPERSON RAWSON: Thank you. Actually, I didn't mean to interrupt. You were going to ask our attorney a question. MS. LOUVIERE: I'd like to hear what he has to say. Kim. CHAIRPERSON RAWSON: You I think -- MS. DEIFIK: Well, I think I asked it. I was -- I was just concerned that we weren't inadvertently -- and not through anybody's plan -- walking into some kind of a trap that was going to spring and we were all going to be surprised. ~ MR. KOBZA: A couple of A couple of thoughts here, and I don't know if you want me to proceed into my advice to the board at this point. MS. LOUVIERE: Please do so. MR. KOBZA: Okay. This is an area that we've also looked at very, very carefully, and there's not a great deal of precedent -- any precedent in the State of Florida in the case law and -- and statutes, or whatever, that direct this board exactly how to deal with this type of an issue, but our advice to you is as Page 21 June 14, 1996 -- ::~~-' follows. First of all, I'll return to our original advice. You do not have the ability, nor has the petitioner requested nor has the county acknowledged, an ability to add the Independent Traditional Seminole Nation as a party, so they're not a party. The statute speaks in terms of the county and the violator. That's it. Okay. So they're not a party. Having said that, although there's no law in the area of Code Enforcement Boards, it is a quasi-judicial proceeding, and there are cases in a court of appeals -- the First District Court of Appeals in the State of Florida that recognize that in these types of proceedings, there may be private interests that have rights that would give them an ability to participate in a hearing in a meaningful way, and that's really all we're talking about here. We're only talking about the right to participate, the right to examine witnesses, present arguments, cross-examine, but that's -- that's really the extent of the scope of this discussion, the right of participation which should be accorded to the private interests. Okay. That -- that -- That's the extent of the discussion. And in that sense we looked beyond the law of the State of Florida. We looked to federal cases and we looked to the u.S. Supreme Court cases, and to us it is very clear that if you find that there is a private interest that will be affected by these proceedings, then that interest should be accorded procedural due process, and what that means varies according to the nature of the interest. In my -- our memorandum to you, we have outlined what the u.S. Supreme Court test is for how much procedure a third -- a third person or a private interest would receive and the questions The types of questions, for instance, that you would ask yourselves would be, what is the nature of the private interest. In this case itis asserted that it's a leasehold interest. It's asserted that it's a right of occupancy. It's an ownership of structures that would be affected or that are the subject matter of the alleged violation. Secondly, you have to ask yourselves if there's a risk of deprivation of that interest through the procedures which we follow, okay, and is there a value to additional safeguards. Is there a value to allowing the additional participation. The third part of the test is, what is the government's interest, and what are the actual administrative burdens which you will face by allowing a party to participate. Okay. So is it going -- In other words, if, for instance, the balancing would be that you find that there's a possessory interest or leasehold interest or an occupancy or an ownership of buildings, and those might be affected, those interests, and you balance that against what could be~ adding an extra hour or two to a code enforcement proceeding by allowing a private interest to participate, that would be the type of balancing with which you would be faced. Having said that, it's our very strong advice to the board and especially in an area which -- where we have such limited guidance, that if you do find that there is a private interest that is potentially affected by your actions such as a possessory interest or a leasehold interest or right of occupancy or ownership of these chickees, that you accord the representatives of those interests the Page 22 June 14, 1996 ~:-c~.> ~ -~- opportunity to participate in the hearing. I think it is the prudent ~ourse of action because if they have their ability to make arguments and present witnesses and cross-examine and so on, it provides a better record as -- for whatever decision you make as it goes before a circuit court proceeding, and you're investing a tremendous amount of time in this proceeding. My interest in representing the board is to make sure that that is time well -- well invested and not subject to a procedural challenge. Now, having said that my advice is to accord a procedural due process, I want to be clear that what that means is it goes back to my original statement. It speaks to the question that you're presented with, and the question is, is Pacific Land Company a violator and in violation of your ordinances. The question is not In other words, if you were to allow the Independent Traditional Seminole Nation to participate with rights of examination, cross-examination -- MS. DEIFIK: Is it appropriate for us to be addressing the residents with that term, and are we committing ourselves or the county to something by using that term rather than the term perhaps the residents or the Seminole residents? MR. KOBZA: I -- Probably the most appropriate term to use is the village residents. I only use the term because that is the term that is used in all of the -- MS. DEIFIK: I'm not denying that they may very well be. MR. KOBZA: Right. MS. DEIFIK: I'm saying that I -- I don't -- MR. KOBZA: Right. MS. DEIFIK: -- know. MR. KOBZA: I understand. If -- If there's a private interest, which I believe was a very perceptive point made, but if you find that private interest, then the procedural due process of allowing another attorney to examine and cross-examine and present arguments on that narrow issue really protects your record for whatever decision you would ultimately make, and, again, it would be limited to that issue. As attorneys, we ought to be able to decide who goes first, who goes second, who goes third and that type of thing. But, at any rate, that -- that's our advice to the board. CHAIRPERSON RAWSON: Anybody have any further questions that you want to ask Mr. Kobza? MS. DEIFIK: I have one further question I would like to ask Miss Belflower. CHAIRPERSON RAWSON: Sure. MS. DEIFIK: Miss Belflower, have you personally spoken to or met with Frank Billie, Senior? MS. BELFLOWER: Yes. MS. DEIFIK: And he understands that you're representing -- MS. BELFLOWER: Yes. MS. DEIFIK: him in this capacity? MS. BELFLOWER: Yes. MS. DEIFIK: Thank you. CHAIRPERSON RAWSON: Now, before we get into the board discussion, now that we've listened to our attorney's advice and I guess we've decided to say it is the village residents that might have "'"0 Page 23 June 14, 1996 hO ::=-~-~ an interest that would be affected by whatever this board does, rather than getting into the box of saying whether or not we have jurisdiction over the Independent Seminole Nation, I think it's clear based on what everyone has told us here that they are residents of those chickee huts and that they are occupying those chickee huts and that whatever this board does is going to affect those occupancy interests of the village residents. Then we need to decide to what extent we will allow participation. Rather than them being a party, we're going to say that they are participating. We always let almost anyone participate as those of you who have watched this Code Enforcement Board operate in the past knows. Also our rules, which I'm not sure have ever been signed, allow us to, as a board, question anybody, any witness that we wish to call anytime or our attorney. So we have always let interested parties speak. I guess if we are going to afford them the right to participate -- that means -- and we need to discuss this -- the ability to present evidence, witnesses, cross-examine, be cross-examined, and to present argument -- then we'll have to do that in some sort of a structured way with reasonable restraints. And, you know, as the chairman of the Code Enforcement Board, I'm willing to take on that responsibility to be sure that nothing that is irrelevant, repetitive, or not proper before this board gets presented. I'm willing to put time limits on arguments. I'm willing to put limits on things that happen so that we won't be here for ten weeks. But we need to discuss now whether or not this board wants to allow this third party the right to fundamental due process by allowing them to participate, not as a party, but only as a participant in this hearing. Now, do I have any discussion from my board members? MR. LAFORET: I'm concerned that we're going to die of old age before this case is heard. CHAIRPERSON RAWSON: Well, Mr. Laforet, that's why I said I'm -- MR. LAFORET: What concerns me CHAIRPERSON RAWSON: -- I'm willing to put time limits and restraints on what happens. MR. LAFORET: What concerns me is that there's no doubt in my mind but the occupants of the land were aware of alleged violations and made no effort to respond, object, nothing. CHAIRPERSON RAWSON: Well-- MR. LAFORET: Next-- CHAIRPERSON RAWSON: -- in -- in all fairness, we shouldn't probably get into the substantive issue until we get to the hearing. We -- we right today -- because that wouldn't really be fair .,. to not let everybody have their say and not let the -- the county prove its case or not prove its case to us. Today we are only discussing whether or not we are going to allow the occupants of the chickee huts to participate in our bearing on the 27th. MS. LOUVIERE: I believe that in order to achieve procedural due process, we shall allow the Indians, Seminole Indians -- or the village residents, which is the correct terminology -- to participate in this hearing in a meaningful way. MR. ANDREWS: I would like to ask, how many -- how many Page 24 June 14, 1996 _.~~o.> -- - ~- ..- --. - - are there? MS. LOUVIERE: And -- and that we limit their time. MR. ANDREWS: How many are there? CHAIRPERSON RAWSON: Well, let's do this. There is a motion that has been made before this board. Before we get into discussion and further questions, is there a second to that motion? MR. MCCORMICK: I'll second that. CHAIRPERSON RAWSON: It's been moved and seconded that we allow the residents to participate in this hearing in a meaningful way and that we'll limit the time so that Mr. Laforet will not die of old age. And now that we have a motion and a second, is there further discussion, or are there further questions for the attorneys for any of the parties? MR. LAFORET: Can we amend that motion or supplement that motion to the extent that there will be no more legal representation of anybody else in this case? CHAIRPERSON RAWSON: That's a legal question I'm going to -- I'm going to ask my attorney to answer. MR. KOBZA: At this point we're not in a position to preclude other parties from having representation. Certainly at the hearing on the 27th anyone could, in theory, appear in attempt to demonstrate an interest. However, you have been very precise in following your procedure here, and one of the probably benefits, if you will, of having a structured procedure would be that you have a group represented by one attorney here could actually shorten the time of hearing. So from that standpoint it creates a more efficient context. But could some other parties appear or some other person, some other private interest appear, you're -- you're not in a position to preclude that and anyone else from necessarily speaking as a member of the public. CHAIRPERSON RAWSON: I understand your concern, Mr. Laforet, and -- and we'll try to keep this thing under control. My concern for this board is that we don't preclude anybody's participation so that what goes up on appeal is a procedural error rather than a substantive error. And if that's legalese, basically what I'm saying is let people say what they want to say, let us make our decision, and then nobody is going to say that we shut off anybody. We need to let everybody be heard, and I think that's the motion, and -- and it's been seconded. Is there any other discussion? MR. LAFORET: Madam Chairman, we have had in the past people who were well aware that we were going to have a hearing, wait until the day of the hearing and say, I just hired an attorney, and he needs another 30 days. CHAIRPERSON RAWSON: Well, we'll have -- MR. LAFORET: This is the thing I'm trying to prevent. CHAIRPERSON RAWSON: I understand, and we'll have to deal with that if somebody shows up on the 27th and asks for a continuance. We can certainly vote them down and we'll -- but we can't say what's going to happen tomorrow. We'll have to deal with the issues that are before us and -- MR. LAFORET: I think that issue is before us because the attorney already mentioned this gentleman may have -- CHAIRPERSON RAWSON: It's only before us if we have a motion from an attorney asking to intervene or appear before us. So "'0 Page 25 June 14, 1996 :: ~~ c~.> . -~- the issue is really not before us right now. I understand your ~oncern. I've been sitting on this board for a long time so I know what you're saying. Any other questions or discussion? MR. ANDREWS: I'm -- I'm concerned about somehow limiting -- limiting the -- the people that are going to speak because, for instance, if I understand correctly -- in fact, I'm being -- being the only practically nonlawyer in this group here, I'm a real amateur. That's why I'm trying to learn these things, and -- and -- and if I -- if I'm out of order, stop me, Kim. But I -- I've been through this whole thing. I've been on this board since day one, since it started, never had a case like this ever. Now, we're talking about letting -- letting the residents speak or -- or even the public speak on this. I was -- I was here the day that they all came down on their hike, and this room was loaded with people, and I'm sure they weren't all residents. They couldn't get on the land there. So I think there should be some limit -- limit to -- CHAIRPERSON RAWSON: Mr. Andrews -- That's part of your motion, is it not? MS. LOUVIERE: (Nodding head) CHAIRPERSON RAWSON: And, second, that it be limited. And -- And I'll tell you, Mr. Andrews, what -- what I have in mind and -- and that's for the attorneys here too. What I have in mind is that the attorneys are all going to get together and hopefully work out a process -- assuming this motion passes, work out a process. I don't want to be the one to unilaterally make demands on all of you. r will if I have to, but I would really like for us to work this out and reasonably come up with a procedure that we can all live with so that I don't have to do that. I will. MS. LOUVIERE: We could even -- We could even ask the administrative assistant for the Board of County Commissioners, Sue Filson, to come in and time the speakers if that's necessary like they normally do during the Board of County Commissioners' meetings. CHAIRPERSON RAWSON: But in terms of who presents evidence when and who cross-examines when and how many witnesses we're going to have, I mean, I would really be much more comfortable with the attorneys telling me this is what we've agreed to do. If you can't do that, you know, I'll -- I'll take charge, but I'm going to give you that opportunity, and I'll be happy to meet with you along with my attorneys to have that discussion before the 27th. I mean, I would like for this hearing to go on as orderly as possible, and I don't want to be here until we all die of old age. I'd like the people to get succinctly their points across to us so that we can vote and get on with our lives. But we have a motion and a second on the ~ floor. Are we ready for the vote? All in favor of Miss Louviere's motion, which is to allow the village residents to participate in a meaningful way with limitations on time, please signify by saying aye. "All opposed? MR. LAFORET : Aye. CHAIRPERSON RAWSON: Passes. One nay. Yes? MS. BELFLOWER: If I might, just a quick clarification. The motion was in a meaningful way, and I understand the time Page 26 June 14, 1996 -- ::~~-' limitations, et cetera, but does that mean that we would be allowed to 9articipate to whatever degree that the parties will be allowed to? CHAIRPERSON RAWSON: What -- What I think a meaningful way means is that you have the ability to present evidence. You have the ability to present witnesses. You have the ability to cross-examine witnesses. Your witnesses will be cross-examined by the other two attorneys. You can cross-examine all their witnesses, and you can present your arguments. We're going to do this in some sort of structure that I'd like for you attorneys to work through. And, again, I volunteer -- my attorneys and -- and -- and I will sit down with you to do that. MS. BELFLOWER: That's fine. CHAIRPERSON RAWSON: We need to do this in a structured manner, and I understand that you are a participant and not a party, and I understand the county's problem with that, but, you know, the board has voted to let you have due process rights. MS. MCEACHERN: Madam Chairman. CHAIRPERSON RAWSON: Yes? MS. MCEACHERN: May I speak? CHAIRPERSON RAWSON: Yes. MS. MCEACHERN: Okay. On behalf of the petitioner, I -- I would request that this board reconsider its motion based upon code section two ten thirteen of the Collier County Code of Law and Ordinances where it states that all testimony shall be under oath and shall be recorded. The enforcement board shall take testimony from the code enforcement official and alleged violator and from such other witnesses as may be called by the respective parties. The county's concern is that if they are allowed to participate as -- and fully -- I mean, with full rights of litigation, interrogation, and cross-examination, and presenting evidence, et cetera, that they are sounding like, looking like, and acting like a party, but they are not a party. If they are not a party and there is an adverse ruling that does not bind them but impacts them, they can raise all constitutional arguments of due process in an appellate court or a de novo proceeding in a federal court, and the county would ask that if this board decides that they are going to be able to participate fully but not be a party, that we be allowed to recess and discuss the possibility of a continuation and naming them as a party. CHAIRPERSON RAWSON: Well, let me say this. I don't have any problem with your naming them as a party. That's your decision. We can't make that decision for you. Only the county can make that decision, and if you make that decision between the 27th -- now and the 27th, we'll -- we'll live with your decision because we can't really vote on that. You've asked us to reconsider, and I'm very familiar with the cite that you've just read me, but it also ~ gives this board the power to ask questions of any witness which means anybody out there in the public that we might want to hear from, and we do it all the time, whether they're parties or not parties. I'll be happy to have this board rule on your motion to reconsider, but if you read this as a whole, I think that we'd still have the opportunity if we wanted to. And, again, the decision about whether to name them as party, really we can't -- we don't have the authority to make that decision. MS. MCEACHERN: The petitioner does not question the Page 27 June 14, 1996 - .~- .> - ~ .. ,.f. --- - - board's ability to call witnesses and ask -- and interrogate witnesses, but we do question the ability of nonparty witnesses to interrogate other witnesses and cross-examine and direct examine and present evidence as opposed to exhibits. And, you know, the county has a very legitimate government interest in this proceeding satisfying due process and fundamental fairness and -- and also going forward in a very straightforward, simple matter and that all proper interests are represented and properly before the Code Enforcement Board. And so what the county is asking is if this board determines or decides that they are given full -- that their participation is essentially acting like a party with all rights of parties but not the risk or liabilities, that we be able to take a 15-minute recess to discuss possibly moving to continue the proceeding or to name them as a party. CHAIRPERSON RAWSON: Well, let me -- let me -- Let me ask you this question, and I'll let you -- Assuming -- and I'll be happy to give anybody a recess. Assuming that you decided to name them as a party, what's changed? Why would you need a continuance of the 27th? MS. MCEACHERN: Well, those are things you can ask them. One of the things is that they can be -- have adequate notice. They need to be served. CHAIRPERSON RAWSON: They can waive that. MS. MCEACHERN: They can waive that. MS. BELFLOWER: We will not. MS. MCEACHERN: They will not. They want our cooperation. They give none. CHAIRPERSON RAWSON: I can't -- that -- for a continuance, nor do we really not properly before the board your question, Miss Deifik. MS. DEIFIK: Well, what the county attorney is -- The issue she is raising are issues that troubled me when I first read this, and -- and I'd like to direct this to Mr. Kobza. In a regular court proceeding, the obvious alternatives would be either for Miss English as attorney for a party to call all the witnesses that she might wish to, and those might be village residents, to associate Miss Belflower as co-counsel if she wished to, and in the putting on a specifics case, to bring in any such evidence relative to the village residents. The second alternative would be, as the county attorney has pointed out, I believe, for Miss Belflower to intervene on behalf of the village residents as a group. I understood your advice to be that because this is distinct from an ordinary judicial proceeding, there is case law to the effect that we should permit other members of'" the public to be heard, but I -- I -- I guess what I'm asking is, would you reconfirm that advice, and does that extend to letting them cross-examine other parties and introduce exhibits rather than, as we have often in the past experienced, someone coming up and saying, I would like to say my piece. Here's what I think about what's going on next door. MR. KOBZA: I -- All very good ne go down the line, Commissioner. of proceeding, there is not a right I can't rule on a motion want to at this time because it's but I guess Why don't you ask questions and -- and let Because of the nature of this type of intervention. Okay. There is Page 28 June 14, .1996__o-< ~=-~_' no authority. Statute does not provide for it. Your ordinance does not provide for it. Who is and is not considered a violator is within the discretion -- an alleged violator is within the discretion of the county and how it frames that question to you. So there is no right of intervention which is analogous to the circuit court right -- MS. DEIFIK: Rules of civil procedure -- MR. KOBZA: Right. MS. DEIFIK: -- where they become a party. MR. KOBZA: Exactly. However, in administrative proceedings -- and there are many examples, okay -- private interests do have due process rights, and I very strongly disagree with the advice of the county attorney. They look -- They have the ability to whatever procedure the board would determine appropriate, that somehow they become a party. That is -- is completely in error. The court of appeals' cases say that in administrative proceedings like in this, that there may be private interests that have a right to procedure and to participate in a different way than the public generally because of the nature of their right and the nature of the interest that they have. So I would confirm to you that that is my advice. They don't become a party by virtue of their participation -- MS. DEIFIK: But these two cases you cited do say that -- that such members of the public would have the right to cross-examine and present exhibits? MR. KOBZA: Very definitely. MS. MCEACHERN: Madam Chairman, I did not say if they act like a party, they become a party. CHAIRPERSON RAWSON: I -- I understand. MS. MCEACHERN: We are asking that they then be made a party and that we be able to have a recess to discuss that. MR. KOBZA: That's a separate issue. CHAIRPERSON RAWSON: Okay. Well -- and I'll for the county to discuss that; however, we can't decide to make them a party or not. That's up to board has voted to let them participate. MS. LOUVIERE: I think that -- that Kim stated it very well. In other administrative business, in administrative proceedings in the past, this board has listened to other parties that have -- that are concerned with this -- with the -- the matter. In order to achieve procedural due process, I believe we should listen to what they have to say. That does not mean that they will be -- then become a party to this proceeding. Okay. MS. MCEACHERN: Does that give them -- I -- I guess it hasn't been decided if they have the right to interrogate every witness. MS. DEIFIK: I think that has been decided. MS. MCEACHERN: Has it? CHAIRPERSON RAWSON: I -- I think that this board has decided that they have -- fundamental due process in a meaningful way was the motion life. MS. LOUVIERE: Right. CHAIRPERSON RAWSON: And I explained that I think that that means that they can present evidence, they can present witnesses, they can cross-examine, they can be cross-examined, and they can be happy vote on whether you you. You know, this .,.- Page 29 June 14, 1996_ __~,: ::=--~~_, present arguments, and I'd like to do that in such a structured way that we don't, you know, go crazy here. But I think that's what this board has decided and -- you know, if this board has made an error, you obviously can ask the circuit court to tell us so, but that's the decision of the board. MS. MCEACHERN: The county respectfully requests a ruling on its motion for reconsideration. CHAIRPERSON RAWSON: Fine. We have been asked as a board to reconsider our vote to allow them to meaningfully participate. If you want to reconsider that vote -- well, procedurally how should we do this, Mr. Kobza? MR. KOBZA: There would have to be a motion for reconsideration. CHAIRPERSON RAWSON: board, wouldn't it? MR. KOBZA: Yeah. CHAIRPERSON RAWSON: So I -- We've been requested to reconsider the vote, and I believe that we would have to have a motion from one of the board members if we wanted to reconsider our vote. Is there a motion? The request would die then for failure of a motion to be made. MS. MR. MR. recess. MS. LOUVIERE: Take 15 minutes? CHAIRPERSON RAWSON: 15 minutes. (A short break was held.) CHAIRPERSON RAWSON: Are we ready to reconvene? Collier County Code Enforcement Board will reconvene. Yes. The county attorney. MS. MCEACHERN: The county's position at this time is we'd like to preserve all objections raised previously. We respect the board's decision, its ruling, but based upon that ruling, we are unable to determine whether we want to proceed with the motion to continue, and we really need the time to discuss this among the property -- proper entities within the county; and, therefore, within the next week if -- if we decide, we will be moving for a continuance. CHAIRPERSON RAWSON: That's fine, and we will, you know, listen to any motions that you have, you know, anytime that you raise them. MS. MCEACHERN: Thank you. CHAIRPERSON RAWSON: Let me say one more thing before, you know, we find out if there's any other evidence to come before this board or any other matter to come before this board, and I'm talking to my fellow board members now. Many of us have received letters in the mail from various and sundry parties to this action. Many of us have received phone calls. And while I appreciate the fact that this is a very important issue and a lot of people have very strong feelings about it and that, therefore, you want to communicate those feelings to your board and probably to the county too, I am also cognizant of the fact that this board issued rules once upon a time. I'm not sure they were ever signed. Mr. Manalich can tell me if they From one of the members of the MCEACHERN: The county requests a 15-minute recess. ANDREWS: I second. MCCORMICK: I'll make a motion that we take a .,.- Page 30 June 14, 1996_ __-,~ _:=-~~_~ were ever signed. But ~ember shall knowingly other interested party the board. And so I'm just asking my fellow board members to be very careful and to remain absolutely unbiased and independent, and keep in mind that this rule at some point in time was at least promulgated, if not passed, and approved by the county commissioners. And while we're not precluding anybody who wants to write to us or call us or whatever, you need to understand that I -- I'm just advising my board members that this rule does exist, that we really don't need to be discussing this case with any of you so that we can remain totally independent and give you fair due process. Is there any other evidence or matter to come before this board? MR. KOBZA: Madam Chairman, there's just one other matter I would like to be sure it gets on the record. It is my understanding that Miss Belflower is willing to meet a deadline for filing of any brief within seven days? MS. BELFLOWER: Yes. We can file a brief within seven days of today. MR. KOBZA: Okay. MR. ANDREWS: We'll have that meeting then the 27th; right? MS. BELFLOWER: I had a question about that. CHAIRPERSON RAWSON: Yes? MS. BELFLOWER: Was the county's indication that within che next week they may ask for a continuance? We will be possibly hearing the continuance on the 27th but if the board -- CHAIRPERSON RAWSON: I'll put it this way. Our next regularly scheduled board meeting is the 27th, and we will all be here. Then at 8:30 that morning, whatever -- although I would appreciate getting in advance a motion for continuance so we'll know that's before us when we get the agenda packet, and I'm sure we would. We will not be able to rule on any motions, including a motion for continuance until the 27th, but I think her indication was that we'd know that within seven days. MR. MANALICH: Just for clarification -- Madam Chairman, Ramiro Manalich, chief assistant county attorney. Again, we would stress, you know, we respect and will abide by the board's decision as to the participation of the Independent Traditional Seminole Nation; however, as you can understand, that raises some concerns for us as to its implications and how we handle our case. All we're saying is that we want to just alert you to the fact that we're going to take the time now in this next week to evaluate your decision and how it impacts our case and decide whether we think that deserves any type of motion for continuance for whatever reason. If so, we'll attempt to submit that within the next week. At this point, though, I think everyone should consider that everything is going on schedule to the 27th to trial as we expected unless we file a motion for continuance in the next week, and then that would be the subject of its own decision by the board. CHAIRPERSON RAWSON: Well, I would say that within that week time we -- we will know. And in addition, I, again, renew my -- in Article 10 of those rules, I read, No board discuss any case with any alleged violator or prior to the final resolution of the case by .,.- Page 31 June 14, 199~ ):0 _::~~_' my offer to meet with all the various attorneys, if it's going to go to the full-blown hearing on the 27th, to structure this in some way that we can all be comfortable. MR. MANALICH: I'm not saying that we are going to be asking for a continuance. I'm just -- CHAIRPERSON RAWSON: Right. MR. MANALICH: -- saying that we're going to consider whether that's necessary or not. It may not be necessary. It may be right now as things stand that we're going to still proceed to trial on the 27th. We just want to alert you to it so you're not surprised -- CHAIRPERSON RAWSON: Right. MR. MANALICH: -- in the event that we thought it was appropriate. Right now we're not saying we're going to do that. MS. BELFLOWER: If I might then put a qualifier on my statement to Mr. Kobza, that if we get something from the county one way or the other by next Thursday, then we should be able to go forward if they make the decision not to continue the hearing. Obviously if they change the game, then we're going to have to prepare, and we may not be able to have something to you by next Friday if the whole thing changes, but since it would be a continuance, perhaps it's not a problem. CHAIRPERSON RAWSON: Anything further to come before this board? Well, we all look forward with great anticipation to seeing you on the 27th and -- MR. ANDREWS: This has only been going on for a year. CHAIRPERSON RAWSON: -- I would like for my board to stay healthy, and I'll be back. MS. LOUVIERE: I'm leaving. I'm going to the Bahamas. CHAIRPERSON RAWSON: The Code Enforcement Board is now adjourned. ***** There being no further business for the Good of the County, the meeting was adjourned by Order of the Chair at 10:51 a.m. COLLIER COUNTY CODE ENFORCEMENT BOARD f!1~~ --f2~ M. J WSON, CHAIRPERSON .,.- TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING BY: Christine E. Whitfield, RPR Page 32