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CEB Minutes 08/22/1996 1996 Code Enforcement Board August 22, 1996 CODE ENFORCEMENT BOARD OF COLLIER COUNTY. FLORIDA AGENDA Date: August 22, 1996 at 8:30 o'clock A.M. Location: Collier County Government Center, Admn. Bldg, 3rd Floor NOTE: ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NEITHER COLLIER COUNTY NOR THE CODE ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. 1 . ROLL CALL 2. APPROVAL OF AGENDA . ~. APPROVAL OF MINUTES May 13, June 27, and July 25, 1996 "Z . PUBLIC HEARINGS A. BCC vs. Pacific Landco and Pacific Land Co. CEB No. 96-010 5. NEW BUSINESS N/A 6. OLD BUSINESS A. BCC vs. Del H. Ackerman and Jay McMillian Filing of Affidavits of Non-Compliance and Request for Imposition of fines CEB No. 95-009 B. BCC vs. Charles W. Hicks and Joan K. Hicks Request to execute Partial Release of Lien CEB No. 96-007 7 . REPORTS N/A 8 . NEXT MEETING DATE September 26, 1996 9. ADJOURN August 22, 1996 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY CODE ENFORCEMENT BOARD NAPLES, FLORIDA, August 22, 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 8:36 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRPERSON: M. Jean Rawson VICE CHAIRPERSON: Mireya Louviere Charles M. Andrews James D. Allen Celia E. Deifik Louis F. Laforet Richard McCormick ALSO PRESENT: Ramiro Manalich, Chief Assistant County Attorney Shirley Jean McEachern, Assistant County Attorney Kim Patrick Kobza, Attorney to the Code Enforcement Board Frank X. Kowalski, Attorney to the Code Enforcement Board Maria E. Cruz, Code Enforcement Linda Sullivan, Code Enforcement Page 1 August 22, 1996 CHAIRPERSON RAWSON: The Collier County Code Enforcement Board will now come to order. Could we have the roll call starting with my left. MR. MCCORMICK: Richard McCormick. MR. LAFORET: Lou Laforet. MS. DEIFIK: Ceila Deifik. CHAIRPERSON RAWSON: Jean Rawson. MR. ALLEN: Jim Allen. MR. ANDREWS: Charlie Andrews, what's left of him. CHAIRPERSON RAWSON: And -- Well, we'll wait since our other member is here and let her -- State your name in the microphone so we -- MS. LOUVIERE: Mireya Louviere. CHAIRPERSON RAWSON: Thank you. Let the record reflect that we are all here. The next item is the approval of the agenda which all of you have in the front of your books. Could I have a motion for -- to approve the agenda? Do we have any changes, Ms. Cruz? MS. CRUZ: Yes, ma'am. Good morning. For the record, my name is Maria Cruz, code enforcement specialist. The item that needs to be changed on the agenda is item nine, the next -- I'm sorry, item eight, the next meeting date. That date should be changed to September 30. Thank you. CHAIRPERSON RAWSON: agenda are still going? MS. CRUZ: Yes, ma'am. CHAIRPERSON RAWSON: Thank you. With that change, the next meeting date being September 30 instead of the twenty -- whatever it says -- MR. ANDREWS: Twenty-sixth. CHAIRPERSON RAWSON: do I have a motion for approval of today's agenda? MR. ANDREWS: So moved. MR. ALLEN: Second. CHAIRPERSON RAWSON: All in favor signify by saying aye. The agenda is approved. Now, the next one will probably -- Well, maybe it won't take very long, but it probably took you a long time to go through all this. We have the approval of the minutes of May 13, June 27, and July 25. Are there any corrections or additions to the minutes of May 13, June 27, July 25? If not, may I have a motion to approve those minutes? MS. DEIFIK: I so move. MS. LOUVIERE: I'll second CHAIRPERSON RAWSON: Moved the minutes of May 13, June 27_, saying aye. The minutes will be approved. The first public hearing on the agenda today is Board of County Commissioners versus Pacific Land Co. and Pacific Land Company, CEB number 96-010. Mr. Manalich. The other items that are on the it. and seconded that we approve and July 25. All in favor signify by Page 2 August 22, 1996 MR. MANALICH: Good morning, Madam Chairman, members of the board. For the record, Ramiro Manalich, chief assistant county attorney, along with Shirley Jean McEachern, assistant county attorney. This matter is before you today. It was scheduled for trial. As some of you may have heard through media accounts, it is true that an agreement -- a draft proposed settlement agreement has been reached between the county as well as the other two interested parties, that being the landowner and the Independent Traditional Seminole Nation. Today representatives of each of those parties are here, are Katherine English, attorney on behalf of the land owner and Laura Belflower, attorney with Holland and Knight on behalf of the Independent Traditional Seminole Nation. Basically I have distributed to you a joint motion to stay this case which we'd like you to consider at this time, and we will be available for any comments or questions that you may have. I don't know if any of the attorneys for either of the other two parties have any comments at this time. MS. ENGLISH: (Shook head.) MR. MANALICH: I believe not. Basically what is recommended to you is that you consider approving this joint motion to indefinitely stay the case. The reason for that is that a proposed settlement agreement has been reached between all three parties involved here, and the proposal would require that the Board of County Commissioners review this matter on -- and this proposed agreement along with each of the parties by September 3. The members of the Independent Traditional Seminole Nation and the landowner will each be reviewing the agreement to sign off on it if they can, and the board then will be considering this matter at the September 3 hearing with the proposed agreement before it. If, in fact, all parties were to approve the proposed agreement, basically what would happen is that a -- two things would occur. There -- Well, I guess I don't even need to get into that at this point unless you have questions about it, in all the details of the agreement. Essentially what we need is this matter to be held in abeyance to see if that goes forward. But if you have any questions or comments, I'll take those or the other attorneys will at this time. MR. LAFORET: Counselor, I don't even know what the agreement is. Nobody's contacted me. I understand the people representing the Indians could contact the Indians involved on Thursday. On Friday the press was invited to a conference in which the agreement was explained. All weekend I could hear it on radio, television, and in the newspapers. Up to today nobody has officially advised me that an agreement has been made or anything where I've been completely ignored. I wonder if somebody thinks that we're not interested in these cases. Now, while I have the floor, I guess, as far as this joint motion to stay, I would be inclined to dismiss the case completely or to deny another delay. There's a great deal of talk about what this is costing everybody so they negotiate it. You're only interested in getting compliance. You're satisfied with the Page 3 agreement, good for how could I vote on can't do it. MR. MANALICH: Well, a couple of points in response, Mr. Laforet. First of all, actually, I guess it's fair to say that by intent you have been excluded from this, and I don't say it in a negative way. I say it in a positive way in the sense that you as a decision-maker -- it would be inappropriate, I think, for anyone of the parties to be in any way trying to lobby or inform you outside of this forum about this matter. So obviously the -- you know, in the public arena, we do work in -- in an open setting. As far as media access and that, we have no problem with that. But I would be concerned that if I were to contact you outside of this forum, that that might be inappropriate, and I think the other attorneys would probably see it the same way I do. That's why it's come to you in this manner. Now, today you're not being asked to review or approve the agreement. You are merely being asked to determine if -- based on the representations of all of the three attorneys involved here, if there is good cause for delaying this matter so that this resolution can take place. If you'll recall, when we appeared before you in May and June, what we committed to was that either this matter would be tried or that it would be settled and it would be before you with an actual proposed agreement. Now, there's only one hitch along the way, and that was that there was a transfer of property that occurred which resulted in the last continuance. But that aside, I think all three parties have stood by their commitment because we are here. We would have either tried it today, or more happily we are here with an actual proposed draft agreement. Now, if the other parties have no objection and if you're interested, I can discuss some of the proposed terms. I mean, it's been publicly known already, but I'll let Ms. Belflower step in at this point. MS. BELFLOWER: I -- I -- MR. LAFORET: Excuse me, but as far as I'm concerned, you could have written us a letter and said the next meeting and -- we will hold a discussion, but we heard nothing from you, nothing at all. CHAIRPERSON RAWSON: Mr. Laforet, if it makes you feel any better, I haven't been a party to any of those discussions either. No one in the decision-making process -- It's like talking to the judge while you are in mediation which is -- wouldn't have been proper, and all I know about this is what I read in the newspaper as well. The only thing they're asking us to do today is to approve their joint motion to ~tay these proceedings, not to approve the agreement because I don't know anything about the agreement other than what I read in the paper, and I assume that we will find out once the county commission meeting has been had and the agreement's settled. MR. MANALICH: August 22, 1996 you, but I don't know what the agreement is. something like this with no knowledge? No, I So See, there's a risk -- Excuse me for Page 4 August 22, 1996 interrupting, Madam Chairman, but I perceive that there's a risk here, which is that if for some reason the Board of County Commissioners did not approve the proposed agreement -- CHAIRPERSON RAWSON: I understand. MR. MANALICH: -- I don't want any communication or contact with this board to then have in any way tainted this board's ability to be fair and impartial if this matter were to return to you. MS. LOUVIERE: So can I ask a quick question? The draft agreement has been signed by Holland and Knight; right? Is this correct? The draft agreement -- it's currently -- every -- every party has agreed on except for the BCC because they haven't had a chance to look at it? MR. MANALICH: What has occurred is that the draft agreement has been reduced to writing. MS. LOUVIERE: Correct. MR. MANALICH: At this point the representatives of the parties, all the three attorneys, myself included, that are here today will tell you that it is acceptable and can be recommended to their clients. In the interim between now and September 3, each of the respective clients will be reviewing that agreement and hopefully sign off on it, including the Board of County Commissioners' consideration and vote on that. MS. LOUVIERE: Okay. MS. BELFLOWER: Nothing has been signed -- Excuse me. Laura Belflower, Holland and Knight. Nothing has been signed because it hasn't gone before the Board of County Commission, so they have an opportunity to make some adjustments. But the concepts have all been agreed to, the actual wording. The final version has not been finalized because it hasn't been before the board. MS. LOUVIERE: Basically this is a draft agreement before all parties? MS. BELFLOWER: Right. MS. LOUVIERE: And then once it goes to the BCC, if any recommendations or changes or anything needs to be modified -- minor modifications, then it will be done at that time, and everyone would sign on it? MS. BELFLOWER: That's our intent, yes. MS. LOUVIERE: Okay. MR. MANALICH: And obviously, you know, Mr. Laforet, I understand some of the board's collective frustration that this has been on the calendar for some time but -- you know, please understand, this has been a rather sensitive, controversial matter which obviously has gotten a lot of attention. And there's also -- As you know, unrelated to this particular action but still tied in with the big picture is a federal lawsuit which is -- also figures into this whole oyerall arrangement, and for that reason we have proceeded in the way we have. I did -- Prior to the press conference that you alluded to, I did contact Mr. Kobza who was informed as to those developments and -- just for his information and I -- I don't know if he was able to have contact with the chairman or not but -- Page 5 August 22, 1996 CHAIRPERSON RAWSON: He -- He did let me know that a settlement was being reached. The terms of that settlement -- I don't know anything other than what I read in the paper, and that's fine. I think that's proper. If you have to come back before this board, we don't need to know about the terms of your negotiation. MS. DEIFIK: Can I make a motion? CHAIRPERSON RAWSON: Yes. Let -- Let me just say for the record that Katherine English, attorney for the Pacific Land Company and Vine Ripe is also present here today. Yes, Miss Deifik. MS. DEIFIK: I move that the board continue this matter until after the BCC has had an opportunity to consider the draft agreement. MS. LOUVIERE: I second it. MR. MCCORMICK: Let me ask a question. Is the -- Is the continuance indefinite or is -- MR. MANALICH: You have before you a joint motion to stay the case. That's what we would be asking that you approve. The -- the motion -- MS. DEIFIK: Okay. When is the meeting at which this will be considered? Because I would like to put a date in my motion so that we can take it up at a specific meeting. MS. BELFLOWER: The request is that the board just stay the action and that if the settlement agreement is not adopted by the board or there's some trigger points in the settlement agreement that -- that if things don't work out and the agreement is terminated, it will come back to you. The county would renotice the hearing if it has to come back to you, but it's about a three-month process to get through all the settlement terms to be absolutely sure it's not coming back before you. And so rather than having it come up on your agenda each month, what we're asking is that you just stay the item, and then if it does need to come back before you, it would be fully renoticed as if it was a new hearing so that you don't have any problems hearing it. MS. DEIFIK: Mr. Manalich, do you have a comment on that? MR. MANALICH: Well, essentially what we want you to understand is -- without getting into all the terms of the agreement, what has to happen is on the 3rd and prior to then, if the clients -- the other two respective parties approve of the terms we expect can happen and if the board votes in favor of the proposed agreement on September 3, then some other steps have to occur within that time period with Miss Belflower. MS. DEIFIK: Are you comfortable with having the burden of having to do a full renotice before it comes back? MR. MANALICH: That's fine. MR. KOBZA: For the board, I believe that legally given the number of continuances to this point and also the -- the possibility of it being an indefinite time period, you would legally have to renotice this matter. MS. DEIFIK: All right. Then I'll amend my motion to state that I move that the board approve and adopt the joint motion to Page 6 August 22, 1996 stay and that this matter would be tabled unless and until it is renoticed by the county. MR. ALLEN: I have one comment, Mr. Kobza. MR. KOBZA: Yes, sir. MR. ALLEN: Since you represent the board, what would your suggestion be? MR. KOBZA: Given the history of the case, given the complexity of the case, and given the fact that many of the legal issues involved are somewhat novel issues, I think that the continuance or the stay of the proceedings is in the best interest of the board. And to that extent, it's also a policy question, very deferential to counsel in those issues. But from the standpoint of the legal issues involved and that you would be confronted with in a full hearing, I think that it -- it's certainly something that makes a lot of sense. CHAIRPERSON RAWSON: Is there a second? MS. LOUVIERE: I second it. I second her amended motion. CHAIRPERSON RAWSON: All right. It's been moved and seconded that this board approve the joint motion to stay filed by the Collier County attorney, the attorney for the residents of the Independent Traditional Seminole Nation, and the attorney for the Pacific Land Company and Vine Ripe, Inc. Any discussion? All in favor signify by saying aye. All opposed? MR. LAFORET: Nay. MR. ANDREWS: No . CHAIRPERSON RAWSON: Two? Two nays. Motion carries. MR. MANALICH: Thank you, Madam Chairman. Now, could Mr. Kobza prepare an order, then, reflecting this decision? MR. KOBZA: Yes. MR. MANALICH: Thank you, sir. MR. KOBZA: It's been a pleasure representing the board on this matter to this point. If it should be settled, which hopefully it will so -- I just want to express my appreciation to the board. CHAIRPERSON RAWSON: Well, thank you, Mr. Kobza. It's been a pleasure to have you and very comforting too, I might add, to have such competent counsel. Thank you. MR. KOBZA: Thank you. CHAIRPERSON RAWSON: And thank you, ladies, and -- and thank all of you for reaching this agreement. As you know, this -- this has been a very difficult case for everybody, and it certainly has gotten worldwide attention. When I walked in this morning, I was handed a letter that I received from Germany and another one from Belgium. I've gotten letters ~rom allover the world about this case. It certainly has captured the public's -- the public's attention. And everybody that's associated with this case, including this board, are happy to see, we hope, that we have a win-win situation. So I'm -- I thank the attorneys for working on -- on this and the commissioners who helped. And, you know, I hope that Page 7 August 22, 1996 things are going to get squared away and that although it's been a pleasure to have you in our board meeting, if we don't have to see you again, that would be okay too. MS. LOUVIERE: I think -- I think Miss English enjoyed the drive, didn't you, Miss English? MS. ENGLISH: Very much so. Very much so. MR. MANALICH: Madam Chairman, I have the original motion which I'll file with the clerk at this time. MS. ENGLISH: I'd like to thank the board on behalf of both Vine Ripe and Pacific for your time and attention to this matter. CHAIRPERSON RAWSON: Thank you. The next item of business -- there's no new business is the old business, BCC versus Del H. Ackerman and Jay McMillian. Let me say to the board members who were not present here last week, Mr. Kobza, who just left, was appointed to represent us on the Pacific Land Company case exclusively. Mr. Frank Kowalski who is present here today was appointed to represent us last month on the Lely Barefoot Beach guardhouse case which is not over. Those of you who were not here last month don't have to continue the case with us, I'm sorry to say, because it looks like we have at least two more days of it. Mr. Kowalski is our attorney today and was here last month on the Ackerman case when it was continued till today's date. So he will be representing us, I hope, on this one today too; is that correct? MS. DEIFIK: Madam Chairman. MR. KOWALSKI: We'll -- We'll try to do so. Thank you. CHAIRPERSON RAWSON: Thank you. Yes, Miss Deifik. MS. DEIFIK: I'm -- I'm confused. Are we going to have and I welcome Mr. Kowalski. It's wonderful to have him here. But are we going to have a different attorney for every case? I thought the idea was we were going to have some continuity. CHAIRPERSON RAWSON: You have to ask Miss Sullivan that -- that question. MS. DEIFIK: I'm very bad at names, Miss Sullivan. I'm going to start calling people different things. MS. SULLIVAN: The contract for your permanent attorney has been signed and delivered back to purchasing, so we'll put it through at the first board agenda that we can so -- MS. DEIFIK: Do we know who that is, Miss Sullivan? MS. LOUVIERE: It's Ken Cuyler's firm; correct? MS. SULLIVAN: Ken Cuyler's firm. He will be the primary attorney on it. CHAIRPERSON RAWSON: Is that -- is that Is that a year contract? MS. SULLIVAN: It's a year contract. MR. ANDREWS: Wha t was the name? MS. DEIFIK: Ken Cuyler. MS. SULLIVAN: Ken Cuyler. MS. LOUVIERE: Correct. MR. MANALICH: Roetzel and Andress is the actual firm. MS. LOUVIERE: Correct. Thank you. But isn't it -- Page 8 August 22, 1996 so -- but the -- the -- The reason they were not able to represent us on the Pacific Land Company issue was because -- not because the contract hadn't been executed, but because they conflicted on it? MS. SULLIVAN: That's correct. CHAIRPERSON RAWSON: And also the Lely Barefoot. MS. LOUVIERE: Correct. MS. SULLIVAN: That's correct too. Hopefully there won't be any more conflicts. MS. LOUVIERE: And that's why we have this firm here representing us? MS. SULLIVAN: Yes. MS. LOUVIERE: Just -- I don't think the other board members understand it. So they all know. Thank you. MR. MANALICH: Madam Chairman, I just have a question on the agenda which is -- we have the -- The next matter has to do with the Respondents Ackerman and McMillian. The only question I had -- the Hicks matter which is last on your agenda may be rather short in duration. I don't know -- Is there anyone here for that matter at this time? If there isn't, we can leave it as scheduled as the last item because it's short. If there was somebody here, I was going to say we could maybe take that up and get those people out of here, but I don't think anybody's here for the Hicks matter. So if there's not, we can just proceed in order as you -- as you wish. CHAIRPERSON RAWSON: Nobody here on the BCC versus Charles W. Hicks and Joan K. Hicks, request to execute partial release of lien? All right. Then let's move on to Board of County Commission versus Del H. Ackerman and Jay McMillian, filing of affidavits of non-compliance and request for imposition of fines, CEB number 95-009. MR. ALLEN: Miss Chairman, I need to recuse myself. CHAIRPERSON RAWSON: Mr. Allen -- Mr. Jim Allen will now recuse himself, and let the record reflect that we fortunately still have very much of a quorum. MR. MCCORMICK: You're about to lose one more though. I recuse myself on the original case also on the objective. CHAIRPERSON RAWSON: Mr. Richard McCormick also recuses himself. Five of us left, so we're still okay. MR. MANALICH: Again, good morning, Madam Chairman, members of the board. For the record, Ramiro Manalich and Shirley Jean McEachern from the county attorney office on behalf of the county staff. Perhaps -- This matter is here before you on an order imposing fine, and at this point perhaps as a point of order you may want to hear from respondent'~ counsel, Mr. Murray -- Attorney Charles Murray, who is here. From the county perspective so you can direct how you want to proceed this morning, basically our position at this time is that there are fines owed in this matter due to late compliance; however, it is code enforcement staff's position and request that the Page 9 August 22, 1996 exact amount of those fines should be determined by you today after hearing whatever testimony you find necessary to reach that decision. What I have in mind, just to give you an idea time-wise here, is to present the testimony of Bill Bolgar, code enforcement supervisor, to acquaint you with the circumstances surrounding the imposition of these fines. I believe Mr. Murray will, at minimum, want to do cross-examination of Mr. Bolgar and perhaps has witnesses of his own, and however you wish to proceed is fine with us. At this point the only other witness I could think of that the county would require may be Mr. Arnold from the planning department on one piece of correspondence. But with that in mind, I would invite -- if you have any comments from the respondents -- I believe Mr. Murray technically is representing Respondent Ackerman. He is not representing Mr. McMillian who is -- CHAIRPERSON RAWSON: Well, Mr. Manalich, why don't -- why don't we do this. Why don't you give us a little brief overview, like an opening statement, and then let's let Mr. Murray do the same so that the board knows, you know, where we are. I mean, obviously we are here and you're asking that we impose fines. Is it your position that our -- the issue before the board is how much? MR. MANALICH: Yes. And before I -- CHAIRPERSON RAWSON: Is that your position? MR. MANALICH: That's correct. Before I go further, I should mention also that Attorney Skip Gebhardt is here on behalf of the complaining neighboring property owner, and at the last meeting you did allow him to participate on a limited basis. Our position, as I stated earlier, from the county's perspective is that an order and a revised order were entered by this board. The order required several elements of compliance. It's the county's position that one element of that compliance order was not met on a timely basis and that at stake are approximately 211 days that are disputed as to whether there are fines owed for those days. And, like I said, however you wish to proceed -- and you may want to hear from Mr. Murray at this point. We can present some brief testimony to acquaint you with the dispute surrounding those fines. CHAIRPERSON RAWSON: And the fines that we ordered are what? A hundred fifty dollars a day? MR. MANALICH: It is $150 a day having to do with -- The only element you'll be concerned with is a requirement in a site development plan for opaqueness in the fence which surrounds the property. Like I said, you may at this point wish to hear from Mr. Murray as to how he would recommend we proceed this morning. CHAIRPERSON RAWSON: Yes, we do. Mr. Murray. MR. MURRAY: Good morning, ladies and gentlemen. I'm Charles Murray, and I represent the Ackermans in this action. Your job this morning is -- the way I see it, is first off to determine if any fines should be imposed. Secondly, if you think so, for how many days. But first let me just give you the facts. The facts are as follows. Mr. Ackerman built a marina which he leased out to the other party to this action, Jay McMillian. He had what was then the chairman of this board be the contractor, Page 10 August 22, 1996 J.D. Allen. J.D. Allen built it. It was financed through Barnett Bank. Barnett Bank got Mr. Allen to sign off that everything was done, everything was paid, and he drew a -- got his last draw, and a certificate of occupancy was issued. And while Mr. Ackerman was in Ohio having an operation performed on his body, Mr. Allen came in and removed all the trees and all the bushes. I'm not giving you the time frame because this is over a period of years. In any event, there came a time when Mr. Ackerman's neighbor, Mr. Lennane, attempted to buy his property. They couldn't work out the deal. Mr. Lennane then complained, apparently, to the board or to somebody. He hired Mr. Gebhardt. Mr. Gebhardt's wife works for the number -- number one person in the community planning services division. MR. GEBHARDT: Why is that relevant? MR. MURRAY: If I may finish my opening thing, I'm trying to give you the background. It may not be relevant. The relevancy will be decided by you all. In any event, the inspections were made. According to the deposition that I have of Mike Kirby, the individual who signed the affidavit that started this action, more than 60 inspections were had over a very short period of time, very unusual. In any event, ultimately there came up a list of 13 violations to bring -- Code enforcement wanted him to bring his property in compliance with the site plan. I understand. He did that. It told you how many trees. It told you how many bushes. It told you the size of the trees, the diameter of the trees. It told you where they are to be planted. It told you about the sodding. It told you about the irrigation system. It told you about the chain-link fence, opaque. They did everything, except for the fence. They said, We'd like to go in for a variance. Why do you want a variance? We want a variance because none of the other marinas have an opaque fence. We don't think it's necessary. And when they issued the original CO, it wasn't opaque. In any event, they worked up -- They hired Mr. Burt Saunders. They went through the -- the thing of -- of getting the planning division to recommend approval that there be a variance issued. They went in front of the county commissioners. County commissioners said, No. Make it an opaque fence. This took place back in -- on 9 January 1996. Within five days Mrs. Ackerman went to Swartz and Associates. Swartz and Associates -- and -- and we're going to have them testify, Mr. Swartz. Swartz and Associates, they give all of this green stuff that they put on tennis courts -- he has a lot of county contracts, and it was recommended by a county employee, go see him. He's got the stuff you can hang on your fence to make it opaque. She got samples. They mailed samples. She went to M~. Bolgar. He's an inspector supervisor, and he's the one that -- that we all had a meeting with. They originally hired me. We went and sat down with Mr. Bolgar and said, Let's see the site plan. Let's go over this. What have they got to do? Mr. Bolgar says, I'll get back to you. I'll have my boys check it out. They check it out and said, Nope. This is not good enough, Page 11 August 22, 1996 but I'll get back to you. Every three or four weeks Mrs. Ackerman called Mr. Bolgar to try to get an answer as to what they needed. Now, I think Mr. Bolgar is going to deny that -- any responsibility after about 30 days, but the fact is Mr. and Mrs. Ackerman will testify that they were very interested in doing this. They made calls. They made 10 or 12 phone calls. They left messages when they couldn't talk to Mr. Bolgar. They wanted to know what kind of materials so that they could be in compliance. Mr. Kirby in the meantime -- Now, we're talking about from a period of January through when they were served which is in July. A couple of times in that period Mr. Kirby comes out and says, How come you haven't made your fence opaque? Mrs. Ackerman will testify she told him, Because I'm waiting for Mr. Bolgar to tell me what kind of material to get. He has disapproved the material that I took to him. In May Mr. Kirby did a sworn affidavit and carried it around, apparently, until July. In the middle of July, the Ackermans were served saying, We're going to impose a fine of $150 a day for non-compliance. Mr. Ackerman went to see Mrs. Sullivan or Miss Sullivan -- Ms. Sullivan, and Mrs. Ackerman went to see Mr. Bolgar. Mr. Bolgar says, There's some stuff called weed-out or block-out. Go get that. Get it up by the time we have the meeting on Thursday, and I'll go talk to Ms. Sullivan and see if I can get this fine knocked off. The stuff that I'm telling you will be supported by testimony. The -- They went and they bought the block-out. To be on the safe side, Mr. Ackerman took block-out, together with Matthew Wheatley -- they both took it to Mr. Bolgar and said, Here it is. Is this good enough? In front of God and everybody, this is -- material is good enough. This is okay. So they took and they put it up. So after getting the blessing, it was up within hours on the fence. There's been no problem with the Ackermans attempting to comply with the code ever. But that's not the end of the story. This story, like, never ends. It never ends. On the 29th of July, they get a letter from -- guess who? You'll never guess. I'll tell you. Arnold. He's not in code enforcement. He's in planning. And he sends them a letter saying, Your fence is not in compliance. What are you talking about? Supervisor of inspectors said it was okay. So I had to send back a letter and say to -- complete with affidavits saying, Look. You said in your letter of 29 July that you were enclosing the specifications of what you wanted. But he didn't enclose them. My client stands ready, willing, and able to comply. Tell us what you need. But they've already spent money because they've already been told what it was, but it took them months in order to get that informat~on. What I'm trying to say to you is they shouldn't be imposed. They were ready, willing, and able to do anything. I mean, we're talking about a fence. And keep the following facts in mind. Number one, they originally had a CO. It was approved, it was inspected, and it wasn't opaque. Number two, after the board -- the commission made their Page 12 August 22, 1996 decision, no variance, within one or two days they took the samples, they went to see Mr. Bolgar. He took it -- his time. He denied it and said, I'll get back to you and let you know what you can do. In fact, he even sent them to -- I think it was Scotty's where his wife worked and says they can help you out. She went there. They couldn't help her out. She went back to him. He says, I'll get back to you. Well, she kept making the phone calls every three or four weeks and -- and nothing. And then all of a sudden she gets served, and this is after telling Mike Kirby who works for Bolgar, Hey, we're waiting on a call from Mr. Bolgar. He's going to tell us what kind of stuff to get. Why would they rely on that? Because if you can see the site plan -- and I'll give you a copy of it -- it's very, very detailed. I mean, we're talking about the width, the diameter of the trees. We're talking about what kind of trees. We're talking about where they're supposed to be. We are talking about minute detail. So it's logical to assume they've told me all this other stuff. They're certainly going to tell me this, and I'm ready, willing, and able to do it. I mean, this is the least expensive portion of what it is that they had to do. They had no problem doing it all. A fine should be imposed to bring people who wantonly and willfully disregard what it is that the Code Enforcement Board is trying to do and ignore them and don't take it seriously. This is not the Ackermans. The Ackermans take it seriously. They've done everything that they can possibly do. I'm going to put Mr. Ackerman on the stand to testify to the events that happened, and they're going to be just like I've told you. I'm going to put Mrs. Ackerman on the stand to testify to the events that she was involved in, and it's going to be just exactly what I told you. I'm going to put Mr. Wheatley on the stand. He was with Mr. Ackerman when he went to Mr. Bolgar to approve this material. Now, you can obviously see the difficulty. I'm going to give you a copy from Webster's II College Dictionary of "opaque," and if you can figure that out, see me afterwards, because I can't. And that is -- and -- and that's the crux of the whole problem. And also keep in mind, none of the other marinas -- and I'm going to give you photographs of those -- have opaque fences. They all have clear chain-link fences, the same thing that he had. In fact, he had to evict the tenant, Jay McMillian. Jay McMillian now has his marina down the street, and guess what he has? You got it. Clear chain-link fence. So I'm not sure exactly what we're doing. We appear to be pole-vaulting over a horse dropping, I think. I'm not sure. But the fact is that none of this makes any kind of sense. The thing that makes sense is to say this is enough. Require the division or the department to come up with so~e clear guidance. They actually have spent the money, and I'll show you photographs of what they've done. Require them to make a decision. Don't fine my clients, and let's get on with it. This is a waste of everybody's time and money and especially the Ackermans' because they have to pay me. Thank you. CHAIRPERSON RAWSON: Is Mr. McMillian in the chambers Page 13 August 22, 1996 today or anybody representing Mr. McMillian? Well, let the record reflect, then, that the other respondent, Jay McMillian, is not present in person or by representative. Yes, Mr. Manalich. MR. MANALICH: Thank you, Madam Chairman. In brief response, as I told you earlier before Mr. Murray spoke, the county does not dispute that there is a dispute to a limited extent on the amount of the fines. We will present Mr. Bolgar. You'll hear directly from him the nature of the conversations that were had between him and the respondent. What we believe is that the evidence will show that the fines are warranted but that you need to determine based on some extenuating circumstances what the proper adjustment of those fines are, but I think it will be clear to you that the order was very straightforward about compliance and the time frame. The only thing you will need to do is to sort out through the testimony what took place here and does that require an adjustment to the fines, but I think the fact that fines are warranted will become very clear to you. At this point we're prepared to call Mr. Bolgar as our first witness. CHAIRPERSON RAWSON: Before we do that and because I think I remember I did let him say something before -- Mr. Gebhardt, would you like to make a brief opening statement on behalf of the neighbors? MR. GEBHARDT: Yes. I represent Mr. Lennane, the complainant in this case, and to hear Mr. Murray talk about this, I'm not sure that we're working on the same case. Let me just review briefly. This property was approved for an SDP in 1992. It took from 1992 until 1995 to get Mur -- Ackerman to a point where he was 95 percent in compliance with the -- with the -- with the SDP. There were 14 separate code citations filed against Mr. Ackerman, and he ignored all of them. Now, in 1995 in October this board said, Okay. You've cleaned up your act. You've got one more thing to do. You've got to go to the county commission. And in the county commission, you've got to -- you've got a variance for this fence, and if you don't get it, within 15 days after that on January 24 you've got to install it. It was that simple. And Mr. Ackerman said, Fine. It's a deal. He signed it. He agreed to pay $150 a day to do this. Now, it doesn't take a rocket scientist to figure out what kind of fence is an opaque fence to put on that property. I will tell you when the opaque fence was installed. It was installed two days before the last meeting when this was supposed to be heard, two days. It wasn't installed in June or Mayor April or March or February or on the 24th of January when it was required to be installed. It was installed two days before he was under the gun. And I'll tell you why that's happening. Because he's just thumbing his nose at you. He figures he can do anything he wants with that property out there and that nobody's going to do anything to him. I just want to show you pictures, if I may, of this marvelous fence that he installed two days before you were about to drop the hammer on him and 175 days after it was supposed to be Page 14 August 22, 1996 installed. And you look at it and you say to yourself, Is this an opaque fence that is going to comply with the code? CHAIRPERSON RAWSON: Mr. Gebhardt, if you don't mind, if you would hold back on the evidence until we get into the crux case, because if you want us to look at it, we need to mark it identify it and decide whether, you know, we're going to admit all of that so -- MR. GEBHARDT: I understand. CHAIRPERSON RAWSON: If -- If you don't mind -- MR. GEBHARDT: Okay. CHAIRPERSON RAWSON: gets into their case. MR. GEBHARDT: He has gone 210 days now without compliance. If I were a person that signed an order -- voluntarily signed an order of this board saying that if I didn't comply within 15 days back in -- January 9 -- if I didn't comply within 15 days from January 9, I'd be fined $150 a day, I think I'd be a little bit more worried about my situation than to make an occasional call once every three or four weeks to the county code enforcement to find out what's going on. He's got an obligation to go in and ask the zoning director, who is Mr. Arnold, what will comply. He can't go to code enforcement and say what can comply. The code enforcement doesn't have that authority. The zoning director does. He never went to Mr. Arnold. He talks with somebody in code enforcement. And, as I say, when you see those pictures, you're going to shake your head how it's going to take him 175 days, which is what it took him, to install that opaque fence when he had a $150 fine looming over his head every day. What he's trying to do, he's thumbing your [sic] nose at you. He's just doing as he darn pleases and say, I'll get out of it somehow. I don't have to obey an order of this board. And when you see those pictures, it will show. MS. DEIFIK: Mr. Manalich, this is completely unrelated. Is there any way to dim these lights that are right in our eyes? MR. MANALICH: Let me find out. MS. DEIFIK: It's driving me crazy. MR. ARNOLD: I'll do it. MR. MANALICH: Mr. Arnold to the rescue. MR. GEBHARDT: Let me -- Let me just throw in two red herrings. Under the law my wife is entitled to work wherever she wants. I don't discuss my business with her. I'm a lawyer. She doesn't discuss her business with me, unless she's authorized to or unless I'm authorized to. So I think that it's out of line for him to introduce anything about my wife. The second thing is on my client. Everybody thinks my client is a big rich guy that's trying to pick this guy off and buy land cheap. I'll tell you why my client wanted to buy it. This right here is a list of all of the criminal incidences emanating from this property in the last three years. (indicating) If you had a $7 million investment, would you want to protect it? He's not trying to buy this property because he wants it. He's want -- He's trying to buy this property in order to protect his own property, and we should remember of the and it and just hold off until the county Page 15 August 22, 1996 this because to me this is a reflection of Mr. Ackerman's attitude toward his neighbors on any -- everything, including the fence. MR. ANDREWS: Can I ask which property that is? MR. GEBHARDT: I'm sorry? MR. ANDREWS: Can I ask which property that is? MR. GEBHARDT: This is -- MR. MURRAY: For the record -- For the record, this is absolutely not germane to what we're talking about today, and I would like a chance at some time to respond to it. MR. GEBHARDT: Well-- CHAIRPERSON RAWSON: Well, I'm going to just consider this opening statement from the neighbors, and whatever document he has that he's unfolding in front of the board is not evidence, nor do -- nor has it been identified and marked as such, nor do we really know what it is. MR. GEBHARDT: I understand. And that that completes my remarks while I fold -- CHAIRPERSON RAWSON: Thank you. MR. GEBHARDT: -- this back up. CHAIRPERSON RAWSON: Mr. Manalich, would you present the case for the county, please. MR. MANALICH: Thank you, Madam Chairman. We'd call as our first witness Bill Bolgar, code enforcement. THEREUPON, BILL BOLGAR, a witness, having been first duly sworn, upon his oath, testified as follows: (Staff's Exhibits A and B were marked for identification. ) MR. MANALICH: Please state your name for the record. MR. BOLGAR: My name is Bill Bolgar. MR. MANALICH: And how are you employed, sir? MR. BOLGAR: I'm the supervisor for Collier County code enforcement. MR. MANALICH: And how long have you been in that capacity? MR. BOLGAR: Seven and a half years. MR. MANALICH: Briefly what are your duties in that capacity? MR. BOLGAR: I -- I oversee the complaints that are called in the code enforcement department. We have -- MR. MANALICH: Have you been involved in a complaint involving the present case before the board, the Respondents Ackerman and McMillian, case number 95-0009? MR. BOLGAR: Yes, sir. MR. MANALICH: I show yo~ first what is marked as Staff Exhibit A and also Staff Exhibit B. Could you tell us what those documents are, please? MR. BOLGAR: They are findings of fact and conclusions of law and the order of the board and a revised order of the board. MR. MANALICH: So there were two orders, correct, an Page 16 August 22, 1996 original and a revised? MR. BOLGAR: Correct. MR. MANALICH: Now, in the original order, Mr. Bolgar, were there several elements listed at point 4 of the findings of fact? This is now Exhibit A at point 4. Were there four items that were identified to be in violation and in need of correction by the respondents? MR. BOLGAR: Yes, sir. MR. MANALICH: And items 4(A), parking bumpers; 4(B), boats; and 4(C), a mitered pipe, were those timely corrected by the respondents? MR. BOLGAR: Yes, they were. MR. MANALICH: And I'll call your attention to item 4(D) which provides for an opaque fence required by site development plan 92-90 to be installed. Was that timely complied with by the respondent? MR. BOLGAR: No, it wasn't. MR. MANALICH: Does the order state that there is a fine that will be in effect at paragraph 5 of Exhibit A if the opaque fence is not timely complied with? Paragraph 5 of Exhibit A. MR. BOLGAR: It's a fine to be ordered of $150 per day for -- for each and for every day any violation described herein continues past the compliance date. MR. MANALICH: Now, in regard to Exhibit B which was the board's revised order, if you could -- if you do not recall, if you could just briefly refresh your recollection by reviewing it. Did that order reach the issue of the opaque fence? And if -- if it'll ease your time of response here, I believe that paragraph 2 -- excuse me -- paragraph 1 of that revised order refers to violations -- the first three violations that were timely complied with. MR. BOLGAR: That -- that's -- That's correct. MR. MANALICH: Okay. So, in other words, just to save everyone time here, the revised order had nothing to do with the opaque fence -- MR. BOLGAR: That's correct. MR. MANALICH: -- correct? MR. BOLGAR: That's correct. MR. MANALICH: Now, is it correct that under the order and the revised order the opaque fence had to be installed but it did allow for the respondent to obtain a variance from the Board of County Commissioners? MR. BOLGAR: I understand that's correct. MR. MANALICH: And, in fact, is it not true that the respondent did seek that variance within a timely manner? MR. BOLGAR: That's corr~ct. MR. MANALICH: Okay. Do you know if the Board of County Commissioners acted on that variance? MR. BOLGAR: I believe on January the 15th -- or January the 9th, 1995, I believe it was denied by the board. MR. MANALICH: Okay. Now, under the terms of the Page 17 August 22, 1996 order -- and I would specifically direct your attention to paragraph 2 of page 2 of Exhibit A. MS. LOUVIERE: Could we modify that date, that the BCC heard the variance and it was denied on January the 9th, 1996? I believe he said 1995. MR. BOLGAR: I'm sorry. Yes, ma'am. Yes, ma'am. 1996. MS. LOUVIERE: Thank you. MR. BOLGAR: Thank you. MR.MANALICH: Directing your attention to Exhibit A, page 2, paragraph 2, toward the bottom of that paragraph, the last two lines, does it not indicate that a time for compliance of the installation of the opaque fence was required if the variance was denied? MR. BOLGAR: Yes. Within 15 days according to this document I have in front of me. MR. MANALICH: Fifteen days from when? MR. BOLGAR: Shall be install -- installed an opaque fence within 15 days of the respondent's failure to apply for relief -- denial or relief or for failure to diligently pursue the relief from the SDP requirements. MR. MANALICH: So would that take us, then, to January 25 as the first date that the order required compliance with an opaque fence? MR. BOLGAR: Yes, it does. MR. MANALICH: Okay. Now, is it your testimony today that compliance has yet to be achieved on this fence? MR. BOLGAR: That's correct. MR. MANALICH: And have you calculated from January 25, 1996, through the present date the total number of days of non-compliance? MR. BOLGAR: Two hundred eleven days. MR. MANALICH: Okay. And we've stated earlier that the rate was $150 a day; correct? MR. BOLGAR: That's correct. MR. MANALICH: And have you calculated the total amount of fines for that entire period, from January 25 through August 22, ninety -- 1996? MR. BOLGAR: I'll have to do that quick -- quickly now. MS. LOUVIERE: I may be able -- MR. MANALICH: Do you not have that already calculated? MS. LOUVIERE: I thought it -- I figured it out. I think it's $3,165; is that right? MR. BOLGAR: Oh, that's right. Yes. 3,650. MS. LOUVIERE: Oh. It's 3,650? MR. BOLGAR: Thirty-one -- 31,650. MR. MANALICH: Just to b~ clear now, it's 31,650? MR. BOLGAR: Correct. Thirty-one thousand six hundred fifty. MR. MANALICH: Now, were there also, Mr. Bolgar, two affidavits of non-compliance which inspectors completed for this property on two separate occasions? Page 18 August 22, 1996 MR. BOLGAR: I believe so. MR. MANALICH: Mr. Bolgar, let's talk and inform the board with regard to whether there are any extenuating circumstances regarding this total amount of $31,650 regarding these fines and specifically in regard to your involvement in this matter with the respondents. Let me begin first by asking you, in late January of 1996 or early February of 1996, did you have contact with Mrs. Ackerman? MR. BOLGAR: I did. MR. MANALICH: Okay. And what was the nature or what -- what happened when she contacted you? MR. BOLGAR: Mrs. Ackerman came to me with a sample of material that -- that she had obtained that she wanted to use to opaque the fence. MR. MANALICH: What did this material look like? MR. BOLGAR: (indicating) MR. MANALICH: For the record, you're showing a small sample of material, green in nature, porous, with some strips that are see-through. MR. BOLGAR: Correct. MR. MANALICH: Is that correct? MR. BOLGAR: Correct. MR. MANALICH: What is that called? MR. BOLGAR: I -- I refer to it as block-out. MR. MANALICH: What exactly is it, that material? MR. BOLGAR: It's a vinyl, woven material that is used on -- mostly on fences on baseball fields and tennis courts and the like, and the heavier, thicker weave is used on the -- on the ground to prevent weeds from growing through. MR. MANALICH: How did you happen to discuss this with -- this material with Mrs. Ackerman? MR. BOLGAR: She brought it to me and asked me if this material was -- was proper to put up on the fence to make it opaque. MR. MANALICH: And what was your response? MR. BOLGAR: That I would check with the planning department. MR. MANALICH: Did you also talk about any material referred to as slats? MR. BOLGAR: Yes, I did. I had a -- Prior to Mrs. Ackerman submitting this, she had called me.. One of the -- One of the items that the -- that's commonly used to opaque a fence are plastic strips, solid plastic strips that you weave into the fence and that -- she had called and told me that -- that she found that to be unavailable in this area. MS. DEIFIK: Excuse me. Mr. Bolgar, what was the date that Mrs. Ackerman came to yo~? MR. BOLGAR: Shortly after the 25th of January '96. I don't -- I don't have the exact date, ma'am. MS. LOUVIERE: And that was the date that she was required to comply -- MR. BOLGAR: That the 25th -- Page 19 < ,i. '! MS. LOUVIERE: ~f it was denied on January the 25th. MR. BOLGAR: That's correct. MS. LOUVIERE: Thank you. MR. MANALICH: You took the material. You talked with the planners. MR. BOLGAR: Yes. MR. MANALICH: And what did you determine about the material? MR. BOLGAR: The -- the -- The planning department advised me that this material was not opaque and could not be used on the fence. MR. MANALICH: And did you then communicate that to Mrs. Ackerman or Mr. Ackerman? MR. BOLGAR: I did. MR. MANALICH: When did that occur? MR. BOLGAR: I don't -- I -- I don't have documentation on when it occurred, but I'm going to say probably the end of January, the first part of February sometime. MR. MANALICH: Okay. And did Mrs. Ackerman tell you anything further at that point about what you would do to opaque the fence? MR. BOLGAR: Well, I had a conversation with her and told her about this material that I had knowledge of that was called block-out, and I suggested she look into that. MR. MANALICH: Okay. That was by phone in early February, or when did that occur? MR. BOLGAR: Yes. MR. MANALICH: Okay. Did you suggest a particular type of block-out, commercial or residential? MR. BOLGAR: Well, I -- I -- I explained that there are several gauges, and the heavier gauge I thought would work fine. MR. MANALICH: Did you discuss with her at all the thickness of the material or the opaqueness of the material? MR. BOLGAR: I did not. MR. MANALICH: What happened after -- What happened next after that? MR. BOLGAR: A short time later she called me back and told me that she could not filJ.d this material. So I told her I would g,=T:' ba~~~ '.;;iLh her. I would try to locate some of this material for her. And my wife works at a hardware store. I called there, and they said that they had it at Scotty's. I called Mrs. Ackerman back and told her what I had learned. MR. MANALICH: Okay. What did they have at Scotty's? MR. BOLGAR: That -- This block-out that comes in rolls of 6 foot -- 6 foot wide by 100 foot long. MR. MANALICH: Did she say she would obtain that material or was there any -- MR. BOLGAR: Yes. Yes, she did. And then a short time later -- probably another week or so passed that she called and said August 22, 1996 -- according to my calculations? Because January the 9th, then her compliance date was Page 20 August 22, 1996 it was unavailable at Scotty's. MR. MANALICH: Now, these contacts were occurring in what time frame? During February or into March? MR. BOLGAR: This is in -- This is into February now, middle of February, around there, around the end of February. And she said it was unavailable at Scotty's. At that time I said I would continue to try to help her and find some of this material, and I eventually called Home Depot and inquired about the material that I was speaking of. They said they had it. I called Mrs. Ackerman back and told her what size rolls they were and told her the price that they had quoted me. MR. MANALICH: And what was her response? MR. BOLGAR: That she would go up and obtain that material. MR. MANALICH: Okay. And this contact occurred approximately when? MR. BOLGAR: I -- I'm not quite sure, because the original conversation after -- after this was denied, some time had elapsed between the time I suggested what she look for. So I -- I would say this conversation was probably -- probably in June. MR. MANALICH: Okay. Between February and June, were there any contacts between you and the respondents? MR. BOLGAR: Very little. MR. MANALICH: And in that interim when you last had contact with them in February, where was this matter left at as far as who was supposed to be doing what? MR. BOLGAR: That they were going to be looking for some type of material to comply with the with the -- the board's request. MR. MANALICH: Okay. And then there was no contact until June? MR. BOLGAR: Well, there -- there was some contact. There was some minor contact on the phone from the end of February and March until the conversation about where to get the -- the block-out. I -- I haven't documented them. And they were conversations advising me that they were trying to get this material. MR. MANALICH: Was there any discussion about the family having any ill relatives or anything which were affecting compliance at any point from January forward? MR. BOLGAR: I -- I don't -- I don't recall a conversation like that, although I do believe there was some illness in the family, but I don't recall the conversation of that nature. MR. MANALICH: Was anything installed at the property as far as an opaque fence between January and June? MR. BOLGAR: No. MR. MANALICH: All right.. You mentioned that in June you had contact, and was that the Home Depot discussion? MR. BOLGAR: That's correct. MR. MANALICH: Okay. After that contact, was the next time you spoke to the respondents in mid-July at the code enforcement office? Page 21 August 22, 1996 MR. BOLGAR: That's correct. MR. MANALICH: Okay. And what happened on that occasion? MR. BOLGAR: Mr. Ackerman came into the office, and he had a roll of material and advised me that he had gone to Home Depot and purchased it, and he wanted me to look at it, and this took place in the lobby of the community development center. MR. MANALICH: How long did this meeting run approximately? MR. BOLGAR: Three minutes, four minutes. MR. MANALICH: Okay. And were you shown some material on a roll? MR. BOLGAR: I was. MR. MANALICH: What was the material? MR. BOLGAR: It was a fabric known as block-out. MR. MANALICH: Did you examine the material? MR. BOLGAR: I did. MR. MANALICH: And how did the material appear to you? MR. BOLGAR: When I unrolled it, it appeared to me to be opaque. MR. MR. MR. rolled? MR. BOLGAR: It's hard to MR. MANALICH: Was it one layer? Two layers? MR. BOLGAR: Well, at the time -- at the time I examined it, I -- I -- I assumed I was -- I was looking at one layer of thickness, but apparently after it was erected, I obviously must have been looking at the material doubled up because it -- it was opaque to me in the office at that time so -- MR. MANALICH: Okay. On that occasion based on what was presented to you and what you saw in that quick meeting, did you say that that material was acceptable to make the fence opaque? MR. BOLGAR: Yeah. I -- I -- I -- I told Mr. Ackerman that that material was opaque and that I would stand up in front of God and testify to that. MR. MANALICH: And that was based on what was presented to you and the way you saw the material unfolded in front of you? MR. BOLGAR: Correct. MR. MANALICH: Subsequent occur, by the way? That would MR. BOLGAR: I think that the 19th, I believe, of July. MR. MANALICH: Did the respondents subsequent to that date then, based on that disc~ssion, install that material on their fence? MR. MR. that you MR. MANALICH: Was it of a certain thickness? BOLGAR: It was. MANALICH: What degree of thickness was it as to that date -- When did that have been in mid-July? was around the nine about BOLGAR: They did. MANALICH: Did you issue an affidavit of compliance signed regarding that material that was installed? BOLGAR: Yes. Page 22 August 22, 1996 MR. MANALICH: Now, prior to issuing that affidavit of compliance, did you have anyone from your office go out to the site, or did you yourself go out there? MR. BOLGAR: Yes. I -- I told Mr. Ackerman that once he installed the fence to please call me, that I had to send someone down to take photos to show that the material was attached to the fence. MR. MANALICH: Okay. Was Sal Soldano the person you asked to go out and take the pictures? MR. BOLGAR: Yes. MR. MANALICH: Okay. Did Sal -- was he instructed by you to actually examine the fence, or was he simply taking pictures? MR. BOLGAR: No. Sa -- Sal was the investigator who worked the area. He was the closest one, and I just asked him to go over there and take photographs of the material. MR. MANALICH: Was the front of the property in the pictures that Sal took covered with opaque material on the fence? MR. BOLGAR: The front was, but the -- the -- the gate was not. MR. MANALICH: Did you then have contact with Mr. Ackerman regarding the need for that to be also opaque? MR. BOLGAR: Yes. And he explained that he had installed it on the gate, but when the gate electrically opened, it tore the material off. So I suggested that he possibly could put it on the opposite side of the gate that doesn't -- that's not interfered with when it opens, and then he did. He did do that, and I took photographs of that. MR. MANALICH: Now, subsequent to that, did something occur that called to your attention as to whether this fence was opaque or not as installed? MR. BOLGAR: Well, apparently, I believe Mr. Gebhardt approached someone from the county to go out and take a look, that he believed the fence was not opaque, and subsequently someone from the planning department went out and checked the fence and made a determination that it was not opaque. MR. MANALICH: Now, did you ever go out and check the fence? MR. BOLGAR: I did. MR. MANALICH: Okay. opaque? MR . BOLGAR: No . MR. MANALICH: When would you -- when -- Approximately what date was it that you went out there to check the fence? Was that around late July, the 24th or so? MR. BOLGAR: Yeah. Late July. It someplace between the 24th and the 28th MR. MANALICH: How many days after installed? . MR. BOLGAR: I would say within a couple of days. MR. MANALICH: How did the fence -- Well, please explain at this point to the board members the following. You had approved in your testimony the fence material that was presented.to you on that In your opinion, was the fence was someplace of July. the material was Page 23 August 22, 1996 rolled sheet. MR. BOLGAR: Correct. MR. MANALICH: How did the material that was installed at the site differ from what you had approved? MR. BOLGAR: Well, it -- it -- it wasn't opaque. You could see through it -- the material once it was installed. MR. MANALICH: Now, did you or Mr. Gebhardt take any pictures of that fence? MR. BOLGAR: I took -- I took -- Sal took -- Sal Soldano, the investigator, took some photographs, and then I went out and photographed. MR. MANALICH: In the pictures that were taken, did the fence appear opaque? MR. BOLGAR: The -- The photographs that Investigator Soldano took originally, when you look at them, they look opaque from the photographs. MR. MANALICH: Those were taken at a distance; correct? MR. BOLGAR: Those were -- those were -- those were taken -- I -- I think the reason they looked opaque is the angle the photographs were taken. MR. MANALICH: Okay. MR. BOLGAR: But once -- once you view the fence head on at a 90-degree angle, it obviously is not opaque. MR. MANALICH: Okay. CHAIRPERSON RAWSON: Can I interrupt just one minute just for clarification purposes and ask you if the material that was put in the fence is the very same material that you were shown in your office and approved. MR. BOLGAR: Yes, ma'am. CHAIRPERSON RAWSON: Thank you. MS. DEIFIK: Can I ask a question? Did Mr. Ackerman or Mrs. Ackerman or anyone ever approach you prior to January 25 to inquire whether any particular material was appropriate? MR. BOLGAR: Not I, ma'am. MS. DEIFIK: Do you acknowledge -- Did they approach anyone in your office? MR. BOLGAR: I don't know. CHAIRPERSON RAWSON: Forgive the interruptions, Mr. Manalich. MR. MANALICH: That's okay, whatever will help. Were you able to make any observations, Mr. Bolgar, with regard to the manner in which this material was installed on the fence? MR. BOLGAR: No. I did not examine how it was attached. MR. MANALICH: Okay. MR. BOLGAR: Is that wha~ you're asking MR. MANALICH: Right. MR. BOLGAR: -- Mr. Manalich? No, I did not. MR. MANALICH: Do you know what were the costs incurred by the respondents to install the material that was installed?m Page 24 August 22, 1996 MR. BOLGAR: I do not. MR. MANALICH: Do you know if this material as placed on the fence will withstand wind? MR. BOLGAR: No, I do not. MR. MANALICH: And I think an important question is, how did the material differ as installed from what you saw in your office and approved? MR. BOLGAR: Well, what I looked at in my office was obviously to me at that time opaque. What was installed was no longer impa -- opaque, and I believe the reason that to be is I -- I looked at double layers in the office as opposed to a single layer. MR. MANALICH: Let me show you some photographs that were handed to me earlier by Mr. Gebhardt. I know you didn't take these, so obviously I'm not going to offer them into evidence, but do they illustrate to you the condition of that fence as you saw it? MR. MURRAY: Before you ask that question, could I see those first? MR. MANALICH: Yeah. I'm sorry, Counsel. MR. ANDREWS: While -- While we're waiting, can I ask Mr. Bolgar a question? I'm a little bit confused. I'm always confused, but I'm confused more. You -- You said that -- that they install -- they installed that -- whatever it was around the middle of July, that opaque stuff. MR. BOLGAR: Yes, sir. MR. ANDREWS: And -- and you inspected it, and -- and -- and it looked like it was okay except the gateway was -- hadn't been done or was torn off or something; right? MR. BOLGAR: He installed it, and then when he called me, I sent one of my investigators out, and we took photographs. At that point I -- MR. ANDREWS: It was -- Okay. MR. BOLGAR: At that point I had only viewed the photographs that Investigator Soldano had taken. MR. ANDREWS: But as far as you're concerned, it it was okay outside of the fence; right? MR. BOLGAR: Yes. The photographs that were -- and I have the photographs. To me the photographs looked like they were -- the material was opaque at that time. MR. ANDREWS: And you went out another time, and it wasn't opaque? MR. BOLGAR: That's correct. And I -- I made -- I made a site visit myself to get a photograph of the -- the fence, the gate which had not been covered when Mr. Soldano took the photographs. MR. ANDREWS: Well, that's why I'm confused. One -- One time it's opaque, and one time it isn't, and that's what confuses me. MR. BOLGAR: Yeah. It -- It was opaque by the photographs. The photographs "that were taken, they appear to be -- the fence appears to be opaque, and possibly it's -- it's the angle that the photographs were taken. MR. ANDREWS: Thank you. MR. MANALICH: Mr. Bolgar, let me show you first and Page 25 then allow the board to also examine Andrews just referred to. Are those more or less around July 24? MR. BOLGAR: Yeah. The -- the -- The copy with the three photographs were taken by Mr. Soldano, and the one with the one photograph across the front was taken by me. MR. MANALICH: Okay. Now, these are the photos, if you'll hand them to me, please, that you examined. Madam Chairman, if I may approach and allow the board members to review -- CHAIRPERSON RAWSON: evidence? MR. MANALICH: No. This is just for illustration. I I don't think it needs to be in evidence. CHAIRPERSON RAWSON: Okay. MR. MANALICH: Now, Mr. Bolgar, those are the photographs that you originally saw that Mr. Soldano took? MR. BOLGAR: That's correct. MR. MANALICH: You thought that the fence was in compliance; right? MR. BOLGAR: That's correct. MR. MANALICH: Now, subsequent to that, when you received contact from Mr. Gebhardt, you went to the site? MR. BOLGAR: I -- I didn't -- I didn't receive contact from Mr. Gebhardt. Someone I believe in the planning department received information from Mr. Gebhardt that he wanted the planning department to look at the fence. MR. MANALICH: Okay. But, in any event, it came to your attention. You went to the site. MR. BOLGAR: That's correct. MR. MANALICH: And at the site did the fence in person appear to be opaque? MR. BOLGAR: It did not. MR. MANALICH: Did you stand in numerous places around the property? MR. BOLGAR: No. I -- I was strictly in the front and took photographs of the front of it. MR. MANALICH: From the front, this material had been placed on that portion of the fence; right? MR. BOLGAR: That's correct. MR. MANALICH: And was the fence opaque viewed from the front? MR. BOLGAR: It was not. MR. MANALICH: And was the material installed on the front installed the same way throughout the property? MR. BOLGAR: I believe so. MR. MANALICH: So it wouid have been opaque -- not opaque throughout the property? MR. BOLGAR: That's corr -- That's correct. MR. MANALICH: And was it visibly transparent to you from a distance away from the fence? August 22, 1996 the photographs of what Mr. the ones that Mr. Soldano took You want to introduce these into Page 26 August 22, 1996 MR. BOLGAR: It was. MR. MANALICH: So are you telling us that those photos were misleading, then, as they looked when you first saw them? MR. BOLGAR: Yes. MR. MANALICH: And, in fact, that fence is not opaque, is that correct, as installed? MR. BOLGAR: That's correct. MR. MANALICH: You had in your possession -- counsel's also seen the photos that I realize you did not take but that were taken at the site by Mr. Gebhardt's representatives, and did those photos appear to accurately reflect what you saw as far as the condition of the fence at the time? MR. BOLGAR: They do not. MR. MANALICH: They do not? MR. BOLGAR: They do not. MR. MANALICH: In what way do they differ? MR. BOLGAR: Well, the fence when I looked at it was completely -- the material on the fence was completely intact, and these photographs show that it is loose in many places and flapping in the wind. MR. MANALICH: Okay. Was the fence secured by those wooden little tie beams when you saw it? MR. BOLGAR: I -- I don't recall. MR. MANALICH: In order to finish up here with your testimony, Mr. Bolgar, let's go through a couple of things here that we need to be clear on for the board. During this entire period that you had discussions with the respondents, did you ever promise yourself or know of anyone in code enforcement that promised any reduction of fines to the respondents? MR. BOLGAR: I did not. MR. MANALICH: In the initial period of time when you were first approached by the respondents, you testified you held the material for some period of time in January or February, the green material. Do you know approximately how long at the most you may have held that? MR. BOLGAR: Well, I had a conversation with Mrs. Ackerman where she -- she tells me that we held it for 30 days. I-- I don't know that we did hold it for 30 days. But since I don't have any documentation -- I know we did hold it for a while -- I would not contest the fact that we did hold it for 30 days. MR. MANALICH: Did you at any time during this entire period, from January until the present -- excuse me -- from January until your meeting in the lobby of July where you approved the material on the roll -- in that interim of time, did you ever tell any of the respondents that they ~ere excused from compliance with the order? MR. BOLGAR: I did not. MR. MANALICH: How do you view your role in this whole situation as far as, what was your involvement, and what were you trying to do in your contacts with the respondents? Page 27 August 22, 1996 MR. BOLGAR: Well, I -- I -- I -- I was hoping that I was trying to help them, but obviously, you know, it didn't exactly turn out that way. I was trying to find material for them, trying to find a place to obtain it at a good price. MR. MANALICH: When you mistakenly, according to your testimony, approved the material that was exhibited to you on the roll, did you make a statement to the effect to Mr. Ackerman that you would stand before God and others and state that if they installed this there, they would have no more problems? MR. BOLGAR: That's an accurate statement. MR. MANALICH: Okay. When you said they would have no more problems, what were you referring to? MR. BOLGAR: The opaqueness of the fence. MR. MANALICH: Okay. Were you referring in any way to the fines or whether they would be reduced or eliminated? MR. BOLGAR: I was not. MR. MANALICH: Within the structure of county government with regard to site development plan compliance, is Mr. Arnold the person that ultimately makes those determinations? MR. BOLGAR: Concerning? MR. MANALICH: Compliance with the site development plan requirements. MR. BOLGAR: Yes. Mr. Arnold or someone on his staff. MR. MANALICH: Let me mark this as an exhibit and show you this letter. (Staff's Exhibit C was marked for identification.) MR. MANALICH: I'll show you a copy of a letter from Mr. Arnold to the respondents that is dated, I believe, July 29, and it's our. Exhibit C. MR. BOLGAR: Correct. MR. MANALICH: How did this letter come about, and what does it provide? MR. BOLGAR: This -- This letter was initiated by, I believe, either Mr. Arnold or one of the staff going out and viewing the -- the opaqueness of the fence. MR. MANALICH: And does it indicate that the fence is not opaque? MR. BOLGAR: That's correct. It does. MR. MANALICH: Were you aware of this letter going out? MR. BOLGAR: Yes, I was. MR. MANALICH: Did this letter come about as a result of your personal inspection of the property in addition to Mr. Arnold's? MR. BOLGAR: I think both, once I realized it was not opaque, and then Mr. Gebhardt apparently asked for a second opinion from the planning department and that's what necessitated -- MR. MANALICH: Now, those refer to some fencing requirements being attached. -Do you know if those were attached as part of the letter? MR. BOLGAR: Apparently they were not, after hearing Mr. Murray. MR. MANALICH: Okay. In summary, Mr. Bolgar, is this Page 28 August 22, 1996 fence at this present time opaque? MR. BOLGAR: It is not. MR. MANALICH: Has it ever been opaque? MR. BOLGAR: No. MR. MANALICH: No more questions. CHAIRPERSON RAWSON: Before we start the cross-examination, I've been requested that -- that we take a break. So it's -- what? -- ten o'clock? Is that what that says? Why don't we take a ten-minute break, and the Code Enforcement will be in reinsess (phonetic) -- in recess for ten minutes. (A short break was held.) CHAIRPERSON RAWSON: The Code Enforcement Board will come back to order. Let me just say this little housekeeping thing. I certainly don't want to impede justice, and I want to give everybody ample opportunity to say whatever they're going to say, but just so you all know, this board -- and you need all of us -- isn't going to be able to stay all day. MR. ANDREWS: You can say that again. CHAIRPERSON RAWSON: I have to be in court at one o'clock for starters, and I know the court reporter needs to leave at noon. So, keeping that in mind, you guys just go through and present all your evidence, but if we don't finish, we're going to have to come back, just so you know. Let's see. It's cross-examination, I think, Mr. Murray. MR. MURRAY: Mr. Bolgar, what is your job again, please? MR. BOLGAR: I'm supervisor for Collier County code enforcement. And, Mr. Murray, I want to make a correction. I want to thank you for promoting me during your opening remarks as an inspector, but inspectors are up here, and investigators -- what I am -- are down here. (indicating) MR. MURRAY: Okay. Well, please don't mention it. MR. MANALICH: Excuse me, Mr. Murray. I'm sorry to interrupt, but I just want to check with the court reporter. Does he need to be at a mike for purposes of transcription? THE COURT REPORTER: CHAIRPERSON RAWSON: MR. MANALICH: I can brought to the table. MR. MURRAY: Oh, I'm sorry. You have a mike there. Okay. MR. MANALICH: bring to the table. MR. MURRAY: That's -- That's all right. I'll -- I'll go over here. MR. MANALICH: Okay. MR. MURRAY: Okay. For purposes of the court reporter, would you please state your job again, please. MR. BOLGAR: My name is Bill Bolgar, and I'm supervisor for Collier County code enforcement. MR. MURRAY: Okay. Apparently I inadvertently promoted (Nodding head.) I think so. -- There's one here that could be Well, there's one here I can -- I can Page 29 August 22, 1996 you. And to what rank did I promote you? MR. BOLGAR: To inspector. I believe you referred to me as an inspector. MR. MURRAY: Okay. Does Mr. Mike Kirby work for you? MR. BOLGAR: He does. MR. MURRAY: Okay. And did you know that, in fact, he -- he had a question about the fence and that he was -- Did you know that he made an affidavit up about non-compliance in May concerning the fence on Mr. Ackerman's property? MR. BOLGAR: Yes. I -- I believe he did. MR. MURRAY: Did you know about it when he did it? MR. BOLGAR: No, I did not. MR. MURRAY: Okay. Did he ever come to you and say they apparently are waiting for some information from you? MR. BOLGAR: I -- I don't recall a conversation like that. He could have, but I certainly don't recall a conversation like that. MR. MURRAY: Okay. You stated before that you were attempting to assist the Ackermans; is that true? MR. BOLGAR: Yes, sir. MR. MURRAY: And do you recall that you had a meeting with myself and Mr. And Mrs. Ackerman? MR. BOLGAR: Yes, I do. MR. MURRAY: About the site compliance or compliance with the code in regard to the -- the site plan? MR. BOLGAR: Yes. We did have a meeting which you attended, and the Ackermans were there, and I believe that was in June of ' 95 . MR. MURRAY: Okay. And that site plan and I want to show you a copy of it, and I'll give a copy to each member of the board. CHAIRPERSON RAWSON: Mr. Murray, do you want this into evidence? MR. MURRAY: Yes, I will. CHAIRPERSON RAWSON: Even though it's during the -- MS. DEIFIK: Cross. CHAIRPERSON RAWSON: -- during the cross and it's not during your case, I guess it -- MR. MURRAY: We'll present it during our case. CHAIRPERSON RAWSON: Okay. Well, if Mr. Manalich has no objection, I suppose you could have it marked now. MR. MANALICH: I'll reserve any objection, provided he links it up during his -- CHAIRPERSON RAWSON: Okay. You don't mind the board looking at this? MR. MANALICH: No. CHAIRPERSON RAWSON: Okay. Go ahead. MR. MURRAY: Now, is that the site plan that we were discussing when you met with us? MR. BOLGAR: Yes. I believe it is. MR. MURRAY: Okay. That site plan is fairly detailed, Page 30 August 22, 1996 is it not? MR. BOLGAR: Yes. MR. MURRAY: Okay. all on opaque? MR. BOLGAR: I -- I don't believe there is on this. MR. MURRAY: Okay. Would you please check because I may have missed it, and you know more about that than I do. MR. BOLGAR: Okay. I -- when it -- When it comes to reading a site plan, I have to rely upon a planner. I'm not experienced in -- in that field. That's why originally when I went out to the site I took a planner with me, and that's one of the reasons that we had Mike Kirby as the investigator in charge of this case. MR. MURRAY: Okay. How many investigators work for you? MR. BOLGAR: Fifteen. MR. MURRAY: Okay. You're charged with code enforcement, are you not? MR. BOLGAR: Yes, sir. MR. MURRAY: Okay. Clear up something for me because I don't understand it. My impression was that the planning division did the planning, and they were the ones that you went to for the zoning. Once you got the certificate of occupancy, then they turn it over to you for enforcement of the code to make sure they keep it up; is that not true? MR. BOLGAR: That's -- That's true. MR. MURRAY: What is planning doing in this? Aren't you the code enforcement people? MR. BOLGAR: Yes, I am. MR. MURRAY: Are they here simply because Mr. Gebhardt on behalf of Mr. Lennane raised it with them? MR. MANALICH: Objection. Argumentative. MR. MURRAY: I'm asking a legitimate question. I want to know why. MS. LOUVIERE: Could -- Could I just state one thing? I'm sorry to interrupt, but I believe right here it says that there is a 6-foot-high chain-link fence to be opaque, typical all sides. MR. MURRAY: Correct. We have no -- We have no problem. I said, is there any detail about -- MS. LOUVIERE: You said you couldn't find it on the site plan, so I just wanted to correct it. MS. DEIFIK: It's right in the middle on front. MR. MURRAY: I'm sorry? MS. DEIFIK: You stated earlier that you couldn't find anywhere on the site plan where it said opaque and -- and -- MR. MURRAY: In any detail. Opaque in any detail. It says opaque, and I'm going to give you the -- the dictionary definition of opaque and see if anything there -- Now, take a look at the trees. They tell you the type of trees, the diameter of the trees, how old they're supposed to be and where they're supposed to be located, how many feet and inches, et cetera, but there is nothing about opaque. And -- and my point is They almost always are. And is there any kind of detail at Page 31 August 22, 1996 that there is -- The fact is everything here was explained. We had a -- MS. DEIFIK: I think we understand the English language. MR. MURRAY: Okay. I -- I -- if -- if I may -- If I may, I -- I think I'm going to get to the point. I can argue it now, but I -- I think I'd like to bring it out here. Mr. Bolgar, have you been involved with chain-link fences before on any of the other site plans? MR. BOLGAR: Opaque fences or chain -- MR. MANALICH: Objection. Relevancy. MR. MURRAY: Just chain-link. Let's just start with chain-link fences. MR. BOLGAR: I -- I -- I've been involved with violations of fences. MR. MURRAY: Okay. How about opaque fences? MR. BOLGAR: No. MR. MURRAY: Never before? MR . BOLGAR: No . MR. MURRAY: Are you responsible for code enforcement for the other marinas? MR. BOLGAR: Yes. MR. MURRAY: Did the other marinas have opaque fences? MR. BOLGAR: I MR. MANALICH: Objection. Relevancy. MS. MCEACHERN: Madam Chairman -- CHAIRPERSON RAWSON: Well, you know, it pro -- probably -- probably isn't relevant, but this is the Code Enforcement Board, and, you know, we are relaxed in the rules of evidence, and so you can answer if you know anything about the chain-link fences on other marinas. MR. BOLGAR: Okay. MR. MANALICH: Madam Chairman, just to respectfully understand the board's ruling, just -- I'd like to offer a continuing objection to that line of questioning regarding other marinas and other properties. MS. MCEACHERN: And,. Madam Chairman, if I may add something, we have an order that -- that the owner stipulated to with regard to the opaqueness that he -- that he would install it if he didn't get the variance and -- within 15 days or a fine would start at $150 per day. So that even makes other chain-link fences at other marinas totally irrelevant and immaterial. CHAIRPERSON RAWSON: This board can decide what weight, if any, to afford to his testimony about other chain-link fences in other marinas in the world. But you can answer his question. MR. BOLGAR: Okay. If I get a complaint on another marina concerning an opaque fence, the very first thing I have to do is go take a look at the site development plan with a planner because I don't think in all instances an opaque fence is -- is required. It's required when it's a part of the site development plan, something that the planners ask for and the developer agrees to do. So your answer is, no, not all of them are opaque. Page 32 August 22, 1996 MR. MURRAY: Okay. You stated under your testimony that you went on and reinspected. Did you reinspect after you were contacted by a planning division or department or whatever it is? MR. BOLGAR: No. I -- I -- I went on my own when I took the photographs a couple of days -- A couple of days after Mr. Soldano took the photographs and I viewed them, I went out on my own. MR. MURRAY: Okay. I'm going to show you a price quotation from Swartz and Associates, and I want to ask you if -- if Nancy Ackerman showed this to you when she came to see you with the sample of the material. MR. BOLGAR: She did. MR. MURRAY: Okay. And would you please read the date on that. MR. BOLGAR: It's a price quotation from Swartz and Associates. It's dated January the 15th, 1996. MR. MURRAY: Thank you. You've already stated under oath that you don't remember when that meeting was that she came to see you? MR. BOLGAR: Concerning the MR. MURRAY: Concerning the MR. BOLGAR: -- the sample? I don't have -- I don't know I would venture to say it was the sometime. MR. MURRAY: Okay. MR. BOLGAR: The latter part possibly. MR. MURRAY: If she testifies that it was around this time because this is when she picked it up, would you have any would you have a problem with that? MR. BOLGAR: No, I would not, because I did not document the date, but I do recall she did come in. MR. MURRAY: Okay. If Mrs. Ackerman testified that every so many weeks -- every three or four weeks that she made a call to you and left a message for you, is it possible that she did and you did not get the messages? MR. MANALICH: Objection. CHAIRPERSON RAWSON: Well, It is speculative. You can ask messages he got. MR. MURRAY: Okay. When -- When Mrs. Ackerman came to see you after -- I'm sorry. How many -- How many times did Mrs. Ackerman call you between January and June? MR. BOLGAR: I would have to answer that as numerous. I had numerous conversations with Mrs. Ackerman. MR. MURRAY: Okay. Mr. ~olgar, would you please tell the board what type of fence is acceptable. What type of fence is an acceptable opaque fence? MR. BOLGAR: Well, I would describe it as the -- the material that -- that I had recommended but a heavier gauge, and I have samples of that if the board is interested. And if you go by the sample. The sample? the exact date, end of January, but -- but I'm going to guess Speculative. I'll sustain that objection. him directly about how many of the Page 33 August 22, 1996 definition -- and I also took the liberty to look up the definition of opaque -- MR. MURRAY: And what is that definition? MR. BOLGAR: It is -- This is from the American Heritage Dictionary. It's opaque, impenetrable by light, neither transparent or translucent, not reflecting light, having no luster. MR. MURRAY: Is there a brand name that comes to mind that meets those requirements? MR. BOLGAR: No. I -- I don't know a brand name. MR. MURRAY: Okay. Did Mr. Soldano report to you that after he inspected the fence that it was in compliance that he thought it was in compliance? MR. BOLGAR: Mr. Soldano just delivered the pictures to my office, is all he did. MR. MURRAY: Okay. Is this infraction -- This alleged infraction of the fence, is this your responsibility, or is this planning responsibility? I'm confused. MR. BOLGAR: Well, part -- I would say part of it is code enforcement's responsibility. MR. MURRAY: Does planning, like, regularly follow you around to different projects and second-guess the decisions you've made? MR. BOLGAR: Well, I don't think they second-guess us. I think we consult with them if there's some question as to an interpretation of what we're doing. MR. MURRAY: Okay. But you didn't consult with them on this, did you? MR. BOLGAR: On -- on -- on the fabric that I -- the fabric that I approved? MR. MURRAY: Right. MR. BOLGAR: I did not. MR. MURRAY: I have nothing further. CHAIRPERSON RAWSON: Redirect? MR. MANALICH: I'm sorry, Madam Chairman. Just one moment. Just a couple of questions, Mr. Bolgar. Your decisions that you made regarding opaqueness and the material that was presented to you in July, was that at all based on the feedback you had had from planning regarding the previous green material that you had been shown back in January? MR. BOLGAR: Yes, it was. MR. MANALICH: Please explain the interconnection there. MR. BOLGAR: Well, the original piece of -- of -- of material was obviously not opaque. You could see through it very clearly. So I sort of had some idea what they were talking about. And particularly after I read.the definition of opaque, I -- I -- I knew that block-out in it -- in it -- in its commercial form would fit the bill. MR. MANALICH: From the code enforcement perspective, whose responsibility is it to install and make sure that the material placed on the fence is opaque? Page 34 August 22, 1996 MR. BOLGAR: It -- It's the -- the responsibility of the building inspectors in the planning department. Before they issue a CO, they go out and determine if all the -- all the elements of the site development plan have been met. MR. MANALICH: Okay. But let me repeat my question. What I was asking was, from your perspective in code enforcement I'm not asking who determines compliance with opaqueness. What I'm talking -- What I'm asking you is, from your perspective in code enforcement, whose responsibility is it to ensure compliance with the board's order and to make sure that the fence opaqueness gets installed and it gets installed in a manner which is in compliance with the order? MR. BOLGAR: The respondent. MR. MANALICH: And in all of these discussions, all of these conversations you had with the respondents, were you in any way trying to substitute for that role that you just described? MR. BOLGAR: I was not. MR. MANALICH: What were you trying to do? MR. BOLGAR: I -- I was trying to help with -- with expedite this thing. MR. MANALICH: And just to be clear, based on your previous testimony, in all of those contacts, did you ever tell the respondents that you or anyone in your department was excusing them from their compliance duty under the order? MR. BOLGAR: No. MR. MANALICH: Thank you. No further questions. CHAIRPERSON RAWSON: Recross? MR. MURRAY: Nothing. CHAIRPERSON RAWSON: Thank you. You may call -- MR. LAFORET: I have a question I would like to ask the witness. CHAIRPERSON RAWSON: I'm sorry. Any of the members may now ask questions, Mr. Bolgar. MR. LAFORET: Are you familiar with the coating they put inside of automobile windows and my home in the windows -- put a coating on it? Now, from the outside nobody can see in. From the inside you can see out. Is that opaque? MR. BOLGAR: Well, I -- I suppose if you ask ten people that question, you would get nine different answers. I -- I -- I don't know. I'd have to look at the material before I could answer that question. MR. LAFORET: You're not familiar -- Your car is not tinted? Your house is not tinted windows? MR. BOLGAR: My -- Yes, my car is. My house is not. And it -- my car windows -- my car -- MR. LAFORET: Can you see in your car windows -- MR. BOLGAR: They're definitely -- MR. LAFORET: -- from the outside? MR. BOLGAR: You can see through quite MR. LAFORET: All right. Then they're not opaque? MR. BOLGAR: No, they're not. Page 35 August 22, 1996 MS. LOUVIERE: Can I ask one question? You stated that in Feb -- or you tried -- you were having contact with Mrs. Ackerman through February, and you mentioned to her that the material that you thought would satisfy this SDP for opaqueness could be found at Scotty's. MR. BOLGAR: That's correct. MS. LOUVIERE: You did state that to her. MR. BOLGAR: Yes, I did. I did say that to her. MS. LOUVIERE: And then she never acted on it, and she never purchased it, to the best of your knowledge. MR. BOLGAR: She did get back to me, either Mr. or Mrs. Ackerman, at some point after my suggestion of where to get it. MS. LOUVIERE: Right. MR. BOLGAR: Some time elapsed where they did get back with me and say that Scotty's -- it was not available at Scotty's. MS. LOUVIERE: And that was -- then -- Because of the time lapse, then it wasn't available. Then you suggested to them, Hey, go over to Home Depot. It might be there also. MR. BOLGAR: Yes, ma'am. MS. LOUVIERE: I believe you stated that. MR. BOLGAR: Yes. And more time elapsed, and I made some phone calls, and I suggested -- and I found it at Home Depot, and I suggested they go there. Yes. MS. LOUVIERE: All this time you've been calling around. You called Scotty's. You called Home Depot trying to point these people, Mr. and Mrs. Ackerman, in the -- in this direction to go purchase this material. MR. BOLGAR: Yes, ma' am. MS. LOUVIERE: Okay. Thank you very much. MR. MURRAY: Can I have one last question? CHAIRPERSON RAWSON: Sure. MR. MURRAY: Mr. Bolgar, you've dealt with the Ackermans, and you've already testified that you had numerous telephone conversations or conversations with the Ackermans between January and June? MR. BOLGAR: Correct. MR. MURRAY: Do you think they should be imposed with a fine? And I want you to be just totally honest about that. MR. MANALICH: Objection. That's invading the province of the board as far as the determination of the fine. CHAIRPERSON RAWSON: I'm going to sustain the objection. I -- I don't think it's his decision whether or not this board imposed a fine. And whether he thinks we should or whether he thinks we shouldn't probably is irrelevant to what we're going to do, although sometimes we do ask for recommendations, and I think we've already gotten those recommendations ~rom the county attorney in his opening statement. So for that reason, I -- I'm not going to make him answer that question. MR. MURRAY: I have no further questions. MR. ANDREWS: I have I have a question. Is this -- this whole case dependent on -- on opaque, what -- what really is Page 36 August 22, 1996 opaque? MR. BOLGAR: Yes. MR. ANDREWS: I think we could sit here and -- and argue for 20 years and -- and never come to a final decision. I understand that the gentleman put on a -- what he thought was an opaque fence, and maybe a lot of people thought it was opaque, and a lot of people thought it wasn't. Opaque is a very big -- biggest word, and I think we could talk -- argue that one. If -- If this whole case is dependent on that -- on that thing, I think we're spinning our wheels here. MS. DEIFIK: Excuse me, Charlie, but I don't think that the case is dependent on that factor at all. MR. ANDREWS: Well, that's why I'm asking. MS. DEIFIK: I think it's a number of factors MR. ANDREWS: I am asking. MS. DEIFIK: -- time frame, and certainly we need to let both parties complete their case so that we can find out what other factors might be relevant. MR. ANDREWS: I know, but we're beating that to death. That's why I ask the question, to get an answer. Anyway, anyone got an answer? Thank you. MR. KOWALSKI: Madam Chairperson, I don't know if it's appropriate, but the board might want to ask the question along the following lines. If the material is not, in the opinion of staff, opaque and part of the order that this board may issue if the county staff's position is sustained might require that something different or additional be done to cause compliance, I don't know whether the prqperty owner would still be at his own peril to determine what needs to be done or whether the board wants to inquire of any of the county witnesses in their opinion what needs to be done in order to effect compliance. I don't want to ask that question, but y'all -- MS. LOUVIERE: I think -- MR. KOWALSKI: -- mayor may not want to. MS. LOUVIERE: I think that's a good -- good point, and I think we may ask that when Wayne Arnold comes up and and presents and gives us his thoughts. MS. DEIFIK: And, Mr. Kowalski, you were not here in November, but I -- I very vividly recall the presentation by Burt Saunders who was representing Mr. Ackerman at that time, and those very issues came up at that time, and Mr. Saunders on behalf of the Ackermans in response to queries from the board as to why they had not investigated what they could do over the past two and a half years, because it was a 1992 STD [sic], said that that would be dwelling in the past, and he wanted to look to the future and assured the board that between November and the_time of the next county meeting they would ascertain what was appropriate and guarantee that it would be installed immediately after a hearing if the variance were denied. So I think that the time factors are a critical item here also and who had the responsibility. CHAIRPERSON RAWSON: You can call your next witness. Page 37 August 22, 1996 I -- I guess you -- you're excused, Mr. Bolgar. Thank you. MR. BOLGAR: Thank you, ma'am. MR. MANALICH: Before the witness is excused, I just want one clarification. Mr. Bolgar, do you have the date when the present material was installed on this fence? MR. BOLGAR: I believe Mr. Ackerman put it up on July the 19th and 20th or 18th and 19th, and we photographed it on the 22nd and then on the 24th again. MR. MANALICH: Okay. Thank you. MR. MURRAY: Then I have one more question. CHAIRPERSON RAWSON: Yes. MR. MURRAY: Did the Ackermans ever display an attitude of -- of ignoring this requirement, or were they earnestly trying to -- to comply with getting an opaque fence? MR. BOLGAR: They never displayed an attitude of ignoring the issue to me. MR. MURRAY: Thank you. CHAIRPERSON RAWSON: Thank you. You may call your next witness. MR. MANALICH: Well, Mr. Bolgar, before you're excused, I -- I feel compelled to follow up. Regardless of the attitude you perceived, the fact of the matter is, it was their responsibility to install the material, and it was not done until July; correct? MR. BOLGAR: That's correct. MR. MANALICH: All right. Thank you. Our next witness is Mr. Arnold. THEREUPON, DONALD W. ARNOLD, a witness, having been first duly sworn, upon his oath, testified as follows: MR. MANALICH: Good morning. Please state your name. MR. ARNOLD: Donald W. Arnold. MR. MANALICH: And how are you employed, sir? MR. ARNOLD: I'm the planning services director for Collier County. MR. MANALICH: And how long have you been in that capacity? MR. ARNOLD: Approximately two and a half years. MR. MANALICH: What are your basic duties in that role? MR. ARNOLD: My primary supervisory responsibilities include supervising our long-range planning activities, zoning activities, metropolitan planning organization, and engineering inspections. MR. MANALICH: I show you what has been marked as Staff Exhibit C, a letter dated July 29, 1996. Are you familiar with that letter? MR. ARNOLD: Yes, I am. MR. MANALICH: Is that one that you issued? MR. ARNOLD: Yes, I did. MR. MANALICH: And was that in relation to a Code Enforcement Board case number 95-0009 in which the respondents are Page 38 August 22, 1996 among Mr. McMillian and Mr. Ackerman? MR. ARNOLD: That's correct. MR. MANALICH: How did you come to write that letter? MR. ARNOLD: I believe on approximately August the 13th I had an occasion in this room to be dealing with another Board of County Commissioner item, and Mr. Gebhardt asked if I had been down to see Mr. Ackerman's property, and I had indicated, no, I had not. He displayed a photograph and said, This is the fence that they installed. I went back about my business. No other action took place. A few days later I was approached by our administrator and was asked if I had viewed the fence, and I said I had seen a photograph of it. At that point in time, I met with code enforcement. We discussed the issue, and it was suggested that we needed to respond to Mr. Ackerman regarding the fence. MR. MANALICH: And what action did you take then in order to respond? MR. ARNOLD: I went back to the Land Development Code which is another part of my responsibilities. The code establishes that my position is the interpreter of the Land Development Code. I went back to the sign provisions which is section .6 of the Land Development Code, and that sets forth the standards for fencing requirements. And in there, there are a couple of sentences that were alluded to in my letter that -- that, if you will, mandates, what a person has to do to comply. There's also another provision of the code if you look -- This particular property, if I can maybe just make a few statements, is unique in that it has two zoning districts that split the property. It's partially zoned C-3. It's partially zoned C-5. The C-3 zoning in itself would not permit the use that's there. But the presence of the C-5 zoning allows a much more intensive land use. As stated by the representative's attorney, this was never approved as a marina. It was approved as a marine repair facility, and there is a distinction there. MR. MANALICH: What-- MR. ARNOLD: If you look MR. MANALICH: I'm sorry. Go ahead. MR. ARNOLD: The C-5 zoning district says that any outside storage of vehicles or other equipment other than those for sale on the premise, which we would include car dealerships, et cetera, where you typically would have outdoor display of sale items -- it says that they must be fenced or screened, and it shall be opaquely screened. When you go to the sign -- excuse me -- the fence requirements in our code, it doesn't specifically tell you what opaquely screened is, but it does tell you that fencing has to be made of acceptable building materiqls. It has to be maintained. It also can't detract from the neighborhood. And based on the review of the photographs, I then made a site visit. At the time I made my site visit, I could see through the screening material. I could also see it was attached by a series of what looked to be maybe 1 by 2 strips that were somehow anchoring it, but at the time I also viewed the Page 39 August 22, 1996 facility. The -- It had become detached in certain areas and was blowing in the wind; and, therefore, there was no opaque screening over a portion of the property. So based on that I came back, I drafted this letter and sent it to Mr. Ackerman --or I actually didn't. It was sent out certified mail by our code enforcement department. And I guess I can apologize for not attaching the fence requirement section because I -- I think I should have provided that to the code enforcement department, and I failed to do that before the letter was transmitted to Mr. Ackerman. MR. MANALICH: Now, Mr. Arnold, in your letter, what are the deficiencies with the fence that you specifically point out to the respondents? MR. ARNOLD: I had pointed out that the material as installed didn't appear to be of sound construction materials and that it appeared to be collapsing, which I stated it was collapsing -- it was freely blowing in the wind when I viewed it -- and that -- that it did not appear to be finished or present a finished side out as also required in our code. MR. MANALICH: Is it your responsibility in your position to interpret the Land Development Code? MR. ARNOLD: Yes, it is. MR. MANALICH: And within that realm of interpretation, would it also be your proper role to determine, based on all information gathered, whether a particular site fence is opaque or not pursuant to the intent of the code? MR. ARNOLD: I believe it would, and I think there are a couple of provisions in our code that would clearly state that. MR. MANALICH: Is Mr. Bolgar in his duties charged with that responsibility? MR. ARNOLD: I don't believe it's his responsibility to interpret. I believe it's his responsibility to enforce. MR. MANALICH: Are you aware that there was actually issued an affidavit of compliance by Mr. Bolgar earlier prior to your involvement regarding this fence? MR. ARNOLD: I was not aware of that. MR. MANALICH: If that affidavit of compliance was based on the same fence that you saw, would you then disagree with the correctness of that affidavit of compliance? MR. ARNOLD: Yes, I would. MR. MANALICH: At present, is -- is it your opinion that that fence is not in compliance with the opaqueness requirement? MR. ARNOLD: Yes, it is. Yes, it is correct, your statement, that it is not in compliance with the opaque requirements. MR. MANALICH: All right. Thank you, Mr. Arnold. CHAIRPERSON RAWSON: Cross-examination? And, Mr. Murray, if you don't mind, would you come back to the microphone so -- MR. MURRAY: I don't mind. CHAIRPERSON RAWSON: -- the court reporter can get this all on the recording. MR. MURRAY: Mr. Arnold, you've stated under oath that Mr. Gebhardt talked to you at one of these meetings and then later the Page 40 August 22, 1996 administrator. Who -- Who is that? MR. ARNOLD: Our division administrator is Vincent Cautero. MR. MURRAY: Okay. And did he say what caused him to come see you about the fence? MR. ARNOLD: No, he did not. MR. MURRAY: Okay. Does Mrs. Gebhardt's wife -- I mean, does Mr. Gebhardt's wife work for Mr. Cautero? MR. MANALICH: Objection. Not relevant. CHAIRPERSON RAWSON: Could you establish the relevance of that question? MR. MURRAY: The -- The relevance is that the entire situation is generated by Mr. Lennane and Mr. Gebhardt. The fact of the matter is that there was a -- a certificate -- an affidavit of compliance that was issued; that the fact of the matter is that the code enforcement people were working with the Ackermans. They had it approved in advance, and there was a certificate of compliance issued, and then all of a sudden it's raised its head again, and -- and my question is why. I -- I think we're entitled to know why. CHAIRPERSON RAWSON: And -- And maybe you are entitled to know why, but this board's jurisdiction is extremely limited, and -- and the only thing we can do today is determine if a fine should be imposed and, if so, how much and for how many days. So what Mr. Gebhardt's wife does probably doesn't relate to our narrow issue. So for that reason you don't have to answer the question. MR. MURRAY: Your Honor, for the record, I am offering that question that it goes to the interest, bias, or prejudice on the part of the accused. If, in fact, there's a hidden agenda that taints his testimony, you're entitled to judge his credibility based on that interest, bias, or prejudice. CHAIRPERSON RAWSON: If you want to make an offer of proof, you may. MR. MURRAY: I would make an offer of proof that his investigation and subsequent overriding of the certificate or affidavit of compliance is generated by Mr. Lennane through Mrs. Gebhardt of imposing herself on her boss, Mr. Cautero, who is his boss. CHAIRPERSON RAWSON: Ask -- Ask your next question. MR. MURRAY: I have no further questions. CHAIRPERSON RAWSON: Thank you. Any redirect? MR. MANALICH: Mr. Arnold, a couple of questions. First of all, is it unusual for Mr. Cautero to discuss with you matters and interpretation of the code? MR. ARNOLD: No, it is not. MR. MANALICH: Is it unusual for even citizens to contact your office or other code -- I mean, development services offices regarding matters involving the code? MR. ARNOLD: No, it is not. MR. MANALICH: Was your letter based on the facts and your interpretation of the code as you investigated and read the code? MR. ARNOLD: Yes, it was. Page 41 August 22, 1996 MR. MANALICH: Thank you. Nothing further. CHAIRPERSON RAWSON: Thank you, Mr. Arnold. MR. ARNOLD: Thank you. CHAIRPERSON RAWSON: You may call your next MS. LOUVIERE: I -- I have a couple of questions. CHAIRPERSON RAWSON: Oh, I'm sorry. MR. ARNOLD: I apologize. CHAIRPERSON RAWSON: I do it to the board all the time. Any board members have any questions for Mr. Arnold? MS. LOUVIERE: I have a couple of questions. I just want to go back real quick over how long this has been going on and -- and what happened in the past. The way I understand it is we had an SDP in 1992. We have an approved site development plan; correct? MR. ARNOLD: That is correct. MS. LOUVIERE: And then part of that SDP called for specific things to be done on that site -- MR. ARNOLD: Correct. MS. LOUVIERE: -- which were not, and that's why the site was found in non-compliance; correct? MR. ARNOLD: Correct. MS. LOUVIERE: Stop me if I'm wrong anywhere along the line. MR. ARNOLD: You're correct. I did -- I was the planner working on the site plan at the time. I'm very familiar with it. MS. LOUVIERE: Okay. And you put these stips on it? You put certain -- There were certain stipulations they had to do to meet the SDP? MR. ARNOLD: Correct. MS. LOUVIERE: They did not meet them. Okay. So this site development plan came before the Board of County -- I mean, before this board; correct? MR. ARNOLD: (Nodding head.) MS. LOUVIERE: At that time, if I remember correctly, we agreed that if an insubstantial change to the existing SDP was performed, then everything would be okay. And you had the authority to handle three of them, correct, which was -- MR. ARNOLD: I don't believe I was present at your earlier Code Enforcement Board activities. MS. LOUVIERE: I think Bob Mulhere was present. MR. ARNOLD: Possibly. Yes. MS. LOUVIERE: Okay. So at that point -- at that time we discussed the three items which was, like, the boats being parked, the mitered, and -- and the landscaping, and those things would be resolved. However, the administra -- you as a planning director could not make the -- the -- did not have the authority to allow the opaqueness of the fence to be .arbitrarily removed, the stipulation. MR. ARNOLD: That's correct. MS. LOUVIERE: That had to be done by the Board of County Commissioners in a variance. MR. ARNOLD: Although I believe part of -- or at least our discussions and specifically mine with Bob Mulhere of our staff at Page 42 August 22, 1996 the time was that the change that could have been made to the site plan was to remove the fence all together, for instance, and to replace it with landscaping that met the opacity test as well which is also provided for in our code MS. LOUVIERE: Correct. MR. ARNOLD: -- or other fencing materials. MS. LOUVIERE: So there was -- There were other ways to go around or to satisfy the opaqueness requirement by landscaping? MR. ARNOLD: That's correct. MS. LOUVIERE: It did not necessarily MS. DEIFIK: Or a concrete wall. MS. LOUVIERE: Or a concrete wall. MR. ARNOLD: Yes. MS. LOUVIERE: Okay. But instead, the -- the owner of the property at that time decided to take it through a variance hearing. They felt they stood a chance of getting this removed from the SDP. They went through the variance hearing which I felt this board -- and I know because I was part of -- of that decision -- said, yes, let's give them the opportunity. They took it to the variance hearing, and the -- the variance was denied, and they had 15 days to go and -- and meet our code which I -- contrary to what has been discussed here, seems to me it's not that confusing as to what constitutes opaqueness. I just wanted to get all this in the record. This is -- for how long this has been going on. Okay. And that's it. I don't have any other questions. CHAIRPERSON RAWSON: Any other questions for Mr. Arnold by the board members? MR. LAFORET: Yes. I have one. I don't understand the previous question. This definitely specifies a chain-link fence. No equivocation. It also states fence to be opaque type, all sides. Now, if you built a concrete wall behind it or ahead of it, would that make that fence opaque? MR. ARNOLD: I think the action of constructing a wall would in itself be of the opaque fence. The applicant -- if you're viewing the site plan -- MR. LAFORET: I beg your pardon, sir. If you can see that wall behind the chain-link fence, then the fence is not opaque. MR. ARNOLD: Well, if I might, the action of -- MR. LAFORET: The wall is opaque. MR. ARNOLD: But you have to understand, our code says that they can construct a wall, a fence, or a combination thereof of landscaping, wall, and fence to make it opaque. MR. LAFORET: You're talking landscaping. Now, I'm not. I'm talking -- MR. ARNOLD: But what I'm trying to explain is -- MR. LAFORET: The fence ~s not opaque MR. ARNOLD: But you see -- MR. LAFORET: with a brick wall or a concrete wall ahead of it or behind it. MR. ARNOLD: But they would have met the requirements of the code by the construction of that wall. It's also an acceptable Page 43 August 22, 1996 screening method under our code. MS. LOUVIERE: But there are other methods besides the plastic. MR. LAFORET: What if they installed a wall but not the concrete -- not the chain-link fence? MR. ARNOLD: Perfectly acceptable. MR. LAFORET: That specified put in a chain-link fence. MR. ARNOLD: The applicant -- MR. LAFORET: It doesn't say or a wall. MR. ARNOLD: The applicant specified. They were constructive -- MR. LAFORET: I don't want to be argumentative. MR. ARNOLD: No . MR. LAFORET: I just wanted to clear a point. MR. ARNOLD: The applicant specified the chain-link fence construction. We did not. That was their option. MS. DEIFIK: And I think Mrs. Louviere's point, if I may -- MS. LOUVIERE: Of course. MS. DEIFIK: -- was that when Mr. Saunders was here, he discussed with the board the consideration of all of those different alternatives, and we tried to address whether they had been discussed or addressed in the past. We didn't get very far on that, but we were -- all agreed that we were looking towards the future. MS. LOUVIERE: And then one last thing, and I want to go back to this again. Our order stated that once this -- the variance was denied, which was January the 9th, they had 15 days to comply which would have been January 25, 1996. Okay. So they had those 15 days. And we are -- It's now August, and we're still here; correct? MR. ARNOLD: Correct. MS. LOUVIERE: Thank you. MR. MURRAY: I have one more question since there are other questions that have been asked. Isn't it true that in that application for the variance that your department, planning, recommended approval that the requirement be opaque be dropped? MR. ARNOLD: Staff's recommendation was for approval of the variance; however, the Board of County Commissioners did not give you that variance. MR. MURRAY: Thank you. MS. LOUVIERE: And -- and is -- Here I may be out of line, but I think it's important to note that variances have to be granted by the Board of County Commissioners. Staff can only make recommendations; is that correct, Mr. Arnold? MR. ARNOLD: That is correct. MS. LOUVIERE: And it's ~eally up to the BCC to decide. They are -- They act as our zoning board; and, therefore, they have final decision. MR. MANALICH: Our next wi tness, Madam Chairman CHAIRPERSON RAWSON: Yes. MR. MANALICH: -- is Attorney Skip Gebhardt. Page 44 August 22, 1996 THEREUPON, ROBERT C. GEBHARDT, a witness, having been first duly sworn, upon his oath, testified as follows: MR. MANALICH: MR. GEBHARDT: MR. MANALICH: is that correct? MR. GEBHARDT: Yes, I am. MR. MANALICH: And do you in this in the matter of civil dispute represent a Mr. Lennane, a property owner in the Bayshore Drive area? MR. GEBHARDT: Yes, I do. MR. MANALICH: Is that -- Just for the board's information, is that litigation still ongoing? MR. GEBHARDT: Yes, it is. MR. MANALICH: Okay. And that's obviously very separate from this whole Code Enforcement Board action in -- in -- in MR. GEBHARDT: Certainly in a legal sense, yes. MR. MANALICH: Right. Correct. And I don't intend to ask you about that other matter. MR. GEBHARDT: Yes, sir. MR. MANALICH: I just want to MR. GEBHARDT: It's a matter of public record. MR. MANALICH: Right. I just want to point out to the board the fact that you are a representative for the complainant in this Code Enforcement Board action. MR. GEBHARDT: That's correct. MR. MANALICH: Okay. Now, that aside, you and others that work with and for you are familiar with this property where the fence that has been discussed is located; is that correct? MR. GEBHARDT: That's correct. MR. MANALICH: And have you recently seen the fence and the opaqueness that has been installed at that site? MR. GEBHARDT: Yes. I -- Can I get a note here? In response to what Mr. Murray suggested, after the last board meeting, I went down and looked at the fence. I believe that was in -- July 21 or 22 and -- to see it for myself. It was the first time that I had seen it. And I was somewhat surprised at the construction of the fence. So I came back, and I contacted Mr. Cautero who was my wife's boss, but I do not need my wife to help me contact him. He is open to every member of the public. I contacted him and asked him to come down and view the fence with me which he did, in fact, do. I then, again, reviewed the fence approximately two weeks ago, and at that time the fence was in a state of what I would call disabile. That means th~t it had gripped away from its moorings. It was flapping in the wind. And I immediately asked a photographer -- retained a photographer to go out and take pictures of that fence which the photographer did, in fact, do and delivered those picture to me. MR. MANALICH: Please state your name, please. Robert C. Gebhardt. And, Mr. Gebhardt, you are an attorney; Mr. Gebhardt, first, let me show Page 45 August 22, 1996 counsel -- and then I'll show you -- these pictures. Mr. Gebhardt, I'm going to show you a group of pictures, and I'm not going to mark these as an exhibit merely because I don't believe they were taken by you. MR. GEBHARDT: Yeah. That's right. MR. MANALICH: They were taken by -- Are you familiar with these pictures? MR. GEBHARDT: Yes. And what I can say is these accurately reflect the status of the fence and are representative of the fence that I saw at that time and -- MR. MANALICH: Who took these pictures? MR. GEBHARDT: Penny Taylor. She's a professional photographer. And she took them on the date that I instructed her; and, therefore, I can say that my recollection of the fence is identical to what's shown in these pictures. MR. MANALICH: Do these pictures reflect the fence as you have seen -- CHAIRPERSON RAWSON: What was the date? MR. GEBHARDT: This, I think, ma'am, would have been -- To the best of my recollection, it would be about July 25, 24, in that area, possibly a little later. MR. MANALICH: Let me pass these to the board. MR. GEBHARDT: I might -- I might say that -- MR. MURRAY: I'm going to object for the record before you give them to the board. I think that there's been a failure to properly authenticate these. They're not marked. There's no specific date. And the person who took them has to come in and verify them, I think. MR. GEBHARDT: I'm suggesting only that they accurately rep -- represent my recollection of the fence at that time and, therefore, would -- could be used as a visual aid, if nothing else, to -- to substitute for my description of the construction and the state of the fence at that time. MR. MANALICH: Madam Chairman, I'm not offering them into evidence. I'm simply offering them as an aid to his testimony. MR. MURRAY: The point is he can describe it with words. We have no idea whether this is -- represents what he was seeing at the time that he was seeing it, whether it was two weeks before. We have no idea. And I think that he can describe in words if he wants to. He's the one who saw it, and he can describe what he saw. MS. LOUVIERE: Well, it couldn't have been two weeks before because we heard that the fence had been installed on July the 18th or the 19th; so, therefore -- and he says he took the pictures on July the 25th which could not possibly be two weeks before. MR. MURRAY: I think he already testified, madam, that he did not take the photograp~s. MR. GEBHARDT: I did not take the photographs. MS. LOUVIERE: Okay. CHAIRPERSON RAWSON: This board's already looked at some pictures of this fence that were also not introduced into evidence, but we were permitted to look at those as a visual aid. When were Page 46 August 22, 1996 those pictures taken? MR. MANALICH: Those were approximately at the end of July, the 22nd or 24th. That was Mr. Soldano's pictures from code enforcement. I grant you, Madam Chairman, that in this particular matter Mr. Gebhardt has testified he did not personally take these pictures, but he says that he is familiar with who did take them, the approximate time when they were taken, that they were taken of this site, and that they do reflect his most recent observations regarding what he reports directly as the condition of the fence. MR. GEBHARDT: Not my most recent, because I went down there last Monday, and this looks like a good fence compared to what's down there right now. And I suspect if you drove down there today, you'd probably see only -- the situation even worse. So-- MR. MANALICH: But I can have him describe what he saw then and now. I thought it would just be -- CHAIRPERSON RAWSON: Are the pictures taken about the same time as the ones that we've already seen? MR. MURRAY: Madam Chairman -- MR. GEBHARDT: Approximately. Approximately. MR. MURRAY: Madam Chairman, I want to go on the record and object as to relevance. First off, it's already been testified to that the fence is not in compliance even though an affidavit of compliance was issued, even though it was checked out and said okay. So there is no relevance to this because what is there now has already been testified to by the county that this is not in compliance; therefore, it's not relevant. CHAIRPERSON RAWSON: Well, I think it's probably relevant that we look at the pictures. Why don't we do this. We've already been permitted to look at some pictures. Why don't you bring out the pictures that we've already been allowed to look at that were taken by code enforcement and that were apparently, based on the testimony, taken about that same time as the ones that Mr. Gebhardt wants us to look at now and have him look at those pictures and describe what, if any, differences there -- there are in July -- end of July with the pictures we've already been permitted to see. He can probably do that -- MR. GEBHARDT: If I CHAIRPERSON RAWSON: by testimony. MR. GEBHARDT: If I might add, Madam Chairman, Mr. Arnold just testified -- and one of the purposes of these pictures is not only for opacity, but, as Mr. Arnold said before, it is the type of construction as well as also defined in the Land Development Code, and that's -- that's important in -- these pictures show the type of construction. CHAIRPERSON RAWSON: Well, it could be that if we looked at these other pictures they'~e just cumulative anyway. So since we've already been permitted to look at the pictures that were taken by the code enforcement, since they were apparently around the same time, Mr. Gebhardt, why don't you look at the ones the county took and tell us what, if any, differences you notice yourself in -- in the condition of the fence around the end of July 1996. Page 47 August 22, 1996 MR. GEBHARDT: I guess the difference is the shots. These pictures taken by code enforcement, for the most part, showing the closeups are from the inside of the fence which is not viewed by the public. My pictures are taken from the outside of the fence. For example, this shows the fence, then the 0 -- then the screening, whereas my pictures you'll see there's a little wood slat that sort of props this screening to the fence. You would not see these in those pictures. In other words CHAIRPERSON RAWSON: What would be the difference if we were standing and viewing this fence from the outside as opposed to if we were standing and viewing this from the inside? MR. GEBHARDT: If you were seeing it from the outside, you would see this type of construction. If you were seeing CHAIRPERSON RAWSON: Would you describe what "this type" is for the record. MR. GEBHARDT: The fence or the screening is on the side of the hurricane fence nearest you if you're standing on the outside. It is secured by wooden -- looks like brown wooden shingles, and then you can -- you can see the hurricane fence behind it. The pictures the staff took show -- you would be looking at the hurricane fence first, and you would also be then looking at the plastic material, and you would not see how this plastic material was attached to the fence. CHAIRPERSON RAWSON: If I was standing on the outside of the fence looking in, could I see through it? MR. MURRAY: Your Honor, I'm going to object. MR. GEBHARDT: Well, the -- MR. MURRAY: He's already stated he wasn't there when the pictures were taken. MR. GEBHARDT: I think the pictures speak for themself. Certainly where the -- CHAIRPERSON RAWSON: Well, I think he's testified that he -- he viewed the fence all around July. I'm just asking him what he observed. MR. GEBHARDT: Well, what I observed is that there's a section of the plastic that is just blowing back and forth and that you can see through because there's nothing to -- there's nothing to prevent you looking in so that it's just like a flag blowing in the breeze. And there are -- there are -- I can show you represent -- representations of that in these pictures which are consistent with my memory. The other ones even then are consistent with my memory. You can look through there and see all of the bolts and materials in there. Even when -- as wrinkled and as much off the ground it is, you -- you can still see through the -- the attempted opacity, the plastic material. And the pictures, I think, demonstrate that fairly clear because here there's an area where the fence is just blowing in the wind. You can see in there directly. Then there's this little wood shingle that's holding it and then a direct shot which shows the cars or the -- yeah, there's cars and three boat trailers that you can see through. Page 48 August 22, 1996 MR. MURRAY: Your Honor, if I may -- MR. GEBHARDT: This is all consistent with my memory. CHAIRPERSON RAWSON: Okay. MR. MURRAY: Madam Chairman, if I may, I would like to pose an objection and -- and for a very practical reason. Mr. Ackerman has had to evict the tenant who was there. He wants desperately to rerent his property. If we don't get through this by 12 o'clock or whatever time it is that we have to quit today, he is not going to be able to rent his property until the next time that we meet. CHAIRPERSON RAWSON: So what's your objection? MR. MURRAY: The -- The objection is the relevance to this. It's already been determined that this fence is not in compliance. So the condition of it on a particular day is not relevant. MR. MANALICH: Madam Chairman, obviously if Mr. Murray, as I hear now, is conceding that the fence has -- has never been in compliance, then certainly, you know, it may shorten things. I mean -- MR. MURRAY: I am not conceding that, Madam Chairman. I am saying that the county has testified through their witnesses that the fence is not in compliance. I believe Mr. Arnold testified he wrote a letter to that effect. If that is the case and that is their position, this is irrelevant to their position. MR. MANALICH: Well, he seems to be disputing, however, whether it is in compliance or not. For that reason, we're offering -- CHAIRPERSON RAWSON: Well, you know, I'm not sure. If the issue is whether or not this fence is in compliance, it's probably relevant. Are -- Are we not contesting whether this fence is in compliance, whether this fence is opaque or not? MR. MANALICH: Obviously it's -- Fines are dependent on whether compliance has been achieved or not. So I think that's why we're embarked on this. I can wrap this up very quickly though. I mean, there -- I don't think I have too much more for Mr. Gebhardt. MS. DEIFIK: Aren't -- Aren't you asking the board to make a determination as to whether it's in compliance? Is that one of the things we're being asked or not? MR. MANALICH: Yes. Well, certainly in the sense that -- for you to impose fines, you can only impose them if it's not in compliance. And we are -- Our position is that it is not in compliance and that we are asking for fines to be imposed and for you to determine what the amount of those fines should be. MS. DEIFIK: Mr. Murray, are you conceding that it's not in compliance? MR. MURRAY: Of course nqt. I am absolutely not conceding that, and I want to dissuade anyone who possibly will think that. The fact of the matter is there was an affidavit issued. Now, maybe my client shouldn't rely on an affidavit of compliance. Maybe that's irrelevant. MS. DEIFIK: Mr. -- Mr. Murray, we're just -- Page 49 August 22, 1996 MR. MURRAY: But -- but -- MS. DEIFIK: -- trying -- we're just trying to determine what you meant when you made that objection. MR. MURRAY: I am making the objection because it appears that they're now arguing that apparently it was in compliance but the way that it was done was not in compliance. What they're saying is the material is not in compliance, and that's what the other person testified to. That's all. MS. MCEACHERN: Madam Chairman -- CHAIRPERSON RAWSON: Why -- Why don't we do this, Mr. Manalich. Why don't you, you know, wrap up with Mr. Gebhardt. I -- I am not -- We do have a time constraint, and I'm not -- not cognizant of Mr. Ackerman's problems, and I -- I would like to wind this up today if we could. MS. MCEACHERN: Madam Chairman, I was going to say that the county objects to that objection, that the dilemma that Mr. Ackerman is facing now with having to rerent his property is not an issue here today, and it's self-imposed as well. CHAIRPERSON RAWSON: Well -- Well, I understand, except that I don't know if you can object to objections. Basically the board -- the board has a problem, you know, wanting to come back and hear this thing again, and if we can wind it up today, the board would like to do that. MR. MANALICH: Okay. I think the board has heard from Mr. Gebhardt his observations about the condition of the fence. The only other thing I'd like to ask is -- Mr. Gebhardt, you heard Mr. Arnold testify regarding to one of the things that goes into the review of compliance is the installation and construction of the -- of the material for opacity and how that affects the surrounding neighborhood. Could you tell us from the perspective of the client that you represent, a neighbor, what impact this has had on -- on the neighborhood? MR. GEBHARDT: Well, obviously you -- you now have a -- have a fence that is blowing in the breeze. These pictures are bad. If -- When I went out there on Monday, it's much worse. One good windstorm and everything comes down and starts flapping allover the place. So that instead of doing something positive in the area, it is -- it's just the opposite. Now it looks like it's further run down than it was before. And if the board wanted to go out there today, they'd see the same thing. MR. MANALICH: No further questions. CHAIRPERSON RAWSON: Any -- Any cross? MR. MURRAY: No further questions. CHAIRPERSON RAWSON: Thank you, Mr. Gebhardt. Next witness, Mr. Manalich. MR. MANALICH: We have no other witnesses. CHAIRPERSON RAWSON: The 'county rests. Mr. Murray. MR. MURRAY: For my first witness, I would like to call Nancy Ackerman. MR. MANALICH: Madam Chairman, did the board want to look at the pictures that Mr. Gebhardt was testifying about? Page 50 August 22, 1996 CHAIRPERSON RAWSON: I don't really think it's probably necessary. His -- His testimony was pretty visually accurate. At least I think we understood what he was saying about the pictures, and we already saw the -- the one pictures, and I think he described the differences in what he wanted to show us and what the pictures that the county took were like. So I don't believe we need to see any more pictures. THEREUPON, NANCY R. ACKERMAN, a witness, having been first duly sworn, upon her oath, testified as follows: MR. MURRAY: Would you please state your full name for the record. MS. ACKERMAN: Nancy Rose Ackerman. MR. MURRAY: Okay. And your address? MS. ACKERMAN: 875 Gulf Shore South. MR. MURRAY: Okay. Are you the owner of the property at the inspection of Thomasson -- MS. ACKERMAN: My husband -- MR. MURRAY: -- Thomasson Road MS. ACKERMAN: -- and I, yes. MR. MURRAY: Please let me finish the question MS. ACKERMAN: I'm sorry. MR. MURRAY: -- because she can't type it -- MS. ACKERMAN: I'm sorry. MR. MURRAY: -- with both of us talking. At the intersection of Thomasson and Bayshore? MS. ACKERMAN: Yes. MR. MURRAY: Okay. Do you know what this hearing is about today? MS. ACKERMAN: Yes. MR. MURRAY: What is this hearing about today? MS. ACKERMAN: It's -- It's about imposing fines on us for not complying with the opaque fence. MR. MURRAY: Okay. Do you feel like you complied? MS. ACKERMAN: Yes. MR. MURRAY: And why do you feel that way? MS. ACKERMAN: Well, I've been working at this ever since the county commissioners deemed that it was to be opaque. The problem has been from day one what is opaque. No one in the county at any time could give me an okay on a product. MR. MURRAY: Okay. Let me stop you there. The commission met on the 9th of January; is that correct? MS. ACKERMAN: Yes. MR. MURRAY: And they've -- they held that you had to have an opaque fence. They wquld not grant you the variance; is that correct? MS. ACKERMAN: That's correct. MR. MURRAY: Okay. How soon after that did you react and try to get an opaque fence? MS. ACKERMAN: Immediately. Page 51 August 22, 1996 MR. MURRAY: Okay. MS. ACKERMAN: The next day. MR. MURRAY: I want to show you what is an invoice from Swartz and Associates. MS. ACKERMAN: Yes. MR. MURRAY: Are you familiar with that invoice? MS. ACKERMAN: Yes, I am. MR. MURRAY: Okay. And what day did you go see Mr. Swartz? MS. ACKERMAN: I called him on the phone first and told him of my problem. I went down to the parks and recreation and asked them what they were using for what was so-called opaque, and they instructed me to call this man, Mr. Swartz and Associates, who was the person who does a lot of county work in covering chain-link fences. MR. MURRAY: So you went to see Mr. Swartz? MS. ACKERMAN: Yes. MR. MURRAY: Okay. And Mr. Swartz -- did he give you a sample of what was -- what he considered to be opaque for purposes of MS. ACKERMAN: Yes. MR. MURRAY: -- county contracts? MS. ACKERMAN: Yes. There were heavy material made out of plastic. to Mr. Bolgar immediately. MR. MURRAY: Okay. Do you remember the day you took it to Mr. Bolgar? MS. ACKERMAN: Well, it had to come in the mail manufacturer. I think it was probably three or four MR. MURRAY: Okay. On the date of the invoice, There was a type of He gave it to me, and I took it from the days after that. was it MS. ACKERMAN: January 15. MR. MURRAY: Okay. And what -- how many -- Was it three or four days after that that you received the sample? MS. ACKERMAN: Yes. MR. MURRAY: Okay. MS. ACKERMAN: By mail. MR. MURRAY: And did you immediately go see Mr. Bolgar? MS. ACKERMAN: Yes, I did. MR. MURRAY: Did you see Mr. Bolgar before the 25th of January? MS. ACKERMAN: Oh, yes, sir. MR. MURRAY: Okay. And what did Mr. Bolgar say? MS. ACKERMAN: He said that it looked very good to him and that it probably would be the thing to work. And shortly after that -- he called me back in a week or so and said that it had been turned down by Mr. Mulhe -- M9ore, I believe it was, and a Mr. Milk. MR. MURRAY: Okay. And did he say anything else? MS. ACKERMAN: He said -- I said, Well, what do I do now? I have nothing to use. What should I do? What is -- What is the product that you want? MR. MURRAY: Okay. And what did he say? Page 52 August 22, 1996 MS. ACKERMAN: And he said he would look around himself. He said he had something in his garage that might be a suggestion. He suggested that I go to Scotty's where his wife, Fran, worked. MR. MURRAY: Did you go to Scotty's? MS. ACKERMAN: Yes. MR. MURRAY: Did they help you? MS. ACKERMAN: They had nothing that they -- they -- what -- what determining was opaque was -- I mean, they didn't have anything as heavy as this product that I took to him. MR. MURRAY: I see. MS. ACKERMAN: And they didn't have anything that was 6 foot. MR. MURRAY: Did you go back to Mr. Bolgar? MS. ACKERMAN: Yes. MR. MURRAY: Okay. Did you -- First off, why are you relying on Mr. Bolgar? MS. ACKERMAN: Because he -- he was the man in charge to tell me what was okay. He said that the Code Enforcement Board was to find the product and deem it for me to be okay. Whether he had to ask someone else after that but they were it was up to them to find it. MR. MURRAY: Did he ever mention to you that he didn't want you to waste a lot of money? MS. ACKERMAN: Yes, he did. MR. MURRAY: Okay. And-- MS. ACKERMAN: He sure did. MR. MURRAY: Did he ever do anything other than try to help you? MS. ACKERMAN: He always tried to help me, but he didn't have -- he didn't have any knowledge of -- as to what I was to use. MR. MURRAY: All right. Did he tell you he would get back to you? MS. ACKERMAN: Yes, he did. MR. MURRAY: Did he get back to you? MS. ACKERMAN: Never got back to me with a product. I just continued to pursue him. MR. MURRAY: Did you call him? MS. ACKERMAN: Yes. Many, many, many times. MR. MURRAY: How often did you call him? MS. ACKERMAN: At least every three or four weeks. MR. MURRAY: Did you recall Mike Kirby coming out to inspect? MS. ACKERMAN: Yes. He came two times that I recall that I was there and asked me what I was doing about the fence. I said, Mr. Bolgar instructed me that he was the one in charge and I was to come contact him. MR. MURRAY: Okay. And he -- and what did -- MS. ACKERMAN: And I said I was doing -- waiting to hear from him. MR. MURRAY: Okay. And how often -- MS. ACKERMAN: And instructions as to how to put it up. MR. MURRAY: How often did you call Mr. Bolgar trying to Page 53 August 22, 1996 get an answer as to what would -- MS. ACKERMAN: Abou t every -- MR. MURRAY: -- be acceptable? MS. ACKERMAN: Abou t every 20 days, 18 days. MR. MURRAY: Okay. Did you talk to him every time? MS. ACKERMAN: Not every tlme. Many times I got an answering service which you get when you call that number at Horseshoe. MR. MURRAY: Okay. Were you -- Were you concerned about making him angry calling him so often? MS. ACKERMAN: Well, I figured he was working on it. He certainly knew I was pursuing it, as he stated here today. MR. MURRAY: Okay. When was the first time you were served with these papers talking about a fine of $150 a day? MS. ACKERMAN: July of this year. MR. MURRAY: Okay. What did you do when you were served with those papers? MS. ACKERMAN: I immediately called him, and there was no answer back. MR. MURRAY: You immediately MS. ACKERMAN: He did not return my MR. MURRAY: -- called who? MS. ACKERMAN: I immediately called Mr. Bolgar -- MR. MURRAY: Okay. MS. ACKERMAN: -- to ask him why this was coming when we were trying to find a product. MR. MURRAY: And did he call you back? MS. ACKERMAN: He did not. MR. MURRAY: And what did you do? MS. ACKERMAN: The following morning my husband went to see the head of the board which was now Miss Sullivan whom we did not know, and he took the paper to her which was sent by Mr. Kirby and signed by Ms. Cruz, I believe, and he wanted to know what we were to do because we were not informed as to what we -- could be used and what would be approved. She said she would get back to him, and she kept the papers. The very next day there was no call. We put in several calls to her and no call back. So I went back to the county and sat there until I found Mr. Bolgar. MR. MURRAY: Okay. And then did -- did you discuss the situation with Mr. Bolgar? MS. ACKERMAN: Yes. At great length. MR. MURRAY: Okay. And what did he say? MS. ACKERMAN: He said that he thought the original thing that I brought in a long time back was fine with him but it was not approved by planning. He said, As far as I'm concerned, I'm going to talk to Miss Sullivan and ask her to drop all fines so we can get this thing. It's not your fault. MR. MURRAY: Okay. Did -- Did he make a suggestion then as to the material? MS. ACKERMAN: He did not that day. Page 54 August 22, 1996 MR. MURRAY: Okay. Did he call you back later? MS. ACKERMAN: within an hour when I returned to my office, I received a call from him saying go immediately to a place called Home Depot and they have a thing called block-out or weed-out. It was 6 foot. He gave me the price. He gave me the dimensions, and he said get it, and Miss Sullivan said if you do that -- my boss, Miss Sullivan -- that we will take care of the matter if you have it up by the following Thursday when the hearing convenes, which was July. MR. MURRAY: Okay. And did you go get it? MS. ACKERMAN: And I said, How is that humanly possible when you haven't okayed it? But we did it. MR. MURRAY: Did you go get the material? MS. ACKERMAN: My husband went the next day. MR. MURRAY: All right. And did -- did he take the material to Mr. Bolgar? MS. ACKERMAN: He did. we were worried. So he went was going to help him put it MR. MURRAY: Okay. And MS. ACKERMAN: He did. MR. MURRAY: And did you put it up? MS. ACKERMAN: Immediately. MR. MURRAY: Okay. Do you think you should have to pay a fine? MS. ACKERMAN: I do not. MR. MURRAY: Why? MS. ACKERMAN: Because we have diligently tried to address this last matter as the other matters that were on the -- on -- This was never even on our inspection report in'92, and all these things were a shock to us when they came. We immediately did everything, but this one we were never able to get instructions as to how to put it up inside, outside, or the product that would be okayed by the county. I don't think they really knew. MR. MURRAY: Okay. I have no further questions. Your witness. MR. MANALICH: Thank you. Mrs. Ackerman, I show you what's been marked as Staff Exhibit A, and that's the order of the board in this case. If you please turn to page 2, and at the bottom of the page the second line from the bottom, does it not say there that respondents shall install an opaque fence within 15 days of respondent's failure to apply for relief, denial of relief, or failure to diligently pursue relief from the SDP requirement? MS. ACKERMAN: Yes, it did, and I -- it does, and I did diligently pursue. MR. MANALICH: Okay. And the -- the variance was denied January 9; is that correct? MS. ACKERMAN: That's correct. MR. MANALICH: Okay. And then under this order the respondents -- that's you, not the county -- was to install the opaque fence; is that correct? Since we'd had so much trouble, directly to Horseshoe with the person up and showed it to Mr. Bolgar. did Mr. Bolgar approve it? who Page 55 August 22, 1996 MS. ACKERMAN: That's correct. MR. MANALICH: Now, Mr. Bolgar was helpful, wasn't he, in this whole matter? MS. ACKERMAN: He tried to be. MR. MANALICH: Okay. He often called you back and responded to your questions? MS. ACKERMAN: Yes, but he could not give me an answer as to what -- what would be approved. MR. MANALICH: But you don't seriously dispute, do you, that it's your duty as the respondent to install the material, is it? MS. ACKERMAN: It's my duty to install, but I have to have approval as I did with the width of the trees, the type of sprinkler system, the -- Everything was all spelled out for us. MR. MANALICH: You're not saying that the county should be the one going out and locating and installing the material; right? MS. ACKERMAN: They had to approve what I took to them. MR. MANALICH: Who approved the trees? MS. ACKERMAN: Who approved the trees was one of Mr. Bolgar's inspectors. There were so many. I don't remember. MR. MANALICH: Did you ever speak to Mr. Arnold about that? MS. ACKERMAN: I don't recall speaking to Mr. Arnold. I may have, but this has been going on so long I don't recall, but each item we did was definitely -- there were inches. There were feet. There were all sorts of instructions for each item to do -- MR. MANALICH: Between January -- MS. ACKERMAN: -- except the fence. MR. MANALICH: Between January of 1996 and July of 1996, you never installed any opaque fence; correct? MS. ACKERMAN: I could not. MR. MANALICH: Now, isn't it very possible you may have misunderstood Mr. Bolgar as far as his being helpful to you in helping you to locate material but not that he ever promised you that he was, in fact, going to locate it for you? MS. ACKERMAN: Yes, sir. He did promise me. He said he was looking. I think he was all by himself trying to look. MR. MANALICH: So there's no possibility you misunderstood him? MS. ACKERMAN: No . MR. MANALICH: Did Mr. Bolgar actually tell you that it was his responsibility to find the fence material for you? MS. ACKERMAN: He told me -- and, again, in the last meeting we had prior to putting up this particular thing that he asked us to put up, which I didn't think would hold -- he said that he was responsible for his department to choose the product and for the planning department to okay it. MR. MANALICH: I have nothing further. MR. MURRAY: In nine -- In 1992 when you obtained your -- your certificate of occupancy, did you have an opaque fence? MS. ACKERMAN: No, sir. MR. MURRAY: Did it pass inspection? Page 56 August 22, 1996 MS. ACKERMAN: Oh, yes, sir. MR. MURRAY: Did you get the certificate of occupancy? MS. ACKERMAN: Yes, sir. MR. MURRAY: I have nothing MS. ACKERMAN: December 7. MR. MURRAY: I have nothing MS. ACKERMAN: Okay. MR. MURRAY: They have -- MR. MANALICH: Mrs. Ackerman, I have one -- one -- CHAIRPERSON RAWSON: We -- I think the board has some questions for you -- MS. ACKERMAN: Yes. Okay. CHAIRPERSON RAWSON: -- Mrs. Ackerman. MS. ACKERMAN: Okay. CHAIRPERSON RAWSON: Yes, Miss Deifik. MS. DEIFIK: Mrs. Ackerman, between -- From the time you got your certificate of occupancy in 1992, subsequently you were advised on several occasions, were you not, that you needed an opaque fence? Ultimately there was a citation which resulted in hearing? MS. ACKERMAN: I had no knowledge of this for one reason in the beginning because we hired Barnett Bank. We financed it through Barnett. We hired them and their inspectors to oversee all parts of the project because we didn't want any -- anything to be wrong. So when the CO was given in -- December 7 of 1992, we thought everything was fine. We had MS. DEIFIK: Subsequent to that. MS. ACKERMAN: -- known not but I -- Later on we learned through our neighbor who was bringing up the problems, we -- there were some problems we didn't know about. MS. DEIFIK: And during that time after it came to your attention and before the November hearing, did you ever hire a land planner, engineer, or contractor to assist you with compliance? MS. ACKERMAN: I worked with the county and their compliance. They gave me directions as to the mitered pipes and everything exactly what they wanted. MS. DEIFIK: But did you have a contractor put the pipes further. Nothing further you said? further. in? MS. ACKERMAN: When was that? MS. DEIFIK: At any time. MS. ACKERMAN: At any time? MS. DEIFIK: Who did the work? The county didn't come out and do the work for you, did they? MS. ACKERMAN: No, they did not do the work. They instructed what they wanted. MS. DEIFIK: Okay. And you were present at the November hearing when Mr. Saunders and various members of the board were discussing different kinds of" fabric that could be woven into the fence or different kinds of ways of making the fence opaque? Were you present at the -- MS. ACKERMAN: Here? MS. DEIFIK: -- November hearing? Page 57 August 22, 1996 MS. ACKERMAN: Here? MS. DEIFIK: Yes. MS. ACKERMAN: Yes. MS. DEIFIK: All right. And subsequent to that meeting, did you hire a -- or consult a contractor, a land planner, an engineer, or any professional as to how to make the fence opaque? MS. ACKERMAN: No. Only the county because no one seemed to come up with -- MS. DEIFIK: Who did you consult with -- MS. ACKERMAN: -- an agreement on an opaque MS. DEIFIK: Who did you consult at the county? MS. ACKERMAN: Mr. Bolgar told me he was the one in charge and he was -- MS. DEIFIK: Who did you consult before -- Evidently you did not speak with Mr. Bolgar about it until sometime in January, is that correct, after the BCC meeting? MS. ACKERMAN: Well, we had -- we had been told that the opaque fence may not be required because there was some sort of argument between the sheriff's department not wanting it because of theft reasons or -- MS. DEIFIK: That -- That argument -- MS. ACKERMAN: No. I-- MS. DEIFIK: -- had been going on for three years; isn't that correct? MS. ACKERMAN: Three years? MS. DEIFIK: Didn't you testify about that at the November hearing -- MS. ACKERMAN: I-- MS. DEIFIK: -- you or one of your associates? MS. ACKERMAN: Ninety-two was when we got the CO. I think it was '94 before we heard any -- there were any problems. MS. DEIFIK: So you didn't consult anyone at the county before the BCC meeting denying your variance as to what would constitute an opaque fence? MS. ACKERMAN: No, because I didn't think the fence was going to -- It wasn't on the plan for the original thing so I didn't -- Apparently it was in that little small plan, but the bank member mentioned it. MS. DEIFIK: Thank you. MR. MURRAY: The -- The person you consulted for the screening of the fence, was that -- that was the person who gave you the sample? MS. ACKERMAN: Yes. MR. MURRAY: And what was his name? MS. ACKERMAN: Ken Swartz. He's very qualified in his line. MR. MS. MR. MS. MR. MURRAY: Okay. And -- And he does that ACKERMAN: He does that work -- MURRAY: -- in fencing for the county? ACKERMAN: -- extensively. Yes. MURRAY: Okay. work -- Page 58 August 22, 1996 MS. DEIFIK: When? MS. ACKERMAN: That's why I went to him. THE COURT REPORTER: One at a time, please. MR. MURRAY: Please repeat what you said. MS. ACKERMAN: I -- I've admitted I forgot what she had asked me. Yes, I did. Mr. Swartz was contacted by me, and I needed -- MS. DEIFIK: When? MS. ACKERMAN: Right after the meeting at the -- MS. DEIFIK: After January 9? MS. ACKERMAN: -- the county commission meeting. MR. MURRAY: And, in fact, the date on the invoice of proposed invoice was January the 15th, wasn't it? MS. ACKERMAN: Yes. I immediately called them to get advice. MR. MURRAY: Okay. That's all I have. MR. MANALICH: I have nothing further. Just -- Exhibit A, Ms. Ackerman, if you still have that, if I can have that back. MS. ACKERMAN: Mmm-hmm. CHAIRPERSON RAWSON: Any other board members have questions for Mrs. Ackerman? MR. ANDREWS: Yeah. I have a question. MR. MURRAY: Excuse me. Before the question, if -- if I can have this marked as our next exhibit and submitted for the board members, please. CHAIRPERSON RAWSON: Certainly. That -- That's your only exhibit, isn't it, that's been marked? MR. MURRAY: It is the only exhibit. Why don't we start with A. CHAIRPERSON RAWSON: Good idea. (Respondent's Exhibit A was marked for identification.) MS. ACKERMAN: You had a question? MR. ANDREWS: Yeah. CHAIRPERSON RAWSON: Just a minute, Charlie, if you don't mind. We've now marked Exhibit for the Respondent Ackermans as A, and you're moving its introduction into evidence. Is there any objection from the county? MR. MURRAY: Apparently not. MS. MCEACHERN: No . CHAIRPERSON RAWSON: No. Having heard no objection, it will be introduced into evidence as Respondent's Exhibit A. (Respondent's Exhibit A was admitted into evidence.) MR. MURRAY: Thank you. CHAIRPERSON RAWSON: Mr. Andrews, go ahead with your question of Mrs. Ackerman. MR. ANDREWS: I might haye missed something. Who -- Who was the contractor or whoever -- whoever put this supposedly opaque material on once you -- you decided on what you were going to found? Who actually made the installation? MS. ACKERMAN: Recently? Who -- Who put on the opaque fencing? Page 59 August 22, 1996 MR. ANDREWS: Yeah. Yeah. The one that -- MS. ACKERMAN: My husband and some people that he hired, instructed by the -- it's -- it's -- It was put on with things that they tell you when you buy the product. They tell you to put it on with these little tie items. MR. ANDREWS: I'm not -- I'm not too familiar with the type of fence. Is there a possibility if it's -- it is put on and put on properly that a fairly decent windstorm could loosen those things and blow -- MS. ACKERMAN: Indeed. Indeed. But we were following the county instructions, sir. MR. ANDREWS: Okay. Thank you. CHAIRPERSON RAWSON: Any more questions? Thank you, Mrs. Ackerman. Mr. Murray, you may call your next witness. MR. MURRAY: I would like to call Mr. Ackerman. Would you please state your full name for the record. MR. ACKERMAN: Del H. Ackerman. MR. MURRAY: And your address. MR. ACKERMAN: 875 Gulf Shore Boulevard South. MR. MURRAY: Okay. And are you one of the owners of the property that's the subject of this hearing? MR. ACKERMAN: Yes. MR. MURRAY: Okay. Do you know why you're here today? MR. ACKERMAN: Yes, I do. MR. MURRAY: Why? MR. MANALICH: Excuse me, Madam Chairman. Before we go further, could he be sworn in? CHAIRPERSON RAWSON: Good idea. UNKNOWN VOICE: I think that's even better. THEREUPON, DEL H. ACKERMAN, a witness, having been first duly sworn, upon his oath, testified as follows: MR. MURRAY: Mr. Ackerman, do you think fines should be imposed against you for not putting up the opaque material on your fence? MR. ACKERMAN: No , sir. MR. MURRAY: Why? MR. ACKERMAN: We've made every attempt since January of this last year through July to accomplish what the county definitely wanted done, and they could not give me an answer. MR. MURRAY: Okay. Did -- did you make -- were you -- Did you tell the county you're ready, willing, and able to do it, just tell me what kind of stuff you want me to put on there? MR. ACKERMAN: Yes, sir.. I told them any time they wanted it, I'd put it up at midnight. MR. MURRAY: Okay. Were you involved in obtaining the material from Mr. Swartz? MR. ACKERMAN: Nancy handled that matter with Mr. Swartz. Page 60 MR. MURRAY: microphone. MR. ACKERMAN: Nancy handled Mr. Swartz. MR. MURRAY: Okay. When you received the notification of the intent to impose a $150-a-day fine, what were your actions at that time? MR. ACKERMAN: Was this the last time? MR. MURRAY: The first time that they -- in in July when you were served papers indicating that you were -- MR. ACKERMAN: Oh, sorry. In July, immediately went over to the county. I went and talked to Miss Sullivan immediately. I said, Did you know that these papers have been served on me? And she said, Del, I'll check into it for you. And I said, Did you know these papers were made out May the 3rd and they were put insomebody's briefcase until July the 3rd and then mailed -- Two months it was held at the county in somebody's briefcase and was mailed to me in July. And then the gentleman that made them out, Mr. Kirby, he mailed them to me July the 10th. MR. MURRAY: Okay. after that? MR. ACKERMAN: After that I had a nice chat with Miss Sullivan. Nancy the next day immediately went over and talked to Mr. Bolgar. MR. MURRAY: please. Okay. And what happened after that? Did you eventually buy the material? MR. ACKERMAN: Yes. Nancy got me on the phone and said, Get your truck out there to -- not Scotty's. MR. MURRAY: Home Depot? MR. ACKERMAN: -- Home depot. Load up these rolls. Take them to Mr. Bolgar. If he approves them, you've got to have them up by next Thursday. That was one week. MR. MURRAY: Okay. Had you been trying to get -- Had you been trying to get an answer out of Mr. Bolgar for -- since January? MR. ACKERMAN: About 24 times. MR. MURRAY: Okay. Did -- Did you make all of the calls, or did Nancy make all of the calls? MR. ACKERMAN: Ninety percent of the calls were handled by my wife, Nancy. MR. MURRAY: Okay. MR. ACKERMAN: Yes, MR. MURRAY: Okay. time? MR. ACKERMAN: You get a.recording, and it says, This is Mr. Bolgar's office. I'll call you back. Out of five times, I got ahold of him twice. MR. MURRAY: Okay. And did you tell him that you were looking for -- you still wanted to put up the material, that you just needed guidance? August 22, 1996 Please don't talk so close to the Now, who did you -- What did you do Move your mouth further away from the mike, Did you make some of the calls? sir. Did you talk to Mr. Bolgar every Page 61 August 22, 1996 MR. ACKERMAN: There's no question in my mind that Mr. Bolgar knew we were doing everything to obtain the material, but I could not do it without his okay. MR. MURRAY: Okay. Did you take the materials to see Mr. Bolgar? MR. ACKERMAN: We had -- We took 13 rolls. We took one roll, unwrapped it. Now, these were rolled -- These were rolled in a big roll. So not just to camouflage the thing, I opened the rolls up, and I laid it on Mr. Bolgar's counter up there in the front. It's not Mr. Bolgar's counter but his receiving, in his receiving area. He could see the material" up side, down side. He could see the whole thing. MR. MURRAY: Did he come over and handle the material? MR. ACKERMAN: He put his hands on it like that. In front of God and everybody, you get it up. (indicating) MR. MURRAY: Okay. That's what he said, in front of God and everybody? MR. ACKERMAN: In front of God and everybody, you get it up MS. DEIFIK: You don't need the mike. We can hear you. MR. ACKERMAN: -- and there will be no more problems. Huh? MS. DEIFIK: You don't need the mike. We can hear you. MR. ACKERMAN: Excuse me. I was just saying it the way Mr. Bolgar said it to me. He said, In front of God and everybody, get it up, and there will be no more problems. MR. MURRAY: Okay. What did you think he meant when he said there would be no more problems? MR. ACKERMAN: Well, after the 24 to 30 conversations that we've had with Mr. Bolgar -- and 90 -- 90 percent of them were my wife's, Nancy's -- I thought the county finally found out what opaque really is, and they are giving me permission to put this up, and I am not going to wait four days to put it up. I'm going to put it up in 16 hours from Mr. Bolgar's word to get the material up. In 16 hours with the help of a gentleman out there, we had 675 foot of fence covered with what Mr. Bolgar approved. MR. MURRAY: Okay. I have nothing further. MR. MANALICH: Mr. Ackerman, you were present at the Code Enforcement Board hearings last fall and into the winter along with Mr. Saunders regarding this matter, weren't you? MR. ACKERMAN: Mr. Saunders was not at the last meeting. No, sir. MR. were you the site steps? MR. ACKERMAN: MANALICH: Okay. But, I mean, you were present, not, when the code board found that you were in violation of development plan and ordered you to take certain corrective The only meeting I was at is the last one. MR. MANALICH: Okay. But, in any event, you were aware that the board had issued an order that required you to do certain things out there, deal with the parking bumpers, the pipe, the boats, Page 62 August 22, 1996 and the water management area and the opaque fence? MR. ACKERMAN: No, sir. MR. MANALICH: You-- MR. ACKERMAN: There was only one issue. No, sir. Everything was done by that period of time. MR. MANALICH: Well, I -- I'm not disputing that you did it. What I'm saying is -- MR. ACKERMAN: But you brought it up. MR. MANALICH: Well, what I'm saying is I'm asking you, you're aware that this board had issued an order to you to do these things; correct? MR. ACKERMAN: No, sir. MR. MANALICH: You were not aware of that? MR. ACKERMAN: No, sir. No, sir. Not this board. No, sir. I was in the hospital at that time. MR. MANALICH: You never became aware of that through your attorney or through your wife? MR. ACKERMAN: No. No, sir. MR. MANALICH: Okay. Did you subsequently become aware that they had issued an order that required you to do certain things? MR. ACKERMAN: Yes, sir. MR. MANALICH: Now, you don't dispute, do you, that under that order it is you, as the respondent, that must take that action, that is legally on the hook for doing that, do you? MR. ACKERMAN: I don't understand it in those terms. No, sir. MR. MANALICH: Okay. Now -- MR. ACKERMAN: I understood the fact that when Mr. Bolgar gave us an approval, this material -- Like, for example, when you go to the county to put in paving or whatever it is, they give you a little map, they show the width of the paving, they show you the height of the trees. This -- In those particular areas when you have to do what the county wants you to do, you don't need a contractor or somebody else. You can do it because they draw it out on a piece of paper for you exactly how -- how they want it done. If you make a mistake -- they will come out, and they come out and inspect it -- they won't inspect it. But every time they've come out on one of my complaints, everything has been okay. MR. MANALICH: Between January and June, you did not install any opaque material on the fence; right? MR. ACKERMAN: I did not install any opaque material on the fence, ladies and gentlemen, because nobody could spell out to me what opaque really is, and if they would have, it would have been up in 16 hours. MR. MANALICH: Now, the time when you went to see Mr. Bolgar was when you were, in your words, served papers about this; right? MR. ACKERMAN: The papers that Mr. Kirby put in his briefcase for two months, I received them on July the 11th, I think it was. MR. MANALICH: And that's what prompted you to go see Page 63 August 22, 1996 Mr. Bolgar; right? MR. ACKERMAN: Like I always have in the 30 years I've been here. Yes, sir. MR. MANALICH: Now, up until the time you went to see Mr. Bolgar, again, nothing had been installed; right? MR. ACKERMAN: Ladies and gentlemen, I'll say it one more time. I could not install anything without the approval of the county. MR. MANALICH: Mr. Ackerman, I'm not asking you why it was or was not installed. I'm just asking you, it was not installed; correct? MR. ACKERMAN: No. No, sir. MR. MANALICH: Okay. And how long were you going to wait to install that? Indefinitely? MR. ACKERMAN: It wasn't me that was waiting. MR. MANALICH: Okay. You don't dispute, do you, that the present material that you've installed on that fence can be seen through, do you? MR. ACKERMAN: It all depends what angle you stand at. The closer you are to opaque, you can see in. The further you're away out from opaque my diversion [sic] -- There's 100 different diversions, and the county doesn't even understand it yet. But if you stand away from it, you can't see in. MR. MANALICH: What did it cost you to install the present material in terms of both labor and materials? MR. ACKERMAN: Well, between last week and this week, about $2,400. MR. MANALICH: Okay. Thank you. No further -- I'm sorry. One moment. What was the date you installed those materials? MR. ACKERMAN: Mr. Bolgar got ahold of Nancy on the 17th, and the completed fence was done by three o'clock on the 19th. MR. MANALICH: Thank you. Nothing -- Nothing further. MS. LOUVIERE: I -- I have a question. MR. ACKERMAN: Yes, ma' am. MS. LOUVIERE: Your site development plan was approved in 1992, and you received CO then. And then in 1994, I think is what I heard your -- your wife state, is when you started having problems with this, and they told you that you were not in compliance. So this is just Mireya Louviere -- if I had something of this nature go on, I think, in 1994, why didn't you start trying to go ahead and get an opaque fence and find the material that would satisfy the county as to opaqueness and go ahead and put that up? Why wasn't then -- Why didn't you pursue that diligently at that time? MR. ACKERMAN: Back in 1994 -- I'll make it very brief. I've had about 19 surgeries i~ the last 21 years. I might have been in the hospital and got behind. But from '92 --'92 when I got my CO completed to '94 and '95 -- it was somewhere in that area -- the business operated over there at All Marina, and there was no problems at all. The minute the trouble started is when Mr. Gebhardt and Mr. Lennane teamed together and they wanted to buy me out because I was Page 64 August 22, 1996 disabled. I'm a -- I'm a disabled person. I'm not putting you on. But through the -- through the City of Toledo, Ohio, I'm disabled. In '95 Mr. Lennane -- Mr. Lennane tried to buy my business, but he didn't have any money in the corporation, and you all read it in the paper. And ever since that period of time, Mr. Lennane now, in a sense, as all these gentlemen know -- just look at their faces. I won't look at them -- he's probably over at their office five days a week trying to find something wrong with me. Why the trees were taken, the gentleman behind me who's in charge of your code enforcement, he stole the trees. That's number one. He said I didn't pay for them. I have a gentleman there that can prove better than that. Then it went on and on and on and on. So the main reason is I have been working two years, spent almost $80,000 trying to save Del's Corner which I bought from my disability so I'd have something to go with. So the minute I knew there was a problem in '94, I've hired everybody down the line, and I will be glad to give you a list of all my attorneys, all my bills that I've acquired in this period of time. This is not a case of what Del Ackerman did wrong. This is a case that you folks, all of you, are letting people like this and Mr. Lennane and Mr. Gebhardt steal my property. Thank you. MR. MURRAY: See if there's any more questions. I doubt there are. CHAIRPERSON RAWSON: Any -- Any more questions for Mr. Ackerman? MS. LOUVIERE: I don't have any more questions. CHAIRPERSON RAWSON: Next witness, Mr. Murray. MR. MURRAY: I would like to call Mr. Swartz. MR. MANALICH: Madam Chairman, before we proceed with the next witness, I'm sensitive to the board's time constraints. I just want to mention one thing. The Hicks matter that's on the agenda is a very brief three- or four-minute matter in my opinion; however, the attorneys involved -- it's a domestic relations matter that's related to this -- are very insistent that they do need you to act on this today. So the only thing I'd request is before you leave here, I do wish to have you decide on the Hicks matter. And I'll explain it. It should be brief. CHAIRPERSON RAWSON: On the matter of the Hicks, if you look on the partial release of lien that you're going to request me to sign, on the notary language on the bottom, it says, The foregoing easement was acknowledged. And I really think it probably should be changed to read, Partial release of lien. MR. MANALICH: You're absolutely correct. CHAIRPERSON RAWSON: And, you know, if you'll do that, assuming the board approves my signature after you tell us why we should sign it -- MS. DEIFIK: Why should we deliver it -- MR. MANALICH: I don't -- I didn't mean to interrupt now. MS. DEIFIK: Why should we deliver it before the closing? I -- I was confused by Craig Woodward's letter that he Page 65 August 22, 1996 wanted it delivered right now. It seemed to me appropriate for -- if Miss Rawson is to execute it, for you to hold it until you've been assured that the closing has taken place and all the money is there. MR. MANALICH: And we can discuss it. I didn't mean to interrupt Mr. Murray. I just wanted to make sure that we pass on this before we leave today in whatever manner you want to approve or disapprove of it but -- I mean, we can -- I don't want to interrupt this case. I just wanted to make you aware that before we leave I'd like you to address that. CHAIRPERSON RAWSON: We will address that. And let's talk about that. It's, like, ten minutes to 12:00. MS. LOUVIERE: It is ten to 12:00. CHAIRPERSON RAWSON: And we are going to have to adjourn at 12:00. For one thing, we're losing our court reporter. For another thing, you know, the other members of the board have other commitments. So why don't we just stop right here, and let me ask the parties involved what -- what you want to do, that you can't finish in ten minutes. MR. MURRAY: Is -- Is it possible, Madam Chairman, to reconvene after your court appearance? We can get another court reporter. I can assure you that. CHAIRPERSON RAWSON: Oh, I'm sure we can get another court reporter, and I'm not intending -- THE COURT REPORTER: Actually, another one is coming at 12:00. CHAIRPERSON RAWSON: I -- I don't intend -- court reporter or not -- MR. MURRAY: Another one is coming at 12:00? THE COURT REPORTER: (Nodding head.) MR. MURRAY: Another court reporter is coming at 12:00. CHAIRPERSON RAWSON: Yes. I know. I mean, I'm not blaming the court reporter. I -- I have to call my office. I don't think so. I think I have a pretty full calendar. I'm not sure about the other members of the Code Enforcement Board, and I'm not sure about this room either. I have to check on that with the county. Usually we only -- Sometimes we have to get it all day but sometimes -- like today we didn't think we'd need it all day. So I don't -- I don't know. Do you want us to take a two-minute recess and see? MR. ANDREWS: Good idea. Good idea. MR. MURRAY: Yeah. Let's do that. CHAIRPERSON RAWSON: Okay. MR. MURRAY: Because, otherwise, we're dead in the water anyway. I -- I would like to get this man on record. He's come here twice now, and he's taken time off from work. He's been subpoenaed both times, if it would be po~sible to get his -- to get his testimony before we leave. But, yes, I think we ought to take a two-minute recess and see if we can get the court for later on today. In fact, all of my witnesses have been here twice now. CHAIRPERSON RAWSON: Well, it's my understanding from Page 66 August 22, 1996 Miss Sullivan that even if we moved it to the next date, we have I forget how many hundreds of cases to hear -- MR. MURRAY: We -- We do have a solution for you, Madam Chairman, and -- and that would be to -- to waive the fines, and we will put up any kind of fence that you want to put up, and we will do it within 24 hours. Is that correct, Mr. Ackerman? MR. ACKERMAN: Yes. MR. MURRAY: We -- We would be honored to do that CHAIRPERSON RAWSON: Well, while I'm -- MR. MURRAY: -- as always. CHAIRPERSON RAWSON: talking to the board about their availability, if you and the county want to talk about a settlement, it's certainly okay with me, but that would be the only way that we could reach such a solution. That would be a stipulation between the parties. So why don't we take about a two-minute recess, and I'll talk to my board about it and find out about the room. (A short break was held.) CHAIRPERSON RAWSON: The Code Enforcement Board will come back to order, please. Is our court reporter ready? THE COURT REPORTER: Yes. CHAIRPERSON RAWSON: Welcome. Before we get to the matter of Hicks -- and we are going to do that, I promise, before we leave here today -- it appears that the entire board will not be able to complete the Ackerman matter this afternoon. However, I have been informed at the break that four members of the board will stay. I have to leave. According to the rules -- and I think our attorney has been looking at them -- four of us can continue with this hearing. It requires all four of us to vote. Did you and Mr. Manalich come to an accord as to whether that has to be unanimous? MR. KOWALSKI: I'm not sure whether we have or not, but I do have an opinion I can -- can offer the board. I contrasted this situation with one that I had researched in a -- recently in another context. In the other context, the -- the statute had said that the -- that a majority of the elected board members must vote in favor of an item for it to be adopted, and the attorney general offered the opinion that that meant a majority of all of the elected board members, not merely those who were present and voting, and based it on the language of the act. The way that I can read this act to make -- read it in parameteria so that all of the provisions of the ordinance are given some effect is to say that you have to have at least four members to constitute a quorum to conduct a meeting. In order for any motion to be adopted, any action to be taken on an item, at least four people have to vote. But only a majority of those present and voting are necessary to adopt a motion in connection with the item. If -- if you adopted any ,other reasoning, then one or the other of those provisions would have to be ineffective. You can't have a -- a requirement of four votes and give effect to the clause that says that a majority of those present and voting must -- must vote in favor of an item for it to be adopted because there's another provision that provides for a quorum of less than seven. So that's my Page 67 August 22, 1996 -- my opinion, in other words, is CHAIRPERSON RAWSON: It would have to be a three-one vote. MR. KOWALSKI: Yes. CHAIRPERSON RAWSON: Okay. Well, now, Mr. Murray, I will offer this: Four members of the board are able to stay. I do think it would be nice if after we talk about the other matter we give them a lunch break. And this room is available. It's up -- it's your call. You -- we can go forward today with four members of the board and get your case completed, or it would be continued to be heard first on September 30 at our next regularly scheduled board meeting which, by the way, board members, is a Monday -- my other board members are still here -- is a Monday. So it's your call. We can proceed today with four. And if it makes any difference to you, the one that's missing is going to be me. But I have a cochair here who certainly can take over. Up to you. MR. MURRAY: We -- let me see if I understand what I what I heard Mr. Kowalski say. For a fine to be imposed, it would require three out of four? CHAIRPERSON RAWSON: Correct. For any action to be taken by this board, it would require three votes. MR. MURRAY: Well, I guess that's my question. And I apologize. I don't appear here very often. Does it require three votes to impose a fine, or does it require three -- three votes to not impose the fine? CHAIRPERSON RAWSON: Either. It requires three votes. Let's -- MS. DEIFIK: To carry a motion. CHAIRPERSON RAWSON: To carry any motion. The motion is going to be made. We know your position. We know the county's position. A motion will be made by some member of this board. If it gets a second, it will require three votes to pass that motion, whatever it is, to impose, not to impose. MR. MURRAY: And then we would opt to have five members. CHAIRPERSON RAWSON: In that case, this case is going to get continued to be reheard on the 30th. Now, fortunately, because our minutes are complete, a transcript of the testimony, and because we are always provided with that prior to the meeting, the members of the board will have an opportunity not to rely on their memory or their scribbled notes but will have an opportunity to read the entire transcript of the proceedings so that you don't really need to, you know, worry about having to refresh our recollection. We will have an opportunity to read the proceedings in their entirety before we take this matter up again with you~ witness on the morning of the 30th. MR. MURRAY: Madam Chairman, I have three more witnesses. If I were to finish those in ten minutes, would you have enough time for deliberation? Could we, in fact, get an answer? I-- this is a practical matter. CHAIRPERSON RAWSON: I wish that I had a crystal ball -- Page 68 August 22, 1996 MR. MURRAY: Okay. CHAIRPERSON RAWSON: -- and -- and I could answer that question. MR. MURRAY: I understand. CHAIRPERSON RAWSON: But that one is very speculative. You never know. And I don't know the answer to that question in addition to which we have agreed to hear this other brief matter on the Hicks case before we adjourn today. So I don't know that that's humanly possible. MR. MCCORMICK: Let me ask a question. Is there any reason why those three witnesses can't give testimony without you present but that action by the board isn't taken until September 30? CHAIRPERSON RAWSON: That's a possibility. You could have -- MR. MCCORMICK: It would save them from having to come back. CHAIRPERSON RAWSON: I get to read the transcript. You're gonna have -- well MR. MCCORMICK: If it's as cut and dried that it could be done in ten minutes, then they would not have to come back. It's just an offer. CHAIRPERSON RAWSON: Well, I'll put it this way. I would need your permission to base my ruling on having read the transcript or my vote based on having read the transcript from the witnesses while not being able to observe their demeanor. And if you MR. MURRAY: I can stop you, and I apologize. I actually have four witnesses, and I can't do it in ten minutes. CHAIRPERSON RAWSON: Well, if you stayed this afternoon -- I guess the suggestion was if you stayed this afternoon and I wasn't present, I'm going to get to read the transcript. With your permission, then I would be the fifth vote on the 30th. You could just put on your witnesses, do your closing argument on the morning of the 30th, and with your permission I would be the fifth vote understanding that I would only be reading the transcript of the witnesses and not observing the demeanor. MR. MURRAY: I understand. And if that's all right with you -- if that's all right with you, I -- I just hate to -- to do this to these people again. CHAIRPERSON RAWSON: Well-- MR. MURRAY: We would welcome -- we would welcome that opportunity and then do closing arguments on the 30th when you're there. CHAIRPERSON RAWSON: Does the county have any objection to my having read the transcript not being present and being the fifth vote? MR. MANALICH: Well, we're sensitive to the fact that, you know, people may be inconvenienced, but what we're concerned about is that, you know, you're going to have to be taking this almost like an appellate judge reading a cold transcript as opposed to sitting here and actually -- Page 69 August 22, 1996 CHAIRPERSON RAWSON: That's true. MR. MANALICH: -- actually taking this in. And we're down to a reduced number as it is. Seems to me -- and, you know, I don't know how long -- we got four more witnesses. I don't know how long that's gonna go on. It seems to me that if we're at this predicament anyway, I mean, you know, apologizing for the inconvenience, it just seems better in every respect to do it all when everyone's here. CHAIRPERSON RAWSON: agreement, I don't think I don't think I can vote an agreement between the unusual. MR. KOWALSKI: That's correct. I would not advise the board to proceed in that direction without a clear agreement or waiver. MR. MCCORMICK: We can move on. MS. DEIFIK: I thought it was a great idea. CHAIRPERSON RAWSON: In that case -- and I apologize but this matter's going to have to be continued to be reheard at 8:30 on September 30, Monday, September 30. I apologize to the witnesses. MR. MANALICH: Madam Chairman, just to be clear, no notices will be sent out. Simply everyone will be expected to be back September 30 ready to conclude the hearing? CHAIRPERSON RAWSON: My understanding. MR. MURRAY: And for -- as a matter of record, I would like the subpoenas that we issued to be continued. MR. MANALICH: Those were for whom, Mr. Murray, as far as county people? MR. MURRAY: Yes. MR. MANALICH: Okay. Mr. Bolgar I know. And do you recall anyone else? MR. MURRAY: I thought that Mike Kirby got one. I don't see him here. We issued one. MR. MANALICH: Okay. Mr.-- MR. MURRAY: I don' t know if MR. MANALICH: Mr. Bolgar, I here, Mr. Kirby is no longer with here, please? MR. ANDREWS: Speak in the mike. CHAIRPERSON RAWSON: We probably need this on the record. MR. MANALICH: And now, Mr. Murray, it's recollection apparently a subpoena was issued MR. MURRAY: I believe one was issued to MR. MANALICH: Okay. . MR. MURRAY: He may not have been served. If he's on vacation, maybe he wasn't served. MR. MANALICH: Yeah. Well, what I wanna make clear is that -- just made you aware that according to Mr. Bolgar, Mr. Kirby Well, you know, short of an I can -- I don't think I can do that. I mean based on my not being present unless there's two parties that it -- procedurally it's It was just an idea to save some time. he was served. believe just to be clear Collier County? Can you come up your to Mr. Kirby? Mr. Kirby. Page 70 August 22, 1996 has terminated his emploYment with Collier County. Is that correct, Mr. Bolgar? MR. BOLGAR: That is correct. MR. MANALICH: When is that effective? MR. BOLGAR: It's effective the twenty -- I believe the 28th of this month. He's currently on vacation. MR. MANALICH: Mr. Murray, are you still going to need him? I mean, obviously he has to be served, I mean, but I'm just saying -- I'm just bringing this to your attention so you can deal with it. MR. MURRAY: We'll let you know. MR. MANALICH: Okay. MR. MURRAY: Can we take -- possibly take his testimony now? It's very short. CHAIRPERSON RAWSON: Let's finish up the Hicks matter and see what time it is, and then that's a possibility. MR. MANALICH: Madam Chairman, I'll make this very brief on Mr. Hicks. I received contact from Mr. Craig Woodward, attorney at Woodward, Pires, and Lombardo, regarding the Hicks matter. He represents -- I believe it is Mr. Hicks. And Christine Hissam, attorney, represents -- I believe it is Mrs. Hicks. And they have requested -- this is a case involving a seawall where you incurred MS. DEIFIK: Oh, no. Excuse me. I think I have to recuse myself. I just recognized the name of Joan Hicks. I never connected it with Charles Hicks at all. I believe that I prepared a mortgage for Miss Hissam for Miss Hicks. MR. MANALICH: Okay. MS. DEIFIK: So sorry. MR. MANALICH: It's a small world. MS. LOUVIERE: Attorneys. CHAIRPERSON RAWSON: Miss Deifik has recused herself from this case. Go ahead, Mr. Manalich. MR. MANALICH: Okay. Well, to make something short, you've received a copy of the correspondence that I had from Mr. Woodward. And included in that was a proposed partial release of lien as well as a copy of the relevant portions of the marital settlement agreement. And basically what I understood from Mr. Woodward on good information is that he is asking for the board to, as it has done in some previous code enforcement board cases, partially release the homestead property which is not the property on which the seawall that was in violation is located so that they can go forward and finalize their marital distribution in the divorce. And my reaction to that was I had no objection and I would present it to you because it appeared to me that we didn't have a valid claim on homestead anyway and we would still be retaining our lien with regard to the property where the wall is located. So he -- now, I know Ms. Deifik prior to her departure had raised a question about whether this should be done prior to the closing or not. And, you know, I don't practice domestic relations. But it was my impression that Mr. Woodward was saying that time was of Page 71 August 22, 1996 the essence because if we didn't approve it, then it was going to affect the ability of the whole marital dissolution process to go forward. Now, I can't represent that to you on authority. I'm just saying that's the impression based on the information he gave me. In any event, I don't really see any objection that county or county staff would have to this partial release with the correction -- CHAIRPERSON RAWSON: Let me ask you this. MR. MANALICH: -- with the correction that you mentioned. CHAIRPERSON RAWSON: Right. Let me ask you this. You would release this on the homestead property whether these people were getting a divorce or not; right? MR. MANALICH: Correct. CHAIRPERSON RAWSON: Or whether the house was being sold or not. MR. MANALICH: That would be my position because I don't think we really have a legitimate claim on the homestead. Now, always -- it's my understanding of the law that if the homestead property were to be sold at some point and proceeds obtained and later not used for another homestead, that that might be an issue. But, you know, we don't know if that's gonna happen. I mean, you know, it appears that we still have our lien and that the marital agreement does recognize the county's lien and mentions that they are in the -- in the process of trying to get that unimproved lot sold to use the proceeds to pay the county fines. MS. LOUVIERE: What are the MR. MANALICH: Again, that's up in the air. CHAIRPERSON RAWSON: I know that this is not really relevant to release of this lien, but what is the amount of the county fines? Do you have any idea? Is it 25? MR. MANALICH: I don't know if staff recalls. We had -- we incurred the cost of repairing the wall. MS. LOUVIERE: Correct. MR. MANALICH: And then there may have been a period of time prior to us doing that that they didn't do it MS. LOUVIERE: Uh-huh. MR. MANALICH: -- where it accumulated but -- okay. The trusted code enforcement person here, Miss Cruz, has indicated that she is informed. And according to our latest order, it was 10,000 in fines and 14,990 for the repairs. MS. LOUVIERE: Around 24, $25,000. MR. MANALICH: 25,000. MS. LOUVIERE: And this is a lot on Marco Island that's obviously hopefully worth -- MR. MCCORMICK: I think ~t was Mr. Hicks' testimony that the value of the property is significantly more at what he's trying to sell it for than the cost of those fines and repairs; right? MR. MANALICH: Yeah, I don't recall exactly, quite frankly. But I would expect that an unimproved lot on Marco MS. LOUVIERE: On Marco. Page 72 MR. MANALICH: -- would have MR. ALLEN: I know the lot. MR. ANDREWS: Waterfront? MR. ALLEN: Uh-huh. CHAIRPERSON RAWSON: Well, I need a motion by this board whether or not we want to make a motion to have me sign the partial release of lien. MR. ALLEN: release. MR. ANDREWS: I'll second it. CHAIRPERSON RAWSON: Any discussion? All -- all -- yes. MR. LAFORET: I have a question. Was the entire seawall repaired that is in front of the residence and the adjacent vacant lot, or was the seawall repaired only in back of the residence? MR. MANALICH: My understanding is that the seawall is located on an unimproved lot. That's where it was repaired. This homestead property is not -- is a different property. MR. MCCORMICK: It's not adjacent to the unimproved August 22, 1996 some significant value. It's worth over 50,000. I'll make a motion we do the partial lot. MR. LAFORET: MR. MANALICH: it's next to it, I believe -- MR. LAFORET: How much mortgage is on the -- is on the unimproved property? I mean, you got roughly $25,000 fine. MR. ALLEN: None. MS. LOUVIERE: None? MR. ALLEN: None. There's no mortgage. We're first in line. County's first in line. MR. MANALICH: I don't have that. MR. LAFORET: There's no mortgage on it? MR. ALLEN: No, sir. MR . LAFORET : Okay. MR. MANALICH: I don't know. MR. LAFORET: All right. MR. MANALICH: I don't know that. CHAIRPERSON RAWSON: Well, it's been MR. LAFORET: The chief advisor here says there's no mortgage on the unimproved property. CHAIRPERSON RAWSON: We have a motion and a second. Any further discussion? All in favor signify by saying aye. All opposed. Passes. MR. MANALICH: Madam Chairman, I'll provide that then to you for your signature. CHAIRPERSON RAWSON: Right. Just -- just the notary language. If you'll correct that, I'll be happy to sign it. MR. MANALICH: Thank you. CHAIRPERSON RAWSON: Okay. Back -- back on the record Okay. Now, where the exact location is, whether didn't -- from talking to Mr. Woodward, I didn't Page 73 August 22, 1996 in the Ackerman case. The board has agreed to hear one 5-minute witness so that we can get him on the record today since apparently he will be unavailable on September 30 at 8:30 when this case will reconvene. Mr. Murray. MR. MURRAY: I would call Mr. Kent Schwartz. THEREUPON, KENT SCHWARTZ, a witness, having been first duly sworn, upon his oath, testified as follows: MR. MURRAY: the record. MR. SCHWARTZ: Kent Schwartz. MR. MURRAY: And your address. MR. SCHWARTZ: 427 Seabee Avenue, Naples. MR. MURRAY: And your occupation. MR. SCHWARTZ: Manufacturer's rep. MR. MURRAY: For what? MR. SCHWARTZ: Manufacturer's representative. I represent over 15 different companies in the area of outdoor recreation products, site amenities, park and playground equipment. MR. MURRAY: Okay. MR. LAFORET: Could you speak into the mike, please. MR. SCHWARTZ: Thank you. Sorry. MR. MURRAY: Put your head a lot closer to the mike because it's not picking up. MR. SCHWARTZ: Can you hear? Closer? Sorry about that. MR. MR. MR. case? MR. SCHWARTZ: Yes, I've met Mrs. Ackerman. MR. MURRAY: And how did you come to meet her? MR. SCHWARTZ: She called me on the phone in January having gotten my name from Collier County and explained -- at that time her concern was to come up with some type of opaque covering for her fence. MR. MURRAY: Okay. covering? MR. SCHWARTZ: Yes, I did. MR. MURRAY: And what -- and did you give her a sample of it? MR. SCHWARTZ: Yes, I did. MR. MURRAY: Okay. And was that accepted by the county? MR. SCHWARTZ: That is another -- there's different degrees of what people want to accomplish and the vagueness of the term opaque. But yes, in our industry that is considered opaque. We have things called open mesh, closed mesh, weather shade. And it all depends on what they want to do with the product and also what they're attaching the product to. But yes, in answer to your question, it is Would you please state your full name for LAFORET: That's better. SCHWARTZ: Thank you. MURRAY: Okay. Do you know Mrs. Ackerman in this And did you suggest an opaque Page 74 August 22, 1996 considered opaque. MR. MURRAY: All right. Now, for purposes of county contracts, are you a county contractor? MR. SCHWARTZ: Supplier, yes. MR. MURRAY: Okay. So you have fulfilled county contracts? MR. SCHWARTZ: Yes, statewide. MR. MURRAY: All right. And have you ever -- in the sample that you gave Mrs. Ackerman, was that a sample that you have used previously in -- in county contracts that -- when they called for opaque material? MR. SCHWARTZ: Yes. MR. MURRAY: Okay. And during the period of time, January to June, did you have occasion to talk to Mrs. Ackerman after that? MR. SCHWARTZ: Yes. She did call back several times, and I even went down to the store to take a look because I had to explain to her the trade-offs with the various products, cost, what the product's supposed to be. There's -- there's concerns as to some -- some people will want to block out everything, and that's where you're getting into an open mesh type thing. But then the trade-off is any kind of a huge wind storm poses a greater risk of blowing the fence down. There's also a security and police concern where some people, if they block it out, then they can't see what's going on in terms of mischievous youth late at night or over the weekends or even possible crime. So that's why -- we sell very little closed mesh which would be, I'm going to say, a higher degree of opaqueness. We sell much more of the open mesh because it does allow to see what is taking place behind the fence and it -- also greater assurance that the fence will not blow down in a hurricane or a large wind type situation. MR. MURRAY: Okay. And during those times roughly how many times did you talk to Mrs. Ackerman between January and June? MR. SCHWARTZ: I'm going to say maybe three, four, five times. MR. MURRAY: Okay. MR. SCHWARTZ: I I didn't record them. MR. MURRAY: And each time did she express that she was waiting on the county to tell her what kind? MR. SCHWARTZ: Definitely. Each time she said -- because I just kind of joked with her because for us it's considered a somewhat small sale, and I didn't even expect it to even materialize into a sale. I was just trying to give her some guidance, some directions, some options because it's a free country. She can go out and buy it anywhere she wants and -- but at the present time I was working on a job down at Avalqn Elementary School which is right near her place of business. So I do recall that twice I even stopped in just because it was convenient. Happened to be going by and just wanted to see if there was any update, and she always said she can't get an answer from the county, that -- and from listening to what I'm listening to today, you know, it -- and I run into this repeatedly at Page 75 August 22, 1996 least 20, 30 times a year, and that's lack of product knowledge. And I think that was demonstrated by Mr. Bogart's (sic) replies on a couple things when they asked him if he knew anything about the wind velocity or the potential wind load or if he knew anything about cost and he said no to both questions. And they enter into all the decision making. We can always give them four, five, six options. And all of it relates to cost or the trade-offs. What do you want to do with the product? MR. MURRAY: This invoice for $1,600 dated January 15, did you give Mrs. Ackerman that invoice? MR. SCHWARTZ: Yes, I did. And for what it's worth, I didn't even respond as promptly because I didn't know there was an urgency. I probably had heard from her closer to that -- whatever date that you mentioned earlier, the 9th. I was a little late getting the quote to her. MR. MURRAY: Okay. I have no further questions. MR. MANALICH: Mr. Schwartz MR. SCHWARTZ: Yes. MR. MANALICH: -- you would agree with me, would you not, that you do not judge what the county's requirements are; right? MR. SCHWARTZ: That would be correct. MR. MANALICH: Now, if opaque is intended to mean truly not transparent, then the first material that Mrs. Ackerman presented to Mr. Bolgar does not meet that requirement; right? MR. SCHWARTZ: That's not for me to decide. MR. MANALICH: Well, let me ask you this. The first material had strips that were actually see-through, didn't it, the green? MR. MANALICH: There was ventilation, right. We call that ventilation. MR. MURRAY: You can see through that. MR. SCHWARTZ: Some of them have 5 percent. Some have 15 percent all related to what it's going to do to the fence in addition to the other things that I mentioned earlier. So there definitely seems to be a problem on defining opaqueness. MR. MANALICH: Now, Mrs. Ackerman didn't tell that you Mr. Bolgar was going to be coming to get the material from you; right? MR. SCHWARTZ: I never even knew the man existed till this morning, never heard his name mentioned. All she did was express to me a concern to get approval from the county, and she did that. She definitely told me. She says, "I just don't know where to turn or where to go. II MR. MANALICH: You mentioned that this material is used with different purposes in mind. For example, you said some of it has to do sometimes with wind loading. Some of it has to do with security. It all depends on what the purpose is; right? MR. SCHWARTZ: And there's different costs. MR. MANALICH: Okay. MR. SCHWARTZ: The -- the more -- the more dense it is the more expensive it is. Page 76 August 22, 1996 MR. MANALICH: Right. MR. SCHWARTZ: But then also the less air that goes through, the less ventilation. MR. MANALICH: Now, if this site which is where the Ackermans are, if the purpose of the material is to visually buffer from office and residential surrounding properties a work area marina, is it not true that you would then in your position be recommending a thicker grade to make it visually not transparent? MR. SCHWARTZ: I would feel an obligation to explain the options and then let the people that are making that decision choose what they feel is the best option because, you know, like I said, the trade-offs, I -- I -- I was contacted several years ago by like a store like a K-Mart that wanted to do the same -- similar thing. But they were concerned because they didn't want to make it too dark because then the police when they'd drive by couldn't see whether there was any illegal activity going on behind. So it's -- it's -- it's not an easy question to answer. MR. MANALICH: Right. It will depend on your purpose. But if I tell you that the -- that the primary purpose is to not have any visibility of an undesirable view of a work area from neighboring residential and office -- MR. SCHWARTZ: Uh-huh. MR. MANALICH: -- then you would recommend a higher grade that's not transparent; right? MR. MURRAY: I'm going to object to the question because that's not on the site plan, and that's speculation as to the justification for having it opaque in the first place. MR. MANALICH: Not speculation, Madam Chairman. Mr. Arnold testified and his letter contains language which says that a primary consideration in interpreting the Land Development Code requirements is the effect on neighborhood property. He testified to the zoning being unique surrounded by a mixed use. CHAIRPERSON RAWSON: You can answer the question. MR. SCHWARTZ: Would you repeat the question, please? MR. MANALICH: Can you read that back? (The requested portion of the record was read.) MR. SCHWARTZ: The best way I could answer that question would be because it's a chainlink fence, I would recommend the open mesh which was what was shown because of what we know that the closed mesh will have a greater percentage of doing to a fence. I also would say you might want to consider something else like taking the fence down and building a wall or something. But I haven't sold closed mesh, which is what you're inferring to, for on a fence probably in seven years -- MR. MANALICH: There are -- MR. SCHWARTZ: -- because it does not -- it's too -- I don't know if this is helpful to you or not, but especially in their case where we don't even know the OD, the size or the thickness, whether they've got schedule 40 pipe, whether they've got steel tubing on the fence because I have no idea who put the fence up and that's not my job to determine that, but there are many times when they put a Page 77 August 22, 1996 chainlink fence up that they will buy the cheapest materials available just to save cost not knowing that later on there might be an application to put some type of screening on it. So if you have a light duty post, now it's gonna be more susceptible to blowing over and then even a greater expense and possible damage to what's behind the fence. MR. MANALICH: There is material that is thicker in grade than the material that Mrs. Ackerman presented to Mr. Bolgar; correct? MR. SCHWARTZ: I can read for you. That's why I brought this up here. In other words, what we have, what we recommended to her, is the strongest that we have. And the reason, once again -- but it does allow that 15 percent ventilation. What she was getting from me was probably about as good a recommendation short of closed mesh, but the purpose, again, was because of my concern for the fence. MR. MANALICH: Closed mesh, though, would not be transparent; correct? MR. SCHWARTZ: Well, once again, I'm not going to say. You might -- I might say it's not transparent, and you might say it still is. MR. MANALICH: Yeah, but you're familiar -- MR. SCHWARTZ: We're talking ventilation. We're talking 5 percent versus 15 percent. MR. MANALICH: Now, had they installed -- or, in fact, did -- the material they installed, did they purchase it from you? MR. SCHWARTZ: No. MR. MANALICH: No other questions. CHAIRPERSON RAWSON: Redirect? MR. MURRAY: No other -- MR. SCHWARTZ: Could -- for the board could I make one final comment? Something that we also run into a lot with county, city, school work is poor specs., and somebody was mentioning the plan, in other words, and I need to leave this afternoon to go up and address the school here in town because they need to fix their outdoor basketball courts. I've got 20 options on basketball courts. But a lot of times they put in the spec. "we want a basketball support," and they don't tell us what size, what size pipe, anything. And it appears like this is the case here. They put down opaque but no description, no model number, no guideline, no manufacturer. And I feel sorry for the people that are trying to comply. MS. DEIFIK: Did you give Mrs. Ackerman any samples or literature on closed mesh materials to take back to the county? MR. SCHWARTZ: It's -- it's on that sheet. It's an option. But like I told her, I recommended an open mesh because now, I didn't know -- once again, I'd never met any of these people with the county, and the coun~y is the one that gave her my name. MS. DEIFIK: Did you give her any samples of closed mesh as you gave her the sample of the 15 percent open mesh? MR. SCHWARTZ: I -- I had the manufacturer send samples directly to her, so I never really saw what they sent. CHAIRPERSON RAWSON: Thank you, Mr. Schwartz. Page 78 August 22, 1996 MR. SCHWARTZ: Thank you. CHAIRPERSON RAWSON: Any further business to come before the board? MR. KOWALSKI: Madam Chairperson, I believe there has been a request that an additional question be asked of Mr. and Mrs. Ackerman. And if I may do that, that question is to advise the board of the circumstances under which they acquired this property, from whom, and particularly when they acquired the property. If they could provide that information, that's been requested that that be asked. CHAIRPERSON RAWSON: Well, I don't have any problem with them providing that information. However, I'll bet if they do, then that's gonna elicit a series of questions from both attorneys. MR. MANALICH: Well, initially, Madam Chairman, we would question what is the relevancy of that to an issue of fines. CHAIRPERSON RAWSON: Well, we can do this: Actually Mr. Murray's not finished with his case. Mr. Manalich has a right to call back either Mr. or Mrs. or both on the 30th. The board members at that time have the right to ask questions. And so maybe we can get that question answered on the 30th. Because of the time constraints, you know, I think if there's nothing further to come before the board, then we will see Mr. and Mrs. Ackerman, whatever witnesses Mr. Murray has, and it's my understanding per Miss Sullivan that you will be the first case. We will finish your case up at 8:30 on September the 30th. And again, I will ask most assuredly that the five members of the board that are hearing this case please be back. We need all of you. And again, that is a Monday, September 30. It's a Monday, not a usual thirty -- Thursday date. Anything else we need to take up today? In that case, the Code Enforcement Board will adjourn. See you on the 30th. ***** There being no further business for the Good of the County, the meeting was adjourned by Order of the Chair at 12:40 p.m. CODE ENFORCEMENT BOARD m~f~ M. J~WSON, CHAIRPERSON TRANSCRIPT PREPARED ON BEHALF .OF DONOVAN COURT REPORTING BY: Christine E. Whitfield and Shelly Semmler Page 79